Delhi District Court
Sc No. 04/2010 State vs Neeraj Etc. Page No. 1 Of 21 on 10 May, 2014
IN THE COURT OF ADDITIONAL SESSIONS JUDGE : SE01
DESIGNATED JUDGE: TADA/POTA/MCOCA: SAKET
COURTS: NEW DELHI
PRESIDED BY : MS. RENU BHATNAGAR
IN THE MATTER OF
CASE ID NO. 02403R0439602009
SESSIONS CASE NO. 04/2010
FIR NO. 387/09
POLICE STATION : H.N. DIN
UNDER SECTION : 392/394/397/34 IPC
STATE
VERSUS
1. NEERAJ
S/O SH. OM PRAKASH,
R/O B495, NEW SEEMA PURI, DELHI.
2. AMARDEEP @ AMAR SINGH,
S/O LATE SH. RAKESH KUMAR,
R/O H.NO. B446, NEW SEEMAPURI,
DELHI.
DATE OF INSTITUTION : 27.11.2009.
DATE OF RESERVING ORDER : 03.04.2014.
DATE OF DECISION : 10.05.2014.
J U D G M E N T
Case of Prosecution:
1. Brief facts of the prosecution case are that on 02.09.2009 ASI Arvind Kumar along with Ct. Kuldeep was on duty in PCR. At SC No. 04/2010 State Vs Neeraj etc. Page No. 1 of 21 around 11 PM when they reached near Nagalimanchi Bus Stand Ring Road New Delhi they found crowd of people. One person namely Nitin met them and handed over one person namely Neeraj from whose possession one brown colour purse and two credit cards, one of City Bank and another of SBI were recovered. Injured Nitin was taken in PCR Van to hospital. Motorcycle of Neeraj bearing no. DL 5S V 6725 and motorcycle of Nitin bearing number DL 7S AD 7107 were taken into possession by the police. Thereafter, on receiving DD No. 41 PP Sarai Kale Khan ASI Arvind Kumar reached at RML Hospital and collected the MLC of injured Nitin and doctor declared injured Nitin fit for statement. Thereafter statement of injured Nitin was recorded wherein he stated that on 02.09.2009 he was coming back from his office situated at Lajpat Nagar by bike bearing number DL 7S AD 7107. At about 10.15 PM he reached in front of Gate No. 4, Indraprastha Park, Ring Road, New Delhi and stopped there to attend nature call. In the meantime, two boys came there. One of them kept scissor on his back hip and other boy put knife on his stomach. The demanded all the articles and money from him. The person who had put a pair of scissor on his back picked up his mobile phone Nokia 5800 from his right side pocket of pant, also picked his wallet containing four credit cards of City Bank, ICICI, SBI and HSBC, Rs. 5400/ in cash, two debit cards, driving license, PAN Card and Registration Certificate (RC) of his motorcycle. He stated that initially he declined to hand over his wallet to that boy then other boy who was carrying knife, stabbed him with knife in his abdomen. After robbing and causing injuries to him, accused persons fled away towards ITO side on their bike. They showed him knife and told that if he would chase SC No. 04/2010 State Vs Neeraj etc. Page No. 2 of 21 them they would harm him. He raised alarm. There was traffic jam and one boy namely Neeraj was apprehended by the public persons with his help. The other boy fled away from the spot. On the statement of the injured, case was registered. Accused Neeraj was arrested. Site plan was prepared at the instance of injured. Other coaccused Amar Singh was searched but could not be found. NBWs were got issued from the court but he could not be traced. Thereafter, statement of witnesses were got recorded by the Investigating officer and after completion of investigation, charge sheet under Section 392/394/397/411/34 IPC was filed against the accused in the court.
2. Since the offence under Section 397 IPC is exclusively triable by the court of Sessions, therefore, after supply of documents, Ld. Metropolitan Magistrate committed the case to the court of Sessions.
