Delhi District Court
State vs . on 10 October, 2019
IN THE COURT OF SH. ASHUTOSH KUMAR, ADDITIONAL SESSIONS
JUDGE04 (NORTH), ROHINI COURTS, DELHI
Session Case No. 57880/2016
CNR No. DLNT010007602012
State Vs.
Sher Khan
S/o Sh. Kalu Khan
R/o H.No. 10, VillageKureni,
Narela, Delhi.
FIR No. : 83/2012
Police Station: Narela
Under Sections: 307/392/394/397/34 IPC
Date of committal to Sessions Court :25/06/2012
Date of institution : 03/07/2012
Date of Argument : 09/10/2019
Date of reservation of order : 09/10/2019
Date on which Judgment pronounced : 10/10/2019
JUDGMENT
1. Briefly stated, case of the prosecution is that on 16/02/2012, DD no. 27A was recorded at PS Narela on receipt of information from Ct Vijay that one Shintu, son of Shiv Kumar, R/o Village Khiwai, Thana Jaipavpur, District Nalanda, Bihar, has been admitted in SRHC hospital by his friend Pradeep and Shintu has sustained injuries in a quarrel at DSIDC. The contents of said DD were telephonically conveyed to SI Rajbir Singh for taking necessary action. Accordingly SI Rajbir Singh along with Ct Karan Singh reached at the said hospital and collected MLC of Shintu, wherein alleged history of "stab injury" was mentioned and opinion on the nature of injury was reserved and the said injured was opined SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 1 of 18 to be fit for statement. Since Shintu was in pain, therefore he could not get his statement recorded. At the spot, no eyewitness was met. Accordingly keeping in view the circumstances, FIR of the present case was got registered u/s 324 IPC.
2. On 01/03/2012, investigation of the present case was marked to SI Mahabir. Accordingly SI Mahabir recorded statement of injured Shintu, wherein he stated that on 16/02/2012, at about 10.00 p.m., after having meals at his home, he was going to his factory. He further stated that when he reached near ' Peer Baba' Park, DSIDC Narela, two boys were standing there and when he was passing from near them, then both held him from his arms and tried to take his search. He further stated that he made himself free and ran away and at some distance, one more boy was there on a motorcycle who surrounded him and stabbed him. He further stated that in the meantime, aforesaid two boys also came there and they forcibly snatched Rs. 400/ and one mobile phone GFive having No. 9958520732 from his pocket and ran away after sitting on the said TVS motorcycle. He further stated that all the said boys were aged about 20/25 years, out of which one was of well built and the other two were of normal built. He further stated that on receipt of information, Pradeep (munshi of the factory) took him to Raja Harishchandra Hospital, where he was medically treated. He further stated that he can identify the said boys.
3. On 03/03/2012, SI Mahabir Singh prepared site plan of the place of occurrence at the instance of injured/victim Shintu. Information regarding arrest of accused Sher Khan @ Sheru and JCL "N" & "C" (particulars including complete names of JCLs are already known to the accused Sher Khan and not mentioned here to protect identity) by Anti Snatching Cell (OD) vide DD no. 7 dated SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 2 of 18 01/03/2012, u/s 41.1 (b) (d)/102 Cr.P.C., who made disclosures regarding their involvement in the present case, was received by SI Mahabir Singh. Accordingly on 03/03/2012, SI Mahabir got issued production warrants of the said accused from the concerned Court for 06/03/2012. On 06/06/2012, after taking permission of the Court, all the aforesaid three accused were interrogated and they were formally arrested in the present case. They were produced in muffled face before the ld. Link MM for the purpose of conducting of their TIP, but they refused to participate in the TIP proceedings. Their one day PC remand was obtained from the concerned Court and efforts were made to recover the robbed mobile phone but the same could not be recovered. All the three accused pointed out the place of occurrence i.e. Gali D Block, DSIDC Narela, 'Peer Baba wale' Park & place in front of D1512 power house. On 07/03/2012, efforts were made to recover the robbed mobile phone in the area of DSIDC and during this period complainant had identified the accused persons as the ones who had committed the incident and stabbed him. He further identified accused Sher Khan as the one who stabbed him and accused "N" and "C" as the one who had snatched his cash and mobile phone. The weapon of offence i.e. knife and TVS motorcycle No. DL8SAH8634 used in the commission of offence of the present case, were already recovered by SI Ajay Karan Sharma of Anti Snatching Cell on 29/02/2012 at the instance of accused Sher Khan @ Sheru.
