Delhi District Court
State vs Md Faim on 7 February, 2024
IN THE COURT OF DR. RAKESH KUMAR
ADDITIONAL SESSIONS JUDGE (FTC-02)
SOUTH EAST DISTRICT, SAKET COURTS: NEW DELHI
CNR No: DLSE01-003958-2017
SC 215/2017
FIR no. 17/2017
PS Sun Light Colony
State
Versus
Mohd. Faim
Son of Khalil,
Resident of 347, L- Block, Street No.5,
Sundar Nagri, Near Nand Nagri, Delhi.
Date of Institution : 19.04.2017
Judgment reserved on : 23.01.2024
Date of Decision : 07.02.2024
JUDGMENT
1. A police report was put up by the State through officer-in-charge of the Police Station Sunlight Colony before the concerned Metropolitan Magistrate with the view to take cognizance of offences under sections 379/397/307 of the Indian Penal Code, 1860 (in short 'IPC') against the accused, namely, Mohammad Faim for having committed the said offences and to proceed with committal of the case.
2. As per the police report on 18.01.2017, this case FIR was registered against the accused Mohammad Faim in Police FIR no. 17/2017 State versus Mohd. Faim Page 1 of 53 Station Sunlight Colony for the offences punishable under sections 379/397/307 IPC.
3. As per the police report, during emergency duty, a PCR Call vide DD No.21A dated 17.01.2017 was marked to Sub Inspector Yogesh and he along with Constable Rakesh reached the spot but the injured persons were already taken to the hospital by PCR Van and no witness could be found on the spot.
4. It is further reported in the police report that on receipt of another DD no.27A dated 17.01.2017, Sub Inspector Yogesh went to the AIIMS Trauma Center where Mohd. Shehzada S/o Mohd. Shaukat Ali R/o A-507, Transit Camp, Govindpuri, New Delhi. aged-19 years and Rampriya Kumar S/o Kailash Chaudhary R/o A-122, Hari Nagar, Ashram, New Delhi. Aged-22 years were found under treatment vide MLC No. 500002451/17 & 500002449/17, dated 17.01.2017 JPNATC, AIIMS, New Delhi and the MLCs were obtained from the hospital; that as per MLCs, alleged H/o Assault and opinion on nature of injury were given as pending investigation; that injured, Rampriya Kumar, having stabbed measuring 2x1x10 cm over left side chest over precordium region was declared unfit for statement, however, injured Mohd. Shehzada was declared fit for statement by the doctor, hence, his statement was recorded.
5. As per the police report, it is, inter alia, stated by Mohd. Shahzada that he resides at Transit Camp Govindpuri, New Delhi as a tenant and he is permanent resident of Village Kisroda, Police Station Hasan Pur, District Samastipur, Bihar;
FIR no. 17/2017 State versus Mohd. Faim Page 2 of 53that he works as Traffic Marshal at Delhi Metro Site, Ashram Chowk and his duty hours are from 08:00 PM to 08:00 AM; that on 17.01.2017 at about 07:30 PM he was traveling bus route no. 429 en-route DDA Flats Kalkaji to Old Delhi Railway Station to attend to his duty and when reached Nehru Nagar he felt somebody was putting his hand into his pocket; that when he turned around one 22-23 years boy was found stealing his phone; that he caught the boy and raised alarm to call police then that boy started quarreling with him; that on the same time, another boy who was not known to him before came to him and told that his phone was also stolen in the same manner in the bus and he came forward to help him; that with the help of that another boy he got the thief de-boarded the bus at Nehru Nagar Bus Stand and they both started walking to take the thief to Ashram Chowk but the thief put out a knife kept into his clothes and suddenly attacked both of us and ran away towards Nehru Nagar; that after receiving this information by the police they were taken to AIIMS Trauma Center for treatment by PCR Van and were got admitted; that his phone Nokia 3110 having mobile sim no. 8434154068 was with the thief whom he can identify. It is further stated by the complainant Mohd. Shahzada that the said thief has stolen his phone and also inflicted grievous injuries to his person and to the person who came for help, therefore, appropriate action, as per law, should be taken against the offender.
6. It is further reported in the police report that from the PCR call inquiry, statement and MLCs, the offences under section 379 and 307 IPC have been made out and therefore, a FIR no. 17/2017 State versus Mohd. Faim Page 3 of 53 case under those sections was got registered and further investigation was taken up by Sub Inspector Yogesh Tanwar.
7. It is further reported in the police report that during the course of investigation, dossiers of suspect persons were shown to the injured who identified the accused Mohd. Faim, S/o Khalil.
8. It is further reported in the police report that raid was performed to apprehend the accused Mohd. Faim, S/o Kahlil, R/o H. No. 347, L- Block, Street No. 5, Sunder Nagari, Nand Nagri, New Delhi and he was arrested by Sub Inspector Yogesh Tanwar on 20.01.2017 and kept muffled face till his production in the court; that on 21.01.2017, accused Mohd. Faim produced before Metropolitan Magistrate in muffled face and an application of TIP of the accused was made and he was ready to participate in the TIP; that during the TIP, the accused could not be identified by the complainant, however, during the second TIP conducted on 02.02.2017 the accused Mohd. Faim was correctly identified by the other two witnesses of the incident.
9. It is further reported in the police report that one day police custody remand of the accused was obtained for recovery of the weapon of the offence but it could not be recovered despite sincere effort and the pointing out memo and site plan at the instance of the accused was prepared by Sub Inspector Yogesh Tanwar. It is further reported in the police report that CDR request was sent for getting the IMEI of stolen mobile phone but no CDR was obtained and till the filing of the police report FIR no. 17/2017 State versus Mohd. Faim Page 4 of 53 weapon of the offence also could not be recovered. It is also reported in the police report that if the stolen mobile phone will be recovered supplementary charge sheet under Section 173(8) Cr.P.C will be filed in this regard.
10. It is further reported in the police report that during the course of investigation, it was observed that accused Mohd. Faim had stolen mobile phone of the complainant and has also caused injuries to the complainant and one Ram Priya Kumar for escaping; that the accused had voluntarily caused dangerous injury to Ram Priya Kumar and simple injury to the complainant Mohd. Shahazada with sharp object; that the injury caused to Ram Priya Kumar is near heart and as per the opinion of the doctor the said injury is dangerous.
11. It is further reported in the charge-sheet that the afore-said acts on the part of Mohd. Faim revealed commission of offences punishable under section 379/397/307 of Indian Penal Code, 1860. It is, therefore, prayed that cognizance of the offences committed by Mohd. Faim may be taken and he should be tried as per the provisions of law.
12. After completion of the investigation, the investigating officer had filed the charge sheet before the concerned Metropolitan Magistrate.
13. On the police report, on 19.04.2017, the Learned Metropolitan Magistrate had taken the cognizance of the offences.
FIR no. 17/2017 State versus Mohd. Faim Page 5 of 5314. On the date of taking cognizance, the accused was also produced before the Metropolitan Magistrate. Copies of police report and other documents in compliance of section 208 Cr.P.C. were supplied to the accused.
15. On 02.05.2017, the Learned Metropolitan Magistrate found the sections/offences to be exclusively triable by the court of Sessions and therefore, committed the case to the Learned Sessions Judge and thereafter, the present case was assigned to this court.
16. On 16.02.2018, upon considering the police report and the documents sent with it under Section 173 Cr. P.C. and after hearing the Additional Public Prosecutor and counsel for the accused, the charge was framed against the accused for his having committed offences punishable under section 307/394/397 Indian Penal Code.
17. The charge was read over and explained to the Accused and he was asked if he pleaded guilty of the offences charged or claimed to be tried. The accused did not plead guilty and claimed trial.
18. In support of its Case, the prosecution got examined PW1 Bhunesh Kumar Sharma, MRT, AIIMS Trauma Center, PW2 Dr. Ramakant Singh, Senior Resident, Surgery Department, AIIMS Trauma Center, New Delhi, PW2A Shahjada, the complainant (two witnesses viz., Dr. Ramkant Singh and Shahjada have been numbered as PW2, due to inadvertence. In FIR no. 17/2017 State versus Mohd. Faim Page 6 of 53 order to clarify the situation, PW Shahzada who has been examined as PW2, later, shall hereinafter be read as PW2A.), PW3 Sh. Naveen Kashyap, Senior Civil Judge, PW4 Constable Rakesh, PW5 Ct. Lokesh Tomar, PW6 Ct. Waseem Khan, PW7 Ct. Gyan Singh, PW8 Ram Priya Kumar (the injured), PW9 Sub Inspector Yogesh Tanwar (first Investigating Officer) and PW10 Inspector Brahma Dutta (Second Investigating Officer). During the examination of the prosecution witnesses, the documents Ex. PW1/A, Ex.PW1/B, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PW3/A, Ex.PW3/B, Ex.PW3/C, Ex.PW4/A, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW9/A, Ex.PW9/B, Ex.PW9/C; and 'Pullanda' Ex.P1 (colly) were also tendered in evidence.
19. On 24.05.2023, prosecution evidence was closed and matter was posted for examination of the accused under section 313 Cr.P.C and for his statement.
