Delhi District Court
The State vs . Faisal on 21 February, 2023
IN THE COURT OF SHRI PRASHANT SHARMA
ADDL. SESSIONS JUDGE-02 : SOUTH EAST DISTRICT
SAKET COURT : NEW DELHI
FIR No. : 274/2018
Police Station : Hazrat Nizamuddin
U/Sec. : 394/397/411/34 IPC
In the matter of :-
The State Vs. Faisal
Brief Details Of The Case
Case Number : 611/2018
Offence complained of : U/Sec. 394/397/411/34 IPC
Date of Offence : 23.09.2018
Name of the complainant : Prakash Varshnay
Name of the accused person : Faisal S/o Sh. Mukkaram Ali
R/o Awaragard
Lodhi Flyover
Basti H.N. Din, New Delhi
Plea of the accused : Pleaded not guilty
Final Order : Convicted.
Date of Institution : 10.12.2018
Date of Reserve for judgment : 21.02.2023
Date of Judgment : 21.02.2023
State Vs. Faisal, SC No. 611/2018 Page 1 of 25
JUDGMENT
1. Prosecution story, as per chargesheet, unfolded, when injured Prakash Varshney, came to police station Hazrat Nizamuddin (in short H.N. Din), in the night of 23.09.2018, around 11.30pm, in injured condition. He was taken to JPNATC, AIIMS, Delhi by ASI Dharambir and HC Radhey Lal, who were present in P.S. H.N.Din, in his car bearing No.HR 51 BE 1084 for treatment. Injured showed his inability to give statement, due to pain. ASI Dharambir, collected MLC of injured on 24.09.2018, from JPNATC, AIIMS and later on, came to know that injured was shifted to Metro Hospital, Sector-16, Faridabad, Haryana for further treatment. ASI Dharambir, then reached Metro Hospital, Sector-16, Faridabad where he met injured, who in turn, gave his written complaint.
2. In his written complaint, injured stated that on 23.09.2018, he was going towards New Delhi Railway Station, from his home, in his car bearing no. HR 51BE 1084, Alto. Around 11.15PM, when he reached Neela Gumbad, Mathura Road, he became suspicious that his car tyre had flatten out. So, he stopped his car near Mazaar/Dargah, Khusro Park, near Flyover and came out of the car. Suddenly, two boys came there. One of the said boys was tall and other boy was short in height. They tried to get inside the car of injured and in the process, started pushing injured when injured opposed. The tall guy threatened injured to hand over every article in possession of injured and in the alternative, injured will be attacked by knife. The said tall boy snatched State Vs. Faisal, SC No. 611/2018 Page 2 of 25 away Samsung Galaxy S8, Black Colour bearing SIM No.9650391060. That tall boy asked the shorter boy to snatch away golden chain of injured being worn by injured in his neck and attacked injured with knife. Consequently, shorter boy attacked injured with sharp edged article on his neck and right hand. Injured shouted and both the said boys fled away from the spot. Based on said statement, injured requested legal action to be taken against the said assailants. Consequently, ASI Dharambir got FIR in question registered under Section 394/397/34 IPC and investigation ensued.
3. During investigation, based on secret information, ASI Dharambir conducted raid near Mazaar, New Delhi Railway Station, Nizamuddin on 24.09.2018 and apprehended accused in question.
4. Both accused persons made disclosure statements, on interrogation, regarding commission of crime, as alleged by injured. One of the said boys was Sonu Khan. Accused Faisal was shorter in height, as per the description given by injured and from him, one black colour samsung S8 Galaxy Phone was recovered from right pocket of nicker/half pant, which had IMEI no.358057081160853. That mobile phone was seized through a seizure memo. After preparing arrest memo, personal search memo and other documents, it was found that one of the said assailants was child in conflict with law. Both Faisal and Sonu Khan were identified by complainant, during TIP proceedings. CAF and CDR of robbed mobile phone of injured were obtained and State Vs. Faisal, SC No. 611/2018 Page 3 of 25 details of the same reflected that mobile phone was in roaming network in Delhi, on the day and time of occurrence in question. That mobile phone was released on superdari as per the directions of the concerned court. Details of previous criminal antecedents of accused Faisal were collected. Statements and supplementary statements of witnesses were recorded. After completing investigation, chargesheet was filed against accused Faisal under Section 394/397/411/34 IPC.
5. Co-accused "S" was declared Child In Conflict With Law during investigation, as per law and was sent to Juvenile Justice Board, for trial.
