Delhi District Court
Fir No. 467/08; State vs . Hitesh Sharma @ Hunny Etc. Page 1 Of 47 on 4 June, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE No. 31/09
FIR No. 467/08
P.S. Saraswati Vihar
U/S: 392/394/397/411/34 IPC
STATE
Versus
(1) Hitesh Sharma @ Hunny
s/o late Sh. Chander Prakash
r/o H. No. C23, Anand Vihar,
Uttam Nagar, Delhi
(2) Vinod Sharma @ Lallu
s/o Sh. Rampal
r/o house of Inder Kaji,
Parva Pana, vill. Karala, Delhi
(3) Veeru
s/o Sh. Banwari Lal
r/o H. No. T2679,
Baljeet Nagar, Delhi
Date of Institution: 18102008
Date of arguments: 21052013
Date of judgement: 23052013
JUDGMENT
FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 1 of 47
1. The case of the Prosecution, in brief, is that complainant Amrender Kumar Yadav was working as Data Entry Operator in Safexpress, AB1, Dilkhush Indus. Estate, G. T. Karnal Road, Azadpur. On 06082008 at about 6:30 pm, after finishing his work, he went to Hatik India, Wazirpur and thereafter at about 8:30 pm, he was waiting at Wazirpur Depot stand. Meanwhile, a Maruti car make Zen of while/ matialia colour having black tinted glasses came near him in which four boys in the age group of 2526 years were sitting and they offered lift to complainant. As the complainant had to go to Lajpat Nagar and they were going till Ashram, he accepted the lift offer. The complainant was sitting on the rear seat of the car and when the car reached near Britannia Chowk, one boy sitting in the back seat put a khukri type knife on the neck of the complainant and the other boy caught hold of complainant's neck. The boy having knife in his hand started taking search of the complainant and took out his mobile phone make Motorola W220 bearing no. 9999510712 from him pocket and also took out Rs. 1500 cash from the purse, gold chain weighing about 9 gms from his neck and one ATM card of HDFC Bank. Thereafter, those persons turned the car towards Zakhira and moved the car in the streets. At about 10 pm, those people reached at Arya Samaj Road, Karol Bagh, near RD FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 2 of 47 Chambers where there was one ATM of State Bank of Bikaner and Jaipur. Those boys forced, threatened and beaten the complainant to tell the PIN number of ATM card. One boy wearing jeans pant went inside the ATM and withdrew money and thereafter returned the ATM card to the complainant. After moving around the car for about 510 minutes in the area of Karol Bagh, those persons dropped the complainant from the car at the deserted place. After walking some distance, the complainant reached Faiz Road, in front of Hanuman Temple where one branch of his office was situated. From there, complainant dialled at 100 number. On checking his account bearing no. 02471000056027 in computer, he came to know that Rs. 13,200/ were withdrawn from his account from the ATM by those boys. On the basis of this complaint, FIR was registered at PS Saraswati Vihar. The copy of CCTV footage installed in ATM was also taken into possession. During investigation, three accused persons namely Hitesh Sharma @ Hunny, Vinod Sharma @ Lallu, and Veeru were arrested in this case. Car used in the crime was also recovered at the instance of accused. All accused refused to participate in judicial TIP. During PC remand, gold chain robbed in the case was recovered at the instance of accused Hitesh Sharma @ Hunny from his house. Two FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 3 of 47 mobile phones were also seized u/s 102 Cr.P.C. at the instance of accused Vinod Sharma @ Lallu from his house. Complainant Amrender Kumar identified all the three accused and gold chain during investigation. Complainant also identified the car bearing no. DL4CG8976 in which he was robbed. One accused namely Sagar could not be arrested. After completion of investigation, chargesheet u/s 392/394/397/411/34 IPC was filed against the accused persons.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge u/s 392/394/397/34 IPC and 411 IPC was framed against accused Hitesh Sharma @ Hunny and charge u/s 392/394/34 IPC was framed against accused Vinod Sharma and Veeru to which they pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution has examined 16 witnesses. Statements of accused were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. Accused opted not to lead defence evidence.
4. I have heard Ld. Defence counsel and Ld. APP for State and have perused the entire records.
5. Ld. Defence counsel for accused argued that the FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 4 of 47 complainant in his complaint only mentioned about the robbed amount of Rs. 1500/ and ATM card and there is no mention of gold chain and even otherwise, there is no mention of car and its colour. There is also no mention of gold article except Rs. 1500/ and ATM card in the PCR details. PW1 improved in his statement by stating vehicle, mobile phone and gold chain. No separate written complaint is filed on record. PW4 stated that the complaint was given in Hindi but the complaint is not on record. No public person was joined during investigation. Even no notice was given to the public persons who refused to join the investigation. Nothing is mentioned in the judicial TIP about the description of identical four chains. PW1 also stated about Rs. 1500 and ATM card and not about the gold chain. There is no mention of arrival and departure by the police officials during investigation. There is no statement of the mother of the accused at the time of seizure of the gold chain. The complainant was in the PS and the arrest has been shown for the same day. There is no witness to the arrest while the arrest was made from the temple. There is no explanation in delay of FIR registration.
6. Ld. APP for State argued that the accused persons robbed the complainant/ PW1 and accused Hitesh put knife on his FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 5 of 47 neck and they took the amount of Rs. 1500/, ATM card, gold chain, mobile phone and also withdrawn Rs. 13,200/ through his ATM card from ATM. The complainant not only identified the accused persons in the court but also identified the case property in TIP and also accused Hitesh in CCTV footage withdrawing money from ATM. The Ld. APP for State, in support of his arguments, relied upon the judgements reported in the case of Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920; State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233 and Raja Vs. State (1997) 2 Crimes 175 (Del.).
7. Let us firstly discuss about the legal position under the aforesaid sections of IPC. Section 392 IPC specifies the punishment which can be inflicted in case of simple robbery. The arrest of the culprits in such cases is often delayed on account of the inherent difficulties which the Prosecution naturally faces in such cases. Section 394 IPC speaks of two distinct classes of persons those who actually caused hurt and those who do not but are jointly concerned in the commission of the offence of robbery. The guilty act of one is imputed to all who are joint with him provided the act is done in committing the offence of robbery. The provisions of section 397 IPC do not create any new substantive offence as such but FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 6 of 47 merely serve as complementary to sections 392 and 395 IPC by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34. Section 411 IPC prescribes penalty for dishonest receipt or retention of stolen property, knowing or having reason to believe the same to be stolen property. This section as also the succeeding sections are directed not against the principal offenders, e.g. a thief, robber or misappropriator but against the class of persons who trade in stolen articles and are receivers of 'stolen property'. Principal offenders are, therefore, outside the scope of this section. The conviction of the principal offender is also not a prerequisite to the conviction of the receiver of stolen property under this section.