20. On 23.08.2023, this court examined the accused under Section 313 Cr.P.C. and his separate statement was recorded. During his examination under section 313 of Cr.P.C., the accused Mohd. Faim denied the correctness of incriminating circumstances appearing in the evidence against him. During his examination under section 313 of Cr.P.C., the accused took the defence that that he is innocent. It is further stated by the accused that he is falsely implicated by the Investigating Officer in the present case due to his previous involvement. The accused expressed his desire to lead evidence in his defence.
21. The accused examined DW1 Nisaar in his defence.
FIR no. 17/2017 State versus Mohd. Faim Page 7 of 5322. I have heard Mr. A.T. Ansari, Additional Public Prosecutor for the State and Ms. Ritu Shahi, Amicus Curiae for the accused and have gone through the record of the case carefully.
23. Having drawn my attention on the testimonies of PW1 Bhunesh Kumar Sharma, PW2 Dr. Ramakant Singh, PW2A Shahjada, PW3 Sh. Naveen Kashyap, PW4 Constable Rakesh, PW5 Constable Lokesh Tomar, PW6 Constable Waseem Khan, PW7 Constable Gyan Singh, PW8 Ram Priya Kumar, PW9 Sub Inspector Yogesh Tanwar , PW10 Inspector Brahma Dutta; and the documents Ex. PW1/A, Ex.PW1/B, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PW3/A, Ex.PW3/B, Ex.PW3/C, Ex.PW4/A, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW9/A, Ex.PW9/B, Ex.PW9/C; and 'Pullanda' Ex.P1 (colly) and the law laid down in the judgments in Kamlesh v. State, CRL.A.481/2019 and CRL.MA.1845/2022, State through the Inspector of Police v. Lali @ Manikandan & Another Etc., Criminal Appeal numbers 1750-1751 of 2022, Yogender Singh v. State, Criminal Appeal number 265/2001, S.K. Khaja v. The State of Maharashtra, 2023 LiveLaw (SC) 715 It is submitted by the learned Additional Public Prosecutor for the State that from the evidence led by the prosecution, it has been proved that the accused had caused simple injury to the person of complainant and dangerous injury to the person of Ram Priya Kumar with sharp edged weapon and thus committed an offence of attempt to murder and the nature of injuries are corroborated from the DD entry No. 25 and the MLCs of the injured persons. It is further FIR no. 17/2017 State versus Mohd. Faim Page 8 of 53 submitted by the learned Additional Public Prosecutor for the State that injury is not sine qua non for obtaining conviction for the offence under Section 307 IPC and what has to be seen is the intention and the knowledge coupled with an overt act. It is further submitted by the learned Additional Public Prosecutor for the State that from the evidence led by the prosecution the identity of the accused person is also proved and both the injured persons had sufficient time to recognize the accused so their evidence regarding identity cannot be doubted. It is further submitted by the learned Additional Public Prosecutor for the State that both the injured persons were consistent during their evidence with regard to the role of the accused and they were cross-examined at length by counsel for the accused. It is further submitted by the learned Additional Public Prosecutor for the state that the intention of the accused can be gathered by several circumstances, like, weapon used in the act, nature of injuries, number of blows to commit crime in order to escape from the spot and carrying knife with him itself suggest that the accused could have gone to any extent. It is further submitted by the learned Additional Public Prosecutor for the State that where direct evidence is available minor contradictions in their testimonies are irrelevant as the injured witnesses carry guarantee of trustworthy witness because they sustained injuries. It is further submitted by the learned Additional Public Prosecutor for the State that non recovery of weapon of the offence cannot be used to discard the testimonies of injured witnesses.
24. Per contra, counsel for the accused has drawn my attention on the testimonies of PW1 Bhunesh Kumar Sharma, FIR no. 17/2017 State versus Mohd. Faim Page 9 of 53 PW2 Dr. Ramakant Singh, PW2A Shahjada, PW3 Sh. Naveen Kashyap, PW4 Constable Rakesh, PW5 Constable Lokesh Tomar, PW6 Constable Waseem Khan, PW7 Constable Gyan Singh, PW8 Ram Priya Kumar, PW9 Sub Inspector Yogesh Tanwar , PW10 Inspector Brahma Dutta; and the documents Ex. PW1/A, Ex.PW1/B, Ex.PW2/A, Ex.PW2/B, Ex.PW2/C, Ex.PW3/A, Ex.PW3/B, Ex.PW3/C, Ex.PW4/A, Ex.PW5/A, Ex.PW5/B, Ex.PW5/C, Ex.PW9/A, Ex.PW9/B, Ex.PW9/C; and 'Pullanda' Ex.P1 (colly) and the law laid down in the judgment in Shivmani & Anr. v. State Represented by Inspector of Police, Vellore Taluk Police Station, Vellore District, Criminal Appeal No. 3619 of 2023 and submitted that in DD it was recorded that 'ek aadmi ko chaku lag gya' whereas in the present case there are two injured persons. It is further submitted by learned counsel for accused that the complainant had failed to identify the accused during TIP. It is further submitted by the learned counsel for accused that no description of the knife was given in the charge- sheet. It is further submitted by the learned counsel for accused that there is discrepancy regarding age of accused in his two statements. It is further submitted by learned counsel for accused that Investigating Officer did not seize the bus ticket in which the complainant was traveling. It is further submitted by the learned counsel for accused that accused did not refuse to conduct TIP is a circumstance in favour of the accused. The Learned Counsel for the accused has drawn my attention to the cross-examination of PW8 Ram Priya Kumar and submitted that the said witness has deposed during his cross-examination that he had snatched FIR no. 17/2017 State versus Mohd. Faim Page 10 of 53 the mobile phone from the accused and handed over to the boy/owner.
25. I have given my thoughtful consideration to the submissions made on behalf of the parties.
26. The accused has been charged for the offences punishable under sections 307/394/397 I.P.C. Section 307 reads as follows:
"307. Attempt to murder. - Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts.-- When any person offending under this section is under sentence of imprisonment for life, he may, if hurt is caused, be punished with death."
27. The facts of the case have already been noticed earlier, here, I would like to only focus on the evidence that has been adduced by the prosecution.
28. To bring home the guilt of the accused, the prosecution had examined 11 witnesses.
29. PW1 Bhunesh Kumar Sharma is MRT from Trauma Centre AIIMS who had brought record of MLC bearing no. 500002451 (Ex.PW1/A) of Patient Mohd. Shahzada and MLC bearing no. 500002449 (Ex.PW1/B) of Patient Ram P. A. Kumar, both dated 17.01.2017. It is deposed by PW1 Bhunesh Kumar FIR no. 17/2017 State versus Mohd. Faim Page 11 of 53 Sharma that he was working in AIIMS as Medical Technician since January, 2015 and MLC (Ex.PW1/A) of Patient Mohd. Shahzada and MLC (Ex.PW1/B) of Patient Ram P. A. Kumar were prepared by Dr. Rajender Singh who had left the services of the hospital. It is further deposed by PW1 Bhunesh Sharma that he had worked with Dr. Rajender Singh and seen him signing and writing during the course of his duty. PW1 Bhunesh Kumar Sharma has identified the signatures of Dr. Rajender Singh on both the MLCs (Ex.PW1/A and Ex. PW1/B) at points A.
30. During his cross-examination, PW1 Bhunesh Kumar Sharma deposed that MLCs had not been prepared in front of him and he had not seen the injured persons when they were brought to AIIMS Trauma Centre. PW1 Bhunesh Kumar Sharma further deposed that they have been maintaining a register which shows the doctor's joining and relieving records and he had brought the copy of that register record.
31. In order to prove the nature of injuries in the MLCs of the injured persons, the prosecution has examined PW2 Dr. Ramakant Singh, Senior Resident, Surgery Department, AIIMS Trauma Centre, New Delhi. Having seen the MLC bearing no. 500002451 (Ex.PW1/A) dated 17.01.2017 of Patient Mohd. Shahzada PW2 Dr. Ramakant Singh has deposed that the nature of injury was simple, caused by sharp object. Having seen the MLC bearing no. 500002449 (Ex.PW1/B) dated 17.01.2017 of Patient Ram P.A. Kumar PW2 Dr. Ramakant Singh has deposed that the nature of injury was dangerous, caused by sharp object.
FIR no. 17/2017 State versus Mohd. Faim Page 12 of 5332. During his cross-examination, PW2 Dr. Ramakant Singh has deposed that the above-said MLCs had not been prepared in his presence and he could not identify the signature of Dr. Rajender Singh as he had never worked with him.
