Delhi District Court
State vs . (1). Akash @ Bunty @ Brijesh on 25 July, 2015
FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 121/1/14 Unique Case ID No. 02404R0282902012 State Vs. (1). Akash @ Bunty @ Brijesh S/o Sh. Ram Kishan R/o H. No. B4/327, Narela, Delhi (2). Yogesh @ Rinku S/o Sh. Ram Kishan R/o H. No. B4/327, Narela, Delhi. FIR No. : 346/2012 Police Station : Narela Under Sections : 307/393/394/398/34 IPC Date of committal to Sessions Court : 01.11.2012 Date on which judgment was reserved: 08.07.2015 Date on which Judgment pronounced : 25.07.2015 JUDGMENT
BRIEF FACTS OF THE CASE:
1. The case of the prosecution as per the charge sheet is as under:
(i). That on 01.07.2012 at about 11.50 p.m., information regarding the incident of stabbing /robbery was recorded vide DD no. 92B at PS Narela. Said DD no. 92B was entrusted to SI Mahabir Singh (PW17);
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FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015
(ii). That SI Mahabir Singh alongwith HC Rakesh (PW14) went to SRHC Hospital and collected MLC of injured Subodh. On enquiry, it was revealed that injured Subodh had been referred to LNJP Hospital for further management. Thereafter, they went to LNJP Hospital, but the concerned doctor declared injured Subodh unfit for statement;
(iii). That on the basis of DD No. 92B, SI Mahabir Singh prepared rukka and got the FIR in question registered. No eye witness met him in the hospital at that time;
(iv) On 02.07.2012, SI Mahabir Singh met Narender S/o Ranveer Singh (PW3) who claimed himself to be eye witness of the incident in question. Accordingly, SI Mahabir Singh recorded his statement wherein he claimed that he was driver on Canter No. RJ02GA2293 of Leela Ram and injured/victim Subodh (PW16) was also driver on other Canter No. RJ32GA3615 belonging to same Leela Ram. On 01.07.2012 at about 11.30 pm, he alongwith Subodh were going to attend call of the nature after taking their dinner and reached near factory no. F1741, DSIDC, Narela Delhi, when two boys came on motorcycle from the side of Vijaya Bank and made them to stop there. They started taking their search. He somehow managed to save himself from the clutches of said two boys and ran away. In the meantime, boy sitting as pillion rider on motorcycle, gave knife blow on abdomen of Subodh. When State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 2 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 they raised noise, both the said boys fled away towards Vijaya Bank. He removed injured Subodh to SRHC hospital wherefrom injured was referred to LNJP hospital. He also claimed that both the said offenders were in the age group of 2223 years and he could identify them;
(v) It was further alleged that SI Mahabir Singh seized blood stained clothes of injured from the hospital and also prepared site plan at the instance of complainant Narender Kumar. On 03.07.12, injured Subodh was also declared fit for statement. Accordingly, his statement U/s 161 Cr.PC was recorded by IO, wherein he also reiterated the same facts as disclosed by complainant Narender Kumar;
(vi) On 15.07.2012, SI Mahabir Singh arrested both the accused herein on the basis of secret information, from Smriti Chowk, 80 foota Road, Narela and seized motorcycle no. DL8SAA4405 used in the commission of offence of this case. Both the accused made disclosure statements before IO. In pursuance of his disclosure statements, accused Yogesh @ Rinku got recovered 25 mobile phones from the room situated on first floor of his house no. B4/327, near DAV School, Police Colony, Narela. In pursuance of his disclosure statement, accused Akash got recovered weapon of offence i.e. knife from the roof of the aforesaid house. Both the accused refused to participate in their judicial TIP on 18.07.2012; State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 3 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015
(vii) It was further alleged that on 01.09.2012, both the accused were identified by injured Subodh and complainant Narender Kumar to be the assailants who had committed offence involved in this case.
(viii) On 02.09.2012, blood sample of injured Subodh was got collected from SRHC hospital and the relevant exhibits were sent to FSL Rohini for their examination. Subsequent opinion was also collected from concerned doctor of BJRM Hospital with regard to the weapon of offence i.e. knife. Out of the 25 recovered mobile phones, two were found connected with case FIR no. 216/12 U/s 392/397 IPC of PS Alipur and one another mobile phone was found connected with case FIR no. 220/12 U/s 302/397/34 IPC of PS Alipur. After completion of investigation, chargesheet had been filed before the Court.
2. After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
CHARGES FRAMED AGAINST THE ACCUSED PERSONS
3. After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges for offences punishable U/s 307/394/34 IPC against accused persons namely Akash @ Bunty @ Brijesh and Yogesh @ Rinku and separate charge for offence State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 4 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 punishable U/s 397 IPC against accused Akash @ Bunty vide order dated 22.12.2012, to which they pleaded not guilty and claimed trial.
4. In support of its case, prosecution examined as many as seventeen witnesses namely PW1 Ct. Babu Khan, PW2 HC Bharat Singh, PW3 Sh. Narender, PW4 Amiya Haldar, PW5 Dr. Avdesh, PW6 Ct. Ajay, PW7 Dr. Vineet Singh, PW8 Dr. V.K. Jha, PW9 Dr. Aradhana Singh, PW10 HC Rajesh, PW11 Ct. Satender, PW12 Ct. Samunder Singh, PW13 Sh. Manish Khurana, PW14 HC Rakesh Kumar, PW15 HC Jasbir, PW16 Sh. Subodh and PW17 SI Mahabir Singh during trial.
5. It may be noted here that Ld. Additional PP dropped PW i.e. Clerk of Delhi Administration from the list of witnesses on 09.01.2015 as said witness was cited for proving notification issued by Delhi Administration as judicial notice of said notification could have been taken by the Court.
6. It may also be mentioned here that both the accused persons made joint statement during trial on 16.04.2015 that they were not disputing the contents of FSL result dt. 26.11.12 relied by prosecution in the present case. Accordingly, the said FSL result was exhibited as Ex.PX. Consequently, Ld Additional PP dropped PW namely Ms. Sunita Gupta, Sr. Scientific Officer (Biology) from the list of witnesses in view of the said statement.
