Delhi District Court
State vs . Subhash Kushwaha & Anr. on 20 March, 2023
IN THE COURT OF SH. SACHIN SANGWAN,
ADDITIONAL SESSIONS JUDGE (FTC-01), SOUTH-EAST
DISTRICT, SAKET COURT, NEW DELHI.
STATE VS. SUBHASH KUSHWAHA & Anr.
SC No.253/2017
FIR No. 31/2017
P.S.: SARITA VIHAR
U/S 394/397/34 IPC
Particulars of the case:
a) Date of offence : 25.01.2017
b) Offence complained of : U/s 394/397/34 IPC
c) Name of complainant : Smt. Subhra Mukharji
d) Name of accused no.1 : Subhash Kushwaha
his parentage : s/o Sh. Bansi Lal,
local & permanent residence R/o: H. No. 155,
Bhangar Chowk,
Madanpur Khadar
Village, New Delhi.
Permanent Address:
Village Aari, PS Ajnar,
District Mohawa (MP).
e) Name of accused no.2 : Naeem Aslam Sheikh
his parentage s/o Mohd. Aslam Shaikh,
local & permanent residence R/o: Virender Ka
makaaan,
Sunder Public School,
Madanpur Khadar
Village, New Delhi.
Permanent address:
Royal Garden,
Building No.3, A-
Wing, Ground Floor,
Kurgaon, Boiser,
District Palghar,
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 1/36
Maharashtra.
e) Plea of accused : Pleaded not guilty
f) Final order : Convicted as charged
Date of institution of case : 30.05.2017
Date on which case reserved
for judgment : 20.02.2023
Date of judgment : 20.03.2023
JUDGMENT
1. CHARGESHEET 1.1 As per chargesheet on 25.01.2017 on receiving DD No.23A regarding an MLC the IO reached the Apollo hospital where Mrs. Subhra Mukherjee was under treatment having injuries on her neck and she was unable to state anything due to pain. Even her daughter refused to leave her mother and proceed to the spot with police. Around 08.00 pm after being discharged, Mrs. Subhra Mukherjee and her daughter reached at their home and their house was inspected which was in ransacked condition and sarees tied to each other were hanging down the balcony. The crime team inspected the spot and took photographs. The statement of injured Smt. Subhra Mukherjee was recorded in which she alleged that on 25.01.2017 she was alone in the house around 2.00 pm and one Subhash who was earlier their dog handler arrived with another boy who was stated to be his Saadu. They came on the pretext of seeing their dog but robbed her of her wearing jewellery and Subhash even attacked on her neck with a knife due to which she suffered bleeding. She went into another room in the house and locked herself in. After some time, her daughter, neighbours etc. came and she came out of the room.
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 2/36 She learnt that the door of the house was opened by one Manglesh working in the neighbourhood after he entered through the balcony. She stated that said Subhash and his accomplice escaped from the balcony using sarees. She also stated that besides her jewellery, the wrist watch of her daughter make Pierre Cardin and Rs.11,500/- were also stolen from the house. 1.2 On the basis of the circumstances, the MLC and the complaint, present case FIR was registered u/s 394/397/34 IPC. Site plan was prepared. The blood-stained saree worn by the complainant was seized. The sarees used to escape from the balcony were also seized. During investigation, complainant further told the Police that accused Subhash was calling another boy by the name of Naeem and further currency coins were stolen from the temple in the house and even a mobile phone make Nokia, two debit cards besides two pen drives of her daughter were also found missing. During investigation the police found that Naeem was resident of Mumbai but after getting married to sister-in-law of accused Subhash, he was residing in Delhi. Accused Subhash, Naeem and his wife were missing from their house since the date of incident. On analyzing the CDR details, both accused were found to be located in the area of Sarita Vihar.
1.3 During investigation, the police party departed to Mumbai and on 02.02.2017, accused Naeem was apprehended near Basai Railway Station. He admitted his guilt and stated that robbed articles are with accused Subhash. One watch phone was recovered from him and he was brought to Delhi. He was produced in the court for TIP but he refused to participate in the FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 3/36 TIP. During investigation, he pointed out the place of occurrence and the complainant identified him therein. Thereafter, on 06.02.2017 accused Subhash was arrested near police station Saket. He admitted his guilt and stated that robbed jewellery articles are with his friend Hussain. His police custody was obtained on 07.02.2017 from the court and during his police custody, he got recovered two pen drives and some currency coins. He also got recovered one rope used to strangulate the complainant. However, the suspect Hussain could not be arrested. On 08.02.2017 he also got recovered one knife which was used in the incident. The recovered case property was deposited in the malkhana. During investigation, the blood sample of complainant was obtained and exhibits were sent for opinion of FSL expert. Thereafter, the chargesheet was filed against the accused persons. Subsequently, FSL result was furnished on record by way of application/supplementary chargesheet.
2. CHARGE 2.1 On the basis of the chargesheet, charge u/s 394/34 IPC was framed against both accused and charge u/s 397 IPC was framed against the accused Subhash Kushwaha only, to which they pleaded not guilty and claimed trial. Accordingly, prosecution was directed to lead evidence in support of the chargesheet.
3. PROSECUTION EVIDENCE 3.1 In support of its case, prosecution has examined 19 witnesses.
S. No. Name of witness Nature of evidence
PW-1 Smt. Subhra Complainant of the case
Mukherjee
PW-2 Ms. Nivedita Daughter of complainant
Mukherjee
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 4/36 PW-3 HC Mohan Lal Witness to the initial investigation and arrest/recovery witness qua accused Subhash Kushwaha PW-4 Rajbir Singh Record clerk who proved MLC (regarding blood sample collection) of complainant at AIIMS PW-5 Manglesh Working as Cook at the neighboring house of complainant PW-6 SI Lakhmi Chand In charge, Mobile Crime Team who inspected the spot PW-7 Dr. Hasnain Reza Doctor who prepared the MLC of complainant at Apollo hospital PW-8 R. K. Rakam Singh Finger Print Expert who inspected the spot PW-9 Ashok Kumar Judicial Officer who conducted the TIP of accused Naeem Aslam Sheikh PW-10 Ajay Kumar Nodal Officer, Bharti Airtel PW-11 Israr Babu Alternate Nodal Officer, Vodafone PW-12 HC Dani Ram Duty Officer PW-13 Ct. Narender Kumar Police Official who took the exhibits to FSL PW-14 Ct. Rahul Police witness reg.