33. The prosecution has also examined the complainant PW2A Shahjada on basis of whose statement this case was registered. It is deposed by PW2A Shahjada that in the year 2017, he was working as a traffic marshal in Delhi Metro at Ashram Chowk and his daily duty hours used to be from 08:00 PM to 08:00 AM. It is further deposed by PW2A Shahjada that on 17.01.2017 at about 07:30 PM, to go to his office from his residence i.e. H. No. 560A, Transit Camp, Govind Puri, he had boarded the bus route no. 429 (between DDA Flats Kalkaji to Old Delhi Railway Station) from Govind Puri. It is further deposed by PW2A Shahjada that when the bus reached near Nehru Nagar he realized that someone was putting his hand in the pocket of his wearing pant. It is further deposed by PW2A Shahjada that he turned back and saw that one boy aged around 20-22 years was taking out his mobile phone from pant's pocket. It is further deposed by PW2A Shahjada that that he raised an alarm upon which the said boy had started pushing and manhandling him and in the meantime, one unknown person/passenger came forward to help him and told him that same incident had happened with him also. It is further deposed by PW2A Shahjada that thereafter, they had apprehended the said boy and got him de-boarded the bus at Nehru Nagar Bus stand started walking to take the said boy to the Ashram Chowk. It is further deposed by PW2A Shahjada that on the way, the said boy FIR no. 17/2017 State versus Mohd. Faim Page 13 of 53 had suddenly taken out one knife from his cloths which he had hided and attacked them with it and as a result thereof they had sustained injuries. It is further deposed by PW2A Shahjada that accused had attacked him with knife at his right side of the chest. It is further deposed by PW2A Shahjada that accused had succeed to run away from the spot towards Nehru Nagar. It is further deposed by PW2A Shahjada that someone had made a call at 100 number and PCR officials came there and took them to the Trauma Centre for medical examination. It is further deposed by PW2A Shahjada that accused had taken away his mobile phone make Nokia 3110 having mobile number 8434154068 which was with him. It is further deposed by PW2A Shahjada that Investigating Officer had come to the hospital to whom he narrated the incident and his statement (Ex.PW2/A) was recorded bearing his signature at point A. It is further deposed by PW2A Shahjada that he does not have the bill of the said mobile phone as it was very old one. It is further deposed by PW2A Shahjada that he had explained to the Investigating Officer about the description of the said boy and also shown the place of occurrence to the Investigating Officer and site plan (Ex.PW2/B) was prepared bearing his signature at point A. It is further deposed by PW2A Shahjada that during the course of investigation, he was taken before the Learned Metropolitan Magistrate to identify the said boy but he could not be able to identify the said boy due of severe pain. It is further deposed by PW2A Shahjada that he had also signed the TIP proceedings Ex.PW2/C and his signature was at point A. Having seen the accused Mohd. Faim in the court PW2A Shahjada has correctly FIR no. 17/2017 State versus Mohd. Faim Page 14 of 53 identified the accused and deposed that he is that boy who had taken his mobile phone and attacked them with the knife on the date of incident.
34. During his cross-examination, it is deposed by PW2A Shahjada that the accused had attacked with knife at both of them simultaneously.
35. During his cross-examination, MHC(M) had produced the case properties viz., one white colour shirt having one hole on the right side near the chest area and armpit and contained some red spot, which do not appear to be of blood, one white colour 'baniyan' which had blood stains near the armpit area, two inners, one of gray colour and other of black colour having cut mark on the right side near armpit area which are Ex. P1(colly). Having seen the articles Ex. P1(colly), PW2A Shahjada has correctly identified the said clothes to be same which he was wearing at the time of incident. It is further deposed by PW2A Shahjada that his phone was not recovered till date.
36. During his further cross-examination, PW2A Shahjada deposed that during the course of traveling to the hospital, the blood was oozing out. It is further deposed by PW2A Shahjada the he did not remember the name of the other person with him who was bleeding profusely. It is further deposed by PW2A Shahjada that he was discharged from the hospital in less than 24 hours (the incident occurred in evening and he got discharged in the morning). It is further deposed by FIR no. 17/2017 State versus Mohd. Faim Page 15 of 53 PW2A Shahjada he was in acute pain so he could not identify the accused in the jail. It is further deposed by PW2A Shahjada that he was shown some photographs and he had identified the accused in those photographs. It is further deposed by PW2A Shahjada that first he went to Police Station to identify the accused from the photographs and after two days, he had gone to the jail for participating in the TIP proceedings and on both the occasions, he was in acute pain.
37. To prove the TIP proceedings, the prosecution has examined PW3 Shri Naveen Kashyap, Senior Civil Judge, North West District, Rohini Courts, New Delhi. It is further deposed by PW3 Shri Naveen Kashyap that on 21.01.2017, he was working as MM, South East, PS Sarita Vihar New Delhi and one application was marked to him by his Link Magistrate Sh. Ashok Kumar for holding TIP of accused Mohd. Faim. It is further deposed by PW3 Shri Naveen Kashyap that the accused was produced before him by the Investigating Officer in muffled face and he had made inquiry from accused and directed Investigating Officer to go out of the court, then he called accused inside his chamber and asked if he wanted to participate in judicial TIP or not. It is further deposed by PW3 Shri Naveen Kashyap that the accused agreed to participate in TIP proceedings which were conducted on 25.01.2017 and the statement of complainant Shahjada was recorded which was at portion X to X-1. It is further deposed by PW3 Shri Naveen Kashyap that his certificate regarding correctness of TIP proceedings at portion Y to Y-1 and his signatures on TIP proceedings at points A and signature of FIR no. 17/2017 State versus Mohd. Faim Page 16 of 53 complainant Shahjada at point already marked D and the TIP proceedings are Ex.PW2/C and the application of the Investigating Officer for holding TIP is Ex. PW3/A.
38. It is further deposed by PW3 Shri Naveen Kashyap that on 31.01.2017, another application was marked to him by his Link Magistrate Sh. Ashok Kumar for holding TIP of accused Mohd. Faim. It is further deposed by PW3 Shri Naveen Kashyap that the accused was produced before him by the Investigating Officer in muffled face and he had made inquiry from accused and directed Investigating Officer to go out of the court, then he called accused inside his chamber and asked if he wanted to participate in judicial TIP or not. It is further deposed by PW3 Shri Naveen Kashyap that the accused agreed to participate in TIP proceedings which were conducted on 02.02.2017 and the statement of witness Ram Priya Kumar and Constable Gyan Chand were recorded which are at portion X-2 to X-1 and X-2 to X-3, respectively. It is further deposed by PW3 Shri Naveen Kashyap that his certificate regarding correctness of TIP proceedings at portion Y to Y-1 and his signatures on TIP proceedings at points A and signatures of witnesses Ram Priya Kumar at point B and of Ct. Gyan Singh at point C, respectively and the TIP proceedings are Ex. PW3/B and the application of the IO for holding TIP is Ex. PW3/C.
39. During his cross examination, PW3 Sh. Naveen Kashyap deposed that all the procedural safeguards were taken care of while conducting the aforesaid TIP proceedings. PW3 Sh. Naveen Kashyap further deposed that complainant Shahjada FIR no. 17/2017 State versus Mohd. Faim Page 17 of 53 could not identify the accused. PW3 Sh. Naveen Kashyap further deposed that witness Ram Priya Kumar and Ct. Gyan Singh could identify the accused.
40. PW4 Constable Rakesh has deposed that he was on emergency duty on 17.01.2017 from 08:00 PM to 08:00 AM along with Sub Inspector Yogesh Tanwar in Police Station Sun Light Colony. It is further deposed by PW4 Ct. Rakesh that on receipt of DD no. 21A, Investigating Officer Sub Inspector Yogesh Tanwar had gone to spot at Nehru Nagar Bus Stand, Ring Road, Ashram Chowk and came to know that injured persons had already been shifted to hospital by PCR Van. It is further deposed by PW4 Constable Rakesh that in the meantime, on receiving of information about DD no. 27A regarding MLC from AIIMS Trauma Centre, they had gone to AIIMS Trauma Centre where injured persons, namely, Mohd. Shahzada and Ram Priya Kumar were found admitted. It is further deposed by PW4 Constable Rakesh that injured Ram Priya Kumar was found unfit to give statement. It is further deposed by PW4 Ct. Rakesh that Investigating Officer had recorded statement of injured Mohd. Shazada and prepared the 'rukka' and got the FIR registered through him and he came back to AIIMS Trauma Centre and handed over the copy of FIR and 'rukka' to the IO. It is further deposed by PW4 Constable Rakesh that Investigating Officer had recorded supplementary statement of injured Md. Shazada and thereafter, they came back at the spot but nothing could be found. It is further deposed by PW4 Constable Rakesh that on 18.01.2017, Duty Constable Jasbir had given two 'pullandas' FIR no. 17/2017 State versus Mohd. Faim Page 18 of 53 (Ex.PW4/A) of clothes of injured persons along with a sample seal to the IO bearing his signature at point A.
41. During his cross-examination, PW4 Constable Rakesh had deposed that when he had reached the spot, many people including traffic police on duty told him that both the complainants were taken to Trauma Centre.
42. PW5 Constable Lokesh Tomar and PW6 Constable Waseem Khan had accompanied the Investigating Officer Sub Inspector Yogesh Tanwar to arrest the accused and their testimonies are almost similar. It is commonly deposed by PW5 Constable Lokesh Tomar and PW6 Constable Waseem Khan that on 20.01.2017, they were posted as constable at Police Station Sun Light Colony. It is further deposed by PW5 Constable Lokesh Tomar and PW6 Constable Waseem Khan that on that day, they along with Investigating Officer Sub Inspector Yogesh Tanwar had gone to Sunder Nagri near Nand Nagri, Delhi and they apprehended accused Mohd. Faim at the instance of the secret informer. PW5 Constable Lokesh Tomar and PW6 Constable Waseem Khan have correctly identified the accused in the court. It is further deposed by PW5 Constable Lokesh Tomar and PW6 Constable Waseem Khan that accused Faim was interrogated and his Disclosure Statement (Ex.PW5/A) was recorded bearing his signature at point A and he was personally searched vide memos (Ex.PW5/B and Ex.PW5/C) bearing their signatures at point A and B. It is further deposed by PW5 Constable Lokesh Tomar and PW6 Constable Waseem Khan that FIR no. 17/2017 State versus Mohd. Faim Page 19 of 53 accused was kept in muffled face and he was got medically examined and thereafter, he was sent to the lock up.
