Delhi District Court
State vs Vipin Bhagwat on 3 February, 2025
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 353/2017
CNR No. DLNE01-010108-2016
FIR No. 58/2017
PS Sonia Vihar
U/s 392/394/397/34 IPC, 1860.
STATE VERSUS VIPIN BHAGWAT & ANR.
Date of Committal : 01.12.2017
Date of Arguments : 20.01.2025
Date of Judgment : 03.02.2025
INDEX
S. No. Contents Page No.
1. Brief Details of the Case & Memo of Parties 2
2. Brief Case of the Prosecution 4
3. Prosecution Evidence 6
4. Admitted Documents & Plea of the Accused 22
person
5. Submissions made on behalf of the State 24
6. Submissions made on behalf of the Accused 27
Person
7. Relevant Law & the Case Laws 31
8. Appreciation of Evidence 39
9. Conclusion & Findings 49
Digitally
signed by
ATUL
ATUL AHLAWAT
(ATUL AHLAWAT) AHLAWAT Date:
2025.02.03
ASJ (FTC)/North- 11:25:13
+0530
East/KKD Courts/
Delhi/03.02.2025
CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 1/51
IN THE COURT OF SH ATUL AHLAWAT
ADDL. SESSIONS JUDGE (FTC), NORTH-EAST
KARKARDOOMA COURTS: DELHI
IN RE:
SC No. 353/2017
CNR No. DLNE01-010108-2016
FIR No. 58/2017
PS Sonia Vihar
U/s 392/394/397/34 IPC, 1860.
Brief Details of the Case & Memo of Parties
STATE VERSUS VIPIN BHAGWAT & ANR.
Date of Committal : 01.12.2017
Date of Arguments : 20.01.2025
Date of Judgment : 03.02.2025
Brief details of the case
A) Case FIR No. : 58/2017
B) Charges framed under section : 392/394/34 IPC, 1860
against both the
accused persons and
u/s 397 IPC, 1860
against both the
accused persons
separately.
C) Name of the complainant : Balram Mohanti, Digitally
signed by
ATUL
AHLAWAT
ATUL
AHLAWAT Date:
2025.02.03
11:25:25
+0530
CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 2/51
S/o Sh. Bishal
Mohanti
R/o H. No. 202, Nasib
Vihar, Ilaichipur,
Loni, Ghaziabad, UP.
D) Name of the accused persons : (1) Vipin Bhagwat
S/o Sh. Ramji Bhagat
R/o near office of
Pinto Property Dealer,
Nasib Vihar, Loni,
Ghaziabad, UP.
(2) Mohd. Irshad,
S/o Sh. Mohd. Imam
Ali
R/o Village Parsha,
Dist. Sitamadi, Bihar
(Declared Proclaimed
Offender vide order
dated 07.07.2023)
E) Plea of the accused persons : Not guilty
F) Final Order : Conviction
G) Date of Order : 03.02.2025
JUDGMENT
(Pronounced on the 3rd day of February, 2025) Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:25:31 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 3/51 Brief Case of the Prosecution:
1. The criminal law machinery was set into motion on 19.03.2017, when DD no. 71-B, was registered at PS Sonia Vihar and the same was marked to IO SI Narender Singh for taking appropriate action as per the law.
2. The Inquiry Officer SI Narender Singh reached the spot situated near the red light, Nanaksar, alongwith HC Narender Kumar and found that the injured/victim was already removed to the hospital by the PCR van. The IO SI Narender Singh deputed HC Narender Kumar to guard the spot and thereafter, he himself left for Sushrut Trauma Center, Lok Nayak Hospital, New Delhi and obtained the MLC of the injured/victim Balram Mohanty, Ex. PW2/A.
