Delhi District Court
State vs Pratush Saxena on 25 November, 2016
FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI S.C. No. 58690/16 State Versus Pratush Saxena S/o Sh. Ravi Kumar R/o F6/15, 2nd Floor, Sector16, Rohini, Delhi. FIR No. : 645/15 Police Station : KNK Marg Under Sections : 394/397/307/411/459 IPC Date of committal to Sessions Court : 18.11.2015 Date on which judgment was reserved: 25.11.2016 Date on which Judgment pronounced : 25.11.2016 JUDGMENT
1. The case of the prosecution as mentioned in the chargesheet is as under:
(i) That on 21.06.2015 at 6.25 am, intimation regarding inflicting of blade to one lady at F7/29, Sector16, Rohini, Delhi was received in PS KNK Marg and same was recorded vide DD no. 10A (Ex.PW10/A). Same was entrusted to SI L.N. Saini (PW21) for necessary action. Accordingly, he alongwith Ct. Sanjeev (PW19) rushed to the place of information, where it was revealed that injured had been shifted State V/s Pratush Saxena ("Convicted") Page 1 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 to BSA hospital. After leaving Ct. Sanjeev at the spot, SI L.N. Saini rushed to said hospital, where he collected MLC of injured namely Ms. Nishu Bohra (PW1);
(ii) That SI L.N. Saini recorded statement (PW1/A) of injured/ complainant Ms. Nishu Bohra, wherein she claimed that she had been residing in the rented accommodation forming part of property no. F7/29, Sector16, Rohini, Delhi and was permanent resident of Dehradoon, Uttrakhand. During intervening night of 20/21062015, at about 3.00 while she was sleeping in the tenanted room, one unknown person gained entry into the room through window and started beating her. When she was raising alarm, he closed her mouth with his hand and inflicted injuries upon her neck, ears, cheek, etc. with some sharp edged object and also committed robbery of her mobile phone containing Airtel SIM no. 9599849264 and fled away from there;
(iii) That on the basis of aforesaid statement, FIR in question was got registered for offences punishable U/s 459/380 IPC through Ct. Sanjeev and investigation was entrusted to SI L.N. Saini, who got the scene of crime photographed and inspected through Crime Team officials, seized the relevant exhibits including blood stained cover of mattress and blood sample from the scene of crime and also prepared site plan at the State V/s Pratush Saxena ("Convicted") Page 2 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 instance of complainant and also recorded statements of relevant witnesses;
(iv) It is further the case of prosecution that on 02.08.2015, the analysis of CDRs of robbed mobile phone revealed that said mobile hand set was being used by someone by inserting SIM no. 9910134633. On being contacted, the user of said phone disclosed his name and address, on which IO alongwith HC Amarjeet (PW20) went to the said address and came across one Bhagat Singh (PW11), who disclosed that said mobile handset had been purchased by him through his cousin brotherinlaw Rahul (PW14) from accused herein, for a sum of Rs. 3500/ with the understanding that part payment of Rs. 2000/ was made immediately and remaining amount of Rs. 1500/ would be paid only after receipt of invoice of the said hand set. When Rahul failed to prove invoice of said mobile hand set, he had returned back the mobile hand set to the Rahul. Thereafter, Rahul was joined in the investigation and he corroborated the version made by Bhagat Singh and informed that since accused failed to prove invoice of the mobile hand set, he returned back the said mobile hand set to accused. Accused was also found present in the house of Rahul at that time and on the identification of Rahul, accused was arrested and robbed mobile phone was recovered from his possession. After his State V/s Pratush Saxena ("Convicted") Page 3 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 interrogation, he was arrested in this case and recovered mobile phone was seized. During investigation, accused pointed out the place of commission of offence and also got recovered weapon of offence i.e. vegetable knife from iron almirah of his H. No. F6/15, Second Floor, Rohini Delhi. After carrying out relevant proceedings with regard to said knife, same was seized. Accused also pointed out the place where he had thrown his blood stained wearing pant and TShirt after burning them. He was correctly identified by victim in judicial TIP. Subsequent opinion was collected from concerned doctor with regard to the weapon of offence and relevant exhibits were got deposited in FSL for DNA profile. Result on MLC of victim was opined as grievous. After completion of investigation, chargesheet had been filed before the Court.
2. After compliance of Section 207 Cr.P.C., the case committed to the Court of Sessions and was assigned to this Court.
3. After hearing arguments on the point of charge, this Court framed the charge in respect of offences punishable U/s 394/397/307/411/457/459 IPC against accused vide order dated 18.12.2015 to which he pleaded not guilty and claimed trial.
4. In support of its case, the prosecution examined 22 witnesses namely PW1 Ms. Nisha Bohra, PW2 Sh. Umesh Chandra Gupta, PW3 HC Parveen, PW4 Dr. Vishwa Prakash, PW5 Dr. Amit Prakash, PW6 Dr. State V/s Pratush Saxena ("Convicted") Page 4 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 Brijesh Patel, PW7 Dr. Puja Bharti, PW8 Dr. Vijay Dhanker, PW9 ASI Ram Rattan Kaushik, PW10 HC Sudhershanan, PW11 Sh. Bhagat Singh, PW12 Dr. Nipun Chopra, PW13 SI (Retd) Randhir Singh, PW14 Sh. Rahul Srivastava, PW15 Ct. Om Parkash, PW16 Ct. Raj Kumar, PW17 Sh. Chander Shekhar, PW18 Ct. Rajesh, PW19 Ct. Sanjeev, PW20 HC Amarjeet, PW21 SI L.N Saini and PW22 Ms. Imrana, during trial.