4. Result on the MLC of injured was obtained and injury was opined to be dangerous in nature. Accordingly Section 307/397 IPC were added.
5. During investigation, on 14/05/2012, notice u/s 133 M.V. Act was issued to Gyanender, S/o Sh. Sadhu Ram, R/o Khasra no. 407/8, Dagdi wala SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 3 of 18 Mohalla, Pana Udhyan, Narela, Delhi, who was the registered owner of motorcycle no. DL8SAH8634, who in his reply has stated that on 10/02/2012, Kalu Khan, resident of H.No. 10, Village Kureni, Narela, Delhi, took the said motorcycle for his personal work and did not return the same till then. On inquiry, Kalu Khan disclosed that on 16/02/2012, the aforesaid motorcycle was being driven by his son Sherkhan @ Sheru. SI Mahabir Singh recorded statements u/s 161 Cr.P.C. of witnesses.
6. On 14/05/2012, it was revealed that accused "C" was less than 18 years. Accordingly he was transferred to 'Bal Sudhar Grah', who disclosed his father's name and village address. His school certificate was obtained, wherein his date of birth was mentioned as 10/11/1995 and accordingly as per the direction of concerned Court given on 25/05/2012, JCL "C" was produced before JJB on 28/05/2012.
7. On completion of investigation, chargesheet u/s 307/392/394/397/34 IPC was filed against accused Sher Khan and JCL "N" before the concerned Magisterial Court on 28/05/2012. The present case against accused Sher Khan was committed to the Court of Sessions on 25/06/2012 and was received on assignment by this Court on 03/07/2012. It is pertinent to mention here that accused "N" was declared juvenile vide order dated 28/09/2012 by the ld. Predecessor.
8. Vide order dated 08/10/2012, charges u/s 307/34 IPC & u/s 392, 394/34 IPC and u/s 397 IPC were framed against accused Sher Khan, to which, he pleaded not guilty and claimed trial.
SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 4 of 189. In order to prove its case, prosecution has examined 18 witnesses in all. The details of said witnesses are as under: S.No Name of prosecution witness Purpose of examination .
1 PW1 HC Ravinder Kumar Qua the factum of arrest of accused Sher Khan along with JCL "N" & "C" by the Anti Snatching Cell, Outer District Cell vide kalandara u/s 41.1. Cr.P.C.
and recovery of motorcycle make TVS & knife from accused Sher Khan.
2 PW2 Shintu Prasad, victim Qua the incident in question.
3 PW3 Pradeep Kumar Who proved the factum of removing the injured/victim to SRHC hospital.
4 PW4 Dr. Avdhesh Kumar Bhagat, Who proved MLC of injured Shintu Ex.
Medical Officer, SRHC Hospital, PW4/A. Narela.
5 PW5 Dr. Vineet Singh, SR Who proved the factum of examining (Surgery), SRHC Hospital, Narela injured/Victim Shintu Prasad in Surgery department and proved his observation at portion X to X1 on MLC Ex. PW4/A. 6 PW6 HC Parvinder Kumar, duty Who proved DD no. 27A Ex. PW6/A. officer 7 PW7 Gyanender, registered Who proved the factum of giving the owner of motorcycle n o. said motorcycle to father of accused DL8SAAH8634 Sher Khan on his request, which was not returned to him.
