Delhi District Court
Sc No. 116/11 State vs Majid @ Majju Etc. Page No. 1 Of 21 on 20 December, 2013
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02406R0203852011
SESSIONS CASE NO. 116/11
FIR NO. 116/11
POLICE STATION : H.N. DIN
UNDER SECTION : 392/397/34 IPC
STATE
VERSUS
1 MAJID @ MAJJU,
S/O SH. FAYUDDIN,
R/O H.NO. 1286, RAKABGANJ, DELHI.
2 ASHIQ @ ASHU @ ASIF
S/O HASIM
R/O H.NO. 1934, SUAI WALAN, GALI PATTE WALI,
TURKMAN GATE, DELHI.
DATE OF INSTITUTION : 04.08.2011.
DATE OF RESERVING ORDER : 21.10.2013.
DATE OF DECISION : 20.12.2013.
J U D G M E N T
Case of Prosecution:
1 On 06.05.2011 SI Ajeet Kumar after receiving DD NO. 8A reached at the spot near Lodhi Road Flyover along with Ct. Radha SC No. 116/11 State Vs Majid @ Majju etc. Page No. 1 of 21 Krishnan and Ct. Aneesh. At the spot many people were gathered and witness/complainant Deepak along with other people were holding Ashiq @ Ashu. Meanwhile, PCR Van reached there and witness/complainant Deepak produced Motor cycle No. 7S AY 7637 of make Hero Honda Glamour, Color Black red and knife. Motor Cycle was handed over to Ct.
Radha Krishnan at the spot and SI Ajeet Kumar along with Ct. Aneesh reached AIIMS Trauma Center where they met complainant and recorded his statement wherein he stated that due to some office work he had gone to MCD Kiosk Information Booth, near Sheela Cinema, Paharganj by his red color Pulsar Motorcycle and was returning from there. When he reached at the Lodhi Road Flyover at about 2.30 PM all of a sudden a motorcycle upon which two persons were travelling overtook him and signalled him to stop. They stopped their bike in front of his bike. They came down and asked him the way to Bhogal. In between one of them removed the key of his bike and the person who was driving the bike took out a knife and put on him and intimidated him not to raise alarm. The pillion rider who had snatched the key of his bike handed over the key to the driver of the said bike from the back side and removed his purse from the back pocket and also took out mobile phone which was kept in the front right pocket of his pant. The accused who had removed his purse and mobile, started his motorcycle and ran away from the spot. The other accused who was the driver of the said bike was still pointing the knife on him and continued to intimidate him not to raise alarm or to leave his place. Thereafter, the said accused also started his own bike and was going from the spot. By that time, he caught hold of his bike from the back side and made him laid on the ground. He sought help from the cars SC No. 116/11 State Vs Majid @ Majju etc. Page No. 2 of 21 approaching from the back side but nobody stopped for the help. The knife which the accused was carrying also fell on the ground and while he was lifting the knife he caught hold of his hand and in the process of scuffling and snatching the knife the accused sustained injuries on his left hand and he snatched the knife from the accused. By that time, one DTC bus stopped there and the passengers of the said bus came to his rescue. He with the help of the other persons apprehended the accused. Somebody from the public made a call at 100 number. The PCR came there and he handed over the accused along with the recovered knife to the police. On the statement of complainant, case was registered. SI Ajeet Kumar reached at Trauma Center AIIMS where SI Kuldeep along with complainant Deepak Kumar and accused Ashiq @ Ashu were present for their medical examination. Accused Ashiq @ Ashu was interrogated by the police and accused was arrested. Arrest memo and Personal search memo were prepared by the police. Thereafter, at the instance of accused Ashiq @ Ashu SI Ajeet Kumar reached at the house of accused Ashiq @ Ashu and arrested the other coaccused Majid @ Majju. Accused Majid @ Majju was was produced before the Magistrate for TIP proceedings. Accused refused for the same. Motorcycle No. DL 7S AY 7637 was handed over on Superdari to the owner namely Sh. Mahtooj Ali. Section 397 IPC was added in the charge sheet. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 394/397/34 IPC and 27/54/59 Arms Act was filed against both the accused persons in the court.