5. Before proceeding further, it is necessary to note that accused made statement during trial on 02.03.2016 that he was not disputing the contents of TIP proceedings conducted by Sh. Harjit Singh Jaspal, the then Ld. MM. And he had no objection in case said prosecution witness is not summoned in order to formally prove the TIP proceedings. In view of said statement, the relevant prosecution witness namely Sh. Harjit Singh Jaspal was dropped from the list of witnesses and TIP proceedings was exhibited as Ex.PW1/D
6. Thereafter, statement U/s 313 Cr.P.C. of accused was recorded, during which all the incriminating evidence which came on record, were put to him. He denied the same and claimed that he is innocent and has been falsely implicated in this case. However, he opted not to lead any evidence towards his defence.
7. I have already heard Sh. Pankaj Bhatia, Ld. Additional Public Prosecutor on behalf of State and Ld. Amicus Curiae Sh. Abhishek Kaushik, Adv. on behalf of accused. I have also gone through the material available on record.
State V/s Pratush Saxena ("Convicted") Page 5 of 33FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016
8. Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss, in brief, the testimonies of prosecution witnesses examined during trial. The testimonies of prosecution witnesses are detailed as under: PUBLIC WITNESSES:
9. PW1 Ms. Nishu Bohra: She is the complainant/victim in this case. She has deposed on the lines of prosecution story during chief examination by narrating the sequence of facts which led to the incident in question. She identified accused to be the assailant who had committed robbery of her mobile phone make Lenovo, containing SIM connection No. 9599849264 and also having committed injuries on her neck, ears, cheek and eyes with sharp edged weapon. She testified that accused had also assaulted over her hands and on various other parts of the body with said weapon due to which she bleeded profusely and had lost her consciousness after falling down on the ground. After regaining her consciousness at about 6.00 am, she somehow managed to come outside the room from the window of kitchen and informed about the occurrence to her landlord Sh. Umesh Chand Gupta who made PCR call at 100 number, whereafter PCR Van removed her to BSA hospital, where she made statement Ex. PW1/A before the police. She also deposed that she remained in the hospital for about 23 days.
She further deposed that during investigation, she had handed over box of robbed mobile phone before IO, who seized the same vide State V/s Pratush Saxena ("Convicted") Page 6 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 memo Ex.PW1/B. She identified the said mobile box as Ex.PW1/C during trial. She also deposed that she had identified accused during judicial TIP held before Ld. Magistrate, vide TIP proceedings Ex.PW1/D. She also identified the robbed mobile hand set as Ex.P1, blood stained mattress cover as Ex.P2 and knife as Ex.P3 to be the same knife which was used by accused in the commission of offences committed against her.
In her cross examination, she explained that her tenanted accommodation consisted of one room attached with toilet and kitchen situated on first floor of the said property and there was only one main gate for gaining entry inside the said premises. She did not hand over bill/invoice of mobile hand set to IO during investigation. She further deposed that mattress cover (Ex.P2) and knife (Ex.P3) were not seized in her presence. She admitted that knife (Ex.P3) was vegetable knife and such type of knife is easily available in the open market.
10. PW2 Sh. Umesh Chand Gupta: He is the landlord of property no. F7/29, Sector16, Rohini, Delhi. He corroborated the statement of PW1 by deposing that he had let out first floor consisting of one room, bathroom and kitchen of the said house to Ms. Nishu Bohra. On 21.06.2015 at about 6.00 am, Ms. Nishu Bohra, who was in injured condition having multiple injuries over her neck, face and arms, etc, had informed him that one person, who had entered inside the rented accommodation from window of the kitchen, had assaulted her with sharp edged weapon and had robbed her mobile phone. He had made PCR call at 100 number, whereafter PCR State V/s Pratush Saxena ("Convicted") Page 7 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 Van came and removed Nishu Bohra to BSA hospital. He accompanied her to the hospital at that time. IO had recorded statement of Nishu Bohra in the hospital and thereafter, had got the scene of crime inspected through Crime Team Officials. He further deposed that IO had lifted relevant exhibits including blood stains from the spot and had seized blood stained cover of the mattress from the tenanted room of Nishu Bohra. He identified the scene of crime from the photographs Ex.P1 (colly.). He also deposed that he had lodged one written complaint Ex.PW2/A with the concerned SHO.
During cross examination, he admitted that police did not obtain his signature on any of the memos prepared during investigation of the case. No rent agreement was executed between the parties. He denied the suggestion that Ms. Nishu Bohra never resided in his house as a tenant.
11. PW11 Sh. Bhagat Singh: He deposed that on or about 30.07.2015, his distant relative namely Rahul showed him one mobile instrument to him and told that his friend Pratyush Saxena (i.e. the accused herein) had purchased said mobile phone and he wanted to sell the same at cheaper rate. Accordingly, he purchased said mobile phone for a total sum of Rs. 3500/, out of which, he made part payment of Rs. 2000/ to Rahul and promised to pay remaining amount of Rs. 1500/ on receipt of invoice of the mobile hand set from accused. He started using the said mobile instrument for three days by inserting his Airtel SIM no. 991034633 and Reliance SIM no. 8287943325. When Rahul did not hand over invoice of the mobile hand set, he returned back the said mobile instrument to Rahul State V/s Pratush Saxena ("Convicted") Page 8 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 and took back sum of Rs. 2000/. He identified said mobile hand set make Lenovo as Ex. P1 during trial.
During cross examination, he deposed that he never met accused during said transaction or even thereafter.
