Delhi District Court
State vs Rahul on 13 August, 2024
IN THE COURT OF SH. NAVJEET BUDHIRAJA
ADDITIONAL SESSIONS JUDGE-02, SOUTH DISTRICT
SAKET COURTS: DELHI
SESSIONS CASE NO.509/2018
CNR No: DLST01-006509-2018
FIR No. 349/2018
Police Station: Saket
Under Section: 392/397 IPC
STATE
VERSUS
RAHUL
S/O SH. RAJBIR SINGH
R/O H. NO. B-36
HAUZ RANI, MAVLIYA NAGAR
NEW DELHI
Date of assignment : 18.09.2018
Date of Reserving judgment : 26.07.2024
Date of Pronouncement : 13.08.2024
Decision : Convicted under section
392 IPC
JUDGMENT
In succinct, as per prosecution version, on 08.06.2018, when Assistant Sub Inspector (ASI) Mukesh Kumar was on emergency duty, he received one daily diary (DD) no. 41A in respect of snatching of money, whereafter, he along with Head Constable (HC) Amar Chand went to the spot i.e. Yes Bank ATM, Near Malviya Nagar Metro Station. During investigation, they came to know that one boy had snatched Rs.4000/- from one lady after pushing her and during the said act, the said lady was Digitally 1 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:07:31 +0530 injured and went to the hospital. Thereafter, ASI Mukesh Singh along with HC reached Madan Mohan Malviya Hospital where complainant Alka, D/o Sh. Rotash, R/o E-12/110, Hauz Rani, Malviya Nagar, Delhi met who told that she was undergoing treatment and will give her complaint in the police station. Complainant then gave her written complaint to ASI Mukesh Kumar who was present in the police station at that time who then got the case registered under section 392 Indian Penal Code, 1860 (IPC).
2. Further investigation of the case was marked by the concerned Station Housse Officer (SHO) to SI Rakesh Kumar (IO) who during investigation collected the copy of first information report (FIR) and obtained the medico legal case (MLC) of the complainant, the result of which was pending. IO then connected with the complainant who reached Yes Bank Near Malviya Nagar Metro Station and at her instance, site plan of the place of incident was prepared but whereabouts of the accused could not be found. IO then showed the dossier of the other accused persons and photographs but complainant could not identify the assailant at that time but claimed to identify the said person if shown to her. Statement of witnesses under section 161 Code of Criminal Procedure, 1973 (Cr.P.C) was recorded, CCTV footage of the date of the incident i.e. 08.06.2018 from 08:15pm to 08:40pm was collected upon notice under section 91 Cr.P.C served to Branch Manager, Yes Bank, E Block, Saket, New Delhi in the form of a compact disk (CD).
3. During further investigation, IO received an intimation vide 2 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:07:39 +0530 DD no. 45B dated 20.06.2018 by ASI Sahab Singh in case FIR no. 364/18 PS Saket wherein the arrested person confessed about the commission of the crime in this case. IO then interrogated the arrested person Rahul who confessed to his involvement and was consequently arrested. Accused then pointed out the place of incident and also got recovered his jeans pant from one basket from his house which he wore on 08.06.2018 at the time of incident. The shirt that he was wearing at that time could not be found as accused had claimed to have thrown the same near Max Hospital, Saket. Accused also refused to participate in Test Identification Parade (TIP) proceeding but the complainant identified him while he was being taken out of the Saket Court that he was the person who snatched Rs.4000/- from her. Further statement of the complainant under section 161 Cr.P.C was then recorded. MLC result of the complainant was also collected which was opined to be grievous blunt and section 394/397 IPC was added in the place of section 392 IPC and accused was charge sheeted under the said sections.
4. The court of Ld. ACMM, South, Saket took the cognizance of the offence on 14.09.2018 and after supplying the copy of charge sheet to the accused, committed the case to the court of Sessions, which then appointed legal aid counsel Sh. Rajesh Gulati to represent the accused and after hearing arguments on charge, charge under section 392/397 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
Digitally signed by NAVJEET NAVJEET BUDHIRAJ 3 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 BUDHIRAJ Date:
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5. Prosecution examined nine (09) witnesses in its favour.