8 PW8 SI Rajbir Singh Qua the initial part of investigation conducted by him.
9 PW9 HC Bharat Singh Who proved certificate u/s 65B Indian Evidence Act Ex. PW9/C qua registration of FIR. SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 5 of 18 10 PW10 Ct Avran, witness to Who deposed about the investigation investigation conducted in his presence. 11 PW11 Ct Amit Kumar, police He proved arrest of accused Sher Khan witness vide memo Ex. PW11/B, conducting of his personal search vide memo Ex. PW11/C and making of disclosure statement by accused Sher Khan vide Ex PW11/A in his presence. 12 PW12 Deepak Kumar,LDC, Who produced the record pertaining to Rohini Transport Authority, ownership of motorcycle no. DL8SAH Sector16, Delhi. 8634 Ex. PW12/A. 13 PW13 Sh. Manish Khurana, the Who proved TIP proceedings of then ld. MM. accused Sher Khan Ex. PW13/B on application of IO Ex. PW13/A and providing of copy of TIP proceedings to IO vide application Ex. PW13/C. 14 PW14 Inspector Mahabir Singh, Who proved the subsequent investigating officer investigation conducted by him. 15 PW15 HC Sunil Kumar Qua the factum of arrest of accused Sher Khan along with JCL "N" & "C" by the Anti Snatching Cell, Outer District Cell vide kalandara u/s 41.1. Cr.P.C. and recovery of motorcycle make TVS & knife from accused Sher Khan. 16 PW16 Dr. Munish , SR (Surgery), Who proved the discharge summary of LNJP Hospital, New Delhi. victim/injured Shintu Prasad Ex. PW16/A prepared by Dr. Arshad 17 PW17 HC Rajesh, MHC(M) Who proved the relevant entries regarding depositing of case property vide Ex. PW17/A and transferring of motorcycle no. DL9SV6072 vide RC Ex. PW17/B. 18 PW18 Inspector Ajay Karan Qua the factum of arrest of accused Sher Khan along with JCL "N" & "C" by the Anti Snatching Cell, Outer District SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 6 of 18 Cell vide kalandara u/s 41.1. Cr.P.C. and recovery of motorcycle make TVS & knife from accused Sher Khan.
10. After completion of prosecution evidence, statement of accused Sher Khan was recorded u/s 313 Cr.P.C., wherein he denied the incriminating circumstances against him and claimed that he is innocent and has been falsely implicated in this case. He chose to lead evidence in defence. The accused put forth the following plea: "I am innocent and have been falsely implicated in this case. In fact, the police officials of PS Narela were adamant to implicate me in false criminal cases since long as my sister namely Sanno was a victim of rape. The said police officials tried to save the accused in the said rape case and also they had not investigated the said case properly for which my mother filed a writ petition before the Hon'ble High Court of Delhi against the erring police officials vide W.P. (Crl.) no. 1187/09, which was disposed off vide order dated 21.10.2009 with direction to State to conduct fair and proper investigation. Due to this, the police officials of PS Narela pressurized my family members to withdraw the aforesaid rape case by way of framing false criminal case against me. I had also filed a criminal complaint against the police officials of PS Narela u/s 156 (3) Cr.P.C. before the Ld. MM vide CC no. 1326/11. I have also been falsely implicated in another case bearing FIR no. 323/10, U/s 279/337/304A IPC of PS Narela, wherein the deceased was admitted in the hospital due to fall from staircase and the police officials of PS Narela had fabricated a concocted story for converting it into a road accident case by implicating me in the said case. The said police officials had also planted a country made pistol upon me and falsely implicated me in FIR No. 419/11 dated SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 7 of 18 25.08.2011, U/s 25/54/59 Arms Act of PS Narela. On 17.01.2012, the police officials again falsely implicated me in FIR no. 38/12, U/s 392/394/397/411/34 IPC of PS Narela, but in the said case, I have been acquitted. On 28.02.2012, the police officials of PS Narela came to my house and forcibly lifted me from my house and thereafter, implicated me in four other criminal cases including the present case. The police officials in order to implicate me in false criminal cases, illegally conspired and my motorcycle bearing registration no. DL8SNC5171 was forcibly taken into possession, but somehow I escaped from their clutches while leaving my motorcycle at the spot. I was called by Ct. Devender from his mobile phone for taking back my motorcycle. When I alongwith my mother had visited PS Narela, Ct. Devender alongwith other police officials gave beatings to me and also slapped my mother. Thereafter, the said police officials kept me in their custody. This incident was reported to the PCR by my father by dialing on 100 number. When the said police officials found that motorcycle bearing registration no. DL 8SNC5171 was released on superdari on 27.02.2012 in the aforesaid case FIR no. 38/12, they had falsely shown my motorcycle as unclaimed under D.P. Act and because of this, I was falsely shown to be driving motorcycle bearing registration no. DL8SAH8634 on 29.02.2012 at about 2.30 pm. This incident was also reported by my father to the PCR by dialing at 100 number. Due to the aforesaid reasons, I have been falsely implicated in this case by the police officials of PS Narela."
