Delhi District Court
Fir No. 227/16 State vs . Naseem 1/13 on 23 December, 2016
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL
SESSIONS JUDGE(NE), KARKARDOOMA COURTS, DELHI.
SC No. 112/16
FIR No. 227/16
PS : Gokal Puri
U/s. 392/394/397/34 IPC
State
Versus
Naseem
S/o Sh. Nabi Hassan
R/o. H.No. 192, C-Block, Gali no. 16,
Rajiv Vihar, Kachi Khajoori, Delhi.
Date of Committal : 15.07.2016
Date of Arguments : 21.12.2016
Date of Pronouncement : 23.12.2016
JUDGMENT :
1. Prosecution case: It is the case of the prosecution that on 18.03.2016, complainant Madhu produced the accused before the Duty Officer of PS Gokul Puri who was apprehended by her with the help of the public persons. On personal search of the accused, an ustra was recovered from his pocket which was seized after preparation of its sketch. Complainant made a statement thereby alleging that she boarded an auto from Khajoori Khas to Ashok FIR No. 227/16 State Vs. Naseem 1/13 Nagar and two boys also sat in the said Auto besides and during her transit, one of them put an ustra on her neck and other assailant robbed her tablet. Both the assailants ran away after jumping of the Auto after committing robbing the tablet of the complainant, but auto driver raised alarm alongwith complainant and accused Naseem was apprehended by the public persons in front of the PS, but other associate ran away with the robbed tablet. FIR was lodged on the basis of the statement of the complainant. IO arrested accused and seized ustra from him. Accused has been chargesheeted u/s 392/394/397/34 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Accused was charged under Section 392/34 and u/s 397 IPC vide order sheet dated 26.07.2016 and pleaded not guilty and claim trial.
4. Prosecution has examined PW1 HC Yashpal, PW2 HC Sandeep Kumar, PW3 Ct. Budh Prakash, PW4 Madhu, PW5 Dr. Nadeem, PW6 HC Shopal Singh, PW7 SI Om Pal Singh Rathi, PW8 Gaurav and closed PE.
5. After PE, entire incriminating evidence explained to the accused under section 313 Cr.P.C and his statement was recorded. Accused has preferred to lead any defense evidence, but failed to FIR No. 227/16 State Vs. Naseem 2/13 lead any DE despite availing opportunity and this Court closed Defence Evidence vide order dated 03.12.2016.
6. To prove the case, prosecution has examined many witnesses including the complainant. The evidence led by the prosecution is as under:-
6.1. PW1 HC Yashpal has proved the entries of Register no. 19 dated 18/03/2016 regarding the depositing of sealed parcel containing exhibits deposited by HC Shopal which is Ex.PW1/A. 6.2. PW2 HC Sandeep Kumar was DO on the day of incident and received a rukka Ex.PW2/A recorded by HC Shopal on which he made his endorsement Ex.PW2/B to get registered FIR. he got registered the FIR through Computer Operator Ct. Satish vide DD No-22A. FIR is Ex.PW2/C. Investigation was assigned to SI Om Pal.
Certificate of correctness of computer system is Ex.PW2/D. 6.3. PW3 Ct Budh Prakash has deposed that on 18/03/2016 at about 7:00 pm, he was present at the main gate of PS Gokul Puri and heard a noise 'chor chor pakdo pakdo' and saw that one person was being beaten up by the public persons near service road at a distance of about 100 meters from PS. He brought the person to the PS after saving from public persons and produced before the DO. Complainant was also there and made a statement before DO and disclosed that she was robbed of his tablet make i-ball by two persons on the point of ustra, but another accused had run away FIR No. 227/16 State Vs. Naseem 3/13 towards C-Block, but that accused was overpowered by the public persons while running with ustra. It is further deposed that she identified the accused to be the robber and HC Shopan Singh took the personal search of the accused and one ustra was recovered from his right side pocket of pant which was used by the accused during incident as identified by the complainant.
6.3.1. PW3 has further deposed that HC Shopal Singh took the measurement of the ustra and prepared a sketch Ex.PW3/A in the presence of complainant and seized it vide memo Ex.PW3/B. HC Shopal presented rukka before DO and got registered FIR and investigation was assigned to him. He arrested accused vide arrest and personal search memo Ex PW3/C1 and Ex. PW3/C2 in the presence of complainant. Accused made his disclosure statement Ex.PW3/D and pointing out memo was prepared at the instance of the accused which is Ex.PW3/E. He has correctly identified the ustra recovered from the accused.