arrest/disclosure/pointing memos
qua accused Naeem
PW-15 Ct. Amit Police witness reg. the recovery of
knife/its seizure from accused
Subhash Kushwaha
PW-16 Ct. Harveer Meena Police witness reg. the
disclosure/seizure of rope/few coins
and pen drives from accused
Subhash Kushwaha
PW-17 WCt. Preeti Police witness reg. collection of the
blood sample of complainant Subhra
Mukherjee at AIIMS
PW-18 Sanjay Singh Assistant Manager, Aircel who
proved the CAF of Pankaj Kumar
PW-19 SI Nagender Nagar IO of the case
3.2. The prosecution has exhibited following
documents/objects in support of its case: -
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 5/36 No.of exhibit Nature of exhibit Ex.PW1/A Statement of complainant Smt. Subhra Mukherjee Ex.PW1/B Seizure memo of saree worn by the complainant Ex.PW1/C Seizure memo of sarees and a bed cover used to make a rope for escaping Ex.P1 (colly) Both sarees Ex.P2 Saree worn by the complainant Ex.P3 Knife Ex.P4 Rope Ex.P5 Coins Ex.P6 Blue Colour pen drive Ex.P7 Other pen drive Ex.PW3/A Arrest memo of accused Subhash Kushwaha Ex.PW3/B Personal search memo of accused Subhsh Kushwaha Ex.PW3/C First Disclosure statement of accused Subhash Kushwaha Ex.PW4/A MLC of patient Subhra Mukharji Ex.PW4/B Authorization letter qua PW4 Ex.PW6/A Crime Scene Inspection Report Ex.PW7/A Medico Legal Report of Subhra Mukherjee Ex.PW9/A Application for conducting TIP of accused Naeem Aslam Sheikh Ex.PW9/B TIP proceedings Ex.PW10/A CDR of Beebi Sakina mobile no. 9650670939 w.e.f.
20.01.2017 to 27.01.2017 Ex.PW10/B CAF of Beebi Sakina mobile no. 9650670939 w.e.f.
20.01.2017 to 27.01.2017
Ex.PW10/C Certificate u/s 65B of Indian Evidence Act
Ex.PW11/A CDR of Subhash Kushwaha's mobile
no.9990874028 w.e.f. 20.01.2017 to 27.01.2017 Ex.PW11/B CAF of Subhash Kushwaha's mobile no.9990874028 w.e.f. 20.01.2017 to 27.01.2017 Ex.PW11/C Certificate u/s 65B of Indian Evidence Act Ex.PW11/D Police Complaint Ex.PW12/A Rukka Ex.PW12/B FIR Ex.PW12/C Certificate u/s 65B of Indian Evidence Act Ex.PW14/A Arrest memo of accused Naeem Ex.PW14/B Personal search memo of accused Naeem FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 6/36 Ex.PW14/C Disclosure statement of accused Naeem Ex.PW14/D Pointing out memo Ex.PW14/E Seizure memo of wrist watch recovered from the possession of accused Naeem at Bombay Ex.PW15/A Ist Disclosure statement of accused Subhash Kushwaha Ex.PW15/B Sketch of knife Ex.PW15/C Seizure memo of knife Ex.PW16/A 2nd Disclosure statement of accused Subhash Kushwaha Ex.PW16/B Seizure memo of rope Ex.PW16/C Seizure memos of few coins and two pen drives Ex.PW17/A Seizure memo of parcel Ex.PW18/A CAF of Pankaj Kumar's mobile no.7532060646 along with his ID Ex.PW19/X DD No.23A regarding MLC of Subra Mukherjee Ex.PW19/A Rukka Ex.PW19/B Site Plan of place of incident Ex.PW19/C Site plan of recovery of rope Ex.PW19/D Pointing out memo of place of occurrence Ex.PW19/E Site plan of the recovery articles Ex.PW19/F Taking over memo of seal Ex.PW19/G Site plan of recovery of knife Ex.PW19/H Receiving of Seal Ex.PW19/I, Photographs of the place of occurrence taken by Ex.PW19/J, crime team Ex.PW19/K and Ex.PW19/L Ex.PW19/M Supplementary chargesheet Ex.PA-III FSL result (admitted by accused u/s 294 CrPC) 3.3 Though 19 witnesses have been examined by prosecution but the main witnesses of the case are:
i. PW1-Smt.Subhra Mukherjee, complainant of the case, ii. PW2-Nivedita Mukherjee, Daughter of complainant, iii. PW19-Inspector Nagender Nagar, IO of the case FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 7/36 3.4 PW1 Smt. Subhra Mukherjee, complainant of the case deposed that on 25.01.2017 she was present in her house and was watching TV. At about 2.15 pm door-bell rang, she opened the door of her flat situated at second floor of C-188, Sarita Vihar, New Delhi and found that one Subhash, who was looking after her pet dog Buzo was standing at the door, who asked her how is Buzo and he wanted to see him. She allowed him to come inside and he was also accompanied by one person, who was introduced as his Sadu (co-brother) by said Subhash to her. Subhash went inside her room where her ailing dog was present and after some time he came out when she was standing in the dining hall. He told her that he had changed his cell number and asked her to note down his number and while she was writing his new cell number, the said Subhash attacked her as a result of which she became unconscious. She got little consciousness when she noted that the other person who had come with Subhash was strangulating her with a rope and she was trying to save herself by holding that rope as it was suffocating. She again became unconscious and the assailant also hit her with a knife. She was in great pain. Her throat was slit with the knife and she had received many stitches on the said wound which had cut her right-hand side nerve and as far as she recalled, the accused Subhash had used the knife.
