Delhi District Court
State vs . Mukesh & Anr. Page No.1/31 on 28 September, 2019
IN THE COURT OF MS. SUNENA SHARMA, ADDITIONAL
SESSIONS JUDGE-03, SOUTH DISTRICT, SAKET COURTS, NEW
DELHI
SC No.6794/2016
CNR No.DLST01-000118-2012
FIR No.44/12
U/s: 392/397/34PC
Police Station : Saket
State
Vs.
(1) Mukesh @ Nankiya
s/o Sh.Ramu
R/o A-49, Tigri, JJ Colony,
New Delhi
(2) Manoj
s/o Sh.Ram Swaroop
R/o A-58, Tigri, JJ Colony,
New Delhi .... Accused
Date of Committal : 15.05.2012
Final arguments concluded on : 26.08.2019
Judgment pronounced on : 28.09.2019
JUDGMENT
1. Vide this judgment, I shall decide session case number 6794/2016, which is an outcome of FIR No. 44/12 registered at PS Saket, u/s 392/397/411/34 IPC in connection with a case of robbery.
Prosecution case as per charge sheet
2. Briefly stated the facts of prosecution case as emerging out from the charge sheet are that on 05.02.2012, DD No. 32 A was received at PS Saket. Pursuant to said DD, IO SI Bharat Lal alongwith Ct. Dholu Ram reached at the spot near Press Enclave Road, Geetanjali Bus Stop where he met the complainant Anuradha and her State Vs. Mukesh & anr. Page No.1/31 FIR No.44/2012 friend Vineeta. IO recorded the statement of complainant Ex.PW1/A, to the effect that complainant was working in Mckinsey & Company at Gurgoan as a Senior Executive Assistant. On 05.02.2012, at about 09:15 pm she alongwith her friend Vineeta Rai were going towards the Humanyupur by riding an auto-rikshaw from M Block Saket. When auto-rickshaw reached near Geetanjali Bus stop at Press Enclave Road, one black colour motorcycle with two boys riding on the same suddenly came near left side of the auto rickshaw and stopped their motorcycle in front of auto. The boy who was sitting as pillion rider alighted from the bike and took out one gun from his wearing jacket and put the same on the chest of the complainant and asked her to hand over whatever she was having with her. Upon this, complainant got frightened and immediately handed over her bag to said boy. After taking the said bag, the boy again rode on the motorcycle and went towards PTS Malviya Nagar, Arvind Marg. As per the complainant, her bag was containing one black berry mobile, one Nokia mobile model C-3, cash of Rs. 16,500/- one I Pad (Apple), house keys, sun glasses, HDFC Bank debit & credit card , health insurance card & office I Card of the complainant. Complainant further stated that she can identify the boy who had taken away her bag and requested the police to take action against said boys.
2.1. On the aforementioned statement of the complainant available on the record as Ex.PW1/A, IO prepared the rukka Ex.PW10/B and got the FIR Ex.PW8/A registered. During investigation, IO prepared the site plan of the place of occurrence at the instance of complainant, recorded statement of witness Vineeta. IO also made efforts to trace out the case property. During investigation, IO also got the portrait of the suspect prepared through complainant. Thereafter, State Vs. Mukesh & anr. Page No.2/31 FIR No.44/2012 on the instructions of senior police official further investigation was assigned to ASI Paramjeet. On 16.03.2012, SI Paramjit got a secret information that the accused involved in the incident of present FIR was coming to Asian Market for selling out the robbed mobile phone. Said information was shared by IO SI Paramjeet Singh with other police staff. IO also requested some public persons to join the raiding party but none agreed. The IO deputed the staff on the gate of Asian Market and about 04:15 pm one person was found coming on foot from the side of MB Road Khanpur. Said person was apprehended by the raiding party at the identification of secret informer and he revealed his name Mukesh @ Nankiya. Upon personal search of accused, he was found carrying one loaded country made pistol with one live cartridge. One live cartridge was also found from the right side pocket of the pant of the accused. The accused was also found carrying in the front pocket of his shirt two Nokia mobile phones and from the right pocket of his pant one LG and one Nokia mobile phones were recovered. IO prepared the sketch of pistol and two live cartridges and seized them in a white pullanda and sealed them with the seal of PS. IO also filled up the CFSL form and handed over the seal after use to ASI Anand Prakash. The recovered mobile phones were also taken into police possession and as per the accused said mobile phones were robbed from different places.
2.2. During interrogation, accused Mukesh further disclosed that he alongwith his associates used to commit robbery of the mobile phones and ladies purses and his disclosure statement to this effect was also recorded wherein he made disclosure about his and his friend's Nadeem @ Drekula in the incident of robbery committed at Press Enclave Road i.e. regarding the incident of present FIR. During State Vs. Mukesh & anr. Page No.3/31 FIR No.44/2012 investigation, IO sent the pistol recovered from the possession of accused to CFSL and after receiving the ballistic report he also sought sanction u/sec.39 Arms Act. IO arrested the accused Mukesh and pursuant to his disclosure statement, accused led the police team to JJ Colony, Tigri, House No.A-58, Ground floor from where co-accused Manoj was also apprehended on the identification of accused Mukesh and from the personal search of accused Manoj one robbed mobile phone of Blackberry with IMEI number 359199041121358 was recovered. Said mobile phone was also taken into police possession. One motorcycle DL 4S AK 3962 TVS Victor which was allegedly used by the accused persons in the commission of robbery of present FIR was recovered at the instance of accused Mukesh from his house. Thereafter, IO deposited the case property in the malkhana of PS Saket. IO also moved the application before Ld. Magistrate for conducting judicial TIP of accused persons but they refused to join the same. Despite efforts the other co accused namely Nadeem @ Drakula could not be arrested.
