Delhi District Court
And Titled As Bhajju @ Karan Singh vs . State Of M.P. The Relevant on 16 May, 2015
IN THE COURT OF SH AJAY GUPTA: ADDITIONAL SESSION
JUDGE 4 (SHAHDARA), KARKARDOOMA COURTS , DELHI
SESSION CASE NO: 62/14
UID NO .: 02402R0262072011
FIR no : 240/11
P. S : Seelampur
u/s : 392/397/411/34 IPC
In the matter of:
State
Versus
Shahrukh @ Salman @ Mota
S/o Shan Mohammad
R/o E13, C23, Near Shadab Hotel
JBlock, New Seelampur, Delhi.
Date of argument : 06.04.2015
Date of order : 16.05.2015
Final Order : Convicted u/s 392/411 IPC
J U D G M E N T :
1.In nutshell, case of the prosecution is that complainant Mr. Javed Ahmed was doing the job of Computer Graphic Designer at Mohan FIR No. 240/11 State v. Sharukh @ Salman Page 1/20 Nagar, Ghazibad. On 02.07.2011, at about 9.30 p.m, the complainant came back from his work and was going to his home from Seelampur Metro Station and when he reached at Dharmapura Red Light, two boys suddenly came upto him, one on them tightly pressed his neck and the other one showed the complainant some sharp edged weapon and asked him to handover whatever he had. At that time the other boy pressed his neck more tightly due to which the complainant became unconscious. After sometime when the complainant regained consciousness, he found his mobile phone i.e. Nokia 5130, having sim no. 9911755655 and his wallet containing Rs.5000/, PNB ATM card and Metro Smart Card missing. Thereafter, on the complaint of complainant an FIR u/s 382/34 IPC was registered. After completion of investigation, the accused Shahrukh was charge sheeted in the case for the commission of offences 392/397/411/34 IPC. As per charge sheet the other accused Rocky could not be arrested.
2. After completion of the proceedings u/s 207 Cr.P.C, the present case was committed to the court of session for trial.
3. Vide order dt. 14.09.2011 two separate charges one u/s 392/397/34 IPC and another one u/s 411 IPC were framed against accused to FIR No. 240/11 State v. Sharukh @ Salman Page 2/20 which he pleaded not guilty and claimed trial.
4. Points which emerge for the determination of this case are:
1. Whether on 02.07.2011 at about 9.40 p.m. at G.T. Road, Near Dharampura Red Light, Delhi, accused Shahrukh and his associate Rocky(since not arrested) in furtherance of their common intention, robbed a mobile phone make Nokia 5130, having sim no. 9911755655 and a wallet containing Rs.5000/, PNB ATM card and Metro Smart Card from the complainant Mr. Javed Ahmed?
2. Whether at the time of committing robbery the accused Shahrukh was armed with an object which was similar to a sharp/pointed like weapon(a deadly weapon), and used it while committing robbery?
5. I have heard Mr. Maqsood Ahmed, Ld. Addl. Public Prosecutor as well as Sh. Gautam Pal, Ld. Legal Aid Counsel and perused the record. During the course of arguments, Ld. Addl. Public Prosecutor submitted that the prosecution has been able to prove its case against the accused beyond reasonable doubt through the testimonies of the prosecution witnesses, thus, he prayed that accused may be convicted for the offences charged with. He FIR No. 240/11 State v. Sharukh @ Salman Page 3/20 further submitted that complainant has properly identified the accused in the court as one of the offenders who committed robbery with him. He further submitted that the police officials have duly supported the prosecution case that at the instance of the complainant, the accused was apprehended on the next day of the incident and mobile phone of the complainant was recovered from the possession of the accused.
