Delhi District Court
State vs Arjun @ Haka on 21 December, 2023
:1:
THE COURT OF MS. NEHA PALIWAL SHARMA,
ADDITIONAL DISTRICT JUDGE -03, CENTRAL DISTRICT, TIS
HAZARI COURTS: DELHI
EARLIER POSTED AS ADDITIONAL SESSIONS JUDGE-05,
WEST DISTRICT: TIS HAZARI COURTS: DELHI
CNR No. DLWT01- 005866-2018
Sessions Case No. 415/2018
FIR No. 99/18
PS Ranjit Nagar
State
v.
1) Arjun @ Hakla
S/o Sh.Prem
R/o B-281, Kathputli Colony,
Shadipur Depot,
New Delhi.
2) Afroj @ Bihari
S/o Mr. Noor Salam,
R/o Jhuggi no. 105, Shiv Basti,
Rama Road, Moti Nagar,
Delhi. (since deceased. Matter stood abated vis-a-vis him
vide order dated 26.08.2023).
Date of Institution : 30.05.2018
Date of committal : 03.07.2018
Date of reserving Judgment : 08.12.2023
Date of Decision : 21.12.2023
Final Judgment : Accused Arjun @ Hakla
is convicted for the
offences punishable under
FIR No: 99/2018
State v. Arjun @ Hakla & Anr.
:2:
section 392 IPC read with
section 34 IPC, section 394
IPC read with section 34 IPC
and section 397 IPC.
JUDGMENT
Case of the Prosecution in brief :
1. Accused persons namely Arjun @ Hakla and Afroj @ Bihari (since deceased) were arraigned for trial by the prosecution on the ground that on 30.03.2018 at about 01:15 am at Shadi Pur flyover, in front of DMS Shadipur within the jurisdiction of PS Ranjit Nagar, they both alongwith their associate 'GM' (CCL) in furtherance of their common intention robbed one mobile phone make Intex and purse containing cash of Rs.300/- and Aadhar Card, from the person of complainant/injured Prashant Sagar and also caused injury to the injured with the aid of knife while committing robbery. Knife was recovered from accused Arjun @ Hakla and robbed purse was recovered from 'GM' CCL.
Initial receipt of information of offence, registration of FIR and investigation conducted :
2. On 30.03.2018, on receipt of information vide DD no. 5A of the same date that caller was stabbed, IO/ASI Satpal Singh alongwith constable Parveen reached at the spot of occurrence, where head constable Ram Kishore no. 1511/C and witness Sankit met them. They had apprehended two persons namely Arjun @ Hakla and CCL 'GM' FIR No: 99/2018 State v. Arjun @ Hakla & Anr.:3:
(identity withheld in order to protect the identity of CCL). It was informed that victim Prashant Sagar was taken by the PCR van to Acharya Shree Bhikshu hospital and out of the two apprehended persons, one person had inflicted stab injury on the neck of the victim and they had robbed his mobile phone and money.
3. Thereafter, IO after leaving constable Parveen at the spot, went to the hospital and procured MLC no. 23192 of injured Prashant. The injured was found under treatment and the examining doctor observed the nature of injury 'under observation' and kind of weapon used as 'sharp'. There was oblique cut mark on the neck just below the jaw of the injured. The injured was discharged and thereafter, IO alongwith injured came to the spot where injured identified the two apprehended persons and stated that the person by the name of Arjun had held his neck from behind and had inflicted stab injury on him and CCL 'GM' had taken out purse forcibly from the back pocket of his worn pant.
Statement of victim/injured :
4. It was stated by victim Prashant Sagar that on 30.03.2018 at about 01:15 am, when he alongwith his associate Sankit, was coming back on foot from their work place, that is, Banquet hall towards their room at Baljit Nagar and had reached in front of DMS Milk booth after crossing Shadipur flyover, three persons came from the front and they after crossing them, held him from behind. One person took knife in his hand and held his neck, the other person forcibly took mobile phone from his hand and the third person forcibly took out purse from his FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
:4:pocket. When he resisted, the person who was having knife in his hand inflicted injury on the left side of his neck with knife as a result of which, he started bleeding. He alongwith his associate raised alarm. On hearing the alarm one police personnel, who was on motorcycle, came at the spot. All three of them together apprehended two persons, out of which one was the person who had inflicted stab injury to him and another person had taken out purse from the pocket of his worn pant. The third person managed to escape. His purse contained cash to the tune of Rs.300/- and his Aadhar Card and his mobile phone was make 'Intex' black colour.