Although initially the accused opted to lead evidence in his defence, but no defence witness was examined on his behalf inspite of grant of opportunity.
11. I have heard ld. Officiating Chief PP for the State, ld. Counsel for the SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 8 of 18 accused and have carefully perused the record including written submissions filed on behalf of the accused.
12. PW2/victim/injured Shintu Prasad has stated that on 16/02/2012, he was working as mechanic in a mill of pulse at Narela and on that day, he was going back to his factory after taking dinner from his room and when he reached near Peer Baba Park, DSIDC, Narela, two boys were standing there and both of them caught hold of him from his both hands. He further deposed that he made himself released from their clutches and ran upto 1015 steps. He further deposed that the third boy who was standing near a motorcycle, gave stab injury on his left side ribs and in the meanwhile, both the said boys also reached there. He further deposed that he was given stab injuries on his left hand and on left side of his neck by the boy who gave the abovesaid stab injury. He further deposed that after sustaining three stab injuries, he could not get courage to face those persons and they took out his purse containing Rs. 400/ and his mobile phone make G5 having no. 9958520732 and ran away from the spot. He further deposed that one of the said boy was 2526 years of age and two were less than that and that one of the boy was well built and two were of normal built. He further deposed that he could not reach his factory and somebody on the way informed at his factory from his mobile phone after taking number from him and one Pradeep from his factory came and took him to SRHC hospital. PW2 Shintu Prasad has correctly identified accused Sher Khan in the Court today as the one who gave him three stab injuries. He further deposed that he can also identify the other two persons, if shown to him, but they were not present in the Court (since the two J.C.Ls were facing proceedings before ld. JJB concerned). He further deposed that on 1 st or 2nd March, 2012, when police came along with the three accused persons including SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 9 of 18 the accused present in the Court i.e. accused Sher Khan at DSIDC, Narela, he identified all the three accused persons including JCL "N" and "C".
13. PW2 Shintu Prasad further deposed that earlier he was working at Alipur and he took the said mobile phone from one Kailash who was also working with him in a factory at Alipur and he (PW2) hadned over his mobile phone model 3110 of Nokia to said Kailash but the respective documents of the said mobile phone remained with them and the SIM in the said G5 mobile phone was taken by him from his other friend Ramakant Yadav. He further deposed that after sometime, he left the job at Alipur and started working in the pulse mill after coming from his village and presently he is not having any connection either with Kailash or with Ramakant Yadav. He further deposed that he did not know as to where his bloodstained clothes had gone from SRHC hospital as he was referred to LNJPN hospital from where he was discharged on 24/02/2012.
14. PW4 HC Avdhesh Kumar Bhagat, Medical Officer, SRHC Hospital, Delhi, has proved the MLC Ex. PW4/A of victim/injured Shintu Prasad. As per his testimony, Shintu Prasad was brought by his friend namely Pardeep (PW3) with the alleged history of stab injuries. He further deposed that he examined the said patient and observed the following injuries: I) incised wound 2.5 x 0.5 cm over left lower lateral chest with some contents of viscera coming out from the wound.
ii) incised wound 2 x 0.5 x 0.2 cm over left side of neck.
iii) incised wound 2.5 x 1.0 x 0.2 cm over left forearm.
As per further testimony of PW4, after preliminary examination, Shintu Prasad was referred to SR (surgery) for further management and SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 10 of 18 examination.
15. In the surgery department (of SRHC Hospital), PW5 Dr. Vineet Singh SR (Surgery) had examined PW Shintu Prasad and he transferred him to LNJP hospital for further evaluation and management.