When she gained consciousness, she found her bangles, her earning (one side), her ring and her chain were all taken away. During the incident, she heard somebody knocking at the door which she later came to know was her daughter Nivedita Mukherjee and driver Shyam Sunder Pathak. Her daughter with FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 8/36 the help of neighbors took her to Apollo hospital. Police met her in hospital and made inquiries from her regarding the incident.
Her statement Ex.PW1/A was recorded by the police in the hospital wherein she had narrated the incident. During the investigation, the police had seized her blood-stained saree vide seizure memo Ex.PW1/B which she was wearing at the time of incident. The accused had escaped from the house by making a rope with the help of sarees and a bed cover. The sarees and bed cover were also seized vide seizure memo Ex.PW1/C. She had told the police that the articles which were missing from her house after the incident included two debit cards of SBI and OBC, Cell phone make NOKIA, cash of Rs.11,500/- and one watch make Pierre Cardin etc. On 24.02.2017 she along with her daughter namely Nivedita Mukherjee and one lady constable had gone to AIIMS hospital for giving her blood sample and same was taken by the doctor. During investigation, the accused who had come with Subhash and introduced as his Sadu was shown to her by police and his name was disclosed to her as Naeem.
During her testimony, PW1 correctly identified both accused as well as the case properties Ex.P1 to Ex.P7.
The witness was duly cross examined by Ld. Counsel for the accused.
3.5 Ms. Nivedita Mukherjee, daughter of the complainant, deposed that she is posted as an Additional Director at FICCI, Bengali Market, New Delhi and earlier she was posted as Joint Director at the same office. She came to the aforesaid office; however, she got free early on account of some programme FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 9/36 scheduled to be held on that day. Accordingly, she reached her home early on that day at about 3.00 pm. Her mother Smt. Subhra Mukherjee was alone in the house when she left for the office and when she reached at her home at C-188, Second Floor, Sarita Vihar, New Delhi, she rang the bell and also knocked the door but there was no reply. She kept on knocking the door and also rang the bell several times but there was no response. Thereafter, she started screaming and shouted "mummy, mummy" while kicking the door at the same time. She went down on the first floor of said building, rang the door of the flat where Mrs. Nichani opened the door and she said to her "pata nahin kya ho gaya hai, mummy darwaja nahin khol rahi". After hearing her shouting and screaming, several inhabitants of the building and the persons from the neighbourhood also came upstairs. From amongst them, one boy said to her that he had seen a man jumping down from her flat from the side of veranda. There were two flats on the second floor of the premises and one of her immediate neighbor's servant namely Shri Manglesh went upstairs and tried to climb down in her flat from that flat. In the meantime, Smt. Prema also came up there after hearing her shouting and screaming. Manglesh entered her flat and opened the door. When she went inside the flat, she saw her mother coming out from her room. She was in pool of blood and her wearing saree was also soaked in blood. She was in complete state of shock and panic. She embraced her mother and held her tightly as she was crying. Her mother was having injuries on her neck and she was repeatedly saying the name of Subhash. She gestured to her and told that her throat was slit by using a knife.
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 10/36 Her mother further told her that said Subhash had slit her throat. They had hired said Subhash to take out the dog for outing. Since her mother was bleeding profusely, she along with her neighbors took her to hospital. Police also reached hospital and also made inquiry from her mother. Qua the incident, her mother told her that while she was watching TV, both the said accused gained entry into the flat and also robbed her jewellery and other articles and they had also tried to strangulate her with rope and when her mother protested, the said accused persons caused injury to her by using a knife. Officials from the crime branch inspected her house but she does not know if they were able to lift any finger prints from there. The crime team officials also took photographs of the spot.
She further deposed that when they reached the flat, they found that cash of Rs.11,000/-, one Pierre Cardin wrist watch, her mother's bangles, ear rings, probably one gold chain were robbed by the accused persons at the time of said incident. Police had also taken into possession two sarees tied with each other which were used by accused persons to climb down from the balcony of her house. Her mother's two debit cards of Oriental Bank of Commerce and SBI, Nokia phone and two pen drives were also robbed by the said accused persons.
PW2 correctly identified the accused Subhash present in the court as well as the case properties produced in the court.
She was duly cross examined by Ld. Defence Counsel for the accused.
3.6 PW19 SI Nagender, IO of the case deposed that on 25.01.2017 he was posted as Sub Inspector at PS Sarita Vihar and FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 11/36 on that day, he received DD No.23A Ex.PW19/A regarding MLC of Subra Mukherjee from the Apollo hospital. Thereafter, he reached at said hospital where he collected the MLC of Subra Mukherjee, who was admitted therein and was under treatment but the injured was not able to speak properly due to wounds on her neck. He also went to the daughter of the injured namely Nivedita. After the injured got discharged from the hospital she along with her daughter went to her home at about 08.00 pm. He along with beat staff reached at the spot i.e. Flat No.C-188, Sarita Vihar New Delhi where victim met him. He inspected the spot i.e. house of victim Subra Mukherjee, called the crime team wherein crime team members reached the spot and inspected the spot and took photographs. The rooms of house of the complainant were ransacked and he noticed that few sarees were tied together and were tied with the gate in the balcony of the second floor of the victim's house and were hanging till the end towards earth. He obtained inspection report of the crime team. He also inquired victim Subra Mukherjee and recorded her detailed statement and on the basis of said statement, he prepared rukka Ex.PW19/A, got the FIR registered through HC Mohan Lal who was accompanying him and after registration of FIR, investigation was marked to him. He prepared the site plan Ex.PW19/B at the instance of complainant. HC Mohan Lal returned to the spot and handed over him the original tehrir and copy of FIR. The complainant handed over him the blood-stained saree which she was wearing at the time of incident which he seized after sealing in a pullanda with his seal of NS. He also untied the sarees hanging from the balcony towards ground and FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 12/36 seized them after sealing in a pullanda with the seal of NS. He recorded the statement of complainant u/s 161 CrPC and thereafter, he returned to the police station and deposited the case property in the malkhana.
On the next day i.e., on 26.01.2017 he tried to search accused persons but all in vain and on the said day he examined the daughter of complainant and recorded her statement u/s 161 CrPC. During investigation, he inquired PW Manglesh and other witnesses and recorded their statement u/s 161 CrPC.
