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Delhi District Court

State vs . (1) Vicky @ Vikas on 28 July, 2012

   IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
    JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI

Sessions Case No. 58/2011
Unique Case ID: 02404R0226892011

State                       Vs.    (1) Vicky @ Vikas
                                       S/o Nand Kishore
                                       R/o D­61, Gali No. 14,
                                       Bhatta Road, Swaroop Nagar,
                                       Delhi.
                                       (Convicted)

                                     (2)   Yamin @ Sohail
                                           S/o Nyab Khan
                                           R/o D­107, Bindapur JJ Colony
                                           Delhi.
                                           (Convicted)

FIR No.                     :              67/2011
Police Station              :              Swaroop Nagar
Under Section               :              392/394/397/411/34 IPC

Date of committal to Sessions Court  : 24.08.2011
Date on which orders were reserved  : 07.06.2012
Date on which judgment pronounced : 19.07.2012

JUDGMENT

Brief Facts:

(1) As per the allegations, on 28.04.2011 at about 10:25 PM near underpass, service road (adjoining Nala) Swaroop Nagar within State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 1 of 62 the jurisdiction of Police Station Swaroop Nagar, the accused Yamin @ Sohail and Vicky @ Vikas in furtherance of their common intention came in front of Israr S/o Mohd. Habib and thereafter the accused Yamin showed him a knife and started hitting him with a knife on his head and stomach and robbed his purse containing Rs.

2700/­ while the accused Vicky @ Vikas took out his Sony Erricsion Mobile Model 200i having number 9818526949. It is also alleged that the accused Yamin @ Sohail got recovered the robbed purse from the banks of a Nala leading from Swaroop Nagar to Nangli Poona.

Case of prosecution in brief:

(2) The case of the prosecution in brief is that on receipt of DD No. 34A dated 28.4.2011 IO / SI Jagdeep Singh along with Ct.

Sukhbir reached at BJRM Hospital and obtained the MLC of injured Israr S/o Habib and thereafter recorded his statement. The victim Israr told the Investigating Officer that on 28.4.2011 at about 10:25 PM he was returning to his house at Swaroop Nagar from Azadpur and when he crossed the Swaroop Nagar underpass and was going towards Nala through service road, when suddenly two boys came in front of him and one of them took out a knife and demanded money from him but he refused on which the said boy gave knife blows on his head and stomach and thereafter robbed him of his purse from the State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 2 of 62 pocket of his pant containing Rs.2700/­. The victim Israr further informed the police that the second boy also robbed his mobile make Sony Erricson model W200i bearing No. 9818526949 and thereafter both the assailants ran away from the spot. The victim also informed the police that thereafter he became unconscious and after some time PCR Van came at the spot and removed him to the hospital. On the basis of the statement of the victim, a rukka was prepared, the present FIR was recorded and investigation was initiated. During investigations, on the basis of the call detail record of the robbed mobile, the accused Vicky @ Vikas was arrested in this case who disclosed his involvement in the present case along with co­accused Yamin @ Sohail. Thereafter, 16.5.2011, the accused Yamin was arrested by Special Team, Crime Branch, Prashant Vihar, who on interrogation discloed his involvement in the present case along with the accused Vicky @ Vikas and on receipt of this information, the Investigating Officer of this case has formally arrested the accused Yamin in this case on 17.5.2011. After completing the investigations, the charge sheet was filed in the court.

CHARGE:

(3) Charge under Section 392/394/397/34 Indian Penal Code were settled against the accused Yamin @ Sohail and Vicky @ Vikas. Both the accused pleaded not guilty and claim trial. State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 3 of 62

EVIDENCE:

(4) In order to discharge the onus upon it, the prosecution has examined as many as twenty five witnesses.

Public Witnesses:

(5) PW3 Israr is the complainant / victim. He has deposed that at the relevant time he along with his family was residing at Khasra No. 333, Gali No. 2, Swaroop Nagar. According to him, on 28.04.2011 at about 10.30 p.m. he was passing through the underpass of Libas Pur through service lane and was coming to his house at Swaroop Nagar on foot and as soon as he crossed the underpass and walked for few steps towards the eucalyptus trees, he saw two boys standing there on the Dhalan, out of whom one came down in front of him on service lane. The said boy was under the influence of alcohol / intoxicated and when the boy crossed him he saw from the corner of his eye that the said boy had gone back. According to the witness, he further noticed that this boy thereafter started following him and in the meanwhile the other boy standing on the Dhalan also came towards him and immediately wiped out a knife and put it on his stomach stating jo bhi tere pass hai nikal de. The witness has deposed that when he told him that he had nothing, he (assailant) gave him a knife blow on his left temple and also stabbed him on his stomach and thereafter removed his purse from the backside pocket State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 4 of 62 of his pants. In the meantime the other person who was behind him snatched his mobile and thereafter both the accused pushed him and ran away. According to the witness, he thereafter went to Swaroop Nagar and made a telephone call to his family and told them about the incident and came back towards the pul (Subway) and lay down there when in the meanwhile somebody made a call to PCR while simultaneously his family members and the PCR reached there and he was shifted to BJRM Hospital and received treatment and in the morning he was referred to Ganga Ram Hospital where he remained till 10th May, 2011. The witness has deposed that at BJRM hospital his statement Ex.PW3/A was recorded by the police. He has further deposed that after his discharge from hospital, on 16.05.2011, he visited the Rohini Jail for participating in Judicial Test Identification Parade and identified the accused Vicky vide Ex.PX3. According to him, on 21.05.2011 he had again visited the Rohini Jail for participating in Judicial TIP but nothing transpired and he was told that the person concerned was refused to participate in the Judicial TIP. The witness has deposed that on 16.05.2012 he had shown the spot of incident to the Investigating Officer who prepared the site plan Ex.PW3/B at his instance. According to the witness, on 21.05.2011, when he came to Rohini Jail for TIP, he had also handed over to the investigating officer the purchase bill of the mobile in the name of his brother Abrar which is Ex.PW3/C. He has further State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 5 of 62 deposed that in the month of June, he had again come to Rohini court and identified his purse which was containing the copy of Vote ID Card and other visiting cards and Rs. 2700/­ and photograph of his father. Thereafter, Judicial TIP proceedings was conducted by the Ld. MM Sh. Bhupender Singh which are collectively Ex.PW3/D. The witness has deposed that again he had come to the court for release of his phone in the month of July when he saw the accused in the court and told the Investigation Officer that both the accused who were present in the court had committed the snatching incident with him.

(6) Israr has further identified the accused Vicky @ Vikas and also the accused Yamin. He has identified the accused Vicky @ Vikas as the person who appeared intoxicated and had come behind him and later snatched his mobile and Yamin as the person who was carrying a knife and had stabbed him and also removed his purse from his pocket.

(7) The witness Israr has correctly identified the case property i.e. mobile phone make Sony Ericsion of black colour, model W200i, EMI No. 3555441017478881 Ex.P1 (wrongly typed as 355544101747888118 and henceforth to be read as 3555441017478881) as belonging to him. He has also identified the black colour purse containing the copy of Voter ID Card, Visiting State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 6 of 62 Vard which purse is Ex.P2 (colly.).

(8) In his cross­examination by Ld. Defence Counsel, the witness Israr has deposed that he was working at Samaypur Badli in Gali No. 9 in a Workshop and he used to go to his office at about 9 to 9:30 AM and return back at 9 to 9:30 PM by foot. According to the witness, on the date of incident, the public persons were moving and there was no light near the underpass. The witness has deposed that it took 2­3 minutes while taking place of the said incident and he had made the call to his family members from STD situated near pul at Swaroop Nagar and that the police did not enquire about the call made to his family. Witness has further deposed that his brother Abrar along with him went to the hospital in PCR but he does not remember the time when the police official came to the hospital. Witness has deposed that on 28.04.11, his statement was recorded at about 10:00 pm and no statement of any other person was recorded at that time by the investigating officer. According to witness, he had not handed over his blood stained clothes to the Investigation Officer and that the Investigation Officer also did not call him to police station. Witness has further deposed that the Investigation Officer recorded his statement only once in the hospital. Witness has further deposed that the Investigation Officer had not obtained his signature on the site plan. He has denied that the Investigation Officer showed him the photograph of the accused in police station. He has further State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 7 of 62 denied that he has identified the accused on the instruction of Police and has voluntarily added that he had identified the accused persons of his own because of the incident was committed with him by them. (9) PW4 Mukesh has deposed that he is the resident of the given address and is working as Baildar on daily wages. Witness has deposed that in the year 2011, month he does not recollect but it was 5­6 months back when he had purchased a mobile phone make Sony Ericson Ex.P1 for Rs.500/­ from Jitender S/o Khajan R/o Swaroop Nagar, Gali No. 5, Delhi and thereafter he sold the said mobile to one Raju S/o Sh. Sanu R/o Village Barsana, Distt. Mathra. Witness has further deposed that when Jitender came to Barsana to attend a wedding of his relative, it was then that he purchased this mobile from him. He has deposed that Jitender was known to him for about one year as earlier he had worked with him as Baildar. In his cross­ examination by Ld. Defence Counsel, the witness Mukesh has deposed that when he purchased this mobile from Jitender, he had not taken any receipt / bill and no documents was executed. (10) PW5 Ramesh Kumar has deposed that he is working in a shop of building material. According to him he does not know any Rajesh nor such person by name of Rajesh S/o Vinod had ever stayed at A­21, Dharmshala Road, Swaroop Nagar, Delhi, where he is residing for the last 21 years. The witness has not been cross­ examined on behalf of the accused persons.

State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 8 of 62 (11) PW6 Raju has deposed that on 13.05.11 he had purchased a Mobile make Sony Ericson from Mukesh resident of his village for a sum of Rs. 530/­ which he used for 15­20 days and thereafter sold the same to Ashok @ Chotu S/o Ram Prasad for a sum of Rs. 650/­ and no papers / bill were executed in this regard. The witness has identified the mobile Ex.P1 as the one which he had purchased. He has not been cross­examined on behalf of the accused persons and the entire testimony has gone uncontroverted. (12) PW7 Ashok has deposed that he is doing the work of Motor Binding. According to him he had purchased a mobile make Sony Ericsion of black colour from Raju S/o Sanu resident of the same village Barsana for a sum of Rs. 650/­. On a Court question, the witness has explained that at the time of sale and purchase of this mobile no document was executed nor he took any bill from Raju for the same. The witness has correctly identified the mobile make Sony Ericsion of black colour, EMI No. 355441017478881 in the court which is Ex.P1. In his cross­examination by Ld. Defence Counsel, the witness has deposed that this mobile has been taken from him by the police.

