Delhi District Court
The State vs . Ashraf Ali & Mohd. Salim on 24 March, 2023
IN THE COURT OF SHRI PRASHANT SHARMA
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
SC No. : 439/2019
FIR No. : 92/2019
Police Station : New Friends Colony
U/Sec. : 392/397/411 IPC
In the matter of :-
The State Vs. Ashraf Ali & Mohd. Salim
Brief Details Of The Case
Case Number : 439/2019
Offence complained of : U/Sec. 394/397/411/34 IPC
Date of Offence : 25.04.2019
Name of the complainant : Mukesh
Name of the accused person 1) Ashraf Ali S/o Islam Ali
R/o H. No. 59, Gali No. 40
Zakir Nagar, Jamia Nagar
New Delhi
2) Mohd. Salim @ Batti
S/o Mohd. Kalim
R/o H. No. 14, Gali No. 10
Muradi Road, Batla House
Jamia Nagar, New Delhi.
Plea of the accused : Pleaded not guilty
Final Order : Convicted.
Date of Institution : 12.09.2019
Date of Reserve for judgment : 17.03.2023
Date of Judgment : 24.03.2023
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 1 of 19
JUDGMENT
1. Accused persons, faced trial in this case, for committing offences punishable U/Sec. 392/394/325/397/34 IPC. Accused Ashraf Ali also faced charge U/Sec. 411 IPC.
2. Prosecution story shorn of unnecessary details, was that on 25.04.2019, information regarding caller being beaten and his mobile phone being looted was recorded in police station New Friends Colony, vide GD No.8A. ASI Kanhaiya Lal alongwith Ct. Ashish Dhama, based on said information went to spot i.e. Kothi No.289, Ashoka Park Road, New Friends Colony, could not find the complainant or the caller. In the meanwhile, GD No.9A was recorded based on MLC of injured Mukesh, from AIIMS Trauma Centre, in said police station. Aforesaid police officers then went to Trauma Centre, AIIMS where they collected MLC of Mukesh, who did not give his statement due to pain. Around 10:50 pm on 25.04.2019, Mukesh came to police station and recorded his complaint.
3. In his complaint, Mukesh stated that he was a taxi driver. On 25.04.2019, he had taken passenger from Dilshad Garden to Batla House. After leaving passenger, he reached at Kothi No.289, Ashoka Road where he parked his car. Around 04:15 am, two boys came and asked from him about the time, which he told. Thereafter, he started washing his face and those boys fled away after picking his mobile phone from the car. Those State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 2 of 19 boys had beaten him physically. He disclosed that his mobile phone was of make Samsung J6, having SIM No.9354768622. He claimed that he sustained injury in his teeth and leg. He also claimed that he can identify those boys, if shown to him. Based on the said complaint, ASI Kanhaiya Lal made endorsement and got FIR in question, registered under Section 392/34 IPC. Thereafter, investigation ensued.
4. During investigation, after consulting seniors, Sec. 397 IPC was added. Based on information from secret informer, house of accused Ashraf Ali was raided on 26.07.2019. On his personal search, one mobile phone of make J5 having IMEI Nos. 353560102865678 and 353561102865675 was recovered from right pocket of his pajyama, which was seized and sealed. Disclosure statement of accused Ashraf Ali was recorded, in which he confessed the alleged crime, which he committed with the aid of one Salim @ Batti. He refused to join TIP proceedings and at his instance, pointing out memo regarding place of incident was prepared. Mobile phone recovered from him was deposited in malkhana. Based on information received from accused Ashraf Ali as mentioned in disclosure statement, house of coaccused Salim was raided, from where he was arrested. Disclosure statement of accused Salim was recorded, in which he confessed the crime. He also refused to join TIP proceedings. Finally, after collecting medical report of victim, recording statement of witnesses and preparing necessary documents/memos, chargesheet was filed against accused persons, under Section 392/397/411/34 IPC.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 3 of 195. After filing of the chargesheet, Ld. Metropolitan Magistrate took cognizance of the offences and summoned accused. Proceedings under Section 207 Cr.P.C were concluded and then matter was committed to this court as per law.
