Delhi District Court
State vs Rahul @ Hukka & Ors. on 31 January, 2013
IN THE COURT OF SHRI BHUPINDER SINGH:
METROPOLITAN MAGISTRATE: DELHI
State V/s Rahul @ Hukka & Ors.
FIR No. 318/10
PS: Saraswati Vihar
JUDGMENT
A) Date of commission of offence : 18/01/2011
B) Name of the complainant : J.L. Tukhral S/o Sh. B.B. Tukhral
C) Name of accused : 1. Rahul @ Hukka
S/o. Sh. Daya Ram
2. Hira Lal @ Raju @ Sanjeev
S/o. Sh. Ram Vilas
3. Ravi @ Ravinder
S/o. Sh. Nirmal Singh
D) Offence complained of : U/s. 392/411/34 IPC
E) The plea of accused : Pleaded not guilty.
F) Final order : Accused Rahul @ Hukka and Hira Lal
@ Raju @ Sanjeev have been
convicted for the offence punishable
under Section 394/34 IPC.
Accused Ravi @ Ravinder has been
acquitted.
G) The date of such order : 31/01/2013
Date of Institution : 28/10/2010
Judgment reserved on : Not reserved
Judgment announced on : 31/01/2013
State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 1/23
THE BRIEF REASON FOR THE JUDGMENT:-
1. In brief, the case of the prosecution is that on 20/08/2010 at about 01:00 pm at AB Block, Lok Vihar park, Pitampura, within the jurisdiction of PS Saraswati Vihar, Delhi accused Rahul @ Hukka and Hira Lal @ Raju @ Sanjeev along with co-accused Pawan and Ravi @ Ravinder (not arrested) in furtherance of their common intention robbed the complainant J.K. Thakral. Further that on 18/01/2011 accused Ravi @ Ravinder got recovered a gold ring belonging to the complainant J.K. Thukral from A - 54, Shakurpur, J.J. Colony, Delhi.
2. After completion of investigation challan was filed by the police U/s 392/411/34 IPC of which cognizance was taken by my Ld. Predecessor of this court.
3. Compliance of Sec.207 was carried out and complete set of documents was supplied to the accused persons.
4. Vide order dated 17/02/2011 charge was framed against the accused Rahul @ Hukka and Hira Lal @ Raju @ Sanjeev for the offence under Section U/s 392/34 IPC by this Court to which the accused persons pleaded not guilty and claimed trial. Further vide order dated 26.05.2011 charge was framed against the accused Ravi @ Ravinder for the offence punishable under Section 411 IPC by this Court to which the accused pleaded not guilty and claimed trial. Further vide order dated 31.01.2013 an application under Section 216 Cr.P.C for alteration of charge qua accused Rahul and Raju @ Hira Lal from 392 IPC to State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 2/23 that of 394 IPC was moved by Ld. APP. Same was allowed and after amendment charge under Section 394/34 IPC was framed against them to which they did not plead guilty and claim trial.
5. Prosecution has examined 11 witnesses to prove the guilt of accused persons. A brief scrutiny of the examined witnesses is as below.
PW-1 Sh. J. L Tukhral is the complainant. He deposed that on 20.08.10 he had gone to dentist at Saraswati Vihar at about 11.30 am for his treatment. At about 01:00 pm when he was returning to his house from dentist clinic he got down from the rickshaw at the gate of B Block Lok Vihar and started going to his house at A Block through the park situated in between A and B block. He further deposed that he was carrying a mobile in his hand and that he saw 4 persons sitting in the park on a bench and he proceeded towards the gate for going out from the park towards his house in A Block. He deposed that as soon as he reached near the gate of the park to go out from the exit of the park, all the 4 persons sitting on the bench came to him and surrounded him and stopped him from going out of the park. One of them pressed his neck with the help of his hand and elbow and other 3 persons give him fist blow on his mouth due to which he became unconscious. He further deposed that when he regained consciousness he found himself lying in the mud/shrubs of the said park. He deposed that he found his mobile make Nokia 2700 No. 9811033125 IMI No. 359344035971281, black colour and a gold chain in which there was a pendent bearing picture of Lord Shiva and Sai Baba, his wrist watch make Titan, gold ring bearing the impression of OM and cash of Rs. 1250/- missing. He deposed that he had clearly seen the faces of all the robbers who had robbed him and they were aged about 20/22 years. He further deposed that someone called the police and that IO came to the spot and recorded his statement Ex. PW-1/A. He State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 3/23 further deposed that he got medically examined at a private clinic. He deposed that site plan Ex. PW-1/B was prepared at his instanced by the IO. He further deposed that on 15.09.10 he had gone to the PS Saraswati Vihar to know the progress of his case where IO met him and told him that he was investigating the case thoroughly and there he identified 2 accused persons whom he had seen while they had robbed in the said park with other accused persons. He deposed that he came to know their names as Rahul @ Hukka, Hira Lal @ Raju. He further deposed that both the accused persons namely Rahul and Hira Lal who had robbed him with other 2 persons and whom he identified at PS are present in the court. He deposed that IO recorded his supplementary statement and that on 24.01.11, he came in the court of Sh. V. K Jha , Ld. MM to identify the gold ring which has been recovered. During TIP proceedings he identified the gold ring and stated that the same belongs to him. He correctly identified the gold ring in the court and it was exhibited as Ex. P-1.