7. Thereafter, statements U/s 313 Cr.P.C. of both the accused persons were recorded during which all the incriminating evidence were put to them, which they denied. The defence of both the accused persons is of State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 5 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 general denial. Both the accused persons claimed that they have been falsely implicated in this case. However, both the accused persons did not wish to lead Defence Evidence.
8. I have heard Sh. Pankaj Bhatia, Ld. Additional PP on behalf of State and Ld. counsel Ms. Suman Kapoor, Adv. on behalf of both the accused persons. I have also gone through the material available on record as well as the authorities cited at the bar.
9. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution witnesses is detailed as under: PUBLIC WITNESSES:
10. PW3 Sh. Narender: He is alleged eye witness to the incident in question. He deposed that he was driver by profession and used to ply canter no. RJ02GA2293 belonging to one Sh. Leela Ram. He used to deliver the goods from DSIDC Narela to different areas of Delhi. One Subodh who was son of his brotherinlaw, also used to ply canter no. RJ32GA3615 of said Sh. Leela Ram. They used to remain and cook food in those canters.
He further deposed that on 01.07.2012 at about 10:30 - 11:00 pm, after taking meal, they were going for attending call of the nature on the road nearby their canters when one bike came from behind and boys sitting on said bike apprehended Subodh. Said boys started searching Subodh and State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 6 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 the pillion rider was having a knife. On seeing this, he rushed to Dal Mill, where some public persons were sitting outside said Dal Mill. He had asked Subodh to run away from there by putting hand on his shoulder. At that time, Subodh was wearing Tshirt which was loose, came into his hand.
He has further deposed that when he alongwith 78 public persons were returning back towards Subodh, they found Subodh on the way in injured condition. He shifted Subodh with the assistance of helper in DCM canter and took him to SRHC Hospital, Narela. The concerned doctors of SRHC Hospital referred Subodh to LNJP hospital. Thereafter, he took Subodh to LNJP Hospital, where he got Subodh admitted over there.
He further deposed that he had informed father of Subodh. After about 6090 minutes of admission of Subodh in hospital, police reached in the hospital and made enquiries from him and recorded his statement. He also accompanied the police to the place of occurrence.
This witness was also cross examined by Ld. Additional PP on behalf of State as he was not coming out with complete facts during chief examination. During such cross examination, he admitted that the time of incident was 11.30 pm and the colour of motorcycle used by offenders was black. He also admitted that he had told IO in his statement that both the offenders had come on motorcycle from the side of Vijaya Bank. However, he denied to have told the IO that offenders had started taking their search or that after saving himself from the clutches of offenders,he managed to run away and person sitting as pillion rider on motorcycle, had stabbed knife in the abdomen of injured Subodh. He admitted that on 01.09.2012, he State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 7 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 alongwith injured Subodh had visited Rohini Court wherein he had seen both the accused persons. However, he denied that he had told IO on 01.09.2012 that these two accused were the assailants involved in the commission of offence of this case.
In his cross examination on behalf of accused persons, he deposed that after about 1½ - 2 months of the date of incident, he was called by IO in PS, where he was told that both these two accused had committed the incident in question. He admitted that no one had extended any sort of threat to him at any point of time after the incident. He also admitted that due to darkness, he could not see the faces of offenders and no one had stabbed Subodh in his presence.
11. PW4 Amiya Haldar: This witness is the owner of flat no. B327, PhaseI, PocketI, SectorB4, Narela, Delhi, which was allotted by DDA to him. He deposed that he had given the said flat on rent vide Rent Agreement dated 05.01.2012 to accused Yogesh Kumar. He proved copy of said Rent Agreement as Ex.PW4/A. He also marked copy of allotment letter as MarkX. He further deposed that he had handed over copies of said documents to the police. He proved seizure memo thereof as Ex.PW4/B. In his cross examination, he deposed that he had been receiving rent regularly till July 2012. He also admitted that accused Yogesh Kumar was running cosmetic shop in nearby vicinity.
12. PW16 Sh. Subodh: This witness is the injured/victim himself. He deposed on similar lines as that of Narender (PW3). In addition thereto, State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 8 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 he deposed that pillion rider of aforesaid motorcycle had deboarded from the motorcycle; took out a knife and caused injury over his left abdomen. He further deposed that due to said injury, blood had oozed out profusely and he fell on the ground. On seeing the public persons coming towards them, the offenders had run away. He also correctly identified both the accused persons during trial to be the offenders who had attempted to commit robbery against him. He further deposed that he remained admitted in hospital for about 8 days, where IO recorded his statement. He further deposed that on the day of incident, he was carrying one Chinese mobile phone and cash amount of Rs. 1200/ approximately.
He also deposed that it was accused Yogesh who was driving the motorcycle at the time of incident and had asked him to hand over whatever belongings he was carrying at the time of incident. He also deposed that accused Akash @ Bunty had taken out knife and had caused injury with said knife over his left abdomen. He was taken to SRHC hospital by Narender, wherefrom he was referred to LNJP hospital where he admitted for eight days. He had also undergone operation for his abdomen. IO had recorded his statement in LNJP hospital. Concerned doctor had seized his blood stained Baniyan. He identified said Baniyan Ex.P1 during trial.
In his cross examination, he deposed that his first statement was recorded by IO at LNJP hospital. His blood sample was also taken in the hospital at subsequent point of time. On the date of incident, he had left Narela Mandi at about 9.00 pm after unloading the rice and returned State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 9 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 back to FBlock, Bhor Garh. Narender was already found present there. He denied the suggestion that there was complete darkness at the place of occurrence at the time of incident. He deposed that place of occurrence was surrounded by industries but he alongwith Narender alone were present at the spot at the time of occurrence. There were public persons at a distance of about 5060 meters away from the spot. When assailants caught hold of him, Narender had started running away towards Daal Mill while raising noise and on hearing said noise, 34 public persons alongwith Narender came towards him. He denied the suggestion that he was shown faces of accused persons by IO in the PS. He admitted to have visited Rohini Court during investigation but denied the suggestion that he had enquired from accused persons as to whether they were involved in occurrence of this case. He denied the suggestion that Baniyan (Ex.P1) did not belong to him or that he had wrongly identified said Baniyan at the instance of IO of the case. POLICE WITNESSES:
13. PW1 Ct. Babu Khan: He has deposed that on 01.07.2012, he was posted at PS Narela and was working as DD writer from 4 pm to 12 midnight. At about 11:15 pm, he had received information from Ct. Vijay of SRHC Hospital regarding admission of one Subodh in injured condition by his friend. He had recorded said information vide DD No. 92B. He proved copy of said DD no. 92B from point A to A in rukka as Ex.PW1/A. This witness has not been cross examined by accused persons despite grant of opportunity.
