Delhi District Court
State vs Sanjeev @ Kale on 24 May, 2014
IN THE COURT OF SHRI MANOJ KUMAR: ADDITIONAL
SESSIONS JUDGE4 (SOUTH DISTRICT), NEW DELHI
Sessions Case No. 03/14 (Original no. 43/10)
Unique ID No.: 02403R0195702010
FIR No. 58/10
Police Station : Vasant Kunj (South)
In the matter of:
State
VERSUS
1. Sanjeev @ Kale,
S/o Sh. Babu Ram,
R/o RZQ, 74, New Roshanpura,
Near Pooja Pipe Factory,
Najafgarh, New Delhi.
2. Saleem @ Pammi,
S/o Sh. Rakesh Kumar Khan,
R/o Z30A, New Shyam Vihar,
Najafgarh, New Delhi. ........... Accused persons.
Sessions Case No. 03/14 Page no. 1 of 24
Date of Institution : 07.6.2010
Date of Reserving judgment: 22.5.2014
Date of pronouncement : 24.5.2014
JUDGMENT :
Sanjeev @ Kale, aged 22 years, and Saleem @ Pammi, aged 23 years, have been committed for trial by Mr. Saurbh Pratap Singh Laler, Metropolitan Magistrate03, South District, New Delhi:
and therefore, they stand charged with the commission of offence punishable under section 394 read with section 34 of the Indian Penal Code, namely, that they, on 2728.02.2010 at 12:00 midnight at Service Road, NH8, at vacant land near Air Force wall before sub way, New Delhi in Alto car no. HR26G1731, alongwith Rohit and Ashish (both juvenile), in furtherance of their common intention, robbed Brij Bhushan Mishra (PW2) of his 'Nokia' mobile phone, Rs.480/ cash and his driving license and caused injuries to the said Brij Bhushan Mishra; and at that time juvenile Rohit caused injury by hitting the said Brij Bhushan Mishra with the butt of katta.
2. The circumstances leading up to the committal of the case and consequent charge against the accused persons are that on Sessions Case No. 03/14 Page no. 2 of 24 28.02.2010 at about 12:10 am, copy of daily dairy (DD) entry no. 2A (Ex. PW1/A) was marked to Assistant Sub Inspector (ASI) Ram Prakash (PW9). It was recorded in DD entry no. 2A that the informant was standing near Rajokari Toll tax booth and he had been beaten up and robbed by four persons in Alto Car No. HR26G1731; that having received the copy of DD entry no. 2A, ASI Ram Prakash alongwith Constable Yash Pal (PW4) reached open space near Service Road, NH8 Toll Tax, ahead of subway, Air Force compound wall, where police control room (PCR) van and informant Brij Bhushan Mishra (PW2), in injured condition, met him and he was removed to Safdarjung Hospital; that subsequently, Medico Legal Case (MLC) report (Ex. PW5/A) of the informant was obtained by the said ASI Ram Prakash. On 02.3.2010, having come to the police station, informant Brij Bhushan Mishra got recorded his statement Ex. PW2/A and told the officer incharge that he was resident of village Madanpur, Post Office Ghughu, police station Gosain Ganj, District Sultanpur, Uttar Pradesh and had been employed as a driver in Max Insurance Company. Brij Bhushan Mishra further informed the police that on 27.02.2010, after performing his duty at the office of his company at Connaught Place, he alongwith his master had gone to Sessions Case No. 03/14 Page no. 3 of 24 D2/2062, Vasant Kunj, whence his master had gone with the vehicle and he through bus of route number 717 reached Mahipalpur Chowk and having alighted there kept waiting for a vehicle near Bikaner Sweets to go to his home; that at about 11:45 pm one Maruti Alto car of blue sky colour stopped near him and the driver of the car offered him to take him to his home against hire charges of Rs.10/. Brij Bhushan Mishra further informed the police that he had sat on the rear seat of the car, where two persons were already sitting and the said two persons had asked him to sit between them. Brij Bhushan Mishra further informed the police that as soon as the car left the place, the person sitting on his left side in the rear seat grabbed his neck and the other person had started hitting him and