This witness was crossed examined by Sh. N. S Tomar, Ld. Counsel for the accused Ravi @ Ravinder wherein he deposed that the weight of his gold ring is about 4/5 grams. He further deposed that he do not remember from where he had purchased the same but it was some known jeweler.
This witness was cross examined by Sh. H. R Singh, Ld. Proxy Counsel for accused Rahul @ Hukka and Hira Lal @ Raju wherein he denied the suggestion that the accused persons Rahul and Hira Lal had not robbed him and they are falsely implicated in this case.
PW-2 Ct. Ashwani deposed that on 20.08.10 he was on emergency duty at PS Saraswati Vihar and on that day on receipt of DD 19A he along with IO/SI Surender Kumar reached at A-B block park Lok Vihar, Pitam Pura where complainant J. L Tukhral met them. He deposed that IO recorded the statement of Sh. J. L Tukhral and prepared rukka and sent him to PS Saraswati Vihar along State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 4/23 with the same for registration of this case. He deposed that after getting the case registered he came back to spot and handed over the copy of FIR and rukka to IO. He further deposed that he along with IO tried to search the accused persons as well as the case property but could not find any clue on that day.
This witness was cross examined by Sh. H. R Singh, Ld. Proxy Counsel for accused Rahul and Hira Lal wherein he deposed that DD No. 19A was received at about 1 pm. He deposed that the said park is situated in between A and B block. He further deposed that they remained on the spot till 4.30 pm. He denied the suggestion that he never joined the investigation of the present case. He further denied the suggestion that the accused persons are falsely implicated in the present case.
PW-3 Ct. Yogesh Kumar deposed that on 30/08/10 he was posted at PS Saraswati Vihar. On that day he along with Ct. Amar Singh were present in the PS when IO SI Manmeet Singh arrested the accused Rahul @ Hukka and Heera Lal vide arrest memo Ex. PW-3/A and 3/B and took their personal search vide memo Ex.PW-3/C and 3/D. He correctly identified the accused Rahul and Heera Lal @ Raju in the court. He deposed that both the accused persons made disclosure statement regarding their involvement in the present case. He deposed that IO recorded their statement Ex.PW-3/E and 3/F respectively bears their signature at point A. He further deposed that both the accused persons led them to the place of incident at the park AB Block Lok Vihar. He proved the pointing out memo prepared by the IO as Ex. PW-3/G. This witness was cross examined by Sh. B.P. Singh Ld. LAC for accused Rahul and Heera Lal wherein he deposed that in the present case first time he saw accused Heera Lal and Rahul in the PS. He denied the suggestion that the accused Rahul and Heera Lal were not arrested in the present case. He further denied the suggestion that both the accused persons had not made any State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 5/23 disclosure statement. He denied the suggestion that no pointing out memo was prepared at the instance of accused persons.
PW-4 W HC Asha has proved the copy of FIR No. 318/10 as Ex. PW-4/A and her endorsement on rukka as Ex. PW-4/B. PW-5 Ct. Amar Singh deposed that on 30/08/10 he was posted at PS Saraswati Vihar and on that day he was present at PS and IO SI Manmeet Singh handed over the custody of accused Rahul and Heera Lal to him and Ct. Yogesh. He deposed that in their presence both the accused Rahul and Heera Lal made disclosure statement Ex. PW-3/E and F and thereafter both the accused lead them to place of incident at AB Block Park, Lok Vihar. He futher deposed that IO prepared pointing out memo Ex. PW-3/G at the instance of both the accused.