12. PW14 Sh. Rahul Srivastava: He corroborated the statement of PW11 by deposing that accused, who was previously known to him for the last 23 months prior to the occurrence, showed him one new mobile phone. On enquiry, accused told him that he had purchased the said mobile phone. Accused disclosed that he wanted to sell said mobile phone, on which he got the deal finalized between his relatives Bhagat Singh and accused for a sum of Rs. 3500/, out of which cash amount of Rs. 2000/ was paid and balance amount was agreed to be paid after receipt of invoice of the said mobile hand set. However, on 02.08.2015, Bhagat Singh returned back the said mobile hand set make Lenovo company of black colour and in turn, he returned back the said mobile phone to accused on 02.08.2015 itself. On 02.08.2015, when accused was present in his house, police came and apprehended the accused on his identification and said mobile phone was recovered from his possession. Police had arrested the accused vide memo Ex.PW14/A and had recorded his disclosure statement Ex.PW14/C. Police had also seized said mobile phone vide memo Ex.PW14/D. He further deposed that accused led them to his house No. 6/15, Second Floor, Sector16, Rohini, Delhi and got recovered one vegetable State V/s Pratush Saxena ("Convicted") Page 9 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 knife from inside iron almirah. After preparing rough sketch Ex.PW14/E and sealed pullanda of said knife, same was seized vide memo Ex.PW14/F. He also deposed that IO had also prepared site plan Ex.PW14/G of the place of occurrence. Accused had pointed out the place, where he had disposed of his wearing clothes after burning the same, vide memo Ex.PW14/J. He identified the mobile phone as Ex.P1 and knife as Ex.P3 during trial.
During cross examination, he admitted that knife (Ex.P3) was vegetable knife and such type of knife was easily available in the open market. He also admitted that there was no blood stains available on blade of the said knife. There were two police officials who had visited his house at the time when accused was apprehended from there.
POLICE WITNESSES:
13. PW3 HC Parveen: This witness was working as MHC(M) in PS KNK Marg during the relevant period. He deposed that on 21.06.2015, SI L.N. Saini had deposited two pullandas sealed with the seal of LNS in malkhana, vide entry at serial no. 1197/15 of Register no. 19. He proved copy of said entry as Ex.PW3/A. He further deposed that on 02.08.2015, SI L.N. Saini had deposited one mobile phone make Lenovo black colour having golden cover and one pullanda sealed with the seal of LNS in Malkhana, vide entry at serial no. 1308/15 of Register no. 19. He proved copy of said entry as Ex.PW3/B. State V/s Pratush Saxena ("Convicted") Page 10 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 He further deposed that on 17.08.2015, SI L.N. Saini had deposited one sealed pullanda sealed with the seal of Dr. BSAH Casualty and one sample seal of similar specimen, in Malkhana, vide entry at serial no. 1339/15 of Register no. 19. He proved copy of said entry as Ex.PW3/C. He further deposed that on 18.09.2015, he had handed over four sealed pullandas and three sample seal to Ct. Om Prakash vide RC No. 93/21/15 for being deposited in FSL Rohini. He proved copy of said RC as Ex.PW3/D and copy of acknowledgment receipt issued by FSL as Ex.PW3/E.
14. PW9 ASI Ram Rattan Kaushik: He was working as Duty Officer at PS KNK Marg on 21.06.2015. He proved factum about recording of FIR in question on the basis of rukka sent by SI L.N. Saini through Ct.
Sanjeev on 21.06.2015 at 9.45 am. He proved copy of said FIR as Ex.PW9/A and his endorsement on the rukka as Ex.PW9/B. He also exhibited Certificate U/s 65B of Indian Evidence Act as Ex.PW9/C.
15. PW10 HC Sudarsanan. S: He was working as DD Writer. He deposed that in the intervening night of 20/21062015, DD No. 10A was registered by him at about 6.25 am in PS KNK Marg to the effect that injuries were caused to one lady with blade at premises No. F7/29, Sector16, Rohini, Delhi. The said information was sent to SI L.N. Saini for necessary action. He proved copy of said DD entry as Ex.PW10/A. He has not been cross examined on behalf of accused despite grant of opportunity.
State V/s Pratush Saxena ("Convicted") Page 11 of 33FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016
16. PW13 SI (Retd.) Randhir Singh: He was posted as In charge Mobile Crime Team, Outer District on 21.06.2015. He deposed that on receipt of information, he alongwith other staff reached at the spot i.e. Flat/premises no. F7/29, 3rd Floor, Sector16, Rohini, Delhi, where they met IO SI L.N. Saini and other staff. He further deposed that he had inspected the spot and photographer took the photographs. Chance prints were also lifted by HC Surender. He proved his report as Ex.PW13/A. During cross examination, he deposed that the place of occurrence was consisting of one room with kitchen and bathroom. He could not tell if ground floor of the said property was being used for residential purpose or for commercial purpose.
17. PW15 Ct. Om Prakash: He deposed that on 18.09.2015, he had collected four sealed parcels vide R.C. No. 93/21/15 from MHC(M) and had deposited them in FSL, Rohini and had handed over receipt regarding deposit of exhibits in FSL to MHC(M). He has not been cross examined by accused despite grant of opportunity.
18. PW16 Ct. Raj Kumar: He was posted as photographer in Mobile Crime Team, Outer District. He deposed that on 21.06.2015, on receipt of call from District Control Room, he alongwith SI Randhir, Incharge Mobile Crime Team and HC Surender, Finger Print Expert had visited the place of occurrence i.e.F7/29, 3rd Floor, Sector16, Rohini, Delhi, where they met SI L.N. Saini and other police staff. Upon instructions of Incharge Mobile Crime Team and SI L.N. Saini, he had State V/s Pratush Saxena ("Convicted") Page 12 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 taken 13 photographs of the place of occurrence from digital camera from different angles. He exhibited the negatives of photographs as Ex.PW16/A and photographs as Ex.PW16/B. In his cross examination, he deposed that the place of occurrence was situated on third floor of property no. F7/29, Sector16, Rohini, Delhi, wherein one room, bathroom and kitchen were found constructed. They remained at the spot approximately for about half an hour.