5. On the basis of the statement of the complainant, his MLC and the circumstances of the spot, rukka was prepared by the IO for the offences under sections 392/394/34 IPC and FIR was got registered for the offences under sections 392/394/34 IPC.
6. Efforts were made to trace the third assailant however, he could not be traced. Thereafter, accused Arjun @ Hakla and CCL were brought to the spot of occurrence alongwith complainant/injured Prashant Sagar and at the instance of injured Prashant Sagar, site plan was prepared.
7. From the cursory search of accused Arjun @ Hakla, one vegetable cutting knife was recovered. The knife was seized and sealed. Pursuant to interrogation, accused Arjun @ Hakla was arrested. From the possession of CCL, black colour purse containing Rs.300/- and Aadhar Card of the complainant were recovered. The same were also seized and sealed. CCL was also apprehended. The blood stained shirt of the complainant was seized and sealed. Statement of witness Sankit Tiwari FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
:5:was also recorded. Case property was deposited in malkhana. Accused persons were medically examined. Age of CCL was got verified through ossification test pursuant to the orders of ld. MM and his age came between 17-18 years. Therefore, the CCL was produced before the ld. JJB.
8. On 29.04.2018, on the information of secret informer, accused Afroj @ Bihari was arrested. His TIP was got conducted on 05.05.2018 and during TIP proceedings, complainant identified the accused. The seized case properties were sent to FSL. Charge-sheet was filed before the Court pending FSL result.
9. Supplementary final report was filed before the Court on 31.07.2018 containing FSL result. As per FSL result dated 09.07.2018, blood was found detected on the seized shirt of the complainant/injured as well as on the knife. Though DNA profile was generated from the shirt however, DNA profile could not be generated from the knife and therefore, comparison with DNA profile could not be conducted.
Trial Proceedings :
Charge :
10.Vide order dated 31.07.2018, accused persons namely Arjun @ Hakla and Afroj @ Bihari (since deceased) were charged for the offences punishable under sections 392 IPC and 394 IPC, both read with section 34 IPC and accused Arjun @ Hakla was also charged for the offence punishable under section 397 IPC. Both the accused persons pleaded not guilty to the said charges and claimed trial.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
:6:Admission-denial of documents under section 294 Cr.P.C:
11.Both the accused persons namely Arjun @ Hakla and Afroj @ Bihari on 09.09.2019, admitted the Test Identification Parade proceedings conducted qua accused Afroj @ Bihari, Ex.C.1 by Ld. MM Sh.Manoj Kumar. They also admitted on 20.02.2020, the FSL report Ex.C.1 prepared by FSL expert Ms.Seema Nain. As accused persons admitted the conduction of TIP proceedings qua accused Afroj @ Bihari and the FSL report, therefore, Ld. MM and FSL expert were dropped from the list of prosecution witnesses by the prosecution.
Prosecution evidence :
12.Twelve witnesses were examined by the prosecution in order to prove its case against the accused persons. Witnesses namely SI Gajender Singh, constable Anil and ASI Rajender were dropped by the prosecution on the ground that their testimonies were formal or repetitive in nature.
13.PW-1 Sh.Prashant Sagar is the complainant/victim. He had deposed qua the time and place of incident and the incident in terms of final report. He had identified his signatures on his complaint/statement Ex.PW-1/B, on the seizure memo of knife Ex.PW-1/A, on the seizure memo of his blood stained shirt Ex.PW-1/C, on the seizure memo of purse Ex.PW-1/D and on the arrest memo of accused Arjun @ Hakla Ex.PW-1/E. He also correctly identified his shirt Ex.P.1, knife Ex.P.2, purse Ex.P.3, three currency notes in the denomination of Rs.100/- each FIR No: 99/2018 State v. Arjun @ Hakla & Anr.:7:
Ex.P.4 and Aadhar Card Ex. P.5.
14.He deposed that accused Arjun was carrying knife at the time of incident and caused injury to him with knife and the said knife was later on recovered from accused Arjun @ Hakla. He however, deposed that accused Afroj @ Bihari apprehended him from the back and he was the person who was apprehended alongwith accused Arjun at the spot and the other associate ran away with the robbed purse. He further deposed that third accused, that is, CCL was identified by him in Mandoli jail and his purse was seized from him by the police.
15.PW-1 was cross-examined by the ld. Addl. P.P. for the State wherein he admitted that his purse was recovered from the person who was smaller in height and apprehended at the spot and was not recovered from the possession of accused Afroj. He however denied that he had identified accused Afroj in Mandoli jail during TIP proceedings and stated that he had identified some other person in TIP proceedings. He admitted that accused Afroj was the person who had held him from behind at the time of incident however denied that he was under confusion that he had identified accused Afroj in the jail during TIP proceedings.
