Delhi District Court
State vs . (1) Ajay @ Genda on 18 March, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII
(NORTHWEST): ROHINI COURTS: DELHI
Session Case No. 127/2013
Unique Case ID No.: 02404R0116182013
State Vs. (1) Ajay @ Genda
S/o Shishpal
R/o House No. S582,
Mangol Puri, Delhi &
Village Tilkirodi, Disst. Behror,
Rajasthan
(Convicted)
(2) Arjun @ Gopu
S/o Rajender
R/o Jhuggi No. 101, Lal Bagh,
Azadpur, Delhi
(Convicted)
FIR No.: 97/2013
Police Station: Vijay Vihar
Under Sections: 392/394/397/34 Indian Penal Code
Date of committal to sessions court: 2.7.2013
Date on which orders were reserved: 4.2.2014
Date on which judgment pronounced:7.3.2014
JUDGMENT:
(1) As per allegations on 20.2.2013 at about 3:30 PM at Mahadev Chowk, near Avantika both the accused Ajay @ Genda and Arjun @ Gopu St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 1 in furtherance of their common intention robbed Smt. Reena of her gold chain along with the gold locket on the point of knife shown by accused Arjun and while committing robbery they voluntarily caused hurt/ injuries to Smt. Reena by dragging her along with the motorcycle after wrapping her shawl around her neck.
BRIEF FACTS/ CASE OF THE PROSECUTION:
(2) The case of the prosecution is that on 20.02.2013 at 3:49 PM DD No. 68B was received at Police Station Vijay Vihar that a thief had been caught at MCD Flat Vijay Vihar near Dr. Aggarwal Clinic. Pursuant to the same SI Gajender along with Ct. Laxmiah reached at MCD Flat 40 feet road near Axis Bank ATM, Sector 4 Rohini where they found many public persons gathered and one motorcycle bearing No. DL6SAF8295 make Pulsor of silver color was lying. On inquiries the police came to know that two boys had snatched gold chain from a lady and one of the motorcyclist who had been caught by the public and police, was taken to BSA hospital in PCR van. Thereafter SI Gajender along with Ct. Laxmiah went to BSA hospital where they met the victim Smt. Reena who was under treatment in the hospital and one Ajay S/o Shish Pal was also under treatment in BSA hospital in the casualty. Smt. Reena informed the police that on 20.02.2013 at about 3:304:00 PM she was going to the house of her parents at A1/45, Vijay Vihar phase II from her matrimonial home and when she reached just ahead of Mahadev Chowk, Avantika to the side of Vijay Vihar one St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 2 motorcycle came from her front side and two persons were riding on it. She further told the police that the motorcycle stopped near her as she was on foot and both the motorcyclists asked her to hand over whatever jewelery she was wearing and on her refusal the pillion rider of the motorcycle pulled out a knife and and pointed out towards her and threatened her to hand over the jewelery to him. According to Smt. Reema, she refused to hand over her jewelery and tried to run away from there in order to save herself but the motorcyclist chased her and the pillion rider pulled her shawl and caught her gold chain having locket which she was wearing at that time and dragged her to certain distance as the pillion rider had caught her shawl. She further informed the police that she fell down on the ground and in this process the pillion rider snatched her gold chain having locket and on hearing her cries the public persons present over there helped her and her neighborer Manish @ Rakesh and one police official Nand Singh with the help of public persons caught the person who was driving the vehicle (motorcycle). Smt. Reena also informed the police that Ajay who was present in the casualty of BSA Hospital was driving the motorcycle and the pillion rider who had run away snatched her gold chain on the point of knife, by pulling her shawl. SI Gajender then recorded the statement of Smt. Reena on the basis of which the present case was registered. The accused Ajay @ Genda was thereafter arrested and in his disclosure statement he admitted having committed the offence. Efforts were made to trace the coaccused Arjun but he could not be traced and hence, after completion of investigations initially charge sheet St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 3 was filed against the accused Ajay @ Genda.
(3) After filing of the charge sheet against the accused Ajay @ Genda, the Investigating Officer SI Gajender came to know that coaccused Arjun who was wanted in this case was arrested in some other case by the police of Police Station Adarsh Nagar. Pursuant to the same SI Gajender got issued a production warrant of accused Arjun @ Gopu pursuant to which on 03.10.2013 the accused Arjun @ Gopu was produced in the Court by the Jail Authorities in muffled face and thereafter the accused Arjun was formally arrested in this case and his disclosure statement was recorded. The Investigating Officer then moved an application for conducting the TIP of accused Arjun which was fixed for 07.10.13 but during TIP he refused to participate. Thereafter one day Police Custody Remand of the accused Arjun was obtained from the Court during which the accused Arjun pointed out the place of incident vide pointing out memo Ex.PW12/A. The accused Arjun then took the Investigating Officer to Loni to get recover the looted chain but the same could not be recovered. Further, despite best efforts the weapon of offence could not be recovered. After completion of investigations, supplementary charge sheet was filed against the accused Arjun @ Gopu.
CHARGE:
(4) Charges under Sections 392/34 and 394/34 Indian Penal Code were settled against both the accused Ajay @ Genda and Arjun @ Gopu to St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 4 which they pleaded not guilty and claimed trial. Further, a charge under Section 397 IPC was settled against the accused Arjun @ Gopu to which he pleaded not guilty and claimed trial.
(5) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution witnesses:
Sr. No. PW No. Name of the witness Details of the witnesses
1. PW 1 HC Rakesh Police witness/ MHCM
2. PW 2 HC Rajesh Gaur Police witness/ Duty Officer
3. PW 3 Ct. Deepak Police witness who had preserved the spot
4. PW 4 Dr. Deepti Bhalla Witness from BSA Hospital who has proved the MLC of the victim
5. PW 5 Smt. Reena Complainant/ victim
6. PW 6 Rakesh Public witness/ neighbour of the victim
7. PW 7 ASI Nand Singh Police witness/ eye witness to the incident
8. PW 8 Ct. M Laxmaiah Police witness who had reached the spot along with SI Gajender
9. PW 9 Ct. Krishan Police witness who had joined investigations with SI Gajender
10. PW 10 SI Gajender Singh Investigating Officer of the case
11. PW 11 Dr Ranjan Witness from BSA Hospital who has proved the MLC of the victim
12. PW 12 Ct. Praveen Police witness who had joined investigations with SI Gajender
13. PW 13 Rohit Jain Witness from Axis Bank
14. PW 14 Ct. Bhunesh Police witness who had joined investigations with SI Gajender St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 5
15. PW 15 Ct. Abhijit Police witness who had joined investigations with SI Gajender List of documents exhibited:
Sr. No. Exhibited Name of documents Proved By
1. PW 1/1 Affidavit of evidence of HC Rakesh HC Rakesh
2. PW 1/A Copy of Reg No. 19 Sr. No. 113/13
3. PW 1/B Copy of Reg No. 19 Sr. No. 117/13
4. PW 2/1 Affidavit of evidence of HC Rajesh Gaur HC Rajesh Gaur
5. PW 2/A DD No. 23A
6. PW 2/B Copy of FIR
7. PW 2/C Endorsement on rukka
8. PW 3/1 Affidavit of Ct. Deepak Ct. Deepak
9. PW 4/A MLC of Reena Dr. Deepti Bhalla
10. PW 5/A Statement of Reena Reena
11. PW 5/B Arrest memo of Ajay
12. PW 5/C Personal search memo of Ajay
13. PW 5/D Site plan
14. PW 5/E TIP proceeding of Arun
15. PW 6/PX1 Confronted statement of Rakesh Kumar Rakesh Kumar
16. PW 8/A DD No. 68/B Ct. M Laxmaiah
17. PW 8/B Disclosure Statement of Ajay
18. PW 8/D Seizure memo of Motorcycle
19. PW 8/PX1 Confronted Statement
20. PW 9/A Supplementary disclosure statement of
accused Arjun
21. PW 10/A Rukka SI Gajender Singh
22. PW 10/B Supplementary Disclosure Statement
23. PW 10/C Seizure memo of Gold Chain
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 6
24. PW 12/1 Affidavit of Ct. Praveen Ct. Praveen
25. PW 12/A Pointing out memo
26. PW 13/A Bank Account statement 19/02/13 to Rohit Jain
21/02/13
27. PW 14/A Arrest memo of Arun Ct. Bhunesh Kumar
28. PW 14/B Disclosure Statement of Arjun
29. PW 15/A Disclosure Statement of Arjun Ct. Abhijit
EVIDENCE:
(6) In order to prove its case, the prosecution has examined as many
as Fifteen Witnesses as under:
Public witnesses:
(7) PW5 Smt. Reena is the victim in the present case. She is a
housewife and has deposed that she is residing at D593, Avantika, Rohini, Delhi along with her family. According to her on 20.02.2013 at about 3:304:00 PM she was going to the house of her parents at A1/45, Vijay Vihar phase II from her matrimonial home and when she reached just ahead of Mahadev Chowk, Avantika to the side of Vijay Vihar one motorcycle came from her front side and two persons were riding on it. She has further deposed that the motorcycle stopped near her as she was on foot and both the motorcyclists told her to hand over whatever jewelery she was wearing but she refused on which the pillion rider of the motorcycle pulled out a knife and and pointed out towards her and threatened to hand over the jewelery.
According to the witness, she refused to hand over her jewelery and tried to St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 7 run away from there in order to save herself and she was wearing shawl at that time. She has testified that the motorcycle was in a start position and they (motorcyclist) chased her on their motorcycle and the pillion rider pulled her shawl and caught her gold chain having locket which she was wearing at that time and the motorcyclist sped up and dragged her to certain distance as the pillion rider had caught her shawl. The witness has further deposed that she fell down on the ground and in this process the pillion rider snatched her gold chain having locket. According to her, the public persons present over there helped her after hearing her cries and her neighbour Manish who is also known as Rakesh and one police official Nand Singh with the help of public persons caught the person who was driving the vehicle (motorcycle). Witness has also deposed that the motorcyclist fell down on the ground and pillion rider ran away from the spot with her gold chain having locket and she sustained injury on her right hand and scratches on other parts of the body. She has further deposed that the motorcyclist was caught by the police official Nand Singh who was not in uniform at that time. According to the witness, someone called at 100 number on which PCR came at the spot and took her and the motorcyclist with police official Nand Singh to BSA Hospital where she was medically examined. Witness has further deposed that police came to the hospital and recorded her statement which is Ex.PW5/A bearing her thumb impressions at point A because she could not sign the same on account of the injury sustained by her on her right hand. She has proved that the assailant who was driving the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 8 motorcycle and was in the hospital was arrested by the police vide memo Ex.PW5/B and his personal search was also conducted vide memo Ex.PW5/C. According to the witness, after her medical examination she accompanied the police to the spot and at her instance site plan was prepared vide Ex.PW5/D and the motorcycle was also taken into possession by the police.
(8) In the Court the witness was not able to identify the accused Ajay @ Genda but has specifically identified the motorcycle of silver color bearing No. DL6SAF8295 make Bajaj Pulsor having engine No. DKGBTF77903 and chasis No. MD2DHDKZZTCF 75409 with broken indicators as the same as on which the assailants came to the spot, which motorcycle is Ex.P1.
(9) The witness was crossexamined by the Ld. Addl. PP for the State on the aspect of identity of the accused Ajay @ Genda, during which the witness has deposed that she is graduate i.e. BA (pass) and she can read and write Hindi and English. According to her, whenever she signed or put her thumb impressions she go through the contents of the documents before signing the same. Witness has admitted that it is recorded in her statement Ex.PW5/A that the boy who was apprehended at the spot was Ajay @ Ganda S/o Shiv Pal, resident of S582, Mangolpuri, Delhi and has voluntarily explained that she did not recollect the same. The accused Ajay @ Ganda was specifically put to the witness after which witness St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 9 explained that she does not recollect if he was the person who was driving the motorcycle and fell down on the road.
(10) Witness has denied the suggestion that she is deliberately not identifying the accused Ajay @ Genda who was driving the motorcycle at the time of incident or that she has been won over by the accused and her family and out of fear she is not deliberately identifying her and has voluntarily explained that at that time she was in a state of shock and was feeling extremely dizzy (chakar aa rahe thai) due to which reason she could not see her properly and therefore she does not recollect whether the accused present in the court is the same or not.
(11) After the arrest of accused Arjun the witness Smt. Reena (PW5) was recalled for examination wherein she confirmed her earlier version. She has also proved that she had participated in the TIP proceedings at Rohini Jail which proceedings are Ex.PW5/E but the accused refused to participate in the same. She has specifically identified the accused Arjun by pointing out towards him (not by name) as the person who was the pillion rider and had snatched her chain and pulled her shawl and dragged her for some distance.