6. Charge-sheet was filed against accused Faisal, before Ld. Metropolitan Magistrate.
7. After filing of the chargesheet, Ld. Metropolitan Magistrate took cognizance of the offences and summoned accused Faisal. Proceedings under Section 207 Cr.P.C were concluded and then matter was committed to this court as per law.
8. Consequent, to the receiving of this matter, arguments on charge were heard and based on the contents of chargesheet, accused Faisal was charged with offences punishable u/s 394/397/411 IPC. Accused did not plead guilty and claimed trial. Matter was then fixed for prosecution evidence.
State Vs. Faisal, SC No. 611/2018 Page 4 of 259. Prosecution examined seven witnesses in total.
10. PW1- Prakash Varshney being complainant and victim deposed facts regarding incident dated 23.09.2018 in terms of prosecution story in his examination-in-chief. Same is not repeated here for the sake of brevity. He identified his complaint Ex.PW1/A and site plan Ex.PW1/B prepared at his instance by the IO, bearing his signatures at point A. He also identified TIP proceedings Ex.PW1/C, bearing his signatures at point A. He deposed that his mobile phone was released as per order of the concerned court and he had furnished indemnity/ surety bond Ex.PW1/D bearing his signatures at point A. He identified Punchnama Ex.PW1/E bearing his signatures at point A prepared for the release of his phone. He identified photographs of his mobile phone as Ex.PW1/X and Ex.PW1/Y. He identified attested photocopies of mobile bill of the robbed mobile, RC of his car and his Aadhar Card as Ex.P-1 to Ex.P-3, collected by IO during investigation. He identified his mobile phone as Ex.P-4. He identified accused in the court. His testimony is appreciated in detail in subsequent part of the judgment.
11. PW2- ASI Bedi Ram deposed that he had put his endorsement on the rukka, brought by ASI Dharamvir on 24.09.2018 and had registered FIR in question. He identified his endorsement on the rukka as Ex.PW2/A and FIR in question as Ex.PW2/B. He identified certificate u/sec. 65B Indian Evidence Act, issued by him with respect to said FIR as Ex.PW2/C. All the said documents noted his signatures at point A. State Vs. Faisal, SC No. 611/2018 Page 5 of 25 After registration of FIR, he had handed over the same to HC Radhe Lal for further handing it over to ASI Dharamvir.
12. PW3- Ajay Kumar, Nodal Officer, Bharti Airtel Ltd., brought attested copy of CAF, CDR and Caller ID Chart with respect to mobile phone of complainant bearing no. 9650391060. He identified the said documents as Ex.PW3/A to Ex.PW3/C. He identified certificate u/sec. 65 B Indian Evidence Act, with respect to electronically generated CDR Report as Ex.PW3/D. As per him, based on report, SIM in question was issued in favour of complainant.
13. PW4- HC Radhe Lal deposed facts in tune with prosecution story, as mentioned in charge-sheet. Same are not repeated here for the sake of brevity. Apart from that, he identified seizure memo of mobile phone as Ex.PW4/A, disclosure statement of accused Faizal as Ex.PW4/B, arrest memo of accused as Ex.PW4/C and personal search memo of accused as Ex.PW4/D, all noting his signatures at point A. He identified mobile phone of complainant as Ex.P-4.
14. PW5- Heena Kauser, Junior Resident, Apollo Hospital, Sarita Vihar, identified MLC of injured/ victim, prepared by her as Ex.PW5/A bearing her signatures at point A. State Vs. Faisal, SC No. 611/2018 Page 6 of 25
15. PW6- SI Anil Beniwal deposed that on 02.11.2018, present case file was handed over to him for further investigation. He had produced accused Faizal in the court and had prepared charge-sheet, which he filed in the court after completing investigation.
16. PW7- ASI Dharambir had deposed that on the intervening night of 23/24.09.2018 at about 11.30 pm, when he along-with HC Radhey Lal were standing outside the gate of police station Hazrat Nizamuddin, one person came to them and blood was oozing from his body as he was in injured condition. He revealed his name as Prakash Varshney. He verbally told him that one person had snatched his phone and hit him on his neck and arm with knife or knife like sharp edged weapon. Thereafter, PW7 was admitted in the hospital. He further had deposed that he collected MLC of said injured. He gave him complaint in writing. On the next day, he was discharged from that hospital and admitted to Metro Hospital, Faridabad. He prepared rukka Ex.PW7/A and FIR was got registered.