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14. PW2 HC Bharat Singh: He has deposed that on 02.07.2012, he was posted as Duty Officer from 12 midnight to 8 am at PS Narela. On that day at about 2.50 am, he had received rukka from HC Rakesh sent by SI Mahabir Singh. He got recorded FIR through Computer Operator. He proved copy of FIR as Ex.PW2/A. This witness has not been cross examined by accused persons despite grant of opportunity.
15. PW6 Ct. Ajay: This witness was posted in PS Bawana, Delhi. He deposed that on 02.07.2012, he had collected one pullanda sealed with the seal of LNH New Delhi alongwith sample seal from LNJP Hospital and had handed over the same to SI Mahavir Singh. He proved seizure memo thereof as Ex.PW6/A. This witness has not been cross examined by the accused persons despite grant of opportunity.
16. PW10 HC Rajesh: This witness was posted as MHC(M) at PS Narela, Delhi. He deposed that on 02.07.2012, SI Mahabir Singh had deposited one pullanda sealed with the seal of LNH alongwith sample seal in malkhana. He proved copy of entry at serial no. 357 in register no. 19 as Ex.PW10/A. He further deposed that on 15.07.2012, SI Mahabir Singh again deposited one sealed pullanda sealed with the seal of MS alongwith 25 mobile phones and one motorcycle bearing registration number plate DL8SAA4405 make Bajaj of black colour, in the malkahana. He proved State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 11 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 copy of entry no. 385 in register no. 19 as Ex.PW10/B. He also deposed that on 02.09.2012, SI Mahabir Singh again deposited blood sample sealed with the seal of SHRC Hospital, Govt. of NCT of Delhi in the malkahana. He proved copy of entry no. 500 in register no. 19 as Ex.PW10/C. He further deposed that on 11.09.2012, two exhibits and two sample seals in sealed condition were sent to FSL, Rohini through Ct. Samunder for opinion vide RC no.182/21/12. He proved his endorsement on entry Ex.PW10/A at pointA and copy of RC no. 182/21/12 as Ex.PW10/D. He further deposed that on 26.09.2012, one pullanda sealed with the seal of MS was sent to FSL, Rohini through Ct. Sudesh for opinion by him vide RC no. 190/21/12. He proved his endorsement made at pointA against entry Ex.PW10/B in register no. 19 and copy of RC no. 182/21/12 as Ex.PW10/E. This witness has not been cross examined by accused persons despite grant of opportunity.
17. PW11 Ct. Satender: This witness deposed that on 02.09.2012, he alongwith IO SI Mahabir Singh had gone to SRHC hospital, where IO had collected blood sample of injured Subodh, which was duly sealed with the seal of SRHC hospital, Narela. He proved seizure memo thereof as Ex.PW11/A. This witness has not been cross examined on behalf of accused persons despite grant of opportunity.
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18. PW12 Ct. Samundar Singh: He deposed that on 11.09.2012, on the instructions of IO SI Mahabir Singh, he had collected two sealed pullandas and two sample seals from MHC(M) vide RC no. 182/21/12 and deposited the same in FSL, Rohini.
This witness has not been cross examined on behalf of accused persons despite grant of opportunity.
19. PW14 HC Rakesh Kumar: He deposed that on 01.07.2012, he had joined investigation with SI Mahabir Singh on receipt of DD no. 92B and had gone to SRHC Hospital, where SI Mahabir Singh obtained MLC of injured Subodh. On eqnuiry, they came to know that injured had already been shifted to LNJP Hospital. Accordingly, they rushed to LNJP Hospital, where doctor declared the injured unfit for statement. SI Mahabir Singh prepared rukka on the basis of DD no.92B and handed over the same to him for registration of FIR. Accordingly, he went to PS Narela and produced the rukka before HC Bharat Singh, Duty Officer and on the basis of rukka, HC Bharat Singh got recorded the FIR in question on computer and handed over computerized copy thereof and rukka to him. He further deposed that he went to LNJP hospital and handed over computerized copy of FIR and original rukka to SI Mahabir Singh to whom further investigation was marked.
In his cross examination, he could not disclose the time when they had left PS on receipt of DD no. 92B. He deposed that they had reached SRHC hospital at about 12.00/12.20 mid night and stayed there State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 13 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 about 30 minutes. They had reached LNJP Hospital at about 1.30 am. He did not remember the name of concerned doctor who had declared injured Subodh unfit for statement. He reached PS Narela alongwith rukka at about 2.30 am and left PS after registration of FIR at about 3.00 am. He denied the relevant suggestions put to him during cross examination.
20. PW15 HC Jasbir: He deposed that on 15.07.2012, he had joined investigation with IO SI Mahavir Singh, SI Jaiveer and Ct. Devender, when SI Mahabir Singh made DD no. 15A and at about 10:30 am, they all left PS for investigation in a private vehicle. He further deposed that at about 4:30 pm, when they were present at SRHC Hospital, Narela, one informer met IO SI Mahabir Singh and gave information that two persons would come on a black motorcycle and would pass Smriti Van Chowk, 80 Foot Road and description of said persons were similar to the persons involved in the commission of offence of present case.