3. The Inquiry Officer SI Narender Singh recorded the statement of the complainant, Ex. PW1/A, wherein the complainant had stated that he was residing with his family at Nasib Vihar, Ilaichipur, Loni, Ghaziabad, UP and that he was working as a security guard with one Sergeant Security Company and he was deputed to work as a security guard at New Delhi Railway Station. On 19.03.2017, at about 10:30 PM, the complainant had left for his night duty and when he reached near Nanaksar Bus Stand situated at main Wazirabad Road and while he was waiting for the bus, suddenly, 3-4 unknown persons came from the jungle situated towards the Gurudwara and the said assistants gave a danda blow on the right leg of the complainant. When the complainant Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 4/51 11:25:37 +0530 turned back, one danda blow was also given on his head and they took the bag, which was in the hands of the complainant and started dragging him towards the said jungle, from where they had come from.
4. It was further mentioned by the complainant in his statement, Ex.
PW1/A that while the assailants were dragging the complainant towards the jungle, the complainant objected to the same and raised an alarm, since he got really scared. At that time, all the assailants had grabbed the complainant and they were giving beatings to him and in the meanwhile one Swift car, which was coming from the side of Khajuri Chowk reached there and it had stopped next to where there complainant was. There were two men sitting in the said car and from the window of the said car, they asked the assailants as to why they were giving beatings to the complainant and that they should leave the complainant alone. On hearing this, the assailants started damaging the said car. The complainant somehow got the opportunity to escape from there and he ran towards the Traffic Police Booth, situated near the red light, however, he did not find any officer there. Thereafter, the complainant called the police on 100 number and the PCR van arrived there. By that time, the complainant reached back the spot alongwith the PCR officials, he found that no one was there and the PCR van took him to Sushrut Trauma Center, where treatment was provided to him.
5. It was further mentioned by the complainant in his statement, Ex. PW1/A that the occupants of the Swift car had seen the faces of the assailants who had given beatings to the complainant and had also Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:25:43 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 5/51 robbed his bag. He had further stated that he could identify the assailants, if they were brought before him.
6. Upon recording of the statement of the complainant, the present case FIR, Ex. A-1 was registered at Police Station Sonia Vihar on 20.03.2017, under sections 392/394/397/34 IPC, 1860. After the registration of the FIR, the investigation was conducted by the IO and after completion of the same the charge-sheet was filed qua accused persons before the court of Ld. Metropolitan Magistrate u/s 392/394/397/34 IPC, 1860.
7. After compliance of section 207/208 Cr.P.C, the case was committed by the Court of Ld. MM before this Court on 01.12.2017. Thereafter, the charges were framed by my Ld. Predecessor on 08.12.2017 u/s 392/394 r/w section 34 of Indian Penal Code, 1860 against the accused persons and the charges u/s 397 IPC, 1860 were also framed against the accused persons. The accused persons had pleaded not guilty and they had claimed trial.
8. During the trial accused Mohd. Irshad was declared as a Proclaimed Offender vide order dated 07.07.2023 passed by the Ld. Predecessor of this Court.
Prosecution Evidence:
9. To prove its case, the prosecution has examined Seven (7) witnesses, Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:25:48 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 6/51 +0530 out of which there are three Public Witnesses including the complainant and two ocular witnesses; one Medical Witness and three Formal Witnesses including the two Investigating Officers.
10. Public Witness:
(10.1.1) PW-1 is Balram Mohanti and he is the complainant of the present case. He had deposed that he was working as a security guard with Sergeant Security Company at New Delhi Railway Station. On 19.03.2017, at about 10:30 PM, he was present near Nanaksar Bus Stand, situated on main Wazirabad Road and was waiting for a bus to report for his night duty. At that time, 3-4 persons came near him from behind and they gave danda blows on his leg and head and thereafter, the said assailants started searching the bag that he was carrying at that time.
(10.1.2) PW-1 Balram Mohanti further deposed that the assailants were trying to drag him towards the forest. He had raised the alarm and two persons, who were in a car which was coming on the road at that time, responded to his cries and they opened the window of the said car and asked the assailants to stop giving beatings to him and to leave him alone. The complainant managed to escape and he ran towards the red light where a Police Traffic Booth was situated, however, since, no one was present there, he dialed the police on 100 number, from his mobile phone no. 9910300149.