(13) PW8 Abrar has deposed that he is doing the work of Lathe Machine. According to him he had purchased a mobile make Sony Ericsion of black colour model W200i from Ballabgarh, State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 9 of 62 Faridabad, in his name vide bill dated 25.12.08 Ex.PW3/C and the said mobile he has gifted to his brother Israr. According to him, on 28.04.11, at night when his brother Israr was using the said mobile, the same was robbed from him. The witness has identified the mobile Ex.P1 as the one which he had purchased. In his cross­examination by Ld. Defence Counsel, the witness has deposed that this mobile has been taken from him by the police.

(14) PW10 Jitender has depose that he is doing a business of selling vegetables and he had gone to village Barsana Uttar Pradesh, to attend the marriage of his mausi. He further deposed that he was carrying his mobile which he had found lying on the road at Gali No. 5, Swaroop Nagar, but he had never used the same and at Barsana he sold this mobile to one Mukesh resident of village Barsana for Rs. 500/­. According to him no documents were executed for sale of the mobile. This witness has identified the mobile phone Ex. P1 which he sold to Mukesh. In his cross­examination by Ld. Defence Counsel, the witness has denied that he had committed the theft of this mobile and for this reason he had sold it to Mukesh for a paltry amount of Rs.500/­.

(15) PW11 Dinesh has deposed that he is running a business of Tour & Travel and he knew Vikas @ Vicky who is a resident of Gali No. 15 Swaroop Nagar for about 1­1 ½ years and at the relevant time when the inquires were made from him, he knew him for the State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 10 of 62 last 5 to 6 months. This witness has further deposed that Vikas @ Vicky used to come to his office and asked him for small loans of 100 to 200 rupees. He has stated that the accused Vikas also used to call from his mobile whose number he does not recollect on his (witness) mobile bearing number 9899893706. In his cross­ examination by Ld. Addl PP for State, the witness has deposed that police had recorded his statement Ex.PW11/PX1 wherein he had informed them that Vikas used to make call to him from his mobile number 9718026954 which belonged to him (accused). (16) In his cross­examination by Ld. Defence Counsel, the witness Dinesh has deposed that he told the police that the above number 9718026954 belonged to Vikcy @ Vikas because he used to receive call from this number from him. The witness has also deposed that earlier also he had come to the court and deposed and has voluntarily explained that it was in a case from police station Bhalaswa Dairy whose details including the FIR number he does not recollect. He has denied that he is a stock witness of police. He admits that he did not show to the police any call received on his mobile from the accused Vikas but has voluntarily explained that it was the police who had shown him the call details and he informed them of the number of Vikas. This witness is unable to tell whether this number belongs to Vikas or not but has voluntarily explained that it was being used by Vikas and he received calls from him State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 11 of 62 (Vikas) from this number.

(17) PW13 Pawan Singh has deposed that he is the authorized Nodal Officer to depose on behalf of Idea Cellular. He has brought the summoned record i.e. customer application form of mobile No. 9718026954 which was issued in the name of Rajesh Raut and the application form which is Ex.PW13/A and ID proof is Ex.PW13/B. He has also brought call details of this mobile phone for the period 6.4.2011 to 03.05.2011 which is Ex.PW13/C (collectively running into 11 single pages bearing his signatures at various point mark A on all the pages). He has also placed on record the Certification U/s 65B of Evidence Act which is Ex.PW13/D. The witness has not been cross­examined on behalf of the accused persons and his testimony has gone uncontroverted.

(18) PW14 Hussain M. Zaidi has deposed that he is the authorized Nodal Officer to depose on behalf of Idea Cellular and brought the summoned record i.e. customer application form of mobile No. 9012820585 which was issued in the name of Raju, S/o Sanu Ram and application form is Ex.PW14/A and ID proof i.e. the election card is Ex.PW14/B. He has also brought call details of this mobile phone for the period 10.052011 to 25.05.2011 is Ex.PW14/C (collectively running into eight pages bearing his signatures at various places at point mark A on all the pages). The witness has State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 12 of 62 also produced the Certification U/s 65B of Evidence Act which is Ex.PW14/D. The witness has not been cross­examined on behalf of the accused persons and his testimony has gone uncontroverted. (19) PW15 Deepak has deposed that he is the authorized Nodal Officer to depose on behalf of Vodafone Mobile Services Ltd. and has brought the summoned record i.e. customer application form of mobile No. 9899893706 which was issued in the name of Dinesh Sharma S/o Sant Kumar, R/o 25 Sindhi City, Swaroop Nagar, Delhi ­42 and application form Ex.PW15/A and ID proof i.e. the driving licence and PAN card which are Ex.PW15/B (running into two pages) bearing his signatures at various points mark A on all the pages. The witness has not been cross­examined on behalf of the accused persons and his testimony has gone uncontroverted. (20) PW16 Vishal Gaurav has deposed that he is the authorized Nodal Officer to depose on behalf of Bharti Airtel Ltd. and has brought the summoned record i.e. customer application form of mobile No. 9818526949 which was issued in the name of Avinash, S/o Durga Nath, R/o N­44/215, Sanjay Colony, Gali No. 9 and enrollment form Ex.PW16/A and ID proof i.e. the college identity card Ex.PW16/B, the copy of the distributor calling feed back form Ex.PW16/C. He has also brought call details of this mobile phone for the period 26.04.2011 to 25.05.2011 is State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 13 of 62 Ex.PW16/D. The copy of the cell ID chart showing the location of the various towers is Ex.PW16/E and the Certification U/s 65B of Evidence Act which is Ex.PW16/F. The witness has not been cross­ examined on behalf of the accused persons and his testimony has gone uncontroverted.

(21) PW25 Sh. Bhupender Singh, (Ld. MM) has proved the Judicial Test Identification Parade proceeding qua the case property i.e. purse on 8.6.2011 vide Ex.PW23/D wherein the victim Israr has correctly identified the purse as belonging to him. The witness has not been cross examined on behalf of the accused and her evidence has gone uncontroverted.

Medical Evidence:

(22) PW9 Dr. Neeraj Chaudhary, Medical Officer, BJRM Hospital has proved the MLC No. 24891 of patient Ishrar aged about 27 years male brought in casualty with history of physical assault on 28.4.2011. According to him, the patient was examined by Dr. Praveen who referred the patient to surgery SR and seen by Dr. Yatinder Singh and as per local examination lacerated wound of 6cm present at left temporal region and other CLW of 3 cm was present adjacent to it and CLW of 01 cm was present adjacent to CLW of 3cm. Further, a lacerated wound of 0.5 cm was present over the nose; and another lacerated wound of 1cm present over left iliac State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 14 of 62 region with protruted omentum. The witness Dr. Neeraj Chaudhary has identified the signatures of Dr. Praveen and Dr. Yatinder Singh as they had worked with him and he had seen them while signing and writing. According to the witness, the MLC Ex.PW9/A is bearing signatures of Dr. Praveen at point A and Dr. Yatinder at point B and C. He has also proved the opinion regarding nature of injuries given by Dr. Yatinder Singh 'as dangerous at point D. The witness has not been cross­examined on behalf of the accused persons and his testimony has gone uncontroverted.

(23) PW12 Dr. R. S. Mishra, CMO BJRM Hospital, has deposed that on 28.4.2011, he was working as CMO and Dr. Praveen was working as JR and Dr. Yatender was working as SR Surgery at BJRM hospital under his supervision. According to him, as per record, on 28.4.2011, Dr. Praveen examined the patient Ishrar S/o Habib aged 27 years male vide MLC Ex.PW9/A which bears the signatures of Dr. Praveen at point A who referred the patient to SR Surgery where Dr. Yatener Singh who was working as SR Surgery examined the patient and has given the opinion of injury as 'dangerous'. The witness has deposed that the said MLC bears the signatures of Dr. Yatender at point B and C and bears his name at point E. Witness has also identified the signatures of Dr. Praveen and Dr. Yatender as he has seen them writing and signing during course of official duties. The witness has not been cross­examined on State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 15 of 62 behalf of the accused persons and his testimony has gone uncontroverted.

(24) PW24 Dr. Shipra Rampal has deposed that on 30.4.2011 she had examined the X­Ray Plate No. 1144 of abdomen erect AP view of the patient Israr vide MLC Ex.PW24/A and after examination she gave opined that no free air was seen under the domes of the diaphragms. The witness has not been cross examined on behalf of the accused and her evidence has gone uncontroverted. Police Witnesses:

(25) PW1 HC Rang Bahadur has been examined in chief by way of affidavit which is Ex.PW1/1 and deposed that he was in­ charge of MHC (M) of the Police Station and on 19.05.2011 he had received one pullanda sealed with the seal of J.S. along with copy of seizure memo of NOKIA Mobile and he made entries of the same in register No. 19 at Sl. No. 531 copy of which is Ex.PW1/A. The witness has further deposed that on 27.05.2011, he received another pullanda sealed with the seal of J.S. along with copy of seizure memo of "purse" in the same case vide entry No. 536 of Register No. 19 from SI Jagdeep and copy of the same is Ex.PW1/B which was also sent for TIP on 08.06.2011 vide Road Certificate and was received back on the same day sealed with court seal. He has further deposed that on 15.06.2011 he received one more pullanda sealed with the State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 16 of 62 seal of J.S. along with copy of seizure memo of Sony Ericsson Mobile vide entry No. 543 of Register No. 19 from SI Jagdeep and copy of which is Ex.PW1/C. This witness has not been cross examined on behalf of the accused and her testimony has gone uncontroverted.

(26) PW2 W/HC Maya Devi has been examined in chief by way of affidavit which is Ex.PW2/1. She has deposed that in the intervening night of 28­29/04/2011, she was posted as a Duty Officer Police Station Swaroop Nagar and at 11.27 P.M., the Wireless Operator of the Police Station forwarded a PCR Call regarding snatching of mobile phone and Rs.2700/­ at Swaroop Nagar, Pul at the point of knife and she recorded that information in DD vide entry No. 34A dated 28.04.2011 and the same was marked to SI Jagdeep Singh. The witness has further deposed that at at 1.30 a.m. she received a Rukka from Ct. Sukhbir endorsed by SI Jagdeep for registration of case under Section 397/34 IPC and also made her endorsement on the Rukka and lodged DD No. 2A dated 29.04.2011.

Copy of FIR is Ex.PW2/A and endorsement on rukka is Ex. PW2/B. This witness has not been cross examined on behalf of the accused and her testimony has gone uncontroverted.