16.PW-1 in his cross-examination by ld. Defence counsels deposed that two accused persons were apprehended by the police official with the help of his friend Sankit from under the flyover and he at that time was standing near DMS booth. He was bleeding from his injury. He admitted that when he came to the Police station from the hospital, both the accused persons alongwith the police official who had apprehended them and his friend Sankit were already present in the police station. He FIR No: 99/2018 State v. Arjun @ Hakla & Anr.:8:
admitted that he had not gone to the spot again with the police officials after his arrival from the hospital. He deposed that he was not shown photograph of the accused or the person who he identified in TIP proceedings in Mandoli jail. He admitted that the person he identified in the TIP was not the accused person before the Court.
17.PW-2 Sankit is the eye witness/witness of the spot. He had deposed that on 30.03.2018, at about 01:15 pm, when he alongwith his friend Prashant Sagar were crossing Shadipur flyover and had reached near DMS Booth on foot, three boys came from the opposite direction and one of them caught hold of Prashant Sagar, another took out knife and the third person removed purse from the back side pocket of the pant of Prashant Sagar. When they raised objection and resisted, the person who was carrying knife caused injury with knife to Prashant Sagar at the side of his cheek below the ear. The person who had robbed the purse and mobile phone fled alongwith other two assailants and in the meanwhile, one police official came on motorcycle and they informed him about the incident. He alongwith that police official chased those persons and apprehended two of them.
18.PW-2 identified accused Arjun @ Hakla as the person who was carrying knife and caused injury to Prashant Sagar. He deposed that he came to know about the name of accused when he was interrogated by the police official after being caught by him and the police official. The other assailant who was also apprehended at the spot, was not present in the Court. He deposed that he could not identify accused Afroj @ Bihari (since deceased) before the Court.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
:9:19.PW-2 further deposed that injured Prashant Sagar was taken to hospital by other police officials and he alongwith police official, accused Arjun @ Hakla and other assailant who was apprehended at the spot came to the police station and after some time, injured Prashant Sagar also came to the PS after getting treatment. Knife was recovered from accused Arjun @ Hakla and was seized vide seizure memo Ex. PW-1/A.
20.The witness/PW-2 also identified his signatures on the arrest memo of accused Arjun @ Hakla Ex.PW-1/E, seizure memo of the shirt of the complainant Ex.PW-1/C and also identified case properties, that is, shirt Ex.P.1 and knife Ex.P.2 before the Court.
21.PW-2 was cross-examined by the ld. Addl. P.P. for the State with the permission of the Court and he admitted that sketch of knife Ex.PW-2/A was prepared in his presence however deposed that he does not remember whether purse was recovered from other assailant who was apprehended at the spot or the name of the said assailant. He also correctly identified the purse, currency notes and Aadhar Card Ex.P.3 to Ex.P.5 and his signatures on the seizure memo of purse Ex.PW-1/D. He deposed that he now recollect that purse containing cash and Aadhar card of complainant/injured were recovered from other assailant who was apprehended at the spot with accused Arjun @ Hakla. He deposed that he had seen the face of the person who had caught hold of injured Prashant Sagar from his back at the time of incident but he is not able to recollect his face and therefore, cannot admit or deny whether accused Afroj was the person who had caught hold of injured Prashant Sagar at the time of incident.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 10 :22.PW-2 in his cross-examination by the ld. Defence counsels deposed that police official reached at the spot after about five minutes of the incident. He remained at the spot for about 10 minutes, inquired about the incident and thereafter he and that police official left the spot in order to search for the offender. Complainant Prashant Sagar also accompanied them and they all were on the same motorcycle and apprehended accused Arjun @ Hakla and other assailant in the middle of the flyover.
23.PW-3 Dr.Sajid Hasan had deposed that he had prepared MLC Ex.PW- 3/A of injured Prashant. He deposed that he had examined injured Prashant on 30.03.2018 at 02:10 am, when the injured was brought to the hospital by the police with alleged history of assault. There were two incised wounds on the left line of jaw of injured. He referred the patient to SR, surgery for further management. He deposed in his cross-examination that both injuries were caused by sharp weapon and may or may not be possible due to fall.