2.3. After completing the investigation, IO filed the chargesheet against accused Manoj and Mukesh before Ld. MM on 15.05.2012, upon which cognizance was taken by Ld. Magistrate. After compliance of section 207 Cr.PC Ld.Magistrate committed this case to the court of session and the case came to be assigned to this court on 30.05.2012.
2.4. Vide order dated 03.09.2012, charge u/s 392/34IPC was framed against both the accused and charges for the offences u/s 397 IPC & u/s. 25 Arms Act was additionally framed against accused Mukesh @ Nankiya and charge for the offence u/s 411 IPC against State Vs. Mukesh & anr. Page No.4/31 FIR No.44/2012 accused Manoj, to which both the accused pleaded not guilty and claimed trial.
Prosecution evidence
3. In order to prove its case, prosecution examined 12 witnesses. For the sake of easy reference, said witnesses have been categorized under the following heads where their testimonies have been discussed in this judgment.
A) Public witnesses (pg 5 to 7)
1. PW1 Anuradha Chhetri (complainant/victim)
2. PW2 Vineeta Rai (Complainant's friend/eye witness) B) Formal witnesses (pg 7 to 9)
1. PW3 Ct. Amarjeet
2. PW5 HC Ramesh Kumar
3. PW8 HC Rameshwar
4. PW11 DCP Promod Kumar Kushwaha
5. PW12 Israr Babu, Nodal officer Vodafone C)Material witnesses of investigation(pg.9 to 13)
1. PW4 Ct. Dolu Ram
2. PW6 HC Suresh Chand
3. PW7 HC Randhawa
4. PW10 SI Bharat Lal D) Expert witnesses (Pg.14 )
1. PW9 Dr. N.P. Waghmare, Director, FSL, Goa Public witnesses
4. PW1 Ms. Anuradha Chhetri is the complainant. She in her examination in chief deposed that on 05.02.2012, at about 9.15pm she alongwith her friend Vineeta Rai were going to her house from M- Block, Saket in an auto and when they reached near Geetanjali, Press Enclave Road, two boys on black motorcycle crossed their auto from left side and stopped their motorcycle in front of their auto and as a State Vs. Mukesh & anr. Page No.5/31 FIR No.44/2012 result, the auto stopped. She deposed further that the pillion rider got down from the motorcycle and by pointing out pistol on her (PW1) chest, he demanded her to handover whatever, she was having. Further that due to fear, she handed over her bag containing one C-3 Nokia phone, one Blackberry and cash of Rs.16,500/-, one I-pod make Apple, and her Wallet containing credit card, debit card, insurance card etc to said accused. PW1 deposed further that after taking her bag, accused ran away on their motorcycle. Further that thereafter, PW1 and her friend went to PS Saket and lodged the FIR. Police recorded her statement Ex.PW1/A bearing her signature at point A. PW1 deposed further that on the next day i.e. 06.02.2012, she was called to police station and police took her to the place of occurrence and upon her pointing out, police prepared the site plan of place of occurrence. Thereafter, she was taken to Kamla Nagar Police station and upon her asking, the portrait of accused persons were prepared. PW1 deposed further that she could identify those persons and she identified accused Mukesh as the person, who had taken her bag on gun point. PW1 deposed further that she could not identify the other accused as at the time of incident, he was wearing a helmet. She deposed further that on 07.02.2012, in the police station she informed the police about the details of the lost items and on 19.03.2012, she identified the accused present in the court. PW1 identified one White colour Blackberry mobile phone Ex.P1 which was robbed from her possession by accused.
5. PW2 Ms. Vineeta Rai was the friend of victim/complainant who was accompanying her at the time of incident. She has deposed that on 05.02.2012, she alongwith her friend Anuradha Chhetri were coming from M-Block Saket in an auto and were going towards State Vs. Mukesh & anr. Page No.6/31 FIR No.44/2012 Safdarjung Enclave. At about 9.15pm, when they reached near Geetanjali bus stop on Press Enclave Road, one motorcycle passed over their TSR from the left side and stopped in front of their TSR and the pillion rider got down from the motorcycle and took out gun and pointed it on the chest of her friend Anuradha and he asked her friend to hand over whatever she was having with her. PW2 deposed further that her friend gave her bag to him. Thereafter, both accused ran away from the spot. PW2 and her friend PW1 went to police station and lodged the report. She deposed further that she could identify the boy who was pillion rider and she pointed out towards accused Mukesh and identified him as pillion rider and stated that he(Mukesh) had taken the bag of her friend on gun point. She deposed that she could not identify the driver of driver of the motorcycle as at that time, he was wearing a helmet.
Formal witnesses
6. PW3/Ct. Amarjeet has deposed that on 27.03.2012, on the direction of SI Paramjeet, MHCM HC Ramesh handed over him a sealed pullanda and he deposited the same in FSL Rohini vide RC No.168/21 and handed over the receipt to MHCM. PW3 has deposed further that the pullandas were not tempered with till it remained in his possession.
7. PW5/HC Ramesh Kumar is the MHCM. As per his version, on 16.03.2012, SI Paramjeet had deposited one motorcycle no.DL-4S- AK-3962 in malkhana and he (PW5) had made entries in this regard at Sr. No.585. On 26.04.2012, said motorcycle was released to Ram Swaroop as per the order of Ld. MM. On 16.03.2012, SI Paramjeet also deposited a sealed pullanda with the seal of PS containing State Vs. Mukesh & anr. Page No.7/31 FIR No.44/2012 country made pistol and two live cartridges in the malkhana and also deposited two mobile phones make Nokia, one mobile phone make Black Berry and he made entries in this regard in register no.19 at Sr. no.585.
