Delhi District Court
State vs 1. Adil Alam Khan on 27 May, 2023
IN THE COURT OF SH. SANJAY SHARMA-II : ADDL. SESSIONS JUDGE-03,
(CENTRAL): TIS HAZARI COURTS, DELHI
SC No. : 27851/2016
FIR No. : 339/2013
Under Section : 392/394/397/411/34 IPC
PS : Kashmere Gate
CNR No. : DLCT01-001470-2014
State Versus 1. Adil Alam Khan
S/o Mr. Mohd. Yunus Khan
R/o K-166/66, Khadde Wali Masjid
Gautam Vihar, New Usmanpur
Delhi
2. Nadeem @ Monta @ Banta
S/o Mr. Naseemuddin
R/o Village Mukimpur, PS Pilakua
District Ghaziabad, Uttar Pradesh
3. Rizwan @ Raju
S/o Mr. Liyakat Ali
R/o K-476, Gali No. 4
Khadde Wali Masjid, Gautam
Vihar, New Usmanpur, Delhi
Date of Institution : 07.06.2014
Date of Arguments : 29.03.2023
Date of Judgment : 27.05.2023
JUDGMENT
INTRODUCTION:
1. The case of the prosecution is that on 25.11.2013 between 11.45 p.m. to 12.06 a.m. on ISBT flyover leading to Shahdara, within jurisdiction of PS Kashmere Gate, the accused persons alongwith the co-accused, namely, Irfan @ Pintu (untraced), in furtherance of their common intention, robbed a gold chain with a diamond pendant, purse containing an amount of Rs. 3,600/-, one Metro Card, one Vodafone SIM No. 858890512, two photographs, Election I-card, PAN card and visiting card from Mr. Arun Vishwakarma (Hereinafter 'the complainant') which is punishable under Section 392 read with Section 34 of 'The Indian Penal Code, 1860' (In short 'IPC').
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 1 of 32
2. It is further case of the prosecution that the accused persons alongwith the co-accused, namely, Irfan @ Pintu (untraced) voluntarily caused hurt to the complainant at the time of committing robbery which is punishable under Section 394 read with Section 34 IPC.
3. It is further case of the prosecution that the accused, namely, Nadeem @ Monta @ Banta used a sharp edged object at the time of committing robbery which is punishable with minimum imprisonment of 7 years under Section 397 IPC. CHARGE-SHEET:
4. The case of the prosecution, as unfolded in the statement of the complainant (PW-12), is as under:
"Statement of Mr. Arun Vishwakarma S/o Sh. Ashok Vishwakarma R/o D-211, Gali No. 6, near Happy Time Public School, Bhajanpura, Delhi. Age 30 years.
It is stated that I am residing at the aforesaid address. I am doing a private job. At present, I am unemployed. On 25.11.2013 at about 05.00 a.m., I went to Jaipur for a job. In the night, I returned to Delhi in a vehicle of my known person. He de- boarded me at starting point of flyover leading to Shahdara in Kashmere Gate. At about 11.25 p.m., I boarded an auto for my house. One passenger was already sitting in the said auto with driver. I asked auto driver to down the meter and I will pay the entire fare. Auto driver consented to it. However, he stated that the passenger is his brother and they are going to Bhajanpura. Auto moved at about 10 meters, two boys while walking also boarded auto. As the flyover was ascending, auto was moving slowly. One of the said two boys sat near the driver and another boy sat on my left side. I was sitting in the middle. While auto had just crossed Yamuna Bridge, the boy who was referred as his brother by auto driver slapped on my face. When I asked as to why he did so, he punched twice or thrice on my face. He caught my gold chain which I was wearing around my neck. I also held my gold chain. I protested. The boy who was sitting with him asked him to take out tamncha and a knife and to kill me.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 2 of 32 The boy who was sitting on my left side placed a sharp object on my side so that I cannot offer any resistance. I managed to bring my body slightly out from the auto and raised alarm for help. The said two boys pulled me inside the auto and the boy who was sitting in front caught my hair. All the three boys grounded me on rear floor of auto and punched and kicked me. Auto driver was also looking behind and watching and instructed them to further assault me. Auto driver slowed down auto and slapped me. The boy who was referred by auto driver as his brother taken my gold chain having diamond pendant which I was wearing around my neck. The boy who was sitting on my left side taken out purse from rear pocket of my trouser. My purse was containing cash amount of Rs. 3,600/-, one Metro card, one Vodafone SIM No. 858890512, two photographs, health card of my brother and few visiting cards, Voter I-card, PAN card No. AJVPV1160A, my visiting cards pertaining to Wintech Jewels Pvt. Ltd. The said four boys robbed my aforesaid articles and severely assaulted me. They thrown me in a street on Gamri Road. There was light in that street. When they had thrown me from the auto, the auto was moving slowly. I immediately noted registration number of auto i.e. DL 1 RN 7518. While throwing me out from auto, one boy stated to auto driver that 'Adil move the auto swiftly' and he driven away auto very fast. I immediately made call at 100. PCR Van arrived. They admitted me in Jag Parvesh Chandra Hospital where my MLC was prepared and police officials from PS Bhajanpura and PS Usmanpur reached hospital. SI Yogesh Kumar from PS Bhajanpura made enquiry from me. I narrated the entire incident to him. Thereafter, we came to PS Kashmere Gate where you met. You alongwith me, SI Yogesh and other police officials reached Shahdara Flyover where I had shown you the place of incident. You made enquiry from me. You recorded my statement. I have heard my statement. It is correct. The said four boys physically assaulted me and robbed me. I can identify them and auto, if, they are shown to me. Legal action be taken against the said four boys."