3. On 22.01.2011 supplementary charge sheet of accused Amardeep was filed in the court and as the main charge sheet was committed to the concerned court of sessions on 27.01.2011 the supplementary charge sheet was also committed to the concerned court of sessions.
Charge against the accused:
4. Prima facie case under section 392/34 IPC, 394/34 IPC, 397 IPC & 411 IPC was made out against the accused Neeraj. Charge under Section 392/34 IPC, 394/34 IPC, 397 IPC & 411 IPC was framed upon the accused by the Ld. Predecessor on 02.02.2010 to which he pleaded not guilty and claimed trial.
5. Prima facie case under section 392/34 IPC, 394/34 IPC & SC No. 04/2010 State Vs Neeraj etc. Page No. 3 of 21 397 IPC was made out against the accused Amardeep. Charge under Section 392/34 IPC, 394/34 IPC & 397 IPC was framed upon the accused by the Ld. Predecessor on 02.02.2011 to which he pleaded not guilty and claimed trial.
Witnesses Examined:
6. In support of its case, prosecution has examined nine witnesses in all. The brief summary of the deposition of the prosecution witnesses is as under: Material Witnesses:
7. PW1 is Nitin Chaddha who deposed that on 02.09.2009 he was coming back from his office situated at Lajpat Nagar by bike bearing number DL 7S AD 7107. At about 10.15 PM he reached in front of Gate No. 4, Indraprastha Park, Ring Road, New Delhi and stopped there to attend nature call. In the meantime, two boys came there. One of them kept scissor on his back hip and other boy put knife on his stomach. They demanded all the articles and money from him. The person who had put a pair of scissor on his back picked up his mobile phone Nokia 5800 from his right side pocket of pant, also picked his wallet containing four credit cards of City Bank, ICICI, SBI and HSBC, Rs. 5,400/ in cash, two debit cards, driving licese, PAN Card and Registration Certificate (RC) of his motorcycle. He stated that initially he declined to hand over his wallet to that boy then other boy who was carrying knife, stabbed him with knife in his abdomen. Witness has correctly identified the accused who had put scissors on his back and picked his mobile phone and wallet. Witness stated that after robbing and causing injuries to him, both the accused fled SC No. 04/2010 State Vs Neeraj etc. Page No. 4 of 21 away towards ITO side on their bike. They showed him knife and told that if he would chase them they would harm him. He raised alarm.
There was traffic jam and one boy, accused present in the court, was apprehended by the public persons with his help. The other boy fled away from the spot. Accused who is present in the court had handed over his mobile phone and wallet to other boy. Accused was searched and his two credit cards of SBI and City Bank and brown colour wallet was recovered from accused Neeraj. He informed the police and police reached there. Police then took him to RML Hospital where he was medically examined. Police recorded his statement Ex.PW1/A. His motorcycle was seized and later on was got released on superdari by his father vide superdarinama Ex.PW1/B. Witness has correctly identified the case property i.e. Ex.P1(colly). He stated that motorcycle bearing number DL 7S AD 7107 was brought by him in the court. Ld. Counsel for accused has no objection for the same and the same was Ex.PW2. He stated that he had shown the place of incident to the police after his discharge from the hospital and police prepared the site plan. Accused Neeraj was correctly identified by the witness in the court.
On 28.04.2011 PW1 Nitin Chaddha was recalled for further examination qua accused Amardeep in supplementary chargesheet, who was earlier declared PO. He further deposed that IO prepared the pullanda of the wallet and credit cards from accused Neeraj and took into possession the same vide seizure memo Ex.PW2/A. He stated that out of confusion he had told the police that two persons ran away after parking the bike at road side, however the accused persons were two only. Witness correctly identified the accused who had fled away from the bus SC No. 04/2010 State Vs Neeraj etc. Page No. 5 of 21 stand near redlight prior to Pragati Maidan as Amardeep. Police had seized his motorcycle vide seizure memo Ex.PW2/C.