2 Since the offence under Section 397/394/34 IPC and SC No. 116/11 State Vs Majid @ Majju etc. Page No. 3 of 21 27/54/59 Arms Act is exclusively triable by the Court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
Charge against the accused persons: 3 Prima facie case under section 397/394/34 IPC was made out against both the accused persons. Charge under Section 397/394/34 IPC was framed upon both the accused persons by my Ld. Predecessor vide order dated 09.01.2012 to which they pleaded not guilty and claimed trial. Witnesses Examined: 4 In support of its case, prosecution has examined eight witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses: 5 PW1 Sh. Deepak Singh who deposed that in the year 2011 he was working as Zonal Officer in Zeva Engineering and Management Services Pvt. Ltd. at Mandi Road, Mehrauli. On 06.05.2011 he had gone to MCD Kiosk Information Booth, near Sheela Cinema, Paharganj by his red color Pulsar Motorcycle bearing number DL 3S BK 0189 and was returning from there. He was coming via Zoo/Sunder Nagar Road and when he reached at the Lodhi Road Flyover at about 2.30 PM all of a sudden a motorcycle upon which two persons were travelling overtook him and signalled him to stop. They stopped their bike in front of his bike. They came down and asked him the way to Bhogal. In between one of them removed the key of his bike and the person who was driving the bike took out a knife and put on him and intimidated him not to raise SC No. 116/11 State Vs Majid @ Majju etc. Page No. 4 of 21 alarm. The pillion rider who had snatched the key of his bike handed over the key to the driver of the said bike from the back side and removed his purse from the back pocket and also took out mobile phone which was kept in the front right pocket of his pant. The accused who had removed his purse and mobile, started his motorcycle and ran away from the spot. The other accused who was the driver of the said bike was still pointing the knife on him and continued to intimidate him not to raise alarm or to leave his place. Thereafter, they said accused also started his own bike and was going from the spot. By that time, he caught hold his bike from the back side and made him laid on the ground. He sought help from the cars approaching from the back side but nobody stopped for the help. The knife which the accused was carrying also fell on the ground and while he was lifting the knife he caught hold of his hand and in the process of scuffling and snatching the knife the accused sustained injuries on his left hand and he snatched the knife from the accused. By that time, one DTC bus stopped there and the passengers of the said bus came to his rescue. He with the help of the other persons apprehended the accused. Somebody from the public made a call at 100 number. The PCR came there and he handed over the accused along with the recovered knife to the police. His statement was recorded by the police. Witness pointed out towards accused who tells his name as Asif Ali. Witness stated that he was the driver of the said motorcycle and was apprehended at the spot. The witness pointed out towards other accused who tells his name as Majid. The witness submits that the said accused had removed his purse and mobile phone and ran away from the spot along with the motorcycle of the complainant. Accused persons were correctly identified by the SC No. 116/11 State Vs Majid @ Majju etc. Page No. 5 of 21 accused. Witness stated that in his purse he was containing ATM Debit Cards, Credit Cards, Pan Card, Driving License and some cash. Police had taken into possession the knife and motorcycle of the accused persons vide seizure memo Ex.PW1/B and Ex.PW1/C. He obtained his articles on Supardari vide Ex.PW1/D. Witness has correctly identified the knife. Photocopy of the purse which was part of the judicial record is shown to the witness which the witness has correctly identified. Witness had produced the ATM/Debit Card/Credit Cards Ex.P3 collectively, mobile phone Ex.P4 and the motorcycle obtained by him on superdari Ex.P5. Superdar Mehfooz Ali had produced the motorbike of the accused persons which was duly identified by the witness. 6 PW2 is Sh. Ranu Mishra who deposed that he is working as Driver in DTC bus. On 06.05.2011 he was coming back to his home at about 2 PM. When in the bus he was travelling was coming down from Lodi Flyover at about 2.30 PM he saw one person pulling the motorcycle and another person on the motorcycle was having a knife and was intimidating the person pulling the bike. He got stopped the bus and he along with some persons came down and apprehended the accused on motorcycle with the knife. They came to know the name of person who was pulling the motorbike as Deepak and name of person who was on motorcycle with knife as Ashiq Ali. Sh. Deepak was raising alarm to catch the accused and was saying that coaccused had taken his motorbike. He and other public persons including Deepak apprehended the accused Ashiq Ali and snatched the knife from his hand. In the process of taking the knife from the accused Ashiq Ali, accused sustained injuries and was bleeding. By that time, PCR Van came there and they SC No. 116/11 State Vs Majid @ Majju etc. Page No. 6 of 21 handed over the accused and the knife to the police. He identified the accused in the court. Witness had proved memos Ex.PW1/B and Ex.PW1/C on record.