(12) In her cross examination by the Ld. Defence counsel for Ajay @ Genda the witness has deposed that she was alone when she was going to the house of her parents. According to the witness, her statement Ex.PW5/A was recorded at about 5:30 PM after her medical examination and she was in ladies general ward. According to the witness, it took the police about half St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 10 an hour to record her statement Ex.PW5/A. Witness has admitted that she did not mention the registration number of the motorcycle in her statement Ex.PW5/A. Witness has also deposed that the motorcycle firstly came upto her and stopped at a distance of about one feet away from her and the faces of motorcyclist i.e. pillion rider and driver were facing towards her and has voluntarily explained that they were driving towards her and were facing her. She has denied the suggestion that the accused were not facing towards her. She has further deposed that the pillion rider caught her gold chain by removing her shawl and the pillion rider when pulled her shawl she also caught hold of her gold chain. She has admitted that she had stated in her statement to the police that when pillion rider caught hold her shawl, she fell down. Witness has also admitted that she had stated in her statement to the police that firstly the pillion rider pulled her shawl, she fell down on the ground and thereafter the said pillion rider pulled her gold chain having locket. She has further explained that the pillion rider got down from the motorcycle and snatched her chain when she was lying on the ground. She does not recollect if she told to the police in her statement that the motorcycle was in start position at that time. However, after going through her statement the witness has admitted that it is not mentioned in her statement that the motorcycle was switched on at that time. According to her, she had not stated in her statement Ex.PW5/A, the name, parentage and address of the accused. She has explained that she had hardly taken two three steps in order to ran away from the spot. Witness has denied the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 11 suggestion that she and the boy who had apprehended had gone to the hospital in separate vehicles and has voluntarily explained that they were in the same vehicle. According to her, about 2025 public persons had gathered at the spot when she raised alarm and at the time when motorcycle fell after public persons intervened it was hardly at a distance of about 3 3 ½ feet. She has admitted that she has not read over the statement Ex.PW5/A before putting her thumb impressions on the same but has denied the suggestion that Investigating Officer had concocted a story and recorded her statement of his own. She has also denied the suggestion that the Investigating Officer got her thumb impressions on the same without disclosing to her the contents of the same or that her thumb impression was obtained on the arrest memo and on the personal search of the accused by the Investigating Officer afterward.
(13) In her crossexamination by the Ld. Amicus Curiae for the accused Arjun, the witness has deposed she met the Investigating Officer in the present case in the month of October 2013 and she met the Investigating Officer twothree times before 9th October 2013. According to the witness, she visited Police Station threefour times for knowing the progress of the case from the Investigating Officer and met the Investigating Officer on two three occasions in the month of September 2013 in the Police Station Vijay Vihar but she does not remember the exact dates. The witness has testified that she did not visit any other court except this court before 9th October 2013. She is unable to tell exactly when she came to know that the other St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 12 accused was arrested in the present case and has explained that she visited the Police Station twothree days before 8th October 2013 when she came to know that another accused was arrested. Witness has further deposed that she does not remember if the Investigating Officer had shown the photographs of the present accused when she visited the Police Station two three days before 8th October 2013. She has explained that the Investigating Officer had shown twothree photocopies of the face of accused Arjun in Police Station before 8th October 2013. According to the witness, she met the Investigating Officer in the Court on the day of her deposition and had also shown the accused to her also in the Court before her deposition. She has testified that about 2025 public persons were gathered when she raised alarm and at the time when motorcycle fell after public persons intervened it was hardly at a distance of about 3 3 ½ feet. Witness has admitted that she has not read over the statement Ex.PW5/A before putting her thumb impressions on the same. She has denied the various suggestions put to her by the Ld. Amicus Curiae.
(14) PW6 Sh. Rakesh @ Manish has deposed that he is residing at B97, Vijay Vihar, Phase II, Delhi along with his family. According to him about eightnine months ago, at about 3:304 PM he was passing from 40 feet road near ICICI bank and one ATM of a bank to the side of Mahadev Chowk, he saw the motorcyclist and pillion rider and one female being dragged by the pillion rider who caught her shawl and chunni. Witness has further deposed that it was a case of chain snatching and someone called St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 13 police at 100 number and police came to the spot and took the female injured and the assailant who was driving the motorcycle to the hospital. Witness has further deposed that both were medically examined and the female injured got fracture on her right arm. He has also deposed that the statement of injured Reena was recorded by the police in the hospital and he knew injured Reena who reside in his neighborhood. The witness is unable to identify the accused Ajay @ Ganda as the person who was driving the motorcycle and fell down on the road.
(15) In his crossexamination by the Ld. Addl. PP for the State the witness has deposed that he had studied only upon 5 th class and police made inquiries from him. Witness has however admitted that on 20.02.2013 he with the help of police official ASI Nand Lal who was in civil clothes caught the person who was driving the motorcycle and had fallen down on the ground and the pillion rider who snatched the gold chain having locket of Reena, on the point of knife and he ran away from the spot. Witness has also admitted that the person who was caught by them disclosed his name to the police as Ajay @ Ganda, S/o Shish Pal, R/o F582, Mangolpuri, Delhi. He has further admitted that he told to the police in his statement Ex.PW6/PX1 that one motorcycle bearing No. DL6SAF8295 of silver color make Pulsor was taken into possession by police and it is on the same motorcycle Ajay @ Ganda was riding who fell down on the ground and caught by them. According to the witness, St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 14 whatever he stated to the police the same was reduced into writing by the police in his statement Ex.PW6/PX1. Witness has admitted that due to lapse of time he has forgotten to mention these facts.
(16) He has correctly identified the motorcycle of silver color bearing No. DL6SAF8295 of Bajaj Pulsor having engine No. DKGBTF 77903 and Chasis No. MD2DHDKZZTCF 75409 with broken indicators as the same as the one which was driven by the accused and on which the pillion rider was dragging the victim Reena, which motorcycle is Ex.P1. (17) In his crossexamination by the Ld. Addl. PP for the State he has denied the suggestion that he was deliberately not identifying the accused present in the court who was driving the motorcycle at the time of incident to whom they caught. The witness has also denied the suggestion that accused was also medically examined in the same hospital where Reena was medically examined or that he has been won over by the accused and his family and out of fear he was not deliberately identifying him. (18) After the arrest of accused Arjun the witness Rakesh @ Manish (PW6) was recalled and again examined wherein he reaffirmed his earlier version. However, he has not been able to identify the accused Arjun in the Court. He has not been crossexamined by the Ld. Amicus Curiae for the accused Arjun.
(19) In his cross examination by Ld. Counsel for the accused Ajay, the witness has deposed that after raising alarm by Reena he reached at the spot and at the time when he reached there, the person who snatched the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 15 chain of Reena had ran away. According to the witness, he had not seen Reena being dragged by the assailants and has voluntarily explained that he was told by the public persons present over there. Witness has further deposed that his statement was recorded in the hospital at about 77:15 PM. He has admitted that his statement has neither been read over to him nor he go through the contents of the same. According to the witness, he had not told the name of the assailant as Ajay and his complete particulars to the police in his statement and has voluntarily explained that police told the same to him. Witness has denied the suggestion that he was not present at the spot or that he did not witness anything. He has further denied the suggestion that his statement was recorded by the police of their own in the police station or that he had not caught hold of the driver of the motorcycle. Witness has admitted that he has not stated in his statement made to the police that Reena got fractured in the said incident.
(20) PW7 ASI Nand Singh is an eye witness to the incident. He has deposed that on 20.2.2013 he was posted at Police Station Vijay Vihar and at about 3:40 PM he was present at the ATM of Axis Bank situated at 40 Foota Road, Vijay Vihar and as soon as he came out of the ATM after withdrawing the money, he heard the cries of a lady and he saw that one boy was driving the motorcycle whereas the other boy sitting on the pillion seat was dragging the lady by holding her hands. The witness has testified that he chased the bikers and caught hold of the boy who was driving the motorcycle. He has further deposed that on seeing this a large number of St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 16 public persons gathered and the boy who was sitting on the pillion seat managed to flee away whereas the boy who was driving the motorcycle was apprehended and the public persons gave him a beating. He has also deposed that the motorcycle which he was driving bearing No. DL6SAF8295 make Pulsar of silver colour was also there and in the meanwhile some public person had made a call to the PCR on which PCR officials reached the spot and shifted the boy to the hospital as he had also received injuries. According to him, the lady who was being dragged whose name was then revealed as Reena had also received injuries and was shifted to the hospital in the same PCR Van and he accompanied them. The witness has also deposed that in the meanwhile the other staff from the Police Station also arrived and remained at the spot. He has testified that at BSA Hospital both the victim lady Reena and the boy whose name was later on revealed as Ajay @ Genda, whom the witness has correctly identified in the Court, were given treatment. According to him, SI Gajender Singh also reached the hospital and recorded the statement of injured Reena. He has further proved that SI Gajender also interrogated the accused Ajay and arrested him vide memo Ex.PW5/B and carried out his personal search vide memo Ex.PW5/C. According to the witness, his statement was recorded by the Investigating Officer and thereafter he was relieved. (21) The witness has correctly identified the accused Ajay @ Genda in the Court and also the case property i.e. motorcycle bearing No. DL6S St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 17 AF8295 make Pulsar of Silver Colour having engine No. DKGBTF 77903 and chasis No. MD2DHDKZZTCF 75409 with broken indicators as the one which was driven by the accused Ajay and on which the pillion rider was dragging the victim Reena, which motorcycle is Ex.P1. (22) After the arrest of accused Arjun the witness ASI Nand Singh (PW7) was recalled and he confirmed his earlier version but has not been able to identify the accused Arjun in the Court. He has not been cross examined by the Ld. Amicus Curiae for the accused Arjun. (23) In his crossexamination by the Ld. Defence Counsel, the witness has deposed that he was on duty at the time of the incident and has voluntarily explained that he had only come to the ATM for some time to withdraw the money from the ATM. According to the witness, he made no such entry in the Roznamcha while leaving the Police Station for going to Axis ATM for withdrawal of the amount. The witness has testified that he had given the details of the ATM account to the Investigating Officer but he is not aware if he had collected the relevant details from the Bank including his statement of account. He has admitted that there was a CCTV Installed in the ATM but he is not aware if the Investigating Officer had taken the visuals/ CCTV footage to confirm his presence. He has denied the suggestion that he has been planted as a witness on the directions of the senior officers and it is for this reason that the relevant details regarding his statement of account and CCTV footage of the ATM were not taken because it would have exposed his lies and has voluntarily explained that he is not St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 18 aware if the Investigating Officer has obtained these details. He has also deposed that he was at a distance of about 1415 feet from the lady when she was being dragged and he ran after the biker and apprehended him. According to the witness, he had caught hold of the accused by his hands on account of which the bike skid and fell but he (witness) did not fall down in this process nor received any injuries nor his clothes were torn. According to the witness, the accused did not do any maarpitai with him and as soon as he caught the accused the public had helped him and also caught the accused. He is unable to tell the names of the public persons who had come to his assistance. Witness has denied the suggestion that he was not present at the spot at the time of the incident or that that it was the public persons who had caught the accused and had given him a beating which accused was later on let off by the police officers of the Police Station. Witness has denied the suggestion that accused Ajay was already present in the hospital receiving treatment for his injuries which he had got on account of police torture while he was in illegal detention of the police being lifted as a suspect in another case. He has further denied the suggestion that the actual person apprehended in the present case was deliberately let off by the police and the accused Ajay was swapped in his place to legalize his detention but his name is not mentioned in the hospital record of either the victim Reena or the accused Ajay. He has denied the suggestion that he had not accompanied the injured and the accused to the hospital and it is for this reason that his presence is not shown in the hospital record. Witness has St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 19 stated that the Investigating Officer did not seize the clothes of either the injured Reena or accused Ajay in his presence. Witness has denied the suggestion that all documents of arrest and personal search were prepared at the Police Station and he merely signed the same on asking of the senior officers. Witness has further denied the suggestion that he has been planted only to lend credence to the evidence which has been falsely created against the accused by the Investigating Officer. He has admitted that the motorcycle Ex.P1 is still lying in the Malkhana and nobody has come to claim the same. He has denied the suggestion that this motorcycle has been planted upon the accused.
Witnesses of medical record:
(24) PW4 Dr. Deepti Bhalla has deposed that on 20.2.2013 at 4:55 PM the patient Reena W/o Pushpender, aged 27 years, female was brought to BSA Hospital by PCR with alleged history of assault on that day (as told by the patient herself). According to the witness, she medically examined the patient Reena and on local examination the following injuries were found on the body of the patient:
1. Diffuse swelling and tenderness was present over the right elbow, right wrist and right hand. Restriction of mobility was present over the region.
2. Bruises were present over the left lateral neck.
3. Small sized abrasions were present over the right elbow, right lower St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 20 forearm (exterior aspect), right hand (dorsal aspect).