A. PW1 is Ms. Alka who is the complainant in the present case. She deposed on the lines of her complaint. She got marked her complaint Ex.PW1/A. She also got marked the clip Ex.P1 and CD Ex.P2 wherein the accused was depicted entering into the ATM and did hathapai with her and after pushing her ran away with her money. She correctly identified the accused during her deposition. She was cross examined on behalf of the accused.
B. PW2 is Sh. Gaurav Wadhwa who was the Branch Manager of Yes Bank, Saket, New Delhi. He got marked his letter as Ex.PW2/A, seizure memo of certificate under section 65B of Indian Evidence Act and his letter as Ex.PW2/B, letter dated 24.07.2018 as Ex.PW2/C, certificate under section 65B of Indian Evidence Act as Ex.PW2/D. He also deposed about CD already Ex.P2 and clip already Ex.P1. He was cross examined on behalf of the accused. C. PW3 is Dr. Piyush Mishra, SR Medicine, JPNATC, AIIMS, New Delhi who deposed on behalf of Dr. Pushpender Yadav who left the services of the hospital and whose whereabouts were not known. He got marked the MLC as Ex.PW3/A wherein the nature of injury given as grievous caused by blunt object. He was cross examined on behalf of the accused.
D. PW4 is SI Shiv Singh who deposed that he joined the investigation with IO SI Rakesh. He got marked the seizure memo of CD of CCTV footage along with a letter as Ex.PW4/A. He also deposed 4 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:07:54 +0530 about the CD already Ex.P2, clip already Ex.P1 and letter of Yes Bank already Ex.PW2/A. He further deposed that on 21.06.2018, he again joined the investigation. He got marked the arrest memo as Ex.PW4/B, personal search memo as Ex.PW4/C, disclosure statement as Ex.PW4/D, pointing out memo as Ex.PW4/E, supplementary disclosure statement of accused as Ex.PW4/F, pant of accused as Ex.PW4/G. He correctly identified the accused during his deposition. He correctly identified the case propety i.e. black colour jeans as Ex.PW4/P1. He was cross examined on behalf of the accused.
E. PW5 is HC Pooran Mal who got marked the copy of computerized copy of FIR as Ex.PW5/A, his endorsement as Ex.PW5/B and certificate under section 65B of Indian Evidence Act as Ex.PW5/C. He further got marked the copy of DD no.41A as Ex.PW5/D. He was cross examined on behalf of the accused.
F. PW6 is SI Amar Chand who deposed about the receiving of information vide DD no. 41A and investigation carried out by the IO as he was with the then IO ASI Mukesh. He was cross examined on behalf of the accused.
G. PW7 is ASI Mukesh who deposed about registration of the complaint already Ex.PW1/A which was given by the complainant. He got marked his endorsement on the rukka which was prepared by him as Ex.PW7/A. He was cross examined on behalf of the accused. H. PW8 is Retired ASI Sahab Singh who got marked the DD No. 45B as Ex.PW8/A, copies of documents pertaining to the arrest of the accused i.e. Copy of FIR no.364/18 along with certificate under Digitally
5 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 NAVJEET signed by NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:08:00 +0530 section 65B of Indian Evidence Act as Ex.PW8/B, site plan as Ex.PW8/D, seizure memo of bag as Ex.PW8/D, arrest memo as Ex.PW8/E, personal search memo as Ex.PW8/F, disclosure statement of accused as Ex.PW8/G. He also identified the accused. He was cross examined on behalf of the accused.