snatched away Rs.980/ and mobile phone of 'Nokia' make. Brij Bhushan Mishra further informed the police that the person sitting in the front seat, beside the driver, had hit him on his head with butt of a katta that he was holding and injured and threatened him. Brij Bhushan Mishra further informed the police that due to the injuries inflicted upon his body by the occupiers of the car, he had started bleeding from his head and eye, and subsequently they had thrown him out of the car in the open space before the subway ahead of service road under Rajokari flyover. On Sessions Case No. 03/14 Page no. 4 of 24 the basis of the statement of Brij Bhushan Mishra, first information report (FIR) no. 58, under sections 394 and 397 read with section 34 of the Indian Penal Code was registered at police station Vasant Kunj (South) and the matter was investigated. During the investigation both the accused persons and their associates, who were discovered to be juvenile, were arrested by the police and they were called upon to participate in their test identification parade (TIP) proceedings which were organized before Ms. Veena Rani, Metropolitan Magistrate, New Delhi (PW13), but both the accused persons had refused to participate in the TIP proceedings. After investigation, it was concluded that both the accused persons alongwith their associates had committed offences punishable under sections 394 and 397 of the Indian Penal Code against Brij Bhushan Mishra and therefore, on 05.5.2010, a police report was put up before the learned Metropolitan Magistrate with request to prosecute and punish both the accused persons for their having committed the offences punishable under sections 394 and 397 of the Indian Penal Code.
3. In the light of the police report and the documents filed alongwith the same, the learned Metropolitan Magistrate, having taken cognizance of the offences, procured the presence of the accused Sessions Case No. 03/14 Page no. 5 of 24 persons and thereafter, complied with the provisions of section 207 of the Code of Criminal Procedure, 1973 (Cr.P.C.). On 03.6.2010 the case was committed to the Court of Session.
4. On 28.09.2011, after hearing the Additional Public Prosecutor and counsel for the accused persons the charge was framed against both the accused persons for their having committed offence punishable under section 394 read with section 34 of the Indian Penal Code only. By order dated 28.09.2011, whereby both the accused persons were ordered to be charged, notwithstanding the fact that the offence punishable under section 394 of the Indian Penal Code is not exclusively triable by a Court of Session, the learned Predecessor was of the opinion that the matter was not required to be sent for trial before the Metropolitan Magistrate. The charge was read over and explained to each of the accused to which they did not plead guilty and claimed trial.
5. In support of its case the prosecution got examined PW1 Head Constable (HC) Arvind Kumar, PW2 Brij Bhushan, PW3 ASI Kailash, PW4 HC Yash Pal, PW5 Dr. Kamran Faisal, Medical Officer, Safdarjung Hospital, New Delhi, PW6 HC Naresh Kumar, PW7 HC Shamsher Singh, PW8 Constable Amit, PW9 SubInspector (SI) Ram Sessions Case No. 03/14 Page no. 6 of 24 Prakash (Retired), PW10 N. K. Popli, Assistant, Record Room, Dwarka Courts, New Delhi, PW11 SI Ram Niwas, PW12 SI Sukram Pal and PW13 Veena Rani, JSCC, South East District, Sake Courts, New Delhi. During the examination of the prosecution witnesses documents Ex. PW1/A, Ex. PW2/A, Ex. PW3/A, Ex. PW3/B, Ex. PW4/A, Ex. PW4/B, Ex. PW4/C, Ex. PW4/D, Ex. PW4/E, Ex. PW4/F, Ex. PW4/G, Ex. PW5/A, Ex. PW9/A, Ex. PW9/B, Ex. PW10/A, Ex. PW10/B, Ex. PW13/A, Ex. PW13/B, Ex. PW13/C, Ex. PW13/D, Ex. PW13/E, Mark A, Mark B, Mark C, Mark D, Mark E and Mark F were also tendered in evidence.