5. PW-13 SI Pawan Kumar made endorsement for registration of FIR under Section 392/394/397/34 IPC and sent PW-7 Ct. Pawan Kumar to PS Kashmere Gate for registration of case.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 3 of 32
6. PW-13 SI Pawan Kumar investigated the case. He prepared site plan of the place of incident. In search of the accused persons, he reached at Faridabad Bus Stand where the complainant identified TSR No. DL 1RN 7518 which was parked on side of the road as the TSR wherein incident was committed. He formed a raiding team and reached near auto. The four boys sitting therein started running in different directions. He alongwith accompanying staff apprehended one person. The complainant identified the said person as the person who was driving auto at the time of incident. On enquiry, the name of the said person was revealed as 'Mohd. Sajid Khan @ Babla S/o Mohd. Yunus Khan R/o K-166/66, Gautam Vihar, Khadde Wali Masjid, New Usmanpur, Delhi'. He conducted his search. In his search, cash amount of Rs. 900/- was recovered. One visiting card pertaining to 'Wintech Jewels Equipment Pvt. Ltd.' was recovered from rear seat of auto. He seized TSR No. DL 1RN 7518. He arrested the accused, namely, Mohd. Sajid Khan @ Babla. He interrogated him. He recorded his disclosure statement. In his disclosure statement, he disclosed that the accused, namely, Nadeem @ Monta, Raju @ Rizwan and Pintu were also involved in commission of the offence. He obtained his PC remained for one day. During remand, he searched the robbed articles and the co-accused persons at the places stated by the accused, namely, Mohd. Sajid Khan @ Babla. However, he could not obtain any clue regarding the co-accused persons.
7. PW-13 SI Pawan Kumar received secret information that the accused, namely, Nadeem @ Monta @ Banta @ Pawwa was lodged in Tihar Jail, New Delhi in FIR No. 548/2013 under Section 307/34 IPC and 25 Arms Act registered at PS Usmanpur.
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8. Thereafter, PW-13 SI Pawan Kumar filed an application before jurisdictional Magistrate for production of the accused. On 05.03.2014, he reached Tihar Jail for investigation of the case. He interrogated the accused, namely, Nadeem @ Monta @ Banta @ Pawwa (Hereinafter referred to as 'Nadeem'). He arrested him. On 06.03.2014, the accused, namely, Nadeem was produced before jurisdictional Magistrate in muffled face. He filed an application for Test Identification Parade (TIP) of the accused, namely, Nadeem. On 24.03.2014, TIP proceeding was conducted in Tihar Jail, New Delhi. The complainant identified the accused, namely, Nadeem. The complainant stated that the accused, namely, Nadeem was sitting on his left side and assaulted him and placed a sharp edged object on his side and taken out purse from pocket of his trousers.
9. On 26.03.2014, PW-13 SI Pawan Kumar received information from HC Pradeep, PS New Usmanpur, vide DD No. 18B, regarding apprehension of the accused, namely, Rizwan @ Raju (In short 'Rizwan'). He filed an application before jurisdictional Magistrate for issuance of production warrant. On 31.03.2014, the accused, namely, Rizwan was produced before jurisdictional Magistrate. He arrested him. He filed an application for Test Identification Parade (TIP) of the accused, namely, Rizwan. However, the accused, namely, Rizwan refused to join TIP proceedings. He obtained one day police remand. During police remand, he prepared pointing out memo of the place of incident. The accused, namely, Rizwan got recovered one PAN card and Voter I-card from an almirah of his house. He could not obtain any clue regarding the accused, namely, Irfan @ Pintu. He filed charge-sheet against the accused persons.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 5 of 32 COMMITTAL PROCEEDINGS:
10. Vide order dated 05.06.2014, the jurisdictional Magistrate committed the case to the Court of Session. CHARGE:
11. On hearing arguments and appraisal of the material on record, the accused persons were charged under Section 392/34 IPC and 394/34 IPC. The accused, namely, Nadeem was also charged under Section 397 IPC. The accused persons abjured the guilt and claimed trial.
PROSECUTION EVIDENCE:
12. The prosecution examined 14 witnesses, as under:
The witnesses Description of the witnesses PW-1 HC Harpal Singh Duty Officer, PS Kashmere Gate. PW-2 SI Yogesh Kumar Taken the complainant to PS Kashmere Gate. PW-3 HC Devender MHC(M), PS Kashmere Gate. PW-4 Sh. Pawan Singh Conducted TIP qua the accused, namely, Rajawat, MM (Central), Tis Nadeem and Rizwan. Hazari Courts, Delhi PW-5 Dr. Mohd. Niyaz Identified handwriting and signatures of Dr. Alam Ambrish on MLC of the complainant. PW-6 Ankit Kwatra, SA, Brought a copy of MLC No. 18 dated Jag Parvesh Chandra 26.11.2013 of the complainant. Hospital PW-7 Ct. Pawan Kumar Taken tehrir to PS Kashmere Gate for registration of FIR and arrest and recovery witness qua the accused, namely, Adil Alam Khan @ Sajid.
PW-8 HC Devender Already examined as PW-3. PW-9 Smt. Chaman Bano Superdar qua TSR No. DL 1 RN 7518. PW-10 Ct. Amit Arrest and recovery witness qua the accused, namely, Rizwan.
PW-11 HC Umender Brought antecedents of the accused persons. PW-12 Arun Vishwakarma The complainant / injured. PW-13 SI Pawan Kumar Investigating Officer. PW-14 Ct. Anuj Arrest witness qua the accused, namely, Nadeem.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 6 of 32 PROSECUTION DOCUMENTS:
13. The prosecution relied on following documents:
Exhibits Description of documents Ex.PW1/A FIR No. 339/2013 U/s. 392/394/397/34 IPC registered at PS
Kashmere Gate at 04.30 a.m. on 26.11.2013. Ex.PW1/DA DD No. 10A dated 26.11.2013 lodged at 03.00 a.m. on 26.11.2013 at PS Kashmere Gate.