During investigation, he came to know that accused Naeem Aslam Sheikh was resident of Vasai District Palghar, Maharashtra. Thereafter, on 30.01.2017 he along with ASI Khaleel, Ct. Krishan, Ct. Rahul and Ct. Sahid went to the given address of accused Naeem at Maharashtra and reached there on 30.01.2017 where they kept on searching accused Naeem.
On 02.02.2017 they came to know about the present whereabouts of the accused Naeem Aslam Sheikh at Kurgaon, Boisar, District Palghar, Maharashtra and they raided said address but accused did not meet them there, however, his wife was found present there. There they came to know that accused had gone to Vasai to meet his relative and thereafter they went to Vasai but accused did not meet them there also. In the evening when they were about to return to Delhi and reached near Vasai Railway Station, one secret informer came to see them off. He indicated towards a person standing in front of Rishikesh Hotel, near Vasai Railway Station and told them that he was accused Naeem Aslam Sheikh. Thereafter, they apprehended accused who disclosed his identity as Naeem Aslam Sheikh. They FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 13/36 interrogated accused, thereafter arrested him and conducted his personal search. From the search of accused Naeem Aslam Sheikh, one watch like mobile phone was recovered from the pockets of his jeans. Accused told that the said watch phone was not having SIM as the SIM was taken out by the co-accused Subhash. Thereafter, he checked the said watch phone and seized the same after recording its IMEI number. He recorded the disclosure statement of accused Naeem Aslam Sheikh and thereafter they took him along with them and returned to Delhi. Accused was produced in the court wherein he refused to join the TIP. One day police custody remand of the accused was obtained and PW19 deposited the case property in the malkhana.
Pursuant to his disclosure statement, accused Naeem took them to Madan Pur Khadar Extension and Noida, U.P. in search of co accused Subhash Kushwaha but all in vain.
On the next day again, two days PC remand of accused Naeem Aslam Sheikh was obtained but despite efforts co-accused could not be apprehended. On 04.02.2017 accused Naeem Aslam pointed out the place of occurrence and he prepared the pointing out memo. On the said day complainant identified accused and he recorded her supplementary statement u/s 161 CrPC.
On 06.02.2017 accused Naeem Sheikh was produced before the court and from there he was sent to judicial custody. He deposed that at about 4.00 pm when they were returning to PS Sarita Vihar from Saket Courts after producing the accused Naeem Aslam Sheikh before the court, accused Subhash Kushwaha was found present near PS Saket, who was identified by the beat staff i.e. HC Mohan Lal, who was along with him at FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 14/36 that time. He apprehended accused Subhash Kushwaha with the help of HC Mohan Lal and Ct. Harvir and thereafter accused Subhash Kushwaha was taken to PS Sarita Vihar. He made inquiries from said accused. Thereafter he was arrested, his personal search was conducted and his disclosure statement was got recorded. After arrest of the accused Subhash Kushwaha, he along with police staff and accused went to sector 16, J. J. Colony, Noida, U.P. for tracing the co accused Hussain but the said Husssain could not be traced on that day and they came back to their police station.
On the next day on 07.12.2017 accused Subhash Kushwaha was produced before the concerned court and he obtained two days police custody remand of said accused. He again interrogated the accused Subhash Kushwaha, who made supplementary statement regarding recovery of pen drive, mobile phones, some coins and one rope used in this case. He recorded supplementary statement of accused Subhash Kushwaha. Thereafter, he along with Ct. Harvir and Ct. Raj Kumar reached at near District Park, Madan Pur Khadar along with accused Subhash Kushwaha, who pointed out the place where he had thrown the above said rope. The said rope was got recovered at the instance of accused Subhash Kushwaha, sealed in the cloth parcel with the seal of NS and pointing out memo was prepared at the instance of accused Subhash Kushwaha. He also prepared the site plan of recovery of said rope Ex.PW19/C. Thereafter, accused took them to the place of occurrence and accused pointed out place of occurrence vide pointing out memo Ex.PW19/D. Thereafter, accused took them at his rented FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 15/36 premises wherein he got recovered some coins in a polythene and two pen drives. The coins were of different denomination and total coins were of 49 rupees and seventy-five paise. He sealed the above said coins in the same polythene with the help of cloth parcel with the seal of NS and seized the same. He also sealed the above said two pen drives in the cloth parcel with the seal of NS and same was seized. After use of said seal, it was handed over to Ct. Harvir. He prepared the site plan Ex.PW19/E of above said recovery articles, they returned to police station and he deposited the above said case property in the malkhana. He received the above said seal from Ct. Harvir and taking over memo of seal Ex.PW19/F was prepared.
On 08.02.2017 he along with Ct. Amit, Ct. Rahul and accused Subhash Kushwaha went to trace the co accused Hussain in the area of sector 16, Noida, U.P. but he could not be arrested on the said date.
On the way, accused Subhash Kushwaha again disclosed that he had thrown the knife used in the incident near the place of occurrence. He recorded the supplementary statement of the accused Subhash Kushwaha. Thereafter, they went to the back side of the place of occurrence wherein accused Subhash Kushwaha got recovered a blood-stained knife used by him in the present case. He prepared sketch of the knife, seized the same in a plastic container with the seal of NS. After use of seal, it was handed over to Ct. Amit. He prepared the site plan of recovery of knife Ex.PW19/G. They returned to the police station and case property was deposited in the malkhana. He received his above said seal from Ct. Amit Ex.PW19/H and the on the next day, FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 16/36 accused was produced before the court and from there he was sent to Judicial custody.
On 24.02.2017 he had sent the complainant to AIIMS along with lady Ct. Preeti for obtaining his blood sample. After obtaining the blood sample and sample seal, she came back to the police station along with complainant and she handed over above said parcels to him and same were seized.