43. During their cross-examination, PW5 Constable Lokesh Tomar and PW6 Constable Waseem Khan have deposed that they had not clicked any photograph of the accused in the police custody.
44. PW7 Constable Gyan Singh deposed that on 17.01.2017, he was posted as traffic constable at Lajpat Nagar Circle and his duty hours were from 08.00 AM to 10.00 PM and at around 08.00 PM, he was present at Ashram Chowk near traffic junction box. It is further deposed by PW7 Constable Gyan Singh that he had seen the complainant Shahzad and one other boy had caught hold the accused Faim and a scuffle was going on between them and suddenly the accused got freed himself and started running. It is further deposed by PW7 Constable Gyan Singh that the accused Faim had stabbed the other person who was present with Shahjada and the accused started running towards Nehru Nagar from the wrong side. It is further deposed by PW7 Constable Gyan Singh that he had tried to apprehend the accused but accused managed to flee. It is further deposed by PW7 Constable Gyan Singh that thereafter, he had come back at the spot and by that time the injured and Shahjada had already been taken to the hospital by the PCR. PW7 Constable Gyan Singh had correctly identified the accused in the court.
FIR no. 17/2017 State versus Mohd. Faim Page 20 of 5345. During his cross-examination, PW7 Constable Gyan Singh deposed that he had not called PCR. It is further deposed by PW7 Constable Gyan Singh that he had gone for TIP to Tihar jail along with complainant and he had correctly identified the accused. Other formal suggestions were denied by him as wrong and incorrect.
46. PW8 Ram Priya Kumar is the other injured person who deposed that on 17.01.2017, he was going to Ashram from Garhi and he had boarded a bus route no. 429 from Garhi bus stand. It is further deposed by PW8 Ram Priya Kumar that when the bus reached Nehru Nagar, he heard one boy was saying that his mobile phone had been stolen. It is further deposed by PW8 Ram Priya Kumar that one boy was fleeing and reached near the bus gate and other boy was chasing him. It is further deposed by PW8 Ram Priya Kumar that he caught hold of the boy whose name was later revealed as Md. Faim. It is further deposed by PW8 Ram Priya Kumar that the boy was asking to him for help and he agreed and both of them had taken the accused outside the bus and they both caught hold the accused and were going to Ashram side in order to hand over the accused to the police. It is further deposed by PW8 Ram Priya Kumar that suddenly, the accused had taken out a knife which he was hiding and hit the complainant whose mobile was stolen and thereafter, he had also hit him on chest below his heart with knife. It is further deposed by PW8 Ram Priya Kumar that he fell down and traffic police who was standing near them had also come at the spot and made call at 100 number. It is further deposed by PW8 Ram Priya Kumar that after sometime, police reached the spot and had taken FIR no. 17/2017 State versus Mohd. Faim Page 21 of 53 him to Trauma Center AIIMS where he was treated for about 22- 23 days. It is further deposed by PW8 Ram Priya Kumar that he came to his house on 02.02.2017 and he had gone to Tihar Jail along-with police and TIP proceeding (Ex.PW3/B) bearing his signature at point 'B' was conducted. It is further deposed by PW8 Ram Priya Kumar that he had correctly identified the accused before the Magistrate. It is further deposed by PW8 Ram Priya Kumar that two T-shirts colour green and black and one orange colour jacket having knife hole are Ex. P2 (colly.). PW8 Ram Priya Kumar had correctly identified the accused person in the court.
47. During his cross-examination, PW8 Ram Priya Kumar deposed that he had snatched the mobile phone from the accused and had handed over to the boy/owner thereafter, they took the accused down from the bus and when the mobile was snatched by the accused, the bus was in moving condition. It is further deposed by PW8 Ram Priya Kumar that he had not seen the accused hitting Shahzada. It is further deposed by PW8 Ram Priya Kumar that he was on ventilator in the hospital and perhaps he regained consciousness after 2-3 days. It is further deposed by PW8 Ram Priya Kumar that he had never seen the accused before the incident and he was never shown any photograph of the accused by the police. Other formal suggestions were denied by him as wrong and incorrect.
48. PW9 Sub Inspector Yogesh Tanwar is the first Investigating officer of this case who deposed that on 17.01.2017, he was posted as Sub Inspector at Police Station Sun FIR no. 17/2017 State versus Mohd. Faim Page 22 of 53 Light Colony. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that on that day, he received DD No. 25 A (Ex. PW9/A) regarding stabbing of one person with knife and thereafter, he along with Constable Rakesh reached at the spot i.e., under Flyover, Ashram Chowk, Sun Light Colony where, he had come to know that injured was shifted to hospital through PCR van. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that in the meanwhile, he received another DD No. 27A (Ex. PW9/B) from AIIMS Trauma Center regarding admission of two injured persons and upon this information, he along-with Constable Rakesh reached at AIIMS Trauma Center and collected the MLC of both injured persons, namely, Md. Shehzada and Ram Priya. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that both the injured were admitted in the hospital and injured Shehzada was declared as fit for statement by the doctor and Ram Priya was declared unfit for statement. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that he had recorded the statement of injured Md. Shehzada and prepared the 'rukka' (Ex. PW9/C) bearing his signature at Point 'X' and the case was got registered through Constable Rakesh. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that after registration of case, Constable Rakesh had come back to the hospital and handed over him original rukka and copy of FIR and thereafter, he returned back to Police Station.
49. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that on the next day, the dossiers of the suspected persons were shown to the complainant. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that thereafter, he along with other FIR no. 17/2017 State versus Mohd. Faim Page 23 of 53 police officials and complainant reached at the above-mentioned spot and in the meanwhile, Constable Gyan also reached at the spot. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that he had inspected the spot and prepared the Site Plan (Ex.PW2/B) bearing his signature at point 'X' at the instance of complainant. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that complainant and Constable Gyan had identified one of the dossiers as accused who was involved in this case.
50. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that on 20.01.2017, he along with Constable Lokesh and Constable Wasim reached near opposite Gagan Cinema, Nand Nagri and they had seen that the accused was coming towards his house and they apprehended him and he arrested the accused vide Arrest Memo (Ex. PW5/B) bearing his signature a Point 'X', Personal Search Memo (Ex. PW5/C), bearing his signature at Point 'X' and his Disclosure Statement (Ex.PW5/A) was also recorded bearing his signature at Point 'X' and thereafter, they had come back to Police Station along with accused and he was sent to the lock up of Police Station Nizamuddin.
51. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that on the next day, the accused was produced in the court in the above case and remanded for Judicial Custody by the court concerned and he had made an application for conducting the TIP proceedings of the accused Md. Faim and same was fixed for 25.01.2017. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that during the TIP proceedings, the complainant could not identify the accused. It is further deposed by PW9 Sub FIR no. 17/2017 State versus Mohd. Faim Page 24 of 53 Inspector Yogesh Tanwar that he had again made an application for conducting the TIP proceedings of accused Md. Faim and during TIP proceeding, another injured person, namely, Ram Priya and Constable Gyan had identified the accused Md. Faim and he had made an application for production of the accused and for police custody and the same was allowed. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that he along- with Constable Wasim reached at Saket Court Complex and accused was produced in the Court. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that the accused Md. Faim led them to near the spot at Ashram Chowk, Near Railway Line, Sun Light colony for the recovery of weapon i.e. knife and robbed article i.e. mobile phone, but the same could not be traced out and thereafter, the accused was produced in the Court after conducting his medical examination and remanded to Judicial Custody. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that during the investigation of this case, Constable Rakesh had handed over him one sealed 'pullanda' bearing the seal of Hospital, AIIMS, the said 'pullanda' was containing bloodstained cloth of the injured and he seized the same through seizure memo (Ex. PW4/A) bearing his signature at Point 'X'. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that during the investigation of this case, MLC of the injured and copy of TIP proceedings were obtained. PW9 Sub Inspector Yogesh Tanwar had correctly identified the accused in the court. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that when he was transferred from the Police Station and he handed over the case file to MHCR.
FIR no. 17/2017 State versus Mohd. Faim Page 25 of 5352. During his cross-examination, PW9 Sub Inspector Yogesh Tanwar has deposed that in DD No. 25A no information was received that any mobile was robbed during the incident. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that complainant did not disclose physical description of the accused in the complaint. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that the spot of alleged occurrence was a public place and many passersby were passing through the same and he could not meet any eye witness at the spot. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that he had not seized bus ticket which might have been taken by the complainant or by the injured. PW9 Sub Inspector Yogesh Tanwar denied that the photographs of the accused were shown to the complainant and injured by him. PW9 Sub Inspector Yogesh Tanwar voluntarily stated that the identity of the accused was revealed when dossier of accused was shown to the witnesses. It is further deposed by PW9 Sub Inspector Yogesh Tanwar that accused had not tried to escape when he was arrested and he voluntarily stated that he was arrested by laying a trap. Other formal suggestions were denied by him as wrong and incorrect.