7.1 PW5 deposed further that on 18.03.2012, SI Paramjeet also deposited four mobile phones and one another mobile phone recovered from accused Mukesh seized u/s 102 Cr.PC and entries were made by him in this regard in Register no.19 at Sr. No. 588. On 27.03.2012, vide RC No.1868/21/12, he handed over the sealed pullanda containing country made pistol and live cartridges to Ct.Amar Deep for depositing the same at FSL Rohini and made entry in this regard in Register no.19. On 04.05.2012, Ct. Amarjeet brought back the sealed pullanda and FSL report, which were deposited in the malkhana and the FSL report was handed over to SI Bharat Lal. In this regard, PW5 made entry in Register no.19, copy of same are Ex.PW5/A (5 pages), road certificate dated 27.03.2012 is Ex.PW 5/B and receiving of FSL is Ex.PW5/C.
8. PW8/HC Rameshwar has deposed that on 05.02.2012, at about 11.25pm, on receipt of rukka from Ct. Dholu Ram sent by SI Bharat Lal, he registered the present FIR as Ex.PW8/A and made endorsement on rukka vide Ex. PW8/B. After registration of FIR, copy of FIR and original rukka was handed over to Ct. Dholu Ram to deliver the same to SI Bharat Lal. PW8 has deposed further that on 05.02.2012 at about 10.20 pm, on receipt of information from PCR regarding snatching of cash Rs.17,000/-, he recorded DD No.32A as Ex.PW8/C and said DD was marked to SI Bharat Lal and was sent to him through HC Rajender.
State Vs. Mukesh & anr. Page No.8/31 FIR No.44/20129. PW11/Sh. Pramod Singh Kushwaha, Addl. Deputy Commissioner of Police, who accorded sanction u/s 39 Arms Act has deposed that on 17.05.2012, report u/s 173 Cr.P.C. alongwith statement of witnesses, FSL report and seizure memos were produced before him and after perusing the same, he accorded sanction u/s 39 Arms Act for prosecution of accused Mukesh vide Ex.PW11/A.
10. PW12/Ishar Babu Nodal Officer Vodafone has proved the CAF of complainant Anuradha Chhetri mobile phone no.9654502370 as Ex. PW12/A, letter of company regarding issuance of connection as Ex. PW12/B, CDR w.e.f. 01.02.2012 to 07.02.2012 as Ex. PW12/C and certificate u/s 65-B of Indian Evidence Act as Ex. PW12/D. Material witnesses of investigation
11. PW4/Ct. Dholu Ram has deposed that on 05.02.2012, on receipt of copy of DD No.32A, he alongwith SI Bharat Lal reached at Press Enclave Road near Geetanjali Bus stop where complainant Ms. Anuradha, her friend Vineeta Rai and auto driver Sohan Mehta met them. SI Bharat Lal recorded statement of Anuradha and prepared rukka and handed over the same to him and he (PW4) got the case registered and handed over the copy of FIR and original rukka to the IO and IO prepared the site plan.
12. PW6/HC Suresh Chand has deposed that on 16.03.2012, he alongwith SI Paramjeet, ASI Shashi Kant, ASI Anand Prakash, HC Balbir Singh, HC Mukesh, HC Randhawa, HC Ajit, HC Billoo Singh, HC Vijay Pal, Ct. Umesh, HC Asgar Ali were present in Asian Market, MB Road. At about 3.45pm, SI Paramjeet received a secret information State Vs. Mukesh & anr. Page No.9/31 FIR No.44/2012 that a person, who was involved in snatching/robbery of bags from the lady passengers on the point of arms, would come in Asian Market at about 4:15 pm to sell the looted mobile. SI Paramjeet shared said information with all the members and prepared a raiding team and at about 4.15pm, on pointing out of secret informer, PW6 alongwith HC Randhawa apprehended the accused whose name was revealed as Mukesh during inquiry.
12.1. PW6 deposed further that IO SI Paramjeet conducted personal search of accused Mukesh and recovered two mobile phones make Nokia from the pocket of his wearing shirt, and two another mobile phones, one was of make LG and another was of Nokia were recovered from the right pocket of his wearing pant. One loaded katta was also recovered from left dub of his wearing pant and one live cartridge was also recovered from right pocket of his wearing pant. IO prepared the sketch of the recovered katta and two live cartridge vide memo Ex.PW6/A and also measured the same, sealed the same with the seal of PS and seized it vide seizure memo Ex.PW6/B. IO also filled up FSL form and seal after use was handed over to ASI Anand Prakash. IO seized all the four recovered mobile phones and seized them u/s 102 CrPC vide seizure memo Ex.PW6/C. IO after making inquiries from accused Mukesh arrested him vide arrest memo Ex.PW6/D and conducted his personal search vide memo Ex.PW6/E and recorded his disclosure statement Ex.PW6/F. 12.2 PW6 deposed further that in disclosure statement accused Mukesh confessed about his involvement and involvement of two other associates namely co-accused Manoj and Ajay in the present case and he led the police to his co-accused Manoj's house at A-58, JJ State Vs. Mukesh & anr. Page No.10/31 FIR No.44/2012 Colony, Tigri and pointed out towards accused Manoj and during search of accused Manoj one mobile phone make Blackberry of white colour was recovered from the pocket of his wearing shirt. IO also made inquiry from accused Manoj and upon his pointing out, a motorcycle bearing no. DL-4S-AK-3962 TVS Victor Mettalic silver colour and blackberry phone were also seized vide seizure memo Ex.PW6/H and Ex.PW6/G respectively. IO arrested accused Manoj vide arrest memo Ex. PW6/I and also conducted his personal search Ex.PW6/J and also recorded his disclosure statement Ex.PW6/K. 12.3 PW6 deposed further that accused Mukesh led them to ganda nala compound of Baba Ramdev Mandir Tigri where he had thrown the snatched bag/purse after taking out the articles. IO prepared pointing out memo of said place is Ex.PW6/L. Accused then led them to the place of occurrence i.e. Rai Pithora Qilla, Press Enclave Road and IO prepared pointing out memo Ex.PW6/M. Accused Mukesh pointed out place where he threw mobile phone as well as place of occurrence before going to the house of accused Manoj. IO also prepared site plan of the place from where accused was apprehended and recoveries were effected from him, as Ex.PW6/N. He deposed further that both the accused were taken to hospital for their medical examination and then brought to PS and put behind the lockup and case property was deposited in malkhana.