16. PW16 Dr. Munish, SR (Surgery), LNJP Hospital, New Delhi, has proved the discharge summary of PW2 Shintu Prasad prepared by Dr. Arshad, the then SR (Surgery). As per the testimony of PW16, as per final diagnosis, patient had suffered penetrating trauma, chest and abdomen with hemothorax with splenic laceration with gastric perforation with diaphragmatic injury i.e. penetrating stab wound injury over abdomen and chest and that surgery was performed over the chest and abdomen of patient Shintu Prasad. As per his further testimony, Shintu Prasad was admitted in LNJP hospital on 17/02/2012 and was finally discharged on 24/02/2012.
17. As per case of prosecution, accused Sher Khan along with his aforesaid two J.C.L associates was apprehended & arrested by the Anti Snatching Cell, Outer District, on the basis of secret information u/s 41.1 Cr.P.C. The raiding party which apprehended them consisted of PW18 Inspector Ajay Karan, PW1 HC Ravinder and PW15 HC (Now ASI) Sunil Kumar. After his apprehension, accused Sher Khan in pursuant to his disclosure statement, got recovered one knife which was seized vide memo Ex. PW1/G. Lateron accused Sher Khan was arrested in the present case by PW14 Inspector Mahabir Singh vide arrest memo Ex. PW11/B.
18. From the statement of victim/injured PW2 Shintu Prasad, it is SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 11 of 18 apparent that on 16/02/2012, at about 10.00 p.m., while he was going from his room after taking dinner to his factory, i.e. mill of pulse at Narela, where he was working as a mechanic, when he reached near Peer Baba Park, DSIDC, Narela, two boys caught hold of him by both his hands, he made himself released from their clutches and ran upto 1015 steps, then the third boy who was standing near a motorcycle, gave him a stab injury on his left side ribs, meanwhile both the aforesaid two boys also reached there and the boy who had given the aforesaid stab injury to him, also gave two more stab injuries i.e. one on his left hand and the other on the left side of his neck. The said witness has identified the accused Sher Khan as the one who had given him stab injuries and has further stated that he can identify the remaining two accused persons, if shown to him. He has further stated during his testimony that the said other two persons were not present in the Court. It is pertinent to mention here that the remaining two perpetrators of crime were juvenile as per the version of the prosecution and hence were not facing trial in this case and were not present in the court at the time of recording of testimony of PW2 Shintu Prasad and that is why the said witness had no chance to identify them as the other two perpetrators of the crime. PW2 Shintu Prasad has further deposed that the aforesaid boys took out his purse containing Rs. 400/ and his mobile phone make G5 having no. 9958520732 and ran away from the spot.
19. I do not find any force in the argument of ld. Counsel for the accused that although the alleged incident took place on 16/02/2012 and the victim/injured was declared fit for his statement on the same day as per the MLC, still the statement of the victim/injured was admittedly recorded on 01/03/2012 and hence the same is an afterthought and is liable to be discarded in view of unexplained delay. From the testimony of PW2 Shintu Prasad and from the testimony of PW4 SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 12 of 18 Dr. Avdhesh Kumar Bhagat qua the MLC of injured, it stands established that the three stab injuries including two on vital parts i.e. left lower lateral chest and left side of neck were inflicted and although the concerned doctor may have declared the patient to be fit for statement, but in reality, the patient must have been under tremendous pain and discomfort and that is why he could not make any statement to the police on day of incident i.e. 16/02/2012. Even as per testimony of PW8 SI Rajbir Singh, who on receipt of DD no. 27A Ex. PW8/A reached at SRHC hospital along with Ct Karan Singh, the doctor opined the injured fit for statement for recording his statement and he met the injured Shintu Prasad, but the injured was not in a position to make a statement due to pain on account of injury in his stomach. There is nothing on record that there was any laxity on the part of the victim/injured and even if for argument sake it is presumed that there was some laxity on the part of the IO in recording the statement of the victim/injured on the same day or within few days thereof, still in my considered opinion, the same is not fatal to the case of the prosecution because if such argument is accepted, then in all such cases pertaining to heinous offences, the prosecution case would get sabotaged by the laxity on the part of IO, although there may be other sufficient incriminating evidences. Hence the said argument of ld. Counsel for the accused is liable to be rejected.