8. In view of the above arguments of the Ld. Defence counsel and the Ld. APP for the State, let us examine the evidence led in this case as to whether the accused persons had committed FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 7 of 47 the offence as charged or whether they have been falsely implicated. PW1 Amrender Kumar is the complainant and he stated in his examination in chief that on 06082008, he was working in a transport company by the name Saif Express at AB/1, Dilkhush Industrial Estate, G.T. Karnal Road, Azad Pur as Date Entry Operator. On that day at about 6:30 pm, he visited Hettich India, their client, at Hafed Building, Wazirpur. After finishing the work, at about 8:30 pm when he was standing near Wazirpur Depot stand, a Maruti Zen car of white/ Matmaila colour having black tinted glasses and four inch plastic cover over the glasses of windows came there in which four boys in the age group of 2025 years, were sitting and they offered lift to PW1 for Ashram. As PW1 was residing at Lajpat Nagar, he accepted the lift and sat on the rear seat of the car. When they reached near Britannia Chowk, one of the boys brought out a Khukri type knife and put it on the neck of PW1 and took out a mobile phone make Motorola W220 bearing mobile no. 9999510712, HDFC ATM card and Rs. 1500/ from his purse. The other boy caught hold of PW1. The gold chain weighing about 9 gms. was also taken out from the neck of PW1. PW1 was beaten up in the car by the boys and was forced to tell the PIN number of his ATM card. They turned the car towards Punjabi Bagh FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 8 of 47 via Jakhira and came at Arya Samaj Road, Karol Bagh from where one of the boys withdrew Rs. 13,200/ using his ATM card and PIN number from ATM of State Bank of Bikaner and Jaipur and thereafter returned the ATM card to PW1. After moving around for five minutes, they dropped PW1 at a deserted place. PW1 reached Metro Rail bridge and then reached near Hanuman Mandir at Faiz Road, Karol Bagh where branch of his office was situated at Faiz Road. PW1 informed the staff present in the office and also informed the police at 100 number. On checking account status on the computer, PW1 came to know that Rs. 13,200/ were withdrawn from his account through ATM by those boys. The police from PS Karol Bagh and PS Deshbandhu Gupta Road reached at their office and told that incident had taken place within the jurisdiction of PS Saraswati Vihar. PW1 then went to PS Saraswati Vihar where his statement Ex. PW1/A was recorded.
9. PW1 further stated in his examination in chief that on 09082008, PW1 visited the place of occurrence with the police where police prepared the site plan of the spot at his instance. PW1 identified accused Hitesh Sharma, Vinod Sharma and Veeru in the court as the persons who had robbed him along with another person. PW1 stated that accused Hitesh had put knife on his neck FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 9 of 47 and took out Rs. 1500/, his HDFC ATM card, his mobile phone and his gold chain. PW1 pointed out towards accused Veeru and stated that he was driving the car at the time of incident and pointed out towards accused Vinod Sharma who had caught hold of him in the car. He further stated that accused Hitesh had withdrawn Rs. 13,200/ from the ATM of State Bank of Bikaner and Jaipur using his PIN number. On 12082008, PW1 along with IO went to State Bank of Bikaner and Jaipur, Karol Bagh where Manager of the Bank showed him the footage of ATM dated 06082008. PW1 identified accused Hitesh in the recorded footage of the period 9:18 pm to 9:21pm as the person who had robbed him and had forcibly taken his PIN number and withdrawn Rs. 13,200/ from his account using his ATM card and PIN number. The Manager handed over the CD of the TV footage to the IO. PW1 also handed over the bank statement Mark A of his account to the police which was seized vide memo Ex. PW1/B. On 19082008, PW1 had gone to PS Saraswati Vihar to know the progress of his case where he identified the Maruti Zen car in which he was given lift by the accused persons. On 26082008, PW1 identified all the three accused in PS Saraswati Vihar. PW1 also identified his gold chain during TIP. PW1 identified the TIP proceedings of gold chain as Ex. PW1/C. FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 10 of 47
10. In response to leading questions put up by Ld. APP for State, PW1 stated that HC Jagdish of PS DBG Road came at the office at Faiz Road and took his written complaint. PW1 also stated that there were panels over the gates of the car and designer stickers pasted on the sides of the car. PW1 also stated that account statement of HDFC bank, Gujranwala Town Branch of a/c no. 02471000056027 was dated 19082008. PW1 further stated that number of the car was DL4CG8976 which was identified by him at PS on 20082008. PW1 produced the gold chain as Exbt. P3. PW1 also saw the VCD Ex. P1 running in the court computer and which contained the CCTV footage for the period 22.07.2008 to 07.08.2008 and PW1 correctly identified accused Hitesh withdrawing money from ATM of State Bank of Bikaner & Jaipur at Karol Bagh at 21 hours :20 minutes :50 seconds as displayed. PW1 stated that accused persons had forcibly asked the PIN number from him after threatening him before withdrawal of the money. The statement of account Ex. PW1/D of PW1 with HDFC bank of the relevant period bore the signature at point A and the same was seized by the police vide memo Exbt. PW1/B. PW1 stated that as per the statement of account Exbt. PW1/D, Rs. 13,200/ were withdrawn from his account on 06.08.2008 from ATM. PW1 also FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 11 of 47 identified the Maruti Zen car bearing no. DL4CG8976 as Ex. P4. PW1 discontinued the HDFC ATM card and destroyed the same. (identity of ATM card was not disputed on behalf of accused Vinod Sharma @ Lallu)
11. During crossexamination conducted by Ld. defence counsel, PW1 denied the suggestion that he was not working in Safe Express P. Ltd or that he did not visit Hettich India P. Ltd. Wazirpur or that there was no question of his visiting Wazirpur bus stand. The statement was recorded by the police officials at DBG road on 06082008 after 10 pm. PW1 had told in his statement that person who had robbed him, he can identify those persons if they come face to face. PW1 had stated to the police officials on 06082008 at PS DBG Road that one boy who caught hold his neck was healthy and tall. PW1 denied that on the day of incident accused Vinod was not present in the said car in which he took the lift or that he was deposing against accused Vinod at the instance of IO. PW1 stated that his office starts from 10 am onwards but there is no off hours and it may be 10 pm or 11 pm. PW1 only requested for lift from the occupant of that car and he did not notice the number of said Zen car. PW1 stated that the windowpanes of the car were of black colour. PW1 sat on the reverse/opposite of driver FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 12 of 47 side on the back seat. After the incident, PW1 was thrown away from the car after about 20 minutes. PW1 denied the suggestion that he identified the accused person in PS at the asking of police. PW1 further stated in his examination that he did not ring the PCR when he was dropped from the vehicle and to reach upto the branch office of his company because he was not having any means with him. As mind of PW1 was also not working properly, so he could not say whether there was any STD or not in the way. PW1 checked his account on internet in his branch office and saw that some money had been withdrawn from his account. When PW1 rang up the PCR at 100 number, then PCR van officials and police officials of DBG Road and police of PS Karol Bagh also reached there. The PCR recorded his statement and Karol Bagh and DBG Road PS officials decided the area where the incident took place. PW1 further stated that DBG Road officials recorded his statement. Next day, the police officials of DBG Road came at Saraswati Vihar PS gate and from there they told him that he had to report his case at PS Saraswati Vihar. PW1 denied the suggestion that he gave the report at PS Saraswati Vihar as an afterthought. Presently, PW1 is staying at Patna, Bihar and he left his job as well as his office in Delhi where he was working earlier. PW1 also stated in his FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 13 of 47 examination that the boy sitting on the rear seat of car operated his ATM. PW1 knew what type of weapon Khukri is and blade of Khukri is slightly bend. PW1 stated that weapon was not a knife. PW1 denied that person who showed the knife did not operate the ATM.