Ex.PW3/A Entry at Sl. No. 3845 in Reg. No. 19 regarding deposit of cash amount of Rs. 900/- and TSR No. DL 1 RN 7518. Ex.PW4/A Application for TIP of the accused, namely, Nadeem. Ex.PW4/B Application for adjournment of TIP of the accused, namely, Nadeem.
Ex.PW4/C TIP proceedings qua the accused, namely, Nadeem. Ex.PW4/D Certificate regarding correctness of TIP proceedings qua the accused, namely, Nadeem.
Ex.PW4/E Application for TIP of the accused, namely, Rizwan. Ex.PW4/F TIP proceedings qua the accused, namely, Rizwan. Ex.PW4/G Statement of the accused, namely, Rizwan. Ex.PW4/H Certificate regarding correctness of TIP proceedings qua the accused, namely, Rizwan.
Ex.PW5/A MLC of the complainant issued by Jag Parvesh Chandra Hospital, Shastri Park, Delhi.
Ex.PW7/A Seizure memo of cash amount of Rs. 900/- comprising one bank note of denomination of Rs. 500/- and four bank notes of denomination of Rs. 100/- and visiting card. Ex.PW7/B Arrest memo of the accused, namely, Sajid Khan @ Adil. Ex.PW7/C Personal search memo of the accused, namely, Sajid Khan @ Adil.
Ex.PW7/D Disclosure statement of the accused, namely, Sajid Khan @ Adil.
Ex.PW8/A Entry in Reg. No. 19 pertaining to release of TSR No. DL 1RN 7518 to superdar, namely, Smt. Chaman Bano. Ex.PW9/A Superdari bond qua TSR No. DL 1RN 7518. Ex.PW10/A Arrest memo of the accused, namely, Rizwan. Ex.PW10/B Disclosure statement of the accused, namely, Rizwan. Ex.PW10/C Pointing out memo qua the accused, namely, Rizwan. Ex.PW10/D Seizure memo pertaining to PAN card and Voter I-card recovered at the instance of the accused, namely, Rizwan. Ex.PW11/A Antecedent report of the accused, namely, Adil Alam Khan.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 7 of 32 Ex.PW11/B Antecedent report of the accused, namely, Nadeem. Ex.PW11/C Antecedent report of the accused, namely, Rizwan. Ex.PW12/A Statement of the complainant.
Ex.PW12/B Site plan of the place of incident. Ex.PW12/C Already Ex.PW7/A. Ex.PW12/D Seizure memo of TSR No. DL 1RN 7518. Ex.PW13/A Tehrir.
Ex.PW13/B Personal search memo of the accused, namely, Rizwan. Ex.PW14/A Arrest memo of the accused, namely, Nadeem. Ex.PW14/B Disclosure statement of the accused, namely, Nadeem. EXAMINATION OF THE ACCUSED PERSONS:
14. Incriminating circumstances appearing in evidence were explained to the accused persons, as required under section 313 Cr.P.C. They denied each and every circumstance appearing in evidence against them. The accused, namely, Rizwan stated that his photographs were shown to the complainant and therefore, he refused to participate in Test Identification Parade (TIP). The accused, namely, Nadeem stated that his photographs were shown to the complainant and therefore, he was identified by him in Test Identification Parade (TIP). The accused, namely, Adil Alam Khan stated that he was not riding TSR. He stated that he is not an auto driver. He stated that TSR is registered in the name of his mother. He stated that the amount recovered from him is his amount. The accused persons stated that they did not know each other. They pleaded innocence and claimed false implication.
DEFENCE EVIDENCE:
15. The accused, namely, Adil Alam Khan examined his mother, namely, Chaman Bano (already examined as PW-9) as DW-1. She stated that she had produced the accused, namely, Adil Alam Khan to police station on being asked by police.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 8 of 32 APPEARANCE:
16. I have heard Mr. Amit Dabas, Ld. Addl. PP for the State and Mr. Sagheer Ahmad, Advocate for the accused persons. CONTENTIONS OF THE PROSECUTION:
17. Ld. Addl. PP for the State contended that the complainant narrated the entire incident. He contended that the complainant identified the accused persons and ascribed role of each of the accused persons. He contended that the complainant had no enmity with the accused persons. He contended that the complainant sustained injury during the incident. He contended that there is no delay in recording of statement of the complainant and registration of FIR. He contended that the accused, namely, Rizwan refused to participate in Test Identification Parade (TIP) whereas the accused, namely, Nadeem was identified by the complainant in Test Identification Parade (TIP). He contended that there is no material discrepancy in the deposition of the complainant. He contended that TSR No. DL 1RN 7518 is owned by PW-9 Smt. Chaman Bano, mother of the accused, namely, Adil Alam Khan. He contended that the accused, namely, Adil Alam Khan was apprehended alongwith the said TSR soon after the incident. He contended that the prosecution has proved charges against the accused persons. CONTENTIONS OF THE DEFENCE:
18. Ld. Defence Counsel contended that the prosecution failed to produce cogent, credible and inspiring evidence on record. He contended that the prosecution withheld material documents and witnesses. He contended that there are material contradictions, inconsistencies and infirmities in the prosecution evidence impacting the core of the prosecution case.