6. On 17.07.2013 prosecution evidence was closed and the case was posted for examination of the accused persons.
7. During his examination under section 313 of Cr.P.C. accused Sanjeev @ Kale denied the correctness and truth of the circumstances appearing against him in evidence. During his examination under section 313 of Cr.P.C. accused Sanjeev @ Kale stated that he was falsely implicated in this case and had committed no offence. During his examination under section 313 of Cr.P.C. accused Sanjeev @ Kale further stated that he had refused to participate in the TIP proceedings as his photographs were taken by the police. Accused Sessions Case No. 03/14 Page no. 7 of 24 Sanjeev @ Kale did not express his desire to lead evidence in his defence.
8. During his examination under section 313 of Cr.P.C. accused Saleem @ Pammi denied the correctness and truth of the circumstances appearing against him in evidence. During his examination under section 313 of Cr.P.C. accused Saleem @ Pammi stated that he was falsely implicated in this case and had committed no offence. During his examination under section 313 of Cr.P.C. accused Saleem @ Pammi further stated that he had refused to participate in the TIP proceedings as his photographs were taken by the police. Accused Saleem @ Pammi did not express his desire to lead evidence in his defence.
9. No evidence has been led by either of the accused persons in their defence.
10. I have heard Mr. A.T. Ansari, Additional Public Prosecutor for the state and both the accused persons, who have argued their case in person, and have gone through the material on record carefully.
11. Having drawn my attention on the provisions of section 394 of the Indian Penal Code; testimonies of PW1 HC Arvind Kumar, Sessions Case No. 03/14 Page no. 8 of 24 PW2 Brij Bhushan, PW3 ASI Kailash, PW4 HC Yash Pal, PW5 Dr. Kamran Faisal, PW6 HC Naresh Kumar, PW7 HC Shamsher Singh, PW8 Constable Amit, PW9 SI Ram Prakash (Retired), PW10 N. K. Popli, PW11 SI Ram Niwas, PW12 SI Sukram Pal and PW13 Veena Rani; and documents Ex. PW1/A, Ex. PW2/A, Ex. PW3/A, Ex. PW3/B, Ex. PW4/A, Ex. PW4/B, Ex. PW4/C, Ex. PW4/D, Ex. PW4/E, Ex. PW4/F, Ex. PW4/G, Ex. PW5/A, Ex. PW9/A, Ex. PW9/B, Ex. PW10/A, Ex. PW10/B, Ex. PW13/A, Ex. PW13/B, Ex. PW13/C, Ex. PW13/D, Ex. PW13/E, Mark A, Mark B, Mark C, Mark D, Mark E and Mark F it is submitted by the learned Public Prosecutor that from the testimony of PW2 Brij Bhushan Mishra, duly corroborated by MLC report Ex. PW5/A and copy of DD entry no. 2A, Ex. PW1/A it has been proved beyond doubt that in the night of 27.2.2010, both the accused persons alongwith their associates had committed offence of robbery against PW2 Brij Bhushan Mishra and while committing such robbery the accused persons and their associates had used deadly weapon against him and having put him in fear, voluntarily caused hurt to him. It is further submitted by the learned Additional Public Prosecutor that during the investigation both the accused persons had refused to participate in the TIP proceedings that were organized Sessions Case No. 03/14 Page no. 9 of 24 before the learned Metropolitan Magistrate and therefore, adverse inference be drawn against both the accused persons. It is also submitted by the learned Additional Public Prosecutor that during the trial, PW2 Brij Bhushan Mishra had identified both the accused persons as the persons who had committed offences against his body and property and since the prosecution case has been proved beyond doubt therefore, both the accused persons be convicted for having committed the offence charged against them and they be severely punished.