12.4 PW6 correctly identified both the accused in the court. He also identified one country made pistol alongwith two fired cartridge as Ex.PW6/P1 & Ex.PW6/P2 and 4 mobile phones i.e. three mobile phones of Nokia (one of Nokia C1 silver and black colour, Nokia 2690 of black and white colour and third mobile of Nokia 1650 of red and State Vs. Mukesh & anr. Page No.11/31 FIR No.44/2012 crème colour) and one mobile phone of make LG wireless FM black and white colour as Ex.PW6/P3 (colly.) recovered from possession of accused Mukesh as Ex.PW6/P3 (colly). PW6 also identified the mobile phone make Blackberry recovered from the possession of accused Manoj.
13 PW7/HC Randhawa has deposed more or less on the same lines of PW6 HC Suresh Chand regarding the proceedings which took place on 16.03.2012 regarding apprehension of accused Mukesh and recovery of four mobile phones and one pistol with one live cartridge from his possession. He has deposed further that on 18.03.2012, he had also joined the investigation with IO SI Paramjeet and accused Mukesh took them to his house at A-49, JJ Colony, Tigri, Delhi and from the room on second floor, he got recovered one mobile phone make Nokia 5233 Black colour from under the bed. IO seized the same u/s 102 Cr.PC vide memo Ex.PW7/A. Accused Mukesh also got recovered 4 other mobile phone from his room which he had kept in a bag. Out of four mobile phones two mobile phones were of make Nokia, one was of Tata Indicom and one was of make LG. IO seized the same u/s 102 Cr.PC vide Ex.PW7/B. PW7 correctly identified both the accused as well as the case property in the court.
14. PW10/SI Bharat Lal has deposed that on 05.02.2012, DD No.32A Ex.PW10/A was received regarding an incident of robbery in TSR at Hauz Rani Press Enclave Road committed by two persons riding on a motorcycle and said DD was assigned to him through HC Rajender. On receipt of said DD, he alongwith Ct. Dholu reached at Press Enclave Road, near Geetanjali bus stop where Smt. Anuradha alongwith her friend Vineeta and a TSR driver Sohan Mehto met him State Vs. Mukesh & anr. Page No.12/31 FIR No.44/2012 and he made inquiries from Anuradha and recorded her statement Ex.PW1/A regarding robbery of her hand bag containing mobile phone of Black Berry, Nokia, Cash Rs.16,500/-, I pod (Apple), her keys, sun glasses, debit and credit card of HDFC Bank.
14.1 PW10 deposed further that on statement of complainant Ex.PW1/A, he prepared rukka Ex. PW10/B and handed over the same to Ct. Dholu Ram for registration of FIR, who got the FIR registered and returned at the spot and handed over copy of FIR and original rukka to him. At the instance of complainant, PW10 prepared the site plan Ex.PW10/C and also recorded supplementary statement of complainant and examined Vineeta, friend of complainant and TSR driver Sohan Mehto. He deposed further that he tried to search the accused persons and complainant got prepared the portrait of the offenders at Crime Report office. He deposed further that on 11.02.2012, further investigation was assigned to SI Paramjeet who arrested the accused persons and got recovered four mobile phones from accused Mukesh.
14.2 PW10 has deposed further that on 13.04.2012, further investigation was again assigned to him as SI Paramjeet was on medical leave. PW10 identified the signature of SI Paramjeet on memos already proved by PW6 and PW7. PW10 deposed further that during investigation, on the basis of FSL report Ex.PW9/A, he obtained requisite sanction u/s 39 of Arms Act and also obtained CAF and CDR of mobile phone number 9654502370 of complainant from vodafone and prepared supplementary chargesheet and filed the same in the court.
State Vs. Mukesh & anr. Page No.13/31 FIR No.44/2012Expert witnesses
15. PW9 Dr. NP Waghmare has deposed that on 27.03.2012, he received one sealed parcel with the seal of PS received in FSL laboratory for examination and opinion. The said parcel was containing one country made pistol of 8mm.315" marked by him as Ex.F1 and two cartridges of 8mm/.315" marked as Ex.A1 and A2. He deposed further that on examination, PW9 found firearm as country made pistol and in working condition and both the cartridges and country made pistol were ammunition and firearm as defined in Arms Act. He prepared a detailed report Ex.PW9/A. PW9 also identified the country made pistol and two empty shell of cartridges as Ex.P6-1 and Ex.PW6/P2( colly) which were examined by him. Witness deposed further that both cartridges were live at the time of their examination.
Statement of accused u/s 313 Cr.PC
16. After completion of prosecution evidence, statements u/s 313 Cr.P.C. of both accused were recorded wherein all the incriminating evidence which came against them during trial was put to them but the same was denied by them as wrong as incorrect and they came up with the defence that they were innocent and had been falsely implicated in the present case. Accused Manoj and Mukesh pleaded that nothing was recovered from their possession and mobile phones were planted upon them by the police and that they had not made any disclosure statement to police. Accused Mukesh on the question of his identification by PW1 deposed that he was identified by PW1 Anuradha at the instance of her lawyer. In his statement u/s 313 CrPC, accused Mukesh chose to lead defence evidence, but later State Vs. Mukesh & anr. Page No.14/31 FIR No.44/2012 on he opted not to examine any defence evidence and in view thereof, defence evidence was closed.