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19. Ld. Defence Counsel contended that there is no mention of 'knife' in the statement of the complainant. He contended that the complainant made material improvement in his evidence while stating that the accused, namely, Nadeem taken out a knife and placed it on his waist. He contended that the prosecution has neither filed nor proved DD No. 4A dated 26.11.2013. He contended that no PCR call was received, as stated by PW-1 HC Harpal Singh, regarding the incident. He contended that the prosecution has not examined the Constable who was accompanying PW-2 SI Yogesh Kumar to Jag Parvesh Chandra Hospital, Shastri Park, Delhi-110053 and PS Kashmere Gate. He contended that the prosecution has neither cited nor examined PCR officials who had shifted the complainant to Jag Parvesh Chandra Hospital, Shastri Park, Delhi-110053. He contended that there are material contradictions pertaining to the place of recording of statement of the complainant, place of preparation of site plan and documents relating to arrest of the accused, namely, Adil Alam Khan. He contended that there are material contradictions pertaining to time of departure of PW-2 SI Yogesh Kumar. He contended that there is no public witness to the arrest, search and seizure proceedings qua the accused persons. He contended that it is highly improbable that a person who has committed an offence would return to the place of the incident within a short time of 3-4 hrs. He contended that PW-13 SI Pawan Kumar arrested a person, namely, Sajid who is BC of the area. He contended that the accused, namely, Adil Alam Khan was apprehended from his house and implicated in this case in place of the said Sajid. He contended that the name of the apprehended person is mentioned as 'Sajid' in arrest memo.
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20. Ld. Defence Counsel contended that the robbed articles i.e. gold chain with diamond pendant was not recovered from any of the accused persons. He contended that there is no mention of incident of robbery in MLC. He contended that MLC Ex.PW5/A mentions history of assault (blows to face). He contended that recovery of an amount of Rs. 900/- alongwith visiting car is insignificant. He contended that there is no distinctive mark on the alleged currency. He contended that the photographs of the accused persons, namely, Rizwan and Nadeem were shown to the complainant before their Test Identification Parade (TIP) and therefore, identification of the accused, namely, Nadeem and refusal of the accused, namely, Rizwan is inconsequential. He contended that disclosure statement is signed by 'Sajid Khan' and not by 'the accused, namely, Adil Alam Khan'. He contended that recovery of a PAN card and voter I card at the instance of the accused, namely, Rizwan is not inspiring. He contended that it is beyond comprehension that why a person would retain a PAN card and voter I card of another person. He contended that the prosecution has neither filed nor proved Call Details Record (CDR) of mobile number of the complainant to prove his location and call made at
100. He contended that the complainant is not a reliable witness.
He contended that the prosecution has neither placed nor proved proof of residence of the complainant in Bhajanpura. He contended that the complainant has not placed any letter for job interview in Jaipur. He contended that the complainant could not state registration number of the vehicle in which he commuted from Jaipur. He contended that the prosecution failed to prove the charges beyond reasonable doubt.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 11 of 32 STATUTORY PROVISIONS:
21. Statutory provisions applicable to this case are, as under:
390. Robbery.-In all robbery there is either theft or extortion.
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.
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.
Explanation.- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
392. Punishment for robbery.- Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
397. Robbery, or dacoity, with attempt to cause death or grievous hurt.- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 12 of 32 JUDICIAL PRECEDENTS:
22. In Venu @ Venugopal & Ors. vs. State of Karnataka, (2008) 3 SCC 94, Hon'ble Supreme Court of India held as under:
"8. Section 392 IPC provides for punishment for robbery. The essential ingredients are as follows:
1. Accused committed theft.
2. Accused voluntarily caused or attempted to cause
(i) death, hurt or wrongful restraint;
(ii) fear of instant death, hurt or wrongful restraint.
3. He did either act for the end
(i) to commit theft;
(ii) while committing theft;
(iii) in carrying away or in the attempt to carry away property obtained by theft.
10. The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough."
23. In Ganesan vs. State Rep. by Station House Officer, 2021 SCC OnLine SC 1023, Hon'ble Apex Court held, as under:
"47. The aforesaid view has been subsequently reiterated by this Court in the case of Dilawar Singh (Supra) and in paragraphs 19 to 21 it is observed and held as under:
"19. The essential ingredients of Section 397 IPC are as follows:
1. The accused committed robbery.
2. While committing robbery or dacoity
(i) the accused used deadly weapon
(ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 13 of 32
3. ''Offender'' refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It is only envisages the individuals liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But the other accused are not vicariously liable under that section for acts of the co-accused."
(a) Whether the accused persons committed offence under Section 392 read with Section 34 IPC?