12. PW2 Narender Singh Chabbra, Asstt. GM, State Bank of Bikaner and Jaipur stated in his examination in chief that in the month of August 2008, he was posted as Branch Manager at Karol Bagh Branch of State Bank of Bikaner and Jaipur. On 09/10082008, some police officials came at his Branch and told that mishap took place at ATM situated at RD Chambers, Karol Bagh and wanted the CCTV footage of ATM dated 06082008. On 11082008, PW2 received an official letter from the police asking for CCTV footage of 06082008. On 12082008, Inspector Ajay Kumar along with another police official namely Rajpal and a public person came in his branch and they were shown ATM CCTV footage of 06082008. PW2 handed over CD of CCTV footage to police which was seized vide memo Ex. PW2/A. PW2 also produced the original video cassette from the concerned branch. During crossexamination by Ld. APP for State, PW2 stated that he did not remember if his statement was recorded by the police. PW2 further stated that he had stated to both the police officials that the FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 14 of 47 recording time in the footage may not be the accurate time. PW2 volunteered that the footage shows the timing as stored in the ATM. PW2 identified the CD Ex. P1 as the same CD which was handed over to the police. PW2 further proved the original video cassette of the recording of CCTV footage of the period from 22072008 to 07082008 as Ex. P2 which has also been kept on record in a sealed envelope. During crossexamination by the Ld. Counsel for the accused persons, PW2 denied the suggestion that date was not put underneath the signature in order to enable the police to manipulate the documents as per their wish. PW2 denied the suggestion that Ex. P1 does not contain the authenticated footage. PW2 stated in his crossexamination that the system of recording footage of camera installed at ATM is automatic and there is inbuilt recording system. The video cassette attached with the CCTV footage in which automatic recording took place. PW2 denied the suggestion that there can be difference of half an hour in the ATM clock timings from actual timings. However, PW2 volunteered that there may be difference of few minutes.
13. PW10 Sh. Manoj Sharma, Executive, HDFC Bank, Gujranwala Town also stated in his examination in chief that he works as Sales Executive in HDFC Bank, Gujranwala Town. He FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 15 of 47 brought the statement of account w.e.f. from 01032008 to 28082008 of a/c no. 02471000056027 in the name of Mr. nd Amrender Kumar Yadav r/o D56, 2 Floor, Lajpat Nagar, New Delhi, near Shani Dev Mandir. As per the entry dated 06082008, Rs. 13,200/ were withdrawn through ATM from State Bank of Bikaner and Jaipur Branch. The balance after the withdrawal of said amount remained only Rs. 92.35 paise. He proved the attested copy of bank statement as Ex. PW10/A bearing signature of Branch Manager at point A. The attested copy of the said statement was already on the judicial file as Ex. PW10/B. During cross examination, PW10 stated that time of withdrawal of amount was not mentioned on Ex. PW10/A. He volunteered that time was mentioned on the withdrawal slip which came out from the ATM machine. PW8 Sh. S. S. Malhotra, Ld. ADJ also proved his endorsement on the application for TIP as Ex. PW8/A. PW8 also stated that TIP of all the three accused persons was conducted but the accused persons refused to undergo TIP and after giving warning to the accused persons, their statements were recorded vide Ex. PW8/B to PW8/D. The application of the IO for supply of the copy of TIP proceedings of accused was also proved by PW8 as Ex. PW8/E. On 08092008, PW8 also conducted the TIP of the FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 16 of 47 case property in the court itself which has been proved as Ex. PW1/C, certificate appended with the proceedings as Ex. PW8/F. PW1 correctly identified the case property. PW8 also proved the application of the IO as Ex. PW9/G.
14. PW3 HC Rajender Singh is the Duty Officer and he proved the FIR no. 467/08 as Ex. PW3/A. During crossexamination by Ld. Defence counsel, PW3 stated that he did not meet the complainant or HC of PS DBG Road. After registration of FIR, the copy of FIR was handed over to Inspector Ajay Kumar. He further stated that he recorded the FIR at 2:45 pm. PW4 HC Jagdish stated that on 06082008, he was on emergency duty at PS DBG Road. On that day at about 11 pm on receipt of DD no. 41A, he along with Ct. Baljit went at Faiz Road where complainant Amrender Kumar Yadav met them and gave a complaint in writing and PW4 apprised the facts to the SHO. PW4 further stated that it was not clear as to in which PS, the jurisdiction was and therefore the call was kept pending. On 08082008, at the direction of SHO, DBG Road, he went to PS Saraswati Vihar and recorded DD no. 42B and handed over the complaint to SHO Inspector PP Singh. The pending DD entry no. 41A was filed. On 11102008, statement of PW4 was recorded by the IO. During crossexamination, PW4 FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 17 of 47 stated that they met Amrinder Kumar Yadav at about 11:15 pm. PW4 denied the suggestion that he did not attend DD no. 41A or that he did not visit the spot. PW5 Inspector P. P. Singh stated that on 08082008, he was posted at PS Saraswati Vihar and HC Jagdish came from DBG Road and handed over the statement of Amrinder Kumar Yadav on which he made his endorsement at point D. On the basis of endorsement, DO recorded the FIR and investigation was handed over to Inspector Ajay Kumar. In his crossexamination, PW5 denied the suggestion that no complaint was handed over to him on 08082008.