19. PW18 Ct. Rajesh: He was on duty as Duty Constable in BSA Hospital on 17.08.2015. He deposed that doctor concerned had handed over one sealed pullanda containing blood sample of Ms. Nishu Bohra alongwith one sample seal to him. He had handed over the same to IO, who seized the same vide memo Ex.PW18/A. He has not been cross examined on behalf of accused despite grant of opportunity.
20. PW19 Ct. Sanjeev: He had accompanied IO SI L.N. Saini for attending call vide DD No. 10A on 21.06.2015. He deposed that after coming to know that injured had been removed to BSA Hospital by PCR officials, SI L.N. Saini went to the hospital after leaving him at the spot. After sometime, SI L.N. Saini returned back to the spot, prepared rukka and handed over the same to him, on the basis of which he got the FIR registered through concerned Duty Officer. IO had lifted blood from the scene of crime with the help of cotton gauze and prepared its sealed pullanda and seized the same vide memo Ex.PW19/A. He also seized blood stained bed State V/s Pratush Saxena ("Convicted") Page 13 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 cover, after preparing its sealed pullanda, vide memo Ex.PW19/B. He identified the said mattress cover as Ex.P2 and gauze piece as Ex.P4, during trial.
During cross examination, he deposed that IO did not record statement of any public witness at the spot in his presence. There was an office situated on ground floor of the said property.
21. PW20 HC Amarjeet: He remained associated during investigation with IO on 02.08.2015. He deposed that on the basis of analysis of CDRs, it was revealed that SIM connection no. 9910134633 had been inserted in the robbed mobile handset and said SIM connection was registered in the name of one Bhagat Singh. Accordingly, he alongwith IO SI L.N. Saini went to the house of Bhagat Singh and made enquiries from him. He informed that he had purchased said mobile handset through his relative Rahul from Pratush Saxena i.e. the accused herein. After conducting enquiry from him, they went to the address of Rahul, wherefrom accused was arrested on the identification of Rahul and robbed mobile handset was recovered from the possession of accused. IO arrested accused vide memo Ex.PW14/A and recorded his disclosure statement Ex.PW14/C and seized the recovered mobile handset vide memo Ex.PW14/D. He further deposed that accused also got recovered vegetable cutting knife from inside the almirah of his house no. F6/15, Second Floor, Sector16, Rohini, Delhi. After preparing its rough sketch Ex.PW14/E and after measuring it, IO had prepared its sealed pullanda and seized the same vide memo State V/s Pratush Saxena ("Convicted") Page 14 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 Ex.PW14/F. He identified the mobile phone as Ex.P1 and knife Ex.P3 during trial.
During cross examination, he admitted that knife (Ex.P3) was vegetable knife and such type of knife is easily available in the open market and no blood stain was visible on blade of the knife when produced during trial.
22. PW21 SI L.N Saini: He is the IO of the case. He has deposed about the relevant investigation carried out by him till filing of chargesheet. He deposed on identical lines as deposed by PW19 Ct. Sanjeev, whose testimony has already been discussed in preceding para, with regard to investigation carried out by him on 21.06.2015 when statement Ex.PW1/A of victim was recorded and FIR was got registered by him and scene of crime was got inspected and photographed through crime team officials and relevant exhibits were lifted from the scene of crime. He also exhibited rukka as Ex.PW21/A and rough site plan as Ex.PW21/B. He also deposed on similar lines as deposed by PW20 HC Amarjeet and PW14 Rahul Srivastava, whose testimonies have already been discussed hereinbefore, with regard to investigation carried out by him on 02.08.2015. He also deposed that accused was correctly identified in his judicial TIP by victim / complainant Ms. Nishu Bohra on 17.08.2015 vide TIP proceedings Ex.PW1/D. On 17.08.2015, complainant had also produced box (Ex.PW1/C) of mobile handset and he had seized the same vide memo Ex.PW1/B. He had also got collected blood sample of victim State V/s Pratush Saxena ("Convicted") Page 15 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 Nishu Bohra through Ct. Rajesh from BSA Hospital on 17.08.2015 and had seized the same vide memo Ex.PW18/A. He also got the relevant exhibits deposited in FSL, Rohini on 18.09.2015 through Ct. Om Prakash. He had also collected subsequent opinion from Dr. Vijay Dhankar with regard to weapon of offence and had also collected FSL result in this case.
During cross examination, he deposed that there was one office situated on ground floor of the said property, but could not disclose if first floor of the property was used for residential purpose or commercial purpose. He admitted that knife Ex.P3 was vegetable knife and such type of knives are easily available in the open market. He also admitted that no blood stain was visible on the blade of the knife when produced during trial.
ELECTRONIC EVIDENCE :
23. PW17 Sh. Chander Shekhar: He produced call details record of SIM number 9599849264 for the period w.e.f. 15.06.2015 to 25.06.2015. He deposed that said number was issued in the name of Ms. Nishu Bohra. He exhibited copy of Customer Application Form (CAF) as Ex.PW17/A, attested copy of Election Icard as Ex.PW17/B and Call Details Record for the aforesaid period as Ex.PW17/C. He also produced call details record of SIM number 9910134633 for the period w.e.f. 22.06.2015 to 03.08.2015. He deposed that said number was issued in the name of Sh. Bhagat Singh. He exhibited copy of Customer Application Form (CAF) as Ex.PW17/D, attested copy of Election Icard as Ex.PW17/E, Call Details Record for the aforesaid period State V/s Pratush Saxena ("Convicted") Page 16 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 as Ex.PW17/F and Certificate U/s 65B of Indian Evidence Act as Ex.PW17/G. He has not been cross examined by accused despite grant of opportunity.
