Delhi District Court
State vs Mohd. Salim on 23 July, 2024
IN THE COURT OF MS. SHAIL JAIN
PRINCIPAL DISTRICT & SESSIONS JUDGE,
EAST, KARKARDOOMA COURTS, NEW DELHI
SC NO. 381/2016
FIR NO. 108/2012
PS : Pandav Nagar
U/S: 395/412/34 IPC
STATE
VERSUS
(1) Mohd. Saleem
S/o Alimuddin
R/o 1327, Kale Mahal, Darya Ganj,
Delhi.
(2) Arshad
S/o Mohd. Nayeem
R/o 135, New Seema Puri,
Delhi.
(3) Asmat Ali
S/o Amjad Ali
R/o A-148/1, Shastri Mohalla,
Delhi.
Date of Institution : 03.12.2015
Date of Judgment : 23.07.2024
SC No.381/2016; FIR No.108/2012
State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 1 of 24
JUDGMENT
1. Prosecution has filed present chargesheet against accused persons, namely, Mohd. Saleem, Arshad and Asmat Ali for offences punishable under sections 395/412/34 IPC vide FIR No. 108/2012, PS Pandav Nagar.
2. Case of the prosecution is that on 11.04.2012, on receipt of DD no. 21A, SI Sudhir (PW-9) alongwith Ct. Surender (PW-1) reached the spot i.e. Gali No. 3, F Block, Samaspur, Pandav Nagar, Delhi where Ct. Digpal (PW-5), HC Kanwarpal (PW-6) met them alongwith three accused persons namely Arshad, Mohd. Saleem and Asmat Ali. Complainant Shri Ram Yadav (PW-2) also met there. Accused Mohd. Saleem and Arshad were reported to have been beaten by the public, so both these accused were sent to LBS Hospital through Ct. Surender and HC Kanwarpal and were got medically examined. On search of accused Asmat Ali, seven purple colour dibbis were recovered from him and complainant stated that these were the same dibbis on the basis of which, accused persons were giving reward. Statement of complainant was recorded in which he detailed the incident of robbery. Rukka was prepared and a case FIR no. 108/2012 under Section 382/411/34 IPC was got registered. Site Plan was prepared. Accused persons were arrested in the present case. From accused Mohd. Saleem, Rs.19,000/- of complainant and one MTS Mobile were recovered and same were seized. Rs.11,000/- robbed from the complainant, could not be recovered as accused Arshad had already given it to his associate Raju, who SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 2 of 24 could not be arrested. One black mobile phone make Samsung was recovered from accused Arshad and one mobile and some documents were recovered from accused Asmat. Disclosure statements of accused persons were recorded in which they confessed to have committed crime in this case with their associates Raju and Ali, who could not be arrested despite best efforts of Police. On revelation of the fact that five persons were involved in commission of crime in the instant case, Section 382 IPC was changed into Section 395 IPC. Statements of the witnesses were recorded. On completion of investigation, chargesheet under Section 395/412/34 IPC was filed against accused persons.
3. On compliance of provisions of Section 207 Cr.P.C., case was committed to Court of Sessions and in turn was assigned to this Court for trial in accordance with law.
4. After hearing, Ld. Additional P.P. and Ld. Counsel for accused persons, charge under section 395 IPC was framed against all the three accused persons, whereas a separate charge under Section 412 IPC was framed against accused Mohd. Saleem. Accused persons pleaded not guilty and claimed trial.
5. Prosecution in support of its case examined 9 witnesses.
(i) PW-1 Ct. Surender had accompanied IO SI Sudhir Kumar (PW-9) and participated in the investigation. On 10.04.2012, when he reached the spot alongwith SI Sudhir, Ct. Digpal and HC Kanwarpal met them at the spot with three accused persons namely Mohd. Saleem, Arshad and Asmat Ali and complainant was also present there. Accused Saleem was having injuries on SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 3 of 24 his person and accused Arshad was also complaining of pain in his hand. On directions of IO, he alongwith HC Kanwar Pal took accused Saleem and Arshad to LBS Hospital, got them medically examined there and thereafter, came back to the spot. IO recorded statement of complainant, prepared rukka handed over the same to him. He went to police station and got the case registered. Thereafter, he came to the spot and handed over original rukka and copy of FIR to IO. IO arrested three accused persons. Accused Asmat was arrested vide arrest memo Ex.PW1/A and his personal search Ex.PW1/B was conducted.
