Delhi District Court
State vs . (1). Deepak @ Chotte on 27 September, 2014
FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 IN THE COURT OF SHRI VIDYA PRAKASH: ADDL. SESSIONS JUDGE04 (NORTH): ROHINI COURTS: DELHI Session Case No. 127/1/14 Unique Case ID No. 02404R0025472012 State Vs. (1). Deepak @ Chotte S/o Sh. Virender R/o A1/1, Sultan Puri, Delhi (2). Anuj S/o Sh. Kirat Pal R/o Jhuggi No. D121, Sultan Puri, Delhi (3). Gaurav @ Amit S/o Sh. Murari R/o House No. 12/49, Rawal Colony, NIT, Faridabad, Haryana FIR No. : 291/11 Police Station : Shahbad Dairy Under Sections : 392/397/411/34 IPC Date of committal to Sessions Court : 19.01.2012 Date on which judgment was reserved: 18.09.2014 Date on which Judgment pronounced : 27.09.2014 JUDGMENT
The facts and circumstances giving rise to the present case are as under: State V/s Deepak @ Chotte etc. ("Convicted") Page 1 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014
(i) That that on 23.08.2011 at about 3:30/3:45 pm, Jogender S/o Sh. Raghubir Singh (PW9) had parked his TSR no.
DL1RK8613 at Nangloi stand and was waiting for passenger when accused persons namely Deepak @ Chhote, Anuj and Gaurav @ Amit hired his TSR for going to Narela;
(ii) That when PW9 Jogender was plying the aforesaid TSR in which accused persons were sitting, PW9 was asked to stop TSR near Khera More for attending the call of the nature. After attending the call of the nature, accused persons again sat in said TSR of Jogender and after going some distance, accused Deepak @ Chotte put a knife on the neck of said Jogender whereas accused Anuj had taken out mobile from front pocket of shirt of Jogender and accused Gaurav @ Amit had taken out cash amount from back pocket of his pant. The accused persons also threw Jogender from his TSR and fled away with his said TSR;
(iii) That Jogender (PW9) took lift from one motorcycle rider who was passing through the spot and chased the TSR on which accused persons stopped TSR and ran away towards fields. Jogender made PCR call at 100 number from mobile phone of some public person. The said call was transmitted from Control Room to PCR Libra Van 94 of Outer District which was stationed at Khera Khurd from 8 am to 8 pm on 23.08.2011;
State V/s Deepak @ Chotte etc. ("Convicted") Page 2 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014
(iv) That HC Shyam Nandan Incharge (PW4) alongwith HC Harphool (PW3) and PW/ Driver Ct. Ram Avtar were present in PCR van Libra 94 on 23.08.2011. They had received the call of robbery from Control Room at about 5:20 pm on that day. On receipt of PCR call, HC Shyam Nandan alongwith HC Harphool and PW Ct. Ram Avtar reached at Khera Khurd near nahar where they met Jogender (PW9) and TSR no. DL1RK8613 was also found parked there;
(v) That Jogender (PW9) narrated the entire incident before aforesaid PCR officials after which said PCR officials alongwith Jogender went into nearby fields where accused persons namely Anuj and Gaurav @ Amit were apprehended on the identification of Jogender from nearby Jwaar crops;
(vi) That HC Shyam Nandan (PW4) took cursory search of accused persons namely Anuj and Gaurav @ Amit on which one mobile phone was recovered from right pocket of accused Anuj and cash amount of Rs. 300/ i.e. three currency notes of Rs. 100/ each denomination, were recovered from right pocket of pant of accused Gaurav @ Amit and same were identified by Jogender (PW9) to be the robbed articles belonging to him;
(vii) That intimation was also received in PS Shahbad Dairy from Control Room vide DD No. 56B (Ex.PW5/A), which was marked to ASI Ishwar Singh (PW7) for necessary action. On State V/s Deepak @ Chotte etc. ("Convicted") Page 3 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 receipt of copy of DD No. 56B (Ex.PW5/A), ASI Ishwar Singh (PW7) alongwith HC Jagbir (PW5) of PS Shahbad Dairy also reached at the place of information where they met HC Shyam Nandan (PW4), HC Harphool (PW3) and PW Ct. Ram Avtar of PCR Van Libra 94 besides Jogender (PW9) and accused persons namely Anuj and Gaurav @ Amit;