SCIENTIFIC EVIDENCE :
24. PW22 Ms. Imrana: She deposed that four sealed parcels were marked to her for their examination in FSL, Rohini, Delhi. On opening the said parcels, they were found containing one mattress cover (Ex.1), cotton wool swab having brown stains (Ex.2), one knife of metallic blade with wooden handle (Ex.3) and gauze cloth piece having brown stain (Ex.4). Blood was detected on all the said four exhibits on their biological examination. Source of all the four exhibits were subjected to DNA isolation. Whereas DNA was isolated from Ex.1, 2 & 4, but DNA could not be isolated through Ex.3. She also deposed that DNA profile generated from source of Ex.4 i.e. gauze cloth piece containing blood sample of victim, was found similar with the DNA profile generated from source of Ex.1 & 3 i.e. mattress cover and knife respectively. She proved her detailed report dated 27.05.2015 in that regard as Ex.PW22/A. MEDICAL WITNESSES:
25. PW4 Dr. Vishwa Parkash: He appeared to deposed on behalf of Dr. Rahul Singh the then S.R. (Surgery). He deposed that as per MLC Ex.PW4/A of patient Ms. Nishu Bohra, she was medically examined State V/s Pratush Saxena ("Convicted") Page 17 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 by Dr. Rohit Singh who had advised for her admission in ESW Ward and had also advised her NCCT (Head). He also deposed that Dr. Rahul Singh had opined the nature of injury sustained by victim Ms. Nishu Bohra as simple from surgical side, vide his noting appearing at portion Y to Y1 on said MLC.
During cross examination, he admitted that patient Ms. Nishu Bohra, was not examined in his presence and he had no personal knowledge about the contents of MLC Ex.PW4/A.
26. PW5 Dr. Amit Prakash: He was also deputed to depose on behalf of Dr. Neha, the then ENT. He deposed that patient Ms. Nishu Bohra was examined by Dr. Neha, vide her noting appearing at portion Z to Z1 on MLC Ex.PW4/A and Dr. Neha had observed the following injuries:
i). Multiple incised wounds 6 x .5 cm from lobule extending obliquely.
ii). 8 x 2 cm horizontal incised platysma incised. Deep muscles intact.
iii). 15 x 2 cm horizontal incision over the posterior aspect of neck.
He deposed that Dr. Neha had opined the nature of injuries as grievous vide portion B to B1 on said MLC from ENT side.
During cross examination, he admitted that patient Ms. Nishu Bohra, was not examined in his presence and he had no personal knowledge about the contents of MLC Ex.PW4/A. State V/s Pratush Saxena ("Convicted") Page 18 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016
27. PW6 Dr. Brijesh Patel: He deposed that on 21.06.2015, injured/victim namely Ms. Nishu Bohra was medically examined in BSA hospital by Dr. Prasun Kumar J.R. (Casualty) under his supervision vide MLC Ex.PW4/A. He further deposed that during her local examination, following injuries were noticed on the person of Ms. Nishu Bohra:
i). Incised wound of size 7 x 1 x 0.75 cm over right side of neck.
ii). Incised wound of size 5 x 1 x 0.75 cm over left side of neck.
iii). Incised wound of size 4 x 0.5 x 0.5 cm over right arm.
iv). Incised wound of size 7 x 0.5 x 0.5 cm over occipital region of scalp.
v). Multiple abrasion linear over neck, face and left leg, larger size 6 cm x 0.25 cm.
vi). Ecchymosis (redness) and swelling present over bilateral (both) periorbital region of eye.
He further deposed that after local examination, the said patient was referred to S.R. (Surgery), S.R (ENT), S.R (Opthal) and S.R. (OBS & Gynae) for further management and treatment.
He further deposed that on 17.08.2015, victim Nishu Bohra was again medically examined by Dr. Mohit Chaturvedi the then J.R. (Casualty) vide MLC Ex.PW6/A, during which doctor had taken blood sample of injured and had handed over the same to IO through Duty Constable. During cross examination, he admitted that he had no personal knowledge about the State V/s Pratush Saxena ("Convicted") Page 19 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 contents of MLC Ex.PW6/A.
28. PW7 Dr. Puja Bharti: She deposed that she was on duty as DNB (Gynae) in BSA hospital on 21.06.2015, when she had examined patient Ms. Nishu Bohra from Gynae side and found that no Gynae intervention was required.
29. PW8 Dr. Vijay Dhankar: He had provided subsequent opinion with regard to weapon of offence produced before him on 26.08.2015. He deposed that on receipt of sealed parcel found containing blood stained steel knife having wooden handle, he had examined the said knife and had also prepared its schematic diagram. Upon examination, he opined that injuries mentioned in MLC Ex.PW4/A, could be caused by said knife examined by him on that day. He gave his written opinion dated 26.08.2015 Ex.PW8/A in that regard. He also identified the said knife as Ex.P3 during trial to be the same knife which was examined by him while giving his opinion Ex.PW8/A.
30. PW12 Dr. Nipun Chopra: He was deputed to depose on behalf of Dr. Manisha of BSA hospital. He deposed that patient Ms. Nishu Bohra was examined by Dr. Manisha from the side of radiology, vide her noting bearing at portion X to X1 on MLC Ex.PW4/A. He deposed that Dr. Manisha had opined the nature of injury as simple from the side of radiology.