Arguments of Ld. Addl. PP
17. On behalf of the prosecution, Ld. Addl. PP Sh. Pravin Rahul argued that complainant Anuradha, who is the victim of the offence has come up with a clinching evidence and nothing has come out in her cross-examination to discredit her version. It is further argued that, victim's version has also been corroborated by her friend PW2 Vineeta, who was accompanying her at the time of incident and both the said witnesses have correctly identified accused Mukesh and attributed similar role to him in their deposition. It is further argued that even the recovery of country made pistol, used in the offence, has also been successfully proved by consistence version of PW6 HC Suresh Chand, PW7 HC Randhawa. As regard the role of other accused, Ld. Addl. PP has fairly conceded that eye witnesses have not supported prosecution case qua his (Manoj) role.
Defence Arguments
18. Per contra, Ld. defence counsel Sh. Ajay Sharma strenuously argued that prosecution has failed to prove the charges against the accused. It is further urged that accused have been falsely implicated in this case by planting false recoveries on them. It is further argued that no public witnesses were joined at the time of alleged recoveries and police witnesses being interested witnesses, their sole testimonies cannot be relied upon. It is also argued that as per complainant, after alleged incident, she had gone to police station and lodged the FIR. Whereas, as per IO and other police witnesses, police had reached the spot pursuant to a DD regarding incident of State Vs. Mukesh & anr. Page No.15/31 FIR No.44/2012 robbery and they met the complainant and her friend at the spot and there only, statement of complainant was recorded and FIR was got lodged by sending Ct. Dholu Ram to PS with the rukka. It is argued that said discrepancy in the prosecution case raises a serious doubt on its truthfulness. Further that, no TIP of Blackberry phone allegedly recovered from possession of accused Manoj has been got conducted during investigation nor any proof of its ownership has been placed on record by the complainant or the IO.
Court's discussion on facts, evidence and applicability of relevant law.
19. In the instant case for proving the charges of robbery prosecution has mainly relied upon the testimony of complainant Anuradha Chhetri and her friend Vineeta Rai, who was accompanying her at the time of alleged incident and they both were examined as PW1 and PW2 respectively.
20. PW1 in her examination in chief deposed that on 05.02.2012 at about 9.15pm, she alongwith her friend Vineeta were going to her house from M Block Saket in an autorickshaw. When they reached Geetanjali Press Enclave Road, two boys on a black motorcycle crossed their autorickshaw from left side and stopped their motorcycle in front of their autorickshaw and as a result the auto rickshaw also stopped. PW1 further deposes that the pillion rider of said motorcycle got down and pointed out a pistol towards her chest and demanded from her whatever she was possessing. She deposed further that she got scared and handed over her bag containing some cash, one Nokia phone, one Blackberry phone, one I pod make Apple, her wallet containing credit card, debit card and insurance card etc. to said boy. After taking said bags both the said boys ran away on State Vs. Mukesh & anr. Page No.16/31 FIR No.44/2012 their motorcycle.
21. During her examination in the court PW1 pointed out towards accused Mukesh and stated that it was he, who had taken her bag on gun point. She deposed further that she could not identify the other accused as he was wearing helmet at that time. As per version of PW1 immediately after the incident, they went to the police station Saket and lodged the FIR. PW1 identified her signature on her statement Ex.PW1/A and deposed further that on the next date i.e. on 06.02.2012, she was called in the police station and police took her to place of occurrence and prepared site plan of said place on her pointing out. Thereafter, at her instructions portrait of accused were also got prepared at Kamla Nagar Police Station.
22. The above version of the complainant is consistent with her statement Ex.PW1/A because even in said statement she claimed that she could identify only one boy who had snatched her bag on gun point. The sequence of events narrated by her in the court is well in consonance with the sequence given in said complaint. The version of complainant is also duly corroborated by her friend Vineeta Rai i.e. PW2 because she has also deposed on the same lines as deposed by PW1. PW2 in her examination in chief corroborated the version of complainant by stating that on 05.02.2012, she alongwith her friend Anuradha were coming from M Block in an autorickshaw. At about 9.15pm, when they reached Geetanjali Bus stop on Press Enclave Road, one motorcycle interjected their TSR and the pillion rider got down from the motorcycle, took out a gun and put the same on the chest of her friend Anuradha i.e. the complainant and asked the complainant to hand over whatever she was having. Consequently, her friend handed over her bag to said boy and both State Vs. Mukesh & anr. Page No.17/31 FIR No.44/2012 the boys ran away from the spot. Even as per PW2, the other boy on the motorcycle was wearing a helmet and therefore, she could not identify him. PW2 however, correctly identified accused Mukesh and stated that he was the one who had taken away the bag of her friend on gun point. Though Sohan Mehto, the TSR driver was also cited as a witness in this case but despite efforts he could not be examined as he was not traceable at his given addresses.
23. I have carefully perused the cross examination of both the complainant as well as the eye witness Vineeta Rai and perusal of their deposition shows that both the witnesses even in their cross examination, have remained consistent in their testimonies on all material aspect and the defence failed to elicit anything to raise any doubt on the credibility of their version. In the cross examination of PW1, a question was put to her whether the gun which the accused Mukesh allegedly used in the offence was full or empty or whether it was an actual gun or a toy gun. To said questions, PW1 replied that she could not say whether the gun was full or empty nor she was sure whether it was an actual gun or a toy gun. In the wake of said answer, an argument was raised from the defence side that section 397 IPC which is an aggravated form of robbery cannot be attracted as the prosecution has failed to conclusively prove that the weapon allegedly used in the offence was a deadly weapon. It is argued that the complainant was not aware whether the gun allegedly used in the offence was a real gun or a toy gun.
24. However, I find the above argument totally meritless for the reason that in the instant case, the accused Mukesh was arrested on 16.03.2012 and at the time of his arrest he was found carrying one State Vs. Mukesh & anr. Page No.18/31 FIR No.44/2012 pistol Ex.F1 with two live cartridges Ex.A1 and Ex.A2 and as per ballistic report Ex.PW9/A, the same were found to be 'fire arm and ammunition' as defined in Arms Act. Even otherwise, the victim or the eye witness by simply looking at the gun could not know whether the gun allegedly used in the offence was an actual gun or a toy gun but, the use of gun was sufficient to create a fear of instant death in their mind so as to bring the case within the ambit of section 390 IPC. The accused cannot be allowed to take advantage from the flaw on the part of the prosecution in not getting said gun identified from the victim or the eye witness at the time when said witnesses were examined in the court.