(27) PW17 ASI Ved Parkash has deposed that on 16.05.2011, he was posted at Special Team Crime Branch, Parshant Vihar as ASI and on that day at about 1:30 PM Ct. Sanjay had received a secret State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 17 of 62 information which he shared with Inspector Parveen Kumar after which a police party was constituted and the witness along with Inspector Parveen, ASI Hari Om, ASI Ramesh Kumar, HC Mohan Lal, Ct. Vijay, Ct. Sanjay and Ct. Himanshu started from their office and reached Majnu Ka Tilla, Petrol Pump. There he shared this information with 4­5 passersbye's and requested them to join the raiding party but they refused expressing their non­availability and went away. According to him, without wasting further time they reached Majnu Ka Tilla, Gurudwara and after parking their vehicles in the parking he briefed the raiding party and stationed them at various places in front of the Gurudwara on the red light. The witness has deposed that at about 3:15 PM, the secret informer pointed out towards a black colored Pulsor motorcycle coming from Wazirabad side which was being driven by two boys. He has further deposed that after crossing the red light, they parked their motorcycle on one side and were standing there. The witness has further deposed that on the pointing out of the secret informer they overpowered the accused persons and on interrogation the said persons disclosed their names as Yamin @ Sohail, S/o Naib Khan, Deepak @ Nepali S/o Sh. Jagdish Singh, R/o Kukui ka makan, Gali No. 1, Swaroop Nagar. He has further deposed that thereafter he had carried out a casual search of both the accused and in the casual search of Yamin revealed one mobile phone from his right pocket and four mobile phones from the State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 18 of 62 left pocket and in the casual search of Deepak @ Nepali revealed two mobile phones from the left side pocket of his shirt. The witness has also deposed that he thereafter interrogated both the accused and they disclosed their involvements in the other places at Karnal Byepass. According to the witness, the accused persons also disclosed that about 15­20 days ago Yamin and Vikas @ Vicky had committed a robbery with a person at Swaroop Nagar, under pass at about 10­10:30 PM where they had stabbed one person and snatched his mobile of Sony Ericsson and Rs 2700/­. According to the witness the disclosure statement of Yamin was recorded vide Ex.PW17/A and the mobile phone was converted into a pullanda and sealed with the seal of VPS and thereafter seized vide memo Ex.PW17/B and after that he forwarded the information regarding the apprehension of Yamin and his disclosure to Police Station Swaroop Nagar. He has further deposed that both the accused Yamin and Deepak were arrested U/s 41.1 Cr. P.C. vide proceedings Ex.PW17/C. According to the witness, on the next day the accused were produced before the Illaka Magistrate at Tis Hazari Courts. The witness has correctly identified the accused Yamin in the court.

(28) In his cross­examination by Ld. Defence Counsel, the witness has deposed that at the time of recording the disclosure statement of accused, no public person was joined. He further deposed that a large number of Sewadars, Granthies, public persons State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 19 of 62 including devotees were present at Majnu Ka Tilla, Gurudwara for 24 hours. He admits that the staff of the Gurudwara is managing the parking and is available for 24 hours in the parking. The witness has further deposed that he did not join any person from the Gurudwara including the sewadars who were present in the Gurudwara and the parking in the police party. He has denied that he deliberately did not join the said persons because no such incident had taken place and the recoveries were planted upon the accused. He has further denied that the accused has not make any disclosure and he has recorded the same of his own only to work out the present case. The witness has further denied that there was no recovery pertaining to the present case from any of the accused apprehended by them.

(29) PW18 ASI Ramesh Kumar has deposed that on 16.05.2011 he was posted at Special Team Crime Branch, Parshant Vihar as ASI and on that day a secret informer had come to the Office of Special Team Crime Branch at Prashant Vihar and gave information to Ct. Sanjay at about 1:30 PM that two boys wanted in various robbery cases would be reaching Majnu Ka Tilla around 2:30 PM and Ct. Sanjay informed Inspector Parveen Kumar of this information who in turn brought it to the notice of ACP concerned and thereafter a police party was constituted comprising of himself with Inspector Parveen, ASI Hari Om, ASI Ved Parkash, HC Mohan Lal, Ct. Vijay, Ct. Sanjay and Ct. Himanshu. The witness has further State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 20 of 62 deposed that at about 1:45 PM they all started from their office and reached Majnu Ka Tilla red light at around 2:30 PM and they had reached Majnu Ka Tilla, Gurudwara and after parked their private vehicles in the parking the team took positions on the red light in the front of Gurudwara and after some time two boys came on a black colored Pulsor motorcycle bearing No. DL­9SAE­1029 which was coming from the Wazirabad side and after crossing the red light, they parked their motorcycle on one side and were standing there. He has further deposed that on the pointing out of secret informer he along with HC Mohan Lal overpowered them and thereafter ASI Ved Parkash interrogated them wherein they had disclosed their names as Yamin @ Sohail, R/o Bindapur and Deepak @ Nepali S/o Sh. Jagdish Singh, R/o Swaroop Nagar and after that ASI Ved Parkash carried out a casual search of both the accused and in the casual search of Yamin revealed one mobile phone from his right pocket and four mobile phones from the left pocket and in the casual search of Deepak @ Nepali revealed two mobile phones from his pocket. According to the witness, on interrogation, both the accused disclosed their involvements in various cases and the Accused Yamin had disclosed that about 15­20 days ago he along with Vikas @ Vicky had committed a robbery with a person at Swaroop nagar, under pass near Karnal GT road and they had stabbed one person and snatched his mobile of Sony Ericsson and one purse containing Rs State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 21 of 62 2700/­ at 10­10:30 PM. The witness has identified the disclosure statement of Sohail @ Yamin which is Ex.PW17/A. The witness has identified the accused Yamin in the court.

(30) In his cross­examination by Ld. Defence Counsel, the witness has deposed that at the time of recording the disclosure statement of the accused, no public person was present there. He has further deposed that a large number of sewadars, granthies, public persons including devotees were present at Majnu Ka Tilla, Gurudwara for 24 hours and admits that the staff of the Gurudwara is managing the parking and is available for 24 hours in the parking. He has deposed that he did not join any person from the Gurudwara including the sewadars who were present in the Gurudwara and the parking in the police party. He has denied the suggestion that he has deliberately not joined the said persons because there was no such incident had taken place and the recoveries were planted upon the accused. He has further denied that the accused has not make any disclosure and he has recorded the same of his own only to work out the present case. He has admitted that there was no recovery pertaining to the present case from any of the accused apprehended by them.

(31) PW19 HC Rajesh Kumar has deposed that on 14.6.2011 he was posted at Police Station as Head Constable and on that day he joined the investigation in the present case and he along with SI State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 22 of 62 Jagdeep went to Barsana, U. P. as the location of the mobile phone which was snatched in the present case was located / traced at Barsana. He has further deposed that firstly they went to the Police Station Barsana and called Raju in the police station Barsana as his name was mentioned in the CDR and on interrogation, Raju informed them that he had purchased the said mobile from Mukesh @ Khasi and after using for about 10­15 days further sold the same to his neighbour Ashok. He further deposed that that they had called Ashok to the police station Barsana and the Ashok handed over the mobile number to them which was taken to possession by SI Jagdeep vide memo Ex.PW19/A. According to the witness they had also called Mukesh @ Kahsi to the police Station Barsana and on inquiries he told them that he had purchased the said mobile from one Jitender who had come to attend a marriage at Barsana and he informed them that mother of Jitender was from Barsana. In his cross­examination by Ld. Defence Counsel, the witness has deposed that at the time of seizure of mobile there was no public person present in the police station so they were not joined. He has denied the suggestion that no mobile phone had been seized and all the proceedings were conducted by the Investigation Officer at his own and he only signed the same.

(32) PW20 Ct. Shiv Kumar has deposed that on 17.05.2011 he was posted as a constable at police station Swaroop Nagar and on State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 23 of 62 that day he had joined the investigations along with SI Jagdeep and had gone to Tis Hazari Courts where the accused Yamin @ Sohail had to be produced and in the court the Investigation Officer moved an application before the Ld. MM for interrogation of the accused and the same was allowed by the Ld. MM and thereafter, Investigation Officer interrogated the accused outside the court and during the interrogation, the accused disclosed his involvement in the present case on 28.04.2001 at night along with his friend Vicky @ Vikas, S/o Nand Kishore R/o D­61, Bhata road, gali No. 14, Swaroop Nagar, Delhi near the under pass Swaroop Nagar, service road. The witness has further deposed that the accused has disclosed that they had stabbed one passer by who was going on foot and robbed him of his mobile and purse containing Rs 2700/­ and the said disclosure is Ex.PW20/A. The witness has deposed that accused Yamin was formally arrested vide memo Ex.PW20/B and thereafter he was sent to judicial custody by the Ld. Court. The witness has identified the accused Yamin in the court.

(33) In his cross­examination by Ld. Defence Counsel, the witness has deposed that large number of public persons were present outside the court room when the accused Yamin was interrogated but the Investigation Officer did not join anybody in the investigation in his presence. He has further deposed that when the accused Yamin made the disclosure statement no public person was State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 24 of 62 joined. He has denied the suggestion that the accused did not make any disclosure and the Investigation Officer took his signatures on blank papers which he has converted into disclosure at a later stage. (34) PW21 Ct. Attar Singh has deposed that on 10.05.2011, he was posted at police station Swaroop Nagar and on that day he along with Ct. Anand joined the investigations with SI Jagdeep and went to the house of Vicky @ Vikas, S/o Nand Kishore, R/o D­61, Gali No. 14, Bhata Road, Swaroop Nagar when they had reached his house, they met Vicky @ Vikas present in the court and the SI Jagdeep interrogated him in their presence during which he had disclosed he along with Yamin, S/o Nawab Khan, R/o Gali No. 15, Swaroop Nagar had on 28.04.2011 robbed a passerby who was on foot on 28.04.2011 at about 10:30 PM on service road near the underpass Swaroop Nagar. He has further deposed that the accused Vicky has further disclosed that Yamin had stabbed the person and thereafter removed the purse whereas he (Vicky) removed his mobile from the pocket of the passerby and the said disclosure statement is Ex.PW21/A and after that SI Jagdeep arrested the accused Vicky @ Vikas vide memo Ex.PW21/B. The witness has further deposed that personal search of accused Vicky was also conducted vide memo Ex.PW21/C and thereafter the accused was taken to BJRM Hospital, Jahangirpuri where his medical examination was got conducted and he was thereafter produced before the Illaka Magistrate from where State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 25 of 62 he was remanded to judicial custody. The witness has further deposed that on 27.05.2011 he has again joined the investigation along with Ct. Sunil, SI Jagdeep and on that day he accompanied SI Jagdeep and Ct. Sunil to the court from where the police custody remand of accused Yamin was taken by the Investigation Officer, after which the accused Yamin was firstly got medically examined and thereafter he (Yamin) took them to the service road near the underpass where he pointed out the place where he had thrown the purse of the victim and the knife used by him after the incident and after that the accused took them to the bushes near the nala from where he had got recovered a black colored purse which on checking was found to contain a voting I­card in the name of Israr along with three to four visiting cards and some other documents and the IO prepared the pointing out cum recovery memo vide Ex.PW21/D. (35) In his cross­examination by the Addl. PP for State, the witness has deposed that the accused had first taken them to the place where he had committed the incident vide memo Ex.PW21/E. He has further deposed that the purse of black color was seized by the Investigation Officer and thereafter that he had put all the documents and visiting cards back in the purse which he converted into a pulanda and sealed with the seal of JS.