He further deposed that at about 4:40 pm, they went to 80 foota road, Smriti Van Chowk and at about 4:45 pm, one motorcycle bearing registration no. DL8SAA4405 Bajaj came from the side of B4 Colony, Narela towards Smriti Van Chowk. The secret informer pointed out towards the aforesaid motorcycle and they stopped the said motorcycle, which was being driven by accused Yogesh and accused Akash @ Bunty was sitting as pillion rider. He further deposed that both the accused persons were interrogated by IO SI Mahabir Singh. During interrogation, they admitted their guilt in the commission of the present case. He proved their arrest memos as Ex.PW15/A and Ex.PW15/B. He also proved their personal State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 14 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 search memos as Ex.PW15/C and Ex.PW15/D. He also proved the disclosure statements of both the accused persons as Ex.PW15/E and Ex.PW15/F. He also proved seizure memo of said motorcycle as Ex.PW15/G. He has further deposed that accused Yogesh @ Rinku led them to first floor of his house i.e. B4/327, Police Colony, Narela, Delhi and pointed out towards one room at right side of the stair case and then pointed out towards one dressing table in the said room and from behind said dressing table, he pointed out towards a hole in the wall from where 25 mobile phones of different companies were recovered. Accused Yogesh @ Rinku admitted that he had robbed said mobile phones with his coaccused Akash @ Bunty during commission of various offences. This witness proved seizure memo of said mobile phones as Ex.PW15/H. He further deposed that accused Akash @ Bunty led them to the roof of the said house and pointed out towards one brick lying near the water tank installed over the said room and from under the brick, he picked up one button actuated knife. He proved rough sketch of said knife as Ex.PW15/J. He also proved seizure memo of said knife as Ex.PW15/K. He further deposed that both the accused persons one by one admitted their guilt in the commission of present offence. He also correctly identified both the accused persons during trial. He proved pointing out memo of place of occurrence prepared at the instance of both the accused persons as Ex.PW15/L and Ex.PW15/M respectively. He correctly identified the mobile phones {Ex.P1(colly)} recovered at the instance of accused Yogesh State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 15 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 and knife (Ex.P1) recovered at the instance of accused Akash @ Bunty, during trial.
In his cross examination, he deposed that departure entry was made on 15.07.2012 while leaving the PS by members of raiding party. He admitted that at the corner of Samriti Van Chowk, one tyre puncture wala was therein temporary make shed arrangement but he denied the suggestion that said tyre puncture wala was available at the time of apprehending the accused persons. He deposed that IO had requested passers by to join the investigation but none agreed for the same. He denied the suggestion that both the accused persons were lifted from their house on 14.07.2012 at 9.30 pm or that their motorcycle was also taken from their residence and subsequently seized in this case. He admitted that mobile phones seized in this case, were not sealed at the time of their seizure. However, he denied that signatures of accused persons were obtained on 1520 blank papers or that same was subsequently converted into various memos as per their convenience or that no recovery was effected at the instance of accused persons.
21. PW17 Inspector Mahabir Singh: He is the IO of this case. He deposed about the entire investigation carried out by him in this case. He deposed that on receipt of DD no. 92B (Ex.PW1/A), he alongwith HC Rakesh Kumar went to SRHC hospital and then to LNJP hospital. Since injured was declared unfit for statement and no eye witness met him there, he prepared rukka Ex.PW17/A and got the FIR registered. Ct. Ajay had produced sealed pullanda containing white Baniyan of injured. State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 16 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 Accordingly, he seized the said exhibit vide memo Ex PW6/A. He further deposed that eye witness Narender met him in LNJP hospital and accordingly, he recorded his statement U/s 161 Cr.P.C. He prepared site plan Ex. PW17/B at the instance of said Narender. On 03.07.2012, injured Subodh was declared fit for statement and accordingly, he recorded statement of injured in the said hospital. On 15.07.2012, he alongwith SI Jaibir, HC Jasbir, Ct. Samunder and Ct. Devender left PS Narela vide DD no. 15A at about 10.30 am concerning investigation of the case. On that day at about 4.45 pm, they apprehended both the accused who had come on their motorcycle no. DL8SAA 4405, on the basis of secret information. After their interrogation, both said accused were arrested vide memos Ex.PW15/A and Ex. PW15/B. Both the accused made disclosure statements Ex.PW15/E and Ex.PW15/F. The motorcycle was seized vide memo Ex.PW15/G. He also deposed that in pursuance of his disclosure statement (Ex. PW15/E), accused Yogesh got recovered 25 mobile phones of different companies from his house no. B4/327, Police Colony, Narela, Delhi and accused Akash @ Bunty got recovered button actuated knife from below brick lying near water tank installed on roof of the said house. He prepared rough sketch Ex.PW15/J of said knife and seized the same vide memo Ex.PW15/K after preparing its sealed pullanda sealed with the seal of MS. Both the accused persons were kept in muffled face and they refused to participate in judicial TIP on 18.07.2012. He also obtained subsequent opinion from concerned doctor with regard to the weapon of offence i.e. State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 17 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 knife and also collected FSL result dt. 26.11.12 (Ex.PX) and filed the same in the Court.
In his cross examination, he deposed that he alongwith HC Rakesh had reached LNJP hospital at about 1.00/1.15 am and remained there till 4.30 am. He denied the suggestions that there were residential houses or shops at Samriti Van Chowk, 80 Foota Road, Narela Delhi. He admitted that there was one tyre puncture wala having temporary structure, working near Samriti Van Chowk but he denied the suggestion that said tyre puncture wala remains available there round the clock. He deposed that 34 public persons were requested by him to join the investigation but none agreed. He denied the suggestion that both the accused were lifted from their house in the night hours of 14.07.2012 or were subsequently got falsely implicated in this case. He also denied the suggestion that photographs of both the accused persons were taken during the intervening night of 14/15072012 or that both the accused were not produced in muffled face before the concerned Court on 16.07.2012. He also denied that faces of both the accused were shown to several public persons outside the Court room before their production on 16.07.2012. He also denied other relevant suggestions put to him during cross examination by the accused persons. MEDICAL WITNESSES:
22. PW5 Dr. Avdesh: This witness was posted as Medical Officer in SRHC Hospital. He deposed that on 01.07.2012, he was posted as Casualty Medical Officer in said hospital, when he had examined injured State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 18 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 Subodh vide MLC No. 1098. He proved said MLC as Ex.PW5/A. This witness was not cross examined by accused persons despite grant of opportunity.