8. PW8 is IO/ASI Arvind Kumar who deposed that on 02.09.2009 he along with Ct. Kuldeep were present in the area for attending the PCR calls. At about 11 PM when they reached near Naglimachi Bus Stand near Ring Road they saw crowd of persons. On reaching there, one person namely Nitin met them and produced accused Neeraj along with recovered brown colour wallet having two credit cards of Citi Bank and SBI. They enquired and found that Nitin was injured and blood was oozing out from his wounds. He sent Nitin to hospital through PCR. In the meantime, he also received DD regarding the admission of the injured Nitin in the hospital. He reached there along with Ct. Kuldeep and collected the MLC of the injured. After declaring fit for statement by the doctor, he enquired Nitin/injured vide his statement already Ex.PW1/A and made endorsement Ex.PW8/A. He perpared rukka and handed over the same to Ct. Kuldeep to send the same to PS H.N. Din who came back to spot and handed over the copy of FIR and original rukka to him. He seized brown colour purse containing two credit cards and prepared the pullanda sealed with the seal of AKS and took into possession vide Ex.PW2/A. At the time of leaving the spot for the first time, accused Neeraj was sent to police post Sarai Kale Khan along with motorcycle. He seized the motorcycle of accused Neeraj bearing number 6725 vide seizure memo Ex.PW2/B and motorcycle of complainant Nitin vide seizure memo Ex.PW2/C. Thereafter, accused Neeraj was interrogated and arrested by him vide arrest memo Ex.PW2/E and conducted his personal search memo already Ex.PW2/F , recorded SC No. 04/2010 State Vs Neeraj etc. Page No. 6 of 21 his disclosure statement Ex.PW2/G, seized the sealed parcel duly sealed with the seal of hospital vide Ex.PW2/H . Accused Neeraj took them to the area of Seemapuri for arresting the accused Amar Singh but he could not be found. On 06.09.2009 complainant Nitin took them to place of incident and he prepared the site plan Ex.PW8/B. He recorded the supplementary statement of complainant Nitin who stated that there were two accused persons only. He tried to locate other coaccused Amar Singh but could not be found. After completing the process he filed the challan against both the accused persons in which Amar Singh was shown PO. On 28.10.2010 he along with Ct. Amit were on patrolling duty in the area of I.P. Park, Sarai Kale Khan where one secret informer met us and informed that one of the accuesd who was PO in this case would be coming at Gate no.10 of I.P. Park and was wearing white pant and black and white shirt. Thereafter on the pointing out of secret informer, arrested the accused Amar Singh @ Amardeep vide arrest memo Ex.PW7/A, prepared personal search memo Ex.PW7/B, recorded his disclosure statement Ex.PW7/C. Accused was sent to lock up after his medical examination. Accused Amar Singh refused for TIP proceedings. During police custody, disclosure statement of accused Amar Singh was again recorded vide disclosure memo Ex.PW8/C. Accused Amar Singh pointed out the place of incident vide pointing out memo Ex.PW7/D. Accused Amar Singh @ Amardeep took them to his house for recovery of knife but the same could not be recovered. Complainant Nitin met them and got identified the accused Amar Singh @ Amardeep. Complainant's supplementary statement was also recorded. Both the accused were correctly identified by the witness. Case property was duly identified by SC No. 04/2010 State Vs Neeraj etc. Page No. 7 of 21 the witness.
