Delhi District Court
State vs Kamal Kumar S/O Sh. Rama Shankar R/O ... on 20 March, 2015
IN THE COURT OF SH. DINESH BHATT, ASJ06 (CENTRAL)/ TIS
HAZARI COURTS, DELHI
Sessions Case No.:123/14
Unique ID no.:02401R0478742014
State Vs Kamal Kumar S/o Sh. Rama Shankar R/o J162, Prem Nagar 2 nd, Nangloi,
Delhi.
Case arising out of:
FIR no. : 105/14
Police Station : Sarai Rohilla Station
Under Section : 392/397/411/34 IPC
Date of Institution : 27/10/2014
Date on which order was reserved : 04/03/2015
Date of Decision : 20/03/2015
J U D G M E N T:
1. This is a case u/s 392/397/411/34 IPC
2. Prosecution's case is that in the intervening night of 3031/07/14 complainant was traveling in EMU train. Near Nangloi Railway station two accused persons by showing knife robbed complainant of his mobile phone, Rs.500/, railway handicap pass, voter ID card etc. One of the accused jumped from the moving train. The other went back in the train but nobody helped the complainant in nabbing the accused. Complainant got down at the SC no.:123/14 Page 1/10 railway station and met duty constable and narrated the incident to him. Ct. lodged the report. IO arrived at the spot, recorded statement of complainant, rukka was sent, FIR was lodged. On the same day police alongwith the complainant reached near foot over bridge of platform no.2, 3 and found one of the accused sitting near the grill of foot over bridge. On identification of complainant the said accused(JCL) was apprehended from whom Rs.500/ robbed in the incident were recovered. The said accused disclosed about involvement of the other accused Kamal and led the police party to goods train shed Nangloi Railway station where accused Kamal was found in injured condition. On search of accused robbed Nokia mobile phone was recovered. Four mobile phones were also recovered which were disclosed to be robbed from other persons. Accused Shanu was found to be JCL as such was forwarded to JJB. After completion of investigation chargesheet was filed.
3. Prosecution has examined 07 witnesses.
4. PW1 on 31/07/2014 at 6:10 am on receiving rukka through constable Yogender had recorded FIR and handed copy to be delivered to HC Hazari Lal on the spot.
5. PW2 produced the record relating to deposit of three sealed pullandas containing mobile phone, Rs.500/ and four mobile phones with articles recovered from personal search of accused. On 08/10/2014 Rs.500/ was released to complainant vide court order and endorsement made at point X on Ex.PW2/A.
6. PW3 was the duty constable at PS Sarai Rohilla on the night of incident in question. At about 3:30 am on platform no.2 and 3 complainant met him and disclosed about robbery of his Nokia mobile phone, Rs.500/ and his handicapped pass, voter ID card by two persons by use of knife in EMU train near Nangloi Railway Station. He reported the matter to police. Police reached the spot. Statement of complainant was recorded. He had taken the SC no.:123/14 Page 2/10 same and returned with FIR. Police team went in search of accused and near the Grill of foot over bridge found one accused identified by complainant. On search of said accused Shanu(JCL) Rs.500/ robbed amount was recovered. Accused disclosed involvement of other accused Kishan and led police to goods train shed at Nangloi Railway station from where accused Kamal who was sleeping was apprehended. Complainant's Nokia mobile phone was recovered from him. Besides this four more phones and some articles were recovered from the said accused.
7. PW4 is the complainant who for the purpose of replacing artificial leg had boarded EMU passenger train from Rohtak to Delhi. In the intervening night of 3031/07/2014 two accused persons snatched his mobile, Rs.500/ using knife. Accused Kamal jumped from the moving train. Another accused young boy ran towards back side and was apprehended by the public in the train itself. Complainant got down at Nangloi Railway station. The said accused was also deboarded from the train with the help of public persons. One police official was told about the incident. His statement was recorded. He alongwith police official had gone to Shakurbasti Railway station where accused present in the court was lying in injured condition at open place near railway track and from him Rs. 500/, mobile phone and other documents were recovered. Accused was arrested. He identified his mobile phone and currency note. This witness omitted to relate the full incident and was thus allowed to be cross examined by the prosecution wherein he reiterated the prosecution story and he admitted that one accused had jumped from running train ahead of Nangloi railway station and other passengers in the train had not helped him at the time of incident in question. He also admitted at the foot over bridge one accused Shanu Gupta was apprehended from whom Rs.500/ were recovered. From accused Kamal besides mobile phone of the case four other mobile phones and other articles were recovered. SC no.:123/14 Page 3/10
8. PW5 had received call DD no.4A which was made by PW3 about the incident in question and had gone to spot where complainant and Constable Yogender were found. He had recorded their statement. Rukka was sent for registration of FIR. Inspector Hari Krishan alongwith FIR reached the spot and had made inquiry. From the foot over bridge had apprehended one accused Shanu from whom Rs.500/ were recovered. Said accused Shanu led them to Nangloi Railway station and from goods train shed accused Kamal was apprehended and from accused, complainant's Nokia phone was recovered, besides this four more phones were recovered and were seized.