25. As per Part 2 of section 390 IPC, extortion becomes robbery if the offender, at the time of committing 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 some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Extortion has been defined u/sec. 383 IPC which says that whoever intentionally puts any person in fear of an injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver any person any property or valuable security, or anything signed or sealed which may be converted into valuable security commits 'extortion'. As such robbery is an aggravated form of offence of theft or extortion and the aggravation is in the violence of death, hurt or restraint and it is not necessary that violence should be actually committed but even an attempt to commit is enough.
State Vs. Mukesh & anr. Page No.19/31 FIR No.44/201226. The extortion becomes robbery when following conditions are satisfied:-
(1) When a person commits extortion by putting another in fear of instant death, wrongful restraint or hurt. (2) The offender induces the person under such fear to deliver the property at that very instant i.e. then and there. (3) The offender is in the near presence of such a person so put in fear at the time of extortion.
27. Even in the instant case, though no actual violence was committed by the accused Mukesh but, his act of putting the pistol on the chest of the complainant and asking her to hand over whatever she was carrying with her is sufficient to show that a fear of instant death or instant hurt was created in the mind of complainant and by putting her under such fear, she was induced to hand over her belongings which she was carrying in her bag at that time. Out of fear complainant handed over her bag containing mobile phones, I pod, cash, credit, debit card etc. and after taking her bag, both the boys fled away from the spot. As per both the victim as well as the eye witness it was accused Mukesh Nankiya who had put the pistol on the chest of the complainant and took away her bag.
28. It is pertinent to point out here that although the accused Mukesh was arrested on 16.03.202 after a gap of more than one month from the date of incident which occurred on 05.02.2012 but, after his arrest the IO had immediately moved application for conducting his TIP as well as the TIP of the other co-accused namely Manoj, who was subsequently arrested pursuant to the disclosure statement of accused Mukesh. However, both the accused refused to join Judicial TIP by citing the reason that their photographs were already shown to the witnesses.
State Vs. Mukesh & anr. Page No.20/31 FIR No.44/201229. Even otherwise, identification tests conducted during investigation do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The main object of holding an identification parade is to test the memory of witness based upon first impression and also to enable the prosecution to decide whether such witness could be cited as an eye witness of the crime. Therefore, it is desirable, that TIP should be conducted as soon as possible after the arrest of accused to eliminate the possibility of accused being shown to the witness prior to TIP. However, if the circumstances are beyond the control and there is some delay, it cannot be fatal to the prosecution. Reliance placed on Matru Vs. State of UP 1971 (2) SCC 75 and Santokh Singh Vs.Izhar Hussain 1973(2) SCC 406.
30. Judicial TIP conducted during investigation is not a substantive evidence and it can be used only for the purpose of corroboration. Apart from the clear provision of section 9 of Indian Evidence Act, the position of law is well settled by a catina of decisions. As a general rule, the substantive evidence of a witness is the statement made in the court. The evidence of identification of accused at the trial for the first time is of a weak character and therefore, the purpose of prior test identification is to test and strengthen the trustworthiness of the evidence. It is therefore, considered safe as a rule of prudence to generally look for corroboration of sworn testimony of witnesses in the court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings.
State Vs. Mukesh & anr. Page No.21/31 FIR No.44/201231. The above rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and this parade are essentially governed by section 162 of the code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in the Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. Reliance placed on Mahabir Vs. State of Delhi, Crl. Appeal 932 of 2007 decided on 11.04.2008.
32. In Jadunath Singh and ors. Vs State of Uttar Pradesh, (1970) 3 SCC 518, which was also referred by Apex Court in aforementioned judgment, the submission that absence of TIP in all cases is fatal, was repelled by Hon'ble Apex Court and it was held that the identification by the witnesses in the court even after long period of time can be relied upon without there being any judicial TIP conducted during investigation in cases where the witnesses are found independent having no animosity towards the accused.
33. Even in the instant case, the accused Mukesh was duly identified by both the complainant Anuradha and the eye witness Vineeta Rai in the court and the accused was total stranger to them State Vs. Mukesh & anr. Page No.22/31 FIR No.44/2012 and there is no plea taken by the accused either in the cross examination of said witnesses or even at the stage of section 313 Cr.PC that the complainant or her friend who identified them in the court were previously known to them or that they were having any previous animosity with the accused so as to falsely implicate them in this case. The victim and her friend being the total stranger had no reason to implicate an innocent person. Although in this case, no adverse inference can be drawn against the accused for not joining the Judicial TIP at the time of investigation for the reason that such TIP proceedings were neither admitted by the accused u/s 294 Cr.PC nor the prosecution has examined either the Magistrate who recorded said proceedings nor even the IO SI Paramjeet on whose application said proceedings were conducted by the Magistrate was examined as witness. Hence, the said TIP conducted during investigation was never proved on record in accordance with law nor the accused got an opportunity to tender his reply to said piece of evidence in their statement recorded u/s 313 Cr.PC. But, as already noted above, there is no legal bar to record conviction on the basis of dock identification of the accused especially when the accused was identified by both the victim and the eye witness who was accompanying the victim at the time of incident and especially when there is no plea taken by defence of any previous animosity between the victim and the accused who were admittedly total stranger to each other.