6. While ld. Legal aid counsel submitted that prosecution has failed to prove its case against the accused beyond reasonable doubt. Ld. defence counsel submitted that the testimony of the complainant cannot be not relied as he has made inconsistent statements. He submitted that in chief examination complainant identified the accused, however, in cross examination complainant changed his version and did not support the prosecution case and when complainant was reexamined by Ld. Addl. P.P. on the next date, he again supported the prosecution case. Ld. defence counsel submitted that complainant stated that he could not depose properly during his cross examination as he was threatened outside the court room, however, complainant has not proved any complaint in this regard. Ld. LAC also submitted that there are several material contradictions FIR No. 240/11 State v. Sharukh @ Salman Page 4/20 in the testimony of the police officials which also create doubt about the authenticity of the prosecution case. Thus, ld. LAC prayed that accused may be acquitted.
7. In order to establish accusations against the accused, prosecution examined seven witnesses. Brief outline of the testimonies of the prosecution witnesses is as under: (7.1) Sh. Javed Ahmed (PW1) is the complainant. PW1 deposed that on 02.07.2011, at about 9.30 p.m. he was coming back from his office and when he reached at Dharampura Red Light, two boys came up to him and one of them held his neck and pressed the same and other one showed him a sharp edged weapon like sua (ice breaker) and they threatened the him to hand over the articles which he had, else he would be killed. The boy who held the neck of the complainant pressed his neck with more pressure due to which complainant became unconscious and when complainant regained his consciousness he found his mobile phone make Nokia model no. 5130 and his wallet containing Rs. 5000/, PNB ATM card and Metro Smartcard FIR No. 240/11 State v. Sharukh @ Salman Page 5/20 missing. Thereafter, he called the police. HC Harswaroop came to the spot and recorded the statement of the complainant EX PW 1/A and got the FIR registered. He further deposed that on 03.07.2011 he alongwith IO SI Mukesh Kumar had gone to Seelampur Gurudwara for searching the accused persons where he saw one of the boys who had committed robbery with him at near Seelampur Gurudwara. The accused Sharukh was apprehended by the IO with the help of the constable. The mobile phone of the complainant was recovered from the possession of the accused which was seized by the IO vide seizure memo EX PW 1/E. The complainant properly identified the accused Sharukh @ Salman @ Mota to be the perpetrator of the offence. Complainant had got released the mobile on superdari which he produced during the evidence and the same was exhibited as EX PW 1/Article 1. Complainant had also placed on record the photographs of his mobile phone (EX PW 1/P1 to EX PW 1/P3). Complainant has further placed on record the various documents which were prepared by the IO and FIR No. 240/11 State v. Sharukh @ Salman Page 6/20 bears his signatures. The photocopy of the receipt of the mobile phone has been placed on record by the complainant as EX PW 1/A (it seems that inadvertently the complaint as well as the receipt of mobile phone have been given the same exhibit numbers). Complainant has further placed on record the seizure memo of the receipt (EX PW 1/B), arrest memo of the accused (EX PW 1/C) and personal search memo as (EX PW 1/D).
(7.2) Sh Surender Kumar, ( PW2) is the Asst. Nodal Officer of Idea Cellular Ltd. This witness was examined to proof that the mobile phone no. 9911755655 was allotted to the complainant. This witness has placed on record the application form (EX PW 2/B), the identity proof i.e. copy of driving license of the complainant (EX PW 2/C) and the copy of Email regarding the ownership of the said mobile number (EX PW 2/D) and call detail report (EX PW 2/A). This witness has also proved on record the certificate issued by him u/s 65 B of Evidence Act in regard to the CDRs of the mobile phone number of the complainant as EX PW 2/E. This witness deposed that the said mobile FIR No. 240/11 State v. Sharukh @ Salman Page 7/20 phone number stood in the name of complainant Mr. Javed Ahmed.
(7.3) HC Madan Mohan (PW3) is the D.O who registered the FIR in the present case and proved the copy of the FIR as EX PW 3/A and his endorsement on the rukka as EX PW 3/B. (7.4) HC Harswaroop (PW4) is the first IO of the case. He deposed that on 02.07.2011, on receipt of DD no. 30 A, he visited the spot alongwith Ct. Ishwar where he met the complainant who handed over him a written complaint upon which he made his endorsement (EX PW 4/A) and got the FIR registered through Ct. Ishwar. He prepared the site plan of the spot (EX PW 4/B). He deposed that he searched for the accused, however, accused could not be traced out and he came back to the PS. He deposed that on the next day, the further investigation of the case was transferred to SI Mukesh Kumar.