9. PW6 had examined accused Kamal vide MLC 5197/14 and was reported having five injuries relating to bleeding,swelling of nostril, lip, left ankle, back and shoulder joint.
10. PW7 IO had reached the spot alongwith FIR and constable Yogender where complainant alongwith HC Hazari Lal was found. At foot over bridge of platform 2 and 3 they apprehended JCL Shanu and Rs.500/ were recovered from him. On disclosure of JCL accused Kamal was apprehended from goods shed of Nangloi Railway station and robbed mobile alongwith other four mobiles and some more articles were recovered from the accused. Juvenile was produced before JJB.
11. The allegations against the accused are that on 30/07/2014 in the night accused in association with JCL Shanu, robbed complainant of his mobile phone, Rs.500/, handicapped pass, photocopy of voter ID card and was armed with deadly weapon at the said time. Complainant's mobile phone was recovered from the accused alongwith four other mobile phones.
12. PW4 is the complainant and the only eye witness of the incident. He stated that SC no.:123/14 Page 4/10 on the night of 30/07/2014 when he was traveling in passenger train from Rohtak to Delhi for getting new artificial leg, at Sultanpuri Railway station two persons boarded the train. He had separated his artificial leg and kept the same on train berth. Accused Kamal snatched his mobile phone and the other young aged accused took out Rs.500/ some more Rs.40/ to Rs. 50/, railway handicapped pass etc from his pocket and accused slapped him and pointed knife, threatening "Faltu bola to maar dunga" and jumped from running train at railway crossing. The said other young accused ran towards back side of the train and was apprehended by the public itself. He got down at Nangloi Railway station and other accused was also deboarded by the public at the said station. He had disclosed the incident to the police officials at the platform. Later police officials arrived at the spot and his statement was recorded. He alongwith police officials had gone to other railway station Shakurbasti where accused was found lying in open place near railway track having injury on his leg sustained due to jumping from the train. He had identified accused and Rs.500/, mobile phone and other documents were recovered from the accused. He identified his recovered mobile phone Ex.P1, currency note as Ex.P3 which were released to him on superdari.
13. He was stated to have suppressed some material fact and therefore was allowed to be cross examined on behalf of state and thereby reaffirmed the prosecution story stating that incident took place at about 11 pm. One accused had jumped from the running train. 24 passengers were sitting in the compartment but no one had helped him. He searched for police officials and after some time met Ct. Yogender who was informed about the same. His statement had been recorded. He also admitted that he had gone in search of accused with police official and found one person sitting on the foot over bridge who had taken his Rs.500/ and documents from his pocket. Said accused Shanu Gupta was apprehended on his identification. The recovered note was kept in sealed cover. He also admitted he had gone SC no.:123/14 Page 5/10 with said accused Shanu and police official to Nangloi Railway station from where in the shed of goods train accused Kamal was apprehended and from his search his mobile phone was recovered. He also admitted from search of accused four other mobile phones, one syringe, one scissors one small bottle of medicine was recovered and converted into sealed pullanda and stated that due to lapse of time he could not narrate all the facts during the course of his examination in chief and identified the other articles Ex.P2 recovered from the accused.
14. In cross examination on behalf of accused stated that he did not remember at which railway station he had got down from the train or at what time or on what date. He admitted that from the platform he had gone to the police station with police officials. He also admitted that after apprehension of the accused police officials gave beatings to him. He also admitted that after apprehension of accused Kamal on his identification accused was taken to police station. He denied that mobile phone Ex.P1 was not belonging to him or that he had wrongly identified the same. He also clarified that he was illiterate and therefore did not know the correct date of the incident but it had taken place in the last summer about 34 months ago. He denied that he had identified the accused on the asking of the police who had told him that he would get his Rs.500/ only after identification of the accused. He stated he had never gone to police station after the incident in question.
15. This witness initially reported a different story about apprehension of JCL Shanu stating he was apprehended by the passengers in the train itself and accused Kamal was apprehended from open area near Shakurbasti railway station and that all recovery was effected from accused Kamal. But later clarified, corroborated and proved the entire prosecution's story and explained that he had forgotten some details due to lapse of time. Complainant also stated he was illiterate and there are some missing links in his initial SC no.:123/14 Page 6/10 statement which suggests that the explanation given by PW4 might be correct. The said missing links are that PW4 stated JCL was apprehended in the train by the passengers and he got down at Nangloi Railway Station and accused was also deboarded by the public at the said station police official met him at Station and he reported the matter to him, but omitted to mention as to what happened to the said JCL as to whether he was handed over to Ct. Yogender or not PW4. In the later part of his testimony he clarified that JCL Shanu was apprehended from grill near foot over bridge by the police team and said JCL disclosed about involvement of accused Kamal and led the police party to goods train shed at Nangloi Railway Station from where accused Kamal was lying on the open area, was apprehended and from him his mobile phone, four other mobile phones and some other articles were recovered. He also clarified that his robbed Rs.500/ were recovered from JCL Shanu. There is no other substantial contradiction shown in regard to the role, offence and apprehension of accused present Kamal.