24.PW-4 Dr.Ritesh Ranjan had deposed that on 30.03.2018, he had examined patient Prashant in surgery department and had observed clean cut wound with sharp margins over left line of jaw tailing upward and other clean cut wound with sharp margins below the first wound tailing upward. The wounds were stitched and dressed. He made detailed notings on the MLC in portion 'X' to 'X1' and also opined on 26.04.2018 that the nature of injuries was 'simple' in nature. He deposed that the said two incised wounds referred by him in noting are not possible due to fall as the same were tailing upward and sharp.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 11 :25.PW-5 SI Kuldeep Singh is the duty officer. He had deposed regarding registration of FIR no. 99/2018, u/s 392/394/34 IPC, Ex.PW-5/A on the basis of rukka sent by ASI Satpal through constable Parveen at 04:45 am. He had further deposed qua certificate u/s 65B of the Indian Evidence Act with respect to the registration of FIR Ex.PW-5/B and endorsement on rukka Ex.PW-5/C. He had further deposed regarding recording of DD no. 5A Ex.PW-5/D.
26. PW-6 Constable Parveen Kumar is the witness of investigation and had deposed before the Court on the same lines as that of final report. He had correctly identified accused Arjun @ Hakla and case properties, that is, knife, purse, three currency notes and Aadhar card, Ex.P.2 to Ex.P.5 before the Court. He also identified his signatures on the seizure memo of knife Ex.PW-1/A, the seizure memo of purse Ex.PW-1/B, the arrest memo of accused Arjun Ex.PW-1/E, the arrest memo of CCL Ex.PW-6/C, the personal search of accused Arjun Ex.PW-6/E and the personal search of CCL Ex.PW-6/D. He deposed in his cross- examination that the distance between the spot and the place where they received DD no.5A was about 01 km.
27.PW-7 Constable Mukesh had deposed that on 09.05.2018, he had deposited the sealed exhibits in FSL after taking the same from MHC(M) vide RC no. 33/21/18.
28.PW-8 Head Constable Ram Kishore is the witness of the spot. He had deposed to the effect that he was on patrolling duty in the area near Shadipur Flyover on motorcycle in the intervening night of 29.03.2018 FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 12 :and 30.03.2018 from 08:00 pm to 08:00 am. At around 01:30 am when he was patrolling near Shadipur Flyover on his motorcycle bearing registration number DL-1SS 0496 and had taken U-turn from under Shadipur Flyover and was moving towards Patel Nagar, he saw 4-5 persons present near DMS Booth and on seeing him three persons started running and two persons raised alarm. He further deposed that one person out of those two persons who had raised alarm had sustained injuries. The three persons ran towards Moti Nagar on the flyover and thereafter, he placed his motorcycle ahead of those three persons. In the meantime, the injured and his associate came near him and they all apprehended two assailants out of three.
29.PW-8 had further deposed with respect to taking the injured to the hospital by PCR van, arrival of IO alongwith constable Praveen at the spot, interrogation of accused Arjun @ Hakla and CCL, identification of accused Arjun @ Hakla and CCL by the complainant at the spot, cursory search of accused Arjun @ Hakla and CCL. He had deposed that one knife with black colour handle was recovered from the possession of accused Arjun @ Hakla and one purse of black colour was recovered from the possession of CCL. The purse was identified by the complainant. He further deposed with respect to preparation of rukka, sketch of knife Ex. PW2/A, preparation of pullanda and seizure of knife and purse vide memos Ex. PW1/A and Ex. PW1/B. He identified his signatures on the arrest memos and personal search memos of accused Arjun @ Hakla and CCL. He further deposed that search was made for the third associate of the assailants but he could FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 13 :not be traced. He further correctly identified knife Ex. P-2, purse Ex. P- 3, three currency notes in the denomination of Rs. 100/- Ex. P-4 and Aadhar card Ex. P-5 respectively.
30.PW-8 in his cross-examination deposed that he had placed his motorcycle ahead of the offenders when they had run for about 15-20 steps. The victim and his friend immediately reached there when he placed his motorcycle ahead of the offenders and could stop two offenders out of three. The PCR officials reached at the spot after 2-3 minutes of apprehension of accused Arjun @ Hakla and CCL. Knife and purse were already recovered by him from accused Arjun @ Hakla and CCL prior to the reaching of IO at the spot. He admitted that he had not witnessed the commission of robbery with the victim.
31.PW-9 WSI Pooja had deposed that on 09.05.2018, she had taken police custody remand of accused Afroj @ Bihari from the Court and thereafter accused was taken to Lady Hardinge Hospital for his medical examination and then he was handed over to the IO.