24. The case of the prosecution is founded on edifice of the evidence of the complainant. The complainant appeared as PW-12. He deposed, as under:
"On 25.11.2013 at about 11.30 / 11.45 p.m., I reached Kashmere Gate ISBT from Jaipur. I was to go to Bhajanpura. I signalled to stop one auto-rickshaw. The said auto-rickshaw was stopped and I asked him to go to Bhajanpura. One another person was already inside the said TSR on the rear seat. I asked the said TSR driver about the person sitting on the rear seat, the driver replied that he was his younger brother and he was also going to Bhajanpura. I offered him fare of Rs. 80/- to take me to Bhajanpura. As soon as the said auto started climbing the flyover towards Shastri Park, two persons joined us in the said Auto. One sat with me and other sat in front with the auto driver. Resultantly, I was sitting between two persons at that time. Thereafter, the TSR driver increased the speed of the TSR. After crossing the Yamuna Bridge and police post, the person who was introduced as the brother of the auto driver, punched me on my face. Again, the said person gave another punch on my face and tried to pull my gold chain with diamond locket. I started bleeding. I resisted by holding his hand. The first person who tried to pull my gold chain told the person who was sitting on my left to place knife on my waist. Then that person took out a knife and kept the same on my waist. When the TSR reached at Metro IT Park, I took my face out and screamed for help from the passers-bye bikers and asked them to inform the PCR.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 14 of 32 Then, the persons sitting inside the TSR pulled me back inside the TSR and threw me on the floor of the auto and started giving fist and kick blows to me. The TSR driver and the person sitting next to him also gave fist blows. The TSR driver was increasing and decreasing the speed of the TSR. The person sitting on my left who was introduced as brother of the auto driver, snatched my gold chain with diamond locket and robbed my black wallet containing my PAN card, Voter I-card, visiting cards, one SIM card of Vodafone, health care certificate of my boss Mr. Syval Sengupta and sum of Rs. 1600/-. A sum of Rs. 2,000/- kept in the pocket of my shirt was also robbed by them but I do not recall as to who had robbed Rs. 2,000/-. Then, they turned towards left side towards Khajuri Khas, then towards Ghamrhi. I requested them to leave me as they had already robbed me. Then, one of the robbers took the name of Adil and asked him to continue driving as it was their area. After taking a turn in a gali, they threw me out of the auto from the left side of the auto. Then the auto turned towards left side after about a distance of 20 meters, I noted and memorized the said TSR number which was DL 1RN 7518. I managed to stand and called the police at 100 number from my mobile number 9971913750 which was kept in inner pocket of my coat. Police asked me about my location. Since I was not familiar with the location, I managed to go to 5th pusta where PCR met me. I narrated the entire incident to the police officials of PCR and I was taken to Hospital. From PS Bhajanpura, one PSI Yogesh came in the hospital. From there, PSI Yogesh brought me at PS Kashmere Gate where SI Pawan met us and I narrated the entire incident to him who recorded my statement in this regard. My statement was read over and explained to me and same is Ex.PW12/A which bears my signature at point A. On the basis of my statement, case was registered. Thereafter, we left the PS and on my pointing, IO prepared the site plan Ex.PW12/B from where I sat in the TSR. In the morning at about 6-6.15 a.m., when we reached Faridabad Bus Stand where we saw one TSR which was having the same number plate in which I travelled and I was robbed. The said TSR driver was apprehended who disclosed his name as accused Adil who is present in the court today (correctly identified by the witness) was the same person who was driving the aforesaid TSR in which I was robbed.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 15 of 32 A sum of Rs. 900/- was recovered from his possession alongwith the visiting card, and said currency notes and visiting card were taken into possession vide memo Ex.PW12/C which also bears my signatures at point A. The said TSR bearing registration No. DL 1RN 7518 was also taken into possession vide seizure memo Ex.PW12/D which also bears my signature at point A. Accused Adil was also arrested vide arrest memo already Ex.PW7/B which bears my signature at point B. Thereafter, we came back at PS Kashmere Gate and I was relieved from investigation.
On 24.03.2014, I participated in the TIP proceedings where I identified one of the accused Nadeem before the learned MM vide TIP proceedings already Ex.PW4/C which bears my signature at point B. Accused Nadeem is present in the court today (correctly identified by the witness). Witness further states that accused Nadeem is the same person who put knife on his waist during the incident. At this stage, witness further pointed out towards the accused Rizwan @ Raju who is present in the court today and stated that he is the same person who was introduced as the brother of accused Adil, driver of the TSR and robbed gold chain with pendant and a purse and accused also gave punches on the face of the witness. Thereafter, IO recorded my statement in this regard. I am unable to identify the fourth accused, who was sitting next to TSR driver. Again said, I can identify him, if he appears in the court."
25. The relevant part of his cross-examination is as under:
".....There was only one person inside the TSR at the passenger seat when I boarded the same. The said person was on the right side of the TSR at passenger seat.....Accused Adil was apprehended at about 6.00- 6.15 am at Faridabad Bus Stand. At the time Adil was apprehended from Faridabad Bus Stand, other three accused persons were with him and they managed to escape.....The auto in which I was taken by the police official was also parked in the vicinity of the spot of apprehension of accused Adil.....In my presence only one accused Adil was apprehended by the police. I was never shown any photograph of accused Adil by the police prior to his arrest. The fourth accused who is still not arrested, was sitting next to the driver of the TSR during the entire incident.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 16 of 32 The auto driver / accused Adil was also hitting me during the incident while driving the auto. The fourth accused also gave beatings to me.....My mobile phone was not robbed as the same was lying in inside pocket of my coat.
It is wrong to suggest that I was shown accused prior to his arrest or that he was lifted from his house or that he has been falsely implicated in this case or that the TSR was also lifted from his house. It is wrong to suggest that I was shown accused prior to his arrest or that he was lifted from his house or that he has been falsely implicated in this case or that the TSR was also lifted from his house. It is wrong to suggest that no such incident ever took place in the TSR in question of accused Adil or that I do not remember the number of TSR involved in the incident or that I am deposing falsely or that no such recovery was affected from the accused Adil or that the recovered articles were planted upon the accused Adil or that I did not disclose the spot to the police. The call to the PCR at number 100 was made by me from my mobile phone at about 12.10 am on the intervening night of 25/26.11.2013..... I received a message from SI Pawan regarding the participation of TIP on 24.3.2014. I was informed 10- 12 days prior about the TIP proceedings. I was not shown any photograph of any of the accused persons....."
26. According to MLC Ex.PW5/A, the complainant was admitted at 12.30 a.m. on 26.11.2013 in Casualty of Jag Parvesh Chandra Hospital, Shastri Park, Delhi-110053 by HC Tejpal 1585 PCR B-26. He had 'bruise on both lips with swelling'.