Disclosure statement of accused Asmat was recorded vide memo Ex.PW1/C.
(ii) PW-2 Shri Ram Yadav is the complainant and victim of the Crime. He testified that on 10.04.2012, he had boarded a bus going towards Jait Pur from Laxmi Nagar at about 2.00 p.m. Some persons boarded the bus, who were selling lottery, charging Rs.50/- and giving reward of Rs.250/-. Said persons were five in numbers and three of them had approached him and asked to play lottery but he refused. He deposed that he was carrying Rs.11000/- in his pant pocket and another sum of Rs.19,000/- in separate pocket of his shirt. He specifically stated that accused Saleem had taken Rs.11,000/- from his pant pocket and accused Arshad had taken Rs.19,000/- from pocket of his shirt. He further stated that it was accused Asmat who was selling dibbies (playing lottery). He stated that when bus crossed Laxmi Nagar Flyover, accused Asmat gave a whistle, three persons got down from front gate of the bus and two persons alighted from back SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 4 of 24 gate. He also got down from the bus and chased the robbers. He stated that he apprehended accused Saleem and shouted Chor Chor, when public persons gave beatings to accused Saleem. Accused Arshad was apprehended by the public persons and given beatings. Accused Asmat himself came to the spot with money. He gave statement Ex.PW2/A to the police. He had shown the place of occurrence. All the three accused persons namely, Saleem, Arshad and Asmat were arrested vide memos Ex.PW2/B, Ex.PW2/C and Ex.PW1/A, respectively and their personal searches Ex.PW2/D, Ex.PW2/E and Ex.PW1/E were conducted respectively. Accused Asmat was found in possession of seven dibbies (Ex.P-1 Colly) of blue colour and same were taken into possession vide memo Ex.PW2/F. He has identified photocopies of 38 currency notes of Rs.500/- denomination as Ex.P-2 (Colly.).
6. This witness was cross-examined by Ld. Additional P.P. in which, he stated that he had boarded bus route no. 473. He stated that two persons had come to him and asked why he was not buying dibbies for reward, they intimidated him and he became frightened. One of those persons took out Rs.11,000/- from him which he had wrapped in a blue handkerchief, and another person had taken out Rs.19,000/- from his shirt which were in the denomination of Rs.500/- each. He stated that the person who had robbed him of Rs.11,000/- had passed on the money to his associate and they deboarded the bus and ran towards Samaspur Village (Pandav Nagar). He stated that he apprehended the person who had snatched Rs.19,000/- from him with assistance SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 5 of 24 of public persons. He stated that two policemen on motorcycle, who were patrolling in the area, had caught accused Arshad and Asmat Ali. He has identified accused Saleem to be the person, who had taken Rs.19,000/- from him and he had apprehended him at the spot with money. He identified accused Arshad to be person who had taken Rs.11,000/- from him and passed it on to his associate. He has also identified accused Asmat Ali to be the person who was selling dibbies in the bus. He has stated that the currency notes were seized by the police vide seizure memo Ex.PW2/F1. He had moved application Ex.PW2/G for release of currency notes on Superdari and executed Superdarinama Ex.PW2/H.
(iii) PW-3 ASI Tejbir Singh was working as Duty Officer in PS Pandav Nagar on 10.04.2012. He deposed that on receipt of rukka, from Ct. Surender, sent by IO/SI Sudhir Kumar, he got registered present FIR through computer operator. He has proved copy of FIR Ex.PW3/A.
(iv) PW-4 SI Manu Kumar has stated that on 03.12.2014 further investigating of this case was assigned to him. After completion of investigation, challan was prepared and filed in the Court.