(36) The witness has identified the case property i.e. black color purse containing the copy of the voter ID card, visiting cards as State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 26 of 62 the same which was got recovered by accused Yamin as Ex.P2. (37) In his cross­examination by Ld. Defence Counsel, the witness has deposed that he had joined the investigation on 10.05.2011 at about 8:30 AM but did not make any separate ravangi and has voluntarily explained that he was with the Investigating Officer and there was a combine ravangi. He has deposed that they had gone to the house of Vikas in the morning at about 8:30 AM in the private vehicle i.e. car. He has further deposed that the place from where Vicky was arrested is a residential area with a large number of houses around his house and Investigation Officer had asked some neighbours to join the investigations but they refused. He is unable to tell the names and addresses of the persons who had refused to join the investigations. He has further deposed that the accused Vicky was arrested at 10AM and at that time his mother and father were present in the house and the information regarding his arrest was given to his mother. He has further deposed that Investigation Officer had taken the signatures of parents of Vicky but he does not recollect whose signatures were taken and on what paper. He has denied that he was not present at the time of arrest of Vicky and had only signed the documents later on at the instructions of the Investigation Officer. He has further denied that the accused did not make any disclosure and the Investigation Officer had taken his signatures on the blank papers which were later converted into State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 27 of 62 disclosure statement.

(38) The witness has further deposed that they had reached the Swaroop Nagar underpass on 27.05.2011 at about 3PM and no public person had joined the investigations and has voluntarily explained that the Investigation Officer had tried to join public persons but they refused. He is unable to tell the names and addresses of public persons who had refused to join the investigations. He has denied the suggestion that the accused Yamin had never pointed out any place of incident or that he had never got any purse recovered. He has further denied the suggestion that all the proceedings were conducted while sitting in the police station or that it is for reason he was unable to tell the details in his examination in chief. He has further deposed that he cannot tell to whom the Investigation Officer handed over the seal after converted the purse into pullanda. (39) PW22 Ct. Anand Singh has deposed that on 10.05.2011 he was posted at police station Swaroop Nagar as constable and on that day he along with Ct. Attar Singh joined the investigations along with SI Jagdeep and went to the house of Vicky @ Vikas, S/o Nand Kishore, R/o D­61, Gali No. 14, Bhata Road, Swaroop Nagar when they reached his house, they met Vicky @ Vikas and the SI Jagdeep interrogated him in their presence during with accused had disclosed that he along with Yamin, S/o Nawab Khan, R/o Gali No. 15, Swaroop Nagar, had robbed a passerby on foot on 28.04.2011 at State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 28 of 62 about 10:30 PM at service road near the underpass Swaroop Nagar. The witness has further deposed that accused has also disclosed that Yamin had stabbed the person and thereafter he removed the purse whereas he (Vicky) removed his mobile from the pocket of the passerby after which they went towards Nangli and on the way threw the purse and the knife in the bushes near the nala, which disclosure statement is Ex.PW21/A after which SI Jagdeep arrested the accused Vicky @ Vikas vide memo Ex.PW21/B and conducted his personal search vide memo Ex.PW21/C and the accused was thereafter taken to BJRM Hospital, Jahangirpuri where his medical examination was got conducted. According to the witness, the accused was taken to district lines Ashok Vihar where his dossier was prepared and thereafter he was produced before the Illaka Magistrate from where he was remanded to judicial custody. (40) The witness has further deposed that on 19.05.2011 he again joined the investigations along with ASI Jagdeep and came to the court of the Illaka Magistrate from where the police custody remand of the accused was taken and the accused took them to the spot where the incident had taken place i.e. the service road, near the underpass and pointed out the place of the occurrence after which the IO prepared the pointing out memo of the spot of the incident vide Ex.PW22/A. The witness has also deposed that thereafter the accused had taken them to the place where they had thrown the purse State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 29 of 62 and the knife and pointed out towards the bushes where Yamin had thrown the knife and the purse but nothing could be recovered after which the IO prepared the pointing out memo of the same vide memo Ex.PW22/B. Thereafter the accused took them to the Bhatta road, near the government school, where he pointed out towards the electricity pole and from the grass got removed a white polythene containing the mobile make NOKIA. The witness has further stated that it was disclosed by the accused that the phone belonged to him on which he used to speak to his friend Yamin. When the said mobile phone of grey color was opened by the IO, whose IMEI number witness does not recollect, it was found to be containing a SIM which the accused disclosed was belonging to him. The witness has further deposed that the IO converted the said mobile into pullandas and sealed the same with the seal of JS and thereafter seized the mobile vide memo Ex.PW22/C. According to the witness the accused was thereafter brought to the police station and then taken to the hospital for his medical examination and thereafter produced in the lock up.

(41) In his cross­examination by the Addl. PP for State, the witness has deposed that the electricity pole number around which the mobile is got recovered is HT­503­88/6, HT­503­88/7 and the accused had disclosed that he was using the SIM NO. 9718026954 on the said mobile. The witness has further deposed that the said mobile State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 30 of 62 make NOKIA was of black color and on opening the same it was found to be bearing IMEI No. 356032/03/896328/G. He has further deposed that the phone was having a battery bearing No. 0670400462040P436C10488173 written on it. The witness has correctly identified the accused persons in the court. The witness has identified the black mobile bearing IMEI No 356032/03/896328/G having a battery bearing No. 0670400462040P436C10488173 as the same as got recovered by accused Vicky which is Ex.P3. This court has observed that the said mobile was earlier exhibited in case FIR No. 64/11, PS Bhalswa Dairy which is the reason why it bears the seal of the Court.

(42) In his cross­examination by the Ld. Defence Counsel, he has deposed that he had joined the investigations on 10.05.2011 at about 8:30 AM but did not make any separate ravangi and has voluntarily explained that he was with the IO there was a combined ravangi. According to the witness they had gone to the house of Vikas in the morning at about 8:30AM in the private vehicle i.e. car and states that the place from where Vicky was arrested is a residential area with a large number of houses around his house. He has deposed that the IO had asked some neighbours to join the investigations but they refused. He is unable to tell the names and addresses of the persons who had refused to join the investigations and further states that the accused Vicky was arrested at 10 AM State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 31 of 62 during which time his mother, father and sister were present in the house and the information regarding his arrest was given to his mother. He has further deposed that the IO had taken the signatures of father of Vicky on the disclosure statement of accused Vicky. The witness has further deposed that the place from where the mobile phone was recovered was an open place on the road and anybody could pick up or throw anything around the electric pole and the grass around the pole was one feet high. He denied the suggestion that he was not present at the time of arrest of Vicky and he had only signed the documents later on at the instructions of the IO. He has further denied the suggestion that the accused did not make any disclosure and the IO had taken his signatures on the blank papers which were later converted into disclosure statement. (43) PW23 SI Jagdeep has deposed that on 28.04.2011 he was posted at police station Swaroop Nagar and on that day on receipt of DD No. 34A Ex.PW23/A he along with Ct. Sukhbir reached BJRM Hospital where he found Israr S/o Shabir admitted with the history of physical assault and robbery. He has further deposed that he collected his MLC and recorded the statement of the complainant as Ex.PW3/A and thereafter made endorsement vide Ex.PW23/B and converted the same into rukka and handed over the same to Ct. Sukhbir for getting the FIR registered. He further stated that after that he has gone to Flyover, Libaspur near the underpass State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 32 of 62 and tried to make inquiries and search of eye witness but could not find anybody and in the meanwhile Ct. Sukhbir came back to him at the underpass Libaspur and handed over to him the copy of the FIR and original rukka and thereafter he along with Ct. Sukhbir tried to search for the accused but could not succeed and hence returned to the police station where he recorded the statement of Ct. Sukhbir. He has also deposed that the complainant had also told him that the accused had snatched his mobile phone bearing No. 9818526949 and therefore he obtained the call detail records of the said mobile from where he came to know that after the incident the said mobile was used for dialing one number 9718026954 and on inquiry he came to know that the said number had been issued in the name of Rajesh Raut and he further came to know that the said number had been obtained on a fake ID. According to the witness the person who was residing on the given address was one Ramesh Kumar and this witness recorded his statement wherein he disclosed that the number does not belong to him, nor he had given his ID to any person and it was thereafter that he obtained the further call details and found another number in frequent use i.e. 9899893706 issued in the name of Dinesh Kumar. He has further deposed that this Dinesh Kumar @ Dinesh Sharma disclosed to witness that the number 9718026954 belonged to Vicky @ Vikas on which number a call had been received from the IMEI Number of the stolen mobile. State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 33 of 62 (44) According to the witness on 10.05.2011 he along with Ct. Anand and Ct. Attar Singh had gone to the house of Vicky @ Vikas, S/o Nand Kishore, R/o D­61, Gali No. 14, Bhata Road, Swaroop Nagar which they knew previously because he is the BC of PS Swaroop Nagar. He has deposed that when they had reached his house, they met Vicky @ Vikas, whom the witness has correctly identified and also interrogated him in which he disclosed that he along with Yamin S/o Nawab Khan, R/o Gali No. 15, Swaroop Nagar, had robbed a passerby on foot on 28.04.2011 at about 10:30 PM at service road near the underpass Swaroop Nagar and the accused that Yamin had stabbed the person and thereafter he removed the purse whereas he (Vicky) removed his mobile from the pocket of the passerby after which they went towards Nangli and on the way threw the purse and the knife in the bushes near the nala and distributed the money between them. Witness has further deposed that he has recorded the disclosure statement of the accused which is Ex.PW21/A and that thereafter he arrested the accused Vicky @ Vikas vide memo Ex.PW21/B after which the personal search of accused was also conducted vide memo Ex.PW21/C. The witness has deposed that thereafter the accused was taken by Ct. Anand and Ct. Attar Singh to BJRM Hospital, Jahangirpuri where his medical examination was got conducted and he was taken to district line Ashok Vihar where his dossier was prepared and he was produced State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 34 of 62 before the Illaka Magistrate in muffled face from where he was remanded to judicial custody.