7 PW7 is SI Kuldeep Kumar who deposed that on 06.05.2011 on receiving DD No. 8A he along with Ct. Anis and Ct. Radha Krishnan reached at the spot where 4/5 persons including the complainant Sh. Deepak Singh met them. They had apprehended the accused who told his name as Ashiq @ Ashu. Complainant produced the accused as well as knife to him. PCR Van also arrived by that time. Leaving Ct. Radha Krishnan on the spot for taking care of motorcycle Hero Honda Glamor which was found at the spot, he along with Ct. Anis went to AIIMS Trauma Center where the injured/complainant Deepak Singh was declared fit for statement. He recorded his statement , prepared the sketch of knife, prepared the pullanda of the knife. Ct. Anis was sent to police station for registration of FIR. Thereafter, further investigation of the case was handed over to SI Ajeet Kumar and all the documents were handed over to SI Ajeet Kumar. Thereafter he along with SI Ajeet Kumar, Ct. Anis the complainant and the accused came to the spot where SI Ajeet Kumar prepared the site plan at the instance of complainant. Accused Ashiq was arrested by the IO. Personal search memo was made and disclosure statement of accused was recorded. Seizure memo of motorcycle Hero Honda Glamor. At the instance of accused Ashiq, co accused Majid @ Majju was arrested from his house who led them to the place of occurrence where the IO prepared the pointing out memo Ex.PW7/G. Accused made a disclosure statement Ex.PW7/H and accused Majid @ Majju also got recovered the motorcycle bearing SC No. 116/11 State Vs Majid @ Majju etc. Page No. 7 of 21 number DL 3S BK 0189 from the back side of House No. H19 & H22. IO prepared the seizure memo Ex.PW7/I. Accused Majid @ Majju also got recovered the mobile phone and the purse of complainant. All the exhibits P1, Ex.P2 , Ex.P4, Ex.P5, Ex.P6 and other exhibits are duly identified by the witness.
8 PW8 is SI Ajeet Kumar , Investigating officer who deposed that on 06.05.2011 he was entrusted with the investigation of the case. He along with Ct. Anis reached at Trauma Center where SI Kuldeep, complainant, accused Ashiq met them. SI Kuldeep handed over him one pullanda duly sealed with the seal of KK containing knife, seizure memo of the knife and the sketch of the knife. SI Kuldeep also briefed him about the case. He along with Ct. Anis, SI Kuldeep , complainant along with accused came back to spot where Ct. Radha Krishan met them. He prepared the site plan Ex.PW8/A. He interrogated the accused Ashiq and arrested him vide memo Ex.PW7/F. Formal Witnesses: 9 PW3 is HC Shobha who deposed that on 06.05.2011 she was posted as duty officer at police station H.N.Din from 9 AM to 5 PM. On that day, upon receipt of rukka mark X through Ct. Anish she recorded formal FIR. The computerized print out of the FIR is Ex.PW3/A. After registration of FIR she handed over the copy of FIR and original rukka to Ct. Anish. Endorsement on rukka Ex.PW3/B is duly proved by the witness on record.