16. PW4 clearly stated that while traveling in the passenger train in the night of 30/07/2014, two accused persons one being young (JCL) and other being the accused Kamal robbed him of his mobile phone and Rs.500/. Accused Kamal jumped from the moving train and was apprehended from open space near railway tracks and had received injuries due to jumping from the train, and his mobile phone was recovered from the accused.
17. Thus the above said contradiction in regard to the apprehension of JCL Shanu (though the same have reasonably been explained in later part of testimony) by PW4 also do not substantially affect the merits of the case in any manner with respect to the offence committed by accused Kamal. Further the manner in which the accused had been naming or stating he did not know the name of Railway station in his cross examination and stating about the names of different railway stations at different points and he being of Rohtak, it SC no.:123/14 Page 7/10 appears that he was not well conversant with the railway stations or places of Delhi. Minor contradictions in regard to name of the railway station is therefore not fatal to the prosecution case. Further two suggestions given on behalf of the accused to PW4 "It is correct after apprehension of the accused police officials gave beatings to him. It is correct accused Kamal was taken to police station after his apprehension on my identification"
show that the apprehension of the accused on the identification of the complainant on the said day is not seriously disputed.
18. Complainant's first statement Ex.PW4/A was stated to be recorded at the platform immediately after the incident in question and bears thumb impressions of the complainant. As per the said statement Ex.PW4/A after the robbery in question one accused jumped from the moving train while JCL ran towards back side of the compartment and 24 passengers who were present there had not helped him.
19. As per prosecution story JCL Shanu was apprehended from grill of foot over bridge near platform no.2 and 3 in question and on his disclosure involvement of accused Kamal was found. The said JCL led the police to goods train shed where accused Kamal was found lying in pain and from him complainant's mobile phone and other four mobile phones were recovered.
20. Accused was apprehended in presence of PW3, PW4, PW5 and PW7. All have deposed on similar lines that JCL Shanu led the police party to shed of goods train at Nangloi Railway station where accused was found lying on open shed of goods train and was in pain. No substantial contradiction in respect of the apprehension of the accused from the said place in cross examination of PW3, PW5 and PW7 has been shown. Further from the said accused the robbed mobile Nokia phone Ex.P1 was recovered alongwith four other SC no.:123/14 Page 8/10 mobile phones. The said mobile phone Ex.P1 was seized vide Ex.PW3/A and signed by PW3, PW4, PW5 besides IO and have identified their signatures on the same. PW2 proved that the said mobile phone was deposited with him vide sealed pullanda with seal of RMS on 31/07/2014 as per entry Ex.PW2/A.
21. It is the prosecution story that accused Kamal had jumped from moving train and therefore suffered injuries. It is argued on behalf of accused that police had beaten the accused and the injuries in question were sustained due to said assault. After the arrest of accused he was taken to hospital and was examined by PW6 as per MLC having detailed report Ex.PX. As per the said MLC Ex.PX accused was brought to Hindu Rao Hospital on 31/07/2014 at 3:15 pm by Ct. Sunny and accused was having bleeding from left nostril, swelling over lower lip, swelling over left ankle joint, pain in lower back, pain in knee joint, pain in left shoulder joint. The injuries suffered by accused corroborate the version of PW4 that accused had suffered injuries due to jump from moving train. The argument of Ld. Counsel for accused that he suffered injuries only due to beating by the police officials does not appear to be substantiated from record as accused is shown to be arrested at 2:28 pm from Nangloi Railway station shed and his MLC was prepared at 3:15 pm on the same day. There was thus not much gap between the two events of arrest and medical examination of the accused. Further accused after MLC was produced before Magistrate but there is no report etc made to any authority about police having beaten accused. Therefore the possibility of police having beaten the accused badly to the extent of injuries reflected in the MLC would be improbable. Accused has also not led any evidence to prove the said defence. There is, therefore, no reason to doubt the testimony of PW4, identification of accused Kamal and recovery of mobile phone Ex.P1 from him.
22. Prosecution has further stated that the other four mobile phones recovered from SC no.:123/14 Page 9/10 the accused were also stolen property but no evidence has been led to substantiate the said plea. Further in respect of use of knife by the accused in the offence in question, complainant had not given any description of the used knife, prosecution has not been able to recover the said knife and no reasonable explanation for not being able to recover the same has been shown on record. Further complaint Ex.PW4/A shows word 'knife' was separately added in the main complaint. Thus this fact of use of knife by accused is not proved beyond doubt. Accordingly, prosecution has been successful in proving beyond reasonable doubt that accused in association with one more accused had robbed complainant's mobile phone and Rs.500/ in the incident in question and the said mobile phone has been recovered from the accused.
23. The offences u/s 392/34 IPC and U/s 411 IPC are proved against the accused and the accused is accordingly convicted under the said sections.
Announced in the open court (DINESH BHATT)
on 20/03/2015 ASJ/Delhi/20/03/2015
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