During investigation, PW19 collected thirteen photographs of the place of occurrence from the crime team and same were pasted on a white paper and placed on file and the same are Ex.PW19/I, Ex.PW19/J, Ex.PW19/K and Ex.PW19/L. He sent the sealed article containing the exhibits of the FSL through Constable, recorded the statement of witnesses, collected the result on the MLC of the complainant from Apollo hospital and opinion was given on the said MLC as simple injury caused by sharp weapon. He had moved an application before the concerned court regarding the identification of the recovered pen drives as the said pen drives belonged to the daughter of the complainant but she could not appear before the court due to which the TIP of said pen drives could not be conducted.
After completion of investigation, he prepared the chargesheet against accused Naeem Sheikh and Subhash Kushwaha but accused Hussain could not be traced. The FSL result was awaited. He filed the supplementary chargesheet Ex.PW19/M regarding the FSL report bearing No.2017/B- 1720/6766 dated 20.04.2017.
During his testimony, PW19 identified the case properties in the court. He was duly cross-examined by Ld. Defence FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 17/36 Counsel.
4. EXAMINATION OF ACCUSED U/S 313 CrPC 4.1 After conclusion of prosecution evidence the accused were questioned u/s 313 CrPC regarding incriminating circumstances appearing against them. Both of them have stated that they are innocent and have been falsely implicated in the present case. 4.2 Accused Subhash Kushwaha stated that he was working with the complainant Subhra Mukherjee and looking after her dog but then he was shunted out of said job as once he had beaten the dog. He had gone to the house of complainant alone on the date of incident. He was accompanied by co-accused Naeem Aslam Sheikh but he remained downstairs. His balance payment of Rs.2,500/- was to be paid by the complainant Subhra Mukherjee and she said that she was not having the money presently and thus she cannot pay him. She asked him to come one week later and he returned from her house.
He further stated that on the same day he received call from his younger brother Vijay, who told him that police were looking for him and asked him whether he had done any offence with the aunty (complainant) but he said that he had not done anything but when police kept on harassing his family, he himself appeared before Saket Court probably in room no. 510 on 06.02.2017 for surrendering before the court. However, he was told by the Counsel that the matter had been adjourned and that he shall come on next day. When he exited from the Court complex, he was caught by the police, who interrogated him and also took him to AIIMS for his medical examination but he was not taken to anywhere else and nothing was recovered at his FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 18/36 instance. Police obtained his signatures on four documents. He had not committed the alleged offences and complainant had deposed falsely against him.
4.3 Accused Naeem Aslam Sheikh stated that he had accompanied co-accused Subhash Kushwaha but he did not meet the complainant or went at her house but rather remained downstairs only. He further stated that he does not even know the complainant and co accused Subhash Kushwaha is his Saadu. He stated that on 25.01.2017 he had gone to the complainant's house as his co-accused had to get his payment from her. He accompanied him but he did not go inside the complainant's house. He further stated that police had deposed falsely qua his arrest from Railway Station rather police had apprehended him from his house at Royal Garden. He further stated that nothing was recovered from him like watch or mobile phone and nothing was recovered from him in regard to the present case. He refused to participate in TIP since IO told him that if he participated in TIP, he will be embroiled in the criminal case. He had been implicated in the present case because of co-accused Subhash Kushwaha since he had beaten the dog of the complainant and for said reason, the complainant had grudge against him.
5. DEFENCE EVIDENCE 5.1 No defence evidence was led by either of accused.
6. ARGUMENTS 6.1 Thereafter, arguments of the prosecution and Ld. Counsel for the accused were heard. Ld APP has argued that prosecution witnesses have deposed as per the case of prosecution and their FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 19/36 testimonies are unrebutted. Further, the allegations of complainant get sufficient corroboration from circumstantial evidence as well as forensic evidence. Both accused have admitted their presence at the spot and there was no possibility of any 3rd person having committed the offence in the given circumstances. Accordingly, he has prayed that both accused be convicted for the offences charged against them. 6.2 On the other hand, Ld. Counsel for accused has submitted that the incident occurred around 2.30 pm and even the daughter of the complainant arrived at home around 3.00 pm but no PCR call was made by the complainant or her daughter. It is further submitted that in the DDNo.23A as well as the MLC of the complainant there is no history/allegation regarding theft. Further, there is delay in the FIR since the incident occurred around 2.30 pm but FIR was registered at 10.30 pm. It is further submitted that there was dog in the house but no witness has stated that said dog barked during the incident. It is submitted that if the owner of the dog was attacked the barking of the dog would have been heard by the persons outside the house and in the neighbourhood. It is further submitted that in the crime scene report there is nothing to show that accused had entered the house. It is submitted that there are serious inconsistencies in the statement of the complainant. In her complaint, she had stated that a cloth was put on her mouth and she became unconscious whereas in her testimony, she has stated that she might have been attacked as she became unconscious. Further, in her complaint she has mentioned the incident to have taken place in her room whereas in her testimony she has described the dining hall as the FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 20/36 place of incident. Further, in her testimony, she has deposed that she noticed the other person strangulating her with rope whereas no such fact have been mentioned in the complaint. Further, in her testimony she has mentioned that she became unconscious twice but no such fact has been mentioned in the complaint/FIR. Accordingly, the Counsel has argued that the sole eye witness is not a credible witness. He has submitted that the sarees which were allegedly used as a rope to escape from the house were never sent to the FSL. He has further argued that as per the CDR of the accused, their phone had the same cell ID from 1.55 pm to 07.24 pm showing that accused was in the same area and had not run away. It is submitted that if the accused had committed such offence, it was highly unlikely that he would remain in the same area instead of fleeing away. It is further argued that complainant and her daughter are interested witnesses and bore a grudge against the accused Subhash since he had beaten their dog Buzo. It is further submitted that accused Naeem had been shown to the complainant and circumstances of his arrest are unreliable. It is further argued that no gold bangles, earring, gold ring and gold chain allegedly robbed from complainant have been recovered from the accused persons and only two pen drives and few coins have been shown to be recovered from them. It is argued that why would accused keep such pen drives with them since they were of no use to them. The Counsel summed up his arguments saying that all these facts create serious doubt in the case of prosecution. The Counsel for accused has further argued that section 397 IPC mentions that same is attracted when any deadly weapon is used. He has argued that mere fact that a knife was FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 21/36 used in the incident does not per se attract the offence u/s 397 IPC. He has argued that prosecution has to establish that the knife had such a design or the method of its use was such that the use of knife was likely to produce death. He has argued that prosecution has failed to prove any such fact regarding the knife in question.