20. The next leg of argument of ld. Counsel for the accused is that it is mentioned in the FIR itself that one person by the name of Shintu Prasad had been admitted to the hospital in injured condition in a quarrel by his friend Pradeep and from the same it is clear that no alleged incident had taken place and the victim/injured had received the alleged injuries in a quarrel at the hands of someone else. Admittedly the said factum of receiving of the injury by the victim SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 13 of 18 Shintu Prasad in a quarrel was not informed by the victim/injured or any other eye witness. As per prosecution version, Pradeep (PW3) of the factory where injured was working, reached the spot on receiving information qua stab injury to the victim and took him to hospital and then the aforesaid information regarding injury in a quarrel was given by duty Constable Vijay of SRHC Hospital. Admittedly neither the said Constable Vijay nor PW3 Pradeep Kumar are eyewitnesses to the factum of incident. From the testimony of PW2 & PW3, it is clear that PW3 reached the spot after the victim/injured (PW2) was already robbed and the injury was caused to him. The victim/injured must have not been in a position to tell PW3 Pradeep Kumar as to how the injury was received by him because of the injuries, pain and loss of blood. It appears that Pradeep on his own may have thought that the victim/injured had received injuries in some quarrel and that is why the aforesaid information conveyed further and got written in the concerned DD and the FIR. Merely on that basis, it cannot be inferred that that said injury was received by the victim/injured in any quarrel. Victim/injured was the sole eye witness to the incident and has clearly incriminated the accused as one of the culprits who caused stab injuries to him during robbery. The victim's version is the most important one and relevant qua the said aspect. Hence the theory of quarrel being the cause of injury put forth by ld. Counsel, is not tenable.
21. Ld. Counsel for the accused has also argued that the accused had prior animosity with the police and that is why he was falsely implicated in the present case since the sister of the accused had made the complaint against the police officials. Even if for arguments sake, it is presumed that there was some animosity with the police officials, although not duly proved or shown on record, still it is beyond comprehension why the victim of this robbery and stab injuries, who SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 14 of 18 was stabbed thrice and received severe injuries on his vital parts, would absolve the actual culprit and would falsely implicate the present accused as the perpetrator of the crime on the mere asking or insistence of the police. No sane person would falsely implicate a person in such a case leaving the actual culprit free. Hence there is no force in the aforesaid argument of ld. defence counsel.
22. Ld. Counsel for the accused has further argued that it has been admitted by the victim/injured PW2 Shintu Prasad that all the three accused were shown to him by the police on 1 st and 2nd March,2012 and he identified them (as culprits), whereas the two of the accused namely "N" and "C" were juveniles and hence the judicial TIP was refused by the accused persons on 06/03/2012 since the same was a futile exercise and hence no advance presumption can be drawn against the accused. In support of his arguments, ld. Counsel for the accused has relied upon the judgment in the case of 'Vikram Singh Vs State Govt. of NCT of Delhi', CRL. A. 918/2001, date of decision: 10/11/2017 of Hon'ble High Court of Delhi. I agree with the submission of ld. Counsel for the accused that no advance presumption can be drawn due to refusal of judicial TIP by the accused on 06/03/2012 since he was already shown to the victim/injured and identified on 1 st and 2nd March, 2012. However it is no rule of law or evidence that the unknown perpetrator of crime has to be necessarily identified by the victim in judicial TIP only or there should be refusal of the judicial TIP by an accused prior to identification of the accused by the witness during his testimony, for the case of prosecution to succeed. There can be cases where the offence is committed by an unknown accused and then per chance the victim happens to see or identify him or the perpetrator of the crime is arrested in another matter when the victim happens to see or identify him during his coincidental visit to police and it cannot be said SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 15 of 18 that merely because the victim had identified the accused as culprit in this way, and there was no judicial TIP, in such circumstances, the accused would get benefit on that count itself. Judicial TIP is needed in a case where the accused is unknown and the prosecution has strong suspicion after the accused is apprehended that he has committed the said offence and the victim had otherwise no chance to see the accused, then the prosecution carries out the judicial TIP to ascertain whether the offence in question was committed by the accused or not. In any case, identification of an accused in the witness box by the victim/injured, is substantive evidence. In this matter, the victim/injured has clearly identified the accused as the one who had played the lead role in the aforesaid manner at the time of commission of robbery while inflicting three stab injuries including on his vital parts.