(7.5) Ct. Ishwar (PW5) is the member of the investigating team. This witness deposed that he did not remember the date and month but in the year 2011, he on the instructions FIR No. 240/11 State v. Sharukh @ Salman Page 8/20 of SI Mukesh had joined the investigation of the case and visited the Gurudwara where the complainant met them. The complainant informed them that accused had stolen his mobile phone and he alongwith IO caught the accused by chasing him. The mobile phone Nokia 5130 was recovered from the possession of the accused which was identified by the complainant and sealed and seized by the IO vide EX PW 1/A (The seizure memo is EX PW 1/E, however, it seems that due to typographical error EX PW 1/A has been mentioned instead of EX PW 1/E). This witness properly identified the accused as well as mobile phone which was recovered from the possession of the accused.
(7.6) SI Mukesh Kumar (PW6), is the second IO of the case. He deposed that on 03.07.2011, he was entrusted with the further investigation of the present case. On that day, he alongwith Ct. Ishwar, reached at Seelampur Mother Dairy Booth where complainant met them and handed over a photocopy of the mobile phone bill (EX PW 1/A) which he seized vide seizure memo (EX PW 1/B ).
FIR No. 240/11 State v. Sharukh @ Salman Page 9/20 Thereafter, all of them, went to near Seelampur Gurudwara where complainant pointed out towards a boy, thus, the IO with the help of Ct. Ishwar, apprehended the accused and from his formal search a mobile phone without SIM card and battery was recovered which was identified by the complainant. IO sealed the mobile phone with the seal of MK and took the same into possession vide seizure memo (EX PW 1/E). Thereafter, IO interrogated the accused and arrested him vide arrest memo EX PW 1/C and conducted his personal search (EX.PW1/D) and recorded the disclosure statement of accused (EX PW 6/A). The IO obtained the PC remand of the accused for tracing the other accused; however, the other accused could not be traced. IO recorded the statement of Sh. Harinder Singh, the owner of the shop of Satguru Teleworld from where the complainant had purchased the mobile phone. He also collected the certificate from the concerned Nodal Officer of the mobile Company. The IO also identified the mobile phone (EX PW 1/Article 1) which was recovered and seized during investigation.
FIR No. 240/11 State v. Sharukh @ Salman Page 10/20 (7.7) HC Narayan Singh (PW7) is the MHC(M) who deposed that on 03.07.2011 SI Mukesh Kumar deposited one sealed parcel with the seal of MK alongwith personal search articles of the accused. All the said articles were deposited by him in the malkhana and regarding this he made an entry in the register no. 19 at serial no. 3681. He produced the original register no. 19 and placed on record the photocopy of the relevant entry as EX PW 7/A. He further deposed that on 17.08.2011 the mobile phone was released on superdari to the complainant on the directions of the Court.
8. The complainant Mr. Javed Ahmed (PW1) has supported the prosecution case in all material particulars. In his deposition, complainant has brought on record the entire facts and circumstances as to how and in what manner the accused Shahrukh and his associate have committed robbery with him. In his testimony complainant has fully corroborated his original complaint and supported the prosecution case. Complainant has deposed that accused and his associate removed his mobile phone make Nokia 5130, having sim no. 9911755655 and a wallet containing Rs.5000/, FIR No. 240/11 State v. Sharukh @ Salman Page 11/20 PNB ATM card and Metro Smart Card when he became unconscious.