(45) According to the witness, he had moved an application for getting the TIP of accused Vikas conducted before the Illaka Magistrate which application is Ex.PW23/C and on 16.05.2011 the witness / victim Israr went to Rohini Jail where he correctly identified the accused Vicky vide proceedings Ex.PX3. According to the witness, he thereafter he moved an application before the Ld. MM for obtaining the copy of the TIP proceedings which application is Ex.PX4 and while coming to the Rohini Jail with the victim / witness Israr, he also pointed out the place of the incident and on his pointing out he prepared the site plan Ex.PW3/B after which he thereafter recorded the supplementary statement of the complainant. On the same day he received information regarding the arrest of the accused Yamin and Suhail by crime branch Prashant Vihar and on receipt of the information on 17.05.2011 he along with Ct. Shiv Kumar went to Tis Hazari Courts where he moved an application before Ld. MM for interrogation of the accused Yamin which application is Ex.PW23/D and thereafter with the permission of the court he interrogated the accused Yamin outside the court. He has deposed that during the interrogation, the accused disclosed his involvement in the present case on 28.04.2001 at night along with his friend Vicky @ Vikas, S/O Nand Kishore R/o D­61, Bhata road, State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 35 of 62 gali No. 14, Swaroop Nagar, Delhi near the under pass Swaroop Nagar, service road. The witness has further deposed that the accused in his disclosure had disclosed having stabbed one passer by who was going on foot after which he and Vikas robbed the said person of his mobile and purse containing Rs 2700/­ which disclosure is Ex.PW20/A. According to the witness, the accused Yamin was formally arrested vide memo Ex.PW20/B and thereafter was sent to judicial custody by the Ld. Court. The witness has clarified that when the accused was produced in the court, he was in the muffled face and remained as such through out till the time he was sent to judicial custody by the Ld. Court because his TIP was to be conducted.

(46) According to the witness, on 18.05.2011 he moved an application before the Illaka Magistrate for production warrant for accused Vikas @ Vicky and on 19.05.2011 he obtained his one day police custody remand on the said application dated 18.05.2011 which is Ex.PW23/F. The witness has deposed that thereafter he along with Ct. Anand and the accused went to Libaspur Flyover where the accused Vikas pointed the spot of the incident i.e. the service road, near the underpass and pointed out the place of the occurrence after which the he prepared the pointing out memo of the spot of the incident vide Ex.PW22/A. The witness has further deposed that the accused thereafter took them to the place where they State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 36 of 62 had thrown the purse and the knife and pointed out towards the bushes where Yamin had thrown the knife and the purse but nothing could be recovered. The witness has also deposed that he has prepared the pointing out memo of the same vide memo Ex.PW22/B and thereafter the accused took them to the Bhatta road, gali NO. 14, near the government school, where he pointed out towards the electricity pole bearing Nos. HT­503­88/6 and HT­503­88/7 around which there were bushes from where he got recovered a white polythene containing the mobile make NOKIA of black color. The witness has further deposed that on removing the battery he came to know that the IMEI number of the said mobile was 356032/03/896328/9 and it was containing the battery bearing No. 0670400462 040P436C10488173. The witness has further deposed that the accused had disclosed to them that he used his own SIM bearing No. 9718026954 on the said mobile from which he spoke to Yamin on which he converted the said mobile into pullandas and sealed the same with the seal of JS and thereafter seized the mobile vide memo Ex.PW22/C. The witness has further deposed that on 18.05.2011, he moved an application before the Ld. MM for the getting the TIP of accused Yamin conducted vide application is Ex.PX6 and on 21.05.2011 the TIP of the accused Suhail @ Yamin was conducted at Rohini Jail wherein the victim had correctly identified him. On 27.05.2011, he obtained one day police custody State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 37 of 62 remand of the accused Sohail @ Yamin and thereafter he along with Ct. Attar Singh and Ct. Sunil, went to the service road near the underpass where the accused pointed out the place of the incident on which he prepared the pointing out memo Ex.21/E. According to the witness, the accused thereafter took them on the service road near the nala towards Nangli on the right side where he had thrown the purse of the victim and the knife used by him after the incident and also to the bushes near the nala from where he had got recovered a black colored purse which on checking found to contain a copy of the voting I card in the name of complainant Israr along with 3­4 visiting cards. According to the witness, he thereafter put the said documents back in the purse and converted the same into a pullanda which he sealed with the seal of JS and thereafter prepared the pointing out cum recovery / seizure memo which is Ex.PW21/D. According to the witness, on 07.06.2011, he moved an application before Ld. MM for getting the TIP of case property conducted which application is Ex.PW23/F and on 08.06.2011 the TIP of case property in this case was conducted by Ld. MM which proceedings are Ex.PW3/D. Thereafter, he obtained the call details record from the various service providers along with customer application forms and from the call details record, he came to know that the stolen mobile phone was used at Barsana UP by one Raju. The witness has further deposed that on 14.06.2011, he along with HC Rajesh went to State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 38 of 62 Barsana Police Station where they called Raju to the police station and Raju disclosed to them that he had purchased a mobile phone from Mukesh a resident of the same village and he had further sold the same to Ashok of the same village. He has deposed that thereafter he called Ashok and Mukesh when Mukesh disclosed that he had purchased the mobile phone from one Jitender resident of Swaroop Nagar who had come to Barsana to attend a wedding. According to the witness, Ashok produced the mobile which he was using and on checking he (witness) found that the IMEI number of the said number was the same as of the stolen mobile belonging to the victim. According to the witness, he thereafter converted the said mobile into a pullanda and sealed the same with the seal of JS and seized the same vide memo Ex.PW19/A. He thereafter recorded the statement of all these persons and brought the mobile back to the police station which was deposited in the malkhana. On 16.06.2011 he went to the house of Jitender, S/o Khajan Singh resident of Swaroop Nagar, Gali No. 5 and on interrogation Jitender disclosed that he had found the mobile lying abandoned at the corner of Bhatta road and gali No. 5 on which he picked up the same and thereafter sold it to same. The witness has further deposed that recorded his statement and also obtained the mobile bill from the complainant and official obtained the CDRs from the company and on 28.07.2011 he recorded supplementary statement of complainant and his brother Abrar after State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 39 of 62 they had identified the accused in the court of the Ld. MM. According to the witness, he thereafter prepared the charge sheet and filed the same in the court. He has correctly identified the accused Vicky @ Vikas and Suhail @ Yamin in the court. He has also identified the mobile phone make Sony Ericsson of black color, model W200i, EMI No. 355441017478881 as the one which was got recovered by Ashok which is Ex.P1. He further identified the black color purse containing the copy of the voter ID card, visiting cards as the same as got recovered by accused Yamin which are collectively Ex.P2 and also identified the black mobile bearing IMEI No. 356032/03/896328/9 having a battery bearing No. 0670400462040P436C10488173 as the same as got recovered by accused Vicky which is Ex.P3.

(47) In his cross examination by Ld. Defence Counsel, the witness has deposed that DD No. 34 A was received at about 11:45 PM and he reached the hospital at about 12­12:15 AM (midnight) on his private motorcycle. According to him he sent the rukka through Ct. Sukhbir to the police station at about 1AM (midnight) who had gone to the police station on his own motorcycle. He admits that he had not seized any blood stained clothes of the victim. According to him he reached at Swaroop Nagar Service Road at about 2:00 AM (midnight) and there was sufficient street light. He has deposed that he had made his ravangi on 10.05.2011 at about 12­1AM (midnight). State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 40 of 62 According to him he reached at the house of Vicky at about 8AM in a private vehicle. He admits that there are residential houses near the residence of accused Vicky and when they reached the house of Vicky they met the mother, father and sister of accused Vicky. The witness has deposed that he had not requested any public person to put signatures on the disclosure statement of accused Vicky. He has denied that the accused Vicky had not made any disclosure statement and he had written the same of his own after taking the signatures of accused Vicky on the blank papers and converted the same into disclosure statement later on. He has further stated that the victim might have been discharged from the hospital on 11.05.2011 but he is not sure of the same. He admits that he had not shown the light pole in the site plan and has voluntarily added that he has mentioned the electric pole in the site plan but the light is not shown in the site plan. According to him on 17.05.2011 when he went to Tis Hazari court to arrest the accused Yamin there were no public persons present outside the court. He admits that on 19.05.2011 when the accused Vicky led them to Swaroop Nagar near the nala, vehicles were passing through the said area at that time. He has further admitted that the place from where the mobile phone was got recovered by accused Vicky is a public place and has voluntarily explained that at that time public persons were not roaming there nor he asked the chowkidar of the school to join the investigations. He State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 41 of 62 admits that no recovery was effected on 19.05.2011 and has voluntarily explained that on 27.05.2011 accused Yamin had pointed out the place of recovery which was a different place near the place which he had pointed earlier on 19.05.2011. According to him he remained at the spot of recovery on 27.05.2011 for about half an hour and does not remember the exact time when he returned back to the police station. He has denied that no recovery was effected from any of the accused persons or that before conducting the TIP proceedings, he had shown the photographs of the accused persons to the complainant. The witness has admitted that the complainant had not mentioned any body structure of the accused persons in his statement and has voluntarily explained that the victim had told him that he could identify the accused persons after seeing them. Witness has denied that both the accused persons have been falsely implicated in the present case, only to work out the present case. Statement of Accused and Defence Evidence:

(48) After completing the prosecution evidence, statements of accused Yamin @ Sohail and Vicky @ Vikas were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied.

(49) According to the accused Yamin @ Sohail he is innocent and had been falsely implicated by the police. He has stated that State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 42 of 62 nothing was recovered from his possession or at his instance the case property, if any, has been planted by the police to falsely implicate him in this case.