10 PW4 is Ct. Anis Ahmed who deposed that on 06.05.2011 he was posted as constable at police station H.N. Din and on receipt of DD SC No. 116/11 State Vs Majid @ Majju etc. Page No. 8 of 21 No .8A he along with ASI Kuldeep Singh reached at the spot where the complainant with the help of other public persons had already apprehended the accused who told his name as Ashiq. The PCR van was also stationed there. Complainant Deepak produced the motorcycle and the knife recovered from the accused Ashiq to the Investigating officer. Complainant Deepak and accused Ashiq were sent to Trauma Center AIIMS by PCR. He along with IO ASI Kuldeep also went to Truma Center AIIMS . The IO prepared the sketch of the recovered knife and recorded the statement of complainant Deepak and prepared rukka and handed over the same to me for registration of FIR. After registration of FIR he handed over the copy of FIR and rukka back to Investigating officer. IO recorded his statement. Accused Ashiq is duly identified by the witness in the court. The weapon i.e. knife and motorcycle of accused Ashiq was also identified by the witness in the court. 11 PW5 is Ct. Meva Ram who deposed that on 07.05.2011 he had joined the investigation of the case with the Investigating officer. He along with IO/SI Ajeet Kumar , SI Kuldeep and accused Ashiq had gone to the house of accused Majid at Rakabganj where at the pointing out of accused Ashiq the coaccused Majid @ Majju was apprehended. Accused Majid was arrested. His personal search memo was prepared. Disclosure statement was recorded by the IO. Accused Majid led them to Lajpat Nagar and point out the place of occurrence and also pointed out the place from where motorcycle bearing number DL 3S BK 0189 was recovered. Accused Majid also led them to his house from where he got recovered the mobile phone and the purse which was taken into possesion by the IO. Accused was identified by the witness. Photographs of the SC No. 116/11 State Vs Majid @ Majju etc. Page No. 9 of 21 case property i.e the purse, mobile phone and motorcycle bearing number DL 3S BK 0189 are on record proved by the witness as Ex.P2, Ex.P4 and Ex.P7.
12 PW6 is HC Radha Krishan who deposed that on 06.05.2011 upon receipt of DD No.8A he alongwith ASI Kuldeep reached at the spot i.e. Lodhi Road near the flyover where a number of persons had gathered where one person namely Sh. Deepak had apprehended the accused whose name he came to know as Ashiq Ali with the help of public person and had snatched a knife from his hand. One Hero Honda Pulsar Motorcycle DL 7S AY 7637 was also stationed there. The PCR Van also came there. Sh. Deepak handed over the recovered knife along with the accused Ashiq to IO. PCR Van removed injured Deepak and accused Ashiq Ali to AIIMS Trauma Center. Leaving him at the spot, ASI Kuldeep and Ct. Anish went to Trauma Center AIIMS. SI Kuldeep had also taken into possession the recovered knife and motorcycle at the spot. Further investigation was assigned to ASI Ajeet Kumar after registration of the case. ASI Ajeet Kumar had arrested the accused Ashiq and recorded his disclosure statement. IO recorded the statement of PW6 who identified the accused in the court. Sealed parcel containing knife Ex.P1 and photographs of the motorcycle DL 7S AY 7637 Ex.P6 is also shown to the witness who identified the same.
13 PW6 is Ms. Mona Tardi Kerketta, Metropolitan Magistrate who conducted the TIP proceedings of accused Majid @ Majju and duly proved on record the Ex.PW6/A to Ex.PW6/D. PW6 is inadvertently recorded as PW6 instead of PW7.
Statement and Defence of accused persons : SC No. 116/11 State Vs Majid @ Majju etc. Page No. 10 of 21 14 Statement of accused persons under section 313 Cr.P.C was recorded wherein accused Majid has stated that he has been falsely implicated in the present case. He was lifted from his house in the night and the recovery was planted upon him. Nothing was recovered from his possession. Police took his signatures on blank papers. Accused Ashiq has stated that on the said day he was going on his bike to his brother to Sarita Vihar. Due to his wrong driving, his bike touched the bike of the complainant who came and started fighting and beating him and took out a knife and tried to gave a knife blow at his stomach which was saved by him by his hand resulting in injuries to his two fingers of left hand. The crowd gathered at the spot. Police reached and took him to the AIIMS Hospital. Thereafter, two police officials of PS Nizamuddin and one police official from Chandi Mahal gone to his house, inquired about the bike and informed her that he has met with an accident and also told her that after completing formalities they will leave him. Her mother reached at the police station by which time he had not returned from AIIMS Hospital. She returned to her house after getting assurance from the police that he will be freed after completion of formalities. He has stated that he has been falsely implicated.