(25) Witness has further deposed that after giving the patient primary treatment, her Xrays were done and the patient was referred to SR Ortho for expert opinion and further management. She has also deposed that she declared the patient as fit for statement on the same day. She has proved the MLC of the patient Reena which is Ex.PW4/A. The witness has also identified the handwriting of Dr. Deepak Arora SR Orthopedics Department who had examined the patient Reena vide his endorsement on the back of the MLC which endorsement is at point X according to which the injures on the person of Reena were opined to be Simple in nature, which opinion is at point X1.
(26) In her cross examination by Ld. Defence Counsel, the witness has denied the suggestion that the injuries mentioned by her have been given without examination of the patient on the asking of the Investigating Officer. She has admitted that the abrasion could be caused on account of fall and not necessarily on account of dragging and has voluntarily explained that it could be on account of both.
(27) After the arrest of accused Arjun the witness Dr. Deepti Bhalla (PW4) was recalled and she reaffirmed his earlier version. (28) PW11 Dr. Rajat Ranjan has deposed that on 20.02.2013 patient namely Reena W/o Sh. Pushpender, aged 27 years female was brought in the casualty of the their hospital with alleged history of assault and the patient was referred to Ortho by doctor on duty in casualty. According to the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 21 witness, Dr. Deepak Arora examined the patient and according to him there were deep abrasions at dorsal aspect of right wrist and right forearm, swelling and tenderness present over right wrist and right forearm, tenderness was present over the right elbow over the lateral condyle and there was no distal neuro vascular deficit. He has proved the observations of Dr. Deepak is at point X on MLC Ex.PW4/A bearing signatures of Dr. Deepak at point B which he identified. According to the witness, as per the radiologist opinion by Dr. Dheeraj Gupta, SR, XRay film No. 61012 dated 20.02.2013 was suggestive of no bony injury and Dr. Deepak Arora opined the nature of injury as simple in nature which opinion are present on the MLC Ex.PW4/A at point X1.
(29) In his crossexamination by the Ld. Defence Counsel the witness has admitted that the injuries detailed above could be caused on account of fall.
Police/ official witnesses:
(30) PW1 HC Rakesh is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW1/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the entry in register No.19 vide Mud No.113/13 copy of which is Ex.PW1/A (running into two pages) and Mud No.117/13 copy of which is Ex.PW1/B running into two pages. (31) In his cross examination by Ld. Defence counsel, the witness has denied the suggestion that the entries in the Register No.19 have been St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 22 fabricated and antedated on the asking of the Investigating Officer or that Ex.PW1/B was prepared by him antedatedly on the asking of the senior officers. He has also denied the suggestion that the exhibit i.e. the sealed pullanda had been taken by the Investigating Officer unofficially for showing the same to public persons and was tampered while remained in his possession. After the arrest of accused Arjun the witness HC Rakesh (PW1) was recalled and he reaffirmed his earlier version. (32) PW2 HC Rajesh Gaur is also a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW2/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved DD No. 23A copy of which is Ex.PW2/A, copy of FIR which is Ex.PW2/B and his endorsement on rukka which is Ex.PW2/C. In his cross examination by Ld. Defence counsel witness has denied the suggestion that the entry no. 23A has been antetimed by him on the asking of the senior officers. After the arrest of accused Arjun the witness HC Rakesh (PW1) was recalled and he reaffirmed his earlier version.
(33) PW3 Ct. Deepak is also a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of Section 296 Cr.P.C.) wherein the witness has proved that on 20.2.2013 at about 3:50 PM an information regarding nabbing of a thief on 40 foota road was received through wireless set on which he reached the spot where one motorcycle bearing No. DL8SAF8295 of silver colour Pulsar was lying on road. According the witness, SI Gajender and Ct. M. Laxmiah were also St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 23 present who directed him to preserve the place of occurrence and left to the hospital. He has proved that the spot of incident was not tampered with. (34) In his cross examination by Ld. Defence counsel, witness has deposed that he reached the spot at about 4:00 PM and there were around 2030 public persons and only two police officers i.e. SI Gajender and Ct.
M. Laxman were there. According to the witness, he remained at the spot to preserve the place of occurrence along with the motorcycle for about 2 - 2½ hours and left the spot at about 6:006:30 PM. He has further deposed that after completing his beat duty he made a Wapsi entry and has voluntarily explained that the Wapsi was written by the Duty Officer. Witness has further deposed that he did not inform the Duty Officer that he had gone to the spot and was directed to remain there for about 2 - 2 ½ hours. According to the witness, he did not sign any document prepared by the Investigating Officer. Witness has denied the suggestion that he is a planted witness or that he had never gone to the spot to preserve the scene of occurrence or that it was for this reason that his signatures are not present on any of the documents prepared at the spot. After the arrest of accused Arjun the witness was recalled and he reaffirmed his earlier version. (35) PW8 Ct. M. Laxmaiah has deposed that on 20.2.2013 he was posted at Police Station Vijay Vihar and on that day he was on duty from 8:00 AM to 8:00 PM. According to the witness, at about 3:49 PM on receipt of DD No. 68B which is Ex.PW8/A he along with SI Gajender reached back side of MCD Flats near Axis Bank ATM where he saw a large number St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 24 public persons gathered and a motorcycle bearing No. DL6SAF8295 of silver colour lying. He has further deposed that he also found one lady namely Reena who was in an injured and shocked condition was crying. According to him, Smt. Reena informed that two boys who had come on a motorcycle had snatched her gold chain with a locket and one of these boys had been apprehended by public persons. The witness has further deposed that ASI Nand Singh was already present at the spot along with the apprehended boy and public persons and in the meanwhile the official vehicle came from the Police Station and they shifted both the injured Reena and the apprehended boy who had also received injures on account of beatings by public persons, to BSA hospital. The witness has testified that in the hospital they came to know that the name of the said boy as Ajay @ Genda whom the witness has correctly identified in the Court. He has also deposed that both the lady Reena and Ajay were provided medical treatment after which SI Gajender recorded the statement of the injured Reena. The witness has further deposed that one public person namely Rakesh had helped Reena and apprehended the accused was also present in the hospital and his statement was also recorded by SI Gajender. According to him, after preparing the rukka on the statement of Reena the Investigating Officer handed over to him the same for getting the FIR registered pursuant to which he took the rukka and reached the police station and handed over the rukka to the Duty Officer. He has testified that after registration of FIR the Duty Officer handed over to him a copy of the FIR and original rukka to him after St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 25 which he reached back to the hospital where he handed over the original rukka and copy of the FIR to SI Gajender Singh. According to him, the Investigating Officer then recorded the statement of the witnesses and thereafter they went to the spot where the Investigating Officer inspected the same and prepared the site plan Ex.PW5/D. He has proved that the motorcycle was taken in to possession and brought to the police station and thereafter the Investigating Officer arrested the accused vide memo Ex.PW5/B, Investigating Officer carried out the personal search of the accused Ajay vide memo Ex.PW5/C and the disclosure of the accused Ajay was recorded vide Ex.PW8/B. He has further deposed that the Investigating Officer also prepared the seizure memo cum pointing out memo of the motorcycle bearing No. DL6SAF8295 which is Ex.PW8/C. The witness has explained that when they had gone to the spot from the hospital the accused Ajay pointed out the spot of incident on which the Investigating Officer prepared the pointing out memo vide memo Ex.PW8/D and his statement was recorded by the Investigating Officer after which he was relieved.
(36) He has correctly identified the accused Ajay @ Genda in the Court and the case property i.e. motorcycle bearing No. DL6SAF8295, make Pulsar of Silver Colour having engine No. DKGBTF 77903 and chasis No. MD2DHDKZZTCF 75409 with broken indicators which motorcycle is Ex.P1.
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 26 (37) With prior permission of the court, the Ld. Addl. PP for the State put leading questions to the witness wherein the witness has admitted that the arrest of the accused, his personal search, his disclosure statement, pointing out cum seizure memo were all prepared at the spot and he had mentioned this fact in his statement Ex.PW8/PX1 and has voluntarily explained that he had forgotten these details due to passage of time. (38) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he did not make any departure entry in the Police Station on receipt of the information and has voluntarily explained that he had come to the spot pursuant to the directions of the Duty Officer. According to him, they reached the spot within 57 minutes in the private vehicle/ car of the Investigating Officer. He has admitted that he is not an eye witness to the incident and they were informed by ASI Nand Singh and public persons about the incident. The witness has also deposed that he had made a call to the Duty Officer to send the official vehicle and has voluntarily explained that it was the same official Gypsy which came to the spot in which the injured and the accused were taken to the hospital. Witness has admitted that the motorcycle Ex.P1 is still lying in the Malkhana and nobody has come to claim the same. Witness has denied the suggestion that the victim Reena and accused Ajay were shifted to the hospital in different vehicle at different points of time or that accused Ajay is not the same boy who was apprehended at the spot and taken to the BSA hospital. Witness has also denied the suggestion that accused Ajay was already present in the hospital St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 27 receiving treatment for his injuries which he got on account of police torture while he was in illegal detention of the police being lifted as a suspect in another case. He has also denied the suggestion that the actual person apprehended in the present case was deliberately let off by the police and the accused Ajay was swapped in his place to legalize his detention or that all documents of arrest, personal search, disclosure, pointing and seizure memos were prepared at the Police Station and he merely signed the same on asking of the senior officers. Witness has denied the suggestion that he is a planted witness only to lend credence to the evidence which has been falsely created against the accused by the Investigating Officer. (39) After the arrest of accused Arjun the witness was recalled for examination wherein he reaffirmed his earlier version. (40) PW9 Ct. Krishan has deposed that on 21.2.2013 he was posted at Police Station Vijay Vihar and on that day he was on duty from 8:00 AM to 8:00 PM and he joined investigations along with SI Gajender. According to the witness, the accused Ajay whom the witness has correctly identified in the Court who was in the lockup, was produced before the Ld. MM and the Investigating Officer had taken two days Police Custody Remand of the accused after which they returned back to the Police Station and he got the accused Ajay medically examined from BSA Hospital. He has further deposed that thereafter he along with SI Gajender and one Constable along with the accused went to Azadpur at Lal Bagh Jhuggies for search of the co accused Arjun but he could not be located and thereafter they returned to the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 28 Police Station. According to the witness, after the accused was brought back to the Police Station the Investigating Officer again interrogated the accused and rerecorded his supplementary disclosure statement which is Ex.PW9/A. He has further deposed that the accused was again got medically examined from BSA Hospital after which the accused was lodged in the lockup at Police Station South Rohini and his statement was recorded by the Investigating Officer.
(41) With the permission of the Court the Ld. Addl. PP for the State put a leading question to the witness wherein he has admitted that the other Constable whose name he was unable to tell, was Ct. Harish. (42) In his crossexamination by the Ld. Defence Counsel the witness has deposed that they left the Police Station at about 9:3010:00 AM after making a Rawangi/ departure entry but he did not make any separate entry and has voluntarily explained that the Investigating Officer had made a combined rawangi and wapsi on that day. According to the witness, they returned back to the police station from Lal Bagh Jhuggies in the evening at about 7:008:00 PM. He has further deposed that the Investigating Officer did not call any public persons while recording the supplementary disclosure statement. He has denied the suggestion that the supplementary disclosure statement was recorded by the Investigating Officer of his own or that he had merely signed the same on the asking of the Investigating Officer. He is unable to tell what the accused had disclosed to the Investigating Officer in his supplementary disclosure statement. He has denied the suggestion that St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 29 he is unable to tell the contents of the supplementary disclosure because the accused had made no such disclosure or that the Investigating Officer had recorded the same of his own. After the arrest of accused Arjun the witness was recalled and he reaffirmed his earlier version.