34. From the accused Mukesh, no robbed article was recovered during investigation as all the mobile phones allegedly recovered from his possession were seized u/s 102 Cr.PC. Whereas, the other co accused namely Manoj was not identified either by the complainant or the eye witness nor even the alleged recovery of the State Vs. Mukesh & anr. Page No.23/31 FIR No.44/2012 mobile phone make Blackberry allegedly belonging to the complainant has been conclusively proved on record. No Judicial TIP of said mobile phone was ever conducted by the IO during investigation nor the IO collected the invoice or bill of said mobile phone so as to prove that said mobile phone at the relevant time belonged to complainant. During trial, prosecution has although examined one witness PW12 Israr Babu, the Nodal officer from Vodafone Mobile Service Limited, who had brought the record pertaining to mobile number 9654502370 allotted in the name of the complainant and placed on record the CAF and CDR of said mobile phone as Ex.PW12/A and Ex.PW12/C respectively. The copy of letter on the basis of which connection was provided in the name of the complainant is also placed on record as Ex.PW12/B. However, none of said documents show that at the relevant time aforementioned number was used by the complainant in the Blackberry mobile phone allegedly recovered from the possession of accused Mukesh.
35. As per the seizure memo of mobile phone which is available on record as Ex.PW6/G, the IMEI number of said mobile phone was 359199041121358 whereas, as per the CDR Ex.PW12/C, the IMEI number of the mobile phone on which the aforementioned number 9654502370 was in use, was 359199041121350. There is no explanation from the prosecution side regarding said discrepancy in the IMEI numbers mentioned in the seizure memo and the CDR. Although during her cross examination, complainant has stated said mobile phone was given to her by her company but, no invoice or bill of said mobile phone was placed on record to show the ownership either of the complainant's company where she was working at the relevant time or her own ownership in the mobile phone. It is also State Vs. Mukesh & anr. Page No.24/31 FIR No.44/2012 pertinent to note that neither the complainant nor even the complainant's company who allegedly claimed ownership in the aforementioned mobile phone ever applied for release of said mobile phone on supardari and till date, the same is lying deposited in the malkhana of PS Saket.
36. Considering the above circumstances, prosecution has miserably failed to prove both the charges of section 392/411 IPC against the co-accused Manoj. However, in view of the consistent testimony of the complainant which is duly corroborated by another eye witness PW2, the prosecution has been able to prove the charges of section 392 rw 397 IPC against accused Mukesh Nankiya. Although there is one discrepancy with regard to the place of recording of complainant's statement. As per complainant PW1 and her friend PW2, after the alleged incident they alongwith the TSR driver Sohan Mehto had gone to PS Saket where the statement of complainant was recorded and it is only on the next day i.e. 06.02.2012, the complainant pointed out the place of occurrence and at her instance the site plan Ex.PW10/C was prepared. Whereas, as per prosecution case upon the receipt of DD No.32A, Ex.PW10/A regarding robbery of a ladies bag of the complainant at Press Enclave Road, IO SI Bharat Lal (PW10) had reached the spot alongwith Ct. Dholu Ram (PW4) where they met the complainant, her friend and the TSR driver and recorded the complainant's statement at the spot itself. However, said discrepancy in my considered view is not material in as much as same is not going into the root of the matter because in any case, the accused was not arrested on the date of incident as he was arrested after about one month of the date of alleged incident. As per police witnesses the statement of complainant was recorded at the spot and State Vs. Mukesh & anr. Page No.25/31 FIR No.44/2012 the rukka was sent to police station for registration of FIR through Ct.Dholu Ram but, said discrepancy is not very significant as the same is not touching the core issue nor it is raising any doubt on the credibility of the prosecution case for the reason that the accused and the complainant were total stranger to each other and there was no reason for the complainant to falsely implicate him by cooking up a false story.
37. As regard the charge of section 25Arms Act framed against accused Mukesh Nankiya, the prosecution has examined HC Suresh Chand (PW6) and HC Randhawa (PW7) for proving the alleged recovery of pistol and two live cartridges from the possession of said accused. I have carefully perused the testimonies of both the witnesses who have consistently deposed that on 16.03.2012, SI Paramjeet had received a secret information that the person involved in the incident of snatching and robbery of bags from lady passengers traveling in TSR on gun point, near the area of Rai Pithora Qila and Press Enclave Road would come in Asian Market to sell the looted mobile phones. Said information was shared by SI Paramjeet with the other police staff of the raiding party and IO also asked some passerbyes to join the investigation though none agreed and left the spot without disclosing their names and addresses. Thereafter, the members of the raiding team took their positions. At 4.15 pm, secret informer pointed out towards a person at gate no.1 of Asian Market, who was waiting there for someone. Said person was apprehended by raiding party and upon inquiry he revealed his name as Mukesh.
38. Further as per versions of recovery witnesses, the IO SI Paramjeet conducted the personal search of the accused and from his State Vs. Mukesh & anr. Page No.26/31 FIR No.44/2012 possession two mobile phones from the pocket of his wearing shirt, two mobile phones from the right pocket of his wearing pant were recovered. Besides mobile phone, one loaded katta was also recovered from the left dub of the wearing pant of accused Mukesh and from his right side pocket of pant, one live cartridge was also recovered. Both the katta and the two live cartridges (one taken out from the katta and other recovered from the right pocket of the wearing pant of the accused) were measured and their sketches were prepared vide Ex.PW6/A. The katta and cartridges were sealed in a sealed pullanda and were sealed with the seal of PS and seized vide seizure memo Ex.PW6/B. IO also filled up the FSL Form and after using the seal he handed over the same to SI Anand Prakash. As per the cross-examination of PW6, the members of the raiding party were also having their service revolvers with them at the time of arrest of accused. Further that no notice was given to public persons who refused to join investigation. Further that, no shopkeepers were requested to join the raiding party. Further that the personal search of accused was conducted before his arrest. PW6 further deposed that departure entries were made vide DD No.21A but he did not remember who had made said entries. PW6 however did not remember the number of DD entry of their arrival in the police station. He denied the suggestion that nothing was recovered form the possession of accused or that all recoveries were planted on them. He further denied the suggestion that all the documents were prepared at the police station and not at the spot.