9. Complainant has further proved his complaint EXPW1/A upon which the FIR of the present case was registered. He has also proved that on 03.07.2011, he alongwith IO/SI Mukesh Kumar had gone to Seelampur Gurudwara where the accused Shahrukh was apprehended by the IO and the constable and his mobile phone was recovered from the possession of the accused. The complainant has also proved various documents which were prepared during investigation and bear his signatures at point A. The complainant has proved the photocopy of the receipt of mobile and its seizure memo as EXPW1/A and 1/B. He has also proved that the recovered mobile phone was seized by the IO vide seizure memo EXPW1/E and that accused was arrested vide EXPW1/C. All these documents bear the signature of the complainant at Point A. Complainant had got released his mobile phone on supredari and he produced the same during evidence which was exhibited as EXPW1/Article1. He also proved the photographs of his mobile phone as EXPW1/P1 to EXPW1/P3. It is not disputed during the cross examination of the complainant that the mobile which was recovered from the FIR No. 240/11 State v. Sharukh @ Salman Page 12/20 possession of the accused belongs to the complainant.
10.The statement of complainant PW1 has been duly supported and corroborated by the the IO/SI Mukesh Kumar (PW6). IO has deposed that he with the help of Ct. Ishwar apprehended the accused while he was present at near the Seelampur Gurudwara and the mobile phone of the complainant was recovered from the possession of the accused.
11.Ct. Ishwar (PW6) was also member of the investigating team who apprehended the accused. This witness has also supported the prosecution case in all material particulars, except about the exact date of the apprehension of the accused.
12.The statement of the accused was recorded under section 313 Crl.P.C. to explain the above detailed incriminating circumstances existing against the accused. The accused has claimed false implication; however, he has not mentioned any reason whatsoever, for his false implication. Accused has neither claimed enmity nor acquaintance either with the complainant or with the police officials; hence, there is no chance or reason of his false implication.
13.The prosecution witnesses were cross examined by ld. defence counsel, however, no material contradiction has surfaced on record FIR No. 240/11 State v. Sharukh @ Salman Page 13/20 to disbelieve or discredit their testimony. The contradictions which have emerged are insignificant and are insufficient to discredit the testimony of the prosecution witnesses.
14.Ld legal aid counsel submitted that the testimony of the complainant/PW1 is not reliable as he has not supported the prosecution case during his cross examination. Ld. LAC further submitted that the complainant has made inconsistent statements therefore his testimony is unworthy and unreliable. He also submitted that the testimony of PW5 and PW6 is also not reliable as they have made contradictory statements. Complainant/PW1 was initially examined on Dt.24.01.2012 but complainant was not cross examined on that day, thus, opportunity to cross examine the complainant was closed. On dt. 05.12.12, Ld. defence counsel moved an application u/s 311 Crl.P.C. seeking recalling of complainant for cross examination which was allowed and ld. defence counsel cross examined the complainant on 18.03.2013. The complainant changed his original version and did not support the prosecution case during his cross examination, thus, he was reexamined by ld. Addl. P.P. The part reexamination was conducted on the same day (18.03.2013) and his further reexamination was deferred for the next FIR No. 240/11 State v. Sharukh @ Salman Page 14/20 date. The complainant was further reexamined on 27.04.2013 and in his reexamination he again supported his original version wherein he had supported the prosecution case and had identified the accused as the perpetrator of the offence. Ld. Addl. P.P. also sought explanation from the complainant for changing his version during cross examination to which the complainant answered as under:-
"I was threatened by two persons outside the court on 18.03.2013 when my cross- examination was recorded and due to terror, I changed my version in my cross- examination but my chief-examination is correct. Vol. On the last date, I could not depose this fact before the court as I was badly threatened by those two persons who had threatened me that if I will depose against accused Shahrukh, they will kill me as soon as I will come out of the court. I pray for my security from the hon'ble court. I am mentally disturbed and have sent my wife and child out of Delhi due to terror."
15.It is clear from the reexamination of the complainant that he changed his version due to threats received by him. Complainant was again cross examined by ld. defence counsel. During his cross examination complainant was asked if he had lodged any complaint against those persons who threatened him. Complainant stated that FIR No. 240/11 State v. Sharukh @ Salman Page 15/20 he did not lodge any complaint as he was frightened. It is clear that on the day of his reexamination complainant made a complaint to the court about the threats and court directed the concerned DCP and SHO to provide security to the complainant. Ld. LAC submitted that complainant did not lodge any complaint thus; his version about the threats cannot be accepted. Complainant has not proved any complaint on record, however, his version regarding receiving of threats cannot be disbelieved only for his nonlodging a complaint as no other reason for complainant's changing his version during his cross examination, has come on record. A witness who has properly supported the prosecution case during his chiefexamination would not completely change his version in his cross examination on the material aspects, unless he is won over or threatened. Thus, under these circumstances, it can be very will assumed, that complainant changed his version only because of threats.