27. PW-2 SI Yogesh Kumar was posted in PS Bhajanpura. He had responded PCR call. He reached at Jag Parvesh Chandra Hospital, Shastri Park, Delhi and taken the complainant to PS Kashmere Gate. He deposed, as under:
"On the intervening night of 25/26.11.2013, I was posted as SI in PS Bhajan Pura. On that night, I was on Emergency Duty from 8.00 PM to 8.00 AM. On receipt of DD No. 4-A dated 26.11.2013, I reached at the post i.e. Ghamdi Road, where it was revealed that complainant was taken to Jag Parvesh Chandra Hospital.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 17 of 32 I went to the hospital and collected the MLC of complainant. On inquiries made by me, I came to know that the place of occurrence falls within the jurisdiction of PS Kashmere Gate i.e. ISBT Flyover. I and complainant reached at PS Kashmere Gate and got the DD entry in this regard at PS Kashmere Gate. The copy of the said DD entry was marked to SI Pawan Kumar for further inquiry / investigation. I along with SI Pawan Kumar and complainant reached at the spot i.e. ISBT Flyover where SI Pawan Kumar recorded the statement of the complainant and prepared the site plan at the instance of complainant. Thereafter, my statement was recorded by the IO SI Pawan at the spot and was relieved from the investigation."
28. It would be relevant to take note of cross- examination of PW-1 HC Harpal Singh, Duty Officer, PS Kashmere Gate, as under:
"I lodged DD No. 10A regarding arrival of SI Yogesh in PS Kashmere Gate in one minute only. Copy of the DD No. 10A is Ex.PW1/DA (Original seen and returned).....No call pertaining to this incident was made by PCR nor any telephonic message received from any police station in PS Kashmere Gate during my duty hours....."
APPRECIATION OF OCULAR EVIDENCE:
29. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence.
30. In Balu Sudam Khalde and Another vs. State of Maharashtra, 2023 SCC OnLine SC 355, Hon'ble Supreme Court of India held, as under:
"25. The appreciation of ocular evidence is a hard task. There is no fixed or straight-jacket formula for appreciation of the ocular evidence. The judicially evolved principles for appreciation of ocular evidence in a criminal case can be enumerated as under:
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 18 of 32 "I. While appreciating the evidence of a witness, the 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, it is undoubtedly 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 witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. II. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
III. When eye-witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
IV. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or 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.
V. Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. VI. By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 19 of 32 VII. Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
VIII. The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another.
IX. By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be human tape recorder.
X. In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person.
XI. Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
XII. A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub- conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him.
XIII. A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contradiction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness."
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 20 of 32 APPRECIATION OF EVIDENCE OF THE INJURED:
31. The complainant sustained injury in the incident. He was medically examined in Jag Parvesh Chandra Hospital, Shastri Park, Delhi-110053 at 12.30 a.m. on 26.11.2013, vide MLC Ex.PW5/A. He was found to have sustained 'bruise on both lips with swelling'. The complainant is an injured witness.
32. In Balu Sudam Khalde and Another vs. State of Maharashtra (supra), Hon'ble Supreme Court of India held, as under:
"26. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the Courts are required to be kept in mind:
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his depositions.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of injured witness has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly.
(d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 21 of 32 MODE OF ASSESSMENT OF EVIDENCE:
33. While appreciating the intrinsic worth of evidence, the Court must satisfy itself as to whether the evidence of the witness, if read in its entirety, has a ring of truth. The Court must consider whether the contradictions or inconsistencies in the evidence of the prosecution witnesses are trivial or material. The Court must consider the impact of such infirmities and defects of investigation upon the case of the prosecution. The law is not concerned with quantity of evidence but with quality of evidence. The Court while examining the evidence must assess the evidence on its record and not the evidence which is not on record or which could have been brought on record.
34. In Vadivelu Thevar & Anr. vs. State of Madras, AIR 1957 SC 614, Hon'ble Supreme Court of India held, as under:
"11.....Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
12. In the first category of proof, the court should have no difficulty in coming to its conclusion either way - it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial....."
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 22 of 32 ANALYSIS OF THE PROSECUTION EVIDENCE:
35. The complainant narrated the entire incident in graphic details. He categorically described roles of each of the accused persons. He identified the accused persons. He had no enmity against the accused persons. The defence has neither suggested nor demonstrated that the complainant had any reason to falsely implicate the accused persons. He passed the litmus test of cross-examination. His evidence remained intact since beginning till end without any dent. His evidence find material corroboration from his statement Ex.PW12/A and FIR Ex.PW1/A. He is also an injured witness. MLC Ex.PW5/A and DD No. 10A Ex.PW1/D1 also materially corroborated his evidence. PW-2 SI Yogesh Kumar also lent material corroboration to him. The defence could not erase sheen of his evidence. The contentions of the defence that the complainant did not place any proof of his residence in Bhajanpura or job interview in Jaipur, Rajasthan are confined to periphery of the case of the prosecution. The contentions that the complainant could not state registration number of the vehicle in which he commuted from Jaipur to ISBT, Kashmere Gate and absence of any bill pertaining to purchase of gold chain with pendent are not significant.
36. Delineating characteristics of a 'sterling witness' in Rai Sandeep alias Deepu vs. State (NCT of Delhi), (2012) 8 SCC 21, Hon'ble Supreme Court of India held, as under:
"22. In our considered opinion, the "sterling witness"
should be of a very high quality and calibre whose version should, therefore, be unassailable. The court considering the version of such witness should be in a position to accept it for its face value without any hesitation.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 23 of 32 To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged."
37. The evidence of the complainant is of sterling character. His evidence is 'wholly reliable'. Besides minor contradictions vis-a-vis other witnesses pertaining to the place of recording of his statement, time of departure or arrival of police officials, namely, PW-7 Ct. Pawan Kumar, PW-2 SI Yogesh Kumar etc., there is no infirmity in his evidence. FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 24 of 32
38. From the disclosure statement of the accused, namely, Adil Alam Khan Ex.PW7/D, the involvement of the accused persons, namely, Rizwan and Nadeem surfaced. The complainant identified the accused, namely, Nadeem in Test Identification Parade (TIP). However, the accused, namely, Rizwan refused to participate in Test Identification Parade (TIP). The complainant identified them before the Court.