(43) PW10 SI Gajender Singh has deposed that on 20.02.2013 he was posted at Police Station Vijay Vihar and on that day he received DD No. 68B Ex.PW8/A regarding one thief caught at MCD Flat Vijay Vihar near Dr. Aggarwal Clinic pursuant to which he along with Ct. Laxmiah reached at MCD Flat 40 feet road near Axis Bank ATM, Sector 4 Rohini where many public persons had gathered. According to the witness, one motorcycle bearing No. DL6SAF8295 make Pulsor of silver color was lying and its back number plate was tilted. The witness has testified that he came to know from the public that two boys have beaten one female and snatched her gold chain and one of the motorcyclist who had been caught by the public and police, was taken to BSA hospital in PCR van. He has further deposed that at the same time Ct. Deepak came to the spot who remained at the spot where he along with Ct. Laxmiah went to BSA hospital where they met Smt. Reena who was under treatment in the hospital. According to the witness, he also found one Ajay S/o Shish Pal under treatment in BSA hospital and in the casualty of the hospital, Reena and Ajay were under treatment. The witness has testified that Reena told him that Ajay present in the casualty was driving the motorcycle on which the pillion rider snatched her gold chain on the point of knife, by pulling her shawl. He has proved having St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 30 recorded her statement which is Ex.PW5/A and then attested her thumb impressions by his signatures at point B on Ex.PW5/A after which he made his endorsement Ex.PW10/A and handed over the rukka to Ct. Laxmiah at about 5:40 PM. According to him, Ct. Laxmiah went to the police station and came back with the copy of the FIR Ex.PW2/B and original rukka to him in the hospital for further investigations. He has testified that on the identification of complainant he interrogated the accused and arrested him vide memo Ex.PW5/B, his personal search was also conducted vide memo Ex.PW5/C and also recorded disclosure statement of the accused vide Ex.PW8/B. The witness has further deposed that he recorded the statement of ASI Nand Singh and Rakesh @ Manish who caught the accused at the spot after which he along with Ct. Laxmiah and complainant Reena with accused Ajay came to the place of occurrence where he prepared the site plan Ex.PW5/D at the instance of the complainant. He has testified that the accused pointed out the motorcycle which was driven by him after which he took into possession the said motorcycle vide seizure memo Ex.PW8/C. According to him, the accused pointed out the place of occurrence vide pointing out memo Ex.PW8/D. He has proved having recorded the supplementary statement of complainant and relived her and also recorded the statement of Ct. Deepak after which they along with accused returned to the police station where case property was deposited in the malkhana and accused was put in the lock up.
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 31 (44) The witness has further deposed that on the next day the accused was taken out from the lock up and handed over in the custody of Ct. Krishan after which the accused was produced before the Ld. Illaka Magistrate by moving an application for Police Custody Remand of the accused pursuant to which two days Police Custory Remand was obtained and the accused was got medically examined. He has testified that the accused Ajay @ Genda led them to the house of coaccused Arjun @ Gopu at jhuggie No 101, Lal Bagh jhuggie, Ashok Vihar for apprehending him but he was not found at his house. He has proved having recorded the supplementary disclosure statement of the accused which is Ex.PW9/A wherein the accused disclosed his involvement in other criminal cases. The witness has further deposed that the accused was got medically examined and after serving him food, he was sent to lock up. According to him, on the next day i.e. on 22.02.2013 the accused was taken out from the lockup and his custody was given to Ct. Harish. He has proved having interrogated the accused and recorded his further supplementary disclosure statement which is Ex.PW10/B wherein the accused disclosed that he along with his co accused Arjun @ Gopu had snatched the gold chain of one person about 40 days ago from Sector 5, Rohini in day hours and the piece of said gold chain could be recovered by him from the house of his sister at F1/117, Mangolpuri, Delhi. He has also deposed that thereafter the accused led them to the house of his sister at first floor and produce one iron box out of which he produced a piece of golden color chain (not relevant to the present St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 32 case) which said piece of golden color chain was put in a plastic container which was wrapped with a cloth and converted into pullanda and sealed with the seal of PK and seized the same vide seizure memo Ex.PW10/C. He has further deposed that he came back to the police station with accused and Ct. Harish and deposited the case property in the malkhana and accused was put in the lockup after his getting him medically examined. The witness has also deposed that on 23.02.2013 the accused was produced in the court and was sent to Judicial Custody. According to the witness, he made efforts to search coaccused Arjun @ Gopu but he could not be found and he obtained the NBWs of Arjun @ Gopu from the Court. The witness has also proved having obtained the result on the MLC of Reena and doctor opined that she sustained simple injuries. He has proved having prepared charge sheet and filed the same in the court against the accused Ajay @ Ganda. (45) He has correctly identified the accused Ajay @ Genda in the Court and also identified the case property i.e. motorcycle of silver color which was parked in the court complex bearing No. DL6SAF8295 of Bajaj Pulsor having engine No. DKGBTF 77903 and chasis No. MD2DHDKZZTCF 75409 with broken indicators as the one which was found at the spot and was seized by him, which motorcycle is Ex.P1. (46) In his crossexamination by the Ld. Defence Counsel the witness has deposed that he had not mentioned the MLC No.1659 in the charge sheet which is related to the accused. He has denied the suggestion that he has not mentioned in the charge sheet about the MLC of the accused because he has St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 33 falsely implicated the accused in the present case by replacing the actual culprit. Witness has admitted that he had not shown the place from where the motorcycle came and has voluntarily explained that he mentioned the same in the statements of witnesses. He has also admitted that he has not shown the distance between point A and point B in the site plan. The witness has further admitted that in the rukka it is not mentioned that accused was arrested after the complainant had identified him and pointed him out in the casualty ward. According to him, the motorcycle was already lying at the spot when he reached back from the hospital. He has denied the suggestion that the thumb impressions are present on various memos including pointing out memo do not belong to accused Ajay @ Ganda or that no chain was got recovered from the house of sister of accused Ajay. He has denied the suggestion that the actual accused who was apprehended at the spot by public persons was let off by him on the asking of the senior officers and swapped for the present accused Ajay who was already admitted in the hospital by the police after he received injuries on account of police torture being lifted on suspicion in an other case. He has also denied the suggestion that it is for this reason that he had not cited any independent public witness who was present at the spot and during the apprehension of the accused in the present case. Witness has further denied the suggestion that the accused had not made disclosure statements to the police at any point of time. He has admitted that both the disclosure statements of Ajay have not been witnessed by any public persons or that Ajay did not make any St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 34 disclosure statement or that he recorded the same of his own only to connect him with the present case. Witness has also denied the suggestion that all the documents were prepared later while sitting in the police station and the various police witnesses only signed the same on the insistence of senior police officers. The witness has admitted that the motorcycle does not belong to the accused Ajay and has voluntarily explained that it has been registered in the name of mother of the coaccused Arjun. He has denied the suggestion that Ajay has no connection with Arjun nor is he known to him or that ASI Nand Singh has been planted as an eye witness in the incident only to lend credence to the prosecution version. Witness has admitted that the MLC of both victim and accused do not bear the name of ASI Nand Singh. According to the witness, he did not obtain the account details of ASI Nand Singh to establish that he was withdrawing money from ATM nor he obtained the CCTV footage of ATM. He has also admitted that CCTV cameras are installed inside the ATM booth but he did not obtain the visuals. Witness has denied the suggestion that he deliberately did not obtain these details as ASI Nand Singh was introduced as a witness later. Witness has admitted that ASI Nand Singh had made no roznamcha entry while leaving the Police Station showing that he was going to Axis Bank ATM. (47) After the arrest of accused Arjun the witness SI Gajender Singh was recalled and he reaffirmed his earlier version. In addition, the witness has deposed that after filing the charge sheet against the accused Ajay @ Genda, he came to know that coaccused Arjun who was wanted in this case St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 35 was arrested in some other case by the police of Police Station Adarsh Nagar and one informer informed him to this effect. The witness has testified that accordingly, he got issued a production warrant of accused Arjun @ Gopu pursuant to which on 03.10.13 the accused Arjun @ Gopu was produced in the Court by the Jail Authorities. According to the witness, he along with Ct. Bhunesh went to the court concerned where he interrogated the accused with the permission of the Court after which the accused was formally arrested vide memo Ex.PW14/A and the accused made his disclosure statement vide Ex.PW14/B. He has testified that when the accused Arjun was produced before the court concerned, he was in muffled face and during interrogation he remained in muffled face. The witness has further deposed that since the TIP of the accused was to be conducted, hence he moved an application for his TIP and for that purpose accused was sent to Judicial Custody in muffled face and the TIP of the accused was fixed for 07.10.13 but during TIP accused refused to participate. The witness has testified that he again moved a production warrant for further investigation of this case and accused was produced before the court concerned on 14.10.2013 after which he took his one day Police Custody Remand during which the accused Arjun pointed out the place of incident vide pointing out memo Ex.PW12/A. According to him, the accused also took them Loni to get recovered the looted chain but the same could not be recovered even they tried their best effort to get recovered the weapon of offence also but the weapon could not be recovered. He has further deposed that the accused Arjun was then remanded to St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 36 Judicial Custody and after completion of the investigation of the accused Arjun whom he has correctly identified in the Court, he filed the final charge sheet before the Court.
(48) In his crossexamination by the Ld. Amicus Curiae for accused Arjun, the witness has admitted that he had seen the motorcycle on the spot on 20.02.213 when he reached the spot from Police Station. He has also admitted that he had seen the motorcycle when he came from the Police Station to the spot. According to the witness, he received secret information on 29.09.13 that accused Arjun is in Judicial Custody in some other case which information he did not record in any DD or in some other register but states that he had discussed the secret information with his SHO. He has also deposed that he received the secret information in day time but he is unable to tell the exact time and has stated that he did not produce the secret informer before the SHO. Witness has denied the suggestion that no such secret information was received by him on 29.09.13 or that he did not arrest the accused on 03.10.13. The witness has also denied the suggestion that no such disclosure statement was made by accused to him on 03.10.13 or that the accused Arjun has been falsely implicated in the present case. He has further denied the suggestion that he had shown the photographs of accused to the complainant before 07.10.13 and has voluntarily explained that one day complainant came to Police Station to know progress of her case and she had identified the accused Arjun in the Police Station. Witness has denied the suggestion that complainant was called at the Police Station and accused was St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 37 shown to the complainant at the Police Station when the Police Custody Remand of the accused was obtained from the court. He has also denied the suggestion that complainant did not identify the accused at Police Station but he himself insisted upon her to identify the accused in court otherwise her case will be spoiled. According to the witness, on 14.10.13 he left the Police Station in day time but he is unable to tell the exact time. He has also deposed that the DD entries were made but he is unable to tell their numbers. He has admitted that he did not file the said DDs with the charge sheet. He has denied the suggestion that he did not file the DDs as no such entries were made on 14.10.13 or that fictitious case was planted against the accused. He is unable to tell the exact distance between the Police Station and the place at Loni and Ganda Nala at Vijay Vihar. According to the witness, he did not prepare any site plan of Ganda Nala. Witness has denied the suggestion that all the documents were prepared while sitting in the Police Station or that the signatures of accused were obtained on blank papers to strengthen the prosecution case. Witness has further denied the suggestion that no pointing out memo was prepared at the instance of accused Arjun or that the alleged motorcycle is not registered in the name of the mother of the accused Arjun.
(49) PW12 Ct. Praveen is a formal witness who has been examined by way of affidavit which is Ex.PW12/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved that on 14.10.2013 during Police Custody Remand the accused Arjun @ Gopu pointed out the place of incident vide St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 38 pointing out memo which is Ex.PW12/A. (50) In his crossexamination by the Ld. Amicus Curiae for the accused Arjun the witness has denied the suggestion that the accused Arjun did not take them to 40 Foota Road, Vijay Vihar or that pointing out memo were prepared by the Investigating Officer of his own. (51) PW13 Sh. Rohit Jain, Sales Officer, Axis Bank Ltd. has brought the summoned record relating to the customer no. 120043514 i.e. Nand Singh (28820289). He has placed on record the certified copy of the statement of account no. 120010100423120 for the period 19th February 2013 to 21st February 2013 which is Ex.PW13/A which shows that a sum of Rs. 11,000/ was withdrawn by the customer on 20.02.13 from Axis bank ATM Vijay Vihar, Delhi.
(52) In his crossexamination by the Ld. Defence Counsels the witness has deposed that he cannot tell the time of withdrawal as the same is not reflected in the statement of account and has voluntarily explained that time is never reflected in the statement of account.
(53) PW14 Ct. Bhunesh Kumar has deposed that on 03.10.13 he was posted in Police Station Vijay Vihar and on that day he alongwith SI Gajender went Rohini Court where the accused Arjun @ Gopu was produced before the court concerned, who was in muffled face after which the accused Arjun was formally arrested by the Investigating Officer with the permission of the Court vide memo Ex.PW14/A. He has proved that the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 39 accused Arjun made disclosure statement which is Ex.PW14/B and thereafter the accused was sent for Judicial Custody for the purpose of conducting his TIP.