ARGUMENTS ADVANCED & CASE LAW CITED
31. While opening the arguments, Ld. Additional PP referred to the ocular evidence as well as medical evidence brought on record during the State V/s Pratush Saxena ("Convicted") Page 20 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 course of trial. He also referred to the relevant portions of the testimonies of prosecution witnesses. He heavily relied upon the testimony of star witness of the prosecution i.e. PW1 Ms. Nishu Bohra as also to the testimony of PW2 Umesh Chandra Gupta, in support of his contention that accused had committed lurking house trespass or house breaking by night with intention to commit an offence during the intervening night of 20/21.06.2015 in H. No. F7/29, Sector16, Rohini, Delhi and caused grievous hurt to PW1 while committing robbery of her mobile phone and had also used deadly weapon i.e. knife (Ex.P3). He also heavily relied upon the testimonies of PW11 Bhagat Singh and PW14 Rahul Srivastava, in order to bring home his point that the testimonies of both the said witnesses prove that it was accused who was in possession of robbed mobile phone of the victim. He also relied upon the testimonies of recovery witnesses i.e. PW20 HC Amarjeet, PW14 Rahul Srivastava and PW21 SI L.N. Saini, in order to show that robbed mobile phone was actually recovered from the possession of accused. He, therefore, urged that accused is liable to be convicted in this case.
32. Per contra, Ld. Amicus Curiae vehemently argued that the prosecution has failed to establish the charges levelled against the accused beyond shadow of doubt. He also referred to the relevant portion of cross examination of PW1, wherein she has admitted that she did not hand over any bill / invoice of robbed mobile phone to IO during investigation. He further argued that no documentary evidence has been brought on record in order to show that PW1 was actually residing in any portion of H. No. F State V/s Pratush Saxena ("Convicted") Page 21 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 7/29, Sector16, Rohini, Delhi. He also argued that the prosecution witnesses failed to prove the recovery of mobile phone from the possession of accused and there are contradictions with regard to identity of the property, wherein the occurrence took place as per the case of prosecution.
33. As already noted above, PW1 Ms. Nishu Bohra is the key witness examined by prosecution during trial. She is the victim herself against whom robbery was committed in this case. During the course of trial, she has supported the prosecution story on all material aspects and has deposed about the entire sequence of facts, which led to the incident in question. She not only correctly identified accused herein to be the assailant/offender, who had committed robbery of her mobile phone make Lenovo of black colour containing SIM No. 9599849264 but also the one, who had inflicted knife blow injuries on her neck, cheek, ears, below eyes and other part of her body. Accused could not impeach her testimony through litmus test of cross examination.
34. Although, Ld. Defence counsel vehemently argued that improvements have been made by aforesaid witnesses during trial visavis her statement (Ex.PW1/A) made before the police. However, no such material improvement could be pointed out by him before the Court. Even otherwise, I have duly considered her police statement Ex.PW1/A as well as her testimony recorded during trial and find that there is no material improvement as such appearing in the said two statements. Moreover, it was the duty of defence to bring on record so called material improvement, State V/s Pratush Saxena ("Convicted") Page 22 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 if any, during cross examination of the witnesses by confronting relevant portions of her previous statement visavis her chief examination recorded during trial. Same has also not been done from the side of accused in this case.
35. There is no merit in the next argument advanced on behalf of accused that no documentary proof has been placed on record to show that PW1 was residing in the aforesaid property and thus, reasonable doubt is created in the case of prosecution on that ground. No doubt, no documentary evidence has been brought on record in that regard, but the testimony of PW1 is duly corroborated by PW2 Sh. Umesh Chandra Gupta who is the landlord of said property. It is nowhere the defence raised by accused that the property was not belonging to PW2. Infact, no such suggestion is given to the witness from the side of accused. PW1 and PW2 have clarified in their respective cross examination that no rent agreement was executed between the parties in respect of rented portion situated on first floor of the said property. It is also relevant to note that PW1 had been recently inducted as a tenant in the said portion approximately one month prior to the incident in question, as explained by her during her cross examination. The tenancy can be oral under the law and thus, no benefit can be provided to the accused merely because no rent agreement was executed between the parties. This is more so when accused did not even put suggestion to either of those two witnesses that PW1 was not residing as tenant in the said property.
State V/s Pratush Saxena ("Convicted") Page 23 of 33FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016
36. The other bone of contention raised on behalf of accused that since no bill/invoice of the robbed mobile phone had been handed over to police by PW1, the prosecution has failed to prove that mobile phone (Ex.P1) was belonging to said witness. Firstly, the testimony of PW1 is categorical on the said aspect inasmuch as she deposed that she had been using said mobile phone which was containing SIM connection no. 9599849264. Secondly, the testimony of PW1 is duly corroborated the testimony of Nodal Officer of Bharti Airtel Ltd. i.e. PW17 Sh. Chander Shekhar, who has exhibited CAF in respect of said SIM No. 9599849264 as Ex.PW17/A during trial. He has categorically deposed that according to their record, said SIM connection had been issued in the name of Ms. Nishu Bohra i.e. PW1. Not only this, he also produced attested photocopy of her Voter ICard exhibited as Ex.PW17/B. Thirdly, accused did not dispute the relevant portion of testimony of PW1 that she was using SIM No. 9599849264 in the mobile phone (Ex.P1) as no such suggestion has been put to the witness during her cross examination. Even otherwise, CDRs (Ex.PW17/C) of SIM connection no. 9599849264 would show that IMEI number of mobile handset (Ex.P1) as mentioned therein and in which wherein said SIM connection was being used during the relevant period, matches with the IMEI number of mobile phone (Ex.P1) recovered from the possession of accused. The testimony of PW17 has gone unchallenged and unrebutted from the side of accused. Thus, same amounts to admission thereof on his part. Fourthly, PW1 had handed over mobile box (Ex.PW1/C) State V/s Pratush Saxena ("Convicted") Page 24 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 to IO during investigation and same was seized vide memo Ex.PW1/B. The said fact as appearing in the testimony of PW1 stands corroborated by the testimony of PW21 SI L.N. Saini (IO of the case) and were are not disputed by accused during their respective cross examination. The perusal of mobile box Ex.PW1/C would again show that the IMEI number mentioned on the said box, matches with the IMEI number of mobile phone (Ex.P1) as also with the IMEI number mentioned in the CDRs Ex.PW17/C.