(10.1.3) PW-1 Balram Mohanti further deposed that PCR van reached Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:25:53 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 7/51 the spot and he was taken to the hospital. The PW-1 had categorically identified the accused Vipin Bhagwat and accused Mohd. Irshad (since declared PO) as the persons who had assaulted him with a danda and had also dragged him towards the jungle and they had also snatched his bag.
(10.1.4) PW-1 Balram Mohanti further deposed that the public persons who had reached the spot in the said car prevented the accused persons to commit further assault upon him. The said persons had later come to the police station alongwith the accused persons. He went on to further categorically depose that he had seen the accused persons including accused Vipin Bhagwat in the PS, soon after the incident.
(10.1.5) PW-1 Balram Mohanti further deposed that his looted bag was recovered from the accused persons and the said bag was a polythene bag of white colour, in which he was carrying his lunch box and uniform. The said articles were seized by the police and the IO had recorded his statement, Ex. PW1/A. The IO had arrested the accused persons in his presence, when he had returned from the hospital. He had identified his signatures on the arrest memo and personal search memo of accused Vipin Bhagwat, Ex. PW1/B and Ex. PW1/C, respectively. He also identified his signatures on the arrest memo and personal search memo of accused Mohd. Irshad, Ex. PW1/D and Ex. PW1/E, respectively.
(10.1.6) PW-1 Balram Mohanti further deposed that the name of the accused persons was revealed to him by the police officials, after the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:26:00 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 8/51 registration of the present case FIR. He went on to further correctly identify the polythene bag containing his lunch box, one full sleev shirt and a black coloured pant, which was robbed by the accused persons from him on the day of the incident. The said looted articles were collectively exhibited as Ex. P-1(colly).
(10.1.7) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that his daily duty timings were from 10:00 PM to 06:00 AM. On the day of the incident, he had informed his supervisor that he would reach a little late for duty. He further deposed that it used to take him around one to one and a half hours to reach the place of his work from his home, depending upon the traffic.
(10.1.8) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that 3-4 persons came from the side of jungle towards the Gurudwara. Initially, 4-5 persons were also present near the spot, however, gradually they all left from there and he was alone there at the time of the incident. He admitted the suggestion that no danda was recovered by the police officials at that time.
(10.1.9) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that when he was attacked, he had raised the alarm and one car stopped there, which was occupied by two persons. The said persons lowered down Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:26:07 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 9/51 +0530 their window and raised the voice against him being attacked. Thereafter, the accused persons started attacking them, leaving him behind. He had further deposed that he had no knowledge, if accused Vipin Bhagwat was mentally unstable or not.
(10.1.10) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that his belongings/looted articles were not recovered from the accused persons, however, when he reached the PS from the hospital, he found his belongings were already in the custody of the police.
(10.1.11) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Mohd. Irshad that it was correct that the spot was a busy road, being a highway and one could get the conveyance from the spot, around the clock. He also admitted the suggestion that behind the bus stand, there was a Gurudwara and the construction work of Signature Bridge was going on behind the said Gurudwara at that time. He also deposed that there was also a cremation ground situated at a distance of about 500 meters from the said Gurudwara.
(10.1.12) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Mohd. Irshad that he ran towards the red light approaching Sonia Vihar and categorically admitted the suggestion that the said red light was just in front of the Gurudwara. He also categorically admitted the suggestion that the red Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:26:12 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 10/51 +0530 light was at a distance of around 20 steps from the bus stand. He also further deposed that one could see a PCR van stationed at the red light, from the bus stand.
(10.1.13) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Mohd. Irshad that he made a call on 100 number from the red light. The two public persons who had arrived there in the white coloured Swift car, did not come out of the car. He further deposed that he could not tell the car number and did not see if the windows of the said car were closed or not.