53. PW10 Inspector Brahma Dutta deposed that on 04.04.2017, he was posted as Sub Inspector at Police Station Sun Light Colony and on that day, the present case file was handed over to him for further investigation. It is further deposed by PW10 Inspector Brahma Dutta that he prepared the charges-sheet and filed the same before the court. This witness was not cross examined by Counsel for the accused.
FIR no. 17/2017 State versus Mohd. Faim Page 26 of 5354. In defence, DW1 Nisaar deposed that in the year 2017, he was residing as a tenant in the house of the accused Faim at a monthly rent of Rs.3,000/- and the in the same year, at about 12:00-12:30 mid-night, when they are sitting outside the house, few police men had come there and started inquiring about Faim. It is further deposed by DW1 Nisaar that he had called him from his house as he was sleeping there. It is further deposed by DW1 Nisaar that he was taken to police station by them and when he visited the police station to enquire about him, police had not allowed to him to meet him. It is further deposed by DW1 Nisaar that Faim is a tailor by profession.
55. During his cross examination, DW1 Nisaar, inter alia, has deposed that he had not received any summons from the court.
56. In the light of the charge framed against accused and the arguments advanced before the court, following are the points for determination:
1. Whether the accused has done any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, and has caused hurt to the complainant Shahzada and the injured Ram Priya Kumar by such act.
2. Whether in carrying away the mobile phone obtained by theft, the accused, for that end, voluntarily caused hurt with attempt to cause death or grievous FIR no. 17/2017 State versus Mohd. Faim Page 27 of 53 hurt to the persons of complainant Mohd. Shahzada and one Ram Priya Kumar.
3. Whether the accused has attempted to caused death with the use of deadly weapon at the time of committing robbery of mobile phone of the complainant Mohd. Shahzada and caused grievous hurt to one Ram Priya Kumar while taking away the property obtained by theft.
DISCUSSION ON THE POINTS FOR DETERMINATION
57. On these points, to prove the commission of theft of mobile phone by the accused, the testimonies of PW2A Shahzada, PW8 Ram Priya Kumar, PW7 Gyan Prakash are relevant. As per the testimonies of PW2A Shahzada, when he was traveling by bus, he had noticed that someone was putting hand in the pocket his wearing pant and when turned back he had seen the accused was taking out his mobile phone from his pants pocket. As per the testimonies of PW2A Shahzada, when he raised alarm, the accused had started pushing and manhandling him.
58. As per the testimonies of PW2A Shahzada and PW8 Ram Priya Kumar that Ram Priya Kumar, the other injured had come forward to help the complainant Shahzada and both of them got the accused deboarded the bus at Nehru Nagar Bus Stand.
FIR no. 17/2017 State versus Mohd. Faim Page 28 of 5359. As per the testimonies of PW2A Shahzada and PW8 Ram Priya Kumar, both of them had started taking the accused to Ashram Chowk on foot.
60. As per testimonies of PW2A Shahzada, PW8 Ram Priya Kumar and PW7 Constable Gyan Singh, the complainant Shahzada (PW2A) and the injured Ram Priya Kumar (PW8) have caught hold the accused and it was also seen by Constable Gyan Singh (PW7) and that there was a scuffled going on between them and suddenly the accused got free himself and started running.
61. As per the testimonies of PW2A Shahzada, PW8 Ram Priya Kumar and PW7 Constable Gyan Singh, the accused had stabbed the complainant, Mohd. Shahzada and the one Ram Priya Kumar.
62. As per the testimonies of PW2A Shahzada and PW8 Ram Priya Kumar, the accused had also stabbed the complainant, Mohd. Shahzada.
63. As per the testimonies of PW2A Shahzada, PW8 Ram Priya Kumar and PW7 Constable Gyan Singh, the accused was followed by Constable Gyan Singh (PW7) who tried to apprehend him but the accused managed to flee and when he came back the injured and Shahzada had already been taken to the hospital.
64. Regarding registration of this case, the testimonies of PW2A Shahzada (Complainant), PW4 Constable Rakesh and FIR no. 17/2017 State versus Mohd. Faim Page 29 of 53 PW9 Sub Inspector Yogesh Tanwar are relevant. As per the testimonies of Constable Rakesh (PW4) and Sub Inspector Yogesh Tanwar (PW9), they both were on emergency duty on 17.01.2017, from 08:00 PM to 08:00 AM at Police Station Sun Light Colony. As per the testimonies of PW4 Constable Rakesh and PW9 Sub Inspector Yogesh Tanwar, on receipt of DD no. 21A, they went to the spot at Nehru Nagar Bus Stand, Ring Road, Ashram Chowk, New Delhi and came to know that injured persons had already been removed to hospital by PCR Van. As per the testimonies of PW4 Constable Rakesh and PW9 Sub Inspector Yogesh Tanwar that on receiving another DD no. 27A regarding MLC, they reached AIIMS Trauma Center where the injured persons, namely, Mohd. Shahzada and Ram Priya Kumar were found admitted and injured Ram Priya Kumar was found not fit to give statement, however, the injured Shahzada was declared fit for statement. As per the testimonies of PW2A Shahzada (Complainant), PW9 Sub Inspector Yogesh Tanwar and PW4 Constable Rakesh, Sub Inspector Yogesh Tanwar (PW9), first Investigation Officer of this case had recorded the statement of the complainant Shahzada (PW2A), prepared 'rukka' and got the FIR registered through Constable Rakesh (PW4) who, after registration of FIR, came back to the AIIMS Trauma Center with the copy of FIR and handed over the same with 'rukka' to the Investigation Officer.
65. From the testimonies of PW2A Shahzada, PW4 Constable Rakesh and PW9 Sub Inspector Yogesh Tanwar, the prosecution has been successful in proving the registration of FIR against the accused. During the cross-examination of prosecution FIR no. 17/2017 State versus Mohd. Faim Page 30 of 53 witnesses and in the course of arguments, the registration of FIR against the accused has not been disputed by the Defence Counsel. No delay in the registration of FIR has been pointed out by the defence.
66. For proving the injuries caused to the persons of the complainant Shahzada and the injured Ram Priya Kumar, the testimonies of PW1 Bhunesh Kumar Sharma, PW2 Dr. Rama Kant Singh, PW2A Shahzada, PW8 Ram Priya, PW7 Constable Gyan Singh & PW9 Sub Inspector Yogesh Tanwar are relevant. As per the testimonies of PW2A Shahzada, PW8 Ram Priya Kumar, PW7 Constable Gyan Singh, when the complainant (PW2A) and the injured (PW8) were taking the accused to hand over to the police, the accused had suddenly taken out the knife from his clothes and stabbed the complainant Shahzada and the injured Ram Priya Kumar.
67. As per the testimonies of PW4 Constable Rakesh and PW9 Sub Inspector Yogesh Tanwar, on receiving of DD no. 21A on 17.01.2017, when they were on emergency duty on police station Sun Light Colony, they reached the spot. PW9 Sub Inspector Yogesh Tanwar in his evidence has proved the DD no. 25A(Ex.PW9/A). A perusal of true copy of DD no.25A dated 17.01.2017(Ex.PW9/A) Police Station Sun Light Colony reveals that an information regarding stabbing of complainant was received in the police station which was marked to Sub Inspector Yogesh Tanwar and he along with Constable Rakesh PW4 reached the spot.
FIR no. 17/2017 State versus Mohd. Faim Page 31 of 5368. As per the further testimonies of PW4 Constable Rakesh and PW9 Sub Inspector Yogesh Tanwar, in the meantime, they received another DD no.27A from AIIMS Trauma Center regarding admission of two injured persons. PW9 Sub Inspector Yogesh Tanwar in his evidence has also proved the second DD no.27A (Ex.PW9/B). A perusal of true copy of DD no.27A (Ex.PW9/B) dated 17.01.2017 Police Station Sun Light Colony reveals that an information regarding admission of the injured persons, in connection with the stabbing relating to the first DD no.25A dated 17.01.2017(Ex.PW9/A), at AIIMS Trauma Center was received and the said information was also forwarded to Sub Inspector Yogesh Tanwar.
69. As per the testimonies of PW4 Constable Rakesh and PW9 Sub Inspector Yogesh Tanwar that pursuant to receiving of DD no. 27A (Ex.PW9/B), they had gone to the AIIMS Trauma Center and collected MLCs of both the injured persons who were admitted there.
70. In order to prove the MLCs of the injured persons, the testimonies of PW1 Bhunesh Kumar Sharma, MRT from AIIMS Trauma Center are relevant, who had brought the record of MLCs no.500002451(Ex.PW1/A) and No.500002449 (Ex.PW1/B) both dated 17.01.2017 of Patient Mohd. Shahzada and Ram P. A. Kumar, respectively.
71. As per the testimonies of PW1 Bhunesh Kumar Sharma, the MLCs (Ex.PW1/A and Ex.PW1/B) were prepared by Dr. Rajender Singh who had left the hospital, at the time of trial FIR no. 17/2017 State versus Mohd. Faim Page 32 of 53 of this case. PW1 Bhunesh Kumar Sharma has identified the signature of Dr. Rajender Singh on the MLCs (Ex.PW1/A and Ex.PW1/B) as he had worked with Dr. Rajender Singh and seen him signing and writing during the course of his duty.