Arguments of Ld. APP for state: 15 Ld. APP for state has argued that the testimony of PW1 Complainant is intact and is corroborated by PW2, independent witness. The medical evidence also supports the version of the complainant. Both the accused and the case property are duly identified. Accused Ashiq was apprehended red handed from the spot and the case property was SC No. 116/11 State Vs Majid @ Majju etc. Page No. 11 of 21 recovered from the coaccused. How the accused got injuries is well explained by the complainant. The motorcycle was recovered at the instance of accused Majid @ Majju from the place which was in the exclusive knowledge of the accused for which there is no sufficient explanation. It is stated that both the accused have refused to join the TIP. Use of knife is also admitted during the quarrel as per the defence of the accused Ashiq. Hence it is prayed that both the accused be convicted. Arguments of Ld. Defence Counsel for accused persons: 16 On the other hand, Ld. Defence counsel on behalf of accused Majid has argued that he has been arrested only on the basis of disclosure statement. The recovery has been planted upon him. It is stated that he was arrested when he was sleeping in his house and falsely implicated.
So far as accused Ashiq is concerned it is argued that there are discrepancines in the statement of the complainant with regard to the threat "Jo kuch hai nikal de" which is not stated in the court. It is stated that the FIR in this case was recorded at 4.50 PM. It is stated that DD entry is made at 2.50 PM. PW4 states that he reached at the spot at about 02.30 PM, then how can it be possible. It is stated that the complainant remained present till night in the police station and the knife was also there hence there is no possibility that its seizure was made at the spot. It is stated that no MLC of complainant was there. The number of motorcycle of the accused came in the statement of the complainant though he states that cello tape was fixed on the number plate. This makes his testimony doubtful because as per the cross examination of the complainant PW1 he saw the number of motorcycle only in the police SC No. 116/11 State Vs Majid @ Majju etc. Page No. 12 of 21 station. Knife was also shown to him in the police station. He could not tell the brand name of the knife. There are discrepancies in the statement of PW4 and PW6 as to the spot where the knife was sealed. Hence, it is prayed that seeing these discrepancies accused Ashiq is liable to be acquitted.
17 I have heard Ld. Defence counsel for accused as well as Ld. APP for state and have carefully perused the record. Conclusion: 18 To prove the offence under section 394 IPC the prosecution has to prove that if any person in committing or in attempting to commit robbery voluntarily causes hurt such person and any other jointly concerned in committing or attempting to committing of such robbery shall be punished with imprisonment for life and shall be guilty of section punished under section 394 IPC.
19 To prove an offence under Section 392 IPC, the prosecution has to prove the essential ingredients:
1) Accused committed theft as defined in Sec.378 in the process;
a) Accused caused or attempted to cause to some persons
(i) death, hurt or wrongful restraint.
(ii) fear of death or of instant hurt or instant wrongful restraint;
b) Accused did either act
(i) in committing such theft, or
(ii) in order to commit theft, or SC No. 116/11 State Vs Majid @ Majju etc. Page No. 13 of 21
(iii) in carrying away or attempting to carry away the property obtained by such theft.
2) Accused committed extortion if at the time of committing the same :
(i) He is in the presence of the person put in fear and;
(ii) by putting that person in fear of death or of instant hurt or instant wrongful restraint to that person or to some other person;
(iii) and by so putting in fear induces him to deliver up the thing extorted.
3) Accused acted voluntarily. 20 Similarly, for proving an offence under Section 397 IPC, the
prosecution has to prove the following ingredients:
(a) Robbery or dacoity is committed.