(viii) That HC Shyam Nandan (PW4) handed over custody of mobile phone and cash amount of Rs. 300/ to ASI Ishwar Singh (PW7). ASI Ishwar Singh recorded statement (Ex.PW4/A) of Jogender (PW9), made his endorsement (Ex.PW7/A) on it and handed over the same to HC Jagbir (PW5) for registration of FIR. ASI Ishwar Singh seized the said mobile phone vide memo (Ex.PW3/A), also seized the currency notes of Rs. 300/ vide memo (Ex.PW3/B) and also seized said TSR vide memo (Ex.PW4/B);
(ix) That on 23.08.2011 at about 7 pm, HC Jagbir (PW5) handed over rukka/endorsement (Ex.PW7/A) to SI Mahender Singh (PW1) who was working as Duty Officer in PS Shahbad Dairy. On the basis thereof, he got recorded FIR No. 291/11, U/s 392/397/411/34 IPC. He also made his endorsement (Ex.PW1/B) on the said rukka and recorded DD No. 30A regarding registration of said FIR;
(x) That after registration of FIR, the investigation was handed over to SI Arun (PW11). Accordingly, SI Arun (PW11) State V/s Deepak @ Chotte etc. ("Convicted") Page 4 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 alongwith HC Jagbir (PW5) went to the spot where ASI Ishwar Singh (PW7) handed over the custody of accused Anuj and Gaurav @ Amit, recovered robbed articles i.e. mobile phone and cash amount of Rs. 300/ and all the memos to SI Arun. SI Arun prepared site plan (Ex.PW9/A) at the instance of Jogender (PW9) and also recorded the statement of ASI Ishwar Singh, who thereafter left the spot;
(xi) That SI Arun (PW11) arrested accused Anuj and Gaurav @ Amit and also conducted their personal search. Said accused also made disclosure statements (Ex.PW4/G) and (Ex.PW4/H) before SI Arun wherein they disclosed the name of accused Deepak @ Chotte to be also involved in the commission of offence of robbery at the point of knife;
(xii) That SI Arun (PW11) also called Ct. Anand Singh (PW6) through telephone at the spot. Thereafter, SI Arun alongwith HC Jagbir (PW5), Ct. Anand Singh and accused persons namely Anuj and Gaurav @ Amit with case property and relevant documents, returned back to PS Shahbad Dairy. SI Arun (PW11) deposited said TSR no. DL1RK8613 and case property i.e. mobile phone make Nokia of Black colour and cash amount of Rs. 300/ with HC Anand(PW2) who was working as MHC(M) of PS Shahbad Dairy at that time;
(xiii) That on 24.8.2011, SI Arun (PW11) obtained police custody remand of accused Gaurav @ Amit and thereafter, said State V/s Deepak @ Chotte etc. ("Convicted") Page 5 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 accused Gaurav @ Amit led police party consisting of SI Arun, Ct. Anand (PW6) and HC Rajesh (PW8) to rented accommodation i.e. House No. A1/1. Sultan Puri, Delhi of accused Deepak @ Chhote wherefrom accused Deepak @ Chotte was arrested and his personal search was also conducted. Accused Deepak @ Chhote made disclosure statement (Ex.PW6/C) before SI Arun and also led the aforesaid police officials to left side room on first floor of said house wherefrom he got recovered one kirpan type knife from below pillow of the cot in pursuance of his said disclosure statement;
(xiv) That SI Arun (PW11) prepared rough sketch (Ex.PW6/D) of recovered knife and also prepared rough site plan (Ex.PW11/A) of the place of recovery of said knife.
(xv) That SI Arun (PW11) measured the said knife, prepared its cloth pullanda, sealed it with the seal of AK and seized the same vide memo Ex.PW6/E;
(xvi) That on 24.08.2011, SI Arun (PW11) deposited said pullanda of knife with HC Anand (PW2) who was working as MHC(M) of PS Shahbad Dairy at that time;
State V/s Deepak @ Chotte etc. ("Convicted") Page 6 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 (xvii) That on 25.08.2011, SI Arun (PW11) produced accused Deepak @ Chhote in muffled face before the Court of Ld. MM and moved an application (Ex.PW11/B) (also Ex PAdv.1) and judicial TIP of accused Deepak @ Chotte was fixed for 29.08.2011. On 29.08.2011, accused Deepak @ Chhote refused to participate in judicial TIP vide proceedings (Ex. PAdv.2).