This witness was cross examined by Sh. B.P. Singh Ld. LAC for the accused Rahul and Raju wherein he deposed that disclosure statement was recorded in PS. He deposed that he do not remember when the IO handed over the custody of accused persons to him but it was morning. He deposed that they reached at the spot along with accused persons from the PS at about 10am. He denied the suggestion that accused persons did not make any disclosure statement. He further denied the suggestion that their signatures have been taken on blank papers by the IO. He denied the suggestion that he was deposing falsely at the instance of IO.
PW-6 Retd. ASI Om Prakash has proved true copy of DD No. 19 A as Ex. PW-6/A. PW-7 ASI Sushil Kumar deposed that on 16/01/11 he was posted in the State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 6/23 PO Staff as HC in Sub Div. PS Saraswati Vihar. On that day when he was present in search of accused at near Railway Station Kishan Ganj, a secret informer met him and told that accused Ravi @ Ravinder who was declared PO in case FIR No.318/10 PS Saraswati Vihar would come at his in-laws house at Railway Quarters. At about 9:15pm at the instance of secret informer he apprehended a person near Railway Colony who on inquiry disclosed his name Ravi @ Ravinder S/o Nirmal Singh whom he correctly identified in the court. He further deposed that on interrogation accused Ravi @ Ravinder disclosed that he was declared as PO in the present case and was concealing himself. He further deposed that he arrested the accused Ravi @ Ravinder vide memo Ex. PW-7/A and conducted his personal search vide memo Ex. PW-7/B. He deposed that he informed the IO of the present case regarding the arrest of the accused and prepared Kalandra Ex. PW-7/C U/s 41.1 (C) Cr.P.C. He further deposed that he handed over the accused to IO SI Surender.
PW-8 SI Manmeet Singh deposed that on 27/08/10 he was posted at PS Saraswati Vihar as SI and on that day further investigation of the case was handed over to him as the previous IO SI Surender was posted in Common Wealth Games. He further deposed that on 29/08/10 SI Ranbir Singh IO of the case FIR No.322/10 U/S 392/411/34 IPC PS Saraswati Vihar had arrested the accused Rahul @ Hukka and Raju @ Heera Lal and both the accused persons disclosed before IO SI Ranbir Singh regarding their involvement in the present case. He deposed that IO SI Ranbir informed him regarding the disclosure statement of both the accused. He further deposed that he interrogated accused Rahul and Raju @ Heera Lal and arrested both the accused whom he correctly identified in the court vide arrest memo Ex. PW-3/A and B and took their personal search vide memo Ex.PW-3/C and D. He further deposed that he recorded the disclosure statement of accused Rahul and Heera Lal Ex. PW-3/E State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 7/23 and F and they both disclosed that they can get recovered the gold chain and gold ring which was robbed by them from a old man, from one Ravi to whom they have sold it. He further deposed that both the accused led them to the place of incident and that he prepared pointing out memo Ex. PW-3/G. He further deposed that after medical examination both the accused persons sent to J/C. He deposed that he moved an application for TIP of both the accused persons but the complainant J.L. Thukral could not reach in the TIP proceedings due to illness and old age. He proved photocopy of his TIP application as mark A-1 and A2.
He deposed that on 14/09/10 SI Umesh Rana took police custody for one day of both the accused and that during P.C. on 15/09/10 complainant J.L. Thukral came to PS to know the progress of the investigation of the case and he identified both the accused Rahul @ Hukka and Raju @ Heera Lal at PS and that he recorded his statement. He further deposed that he tried to search the co-accused Pawan and Kunal and that the accused Kunal was arrested in case FIR No.273/10 PS Rani Bagh and on P/W accused Kunal was formally arrested by him and that he was declared as Juvenile by the Court. He further deposed that proceedings against Kunal was initiated by SI Sandeep and accused Kunal was produced before JJ Board. Further he deposed that accused Pawan could not be found and that he initiated proceedings against the accused Ravi and proceedings of 82,83 Cr.P.C was initiated against him. He further deposed that challan was prepared against accused Rahul @ Hukka and accused Heera Lal @ Raju and filed in the court and later on he was transferred and further investigation was handed over to SI Surender.