(50) According to accused Vicky @ Vikas he is innocent and had been falsely implicated by the complainant Israr in connivance with the police due to previous dispute. He has stated that he was lifted by the police from his house and nothing was recovered from his possession or at his instance the case property, if any, has been planted by the police to falsely implicate him in this case. (51) The accused Yamin has examined two witnesses in defence DW1 Abdullah and DW2 Aurangzeb. According to Abdullah on 14.5.2011 he was sleeping at his house bearing no. 17, Sanjay Nagar, Mahendra Park, Delhi, and at about 3:00 to 3:30 AM (night) police officials came at and arrested him, Yamin and Aurangzeb and took them to the office of Crime Branch, Prashant Vihar where they were kept for two to three days after which he along with Aurangzeb were released while Yamin was taken into custody. In his cross examination by Ld. Addl. PP, the witness has deposed that Yamin is the brother­in­law of his cousin. According to him he along with Yamin were residing in the same room for the last 1½ years but is unable to produce any documentary proof in this regard. He is also unable to give the names of the police officials who had come to arrest them on that night at about 3:30 AM and State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 43 of 62 states that they were in civil clothes. He has further deposed that when they were lifted by the police, nobody from the neighbouring houses came to know about it.

(52) DW2 Aurangzeb has deposed that he is residing at House No. 17, Sanjay Nagar, Mahendra Park, as tenant. According to him on 14.5.2011 he was sleeping at his house and at about 1:00 to 1:30 AM (night) the police officials came and arrested him, Yamin and Abdullah and took them to the office of Crime Branch, Prashant Vihar and detained them for three days after which he along with Abdullah were left while Yamin was in the custody of the police. In this cross examination by Ld. Addl. PP, the witness has deposed that he is related to the accused Yamin as he (Yamin) is the brother in law of his brother and is known to him (witness) for the last 2­3 years.

According to him he is residing with Yamin in a rented room but he is unable to produce any documentary proof in this regard. He has deposed that the police officials had come in civil clothes but he cannot tell their names except that one of them was called as Himanshu. He has deposed that he did not make any complaint to any senior officers of the police or any other authority regarding his illegal detention.

FINDINGS:

(53) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Amicus Curiae for the State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 44 of 62 accused. I have also considered the testimonies of various witnesses examined by the prosecution and also the written memorandum of arguments filed on behalf of the accused. My findings are as under:

Identity of the Accused:

(54) In so far as the identity of both the accused is concerned, it stands established. Firstly the victim Israr (PW3) had participated in the Judicial Test Identification Parade proceedings (Ex.PX3) on 16.5.2011 and has identified the accused Vicky @ Vikas whereas the accused Yamin @ Sohail had refused to participate in the same.

Secondly after the refusal of Yamin to participate in the Judicial Test Identification Parade proceedings, in the month of July the victim Israr identified the accused Yamin in the Court, when he (Israr) had gone to get his phone released from the Court. Thirdly in the court the victim Israr has specifically identified the accused Vicky @ Vikas as the boy who was intoxicated and had come behind him and snatched his mobile after he (victim) was stabbed by the other accused Yamin. The victim Israr has also correctly identified the accused Yamin @ Sohail as the boy who came from backside carrying a knife and had stabbed him and also removed his purse from his pocket. Lastly I may observe that there is no history of any kind of animosity between the complainant / victim and the accused persons and hence there is no reason to disbelieve the version given State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 45 of 62 by the victim Israr. In this background, I hold that the identity of both Vicky and Yamin stands established.

Medical Evidence:

(55) The case of the prosecution is that while committing the robbery the accused Yamin has not only shown the knife to the victim Israr but also given stab injury on his abdomen and head. In this regard the testimony of Dr. Neeraj Chaudhary (PW9) and Dr. R. S. Mishra (PW12) is relevant. Dr. Neeraj Chaudhary has proved that the injured Israr was brought in the hospital casualty with history of physical assault on 28.4.2011 and was examined by Dr. Praveen who thereafter referred him to SR Surgery where he was examined by Dr. Yatinder Singh. The witness has proved that on local examination lacerated wound of 6 cm was found at left temporal region; CLW of 3 cm was present adjacent to it and CLW of 01 cm was found present adjacent to CLW of 3 cm. He has also proved that a laceration wound of 0.5 cm was found present over the nose and another laceration wound of 1 cm was present over left iliac region with protruted omentum. Dr. Neeraj Chaudhary (PW9) has proved the handwriting and signatures of Dr. Yatinder Singh on the MLC Ex.PW9/A. He has also the injuries opined by Dr. Yatinder Singh as dangerous. Further, Dr. R. S. Mishra (PW12) has also proved the signatures of Dr. Yatinder Singh who has opined the injuries of Israr State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 46 of 62 as dangerous. The testimonies of both these witnesses has gone uncontroverted and in this background I hold that that at the time of incident / robbery the victim had received dangerous injuries.

Call Detail Record:

(56) PW14 Hussain M. Zaidi, Nodal Officer, Idea Celluar has proved that customer application form of mobile no. 9012820585 issued in the name of Raju vide application form Ex.PW14/A. Further, PW15 Deepak, Nodal Officer, Vodafone, has proved the customer application form of mobile no. 9899893706 issued in the name of Dinesh Sharma vide application form Ex.PW15/A. PW16 Vishal Gaurav, Nodal Officer, Bharti Airtel, has proved the customer application form of mobile no. 9818526949 (being used by Israr at the time of incident and thereafter being used by Yamin) in the name of one Avinash.

(57) I have gone through the evidence on record in the form of call detail record Ex.PW13/C which establishes the presence of the accused persons in the area where the place of incident is situated in the area. PW11 Dinesh has duly proved that the accused Vikas was the friend of his brother and often used to visit his office and used to ask for small loans of Rs.100/­ or Rs.200/­ and often called him from his mobile number i.e. 97180226954 on his (Dinesh's) mobile number i.e. 9899893706.

State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 47 of 62 (58) The sequence of events leading to the recovery of the mobile phone make Sony Erricson model W200i having IMEI No. 355441017478881 stands established and connects the accused Yamin and Vikas to the commission of robbery of the said mobile phone.

(59) Perusal of the Call Detail Records Ex.PW13/C further reflect that on 2.5.2011 at 19:09:07 (7:09 PM) the accused Yamin had used SIM bearing No. 9818526949 (being used by victim Israr) for making a call to Vikas on his mobile No. 97180226954 (being used by Vikas as proved by PW11 Dinesh) by using the mobile phone of Israr bearing IMEI No. 355441017478881. In the Court neither Yamin nor Vikas have been able to offer any explanation as to how the Call Detail Records of the stolen mobile Ex.PW13/C reflect the number of the SIM being used by the accused Vikas on 2.5.2011 at 7:09 PM (after the incident of robbery on 28.4.2011) from which a call was made to Vikas. This was a special fact which was in the knowledge of both Yamin and Vikas and could have been explained only by them which they have failed to explain (under Section 106 of Evidence Act). This not only conclusively linked the stolen mobile to the accused but also conclusively establishes that both the accused were known to each other and had been communicating to each other.

State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 48 of 62

Recovery of the Stolen Articles:

(60) The case of the prosecution is that pursuant to the apprehension and arrested of the accused Vicky @ Vikas on 10.5.2011, he disclosed his involvement in the present case along with co­accused Yamin. Thereafter, on 19.5.2011 the accused Vikas took the police to the spot where incident had taken place and pointed out the place of occurrence and also took the police to the place where Yamin had thrown the purse and knife but nothing could not be recovered at that time. It is also the case of the prosecution that the accused Vikas also took the police party near a pole from where he got recovered a while coloured polythene containing the mobile phone make NOKIA of black colour having IMEI No. 356032/03/896328/9 and battery bearing No. 0670400462040 P436C10488173 and further disclosed that he used his own SIM bearing No. 97180226954 on the said mobile and spoke to Yamin.

(61) It is evident that on 275.2011 information had been received regarding apprehension of accused Yamin in some other case on which he was formally arrested in the present case and duly interrogated. The accused Yamin pointed out the place of occurrence vide memo Ex.PW21/E and also took the police party near the Nala towards Nangli and got recovered the black coloured purse from bushes which purse was found containing copy of voting I­Card in State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 49 of 62 the name of complainant Israr along with 3 to 4 visiting cards and the said articles were seized by the police vide memo Ex.PW21/D. It stands established that on 8.6.2011 the Judicial Test Identification Parade proceedings of the case property was conducted by Ld. MM vide proceedings Ex.PW23/D when the victim Israr has correctly identified his purse. The ownership of the mobile is established since Abrar the brother of Israr has proved having purchased the same vide receipt/bill Ex.PW3/C which receipt establishes the purchase of this mobile phone bearing IMEI No. 355441017478881 on 20.12.2008 from Hotspots Retails Ltd. Ballabgarh, Faridabad, Haryana by Abrar. (62) It is further evident that thereafter, the call detail record of the stolen mobile were obtained from various service providers along with customer application form and it was come to know to the Investigating Officer that the stolen mobile was being used at Barsana, Uttar Pradesh by one Raju. Thereafter, on 14.6.2011, the police team went to Barsana where they contacted this Raju who told the poilce that he had purchased the mobile phone from Mukesh and he had further sold the same to Ashok both resident of the same village. Thereafter, Mukesh and Ashok were traced and Ashok produced the mobile which he was using and on checking it was found that the IMEI number of the said number was the same as of the stolen mobile belonging to the victim. Mukesh disclosed that he had purchased the mobile phone from one Jitender resident of State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 50 of 62 Swaroop Nagar who had come to Barsana to attend a wedding. Thereafter, on 16.6.2011 when Jitender was contacted who disclosed that he had found the mobile lying abandoned at the corner of Bhatta Road and Gali No. 5 Swaroop Nagar on which he simply picked up the same and sold it to Mukesh. All these witnesses Ashok, Mukesh, Raju and Jitender have been duly examined in the court. Jitender has proved that he had picked up the mobile from Bhatta Road and when he went to Barsana to attend a wedding in the family, he sold the same to Mukesh for Rs.500/­. Mukesh had further sold the said phone to Raju for Rs.530/­. Raju has proved that he had purchased the same mobile in Rs.530/­ from Mukesh and has further sold it to Ashok for Rs.650/­. The said mobile has been produced in the court which is Ex.P1 bearing IMEI No. 355441017478881 make Sony Ericson. Further, PW8 Abrar has proved that he had purchased this mobile make Sony Ericson model W200i from Ballabhgarh, Faridabad, vide bill Ex.PW3/C in his name and gifted the same to his brother Israr and on the date of incident i.e. 28.4.2011 Israr was using the same mobile when it was robbed from him. The purchase of the said mobile by Abarar which he gifted to Israr which mobile was finally found in possession of Ashok has been established. The entire sequence leading to the recovery of stolen mobile phone stands established and it also stands established that pursuant to the disclosure of accused Yamin, stolen purse of the victim Israr which State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 51 of 62 was got recovered by Yamin and duly identified by the victim Israr as belonging to him.