12. It is submitted by accused Sanjeev @ Kale that he has been falsely implicated in this case and has committed no offence. It is further submitted by accused Sanjeev @ Kale that since the police could not solve its case, therefore, to solve a blind case he has been roped in the case. It is also submitted by accused Sanjeev @ Kale that he had refused to participate in the TIP proceedings because his photographs were already available with the police and he had reasons to believe that the TIP proceedings would not be fair to him.
13. It is submitted by accused Saleem @ Pammi that he has committed no offence and to solve its blind case the police has falsely implicated him in this case. It is further submitted by accused Saleem Sessions Case No. 03/14 Page no. 10 of 24 @ Pammi that he had refused to participate in the TIP proceedings as he had reasons to believe that the TIP proceedings would not be fair to him. It is also submitted by accused Saleem @ Pammi that he is innocent and is entitled to be acquitted.
14. I have given my thoughtful consideration to the submissions made on behalf of the parties.
15. Section 394 of the Indian Penal Code, which makes it punishable if any person voluntarily causes hurt in committing robbery, reads as under:
394. Voluntarily causing hurt in committing robbery.-- If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a terms which may extend to ten years, and shall also be liable to fine.
16. Section 390 of the Indian Penal Code, which defines the offence of robbery, reads as under:
390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other Sessions Case No. 03/14 Page no. 11 of 24 person, and , by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
17. In the light of the charge against the accused persons and the arguments advanced before the court the point for determination is: whether both the accused persons alongwith their associates committed theft in respect of the property of PW2 Brij Bhushan Mishra and in order to commit such theft voluntarily caused hurt or wrongful restraint to him?
18. To prove the charge against the accused persons, as I have already observed, the prosecution has examined as many as thirteen witnesses. Out of the said thirteen witnesses PW1 HC Arvind Kumar, as per his testimony, on 28.02.2010 in the night, at about 12:10 am, being posted at police station Vasant Kunj (South), received the PCR call and recorded the substance of the same; and subsequently during the trial proved its copy Ex. PW1/A. PW3 ASI Kailash, as per her testimony, on 02.03.2010, being posted as duty officer at police station Vasant Kunj (South), recorded FIR No. 58/10, giving rise to the present case, and subsequently during her examination before the court proved the copy of FIR, Ex. PW3/A and her endorsement, Ex.
Sessions Case No. 03/14 Page no. 12 of 24 PW3/B on the rukka that was handed over to Constable Yash Pal to give the same to ASI Ram Prakash. PW4 HC Yash Pal, as per his testimony, on 02.03.2010, at about 11:05 am, being posted at police station Vasant Kunj (South) received copy of FIR from the duty officer and handed over the same to ASI Ram Prakash, the IO of the case. PW4 HC Yash Pal during his examination also sought to prove that on 04.03.2010 he was involved in the investigation of the case and in his presence disclosure statements of the accused persons were recorded and subsequently they were arrested.
19. PW6 HC Naresh Kumar during his examination sought to prove that on 03.03.2010 after receiving a secret information, he had joined Constable Shamsher, Constable Gajanand, Constable Amit and SI Sukram Pal and subsequently arrested the accused persons near Sector21 and 22, Krishna Chowk, Gurgaon, Delhi Road, who were sitting in a car bearing registration no. HR26AY7742. Similarly, PW7 HC Shamsher Singh during his examination deposed that on 03.03.2010 he was member of a police team comprising of him, Constable Gajanand, Constable Amit and Constable Pradeep; and they, at about 9:45 pm, arrested the accused persons and during their interrogation the accused persons had disclosed about their Sessions Case No. 03/14 Page no. 13 of 24 involvement in the present case. PW8 Constable Amit, who was also member of the police team that arrested the accused persons, during his examination deposed on the similar lines on which PW6 HC Naresh Kumar and PW7 HC Shamsher Singh had deposed. PW12 SI Sukram Pal, who was also member of the police team which arrested the accused persons on 03.03.2010 at about 9:45 pm and seized Santro Car bearing registration no. HR26AY7742, during his examination deposed that on a secret information, a police team was constituted which was joined by him subsequently; and that at the instance of the informer he and other members of the police party arrested the accused persons and their two other associates, namely, Pankaj and Rohit.