After completion of investigation, chargesheet had been filed before the Court.
After compliance of section 207 Cr.P.C., the case was committed to the Court of Sessions and was assigned to Ld. Predecessor of this Court.
After hearing arguments on the point of charge, Ld. Predecessor of this Court was pleased to frame the charges u/s 397 read with Section 392 IPC and U/s 411 IPC and U/s 25 Arms Act against accused Deepak @ Chote and charges U/s 392/34 and U/s 411 IPC against accused Anuj and Gaurav @ Amit vide order dated 05.03.12 to which all the three accused persons pleaded not guilty and claimed trial.
In support of its case, prosecution has examined as many as eleven witnesses namely PW1 SI Mahender Singh, PW2 HC Anand, PW3 HC Harphool, PW4 HC Shyam Nandan, PW5 HC Jagbir, PW6 Ct. Anand Singh, PW7 SI Ishwar Singh, PW8 HC Rajesh, PW9 Sh. Joginder, PW10 State V/s Deepak @ Chotte etc. ("Convicted") Page 7 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 Ms. Reena and PW11 SI Arun during trial.
It may be mentioned here that Ld Amicus Curiae of accused Deepak @ Chote made statement on 27.11.13 before Ld predecessor of the Court that he was not disputing factum regarding TIP conducted in respect of said accused and he had no objection in case the relevant TIP proceeding of said accused is exhibited without summoning the concerned prosecution witness. In view of the said statement, the application for conducting TIP of said accused moved by IO was exhibited as Ex PAdv.1 and the relevant TIP proceedings of accused Deepak @ Chote was exhibited as Ex PAdv.2 by Ld predecessor of the Court.
Thereafter, statements U/s 313 Cr.PC of all the three accused persons were recorded during which incriminating evidence were put to them but same were denied by them. All the four accused persons claimed innocence but their defence was of general denial. However, all the three accused persons did not opt to lead DE towards their defence.
I have heard Sh. Pankaj Bhatia, Ld. Addl. PP on behalf of State, ld. Counsel Sh. Aseem Bhardwaj, Adv. on behalf of accused Deepak @ Chote and ld. Amicus Curiae Ms. Sunita Tiwari, Adv. on behalf of accused persons namely Anuj and Gaurav. I have also gene through the material available on record.
Before discussing the rival submissions made on behalf of both the sides, it would be appropriate to discuss in brief the testimonies of prosecution witnesses examined during trial.
State V/s Deepak @ Chotte etc. ("Convicted") Page 8 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 Public Witnesses: PW9 Sh. Joginder: He is the complainant/victim who, according to the case of prosecution, was robbed by accused herein at the point of knife. He deposed on the lines of prosecution story by testifying that on 23.8.11, at about 3.303.45 P.M, all the three accused had hired his TSR No. DL1RK 8613 at Nangloi stand for going to Narela and on the way near Khera Khurd, accused Deepak @ Chote put knife on his neck. Accused Gaurav took out money from back pocket of his pant and accused Anuj took out his mobile phone from front pocket of his shirt.
He further deposed that all the accused persons threw him out from said TSR and fled away in his TSR. He took lift from one motorcycle rider and chased them on which accused stopped the TSR and ran away towards field side.
He further deposed that he had made PCR call at 100 number on which PCR van as well as local police reached there. He alongwith PCR van officials had searched for the offenders and two of them namely Anuj and Gaurav were arrested at that time.
Not only this, he further deposed that his mobile phone was recovered from possession of accused Anuj and robbed amount of Rs. 300/ was recovered from possession of accused Gaurav. He also testified that accused Deepak @ Chote had put knife on his neck.
He further deposed that local police had recorded his statement Ex PW4/A and had arrested said two accused persons. He also deposed about the relevant proceedings regarding preparation of various memos at State V/s Deepak @ Chotte etc. ("Convicted") Page 9 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 the spot as also about preparation of site plan Ex PW9/A. He not only identified all the three accused persons during trial but also his mobile phone with battery and SIM card Ex P1, cash amount of Rs. 300/ consisting of three currency notes of Rs. 100/ each denomination Ex P2(colly.), TSR No. DL1RK 8613 Ex P3 as also knife Ex P4 during trial. He has been cross examined at length on behalf of accused persons.