(54) In his crossexamination by the Ld. Defence Counsel the witness has denied the suggestion that no such disclosure statement was made by the accused to the Investigating Officer or that accused Arjun has been falsely implicated in the present case. Witness has denied the suggestion that he signed on the documents at the instance of the Investigating Officer. (55) PW15 Ct. Abhijit has deposed that on 15.10.13 he was posted in Police Station Vijay Vihar and on that day accused Arjun @ Gopu was in the police lock up in the Police Station of South Rohini as there was no lock up in Police Station Vijay Vihar. According to him, the accused was interrogated, who made his disclosure statement which is Ex.PW15/A and then the accused took them to Loni for recovery of the snatched chain but the chain could not be recovered and thereafter accused took them to Budh Vihar PhaseI, near Ganda Nala where the knife which was used in commission of offence was thrown away but despite best search, the said knife could not be recovered. According to the witness, thereafter they returned to Police Station and his statement was recorded to this extent. (56) In his crossexamination by the Ld. Defence Counsels the witness has deposed that the Investigating Officer had made departure and arrival entries but he is unable to tell the number of the said entries. He has admitted that the said entries are not on record. He has denied the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 40 suggestion that the entries are not on record as they did not visit the place in Loni as well as Ganda Nala Vijay Vihar or that the Investigating Officer had concocted the story of Loni and throwing the knife in Ganda Nala. Witness has also denied the suggestion that no disclosure statement was made by the accused to the Investigating Officer or that the signatures of accused were obtained on blank papers forcefully by the Investigating Officer at the Police Station.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(57) After completion of prosecution evidence statements of both the accused Ajay @ Genda and Arjun @ Gopu were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to them which they denied. The accused Ajay @ Genda has stated that he is innocent and was illegally lifted from Rithala Metro Station and detained in the Police Station where he was severely beaten on account of which he became unconscious. The accused has further stated that the police wanted to know the whereabouts of his brother Rajesh which he could not inform and he was then taken to the hospital by the police for treatment of his injuries which he had received in the Police Station. According to the accused, in the hospital he was falsely implicated in the present case by the police and the actual assailant was let off. He has further stated that on account of the injures which he received due to the torture at the hands of police, the police became scared and hence in order to wriggle out of the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 41 situation they have falsely implicated him.
(58) The accused Arjun @ Gopu has stated that he was lifted by the police officials of Police Station Adarsh Nagar in a false case and he was running in Judicial Custody in the said case when the preset case has also been planted upon him by the police officials of Police Station Vijay Vihar only to work out the present case. According to the accused, he has nothing to do with the alleged incident and did not make any disclosure statement.
He has also stated that all the allegations against him are false and concocted.
(59) However, both the accused have not examined any witness in their defence.
FINDINGS:
(60) I have heard the arguments advanced before me by the Ld. Addl.
PP for the State and the Ld. Defence Counsels. I have also gone through the written memorandum of arguments filed on behalf of the parties and the evidence on record. My findings are as under:
Identity of the accused:
(61) In so far as the identity of the accused is concerned, the same has been disputed. Both the accused Ajay @ Genda and Arjun @ Gopu are not known to the victim Smt. Reena previously. The accused Ajay @ Genda is reported to have been apprehended by public persons and police official St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 42 namely ASI Nand Singh at the spot of the incident itself and he was identified as the person who was driving the motorcycle, whereas the accused Arjun @ Gopu has been apprehended much later and duly identified by the victim Reena in the Court as the boy who was sitting on the pillion seat and threatened her to hand over her belonging and when she resisted and ran, she was chased by the assailants on the motorcycle and accused Arjun pulled her shawl and snatched her gold chain along with which her shawl also got entangled and she was dragged for some distance on which she sustained injuries.
(62) In so far as the accused Ajay @ Genda is concerned, he has been identified by ASI Nand Singh who was withdrawing money from the ATM of Axis bank situated opposite the spot of incident and on hearing the hue & cry he saw that one boy was driving the motorcycle whereas the other boy sitting on the pillion was dragging the lady by holding her hands, on which he chased the bikers and caught hold of the boy who was driving the motorcycle. ASI Nand Singh has explained that the boy who was sitting on the pillion seat managed to flee away whereas the boy who was driving the motorcycle was apprehended and was given beatings by the public persons.
He has identified the accused Ajay @ Genda as the person who had been apprehended by public persons at the spot of the incident itself. In fact the witness Rakesh @ Manish who has proved the incident but has turned hostile on the identity of the accused, has however, confirmed that the person who had been caught by them at the spot disclosed his name to the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 43 police as Ajay @ Genda S/o Shish Pal, R/o F582, Mangol Puri, Delhi and similarly the victim Reena has also confirmed that the driver of the motorcycle who was caught and beaten by public persons gave his name as Ajay @ Genda S/o Shish Pal, R/o F582, Mangol Puri. Both these public witnesses Reena and Rakesh @ Manish have also confirmed that this boy who was apprehended was shifted to the hospital in the same PCR Van in which Reena was also shifted. In so far as the identification of Ajay @ Genda as the person who was the driver of the offending motorcycle is concerned, she has explained that she was so shocked and nervous after the incident that she does not recollect and there is no reason to disbelieve her as it appears to be natural and probable in the manner in which the sequence of events has emerged. It is not the case of the accused Ajay @ Genda that there was some other person by the same name living in the same area and hence, there is no reason to disbelieve the identification by ASI Nand Singh. Further, all these witnesses have also confirmed that the motorcycle bearing No. DL6SAF8295 make Pulsor of silver colour was the one which was driven by the accused when it skid and fell after which the accused Ajay @ Genda was apprehended and the motorcycle was taken into possession by the police.
(63) In so far as the accused Arjun @ Gopu is concerned, he has been identified by the victim Reena in the Court as the person who was sitting on the pillion seat and had snatched her gold chain. There is no reason to doubt the identification by the victim Reena because it was Arjun who had St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 44 threatened her and caught her hand and dragged her proving that there was sufficient opportunity for Reena to have closely noticed and observed him. Here, I may observe that after the accused Arjun was arrested in the present case, he was subjected to Judicial Test Identification Parade on 7.10.2013 but he refused to take participate in the same, which proceedings are Ex.PW5/E and an adverse inference is taken against the accused Arjun @ Gopu and hence under the given circumstances the identification of Arjun by Reena in the Court cannot be doubted.
(64) This being the background, I hereby hold that the identity of both the accused Ajay @ Genda and Arjun @ Gopu stands established. Medical Evidence:
(65) Dr. Deepti Bhalla (PW4) has proved MLC of the victim Smt. Reena which is Ex.PW4/A according to which on 20.2.2013 at 4:55 PM the patient Reena W/o Pushpender was brought to BSA Hospital by PCR with alleged history of assault and on local examination following injuries were found on the body of the patient:
1. Diffuse swelling and tenderness was present over the right elbow, right wrist and right hand. Restriction of mobility was present over the region.
2. Bruises were present over the left lateral neck.
3. Small sized abrasions were present over the right elbow, right lower forearm (exterior aspect), right hand (dorsal aspect). St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 45
(66) Further, Dr. Deepti Bhalla (PW4) and Dr. Rajat Ranjan (PW11) have proved the opinion given by Dr. Deepak Arora on the injuries of the victim Reena which is at point X1 on the MLC Ex.PW4/A according to which the injures on the person of Reena were opined to be Simple in nature.
(67) This being the background, I hold that the medical evidence on record is compatible to the version given by the victim Smt. Reena that at the time when her gold chain was pulled, she was dragged by the accused on which she fell down on the road and received injuries as injuries no. 1, 2 and 3 are all indicative of the same and establishes her version. ASI Nand Singh was present at the spot at the time of the incident - proved:
(68) The case of the prosecution is that ASI Nand Singh of Police Station Vijay Vihar who was in civil dress, was withdrawing money from the ATM of Axis Bank situated opposite the spot of incident and was the one who along with public persons had apprehended the accused Ajay @ Genda.
This fact stands established not only from the oral testimony of complainant/ victim Sm. Reena (PW5), Rakesh Kumar @ Manish (PW6) and ASI Nand Lal (PW7) but also from the bank record produced by Rohit Jain (PW13) who has proved the statement of account of Nand Singh bearing No. 120010100423120 for the period 19th February 2013 to 21st February 2013 which is Ex.PW13/A thereby showing that a sum of Rs.11,000/ was St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 46 withdrawn by the customer on 20.02.13 from Axis Bank ATM Vijay Vihar, Delhi. Though the time of withdrawal is not reflected in the statement of account yet it will not be material in view of the fact that ASI Nand Singh at the first instance had mentioned this fact to the Investigating Officer and his presence otherwise stands established from the oral testimonies of victim Reena and witness Rakesh @ Manish and also from the arrest memo Ex.PW5/B and personal search memo Ex.PW5/C of Ajay @ Genda also bear his signatures which he has duly proved.
(69) This being the background, I hereby hold that the presence of ASI Nand Singh at the spot at the time of incident stands established. Recovery of Pulsor motorcycle bearing No. DL6SAF8295 at the spot itself:
(70) The case of the prosecution is that while committing the robbery the assailants had come on a motorcycle bearing No. DL6SAF8295 make Pulsor of silver colour which motorcycle was being driven by the accused Ajay @ Genda whereas the accused Arjun was sitting on the pillion seat.
They stopped the motorcycle near her and threatened her to handover her belongings and the pillion rider also showed her a knife but she started to run away but these boys chased her and caught hold of her shawl while snatching the gold chain of the victim which shawl of Smt. Reena got entangled and dragged her for some distance in which process she fell down while the pillion rider snatched the gold chain which is having a locket. On hearing the cries of Smt. Reena public persons including her neighbour St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 47 Rakesh Kumar @ Manish who was also present in the area and ASI Nand Singh who was in civil dress at that time, chased the motorcycle and they were successful in apprehending one person who was driving the motorcycle as he fell down whereas the pillion rider went away with the gold chain. Thereafter the victim Smt. Reena and the accused Ajay @ Genda were shifted to Hospital whereas the motorcycle was taken into possession. (71) The recovery of the motorcycle bearing No. DL6SAF8295 make Pulsor of silver colour having engine No. DKGBTF77903 and chasis No. MD2DHDKZZTCF 75409 at the spot of the incident itself has been duly proved by the various prosecution witnesses i.e. Smt. Reena (PW5), Rakesh Kumar @ Manish (PW6), ASI Nand Singh (PW7), Ct. Laxmiah (PW8) and SI Gajender (PW10) who have also identified the said motorcycle in the Court as Ex.P1. As per the case of the prosecution the above motorcycle had been registered in the name of Smt. Susheela W/o Rajender the mother of the accused Arjun, an aspect which has not been controverted by the accused Arjun at all. It is the Investigating Officer SI Gajender Singh who in his crossexamination has confirmed this fact regarding the motorcycle bearing No. DL6SAF8295 make Pulsor of silver colour having engine No. DKGBTF77903 and chasis No. MD2DHD KZZTCF75409 which is Ex.P1 being registered in the name of mother of the accused Arjun which fact also finds reflected in the case diaries. During the course of arguments the Investigating Officer submitted that this aspect of registration of the motorcycle being in the name of Smt Susheela W/o Rajender is easily St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 48 verifiable online from the Transport Authority and is an information available in public domain. He has also submitted that the dossiers of both the accused Ajay @ Genda and Arjun have been placed on record along with the details of their previous involvements and this motorcycle bearing No. DL6SAF8295 has been used even previously in other offences committed by Arjun and it is for this reason that Arjun is not controverting this aspect of ownership.
(72) I have considered the submissions made. The fact that the motorcycle bearing No. DL6SAF8295 make Pulsor of silver colour having engine No. DKGBTF77903 and chasis No. MD2DHD KZZTCF75409 which is Ex.P1 was recovered at the spot when the accused Ajay @ Genda who was driving the said motorcycle fell down after it skid pursuant to which Ajay @ Genda was apprehended has been established by the prosecution and both the public witnesses i.e. Reena as well as the eye witness Rakesh have also confrimed this fact. It is this which establishes the close association between the accused Ajay @ Genda and Arjun @ Gopu, or else there was no reason why Ajay @ Genda would be driving the motorcycle Ex.P1 at the time of the incident when he was apprehended at the spot by public persons along with the said motorcycle Ex.P1. Allegations against the accused:
(73) The case of the prosecution is that on 20.2.2013 at about 3:30 PM while the victim/ complainant Smt. Reena was going to her parental St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 49 house and when reached just ahead of Mahadev Chowk, Avantika to the side of Vijay Vihar one motorcycle came from her front side and two persons were riding on it. Both the motorcyclists asked her to hand over whatever jewelery she was wearing but she refused on which the pillion rider of the motorcycle pulled out a knife and and pointed out towards her and threatened to hand over the jewelery but on her refusal the pillion rider pulled her shawl and caught her gold chain having locket which she was wearing at that time and the motorcyclist speed it up and dragged her to certain distance as the pillion rider had caught her shawl. On hearing the cries of Smt. Reena including one Rakesh @ Manish who is her neighbour and ASI Nand Singh who was in civil dress at that time, chased the motorcycle and apprehended the boy who was driving the motorcycle since it fell down whereas the boy who was sitting on the pillion seat ran away from the spot.
(74) The entire case of the prosecution is being upon the testimonies of three eye witnesses i.e. the complainant/ victim Smt. Reena (PW5), her neighbour Rakesh Kumar @ Manish (PW6) who chased the assailants and ASI Nand Singh (PW7) who was in civil dress at that time and was withdrawing money from the Axis Bank ATM just opposite the spot of incident and who along with Rakesh apprehended the boy who was driving the motorcycle.
(75) Since the prosecution is placing its heavy reliance on the testimonies of Smt. Reena, Rakesh Kumar @ Manish and ASI Nand Singh St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 50 hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained.