6. Consequent to the receiving of this matter, arguments on charge were heard and based on the contents of chargesheet, accused persons were charged with offences punishable U/Sec. 392/394/325/397/34 IPC. Accused Ashraf Ali was also charged with offence punishable U/Sec. 411 IPC. Accused persons did not plead guilty and claimed trial.
7. Matter was then fixed for prosecution evidence.
8. Accused persons admitted following documents U/Sec 294 CrPC, on 07.02.2023.
i) Ex.PA1
Registration of FIR.
ii) Ex.PA2
Certificate U/Sec. 65B of Indian Evidence Act.
iii) Ex.PA3
MLC No. 500165575 dated 25.04.2019 of injured
Mukesh.
iv) Ex.PA4 FSL Report bearing No. 30/20.
v) Ex.PA5 Discharge Summary of injured Mukesh.
vi) Ex.PA6 XRay Report of injured Mukesh.
vii) Ex.PA7 CDR and CAF of mobile no. 9354768622 from the period 24.04.2019 to 25.05.2019 alongwith certificate u/sec. 65B of Indian Evidence Act alongwith ID card.
viii) Ex.PA8&9 TIP proceedings dated 26.07.2019 and 10.08.2019.
ix) Ex.PA3(colly) TIP dated 03.11.2019 of accused persons.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 4 of 199. PW1 Mukesh was the complainant, who deposed about alleged incident, in his testimony. He identified his statement made to the police as Ex.PW1/A. He also identified site plan, prepared by the accused as Ex.PW1/B. He identified the accused persons in the court being the culprits. He identified his mobile phone recovered from accused Ashraf Ali as Ex.P1. His testimony is appreciated by me in detail in subsequent paragraphs of the judgment.
10. PW2 Retired SI Kanhaiya Lal was the IO in this case. He deposed facts regarding the manner in which FIR in question was registered and investigation being carried out by him, in tune with prosecution story. Same is not repeated here for the sake of brevity. He identified documents viz; Ex.PW2/A GD No. 8A, Ex.PW2/B GD No. 9A regarding MLC No. 500165575/2019 from Trauma Centre, AIIMS, Ex.PW2/C - Rukka, in his testimony. He identified the accused persons in the court.
11. PW3 SI Chaman Lal, deposed that he had also done investigation in this case, to some extent. As per his testimony, he had arrested accused persons and had recovered mobile phone, from the possession of accused Ashraf Ali. He identified documents viz. Ex.PW3/AArrest Memo, Ex.PW3/BPersonal Search Memo, Ex.PW3/CSeizure Memo, Ex.PW3/DDisclosure Statement, Ex.PW3/E Arrest Memo of accused Mohd. Salim, Ex.PW3/F Personal Search Memo of accused Mohd.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 5 of 19Salim, Ex.PW3/G His Disclosure Statement. Ex.PW3/H and Ex.PW4/I Pointing out Memos, prepared by him. He also identified case property i.e. mobile phone as Ex.P1.
12. After examining said witnesses, prosecution closed its evidence.
13. Matter was then fixed for recording of statement of accused. All incriminating evidence was put to accused persons, which they denied.
14. Accused Mohd. Salim explained that he was falsely implicated in this case. As per him, in 2019, one day he was sitting alone in Ashoka Park around 1011:00 am, when police came and took him for inquiry in some matter. Later on, he was implicated in this case falsely.
15. Accused Ashraf Ali explained in the similar manner, as stated by accused Mohd. Salim, regarding his false implication. Same is not repeated here for the sake of brevity.
16. Both accused persons did not prefer to lead defence evidence. Therefore, matter was fixed for final arguments.
17. After final arguments, this matter was fixed for judgment.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 6 of 1918. Both accused persons were charged with offences punishable u/sec. 392/394/397/325/34 IPC. Now, offences punishable u/sec. 392/394/397 IPC, are different degrees of the offence of robbery. Here, I must mention the definition of "Robbery". Sec.390 IPC talks about robbery and it says that in all robbery, there is either theft or extortion.