23. PW7 Dr. Vineet Singh: This witness was posted as Senior Resident (Surgery), SRHC Hospital, Narela, Delhi. He deposed that on 01.07.2012, one patient namely Subodh was referred to him for surgery by Dr. Avdesh of SRHC Hospital. He examined the said patient. He further deposed that said patient did not disclose any history of loss of consciousness, vomiting and ENT bleeding. After examination, he had referred him to LNJP Hospital for further management.
This witness has not been cross examined on behalf of accused persons despite grant of opportunity.
24. PW8 Dr. V.K. Jha: This witness was posted as Medical Officer, BJRM Hospital, Jahangirpuri, Delhi. He deposed that on 06.10.2012, IO SI Mahabir Singh had moved an application for seeking opinion as to whether the injuries sustained by injured, could be caused by the weapon recovered from accused alongwith one sealed pullanda sealed with the seal of FMT BJRM Hospital, Delhi. He proved sketch of knife as Ex.PW8/A and his opinion as Ex.PW8/B respectively. He also correctly identified the knife produced by MHC(M) to be the same knife which was examined by him while giving his opinion Ex.PW8/B. This witness has not been cross examined on behalf of accused persons despite grant of opportunity.
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25. PW9 Dr. Aradhana Singh: This witness was posted as Senior Resident (Surgery) at LNJP Hospital, Delhi and was deputed by MS of said Hospital to appear and depose on behalf of Dr. Ansuman Kaushal. She deposed that Dr. Ansuman Kaushal had left the services of LNJP Hospital and his whereabouts were not available in the hospital. She identified the handwriting and signature of Dr. Ansuman Kaushal on MLC Ex.PW5/A. This witness has not been cross examined by accused persons despite grant of opportunity.
FORMAL WITNESSES:
26. PW13 Sh. Manish Khurana: This witness had conducted judicial TIP of accused persons namely Akash @ Bunty@ Brijesh and Yogesh @ Rinku on 18.07.2012 vide TIP proceedings Ex.PW13/B and Ex.PW13/C respectively. According to said TIP proceedings, both the aforesaid accused persons had refused to participate in TIP proceedings. He proved application for TIP moved by IO SI Mahabir Singh as Ex.PW13/A, the application moved by IO SI Mahabir Singh for providing copy of TIP proceeding as Ex.PW13/D and the envelope containing TIP proceeding as Ex.PW13/E. He has not been cross examined on behalf of both the accused persons.
ARGUMENTS ADVANCED AND CASE LAW CITED
27. After referring to the testimonies of prosecution witnesses examined during trial and the relevant documents proved during the course State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 20 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 of evidence, Ld Additional PP vehemently argued that prosecution has been able to establish the guilt of both the accused persons beyond reasonable doubt. For the said purpose, he heavily relied upon the testimonies of both the public witnesses i.e. PW3 Narender and PW16 Subodh (victim) as also the medical evidence in the form of testimonies of PW5 Dr. Avdesh, PW7 Dr. Vineet Singh, PW8 Dr. V.K Jha and PW9 Dr. Aradhana Singh and MLC Ex.PW5/A available on record. Ld. Additional PP also referred to the relevant portion of testimony of victim i.e. PW16 Subodh whereby he has identified accused Akash @ Bunty to be the person who had stabbed knife in his abdomen during the course of incident of attempt to commit robbery against him and also identified accused Yogesh to be the person who had caught hold of his neck at that time. He therefore, urged that both the accused persons should be convicted in this case.
28. Per contra, Ld. defence counsel vehemently argued that prosecution has miserably failed to establish the guilt of accused persons beyond shadow of doubt. In order to buttress said contention, she referred to the testimony of PW3 Narender in order to bring home her point that said witness has not identified either of these two accused to be the offenders involved in the commission of offence in this case. She further argued that there was complete darkness as per testimony of PW3 Narender and thus, it was not possible for the victim i.e. PW16 Subodh to see the faces of offenders at the time of incident. Ld. defence counsel further submitted that PW16 has identified both the accused during trial at the instance of IO of this case and thus, the testimony of said witness is not State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 21 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 trustworthy or reliable.
29. The accused persons have been charged with offences punishable U/s 394/307/34 IPC. Accused Akash @ Bunty has also been charged with offence punishable U/s 397 IPC.
30. In order to prove the offence punishable under Section 394/34 IPC, the prosecution was required to prove the following things:
i) That there was any agreement between the accused persons to commit any offence;
ii). That it were the said accused persons who had attempted to commit robbery against the victim (PW16); and
iii). That the accused persons had voluntarily caused hurt to victim or any other person at the time of committing or attempting to commit the robbery.
31. In order to prove the offence punishable U/s 307/34 IPC, it was essential for the prosecution to prove the following ingredients:
i). That the accused persons in furtherance of their common intention, attempted to cause death of any person;
ii). That the death was attempted to be caused by, or in consequence of, the act of the accused persons ;
iii). That such act was done by the accused persons with intention of causing death; or that it was done with intention of causing such bodily injury as: (a) the accused persons knew to be likely to cause death; or (b) was sufficient in the ordinary course of nature to cause death; or that the accused persons attempted to cause such death by doing an act known to them to be so imminently dangerous that it must in all probability cause (a) State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 22 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 death, or (b) such bodily injury as is likely to cause death, the accused persons having no excuse for incurring the risk of causing such death or injury.
32. As already stated above, the prosecution examined two public witnesses i.e. PW3 Narender and PW16 Subodh as its star witnesses for proving the aforesaid charges against the accused persons. Both these two public witnesses have supported the case of prosecution on all material aspects. Both these witnesses have clearly and specifically deposed that two boys who had come on one motorcycle of black colour, had attempted to commit robbery against victim Subodh (PW16) at the point of knife on the alleged date, time and place of occurrence. Not only this, both these witnesses categorically deposed that one of the offenders had taken out knife and gave knife blow in the abdomen of PW16 who was severely injured due to said knife blow.