In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 51 AIR 2003 SC 2978).
(76) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross examiner and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(77) Applying these settled principles of law to the facts of the present case, I may observe that in so far as the victim Reena (PW5) is concerned she has in her testimony proved the entire incident. Her oral testimony finds due corroboration from the Medical Record and there is no reason to doubt the said incident. She has not been able to identity the accused Ajay @ Genda in the Court as the person who was driving the motorcycle and has stated that she does not recollect whether he was the same person or not and has explained that she was extremely unwell due to St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 52 which reason she could not see him properly but has confirmed that the said boy had given his name as Ajay @ Genda and had also been shifted to the hospital with her for treatment (accused Ajay is not denying the aspect of treatment but claims it was due to police torture pursuant to his illegal detention in another case). However, in so far as the pillion rider i.e. the accused Arjun @ Gopu is concerned the victim Smt. Meena (PW5) has very clearly identified him as the person who had pulled her chain. Here, I may observe that it was the pillion rider who was shown her the knife and there was sufficient time for Smt. Reena to have closely observed the pillion rider and there is no reason to doubt or disbelieve her testimony. The relevant portion of the testimony of Smt. Reena (PW5) is reproduced as under:
"......... I am residing at the aforementioned address along with my family and I am a housewife. On 20.02.2013 at about 3:304PM I was going to the house of my parents at A1/45, Vijay Vihar phase II from my matrimonial home. When I reached just ahead of Mahadev Chowk, Avantika to the side of Vijay Vihar. One motorcycle came from my front side, two persons were riding on it. The motorcycle stopped near me as I was on foot. Both the motorcyclists told me to hand over whatever jewelery I was wearing. I refused to hand over my jewelery to them. The pillion rider of the motorcycle pulled out a knife and and pointed out towards me and threatened to hand over the jewelery. I refused to hand over my jewelery and I tried to run away from there in order to save myself. I was wearing shawl at that time. The motorcycle was in on condition and they chased me on their motorcycle and came to me. The pillion rider pulled my shawl and caught my gold chain having locket which I was wearing at that time. The St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 53 motorcyclist speed it up and dragged me to certain distance as the pillion rider had caught my shawl. I fell down on the ground and in this process the pillion rider snatched my gold chain having locket. The public persons present over there helped me after hearing my crises. My neighborer Manish who is also known as Rakesh and one police official Nand Singh with the help of public persons caught the person who was driving the vehicle. The motorcyclist fell down on the ground and pillion rider ran away from the spot with my gold chain having locket. I sustained injury on my right hand and scratches on other parts of the body. The motorcyclist was caught by the police official Nand Singh who was not in uniform at that time. Someone called at 100 number. PCR came at the spot and took me and the motorcyclist with police official Nand Singh to BSA Hospital where I was medically examined. The police came to the hospital and recorded my statement which is already EX PW 5/A bearing my thumb impressions at point A. I unable to sign the same because I sustained injury on my right hand. The assailant who was driving the motorcycle and was in the hospital was arrested by the police vide memo already EX PW 5/B bearing my thumb impressions at point A. His personal search was also conducted vide memo already EX PW 5/C bearing my thumb impressions at point A. After my medical examination I accompanied the police to the spot and at my instance site plan was prepared vide already EX PW 5/D. The motorcycle was also taken into possession by the police. I had also participated in the TIP proceedings at Rohini Jail but the accused refused to participate in the TIP proceedings. The TIP proceedings are Ex.PW5/E bearing my signature at point A. St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 54 I can identify the accused if shown to me. At this stage, the witness has correctly identified the accused Arjun by pointing out towards him (not by name). She states that he is the person who was the pillion rider, who had snatched her chain and pulled her shawl and dragged her for some distance.
I can identify the above said motorcycle is shown to me.
At this stage, MHC(M) has produced one motorcycle of silver color which was parked in the court complex bearing No. DL6SAF8295 of Bajaj Pulsor having engine No. DKGBTF77903 and chasis No. MD2DHDKZZTCF 75409 with broken indicators and same is shown to the witness who correctly identified the same as on which the assailants came to the spot. Same is EX P1....."
(78) I may further observe that the witness Reena has in the leading questions put to her by the Ld. Addl. PP admitted that the person who was apprehended at the spot had given his name as Ajay @ Genda S/o Shish Pal which explains how the name of the accused Ajay @ Genda also finds a mention in her first statement to the police on the basis of which the FIR was registered. The relevant portion of her statement is as under:
"...... I am graduate i.e. BA(pass). I can read and write Hindi and English. Whenever I signed or put my thumb impressions I go through the contents of the documents before signing the same. It is correct that it is recorded in my statement Ex.PW5/A that the boy who was apprehended at the spot was Ajay @ Ganda S/o Shiv Pal, resident of S582, Mangolpuri, Delhi. Vol. I do not St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 55 recollect the same.....".
(79) It is writ large that she has identified the accused Arjun @ Gopu in the Court by pointing out towards him (not by name) as the person who was the pillion rider and had snatched her chain and pulled her shawl and dragged her for some distance. She has also identified the motorcycle of silver color bearing No. DL6SAF8295 make Bajaj Pulsor having engine No. DKGBTF77903 and chasis No. MD2DHDKZZTCF 75409 with broken indicators as the same as on which the assailants came to the spot and fell after it skid, pursuant to which the driver was apprehended by public persons and Nand Singh. This motorcycle is Ex.P1.
(80) In so far as the accused Ajay @ Genda is concerned, when the Ld. Addl. PP for the State specifically put the accused to the victim Smt. Reena, she has explained that at the time of the incident she was in a state of shock and was feeling extremely unwell due to which reason she could not see him properly and she does not recollect whether the accused Ajay @ Genda was the same person by stating that she did not recollect i.e. Dhyan nahi hai. This appears to be natural, probable and convincing as it is only natural that she would have been too shocked and nervous at that time to have noticed the driver, though she has identified the pillion rider Arjun as he was the one who had addressed her and threatened her and then pulled her hand and shawl, confirming that her entire attention and focus was towards Arjun at that time.
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 56 (81) Coming now to the testimony of Rakesh @ Manish (PW6) who is the neighbour of Smt. Reena, the relevant portion of his testimony is as under:
"........ I am residing at the aforementioned address along with my family. About 89 months ago, at about 3:304 PM I was passing from 40 feet road near ICICI bank and one ATM of a bank to the side of Mahadev Chowk, I saw the motorcyclist and pillion rider and one female being dragged by the pillion rider who caught her shawl and chunni. It was a case of chain snatching. Someone called police at 100 number. Police came to the spot and took the female injured and the assailant who was driving the motorcycle to the hospital. Both were medically examined and the female injured got fracture on her right arm. The statement of injured was recorded by the police in the hospital. I know injured i.e. Reena who reside in my neighborhood.
The person who was driving the motorcycle and fell down at the spot and was taken to the hospital. On 20.02.2013 I with the help of police official ASI Nand Lal who was in civil clothes caught the person who was driving the motorcycle and fell down on the ground and the pillion rider who snatched the gold chain having locket of Reena, on the point of knife and he ran away from the spot. The person who was caught by us disclosed his name to the police as Ajay @ Ganda, S/o Shish Pal, R/o F582, Mangolpuri, Delhi. One motorcycle bearing No. DL6SAF8295 of silver color make Pulsor and the said vehicle was taken into possession by police and it is on the same motorcycle on which the boy who had fallen down and was caught by St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 57 us Ajay @ Ganda was riding who fell down on the ground and caught by us. I can not identify the accused who had snatched the chain because he had run away from the spot. At this stage, with the permission of the Court, the accused Arjun is put to the witness and asked to identify if he he is the other boy who had run away after snatching the chain, but the witness is unable to identify him saying that he has not seen him.
I can identify the above said motorcycle is shown to me.
At this stage, MHC(M) has produced one motorcycle of silver color which was parked in the court complex bearing No. DL6SAF8295 of Bajaj Pulsor having engine No. DKGBTF 77903 and chasis No. MD2DHDKZZTCF 75409 with broken indicators and same is shown to the witness who correctly identified the same as the one which was driven by the accused and on which the pillion rider was dragging the victim Reena. Same is already EX P1......."
(82) Rakesh @ Manish (PW6) has turned hostile on the identity of the accused Ajay @ Genda who had been caught by him and ASI Nand Singh after a chase but has explained that it was with the help of ASI Nand Singh who was in civil dress that he had caught the person who was driving the motorcycle who fell down on the road whereas the pillion rider who snatched the gold chain having locket of Reena had run away from the spot. He has further admitted that the person who was apprehended by them disclosed his name to the police as Ajay @ Genda S/o Shish Pal, R/o F582, Mangol Puri, Delhi. Hence, though the witness has not identified St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 58 Ajay @ Genda as the person who was apprehended by him but he confirmed his name as such. It is not the case of the accused that there is some other person by this name who was caught. Rakesh is an independent public witness who was present at the spot and has no background of knowing the accused Ajay. Rather, he has not even identified Ajay @ Genda in the Court and there is no reason why he would have falsely named him under the given circumstances.
(83) Coming now to the testimony of ASI Nand Singh (PW7). He has identified the accused Ajay @ Genda as the person who had been apprehended at the spot but has not been able to identify the accused Arjun and has explained that he was not able to see the second assailant who had run away from the spot by the time he came out of the ATM. The relevant portion of his testimony is as under:
"...... On 20.2.2013 I was posted at Police Station Vijay Vihar. At about 3:40 PM I was present at the ATM of Axis Bank situated at 40 Foota Road, Vijay Vihar. As soon as I came out of the ATM after withdrawing the money, I heard the voice of a lady and I saw that one boy was driving the motorcycle whereas the other boy sitting on the pillion seat was dragging the lady by holding her hands. I chased the bikers and caught hold of the boy who was driving the motorcycle. On seeing this a large number of public persons gathered. The boy who was sitting on the pillion seat managed to flee away whereas the boy who was driving the motorcycle was apprehended and the public persons gave him a beating. The motorcycle which he was driving bearing No. DL6S St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 59 AF8295 make Pulsar of silver colour was also there. In the meanwhile some public person had made a call to the PCR on which PCR officials reached the spot and shifted the boy to the hospital as he had also received injuries. The lady who was being dragged whose name was then revealed as Reena had also received injuries and was shifted to the hospital in the same PCR Van and I accompanied them. In the meanwhile the other staff from the PS also arrived and remained at the spot. At BSA Hospital both the victim lady Reena and the boy whose name was later on revealed as Ajay @ Genda present in the Court today (correctly identified) were given treatment. SI Gajender Singh also reached the hospital and recorded the statement of injured Reena. After some time he also interrogated the accused Ajay and arrested him vide memo already Ex.PW5/B bearing my signatures at point B, that of Ct. M. Laxmia at point C, IO at point D, thumb impression of accused at point E and thumb impression of complainant at point A. IO carried out the personal search of the accused Ajay vide memo already Ex.PW5/C bearing my signatures at point B, that of Ct. M. Laxmia at point C, IO at point D, thumb impression of accused at point E and thumb impression of complainant at point A. My statement was recorded by the IO thereafter and I am revealed.
I can identify the motorcycle if shown to me.
At this stage, the MHCM has produced a motorcycle bearing No. DL6SAF8295, make Pulsar of Silver Colour having engine No. DKGBTF 77903 and chasis No. MD2DHDKZZTCF 75409 with broken indicators as the one which was driven by the accused Ajay and on which the pillion rider was dragging the victim Reena. The motorcycle is already Ex.P1...."
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 60
(84) He has been exhaustively crossexamined by the Ld. Counsel for the accused Ajay @ Genda, wherein he has explained that at the time when the victim was being dragged, he was at a distance of about 1415 feet and he ran after the biker and caught hold of the accused by hands on account of which the bike skid and fell down. He has stated that as soon as he caught the accused, public persons also helped him and they caught the accused and gave beatings to him (accused Ajay @ Genda). Here, I may note that this testimony of ASI Nand Singh finds due corroboration from the testimony of Rakesh Kumar @ Manish who has similarly explained that it was ASI Nand Singh who had actually caught hold of the accused.