(10.1.14) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Mohd. Irshad that one of the assailants was having a danda in his hand and went on to categorically admit the suggestion that the said assailant who was armed with the danda, was not present in Court, at the time of his cross examination conducted on 16.01.2018. He further admitted the suggestion that both the accused persons were not apprehended by the police from the spot in his presence. He further deposed that he did not knew, as to from where the accused persons were apprehended by the police officials.
(10.1.15) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Mohd. Irshad that he had reached the PS from the hospital at around 01:30-02:00 AM and at that time both the public persons who had come in the Swift car, were Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:26:17 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 11/51 present in the PS itself. The IO recorded his statement in the PS and he had shown the place of occurrence to the police officials of PCR van, on his return from the hospital. He categorically further deposed that after reaching the PS, he had not gone to the spot again. He further categorically deposed that the police official had not prepared the site plan in his presence.
(10.1.16) PW-1 Balram Mohanti had further deposed during his cross examination conducted by Ld. Counsel for accused Mohd. Irshad that the statement of the public witnesses/the occupants of the Swift car were recorded by the IO in the PS in his presence. He had further categorically admitted the suggestion that none of the four offenders had searched him for his mobile phone.
(10.2.1) PW-3 is Ashish Chaudhary and he is the ocular witness of the present case. He had deposed that he did not remember the exact date of the incident, however, it was around one year prior to the recording of his testimony on 26.10.2018. He further deposed that on that day, at around 10:30 to 11:00 PM, he alongwith his friend Depender was going to Model Town via Wazirabad Road and when they had reached near Nanaksara Bus Stand, he noticed that 2-3 persons were dragging a man towards Pusta Pipeline. He further deposed that the said person who was being dragged, was raising an alarm and they respondent to the said alarm.
(10.2.2) PW-3 Ashish Chaudhary further deposed that when they had Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:26:23 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 12/51 +0530 raised the alarm, the assailants came to their vehicle and started hitting it with a danda. Thereafter, he alongwith his friend managed to apprehend two of the three assailants and the third assailant managed to flee away from there. They had handed over both the assailants to the police officials, who had arrived on the spot. He further deposed that the victim had also come to them and he noticed that the victim was having an injury on his head. He further deposed that at that time the victim had disclosed his name to them, however, he did not recollect his name at the time of recording of his testimony.
(10.2.3) PW-3 Ashish Chaudhary further categorically deposed that the front wind screen, as well as the window pane/glass of their car was damaged by the assailants.
(10.2.4) PW-3 Ashish Chaudhary further categorically deposed that he could not identify any of the said assailants at the time of his testimony being recorded before this Court. He was declared hostile by the State and was subjected to cross examination conducted by Ld. Chief PP for the State.
(10.2.5) PW-3 Ashish Chaudhary further categorically deposed that police had recorded his statement and he admitted the suggestion that the incident had occurred on 19.03.2017. He further admitted the suggestion that the assailants had also disclosed their names to him on the day of the incident and that the said assailants were handed over to the police by them. He categorically deposed that name of one of the assailant was Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:26:29 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 13/51 +0530 Vipin Bhagat, however, he did not remember the name of the other assailant. He further deposed that he could not say whether the name of the other assailant was Irshad or that accused Irshad was the same person, who was handed over to the police by him.
(10.2.6) PW-3 Ashish Chaudhary further categorically deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that he had called the police after the accused Vipin Bhagwat and his accomplice were overpowered and apprehended by them. When he had called the police on 100 number, it was around 10:45 PM. He further deposed that he reached the PS at around 11:30 PM and his statement was recorded by the IO in the PS. (10.2.7) PW-3 Ashish Chaudhary further categorically deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that he did not remember the colour of the clothes which were being worn by accused Vipin Bhagwat, at the time when the accused was handed over to the police by him. He also deposed that he did not remember the name of the police officer, to whom the accused Vipin Bhagwat was handed over. However, the said police officer was of the rank of Sub Inspector. He further deposed that he had reached the PS in his own vehicle and accused Vipin Bhagwat was taken to the PS in the official police vehicle. He also deposed that on the day of the incident, when they responded to the call for help raised by the victim, he alongwith his two friends were in the said car.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.02.03
11:26:42
+0530
CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 14/51 (10.2.8) PW-3 Ashish Chaudhary further categorically deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that accused Vipin Bhagwat had also received injuries on his head and he did not knew whether he was medically examined qua the said spot or not. He categorically denied the suggestion that certain unknown persons had also come there on the spot and the said persons had given injuries to accused Vipin Bhagwat or that the said unknown persons had robbed victim Balram Mohanti and that the accused persons were not the real assailants. He further categorically denied that accused Vipin Bhagwat was himself a victim.