Formal Witnesses:
9. PW2 is Ct. Kuldeep Singh who deposed that on 02.09.2009 he was posted at Police Post Sarai Kale Khan PS H.N. Din. At about 11 PM he along with IO/ASI Arvind Kumar was on patrolling duty. During patrolling, they reached at Nangli Machi Bus Stand, Ring Road where some public persons were found gathered. Complainant Nitin Chaddha met them and handed over one person to the IO, whose name was revealed as Neeraj. One brown colour purse and two credit cards of City Bank and SBI were recovered from the possession of accused Neeraj. IO sealed the same in a parcel with the seal of AKS and seized it vide seizure memo Ex.PW2/A. IO had also seized two motorcycles Hero Honda Passion bearing number DL 4 SV 6725 of accused Neeraj and Honda Unicorn bearing number DL 7S AD 7107 of complainant Nitin Chaddha from the spot and prepared the seizure memo Ex.PW2/B and Ex.PW2/C respectively. IO received DD No. 41 from RML Hospital and reached there. The MLC of Nitin Chaddha, complainant, was collected by the IO who seized the pullanda containing one shirt of injured/complainant vide seizure memo Ex.PW2/D. Complainant/injured was declared fit for statement. IO then recorded his statement and at about 1.10 AM had handed over the tehrir for registration of the FIR. After registering the FIR, PW2 brought the copy of FIR with the rukka and handed over the same to IO. IO then arrested the accused Neeraj vide arrest memo Ex.PW2/E and personal search of accused Neeraj was conducted vide personal search memo Ex.PW2/F and disclosure statement of accused SC No. 04/2010 State Vs Neeraj etc. Page No. 8 of 21 was recorded vide disclosure memo Ex.PW2/G. They searched the scissor, coaccused Rakesh and Amar Singh but could not found them. Case property was deposited in the Malkhana and his statement was recorded by the IO. Accused Neeraj was correctly identified by the witness in the court.
On 13.07.2012 PW2 Ct. Kuldeep Singh was recalled for further examination qua accused Amardeep in supplementary chargesheet, who was earlier declared PO. He has identified the case property in the court which is Ex.P1 (colly), Ex.P2.
10. PW3 is W/ASI Renu Bala who deposed that on 03.09.2009 at about 1.55 PM Ct. Kuldeep Singh brought rukka for registration of FIR and on the basis of which, she registered the FIR and made endorsement on the rukka Ex.PW3/A. He proved the computerized copy of the FIR Ex.PW3/B and stated that he handed over the rukka and copy of FIR to Ct. Kuldeep.
On 27.07.2011 PW3 W/ASI Renu Bala was recalled for further examination qua accused Amardeep in supplementary chargesheet, who was earlier declared PO. She deposed on the lines earlier given by her dated 28.01.2011.
11. PW4 is Smt. Ramwati who deposed that he is the registered owner of motorcycle bearing number DL 5 SV 6725 Hero Honda Passion. The said motorcycle was released to her on superdari. She obtained the motorcycle vide superdaginama Ex.PW4/A and her statement was recorded by the IO to this effect.
12. PW5 is Ct. Gangadhar who deposed that on 10.11.2011 he along with ASI Arvind Shah searched the accused Amardeep but despite SC No. 04/2010 State Vs Neeraj etc. Page No. 9 of 21 efforts he could not be found. Again said, infact accused Amardeep was with them. They had gone in search of knife but no knife or any other article was found recovered. Accused Amardeep was correctly identified by the witness.
13. PW6 is Ct. Vinay Kumar who deposed that on 10.11.2010 he along with Ct. Gangadhar and IO Arvind Kumar along with accused Amardeep had gone to B446, New Seemapuri, Delhi in search of a knife but no knife could be found despite their search. They then returned to AIIMS Hospital and accused Amardeep was got medically examined. Accused Amardeep was correctly identified by the witness in the court.