19. Sec. 378 IPC defines theft as whoever intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is set to commit theft.
20. So, as per above definition, in order to consitute an offence of theft, the person must have removed movable property out of the possession of another dishonestly and without that persons's consent.
21. When theft is robbery and extortion is robbery, is defined in said section, in following manner :-
When theft is robbery- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 7 of 19
When extortion is robbery--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
22. Robbery is therefore, a special and aggravated form of either theft or extortion.
23. Keeping in mind above mentioned law, I have appreciate the evidence, brought on record by prosecution.
24. Before appreciating the said evidence, I must mention here the law of appreciation of evidence of the witnesses. Hon'ble High Court of Delhi in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:-
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 8 of 19 witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."
25. So, in the wake of above mentioned law, evidence brought on record, has to be read as a whole and has to be appreciated as a whole. Minor discrepancies over trivial matters and hyper technical approach while appreciating evidence, has to be avoided. It has to be seen whether shortcomings highlighted by accused, go to the root of the matter and if it so goes, then in that eventuality only evidence has to be discarded.
26. Keeping in mind aforesaid tenet, I am proceeding further and appreciating the evidence, brought on record by the prosecution.
27. Complainant, who was examined by prosecution as PW1, categorcially deposed in his testimony that accused persons had beaten him and accused Ashraf Ali had taken his mobile phone, which was lying State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 9 of 19 in the dashboard in his taxi. He categorcially identified accused Ashraf Ali who had approached him firstly and had taken his mobile phone. He categorcially identified accused Mohd. Salim who had come lateron and had beaten him. Besides that, he identified his mobile phone, recovered by IO during investigation as Ex.P-1. To that extent, his examination-in- chief, supported prosecution story.
28. So, evidence of complainant indicated that accused persons had committed robbery while commiting theft of mobile phone of complainant. While commiting robbery, accused persons had beaten complainant which caused injuries on his lips and legs, as mentioned in his MLC Ex.PA-3. Said beatings also resulted in falling of tooth of complainant, which was a grevious injury as per MLC Ex.PA-3.
29. In his cross-examination, he was asked questions with regard to brand name of his mobile phone and the connection he had obtained on the said phone. Questions were asked with regard to his ownership of said phone. He replied that he had purchased his mobile phone on installment and had not given ownership documents to the police. Once he categorcially identified his mobile phone, in his testimony as Ex.P-1, it was end of road for accused persons. Reason being that, no suggestion was put to him based on the fact that he had wrongly identified the said phone. No suggestion was put by accused persons to the effect that said phone was planted on accused persons and that accused persons had not looted the said phone from him.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 10 of 1930. The cross-examination with regard to ownership of mobile phone with complainant, was not relevant. In this regard, I must mention here that for proving an offence u/sec. 379 IPC, it is not necessary that the person who files the complaint should establish that he was the owner of the theft property. Reliance in this regard is placed upon case law titled as Commandment 508 Army Base Vs. P.B. Reddy, 1977 ALL Cr C 243.
31. Above law therefore, clearly indicate that for proving the offence of theft, it must be established by prosecution that accused had moved the movable property of other/ victim, malafidely. It is not required that victim should prove his/ her ownership rights over said movable property.
32. Further, complainant refuted the suggestions based on not using the said phone on the day of incident and case being planted on accused persons. No suggestion was given to the effect as to why he had deposed against accused persons. It was not the case of accused persons that they knew complainant before hand and had enmity with him. It was not the case of accused persons that complainant under pressure from police had identified them in the court. Coupled with the same, both accused persons refuted to join TIP proceedings viz., Ex.PA-8 and Ex.PA9. The said refusal to join TIP proceedings resulted in raising of presumption against accused persons.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 11 of 1933. Complainant was cross-examined with regard to his ownership of taxi in question and with regard to his presence at the place of incident. Those aspects were not relevant for the purpose of adjudication of this case. Besides that, complainant refuted the suggestions viz., that he was not present on spot at the time of incident and that he was not having taxi at relevant time. He explained in his cross-examination that on the day of incident, he had taken one passenger from Dilshad Garden and had dropped him at Batla House. Around 11 pm, after dropping said passenger, he slept in the car and woke up at azaan time when incident in question had taken place. He explained that he had made call at 100 number from his small mobile phone. So, there was nothing improbable or unreasonable about his conduct.
