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Delhi District Court

State vs . Rajesh Kumar on 14 December, 2013

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

Sessions Case No. 153/2013
Unique Case ID: 02404R0166602013

State                       Vs.           Rajesh Kumar 
                                          S/o Ram Bhujawan 
                                          R/o Village Hatwa 
                                          Police Station Nawab Ganj, 
                                          District Gonda, Uttar Pradesh
                                          (Convicted)

FIR No.                     :             135/2012
Police Station              :             Keshav Puram 
Under Section               :             392/394/397/34 IPC


Date of committal to Sessions Court  : 08.7.2013 

Date on which orders were reserved  : 10.12.2013 

Date on which judgment pronounced : 10.12.2013


JUDGMENT

(1) As per the allegations on 28.5.2012 at about 12 O'clock (noon) at A­17, Lawrence Road Industrial Area, Delhi, the accused Rajesh Kumar along with his associate Virender Pratap Singh (already convicted) in furtherance of their common intention committed robbery of Rs.20,000/­ to Rs.25,000/­ and some documents from the victim Manohar Lal who was the cashier of M/s. Rahul Beverages and had also voluntarily caused hurt to State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 1 Manohar Lal. It is also alleged that while committing the aforesaid robbery, the accused Rajesh Kumar had used a country made pistol upon the victims. (2) It has also been alleged on 28.5.2012 the FIR in the present case was registered against the accused Rajesh Kumar by name but he failed to appear at the specified place and time as required by the proclamation under Section 82 Cr.P.C. and hence he was declared Proclaimed Offender by the Ld. ACMM vide order dated 7.11.2012 and subsequently he was arrested in the present case.

BRIEF FACTS/ CASE OF THE PROSECUTION:

(3) The case of prosecution in brief is that on 28.5.2012 a PCR Call vide DD No. 13A was received in Police Station Keshav Puram regarding robbery and apprehension of one of the assailants along with revolver. The said DD was marked to SI Deepak Bhardwaj who along with Ct. Bijender Dhama reached the spot i.e. A­17, Lawrence Road Industrial Area where the complainant Manohar Lal and injured Vinod Bohra met them who produced before them two country made pistol and one apprehended person namely Virender Pratap Singh (now convicted).

(4) SI Deepak Bhardwaj recorded the statement of complainant Manohar Lal who alleged that on 28.5.2012 he was working as Cashier with M/s Rahul Beverages and was present in his office when at about 12.00 Noon, two boys came to his cabin accompanied by Vinod Bohra the Chowkidar of the firm who informed him (Manohar Lal) that the said boys State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 2 had come to deposit cash. Manohar Lal further alleged that one of those boys sat in front of him in a chair and the other one kept standing near the door. Manohar Lal further alleged that he asked the boy sitting in front of him to show the receipt on which the said boy took out a pistol and pointed the same towards him and asked him to hand over whatever cash he was having or else he would kill him. According to Manohar Lal he caught the barrel of the pistol but in the meanwhile the said boy pushed him as a result he (Manohar Lal) fell down after which the said boy hit him with the butt of pistol and thereafter he lifted the black coloured bag lying on the table containing Rs.20 to 22 thousand and some documents and after keeping the said bag into another bag, both the boys started running away from the spot.

According to Manohar Lal he raised an alarm on which the boy who was carrying the bag fell down on the stairs and the bag was removed from his hand and in the meantime the other boy who was keeping a watch at the door of the office, lifted the said bag and ran away but in that process his pistol was dropped at the spot. The complainant further informed the IO that the other boy also tried to run away but in the meantime the Chowkidar Vinod Bohra and the owner of the factory namely Rahul reached there and they all apprehended the said boy who tired to run away also took out a pistol and hit the same on the mouth of Vinod Bora. According to Manohar Lal the apprehended boy revealed his name as Virender Pratap Singh (now convicted) after which police was informed and after the police reached the spot, the accused Virender Pratap Singh (now convicted) and the recovered State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 3 pistols were handed over the the police.

(5) On the basis of this statement of Manohar Lal, the present FIR was registered. The accused Virender Pratap Singh (now convicted) was arrested and after completion of investigations initially charge sheet was filed in the Court against the accused Virender Pratap Singh (who has been convicted by this Court vide Judgment dated 13.3.2013 and order on sentence dated 20.3.2013). Efforts were made to apprehend the other assailant i.e. accused Rajesh but he could not be traced and therefore vide order dated 7.11.2012 the accused Rajesh was declared a Proclaimed Offender. However, on 12.3.2013 pursuant to a secret information the accused Rajesh Kumar was apprehended by the members of Crime Branch, Special Unit from near DMS Milk Plant, Shadipur, Depot and from his possession a country made pistol was recovered. Pursuant to the arrest of accused Rajesh Kumar FIR No. 47/2013, PS Crime Branch, under Section 25/27 of Arms Act was registered and during interrogation the accused Rajesh disclosed his involvement in the present case. On 13.3.2013 information was sent to Police Station Keshav Puram regarding the arrest of accused Rajesh Kumar on which the accused was arrested. On 19.3.213 during Judicial Test Identification Parade the witnesses Manohar Lal and Vinod Bora identified the accused Rajesh Kumar as one of the assailants. After completion of the investigations charge sheet was filed against the accused Rajesh Kumar.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 4 CHARGE:

(6) Charges under Section 392/394/397/34 Indian Penal Code and also under Section 27/54/59 Arms Act were settled against the accused Rajesh Kumar to which he pleaded not guilty and claimed trial. Further, charge under Section 174­A Indian Penal Code was settled against the accused Rajesh Kumar to which he pleaded not guilty and claimed trial.

EVIDENCE:

(7) In order to discharge the onus upon it, the prosecution has examined as many as Twenty Three witnesses:

Victim/ Public Witnesses:

(8) PW10 Manohar Lal has deposed that he is residing at the given address and is working with Rahul Beverges at A­17, 2nd Floor, Lawrence Road Industrial Area as a cashier and the company is involved into supply of packets of soft drink, water and juices etc. According to the witness on 28.05.2012 at about 12 PM (afternoon) he was working in his office when the chowkidar of the company namely Vinod Bohra came to his office along with two boys and he (Vinod) left the boys in the office and told him (witness) that they wanted to give some cash payment which he should take (inhone cash jama karna hai) and thereafter went away. The witness has deposed that one boy sat in front of him on the chair whereas the other boy stood outside. He has identified the accused Rajesh in the Court as the State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 5 boy who was standing outside. He has further deposed that the boy who sat in front of him (i.e. accused Virender Pratp Singh - already convicted) was having a jalidar / netted cloth bag of purple color and when he asked him to show him the slip the said boy kept the bag on his table and took out pistol from the same and pointed the same on him and threatened him by saying that he (witness) should hand over the cash to him or else he would shoot him "cash lao verna goli mar doonga". The witness has deposed that on this he somehow gained courage and caught hold of the barrel of the pistol which was being held by that boy and pushed it in a direction away from him on which the said boy (accused Virender Pratap Singh - already convicted) pushed him as a result of which he fell down and thereafter he hit him on his hand with the butt of the pistol. According to the witness the said boy immediately picked up a black color bag which he (witness) had kept near the table which bag was containing about 20­22 thousand rupees and some documents of the company after which he ran out from the cabin. The witness has deposed that he saw that both the boys were going downstairs after taking the staircase and he immediately raised an alarm "bacho, mujhe loot liya, maar diya". He has deposed that the boy who had snatched his bag slipped while going downstairs and both the bag and fire arm which he was carrying fell down. According to him the other boy who was earlier standing outside his cabin immediately picked up the said bag containing the cash and ran away after leaving the fire arm/ pistol behind. The witness has deposed that in so far as he had noticed the State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 6 assailants had put his black bag in the bag which they were carrying and on hearing his alarm, the chowikdar Vinod Bohra and nephew of the owner Rahul came to the spot along with labour after which they all caught hold the boy who had fallen down whereas the other boy ran away. He has testified that when this boy was apprehended by Vinod Bohra, he also hit Vinod Bohra (Vinod Bhora se bhir gaya) with his butt as a result of which Vinod received injuries. According to the witness the said boy had also received some injuries when he had fallen down. According to him, Rajesh the owner immediately dialed 100 number after which the police came to the spot. The witness has deposed that while he and Vinod Bohra were being taken to BJRM hospital the assailant who had been apprehended by them was handed over to the police by them along with two pistols i.e. one which was thrown at the spot by the accused (Rajesh) who had run away and the other which was in his (accused Virender Pratap Singh - already convicted) possession and with which he had hit Vinod.

(9) According to the witness after they returned from the hospital the accused was interrogated in his presence and he disclosed his identity as Virender Partap Singh, resident of district Gonda, U.P. (already convicted). The witness has deposed that thereafter on his return from the hospital, he informed the police about the details of the incident and also showed them his office after which his statement Ex.PW10/A was recorded by the police. The witness has deposed that the police prepared the site plan in his presence and the photographs of the spot where he used to sit, i.e. his office State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 7 where the incident had taken place were also taken which photographs are Ex.PW5/A­1 to Ex.PW5/A­7. The witness has deposed that the police also took into possession the kattas/ pistols and first they opened the same and found each katta containing a live cartridge. According to the witness the police prepared the khaka / sketch of the katta and the live cartridges which sketches are Ex.PW9/A and Ex.PW9/B and thereafter IO prepared two pullanda of the said kattas and sealed them in his presence after he seized them vide memos Ex.PW9/C and Ex.PW9/D both bearing his signatures at point B. According to the witness the police lifted the blood sample from his cabin i.e from the chair kept in his cabin vide seizure memo Ex.PW9/E bearing his signatures at point C. The witness has also deposed that in his presence the accused Virender Partrap Singh was arrested vide memo Ex.PW9/F bearing is signatures at point C and his personal search was carried out vide memo Ex.PW9/G bearing his signatures at point C. The witness has testified that on 19.3.2012 he had gone to Tihar Jail since he was informed that the other assailant who had run away had also been apprehended and he was required to identify the said person. According to the witness, in the Jail he identified the accused Rajesh vide proceedings which are Ex.PX5.

(10) The witness has identified the accused Rajesh in the Court and also the case property i.e. country made pistol and one test fired cartridge case as the same which were recovered by them from the accused which State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 8 country made pistol is Ex.P1 and fired cartridge is Ex.P2. He has also identified another country made pistol along with one test fired cartridge which are Ex.P3 and Ex.P4 respectively.