14. PW7 is HC Amit Kumar who deposed that on 28.10.2010 he joined the investigation of the case with IO. He stated that they were on patrolling and were present near Indraprastha Park. At about 5 PM secret informer informed that one person in black and white Tshirt and white plant is coming from the side of gate no.2 towards gate no.1 of the park and is wanted in a case of PS H.N. Din. They apprehended him at the pointing out of secret informer who on interrogation told his name as Amar Deep @ Amar Singh. After confirming his involvement from PS H.N.Din, IO arrested the accused Amar Deep vide arrest memo Ex.PW7/A and prepared his personal search memo Ex.PW7/B, made his disclosure statement Ex.PW7/C and pointing out memo Ex.PW7/D. Medical Witnesses:
15. PW9 is Dr. D. S. Chauhan who stated that he can identify the signature and handwriting of Dr. Meenu Chaudhary. He deposed that injured Nitin Chaddha was brought to the casualty and Dr. Meenu SC No. 04/2010 State Vs Neeraj etc. Page No. 10 of 21 Chaudhary had medically examined him and prepared detailed MLC Ex.PW9/A. On examination, the incised wound of 23 x 1 cm with bleeding in epigastric region were found.
Statement and Defence of accused persons :
16. Statement of accused under Section 313 Cr.P.C was recorded wherein the accused denied the case of the prosecution and stated that it is a false case and the witnesses are tutored. Accused Neeraj has stated that case property has been planted upon him. He stated that the motorcycle was registered in the name of his mother and he was coming from the house of his mausi at Faridabad and going to his house situated at B495, New Seemapuri, Delhi. When he reached at Redlight at Pragati Maidan, two persons came from behind and tried to sit on his bike forcibly in the meanwhile public persons came and the said two persons fled away from there and he was falsely implicated in the present case. Accused Amardeep has stated that it is a false and blind case and he has been falsely implicated in this case. Both the accused further stated that they do not wish to lead defence evidence.
17. I have heard the Ld. Defence counsel for the accused and Ld. APP for state and have carefully perused the record. Arguments of Ld. APP for state:
18. Ld. APP for the state has argued that accused Amardeep @ Amar Singh has refused to join the TIP proceedings and as such an adverse inference is to be drawn against him. To effect the offence under section 397 IPC it is not necessary that the weapon of offence should be recovered with the injuries on the person of the complainant are duly SC No. 04/2010 State Vs Neeraj etc. Page No. 11 of 21 proved by the concerned doctor. It is also argued that Section 397 IPC punishes use of weapon or causing of grievous hurt or attempt to cause grievous hurt etc. which all the three clauses are exclusive to each other. It is also argued that how the credit card of the complainant were recovered from accused Neeraj if the original robbers fled away from the spot. It is also argued that there is no previous enmity between the parties due to which accused will be falsely implicated by the complainant. It is also argued that it is the accused Neeraj who led the police to accused Amardeep @ Amar Singh otherwise he could not have been apprehended. It is stated that under the influence of Anesthesia the complainant had earlier made a wrong statement to the police resulting in discrepancy in the number of accused persons which is duly explained in the supplementary statement of the complainant. Hence, it is stated that the accused persons be convicted.
Arguments of Ld. Defence Counsel for accused:
19. On the other hand, Ld. counsel for accused Amardeep @ Amar Singh has argued that the arrest of the accused is shrouded with mystery. It is stated that complainant in his statement has not identified him as person who stabbed him. No recovery is effected from this accused hence, he be acquitted.