37. Ld. Defence Counsel also tried to displace the case of prosecution by arguing that there are contradictions with regard to description of the property, wherein the offences allegedly took place. He argued that PW2 Umesh Chandra Gupta, PW13 SI (Retd.) Randhir Singh (Incharge Mobile Crime Team) and PW19 Ct. Sanjeev (who had accompanied IO for attending DD No. 10A on 21.06.2015) have given different description of the said property. He pointed out that PW2 has deposed that said property was two storied building and there were shops on ground floor of the said property, but PW13 testified that there was staircase leading upto 3rd floor and he could not tell if ground floor of the property was used for residential purpose or for commercial purpose and PW19 also could not give any satisfactory answer in that regard.
38. On the other hand, Ld. Additional PP argued that same does not amount to material contradiction at all and thus, no benefit should be given to the accused.
39. After going through the relevant portions of the statements State V/s Pratush Saxena ("Convicted") Page 25 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 made by aforesaid three witnesses, I find considerable force in the submission made on behalf of State. It is pertinent to not that PW2 is the landlord of the said property and he is the best person to disclose the entire description of the said property and the purpose for which its relevant portions were being used during the relevant period. PW13 is the Incharge of Mobile Crime Team, who had visited the scene of crime and after carrying out inspection thereof, he had prepared his report Ex.PW13/A. The scene of crime as already discussed above, was situated on first floor of the said property. Thus, one cannot expect from him to pay sufficient attention to other parts of the said property or to remember each and every minute details thereof for all time to come. It cannot be overlooked that the incident took place in June 2015 and the testimony of PW13 as also that of PW19 were recorded in the month of August 2016 i.e. after a considerable gap of more than one year. Hence, no benefit can be given to the accused on this ground.
40. The testimony of PW1 stands further corroborated by the testimonies of PW11 Bhagat Singh and PW14 Rahul Srivastava. Both the said witnesses have categorically testified that accused was previously known to PW14, who happened to be distant relative of PW11 and on the request of accused, PW14 got the deal regarding sale of robbed mobile phone finalized with PW11 for a total sum of Rs. 3500/. Out of said amount, PW11 also paid a sum of Rs. 2000/ to accused through PW14, but when accused failed to provide invoice/bill of the said mobile phone, PW11 State V/s Pratush Saxena ("Convicted") Page 26 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 returned back the said mobile phone to accused through PW14. During the said intervening period, PW11 had also used robbed mobile handset by inserting SIM connection nos. 9910134633 and 8287943325. The accused failed to discredit the testimonies of both the said witnesses during their cross examination. Infact, accused did not even dare to put suggestion to PW14 that he never worked with him prior to the incident in question or that they were not known to each other. Even the relevant portion of the testimony of PW14, whereby he testified that accused requested him to get the mobile phone sold and deal was struck with PW11 for a sum of Rs. 3500/, has not been challenged by accused during his cross examination. PW11 and PW14 have been categorical in their deposition that said mobile phone was of make Lenovo of black colour. The said fact is also not disputed by accused during cross examination. The testimony of PW11 is also corroborated by the testimony of Nodal Officer of Bharti Airtel i.e. PW17 Chander Shekhar, who has produced CAF of SIM connection no. 9910134633 during trial and testified that as per their record, same was issued in the name of Bhagat Singh i.e. PW11. PW17 also exhibited Voter ICard of PW11 as Ex.PW17/E and CDRs of said SIM connection number for the period between 22.06.2015 to 03.08.2015 as Ex.PW17/F. The perusal of those CDRs would further show that SIM connection no. 9910134633 had been used in the mobile handset (Ex.P1) during the relevant period. Again the testimony of PW17 on said aspect has gone unchallenged and unrebutted from the side of accused and amounts to State V/s Pratush Saxena ("Convicted") Page 27 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 admission thereof on his part.
41. There is no substance in the argument raised on behalf of accused that PW11 was duty bound to personally enquire from the accused as to how and when he came into possession of said mobile phone. Ld. Amicus Curiae contended that the mobile phone was, infact, recovered from the possession of PW14 Rahul Srivastava, but the police officials manipulated the facts by planting recovery of mobile phone from the possession of accused after letting off PW14 in this case. I am afraid if said contention of Ld. Defence counsel can be accepted in the eyes of law. Firstly, no such defence has been raised on behalf of accused throughout the trial and no such suggestion has been put either to PW14 or to recovery witnesses i.e. PW20 and PW21. Secondly, the accused has not raised this defence even in his statement U/s 313 Cr.P.C. Rather, he has stated in his statement that he was falsely implicated in this case in order to solve blind case by the police. Thirdly, the accused has even otherwise failed to substantiate the said defence in any manner. He opted not to lead any evidence in his defence.