I. PW9 is SI Rakesh Kumar who got marked the site plan as Ex.PW9/A which was prepared at the instance of the complainant, bank account statement as Ex.PW9/B, notice under section 91 Cr.P.C as Ex.PW9/C, notice dated 11.06.2018 as Ex.PW9/D. He also deposed about the seizure memo of CD and letter as already Ex.PW4/A, letter of YES Bank already Ex.PW2/A, CD already Ex.P2 and clip already Ex.P1. He also deposed about the documents already Ex.PW8/B to Ex.PW8/G, arrest memo of accused as already Ex.PW4/B, personal search memo as already Ex.PW4/C, disclosure statement of accused as already Ex.PW4/D, poiting out memo of place of occurrence as already Ex.PW4/E, supplementary statement of accused as already Ex.PW4/F. He also got marked the application for TIP as Ex.PW9/E. He also deposed about one letter as already Ex.PW2/C and certificate Ex.PW2/D which was handed over to him by Sh Gaurav Wadhwa and the same was seized by him as already Ex.PW2/B. He correctly identified the case property as already Ex.PW4/P1. He also got marked the pen drive as Ex.PW9/X and certificate under section 65B of Indian Evidence Act as Ex.PW9/F. He correctly identified the accused. He was cross examined on behalf of the accused.
6. The closure of prosecution evidence was followed by 6 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:08:06 +0530 statement of accused under section 313 Cr.P.C wherein he remonstrated most of the incriminating evidence appearing against him, expressed his ignorance as to some parts of the evidence, claimed the CD containing the CCTV footage to be manipulated and that his signatures were obtained on blank papers and that he has been falsely implicated by the police officials in order to solve the case. He chose not to lead any evidence in his defence.
7. Sh. L D Singh, Ld. Additional Prosecutor for the State and Sh. Rajesh Gulati, Ld. LAC for accused advanced the arguments which I shall embark upon during the ensuing discussion on the evidence led by the prosecution and the defence.
8. Prosecution has examined the complainant/injured Ms. Alka as PW1 who deposed that on 08.06.2018, she was deputed on duty at Dominos' Pizza, PVR Anupam, Saket, New Delhi from 11:00am to 08:15pm and while returning to her house on foot via Malviya Nagar Metro Station, she went to ATM of Yes Bank to withdraw money. When the transaction was in progress and she was about to hold the money disbursed from ATM machine then a person entered into the ATM which was identified by her to be the present accused who attacked upon her and slapped her. She tried to save herself from him and scuffle ensued between them and the accused pushed her hard resulting into her collusion with the ATM machine. She sustained injuries on her left hand thumb and second finger from the thumb (middle finger). She further Digitally 7 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:08:11 +0530 deposed that as a result of fall, the purse which she was carrying in her hand containing cash of Rs.2000/- fell out and the accused Rahul took that Rs.2000/- as well as the cash of Rs.2000/- disbursed from the ATM and ran away. PW1 came out from ATM and requested some persons present near the ATM to help her upon which one public person tried to chase the accused but he managed to escape. She then called at 100 number and PCR came at the spot. The fact of withdrawal of Rs.2000/- stands corroborated from the bank statement of the complainant/PW1 from Central Bank of India Ex.PW9/B reflecting the withdrawal of Rs.2000/- through ATM Card on 08.06.2018.
9. On the identification of the accused, evidence of PW1 further reflects that one CD Ex.P2 was played in the open court and the witness identified the clip Ex.P1 wherein the accused was depicted to be entering into the ATM, scuffling with her and after pushing her, ran away with her money. Soon after playing of the CD, there was a court observation which is as under:
"There are number of CCTV clips in the CD-R. The CCTV footage of time 08:30 p.m. to 08:32 p.m. dated
08.06.2010 is depicting accused Rahul entering into the ATM booth and the scene of hathapi and running of accused along with money, after the incident is visible."
10. It is pertinent to note that during the testimony of PW9 ASI Rakesh Kumar, when the CD containing the CCTV footage was to be 8 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:08:17 +0530 played, the same could not be done as the CD was found in broken condition. Thereafter, PW9 produced one pen drive containing the footage of the incident at ATM of YES bank which was played in the court and the same was found containing one video of 44 seconds dated 08.06.2018 and after watching the contents of the video, PW9 identified the complainant and the accused present in the ATM and as soon as complainant withdrew the money from the ATM, accused Rahul grabbed her from behind and snatched her money by throwing the complainant on the floor of the ground forcefully. The testimony of PW9 further reveals that accused was also seen picking up some money which fell on the floor from the wallet of the complainant and thereafter he decamped. The said pen drive was Ex.PW9/X. PW9 also placed on record the certificate under section 65B of Indian Evidence Act in respect of the pen drive which is Ex.PW9/F.