(11) In his cross examination by Ld. Defence Counsel, the witness has deposed that the entire incident lasted for hardly 10­15 minutes. He has admitted that accused Rajesh had not given him any blows of butt and has voluntarily explained that the said butt blow was given to him by the co­ accused Virender Partap Singh (now convicted). He has denied the suggestion that accused Rajesh was not present at the spot or that he has been wrongly identified by him at the instance of the Investigating Officer. He has admitted that Vinod Bohra had also received injuries and he had seen him bleeding from his mouth/lips but he is unable to tell whether his clothes had also become blood stains or not. He has admitted that Vinod had been hit by co­accused Virender Partap Singh (now convicted) and Rajesh (the present accused) has nothing to do with the injuries received by Vinod. He has deposed that his statement was recorded by SI Deepak after his return from the hospital after about 1 - 1 ½ hours in the evening. He has explained it was not in the evening but was still afternoon when his statement was recorded. He has denied the suggestion that he was shown the photographs of the accused Rajesh before Test Identification Parade or that he could not properly see the other accused who had run away since he had seen him from his back, while he was running away. He has also denied the suggestion that he has falsely implicated the accused Rajesh on the asking of State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 9 the police only for working out the present case. He has testified that the robbed cash and bag have not been recovered till date. This witness has admitted that there are other offices situated in the same complex where his office is situated. He has deposed that Vinod Bohra is only a Chowkidar and not a gunman. The witness has deposed that at the time of the incident, he was alone in his office and further states that there were other employees of Rahul beverages in the complex but they were in other places in the complex. He does not know if any other person from the factory had tried to follow the person/ assailant who ran away from the spot. (12) He has denied the suggestion that he could not see the other boy as he was standing outside his office and later he only saw him running away and has voluntarily explained that he had clearly seen him when he had come to his office as both the boys were brought to his office by Vinod Bohra and was standing in front of him. According to the witness he had gone out after about one or two minutes. He has denied the suggestion that the other accused had never come inside his office as claimed by him or that there were some other persons who came in his office and robbed him. He has also denied the suggestion that this is the reason that DD No. 13 A contains the words "kuch log" or that he had not received any injury on his head. The witness has further denied the suggestion that there was no bleeding from his head or any other part of the body and that is why the injury on the part of head is not mentioned in his MLC. He has also denied the suggestion that no bag containing Rs 20­22 thousand was ever robbed State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 10 from him or that the accused Rajesh is not involved in the robbery incident and hence till date no recovery of the robbed amount has been effected by the police.

(13) PW13 Vinod Bohra has deposed that he is working as Chowkidar at Rahul Beverages situated at A­17, Lawrence Road and Manohar Lal is the cashier of the company/ factory and his job is to collect the payment from the party. The witness has further deposed that on 28.05.2012 at about 12:00 Noon he was on duty at gate when two persons came to him and told him that they wanted to deposit some cash in the factory on which he took the said two boys to the company cashier Manohar Lal on the second floor and told him that the boy had come to deposit some cash and thereafter he (witness) returned to the main gate. The witness has further deposed that after about 2­3 minutes he heard the voices of cashier Manohar Lal saying "bachao bachao" and on hearing the voices of Manohar Lal, he ran towards the direction of second floor but before he reached there he saw that one boy had run away but one boy of the boys who was holding a pistol in his hand was climbing down the stairs and running away. He has testified that he caught hold of the person who was holding the pistol on Manohar Lal when the said person also hit him with the butt of the pistol on his chest. The witness has deposed that the owner of the factory Rahul also came out and other persons also gathered and they could manage to apprehend this boy who later on disclosed his name as Virender Partap Singh (already convicted) original resident of Ghonda, UP. State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 11 According to the witness the police came to the spot and the accused Virender Pratap Singh (already convicted) was handed over to the police along with the pistols recovered from him and also left by the other boy who had run away. According to him, the police then took them to the BJRM hospital where he along with Manohar Lal were provided treatment after which they returned back to the factory. The witness has deposed that the Police also took into possession the kattas/ pistols and thereafter first they opened the same and found each katta containing a live cartridge. According to the witness, the crime team also inspected the spot and photographs were also taken there after which police prepared the khaka / sketch of the katta and the live cartridges which sketches are Ex.PW9/A and Ex.PW9/B bearing his signatures at point B. The witness has deposed that IO thereafter prepared two pullanda of the said kattas and sealed them in his presence after he seized them vide memos Ex.PW9/C and Ex.PW9/D. He has further deposed that the police lifted the blood sample from the cabin of Manohar Lal i.e from the chair kept in his cabin vide seizure memo Ex.PW9/E bearing his signatures at point C. The witness has deposed that in his presence the accused Virender Partrap Singh (already convicted) was arrested vide memo Ex.PW9/F and his personal search was carried out vide memo Ex.PW9/G. He has further testified that on 19.3.2012 he had gone to Central Jail, Tihar for identification of the other boy who he was told had been apprehended. According to him, in the jail vide proceedings Ex.PX5, State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 12 he identified the accused Rajesh as the other who had run away from the spot when Virender Pratap (already convicted) was apprehended. He has also correctly identified the accused Rajesh in the Court. (14) Witness has also identified one country made pistol along with one test fired cartridge case as one of the kattas which was recovered by them from the accused. The country made pistol is Ex.P1 and fired cartridge is Ex.P2. Witness has identified the said katta as the one which was found lying on the stair case after the assailant who had escaped from the spot had dropped it / left it there. The witness states that he has identified the same as he had himself picked it up from the staircase and handed over the same to the police later. He has further identified another country made pistol along with one test fired cartridge case Ex.P3 and Ex.P4 respectively and has stated that this katta is the one which was in the hand of accused Virender Partap Singh and with which he i.e. Virender Partap Singh had hit him (witness) on his face and on his chest. (15) In his cross examination by Ld. Defence Counsel, the witness has deposed that he is not exactly aware as to who made the 100 number call and has voluntarily added that it was either Rahul or his uncle Rajesh who made the call. According to the witness the whole incident i.e. from the time he took the accused to Manohar Lal till the time Virender Pratap (already convicted) was apprehended and Rajesh ran away, lasted for about 10­15 minutes. He has deposed that the police came to the spot within 15­20 State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 13 minutes and there was no bleeding from any injuries but Manohar Lal was bleeding.

(16) According to the witness, his statement was recorded by police and has voluntarily explained that his statements were recorded on two occasions, first on the date of the incident and thereafter when he identified the accused Rajesh in Tihar. According to the witness he had signed the various documents prepared by the police in the factory itself on the second floor. He has denied the suggestion that he was later called to the police station and it was on the directions of the senior police officers and the owner Rahul that he had signed the documents in the police station. He has also denied the suggestion that accused Rajesh was not the person who robbed Manohar Lal or had run away along with the bag containing the cash. He has further denied the suggestion that there were some other persons who came to the factory and robbed Manohar Lal or that this is the reason that DD No. 13 A contains the words "kuch log". The witness has also denied the suggestion that he did not receive any injury on his chest or that that he was shown the accused Rajesh in the Police Station after his apprehension. He has further denied the suggestion that he was shown the photograph of Rajesh before the TIP and asked by the Investigating Officer to identify him in the jail. The witness has also denied the suggestion that no bag containing Rs 20­22 thousand was ever robbed from Sh. Manohar Lal or that accused Rajesh is not involved in the robbery incident and hence till date no recovery of the robbed amount has been effected by the police.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 14 (17) PW15 Rahul Khanna has deposed that he is running a factory under the name of Rahul Beverages at A­17, Industrial Area, Lawrence Road, Delhi and is into business of manufacturing and packing of drinking water and supply of soft drinks. According to the witness on 28.05.2012 at around 12 PM (afternoon) he was standing outside his factory, when he suddenly heard alarm/ voices of Manohar Lal Joshi who is a cashier in his factory, which voices were coming from the second floor. The witness has deposed that he could only hear the voice "bachao bachao" on which he started running towards the second floor along with the Chowkidar Vinod Bohra. According to the witness while they started climbing on the staircase and just climbed 3­4 steps they found a pistol lying there. He has deposed that he asked Vinod to pick up the pistol and while they hardly moved 3­4 steps they found a boy lying there, who was trying to get up and run away but they immediately caught him and asked him who he was, on which the said boy brought out the pistol and hit Vinod on his head in an attempt to run away. According to the witness in the meanwhile their other staff also joined them and they were able to apprehend the said boy and he saw another boy running away with the bag. He has testified that he could only see him from the back with a bag in his hand. The witness has deposed that in the meanwhile Manohar Lal Joshi also came and told them that he was the boy who had come inside his office and had looted him after showing a pistol. Witness has deposed that he also informed them that there was another boy with him who was no longer there and had run away. State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 15 According to the witness he also noticed bleeding on the face of Sh. Manohar Lal Joshi and a little bleeding on his hand. He has deposed that his uncle Rajesh immediately made a call to 100 number and tried to look for the other boy who had absconded with the cash but could not locate him and in the meanwhile the PCR officials also came to the spot. The witness has deposed that before the PCR officials came when he made inquiries from the said boy, he disclosed his name as Virender Partap Singh (already convicted) a resident of Nawabganj Ghonda UP. He has further deposed that thereafter police reached at the spot and they handed over Virender Partap Singh (already convicted) to the police along with two pistols i.e. the one which was found lying on the staircase and the other one which was in the hand of the accused with which he had hit their Chowkidar Vinod while trying to flee from the spot.

(18) According to the witness in his presence the police had checked both the kattas/ country made pistol and each one of them found to contain live cartridge. He has deposed that the police had taken Manohar Lal Joshi and their chowkidar Vinod Bohra to the hospital while he (witness) remained outside the factory as the police was inside the factory and carrying out various proceedings at the spot of the incident. The witness has deposed that the police also prepared the various documents i.e. sketch of the kattas/ cartridges and thereafter converted the same into pullandas and also prepared other documents but he is not aware of the details. According to him the police also interrogated him and he informed them about State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 16 whatever had happened.

(19) The witness has identified the katta and the cartridges Ex.P1 to P4. The witness has correctly identified the country made pistol is Ex.P3 and fired cartridge is Ex.P4 as the one which was in the hand of accused Virender Partap Singh (already convicted) and with which he i.e. Virender Partap Singh had hit his chowkidar Vinod on his face and on his chest. (20) In his cross­examination by Ld. Defence Counsel, the witness has admitted that he did not see the accused who had run away with the bag. He has also admitted that he cannot identify the said person as he had never seen his face. He also admits that there is no recovery of bag and the looted cash amount till date.