(10.3.1) PW-6 is Sandeep Tomar and he is also one of the ocular witnesses. He had deposed that on 19.03.2017, at around 10:30 PM, he alongwith his friends namely Ashish Chaudhary and Dipender were going towards Model Town from Bhajanpura and when they reached near Nanaksar Gurudwara, he saw that three persons were dragging one man towards the jungle and they were giving beatings to the said person with danda.
(10.3.2) PW-6 Sandeep Tomar further deposed that they got down from their car and one of the assailants was having a danda in his hand. He further categorically deposed that he alongwith his two friends intervened and saved the victim from the clutches of the assailants and the victim had also received some injuries in the said assault committed by the assailants. He further categorically deposed that out of the three assailants, they managed to overpower and apprehend two assailants, Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:26:53 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 15/51 +0530 however, the third managed to escape.
(10.3.3) PW-6 Sandeep Tomar further deposed that someone had called the police on 100 number and the police officials reached at the spot and they handed over the said assailants to the police officials. He came to know the name of one of the assailant was Vipin, however, on the day of recording of his testimony, he could not remember the name of the second assailant. He further deposed that they went to the PS alongwith the police official and the said assailants were also taken to the PS and IO recorded his testimony in the PS itself. The injured was taken to the hospital from the spot.
(10.3.4) PW-6 Sandeep Tomar correctly identified accused Vipin Bhagwat at the time of recording of his examination-in-chief, as one of the assailants who was assaulting the complainant and was apprehended by him and his friends on the day of the incident.
(10.3.5) PW-6 Sandeep Tomar further deposed that it was correct that he came to know the name of the second assailant was Irshad. He further deposed that accused Vipin Bhagwat and co-accused Irshad (PO) were arrested in his presence vide arrest memo, Ex. PW1/B and Ex. PW1/D respectively and their personal search was conducted by the IO in his presence, vide memo, Ex. PW1/C and Ex. PW1/E respectively. He further admitted the suggestion that the third assailant manged to run away from the spot with the danda.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.02.03
11:27:03
+0530
CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 16/51 (10.3.6) PW-6 Sandeep Tomar further deposed during the cross examination conducted by Ld. Counsel for the accused Vipin Bhagwat that they were in a Swift car bearing registration no. DL-5CE-8567 and the said car was white in colour. He further deposed that when they apprehended the accused persons including accused Vipin Bhagwat, he and his friends were not harmed or assaulted by the assailants, since they were three in number and the apprehended assailants were only two.
(10.3.7) PW-6 Sandeep Tomar further deposed during the cross examination conducted by Ld. Counsel for the accused Vipin Bhagwat that there was only a minor scuffle which ensued, while they tried to rescue the complainant from the clutches of the assailants, including the two accused persons facing the trial before this Court. He further categorically deposed that after the complainant was rescued, he was standing next to them only, till the time the police officials reached there.
(10.3.8) PW-6 Sandeep Tomar further deposed during the cross examination conducted by Ld. Counsel for the accused Vipin Bhagwat that the police officials reached the spot within 5-10 minutes of the call made on 100 number and the place of incident was situated at a distance of about 20-30 meters from Nanaksar Red Light. He further deposed that he had not noticed whether there was any police booth situated near the place of the incident, however, he saw a bus stop nearby, which was called as Nanaksar Bus Stop.