72. For proving the nature of injuries caused to the injured persons, the prosecution has examined Dr. Rama Kant Singh (PW2), Senior Resident, Surgery Department, AIIMS Trauma Center, New Delhi. Having seen the MLC (Ex.PW1/A) of the Patient Shahzada, PW2 Dr. Rama Kant Singh has deposed that the nature of injury is simple caused by the sharp object and as per the contents of MLC (Ex.PW1/B) of injured Ram P. A. Kumar, the nature of injury is dangerous caused by sharp object.
73. It has been held by Hon'ble Delhi High Court in Kamlesh's case (supra) as follows:
"13. The contention of the Ld. 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.FIR no. 17/2017 State versus Mohd. Faim Page 33 of 53
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."
74. In the light of law laid down by Hon'ble High Court of Delhi in Kamlesh's case (supra), for non-examination of the doctor who prepared the MLCs, the MLCs cannot be disbelieved. The injured persons, in the instant case, were examined by and their MLCs were prepared by Dr. Rajender Singh, who has left the services of the AIIMS Trauma Centre. PW1 Bhunesh Kumar Sharma, MRT from AIIMS Trauma Center, who has worked with Dr. Rajender Singh and had also seen him writing and signing, has identified and proved the handwriting and signature of Dr. Rajender Singh and the nature of the injuries on the MLCs have been well explained by a colleague doctor (PW2 Dr. Rama Kant Singh). It is not the case of the accused that there is any tampering with MLCs. During the course of arguments also, the contents of MLCs have not been challenged on behalf of the accused.
75. As per the MLC (Ex.PW1/A) of the injured Mohd. Shahzada, the nature of injury on his person was opined as simple and the kind of weapon used to cause the injury was opined as sharp.
76. However, as per the MLC (Ex.PW1/B) of the injured Ram P. A. Kumar, the nature of injury on his person was opined as dangerous and the kind of weapon used to cause the injury was opined as sharp.
FIR no. 17/2017 State versus Mohd. Faim Page 34 of 5377. It is noteworthy here that nothing material has been brought to my notice from the cross-examination of above prosecution witnesses for suspecting the truth of the version given by either of them and their testimonies has remained consistent to prove the fact of causing simple injury on the person of the complainant Mohd. Shahzada and dangerous injury on the person of Ram Priya Kumar by a sharp-edged weapon i.e. knife.
78. From the testimonies of PW2A Shahzada (complainant), PW8 Ram Priya Kumar (injured), PW9 Sub Inspector Yogesh Tanwar and PW4 Constable Rakesh, the 'pullanda' (Ex.PW4/A) of the clothes which the complainant and injured were wearing at the time of incident having holes of stab marks and blood stains have also been duly proved and the clothes are Ex. P1(colly) and Ex. P2 (colly).
79. Regarding arrest and identification of the accused, the testimonies of PW2A Shahzada, PW3 Sh. Naveen Kashyap, PW5 Constable Lokesh Tomar, PW6 Constable Waseem Khan, PW7 Constable Gyan Singh, PW8 Ram Priya Kumar and PW9 Sub Inspector Yogesh Tanwar are relevant.
80. As per the testimonies of PW2A Shahzada and PW9 Sub Inspector Yogesh Tanwar, when the accused had managed to flee from the spot after stabbing both the injured, dossiers of the suspect persons were shown to the complainant and Constable Gyan Singh in the police station and they had identified the accused as the offender.
FIR no. 17/2017 State versus Mohd. Faim Page 35 of 5381. It is in the evidence of PW7 Constable Gyan Singh that at the time of incident when the accused tried to flee from the spot after stabbing the injured, he had tried to apprehend the accused but the accused had managed to flee.
82. Regarding arrest of the accused, as per the testimonies of PW5 Constable Lokesh Tomar, PW6 Constable Waseem Khan and PW9 Sub Inspector Yogesh Tanwar, they had gone to the house of the accused at Sunder Nagari, Near Nand Nagari Delhi and apprehended accused Mohd. Faim at the instance of secret informer. These witnesses have also proved the Disclosure Statement (Ex.PW5/A) of the accused, Arrest Memo (Ex.PW5/B) and Personal Search Memo (Ex.PW5/C).
83. Regarding identification of the accused, as per the testimonies of PW2A Shahzada (complainant), PW8 Ram Priya Kumar (injured), PW7 Constable Gyan Singh, PW9 Sub Inspector Yogesh Tanwar, Investigating Officer and PW3 Sh. Naveen Kashyap, Learned Metropolitan Magistrate, during investigation of this case, the Test Identification Parade (TIP) of the accused was conducted before the Learned Metropolitan Magistrate (PW3) and during the first TIP, the complainant Shahzada could not identify the accused, however, the injured Ram Priya Kumar (PW8) and Constable Gyan Singh (PW7) had identified the accused during the second TIP. PW3 Sh. Naveen Kashyap, the Learned Metropolitan Magistrate has duly proved the TIP proceedings (Ex.PW2/C and Ex.PW3/B) and the applications (Ex.PW3/A and Ex.PW3/C) made by the Investigating Officer for holding TIPs. The explanation given by FIR no. 17/2017 State versus Mohd. Faim Page 36 of 53 the complainant PW2A Shahzada was that at the time of TIP, he was in acute pain, therefore, he could not identify the accused which seems to be quite reasonable. It is quite obvious that at that time, the complainant Mohd. Shahzada (PW2A) might have been under trauma due to pain of the injury caused by stabbing by the accused. Whereas, the complainant has correctly identified the accused, to be the person who had stabbed him, in the Court. The prosecution witnesses Constable Gyan Singh (PW7) who had tried to apprehend the accused at the spot, PW8 Ram Priya Kumar (injured) and PW9 Sub Inspector Yogesh Tanwar have correctly identified the accused in the Court during trial.
84. In the light of the testimonies of PW2A Shahzada, PW3 Sh. Naveen Kashyap, Learned Metropolitan Magistrate, PW5 Constable Lokesh Tomar, PW6 Constable Waseem Khan, PW7 Constable Gyan Singh, PW8 Ram Priya Kumar and PW9 Sub Inspector Yogesh Tanwar, identification of the accused Mohd. Faim as the person who committed theft of mobile phone of the complainant and caused injuries to the complainant Mohd. Shahzada and the injured Ram Priya Kumar is duly established and proved.
85. For the purpose of constituting an attempt under section 307 IPC, the prosecution needs to establish the following two ingredients, namely:-
(i) An evil intent or knowledge
(ii) An act done FIR no. 17/2017 State versus Mohd. Faim Page 37 of 53
86. The Learned Additional Public Prosecutor for the State has referred to the judgment in S. K. Khaja's case (supra) to argue that it is sufficient to justify a conviction under Section 307 I.P.C., if there is present an intent coupled with some overt act in execution thereof. It has been held by Hon'ble Supreme Court in case entitled S.K. Khaja (supra) as follow:
"8. As rightly submitted by the learned counsel appearing on behalf of the respondent- State, merely because the injuries sustained by the complainant
-Mohammad Khan Pathan (PW-2) were very simple in nature, that would not absolve the appellant/accused from being convicted for the offence under Section 307 of the IPC. What is important is an intention coupled with overt act committed by the appellant /accused. In the instant case, it was proved by cogent evidence that the appellant/accused had tried to assault the complainant- Mohammad Khan Pathan (PW-2) with Gupti and too on his head. Though the complainant received injury on his right shoulder while avoiding blow on his head, from the blunt part of the Gupti, such an overt act on the part of the applicant/accused would be covered by the offence punishable under Section 307 of the IPC. There being no infirmity pointed out by the learned counsel for the applicant in the impugned judgment and order of the High Court, we are of the opinion that the present appeal deserves to be dismissed."
87. The Learned Counsel for the accused has also referred to a judgment of Hon'ble Supreme Court in case titled as Shivmani's (supra). The judgment referred to by the defence counsel also supports the case of the prosecution. It has been held by the Hon'ble Supreme Court in Shivmani's case (supra) as follows:
"9. In State of Madhya Pradesh v Saleem, (2005) 5 SCC 554, the Court held that to sustain a conviction under Section 307, IPC, it was not necessary that a bodily injury capable of resulting in death should have been inflicted. As such, non-conviction under Section 307, IPC on the premise only that simple injury was inflicted does not follow as a matter of course. In the same judgment, it was FIR no. 17/2017 State versus Mohd. Faim Page 38 of 53 pointed out that 'The court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the section.' The position that because a fatal injury was not sustained alone does not dislodge Section 307, IPC conviction has been reiterated in Jage Ram v State of Haryana, (2015) 11 SCC 366 and State of Madhya Pradesh v Kanha, (2019) 3 SCC 605. Yet, in Jage Ram (supra) and Kanha (supra), it was observed that while grievous or life-threatening injury was not necessary to maintain a conviction under Section 307, IPC, 'The intention of the accused can be ascertained from the actual injury, if any, as well as from surrounding circumstances.
Among other things, the nature of the weapon used and the severity of the blows inflicted can be considered to infer intent.'"