23. Ld. Counsel for the accused has also raised the ground that the alleged recovery of knife was planted upon the accused. However from the testimony of PW18 Inspector Ajay Karan, PW1 HC Ravinder and PW15 HC (Now ASI) Sunil Kumar, it is clear that one button actuated knife was recovered (from a place known only to accused) pursuant to disclosure statement of accused in police custody, which the accused claimed to have used in commission of the crime in question, but since there is no FSL opinion that the same contained any blood stains of the victim, there is no subsequent opinion of the concerned doctor that the same was used in causing injuries to the victim and there is no testimony of victim/injured that he was stabbed with the same knife as said knife was not put to the witness in his evidence, therefore it cannot be inferred that the said knife was used in the commission of offences. However recovery of knife used, was not a sine qua non for case of prosecution to succeed, in view of SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 16 of 18 overwhelming evidence of PW2(victim/injured) that accused only caused the said stab injuries to him with a knife and his version is corroborated by his medical evidence. Recovery of weapon of offence in such cases, where clear and clinching eyewitnesses account are available, duly corroborated by medical evidence, is not necessary specially when the injuries are not selfinflicted, which appears to be the case herein. No notification of Delhi Government making possession of the said button actuated knife illegal, has been produced or proved on record. Thus accused cannot be convicted independently for possession of the said knife as neither any Delhi Government notification making the said possession illegal has been produced nor any charge u/s 25 of Arms Act qua the possession of the said knife illegally, has been framed against the accused.
24. Ld. Counsel for the accused has also tried to argue in vain that two views are possible in this case, but in view of the clear, cogent and trustworthy testimony of the victim/injured (PW2) incriminating the accused, it cannot be said that two views are possible against the accused.
25. I also do not find any force in the argument of ld. Counsel for the accused in view of the judgment relied upon by him (in the case of 'Ajmer Singh and another Vs State of Haryana', II1989 (1) Crimes 424) that the accused has succeeded in creating a doubt and therefore he is entitled to get benefit of the same.
26. Thus from the testimony of victim/injured corroborated by medical evidence, it stands established that the accused in furtherance of his common intention with his aforesaid two juvenile associates, had robbed the victim/injured SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 17 of 18 on the aforesaid date, time and place and at the time of commission of robbery, the accused had inflicted three stab injuries in the aforesaid manner including two on the vital parts of the body of injured/victim, which is corroborated by medical evidence of the victim/injured. The nature of injuries, their dimensions and the duration during which the injured/victim remained admitted in hospital (from 16.02.2012 to 24.02.2012), makes it clear that the said severe injuries were caused on the vital parts of the body of the injured/victim with an intention to cause his death and had the injured not been timely admitted in the hospital and provided proper medical care, he would have died.
27. In view of the aforesaid discussion, it stands established that the accused in furtherance of his common intention with his aforesaid two juvenile associates, had attempted to murder the victim Shintu Prasad (PW2), had robbed him (victim), had caused dangerous injury (as per MLC) to him (victim) during robbery and had also used deadly weapon i.e. knife at the time of commission of robbery with victim. Thus the accused is held guilty for the offences u/s 307/392/394/397/34 IPC. Digitally signed by ASHUTOSH ASHUTOSH KUMAR Announced in the Open Court On 10th of October, 2019 KUMAR (Ashutosh Kumar) Date: 2019.10.10 Addl. Sessions Judge: 04 16:58:37 (North) +0530 Rohini Courts: Delhi SC No. 57880/2017 FIR no. 83/2012 PS Narela State Vs Sher Khan Page 18 of 18