Digitally signed by
11. Medical Witness: ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:27:09 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 17/51 (11.1.1) PW-2 is Dr. Deepika, CMO, Lok Nayak Hospital. She had deposed that on 19.03.2017, at about 11:00 PM, while she was posted as Medical Officer at the said hospital, she had medically examined the complainant Balram Mohanty. She had examined the complainant/injured and referred him to a neuro surgeon for detailed examination and she had prepared the MLC, Ex. PW2/A.
12. Formal Police Witnesses:-
(12.1.1) PW-7 is ASI Narender Kumar and he is the arrest and recovery witness. He had deposed that he was posted as a Head Constable at PS Sonia Vihar on 19.03.2017 and DD No. 71-B was marked to IO SI Narender Singh. IO SI Narender Singh was examined as PW-5.
(12.1.2) It has come in the testimony of PW-7 ASI Narender Kumar and PW-5 IO SI Narender Singh that on 19.03.2017, they were on night emergency duty at PS Sonia Vihar. When DD No. 71-B was marked to PW5, he alongwith PW7 reached the spot i.e. near red light signal, Nanaksar, Delhi and they came to know that the injured had already been removed to Trauma Center by the PCR van. PW5 left PW7 at the spot, for guarding the same. Thereafter, PW5 reached the Trauma Center and collected the MLC of the injured Balram Mohanty, Ex. PW2/A. Thereafter, PW5 recorded the statement of the injured/victim, Ex.
PW1/A.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.02.03
11:27:13
+0530
CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 18/51
(12.1.3) It has come in the testimony of PW-7 ASI Narender Kumar and PW-5 IO SI Narender Singh that PW5 reached back at the spot, alongwith the complainant and they met PW7, who produced accused Vipin Bhagwat and accused Irshad (PO) before the IO PW5. It was also informed to the IO that the said accused persons were handed over to PW5 by one Ashish Chaudhary, Dipender and Sandeep Tomar. The complainant had duly identified both the accused persons before the IO. Accused Vipin Bhagwat was in injured condition, since, other public persons have given beatings to them.
(12.1.4) It has come in the testimony of PW-7 ASI Narender Kumar and PW-5 IO SI Narender Singh that IO PW5 had prepared the endorsement, Ex. PW5/A on the statement and he had also prepared the rukka, which was sent to the PS through PW7 for registration of the FIR. Thereafter, the IO prepared the site plan, Ex. PW5/B, at the instance of the complainant.
(12.1.5) It has come in the testimony of PW-5 IO SI Narender Singh that accused Irshad (PO) was found in possession of one cloth bag containing the looted articles and the same was seized by the IO vide seizure memo, Ex. PW5/C, after converting the same into a pullanda and by putting the seal of "MS".
(12.1.6) It has come in the testimony of PW-7 ASI Narender Kumar and PW-5 IO SI Narender Singh that accused Vipin Bhagwat was interrogated and arrested vide memo, Ex. PW1/B and his personal search Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:27:19 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 19/51 was conducted vide memo, Ex. PW1/C and the IO had also recorded his disclosure statement, Ex. PW5/D. (12.1.7) It has come in the testimony of PW-7 ASI Narender Kumar and PW-5 IO SI Narender Singh that accused Irshad (PO) was interrogated and arrested vide memo, Ex. PW1/D and his personal search was conducted vide memo, Ex. PW1/E and the IO had also recorded his disclosure statement, Ex. PW5/E. (12.1.8) It has come in the testimony of PW-7 ASI Narender Kumar and PW-5 IO SI Narender Singh that IO obtained the MLC, Ex. PW2/A of the injured/complainant and he also got the medical examination of accused Vipin Bhagwat conducted vide MLC, Ex. PW5/F. Thereafter, the IO recorded the statement of the witnesses and deposited the case property with the Malkhana.