11. In his cross examination, he was questioned as to the production of pen drive Ex.PW9/F containing the CCTV footage, the CD of which was found to be broken during his evidence. The response of PW9 merits reproduction herein:
"It is correct that date is not mentioned on document Ex.PW9/F. I filed document Ex.PW9/F in the Court, however, I do not remember the exact date when I filed the same. It is correct that I did not file document Ex.PW9/F along with the charge-sheet. On 20.06.2018, I copied the CCTV footage of YES Bank ATM in a pendrive when I
9 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:08:23 +0530 went to see the same along with bank officials. I did not file the pendrive along with the charge-sheet. (Voltd. I filed the main source i.e. CD-R of 700 mb of WRITEX containing the CCTV footage of the incident along with charge-sheet.) The pendrive Ex.PW9/X was in my possession."
12. It is noted from the record of the case that at the time of deposition of PW1 on 03.12.2018, the CD containing the CCTV footage of the incident from 08:30pm to 08:32pm was in functional state which was run in the open court and was marked as Ex.P2 containing the clip as Ex.P1, but when PW9 IO SI Rakesh Kumar was examined on 08.05.2023, close to five years after the deposition of PW1, the CD could not be played being found in a cracked condition. It cannot be gainsaid that the CD is a fragile piece of evidence which becomes unplayable if it develops any crack, the possibility of which is not ruled out if the CD is played after many years. Thus, in the eventuality of the CD Ex.P2 not being playable during the testimony of PW9 and certainly at the stage of judgment, the production of the relevant CCTV footage of the incident in the form of a pen drive which was with the investigating officer and marked during his testimony as Ex.PW9/X cannot be said to be out of place. Though, in his cross examination, objections were raised as to the non production of the said pen drive earlier with the charge sheet, however, it would not affect the veracity of the statement of PW1 regarding the incident and identification of the accused as during her testimony the CD Ex.P2 containing the clip Ex.P1 was functional and she had correctly identified the accused.
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13. PW1 was also cross examined on behalf of the accused wherein she did not tergiversate and no circumstances could be elicited which could weigh in favor of the accused. PW1 was queried about the presence of other public persons and the security guard at the ATM, but she categorically stated that no public persons were there in the queue and no security guard was present at the ATM. These statements also stand underpinned from the CCTV footage contained in pen drive Ex.PW9/X in which no public persons or the security guard could be seen present at the time of the incident. PW1 reiterated that her transaction in the ATM was in the process when accused entered in the ATM. She also reiterated in her cross examination that when she came out from the ATM, there were no persons in the queue, two persons were standing near the YES Bank ATM and when she told those two persons about the incident, one of them ran after the accused and after some time, he returned and told her that the accused had escaped. PW1 also iterated that no PCR was stationed nearby the spot, one PCR van came after her call at 100 number and from the hospital she came to PS Saket and presented the written complaint.
14. Regarding the identification of the accused after he was arrested, PW1 deposed in her cross examination that on 21.06.2018, police did not show her any photograph of the accused at Saket Court.
When she came to Saket Court, she saw accused near court room no.215 along with police official ASI Rakesh and one another police official who asked her about the identification of the accused, which she confirmed. She then disclaimed the suggestions that accused did not snatch any 11 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:08:34 +0530 money from her or her purse and that the person depicted in the CCTV footage is not the accused but some other person resembling him.