7. POINTS FOR DETERMINATION 7.1 Robbery is defined u/s 390 IPC. Section 390 IPC provides "When theft is robbery- Theft is "robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint".
Further, Section 394 IPC provides "if any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Further, Section 397 IPC provides "If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
7.2 Thus, the points for determination are: -
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 22/36
1. Whether any robbery took place at alleged time and place?,
2. Whether accused persons have committed such robbery? and if so,
3. Whether accused persons voluntarily caused hurt to the complainant while committing the robbery? and
4. Whether any accused is also liable for offence u/s 397 IPC?
8. APPRECIATION OF EVIDENCE AND APPLICATION OF LAW 8.1 The testimony of PW2 proves that when she reached at her home around 3.00 pm there was no response from inside the house despite knocking the door/ringing the bell and when she raised alarm the persons of locality gathered and a servant of their neighbor i.e., PW5 entered the house using stair/ladder through the balcony whose gate was found open. He found the mother of PW2 in injured condition with blood oozing from her neck. Said servant even observed that a saree was tied to balcony gate as if someone had escaped from balcony with the help of such saree. The crime scene photographs also show the house in ransacked condition and that sarees were tied to the handle of balcony gate and saree was extended over the wall of the balcony down towards the lower floors. PW1 has deposed that she was stabbed with knife on her neck by the assailants, her wearing jewellery had been taken away during the incident and even other articles were found missing from the house. The assertion of the complainant regarding her injuries gets corroboration not only from testimony of PW2 and PW5 but also from the medical record i.e. the MLC Ex.PW7/A wherein history of assault is FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 23/36 mentioned with stab injury to neck. The doctor has also mentioned following injuries:
1. Blackish discolouration under right eye;
2. Bagginess on scalp + (present);
3. Swelling on right side of mandible.
Further, the kind of weapon used has been mentioned as sharp by the doctor on the MLC. Even the blood-stained saree of the complainant was seized and when same was examined by the FSL experts, it was found to be having human blood and its DNA profile was matching with the blood sample of the complainant. Accordingly, all these circumstances collectively show that robbery had indeed taken place at the house of the complainant at the alleged time. Now the next question is whether the accused persons have committed the same.
8.2 The accused Subhash Kushwaha is named in the FIR itself with complete details as to how he gained the entry and how he committed the offence. PW1 has deposed categorically against both the accused in the court and has specified their role in the incident. Even when PW2 arrived at the spot and found that her mother was in pool of blood and was in complete state of shock and panic, she was repeatedly saying the name of Subhash. She pointed out to her throat and stated to PW2 that Subhash had slit her throat. The said act/transaction is a relevant fact u/s 6 of the Indian Evidence Act and proves that shortly after the offence, the complainant had mentioned the name of Subhash as the principal offender.
Even the circumstantial evidence corroborates the version of the complainant. Besides some of the stolen articles, one knife FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 24/36 was recovered at the instance of accused Subhash and when same was examined by the FSL experts, blood was detected on the same and the DNA profile of the same was found matching with the blood of complainant. He also got recovered one rope during investigation and when same was examined by the FSL experts, blood was detected on the same and its DNA profile was also found matching with the blood of the complainant. Further, in his 313 CrPC statement, the accused Subhash has admitted that he had gone to the house of complainant at the alleged time but he has claimed that he had gone there to get his balance payment of Rs.2500/-. He claimed that complainant was not having the money and asked him to come one week later. However, interestingly, throughout the cross examination of PW1, said specific defence was never put to her. Accordingly, the defence taken by accused is apparently an afterthought. Moreover, since accused has admitted his presence at the crime scene at the relevant time and the time gap between arrival of accused person and thereafter of daughter of complainant and the neighbors etc. is too small, the possibility of any other person having committed the offence can be safely ruled out.
As far as the accused Naeem is concerned, the complainant has mentioned his role also in the incident with sufficient details and has mentioned in her complaint itself that accused Subhash was accompanied by another person and stated him to be his relative (saadu). Admittedly, accused have said relation with each other. Further, during her testimony the complainant has duly identified him as one of the robbers. It is to be noted that said accused refused to participate in TIP during investigation on FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 25/36 03.02.2017. In the said TIP proceedings, the accused had stated that he does not want to participate in TIP as he had already been seen by the witness at the spot. Thereby the refusal of the accused not only raises an adverse inference but also shows that he was present at the spot at the time of incident. Interestingly, during his examination u/s 313 CrPC, said accused has claimed that he refused to participate in TIP since IO told him that if he participates in TIP he will be embroiled in criminal case. Thus, he has taken a contradictory stand regarding TIP refusal. Moreover, he has also claimed u/s 313 CrPC that he did not go inside the house of the complainant and did not meet the complainant but rather remained downstairs only. Thus, he has again disputed his immediate presence at the spot i.e., inside the house but has admitted going at the house of complainant. Such changing stands of accused show that he has no valid defence. Most importantly, the defence that said accused never entered the house and remained downstairs only, was never specifically put to PW1 throughout her cross examination Accordingly, prosecution has led sufficient evidence to show the culpability of the accused persons in the alleged robbery. Now we shall examine as to whether the arguments led by the Counsel for accused create any reasonable doubt in the case of prosecution.