(85) I may further observe that it has been duly proved by Smt. Reena (PW5), Rakesh @ Manish (PW6) and ASI Nand Singh (PW7) that both Smt. Reena and the accused Ajay @ Genda were taken to BSA Hospital for treatment. The accused Ajay @ Genda does not deny the injuries upon him but claims that it was on account of torture by the police at Police Station since he had been lifted on suspicion in some other case and since he became unconscious therefore the police then took to BSA Hospital which aspect does not find confirmation from the hospital record. Apparently his defence is that the person who had been apprehended at the spot of the incident had been swapped whereas since he had already been receiving medical treatment on account of police torture in illegal detention and hence in order to legalize his detention he was shown as the assailant in the present case. However, the defence so raised by the accused Ajay @ Genda does not St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 61 appear convincing in view of the fact that not only his name is mentioned in the FIR but also because he has been identified by ASI Nand Singh and further because even the hospital record does not confirm the same nor he has lead any evidence to establish his version. Had this been so, the accused Ajay would have specified the name of the case in which he was lifted, the place from where he was lifted, the time when he was so lifted and before whom. He would have even produce witnesses from his area and also from hospital i.e. the doctors/ nurses who were treating him for the same which he did not do. His entire defence is highly vague and non specifically and totally non convincing. Further, though the MLC of the accused Ajay @ Genda is not placed on Judicial Record nor it has been proved by calling the witness, yet the same is present on the Police File and it stands established from the same that the accused Ajay was brought to BSA Hospital on 20.2.2013 at 4:50 PM by the PCR officials and there were injuries on his body which were Simple in nature. This is compatible to the prosecution version that when the Investigating Officer SI Gajender (PW10) reached the spot he came to know that the injured/ victim as well as the boy who was apprehended at the spot had already been taken to the hospital by the PCR and when he reached the hospital he found the victim Smt. Reena and the accused Ajay @ Genda admitted there. Also, the independent public witness Rakesh @ Manish (PW6) has not been able to identify him in the Court but he has confirmed that the boy who was apprehended at the spot disclosed his name as Ajay @ Genda S/o Shish Pal, R/o F582, Mangol Puri, St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 62 Delhi which are the credentials of the accused. There is no reason why the witness Rakesh @ Manish who has not identified the accused Ajay @ Genda in the Court being not sure, would tell a lie so as to confirm his name. Even the victim Reena who has not been able to identify Ajay in the Court confirmed the name of the person caught at the spot as Ajay @ Genda and has also confirmed that he had received injuries when he was beaten by public persons and was taken to the hospital in the same PCR van in which she was shifted. In fact both Rakesh and Reena have identified the motorcycle which was recovered from the spot which is Ex.P1 which according to the Investigating Officer was found to be registered in the name of mother of Arjun an aspect which has not been controverted by Arjun. (86) This being the background, I hereby hold that the witnesses Smt. Reena (PW5), Rakesh @ Manish (PW6) and ASI Nand Singh (PW7) are reliable, credible and truthful witnesses and there is no reason to disbelieve their versions. Further, I may observe that the knife used in the offence has not been recovered nor the gold chain of the victim so snatched has been recovered. Here, I may observe that Smt. Reena has in her first statement Ex.PW5/A mentioned the use of knife by the pillion rider and in the Court had stated that it was the pillion rider who had shown her a knife and threatened her to handover her jewellery. She has specifically identified the accused Arjun @ Gopu in the Court as the boy who has specifically identified the accused Arjun by pointing out towards him (not by name) as the person who was the pillion rider and had snatched her chain and pulled St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 63 her shawl and dragged her for some distance but does not confirm that he was the one who showed her the knife. Hence, in so far as the charge under Section 397 Indian Penal Code against the accused Arjun @ Gopu is concerned, I may observe that the apart from the oral testimony of the victim/ complainant no evidence has been led by the prosecution to conclusively establish the use of knife since both the eye witnesses i.e. Rakesh and ASI Nand Singh do not say anything about the same. Further, the eye witness Reena has not even specified the details of the knife so as to establish that the knife which the accused Arjun allegedly showed to her at the time of incident was a "deadly weapon". Section 397 IPC envisages that if at the time of robbery the offender uses any deadly weapon, the imprisonment with with such offender shall be punished shall not be less than seven years. Thus, what is essential to satisfy the word "uses" for the purpose of this Section is that the robbery being committed by an offender, who was armed with a deadly weapon, which was within the vision of the victim, so as to be capable of creating terror in the mind of the victim. Knives are weapons available in various sizes and may just cause little hurt or may be the deadliest. They are not deadly weapons per se such as would ordinarily result to death by their use. What would make a knife deadly is its design or the manner of its use such as it calculated to or is likely to produce death. This it is a question of fact to be proved by the prosecution that the knife used by the offender was a deadly one. (Ref.:
Ramu @ Raju Vs. State, Crl. Appeal No. 874/2009 and Crl. Appeal No. St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 64 4/2010, decided on 3.12.2010 by Hon'ble Mr. Justice A.K. Pathak.). In the present case it has neither been alleged nor proved that the victim/ complainant had received any injuries with the knife allegedly shown to the victim by the accused Arjun @ Gopu nor the said knife has been recovered to establish and confirm that it was a deadly weapon. This being the background, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Arjun @ Gopu of using the knife at the time of commission of offence which was a deadly weapon and hence benefit of doubt is being given to him for the same. The accused Arjun is acquitted of the charge under Section 397 Indian Penal Code. (87) Further, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Ajay @ Genda and Arjun @ Gopu that on 20.2.2013 both the accused in furtherance of their common intention committed robbery upon Smt. Reena of her gold chain and while committing robbery they voluntarily caused hurt/ injuries to Smt. Reena by dragging her along with the motorcycle after wrapping her shawl around her neck, for which both the accused Ajay @ Genda and Arjun @ Gopu are hereby held guilty of the offence under Section 392 r/w 394/34 Indian Penal Code.
FINAL CONCLUSIONS:
(88) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 65 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.
(89) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 66 the present case have been substantially proved by the police witnesses. On the basis of the evidence on record, the following aspects stand established:
➢ That Smt. Reena is residing at D593, Avantika, Rohini, Delhi along with her family and on 20.02.2013 at about 3:304:00 PM she was going to the house of her parents at A1/45, Vijay Vihar Phase II from her matrimonial home.
➢ That when Smt. Reena reached just ahead of Mahadev Chowk, Avantika to the side of Vijay Vihar one motorcycle came from her front side and two persons were riding on it.
➢ That the motorcycle stopped near Smt. Reena and both the motorcyclists told her to hand over whatever jewelery she was wearing but she refused on which the pillion rider of the motorcycle pulled out a knife (not established as a deadly weapon) and pointed out towards her and threatened to hand over the jewelery.
➢ That Smt. Reena refused to hand over her jewelery and tried to run away from there in order to save herself but motorcycle was in a start position and the motorcyclist chased her on their motorcycle and the pillion rider pulled her shawl and caught her gold chain having locket which she was wearing at that time and the motorcyclist sped up and dragged her to certain distance as the pillion rider had caught her shawl.
➢ That Smt. Reena fell down on the ground and in this process the pillion rider snatched her gold chain having a locket. St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 67 ➢ That while the incident was happening, ASI Nand Singh of Police Station Vijay Vihar was withdrawing money from the Axis Bank ATM just opposite the spot of incident (withdrawal established from statement of account proved by Rohit JainPW13). ➢ That on hearing the cries of Smt. Reena, ASI Nand Singh chased the motorcycle and with the help of public persons including Rakesh @ Manish caught the person who was driving the motorcycle. ➢ That the motorcyclist fell down on the ground and was given a beating by the public persons whereas the pillion rider ran away from the spot with her gold chain having locket.
➢ That Smt. Reena sustained injuries on her right hand and scratches on other parts of the body.
➢ That someone called at 100 number on which PCR came at the spot and took Smt. Reena and the motorcyclist with police official Nand Singh to BSA Hospital where she was medically examined. ➢ That in the meantime information was given to Police Station Vijay Vihar pursuant to which SI Gajender along with Ct. Laxmiah reached the spot where they came to know that the victim/ injured and the accused was taken to BSA hospital in PCR van.
➢ That SI Gajender along with Ct. Laxmiah went to BSA hospital where they met the victim Smt. Reena who was under treatment in the hospital and the accused Ajay S/o Shish Pal was also under treatment in BSA hospital in the casualty.
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 68 ➢ That SI Gajender interrogated Smt. Reena who also informed the police that Ajay @ Genda who was present in the casualty of BSA Hospital was driving the motorcycle and the pillion rider who had run away snatched her gold chain on the point of knife, by pulling her shawl.
➢ That SI Gajender then recorded the statement of Smt. Reena on the basis of which the present case was registered.
➢ That the accused Ajay @ Genda was thereafter arrested and in his disclosure statement was recorded.
➢ That after filing of the charge sheet against the accused Ajay @ Genda, the Investigating Officer SI Gajender came to know that co accused Arjun who was wanted in this case was arrested in some other case by the police of Police Station Adarsh Nagar. ➢ That pursuant to the same SI Gajender got issued a production warrant of accused Arjun @ Gopu pursuant to which on 03.10.2013 the accused Arjun @ Gopu was produced in the Court by the Jail Authorities in muffled face and thereafter the accused Arjun was formally arrested in this case and his disclosure statement was recorded.
➢ That on 7.10.2013 the TIP of accused Arjun was but during TIP the accused Arjun refused to participate.
(90) The victim/ complainant Smt. Reena has in the Court specifically identified the accused Arjun @ Gopu by pointing out towards St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 69 him (not by name) as the person who was the pillion rider and had snatched her chain and pulled her shawl and dragged her for some distance. Further, the accused Ajay @ Genda has been duly identified by ASI Nand Singh as the boy who was driving the motorcycle and was apprehended by him at the spot with the help of public persons and though both Reena and eye witness Rakesh Kumar @ Manish have not identified the accused Ajay @ Genda, but have admitted that the boy who was apprehended at the spot along with the motorcycle disclosed his name as Ajay @ Genda S/o Shish Pal, R/o F582, Mangol Puri, Delhi (due to which Ajay @ Genda has been named in the FIR). The testimonies of all the above three witnesses are found to be reliable, credible and truthful.
(91) 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.
(92) 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. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 70 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 and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(93) In view of the aforesaid, I hereby hold that the prosecution has been able to prove and substantiate the allegations against the accused Ajay @ Genda and Arjun @ Gopu that on 20.2.2013 both the accused in furtherance of their common intention committed robbery upon Smt. Reena of her gold chain and while committing robbery they voluntarily caused hurt/ injuries to Smt. Reena by dragging her along with the motorcycle after wrapping her shawl around her neck, for which both the accused Ajay @ Genda and Arjun @ Gopu are hereby held guilty of the offence under Section 392 r/w 394/34 Indian Penal Code and accordingly convicted. (94) However, in so far as the charge under Section 397 IPC against the accused Arjun @ Gopu is concerned, it has neither been alleged nor proved that the victim/ complainant had received any injuries with the knife allegedly shown to the victim by the accused Arjun @ Gopu nor the said knife has been recovered to establish and confirm that it was a deadly weapon. This being the background, I hereby hold that the prosecution has not been able to prove and substantiate the allegations against the accused Arjun @ Gopu of using the knife at the time of commission of offence St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 71 which was a deadly weapon and hence benefit of doubt is being given to him for the same. The accused Arjun is acquitted of the charge under Section 397 Indian Penal Code.
(95) Be listed for arguments on sentence on 13.3.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 7.3.2014 ASJII(NW)/ ROHINI
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 72
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session Case No. 127/2013 Unique Case ID No.: 02404R0116182013 State Vs. (1) Ajay @ Genda S/o Shishpal R/o House No. S582, Mangol Puri, Delhi & Village Tilkirodi, Disst. Behror, Rajasthan (Convicted) (2) Arjun @ Gopu S/o Rajender R/o Jhuggi No. 101, Lal Bagh, Azadpur, Delhi (Convicted) FIR No.: 97/2013 Police Station: Vijay Vihar Under Sections: 392/394/397/34 Indian Penal Code Date of conviction: 7.3.2014 Arguments concluded on: 13.3.2014 Date of Sentence: 18.3.2014 APPEARANCE:
Present: Sh. Ashok Kumar, Ld. Addl. PP for the State.
Convict Ajay @ Genda in Judicial Custody with Sh. Baldev Raj Advocate.
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 73 Convict Arjun @ Gopu in Judicial Custody with Ms. Sunita Tiwari, Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
As per allegations on 20.2.2013 at about 3:30 PM at Mahadev Chowk, near Avantika both the accused Ajay @ Genda and Arjun @ Gopu in furtherance of their common intention robbed Smt. Reena of her gold chain along with the gold locket on the point of knife shown by accused Arjun and while committing robbery they voluntarily caused hurt/ injuries to Smt. Reena by dragging her along with the motorcycle after wrapping her shawl around her neck.
On the basis of the testimonies of the prosecution witnesses particularly the victim/ complainant Smt. Reena, her neighbour Rakesh Kumar @ Manish and ASI Nand Singh and also on the basis of medical and circumstantial evidence on record, vide a detail judgment dated 7.3.2014 this Court has held both the accused Ajay @ Genda and Arjun @ Gopu guilty of the offence under Section 392 read with 394 Indian Penal Code and accordingly convicted. The accused Arjun @ Gopu has been acquitted of the charge under Section 397 Indian Penal Code.