33. No doubt, PW3 Narender failed to identify either of these two accused persons during trial by claiming that due to darkness, he was not able to see the faces of offenders who had committed the incident in question. However, the relevant portion of his testimony to the extent whereby he has supported the case of prosecution, can always be looked into by the Court. It is well settled law that even the testimony of hostile witness can be considered by the Court to the extent whereby witness has supported the prosecution story. Still if any authority is required then reference with advantage can be made to the judgment in the matter titled as "Bhajju @ Karan Singh Vs. State of M.P" reported at 2012 STPL(Web) State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 23 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 173 SC, wherein it has been held as under: "xxxxx
19. Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the Appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Code of Criminal Procedure., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to crossexamine the said witness. If such a permission is granted by the Court then the witness is subjected to cross examination by the prosecutor as well as an opportunity is provided to the defence to cross examine such witnesses, if he so desires. In other words, there is a limited examinationin chief, cross examination by the prosecutor and cross examination by the counsel for the accused. It is admissible to use the examinationinchief as well as the crossexamination of the said witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person who calls a witness, to put in crossexamination by the adverse party. The view that the evidence of the witness who has been called and cross examined by the party with the leave of the Court, cannot be believed or disbelieved in part and has to be excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be crossexamined can also be relied upon by the prosecution.
Xxxxxx"
State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 24 of 38
FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015
34. Moreover, PW3 did not give clean chit to either of these two accused persons. He simply failed to identify the accused persons on the pretext that due to darkness, he himself could not see the faces of assailants. However, the other public witness i.e. PW16 namely Subodh who is none else but himself is injured/victim, has duly identified both these accused during trial to be the offenders who had committed offences against him. PW16 not only identified both the accused but he has also deposed about the respective roles played by these two accused persons in the commission of offences committed against him. He specified during trial that accused Yogesh had caught hold of his neck and had asked him to hand over all the belongings whereas accused Akash @ Bunty had caused knife injury on his left abdomen. The accused persons could not impeach testimony of said witness through litmus test of cross examination and PW16 has successfully with stood the test of cross examination.
35. It is well settled law that the testimony of a witness cannot be brushed aside merely because he happens to be complainant/injured himself. Instead, the law is otherwise which provides that testimony of stamped witness can be taken into consideration by the Court and same can form basis of conviction of the accused in case it inspires confidence.
36. PW16 Subodh himself had sustained injuries. Same is duly corroborated from his MLC Ex.PW5/A wherein he is shown to have sustained incised wound of the size of 2.5 x 2.5 cm over left upper quadrant of abdomen. Initially, he was declared unfit for statement by concerned doctor of LNJP hospital on 02.07.2012. He was declared fit for statement State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 25 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 only on 03.07.2012. His MLC Ex.PW5/A also shows that nature of injuries sustained by him, has been opined to be grievous in nature. In these facts and circumstances, Court does not see any reason or ground to reject the testimony of this witness as there is no reason as to why this injured witness would allow actual culprit to go scot free by deposing falsely against these two accused persons.
37. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
38. In the recent judgment delivered by Hon'ble Apex Court in the matter titled as "Mano Dutt & Anr. Vs. State of U.P" decided on 29th February, 2012, it has been held as under: "xxxxx In our view, nonexamination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weightage that should be attached by the Court to the testimony of an injured witness. State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 26 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. xxxxxx"
39. In another judgment delivered in the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under: "xxxxxx
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness.
Xxxxxxx"
40. There is no substance in the next limb of argument raised by Ld. defence counsel that there are material contradictions or inconsistencies in the testimonies of public witnesses i.e. PW3 Narender and PW16 Subodh. For the said purpose, Ld. defence counsel referred to the statements U/s 161 Cr.P.C. of both the said witnesses as well as to their testimonies recorded during trial. The contradictions and inconsistencies as pointed out by Ld. defence counsel may be summarized as under:
(i) Both the aforesaid public witnesses are shown to have stated height of offenders to be around 5 feet 9 inch and 5 feet and 6 inch in their respective statements U/s 161 Cr.P.C. (Mark PW3/A and Ex.PW16/DA) but both the State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 27 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 said witnesses denied to have disclosed height of the assailants before the police;
(ii) In police statement (Ex.PW16/DA), PW16 claimed that he alongwith PW3 had raised noise on which both the offenders ran away towards the side of Vijaya Bank but in his testimony recorded during trial, PW16 deposed that it was PW3 Narender who had raised the noise; and
(iii) PW3 deposed that he alongwith helper had removed the victim/injured i.e. PW16 to the hospital in DCM truck as contrary to the testimony of PW16 who has deposed that no DCM truck used to be parked near the spot and PW3 Narender never drove DCM truck during the relevant period.
41. No doubt, the aforesaid contradictions do exists in the testimonies of PW3 and PW16 visavis the case of prosecution but said contradictions are not material. Those contradictions are minor in nature which do not go to the root of the case of the prosecution and thus, they are not fatal to the prosecution story.
42. The next bone of contention of Ld. defence counsel was that PW3 and PW16 are related to each other and thus, they are interested witnesses. However, there is nothing on record to suggest that the testimonies of both the said public witnesses are not trustworthy or same are unreliable. Rather, the position is other way round. Had it been the situation where both the said public witnesses had joined hands to give false evidence against the accused persons then both of them would have deposed on identical lines till end and would have also identified the accused persons State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 28 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 during trial, which is not the case herein as PW3 Narender did not identify either of these two accused persons during trial. The said conduct on the part of PW3 clearly points out that the testimonies of both the aforesaid public witnesses are quite plain, natural and trustworthy.
43. I do not find any reason to throughout the entire case of prosecution merely because Tshirt of the victim (PW16) has not been seized in this case. It has been duly explained by PW3 that Tshirt of PW16 had come into his hands when he had put his hand on the shoulder of PW16 while asking him to run away after escaping from the clutches of the offenders. Thus, it is not the case that Tshirt of the victim had also received any blood stain on it due to which it ought to have been seized by IO and sent to Forensic Laboratory.
44. No doubt, it has come on record that apart from PW3 Narender, one more public person namely Raju had also helped the victim (PW16) to remove him to SRHC hospital Narela immediately after the incident but non examination of said Raju, cannot be considered as fatal to the case of prosecution to the extent that the testimonies of both the aforesaid public witnesses should either be disbelieved or discarded in toto. Moreover, it is the quality of evidence which is material and not the quantity of evidence.