This witness was cross examined by Sh. B.P. Singh Ld. LAC for both the accused wherein he deposed that on 29/08/10 he received information from SI Ranvir Singh at about 9:00pm that accused Rahul @ Hukka and Raju @ Heera were arrested in case FIR No.322/10. He further deposed that he started his State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 8/23 investigation with the accused on 30/08/10 at that time accused was in PS Saraswati Vihar. He further deposed that he recorded the confessional statement of both the accused persons in the noon and that he do not remember the exact time. He admitted that no recovery was effected in front of him from the accused. He denied the suggestion that he was deposing falsely.
PW-9 Retd. SI Ranbir Singh deposed that on 29/08/10 he was posted at PS Saraswati Vihar as SI and on that day when he was investigating the case FIR No.322/10 PS Saraswati Vihar along with Ct. Narender the accused Rahul @ Hukka and accused Heera Lal @ Raju disclosed their involvement in case FIR No.318/10 U/s 379/34 IPC PS Saraswati Vihar. He further deposed that he recorded their disclosure statement Ex. PW-9/A and B. He deposed that he informed to the IO of case FIR No.318/10 U/s 379/34 IPC PS Saraswati Vihar SI Manmeet Singh regarding the disclosure statement of accused Rahul @ Hukka and Heera Lal. He correctly identified the accused Rahul @ Hukka and Heera Lal in the court. He further deposed that SI Manmeet Singh met him to whom he handed over copy of disclosure statement of both the accused persons. He deposed that SI Manmeet Singh recorded his statement as well as the statement of Ct. Narender.
PW-10 Ct. Narender deposed that on 29/08/10 he was posted at PS Saraswati Vihar as Constable and on that day when he along with SI Ranbir Singh was in the investigation of the case FIR No.322/10 PS Saraswati Vihar and during the investigation of the said case the accused Rahul @ Hukka and accused Heera Lal @ Raju disclosed their involvement in case FIR No.318/10 U/s 379/34 IPC PS Saraswati Vihar. He further deposed that IO SI Ranbir Singh recorded their disclosure statement Ex. PW-9/A and B. He deposed that SI Ranbir Singh informed to the IO of case FIR No.318/10 U/s 379/34 IPC PS State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 9/23 Saraswati Vihar SI Manmeet Singh regarding the disclosure statement of accused Rahul @ Hukka and Heera Lal. He correctly identified the accused Rahul @ Hukka and Heera Lal in the court. He further deposed that SI Manmeet Singh met SI Ranbir Singh to whom he handed over copy of disclosure statement of both the accused persons. He deposed that SI Manmeet Singh recorded his statement as well as the statement of SI Ranbir Singh.
PW-11 SI Surender Kumar deposed that on 20/08/10 he was posted at PS Saraswati Vihar as SI and on that day on receipt of DD No.19A he along with Ct. Ashwini Kr reached at the spot i.e. AB Block Park, Lok Vihar where complainant J.L. Thukral met them. He further deposed that he recorded the statement of complainant J.L. Tukhral and prepared rukka Ex. PW-11/A and sent the same through Ct. Ashwini to PS for getting the case registered. He further deposed that he prepared site plan Ex. PW-11/B at the instance of complainant. He deposed that after getting the case registered Ct. Ashwini came back to spot and handed over him copy of FIR and Tehrir. He deposed that he along with Ct. Ashwini tried to search the accused as well as case property but could not find on that day. He further deposed that on 27/08/10 he deposited the case file to MHC(R) as he left the PS on that day for duty in common wealth game and that further investigation was handed over to SI Manmeet Singh. He deposed that charge sheet against accused Rahul @ Hukka and Raju @ Heera Lal was already filed. He further deposed that on 02/11/10 further investigation of the case was handed over to him as proceedings U/s 82,83 was initiated against the accused Ravi. On 11/01/11 the accused Ravi who was the receiver of the case property was got declared as PO. He deposed that on 16/01/11 HC Sushil arrested the accused Ravi U/s 41.1 (C) Cr.P.C and informed him regarding the arrest of accused Ravi. He further deposed that on 17/01/11 after interrogating the accused Ravi he arrested the accused Ravi whom he correctly identified in State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 10/23 the court vide arrest memo Ex. PW-11/C. He deposed that accused Ravi disclosed that he can get recovered gold chain from accused Yamin and the ring which was robbed from the complainant. He deposed that he recorded his disclosure statement as Ex. PW-11/D. Accused Ravi was taken in police custody. On 18/01/12 during police custody accused Ravi disclosed that he had sold the chain to a moving gold smith (Chalte Sunar) and he did not know the name of the said gold smith. He further deposed that he again recorded his disclosure statement Ex. PW-11/E. He can only get recovered the gold ring which he had kept in his house. He deposed that accused Ravi lead them to his house and took out a gold ring from his almirah. He deposed that he prepared a sealed pulinda of the recovered ring and sealed it with the seal of SK. He deposed that he took in possession the ring vide seizure memo Ex. PW-11/F. He deposed that he moved an application in the court for TIP of the recovered ring and that on 24/01/11 TIP of the recovered ring was conducted before Sh. V.K. Jha Ld. MM and the complainant identified the said ring. After completing the investigation supplementary charge sheet was prepared against accused Ravi.