15. PW6 HC Rajpal stated that on 12.08.2008, he was posted at PS Saraswati Vihar as HC and he along with IO Inspector Ajay Kumar and complainant Amrinder Kumar went to State Bank of Bikaner & Jaipur, Karol Bagh where Manager Narender Chhabra showed them the CCTV footage recording from his office computer. Complainant Amrinder Kumar on seeing the footage, pointed out that the boys seen in the footage withdrawing money at the time shown as 21:18 to 21:21 in the footage were the same persons who had asked the PIN number from him after beating him and withdrew money from his account from the ATM. The Manager handed over the CD of CCTV footage recording in a plastic cover to the IO which FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 18 of 47 was kept in a white cloth and a pullanda was prepared which was sealed with the seal of AK. The seal after use was handed over to PW6. The pullanda was seized vide memo Exbt. PW2/A. IO recorded the statement of the bank Manager and the complainant. PW6 identified the CD as Exbt. P1 which contained CCTV footage and handed over by the Manager to the police. During cross examination by Ld. defence counsel, PW6 stated that he did not know when the complainant Amrinder came at the police station and who called him. However, he volunteered that he saw him at the police station with IO. PW6 stated that they started from the police station at about 1.30 - 2.00 pm. They went to the bank in a private vehicle. PW6 further stated that at the request of the IO, the Manager prepared the CD of the footage. The seizure memo of CD was prepared at the bank. PW6 signed the memo after reading the same. PW6 also stated that single seal impression was put on the pullanda. PW6 returned the seal to the IO on the next day. PW6 further stated that IO had put his signatures on the CD but he could not recall whether he had put the date below his signatures. PW6 denied the suggestion that Exbt. P1 was fabricated and falsely prepared by the IO at the police station in connivance with the complainant with the help of technical computer expert. PW6 also FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 19 of 47 denied that with the help of technical computer expert, the original photograph of the persons was deleted from the CD and the photograph of accused Hitesh Sharma was planted in the CD at the instance of IO and complainant. PW6 further denied that after preparing false CD at the police station, they had gone to the bank or that also tampered with the original CCTV record of the bank. PW6 also denied that in the original CCTV footage, the photograph and the role of accused Hitesh Sharma was not found. PW6 further denied that CD Exbt. P1 was a morphing one (manipulated one in which original picture was extracted out and false picture was planted).
16. PW7 HC Subhash stated that on 19.08.2008, he was posted at PS Saraswati Vihar and he along with Inspector Ajay Kumar, SI Sunil and Constable Narender went at village Karala in search of accused with informer. The informer told them that Vinod was not present at the house and they started waiting for him. In the night, accused Vinod (correctly identified) was seen coming. He was apprehended on the pointing out of the informer. He was arrested vide arrest memo Exbt. PW7/A and brought at PP Shakti Vihar. On 25.08.2008, PW7 along with Inspector Ajay Kumar and accused Vinod Kumar went at the house of accused Vinod at village FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 20 of 47 Karala where accused Vinod got recovered two mobile phones, one was of the make Techno while the other was Indicom from a cloth bag lying on a shelf in the room. Both the phones were used phones and were without SIM cards. Both the phones were seized under Section 102 Cr. PC vide memo Exbt. PW7/B. On 26.08.2008, PW7 along with Inspector Ajay Kumar and accused Hitesh (correctly identified) went at his house at C23, Anand Vihar, Uttam Nagar where accused Hitesh got recovered a gold chain lying in a polythene under the clothes in a Godrej almirah lying on the right side near the wall from the inner room of his house at ground floor. The chain was kept in the same polythene and a pullanda was prepared which was sealed with the seal of AK. The sealed pullanda was seized vide memo Exbt. PW7/C. In response to leading question put up by Ld. APP for State, PW7 stated that accused Hitesh gave a supplementary disclosure statement Exbt. PW7/D. PW7 identified the mobile phone of Indicom as Exbt. P3; Techno mobile phone as Exbt. P4 and gold chain as Exbt. P3.
17. During crossexamination, PW7 stated that on 26.08.2008, he was on duty at PS Saraswati Vihar. Accused Hitesh was taken out from the lockup and was taken to his house at 1.00 am. PW7 stated that they reached at his house after about one FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 21 of 47 hour. PW7 further stated that he was holding the accused and the IO was searching the almirah. PW7 also stated that he saw a yellow metal chain there. Accused gave his disclosure statement in presence of PW7 that it was a robbed chain. PW7 also stated that recovery memo of the chain was prepared by the IO in his presence. PW7 further stated that they left the house of accused Hitesh between 3.00 - 4.00 am. PW7 denied the suggestion that nothing was recovered from accused Hitesh or that the chain was planted on the accused. PW7 stated that seal impression on the gold chain was not visible. PW7 further stated that on 19.08.2008, they left the police station at about 5.00 pm in a private car driven by SI Sunil Kumar. PW7 stated that SI Sunil was in plain clothes and other police officials were in the uniform. PW7 further stated that they reached at the house of accused Vinod at around 6.30 pm. PW7 denied the suggestion that the house of accused Vinod was situated in a Kachchi colony having no basic amenities. They reached at the police station at around 9.30 - 10.00 pm. PW7 further stated that the disclosure statement of accused Vinod was recorded in his presence at the police station but he did not remember the date. The recovery of mobile phones was affected from the verandah of the house of accused Vinod. On 25.08.2008, they left the police FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 22 of 47 station in a private car which was being driven by a private driver. PW7 was sitting on the back seat of the car. They returned back to the police station after 8.00 pm. Accused Vinod was brought to the police station directly. Accused Vinod was on PC remand. PW7 denied the suggestion that nothing was recovered from the possession or at the instance or from the house of accused Vinod.