88. In the light of law laid down by the Hon'ble Supreme Court in S. K. Khaja's case (supra) referred to on behalf of the State and also in Shivmani's case (supra) referred to on behalf of the accused, the law is well settled that for conviction for the offence under section 307 of the IPC, what is important is an intention coupled with an overt act by the accused; while grievous or life threatening injury was not necessary to maintain a conviction under section 307 of IPC, the intention of the accused can be ascertained from the actual injury, if any, as well as from the surrounding circumstances.
89. From the evidence led on behalf of the prosecution which has been discussed herein above, the prosecution has been successful in proving that the accused Mohd. Faim had committed theft of mobile phone of the complainant Mohd. Shahzada in moving bus. It is also proved that when the complainant Mohd. Shahzada noticed the theft of his mobile phone from his pants pocket, he caught hold the accused Mohd. Faim. It is also proved that the injured Ram Priya Kumar had FIR no. 17/2017 State versus Mohd. Faim Page 39 of 53 come forward to help the complainant, Mohd. Shahzada and they both got the accused de-boarded and started walking to hand over the accused to the police. It has also been proved from the evidence led by the prosecution that while the complainant Mohd. Shahzada and injured Ram Priya Kumar were taking the accused Mohd. Faim to hand over to the police, suddenly, the accused Mohd. Faim had taken out a knife from his clothes and gave blows to the complainant Mohd. Shahzada and the injured Ram Priya Kumar causing 'simple' hurt to the person of the complainant Mohd. Shahzada and 'dangerous' injury to the person of the injured Ram Priya Kumar by a sharp object i.e. the knife. The injuries caused to the persons of complainant and the injured have been duly proved by examining witnesses from the hospital. In these facts and circumstances and the evidence produced on behalf of the prosecution, this court is of the considered opinion that the accused Mohd. Faim on the date of incident had boarded the bus after making proper preparation i.e. armed with knife and committed theft of mobile phone of the complainant and when he was caught by the complainant and the injured, he gave knife blows on the chest of the complainant as well as the injured and ran away from the spot. The intention of the accused from the said act appears to be very much clear that he was prepared to go to any extent while committing theft and when he was caught by the complainant and the injured and not only this, he in pursuance of his such intention committed overt act of inflicting simple and dangerous injuries to the persons of the complainant Mohd. Shahzada and the injured Ram Priya Kumar, respectively.
FIR no. 17/2017 State versus Mohd. Faim Page 40 of 5390. As per the evidence led on behalf of the prosecution duly corroborated with MLCs of the complainant and the injured, when the Investigating Officer of his case had gone to AIIMS Trauma Center, where the complainant and the injured were admitted for the treatment, the injured Ram Priya Kumar was found to be unfit for statement and he was on ventilator in the hospital and he regained consciousness after 2-3 days and he was treated for about 22-23 days at AIIMS Trauma Center. The injury caused to the person of the injured Ram Priya Kumar was dangerous to his life, but for the timely medical treatment given to him, his life was saved. Therefore, in my considered opinion, the accused has done such act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, and he has actually caused hurt (simple injury) to the complainant Shahzada and (dangerous injury) to the injured Ram Priya Kumar by such act.
91. The learned Counsel for the Accused has vehemently argued that the weapon of the offence i.e. knife was never recovered during investigation and the description of the knife was also not mentioned in the charge sheet, therefore, the testimonies of the prosecution witnesses have become doubtful. The weapon of the offence i.e. knife used by the accused to cause injuries to the persons of complainant Mohd. Shahzada and another injured Ram Priya Kumar could not be recovered during investigation.
92. Regarding trustworthiness of the injured eye witness, it has been held by Hon'ble Delhi High Court in Yoginder Singh case's (supra) as follows:
FIR no. 17/2017 State versus Mohd. Faim Page 41 of 53"28. When the evidence of an injured eye-witness is to be appreciated, the under-noted legal principles enunciated by the courts are required to be kept in mind.
(a) The presence of an injured eye-witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his deposition.
(b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused.
(c) The evidence of an injured witness is always of great value to the prosecution and it cannot be doubted on account of some embellishment in natural conduct or minor contradictions.
(d) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradiction, exaggeration or embellishment should be discarded from the evidence of injured, but not the whole evidence.
(e) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded."
93. Regarding non recovery of weapon of offence, the Hon'ble Supreme Court in Laly @ Manikandan case's (supra) has dealt with such question as mentioned in para 4.5 and held as follows:
"4.5 It is further submitted by the learned counsel appearing on behalf of the accused that even the recovery of weapon cannot be said to have been proved by the prosecution.
XXXXXX Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in FIR no. 17/2017 State versus Mohd. Faim Page 42 of 53 the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye witness.
8. As observed hereinabove, PW1 is an eye witness. He has fully supported the case of the prosecution. As per settled position of law, there can be a conviction on the basis of the deposition of the sole eye witness, if the said witness is found to be trustworthy and/or reliable. As observed hereinabove, there is no reason to doubt the credibility and/or reliability of PW1. Therefore, it will be safe to convict the accused on the sole reliance of deposition of PW1."
94. There are three eye witnesses of the incident, namely, Mohd. Shahzada (the complainant), Ram Priya Kumar (the injured who came to help the complainant) and Constable Gyan Singh (Traffic Constable posted near the spot at the time of incident), who have given their ocular account of this case. All the three witnesses did not have animus or grudge against the accused Mohd. Faim. The manner of the incident as described by them is corroborated by the medical evidence which shows the presence of injury of the dimension of 2x1x10 cm over left side chest over precordium region of the injured Ram Priya Kumar and of the dimension of 3x1x2 cm over right side mid Axillary region of the complainant Mohd. Shahzada, attributable to a sharp object. Further, the accused has not been able to spell out any plausible reason for his false implications. Therefore, the non recovery of weapon of offence is of no consequence in this case, as direct testimonies of injured witnesses are available to prove the guilt of the accused and their testimonies are the biggest guarantee of the truthfulness of the prosecution case as they have FIR no. 17/2017 State versus Mohd. Faim Page 43 of 53 suffered injuries and the contention raised on behalf of the accused is not sustainable.
95. I have already observed above that from the evidence led on behalf of the prosecution, it has been proved that the accused had committed theft of mobile phone of the complainant in the moving bus.
96. Now, I proceed to examine, in the light of evidence led on behalf of the prosecution if it would be safe to convict the accused for the commission of offence under sections 394 and 397 of the Indian Penal Code. Sections 394 and 397 read as follows:
"394. Voluntarily causing hurt in committing robbery. - If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
"397. Robbery, or dacoity, with attempt to cause death or grievous hurt. - If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
97. Section 394 IPC provides for punishment for voluntarily causing hurt in committing robbery and section 397 IPC provides for punishment for robbery, or dacoity, with attempt to cause Death or grievous hurt.
98. Section 394 applies to the cases where during the course of robbery voluntary hurt is caused. For obtaining conviction under this section, the prosecution must prove:
FIR no. 17/2017 State versus Mohd. Faim Page 44 of 53(i) that the accused, or some one jointly concerned with him, committed or attempted to commit robbery;
(ii) that the accused, or such other person, voluntarily caused hurt in doing so.
99. An act would only fall within the mischief of section 397 IPC if at the time of committing a Robbery or Dacoity the offender-
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person; or
(c) attempts to cause death or grievous hurt to any person.
100. Now, the question before the court is if act of committing theft by the offender can be termed as robbery or dacoity. In the present matter, there is only one offender, so, the question of terming the theft as dacoity does not arise at all. Section 390 IPC defines Robbery as follows:
"In all robbery there is either theft or extortion. When theft is robbery- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces FIR no. 17/2017 State versus Mohd. Faim Page 45 of 53 the person, so put in fear then and there to deliver up the thing extorted."
Explanation- The offender is said to be present if he is sufficiently near to put the other person infear of instant death, of instant hurt, or of instant wrongful restraint."
101. It has been held by the Hon'ble Supreme Court in Venu @ Venu Gopal and Ors. v. State of Karnataka, (2008)3, SCC 94 as follows:
"The provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint."
102. While analysing the provisions in section 390 I.P.C. in order that theft may constitute robbery, the Hon'ble Bombay High Court in State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom.) has held as follows:-
"An analysis of section 390 I.P.C. would show that in order that theft may constitute robbery, prosecution has to establish :
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c)
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
FIR no. 17/2017 State versus Mohd. Faim Page 46 of 53If the end does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery.
We wish to emphasise that (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them and (d) and (e) would theft amount to robbery."
103. In the instant case, it is not the case of the prosecution that in order to the committing of the theft or in committing the theft, the accused gave knife blows to the complainant Mohd. Shahzada and the injured Ram Priya Kumar, therefore, there can be no dispute that the act of the accused Mohd. Faim would not fall either within (a) or (b) of this section. Now, the court has to see, if in carrying away or attempting to carry away property obtained by theft, the offender, for that end, had caused hurt or used any deadly weapon or cause grievous hurt to any person or attempted to cause death or grievous hurt to any person.
104. During the course of arguments, the Learned Counsel for the accused has contended that PW8 Ram Priya Kumar has deposed during his cross-examination that he had snatched the mobile phone from the accused and handed over to the boy/owner.