6. Vide order dated 11.10.2012 P.E. was closed and Statement of the accused persons U/s. 313 Cr.P.C was recorded on 08.11.2012 in which the accused persons pleaded innocence. Accused Rahul @ Hukka and Heera Lal preferred not to lead D.E. whereas accused Ravi @ Ravinder lead D.E. Thereafter the matter was fixed for D.E. In Defence Evidence, accused Ravi @ Ravinder examined Sh. Rattan Singh as DW-1. He deposed that accused Ravi @ Ravinder is his real younger brother and that on most of the occasions he remains with their father Sh. Nirmal Singh who is suffering from multiple disease and is on dialysis. He deposed that State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 11/23 the accused Ravi was taken by the police officials, date he do not remember, from their home.
The said witness was cross examined by the Ld. APP wherein he deposed that he cannot say as to whether accused Ravi @ Ravinder was present with his father for dialysis on 18.01.2013. He deposed that he did not accompany the police officials who took the accused Ravi @ Ravinder to PS. He deposed that late in the night he sent fax to the police station after obtaining number from the PCR by dialing 100 and then went to PS. He further deposed that he do not know the other two accused persons. He denied the suggestion suggest that he was deposing falsely to save the skin of his brother.
7. D.E. was closed vide order dated 06.12.2012 and thereafter matter was fixed for final arguments.
8. It has been argued by Ld. LAC for accused Raju @ Hira Lal and Rahul @ Hukka that the complainant Sh. J.L. Thukral had no occasion to see the accused persons since as per his testimony he was caught by neck by one of the accused persons and was given fist blows on his mouth by others and he became unconscious thereafter. Further that no public persons have been made witness in the present case since the incident is stated to have occurred in broad day light in public park. He has further submitted that no MLC of the complainant has been prepared and whole case of the prosecution is false and concocted.
9. Further Ld. Counsel for accused Ravi @ Ravinder has argued that the accused Ravi @ Ravinder has been falsely implicated in the instant case just on State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 12/23 disclosure statement of the other accused persons. He has argued that the recovery of the gold ring has been planted on the accused. He has further argued that despite the area from which the gold ring is alleged to have been recovered being thickly populated, no public person was made a witness. It is further argued that no person who has the possession of stolen articles will keep it in open so as to be found out by anyone.
10. Per contra Ld. APP has contended that the testimony of all the PWs examined are coherent and trustworthy and that the prosecution has been able to prove their case beyond any doubt and that the arguments advanced by Ld. Defence Counsel pointing out minor discrepancies in the testimonies of PWs should not be given undue weightage.
11. I have heard the arguments advanced by Ld. APP for the State as well as Ld. Counsel for the accused persons and have gone through the evidence and the material available on record.
12. After going through the material on record and having heard the arguments advanced, I am of the opinion that prosecution has successfully brought home the guilt of the accused Raju @ Hira Lal and Rahul @ Hukka and has failed to prove its case against accused Ravi @ Ravinder.
State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 13/2313. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved;
and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Section 390 IPC provides as In all robbery there is either theft or extortion.
When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 14/23 instant wrongful restraint.
When extortion is robbery. - Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation. - The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Section 394 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."