15. At this juncture, I deal with the contentions on behalf of the accused that the CCTV footage cannot be relied upon as the certificate under section 65B of Indian Evidence Act has not been filed by the competent authority who provided the CCTV footage but was obtained from Mumbai Branch and the identification of the accused by PW1 in Saket Court on 21.06.2018 is also not a legally tenable procedure. In this regard, testimony of PW9 SI Rakesh Kumar, the investigating officer of the case, is worth noting. He stated that on 11.06.2018, he served notice to the Manager, YES Bank, Saket under section 91 Cr.P.C Ex.PW9/D regarding providing the CCTV footage dated 08.06.2018 (08:15pm to 08:40pm) of all the cameras installed in the YES Bank ATM near Malviya Nagar Metro Station. The production of this notice was objected to on behalf of the accused being not part of the charge sheet, however, the said objection is now being decided as rejected as the court in exercise of its power can seek production of any document which is relevant for the just decision of the case. He further deposed that on 20.06.2018, Gaurav Wadhwa (PW2) handed over one CD Ex.P2 along with letter regarding furnishing of required footage of ATM ID ND LN O042 to police official. He played the CD. He took the CD and letter into police possession through seizure memo Ex.PW4/A. The letter of YES bank is Ex.PW2/A, CD as Ex.P2 and clip as Ex.P1. He further deposed that he recorded the statement of Sh. Gaurav Wadhwa under section 161 Cr.P.C.
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16. It is further the deposition of PW9 that on 20.06.2018, he received information from ASI Sahab Singh regarding arrest of accused Rahul in case FIR No. 364/2018. ASI Sahab Singh further informed that accused Rahul had disclosed about commission of offence in the present case FIR No. 349/2018. He also received information from Duty Officer about the arrest of accused Rahul. He further deposed that he moved an application Ex.PW9/E for TIP of accused Rahul. However, he refused to take part in TIP proceedings. Thereafter, accused was produced before the Court concerned and he was remanded to judicial custody. During the time when accused Rahul was being taken to lockup, the complainant had also come and after seeing accused Rahul, she identified him as the perpetrator of offence committed on 08.06.2018. At that time, accused Rahul was not in muffled face since he refused to participate in TIP proceedings. In the cross examination of PW9, it was suggested to him that accused was already shown to the complainant before conducting his TIP proceedings, which was rebuffed by him.
17. The legal position is that in case of refusal of the accused to participate in TIP proceedings, his identification could have been established in the court at the time of deposition of the complainant. The identification of the accused by the complainant in the court premises while he was being taken to the lock up after he refused to participate in TIP proceedings certainly is not a procedure which could be endorsed by the court, however, in the instant case, there is a CCTV footage containing the clip Ex.P1 and pen drive Ex.PW9/X on record which have
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2024.08.13 18:08:44 +0530 conclusively established the identity of the accused, thus, the contention of Ld. LAC of the accused being not identified during the investigation as per the legal procedure would lose its significance. Complainant/PW1 has also identified the accused before the court to be the one who carried out the act of robbery and there is no reason for her to falsely implicate the accused.
18. In so far as admissibility of CCTV footage and Clip Ex.P1 and filing of certificate under section 65B of Indian Evidence Act Ex.PW2/D is concerned, PW9 further deposed that on 24.07.2018 Sh.
Gaurav Wadhwa handed over one letter and Certificate under section 65B of the Indian Evidence Act which he seized through seizure memo as Ex. PW2/B and Ex. PW2/C and Certificate under section 65B as Ex. PW2/D.
19. Prosecution also got examined the said Sh. Gaurav Wadhwa, Branch Manager, YES bank, Saket as PW2 who deposed that on 20.06.2018, with regard to the request made by SI Rajesh Kumar of PS Saket for providing the CCTV footage of ATM ID No. NDLNO042 dtd. 8.6.18 for the period 08:15pm to 08:40pm, after procuring the CCTV footage from the system, the same was supplied to the IO. In this regard, his letter on the letterhead of the bank is Ex.PW2/A. He further deposed that on 24.7.18, he had provided certificate under section 65B of Indian Evidence Act regarding the correct and true record of the CCTV footage of ATM ID No. NDLNO042 dtd. 8.6.18 for the period 08:15pm to 08:40pm. His letter on the letter head dtd 24.7.18 is Ex.PW2/C and the certificate under section 65B of Indian Evidence Act is Ex.PW2/D and he Digitally 14 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:08:49 +0530 identified signatures of Sh. Rohan Nerurkar on the certificate as during daily business transactions, the signatures of Sh. Rohan Nerurkar are appended who is the Chief Technology Officer, whose office is at Mumbai. Their bank used to request the Chief Technology Officer for providing the certificate under section 65B of Indian Evidence Act and same is to be issued by the Chief Technology Officer and same is to be forwarded to the investigating officer under the letter head of their bank as already Ex.PW2/C. PW2 was cross examined on behalf of the accused but in vain.