18. PW9 Constable Narender stated that on 19.08.2008, he was posted as Constable at PS Saraswati Vihar and he joined the investigation with Inspector Ajay Kumar, SI Sunil and Constable Subhash. The police team reached Village Karala along with the informer in search of accused Vinod. The vehicle was parked inside Village Karala. At around 7.15 pm, informer informed the IO that accused Vinod had reached his house. Accused Vinod (correctly identified) was overpowered by the police team outside his house. He was interrogated and thereafter arrested vide memo Ex. PW7/A. During crossexamination, PW9 stated that they started from the police station at about 5.00 - 6.00 pm along with Inspector Ajay, SI Sunil, Constable Subhash and informer on a private car but he could not tell the make and colour of the said car. PW9 stated that after informing that accused was standing outside his house, the informer left from there. The father of accused was informed about FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 23 of 47 his arrest. PW9 did not recollect whether SI Sunil had signed the arrest memo of accused Vinod. PW9 only signed arrest memo of accused Vinod. PW9 further stated that his statement was recorded by the IO at the spot while sitting. They came back to the police station at around 8.20 pm. PW9 denied the suggestion that he did not join the investigation or that accused Vinod was not arrested in his presence.
19. PW11 SI Prem Singh stated that he was posted as Record Incharge at PCR Line, Model Town. He stated that PCR record dated 06082006 had been destroyed vide orders no. 83133/HAR/PCR Delhi dated 31052010 and he proved the photocopy of the said record as Mark PW11/X. PW11 further stated that the record regarding DD no. 14A dated 06082008 was lying in their office and he brought the PCR form of DD no. 41A dated 06082008 of PS DBG Road, Delhi. As per the said PCR record, an incident of robbery of Rs. 1500/ and one ATM card was reported at office no. 1011, Safe Express Pvt. Ltd, Faiz Road, Karol Bagh, N. Delhi. He proved the DD no. 41A vide Ex. PW12/A and computerized copy of PCR form as Ex PW16/A. PW12 Retd. SI Pratap Singh, stated that on 06.08.2008, he was posted as SI at PS D.B.G. Road, Karol Bagh, Delhi. On that day, unknown person FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 24 of 47 made a call at about 11:07 p.m regarding snatching of Rs. 1500/ and ATM card. The said call was recorded vide DD No. 41A, dated 06.08.08 and same was marked to HC Jagdish for investigation. He proved the true copy of same as Ex.PW12/A. During cross examination, PW12 stated that DD No. 41A is in his handwriting and number of the vehicle and its make was not disclosed in the said DD. The caller did not disclose about the number nor description of persons sitting in the vehicle.
20. PW13 HC Narender Kumar posted as MHC (M) at PS Saraswati Vihar on 12082008, 20082008, 25082008 and 26082008 proved entry No. 4234 in register No.19 vide Ex. PW13/A; entry No. 4249 in register No.19 vide Ex.PW13/B; entry No. 4262 in register No.19 vide Ex.PW13/C; entry No. 4266 in register No.19 vide Ex.PW13/D. PW13 stated that on 08.09.2008, one sealed pulanda containing chain was handed over to IO for TIP of the case property. After TIP proceedings, IO redeposited the said pulanda with the seal of SSM in the malkhana. During cross examination, PW13 stated that Inspector Ajay did not not sign the malkhana register while depositing the pulanda. PW13 denied the suggestion that Inspector had not deposited the said pulanda or that due to this reason, his signatures were not obtained in register No. FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 25 of 47
19. PW13 further denied the suggestion that chain was deposited in the malkhana in unsealed condition. PW13 also denied the suggestion that all the entries were manipulated at the instance of IO. PW14 Ct. Parveen brought the photocopy of destruction order issued by ACP, General Administration, Police Control Room Delhi of the PCR record pertaining to the period 1.7.2006 to 31.12.2006 vide Mark PW14/A. He also saw the computerized copy of PCR form prepared from the PCR, PHQ, Delhi already placed on judicial file and Marked as PW14/B.
21. PW15 Inspector Sunil Kumar stated in his examination in chief that on 19.08.2008, he was posted as SI at PS Saraswati Vihar, Delhi. On that day, on receipt of message of Inspector Ajay Kumar, he along with Ct. Deepak reached at Kali Mata Temple, outer Ring Road, Rohini. Inspector Ajay along with staff met him there. Accused Vinod (correctly identified) was already apprehended by Inspector Ajay at the spot. Inspector Ajay told PW15 that two other associates of accused were also coming in the area. The police party took their position. After some time, two boys came on motorcycle bearing registration No. DL4S AY 2700 make Bajaj Pulsar from the side of Mangolpuri. On seeing the police team, they tried to run away after throwing their motorcycle. Both the boys FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 26 of 47 were apprehended by the police team and their names were revealed as Veeru and Hitesh Sharma (correctly identified). Accused Veeru and Hitesh were arrested vide arrest memos Ex. PW15/A and Ex. PW 15/B and their personal search was also conducted vide memos Ex. PW15/C and PW15/D. Accused Vinod, Hitesh and Veeru made their respective disclosure statements vide Ex. PW15/E, PW15/F and PW15/G. The said motorcycle was seized vide seizure memo Ex. PW15/H. On 20.8.2008, PW15 again joined the investigation with Inspector Ajay Kumar. Accused Hitesh, Vinod and Veeru led them to the place of occurrence i.e Wazirpur Depot, Ring Road where pointing out memo Ex. PW15/J was prepared at their instance. Thereafter, all the three accused led the police team to ATM State Bank of Bikaner and Jaipur situated at Karol Bagh, Arya Samaj Road from where they withdrew the money. The pointing out memo of ATM was prepared at the instance of all the accused vide Ex. PW15/K. Thereafter, accused Hitesh led the police to his house No. C83, Anand Vihar, Uttam Nagar, Delhi from where he got recovered Maruti Zen Car bearing registration No. DL4CG 8976 of golden colour which was used in the commission of offence by them. The said car was seized vide seizure memo Ex.PW15/L. Accused persons were got medically examined at FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 27 of 47 Bhagwan Mahavir hospital. PW15 identified that motorcycle no. DL4SAY2700 make Bajaj Pulsar as Ex. P5 which was recovered from accused Hitesh @ Sunny and Viru and Maruti Zen car no. DL4CG8976 Ex. P4 which was recovered at the instance of accused Hitesh @ Hunny from outside his house.