Witnesses of Medical Record:

(21) PW11 Dr. Prem has deposed that on 28.05.2012 at about 2:10 PM Manohar Lal, S/o Bishan Dass, male 62 years was brought at the casualty of the BJRM hospital by Ct. Jitender with alleged history of physical assault and Dr. Gagan JR medically examined above said Manohar Lal under his supervision at the casualty. The witness has deposed that Dr. Gagan prepared the MLC No. 42021 after his medical examination which is Ex.PW11/A bearing signatures of Dr. Gagan at point A which the witness has duly identified. According to the witness they found abrasions on right thumb dorsal surface and abrasions on right forearm dorsal surface in the local examination and the above said injuries are simple in nature and State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 17 caused by blunt object. He has proved his opinion at point X on the Ex.PW11/A bearing his signatures at point B. This witness has further deposed that on the same day at the same time Dr. Gagan also medically examined Vinod Bohra S/o Purna Kant Bohra, male 40 years who was also brought at the hospital by Ct. Jitender with alleged history of physical assault and after his medical examination Dr. Gagan prepared the MLC No. 42022 which is Ex.PW11/B bearing signatures of Dr. Gagan at point A which the witness has duly identified. According to the witness in the local examination they found minor abrasions inner surface of upper lip and states that the above said injuries are simple in nature and caused by blunt object. The witness has proved his opinion at point X on Ex.PW11/B bearing his signatures at point B. (22) The witness has further proved that on 17.10.2012 at about 12:45 PM the patient Manohar Lal S/o Bishan Dass was brought in the Casualty of BJRM Hospital by the police for medical examination and collection of blood sample when Dr. Azia Manzoor medically examined the above patient and prepared the MLC No. 45786 which is Ex.PW14/A (in the main case which has already been decided). According to the witness, the blood sample of Manohar Lal was collected and handed over to the Investigating Officer in sealed condition. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 18

Forensic Evidence:

(23) PW8 Puneet Puri, Senior Scientific Officer (Ballistics) has deposed that on 25.06.2012 two sealed parcels sealed with the seal of DB of this present case were received in FSL and same were marked to him for examination. According to the witness on opening the first parcel, one country made pistol of .315 inch bore and one 8mm/.315 inch cartridge were taken out and marked as exhibits F1 and A1 by him. The witness has deposed that on opening the second parcel, one country made pistol of .315 inch bore and one 8mm/.315 inch cartridge were taken out and marked as exhibits F2 and A2 by him. He has deposed that on examination he found that the country made pistols marked Exs. F1 and F2 were in working order, test fire conducted successfully. He further deposed that the cartridge marked Ex A1 was test fired through country made pistol marked ExF1 and the cartridge marked Ex A2 was test fired through the country made pistol marked EX F2. According to the witness the country made pistols marked exhibits F1 and F2 were fire arms and the cartridges marked exhibits A1 and A2 were ammunition as defined in Arms Act 1959. The witness has proved his detailed ballistic examination report vide Ex.PW8/A bearing his signatures at point A on both the pages. The witness has correctly identified the country made pistol along with one test fired cartridge Ex.P1 and fired cartridge is Ex.P2.

(24) He has also identified another country made pistol along with one test fired cartridge case which are Ex.P3 and Ex.P4 respectively. This State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 19 witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.

Police Witnesses:

(25) PW1 HC Naresh Kumar is formal witness being MHC (M).

He has been examined­in­chief by way of affidavit which is Ex.PW1/1. He has proved the relevant entries of Register No. 19 and 21 vide S. No. 2846/12 copy of which is Ex.PW1/A (five pages) and S.No. 3031/12 copy of which is Ex.PW1/B, entry in register no.21 vide RC 59/21/12 copy of which is Ex.PW1/C, RC No. 85/21/12 copy of which is Ex.PW1/D and the receipts issued by FSL copy of which are Ex.PW1/E and Ex.PW1/F. In his cross examination the witness has denied that the case property was tampered with during its possession with him.

(26) PW2 Ct. Jitender is also a formal witness and has been examined­in­chief by way of affidavit which is Ex.PW2/1. He has proved the entry in Register No. 21 i.e. RC No. 85/21/12 copy of which is Ex.PW1/D bearing his signatures at point A and the receipt issued by FSL copy of which is Ex.PW1/F bearing his signatures at point A. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.

(27) PW3 Ct. Mehar Singh is again a formal witness. He has tendered his examination­in­chief by way of affidavit which is Ex.PW3/1 State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 20 bearing his signatures at points A and B. He has proved the entry in Register No. 21 vide RC No. 59/21/12 copy of which is Ex.PW1/C bearing his signatures at point A and the receipt issued by FSL copy of which is Ex.PW1/E bearing his signatures at point A. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.

(28) PW4 SI Ramesh Chand is formal witness and has tendered his examination­in­chief by way of affidavit which is Ex.PW4/1 bearing his signatures at points A and B. He has proved that Crime Team Report which is Ex.PW4/A bearing his signatures at point A. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.

(29) PW5 Ct. Parvinder is also a formal witness and has tendered his examination­in­chief by way of affidavit which is Ex.PW5/1 bearing his signatures at points A and B. He has proved having taken the photographs of the spot of incident which photographs are Ex.PW5/A­1 to Ex.PW5/A­7 and the CD containing the photographs is Ex.PW5/B. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted.

(30) PW6 ASI Hari Ram has tendered his examination­in­chief by way of affidavit which is Ex.PW6/1. He was working as duty officer and has proved the registration of the FIR No. 135/12 copy of which is State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 21 Ex.PW6/A bearing his signatures at point A original of which was seen and returned and endorsement on rukka which is Ex.PW6/B bearing his signatures at point A. (31) In his cross examination by Ld. Defence Counsel, the witness has denied that the FIR is ante­timed. He admits that DD No.17 A dated 28.05.2012 which is Ex.PW6/DX1 does not have the name of the accused Virender Pratap Singh (already convicted) as well as Rajesh Kumar (present accused). The witness has denied that the name of the accused was not known till the registration of FIR.

(32) PW7 Ct. Pradeep Kumar is formal witness and has he tendered his examination­in­chief by way of affidavit which is Ex.PW7/1 bearing his signatures at points A and B. He has proved the seizure of exhibits pertaining to the complainant Manohar Lal vide memo Ex.PW7/A bearing his signatures at point A. This witness has not been cross examined on behalf of the accused and the entire testimony has gone uncontroverted. (33) PW9 Ct. Bijender Dhama has deposed that on 28.05.2012 he was posted at police station Keshavpuram on that day after receiving the DD No. 13A he along with SI Deepak Bhardwaj reached at A­17, Industrial Area, Lawrence Road, Delhi. He has deposed that Manohar Lal, Chowkidar Vinod Bohra and factory owner Rahul met them there and Manohar Lal produced one Virender Partap Singh (already convicted) and two kattas before them (police) and alleged that Virender Partap along with his one associate namely Rajesh (present accused) committed robbery at the second State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 22 floor of the factory. According to the witness, the complainant Manohar Lal and Vinod Bohra were found in injured condition and they both were sent to the BJRM hospital through Ct. Jitender who met them on the way to the spot. According to the witness thereafter SI Deepak checked both the kattas after opening them, they were both found to be loaded with one live cartridge in each of them. The witness has deposed that he removed the live cartridges from the kattas and prepared the khaka/sketch of the katta and the live cartridges on a white paper which sketches are Ex.PW9/A and Ex.PW9/B. The witness has deposed that the IO thereafter prepared two pullanda of the said kattas and sealed them with the seal of DB and handed over the seal to me after use and gave the number to said pullanda as serial No. A1 and serial No. A2 after which he prepared the seizure memo of the same which seizure memo is Ex.PW9/C and Ex.PW9/D. According to the witness in the meanwhile the crime team also reached the spot after which IO prepared the site plan at the instance of the complainant. The witness has deposed that the IO also got the spot inspected from the crime team who also took the photographs of the scene of crime and also lifted the blood sample from the cabin of the complainant from the chair kept in the said cabin after which he kept the blood sample lifted by him in a container and thereafter sealed the container with the seal of DB after taking the seal from him (witness) which seal he handed over to him thereafter. According to the witness IO prepared the seizure memo of the same vide Ex.PW9/E and in the meanwhile the accused also returned from the hospital and the IO State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 23 prepared the rukka which he handed over to him (witness) to taking the same to the police station for getting the FIR registered. The witness has deposed that he took the tehrir to the police station where he handed over the same to the duty officer ASI Hari Ram who after registration of the case, handed over the original rukka and copy of the FIR to him. (34) According to the witness he returned to the spot and handed over the original rukka and copy of the FIR to SI Deepak after which the IO arrested the accused Virender Partrap Singh (already convicted) vide memo Ex.PW9/F, his personal search was carried out vide memo Ex.PW9/G after which the accused was also interrogated wherein he disclosed about his involvement at A­17, Industrial area, Lawrence road, which disclosure is Ex.PW9/H. The witness has deposed that thereafter they returned to the police station where his statement was recorded by the IO. (35) The witness has correctly identified the country made pistol along with one test fired cartridge case which are Ex.P1 and Ex.P2 respectively. The witness has further correctly identified Ex.P1 as the fire arm which was found lying at the spot and had been thrown by the absconding accused. The witness has further identified another country made pistol along with one test fired cartridge case which are Ex.P3 and Ex.P4 respectively and has stated that Ex.P3 is the same which was recovered from the accused Virender Partap Singh (already convicted). (36) In his cross examination by Ld. Defence Counsel, the witness has denied the suggestion that all the documents were prepared in the police State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 24 station which they had signed later on the directions of the senior officers or that the injured Vinod Bohra was planted as a injured eye witness later on to boost the present case at the instance of the IO. He has further denied the suggestion that the FIR has been ante timed only to suit the connivance of the IO or that the written complaint was given to the duty officer much later. The witness has also denied that he was never sent to the police station with the tehrir or that the investigating officer had blocked an entry in the FIR register which was filled up later on.