8.3 Counsel for accused has submitted that the incident occurred around 2.30 pm and even the daughter of the complainant arrived at home around 3.00 pm but no PCR call was made by the complainant or her daughter. It is further submitted that in the DD No.23A as well as the MLC of the FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 26/36 complainant there is no history/allegation regarding theft. Further, there is delay in the FIR since the incident occurred since 2.30 pm but FIR was registered at 10.30 pm. I have considered said arguments. Apparently, there is no PCR call which was made by the complainant or her daughter regarding the incident and the police sprang into action when DD No.23A dated 25.01.2017 was recorded at 3.57 pm regarding receiving of information that the complainant had been admitted in Apollo hospital in injured condition after being stabbed with knife at her house. Thus, it appears that PCR call was made by the hospital staff. However, it is to be noted that complainant was an old lady aged about 74 years and was in a state of shock and was injured too. Even her daughter has deposed that she panicked when her mother did not open the house and when the house was ultimately opened, she found her mother in blood- soaked saree and injured condition and her mother embraced her and started crying. Thereafter, she took her mother to the hospital with neighbours. Accordingly, it is apparent that both complainant and her daughter were in a shocked state after the incident. Further, in the given circumstances, the complainant and her daughter acted as per the exigency of the situation i.e., get the immediate medical treatment for the complainant instead of calling the police as the robbers had already ran away by that time. Once the information was received from the hospital and police had arrived in the hospital, there was no requirement to make any call by the complainant and her daughter. More so, neither PW1 or PW2 were cross examined regarding non making any call on number 100. Nonetheless, the facts stated by them FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 27/36 are self-explanatory. As far as the DD No.23A and the MLC Ex.PW7/A is concerned, though there is no reference of the theft but in both documents, it is clearly mentioned that there was history of assault with stab injury. It may be mentioned here that in the MLC the purpose of noting down the history is whether the person received the injury by accident, by machinery, by fire, poison, assault or same is self-inflicted. In a nutshell, the reason of the injury has to be mentioned and there is no requirement to mention as to what offence was committed during which the injury was received. Since the DD appears to be based on the MLC itself, hence, same also contain only the fact of stab injury. However, the case of prosecution cannot be doubted on such grounds. The Counsel for accused has highlighted the delay in FIR also. I have considered the same. However, the IO who recorded the complaint and got the FIR registered has not been cross examined at all regarding the delay in the registration of the FIR. Even the complainant has not been cross examined on said aspect. Further, the incident happened around 2.30 pm and police came into action around 4.00 pm and the FIR was recorded at 10.30 pm so there is no inordinate delay in the registration of the FIR. As far as the delay of few hours is concerned, since neither the IO nor the complainant has been cross examined on the said aspect no adverse inference can be raised against the prosecution. In case the IO would have been cross examined on said aspect and he would have failed to give any reasonable explanation then such argument may have had substance. Further, circumstances leading to delay have been mentioned in the chargesheet.
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 28/36 8.4 It is further submitted by the Defence Counsel that there was dog in the house but no witness has stated that said dog barked during the incident. It is submitted that if the owner of the dog was attacked the barking of the dog would have been heard by the persons outside the house and in the neighbourhood. This shows that no robbery was committed at all.
I have considered said argument. It is to be noted that as per complainant, her dog was not keeping well on the date of the incident. The photographs taken by the crime scene show the dog lying on the ground in an inactive condition. More so, during the cross examination the complainant has deposed that her dog died next day of the incident. Therefore, circumstances show that the dog of complainant was seriously unwell on the date of incident. More so, the accused Subhash was admittedly its handler earlier and was familiar with the dog. Accordingly, in the given circumstances, the non-barking of the dog stands explained and there is no substance in the said argument. 8.5 Ld. Counsel has further submitted that in the crime scene report there is nothing to show that accused had entered the house.
I have considered the said argument. Ld. Counsel has tried to build his argument on the fact that there was no forceful entry in the house and further no chance prints of accused were found in the house. However, as per complainant, the entry of the accused persons was friendly since the accused Subhash was known to the family earlier and was not a stranger. Accordingly, there was no occasion for any forceful entry. As far as chance prints are concerned, PW8 has deposed that he tried to lift the FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 29/36 finger prints from the door, almirah, boxes etc. but no finger prints could be detected. It may be noted here that the chance prints are available only in cases where a person touches smooth and polished surfaces and further his hands are not dusty. More so, in the present case there is direct as well as indirect evidence to show the complicity of the accused persons in the alleged offence and the mere non finding of their chance prints in the house does not go to the root of the matter.
8.6 Ld. Counsel has further argued that there are serious inconsistencies in the statement of the complainant. In her complaint, she had stated that a cloth was put on her mouth and she became unconscious whereas in her testimony, she has stated that she might have been attacked as she became unconscious. Further, in her complaint she has mentioned the incident to have taken place in her room whereas in her testimony she has described the dining hall as the place of incident. Further, in her testimony, she has deposed that she noticed the other person strangulating her with rope whereas no such fact has been mentioned in the complaint. Further, in her testimony she has mentioned that she had become unconscious twice but no such fact has been mentioned in the complaint/FIR. Accordingly, the Counsel has argued that the sole eye witness is not a credible witness.
I have considered the said arguments. The evidence of a witness has to be appreciated considering his age, education, profession, social background etc. It cannot be ignored that complainant was a 74-year-old lady and more so whenever any witness is examined regarding an incident, there may be some FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 30/36 minor inconsistencies when he will recall the incident as it depends on the time gap since incident and also the person examining the witness as to what specific questions he puts to the witness. The complainant has mentioned sufficient details of the incident and the role of the accused persons in her complaint as well as in her testimony. The complainant has stated in her complaint that she became unconscious when accused Subhash put some cloth on her mouth. Qua said fact she has deposed about becoming unconscious stating that Subhash might have attacked her. Thus, in her testimony she has ascribed the role of Subhash in making her unconscious and only the manner has not been mentioned. As far as the place of incident is concerned, in her testimony PW1 has deposed that Subhash went inside her room and after sometime he came out when she was standing in the dining hall. He told her that he had changed his cell number and she was writing his new cell number. Thus, in her testimony she has referred that she was in the dining hall when said accused came out but she has not mentioned that she picked the pen and paper in the dining room only and started writing the number there itself. The testimony of witness has to be read in the given context and nothing more can be presumed than stated by the witness or which can be directly inferred. Even in her cross examination, there was no reference that the incident occurred in the dining hall. As far as the testimony of complainant that she noticed the other person strangulating her with rope, is concerned, it is not the case that no such fact has been mentioned in the complaint/FIR. It is only the manner in which the same have been expressed. In the complaint there is a clear reference FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 31/36 that accused Subhash asked his accomplice that he should tie the neck of the complainant and then they tried to tie her neck with a rope. Accordingly, there is no major contradiction regarding the said fact. As far as the fact that complainant has mentioned in her testimony that she became unconscious twice, is concerned, it is not the case that complainant did not mention at all about being unconscious and the only discrepancy is that she has mentioned only one episode of unconsciousness. However, considering the overall facts and circumstances, and the age of the complainant, such discrepancy is not so material to discredit her testimony. 8.7 Ld. Defence Counsel has further argued that the sarees which were allegedly used as a rope to escape from the house were never sent to the FSL. It is further argued that as per the CDR of the accused, their phone had the same cell ID from 1.55 pm to 07.24 pm showing that accused was in the same area and had not run away. It is submitted that if the accused had committed such offence, it was highly unlikely that he would remain in the same area instead of fleeing away.