PW10 Ms. Reena: This witness is the registered owner of TSR No. DL1RK 8613. She deposed that said TSR was being driven by Joginder Singh(PW9) who is the complainant in this case. Said TSR was seized by police during investigation and later on, she got it released on superdari vide superdarinam Ex PW10/A. She produced said TSR during trial and same was exhibited as Ex PX and its photographs alongwith negatives were exhibited as Ex PY(colly.). She has not been cross examined despite grant of opportunity.
Police Witnesses: PW1 SI Mahender Singh: This witness has proved factum regarding registration of FIR in question by him through computer operator on 23.08.11 at about 7.00 P.M. He proved computerized copy of said FIR as Ex PW1/A and his endorsement Ex PW1/B made on rukka regarding registration of FIR.
During cross examination, he denied the suggestion that FIR was ante dated or ante timed by him.
State V/s Deepak @ Chotte etc. ("Convicted") Page 10 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 PW2 HC Anand: This witness was working as MHC(M) in Malkhana of PS Shahbad Dairy during the relevant period.
He deposed that on 23.08.11, SI Arun Kumar had deposited TSR No. DL1RK 8613, cash amount of Rs. 300/ and mobile phone make Nokia in Malkhana vide entry at serial no. 758 in register no. 19. He proved copy of said entry as Ex PW2/A. He further deposed that on 24.08.11, SI Arun Kumar had deposited sealed pullanda sealed with the seal of AK in Malkhana vide entry at serial no. 759 in register no. 19. He proved copy of said entry as Ex PW2/B. During cross examination, he denied the suggestions that entries Ex PW2/A and Ex PW2/B in register no. 19 are in different handwritings or were recorded by different persons. He admitted that initials of SI Arun Kumar do not appear in column no. 3 of entries Ex PW2/A and Ex PW2/B in register no. 19 but denied the suggestion that said entries were manipulated at the instance of IO.
PW3 HC Harphool & PW4 HC Shyam Nandan: These two witnesses were on duty in PCR Van Libra94 stationed at Khera Khurd from 8.00 A.M to 8.00 P.M on 23.08.11.
Both the said witnesses deposed that on 23.08.11 at 5.00 P.M, they rushed to spot on receipt of call from Control Room about the robbery of mobile phone and cash amount near Khera Khurd where they met caller Joginder Singh who narrated them about the entire incident. Immediately, both of them alongwith complainant Sh Joginder singh went towards State V/s Deepak @ Chotte etc. ("Convicted") Page 11 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 agricultural fields where three persons were standing and two out of them were apprehended at the instance of complainant while one managed to escape from there. Both the said boys were brought to PCR Van where PW4 took formal search of Gaurav and cash amount of Rs. 300/ was recovered from his possession.
They further deposed that robbed mobile phone make Nokia was also recovered from right side front pocket of accused Anuj. In the meantime, ASI Ishwar Singh(PW7) alongwith HC Jagbir(PW5) of PS Shahbad Dairy also reached the spot and accordingly, custody of both the said accused alongwith recovered robbed articles were handed over to them.
They further deposed that ASI Ishwar Singh recorded statement of complainant Sh. Joginder Singh and got the FIR registered through HC Jagbir. In the meantime, ASI Ishwar Singh seized mobile phone and cash amount of Rs. 300/ vide memos Ex PW3/A and Ex PW3/B respectively. ASI Ishwar Singh also prepared site plan at the instance of complainant Sh Joginder Singh and also arrested both the accused persons. He also seized TSR no. DL1RK 8613 at that time.
During cross examination, PW3 testified that 34 public persons/onlookers were found present besides complainant Joginder when they reached the place of information. On enquiry, complainant Joginder had informed that motorcyclist from whom he had taken the lift for chasing the offenders, had already left before they reached the said place. The PCR official alongwith complainant had covered a distance of about 200 meters State V/s Deepak @ Chotte etc. ("Convicted") Page 12 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 inside agricultural field and accused Anuj and Gaurav @ Amit were pointed out from a distance of about 2025 meters by the complainant. The complainant had disclosed the description of offenders before they left in search of offenders but he admitted that those facts were not mentioned in his statement U/s 161 Cr.PC Ex PW3/DA. The writing work was done near the place where they had initially met with the complainant. ASI Ishwar Singh had requested public persons including aforesaid 34 onlookers to join the proceedings but none agreed.