(37) PW16 SI Deepak Bhardwaj has deposed that on 28.05.2012 he was posted at police station Keshavpuram and on that day he received the DD No. 13A which is Ex.PW16/A, he along with Ct. Bijender Dhama reached at the spot A/17, Lawrence Road, Industrial Area, Keshavpuram where Ct. Jitender met him who was on patrolling duty in the area. According to the witness Manohar Lal and factory owner Rahul met them at the spot and they produced accused Virender Partap Singh (already convicted) before him and also produced two country made pistols before him alleged that one country made pistol was used by the accused Virender Partap Singh (already convicted) and another country made pistol was left at the spot by the other assailant Rajesh who ran away from the spot. The witness has deposed that Manohar Lal, Vinod Bara Chowkidar were found in injured condition and they were sent to the BJRM Hospital along with Ct. Jitender. The witness has deposed that he inspected the site and in the meanwhile Ct. Jitender brought Manohar Lal and Vinod at the spot and State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 25 handed over MLCs to him. The witness has deposed that he checked the both above said recovered country made pistols which were found loaded and he took out one live cartridge from each pistol. According to the witness thereafter he prepared the sketch of the country made pistol allegedly recovered from the accused Virender Partap Singh and its live cartridge which is Ex.PW9/B bearing his signatures at point C. The witness has deposed that on measurement length of pistol from the top of the barrel to the top of butt was 26.5 cm and the barrel was 15 cm long and that there was a transparent tape on the butt of the pistol. The witness has deposed that he also took measurements of the other parts of the pistol and cartridge and he mention all the measurements and the description in the sketch. The witness has deposed that he kept the pistol and cartridge in a cloth pullanda and marked the same as A1 and sealed the same with the seal of DB and seized the same vide seizure memo Ex.PW9/C. The witness has further deposed that he also prepared the sketch of the second country made pistol and its live cartridge vide Ex.PW9/B and on measurement length of the pistol from point of barrel to the point of butt was 24.5 cm and length of barrel was 12.8 cm and the right side of wood on the butt was found in the broken condition and he also took measurements of the other parts of the body of the pistol and cartridge and mentioned the same with description in the sketch Ex.PW9/B. The witness has deposed that he also kept these pistol and cartridge in a cloth pullanda and sealed the same with the seal of DB and marked the pullanda as A2 and seized the same vide seizure memo State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 26 Ex.PW9/D. According to the witness he filled the FSL Form in respect of both pistols and he handed over seal to Ct. Bijender Dhama after use after which he recorded the statement of Manohar Lal which is Ex.PW10/A. The witness has deposed that he made endorsement upon the same vide Ex.PW16/B and handed over the same to Ct. Bijender Dhama for registration of the FIR. According to the witness he also called the crime team officials at the spot and they took photographs and after inspection handed over the crime team reports Ex.PW4/A and prepared the site plan at the instance of complainant which is Ex.PW16/C. The witness has deposed that he recorded the statements of witnesses and in meanwhile Ct. Bijender reached at the spot and handed over copy of FIR and original tehrir to him for further investigations after which he interrogated accused Virender Partap Singh (already convicted) and arrested him vide Ex.PW9/F and took his personal search vide Ex.PW9/G and also recorded his disclosure statement vide Ex.PW9/H. According to the witness thereafter he inspected the cabin of the complainant at the second floor where blood was fell down during the incident, he lifted the blood from there with the help of cotton and kept the same in a small plastic container and prepared the cloth pullanda. The witness has deposed that he took his seal from Ct. Bijender and sealed the pullanda with the seal of DB and handed over the seal to Ct. Bijender again. He also seized the pullanda vide Ex.PW9/E bearing his signatures at point C and also recorded the statements of witnesses. According to the State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 27 witness on the next day accused was produced in the court of Ld. MM and he was remanded upto 03.06.2012. He has deposed that during the police custody remand other accused could not be arrested and thereafter case file was handed over to SI Rakesh for further investigations. (38) According to the witness, on 13.03.2013 he received DD No. 39B from duty officer regarding the arrest of accused Rajesh who has disclosed his involvement in the present case. He has further deposed that the said DD was initially marked to SI Rakesh but on account of his pre­ engagements it was then marked to him after which he went to the office of Crime Branch at Sunlight colony where he met ASI Rakesh and HC Jai Parkash. The witness has also deposed that he was handed the over copies of FIR, arrest memo, personal search memo, disclosure statement, statement of HC Jai Parkash and another constable whose name he does not recollect which was written by ASI Rakesh Ahluwalia. He has testified that he was told that the accused had been produced before illaka magistrate and remanded to Judicial Custody on which he moved an application before Sh. D.K. Jhangala ACMM for production of the accused in muffled face. He has testified that on 16.03.2013 the accused was produced in the court in muffled face and after taking permission from the Ld. MM he conducted his interrogation in the court complex and formally arrested him vide memo Ex.PW20/A and then interrogated the accused Rajesh and recorded his disclosure statement vide Ex.PW20/B. He has further deposed that all the proceedings took place by ensuring that the accused remained in muffled State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 28 face and thereafter the accused was remanded to Judicial Custody and he moved an application before the Ld. ACMM for getting conducting the Judicial TIP of the accused. According to him, the said application Ex.PX4 was marked to Ld. MM and thereafter the Judicial TIP of the accused was conducted on 19.03.2013 wherein both the victims Manohar Lal and Vinod identified the accused correctly vide proceedings Ex.PX5. He has proved that after the proceedings he moved an application for obtaining the copy of the TIP Proceedings which is Ex.PX6 which was duly allowed and he received the copy. He has proved having obtained one day Police Custody Remand of accused Rajesh, since he had disclosed that he had kept the case property i.e. bag containing the cash at the house of his friend at Karala but despite efforts no recovery could be effected and on the next day the accused was again remanded to Judicial custody. The witness has also proved having recorded the statements of the various witnesses and prepared the supplementary charge sheet against the accused Rajesh and filed the same in the court. He has correctly identified the accused Rajesh in the Court and also the case property i.e. country made pistols and cartridges which are Ex.P1 to Ex.P4.

(39) In his cross examination by Ld. Defence Counsel for the accused, the witness has denied the suggestion that the FIR was ante time or that the blood was planted on the chair. He has further denied the suggestion that he did not investigate the matter fairly and sincerely or that the disclosure statement of the accused Rajesh was recorded by him of his State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 29 own and he was only compelled to signed on blank papers which he converted into disclosure statement. According to the witness, he did not join any public witness, court staff, lawyers, litigants etc. while he interrogated the accused outside the court. He has admitted that no recovery of cash or bag was effected from the accused Rajesh at any point of time. The witness has also denied the suggestion that the accused Rajesh was shown to the witnesses during his production in the court where his face was unmuffled by him. He has denied the suggestion that the photograph of Rajesh was shown to the witnesses prior to the conduct of Judicial TIP. (40) PW17 SI Rakesh Duhan has deposed that on 07.06.2012 he was posted at police station Keshavpuram and on that day investigations of this case was marked to him after which he tried his best to arrest the other accused Rajesh but he could not apprehended. He obtained the opinion of the doctor on the MLCs. The witness has deposed that on 25.06.2012 exhibits of this case (fire arms and cartridge) were sent to the FSL Rohini through Ct. Mehar Singh. He also recorded the statement of Ct. Mehar Singh and MHC (M). The witness has deposed that on 09.07.2012 he obtained the NBWs of accused Rajesh. According to the witness on 17.08.2012 complainant was produced at the BJRM Hospital and his blood sample was taken and doctor handed over his blood sample in sealed condition with the seal of the hospital with sample seal to him in the presence of Ct. Pardeep Kumar and seized the same vide seizure memo Ex.PW7/A and deposited the same in the malkhana. The witness has further State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 30 deposed that on 21.08.2012 all the remaining exhibits were sent to FSL Rohini through Ct. Jitender. He also collected the positive photographs and the CD from the crime team photographer. The witness has deposed that he recorded the statements of witnesses and after completion of investigations he submitted the charge sheet against accused Virender Partap Singh (already convicted).

(41) The witness has deposed that during his investigations he collected the Ballistic expert report which is Ex.PW8/A and obtained the Sanction under Section 39 Arms Act from the concerned DCP which is Ex.PX1 and submitted the supplementary charge sheet against the accused. The witness has further deposed that on 06.09.2012 process U/s 82 Cr. PC was issued against the accused Rajesh and on 17.11.2012 he was declared as PO by the hon'ble court of Ld. MM. He has deposed that he also collected the FSL result in respect of blood sample which is Ex.PX2 (two pages collectively) and he submitted further supplementary charge sheet in this case. He has not been cross­examined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted. (42) PW18 HC Jaipal Singh is a formal witness being the Duty Officer who has been examined by way of affidavit which is Ex.PW18/1 (as per the provisions of Section 196 Cr.P.C.) wherein he has proved the DD No. 23 dated 12.3.2013 copy of which is Ex.PW18/A, copy of FIR no. 47/13 PC Crime Branch, under Section 25/27 of Arms Act which is State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 31 Ex.PW18/B. He has not been cross­examined by the Ld. Defence Counsel despite opportunity in this regard and hence his testimony has gone uncontroverted.

(43) PW19 W/Ct. Anshu is also a formal witness being the DD Writer who has been examined by way of affidavit which is Ex.PW19/1 (as per the provisions of Section 196 Cr.P.C.) wherein she has proved the DD No.31­B dated 13.3.2013 copy of which is Ex.PW19/A. She has not been cross­examined by the Ld. Defence Counsel despite opportunity in this regard and hence her testimony has gone uncontroverted. (44) PW20 Ct. Manoj is a formal witness who has been examined by way of affidavit which is Ex.PW20/1 (as per the provisions of Section 196 Cr.P.C.) wherein he has proved that on 16.3.2013 he joined the investigations of the case with SI Deepak Bhardwaj and after taking permission from the Court SI Deepak interrogated and formally arrested the accused Rajesh Kumar vide memo Ex.PW20/A after which the disclosure statement of the accused Rajesh was recorded which is Ex.PW20/B. He has been cross­examined by the Ld. Defence Counsel but nothing much has come out of the same.

(45) PW21 Sh. Deepak, Assistant Ahlmad/ LDC in the court of Sh Ajay Pandey, CMM (West), Tis Hazari Courts, Delhi has brought the judicial file of FIR No. 47/13, PS Crime Branch, U/s 25/27/54/59 Arms Act. He has proved the arrest memo of accused Rajesh which is Ex.PW21/A, his State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 32 personal search which is Ex.PW21/B, his disclosure statement which is Ex.PW21/C, the sketch of the desi katta which is Ex.PW21/D, seizure memo of the same which is Ex.PW21/E, Sanction U/s 39 of Arms Act accorded by Addl. DCP Crime Sh. Bisham Singh which is Ex.PW21/F and the FSL report/ ballistic report which is Ex.PW21/G. He has not been cross­examined by the Ld. Defence Counsel despite opportunity. (46) PW22 HC Jai Parkash has deposed that on 12.03.2013 he was posted at Crime Branch, Special Unit and on that day he received a secret information that one person wanted in a robbery case of Police Station Keshav Puram would come to meet his relative at Shadipur depot, near DMS plant. According to the witness, he shared this information with SI Sunil Kumar and Inspector Pawan Kumar after which a police party was constituted comprising of himself, SI Sunil, HC Mehak Singh, HC Murlidhar, Ct. Sanjeev, Ct. Ajay and Ct. Rajesh. He has testified that they reached Shadipur depot via Rajender Nagar and asked three­four public persons to join the raiding party but they refused and left without disclosing their names and identity and hence without wasting time they reached near milk plant Shadipur depot. He has further deposed that one boy was seen coming on foot from Shadipur depot side and on the pointing out of secret informer, they apprehended him. According to him, as soon as the police party surrounded him, the said boy took out the katta from his pocket and pointed out the same on all of them but they overpowered him and SI Sunil took the katta from his pant. The witness has testified that on interrogation State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 33 the said boy disclosed his name as Rajesh S/o Ram Bhujawan, R/o B­190, Utsav Vihar, Karala, New Delhi. The witness has also deposed that on checking the katta same was found to contain one live cartridge which was removed and the casual search of accused was also conducted which revealed a live cartridge in the right pocket of his pant which was also taken into possession by SI Sunil Kumar who then prepared the sketch of the katta and the cartridges vide Ex.PW21/D. He has further testified that the katta and cartridges were then measured but he does not remember the details of the measurement. He has proved that the katta and cartridges were then converted into pullanda by putting it in a plastic container with the help of tape and sealed with the seal of SKT and thereafter seized vide seizure memo Ex.PW21/E and the FSL Form Ex.PW21/G was then filled up. The witness has also proved having prepared a tehrir and after making his endorsement handed over the same to Ct. Sanjeev Kumar with directions to take the same to the police station for registration of the case. According to the witness, after Ct. Sanjeev Kumar returned to the spot with the original tehrir and copy of the FIR, he handed over the same to ASI Rakesh Kumar who had already reached the spot, earlier to Ct. Sanjeev. He has testified that ASI Rakesh then prepared site plan of the spot and arrested the accused Rajesh vide memo Ex.PW21/A, his personal search was taken vide memo Ex.PW21/B and his disclosure statement was recorded vide memo Ex.PW21/C. The witness has further deposed that in his disclosure statement the accused disclosed his involvement in the robbery of Police State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 34 Station Keshavpuram and therefore ASI Rakesh then send information to Police Station Keshavpuram. He has also deposed that on 12.03.2013 his statement was recorded by ASI Rakesh and he was relieved. According to him, on 13.03.2013 SI Deepak from Police Station Keshavpuram came to the office of Crime Branch, Sunlight Colony where he was handed over the various documents of the case FIR No. 47/13 by ASI Rakesh after which his statement was recorded by the Investigating Officer. He has correctly identified the accused Rajesh in the Court.