Same is also mandate of the law as provided in Section 134 of Indian Evidence Act.
45. Although, Ld defence counsel argued that no motive or reason has been attributed to the accused Akash @ Bunty as to why he would stab the victim of this case when their purpose was to commit robbery but again, State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 29 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 the said contention does not hold any ground as it has been sufficiently explained by both the public witnesses that the accused persons had intention to commit robbery against the victim (PW16) but when PW3 managed to save himself from their clutches and ran away while raising noises and few public persons responded on hearing those noises, accused Akash @ Bunty took out knife from his pocket and gave knife blow on the left upper quadrant of abdomen of victim so that they may not get apprehended by the victim with the help of those public persons and in this manner, both of them managed to flee away from there.
46. Ld. defence counsel also tried to displace the case of prosecution by submitting that identification of Baniyan (Ex.P1) by PW16 during trial, is of no consequence and said part of his testimony should be disbelieved by the Court as the said witness failed to disclose any particular mark of identification or even make of the said Baniyan due to which it was not possible for him to identify the said Baniyan during trial. However, the said contention is bound to fail for the reason that PW16 testified during cross examination that he could identify the said Baniyan as it was handed over by concerned doctor after taking it out from his person, to the police official in the hospital.
47. Ld. defence counsel argued that both the accused persons were not produced in muffled face at the time of their first production after arrest in this case, before the Court on 16.07.2012 and therefore, the production of said accused on 18.07.2012 in muffled face did not carry any meaning as there was every possibility of both the accused having been shown to the State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 30 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 injured/victim and other public persons. The said argument is totally misconceived and thus, cannot be accepted by the Court. The record shows that both the accused were produced in muffled face even on 16.07.2012 after their arrest in this case on 15.07.2012. The said fact is mentioned not only in the application dt. 16.07.2012 moved by IO (PW17) namely Inspector Mahabir Singh (the then SI) for seeking their one day judicial remand but also in the order dated 16.07.2012 passed by Ld. Duty MM. PW17 has also categorically testified during trial that both the accused were kept in muffled face immediately after their arrest on 15.07.12 and they were produced in muffled face before the Court of Ld. MM on 16.07.2012 as well as on 18.07.2012 when they had refused to participate in their respective judicial TIP conducted before PW13 vide TIP proceedings Ex.PW13/B and Ex.PW13/C respectively.
48. There is no merit in the other bone of contention raised by Ld. defence counsel that identification of both the accused by victim for the first time during trial, is of no use and therefore, conviction should not be recorded against them on the basis of said identification. The reliance placed by Ld defence counsel on the judgment of our own High Court in the matter reported at 40 (1990) DLT (SN) 38 is also of no help to the accused as in the said case, no attempt was made by investigating officer to get judicial TIP of accused conducted prior to obtaining police custody remand of said accused/appellant. In the present case, the accused persons were kept in muffled face immediately after their arrest and they continued to be produced in muffled face till 18.07.2012 when they refused to participate in State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 31 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 judicial TIP as stated above.
49. I do not find any force in the next argument of ld. defence counsel that the testimonies of police witnesses i.e. PW14 HC Rakesh and PW17 Inspector Mahavir Singh (the then SI), should be disbelieved on the ground that accused were apprehended from near Smriti Van Chowk, 80 Foota Road, Narela but no sincere efforts are shown to have been made by them to join public witness at the time of arresting the accused persons. In this regard, Ld defence counsel also relied upon judgments reported at AIR 1999 SC 49 and AIR 1995 SC 1930.
50. No doubt, no independent public person is shown to have been joined at the time of apprehension of these two accused but it has been duly explained by both the police witnesses that 34 passersby were requested to join the investigation but none agreed. In this backdrop, it cannot be said that no sincere effort was made by police to join public person to witness the factum regarding arrest of accused persons in this case.
51. Hon'ble Supreme Court in the case titled as "Ambika Prasad & Anr Vs. State" reported at 2002 (2) CRIMES 63 (SC) has held that it is known fact that independent persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. Firstly, in cases where injured witnesses of the close relative of the deceased are under constant threat and they dare not to depose the truth before the Court, independent witnesses believe that their safety is not guaranteed. That belief cannot be said to be without any substance. Other reason may be the delay in State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 32 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 recording the evidence of independent witnesses and repeated adjournments in the Court. In any case if independent persons are not willing to cooperate with the investigation, prosecution cannot be blamed at and it cannot be a ground for rejecting the evidence of injured witnesses.
52. In view of the aforesaid discussion, both the authorities relied by accused on this point, are distinguishable and do not help them. Moreover, both the said authorities deal with the position of law with regard to search and seizure within the meaning and scope of Section 100 (4) Cr.P.C., whereas the accused persons in this case were simply arrested by the police on the aforesaid date, time and place and even at that time, efforts are shown to have been made by police witnesses to join independent public persons during the said proceedings.
53. Even otherwise, it would be anybody's guess as to why police officials would have falsely implicated the accused persons. If the accused persons want this Court to believe that they have been implicated falsely, the least which was expected from them was to at least come out as to what could have been the motive for the police for their false implication and as to what was that reason for which police officials could have done so. But no such reason is even mentioned or suggested to the police witnesses. The accused persons cannot expect this Court to believe their version by simple bare allegation that they are falsely implicated. At least some reason should have been put forth by the accused persons to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out the testimonies of police witnesses. State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 33 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015
54. Apart from the ocular evidence in the form of testimonies of PW3 Narender and PW16 Subodh (victim) and the medical evidence in the form of testimonies of PW5 Dr. Avdesh, PW7 Dr. Vineet Singh and PW9 Dr. Aradhana Singh, there is also recovery of weapon of offence i.e. knife at the instance of accused Akash @ Bunty from the roof of his H. No.B4/327, Police Colony, Narela, Delhi.
55. Ld. defence counsel assailed the testimonies of recovery witnesses i.e. PW15 HC Jasbir and PW17 Inspector Mahavir Singh (the then SI) on the ground that no independent public witness had been got joined at the time of alleged recovery of said knife due to which recovery of knife at the instance of accused Akash @ Bunty becomes doubtful. In this regard, she also heavily relied upon judgment of our own High Court reported at 2014 X AD (Delhi) 645.