During his cross examination PW4 also deposed on identical lines by testifying that there were 810 public persons/onlookers present at the place of information when they reached there and met the complainant. He also deposed that complainant had given description of the offenders but he admitted that these facts are not mentioned in his statement U/s 161 Cr.PC Ex PW4/DA. He also deposed that complainant had pointed out towards accused Anuj and Gaurav @ Amit from a distance of about 1015 yards and firstly, the search of accused Gaurav was taken. The writing work was done at the place where they had initially met with the complainant and public persons were requested to join the proceedings but none agreed.
PW7 SI Ishwar Singh and PW5 HC Jagbir: Both these witnesses had reached the spot on receipt of DD no. 36B Ex PW5/A. Both these witnesses also deposed about the relevant proceedings carried out them at the spot.
PW7 proved his endorsement Ex PW7/A made on the statement Ex PW4/A of complainant Sh Joginder Singh. He testified that he had State V/s Deepak @ Chotte etc. ("Convicted") Page 13 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 seized mobile phone vide memo Ex PW3/A, three currency notes of Rs. 100/ each vide memo Ex PW3/B and TSR vide memo Ex PW4/B. He also deposed that after registration of FIR, investigation was entrusted to SI Arun Kumar(PW11) to whom he had handed over custody of accused persons, relevant seizure memos and case property.
During his cross examination, PW5 claimed that first of all seizure memos of robbed articles i.e TSR, mobile phone and cash amount of Rs. 300/ were prepared by IO. He explained that memo Ex PW3/A(regarding seizure of mobile phone) was written from top to bottom at the same time except FIR number which was mentioned by SI Arun Kumar subsequently. He admitted that recovery of robbed articles was not effected in his presence. He had taken lift on two wheeler scooter from some passerby for going to PS for registration of FIR.
He denied the relevant suggestions put to him on behalf of accused persons that no such incident took place and he did not visit the spot and all the proceedings were conducted while sitting in the PS. During cross examination, PW7 deposed that no public witness was present at the spot and he did not remember the age of complainant Sh Joginder Singh. He denied the suggestions that he did not visit the place of occurrence and all the proceedings were conducted while sitting in the PS. PW6 Ct. Anand Singh: This witness had joined the proceedings at the spot on 23.08.11 on receipt of telephone call from IO SI Arun Kumar(PW11). He deposed that accused Anuj and Gaurav were arrested in this case and he alongwith HC Jagbir, SI Arun Kumar and both State V/s Deepak @ Chotte etc. ("Convicted") Page 14 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 the said accused had returned back to PS where IO had deposited the case property in Malkhana.
This witness had also joined investigation of the case with IO SI Arun Kumar on 24.08.11 alongwith HC Rajesh(PW8). He deposed that accused Gaurav led them to the first floor of house no. A1/1, Sultan Puri, Delhi of accused Deepak where from said accused Deepak @ Chote was arrested vide memo Ex PW6/A and his personal search was conducted vide memo Ex PW6/B. Accused Deepak @ Chote made disclosure statement Ex PW6/C and in pursuance of said disclosure statement, accused Deepak @ Chote also got recovered one kirpan type knife from below the pillow of cot.
He further deposed that SI Arun Kumar prepared rough sketch Ex.PW6/D of said knife and thereafter, prepared pullanda of said knife which was sealed with the seal of AK and same was seized vide memo Ex PW6/E. He identified accused persons including accused Deepak @ Chote and knife Ex P4 during trial.
He has been cross examined at length on behalf of accused persons.
PW8 HC Rajesh: This witness had also joined investigation of the case with IO SI Arun Kumar on 24.8.11. He also deposed about the arrest of accused Deepak @ Chote at the instance of co accused Gaurav as also about recovery of Kirpan type knife at the instance of accused Deepak @ Chote from below the pillow of bed lying in his house. He also deposed about the relevant proceedings carried out by IO at the spot. He has been State V/s Deepak @ Chotte etc. ("Convicted") Page 15 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 cross examined at length on behalf of accused.