It is argued by the counsel for accused Neeraj that there is discrepancy in the statement of the complainant with regard to the proof of accused persons who are allegedly involved in the incident because in the main complaint PW1 speaks about three boys to be involved in the incident but in supplementary statement two boys are spoken of to be SC No. 04/2010 State Vs Neeraj etc. Page No. 12 of 21 involved in the incident. No public persons has been joined at the time of apprehension of accused Neeraj nor any person has signed on the recovery memo of the articles. It is also not clear if a person with a knife blow can chase the accused persons with injuries on his abdomen. It is further argued that the complainant states in his statement before the court that the money from the wallet was given by accused Neeraj to the coaccused who fled away from the spot. This statement does not appear to be natural since why the accused would give only money and why he would not give the entire wallet of the coaccused when he was having the apprehension that he will be apprehended on the spot. The recovery was already effected by the complainant and since no public witnesses joined it becomes doubtful. PW2 in his statement before the court has stated that they searched for three persons, one of them was Rakesh but who is Rakesh is not made clear by the prosecution. As per the statement of the IO it is the complainant who has handed over the accused purse and credit card. No recovery of scissor / knife has been effected in this case so as to show that the weapon was deadly and when the recovery of scissor / knife we cannot say that the weapon was a deadly weapon so as to attract the provision of Section 392 IPC. It is stated that accused has been falsely implicated in this case though he was only passing by that side on his motorcycle when accused persons came and sit on his motorcycle but as there was traffic jam he could not move away his motorcycle, they ran away but accused Neeraj was apprehended by the complainant. Hence, it is stated that the prosecution story is doubtful and as such, accused should be acquitted. The counsel for accused Neeraj has cited judgment :
1. Dilawar Singh Vs State of Delhi AIR 2007 Supreme Court 3234.
SC No. 04/2010 State Vs Neeraj etc. Page No. 13 of 21
2. Ashfaq Vs State (Govt. of NCT of Delhi), AIR 2004 Supreme Court 1253.
3. Phool Kumar Vs Delhi Administration AIR 1975 Supreme Court 905.
4. Ramu @ Raju & Anr. Vs State Crl. A. No. 874/2009 & 4 of 2010 decided on 03.12.2010.
5. Ajay @ Ajju Vs State of Delhi Crl. Rev. No. 640/2006 decided on 18.09.2006.
6. Surinder Vs State Crl. A. No. 527/2002.
7. Jamil Ahmed @ Jamilluddin Vs State W.P. (Crl) 2368/2006.
8. Jagdish etc. Vs The State 1985 Crl. L.J. 1621 Crl. Appeals No. 109/1984 and 236/1983.
9. Raja Vs The State 1986 Crl. L.J. 285 Crl. A. No. 421/1983.
10. Samiuddin @ Chotu Vs The State of NCT of Delhi Crl. A. No. 461/2006.
Conclusion:
20. To prove an offence under Section 392 IPC, the prosecution has to prove the essential ingredients:
1) Accused committed theft as defined in Sec.378 in the process;
a) Accused caused or attempted to cause to some persons
(i) death, hurt or wrongful restraint.
(ii) fear of death or of instant hurt or instant wrongful restraint;
b) Accused did either act
(i) in committing such theft, or SC No. 04/2010 State Vs Neeraj etc. Page No. 14 of 21
(ii) in order to commit theft, or
(iii) in carrying away or attempting to carry away the property obtained by such theft.
2) Accused committed extortion if at the time of committing the same :
(i) He is in the presence of the person put in fear and;
(ii) by putting that person in fear of death or of instant hurt or instant wrongful restraint to that person or to some other person;
(iii) and by so putting in fear induces him to deliver up the thing extorted.
3) Accused acted voluntarily.
21. To prove the offence under section 394 IPC the prosecution has to prove : If any person in committing or in attempting to commit robbery voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
22. Similarly, for proving an offence under Section 397 IPC, the prosecution has to prove the following ingredients:
(a) Robbery or dacoity is committed.
(b) At the time of committing robbery or dacoity the offender
(i) uses any deadly weapon, or
(ii) causes grievous hurt to any person, or
(iii) attempts to cause death or grievous hurt to any person.
23. The court while evaluating facts of the case is supposed to SC No. 04/2010 State Vs Neeraj etc. Page No. 15 of 21 form opinion about the credibility of the witness examined in the case. The judge has to form his own estimate of the evidence produced before him and to articulate an opinion about the credibility of the witness.For the purpose of assessing the credibility, the court has to consider the evidence of a witness to find out as to how he has fared in the cross examination and what impression is created by his evidence, taken in context of other facts of the case. Law recognizes following ways in which the evidence of a witness can be termed unreliable:
a) the witness statement is inherently improbable or contrary to the course of nature,
b) his deposition contains mutually contradictory or inconsistent passage,
c) he is found to be bitter enemy of the opposite party,
d) he is found not to be a man of veracity,
e) he is found to have been bribed or accepted any other corrupt inducement to give evidence and,
f) his demeanor, while under examination, is found abnormal and unsatisfactory.