14. In order to prove the culpability of the accused u/s 394 IPC, the prosecution is required to prove the following ingredients:-
(i) That the accused was one amongst others in committing or attempting to commit robbery;
(ii) That the accused caused hurt to any other person while doing so;
(iii) That the accused caused hurt voluntarily.State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 15/23
15. The ingredients of the offence alleged against the accused Raju @ Hira Lal and Rahul @ Hukka has been meted out. The accused Raju @ Hira Lal and Rahul @ Hukka are duly identified by the complainant in the court. Though no TIP of the accused persons was conducted in the instant case but it does not create any doubt in the story of the prosecution since reason for the same has been duly justified. An application to this effect was moved by the IO SI Manmeet Singh on 31.08.2010 but the same could not been got conducted that the complainant expressed his inability, being old age person suffering from various ailments, to participate in the TIP proceedings. Moreover, the TIP proceedings are only corroborative in nature and do not take place of the court proceedings. The accused persons were arrested in case FIR No. 322/10, PS Ashok Vihar wherein they disclosed about their involvement in the present case vide disclosure statement Ex. PW-3/E and Ex. PW-3/F. The contentions of the Ld. LAC that the complainant did not have any opportunity to see the accused persons is without any basis. As per the complaint Ex. PW-1/A it has been stated that the complainant saw four boys sitting on the bench when he was coming in the park. Further in his chief examination he has deposed about seeing the places of all the robbers and that they were aged about 20/22 years. As per the arrest memo the age of the accused persons is stated to be the same as deposed by the complainant which corroborates his version. The testimony of the complainant was recorded within one year of the incident and therefore the possibility of his being forgetting about the identity of the accused persons is also ruled out. The testimony of the complainant, in the opinion of this court is sufficient enough to prove the identity of the accused persons as the one who had robbed him of his articles on 20.08.2010, in particular there being no previous animosity between them and the complainant.
State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 16/2316. The evidence of the complainant appears to be natural and trustworthy and the chain of events is consistent and complete. Though no MLC of the complainant was prepared but preparing of MLC is not a conditional precedent to hold that if hurt was caused to the complainant by the fist blows or catching hold of his neck by the accused persons. In the scheme of Indian Penal code 'eight' kinds of hurt have been designated as grievous and (simple) hurt has been defined as bodily pain, disease or infirmity. As per section 319 IPC from the friendly pat on the back causing actual or potential tissue damage with unpleasant sensory experience to anything which is not covered under section 320 IPC would be simply 'hurt'. Though section 95 IPC provides that act causing slight harm is no offence, and in our day to day inter-actions we do not mind or take account of simple hurt as such most of the times, but this court is of the opinion that that the accused persons are not entitled to the benefit of section 95 IPC in the instant case and this act of their's have caused hurt to the victims within the purview of 319 I.P.C. As a matter of fact, the beating was such that the complainant was unconscious.
17. It has been held by the Hon'ble Supreme Court in Jamal Mirza v. State reported in 2012 II AD (Delhi) 366.
"While appreciating the testimonies of witnesses, it was necessary that the Courts be realistic in their expectations from witnesses and go by what would be reasonable based on ordinary human conduct with ordinary human frailties of memory, the power to register events and recall the details. It was to be the totality of evidence on record and its credibility that should eventually State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 17/23 determine whether the prosecution was able to prove the charge against the Appellants or not and slight discrepancies which did not shake the basic version of the witnesses should not be given undue weightage or importance to dislodge the prosecution's case.
Since the testimonies of all the witnesses established, beyond doubt, the presence and specific role of each of the accused at the time and place of occurrence and their participation in the commission of the offence and since no ill-will or ulterior motive could be imputed to the witnesses in their cross- examination or anything material be elicited to disbelieve the facts deposed by them, it was held that there was no illegality or irregularity in the findings recorded by the Trial Court basing conviction of the Appellants on the evidence as provided by the prosecution witnesses as minor contradictions or discrepancies in the statements of prosecution witnesses were bound to occur since they were recorded after lapse of a long time."
18. In the instant case there is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by each other and the witness of the prosecution have been able to built up a continuous link. Further the complainant testified in detail as to what role was played by which accused and robbed article has been recovered. In their statement U/s. 313 Cr.P.C the accused persons gave evasive answers and did not clarify as to why the accused persons have been involved in the instant case has been argued by Ld. LAC. There being no history of any previous animosity between the accused State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 18/23 persons and the victim, there is no reason for the victim to have falsely implicated the accused.
19. From the above discussions, it has been proved that the accused Raju @ Hira Lal and Rahul @ Hukka along with other accused persons voluntarily caused hurt to complainant Sh. J.K. Thakral and robbed him of his belongings. This act of the accused Raju @ Hira Lal and Rahul @ Hukka is squarely covered within the ambit of the offence of robbery as defined in section 390 IPC, punishable under Section 394 IPC.
20. Now adjudicating upon whether all the accused persons had common intention to rob the complainant and that if Sec34I.P.C can be attracted to fix their liability.