PW11 SI Arun: He is the IO in this case who has deposed about the entire investigation carried out by him. He deposed that he had prepared site plan Ex PW9/A at the instance of complainant Sh Joginder (PW9). He also deposed that he had prepared site plan Ex PW11/A of the place of recovery of knife at the instance of accused Deepak @ Chote.
He further deposed that he had moved an application Ex PW11/B for conducting judicial TIP of accused Deepak @ Chote on 25.08.11 and said accused refused to participate in judicial TIP on 29.08.11. He has also been cross examined on behalf of accused persons.
Arguments advanced & Case law cited Ld Additional PP argued that all the prosecution witnesses have supported the case of prosecution on all material points and thus, prosecution has been able to establish the charges levelled against accused persons beyond reasonable doubt. Ld Additional PP also referred to the testimonies of prosecution witnesses more particularly that of PW9 Sh Joginder(complainant) and contended that accused Anuj and Gaurav have been apprehended immediately after the commission of offence and robbed articles i.e mobile phone make Nokia and cash amount of Rs. 300/ belonging to complainant Sh. Joginder, were recovered from them. He also pointed out that accused Deepak @ Chote had used knife in the commission of knife as also testified by PW9 Joginder and there is also recovery of said knife at the instance of said accused from his house and State V/s Deepak @ Chotte etc. ("Convicted") Page 16 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 thus, the offence U/s 397 IPC and section 25 Arms Act is also established against accused Deepak @ Chote.
Per contra, Ld Amicus Curiae of accused Deepak @ Chote vehemently argued that prosecution has filed to prove its case against the said accused beyond shadow of doubt. In this regard, he referred to the testimony of PW9 Sh. Joginder(complainant) wherein he had admitted that every TSR driver is allotted badge number by Transport Department and he was also having badge number but he did not disclose his badge number in police statement Ex PW4/A. Ld counsel further argued that no such badge was either seized during investigation or produced during trial. Thus, the testimony of said witness does not inspire confidence. He further argued that PW9 nowhere disclosed the description, features or even colour of clothes of third boy who had hired TSR without which offence cannot be said to have been proved against accused Deepak @ Chote.
Ld Amicus Curiae appearing on behalf of all the accused persons further contended that prosecution has failed to bring on record any evidence showing that PW9 Sh. Joginder was driving TSR no. DL1RK 8613 at the alleged date, time and place.
It was further contended that PW9 Sh. Joginder was not medically examined in any hospital and no description of knife was disclosed by the witness in his police statement Ex PW4/A which shows hollowness in the prosecution story as set up in the charge sheet.
However, I do not find any merit in the aforesaid contentions raised by defence. It is nowhere the case of prosecution that PW9 Sh. State V/s Deepak @ Chotte etc. ("Convicted") Page 17 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 Joginder had sustained any injury whatsoever due to incident of robbery and therefore, there was no occasion for the investigating agency to get him medically examined from any hospital. No doubt, description or features of third assailant was not disclosed by PW9 in his police statement Ex PW4/A but it may be pointed out here that name of third assailant had already been disclosed by co accused Anuj and Gaurav immediately after their apprehension by PCR officials i.e PW3 and PW4 on the identification of PW9. In this backdrop, it is totally immaterial that the complainant did not disclose any description or features of third assailant or the description of knife used in the commission of robbery against him.
Likewise, there is no substance in the contention raised by Ld defence counsel that testimony of PW9 should be disbelieved merely because he did not disclose his badge number in his police statement Ex PW4/A or due to the reason that said badge number was not seized by the police during the course of investigation. It is appropriate to mention here that badge allotted to PW9 was not the case property in this case due to which it ought to have been seized by the police during the course of investigation. The fact that PW9 had been driving TSR no. DL1RK 8613, duly stands established from his own testimony as the accused persons have not even put any suggestion to the said witness that he was not the TSR driver or that he was not driving TSR no. DL1RK 8613 at the given date, time and place of incident. Moreover, the said fact also stands corroborated from the testimony of PW10 Ms. Reena who is the registered owner of said TSR as she has categorically stated during her chief examination that PW9 State V/s Deepak @ Chotte etc. ("Convicted") Page 18 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 Sh Joginder, who is the complainant in this case, was driver of her said TSR at the time of occurrence. The testimony of PW10 has gone unchallenged and unrebutted from the side of accused persons.