16.The reason for the inconsistent statements of the complainant has come on record, as such, his testimony is reliable. The complainant of the present case cannot be termed as a hostile witness but even if he is termed as a hostile witness, yet his entire testimony cannot be discarded and in view of the settled law, the part of his testimony FIR No. 240/11 State v. Sharukh @ Salman Page 16/20 where he has supported the prosecution case can be relied and accused can be convicted on the basis of the same. In this regard this court is supported by the case law reported as 2012(4) SCC 327 and titled as Bhajju @ Karan Singh Vs. State of M.P. The relevant portion of this order reads as under: "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 cross-examined can also be relied upon by the prosecution."
17.Thus, in view of the law laid down by Hon'ble Supreme Court, the chief examination of the complainant is reliable as complainant has fully supported the prosecution case during his examination in chief. The complainant has corroborated his complaint on all the material points regarding the identification of the accused and the complicity of the accused in the offence as well as the manner in which the complainant was robbed by the accused with his associate.
18.Ld. legal aid counsel has further submitted that the PW5 and PW6, FIR No. 240/11 State v. Sharukh @ Salman Page 17/20 the police officials have made contradictory statements in regard to the date and manner of apprehension of the accused. Ld. defence counsel further pointed out that as per arrest memo the information of the arrest of the accused was given to his mother while during cross examination, PW5 stated that information was given to the wife of the accused. This court is of the considered opinion that the aforementioned facts pointed by the ld. defence counsel do not amount to a material contradictions and could be said to be only a slight variation which doesn't affects the credibility of the statements of the prosecution witnesses. Furthermore, a witness is not supposed to depose about the facts of the case in verbatim and slight variations are bound to happen due to the lapse of time
19.In view of the aforesaid discussions, it is held that prosecution has successfully established the charges against the accused that accused alongwith his associate committed robbery and the mobile phone of the complainant was recovered from the possession of the accused. The accused committed robbery, as such, he is held guilty under section 392 IPC. Since the weapon of the offence has not been recovered therefore, it cannot be said whether the same was a deadly weapon in terms of section 397 IPC and therefore, accused FIR No. 240/11 State v. Sharukh @ Salman Page 18/20 cannot be convicted for the offence under section 397 IPC. In this regard this court is supported by judgment of Hon'ble High Court in the case of Crl.A.515/2010 Gulab @ Bablu v. The State (NCT of Delhi). The relevant portion of the said case is reproduced as under: "9. In Charan Singh v. The State', 1988 Crl. L.J. NOC 28 (Delhi), Single Judge has held as under:-
At the time of committing dacoity one of the offenders caused injury by knife on the hand of the victim but the said knife was not recovered. In order to bring home a charge under Section 397, the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved by the prosecution that the knife use by the accused was a deadly weapon. In the absence of such an evidence and particularly, the non-recovery of the weapon would certainly bring the case out of the ambit of Section 397. The accused could be convicted under Section 392."
20.As such, in view of the law laid down by Hon'ble High Court, the accused cannot be convicted for the offence under section 397 IPC;
accordingly he is acquitted of the charges of section 397 IPC. Since, the mobile phone of the complainant was recovered from the possession of the accused, therefore, he is also held guilty under FIR No. 240/11 State v. Sharukh @ Salman Page 19/20 section 411 IPC.
21.Accordingly, accused is held guilty and convicted for committing offences under section 392/411 IPC.
( AJAY GUPTA ) ASJ04/Shahdara/KKD Delhi.
(Announced in open court on 16.05.2015) FIR No. 240/11 State v. Sharukh @ Salman Page 20/20