(12.1.9) PW-5 IO SI Narender Singh had correctly identified the case property i.e. cloth bag and polythene bag containing lunch box, one full sleeves shirt having the label of "Sergeant Brother Security" and one black coloured pant, Ex. P-1 (colly).
(12.1.10) PW-5 IO SI Narender Singh had deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that he had reached the red light signal at Nanaksar T-point at about 11:00 PM and he admitted the suggestion that at that time accused Vipin Bhagwat was not found there. He further deposed that he reached the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:27:24 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 20/51 +0530 Trauma Center, LNJP Hospital at around 11:30 to 11:45 PM, however, he did not find any family members of the injured.
(12.1.11) PW-5 IO SI Narender Singh had deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that at around 01:30 AM, he alongwith the complainant reached the spot and the public witnesses Ashish Chaudhary, Dipender and Sandeep Tomar was found present there.
(12.1.12) PW-5 IO SI Narender Singh had deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that it was wrong to suggest that accused Vipin Bhagwat was not mentally fit. He further categorically deposed that he was not aware whether accused had received any treatment from IHBAS, Dilshad Garden.
(12.1.13) PW-5 IO SI Narender Singh had deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that he had not served any notice to other public persons to join the investigation, since, three public witnesses were already examined by him and there were no other public witnesses found present at the spot. He had recorded the statement of eye witness Ashish Chaudhary at the spot and the statement of other eye witnesses were recorded at the PS. (12.1.14) PW-7 ASI Narender Kumar had deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that there was a police booth situated at a distance of around 300 meters from Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:27:30 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 21/51 Nanaksar Bus Stand and he had again said that the said distance was around 100-125 meters. He further deposed that as per his knowledge, IO SI Narender Singh had recorded the statement of the complainant at the Trauma Center itself. He further deposed that at about 02:20 AM, IO alongwith the complainant reached at Nanaksar Bus Stand. He further deposed that one thela was recovered from the possession of one of the accused.
(12.2.1) PW-4 is IO Retd. SI Devender Tyagi and he is the 2nd Investigating Officer of the present case. He had deposed that on 26.04.2017, the investigation of the present case was marked to him. He found that the investigation was complete in all respect, except for the result upon the MLC, which he had obtained and placed the same on the record. He prepared the chargesheet and filed the same before the Court.
(12.2.2) PW-4 IO Retd. SI Devender Tyagi had deposed during his cross examination conducted by Ld. Counsel for accused Vipin Bhagwat that it was not within his knowledge that accused Vipin Bhagwat was suffering from any mental disease or that he was receiving treatment from IHBAS. He further deposed that it was not within his knowledge that whether accused Vipin Bhagwat had also sustained injuries on his head in the present case or not.
Admitted Documents & Plea of the Accused Vipin Bhagwat:
Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:27:36 +0530
13. Vide his statement dated 22.04.2024, recorded u/s 294 Cr.PC, CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 22/51 1973, accused Vipin Bhagwat had admitted the factum of registration of the present case FIR and the same was exhibited as Ex. A-1. He also admitted the endorsement made by the DO on the rukka and the same was exhibited as Ex. A-2 and the genuineness of the certificate u/s 65-B of Indian Evidence Act, 1872 was also admitted and exhibited as Ex.A-3.
14. Vide his statement dated 22.04.2024, recorded u/s 294 Cr.PC, 1973, accused Vipin Bhagwat had admitted the subsequent opinion given by Dr. Robin on the MLC, Ex. PW2/A. As per the said 2 nd opinion, which was admitted and exhibited as Ex. A-4, the nature of injury was opined to be "Simple".
15. After completion of the prosecution evidence qua accused Vipin Bhagwat, PE was closed. The accused Mohd. Irshad was declared as a Proclaimed Offender vide order dated 07.07.2023. The statement of accused Vipin Bhagwat was recorded under Section 313 Cr.P.C, 1973, in which he had pleaded his innocence.