22. During crossexamination, PW15 stated that the telephonic message was received by him on mobile. Departure entry was made at the time of leaving PS along with Ct. Deepak for Kali Mata temple. However, PW15 did not remember the DD number. PW15 reached Kali Mata temple, Rohini on motorcycle. PW15 denied the suggestion that he did not tell the public persons to join the investigation as he had not gone there. Accused Hitesh and Viru had sustained very minor injuries at the time of slipping from the motorcycle. The medical examination of the accused persons were conducted on 20.08.2008 in the wee hours, may be around 02.30 / 03.00 am. PW15 had left the PS on 20.08.2008. PW15 had reached Ring Road at about 12.15 am on 20.08.2008. Site plan of the spot was not prepared but pointing out memo was prepared. No public witness was found there. PW15 left that spot after about 15 minutes. They had gone there in private vehicle. It was a white Qualis vehicle but PW15 did not remember its FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 28 of 47 registration number. The watchman was not present near the ATM Booth, Karol Bagh when they reached there. They returned to Uttam Nagar at about 02.00 am. The mother of the accused was present at his residence at Uttam Nagar. The key was taken into possession from the mother of the accused. Separate seizure memo was not prepared qua the key. PW15 denied the suggestion that he did not join the investigation at any point of time or that nothing was recovered from the possession of the accused persons or that no document was prepared in his presence.
23. PW16 Inspector Ajay Kumar stated in his examination in chief that on 08.08.2008, he was posted as Inspector Investigation at P.S. Saraswati Vihar. On that day, after registration of the present case, the investigation was marked to him. On the next day, PW16 called the complainant Amrender Kumar Yadav at the P.S. and thereafter the complainant took him to the spot i.e. the place from where he had boarded the car of the accused persons and prepared the rough site plan at the instance of the complainant vide Ex.PW16/A. PW16 also recorded supplementary statement of the complainant. On 12.08.2008, PW16 along with the complainant and HC Raj Pal reached at State Bank of Bikaner & Jaipur, Karol Bagh, New Delhi Branch, where he made inquiry from Sh. Narender FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 29 of 47 Singh Chhabra, Bank Manager who showed them CCTV footage of ATM situated at R.D. Chamber, Karol Bagh of the relevant time of 06.08.2008. While viewing the footage on computer the complainant identified one of the persons as the accused who had withdrawn money from his account after obtaining his PIN number forcibly. The footage was got copied in a CD and Bank Manager Sh. Narender Singh handed over the CD to PW16 in a plastic cover. PW16 prepared the pullanda of the same and after sealing it with the seal of AK, it was taken into possession by PW16 vide seizure memo Ex. PW2/A. Seal after use was handed over to HC Raj Pal. PW16 also recorded statement of Bank Manager Narender Singh Chhabra and supplementary statement of the complainant to this effect. On 19.08.2008, the complainant Amrender Kumar Yadav handed over copy of his statement of account of HDFC Bank Ex. PW1/D which was taken into possession by PW16 vide seizure memo Ex. PW1/B. Thereafter, PW16 along with Ct. Rajender and Ct. Subhash left the P.S. in search of the accused persons and when they reached near Wazirpur Depot, one secret informer met them who told PW16 that he knew one of the accused involved in the present case and he can get him apprehended. After joining the secret informer with them, they reached village Karala. After some FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 30 of 47 time, on seeing a boy coming from the side of gali, secret informer pointed out towards him as one of the accused and he was apprehended by them. PW16 made inquires from that boy and he admitted his involvement in the commission of the offence in the present case and he revealed his name as Vinod Sharma @ Lallu. He was arrested by PW16 in this case vide arrest memo Ex. PW7/A. Accused Vinod Sharma @ Lallu told that he can also get arrested his two associates who will be coming to meet him shortly at Kali Mata Mandir. PW16 called SI Sunil Kumar and Ct. Deepak who reached there. PW16 also prepared personal search memo of accused Vinod Sharma as Ex. PW16/B. After some time, two boys came on a Bajaj Pulsar motorcycle at Kali Mata Mandir and accused Vinod Sharma pointed out towards them as his associates namely Hitesh Sharma @ Hunny and Veeru. Both of them were also apprehended by them. PW16 also made inquiries from them at which they also admitted their involvement in the present case and they revealed their names as Hitesh Sharma @ Hunny and Veeru. PW16 also arrested accused Beeru vide Ex.PW15/A and accused Hitesh Sharma @ Hunny vide Ex. PW 15/B and their personal search memos were also made vide Ex. PW15/C and Ex. PW15/D respectively. The Bajaj Pulsar motorcycle no. DL4SAY2700 on FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 31 of 47 which both the aforesaid accused Hitesh Sharma @ Hunny and Veeru had come was seized and taken into possession by PW16 vide seizure memo Ex.PW15/H. After arrest, all the three accused persons along with motorcycle were brought to nearby PP Shakti Vihar where he recorded disclosure statements of all three accused vide Ex. PW15/E (Vinod Sharma); Ex. PW15/F (Hitesh Sharma @ Hunny); and Ex. PW15/G (Beeru).
24. PW16 further stated in his examination in chief that on 20.08.2008, in pursuance to disclosure statements, all the three accused persons took the police at Ring Road, in front of Wazirpur Depo where they pointed out the place from where they had picked up a boy on the pretext of giving lift and after taking that boy in the car they had committed robbery. PW16 prepared the pointing out memo in this regard by all the accused persons vide Ex. PW15/J. Thereafter, all three accused took the police at R.D. Chambers, Arya Samaj Road, Karol Bagh, New Delhi and pointed out the ATM of State Bank of Bikaner & Jaipur, from where after stopping the car, accused Hitesh Sharma had withdrawn Rs. 13,200/ from the robbed ATM vide pointing out memo Ex. PW15/K. Thereafter, they all reached at the house of accused Hitesh Sharma @ Hunny i.e. C83, Anand Vihar, Uttam Nagar, Delhi and on seeing a Maruti Zen FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 32 of 47 car no. DL4CG8976, accused Hitesh Sharma had pointed out that it was the same car which was used by him and his associates in the commission of the offence of the present case. The said Maruti Car was also seized and taken into possession by PW16 vide memo Ex. PW15/L. After that all three accused persons took the police to Patel Nagar in search of their fourth associate namely Sagar but the accused persons could not locate his house at Patel Nagar, so he could not be arrested. PW16 identified motorcycle no. DL4SAY2700 as Ex. P5 on which both the accused Hitesh Sharma @ Hunny and Veeru had come and Maruti Zen Car bearing no. DL4CG8976 as Ex. P4 which was got recovered by accused Hitesh Sharma @ Hunny from outside his house; one CD make Writex 52X Ex. P1 which was taken into possession by him from Narender Singh Chhabra. After arrest, all three accused persons were kept in the muffled face during the aforesaid proceedings. On the same day, accused persons were taken out from the lock up and were sent to JC. PW16 moved an application Ex. PW16/C before the Ld. M.M. for conducting TIP of all three accused persons. On 22.08.2008, PW16 took the complainant at Rohini Jail for TIP but all three accused persons refused to join the TIP. PW16 obtained the copy of the TIP proceedings vide his application Ex.PW16/D. On FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 33 of 47 22.08.2008, PW16 along with complainant Amrender met Ld. M.M. outside the Rohini Jail but accused persons refused to participate in TIP.