The next bone of contention raised by Ld defence counsel was that mobile phone make Nokia Ex P1, was not produced during statement of PW11 SI Arun Kumar(IO). The said contention is totally misconceived. As per the case of prosecution, said mobile phone make Nokia had already been seized by PW7 SI Ishwar Singh vide memo Ex PW3/A even before registration of FIR and PW11 SI Arun Kumar who was entrusted investigation of the case, had reached the spot at subsequent point of time. Moreover, said mobile phone Ex P1 was produced during trial in the testimonies of all the relevant prosecution witnesses more particularly during the testimonies of PW3, PW4, PW5, PW7 and PW9 and all of them correctly identified the said mobile phone to have been recovered from the possession of accused Anuj and belonging to complainant Sh Joginder(PW9).
There is no force in the other argument raised by defence that no document was collected or placed on record by investigating agency to show that house no. A1/1, Sultan Puri, Delhi was rented accommodation in possession of accused Deepak @ Chote. The reason being that prosecution produced three witnesses in order to prove factum regarding arrest of accused Deepak @ Chote from the said accommodation as also about recovery of knife Ex P4 at the instance of said accused from the said house. Accused Deepak @ Chote did not give any suggestion during cross State V/s Deepak @ Chotte etc. ("Convicted") Page 19 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 examination of any of these three witnesses that he was not residing in the said house or that he had no concern whatsoever with the said premises. Even in his statement U/s 313 Cr.PC, accused Deepak @ Chote has not disputed this fact.
Ld defence counsel also submitted that there is contradiction in the statements of PW8 HC Rajesh and PW11 SI Arun Kumar. Contradiction as pointed out by them was that PW8 claimed during cross examination on behalf of accused Deepak @ Chote that IO (PW11) did not prepare site plan of the place of apprehension and arrest of accused Deepak @ Chote and the said place was inhabited by public persons but no public person was joined in the investigation by IO whereas PW11 SI Arun Kumar deposed during his cross examination that houses situated near the house of accused Deepak @ Chote, were found locked and he had prepared the site plan of the house of accused Deepak @ Chote. Another contradiction as pointed out by them was that PW8 claimed that seal after use was handed over to Ct. Anand whereas PW6 Ct. Anand claimed that seal after use was handed over to HC Rajesh.
However, the aforesaid contradictions as pointed out by Ld defence counsels are minor contradictions which do not go the root of the prosecution story so as to disbelieve the version given by prosecution witnesses during trial or to throw out the entire case of prosecution on this ground. It is well settled law that contradictions which are immaterial or do not go to the root of the case, are not fatal to the case of prosecution.
In the case reported as "JT 1999 (9) SC 43 State of H.P. Vs. State V/s Deepak @ Chotte etc. ("Convicted") Page 20 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 Lekhraj and another", it was observed by Hon'ble Supreme Court of India as under: "In the deposition of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observations, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like".
It was further observed in the said judgment as under: "The traditional dogmatic hypertechnical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial"
In the matter titled as A. Shanker Vs. State of Karnataka, reported at AIR 2011 SC 2302, it has been held by Hon'ble Supreme Court as under: "xxxxx
17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the Court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or State V/s Deepak @ Chotte etc. ("Convicted") Page 21 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The Court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. Exaggerations per so do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier.
Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions.
Xxxxxx"
Ld defence counsels further argued that PW9 namely Joginder(complainant) did not accompany the PCR Van officials in the fields for search of offenders as stated by him during cross examination on behalf of accused Anuj and Gaurav whereas the relevant police witnesses namely PW3 and PW4 (PCR Van officials) have claimed that PW9 had accompanied them inside the field for the search of offenders which clearly shows that the testimonies of these witnesses are not reliable and trustworthy.