(63) In view of the above, I hereby hold that the recovery effected at the instance of the accused connects them to the alleged offence.

Allegations against the accused:

(64) The case of the prosecution is that both the accused are habitual robbers who have created terror in the area in the minds of people by repeatedly indulging into robbery in the area and on the date of incident i.e. 28.4.2011 they had robbed the victim Israr at the point of knife. While Yamin had stabbed the victim Israr on his head and stomach and removed his purse, the accused Vikas who was in an intoxicated state snatched his mobile from his backside and thereafter both of them pushed him and ran away from the spot.

Relevant portion of the testimony of victim Israr (PW3) is reproduced as under:

"I am resident of the above said address and residing the my family consisting of parents, two sisters and two brothers. On 28.04.11 at about 10:30 pm, I was passing through the under pass of Libas pur through service lane for coming to my house at Swaroop Nagar on foot. As soon as I crossed the under pass and walk for few steps where there are large number of eucalyptis trees, two boys were standing there on the "Dallan" one State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 52 of 62 boy came down on "Dallan" in front of me on service lane and I noticed that he was under the influence of alcohol/intoxicated and when he crossed me I could see from the corner of my eye that he went back. Soon thereafter, I noticed that he started following me. I then noticed that the other boy standing on the Dallan, came towards me and he immediately wiped out a Knife on my stomach. The person who had put the knife on my stomach told "Jo bhi Tere pass hai nikal De".

When I told him I have nothing, he gave me knife blow on my left temple and thereafter, he gave me stabbed on my stomach. The person who had stabbed me removed my purse from the backside pocket of my pants and other person who was behind me snatched my mobile and thereafter both of them pushed me and ran away. I thereafter, got up and went to Swaroop Nagar and telephone to our family and told them what had happened and came back to the pul and laid down there and waited for my family. In the meanwhile somebody had made a call to PCR while simultaneously my family member also reached there from where I shifted to BJRM hospital and received treatment and was referred in the morning to Ganga Ram hospital. I remained admitted in the Ganga Ram hospital from 10th May, 2011. At BJRM hospital my statement was recorded by the police which statement is Ex.

PW3/A bearing my signatures at point A. After my discharged from hospital, I visited Rohini Jail on two occasions for participating in TIP. On 16.05.11, I had gone to Rohini Jail and identified State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 53 of 62 the accused Vicky already Ex. PX­3 bearing my signatures at point A which I identified. On 21.05.11, I had again gone to Rohini Jail for judicial TIP but nothing transpired as I was told that the person concerned was refused for TIP.

On 16.05.11 while I was on the way to the Rohini jail, I had shown to the investigation officer the spot at which the incidence taken place on the basis of which IO made site plan Ex. PW3/B. On 21.05.11, when I came to Rohini Jail for TIP, I also handed over to the IO the purchase bill of the mobile in the name of my brother Abrar which is Ex.PW3/C. In the month of June date I do not recollect, I had come to Rohini Court for identifying my purse before the Ld. MM. There I had identified my purse which at the time of incident was containing copy of Voter ID Card and other visiting card and Rs. 2700/­ and my father photographs. At this stage, the TIP proceedings conducted by LD MM which are on judicial record are placed before the court. The envelope containing the seal of BS is opened and found the containing proceedings conducted by Ld. MM Sh.

Bhupender Singh. The same are Ex. PW 3/D (Colly). The witness had identified his signatures on the same. I again come to the court for release of my phone in the month of July. On that day, when I went to the court both the accused were present in the court and I told the IO who was also present in the IO that both the accused who were present in the court had committed the snatching incident with me.

I can identify the accused , my purse and case property i.e. mobile. At this stage, State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 54 of 62 witness has correctly identified the accused Vicky @ Vikash who was sitting on the last seat of the court room and also the accused Yamin sitting beside Vicky on the court room. The witness has further identified the Vicky @ Vikash who appeared intoxicated and had come behind him and later snatched his mobile and has identified the Yamin the boy who was carrying a knife and had stabbed him and also removed his purse from his pocket"

(65) There is no other eye witness to the incident except the victim. The victim has been cross examined at length. He has admitted that he was working in Samaypur Badli in a workshop and used to go for his work at about 9 to 9:30 AM and used to returned back 9 to 9:30 PM on foot. The witness has explained that there is no light near the underpass and the entire incident took place within two to three minutes. He has deposed that he has made a call to his family members from the STD situated near pul at Swaroop Nagar.

According to him, he was shifted to the hospital by his brother Abrar in PCR where his statement was recorded by the police at about 10:00 PM. He has admitted that he did not hand over his blood stained clothes to the investigating officer.

(66) The aspects which stand established are Firstly that the victim Israr is a resident of the same area (Swaroop Nagar) and it is State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 55 of 62 only natural that he used to take the same route i.e. Subway/ underpass in going to and fro from his residence, an aspect which has gone uncontroverted.

(67) Secondly the injuries on the body of the victim Israr which are dangerous in nature, are conclusive evidence of the fact that the incident had taken place, after which the victim was rushed to BJRM Hospital by the PCR duly accompanied by his brother, where the victim remained admitted for twelve days. (68) Thirdly DD No.34 A dated 28.4.2011 which is Ex.PW23/A and is based upon the first information received by the local police from the PCR has been duly proved by PW23 SI Jagdeep shows that at about 11:27 PM information was received that on the bridge Rs.2,700/­ and mobile phone had been snatched from Israr S/o Hamir age 27 years, R/o K­337, Gali No.2, Khadda Colony, Swaroop Nagar by inflicting knife injuries on the head and abdomen. (Samay 11:27 baje darj hai ki Om­61 Operator ne hazir Duty Officer Room aakar batlaya ki from HC Samir - 412/PCR - 11C­C­42 Israr S/o Hamir age 27 R/o K­337, Gali No.2, Khadda Colony, Swaroop Nagar pul ke upar chakoo maarkar 2700 rupay mobile phone chin liya. Chakoo sir mein, pet meain laga hai. Hospital lekar jaa rahe hain). This DD No.34A reflects that the information was regarding the robbery upon the victim on the point of knife and that the victim had received knife injuries on his head and abdomen. It is this first State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 56 of 62 information which lends credibility and authenticity to the version of the victim on the basis of which the FIR was registered. (69) Fourthly the trail of the stolen mobile phone as reflected and borne out from the Call Detail Records indicates that the location of both the victim Israr and the accused Vicky @ Vicky as on 28.4.2011 was covered by the tower at Swaroop Nagar i.e. the place of the incident thereby lending credence to the version put forward by the victim.

(70) Fifthly there is no history of any dispute or animosity between the accused and the victim and there is no reason why the testimony of the victim Israr should be disbelieved and hence, there is no reason for the victim to have falsely implicated the accused persons. The victim Israr has proved that first it was the accused Vikas who had crossed and passed by him and thereafter the accused Yamin who had come from the backside and inflicted repeated knife blows on him. This establishes that there was sufficient opportunity for the victim to have seen and clearly observed the accused person who had come extreme close to him while inflicting injuries and snatching his mobile phone. Hence, it is at the first instance that the victim had identified the accused Vikas @ Vicky in the Judicial Test Identification Parade proceedings and thereafter on refusal of the accused Yamin to participate in the Judicial Test Identification Parade, identified him in the Court in the month of July while he was State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 57 of 62 produced in the Court of the Ld. MM when the victim had come to the Court for releasing his mobile phone. The victim Israr has also identified both the accused in the Court during the trial when his testimony was recorded.

(71) Lastly the accused Yamin has put a defence that he had been lifted from his house only to work out the present case and in his defence he has examined two witnesses namely Abdullah (DW1) and Aurengzeb (DW2), according to whom on the date of incident i.e. 14.5.2011 the accused Yamin was apprehended by the police from his rented house. Both these witnesses have orally stated that Yamin was present at his rented accommodation on the date of his arrest and was lifted by the officials of the Crime Branch, Prashant Vihar whose names and details they have not been able to provide. Their testimonies do not inspire confidence of this court in so far as the incident with regard to the robbery is concerned. (72) This being the background, I hereby hold that the testimony of the victim is truthful, reliable and credible. There is no reason to disbelieve the victim Israr on the aspect of identification of the accused and also on the role attributed to them. Hence, I hereby hold accused Vicky @ Vikas liable for the offence under Section 392 read with Section 394 Indian Penal Code (being co­jointly responsible along with Yamin for causing injuries to the victim) and the accused Yamin @ Sohail liable for the offence under Section State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 58 of 62 392/394/397 Indian Penal Code.

FINAL CONCLUSION:

(73) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre­requisites before conviction should be recorded, which are as under:

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.

The circumstances concerned 'must or should' and not 'may be' established;

2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

(74) Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 59 of 62 The identity of the accused Yamin @ Sohail and Vicky @ Vikas stands established. It stands established that on the date of incident i.e. 28.4.2011 the victim Israr was coming back to his house at Swaroop Nagar after completing his work at Samaypur Badli and at about 10:30 PM when he crossed the underpass Libaspur and was going through service lane on foot, the accused Yamin @ Sohail and Vicky @ Vikas stopped him. It stands established that Yamin wiped out a knife on his stomach and asked him to handover whatever he has on which the victim Israr refused saying that he had nothing with him. The accused Yamin thereafter gave knife blows on his left temple and stomach and also snatched his purse. It further stands established that in the meantime the accused Vicky @ Vikas came from behind and snatched his (Israr's) mobile make Sony Erricson model W200i having IMEI No.355441017478881 and thereafter both the accused pushed the victim Israr and ran away from the spot and thereafter the victim was removed to the hospital by the PCR Van where he was treated for the injuries received by him. It also stands conclusively established that the injuries received by the victim Israr were found to be dangerous which injuries indicate that the incident had taken place. Further, the recovery of the purse at the instance of the accused Yamin also stands established which purse has been duly identified by the victim Israr as belonging to him. (75) The sequence of events leading to the recovery of the State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 60 of 62 mobile phone make Sony Erricson model W200i having IMEI No. 355441017478881 stands established and connected the accused Yamin and Vikas to the commission of robbery of the said mobile phone. Further, the Call Detail Records placed on record by the prosecution conclusively establishes that both the accused were known to each other and had been communicating with each other. (76) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. (77) There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 61 of 62 and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up continuous link. (78) In view of the above, I hereby hold the accused Yamin @ Sohail guilty for the offence under Section 392/394 read with Section 397 Indian Penal Code and accordingly convicted. (I may clarify that in so far as the provisions of Section 411 Indian Penal Code are concerned, the ingredients of the same are covered under the provisions of Section 397 Indian Penal Code therefore no separate findings are required.) (79) In so far as the accused Vicky @ Vikas is concerned, I hereby hold him guilty for the offence under Section 392 read with Section 394 Indian Penal Code (being co­jointly responsible along with Yamin for causing injuries to the victim) and accordingly convicted. However, he is acquitted of the charges under Section 397 Indian Penal Code.