20. PW11 SI Ram Niwas during his examination deposed about the circumstances in which FIR No. 98/10 under sections 186, 353 and 307 read with section 34 of the Indian Penal Code was registered at police station Najafgarh and one Maruti Zen car bearing original registration no. HR26U7795 was seized by him. PW11 SI Ram Niwas during his examination also deposed that on 04.03.2010 after the arrest of the accused persons by the police at police station Vasant Kunj (South) he came to know that the accused were involved Sessions Case No. 03/14 Page no. 14 of 24 in case bearing FIR No. 98/10 registered at police station Najafgarh.
21. PW5 Dr. Kamran Faisal, during his examination in chief proved MLC report Ex. PW5/A pertaining to PW2 Brij Bhushan Mishra and deposed that as per the MLC report Ex. PW5/A, on 28.02.2010, injured Brij Bhushan Mishra was brought by the PCR van in the casualty with the alleged history of assault at around 12:00 am and on local examination there was blackening and swelling on the eyelids and wound on right eyebrow about 4 x 1cm and there were multiple abrasion marks present on his neck and there was also a wound on occipital region about 3 x 1 cm. PW5 Dr. Kamran Faisal further deposed that the patient was referred to WardB, for suturing and also referred to Ward17 for Ophalmology. PW5 Dr. Kamran Faisal also deposed that the nature of the injuries on the body of injured Brij Bhushan Mishra were simple in nature and were caused by blunt object.
22. PW13 Ms. Veena Rani, who during the period 20.03.2010 and 25.03.2010 was posted as a Metropolitan Magistrate, during her examination proved TIP proceedings Ex. PW13/A, Ex. PW13/B, Ex. PW13/C, Ex. PW13/D and Ex. PW13/E and deposed that both the accused person refused to participate in the TIP proceedings.
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23. PW10 N. K. Popli, during his examination produced the case file of case bearing FIR No. 98/10 registered at police station Najafgarh and sought to prove documents Ex. PW10/A and Ex. PW10/B regarding seizure of Maruti Zen car bearing registration no. HR26U7795 and number plate Ex. PW2/C.
24. PW9 SI Ram Prakash (Retired) during his examination deposed that on 28.02.2010 being posted at police station Vasant Kunj (South) he had received copy of DD entry no. 2A regarding robbery and thereafter alongwith Constable Yash Pal reached near Air Force Station, NH8, Rajokari, where PCR van officials and injured Brij Bhushan met him. PW9 SI Ram Prakash further deposed that the injured was sent to Safdarjung Hospital in the PCR van. PW9 SI Ram Prakash further deposed that he had made search for public witnesses and thereafter alongwith Constable Yash Pal reached at Safdarjung Hospital, where, at the main gate of the said Hospital, he had met injured Brij Bhushan but he did not give his statement as he was suffering from pain and went to his house. PW9 SI Ram Prakash further deposed that on 02.03.2010, injured Brij Bhushan came to the police station and his statement Ex. PW2/A was recorded, whereupon he put his endorsement Ex. PW9/A. PW9 SI Ram Prakash further Sessions Case No. 03/14 Page no. 16 of 24 deposed that subsequently he alongwith Constable Yash Pal and injured went to the place of incident and prepared site plan Ex. PW9/E and returned to the police station. PW9 SI Ram Prakash further deposed that on 04.03.2010, in case bearing FIR No. 59/10 registered at police station Vasant Kunj (South) SI Sukram Pal arrested the accused persons and during the investigation of the said case it was revealed that the accused were also involved in the incident in respect of which FIR No. 58/10 was registered. PW9 SI Ram Prakash further deposed that he had arrested the accused persons and subsequently they were asked to participate in the TIP proceedings but the accused refused to participate in the TIP proceedings. PW9 SI Ram Prakash further deposed that on 29.03.2010, while the accused persons were produced for extension of their judicial custody remand, the injured identified them.