In Virender Pal @ Neelu v. State (Delhi)(D.B.) 2011 CriLJ 3082Hon'ble High Court of Delhi has observed :
" Section 34 IPC does not create a substantive offence. It simply states that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it intentionally. The constructive liability under this Section would arise if following two conditions are fulfilled :- (i) there must be a common intention to commit a criminal act and (ii) there must be participation of all the persons in doing of such act in furtherance of that intention . Common intention requires a prior concert or pre-planning. Common intention to commit a crime should be anterior in point of time to the commission of the crime, but may also develop at the instant when State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 19/23 such crime is committed.
48. It is difficult, if not impossible, to procure direct evidence of common intention . In most cases it has to be inferred from the act and conduct of the accused persons and other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination with which the injury was inflicted, the concerted conduct of the accused persons during the commission of the offence and subsequent to the commission of the offence. In other words, intention has to be gathered from the acts of the accused persons and the attendant relevant circumstances enwombing the act. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which he could be convicted."
Since both the accused Raju @ Hira Lal and Rahul @ Hukka had participated in the commission of the offence it can be safely concluded that they had common intention to rob the complainant.
21. The accused Ravi @ Ravinder in the present case has been charged with offence under Section 411 IPC. In Trimbak Vs. The State of Madhya Pardesh, AIR 1980 SC 39, the Hon'ble Supreme Court held that in order to bring home the guilt of a person under section 411 IPC the prosecution was required to prove, (1) That the stolen property was in the possession of the accused, State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 20/23 (2) That some person other than the accused had possession of the stolen property before accused possession of the property before accused got possession of it, and (3) That the accused had knowledge that the property was stolen property.
22. The term Stolen Property has been defined U/s 410 of IPC.
Section 411 IPC reads as under:
Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", whether the transfer has made, or the misappropriation or breach of trust has been committed, within or without India. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
23. Now the question which arises for the consideration is that whether the prosecution has been able to produce such evidence on the record which would warrant the conviction of the accused on the touch stone of golden principal of criminal jurisprudence that the guilt of the accused has been proved beyond the reasonable doubt. After perusal of the material on record this court is of the opinion that the prosecution case with regard to recovery of gold ring from the accused Ravi @ Ravinder remains under shadow of doubt because of reasons discussed hereinafter.
State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 21/2324. As per the story of the prosecution the said gold ring was recovered from the house of the accused Ravi @ Ravinder, but it has not placed any evidence whether documentary or oral to show that the said house belonged to the accused. This court concurs with the arguments of Ld. Defence counsel that if the accused was the receiver of stolen property i.e. the said gold ring he would not have kept the same with him and would have disposed it of. As per Sec.100 of Cr.P.C before doing any search of a closed place it shall be mandatory for the officer concerned to call upon two or more independent and respectable inhabitants of the locality to be witness of the search and if no one is willing, to issue an order in writing to them. But it has not been done in this case for the reasons best known to the prosecution. Hence, in my considered opinion, the prosecution has not been able to travel the distance from "may" to "must" and the case against the accused has fallen short in terms of the golden principle of the criminal jurisprudence that the prosecution must prove the case against the accused beyond reasonable doubt.
25. The seizure memo Ex. PW-11/F does not mention the time at which the accused Ravi @ Ravinder was taken there. Further it has not been mentioned as to whether any of his family member was present at that time or not. Whether it was locked or was opened by someone or lock was broken open etc. This fact coupled with non placing on record the proof of his residence raises serious doubts on the story of the prosecution which remains unexplained.
26. Aforesaid discussion thus clearly shows that the prosecution has not been State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 22/23 connect the accused Ravi @ Ravinder with the offence in question. Only disclosure statement is on record which in the absence of other corroborative evidence in itself is not sufficient enough to prove the guilt of the accused Ravi @ Ravinder. Accordingly the accused Ravi @ Ravinder deserves acquittal.
27. Therefore I hold accused Raju @ Hira Lal and Rahul @ Hukka guilty of offence under Section 394/34 IPC and acquit the accused Ravi @ Ravinder.
28. Now let the matter be listed for arguments on sentence.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Announced in the open court on January 31st, 2013.
It is certified that this judgment contains 23 pages and each page is signed by me.
(Bhupinder Singh) Metropolitan Magistrate Rohini Courts : Delhi Date: 31/01/2013 State V/s Rahul @ Hukka & Ors. FIR No. 318/10 PS: Saraswati Vihar Page No. 23/23