I have considered the arguments. It is not the case of prosecution the crime Team/IO observed any blood etc. on the saree used as a rope to escape from the house. Accordingly, non sending of the same to the FSL is self-explanatory. As mentioned earlier, the saree which was worn by the complainant having her blood stains was indeed send for the FSL for examination. As far as CDR of the accused is concerned, the mere fact that the location of the accused was not changing and was in the nearby area does not go on to show that he is innocent. It depends on the thinking process of the culprit whether he escapes far away from FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 32/36 the place of occurrence after the incident or he may hide at a safe place near the spot of incident.
8.8 It has been further argued by the Defence Counsel that complainant and her daughter are interested witnesses as they bore a grudge against the accused Subhash since he had beaten their dog Buzo. It is also submitted that accused Naeem had been shown to the complainant and circumstances of his arrest are unreliable.
I have considered said arguments. Present case is not the one where only oral allegations have been made by the complainant against the accused. As mentioned earlier, the allegations are duly corroborated by the circumstances existing at the scene of crime, testimony of witnesses who were first responders, the medical evidence qua the injuries of the complainant, recovery of knife/rope used in offence and FSL report of their examination. Most importantly, in the entire cross examination of the complainant, she was never questioned on said line. Likewise, even PW2 was never given any suggestion that the allegations are motivated on the account that their dog was beaten by accused Subhash. Moreover, no cause appears at all to make allegations against the accused Naeem as he was complete stranger to the complainant and her family. As far as the argument that accused Naeem was shown to the complainant is concerned, there is nothing in the cross examination of the complainant to show that said accused was shown to the complainant before his TIP proceedings. Further, the arrest of accused Naeem has been duly proved by PW14 Ct. Rahul and PW19 SI Nagender Nagar. Nothing has come in the cross FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 33/36 examination of PW19 to suspect the circumstances of the arrest of accused Naeem. Further PW14 Ct. Rahul was cross examined nil, despite opportunity to the accused persons. 8.9 Lastly it has been argued by Defence Counsel that no gold bangles, earring, gold ring and gold chain allegedly robbed from complainant have been recovered from the accused persons and only two pen drives and few coins have been shown to be recovered from them. It is argued that why would accused keep such pen drives with them since they were of no use to them. Accordingly, Ld. Defence Counsel has tried to imply that non recovery of the main case property shows the innocence of accused.
I have considered said arguments. Admittedly, the jewellery robbed from the complainant has not been recovered from either of the accused persons. However, as per prosecution, the accused had handed over the jewellery etc. to one Hussain Ansari but he could not be traced. Further, it is not the case of prosecution that accused persons were arrested immediately after the incident. Had it been such case then the non-recovery of case property may have casted doubt on the version of prosecution. One accused was arrested after about a week of the incident and the other was arrested after about ten days of the incident. Thus there was ample time with accused persons to dispose of the property. Nonetheless, some coins and two pen drives were recovered from accused Subhash. During their testimony, complainant has identified the currency coins and the pen drives. Even her daughter PW2 has identified both of the pen drives. Though said articles were not the main articles which were stolen FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 34/36 from the house of the complainant, it cannot be said that since the main stolen articles were not recovered, the recovery from the accused is doubtful. Had it been the case that there was no direct evidence and the police had solved the case on the basis of recovery only then such non recovery of the main article may have been crucial. However, in the present case circumstances, when there is direct evidence against the accused persons, the non-recovery of the jewellery items does not go to the root of the matter.
8.10 The Counsel for accused has further raised a technical argument that section 397 IPC is attracted only when any deadly weapon is used. He has argued that mere fact that a knife was used in the incident does not per se attract the offence u/s 397 IPC. He has argued that prosecution has to establish that the knife had such a design or the method of its use was such that the use of knife was likely to produce death. He has argued that prosecution has failed to prove any such fact regarding the knife in question.
I have considered said arguments. The dimensions of knife in question have been shown in its sketch Ex.PW15/B. As per the same, it was a 21.5 cm long knife with a blade of 11 cm. It can be seen that it was pointed at one end. Further, the knife was used on the neck of an old lady aged about 74 years. Thus, knife was used on a vital part of the body and if a deep cut would have been caused, the result could have been life threatening. Accordingly, considering the overall facts, there can be no other inference that said knife was indeed a deadly weapon in the given circumstances.
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 35/36
9. CONCLUSION 9.1 Accordingly, in view of aforesaid discussion, it stands proved beyond reasonable doubt that a robbery was committed at the given time and place and it was accused Subhash Kushwaha and accused Naeem Aslam Sheikh who committed the same in furtherance of their common intention and also caused hurt to the complainant while committing said robbery. It also stands proved beyond reasonable doubt that accused Subhash Kushwaha also used a deadly weapon at the time of committing said robbery. Accordingly, both of them are convicted for offence u/s 394/34 IPC and accused Subhash Kushwaha is also convicted for the offence u/s 397 IPC. Digitally signed by SACHIN SACHIN SANGWAN (Announced in the Open SANGWAN Date:
court on 20th March, 2023) 2023.03.20
17:47:54 +0530
(Sachin Sangwan)
Additional Sessions Judge
(FTC-01): SE: Saket District
Court: New Delhi.
FIR No. 31/2017 State v. Subhash Kushwaha & Anr.Pages 36/36