(v) PW-5 ASI Digpal stated that on 10.04.2012, he alongwith HC Kanwar Pal was patrolling on private motorcycle and during patrolling, when they reached near Bus Stand of route no. 473, at about 2.00 p.m., said bus stopped there and five boys deboarded the same and ran away towards a village. One another person also deboarded the bus and he was shouting that his money had SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 6 of 24 been taken out by those five boys. They chased those five boys and complainant apprehended accused Mohd. Saleem. They chased and apprehended accused Asmat Ali. Accused Arshad was apprehended by HC Kanwar Pal. Information was given to PS about the incident. SI Sudhir and Ct. Surender reached at the spot from the PS. Accused Saleem was searched and robbed money of Rs.19,000/- belongng to the complainant was recovered from accused Saleem. Accused Arshad and Saleem were having injuries on their person, as they were beaten by the public persons and they were taken to hospital by HC Kanwar Pal and Ct. Surender. On search of accused Asmat Ali, seven dibbies of purple colour were recovered from his possession. The currency notes were seized vide seizure memo Ex.PW2/F1 and seven dibbies (Ex.P-1) vide seizure memo Ex.PW2/F. Thereafter, both the accused persons Saleem and Arshad were brought to the spot from hospital. IO prepared rukka and sent Ct. Surender to PS for registration of FIR. IO prepared site plan. Accused Saleem was arrested vide memo Ex.PW2/B and his personal search Ex.PW2/D was conducted and his disclosure statement Ex.PW5/A was recorded.
(vi) PW-6 ASI Kanwar Pal has deposed on the lines of PW-5 ASI Digpal.
(vii) PW-7 Dr. Onkar Singh Tomar has deposed that on 10.04.2012, he had medically examined patient Mohd. Saleem and observed that he had suffered lacerated wound 5 c.m. X 0.5 c.m. on top of head in centre, abrasion 2 c.m. X 0.5 c.m. on nose with traumatic swelling all over the nose with clotted blood SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 7 of 24 present on both nostrils and reddish contusion 12 c.m. X 4 c.m. on top of left shoulder. He prepared MLC Ex.PW7/A and referred the patient to S.R. (Surgery) for nasal bone X-ray. He further stated that on the same day, he had examined patient Arshad vide MLC Ex.PW7/B, but no fresh injury was found on his person.
(viii) PW-8 HC Hari Ram was working as MHC(M) at PS Pandav Nagar on 10.04.2012. He stated that SI Sudhir Kumar had deposited one pulanda of case property and he made entry at serial no. 109 of register no. 19 which is Ex.PW8/A. He further stated that on 11.04.2012, SI Sudhir Kumar deposited another pulanda of case property and entry was made at serial no. 114 in register no. 19, which is Ex.PW8/B.
(ix) PW-9 Inspector Sudhir Kumar is IO of the present case. He deposed that on 10.04.2012, at about 2.25 p.m., on receipt of DD no. 21A Ex.PW9/A, he alongwith Ct. Surender (PW-1) reached the spot, where Ct. Digpal, HC Kanwar Pal, complainant Shri Ram Yadav met him. Three accused persons Saleem, Asmat and Arshad were handed over to him. Complainant had disclosed that accused persons had removed Rs.30,000/- from his possession. Rs.19,000/- had already been recovered from accused Saleem. He was told that Rs.11,000/- were taken away by two other associates of accused persons who had already fled away. He had sent accused Saleem and Arshad to LBS Hospital through HC Kanwar Pal and Ct. Surender. He deposed that seven small dibbies were recovered from accused Asmat. He recorded statement of complainant Shri Ram Yadav Ex.PW2/A, SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 8 of 24 prepared rukka Ex.PW9/B and sent Ct. Surender to police station for registration of FIR. He prepared site plan Ex.PW2/DA at the instance of complainant. He seized recovered currency notes of Rs.19,000/- and seven dibbies, arrested accused persons, conducted their personal searches. He recorded disclosure statements of the accused persons. Despite best efforts, two other associates of the accused persons could not be arrested. Departure entries with regard to patrolling duty of HC Kanwarpal and Ct. Digpal on 10.04.2012 are Ex.PW9/C and Ex.PW9/D respectively.