39. The case FIR was lodged on 26.11.2013 at 04.30 a.m. i.e. within 4 hours from the time of the incident. There is no delay in registration of FIR. The case FIR was lodged promptly without leaving any space for fabrication and manipulation therein.
40. Inconsistencies, discrepancies, infirmities or contradictions in the statement of the prosecution witnesses and particularly, the complainant, PW-2 SI Yogesh Kumar and PW- 13 SI Pawan Kumar pertaining to mode of transportation of the police officials and the complainant, time of leaving of PW-2 SI Yogesh Kumar, non-identification of site plan Ex.PW12/B by the complainant etc., are not material and significant having tendency to affect the edifice of the case of the prosecution.
41. In Manoj and Others vs. State of Madhya Pradesh, (2023) 2 SCC 353, Hon'ble Supreme Court of India held, as under:
"183. The omission of some of the prosecution witnesses to mention a particular fact, or corroborate something, which is deposed to by other witnesses, therefore, does not ipso facto favour an accused. What is important, however, is whether the omission to depose about a fact is so fundamental that the prosecution version becomes shaky and incredulous....."
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 25 of 32
42. This Court does not find any merit in contention of Ld. Defence counsel that photographs of the accused persons were shown to the complainant. The complainant categorically denied that he was shown any photograph of any of the accused persons. The defence did not confront the Investigating Officer (PW-13) that he had shown photographs of the accused persons to the complainant. This contention without any substantial evidence would not be of any advantage to the defence.
43. There is no material on record to show that photographs of the accused persons were taken by the police before they were produced before Ld. Magistrates when the applications were fixed for Test Identification Parade (TIP).
44. PW-4 Sh. Pawan Singh Rajawat, Ld. MM conducted Test Identification Parade (TIP). He proved TIP proceedings qua the accused, namely, Nadeem Ex.PW4/C. The complainant identified the accused, namely, Nadeem in Test Identification Parade (TIP). The authenticity, credibility and correctness of TIP proceedings were not challenged by the defence.
45. PW-4 Sh. Pawan Singh Rajawat, Ld. MM categorically stated that he had given statutory warning to the accused, namely, Rizwan that an adverse inference would be drawn against him for his refusal to participate in Test Identification Parade (TIP). He stated that despite statutory warning, the accused, namely, Rizwan refused to participate in Test Identification Parade (TIP). Refusal to join Test Identification Parade (TIP) without any cogent reason is a strong corroborative circumstance against the accused, namely, Rizwan that the complainant would have identified him in Test Identification Parade (TIP).
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 26 of 32
46. In Suraj Pal vs. State of Haryana, (1995) 2 SCC 64, Hon'ble Supreme Court of India held, as under:
"15.....If the appellants in exercise of their own volition had chosen not to stand the test of identification without any reasonable cause, they did so on their own risk for which they cannot be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted, if it was otherwise found to be reliable."
47. On examination of evidence of PW-13 SI Pawan Kumar and PW-7 Ct. Pawan Kumar in the light of evidence of the complainant, there is sufficient evidence that the accused, namely, Adil Alam Khan was apprehended alongwith the said TSR. It is relevant to note that the said TSR is owned by none other than PW-9 Smt. Chaman Bano, mother of the accused, namely, Adil Alam Khan. Though she appeared as DW-1 also. However, her evidence as DW-1 is quite sketchy and general and without any substance therein. His disclosure statement led to the arrest of the accused persons, namely, Rizwan and Nadeem. Non- recovery of jewellery is not significant. Moreover, one of the accused persons is still at large. There is no serious infirmity or contradiction in the evidence of PW-13 SI Pawan Kumar and PW-7 Ct. Pawan Kumar. Though the recovery of amount and visiting card from the accused, namely, Adil Alam Khan and PAN card and Voter I card from the accused, namely, Rizwan are not material, however, it cannot dilute the impact of sterling evidence of the complainant qua the roles of each of the accused persons in commission of the offence.
DEFENCE CONTENTIONS:
48. Besides contentions already dealt above, the defence highlighted following contentions:
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 27 of 32
(a) Non-receipt of PCR call at PS Kashmere Gate:
49. As regards contention that PW-1 HC Harpal Singh, Duty Officer, PS Kashmere Gate admitted that no PCR call or message via telephone regarding the incident received in PS Kashmere Gate, it can be stated that PCR call was received within jurisdiction of North-East District whereas PS Kashmere Gate is within jurisdiction of Central received District.
(b) Non-production of DD No. 4A dated 26.11.2013:
50. As regards contention that the prosecution has not placed DD No. 4A dated 26.11.2013 pursuant to which PW-2 SI Yogesh Kumar reached at Ghamri Road, it can be stated that the said DD would have strengthened the case of the prosecution. However, its non-production is not lethal to the case of the prosecution. Otherwise, there is evidence that PW-2 SI Yogesh Kumar reached at Jag Parvesh Chandra Hospital, Shastri Park, Delhi and taken the complainant to PS Kashmere Gate. Moreover, the defence could have summoned the said DD No. 4A dated 26.11.2013, if it was so certain that no such DD No. 4A dated 26.11.2013 exists.
(c) Non-examination of constable accompanying PW-2 SI Yogesh Kumar:
51. As regards contention that the prosecution has not examined the constable who was accompanying PW-2 SI Yogesh Kumar, it can be stated that the said constable was never part of investigation of this case. PW-2 SI Yogesh Kumar categorically stated that the said constable did not join investigation of this case. The witnesses of the prosecution are the persons who are associated with the investigation of the case. Every person who come across during investigation is not relevant to the case.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 28 of 32
(d) Absence of names of passers-by by PW-2 SI Yogesh Kumar:
52. As regards contention that PW-2 SI Yogesh Kumar did not record names of passers-by who revealed that PCR Van had taken the complainant to Jag Parvesh Chandra Hospital, Shastri Park, Delhi, it can be stated that the said passers-by were not the witnesses to the offence. At that time, first priority of PW-2 SI Yogesh Kumar was to trace the complainant and enquire as to whether he was subjected to any cognizable offence or not.