39. In the cross-examination, PW7 deposed that he was armed with his service weapon but he did not know if the other members of the raiding party were also armed. He further deposed that the pistol State Vs. Mukesh & anr. Page No.27/31 FIR No.44/2012 was tucked between the belt of the pant and the shirt in the left dub of accused Mukesh. He further deposed that they remained at the spot for 3-4 hours and during said period IO prepared the sketch of pistol and seizure memo of the recovered articles, recorded the disclosure statement of accused Mukesh, prepared his arrest memo and personal search memo. He further deposed that since the weapon recovered from the accused was used in FIR No.44/12, which was already registered, therefore, no rukka was prepared regarding recovery of said weapon. He deposed further that no notice u/s 160 CrPC was given to the public person by the IO for not joining the investigation. He denied the suggestion that all the proceedings were conducted in police station. I may also note here that SI Paramjeet was the second IO of this case, he was though cited as a witness but he could not be examined as he expired during trial.
40. It is vehemently contended on behalf of the accused that testimonies of police witnesses cannot be relied upon in absence of corroboration from some independent source. However, I do not agree with said contention because the evidence of police witnesses cannot be discarded merely because they belong to police force and interested in the success of the case. It is a settled proposition of law that even the testimony of police witnesses if found free from doubt, can be relied upon without any corroboration from the independent source. In the instant case besides giving bald suggestion to deny the recovery of pistol and cartridges, no material questions were asked from the recovery witnesses to raise doubt on their credibility. It is a matter of common knowledge that public persons usually do not come forward to join the investigation of criminal cases as they are apprehensive of their unnecessary harassment for being repeatedly State Vs. Mukesh & anr. Page No.28/31 FIR No.44/2012 called in the court for their evidence in long drawn trial of cases. In said circumstances, mere fact that no public person was examined to corroborate the version of police witnesses, will not be a ground to discard the otherwise cogent and consistent testimony of police witnesses.
41. Considering the clinching and in-discrepant version of aforementioned police witnesses, I am of the view that prosecution has successfully proved even the recovery of the pistol and two live cartridges from accused Mukesh, The version of recovery witnesses has been corroborated by PW5 HC Ramesh Kumar, MHCM who has deposed about deposit of a sealed pullanda with the seal of PS, containing country made pistol and two live cartridges in the malkhana on 16.03.2012 by SI Paramjeet. He duly proved the entries in this regard in register no.19 at Sr. No.585. As per his version, on 27.03.2012, vide RC No.1868/21/12, he handed over the sealed pullanda containing country made pistol and live cartridges to Ct.Amar Deep for depositing the same to FSL Rohini and made entry in this regard in Register no.19. On 04.05.2012, PW3 Ct. Amarjeet brought back the sealed pullanda and FSL report, which were deposited in the malkhana and the FSL report was handed over to SI Bharat Lal. In that regard too, PW5 had made entry in Register no.19, copy of same are Ex.PW5/A (5 pages), road certificate dated 27.03.2012 is Ex.PW 5/B and receipt of FSL is Ex.PW5/C.
42. The version of MHCM PW5 HC Ramesh Kumar also finds corroboration from the testimony of PW3 Ct. Amarjeet, who has received the sealed pullandas from PW5 MHCM Ramesh Kumar and deposited in FSL Rohini vide RC No.168/21 and after its deposit State Vs. Mukesh & anr. Page No.29/31 FIR No.44/2012 handed over the receipt to MHCM and has deposed further that the pullandas were not tempered with till it remained in his possession.
43. Prosecution has further duly proved on record the sanction u/sec 39 Arms Act through witness PW11 DCP Sh. Pramod Singh Kushwaha, as Ex.PW11/A and his testimony has remained unrebutted. PW9 Dr. NP Waghmare, Assistant Director (Ballistic) has proved the ballistic report Ex.PW9/A. He deposed regarding receipt of sealed parcel in FSL laboratory on 27.03.2012 sealed with the seal of PS containing one country made pistol of 8mm.315" Ex.F1 and two cartridges of 8mm/.315" Ex.A1 and A2, which on examination were found firearm as country made pistol was in working condition and both the cartridges and country made pistol were 'ammunition and firearm' as defined in Arms Act. PW9 also identified the country made pistol and two empty shell of cartridges as Ex.P6-1 and Ex.PW6/P2( colly) in court. Witness deposed further that both cartridges were live at the time of their examination, before the same were test fired.
44. Considering the abovementioned evidence of prosecution witnesses, I am of the view that the prosecution has been able to prove the charges of section 392 rw 397 IPC & 25 Arms Act against accused Mukesh Nankiya. Hence, accused Mukesh is convicted for offence u/sec 392 rw 397 IPC & 25 Arms Act. Accused Mukesh Nankiya be taken into custody.
45. However, in view of non-identification of another co- accused Manoj by the eye witnesses and lack of sufficient evidence to prove the ownership of complainant in respect of Blackberry mobile State Vs. Mukesh & anr. Page No.30/31 FIR No.44/2012 phone allegedly recovered from said accused Manoj, I feel no hesitation to hold that prosecution has failed to prove its case qua said accused for any of alleged charges of section 392/411 IPC. As a consequence, he deserves to be acquitted in this case. Accordingly, accused Manoj stands acquitted for both the said offences. His bail bond and surety bond stands cancelled. He is directed to furnish bail bond in terms of section 437 Cr.PC in the sum of Rs.20,000/- with one surety in the like amount. Bail bond be furnished within three days.
Put up for arguments/order on sentence in respect of accused Mukesh @ Nankiya on 04.10.2019.
Announced in the open court (SUNENA SHARMA)
on 28.09.2019 Addl. Sessions Judge-03(South)
Saket Courts, New Delhi
Digitally
signed by
SUNENA
SUNENA SHARMA
SHARMA Date:
2019.09.28
17:27:58
+0530
State Vs. Mukesh & anr. Page No.31/31
FIR No.44/2012