7. Statements of accused persons under Section 313 Cr.P.C. were recoded. They all have denied the case of prosecution in entirety. They have stated that they are innocent and have been falsely implicated in this case and nothing was recovered from them. However, they did not opt to lead evidence in their defence.
8. I have heard Ld. Addl PP for the State and Ld. Counsels for the accused persons and perused the evidence and relevant documents and other material on record.
9. Ld. Additional P.P. has argued that the prosecution has proved the case against the accused persons beyond reasonable doubt, as occurrence of incident has been proved by complainant Shree Ram Yadav (PW2), & PW5 ASI Digpal and PW6 ASI Kanwar Pal, who were patrolling in the area had seen the accused persons and complainant de-boarding the bus and complainant chasing the accused persons. It is argued that from the witnesses examined by the prosecution, it stands proved on record that SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 9 of 24 robbers were five in number. It has been proved by PW5 & 6 that complainant Shree Ram Yadav was shouting 'chor chor'. It has been proved on record that complainant succeeded in apprehending accused Mohd. Saleem and accused Asmat Ali and Arshad were apprehended by PW5 and PW6. It is further submitted that recovery of Rs.19,000/- and 7 dibbies has been proved from accused Mohd. Saleem and Asmat Ali respectively. It is further proved that it has been proved that Rs.11,000/- had been passed on by accused Arshad to his associate who was with them during the incident. It is argued that on the basis of evidence on record, the prosecution has been successful in proving its case against the accused.
10. On the other hand, Ld. Counsels for the accused persons have submitted that case of prosecution under Section 395 IPC does not stand proved, as other 2 persons have not been arrested. It is submitted that no recovery has been effected from accused Asmat Ali; the complainant could not give the bus number and he was not having ticket of bus, which falsifies occurrence of any such incident. It is further submitted that Police had not verified whether complainant was actually having Rs.30,000/- on the day of incident. It is further submitted that such incident of robbery cannot be expected to happen in a bus. It is further submitted that complainant was working in Geeta Colony, then why he had gone to Laxmi Nagar is not explained by the prosecution. It is further submitted that as per case of prosecution, accused persons were five in number out of whom only three accused persons have been arrested and prosecution has not been able to establish SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 10 of 24 any link between three accused persons and remaining two persons, who could not be arrested. It is further submitted that there are contradictions in the testimony of police witnesses. It is further submitted that prosecution has not been able to prove its case against accused persons beyond reasonable doubt. It is prayed that accused may be acquitted.
11. I have considered the submissions made by Ld. Additional P.P. for the State and the Ld. Defence Counsels and perused the material available on record.
12. Ld. Counsel for accused Asmat and Mohd. Saleem has argued that no case under Section 395 IPC is made out, which requires that there should be atleast 5 persons before committing offence of dacoity and since there are only three accused persons arrested in this case, therefore, section 395 IPC is not maintainable. No other argument was advanced by Ld. Counsels for other accused persons on this point.
13. Section 395 IPC prescribes punishment for offence of dacoity and term dacoity has been defined under Section 391 IPC, which is reproduced hereionunder:-
"391. Dacoity.__ When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting, or aiding, is said to commit "dacoity".
SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 11 of 24
14. Thus Section 391 IPC provides that, when 5 or more persons have committed or attempted to commit robbery, then all those persons present and aiding such commission or attempt would be said to have committed 'dacoity'. This section nowhere says that the persons who were committing or aiding or attempting to commit or aid to attempt commission of dacoity should be arrested or that unless they are sent for trial, offence of dacoity would not be considered against them. In Joginder @ Joga vs. State, NCT of Delhi, IlI (2013) VI Delhi 4089, held as under :-
"7. Further even if in the present case only two accused have been convicted, the conviction under Section 395 and 397 IPC can still be based as PW1 and PW2 have clearly stated that besides the appellant no.4 or 5 more persons were involvd and non trial or conviction of the other 4 or 5 persons would not vitiate the conviction of appellants for offences under Section 395 and 397 IPC."