42. Even otherwise, it would be anybody's guess as to why police officials would have falsely implicated the accused. If the accused wants this Court to believe that he has been implicated falsely, the least which was expected from him was to at least come out as to what could have been the motive for the police for his false implication and as to what was that reason for which police officials could have done so. But no such reason is even State V/s Pratush Saxena ("Convicted") Page 28 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 mentioned or suggested to the police witnesses. The accused cannot expect this Court to believe his version by simple bare allegation that he has been falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating him. In the absence of this, I do not find any reason to throw out the testimonies of police witnesses.
43. The ocular evidence in the form of testimonies of PW1 Nishu Bohra which is corroborated by the testimony of PW2 Umesh Chandra Gupta that PW1 had sustained multiple injuries on her various parts including neck, cheek, ear, etc, is also corroborated by medical evidence in the form of testimonies of PW4 to PW7 and PW12. All the said witnesses have proved the relevant notings of concerned doctors, who had medically examined PW1 vide MLC Ex.PW4/A. Not only this, the nature of injury sustained by PW1, is opined to be grievous from ENT side, as deposed by PW5 Dr. Amit Prakash of BSA Hospital. There is no serious challenge to the testimonies of aforesaid PWs / doctors as well as to the contents of MLC Ex.PW4/A from the side of defence. In other words, the evidence as discussed above, would clearly show that PW1 had sustained multiple injuries over her person at the hands of accused during the occurrence.
44. The testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant to go unpunished merely State V/s Pratush Saxena ("Convicted") Page 29 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
45. In the judgment delivered by Hon'ble Apex Court in the matter titled as "Mano Dutt & Anr. Vs. State of U.P." reported at 2012 III AD (SC) 253, it has been held as under: "xxxxx In our view, nonexamination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain, protect the real culprit. We need not discuss more elaborately the weight age that should be attached by the Court to the testimony of an injured witness. In fact, this aspect of criminal jurisprudence is no more res integra, as has been consistently stated by this Court in uniform language. Xxxxxx"
46. In another judgment delivered in the matter titled as "Abdul Sayeed Vs. State of Madhya Pradesh" reported at 2010 IX AD (S.C) 615, Hon'ble Apex Court has held as under: "xxxxxx
28. The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by the Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally State V/s Pratush Saxena ("Convicted") Page 30 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 considered to be very reliable, as he is a witness that comes with a builtin guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness."
xxxxxxx"
47. Apart from above, there has been recovery of weapon of offence i.e. knife (Ex.P3) at the instance of accused from his house no. F 6/15, Second Floor, Rohini, Delhi on 02.08.2015, in pursuance of his disclosure statement Ex.PW14/C. The said knife has been correctly identified by victim i.e. PW1 Nishu Bohra during trial to be the same knife, which was used by accused during commission of offences committed against her. Although, ld. defence counsel made feeble attempt to cast doubt on the recovery of said knife, by arguing that said knife has been planted upon the accused in order to create false evidence against him and recovery should not be believed as no independent public witness has been joined at the time of alleged recovery. However, the said arguments are found to be without substance inasmuch as the said knife is shown to have been recovered from the house of accused soon after his arrest and making disclosure statement Ex.PW14/C on 02.08.2015 in the presence of PW14 Rahul Srivastava, PW20 HC Amarjeet and PW21 SI L.N. Saini. Out of them, PW14 is an independent public witness who was rather previously known to accused as both of them were working in the same factory at one point of time. The accused could not impeach the testimonies of all the said three witnesses so far as recovery of knife at his instance from his house is State V/s Pratush Saxena ("Convicted") Page 31 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 concerned.
48. At this juncture, it may also be noted here that blood sample of victim i.e. PW1 Nishu Bohra was collected by Dr. Mohit Chaturvedi of BSA Hospital on 17.08.2015, vide MLC Ex.PW6/A and said blood sample alongwith relevant exhibits including knife (Ex.P3) were got deposited in FSL, Rohini for their examination. PW22 who is FSL Expert, has categorically deposed during trial that blood was detected on relevant exhibits including said knife and DNA profile generated from the source of gauze cloth piece containing blood of victim, was similar with the DNA profile generated from the source of exhibits i.e. mattress cover and said knife. Her report dated 27.05.2016 (Ex.PW22/A) is quite elaborate on the said issue.
49. Moreover, the aforesaid weapon of offence i.e. knife Ex.P3 was also produced before PW8 Dr. Vijay Dhankar for his opinion. After examining the said knife, PW8 gave his report/ opinion dated 26.08.2015 (Ex.PW8/A) to the effect that the injuries sustained by victim Nishu Bohra as mentioned in her MLC Ex.PW4/A, could be caused by the said knife. He also identified the said knife during trial. Accused could not discredit the testimony of said witness during cross examination.
50. The nature of injuries sustained by victim is opined to be grievous in nature on her MLC Ex.PW4/A from the side of ENT.
51. In the light of aforesaid discussion, Court is of the view that the prosecution has been successful in bringing home the guilt of accused State V/s Pratush Saxena ("Convicted") Page 32 of 33 FIR No. 645/15; U/s 394/397/307/411/459 IPC; P.S. K.N.K. Marg DOD: 25.11.2016 Pratush Saxena S/o Sh. Ravi Kumar in respect of offence punishable U/s 459 IPC as also in respect of offence punishable U/s 397 IPC read with Section 394 IPC read with Section 392 IPC. Consequently, he stands convicted for the said offences.
Announced in open Court today
On 25.11.2016 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Pratush Saxena ("Convicted") Page 33 of 33