56. However, I do not find any merit in the said submission for the simple reason that recovery of said knife is shown to have been effected at the instance of accused Akash @ Bunty from no other place but from his own house itself. It stands duly proved from the testimony of PW4 Amiya Haldar that H. No. B4/327, Police Colony, Narela, Delhi was in occupation of both the accused who are none else but real brothers as same was let out by PW4 to accused Yogesh Kumar on monthly rent of Rs. 4500/ vide rent agreement dated 05.04.2012 (Ex.PW4/A). The testimonies of both the police witnesses have gone unchallenged and unrebutted from the side of accused persons on the said aspect.
State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 34 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015
57. Moreover, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. Rather, the law is that even the testimony of a police officer can be acted upon and a conviction can be based on such testimony if the testimony is unimpeached and found to be trustworthy.
58. Hon'ble Supreme Court in Anil @ Andya Sadashiv Nandorkar Vs. State J.T. 1996 (3) SC 120 has held that testimony of the police officials cannot be discredited merely because they are police officials if otherwise, their testimony is found to be cogent, trustworthy and reliable.
59. In the matter titled as State, Govt. of NCT of Delhi Vs. Sunil & Anr. reported at (2001) 1 SCC 652, Hon'ble Apex Court held as under: "xxxxxx That it is an archaic notion that actions of the police officer should be viewed with initial distrust. At any rate, the Court cannot begin with the presumption that police records are untrustworthy. As a proposition of law, the presumption should be the other way around. The wise principle of presumption, which is also recognized by the legislature, is that judicial and official acts are regularly performed. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe that version to be correct if it is not otherwise shown to be unreliable. The burden is on the accused, through crossexamination of witnesses or through other materials, to show that the evidence of the police officer is unreliable. If the Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume that police action is unreliable to start with, nor State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 35 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015 to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions.
xxxxx"
60. In the matter "Laxmibai (dead) Thr. L.Rs. & Anr. vs. Bhagwantbhuva (dead) Thr. L.Rs. & Ors.' reported at AIR 2013 SC 1204, Hon'ble Supreme Court examined similar issue and held as under:
"xxxxx Furthermore, there cannot be any dispute with respect to the settled legal proposition, that if a party wishes to raise any doubt as regards the correctness of the statement of a witness, the said witness must be given an opportunity to explain his statement by drawing his attention to that part of it, which has been objected to by the other party, as being unture. Without this, it is not possible to impeach his credibility. Such a law has been advanced in view of the statutory provision enshrined in Section 138 of the Evidence Act, 1872, which enable the opposite party to crossexamine a witness as regards information tendered in evidence by him during his initial examination in chief and the scope of this provision stands enlarged by Section 146 of the Evidence Act, which permits a witness to be questioned, interalia, in order to test his veracity. Thereafter, the unchallenged part of his evidence is to be relied upon, for the reason that it is impossible for the witness to explain or elaborate upon any doubts as regards the same, in the absence of questions put to him with respect to the circumstances which indicate that the version or events provided by him, is not fit to be believed, and the witness himself, is unworthy of credit. Thus, if a party intends to impeach a witness, he must provide adequate opportunity to the witness in the witness box, to give a full and proper explanation. The same is essential to ensure fair play and fairness in dealing with witnesses.
xxxxx"
State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 36 of 38
FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015
61. In view of the aforesaid facts and circumstances, it stands duly proved on record that knife (Ex.P1) was recovered at the instance of accused Akash @ Bunty from roof of his tenanted house. The relevant portion of disclosure statement (Ex.PW15/F) in pursuance of which said knife was recovered is, therefore, becomes admissible under the law by virtue of section 27 of Indian Evidence Act. In view of unassailed testimony of PW8 Dr. V.K. Jha who has given subsequent opinion Ex.PW8/B to the effect that knife (Ex.P1) examined by him could have caused injury of the nature sustained by injured Subodh (PW16), the case of prosecution gets further strengthened and corroborated that accused Akash @ Bunty had used said knife in causing injury in the abdomen of victim of this case.
62. Even if it be presumed for the sake of arguments that recovery of aforesaid knife at the instance of accused Akash @ Bunty from his house is highly doubtful, still it does not affect the fabric of the prosecution story. It is well settled law that non recovery of weapon of offence is not fatal to the case of prosecution for proving the offence U/s 397 IPC.
63. However, Court finds force in the submission made by Ld. defence counsel that since it was a case of attempt to commit robbery during which deadly weapon i.e. knife had been used by accused Akash @ Bunty, it is the case of committing offence punishable U/s 398 IPC and not for offence punishable U/s 397 IPC charged against said accused. In other words, the prosecution has been able to establish the case against accused Akash @ Bunty for the offence punishable U/s 398 IPC. State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 37 of 38 FIR No. 346/12; U/s 307/393/394/398/34 IPC; P.S. Narela DOD: 25.07.2015
64. The evidence available on record speaks sufficiently about the circumstances and the manner in which offence is shown to have been committed by the accused persons. It is duly established from the testimonies of relevant eye witnesses that both the accused persons had participated during commission of offence and thus, there is no iota of doubt that both of them were sharing common intention to commit the offence within the meaning of Section 34 IPC.
65. For the foregoing discussion, I am of the considered opinion that prosecution has been successful in establishing on record that both these accused in furtherance of their common intention, had attempted to commit robbery of valuable articles against the victim i.e. PW16 Subodh and also that both of them in furtherance of their said common intention, also attempted to commit murder of said victim by causing knife blow injury of the size 2.5 x 2.5 cm over his left upper quadrant of abdomen. Prosecution has also proved on record that it was accused Akash @ Bunty who had used deadly weapon i.e. knife in his attempt to commit robbery against the victim. Accordingly, both the accused persons namely Akash @ Bunty and Yogesh stand convicted for the offences punishable U/s 394/307/34 IPC and accused Akash @ Bunty is also convicted for the offence punishable U/s 398 IPC.
Announced in open Court today
On 25.07.2015 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State vs Akash @ Bunty @ Brijesh & Anr. ("Convicted") Page 38 of 38