15. In case titled as "Ganesan vs. State Rep. By Station House Officer", 2021 INSC 698, it has been observed that:
"53. Now so far as the submission on behalf of the appellants-accused that even no case is made out for the offence under Section 391 IPC and they cannot be punished under Section 395 IPC as what is required to be proved is involvement of five or more persons conjointly in committing the robbery and in the present case only four persons are tried and the prosecution has failed to prove the involvement of five or more persons. However, it is required to be noted that as such in the FIR there was SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 12 of 24 a reference to five persons involved in committing the robbery. Even the chargesheet was filed against five persons, however, as two accused absconded, the trial was split and three accused came to be tried. One accused Benny came to be tried subsequently, and one person is still absconding. Even there are concurrent findings recorded by all the courts below that five persons were involved in committing the offence of robbery merely because some of the accused absconding and less than five persons came to be tried in the trial, it cannot be said that offence under Section 391 IPC punishable under Section 395 IPC is not made out. What is required to be considered is the involvement and commission of the offence of robbery by five persons or more and not whether five or more persons were tried. Once, it is found on evidence that five or more persons conjointly committed the offence of robbery or attempted to commit the robbery, a case would fall under Section 391 IPC and would fall within the definition of 'dacoity'. Therefore, in the facts and circumstances, accused can be convicted for the offence under Section 391 IPC punishable under Section 395 IPC."
16. In Raj Kumar @ Raju vs. State of Uttranchal, (2008) 11 SCC 709, following observation has been made "19. It is thus clear that for recording conviction of an offence of robbery, there must be five or more persons. In absence of such finding, an accused cannot be convicted for an offence of dacoity. In a given case, however, it may happen that there may be five or more persons and the factum of five or more persons is either not disputed or is clearly established, but the Court may not be able to SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 13 of 24 record a finding as to identity of all the persons said to have committed dacoity and may not be able to convict them and order their acquittal observing that their identity is not established. In such case, conviction of less than five persons or even one can stand. But in absence of such finding, less than five persons cannot be convicted for an offence of dacoity."
17. This judgment of Raj Kumar @ Raju (supra) was relied upon by Hon'ble Supreme Court of India in case titled "Manmeet Singh Alias Goldie vs. State of Punjab, 2015 (7) SCC 167 and following observation was made:-
"27 A. The above pronouncements do acknowledge the extension of the concept of collective culpability enshrined in Section 149 IPC in Section 396 IPC contemplating murder with dacoity. An assembly of five or more persons participating in the offence is thus the sine qua non for an offence under section 396 IPC permitting conviction of any one or more members thereof even if others are acquitted for lack of their identity. In absence of such an assembly of five or more persons imbued with the common object of committing dacoity with murder, any member thereof cannot be convicted for the said offence irrespective of his/her individual act of murder unless independently and categorically charged for that offence."
18. Therefore, definition of term dacoity clearly prescribes that there must be involvement of 5 or more persons while committing offence of dacoity, then all 5 of them or more persons would be considered to have committed dacoity individually.
SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 14 of 24
19. In the present case, three accused persons have been arrested and sent for trial. It is case of the prosecution that these three persons were aided by two other persons, who had run away from the spot, therefore, in total there were 5 persons which make offence to be considered as 'dacoity' defined in Section 391 IPC, & for which punishment is prescribed under Section 395 IPC.