(b) At the time of committing robbery or dacoity the offender
(i) uses any deadly weapon, or
(ii) causes grievous hurt to any person, or
(iii) attempts to cause death or grievous hurt to any person. 21 The court while evaluating facts of the case is supposed to form opinion about the credibility of the witness examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion about the credibility of the witness.For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross SC No. 116/11 State Vs Majid @ Majju etc. Page No. 14 of 21 examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which the evidence of a witness can be termed unreliable:
a) the witness statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
22 The key witness in this case is the complainant PW1 himself and the other independent eye witness PW2 Sh. Ranu Mishra. As per the statement of the complainant when he was returning on 06.05.2011 on his motorcycle DL 3S BK 0189 and reached at Lodhi Road Flyover at about 2.30 PM, two persons on a motorcycle, signalled him to stop and they stopped their bike in front of his bike, came down from the bike and asked the way to Bhogal. The complainant also came down from his bike and by that time one of those persons removed the keys from his bike and the person who was driving the bike took out a knife and put on him and intimidated him not to raise alarm. As per PW1 the pillion rider who had snatched keys of his bike handed over the keys to the driver of said bike from back side, removed his purse from the back pocket, took out his mobile phone which was kept in the front right pocket of his pant, started SC No. 116/11 State Vs Majid @ Majju etc. Page No. 15 of 21 his motorcycle and ran away from the spot. The other accused who was the driver of the said bike was still pointing the knife on him and continued to intimidate him not to raise alarm or to leave the place. The said accused also started his bike and when he was trying to leave the spot the complainant caught hold of his bike from the back side, made him laid on the ground and sought help from others. The knife also fell on the ground and while accused was lifting the knife complainant caught hold of his hand and in the process of scuffle and snatching the knife the accused sustained injuries on his left hand but the complainant snatched the knife from him. By that time, one DTC bus approaching from the side of Sunder Nagar stopped there and the passengers of the said bus came to his rescue. One of the witness was Sh. Ranu Mishra, PW2 with whose help and with the help of others persons, he apprehended the accused, somebody called the police and the accused along with knife was handed over to the police. PW1 has identified accused Ashiq @ Asif @ Ashu as the person who was driving the said motorcycle, put knife on him and was apprehended at the spot with his bike and knife and accused Majid as the person who removed his purse, mobile phone and ran away from the spot along with motorcycle. The witness PW1 has duly identified the case property i.e. Purse, Debit Card, PAN Card, Driving License, Motorcycle which was later recovered from coaccused Majid @ Majju who was arrested at the instance of accused Ashiq.He has also identified knife,the bike of the accused. On the similar lines is the statement of PW2 Ranu Mishra specifying the role of accused Ashiq who has also identified the accused . The testimony of PW1 is duly corroborated by the statement of independent witness PW2 in this case.
SC No. 116/11 State Vs Majid @ Majju etc. Page No. 16 of 21 23 In the present case, Ld. counsel for the accused persons has argued that there are discrepancies in the statement of the police officials with regard to the time in registering of the DD entry number 8A and in their reaching to the spot. PW4 Ct. Anis Ahmed had stated that they had reached the spot at about 2.30 PM though the FIR was registered at about 2.50 PM. Similarly, there is difference in the statement of police officials PW4 and PW6 with regard to place where the knife was sealed. It is a common knowledge that human memory is fallible and fades away by the passage of time. The minor discrepancies in the statement of witnesses who are the formal witnesses cannot shake the veracity of the statement of eye witnesses with whom, admittedly, there was no previous enmity with the accused.
24 The minor discrepancies in the statement of the police officials with regard to the preparation of the seizure memo of knife etc. or with regard to the bearing of motorcycle number in the seizure memos cannot shake the testimony of PW1 and PW2 which are reliable. How the accused got injuries in the school is also very well explained by PW1 complainant in his statement before the court. Accused Majid had refused to join TIP without any sufficient explanation. PW1 complainant has specifically stated that his statement was recorded at the police station. He has also stated that he had seen the knife and motorcycle in the police station. Hence mentioning of the registration number of the motorcycle in the statement of the complainant does not create any doubt since at the police station the cello tape on the registration number of the motorcycle of the accused must have been removed. Hence, from the statement of the complainant and the eye witness, the prosecution has duly proved that SC No. 116/11 State Vs Majid @ Majju etc. Page No. 17 of 21 both the accused in furtherance of their common intention had committed robbery.