(47) In his cross­examination by the Ld. Defence Counsel the witness has deposed that they reached the DMS booth, Shadipur depot at around 4:30 PM and that SI Sunil did not call anybody from the office of DMS to join the investigations. He has admitted that the area around the DMS plant is thickly populated with large number of passerbye's. He has further admitted that there is a bus stand, near the DMS plant and has voluntarily explained that the bus stand is slightly ahead. The witness has further deposed that SI Sunil did not call anybody from Shadipur depot to join the investigations. He has also deposed that the katta was taken from the hand of the accused by SI Sunil with his bare hands and did not use any gloves. According to him, SI Sunil had taken a casual search of the accused and did not offer his search prior to conducting the search of the accused. He has testified that public persons did not stop when the accused was apprehended with katta in his hands and has voluntarily explained that it was an isolated spot. He has denied the suggestion that the accused has been lifted from State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 35 Agra on 11.03.2013 and falsely implicated in the present case or that all the documents were prepared while sitting in the crime branch. He has further denied the suggestion that the accused was illegally detained in the crime branch office from 11.03.2013 to 12.03.0213 and to legalize his detention he was compelled to sign various documents which were converted into memos later on.

(48) PW23 ASI Rakesh has deposed that on 12.03.2013 he was posted at Crime Branch, Sunlight colony and on that day after receipt of information regarding apprehension of Rajesh, he reached DMS plant opposite Shadipur depot where he met SI Sunil, HC Jai Parkash, Ct. Sanjeev and some other team members whose names he does not recollect. According to the witness, SI Sunil handed over to the accused Rajesh to him and the documents relating to the recovery of desi katta, recovered from the accused i.e. sketch, seizure memo, FSL Form. The witness has also deposed that he also handed over to him a sealed pullanda duly sealed with the seal of SKT after which he prepared a site plan of the spot on the pointing of SI Sunil and arrested the accused vide memo Ex.PW21/A, his personal search was taken vide memo Ex.PW21/B and his disclosure statement was recorded vide memo Ex.PW21/C. According to him, in his disclosure the accused disclosed his involvement in the robbery of Police Station Keshavpuram and therefore on the next day, he sent information to Police Station Keshavpuram. He has testified that on 13.03.2013 SI Deepak from Police Station Keshavpuram came to the office of Crime Branch, Sunlight State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 36 Colony where he was handed over the various documents of the case FIR No.47/13 by him which includes the copies of disclosure statement, arrest memo, personal search memo etc after which SI Deepak recorded his statement. The witness has also deposed that later in the said case, he sent the FSL Form along with the weapon for examination in FSL. He has correctly identified the accused Rajesh in the Court. (49) In his cross­examination by the Ld. Defence Counsel the witness has admitted that accused Rajesh was not apprehended in his presence. He has deposed that the katta was sent to the FSL for lifting the finger prints. He has denied the suggestion that the accused has been lifted from Agra on 11.03.2013 and falsely implicated in the present case or that all the documents were prepared while sitting in the crime branch. He has further denied the suggestion that the accused was illegally detained in the crime branch office from 11.03.2013 to 12.03.2013 and to legalize his detention he was compelled to sign various documents which were converted into memos later on.

STATEMENT OF ACCUSED & DEFENCE EVIDENCE:

(50) After completion of prosecution evidence, the statement of the accused Rajesh Kumar was recorded under Section 313 Cr.P.C. wherein all incriminating evidence was put to him which he has denied. The accused has stated that he is innocent and has been falsely implicated. According to him he has nothing to do with the alleged incident and the katta has been planted State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 37 upon him by the police officials to show his involvement in the present case.

According to him, nothing was recovered from his possession. He has further deposed that he was not even present at the spot of alleged incident and on the date of alleged incident his brother was admitted in Muskan Nursing Home at Budh Vihar, Rohini as his HB had fallen upto 5 and he along with his wife were there in the hospital to attend his ailing brother for his medical treatment.

(51) The accused Rajesh Kumar has examined his wife Smt. Sunita as his witness as DW1. She has deposed that on 28.5.2012 her Dever Arjit aged 9 years was not well was taken to Muskan Hospital at A­82, Budh Vihar, Kanjhawla Road, near 247 Bus Stand, by herself and her husband. According to the witness, they left the house at about 10:00 AM and reached the hospital at about 10:45 AM and remained there till 12:15 - 12:30 PM. She has placed on record the copy of medical certificate which is Ex.DW1/A date 28.5.2012 is written on backside of the same encircled X, the copies of Hi­Tech Path Lab and One­Tech Path Lab reports are collectively Ex.DW1/B running in four pages.

(52) She has further deposed that thereafter, they came to their house at about 1:00 PM and she prepared lunch after which at about 2:00 PM her husband Rajesh Kumar (accused) took lunch and thereafter he started working i.e. making furniture in the neighbourhood as he was working with a carpenter and till 5:00 PM he worked there and thereafter came home at 5:05 PM. She has also deposed that her husband was arrested by the police State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 38 from a train at Agra Railway Station and the tickets of that train were taken by the police at the time of his apprehension. According to the witness, her husband is innocent and has not committed any offence as he was at home on that day and went to the hospital for treatment of his brother and thereafter he joined his work.

(53) In her cross­examination by the Ld. Addl. PP for the State the witness has admitted that the name of father is not mentioned in the medical papers placed before this court by her which are Ex.DW1/A and Ex.DW1/B. She has denied the suggestion that the above documents do not pertain to her Devar and has voluntarily added that child Arjit is actually her Devar and they had taken him to the hospital. She has also denied the suggestion that she and her husband did not take Arjit to the hospital or that Arjit was taken to the hospital by his parents and she had only procured these documents to create an evidence for her husband. The witness has further testified that she had not made any complaint to any authority or any senior police officers regarding lifting of her husband and his illegal detention and has voluntarily explained that she has only studied up to 9th class and does not know where to make complaint. She has admitted that it is for the first time that she has come to the court to depose in this regard. She has denied the suggestion that police did not take any ticket as alleged by her and only created this story on tutoring of the family members to save her husband from penal consequences.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 39 FINDINGS:

(54) I have heard the arguments advanced before me by the Ld. Addl.

PP for the State and the Ld. Defence Counsel. I have also considered the testimonies of various witnesses examined by the prosecution and memorandum of arguments filed on behalf of the accused. My findings are as under:

Identity of the accused:

(55) The case of the prosecution is that the accused Virender Pratap Singh (already convicted) was apprehended by the public at the spot of incident itself and has been specifically named in the FIR. After his arrest Virender Pratap Singh (already convicted) made his disclosure statement Ex.PW9/11 where he had specifically disclosed the name of his co­accused who had run away from the spot as Rajesh (present accused). Neither the police nor the victims were aware of the details of this assailant (Rajesh Kumar) till such time it was disclosed by the apprehended accused Virender Pratap Singh (already convicted). Earlier the accused Rajesh was declared as Proclaimed Offender but has now been apprehended after which the supplementary charge sheet was filed against him. After his apprehension the accused Rajesh Kumar had consented to participate in the Judicial Test Identification Parade and has been identified by Manohar Lal and Vinod Bora vide proceedings Ex.PX5 and also in the Court as the person who had come along with the convict Virender Pratap Singh with a katta in his hand State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 40 which he had dropped at the spot after which he ran along with the cash.

Therefore, I hereby hold that the identity of the accused Rajesh as the person who had come along with the convict Virender Pratap Singh with a katta in his hand which he had dropped at the spot and ran away along with the robbed cash, stands established.

Medical / Forensic Evidence:

(56) Dr. Prem (PW11) has proved the MLCs of the injured Manohar Lal and Vinod Bohra which MLCs are Ex.PW11/A and Ex.PW11/B. He has proved that in so far as the victim Manohar Lal is concerned he was brought to the hospital with alleged history of physical assault and he has suffered abrasions on right thumb dorsal surface and on right forearm dorsal surface which injuries have been opined to be Simple in nature and caused by blunt object. In so far as the injured Vinod Bohra is concerned he was brought to the hospital with alleged history of physical assault and he has suffered minor abrasions inner surface of upper lip which was opined to be Simple in nature caused by blunt object. Dr. Prem (PW11) not having been cross examined on behalf of the accused, the entire evidence have gone uncontroverted.

(57) Further, Dr. Prem (PW11) has also proved that on 17.10.2012 the injured Manohar Lal was brought to the hospital by the police for his medical examination and collection of the blood sample. He has further proved that Dr. Azia Manjoor has collected the blood sample of Manohar State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 41 Lal and handed over the same to the IO in sealed condition vide MLC Ex.PW14/A. (58) It is evident that the blood sample of Manohar Lal and also the blood lifted from the spot was sent to the FSL for examination however the FSL report Ex.PX­2 (not disputed by the accused) does not assist the prosecution in any manner since no opinion could be given on account of putrification of the blood sample.

(59) In view of the above, I hold that the prosecution has been able to effectively establish that the victims Manohar Lal and Vinod Bohra were brought to the hospital with alleged history of physical assault and had received simple injuries on their bodies caused by blunt object.

Ballistic Report:

(60) It is the case of the prosecution that two country made pistols were recovered from the spot i.e. one from the spot left behind by the assailant who had run away from the spot with bag containing cash and the other one was recovered from the possession of the accused Virender Pratap Singh (already convicted) with which he had hit Manohar Lal and Vinod Bora. Both the recovered pistols were duly seized and sealed at the spot itself after which they were sent to the FSL for ballistic examination. Sh.

Puneet Puri, Senior Scientific Officer (Ballistics) (PW8) has examined both the country made pistols Ex.P1 and Ex.P3 of .315 bore each and the cartridges Ex.P2 and Ex.P4 of 8mm each. He has proved that both the State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 42 pistols were in working order and had been test fired successfully and the cartridges of 8mm were also successfully fired from the said country made pistols. He has further proved that the country made pistols were fire arms and cartridges were ammunition as defined under Arms Act. He has proved his detailed report in this regard which is Ex.PW8/A and has also identified the two country made pistols and cartridges which had been sent to him for examination which are Ex.P1 to Ex.P4 respectively. The said witness has not been cross examined and his testimony has gone uncontroverted. (61) In view of the above, the hereby hold that the prosecution has been able to successfully establish that the country made pistols sent for ballistic examination were arms and ammunition as defined under the Arms Act.

Allegations against the accused Virender Pratap Singh:

(62) Case of prosecution is that a robbery had taken place at the office premises of Rahul Beverages situated at A­17, Lawrence Road Industrial Area wherein two assailants were involved. In the said robbery a black coloured bag containing cash amount of approximately Rs. 20­22 thousand had been looted from the cashier Manohar Lal by the assailants and carried away by the assailant who had managed to escape from the spot i.e. the present accused Rajesh. One of the assailants i.e. Virender Pratap Singh (already convicted) had been apprehended by the victims / public persons at the spot itself while he was trying to escape because while State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 43 coming down the staircase he had fallen down and the victims had raised an alarm.