32.PW-10 HC Prem Pal Singh had deposed to the effect that he had recorded DD no. 43 B Ex. PW10/A qua departure of HC Ram Kishore alongwith government motorcycle bearing no. DL-1SS-0496 for PCR duty on 29.03.2018 at 08:40 pm.
33.PW-11 ASI Mahesh Chander is MHC(M) and had deposed that case property was deposited by IO on 30.03.2018 in malkhana and entry to that effect was made at serial no. 1270 and 1271 Ex. PW11/A and Ex. PW11/B respectively and on 09.05.2018 the said parcels were deposited in FSL by constable Mukesh vide RC number 33/21/18.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 14 :34.PW-12 SI Satpal Singh is the investigating officer and had deposed in consonance with the final report and qua various aspects of investigation conducted by him. He had correctly identified accused persons Arjun @ Hakla and Afroj @ Bihari (since deceased) and the case properties, that is, shirt (Ex.P-1), knife (Ex.P-2), purse (Ex. P-3), currency notes (Ex. P-4) and Aadhar Card (Ex. P-5) before the Court. He had deposed with respect to visiting of spot alongwith constable Praveen in pursuance to DD no. 5 A, meeting HC Ram Kishore alongwith witness Sankit and two apprehended persons namely accused Arjun and CCL, going to Acharya Bhikshu hospital, procuring MLC of injured, meeting injured, coming back with the injured to the spot, recording statement of injured Ex. PW1/B, preparing rukka Ex. PW12/A, conducting search of accused Arjun @ Hakla and CCL prior to preparation of rukka, preparing sketch of knife Ex. PW2/A, seizing purse and knife prior to preparation of rukka, search of the third associate, arrest and interrogation of accused Arjun @ Hakla and CCL, preparation of site plan Ex. PW12/D at the instance of complainant, recording of statement of eye witness Sankit, seizure of blood stained clothes of the complainant, medical examination of the offenders, apprehension of third associate Afroj @ Bihari on 29.04.2018 at the instance of secret informer and his arrest vide arrest memo Ex. PW12/C, getting the TIP conducted of accused Afroj @ Bihari on 05.05.2018 and after completion of investigation filing charge sheet before the Court. PW-12 in his cross-examination deposed that the knife seized from accused Arjun @ Hakla was blood stained.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 15 :35.Prosecution evidence was closed vide order dated 20.02.2020.
Statement of accused persons :
36.Statement of accused Arjun @ Hakla under section 313 Cr.P.C was recorded on 08.02.2021, wherein all the incriminating material on record was put to the accused. It was stated by him that he was wrongly identified by PW-1 and was shown to PW-1 in the police station. Nothing was recovered from him and the witness had wrongly identified him. His signatures were taken on blank papers. He was falsely implicated in the present matter by the police since he was declared BC of the area. Police had picked him from near his house. He preferred not to lead any evidence in his defence.
37.Statement of accused Afroj @ Bihari (since deceased) under section 313 Cr.P.C was recorded on 25.02.2021, wherein all the incriminating material on record was put to him and he also stated that since he was BC of the area of PS Ranjit Nagar he was falsely implicated in this case. Police had shown him to the complainant in the police station and had asked him to identify him in the Court as well as in the TIP proceedings. Police had picked him from the gate of Masjid situated near his house. He preferred to lead evidence in his defence. However when the matter was at the stage of defence evidence, he did not produce any witness and thereafter stated that he does not want to lead defence evidence. Therefore, defence evidence was closed and matter was fixed for final arguments.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 16 :Final Arguments:
38.I have heard the final arguments as advanced by ld. Addl. P.P. for the State and ld. Counsel for both the accused persons and have gone through the entire material available on record. When the matter was at the stage of final arguments, accused Afroj @ Bihari expired and proceedings abated qua him vide order dated 26.08.2023.
39.It is argued by Ld. Addl. PP for the State that the prosecution has proved its case beyond shadow of all reasonable doubts against the accused Arjun @ Hakla. The complainant/victim/PW-1 and PW-2 Sankit had correctly identified him before the Court as the person who was carrying knife at the time of incident and had caused injuries to PW-1 with knife in the commission of robbery and he alongwith his associates had robbed purse of PW-1 containing Rs. 300/- and Aadhar Card. It is argued that from the deposition of public witnesses, medical evidence and witnesses of investigation, the State is able to prove its case qua accused Arjun @ Hakla beyond shadow of all reasonable doubts and therefore he be convicted for all the offences for which he is charged.