24. The star witness of this case is PW1 Nitin Chadha who has specifically deposed that on 02.09.2009 he was coming back from his office and when he reached at about 10.15 PM in front of Gate No.4, Indraprastha Park, he stopped for attending the natural call. In the meantime two persons came there. One of them put scissor on his back and the other person put knife on his stomach and asked him to give whatever he was having. The person who put scissor on his back took out his wallet from the back and the mobile phone from right side pocket of SC No. 04/2010 State Vs Neeraj etc. Page No. 16 of 21 the pant and when he was trying to take out the cell phone PW1 tried to object upon which the accused who was having knife gave knife blow on his stomach. After robbing him the accused persons ran away from the spot with his belongings on the bike whereupon PW1 raised noise and chased them and on hearing the alarm public persons had apprehended one of the accused with the help of PW1 near the bus stand prior to Pragati Maidan, Ring Road Line as there was traffic jam on the road. However one of the accused managed to escape. PW1 further deposed that the person who was apprehended, from him a wallet along with credit cards were recovered. The PCR was called and the accused was handed over along with articles to the IO whereafter PW1 was taken to RML Hospital for the medical examination. In the court the witness has pointed towards the accused Neeraj to be the person who was apprehended by the public persons. He has also identified other accused Amardeep as the other person who had fled away from the spot. The witness has again stated that 06.09.2009 after being discharged from the hospital, he again came to the police station and thereafter went with the police to the spot where the IO got prepared the site plan. He has also stated that out of confusion he has told the police that three persons ran away after parking bike at the road side however the accused persons were two only. The witness has correctly identified his wallet and two credit cards. In his cross examination also, he has also stated that at the time when he sustained knife blow and the accused persons warned him, he realized that the accused persons were two in numbers. He has also explained that at the time when he had made statement to the police he was on the bed in the hospital and in the influence of anesthesia so he SC No. 04/2010 State Vs Neeraj etc. Page No. 17 of 21 could not have made the correct statement. He has also stated in his cross that in the scuffling he could see that the weapon behind his back was scissor. He has also stated that so far as he remember person who had put scissor on him has removed his purse and the other person had removed his cell phone. The said purse containing the credit cards of witness/PW 1 was recovered on the spot from the possession of the accused Neeraj who was apprehended on the spot by the complainant with the help of public persons. It means that it was accused Neeraj who had used scissor and the other accused Amardeep who had used knife in the incident. The case of the prosecution is also that accused Neeraj used scissor and Amardeep used knife in the offence. The statement of PW1 conclusively prove the said fact.
25. Though the weapon of offence i.e. knife has not been recovered nor the IO could recover the scissor in this case but from the statement of the complainant it is proved that he got dangerous injuries from the knife blow given by the accused. The MLC of the PW1 is also proved on record by PW9 Dr. D.S. Chauhan. In the MLC he had opined that there was an incised wound of 23 x 1 cm with bleeding in epigastric region were found. I have also seen the MLC wherein the injuries are opined as dangerous by the doctor. IO has stated in the court that the injured was operated upon for the injuries and when he was declared fit on the next day he recorded the statement of the complainant and got the FIR registered. Hence, the statement of the complainant that when he made the statement to the police firstly, he was under the influence of Anesthesia and that is why he has mentioned in his statement that there were three accused, is acceptable and appears to be plausible. The SC No. 04/2010 State Vs Neeraj etc. Page No. 18 of 21 necessary correction is made in the number of accused persons by the complainant himself when after his discharge from the hospital on 06.09.2009, he went to the police and had given his supplementary statement stating that in fact there were two accused.