(63) The prosecution in support of its case has relied upon the testimonies of Manohar Lal (PW10) and Vinod Bohra (PW13) both of whom had received injuries in the incident and also the testimony of Rahul Khanna (PW15) who is the owner of the factory and had seen the co­accused Virender Pratap Singh (already convicted) and the present accused Rajesh running away and he along with the other staff of factory overpowered and apprehended Virender Pratap Singh (already convicted) along with the fire arm at the spot itself.

(64) In rebuttal, the Ld. Defence Counsel has also placed her reliance upon the cross examination of the above witnesses and has highlighted various contradictions in the same. She submits that there are material contradictions in the testimonies of the alleged witnesses who the prosecution claim are eye witnesses and also the contradictions in the nature of injuries as mentioned in the MLCs. She has pointed out that Ct. Bijender Dhama (PW9) have alleged that Manohar Lal was bleeding from mouth as well as head and Vinod Bohra received internal injuries on the chest whereas Manohar Lal (PW10) states in his cross examination that Vinod Bohra had received injuries on the mouth/ lips and he was bleeding. She has also pointed out that Manohar Lal has informed the court that police had not seized his blood stained clothes and this apparently means that no injury as claimed was sustained. Ld. Counsel further pointed out that according to State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 44 Rahul Khanna (PW15), the injured Vinod Bohra was hit by the accused on the head and he saw bleeding on the face of Manohar Lal and also some bleeding on his hand whereas the injuries shown in the MLC are different i.e. abrasions on right thumb dorsal and forearm with no mentioning of bleeding. She has pointed out that the MLC of Vinod Bohra (PW13) shows minor abrasion on the inner surface of upper lip with no bleeding. Ld. Counsel has further pointed out that there was blood on the chair of cabin and hence if none of the victims were bleeding from where it had come.

Also, if the victims were bleeding why their clothes were not seized by the investigating officer. Ld. Defence counsel has further pointed out that according to Manohar Lal they had shouted 'Bachao, mujhe loot liya, maar diya' whereas Vinod Bohra states that he shouted 'Bachao - Bachao'. She has further pointed out that Manohar Lal is not even able to tell the physical description of the accused Rajesh who had run away from the spot, which again creates a doubt on the prosecution version.

(65) I have considered the rival contentions and before coming to the merits of the same I first come to the testimony of Manohar Lal (PW10) relevant portion of which is reproduced as under:

"........ I am residing at the aforementioned address and I am working with Rahul Beverges at A­17, Lawrence road industrial area as a cashier. The company is involved into Manufacturing and supply of packets of soft drink, water and juices etc. My job is to receive the cash payments from the various parties. My office is situated on the second floor of the building.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 45

On 28.05.2012 at about 12 PM (afternoon) I was working in my office when the chowkidar of the company namely Vinod Bohra came to my office along with two boys. Vinod left the boys in the office and told me that they wanted to give some cash payment which I should take (inhone cash jama karna hai) and thereafter went away. One boy sat in front of me on the chair. He was the same boy who was earlier arrested and whom I had identified in the court on the previous date when I had come. The other boy stood outside. He is the boy who is present in the court today (Accused Rajesh who is correctly identified by the witness). The boy who sat in front of me was having a jalidar/netted cloth bag of purple color. I asked him to show me the slip on which the said boy kept the bag on my table and kept the bag on my table. He then took out pistol from the bag and pointed the same on me and threatened me by saying that I should hand over the cash to him or else he would shoot me " cash lao verna goli mar doonga". On this I somehow gain courage and caught hold of barrel of the pistol which was being held by this boy and pushed it in a direction away from me. He pushed me as a result of which I fell down and thereafter he hit me on my hand with the butt of the pistol. This boy immediately picked up a black color bag which I had kept near the table which bag was containing about 20­22 thousand rupees and some documents of the company and thereafter he ran out from the cabin. I saw that both these boys were going downstairs after taking the staircase and I immediately raised an alarm "bacho, mujhe loot liya, maar diya". The boy who had snatched my bag slipped while going downstairs and both the bag and fire arm which he was carrying fell down. The other boy who was State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 46 earlier standing outside my cabin immediately picked up the said bag containing the cash and ran away after leaving the fire arm/pistol behind. In so far as I had noticed the assailants had put my black bag in their thaila which they were carrying. On hearing my alarm, the chowikdar Vinod Bohra and nephew of the owner Rahul came to the spot along with some labour and all caught hold the boy who had fallen down whereas the other boy ran away. When this boy was apprehended by Vinod Bohra, he also hit Vinod Bohra (Vinod Bhora se bhir gaya) with his butt as a result of which Vinod received injuries. The said boy had also received some injuries when he had fallen down. Rajesh, the owner immediately dialed 100 number after which the police came to the spot. While I and Vinod Bohra were taken to BJRM hospital the accused/assailant who had been apprehended by us was handed over to the police by us along with the two pistols i.e. one which was thrown at the spot by the accused who had run away and the other which was in his possession and with which he had hit Vinod. After we returned from the hospital the accused was interrogated in my presence and he disclosed his identity as Virender Partap Singh, resident of district Gonda, UP.

Thereafter on my return from the hospital, I informed the police about the details of the incident and also showed them my office situated in the factory. My statement is already EX PW 10/A bearing my signatures at point A which I identify. The police prepared the site plan in my presence. Photographs of the spot where I used to sit, i.e. my office where the incident had taken place were also taken. I can identify my office i.e. spot of the incident from the said photographs which are already EX PW 5/A­1 to EX PW 5/A­7. The Police also took into possession the kattas/ pistols. First they opened the same State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 47 and found each katta containing a live cartridge. The police prepared the khaka/sketch of the katta and the live cartridges which sketches are already EX PW 9/A and EX PW 9/B bearing my signatures at point E. IO thereafter prepared two pullanda of the said kattas and sealed them in my presence after he seized them vide memos already EX PW 9/C and EX PW 9/D both bearing my signatures at point B. Police lifted the blood sample from my cabin i.e from the chair kept in my cabin vide seizure memo already EX PW 9/E bearing my signatures at point C. In my presence the accused Virender Partrap Singh was arrested vide memo already EX PW 9/F bearing my signatures at point C and his personal search was carried out vide memo already EX PW 9/G bearing my signatures at point C. My statement was recorded by the IO. I can identify the accused if shown to me.

On 19.03.2013 I had gone to the Tihar Jail as I was informed that the other assailant who had run away had also been apprehended and I was required to identify the said person. After I went to jail where I identified the accused Rajesh who is also present in the court today. The said proceedings are already EX PX5 bearing my signatures at point A....."

(66) I may observe that Manohar Lal has identified both the country made pistols/ kattas Ex.P1 and P3 one of which was dropped by the present accused Rajesh who had escaped from the spot and the other which was recovered from the possession of co­accused Virender Pratap Singh (already convicted).

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 48 (67) Manohar Lal (PW10) has been exhaustively cross­examined by the Ld. Defence Counsels wherein he has admitted that accused Rajesh had not given him any blows of butt and has explained that it was the co­accused Virender Partap Singh (now convicted) who had given the said butt blow to him. A specific suggestion has been put to the witness Manohar Lal that the photographs of the accused Rajesh Kumar was shown to him before the Test Identification Parade which he has denied. The witness has also denied the suggestion that he could not see the face of the accused Rajesh properly at the time of the incident. He has explained that Vinod Bohra had received injuries and he had seen him bleeding from his mouth and lips but he is unable to tell if the clothes of Vinod Bohra were having blood stains. He has further explained that Vinod Bohra is only a Chwokidar and not a gunman and also states that at the time of incident he was alone at his office and other employees were working in the factory were present in the complex but were at other places. Manohar Lal is most categorical in identification of the accused Rajesh as the person who had come along with the co­accused Virender Pratap Singh (already convicted) having a katta in his hand and had run away from the spot along the bag containing the cash amount.

(68) Coming now to the testimony of Vinod Bohra (PW13) relevant portion of which is reproduced as under:

".......... I am residing at the aforementioned address at Delhi for the last about six years and I am working as a State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 49 chowkidar at Rahul Beverages situated at A­17, Lawrence road. Manohar Lal is the cashier of the company/factory and his job is to collect the payment from the party.

On 28.05.2012 I was on duty at gate. It was around 12 noon that two persons came to me and told me that they wanted to deposit some cash in the factory. I took the two boys to the company cashier Manohar Lal on the second floor and told him that the boy had come to deposit some cash and thereafter I returned to the main gate. After about 2­3 minutes I heard the voices of cashier Manohar Lal saying "bachao­bachao". On hearing the voices of Manohar Lal, I ran towards the direction of second floor but before I reached there I saw that one boy had run away but one boy of the boys who was holding a pistol on his hand was climbing down the stairs and running away. I caught hold of the person who was holding the pistol on Sh. Manohar Lal when the said person also hit me with the butt of the pistol on my chest. The owner of the factory Rahul also came out and other persons also gathered and we could manage to apprehend this boy who later on disclosed his name as Virender Partap, original resident of Ghonda UP. The police came to the spot and the accused who had apprehended by us namely Virender Partap was handed over to them along with the pistols recovered from him and also left by the other boy who had run away. The police then took us to the BJRM hospital where I along with Manohar Lal were provided treatment after which we returned back to the factory. The Police also took into possession the kattas/ pistols. First they opened the same and found each katta containing a live cartridge. Crime team also inspected the spot and photographs were also taken there. The police prepared the khaka/sketch of the katta and the live cartridges which sketches are already EX PW 9/A and State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 50 EX PW 9/B bearing my signatures at point B. IO thereafter prepared two pullanda of the said kattas and sealed them in my presence after he seized them vide memos already EX PW 9/C and EX PW 9/D. Police lifted the blood sample from my cabin i.e from the chair kept in my cabin vide seizure memo already EX PW 9/E bearing my signatures at point C. In my presence the accused Virender Partrap Singh was arrested vide memo already EX PW 9/F bearing my signatures at point D and his personal search was carried out vide memo already EX PW 9/G bearing my signatures at point D. On 19.03.2013 I had gone to Central Jail, Tihar for identification of the other boy who I was told had been apprehended. In the jail I identified the accused Rajesh as the other boy who had run away from the spot when Virender Partap was apprehended. He is also present in the court today (correctly identified by the witness). The TIP proceedings already EX PX5 bearing my signatures at point A. (69) This witness has also correctly identified the kattas and the cartridges Ex.P1 to Ex.P4 which had been seized by the police. He has also been cross­examined at length by the Ld. Defence Counsel but he stood his ground. He has denied that he was shown the photographs of the accused Rajesh before the Judicial Test Identification Parade. He has deposed that he is not aware exactly as to who made the 100 number call and has voluntarily added that it was either Rahul or his uncle Rajesh who made the call. He has further stated that there was no bleeding from any injuries but Manohar Lal was bleeding. He has specifically denied the suggestion that State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 51 he was shown the photograph of Rajesh before the TIP. (70) Coming now to the testimony of Rahul Khanna (PW15) who was also present in the factory complex at the time when the incident had taken place on the ground floor and on hearing the alarm raised by Manohar Lal, he started running from the second floor along with Vinod and found a boy who was lying there and was trying to get up and run away and immediately the said boy pulled out a pistol and hit Vinod Bohra and thereafter tried to run away but they overpowered him and apprehended him, when in the meanwhile Manohar Lal also reached there who informed them that he was the boy who robbed him along with another boy who had already ran away from the spot. Rahul Khanna has proved that they then made a PCR call at 100 number and also looked for the other boy who ran away with the cash but could not locate him. The witness Rahul Khanna has also identified the country made pistols Ex.P1 and P3 and the cartridges Ex.P2 and P4.