105. From the statement (Ex.PW2/A) made by the complainant for registration of the case till the testimonies given by him during trial in the court, the consistent case of the complainant, Mohd. Shahzada is that when the accused after stabbing the complainant and the injured ran away from the spot, FIR no. 17/2017 State versus Mohd. Faim Page 47 of 53 the complainant's stolen mobile phone was with him. As per statement (Ex.PW2/A), Mohd. Shahzada informs to the Investigating Officer of this case in the statement for recording of FIR, " mera phone Nokia 3110 jisme 8434154068 number hai bhi usi chor ke pass tha." During trial also, the complainant Mohd. Shahzada (PW2A) says, "the accused had run away after attacking us......the accused had run away with my mobile phone." The said assertions made by the complainant (PW2A) in his examination-in-chief have not been rebutted on behalf of the accused during evidence of the complainant and he was not cross-examined by the defence on this point. It is well settled law that cross-examination is a matter of substance and not of procedure, one is required to put one's version in the cross- examination of an opponent. The effect of non-cross-examination is that the statement of the witness has not been disputed.
106. It has been held by the Hon'ble High Court of Delhi in Rakesh Kumar & Ors. v. State (Delhi), 2009 (163) DLT 658 as under: -
"175. It is settled law that where a witness is not cross- examined on any relevant aspect, the correctness of the statement made by a witness cannot be disputed. (See the decisions of Supreme Court reported as State of U.P. v. Nahar Singh AIR 1988 SC 1328 and Rajinder Prasad v. Darshana Devi AIR 2001 SC 3207)."
107. Further, the Hon'ble MP High Court in Moti Lal and Others v. State of Madhya Pradesh, 1990 Crl.L.J (NOC) 125 has held that it is a well settled principle of law that when the accused does not challenge a prosecution witness in his cross- examination on certain facts, it leads to inference of admission of FIR no. 17/2017 State versus Mohd. Faim Page 48 of 53 that fact. In Moti Lal's case (supra), the Hon'ble MP High Court observed as follows:-
"In Velu Pillai Padikalingam v. Paramandam it was observed; "every cross-examiner should and can if he is careful indicate in cross-examination whichever part of the evidence given in examination-in-chief is challenged and an omission to do so would lead to the inference that the evidence is accepted subject of course to its being as- sailed as inherently improbably." Again in Sayed Aleem v. State of Karnataka it was observed that non-cross-exami- nation of prosecution witnesses of certain facts leds to ad- mission of that fact, circumstances could be taken for con- sideration. Thus, non-consideration, particularly P.W3 Achhelal and P.W.4 Bhajna, on what is being projected in the defence has been rightly held by the trial as sheer af- terthought."
108. Similarly, The Hon'ble Supreme Court in Sarwan Singh v. State of Punjab, 2002 (4) RCR (Crl) 471 held as follows:
"It is a rule of essential justice that whenever the opponent has declined to avail himself of the opportunity to put his case in cross-examination it must follow that the evidence tendered on that issue ought to be accepted. A decision of the Calcutta High Court lends support to the observation as above. (See in this context AEG Carapiet v. AY Derderian : AIR 1961 Calcutta 359 (P.B. Mukherjee, J. as he then was)]."
109. In view of the above discussion and in the light of judgments in Rakesh Kumar's case (supra), Moti Lal's case (supra) and Sarwan Singh's case (supra), I find no merit in the submission made by the defence counsel. The statement made by the injured, Ram Priya Kumar(PW8) in his cross-examination to the effect that he had snatched the mobile phone from the accused and handed over to the complainant is of no avail to the defence in the light of clear and un-controverted testimonies of the complainant, Mohd. Shahzada (PW2A) that the stolen mobile FIR no. 17/2017 State versus Mohd. Faim Page 49 of 53 phone was with the accused when he had run away after stabbing him. I further hold that the prosecution has been able to establish that the stolen mobile phone of the complainant was with the accused when he ran away from the spot after giving knife blows to the complainant and the injured.
110. While making an analysis of the scope of application of Section 397 of IPC, it has been held by Hon'ble High Court of Bombay in State of Maharastra v. Vinayak Tukaram Utekar and Another, 1997 Cri.LJ 3988 as follows:
"30. We wish to emphasis that in most of the case where an offender obtains a property during theft and when the victim or witnesses try to catch him the offender tries to run away and if armed with a weapon assaults them, both the facts namely:
(a) in attempting to carry away property obtained by theft the offender causing hurt to the person who is trying to foil his attempt; and
(b) the normal instinct of self-preservation on account of which the offender of which the offender tries to run away and foil the bid of the person who endeavors to thwart it by assaulting the said person, may co-exist.
To ignore facet (a) in our judgment, would cause gross miscarriage of justice.
31. There can be no quarrel that knife is a deadly weapon within the ambit of expression "deadly weapon" as used in section 397, Penal Code, 1860.
32. For the said reasons we find no merit in the submission of Mrs. Revati Mohite Dere and find merit in the submission of Mr. Borulkar that respondent is guilty of an offence punishable under section 397, Penal Code, 1860.
33. Not only do we feel that the Respondent Vinayak is guilty of an offence under section 397, Penal Code, 1860 but he is guilty of an offence punishable under section 394 read with 397, Penal Code, 1860.
34. It is significant to point out that section 397, Penal Code, 1860 only provides that if the offender while committing robbery or dacoity is armed or uses a deadly FIR no. 17/2017 State versus Mohd. Faim Page 50 of 53 weapon etc. he shall not be awarded a sentence of less than seven years R.I. It deals with robbery/dacoity of a more serious nature than that referred to in sections 394 and 395, Penal Code, 1860 respectively."
111. It has been held by Hon'ble High Court of Bombay in Vinayak Tukaram Utekar's case (supra) that knife is a deadly weapon within the ambit of an expression "deadly weapon" as used in section 397 IPC. The facts of Vinayak Tukaram Utekar's case (supra) are quite similar to the facts of instant case. Regarding applicability of section 390 IPC in the facts of that case, it has been held by Hon'ble High Court of Bombay in Vinayak Tukaram Utekar's case (supra) as follows:-
"The moot point is whether for the end contained in (c) the Respondent Vinayak inflicted hurt by means of a knife to the informant-victim. Our answer to this point is in the affirmative.
It would be useful here to refer to the evidence of the informant, Hemant Holkar (P.W.1) In Paragarph 1 he has stated that after Respondent Vinayak had snatched his gold buttons he caught his hand. The Respondent tried to run away. He caught him. Respondent Vinayak took out the back-pocket of his pant and inflicted a knife blow on his person.
25. In our Judgment inasmuch as during his act of taking away the property obtained by the theft Respondent Vinayak cause hurt to the informant, his act would fall within the ambit of section 390, Penal Code, 1860.
26. Our view is fortified by the decision of the Apex Court reported in 1980 Supp SCC 344 : AIR 1980 SC 788, Kusho Mahton v. The State of Bihar cited by S.R. Borulkar learned counsel for the appellant in both the appeals. We intend reproducing the relevant portion from the same. It reads thus:
"After hearing counsel for the parties, we are of the opinion that the appellants have been rightly convicted under section 395, Penal Code, 1860, because while carrying away the stolen property they exploded cracker to FIR no. 17/2017 State versus Mohd. Faim Page 51 of 53 frighten the inmates in the house who wanted to pursue them."
27. We are in respectful agreement with the said judgment of the Apex Court."
112. In the light of the judgment in Vinayak Tukaram Utekar's case (supra), the facts of which case are similar to the present case, and in the light of un-controverted testimonies of the complainant Mohd. Shahzada duly corroborated by the testimonies of other witnesses and medical record, I am of the considered opinion that the prosecution has been successful in proving that in carrying away property obtained by theft, the accused, Mohd. Faim for that end voluntarily caused hurt to the complainant, Mohd. Shahzada and attempted to cause death to the injured Ram Priya Kumar.
113. In the light of the evidence and discussion above- stated, it has been proved that the accused Mohd. Faim has committed theft of mobile phone of the complainant in the moving bus. It has also been proved that when the accused Mohd. Faim was caught stealing the phone by the complainant, he inflicted simple injury to the person of the complainant, Mohd. Shahzada and also inflicted injury to the person of the injured, Ram Priya Kumar which was dangerous to his life with a knife and ran away from the spot with the stolen mobile phone. The accused Mohd. Faim has not tendered any reasonable explanation of his conduct.
114. To sum up, in view of above discussion, the prosecution has proved beyond all reasonable doubt the charge FIR no. 17/2017 State versus Mohd. Faim Page 52 of 53 under section 307/394/397 of the Indian Penal Code against the accused Mohd. Faim, so accused Mohd. Faim is found guilty of having committed the said offences and hence he is convicted of offence punishable under sections 307/394/397 of the Indian Penal Code, 1860.
115. Let the convict be heard on the question of sentence.
Digitally signed by DR DR RAKESH
RAKESH KUMAR
Date: 2024.02.07
KUMAR 15:26:59 +0530
Pronounced in the open court (DR. RAKESH KUMAR)
th
on 07 of February, 2024. Additional Sessions Judge, (FTC)-02, South District, Saket Courts, New Delhi(JKu) FIR no. 17/2017 State versus Mohd. Faim Page 53 of 53