20. It is also contended on behalf of the accused that the certificate under section 65B of Indian Evidence Act produced by PW2 Gaurav Wadhwa was admittedly procured from Mumbai in the name of Sh. Rohan Nerurkar and not from the local branch of the bank from where the CCTV footage was obtained. This argument does not deserve any consideration as the certificate under section 65B is only to the extent of certifying the functional condition of the instrument from which the electronic evidence is procured so as to rule out any kind of tampering. In this case, the said certificate was obtained from the Chief Technology Officer Sh. Rohan Nerurkar who was based in Mumbai office and being the Chief Technology Officer, he was the apt person to issue the certificate regarding the functionality of the technological device from which the CCTV footage was obtained.
21. Thus, from the deposition of IO PW9 SI Rakesh Kumar and PW2 Sh. Gaurav Wadhwa, Branch Manager, Yes Bank, Saket, the
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2024.08.13 18:08:54 +0530 identity of the accused as the perpetrator of the crime in question has been satisfactorily proved.
22. Now embarking upon the testimony of the material police witnesses who participated in the investigation as under:
22.1. PW7 ASI Mukesh deposed that on 08.06.2018, while he was on emergency duty at PS Saket, on receipt of DD no.41A regarding snatching, he along with HC Amar Chand went to the spot i.e. Yes Bank ATM, near Malviya Nagar Metro Station where it was revealed that a girl was robbed after being pushed who had sustained injuries and who had gone to the hospital. He along with HC Amar Chand went to Madan Mohan Malviya Hospital, Malviya Nagar where complainant was found receiving the treatment who informed that she will give her statement after her treatment. PW7 further deposed that complainant Alka came at PS Saket and gave her written complaint Ex.PW1/A and upon making endorsement on the same, he prepared the rukka Ex.PW7/A which was handed over to Duty Officer for registration of FIR. 22.2. PW5 HC Pooran Mal deposed about the registration of FIR Ex.PW5/A and his endorsement Ex.PW5/B and issuance of certificate under section 65B of Indian Evidence Act as Ex.PW5/C. Digitally signed by NAVJEET NAVJEET BUDHIRAJ Date: BUDHIRAJ 2024.08.13 18:08:59 +0530
23. Apropos the MLC of the injured Ex.PW3/A, Ld. LAC for accused has urged that the MLC of the complainant/injured is not reliable as the same is of 09.06.2018 whereas incident is of 08.06.2018, the
16 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 doctor who had prepared the MLC has not been examined and instead some other doctor had come to depose in his place who could not answer properly and that the injury is shown to be grievous but wounds shown are not such so as to fall within the mischief of section 320 of IPC and no X-ray of the injured was done.
24. MLC of the injured has been proved by PW3 Dr. Piyush Mishra, SR Medicine, AIIMS, New Delhi who was deputed in the place of Dr. Pushpender Yadav who had left the services of the hospital and his whereabouts were not known. PW3 had worked with him and could identify his writing and signature during the course of his official duty. PW3 then got marked the MLC prepared by Dr. Pushpender Yadav as Ex.PW3/A and identified the signatures of Dr. Pushpender Yadav. In my view, there is no hindrance in the MLC Ex.PW3/A being proved by Dr. Piyush Mishra as the whereabouts of Dr. Pushpender Yadav were not known and, therefore, his presence could not be ensured during the trial. Moreover, PW3 Dr. Piyush Mishra had worked with Dr. Pushpender Yadav and could identify his writing and signature, thus, the argument in regard to the non examination of Dr. Pushpender Yadav does not have any force. In this regard, judgment of High Court of Delhi in Kamlesh Vs. State, date of decision 05.01.2023 is worthy to note wherein it was enunciated that MLC can be proved by a colleague doctor who identifies the handwriting and signatures of the doctor who examined the patient or by an administrative staff of the hospital. The relevant paragraphs are extracted herein under:
"13. The contention of the Ld. 17 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:09:08 +0530 counsel for the appellant that in the absence of examination of Dr. Rajender, who has examined the victim and prepared the MLC, the MLC cannot be admitted in evidence is fallacious and has no force in it. Although Dr. Rajender was not examined but PW 7 Dr Monika Chopra was examined who stated that she has seen the MLC Ex. PW 7/A which was prepared by Dr. Rajender. She has also identified the signatures on the MLC Ex. PW 7/A to be that of Dr. Rajender. PW 7 has stated that Dr. Rajender has left the hospital and his whereabouts were not known.