6.3.2. During cross examination, he has admitted that 10-12 persons were beating the accused but none joined the investigation. He did not observe any injury on the body of the complainant. IO prepared the site plan at the instance of the complainant but he was not aware whether complainant was made witness to it or not. Driver of TSR had also come to PS but he was not cited witness to this case. He noticed minor injuries on the body of the accused but accused did not ask for his medical examination. It is denied that FIR No. 227/16 State Vs. Naseem 4/13 ustra was planted upon the accused or that accused was lifted from the way when he was going from Yamuna Vihar towards Mohan Nagar or has been falsely implicated in this case.
6.4. PW4 Madhu is the complainant and has deposed that on 18/3/2016 at about 6:30 pm, she was going from Khajuri Red Light to Ashok Nagar by TSR when three persons sat on back seat and another passenger was sitting besides the driver. It is further deposed that when TSR reached near Jal Board / BSES office, one boy took out ustra and put on her neck and uttered 'Kaat Dunga Tab De Dijeye' and other boy immediately snatched his Tab holding in hand and both jumped out of TSR and ran away. She has pointed out towards accused to be the person who pointed ustra on her neck. She alongwith TSR driver chased accused and overpowered him with the help of public persons. Meanwhile, one police official also reached there and took the accused to PS and she also followed him. It is further deposed that police took the personal search of the accused and one ustra was recovered from his pocket. Public persons also gave beating to the accused. Police recorded her statement Ex.PW4/A. She also pointed the spot of incident and IO prepared the site plan Ex.PW3/E. She has admitted that the sketch, seizure memo of ustra and arrest papers of accused which are Ex.PW3/A to Ex.PW3/D are bearing her signatures. She has also produced bill of Tab which is Ex.PW4/B. It is further deposed that accused also tried to run away but he was apprehended again. She has identified the ustra as Ex.P1.
FIR No. 227/16 State Vs. Naseem 5/13 6.4.1. During cross examination, she has deposed that two boys were sitting with driver at the time when she boarded the said TSR and she was single passenger at that time in the back seat of the TSR. It is further deposed that within 2-3 minutes both boys came to her and sat on her left and right side. It is further deposed that the boy who was sitting in the left side put ustra on her neck. It is further deposed that there were five persons at the time of incident in moving TSR including him and TSR was stopped at red light at the time of incident and she got nervous when accused put ustra on her neck. It is further deposed that tablet was in her hand at the time of incident. No one tried to chase the accused who took away his tab, but he tried to nab the accused thereby chasing him on the same road in similar direction and caught him about 100 meters away wherefrom he left the auto to escape him. It is further deposed that the police official present near the spot assisted her to nab the accused besides the public persons and auto driver. Accused was taken to the police station after apprehending. She neither remember the registration of auto number in which incident took place nor the name of TSR driver. Accused was beaten up by the publice persons after apprehending but no blood oozed out of his injuries. It is denied that accused has not committed any offence.
6.5. PW5 Dr. Nadeem has proved the MLC of accused Nasim dated 18/3/2015 with the alleged history of beaten by public persons prepared by Dr. Manik Tikoo which is Ex.PW5/A. FIR No. 227/16 State Vs. Naseem 6/13 6.6. PW6 HC Shopal Singh has deposed that on 18/03/2016, at about 7.00 pm, complainant Madhu came to PS alongwith accused Nasim thereby stating that he alongwith his associate robbed her tablet on the point of weapon in running TSR. She stated that she apprehended the accused with the help of TSR driver and public persons. He recorded the statement of complainant Ex.PW4/A and made his endorsement Ex.PW2/A and presented for registration of FIR before DO and investigation was assigned to SI Om Pal Singh. He took personal search of accused in which an ustra was recovered of which sketch Ex.PW3/A prepared by him before its seizure vide seizure memo Ex.PW3/B. He has identified the ustra as Ex.P1.