(71) In his cross examination Rahul Khanna has admitted that he did not see the accused who had run away with the bag and he cannot identify the said person as he had never seen his face.

(72) It is evident from the aforesaid that both the witnesses i.e. Manohar Lal (PW10) and Vinod Bohra (PW13) have identified the accused Rajesh as the boy who had come along with the co­accused Virender Pratap Singh (already convicted) with a katta in his hand and had run away from the spot along with the bag containing cash. The injures on the bodies of the State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 52 victims have been proved to have been given with a blunt object which according to the victims was on account of blow given by the butt of the country made pistol and the accused Rajesh has not been able to rebut the same. There is no reason to doubt the incident. Further, there is no history of any kind of animosity between the accused Rajesh and the victim Manohar Lal and Vinod Bohra and hence there is no reason why they would have falsely implicate him. I may observe that the testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was very much present at the place of occurrence and had seen the occurrence by himself [Ref.:

Mohar vs. State of UP reported in 2002 AIR (SC) 3279: 2002 Cri.L.J. 4310]. Evidence of injured eye witness cannot be discarded in toto on ground of criminal disposition towards accused or improbability of narrating the details of actual accident. More so, on perusal of evidence tested in light of broad probabilities it can be concluded that eye­witness are natural witnesses and they could not have concocted a baseless case against accused. Merely because the injured eye­witnesses are members of one family and close relatives of the deceased there is no ground to reject their evidence. (Ref.: AIR 2003 SC 344). Further, in the case of State of Madhya Pradesh Vs. Mansingh & Ors. reported in 2003 (3) Cri.C.C. 559: 2003 (10) SCC 414 the Hon'ble Supreme Court of India held that evidence of injured witness have greater evidentiary value, unless compelling reasons exist.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 53 (73) When the entire incriminating material was put to the accused Rajesh in his statement under Section 313 Cr.P.C. he stated that on the date of alleged incident his brother was admitted in Muskan Nursing Home at Budh Vihar, Rohini and he along with his wife were there in the hospital to attend to his ailing brother for his medical treatment. In this regard the accused has examined his wife Sunita as DW1 who has claimed that on 28.5.2012 her Dever Arjit aged 9 years who was not well was taken to Muskan Hospital at A­82, Budh Vihar, Kanjhawla Road, near 247 Bus Stand, by herself and her husband where they remained till 12:15 - 12:30 PM. She has placed on record the copy of medical record of her Devar which is Ex.DW1/A and Ex.DW1/B. According to her, thereafter her husband i.e. accused Rajesh Kumar started his work of making furniture in the neighbourhood where he worked till 5:00 PM. In this regard I may observe that the above medical record placed on record by the wife of the accused, reveals that the parentage of the said Arjit and his address has not been mentioned on the same. Further, it is an incomplete record since the admission record of Arjit and his discharge papers have not been placed on record and the above documents Ex.DW1/A and Ex.DW1/B are only the prescription and the Lab Reports. Also, the doctor who examined the brother of accused Rajesh Kumar namely Arjit has not been called to the Court to prove the said aspect of treatment and the report. The witness Sunita (DW1) is an interested witness being the wife of the accused Rajesh Kumar and the possibility of her having procured the above medical State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 54 documents to save the accused from penal consequences cannot be ruled out.

(74) Further, coming now to the contradictions as pointed out by the Ld. Defence Counsel. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Hon'ble Supreme Court has succinctly explained reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses which are as under:

(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.

(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.

(c) When eye witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 55 discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.

(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.

(f) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.

(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.

(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 56

(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.

(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the time­sense of individuals which varies from person to person.

(k) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross­ examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.

(m) A former statement though seemingly inconsistent with the evidence need not necessarily be State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 57 sufficient to amount to contraction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.

(75) Applying the above principles of law to the facts of the present case I hereby hold that both Manohar Lal and Vinod Bohra are the persons who had even received injuries in the incident. Manohar Lal has explained that it was the accused Virender Pratap Singh (already convicted) entered in his cabin and sat in front of him whereas the other boy i.e. accused Rajesh stood outside. Having closely observed both the boys who came to him and even conversed with him on the pretext of making payment but thereafter having threatened him to handover the cash to him, it is writ large that there was sufficient time for Manohar Lal to have closely observe both the assailants who were bare faced and the incident having taken place in broad day light it rules out any possibility of a mistaken identity. Manohar Lal has very categorical in his statement that the accused Virender Pratap Singh (already convicted) had robbed him and while he raised an alarm, it was Virender Pratap Singh (already convicted) who slipped down on the stairs on account of which both the bag as well as the fire arm fell down when immediately the accused Rajesh lifted the bag and ran away from the spot. He has also explained that the assailants were having another bag with them and they put the robbed bag in their bag and thereafter ran away. I may add that the discrepancies as pointed out by the Ld. Defence Counsel are not State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 58 material. In a incident which occurred all of a sudden and large number of events take place in quick succession, there is a possibility of the victims getting shocked on account of the incident and then mixed up with the sequence of events which have transpired. As observed by the Hon'ble Apex Court in case of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat (supra), it is not proper to expect from the eye witness to possess a photographic memory and to recall the details of an incident as it is a video tape is replayed on the mental screen and it is also unrealistic to expect people to remember the exact words and reproduce them as if tape recorded and it is sufficient if main purport of the conversation is given. Further, the powers of observation differ from person to person and what one may notice, another may not and hence the discrepancies in the testimonies of Manohar Lal, Vinod and Rahul what Manohar Lal has observed from 2nd floor at a given point of time would be different to what has been observed by Vinod standing on the ground floor when Manohar Lal raised an alarm and similarly the observation of Rahul who was standing on the ground floor near gate of factory could be different when he heard the alarm. I may further observe that witness Manohar Lal, Vinod and Rahul though truthful yet on account of the court atmosphere and the piercing cross­examination by the Defence Counsel out of nervousness did get mix up and confused on facts regarding sequence of events and extent of injuries as received and thereafter tried to fill up details from imagination on the spur of the moment by exaggerating the injuries. This was a kind of psychological defence State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 59 mechanism which gets activated on the moment. There is no history of previous animosity between the complainant or of the other eye witnesses and the accused and hence there is no reason for them to falsely implicate him.

(76) As already discussed herein above, there is no reason for the victims to falsely implicate the accused Rajesh as the person who had come to the cabin of Manohar Lal having a katta in his hand and had run away from the spot with the bag containing cash. What was the accused doing inside a private property used as a factory and that too duly armed with a country made fire arm. No explanation is forthcoming for the same. I hereby hold that the contradictions if any are immaterial and will not affect the prosecution case on merits. It also makes no difference as to who made PCR call whether Manohar Lal or anybody else. The fact of the matter is that the accused Virender Pratap Singh (already convicted) had been apprehended at the spot by the public persons and the country made pistol was recovered from his possession after which he was handed over to the police. Here, I may observe that none were aware of the identity of the present accused Rajesh Kumar till such time during the interrogations the apprehended accused Virender Pratap Singh (already convicted) had disclosed about the same to the police and it is this which lead the police to the identity of the accused Rajesh who has been identified by Manohar Lal and Vinod Bohra in the Judicial test Identification Parade as well as in the Court.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 60 (77) Also the fact that Manohar Lal and Vinod Bohra had received injuries which were simple in nature stands established on merits. The victims have exaggerated their injuries and were not bleeding at that time yet it would not help the accused in any manner because the injuries received by the victims have been caused by blunt object which the victims have explained was the butt of the revolver carried by the accused Virender Pratap Singh (already convicted). The blood found on the chair could have been caused on account of head bleeding form mouth / teeth etc. since injuries have been found on faces of the victims.

(78) Therefore, I hereby hold that the prosecution has been able to successfully establish the charges against the accused Rajesh Kumar of having committed the robbery upon victims and for causing injuries to Manohar Lal and Vinod Bohra while committing robbery, for which he liable for the offence under Section 392 r/w 394 Indian Penal Code. Further, it has been established that the accused Rajesh was carrying a firearm at the time of the incident and held it in his hand which he dropped while trying to flee away, for which the accused is liable for the offence under Section 25/54/59 of Arms Act but not under Section 27 of Arms Act as he is not proved to have used the country made pistol. However, in so far as the charge under Section 397 Indian Penal Code, the accused Rajesh Kumar has not used the firearm and hence he is acquitted of the charge under Section 397 Indian Penal Code.

State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 61 FINAL CONCLUSION:

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

1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;

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

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

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

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

(80) Applying the above settled principles of law to the facts of present case, it is evident that identity of the accused Rajesh Kumar stands established. Further, it stands established that on 28.5.2012 the victims Manohar Lal (Cashier) and Vinod Bohra (Chwokidar) were present in the factory M/s Rahul Beverages situated at A­17, Lawrence Road Industrial Area. It stands established that the accused Rajesh Kumar along with his co­ State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 62 accused Virender Pratap Singh (already convicted) came to the factory and told Vinod Bohra that they wanted to deposit money; that Vinod Bohra accompanied both of them to the cashier Manohar Lal; that the accused Virender Pratap Singh (already convicted) sat in front of Manohar Lal while his associate i.e. accused Rajesh stood outside to keep a watch; that when Manohar Lal asked the accused to show the receipt, the accused Virender Pratap Singh (already convicted) pulled out a pistol and shown it to Manohar Lal and asked him to handover the cash; that Manohar Lal offered resistance to the accused Virender Pratap Singh (already convicted) but in that process Manohar Lal fell down and in the meantime accused lifted the bag from the table which bag was containing cash and some documents and started running away; that Manohar Lal raised an alarm on which the Chowkidar Vinod Bohra and the owner of the factor Rahul Khanna rushed towards the ground floor; that while running away, the accused Virender Pratap Singh (already convicted) slipped and fell down on stairs and the bag and the pistol slipped from his hand and in the meantime the accused Rajesh came there and lifted the bag and ran away from the spot whereas the accused Virender Pratap Singh (already convicted) was apprehended by the victims and other staff after which police was informed and the pistols and the accused Virender Pratap Singh (already convicted) was handed over to the police. It further stands established that the victims Manohar Lal and Vinod Bohra have received injuries in the incident which injuries were simple in nature which were caused by blunt object which victims have proved was butt of State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 63 the pistol which accused Virender Pratap (already convicted) was carrying. (81) It has also been established that a proclamation under Section 82 Cr.P.C. was issued against the accused Rajesh Kumar on 6.9.2012 for 25.10.2012 but he failed to appear at the specific place and time as required by the proclamation and thereafter on 17.11.2012 he was declared a Proclaimed Offender. Further, it has been established that on 12.3.2013 pursuant to a secret information the accused Rajesh Kumar (who was declared a Proclaimed Offender) was apprehended by the members of Crime Branch, Special Unit from near DMS Milk Plant, Shadipur, Depot and from his possession a country made pistol was recovered; that pursuant to the arrest of accused Rajesh Kumar FIR No. 47/2013, PS Crime Branch, under Section 25/27 of Arms Act was registered and during interrogation the accused Rajesh disclosed his involvement in the present case; that on 13.3.2013 information was sent to Police Station Keshav Puram regarding the arrest of accused Rajesh Kumar on which the accused was arrested in the present case; that on 19.3.213 during Judicial Test Identification Parade the witnesses Manohar Lal and Vinod Bora identified the accused Rajesh Kumar as one of the assailants.