(80) Be listed for arguments on sentence on 24.7.2012.

Announced in the open court                                  (Dr. KAMINI LAU)
Dated: 19.07.2012                                          ASJ (NW)­II: ROHINI




State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar             Page 62 of 62
    IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS 
    JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI

Sessions Case No. 58/2011
Unique Case ID: 02404R0226892011

State                       Vs.    (1) Vicky @ Vikas
                                       S/o Nand Kishore
                                       R/o D­61, Gali No. 14,
                                       Bhatta Road, Swaroop Nagar,
                                       Delhi.
                                       (Convicted)

                                     (2)   Yamin @ Sohail
                                           S/o Nyab Khan
                                           R/o D­107, Bindapur JJ Colony
                                           Delhi.
                                           (Convicted)

FIR No.                     :              67/2011
Police Station              :              Swaroop Nagar
Under Section               :              392/394/397/411/34 IPC

Date of Judgment:           19.07.2012

Arguments heard on: 24.7.2012

Date of sentence:           28.7.2012


APPEARANCE:

Present:      Sh. Sukhbeer Singh, Additional Public Prosecutor for the 

              State.



State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar         Page 63 of 62

Both the convicts in judicial custody with Sh. Vijay Kumar Advocate.

ORDER ON SENTENCE:

Vide my detailed judgment dated 19.7.2012 the accused Yamin @ Sohail has been held guilty of the offence under Section 392/394 read with 397 Indian Penal Code. Further, the accused Vikas @ Vicky has been held guilty of the offence under Section 392/394 Indian Penal Code and has been acquitted of the charge under Section 397 Indian Penal Code.

As per the allegations, on 28.4.2011 at about 10:25 PM the complainant/ victim Israr was returning to his house at Swaroop Nagar from Azadpur. When Israr crossed the Swaroop Nagar underpass and was going towards Nala through service road, two boys suddenly came in front of him. One of the boy took out a knife and demanded money from him but he (victim) refused on which the said boy gave knife blows on his head and stomach and thereafter robbed him of his purse from the pocket of his pant containing Rs. 2700/­. The second boy also robbed his mobile make Sony Erricson model W200i bearing No. 9818526949 and thereafter both the assailants ran away from the spot. The victim somehow managed to make a call from the PCO/ STD near the bridge at Swaroop Nagar which is just adjoining the spot of incident and made a telephone call State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 64 of 62 to his family and told them about the incident after which he came back towards the pul (Subway) and lay down there when in the meanwhile somebody made a call to PCR while simultaneously his family members and the PCR reached there and he was shifted to BJRM Hospital. Statement of the victim/ complainant Israr was recorded in the BJRM Hospital on the basis of which the present FIR was recorded. During investigations, on the basis of the call detail record of the robbed mobile, the accused Vicky @ Vikas was arrested in this case who disclosed his involvement in the present case along with co­accused Yamin @ Sohail. Thereafter, 16.5.2011, the accused Yamin was arrested by Special Team, Crime Branch, Prashant Vihar, who on interrogation disclosed his involvement in the present case along with the accused Vicky @ Vikas and on receipt of this information, the Investigating Officer of this case has formally arrested the accused Yamin in this case on 17.5.2011.

During the trial, the victim Israr has appeared in the Court and has identified both the accused Vikas @ Vicky and Yamin @ Sohail in the Court. He has identified the accused Yamin @ Sohail as the boy who had stabbed him and removed his purse from his pocket and the accused Vicky @ Vikas who later on snatched his mobile. On the basis of the testimonies of the various witnesses examined by the prosecution, particularly the victim Israr, medial and electronic evidence on record vide a detailed judgment dated State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 65 of 62 19.7.2012 the accused Yamin @ Sohail has been held guilty for the offence under Section 392/394 read with 397 Indian Penal Code whereas the accused Vikas @ Vicky has been held guilty of the offence under Section 392 Indian Penal Code only and has been acquitted of the charges under Section 394/397 Indian Penal Code.

Heard arguments on the point of sentence. The convict Vikas @ Vicky a young boy of 24 years is reported to be 9th class pass. He is a carpenter by profession and is having a family comprising of aged father, mother, one younger brother and two sisters. He has already remained in judicial custody in this case for One year, two months and eighteen days. He is also involved in many other cases whose details are as under:

1. FIR No. 186/04 under Section 379/411/341 IPC & 25 Arms Act PS Samaypur Badli.

2. FIR No.432/05 under Section 25/54/59 Arms Act PS Smaypur Badli.

3. FIR No. 792/05 under Section 25/54/59 Arms Act PS Samaypur Badli.

4. FIR No. 601/07 under Section 186/ 353 /365/411/506/34 IPC PS Modle Town.

5. FIR No. 263/09 under Section 356/357/34/394/411 IPC PS Janakpuri.

State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 66 of 62

The convict Vikas @ Vicky has also been convicted previously in the following cases:

1. FIR No. 51/06 Under Section 25/54/59 Arms Act PS Smaypur Badli.

2. FIR No. 8/07 Under Section 379/411/34 IPC PS Swaroop Nagar

3. FIR No. 2/07 Under Section 452/324 IPC PS Samaypur Badli.

4. FIR No. 64/11 under Section 392/397/411/34 IPC, PS Bhalswa Dairy (wherein he has been sentenced to Rigorous Imprisonment for a period of 10 years by this Court).

The convict Yamin @ Sohail a young boy of 26 years is reported to be totally illiterate. He is a motor mechanic by profession and is having a family comprising of aged father, mother, two brothers, one sister, wife, one daughter (aged 6 years) and one son (aged one year). He has already remained in judicial custody in this case for One year, two months and eleven days. He is also involved in many other cases whose details are as under:

1. FIR No. 459/97 under Section 380 IPC PS Jahangirpuri.

2. FIR No. 479/97 under Section 380 IPC PS Jahangirpuri.

3. FIR No. 1115/98 under Section 457/380 IPC PS Jaitpur.

4. FIR No. 733/99 under Section 307/341 IPC PS Uttam Nagar. State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 67 of 62

5. FIR No. 593/99 under Section 392/34 IPC PS Uttam Nagar.

6. FIR No. 662/02 under Section 25 Arms Act PS Uttam Nagar.

7. FIR No. 63/03 under Section 25 Arms Act PS Hari Nagar.

8. FIR No. 875/03 under Section 380 /411 IPC PS Uttam Nagar.

9. FIR No. 767/07 under Section 394/34 IPC PS Dabri.

10. FIR No. 669/05 under Section 25 Arms Act PS Uttam Nagar.

11. FIR No. 8/07 under Section 21 NDPS Act PS Uttam Nagar.

12. FIR No. 549/04 under Section 379/411 IPC PS Defence Colony.

13. FIR No. 1013/04 under Section 307/34 IPC PS Uttam Nagar.

14. FIR No. 150/08 under Section 379 IPC PS Bindapur.

15. FIR No. 258/08 under Section 379/34 IPC PS Bindapur.

The accused Yamin @ Sohail has also been convicted in the following cases previously:

1. FIR No. 1180/03 Under Section 356/379/34 IPC PS Uttam Nagar.

2. FIR No. 37/2006 Under Section 324/341/34 IPC PS Hari Nagar.

3. FIR No. 64/11 under Section 392/397/411/34 IPC, PS Bhalswa Dairy (wherein he has been sentenced to Rigorous State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 68 of 62 Imprisonment for a period of 10 years by this Court).

Ld. Counsel for the convict has vehemently argued that keeping in view the young age of the convicts any harsh view would be detrimental not only to the convicts but also the their families. He requests that a lenient view be taken against the convicts.

On the other hand the Ld. Addl. PP for the State has prayed that a strict punishment be awarded to the convicts keeping in view their other involvements. He has argued that the convicts do not hesitate in using dangerous weapons upon innocent victims and by their acts adversely affect social order for which reason they do not deserve any leniency.

I have considered the rival contentions. Law and order situation particularly the street crime like mobile snatching, purse snatching etc. has been deteriorating in the City and has worsen in the recent past. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are on rise and this is a matter of serious concern where immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. The need of hour is to curb the criminal activities with an iron hand and punish such wrong doers. Courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 69 of 62 upon the need for awarding the punishment for a crime which should not be irrelevant but should conform and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. [Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175]. Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.

In the present case both the convicts who are habitual criminals with large number of cases involving serious offences against them, had unhesitatingly and indiscriminately used knife on the helpless passer­bye Israr and caused dangerous injuries to him on his head and stomach while snatching his mobile and purse. Such instances, if not dealt firmly and appropriately, tend to spread terror in the society affecting social order and the faith of people in the system. Israr survived by sheer luck. While inflicting repeated injuries on the victim who had no previous history of animosity with the convicts, dangerous injuries had been inflicted upon him ruthlessly with the sole intent of monetary gain. Hence undue sympathy to the convicts, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 70 of 62

The convicts before this Court are hardened/ dreaded criminals having a history of previous criminal involvements. It is writ large from their criminal record that they do not hesitate to take law into their hands and hence, they are not entitled to any leniency. I, therefore, award the following sentences to the convict Vikas @ Vicky:

For the offence under Section 392/394 Indian Penal Code, the convict Vikas @ Vicky is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.10,000/­. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.

Further, I award the following sentences to the convict Yamin @ Sohail:

For the offence under Section 392/394 read with Section 397 Indian Penal Code, the convict Yamin @ Sohail is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs.10,000/­. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.

Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them during the trial in the present case, as per rules.

State Vs. Vicky @ Vikas, FIR No. 67/11, PS Swaroop Nagar Page 71 of 62

It is clarified that the sentence in the present case shall run consecutively (after the completion) to the sentence imposed upon the convicts by this Court in case bearing FIR No. 64/2011, Police Station Bhalswa Dairy, under Section 392/397/411/34 IPC.

The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34­37, Lawyers Chamber Block, High Court of Delhi, New Delhi.

Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached along with their jail warrants.

File be consigned to Record Room.

Announced in the open court                                  (Dr. KAMINI LAU)
Dated: 28.07.2012                                          ASJ (NW)­II: ROHINI




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