17. PW7 further had deposed that during investigation, they reached Himayun Tomb where one secret informer met them and informed that two persons involved in the last night incident, were standing on the way of Nizamuddin Service Road towards Railway Station. Thereafter, he along- with secret informer and HC Radhey Lal reached near the said spot and on the pointing out by secret informer, they apprehended both of accused persons and they revealed their name as Faisal and Sonu. On personal search, one mobile phone was recovered from his possession. His disclosure statement is Ex.PW4/B. Accused Faisal arrested vide memo Ex.PW4/C and his personal search was done vide memo Ex.PW4/D. He further deposed that State Vs. Faisal, SC No. 611/2018 Page 7 of 25 on 26.09.2018, accused Faisal was produced in muffled face in the court and during TIP proceedings, he was correctly identified by this witness. He identified site plan Ex.PW1/B.
18. After examining above witnesses, prosecution closed its evidence and matter was fixed for recording of statement of accused persons.
19. Under Section 313 Cr.P.C, all the incriminating evidence was put to accused persons separately which they denied. They claimed that prosecution witnesses were interested witnesses and they were falsely implicated in his case. They claimed that all the documents were prepared by police officials in police station regarding which they were not aware. They did not prefer to lead defence evidence. Consequently, matter was fixed for final arguments.
20. After hearing final arguments, matter was listed for judgment.
21. Before appreciating the evidence, brought on record by the prosecution, I must mention here the law of appreciating evidence of the witnesses. Hon'ble Delhi High Court in case titled as Satish Bombaiya Vs. State, 1991 JCC 6147, had observed:
"While appreciating the evidence of a witness, approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed then undoubtedly it is necessary for the court to State Vs. Faisal, SC No. 611/2018 Page 8 of 25 scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether earlier evaluation of evidence is shaken as to render it unworthy of behalf. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here and there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter, would not ordinarily permit rejection of the evidence as a whole. The main thing to be seen is, whether those inconsistencies go to the root of the matter or pertained to the insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the inconsistencies in the evidence. In the latter, however no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases."State Vs. Faisal, SC No. 611/2018 Page 9 of 25
22. So, in the wake of above mentioned law, evidence brought on record, has to be read as a whole and has to be appreciated as a whole. Minor discrepancies over trivial matters and hyper technical approach while appreciating evidence, has to be avoided. It has to be seen whether shortcomings highlighted by accused, go to the root of the matter and if it so goes, then in that eventuality only evidence has to be discarded.
23. Keeping in mind aforesaid tenet, I am proceeding further and appreciating the evidence, brought on record by the prosecution.
Appreciation of Evidence of Complainant/ Victim
24. PW1- Prakash Varshnay was the complainant in this case. He was also victim to the alleged incident. In his testimony, he categorcially deposed that accused Faizal alongwith co-associate (Child In Conflict With Law, in short 'CCL'), had manhandled with him. As per him, CCL had snatched his mobile phone Ex.P-4 and accused Faizal had attacked him with knife like weapon, on his neck and on his right arm, for the purpose of looting/ robbing him. Besides that, he had identified accused Faizal in TIP proceedings and had identified those proceedings as Ex.PW1/C. Not only that, he identified accused Faizal in the court being one of the assailant.
State Vs. Faisal, SC No. 611/2018 Page 10 of 2525. PW1 was cross-examined at length by counsel for accused. He was asked question viz., distance between his home and New Delhi Railway Station, which was not relevant. He refuted the suggestions regarding accused Faizal not involved in alleged incident.
26. Much of the cross-examination of PW1, rested upon the defence that PW1 was told about the identity of accused Faizal by the IO prior to TIP proceedings and that case was planted on accused Faizal. PW1 categorically deposed that IO had not shown him the three persons who were apprehended by IO during investigation prior to TIP proceedings. No suggestion was given by accused to PW1 regarding the reason, as to why he had identified accused Faizal being one of the assailants. In other words, accused Faizal by way of suggestions did not put any fact which could have indicated that PW1 was under the influence of IO or anybody else, for the purpose of identifying accused Faizal, being one of the culprits. I failed to understand, as to why PW1, had named accused Faizal being one of the culprits. Accused Faizal, as such did not remove the said doubt, by cross-examining PW1. So, in such circumstances, I conclude that PW1 being a bonafide aggrevied preson had identified accused Faizal in the court being one of the assailants.