34. Further, MLC of injured Ex.PA-3 noted the alleged history of assault. It noted that complainant has sustained injury leading to fall of lower left incisor teeth and swelling in his leg and ankle. Those injuries corroborated his ocular testimony, wherein he had deposed that he was beaten by accused persons, as a result of which, one of his teeth was broken.
35. So, testimony of complainant was trustworthy and reliable. He was able to stand the acid test of cross-examination.
36. PW2- Retired SI Kanhaiya Lal was the initial IO in this case. He categorcially deposed in his testimony, the manner in which information regarding incident in question was received at police station, collection of State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 12 of 19 MLC of complainant by him and recording of statement of complainant and registration of FIR in question. He was not cross-examined by accused persons, despite availing opportunity. His testimony therefore, remained unchallenged. I had no reason to doubt his testimony. Therefore, I believed his testimony to be trustworhty and reliable.
37. PW3- ASI Chaman Lal deposed facts regarding the investigation he had carried out, which pertained to arrest of accused persons, recovery of mobile phone from accused Ashraf Ali, TIP proceedings and preparation of memos. He identifed case property as Ex.P-1.
38. Accused Mohd. Salim did not challenge the examination-in-chief of PW3.
39. Accused Ashraf Ali cross-examined PW3. He asked questions with regard to the manner in which, PW3 had reached at the spot on 26.07.2019 and the fact as to whether he had made departure entry while leaving police station to the spot. Those aspects were not material, for the purpose of adjudication of this case. More so where, accused Ashraf Ali did not object to the documents prepared by the said IO.
40. PW3 had not joined public persons at the spot during investigation. It was argued by accused persons that non-joining of public persons discredited testimony of PW3 and created doubt in prosecution story. The said argument is not tenable. Reason being that, non-joining of public persons by itself did not make his testimony doubtful. Here, I am relying State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 13 of 19 upon the observations of Hon'ble Apex Court in judgment titled as Appa Bhai & Anr. Vs. State of Gujarat, AIR 1988 SC 696, wherein, it was observed that ;
It is no doubt true that the prosecution has not been able to produce any independent witness to the incident that took place at the bus stand. There must have been several of such witnesses. But the prosecution case cannot be thrown out or doubted on that ground alone. Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. The Court, however, must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their, course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner. In Rana Pratap and Ors. v. State of Haryana 1988 (3) S.C.C. 327 O. Chinnappa Reddy J. speaking for this Court succinctly set out what might be the behaviour of different persons witnessing the same incident. The learned Judge observed; (at p. 330).
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 14 of 19Every person who witnesses a murder reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysteric and start wailing. Some start shouting for help. Others run away to keep themselves as far removed from the spot as possible. Yet others rush to the rescue of the victim, even going to the extent of counter-attacking the assailants. Every one reacts in his own special way. There is no set rule of natural reaction. To discard the evidence of a witness on the ground that he did not react in any particular manner is to appreciate evidence in a wholly unrealistic and unimaginative way.
11. These may be some of the reactions. There may be still more. Even a man of prowess may become pusillanimous by witnessing a serious crime. In this case, the courts below, in our opinion, have taken into consideration of all those respects and rightly did not insist upon the evidence from other independent witnesses. The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants.