20. In view of aforesaid pronouncements of Hon'ble Supreme Court of India and High Court, if it is established on record that there were five persons in committing robbery and some of them fled away and could not be arrested, then also conviction of accused persons facing trial can be recorded for offence of dacoity. Therefore, an established presence and involvement of 5 or more persons is essential for committing the offence of 'dacoity', as per Section 391 IPC. In the present case, prosecution has clearly proved that at the time of commission of crime, five persons were involved, & they acted against the complainant (PW2) conjointly, all of them left the bus simultaneously, ran away from the spot, and out of these, three persons were apprehended and arrested by public and police. Further, there is no dispute raised by the defence at any point against involvement of five persons. Even charge is framed under Section 395 IPC, which was not challenged by the accused persons, at any point of time. It is also important to mention that, during trial & cross-examination of witnesses, also, no such suggestion was given to any witness that five persons were not involved in the crime. Thus, submission of Ld. Counsels for SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 15 of 24 accused persons that accused persons can not be convicted for offence under Section 395 IPC, as other two persons were not arrested, does not hold good. My view gets support from the judgments mentioned above.
21. Ld. Counsel for accused Saleem and Asmat has also argued that Section 412 IPC is not made out against accused Asmat as no recovery was effected from accused Asmat. It is admitted case of the prosecution that no recovery was effected from accused Asmat but was effected from accused Mohd. Saleem against whom charge for offence under Section 412 IPC has already been framed. Since, no charge under Section 412 IPC is framed against accused Asmat Ali, there is no requirement of considering this aspect. Ld. Counsel for accused Arshad has not argued legal aspect of maintainability of section 412 against other accused persons.
22. Both Ld. Counsels for accused persons have argued that complainant has not been able to prove the case against accused persons as he does not remember bus number and certain contradictions have cropped up in his examination in chief and cross-examination. It is further argued that other co-passengers of the bus were never contacted by the IO. They were not made witnesses in this case and therefore, this case has not been proved by the prosecution against the accused persons.
23. Ld. Counsel for accused Arshad has argued that complainant was working in Geeta Colony, what was the reason for him to come to Laxmi Nagar, that has not been proved by the complainant, hence, it is a false case. Ld. Counsel for accused SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 16 of 24 persons have also argued that since complainant has not been able to prove how he got money from his employer, therefore, it cannot be said that he was carrying some money or that money was stolen or looted by the accused persons. With these arguments, it was prayed that accused persons be acquitted from the charges levelled against them.
24. I will discuss each and every argument on the facts individually.
25. As regards argument of Ld. Counsel for accused Arshad that why complainant had gone to Laxmi Nagar while he was working in Geeta Colony, I am of the opinion that there is no bar in our country to travel from one place to another as it is a free country and any person or citizen living in this country can travel from one place to other. Secondly, this question has not been put to the complainant at any point of time in his lengthy cross- examination conducted on various dates by Ld. Counsels for accused persons. Therefore, there is no basis of this argument, hence, cannot be accepted.
26. As regards contention of Ld. Counsel for the accused that there are discrepancies in the testimony of PW2 Shri Ram Yadav i.e. in his examination in chief and his cross-examination, that can be explained on two grounds. Firstly, because examination in chief of PW-2 was firstly conducted on 02.06.2017 i.e. after more than five years of the incident. It is common knowledge that after gap of five years, a person may remember only necessary fact i.e. the fact of being robbed, but some other facts regarding time at which it happened and sequence of events may SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 17 of 24 have become dim on his memory because of lapse of time. Secondly, PW-2 was firstly examined on 02.06.2017 and his cross-examination was finally concluded on 03.12.2018 i.e. for more than 18 months, PW-2 was under cross-examination. Some minor discrepancies are bound to arise due to these reasons. My view on this point gets fortified from the decision of Hon'ble Apex Court in Sadhu Saran Singh vs State Of U.P. & Ors, AIR 2016 SC 1160, wherein Hon'ble Apex Court has held as under :
"21. ....While appreciating the evidence of PW1, the Courts must be conscious of the length of time consumed in recording the evidence of the prosecution witness. From a perusal of the evidence of PW1, the High Court was of the opinion that there were discrepancies and deviations in the evidence of PW1. In our considered opinion, the evidence of PW 1, who is an eyewitness who lost three sons in the fateful incident was consistent and there are no major deviations or discrepancies and if at all any minor discrepancies that occurred in the evidence of PW1 might have been due to the long gap between the date of incident and the long delay in examination, more so, those discrepancies are not material in bringing home the guilt of the accused, we find no reason whatsoever to disbelieve his evidence.