26. It is also worthwhile to mention that in the present case co accused was apprehended after his name was disclosed by the accused Neeraj who was apprehended red handed on the spot. Though, the weapon of offence is not recovered in this case but the injuries are duly proved on the person of the complainant. The IO has found during the investigation that it was accused Amardeep who had used knife which caused injuries. Section 397 IPC also punishes the causing of grievous hurt upon offender while committing the robbery. The accused Amardeep had even refused for TIP and the same will also go against the accused and an adverse inference is to be drawn against him in this trial.
27. During course of arguments, Ld. Counsel for accused Neeraj has also stated that a person with a knife wound/blow on his stomach cannot chase the accused and thus the story of prosecution that complainant had apprehended accused Neeraj with the help of public person after chasing him creates doubt. In this regard the statement/cross examination of PW9 Dr. D.S. Chauhan is relevant who has stated that normally after receiving such injury, a patient can walk or run for 34 hours and normally remains in senses. Hence in view of the statement of PW9, the arguments of Ld. Counsel for accused Neeraj has no merit.
28. Both the accused are duly identified in the court by the complainant. Both the accused do not say that there was any previous enmity between the complainant and them due to which the complainant SC No. 04/2010 State Vs Neeraj etc. Page No. 19 of 21 has falsely implicated them in this case. If there was no previous enmity there was no occasion for the complainant to falsely rope in the accused persons in this case. Accused Neeraj along with the wallet of complainant was apprehended red handed on the spot by the complainant himself with the help of passersby and the coaccused Amardeep was arrested at his instance only.
Defence of the accused persons:
29. As per the defence of the accused Neeraj, he was going on his motorcycle when the two real offenders sat on his motorcycle after coming from behind forcibly and in the meanwhile the public persons came and two said accused persons fled away from the spot. No witness is produced by the accused in this regard. The defence taken by the accused does not appears to be probable because he was apprehended by the complainant and the public persons on the spot itself and the recovery of the wallet of the complainant containing the credit cards of the complainant was recovered from his possession. The accused is silent as to how he came in possession of these belongings of the complainant. The other coaccused has simply stated that he has been falsely implicated without taking any specific defence.
30. From the statement of the complainant duly corroborated by the medical evidence, the recovery of the articles of complainant from accused Neeraj who was apprehended red handed on the spot, their due identification by the complainant in the court, the TIP refusal of accused Amardeep, the ruling out of enmity between the parties, all go to prove the case of the prosecution beyond doubt against the accused persons.
SC No. 04/2010 State Vs Neeraj etc. Page No. 20 of 21 The statement of the complainant is credible, convincing, trustworthy and there is nothing on record to disbelieve his statement. A minor variation in his statement with regard to number of accused persons involved in the incident does not shake the veracity of statement of the complainant as the cause of variation in the number is sufficiently explained by the complainant in his statement in the court that as he was operated upon and under the influence of anesthesia when his statement was recorded by the IO after his operation and hence he could not make the correct statement. The number of the accused persons involved in the incident is rectified by complainant in his supplementary statement which was recorded soon after his discharged from the hospital on 06.09.2009.
31. Hence, in view of above discussion, it is proved that both the accused in furtherance of their common intention robbed the complainant and in the process caused grievous hurt upon the person of the complainant Nitin Chaddha. Both the accused are held guilty and convicted for the offence under Section 392/394/34 IPC. In addition, from the evidence it is proved that accused Amardeep had used knife in committing robbery and caused injuries to the complainant hence he is held guilty and also convicted for the offence under Section 397 IPC. ANNOUNCED IN THE OPEN COURT ON 10.05.2014.
( RENU BHATNAGAR ) DESIGNATED JUDGE TADA/POTA/MCOCA ASJ SE01/NEW DELHI SC No. 04/2010 State Vs Neeraj etc. Page No. 21 of 21