In the judgment this Court has observed that the prosecution has been able to successfully establish that Smt. Reena is residing at D593, Avantika, Rohini, Delhi along with her family and on 20.02.2013 at about 3:304:00 PM she was going to the house of her parents at A1/45, Vijay St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 74 Vihar Phase II from her matrimonial home; that when Smt. Reena reached just ahead of Mahadev Chowk, Avantika to the side of Vijay Vihar one motorcycle came from her front side and two persons were riding on it; that the motorcycle stopped near Smt. Reena and both the motorcyclists told her to hand over whatever jewelery she was wearing but she refused on which the pillion rider of the motorcycle pulled out a knife (not established as a deadly weapon) and pointed out towards her and threatened to hand over the jewelery; that Smt. Reena refused to hand over her jewelery and tried to run away from there in order to save herself but motorcycle was in a start position and the motorcyclist chased her on their motorcycle and the pillion rider pulled her shawl and caught her gold chain having locket which she was wearing at that time and the motorcyclist sped up and dragged her to certain distance as the pillion rider had caught her shawl; that Smt. Reena fell down on the ground and in this process the pillion rider snatched her gold chain having a locket.
Further, it has been established that while the incident was happening, ASI Nand Singh of Police Station Vijay Vihar was withdrawing money from the Axis Bank ATM just opposite the spot of incident (withdrawal established from statement of account of Nand Singh proved by witness from the Bank namely Rohit Jain); that on hearing the cries of Smt. Reena, ASI Nand Singh chased the motorcycle and with the help of public persons including Rakesh @ Manish caught the person who was driving the motorcycle; that the motorcyclist fell down on the ground and was given a St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 75 beating by the public persons whereas the pillion rider ran away from the spot with her gold chain having locket; that Smt. Reena sustained injuries on her right hand and scratches on other parts of the body; that someone called at 100 number on which PCR came at the spot and took Smt. Reena and the motorcyclist with police official Nand Singh to BSA Hospital where she was medically examined; that in the meantime information was given to Police Station Vijay Vihar pursuant to which SI Gajender along with Ct. Laxmiah reached the spot where they came to know that the victim/ injured and the accused was taken to BSA hospital in PCR van; that SI Gajender along with Ct. Laxmiah went to BSA hospital where they met the victim Smt. Reena who was under treatment in the hospital and the accused Ajay S/o Shish Pal was also under treatment in BSA hospital in the casualty; that SI Gajender interrogated Smt. Reena who also informed the police that Ajay @ Genda who was present in the casualty of BSA Hospital was driving the motorcycle and the pillion rider who had run away snatched her gold chain on the point of knife, by pulling her shawl; that SI Gajender then recorded the statement of Smt. Reena on the basis of which the present case was registered; that the accused Ajay @ Genda was thereafter arrested and in his disclosure statement was recorded.
It has also been established that after filing of the charge sheet against the accused Ajay @ Genda, the Investigating Officer SI Gajender came to know that coaccused Arjun who was wanted in this case was arrested in some other case by the police of Police Station Adarsh Nagar; St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 76 that pursuant to the same SI Gajender got issued a production warrant of accused Arjun @ Gopu pursuant to which on 03.10.2013 the accused Arjun @ Gopu was produced in the Court by the Jail Authorities in muffled face and thereafter the accused Arjun was formally arrested in this case and his disclosure statement was recorded; that on 7.10.2013 the TIP of accused Arjun was but during TIP the accused Arjun refused to participate in the same and it is in the Court that Reena then identified the accused Arjun @ Gopu by pointing out towards him (not by name) as the person who was the pillion rider and had snatched her chain and pulled her shawl and dragged her for some distance. Further, the accused Ajay @ Genda has been duly identified by ASI Nand Singh as the boy who was driving the motorcycle and was apprehended by him at the spot with the help of public persons and though both Reena and eye witness Rakesh Kumar @ Manish have not identified the accused Ajay @ Genda, but have admitted that the boy who was apprehended at the spot along with the motorcycle disclosed his name as Ajay @ Genda S/o Shish Pal, R/o F582, Mangol Puri, Delhi (due to which Ajay @ Genda has been named in the FIR) and was also shifted for treatment to the hospital in the same PCR van in which Reena was shifted. The testimonies of all the above three witnesses have been found to be reliable, credible and truthful.
This being the background, this court has held that the prosecution has been able to prove and substantiate the allegations against the accused Ajay @ Genda and Arjun @ Gopu that on 20.2.2013 both the St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 77 accused in furtherance of their common intention committed robbery upon Smt. Reena of her gold chain and while committing robbery they voluntarily caused hurt/ injuries to Smt. Reena by dragging her along with the motorcycle after wrapping her shawl around her neck, for which both the accused Ajay @ Genda and Arjun @ Gopu are hereby held guilty of the offence under Section 392 r/w 394/34 Indian Penal Code and accordingly convicted. However, in so far as the charge under Section 397 IPC against the accused Arjun @ Gopu is concerned, this Court has observed that it has neither been alleged nor proved that the victim/ complainant had received any injuries with the knife allegedly shown to the victim by the accused Arjun @ Gopu nor the said knife has been recovered to establish and confirm that it was a deadly weapon. Hence, in this background benefit of doubt has been given to the accused Arjun and he has been acquitted of the charge under Section 397 Indian Penal Code.
Heard arguments on the point of sentence. The convict Ajay @ Genda is stated to be a young boy of 28 years having a family comprising of aged widow mother. He is totally illiterate and was running a rehri of soup. The convict Arjun @ Gopu is stated to be a young boy of 25 years having a family comprising of aged widow mother and two elder sisters. He is 5th class pass and is a Bus Conductor by profession.
It has been vehemently argued by the Ld. Counsels for the convicts that both the convicts are young boys and considering their family background, a lenient view be taken against them. On the other hand the Ld. St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 78 Addl. PP for the State has prayed that a stern view be taken against the convicts keeping in view the allegations involved. He has pointed out that the convict Ajay @ Genda is involved in as many as Forty One cases details of which are as under:
Sr. FIR No. Police Station Under Section No. 1. 784/2004 Ashok Vihar 379 IPC 2. 799/2004 Ashok Vihar 25/54/59 A.ACT 3. 713/2004 Ashok Vihar 356/379 IPC 4. 650/2004 Ashok Vihar 356/379 IPC 5. 760/2004 Ashok Vihar 356/379 IPC 6. 815/2006 Shalimar Bagh 356/379 IPC 7. 820/2004 South Rohini 356/379 IPC 8. 842/2004 Shalimar Bagh 356/379/34 IPC 9. 873/2004 Shalimar Bagh 356/379/34 IPC 10. 923/2004 Shalimar Bagh 356/379/34 IPC 11. 938/2004 Shalimar Bagh 356/379 IPC 12. 734/2004 Model Town 356/379/34 IPC 13. 741/2005 South Rohini 356/379 IPC 14. 617/2005 Adarsh Nagar 356/379 IPC 15. 195/2005 Kanjhawala 21/61/85 NDPS ACT 16. 947/2006 Ashok Vihar 356/379/34 IPC St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 79 17. 844/2006 Model Town 356/379/34 IPC 18. 770/2006 Model Town 356/379/34 IPC 19. 848/2006 Mangol Puri 356/379/34 IPC 20. 739/2006 Mangol Puri 186/353/307/34 IPC and 25/54/59 Arms Act 21. 52/2006 South Rohini 399/402/186/353/307/34 IPC 22. 1519/2006 Sultan Puri 356/379 IPC 23. 817/2006 Shalimar Bagh 379/356/34 IPC 24. 836/2006 Shalimar Bagh 356/379/34 IPC 25. 1184/2006 Saraswati Vihar 379/356/34 IPC 26. 52/2006 Kanjhawala 25/54/59 A.ACT 27. 623/2006 Mangol Puri 356/379 IPC 28. 967/2006 Prashant Vihar 356/379 IPC 29. 997/2006 Saraswati Vihar 356/379 IPC 30. 921/2006 Ashok Vihar 356/379/34 IPC 31. 1220/2006 Saraswati Vihar 256/379 IPC 32. 54/2007 Mangol Puri 3(2)3(4) MACOCA ACT 33. 436/2012 Vijay Vihar 356/379 IPC 34. 27/2013 Vijay Vihar 356/379/34 IPC 35. 17/2013 Vijay Vihar 256/379/34 IPC 36. 56/2013 K.N. Katju Marg 356/379/34 IPC 37. 95/2013 Mangol Puri 392/394 IPC St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 80 38. 35/2013 South Rohini 356/379 IPC 39. 75/2013 Sultan Puri 392/394 IPC 40. 113/2013 Sultan Puri 392/394 IPC 41. 23/2013 Vijay Vihar 356/379/34 IPC
In so far as the convict Arjun @ Gopu is concerned, the Ld. Addl. PP has pointed out that he is involved in as many as Thirty Seven other cases details of which are as under:
Sr. FIR No. Police Station Under Section No. 1. 245/2005 Jahangir Puri 61/01/14 EX ACT 2. 361/2006 Jahangir Puri 25/54/59 A ACT 3. 599/2006 Model Town 25/54/59 A ACT 4. 325/2008 Model Town 356/379/411/34 IPC 5. 273/2008 Model Town 356/379/411/34 IPC 6. 144/2008 Maurya Enclave 379/356/34 IPC 7. 361/2008 Shalimar Bagh 356/379/34 IPC 8. 816/2008 South Rohini 356/279/34 IPC 9. 121/2008 Maurya Enclave 356/379/411 10. 691/2008 Saraswati Vihar 356/379/411 IPC 11. 42/2009 Swarup Vihar 356/379 IPC 12. 203/2009 Aman Vihar 379 IPC St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 81 13. 59/2009 Maurya Enclave 3(2), 3(4) MACOCA ACT 14. 386/2009 Jahangir Puri 392 IPC 15. 384/2009 Paschim Vihar 379/411/34 IPC 16. 390/2009 Jahangir Puri 3694/34 IPC 17. 193/2009 Welcome 411/34 IPC 18. 285/2009 Gokul Puri 379/411 IPC 19. 452/2011 Saraswati Vihar 379/356 IPC 20. 312/2011 Crime Branch 411/34 IPC 21. 339/2011 Seema Puri 379/482/411/34 IPC 22. 441/2011 Model Town 379/356/34 IPC 23. 425/2011 Model Town 379/356/34 IPC 24. 325/2011 Maurya Enclave 356/379 IPC 25. 446/2011 Model Town 356/379/34 IPC 26. 105/2012 Model Town 356/379 IPC 27. 267/2013 Ashok Vihar 356/379/34 IPC 28. 265/2013 Ashok Vihar 356/379/34 IPC 29. 174/2013 South Rohini 256/379/34 IPC 30. 265/2013 Ashok Vihar 356/379 IPC 31. 249/2013 Keshav Puram 356/379/34 IPC 32. 265/2013 Ashok Vihar 356/379/'411 33. 150/2013 Adarsh Nagar 356/379/411/34 IPC St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 82 34. 191/2013 Shalimar Bagh 356/379 IPC 35. 202/2013 Keshav Puram 356/379/34 36. 105/2013 Adarsh Nagar 356/379/411/34 37. 265/2013 Ashok Vihar 356/379/411/34 IPC
Ld. Addl. has argued that no leniency should be shown to the convicts keeping in view their above criminal background.
I have considered the rival contentions. In the recent past Delhi is experiencing a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. The 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 St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 83 Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to 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.
There was no previous animosity between the convicts and the victim Smt. Reena and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders 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. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
The convict Ajay @ Genda is involved in as many as Forty One criminal cases whereas the convict Arjun @ Gopu is involved in as many as Thirty Seven other criminal cases. The manner in which the offence has been committed in broad daylight coupled with their track record shows that both the convicts are desperadoes who have no respect for law and legal St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 84 process of this Country and they have an impression that perhaps the Legal System of this Country is incompetent to hold them back for their illegal activities. No doubt, the Indian Legal System particularly the Criminal Justice Mechanism has certain practical failings which is highly disturbing and to some extent appears to have shaken the faith of the people resulting into emboldening of the wrong doers but still I hold that things are not as bad as they may appear.
Keeping in view the above criminal background of the convicts and the desirability and need to keep the convicts out of circulation, both the convicts Ajay @ Genda and Arjun @ Gopu are hereby sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.5,000/ (Rs. Five Thousand) for the offence under Section 392 read with Section 394 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of 15 days.
Benefit of Section 428 Cr.P.C. shall be given to both the convicts for the period already undergone by them, as per rules.
It is clarified that the sentence in the present FIR shall run CONSECUTIVELY to the sentences awarded to the convicts in other case.
The convicts have been informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 85 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.
One copy of the judgment and order on sentence be given to both the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 18.3.2014 ASJ (NW)II: ROHINI
St. Vs. Ajay @ Genda & Anr., FIR No. 97/13, PS Vijay Vihar Page No. 86