40.Per contra, it is argued by Ld. Counsel for accused Arjun @ Hakla that he is innocent and had been falsely implicated in the present case. There are discrepancies in the testimonies of prosecution witnesses qua the arrest of accused persons from the spot, qua preparation of rukka, qua the visit of complainant at the spot for preparation of site plan. The complainant, PW2 and PW8 had further contradicted each other in FIR No: 99/2018 State v. Arjun @ Hakla & Anr.: 17 :
material particulars qua the manner in which the accused persons were apprehended. Thus, it is prayed that accused Arjun @ Hakla be acquitted from all the offences for which he has been charged.
Appreciation of law & evidence :
41.It is a fundamental doctrine of criminal law that the onus to prove its case lies on the prosecution. Thus, in a criminal trial, the onus to prove the commission of offence by the accused is always upon the prosecution and the same never shifts upon the accused. The prosecution has to establish before the Court that the accused had committed the offence beyond shadow of all reasonable doubts.
42.The Hon'ble Supreme Court of India in the case of Nanjundappa and Anr. V. State of Karnataka, decided on 17th May, 2022 has reiterated its view taken in the judgment titled as S.L.Goswami V. State of Madhya Pradesh, 1972 Crl.L.J.511 SC that :
'....the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage, does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases, where defence of the accused does not appear to be credible or is palpably false, that burden upon the prosecution does not become any less. It is only when this burden is discharged that it will be for the accused to explain or controvert the essential elements in the prosecution case, which would negative it. It is not however for the accused even at the initial stage to prove something which has to be eliminated by the prosecution to establish the ingredients of the offence with which he is charged, and even if, the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not the same as that which rests upon the prosecution'.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.: 18 :
Legal Provisions :
43.Accused Arjun @ Hakla was charged for the offences punishable under section 392 IPC read with section 34 IPC, section 394 IPC read with section 34 IPC and section 397 IPC.
44.Section 392 IPC provides punishment for commission of robbery.
45.Section 390 IPC defines robbery. It states that in all robbery there is either theft or extortion. 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.
46.Robbery is a special and aggravated form of theft and the chief distinguishing element in robbery is the presence of imminent fear of violence. When robbery is sought to be established through theft, then before one may be convicted of robbery theft by him must be proved and established.
47.Section 394 IPC states that if any person, in committing robbery voluntarily causes hurt than he shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to 10 years and shall also be liable to fine.
48.Section 397 IPC states that 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 FIR No: 99/2018 State v. Arjun @ Hakla & Anr.: 19 :
shall not be less than 07 years.
49.Section 397 IPC fix a minimum term of imprisonment when the commission of robbery has been attended with certain aggravated circumstances viz. (1) the use of a deadly weapon or (2) causing of grievous hurt or (3) attempting to cause death or grievous hurt to any person. It does not make any act an offence and only provides minimum punishment for some offences under certain circumstances and provides for enhancement of term of imprisonment in certain places. Section 34 IPC has no application in the construction of section and section 397 IPC cannot be applied constructively and relates only to the offender who actually uses the weapon himself.
Receipt of information of offence and registration of FIR :
50.DD No. 5 A Ex.PW5/D establishes that information regarding the offence was received in police control room at 01:55 a.m. on 30.03.2018. From the deposition of Duty Officer/ PW5, it is further established that FIR Ex.PW5/A was registered on 30.03.2018 at 04:45 a.m. on the basis of rukka sent by IO Ex.PW12/A and endorsement Ex.PW5/C was made on rukka regarding registration of FIR.
Medical Evidence :
51. From the depositions of PW3 Dr. Sajid Hasan and PW4 Dr. Ritesh Ranjan the MLC, Ex.PW3/A of injured / PW1 Prashant is proved.
Perusal of MLC, Ex.PW3/A reveals that injured Prashant was brought to Acharya Shree Bhikshu Goverment Hospital by ASI Sukhpal on FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 20 :30.03.2018 at 02:10 a.m. He had come to the hospital with alleged history of physical assault. On local examination he was found having a clean incised wound of approximately 3.5 x .5 x .5 cm on left line of jaw tailing upwards and a clean incised wound of approximately 2.5 x . 5 x .5 cm below that first incised wound tailing upwards. The nature of injury was given by the examining doctor as simple in nature.
52.Thus, from this medical evidence, it is established that PW1 Prashant was injured. He was brought to the hospital by ASI Sukhpal of PCR on 30.03.2018 at 02:10 AM. He had received injuries from sharp weapon which were in the nature of incised wound and were simple in nature.