25. PW16 also stated in his examination in chief that on 23.08.2008, he moved an application before Ld. M.M. for issuance of production warrant which was allowed for one day only. Their custody was obtained from the judicial lock up of Rohini Court Complex and reached at the P.S. after their medical examination. Thereafter, accused Vinod @ Lallu was interrogated and he took them to his house at Karala, Delhi and got recovered two mobile instruments (phone) from a cloth bag kept in his house. Both the mobile phones were taken into police possession u/s 102 Cr.P.C. after noting down its complete detail in the seizure memo Ex.PW7/B. On 26.08.2008, PW16 interrogated accused Hitesh @ Hunny and he gave a further disclosure statement vide Ex. PW7/D regarding concealing of gold chain at his residence and further disclosed that he can get recovered the same from his house. Thereafter, accused Hitesh @ Hunny took them to his residence at C23, Anand Vihar, Uttam Nagar, Delhi and took out the gold chain kept inside the almirah underneath the clothes. PW16 converted the gold chain into a parcel and affixed his seal of AK and took the FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 34 of 47 same into police possession vide seizure memo Ex. PW7/C. The complainant came in the P.S. and identified all the accused there and gave his statement u/s 161 Cr.P.C. On 04.09.2008, PW16 moved an application for conducting TIP of the case property and the same was got done on 08.09.2008. PW16 obtained the copy of TIP proceedings and recorded the statement of complainant, MHC(M) and other witnesses. PW16 obtained the bank statement of the complainant from HDFC bank vide Ex.PW10/B. PW16 tried to apprehend/arrest the fourth accused Sagar and recovery of remaining case properties but of no avail. PW16 got verified the address of the accused persons and residential address of accused Hitesh @ Hunny was found to be C23, Anand Vihar, Uttam Nagar, Delhi but inadvertently it was got recorded as C83 instead of C23. Accused Hitesh @ Hunny was found to be involved in many other criminal cases of theft etc. of different police stations. PW16 identified the Indicom mobile phone Ex.P3 and Tehno mobile Ex.P4 which were recovered from the house of accused Vinod; gold chain Ex.P3 which was got recovered at the instance of accused Hitesh @ Hunny from his house.
26. During crossexamination, PW16 stated that the complainant arrived in the PS on 12.08.08 in the noon time FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 35 of 47 somewhere at about 01.00 / 01.30 pm. However, PW16 volunteered that he recorded his statement u/s 161 CrPC. HC Rajpal handed back the seal to him on the next day. PW16 himself had gone to the Malkhana to deposit the case property. On 19.08.2008, the complainant had come in the PS before noon. Same was his answer regarding his arrival/ departure DD entry. PW16 volunteered that he recorded his statement u/s 161 CrPC. Information regarding the arrest of the accused was given to his father. PW16 himself had gone to the house of accused Vinod to inform about his arrest. SI Sunil was the only witness to the personal search memo of accused Vinod. They had gone to Kali Mata Mandir on their private vehicle. Ct. Deepak had brought the motorcycle of the accused on which they had come. PW16 denied the suggestion that none of the accused persons had made any disclosure statement or that he had recorded their disclosure statement of his own. PW16 further stated in his crossexamination that they continued the investigation from 19.08.2008 to 20.08.2008 and the accused was not put in the lock up in the intervening night. A joint pointing out memo was signed by all three accused. There was no guard present on the ATM machine when pointing out memo was prepared. Maruti car which was recovered at the instance of FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 36 of 47 accused Hitesh Sharma was driven to the PS by Ct. Deepak. The keys of the car were taken from the house of the accused Hitesh Sharma. PW16 did not prepare any separate parcel of the key. However, PW16 volunteered that regarding key, the same was mentioned in seizure memo Ex.PW15/L. All three accused persons were produced in the Court in muffled face. PW16 further volunteered that the accused persons were directed to be remained muffled till they remain in police custody. The recovered mobile phones were not converted into parcel or seal. PW16 also volunteered that it was not required as Unique Identification numbers were mentioned in the phones. The two mobiles were not connected in the present case as robbed property and were taken into police possession u/s 102 Cr.P.C. The family members of accused Hitesh were present at the time of recovery of gold chain. PW16 denied the suggestion that no recovery of gold chain or mobile phones were made or for this reason the public witnesses had not signed. PW16 stated that seizure memo of gold chain is in his handwriting. PW16 denied the suggestion that the accused persons were shown to the complainant in the PS and were directed to identify the accused in the judicial TIP. PW16 further denied that accused Hitesh Sharma was taken for his videography in the CCTV FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 37 of 47 Footage in order to make out the case against him. PW16 also denied that case properties were planted upon the accused.
27. PW1 is the victim in this case and he has correctly identified the accused persons who had robbed him. PW1 stated in his statement that accused Hitesh put knife on his neck and took out Rs. 1500/, his HDFC ATM card, mobile phone and his gold chain. PW1 also stated that accused Veeru was driving the car and accused Vinod Sharma caught hold of him in the car at the time of incident. PW1 also identified the accused Hitesh in the recorded footage who had forcibly taken his PIN number and withdrawn Rs. 13,200/ from his account using his ATM card and PIN number. PW1 also identified the TIP proceedings of his gold chain as Ex. PW1/C and the same was produced by him as Ex. P3. PW1 further identified the Maruti Zen car bearing registration no. DL4CG8976 as Ex. P4. PW1 correctly identified the case property. In this regard, I would place a reliance upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650:
2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 38 of 47 principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted. In the present case, the testimony of PW1 has not only inspired the confidence but he is also trustworthy. The clear and consistent stand of PW1 about the presence of the accused persons at the time of incident and their identification by PW1 creates no doubt in the testimony of PW1.
28. The Ld. Defence counsel argued that the police has not fairly investigated and the investigation is defective. Ld. APP for State argued that if there is a defective investigation, the accused persons cannot take the benefit of it. It is relevant to mention here that even if the investigation is defective or faulty, the accused persons cannot be acquitted solely on account of defective or faulty investigation. In this regard, I would place reliance upon the FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 39 of 47 Judgment reported in the case of State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.