25. There is only one eye witness to the incident and he is the victim, namely, PW2 Brij Bhushan Mishra himself. During his examination PW2 Brij Bhushan Mishra deposed that on 27.02.2010, he had dropped his master at the gate of D2/2062, Vasant Kunj and handed over the car to him. PW2 Brij Bhushan further deposed that he was waiting for bus under Mahipal Pur flyover and at about 11:45 pm Sessions Case No. 03/14 Page no. 17 of 24 one Alto car came from Dhaula Kuan side and stopped near him. PW2 Brij Bhushan further deposed that the driver of the car asked him as to where he wanted to go and when he had told the driver that he wanted to go to Kapshera, he offered to drop him for Rs.10/. PW2 Brij Bhushan further deposed that there were already four persons in the car out of which two were on the back seat and two in the front seat; and he sat in corner of the back seat but was made to sit between two persons sitting in the back seat and then the car had started. PW2 Brij Bhushan further deposed that the person, who was sitting near the driver seat, put his katta on his forehead and thereafter, he had started hitting him with the katta on back of his head and on his nose bridge and consequently, he had started bleeding from his head. PW2 Brij Bhushan further deposed that the persons, sitting in the back seat, snatched his mobile phone of Nokia make; and they also took out Rs. 500/ from the pocket of his pant, Rs.480/ from the pocket of his shirt and they also took away his driving license and other papers from the back side pocket of his pant. PW2 Brij Bhushan further deposed that the occupiers of the car had thrown him out of the car at a service lane near Rajokari flyover by stopping the car and thereafter, he ran after the car and noted its number which was HR26G1731. PW2 Brij Sessions Case No. 03/14 Page no. 18 of 24 Bhushan further deposed that he had also chased the car and reached toll tax staff and told them about the incident, where a security guard had informed the police. PW2 Brij Bhushan further deposed that the PCR van came there and took him to the Safdarjung Hospital, where he had received stitches on the back side of his head and as he was suffering from pain so he went to police station on 02.03.2010 where the police recorded his statement Ex. PW2/A. During his examination in chief, PW2 Brij Bhushan identified accused Saleem @ Pammi as the person who was driving the Alto car and accused Sanjeev @ Kale as the person who was sitting next to accused Saleem @ Pammi in the car and hit him with the katta. PW2 Brij Bhushan further deposed that due to injury suffered by him at the hands of the accused he was having hearing problem in his right ear and he had also to undergo a surgery. PW2 Brij Bhushan further deposed that his stitches were removed after seven days. During his crossexamination, PW2 Brij Bhushan deposed that the car was of sky blue colour; and denied the suggestion that no car came and stopped near him in the night of 27.02.2010. During his crossexamination, PW2 Brij Bhushan also deposed that after traveling for about half a kilometer after sitting in the car, he was pulled in the middle of the rear seat; and that he had Sessions Case No. 03/14 Page no. 19 of 24 seen the faces of the persons sitting inside the car. PW2 Brij Bhushan, during his crossexamination, denied that he could not identify the faces of the persons who had committed offences against him. During his crossexamination, PW2 Brij Bhushan also deposed that he was asked by both the persons, who were already sitting in the rear seat, to sit in between them and as soon as he had sit in between them, his neck was trapped with arm by the person sitting on his left hand and the person sitting on the front seat with the driver, put a katta on his forehead and gave the butt blow. During his crossexamination, PW2 Brij Bhushan further deposed that the person sitting on his right hand side gave fist blow to him on his right side forehead and also took out his money.