27. Besides that, PW1 identified site plan Ex.PW1/B, TIP proceedings Ex.PW1/C, Indemnity Bond for release of his mobile phone Ex.PW1/D, Punchnama of the said phone as Ex.PW1/E, photographs of his mobile phone as Ex.PW1/X and Ex.PW2/Y and the State Vs. Faisal, SC No. 611/2018 Page 11 of 25 said phone as Ex.P-4, in his testimony. Not only that, he also placed on record photocopies of his mobile bill and other related documents as Ex.P-1 to Ex.P-3, which only indicated that he had purchased the said phone, which was robbed by accused Faizal with CCL.
28. MLC of injured Ex.PW5/A, noted that injured sustained incised wounds on his neck which were simple in nature. The said MLC was dated 24.09.2018 and it corroborated the version of injured.
29. Besides identifying accused in the court, injured had identified him during TIP proceedings as per record Ex.PA-1 (colly). Those proceedings were admitted by accused u/sec. 294 CrPC, regarding which his statement was recorded on 19.01.2023. The said admission also proved the version of PW1.
30. Besides that, PW1 categorically refuted the suggestions viz., that he was shown photographs of accused by IO prior to TIP proceedings, that accused was not present at the spot on the day of incident, that he was deposing falsely, that accused was falsely implicated in this case and that he had not sustained any injury on the day of incident. Said refutal on his part, only probablized prosecution story.
31. In his cross-examination, PW1 refuted the suggestion that due to darkness, he could not have seen the face of accused. He categorically explained details of incident in question in his cross-examination by State Vs. Faisal, SC No. 611/2018 Page 12 of 25 deposing facts viz., that he had seen two persons coming towards him on the day of incident, that those persons had threatened him to handover his belongings, that he was sitting on the driver seat in his car, that he was assaulted from the right side, that one of the assailants had caught him from his neck by inserting his head inside the car and dragging him, that he had raised alarm, that both accused persons fled away and that he was dranched in blood. The fact that injured had sustained injuries leading to bleeding, became all the more probable as his photograph in his MLC Ex.PW5/A reflect that he was bleeding at the time when his MLC was prepared. The above mentioned facts only probablized his reasonable and prudent conduct.
32. PW1 deposed in his cross-examination that IO had not taken his cloths, that police officials in PCR did not ask him to make call at 100 number and that IO had not asked him about the description of accused persons. All the said replies, were such that PW1 cannot be blamed for the same. It was the IO, who had to perform his duty of investigating the matter by collecting evidence, with respect to above mentioned aspects. If IO had not dealt with above mentioned aspects, then said inaction cannot make testimony of PW1, doubtful.
33. Finally, the fact that PW1 was using mobile phone bearing no. 9650391060, on the day of incident, was proved by CDR and CAF record furnished by PW3 Ajay Kumar, Nodal Officer, Bharti Airtel Limited, who was deposed that above mentioned mobile number was State Vs. Faisal, SC No. 611/2018 Page 13 of 25 issued in favour of PW1 by his company. That record Ex.PW3/B and Ex.PW3/C was supported by certificate u/sec. 65B Indian Evidence Act, viz. Ex.PW3/D. That witness was not cross-examined by accused and said documents relied by this witness were also not challenged. Therefore, testimony of PW3 further probablized the case of prosecution.
34. The net result is that accused Faizal failed to make enroads in the testimony of PW1, who stood the acid test of cross-examination. I believed his testimony to be trustworthy and reliable.
35. PW2- ASI Bedi Ram proved the endorsement on the rukka Ex.PW2/A and FIR in question as Ex.PW2/B, through his testimony as he had prepared the same. He refuted the suggestion that he had not registered FIR in question and that he had deposed falsely. Therefore, I believed his testimony to be trustworthy and reliable.
36. PW4- HC Radhe Lal deposed facts, in tune with prosecution story. He identified mobile phone of complainant and certain documents, prepared by IO during investigation, in his examination-in- chief. In his cross-examination, he did not remember the exact time when he had reached at AIIMS Hospital with injured, the exact time when FIR in question and whether any blood was lying inside the vehicle of complainant. Those facts were not relevan for the purpose of adjudication of this case. He refuted the suggestions of accused Faizal State Vs. Faisal, SC No. 611/2018 Page 14 of 25 being apprehended from Nizamuddin Dargah on the intervening night of 23/24.09.2018 and that nothing was recovered from accused Faizal. He refuted the suggestion that he had not joined the investigation, as deposed by IO. As such, no material fact was culled out by accused by cross-examining him. I believed his testimony to be trustworthy and reliable.