25 So far as the offence under section 394 IPC is concerned, the prosecution is required to prove that the accused persons while committing robbery had caused hurt. However, in the present case no medical evidence of the complainant is placed on record to show that he had got injuries in the incident. Moreover, PW1 nowhere stated in his statement before the court that he had sustained injuries. Rather he has deposed that while he was in the process of snatching the knife from accused Ashiq, accused Ashiq got injuries. Hence, in the absence of the medical evidence or the MLC of the complainant and in the absence of the statement of the complainant that he got injuries in the incident, the ingredients of the offence under section 394 IPC are not proved against the accused persons.
26 So far as the offence under section 397 IPC is concerned it is settled law that only the accused who had actually used the deadly weapon in the commission of offence of robbery can be punished under section 397 IPC. From the statement of the complainant it is also proved that accused Ashiq had used a deadly weapon i.e. Knife which was recovered from his possession when he was apprehended red handed on the spot. The said knife is placed on record and duly identified by the complainant as well as other eye witness. The knife is a deadly weapon. Hence, it is also proved from the statement of the complainant duly supported by the independent eye witness that accused Ashiq had used the knife while committing robbery upon the complainant. Defence of the accused persons: SC No. 116/11 State Vs Majid @ Majju etc. Page No. 18 of 21 27 As per the defence of the accused Ashiq on the said day he was going on his motorcycle. His motorcycle had hit motorcycle of the complainant who had started quarreling with him and took out a knife and tried to give blow at his stomach which was saved by him by his hand and due to which he received injuries on two fingers. Crowd was gathered at the spot and and he was taken to the hospital. It was also stated by him that the police officials from the police station has gone to his house and enquired about the bike and knife from his mother and stated that the accused has met with an accident and that after completing the formalities they will leave him. But they did not leave him. After making enquiries his mother also left for the house. To prove this, the accused has examined his mother as DW1. Mother of the accused is certainly an interested witness. She is not an eye witness of the incident. Her statement is only supportive of the fact that the police came to her house and informed her that the accused is admitted in the hospital and that they will send him to the house in late night after concluding procedural formalities. She has stated that motorcycle of his son was parked in the police station when she reached there. The statement of the witness does not go to prove that the accused was not involved in the incident. Rather, her statement corroborates the fact that after the arrest of the accused the police officials had visited her house to inform about the accused to her of his hospitalization. As per the defence of the accused several persons have gathered at the spot. This defence also corroborates the presence of PW2 Ranu Mishra and independent witness on the spot. The said witness had not stated that it was the complainant who was trying to hit the accused with the knife. The defence as put forth by the accused Ashiq is not at all SC No. 116/11 State Vs Majid @ Majju etc. Page No. 19 of 21 supported by the statement of PW2 who is an independent witness rather statement of complainant duly corroborated by PW2.
Similarly, accused Majid has put the defence that he was sleeping in his house and was taken away by the police and falsely implicated in this case and the recovery is planted upon him. His wife is a witness as DW2 to support this factum that the police had taken away the accused from the house. DW2 is also an interested witness and his testimony is to be scrutinized carefully. The accused has been duly identified by the complainant. It is not the case of the accused that the complainant was on enmical terms with him. Police officials had proved arrest of coaccused Majid@ Majju at the instance of accused Ashiq. The recovery of Purse, Debit Card, Driving license etc. belonging to the complainant, Mobile phone at the instance of accused Majid and the recovery of Motorcycle of the complainant at the instance of accused Majid @ Majju from the area of Lajpat Nagar is also proved by the police officials. The place from where the motorcycle of the complainant was recovered from Lajpat Nagar was in the exclusive knowledge of the accused Majid and he has failed to explain as to how he got knowledge of that place. The identification of the accused by the complainant as the person who was involved in the incident of robbery and the consequential recovery of robbed articles at his instance proves the involvement of accused in the offence. In view of this cogent evidence, testimony of the wife of the accused is not reliable.
28 It is also settled law that if any accused is charged for graver offence he can be convicted in the lighter offence. 29 In view of the above facts and circumstances, both the SC No. 116/11 State Vs Majid @ Majju etc. Page No. 20 of 21 accused are held guilty and convicted under section 392/34 IPC and in addition accused Ashiq is held guilty and convicted for the offence under section 397 IPC.
ANNOUNCED IN THE OPEN COURT ON 20.12.2013.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 116/11 State Vs Majid @ Majju etc. Page No. 21 of 21