26. From the analysis of the testimonies of PW1 HC Arvind Kumar, PW2 Brij Bhushan, PW5 Dr. Kamran Faisal, PW9 SI Ram Prakash and PW13 Ms. Veena Rani and documents Ex. PW1/A, Ex. PW2/A, Ex. PW5/A and Ex. PW13/A to Ex. PW13/E it has been proved that on 28.02.2010 at about 12:00pm, PW2 Brij Bhushan, while traveling in a car bearing registration no. HR26G1731, was robbed by four persons, out of which two persons who were sitting in the seat of the driver and the other seat beside the seat of the driver, were both the Sessions Case No. 03/14 Page no. 20 of 24 accused persons herein. It has also been proved that accused Saleem @ Pammi had induced PW2 Brij Bhushan to sit in the car on pretext of giving lift to him in consideration of Rs.10/ and as soon as PW2 Brij Bhushan sat in the car, accused Sanjeev @ Kale put him in fear by showing him something like a katta and also hit him on his face and head with the butt of such katta. From the testimony of PW2 Brij Bhushan it has also been established that the other associates of the accused persons had also caused injuries to PW2 Brij Bhushan and committed theft of his mobile phone, Rs.980/ in cash, identity card and other papers, while accused Sanjeev @ Kale put him in fear and was hitting him on his head and other parts of body. From the testimony of PW2 Brij Bhushan it has also been proved that at the time of the commission of theft, both the persons, who were sitting besides him in the rear seat of the car (not sent for trial), had wrongfully restrained him and pulled his head down so that he could be hit on the back of his head with the butt of the katta.
27. The testimony of PW2 Brij Bhushan has stood the test of his crossexamination and could not be shaken during his cross examination. The testimony of PW2 Brij Bhushan is corroborated by copy of DD entry no. 2A, Ex. PW2/A, which was recorded Sessions Case No. 03/14 Page no. 21 of 24 immediately after the incident and giving brief description as to what had happened to PW2 Brij Bhushan. The testimony of PW2 Brij Bhushan is further corroborated by the testimony of PW5 Dr. Kamran Faisal and the contents of MLC report, Ex. PW5/A, from which it has been proved that in the night of 27.02.2010, by using blunt object injuries were inflicted on the body of PW2 Brij Bhushan.
28. From the testimony of PW13 Veena Rani, the learned Metropolitan Magistrate and documents Ex. PW13/A to Ex. PW13/E, it has also been established that after the arrest of the accused persons, they were called upon to participate in TIP proceedings, but each of the accused refused to participate in the TIP proceedings. The explanations given by the accused persons for their nonparticipation in the TIP proceedings are not plausible. During the trial, PW2 Brij Bhushan had distinctly identified both the accused persons and narrated as to what part was played by each of the accused while committing offences against him and his property in the night of 27.02.2010. PW2 Brij Bhushan had no reason or interest in falsely implicating the accused persons and his testimony, as I have already mentioned, is reliable and trustworthy and duly corroborated by other evidence.
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29. From the evidence led by the prosecution it has been proved that in the night of 27.02.2010, both the accused persons and their two juvenile associates, in furtherance of their common intention, having deceived PW2 Brij Bhushan induced him to sit inside their car and thereafter put him under the fear of injury and by causing hurt and wrongful restraint, committed theft of his mobile phone, money, driving license and other papers; and while committing such offence accused Sanjeev @ Kale besides putting PW2 Brij Bhushan in fear also voluntarily caused hurt to him. From the testimony of PW2 Brij Bhushan it has also been proved that two other associates of the accused persons, who have not been sent for trial being juveniles, had wrongfully restrained PW2 Brij Bhushan; beaten him up and caused injuries to his body. In these circumstances, the charge against the accused persons is found to have been proved.
30. In view of above discussion accused Sanjeev @ Kale and Saleem @ Pammi are found guilty and they are convicted of having committed offence punishable under section 394 of the Indian Penal Code against PW2 Brij Bhushan Mishra and his property.
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31. Let the convicts be heard on the question of sentence on 28.05.2014.
Pronounced in the open court (Manoj Kumar)
th
on 24 of May, 2014 Additional Sessions Judge4
South District:Saket Courts
New Delhi
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