37. PW5- Dr. Heena Kuser, identified the MLC of injured prepared by her as Ex.PW5/A. The said MLC noted injuries on the neck of complainant. It was prepared on 24.09.2018 at 12.38 am. The said nature of injuries and the time of preparation of said MLC, supported the prosecution version. To that extent, I believed her testimony.
38. PW6- SI Anil Beniwal was a formal witness who had filed charge-sheet after completion of investigation. He was not cross- examined by accused and I believed his testimony to be trustworhty and reliable.
39. PW7- ASI Dharamvir was the IO in this case. In his examination- in-chief, he deposed facts in tune with prosecution story. He gave details of the manner in which he had conducted investigation, as mentioned in charge-sheet. Same are not repeated here for the sake of brevity. He also identified documents he had collected and prepared during investigation. Same also needs no repetition. His examination- in-chief as such did not attract any falsehood.
State Vs. Faisal, SC No. 611/2018 Page 15 of 2540. In his cross-examination, he was asked questions viz., the manner in which the victim had come to police station, the fact that no first aid was given to victim when he met police officials in police station and the exact time when victim was discharged from hospital. Those aspects were not relevant, for the purpose of doubting veracity of his testimony.
41. PW7 deposed that based on secret information, he had arrested accused, on 24.09.2018, i.e. on the day of incident only. Accused was arrested on the way, Nizamuddin Service Road towards Railway Station. That fact was not challenged by accused, by way of cross- examination.
42. The documents prepared by PW7 were not objected to by accused, either on the mode of proof and/ or admissibility. Therefore, said documents referred by PW7 were proved beyond reasonable doubt.
43. Coupled with the same, PW7 deposed that on personal search of accused, one mobile phone was recovered. That phone was identified by complainant, during investigation. The fact that said recovered mobile phone belongs to PW1/ complainant, was proved by the testimonies of PW1 and that of PW7. Further, ownership documents of said mobile phone Ex.PW3/A, which were accompanied with identity proof of PW1, only supported prosecution story.
State Vs. Faisal, SC No. 611/2018 Page 16 of 2544. PW7 conceded in his cross-examination that he was not able to recover knife during investigation, that he had not seized blood stained cloths of accused and that no public person was joined during investigation when case property was recovered and seized. As such, those aspects, even if believed to be true, only indicated that there were shortcomings in his investigation. In the wake of trustworthy and reliable testimony of injured, said shortcomings or defective investigation, by itself did not make the prosecution story doubtful. In other words, said defective investigation, did not make testimonies of rest of prosecution witnesses, doubtful. The said appreciation is done, in the wake of law laid down by Hon'ble Apex Court in case titled as State of Karnataka Vs. K. Yarappa Reddy, (1999) 8 SCC 715, wherein, following observations were made :-
In case of Station House diary found defective then whether it can be put against the prosecution case ? - Held - If the other evidence, on scrutiny, is found credible and acceptable, should the court be influenced by the machinations demonstrated by the Inves-tigating Officer in conducting investigation or in preparing the records so unscrupulously. It can be a guiding principle that as investigation is not the solitary area for judicial scrutiny in a criminal trial, the conclusion of the court in the case cannot be allowed to depend solely on the probity of investigation. It is well settled that even if the investigation is illegal or even suspicious the rest of evidence must be scrutinized independently of the impact of it. Otherwise criminal trial will plummet to that level of the investigating officers ruling the State Vs. Faisal, SC No. 611/2018 Page 17 of 25 roost. The Court must have predominance and pre-eminence in criminal trials over the action taken by investigating officers. Criminal justice should not be made the casually for the wrongs committed by the investigating officers in the case. In other words, if the court is convinced that the testimony of a witness to the occurrence is true the court is free to act on it albeit investigating officer's suspicious role in the case.
45. So, testimony of PW7, is found by me to be trustworthy and reliable.
46. Coming to the probable defence of accused, I find that accused did not lead any defence evidence. In response to charges framed against him, he raised the defence of innocence. In response to incriminating evidence put to him u/sec. 313 CrPC, he explained that his elder brother Harun had some fight with his friends. Thereafter, police arrested him in this case and other cases, considering the conduct of his brother.