(e) Absence of public witness to arrest and seizure:
53. The accused, namely, Adil Alam Khan was apprehended at about 06.00 a.m. from Faridabad Bus Stand, ISBT, Kashmere Gate. A bus stand is frequented by passengers waiting for buses for their destination. Such commuters or passengers are generally unwilling to be part of any investigation. Moreover, in the presence of the complainant, non- association of any public witness to arrest and seizure of the said TSR from the accused, namely, Adil Alam Khan is not significant. The complainant is a public witness. In his presence, there is no need to add any other public person as witness to arrest and seizure. There is no material on record that the complainant is not an independent witness or he is interested in the prosecution of the accused, namely, Adil Alam Khan.
(f) Improbability of presence of Adil Alam Khan on the same place after commission of offence:
54. Ld. Defence Counsel contended that it is highly improbable that the accused, namely, Adil Alam Khan alongwith TSR would return to the place of incident within 3-4 hrs. after commission of robbery.
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 29 of 32
55. This Court does not find any merit in this contention. Rather, it shows that the accused, namely, Adil Alam Khan and other accused persons are so desperate that they again returned to the same place of incident 3-4 hrs. after committing robbery.
56. Moreover, the accused persons did not anticipate that the complainant would inform the police and the police would respond to his call and police officials would be reaching at Faridabad Bus Stand, ISBT, Kashmere Gate for their search.
57. In Om Prakash & Anr. vs. State of Rajasthan, 1988 SCC (Cri) 696, Hon'ble Supreme Court of India dealt with a similar contention, as under:
"6.....The learned counsel for the appellant submitted that it was highly improbable that even after about an hour, the accused would have remained sitting in the car. The evidence discloses that the jeep in which Mohan Lal and Prabhunarain were chasing the accused overtook the car of the accused and went ahead to the police station. There is no material to show that the accused knew that they were being chased. They had, therefore, no reason to suspect that the jeep would go to the police station and the police would be informed. They have already travelled a distance of 23 kms, and they might have considered it safe to take a halt there. Therefore, they prosecution version cannot be said to be improbable....."
(g) Implication of Adil Alam Khan on account of similarity of his physical appearance with Sajid Khan, a BC of the area:
58. As regards contention that the accused,namely, Adil Alam Khan was implicated in this case as his physical appearance is similar to that of Sajid Khan, a BC of the area, it can be stated that PW-13 SI Pawan Kumar categorically denied this suggestion. Moreover, the complainant identified the accused, namely, Adil Alam Khan before the Court. 'Adil' alongwith TSR No. DL 1 RN 7518 is named in the complaint Ex.PW12/A. FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 30 of 32
59. Therefore, there is sufficient evidence that the accused persons robbed the complainant. The accused persons committed offence under Section 392/34 IPC
(b) Whether the accused persons committed offence under Section 394 read with Section 34 IPC?
60. The accused persons voluntarily caused 'simple' injury to the complainant at the time of committing robbery and therefore, they have committed an offence punishable under Section 394/34 IPC.
(c) Whether the accused, namely, Nadeem committed offence under Section 397 IPC?
61. Section 397 IPC would be applicable where the offender uses any deadly weapon, or causes grievous hurt to any person at the time of committing robbery. However, the complainant stated that he cannot say whether the accused, namely, Nadeem put a knife on his waist. He stated that the object was sharp edged. This statement is consistent with his initial statement Ex.PW12/A. Therefore, Section 397 IPC would not be attracted.
62. The prosecution succeeded in establishing charge under Section 394/34 IP against the accused persons. CONCLUSION:
63. Accordingly, the accused persons, namely, Adil Alam Khan, Nadeem @ Monta @ Banta and Raju @ Rizwan are convicted for offence punishable under Section 394/34 IPC.
Digitally signed by SANJAY SANJAY SHARMA
SHARMA Date:
2023.05.31
14:48:58 +0530
Announced in the open Court SANJAY SHARMA-II
on this 27th May, 2023 Addl. Sessions Judge-03 (Central)
Tis Hazari Courts, Delhi
FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 31 of 32
State vs. Adil Alam Khan & Ors.
CNR No.: DLCT01-001470-2014
SC No. 27851/2016
FIR No. 339/2013
Under Section 392/394/397/411/34 IPC
PS Kashmere Gate
27.05.2023
Present: Mr. Amit Dabas, Ld. Addl. PP for the State.
All the accused persons are present.
Vide separate judgment announced in the open Court, the accused persons, namely, Adil Alam Khan, Nadeem @ Monta @ Banta and Raju @ Rizwan are convicted for committing offence punishable under Section 394/34 IPC. A digitized copy of judgment be sent to Ld. Defence Counsel. As directed by Hon'ble High Court of Delhi in the case of Karan vs. State of NCT of Delhi, Crl. Appeal No. 352/2020 decided on 27.11.2020, the convicts are directed to state their paying capacity in the format prescribed as 'Annexure A' within 10 days. The State shall state expenses incurred by the prosecution on affidavit. Issue notice to SHO, PS Kashmere Gate to submit antecedents of the convicts. Issue notice to concerned Jail Superintendent to submit conduct report and nominal roll of the convicts. To come up for arguments on sentence on 07.06.2023. Digitally signed by SANJAY SANJAY SHARMA SHARMA Date:
2023.05.31 14:49:19 +0530 Sanjay Sharma-II ASJ-03, Central District Tis Hazari Courts, Delhi 27.05.2023 FIR No. 339/2013 State vs. Adil Alam Khan & Ors. Page No. 32 of 32