41. So, in the wake of above mentioned law, it is clear that the evidence collected by prosecution has to be examined and appreciated independently by the court. Non-joining of independent public witnesses, by iteself cannot be made the basis for rejecting the evidence of other witnesses, examined by prosecution.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 15 of 1942. Testimony of complainant in this case, stood the acid of cross- examination. PW3 who had investigated the case deposed about the manner in which he had conducted investigation. He categorcially identifed the documents/ memos he had prepared during investigation. Those documents/ memos were not objected to by accused persons. Nothing significant was brought on record, based on which I could have concluded that PW3 had done wrong investigation, in order to prejudice rights of any of the accused persons. So, non-joining of independent public witnesses in this case, did not make the testmony of PW3, doubtful, just like that.
43. Further, PW3 refuted suggestions viz., that he had conducted all proceedings by sitting in the police station, that nothing was recovered from the possession of accused Ashraf Ali, that fair investigation was not carried out and that accused persons were falsely implicated in this case.
44. Therefore, there was nothing which accused persons, could cull out by cross-examining PW3, which could have helped their cause. I conclude that PW3 had done his investigation properly and in a transparent manner.
45. The documents which were admitted by accused persons u/sec. 294 CrPC on 07.02.2023, only proved the case of prosecution.
46. Testimonies of prosecution witnesses, therefore, were trustworhty and reliable.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 16 of 1947. Per contra, accused persons explained in response to incriminating evidence, put to them u/sec. 313 CrPC, that they were falsely implicated in this case. As per them, in 2019, one day, they were sitting in Ashoka Park, alone when police came and took them for enquiry in some matter. Later on, they were implicated in this case falsely.
48. Above explanation was never put by accused persons to any of prosecution witnesses, for checking its veracity. No evidence was led by accused persons in support thereof. It made their said defence highly improbable and unreasonable. They failed to answer following relevant questions, pertaining to their defence, which made their defence, vague:-
a) Why accused persons were sitting in Ashoka Park ?
b) Which police officials had come to them and had taken them to police station ?
c) Why accused persons did not make complaint to any concerned authority regarding them being falsely implicated in this case ?
d) What was the specific day when they were so taken by police ?
e) Why complainant deposed against them in the court ?
49. So, accused persons failed to raise probable defence in their favour. I discarded their explanation, given in reponse to incriminating evidence, recorded u/sec. 313 CrPC, being unbeliveable in nature.
State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 17 of 19Offences Made Out
50. Based on trustworhty and reliable evidence led by prosecution, it is proved beyond reasonable doubt :-
a) That accused Salim, was the person, who had beaten complainant, PW1 Mukesh on 25.04.2019 at about 4.15 am, at Kothi No. 289A, New Friends Colony, New Delhi, which caused grevious injury to complainant (as his teeth was broken). So, accused Salim committed offence punishable u/sec. 325/34 IPC and therefore, he is convicted for the said offence.
b) That accused persons had committed theft of mobile phone and while committing it, they caused hurt to complainant. So, they committed robbery u/sec. 392 IPC and therefore, they are convicted for the said offence.
c) That both accused persons had beaten complainant which caused injuries on his lower lip and legs as per MLC Ex.PA-3 while committing robbery on the date of incident in question. Said injuries were apart from falling of lower left incisor tooth. Those injuries therefore, had caused simple hurt to complainant and therefore, accused persons had committed offence punishable u/sec. 394/34 IPC and therefore, they are convicted for the said offence.State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 18 of 19
d) That accused persons on above date, time & place had committed robbery of mobile phone of complainant, Ex.P-1 and had given beatings to complainant leading to grevious hurt to complainant.
So, accused persons committed robbery by causing grevious injury to complainant and therefore, committed offence punishable u/sec. 397/34 IPC and therefore, they are convicted for the said offence.
e) That accused Ashraf Ali was found possessing stolen mobile phone of complainant Ex.P-1 on 26.07.2019 at his H. No. 59, Gali No. 40, Jakir Nagar, Jamia Nagar, Delhi and therefore, he committed offence punishable u/sec. 411 IPC and therefore, he is convicted for the said offence.
Announced in the Open Court Today [PRASHANT SHARMA] ASJ-02, South-East/Saket/Delhi 24.03.2023 State Vs. Ashraf Ali & Anr (SC No. 92/2019) Page 19 of 19