27. In view of the aforesaid judgment, I am of the opinion that the discrepancies in the testimony of PW- 2 are not material, which go to the root of the matter and same may be due to the reason that complainant was examined after more than five years of the incident and was under cross-examination for more than 18 months.
SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 18 of 24
28. As regards arguments of Ld. Counsel for accused persons on the point of non-joining of public persons, bus passengers, driver and conductor of the bus, in Aslam & Ors. vs. State, 2010 III AD (Delhi) 133, it has been held that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be ignored that public does not want to get dragged in police and criminal cases and avoids them because of long drawn trials and unnecessary harassment. The Hon'ble Supreme Court also observed in Manish vs. State, 2000(8) SC 29 and in Appabhai and Anr. vs. State of Gujarat, AIR 1998 SC 696 that the courts cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, lest they are compelled to attend police station and Court umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit. For these reasons, it was held that non-joining of independent witness by the IO does not create any doubt on the case of the prosecution. Moreover, non- joining of any independent witness is absolutely no ground to throw away the testimony of the complainant (PW2) who stood the test of cross examination and whose testimony is consistent, trustworthy and reliable.
29. Moreover, it has categorically been submitted by complainant (PW-2) that after taking his money from his pocket, one of the accused whistled and immediately, all the five accused persons got down from the bus and complainant also de-boarded the bus and chased them. Once, accused persons and the complainant had alighted bus at the spot and accused persons SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 19 of 24 were running to get away, there was no occasion for the complainant to note or remember the bus number or for the police to contact fellow passengers of the bus. The route number of the bus has been clearly mentioned by PW-2 in his statement, as 473 and bus being the blue line.
30. Other defence taken by the accused persons are that IO and complainant have not been able to prove from where the complainant got money of Rs.19,000/- and Rs.11,000/- respectively. It is stated by Ld. Counsel for Mohd. Saleem that during course of arguments that it was money belonging to accused Mohd. Saleem and he has been falsely implicated in this case. In the entire cross-examination of PW-2 and other prosecution witnesses, there is not even a single suggestion given to any of the witnesses of the prosecution that money was belonging to accused persons or especially Mohd. Saleem. No defence evidence has been produced or examined by the accused persons in this respect.
31. Cross-examination of the witnesses carried out by Ld. Counsel for the accused persons is only formal and revolves around the fact that complainant does not remember bus number or other bus passengers were not examined or that accused persons were not present in the bus at that time. There is also suggestion given to the complainant and other witnesses that accused persons were not in the bus or even arrested from the spot, but they were arrested from their house and were given beatings by the police. No explanation has been tendered by accused Saleem for recovery of Rs.19,000/- from his possession SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 20 of 24 at the spot in presence of complainant and police. No defence evidence has been led on this aspect by the accused persons. Therefore, defence taken by the accused Mohd. Saleem cannot be accepted as he has failed to prove that money of Rs.19,000/- which was recovered from him is his own money. No such defence has been taken by other accused persons.
32. It is also case of the prosecution that accused Mohd. Saleem and Arshad were beaten by public, when they were trying to run away from the bus. This aspect has been proved by PW-7 Dr. Onkar Singh Tomar, who has stated that accused Mohd. Saleem was having injury on his person and he has told him that he was beaten by public. PW-7 has also stated that accused Arshad was complaining of pain in his right elbow, but he was not having any fresh injury. PW-7 was not cross-examined by Ld. Counsel for accused persons on these aspects. Suggestion given to the Dr. Onkar Singh Tomar was that accused Mohd. Saleem and Arshad had not informed him that he was beaten by the public, which has been specifically denied by the doctor. Even MLCs Ex.PW7/A and Ex.PW7/B clearly mention the alleged history of 'being beaten by public'. Therefore, I am of the opinion that defence taken by the accused persons that accused Mohd. Saleem and Arshad were arrested from their home and were given beating by the police is incorrect as they have not been able to prove the same, rather, prosecution has been able to prove that accused Saleem and Arshad were apprehended from the spot and were given beatings by the public, for which they were treated in LBS Hospital.
SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 21 of 24
33. In the entire case, during cross-examination conducted by Ld. Counsels for the accused persons, it has not been suggested that accused persons were not present at the spot and were lifted from their homes, whereas in the cross-examination of PW-9 Inspector Sudhir Kumar, who is IO of the present case, Ld. Counsel for accused Arshad has himself contradicted his own case by putting following suggestions :
"It is wrong to suggest that complainant has taken some kajal dibbies from the accused, but he was not paying money for the same. It is wrong to suggest that when accused Arshad alongwith his associates objected upon the same, complainant became angry and attacked on them and due to the same, accused persons received injuries. It is wrong to suggest that accused persons took the complainant down from the bus and called the police".
34. It is very relevant cross-examination for the present case, as it in itself shows that accused Arshad Ali has admitted his presence alongwith his associates in the bus. He has also admitted that some quarrel had taken place between him and complainant, which proves presence of complainant alongwith accused persons in the bus. This also proves that both the accused persons and the complainant deboarded bus and accused persons were given beatings by the public. It has further been suggested by Ld. Counsel for accused Arshad that accused SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 22 of 24 persons were willing to give complaint to the police against the complainant, but said suggestion was denied by the IO. No such complaint has been placed or proved on record by accused persons as they did not lead any defence evidence. This very cross-examination was adopted on behalf of the accused Mohd. Saleem and Asmat Ali. Therefore, all the accused persons have relied upon cross-examination of PW-9 Inspector Sudhir Kumar as mentioned above.
35. In Chhedu vs State of Uttar Pradesh, 2000 Cr.L.J 78 (All.) it has been held that where the presence of informant and other witnesses at the time and place of incident was established and their positive evidence regarding the way in which the dacoity was committed found reliable having no previous enmity with accused, no case of false implication established, therefore, conviction of accused under Section 395 was just.
36. For the foregoing discussion, it stands proved on record that complainant and accused persons were present in the bus, they deboarded together, complainant chased and apprehended accused Mohd. Saleem with assistance of public persons, whereas other two accused Asmat Ali and Arshad were apprehended by ASI Digpal (PW5) and ASI Kanwar Pal (PW6), who were patrolling in the area. When complainant shouted chor chor, accused persons were given beatings by the public persons.
37. Prosecution has proved recovery of Rs.19,000/- from possession of accused Mohd. Saleem which has not been disputed by the defence except that this was the money of accused Mohd. Saleem himself, which has not been proved by SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 23 of 24 the accused Mohd. Saleem. No defence evidence has been led by accused Mohd. Saleem in this case. It has nowhere been denied on behalf of accused persons that money of Rs.19,000/- was not recovered from accused Mohd. Saleem.
38. Therefore, in view of my above discussion, I am of the opinion that prosecution has proved its case against all the accused persons beyond reasonable doubt in view of the testimony of PW-2 coupled with testimony of other police officials, cross-examination of PW-9 Inspector Sudhir Kumar conducted on behalf of accused persons.
39. In view of my foregoing discussion, I am of the opinion that prosecution has been able to prove its case against all the accused persons under Section 395 IPC beyond any reasonable doubt. Since recovery of Rs.19,000/- has been effected only from accused Mohd. Saleem, prosecution has also proved its case against him under Section 412 IPC. Accordingly, all the accused persons, namely, Mohd. Saleem, Arshad and Asmat Ali are hereby held guilty under Section 395 IPC and convicted thereunder. Accused Mohd. Saleem is also held guilty and convicted for offence under Section 412 IPC.
Digitally signedSHAIL by SHAIL JAIN Date: JAIN 2024.07.24 16:21:20 +0530 Announced in the open Court (Shail Jain) rd today on 23 July, 2024 Principal District & Sessions Judge East, Karkardooma Courts, Delhi SC No.381/2016; FIR No.108/2012 State Vs. Mohd. Saleem & Ors.; PS : Pandav Nagar Page 24 of 24