47. The above explanation was not put to test, by way of suggestions, when prosecution witnesses were examined. No evidence was led by accused in support of above explanation. Therefore, said explanation of accused did not absolve him from this case.
48. Prosecution therefore, was able to lead trustworthy and reliable evidence. Accused failed to create any doubt regarding said prosecution evidence by cross-examining prosecution witnesses.
State Vs. Faisal, SC No. 611/2018 Page 18 of 25Arguments advanced by Ld. Counsel for accused.
49. Counsel for accused argued that accused is entitled to be acquitted in this case. She advanced certain arguments in support thereof. Those arguments are appreciated by me, in my subsequent paragraphs.
a) Unreasonable conduct of complainant- Ld. Counsel for accused argued that complainant after alleged incident did not call police at 100 number. He did not go to hospital, rather after roaming around for half an hour, he reached at concerned police station from where he was taken to hospital by police.
a.1) Said arguments are not tenable. Reason being, that no suggestion was given by Counsel for accused while cross-examining complainant, highlighting his said unreasonable conduct. No explanation was sought from complainant regarding his said conduct. It is trite to mention here that every person facing a particular situation reacts differently. There is no strait jacket formula, in which a person has to react, when he/ she faces the said situation. In this case, complainant was attacked by accused and one CCL. It was not situation that injuries sustained by complainant were such that he had become unconscious or that his cogntive faculty had taken some serious brunt. His MLC Ex.PW5/A revealed that he has sustained simple injury on his neck and right arm. He was discharged on same day when he was admitted to hospital. So, in such circumstances, the fact that he opted to approach concerned police station by driving his car, was not unreasonable.
State Vs. Faisal, SC No. 611/2018 Page 19 of 25b) Doubtful investigation- Ld. Counsel for accused argued that IO did not take pictures of the car which was used by complainant during investigation. He did not collect blood sample of injured and did not collect pictures of the car having blood of complainant. So, his investigation was doubtful and indicated that accused was falsely implicated in this case. The benefit of the same, as per Ld. Counsel for accused must be given to accused.
b.1) Again said arguments are not legally tenable. Reason being, that I have already appreciated and concluded that the above mentioned inaction, so to say, on the part of IO did not absolve the substantive evidence of complainant, wherein, complainant had identified accused and had deposed the details of incident, insync with prosecution story. The said doubtful investigation, even if believed to be so, by itself cannot be the sole ground for setting accused scotfree.
c) Identity of accused known to complainant - As per Ld. Counsel for accused, it has come in the cross-examination of complainant that on the next day of incident, around 8.30 am - 9 am, IO had informed him that three persons were arrested. Further, complainant admitted in his cross-examination that said information was received by him, prior to recording of his statement. So, it was all the more probable that accused was known to complainant, prior to recording of his statement and therefore, this case was planted on accused.
State Vs. Faisal, SC No. 611/2018 Page 20 of 25c.1) Above arguments again did not hold water. Reason being, that no suggestion was put by Ld. Counsel for accused to complainant, to the effect that complainant knew about the identity of accused prior to lodging of FIR in question and that complainant had deposed againt accused, under the influence of police. Record reveal that complainant in his statement Ex.PW1/A had claimed that he can identify the assailants who had attacked and looted him on the night of 23.09.2018. Accused was arrested on 24.09.2018 at 6.40 pm, as per his arrest memo Ex.PW4/C. Even if it is believed that complainant was informed about identity of accused, then also, I failed to understand as to why complainant had identified accused in TIP proceedings and in the court. Ordinarily, no reasonable prudent person would identify an innocent, for wrong doing of other person. Counsel for accused failed to carve out any exception to said general presumption, based on human conduct.
d) Weapon of offence not recovered - Ld. Counsel for accused argued that weapon of offence was not recovered and therefore, accused must be acquitted.
d.1) That argument is not tenable as non-recovery of weapon of offence, by itself is not ground for acquitting accused. Reason being that, recovery of weapon used by accused to commit offence is not a sine qua none for conviction, when there is direct evidence of eye witness. Reliance in this regard is placed upon case law titled as State Vs. Lely @ Manikandan 2022 LiveLaw (SC) 851.