29. Let us examine whether there are contradictions in the testimonies of PWs. I have found that there are some contradictions in the testimonies of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this regard, a reliance can be placed upon the judgement reported in the case of State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. So far as public witnesses joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 40 of 47 absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused persons for nonjoining of independent public witnesses. In this context, I am supported with the judgements reported in the case of State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194. The complainant is the natural witness who has not only identified the accused persons who committed robbery. In the case of Lal Singh, AIR 2004, SC 299, it was held that in most cases of such nature, the accused is an unknown person and the only evidence which may connect him with the crime is the evidence of identification in a TIP and in some cases evidence of recovery of the articles which are subject matter of robbery. The cases of robbery therefore, mostly depend on such evidence. Moreover, the arrest of the culprits in such cases is often delayed on account of inherent difficulties which the prosecution naturally faces in such cases. In the present case, the accused persons refused for TIP. In Mohan Singh Vs. State, 1987 (13) DRJ FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 41 of 47 176, it was held that refusal to take part in the identification parade will entitle adverse inference to be drawn against the accused. The complainant examined himself as PW1 not only identified the case property in TIP but also identified the accused persons in the court. In Gulshan Vs. State through Govt. of NCT of Delhi, 2010 (1) JCC 562, it was held that identification in a court is a substantive piece of evidence. The Ld. counsel for the accused persons cross examined PW1 but nothing has come out from the cross examination of PW1 which could rescue the case of the accused persons.
30. Let us discuss whether the knife stated by complainant as used by the accused Hitesh Sharma @ Hunny is the deadly weapon and whether it has been proved on record by the prosecution. In Mohan Singh Vs. State, 1987 (13) DRJ 176, it was held that to bring the charge u/s 397 IPC, the prosecution is bound to prove that knife used was a deadly weapon which has not been proved in this case. The accused can be punished u/s 394 IPC. In Ghanshyam @ Bablu Vs. State, 2010 (1) JCC 240, it was held that in so far as conviction u/s 397 IPC is concerned, in the absence of any recovery of the deadly weapon at the instance of the appellants, punishment for 7 years cannot be sustained. In Samiuddin @ FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 42 of 47 Chotu Vs. State of NCT of Delhi, 175 (2010) DLT 27, it was held that knife in question was not recovered, much less produced in course of trial. Appellant could be sentenced u/s 392 IPC alone and offence does not fall within ambit of section 397 IPC. In the present case, it has been revealed from the evidence discussed above that neither investigation has been conducted regarding the knife nor any evidence has been proved by the prosecution in this regard. Further, no injury suffered by the complainant, if any, has been proved in evidence by the prosecution. Therefore, the provisions u/s 394 IPC for causing hurt to the complainant during robbery by the accused persons are not attracted in the present case.
31. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold all accused guilty and convict them u/s 392/34 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 23052013 FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 43 of 47 IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS JUDGE03: NW: ROHINI: DELHI SESSIONS CASE No. 31/09 FIR No. 467/08 P.S. Saraswati Vihar U/S: 392/394/397/411/34 IPC STATE Versus (1) Hitesh Sharma @ Hunny s/o late Sh. Chander Prakash r/o H. No. C23, Anand Vihar, Uttam Nagar, Delhi (2) Vinod Sharma @ Lallu s/o Sh. Rampal r/o house of Inder Kaji, Parva Pana, vill. Karala, Delhi (3) Veeru s/o Sh. Banwari Lal r/o H. No. T2679, Baljeet Nagar, Delhi Order on Sentence
1. Arguments heard on the point of sentence from Ld. defence counsel for the convicts and Ld. Sub. APP for State. The FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 44 of 47 Ld. defence counsel for the convicts argued that convict Hitesh Sharma is aged 27 years old and unmarried. He was driver by profession. He is having mother, grandmother and younger sister in his family. His father has expired. He has remained in J/C for about five years. It has submitted on behalf of convict Vinod that he is 25 years old and unmarried. He is conductor by profession. He is having mother and father in his family. On behalf of convict Veeru, is has been submitted that he is 23 years old and driver by profession. He is having wife and twoyearsold son besides mother, two younger sisters and two younger brothers in his family. His father has expired just two days ago. Request has been made for taking lenient view. On the other hand, Ld. Sub. APP for State has argued that cases of incidents of robbery are increasing day by day and convicts do not deserve any leniency. Therefore, the convicts should be given the maximum imprisonment keeping in view the facts and circumstances of the case.
2. The convicts are involved in heinous offence of robbery. The offences of robbery are on increase in the city so much so that it is becoming difficult for the people to move around without risk of being robbed. Such type of crimes need to be curbed with iron hands. Granting leniency to the convicts may embolden the other FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 45 of 47 criminals and general people may lose their faith in the criminal justice administration. In my considered view, convicts do not deserve any leniency and in such matters convicts cannot be released on probation. Ld. counsel for the convict Hitesh Sharma @ Hunny stated that convict Hitesh Sharma @ Hunny has already spent nearly five years incarceration and nearly five years have passed since the offence was committed. Therefore, I am of the considered opinion that it would serve the interest of justice, the convict Hitesh Sharma @ Hunny is sentenced for the period already undergone by him u/s 392/34 IPC along with fine of Rs. 18,000/, in default of payments of fine, he shall further undergo SI for the period of six months. Out of the fine amount of Rs. 18,000/, an amount of Rs. 15,000/ shall be paid to the victim Amrender Kumar Yadav as compensation.
3. Further, as far as convicts Vinod Shamra @ Lallu and Veeru are concerned, I would place a reliance upon the judgement reported in the case of Samiuddin @ Chotu Vs. State of NCT of Delhi, 175 (2010) DLT 27, wherein the Hon'ble High Court of Delhi modified the order on sentence and the appellant was sentenced u/s 392 IPC for a period of four years. Therefore, convicts Vinod Shamra @ Lallu and Veeru are sentenced with four years RI u/s FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 46 of 47 392/34 IPC with fine of Rs. 3,000/ each, in default of payment of which they shall undergo three months SI. The convicts Vinod Sharma @ Lallu and Veeru shall get the benefit of Section 428 Cr.P.C. for the period during which, they remained in custody during investigation/trial. Copy of judgement and order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 04062013 FIR No. 467/08; State Vs. Hitesh Sharma @ Hunny Etc. Page 47 of 47