Ocular evidence :
53.Ocular evidence is considered as the best form of evidence in a criminal trial, given that it is duly corroborated by other evidences and there is no reason to doubt it. It is settled law that testimony of an injured witness stands on a higher pedestal than any other witness, in as much as, he sustains injuries in the incident. As such, there is an inbuilt assurance regarding his presence at the scene of the crime and it is unlikely that he will allow the real culprit to go scot free and would falsely implicate any other person.
54.In the case of Abdul Sayeed v. State of Madhya Pradesh, [(2010) 10 SCC 259], it was held by the Hon'ble Supreme Court of India as under:
'Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes FIR No: 99/2018 State v. Arjun @ Hakla & Anr.: 21 :
with a built−in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. 'Convincing evidence is required to discredit an injured witness."
55. Further, in the case reported as Jarnail Singh & others v. State of Punjab, (2009) 9 SCC 719, also it was held by the Hon'ble Supreme Court of India that testimony of an injured witness will have a special evidentiary status. It was held as under :
'.....the testimony of the injured witness is accorded a special status in law. This is as a consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.'
56.PW-1 Prashant Sagar is the complainant/ victim. PW-2 Sankit is the eye witness / witness of the spot and PW-8 Head Constable Ram Kishore is also witness of the spot and witness of subsequent events which occurred post commission of offence.
57.PW1 Prashant Sagar had deposed regarding the incident. He had deposed that when he was going back to his house alongwith his friend /PW2 Sankit, three persons came from the front side and after crossing them apprehended him from the back. One of them took out a knife and another forcibly took out his purse from the backside pocket of his worn pant. He correctly identified accused Arjun as the person who took out the knife Ex.P2 and caused injuries to him on his cheek with FIR No: 99/2018 State v. Arjun @ Hakla & Anr.: 22 :
the knife when he resisted the said assailants from robbing his purse from him.
58.PW2 Sankit had also deposed regarding the incident and had stated that when they objected / resisted the persons from committing robbery of purse of PW1 Prashant from the back side pocket of his worn pant, the person who was carrying knife caused injuries with knife on the cheek below the ear of PW1. He also correctly identified accused Arjun @ Hakla before the Court as the person who was carrying knife at the time of incident and had caused injuries to PW1.
59.Thus, both PW1 and PW2 who are public witnesses and PW1 who was even injured as is established by his MLC Ex.PW3/A, had identified accused Arjun @ Hakla as the person who alongwith his two associates had robbed the purse of complainant / PW1 and had caused injuries on the cheek of the complainant / PW1 with knife. They both have further deposed that accused Arjun was apprehended at the spot with knife. Their testimonies are further corroborated by the testimony of PW8 Head Constable Ram Kishore who had also deposed that when he reached at the spot post hearing alarm he after inquiring from the persons who had raised alarm placed his motorcycle ahead of those three persons who were escaping from the spot and thereafter apprehended two assailants out of three. He categorically deposed that accused Arjun @ Hakla was apprehended at the spot and from his search knife Ex.P2 was recovered.
60.The presence of PW-8 at the spot is further corroborated by the testimony of PW-10 Head Constable Prem Pal Singh who had proved FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 23 :DD No. 43 B Ex.PW-10 /A before the Court as per which PW-8 had left for his PCR duty on Government motorcycle on 29.03.2018 at 08:40 p.m. Thus, the departure entry Ex.PW10/A also shows that PW-8 was present at the spot and was at the spot on patrolling duty.
61. Thus, all the three witnesses have corroborated each other qua the fact that accused Arjun @ Hakla was apprehended at the spot and from his search knife Ex.P2 was recovered. Arrest memo Ex.PW1/E of accused Arjun @ Hakla also bears the signatures of PW1, PW2 and PW3 and they all had correctly identified their signatures on the said arrest memo.
62.Though in the present matter, there are discrepancies qua the arrest / apprehension of CCL and co-accused Afroz @ Bihari in the deposition of PW1 and PW2 however they do not strike at the root of the case of the prosecution. Though PW1 had deposed that he had not identified accused Afroz @ Bihari in the TIP proceedings conducted at Mandoli Jail, however, he before the Court had identified him as the person who was alongwith accused Arjun @ Hakla and CCL and had held him from behind at the time of incident.
63.It has not come in the cross-examination of either PW1 or PW2 that they and the accused persons were known to each other prior to the incident in question or there was any previous enmity between them. Therefore, no motive could be attributed to them to falsely implicate and wrongly identify accused persons before the Court.