State Vs. Faisal, SC No. 611/2018 Page 21 of 25e) Identity of accused doubtful - Ld. Counsel for accused argued that complainant had not claimed that he had seen the face of assailants who committed alleged crime. He did not depose in his testimony about the body type of said assailantsand did not give details of the face and body type of assailants to IO. Further, complainant in his cross-examination had deposed that it was complete dark at the place of incident and in such situation, accused alongwith CCL had robbed him within 2-2½ minutes. So, there was no possibility of complainant seeing the faces of accused and CCL.
e.1) Above arguments again are not tenable. Reason being, that Ld. Counsel for accused failed to appreciate possibility of light coming from different sources. In order to explain the same, I have to refer to the circumstances in which incident in question had taken place.
e.2) As per the deposition of complainant, on the day of incident, he was driving his car, which started bubbling. For checking puncture in the car, he stopped his car and got down from his car. Then he noticed accused and CCL, coming from the side of Mazar (Dargah). So, complainant had the occasion and time to see accused and said CCL. It was not the situation that accused and CCL had appeared at the spot, just like that, without knowledge and attention of the complainant. Coupled with the same, when complainant had stopped his car, there was every possibility that headlights of the said car were in switched on mode. So, complainant could have seen the faces of accused and CCL State Vs. Faisal, SC No. 611/2018 Page 22 of 25 in said light coming from headlights of the car. Further, it was not the situation that there was no light inside the car. It was also not the situation that it was a night with no moon. It was also not the situation that there was no street light or light coming from some distant source. The site plan Ex.PW1/B reveal that incident in question had taken place on a public way, near roundabout. Possibility of vehicles coming and going from the place of incident cannot be ruled out. Lights coming out from the said vehicles, could have helped the cause of complainant. Ld. Counsel for accused did not cross-examine on all those aspects for the purpose of ruling out possibility of light coming from said sources. So, in such situation, it cannot be concluded that complainant had no occasion to see the faces of assailants including accused. Infact, there was no suggestion to the effect that complainant had not seen the faces of accused and CCL on the day of incident, due to darkness. So, identification of accused by complainant was not doubtful.
f) Doubtful recovery of mobile phone from accused - As per Ld. Counsel for accused, the IMEI Number of the mobile phone robbed from complainant, as mentioned in seizure memo Ex.PW4/A was 358057081160853 but in CDR record Ex.PW3/B, the IMEI Number of the mobile phone seized by police is 358057081160850. So, both the said IMEI numbers do not match and said mobile phone was planted.
State Vs. Faisal, SC No. 611/2018 Page 23 of 25f.1) The above issue, as such did not make out a ground for acquittal. Reason being, that last digit of IMEI Number is spare digit and according to GSM specification it should be transmitted as "0". ..................the last number of IMEI Number is a check digit which is calculated according to LUHN Formula. The check digit shall not be transmitted to the network. The check digit is a function of all other digits in the IMEI Number. The purpose of the same is to help guard against the possibility of incorrect entries to the CEIR and EIR equipment. Hence, the difference in the last digit which is the check digit of IMEI Number, is not material and does not goes to the root of the case of prosecution. Reliance in this regard is placed upon case law titled as State of NCT of Delhi Vs. Navjot Sandhu, 2005(11) SCC 600.
f.2) So, difference in last digit of IMEI Number as highlighted by counsel for accused, in this case, was no material and based on the same, no relief can be granted to accused.
Offences Made Out
50. Based on trustworthy and reliable prosecution evidence, I find that :-
a) It was proved beyond reasonable doubt that accused on 23.09.2018, around 11.15 pm, at Zakir Hussain Marg, Khusro Park Corner, Mazar Road, Near Neela Gumbad Gole Chakkar, New Delhi, had committed robbery of mobile of phone of complainant, in State Vs. Faisal, SC No. 611/2018 Page 24 of 25 furtherence of common intention of CCL, by using deadly weapon, causing simple injuries to complainant/ PW1. Therefore, he committed offence punishable u/sec. 394 IPC. Accused is convicted for the offence punishable u/sec. 394 IPC. Accused is acquitted from the offence punishable u/sec. 397 IPC, as victim has sustained simple injuries only, as per MLC of injured.
b) That accused was found in possession of mobile phone of complainant, which he received dishonestly, knowingly that it was a stolen property on 24.09.2018, at New Railway Station Road, East Nizamuddin, New Delhi and therefore, he committed offence punishable u/sec. 411 IPC. Accused is convicted for the offence punishable u/sec. 411 IPC.
Announced in the Open Court Today [PRASHANT SHARMA] ASJ-02, South-East/Saket/Delhi 21.02.2023 State Vs. Faisal, SC No. 611/2018 Page 25 of 25