6.6.1. During cross examination, he has deposed that complainant was accompanied with Constable of PS Gokul Puri, but no public person came to PS due to no public person is cited a witness to this case. It is further deposed that accused had suffered injuries on his head, face and hands when he was brought to him and was taken to hospital before producing the court. Ustra recovered from the accused was having blade. Complainant neither told the name of the TSR driver nor TSR driver come to him. He did not try to search the associate of the accused, but it is denied that accused has been falsely implicated in this case.
6.7. PW7 SI Om Pal Singh conducted the investigation of this case and accused was produced before him by HC Shopal Singh. HC Sandeep Kumar delivered the copy of FIR and rukka. He arrested FIR No. 227/16 State Vs. Naseem 7/13 the accused and recorded his disclosure statement vide memo Ex.PW3/C1, Ex. PW3/C2 and Ex.PW3/D. He inspected the spot of incident and prepared the site plan at the instance of complainant in the presence of Ct. Budh Prakash which is Ex.PW3/E. He could not trace the tablet or co-accused of this case. He seized the bill of the Tablet Ex.PW4/B produced by the complainant and verified from the proprietor of M/s Four Square Computer Centre, Bhajan Pura, Delhi. He made a request Ex.PW7/A to DCP Office to put the number of Tablet on surveillance. He also collected MLC of accused Ex.PW5/A prepared on examination of the accused being beaten up by the public persons. During investigation, he collected the certificate u/s 65B of Evidence Act regarding correctness of computer system on which FIR was typed.
6.7.1. During cross examination, he has deposed that during his visit at the spot, TSR driver was not present there. No recovery was affected at the instance of accused during PC. It is denied that accused has been falsely implicated in this case. He was not aware whether complainant sustained any injury during incident. It is denied that accused was lifted from the road and falsely implicated to work out this case.
6.8. PW8 Gaurav has proved the bill Ex.PW4/A regarding purchasing of the Tablet against a sum of Rs. 7,100/- and he issued this bill in his business name M/s. 4 Square Computer.
FIR No. 227/16 State Vs. Naseem 8/13
7. I have heard the arguments and perused the record. This case has been lodged on the basis of the statement of the complainant Madhu. She has standby her statement Ex.PW4/A made before the police and has duly proved that statement before this court also. PW4 Madhu has categorically deposed before this court that she was sitting in a TSR and having a Tablet in her hand when accused Naseem put an ustra on her neck and his other associate robbed her Tab and ran away. She apprehended the accused soon after the incident with the help of public persons and driver of TSR when he tried to run away from the spot. She has also deposed that one ustra used by accused in the incident was also recovered from his pocket and has identified that ustra before this court also. She has given the description of the clothes worn by accused at the time of incident from which ustra was recovered. PW4 has duly identified the accused to be the persons who put ustra on her neck to facilitate her associate to rob her Tablet and ran away.
8. PW3 Ct. Budh Prakash and PW6 HC Shopal Singh have duly corroborated that the accused was apprehended by the complainant with the help of public persons and TSR driver. PW3 has deposed that he heard the noise and saw that public persons were beating the accused and he saved him and produced before the PW6 and PW6 has also corroborated it. PW7 SI Om Pal Singh has also deposed that the accused was produced before him on assignment of investigation of this case and he had sustained injuries being beaten up by the public persons and he got him medically examined FIR No. 227/16 State Vs. Naseem 9/13 and his MLC was prepared with the same alleged history of injuries. PW7 arrested the accused after his medical examination vide arrest and personal search memo which are Ex.PW3/C1 to Ex.PW3/C2. He also made his disclosure statement Ex.PW3/D.
9. Further, PW4 complainant, PW3 Ct. Budh Prakash and PW6 HC Shopal Singh have witnessed the recovery of the ustra from the accused and they have duly proved that it was recovered from the personal search of the accused and PW4 has duly corroborated its use during the incident. PW6 HC Shopal Singh has proved that he prepared the sketch Ex.PW3/A before its seizure vide seizure memo Ex.PW3/B. No material contradiction has come on record during the testimonies of PW3, PW4 and PW6 except putting the suggestions to them that accused has been falsely implicated in this case which have been denied by them. As such, it stands proved that the accused was involved in the incident and he was apprehended soon after the incident and found in possession of the weapon used during the incident.