64.Though in the present matter, there are discrepancies in the testimonies of the prosecution witnesses qua the identification of co-accused Afroz FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 24 :@ Bihari and how were the accused persons apprehended at the spot by PW-8, PW-1 and PW-2, however, these discrepancies do not strike at the root of the case. PW1 and PW-2 had correctly identified accused Arjun @ Hakla before the Court as the person who had caused injuries to PW1 at the time of robbing him of his purse which contained cash to the tune of Rs. 300/- and his Aadhar Card. Their testimonies had withstood cross-examination and they have corroborated each other in material particulars. PW1 had further correctly identified his blood stained shirt Ex.P1, knife Ex.P2, purse Ex.P3, currency notes Ex.P4 and Aadhar Card Ex.P5. He admitted in his cross examination that his purse was recovered from the CCL at the spot. PW-2 had also identified the knife Ex.P2, purse Ex.P3, currency notes Ex.P4 and Aadhar Card Ex.P5 before the Court.
65. It has been held by the Hon'ble Apex Court in catena of judgments that conviction can be based on the testimony of solitary witness if the testimony is of sterling quality and the witness is competent, honest and trustful. It is the quality of evidence and not the quantity which matters. PW-1 and PW-2 had withstood the test of cross-examination and their testimonies corroborate each other. They are further corroborated by the testimony of PW-8 as well as by medical evidence.
66.Though there are discrepancies that whether all three of them i.e. PW1, PW2 and PW8 together apprehended accused Arjun and CCL or whether PW1 remained standing at the spot as he was bleeding and only PW2 and PW8 apprehended Arjun and CCL however the said discrepancies are not material.
FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 25 :67.The Hon'ble Supreme Court of India in the judgment reported as Bharwada Bhoginbhai Hijribhai v. State of Gujrat, 1983 (CRI) GJX 0252 SC, had pointed out the following reasons why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses. The reasons are:
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen;
(b) Ordinarily it so happens that a witness is overtaken by events.
The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details;
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another;
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder;
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the 'timesense' of individuals which varies from person to person.
(f) ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 26 :time span. A witness is liable to get confused, or mixed up, when interrogated later on;
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross examination made by counsel and out of nervousness mix up facts; get confused regarding sequence of events, or fill up details from imagination on the spur of moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish, or being disbelieved, though the witness is giving a truthful and honest account of the occurrence witnessed by himPerhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.
68. Thus, in view of the above cited case law, it is categorically clear that minor contradictions, embellishments and exaggerations are bound to occur in the testimony of witnesses when they depose before the Court after considerable time. Parrot like depositions and mathematical precision cannot be expected as the Court deals with human memory which is bound to frail with time.
Final analysis :
69.Keeping in view the above discussions and findings, it is held that the prosecution is able to prove beyond shadow of all reasonable doubt that accused Arjun @ Hakla alongwith his associates in furtherance of the common intention of all of them committed robbery of purse containing cash of Rs. 300/- and Aadhar Card from PW1/ complainant Prashant FIR No: 99/2018 State v. Arjun @ Hakla & Anr.
: 27 :Sagar. He, at the time of committing robbery, used deadly weapon, that is, knife Ex.P2 and voluntarily caused hurt to PW1 while committing robbery.
Conclusion/Findings :
70.Accordingly, accused Arjun @ Hakla is held guilty and convicted for the commission of offence punishable under section 392 IPC read with section 34 IPC, section 394 IPC read with section 34 IPC and section 397 IPC.
71.Let he be heard separately on the point of sentence.
72.Copy of the judgment be provided to the convict free of cost.
Digitally signedNEHA ANNOUNCED IN THE OPEN by NEHA PALIWAL PALIWAL SHARMA COURT ON: 21st December 2023 SHARMA Date: 2023.12.21 04:52:35 +0530 (Neha Paliwal Sharma) Additional District Judge-03 (Central) Tis Hazari Courts Delhi (Earlier posted as Additional Sessions Judge -05 (West) Tis Hazari Courts Delhi 21.12.2023 It is certified that this Judgment contains 27 pages and each page bears my signatures.
Digitally signed by NEHA NEHA PALIWAL
PALIWAL SHARMA
Date: 2023.12.21
SHARMA 04:52:44 +0530
(Neha Paliwal Sharma)
Additional District Judge-03
(Central) Tis Hazari Courts Delhi
(Earlier posted as Additional Sessions Judge -05 (West) Tis Hazari Courts Delhi 21.12.2023 FIR No: 99/2018 State v. Arjun @ Hakla & Anr.