(82) 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 State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 64 answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by circumstantial evidence and the witness of the prosecution have been able to built up a continuous link. (83) In view of the above, I hereby hold that the prosecution has been able to successfully establish the charges against the accused Rajesh Kumar of having committed the robbery upon victims and for causing injuries to Manohar Lal and Vinod Bohra while committing robbery, for which he is held guilty of the offence under Section 392 r/w 394 Indian Penal Code. Further, it has been established that the accused Rajesh was carrying a firearm at the time of the incident and held it in his hand which he dropped while trying to flee away, for which the accused is also held guilty of the offence under Section 25/54/59 of Arms Act but not under Section 27 of Arms Act as he is not proved to have used the country made pistol. However, in so far as the charge under Section 397 Indian Penal Code, the State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 65 accused Rajesh Kumar has not used the firearm and hence he is acquitted of the charge under Section 397 Indian Penal Code.

(84) In so far as the offence under Section 174­A Indian Penal Code is concerned it is a settled law that a separate charge sheet is required to be filed for the same and hence I refrain myself from making any observations in this regard (also since no evidence has been lead on the said aspect). Therefore, it shall be open to the Investigating Officer to file a separate charge sheet against Rajesh Kumar for the offence under Section 174­A Indian Penal Code.

(85) Be listed for arguments on sentence on 13.12.2013.

Announced in the open Court                                          (Dr. KAMINI LAU)
Dated: 10.12.2013                                                   ASJ (NW)­II: ROHINI




State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram                         Page No. 66 

IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE­II (NORTH­WEST): ROHINI COURTS: DELHI Sessions Case No. 153/2013 Unique Case ID: 02404R0166602013 State Vs. Rajesh Kumar S/o Ram Bhujawan R/o Village Hatwa Police Station Nawab Ganj, District Gonda, Uttar Pradesh (Convicted) FIR No.: 135/2012 Police Station: Keshav Puram Under Section: 392/394/397/34 IPC Date of conviction : 10.12.2013 Arguments heard on: 13.12.2013 Date of sentence: 14.12.2013 APPEARANCE:

Present: Sh. Shiv Kumar, Addl. Public Prosecutor for the State.

Convict Rajesh Kumar in Judicial Custody with Ms. Neelam Singh DLSA Counsel.

ORDER ON SENTENCE:

As per the allegations on 28.5.2012 at about 12 O'clock (noon) at State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 67 A­17, Lawrence Road Industrial Area, Delhi, the accused Rajesh Kumar along with his associate Virender Pratap Singh (already convicted) in furtherance of their common intention committed robbery of Rs.20,000/­ to Rs.25,000/­ and some documents from the victim Manohar Lal who was the cashier of M/s. Rahul Beverages and had also voluntarily caused hurt to Manohar Lal. It is also alleged that while committing the aforesaid robbery, the accused Rajesh Kumar had used a country made pistol upon the victims. It has also been alleged on 28.5.2012 the FIR in the present case was registered against the accused Rajesh Kumar by name but he failed to appear at the specified place and time as required by the proclamation under Section 82 Cr.P.C. and hence he was declared Proclaimed Offender by the Ld. ACMM vide order dated 7.11.2012 and subsequently he was arrested in the present case.

On the basis of the testimonies of various witnesses examined by the prosecution particularly the victims Manohar Lal and Vinod Bohra and also on the basis of other evidence on record, this court vide a detailed judgment dated 10.12.2013 observed that on 28.5.2012 the victims Manohar Lal (Cashier) and Vinod Bohra (Chwokidar) were present in the factory M/s Rahul Beverages situated at A­17, Lawrence Road Industrial Area; that the accused Rajesh Kumar along with his co­accused Virender Pratap Singh (already convicted) came to the factory and told Vinod Bohra that they wanted to deposit money; that Vinod Bohra accompanied both of them to the cashier Manohar Lal; that the accused Virender Pratap Singh (already State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 68 convicted) sat in front of Manohar Lal while his associate i.e. accused Rajesh stood outside to keep a watch; that when Manohar Lal asked the accused to show the receipt, the accused Virender Pratap Singh (already convicted) pulled out a pistol and shown it to Manohar Lal and asked him to handover the cash; that Manohar Lal offered resistance to the accused Virender Pratap Singh (already convicted) but in that process Manohar Lal fell down and in the meantime accused lifted the bag from the table which bag was containing cash and some documents and started running away; that Manohar Lal raised an alarm on which the Chowkidar Vinod Bohra and the owner of the factor Rahul Khanna rushed towards the ground floor; that while running away, the accused Virender Pratap Singh (already convicted) slipped and fell down on the stairs and the bag and the pistol slipped from his hand and in the meantime the accused Rajesh came there and lifted the bag and ran away from the spot whereas the accused Virender Pratap Singh (already convicted) was apprehended by the victims and other staff after which police was informed and the pistols and the accused Virender Pratap Singh (already convicted) was handed over to the police. It has also been established that the victims Manohar Lal and Vinod Bohra have received injuries in the incident which injuries were simple in nature which were caused by blunt object which victims have proved was butt of the pistol which accused Virender Pratap (already convicted) was carrying. Further, it has been established that a proclamation under Section 82 Cr.P.C. was issued against the accused Rajesh Kumar on 6.9.2012 for 25.10.2012 but he State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 69 failed to appear at the specific place and time as required by the proclamation and thereafter on 17.11.2012 he was declared a Proclaimed Offender; that on 12.3.2013 pursuant to a secret information the accused Rajesh Kumar (who was declared a Proclaimed Offender) was apprehended by the members of Crime Branch, Special Unit from near DMS Milk Plant, Shadipur, Depot and from his possession a country made pistol was recovered; that pursuant to the arrest of accused Rajesh Kumar FIR No. 47/2013, PS Crime Branch, under Section 25/27 of Arms Act was registered and during interrogation the accused Rajesh disclosed his involvement in the present case; that on 13.3.2013 information was sent to Police Station Keshav Puram regarding the arrest of accused Rajesh Kumar on which the accused was arrested in the present case; that on 19.3.213 during Judicial Test Identification Parade the witnesses Manohar Lal and Vinod Bora identified the accused Rajesh Kumar as one of the assailants.

In view of the above, this Court has held that the prosecution has been able to successfully establish the charges against the accused Rajesh Kumar of having committed the robbery upon victims and for causing injuries to Manohar Lal and Vinod Bohra while committing robbery, for which he has been held guilty of the offence under Section 392 r/w 394 Indian Penal Code. Further, it has been established that the accused Rajesh was carrying a firearm at the time of the incident and held it in his hand which he dropped while trying to flee away, for which the accused has been held guilty of the offence under Section 25 of Arms Act but not under State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 70 Section 27 of Arms Act as he is not proved to have used the country made pistol. However, in so far as the charge under Section 397 Indian Penal Code, the accused Rajesh Kumar has not used the firearm and hence he has been acquitted of the charge under Section 397 Indian Penal Code.

In so far as the offence under Section 174­A Indian Penal Code is concerned it is a settled law that a separate charge sheet is required to be filed for the same and hence I have refrained myself from making any observations and giving any findings in this regard (also since no evidence has been lead on the said aspect). Therefore, it shall be open to the Investigating Officer to file a separate charge sheet against Rajesh Kumar for the offence under Section 174­A Indian Penal Code.

Heard arguments on the point of sentence. The convict Rajesh Kumar is stated to be aged about 25 years having a family comprising of father, two brothers, four sisters, wife, one son and one daughter. He is totally illiterate and is an electrician by profession. Ld. DLSA Counsel for the convict has vehemently argued that the convict is the sole bread earner of the family and a lenient view be taken against them.

On the other hand the Ld. Addl. Public Prosecutor has prayed for a stern view against the convict keeping in view the allegations involved. He has pointed out that as per the report of the Investigating Officer the convict Rajesh Kumar is involved in six other cases, details of which are as under:

1. FIR No. 47/2013, PS Crime Branch, Under Section 25/27 of Arms State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 71 Act.

2. FIR No. 67/2013, PS Ghonda (U.P.) Under Section 3 (1) UP Gangster Act.

3. FIR No. 14/2010, PS Barabanki (U.P.) Under Sections 328/379/411 IPC.

4. FIR No. 31/2010, PS Barabanki (U.P.) Under Section 411/413 IPC.

5. FIR No. 401/2008, PS Kotwali Nagar (U.P.) Under Sections 147/ 364/ 302/ 201/394/120­B IPC, 3 (11) SC/ST Act and 3(1) Gangster Act.

6. FIR No. 47/2007, PS Ghonda (U.P.) Under Section 8/22/27 NDPS Act.

I have considered the rival contentions. Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Trigger friendly criminals unhesitatingly and indiscriminately use 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. There was no previous animosity between the convict and the victim and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 72 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).

In the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. 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. Under these circumstances 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 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 rime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC

175).

In the present case the convict Rajesh Kumar who is having previous involvements in Uttar Pradesh has committed robbery along with his associate Virender Pratap Singh (already convicted in presnet case and also involved in large number of cases is UP) in the broad day light without any fear of law and in the said process Manohar Lal and Vinod Bohra had even been injured. The co­convict Virender Pratap Singh has already been State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 73 sentenced to Rigorous Imprisonment for a period of Seven years for the offence under Section 392 r/w 394 r/w 397 Indian Penal Code. Keeping in view the seriousness of the allegations involved and also on the ground of parity and keeping in view the previous involvements, I award the following sentences to the convict Rajesh Kumar:

1. For the offence under Section 392 read with 394 Indian Penal Code the convict is sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine for a sum of Rs.10,000/­ In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.

2. For the offence under Section 25/54/59 of Arms Act the convict is sentenced to Rigorous Imprisonment for a period of Two Years and fine for a sum of Rs.2,000/­. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Week.

Both the sentences shall run concurrently.

Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him, as per rules. It is clarified that in case if the convict is already undergoing sentence in some other case, the sentence imposed upon him in the present case shall run CONSECUTIVELY i.e. after the completion of the sentence which he already undergoing in the other cases.

The convict has been informed that he has a right to prefer an State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram Page No. 74 appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he 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 the convict free of costs and one copy of order on sentence be attached with his jail warrant.

File be consigned to Record Room.

Announced in the open Court                                        (Dr. KAMINI LAU)
Dated: 14.12.2013                                                 ASJ (NW)­II: ROHINI




State Vs. Rajesh Kumar, FIR No. 135/12, PS Keshav Puram                        Page No. 75