14. The MLC is an authenticated record of injuries which is prepared in regular course of business by the doctor and can be relied upon by the Courts, even when the doctor who prepared the MLC is not examined in the Court and record is proved by any of the other doctor. It cannot be expected from the hospital to keep track of the doctor after he leaves the hospital. Neither the doctor is expected to keep the hospital informed about his /her whereabouts.
Merely because the doctor who prepared the MLC is not personally examined, the MLC cannot be disbelieved. Proving of MLC by a colleague doctor who identifies the handwriting and signatures of the doctor who examined the patient or by an administrative staff of the hospital who identifies the signatures of the doctor is sufficient and good proof and MLC cannot be doubted.
15. In the instant case, it is not the case of the appellant that there is tampering with the MLC and no bias 18 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 has been alleged against the hospital authority or the IO by the appellant.
Therefore, the Ld. Trial Court was fully justified on relying upon the MLC Ex. PW 7/A."
25. Further in so far as the date on the MLC is concerned, since the incident in question, as per statement of injured PW1 took place around 08:30pm on 08.06.2018, by the time she was treated at JPNATC, AIIMS, the date of 09.06.2018 was bound to come. From the MLC Ex.PW3/A, time of arrival and examination is shown to be 12:24:11 though it is not clear whether it was early morning hour or afternoon hour, but this infirmity cannot be said to be fatal enough to discard the MLC of the injured.
26. In so far as the nature of the injury is concerned, though, the same is opined to be grievous in nature and the visible injuries shown in the MLC are 'swelling left hand thumb and index finger' and 'bruise left hand middle finger', however, there is no such finding of the injured suffering any fracture and the wounds 1 and 2 as reflected in the MLC Ex.PW3/A are not such which would fall within the province of grievous injury as defined in section 320 IPC. Thus, on this count, the contention of Ld. LAC for accused is countenanced and accused cannot be held liable for causing grievous injury to the injured, but only for simple injury.
27. The upshot of the foregoing discussion is that the 19 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018 Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:09:16 +0530 prosecution has been able to prove that on 08.06.2018 at about 08:30pm inside YES Bank ATM, near Malviya Nagar Metro Station, accused robbed the complainant while she was in the process of withdrawing cash from the ATM and for that end, he caused hurt to her, thus, the accused Rahul is to be held liable for offence under section 392 IPC. Since there is no evidence that the complainant suffered grievous hurt or that the accused Rahul used any deadly weapon or that he attempted cause death or grievous hurt to the complainant, charge under section 397 IPC does not stand proved. Accused Rahul, thus, stands convicted for offence under section 392 IPC. He shall be heard on the point of sentence.Digitally signed by NAVJEET
NAVJEET BUDHIRAJ BUDHIRAJ Date:
2024.08.13 18:09:21 +0530 Announced in the open (NAVJEET BUDHIRAJA) Court on 13th August, 2024 Additional Sessions Judge-02, South District, Saket Courts, New Delhi 13.08.2024 Certified that this judgment contains 20 pages and each page bears my signatures. Digitally signed by NAVJEET NAVJEET BUDHIRAJ BUDHIRAJ Date: 2024.08.13 18:09:26 +0530 (NAVJEET BUDHIRAJA) Additional Sessions Judge-02, South District, Saket Courts, New Delhi 13.08.2024
20 State Vs. Rahul FIR no.349/2018 PS Saket SC No. 509/2018