10. So far admissibility of recovery of ustra Ex.P1 is concerned, it was seized by PW6 in the presence of PW3 and PW4 vide seizure memo Ex.PW3/B during personal search of accused, but it was recovered prior to recording of disclosure statement of accused which is Ex.PW3/D and Ld. Counsel for accused has argued that this recovery is not admissible u/s 27 of Evidence Act. However, this argument of Ld. Counsel for accused has no substance. Though this FIR No. 227/16 State Vs. Naseem 10/13 recovery of ustra Ex.P1 is not admissible u/s 27 of Evidence Act as it was not in pursuance of disclosure statement, yet this recovery is very well relevant u/s 8 of Evidence Act that the accused used this weapon during incident as deposed by PW4 and thereafter it was recovered out of his possession immediately after apprehending him by the complainant with the help of public persons. Similarly, the recovery of tab is also not relevant to prove the charges against the accused as complainant has duly proved before this court that her tab was robbed by the accused and she has also produced the document Ex.PW4/B to prove the purchase of said tab which was also put on surveillance vide document Ex.PW7/A. Admittedly, associate of accused ran away with the tab soon after the incident after jumping from TSR and in such condition the recovery of tab was out of question in the absence of arrest of co-accused. As such, it is not fatal to this case.
11. So far investigation of case is concerned, PW2 has proved rukka Ex.PW2/B which has also disclosed that accused was beaten up by public persons and produced by the complainant before HC Shopal Singh in the presence of Ct. Budh Prakash and FIR Ex.PW2/C recorded by PW2 has also corroborated this fact. Site plan Ex.PW3/A has proved the spot of incident as well as spot where accused was apprehended by public persons. The information regarding recovery of ustra and beatings to accused by public persons has been corroborated by disclosure statement Ex.PW3/D also and the same is also relevant. The arrest of accused vide FIR No. 227/16 State Vs. Naseem 11/13 document E.xPW3/C1 and Ex.PW3/C2 is not disputed. Even MLC Ex.PW5/A proved by PW5 has also proved the involvement of accused. Pointing out memo of the spot of incident was also prepared which is Ex.PW3/E and it has also proved that accused committed the robbery at the spot of incident shown in site plan. Accused tried to escape from the spot after committing the offence and this conduct of accused is also relevant and against him.
12. Contrary to it, accused has taken a defence that he was moving form Yamuna Vihar towards Mohan Nagar when he was apprehended by the public persons, but no explanation has been tendered by accused as to why he was apprehended by public and TSR driver when he has not committed any wrong. Admittedly, he was beaten by public persons and PW5, who has proved the MLC of accused has also proved this fact which was prepared with alleged history of beaten by public and he sustained injuries. PW3 has proved that he saved accused from public persons when they were beaten him and PW6 and PW7 have corroborated that accused had sustained injuries during beatings after arrest. In the absence of any explanation, this fact has also corroborated the testimonies of PW4 that accused committed the offence and she apprehended the accused with the help of public. As such, the defence taken by accused that he was beaten up by the public persons without any reason or that he was going towards Mohan Nagar when he was apprehended by public persons without any reason have no substance. In fact, accused committed the offence and was FIR No. 227/16 State Vs. Naseem 12/13 apprehended soon after the incident and has committed the offence.
13. Even the arguments of Ld. Counsel for accused have no substance that public person and TSR driver have not been cited witnesses to this case and it is fatal. PW4 and other police officials have duly proved the involvement of the accused to this case and PW6 has tendered an explanation that public persons and TSR driver did not come to PS due to they have not been cited witness to this case and it has duly explained the reason of their non- examination in this case. As such, it is not fatal to this case.
14. Keeping in view of the fact and circumstances of the case, I am of considered opinion that prosecution has proved beyond doubt that accused has committed the offence u/s 392/34 IPC. Accused is hereby convicted for the offence u/s 392/34 IPC.
15. So far the offence u/s 397 IPC is concerned, recovery has been effected from accused which is Ex.P1 and the use of this dangerous weapon stands proved by the testimony of PW4 who is the complainant as well as victim of the incident. As such, this offence also stands proved against accused and he is also convicted u/s 397 IPC.
Announced in open court (Devender Kumar)
today on 23.12.2016 Additional Sessions Judge-03
(NE): Karkardooma Courts, Delhi.
FIR No. 227/16 State Vs. Naseem 13/13