However, the aforesaid argument of Ld defence counsels is totally misconceived and does not hold any ground. The case of prosecution since State V/s Deepak @ Chotte etc. ("Convicted") Page 22 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 beginning had been that PW9 Joginder had accompanied PCR Van officials namely PW3 and PW4 inside agricultural fields and accused Anuj & Gaurav @ Amit were apprehended at the pointing out of PW9. All these three witnesses have deposed on identical lines on this aspect. The relevant portion of the testimony of PW9 whereby he deposed that he did not accompany PCR officials in fields for search of accused, cannot be read in isolation or in piece meal and the entire testimony of PW9 has to be read as a whole. PW9 has categorically deposed during chief examination itself that he alongwith PCR staff had chased the accused and two of them were over powered. The relevant portion of cross examination as referred to by Ld defence counsels, only goes to show that PW9 did not accompany PCR officials inside the jawar fields wherefrom accused Anuj and Gaurav @ Amit were apprehended by police after said accused were pointed out by PW9 from a distance of 2025 meters as also explained by PW3 and PW4 during their respective cross examination. It was the duty of accused persons to clarify the aforesaid fact by putting further question during cross examination of PW9 in case they wanted to have any benefit out of it. Having not done so, no benefit of doubt can be given to the accused persons on this count.
As rightly submitted by Ld Additional PP for the State, PW9 Sh Joginder has fully supported the case of prosecution on all material points. He has categorically deposed about the individual role of all the three accused persons by testifying that accused Deepak @ Chote had put knife on his neck, accused Gaurav had taken out money from back pocket of his State V/s Deepak @ Chotte etc. ("Convicted") Page 23 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 pant and accused Anuj had removed mobile from front pocket of his shirt. Not only this, he has also been categorical in his testimony that all the said three accused persons had thrown him out from his TSR and fled away in the same TSR. Further, he also correctly identified all the three accused persons individually during trial as also the robbed articles Ex P1 to Ex P3 and knife Ex P4 by claiming that it was the same knife which was used by accused Deepak @ Chote at the time of committing robbery against him. The accused persons could not impeach the testimony of said witness through litmus test of cross examination.
Moreover, it is nowhere the defence of accused persons that they were previously known to the complainant (PW9) prior to the incident in question or that PW9 had any kind of enmity with any of them so as to got them falsely implicated in the present case. In this backdrop, Court does not find any reason to disbelieve the testimony of PW9 Sh Joginder. Rather, Court finds that the testimony of PW9 Sh Joginder is quite plain, nature and trustworthy.
The police witnesses examined during trial have duly corroborated the testimony of PW9 Sh Joginder and have also corroborated each other on all material aspects. There testimonies clearly establish on record that knife was recovered from the conscious possession of accused Deepak @ Chote at his instance from below the pillow of the cot from his house no. A1/1, Sultan Puri, Delhi. The accused persons could not impeach their testimonies during cross examination and all of them have successfully with stood the test of cross examination. Even otherwise, it would be State V/s Deepak @ Chotte etc. ("Convicted") Page 24 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 anybody's guess as to why police officials would falsely implicate the accused persons. If the accused want this Court to believe that they have been implicated falsely, the least which was expected from the accused was to at least come out as to what could have been the motive for the police for their false implication and as to what was that reason for which police official could have done so. But no such reason is even mentioned or suggested to the witnesses. The accused cannot expect this Court to believe their version by simple bare allegation that they are falsely implicated. At least some reason should have been put forth by the accused to suggest as to what could have been motive of the police in implicating them. In the absence of this, I do not find any reason to throw out the testimonies of prosecution witnesses.
In the light of aforesaid discussion, Court is of the view that prosecution has successfully established on record that all the present three accused persons namely Deepak @ Chote, Anuj and Gaurav had committed robbery of mobile phone make Nokia 1650, cash amount of Rs. 300/ and TSR no. DL1RK 8613 against complainant Sh Joginder(PW9) on the given date, time and place as also that accused Deepak @ Chote had used deadly weapon i.e knife at the time of committing the said robbery and said accused was found in possession of knife in contravention of notification issued by Delhi Administration, beyond reasonable doubt. Consequently, accused Deepak @ Chote stands convicted in respect of offence U/s 397 read with Section 392 IPC as also U/s 25 Arms Act. State V/s Deepak @ Chotte etc. ("Convicted") Page 25 of 26 FIR No. 291/11; U/s 392/397/411/34 IPC & 25 Arms Act; P.S. Shahbad Dairy DOD: 27 .09.2014 Remaining two accused persons namely Anuj and Gaurav stand convicted in respect of offence U/s 392/34 IPC.
Announced in open Court today
dt. 27.09.2014 (Vidya Prakash)
Additional Sessions Judge04 (North)
Rohini Courts, Delhi
State V/s Deepak @ Chotte etc. ("Convicted") Page 26 of 26