16. The accused Vipin Bhagwat chose not to lead any Defense Evidence.
17. I have heard the arguments advanced by Sh. Kamal Akhter, Ld. Additional PP for the State and Sh. Punit Kumar Tyagi, Ld. LAC for accused Vipin Bhagwat. I have also minutely gone through the evidence brought on record and also other material aspects of the case. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:27:40 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 23/51 Submissions made on behalf of the State:
18. It has been argued by the Ld. Addl. PP for the State that the prosecution has proved beyond reasonable doubt that on 19.03.2017 at about 10:30 PM, while the complainant Balram Mohanti was waiting near the Nanaksar Bus Stand, for a bus to go to his work place i.e. New Delhi Railway Station, accused Vipin Bhagwat alongwith co-accused Mohd. Irshad (who was declared PO vide order dated 07.07.2023) and one more accomplice of theirs, who could not be traced during the investigation, had in pursuance of their common intention shared with each other had voluntarily caused hurt to the complainant, by using a danda and they had also committed robbery of a cotton/cloth bag containing one blue shirt having the badge of "Sergeant Brother Security", one black pant and one white plastic tiffin box, from the possession of the complainant. The injuries were caused to the complainant by the accused persons and their accomplice, in order to commit the said robbery. Therefore, accused Vipin Bhagwat has committed the offence punishable u/s 392/394 R/w section 34 of IPC, 1860.
19. It is further submitted by the Ld. Addl. PP for the state that at the time of the commission of the offence of robbery, accused Vipin Bhagwat had used a deadly weapon i.e. a danda, with which the injury was caused on the head of the complainant, therefore, the prosecution has proved beyond reasonable doubt that accused Vipin Bhagwat had Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 24/51 2025.02.03 11:27:44 +0530 committed the offence punishable u/s 397 of IPC, 1860.
20. It is further submitted by the Ld. Addl. PP for the state that the testimony of the complainant PW-1 Balram Mohanti is categorical in nature. He has fully supported the case of the prosecution and had deposed that on 19.03.2017, accused Vipin Bhagwat along-with his associates, co-accused Mohd. Irshad (who was later declared as PO) and one other unknown person had committed the robbery of his cotton/cloth bag containing one blue shirt having the badge of "Sergeant Brother Security", one black pant and one white plastic tiffin box, after they had given danda blows on his leg and head. The specific role was assigned to accused Vipin Bhagwat and he was correctly identified by PW-1 Balram Mohanti at the time of his examination-in-chief.
21. It is further submitted by the Ld. Addl. PP for the state that the accused Vipin Bhagwat alongwith co-accused Mohd. Irshad (PO) was apprehended from the spot by three public persons, who had responded to the cries for help raised by the complainant. The said public persons had handed over the accused persons including accused Vipin Bhagwat to the police officials, however, the third assailant managed to escape.
22. It is further submitted by the Ld. Addl. PP for the state that the case property i.e. a cotton/cloth bag containing one blue shirt having the badge of "Sergeant Brother Security", one black pant and one white plastic tiffin box, Ex. P-1 (colly) was recovered from the possession of co-accused Mohd. Irshad (PO). The said case property was duly Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:27:51 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 25/51 +0530 identified by the complainant PW1 Balram Mohanti and the IO PW5 SI Narender Singh.
23. It is further submitted by the Ld. Addl. PP for the state that the testimony of PW-1 Balram Mohanti was fully corroborated by the testimony of the other ocular witnesses namely PW3 Ashish Chaudhary and PW6 Sandeep Tomar. Both the said witnesses had correctly identified accused Vipin Bhagwat as the assailant who had committed the assault and robbery upon the complainant and the fact that the accused Vipin Bhagwat was overpowered and apprehended by them alongwith their friend Dipender.
24. It is further submitted by the Ld. Addl. PP for the state that the prosecution has proved beyond reasonable doubt through the testimony of the medical witness i.e. PW2 Dr. Deepika, wherein, the MLC of the complainant was brought on record as Ex. PW2/A. In the said MLC, it was duly mentioned by the PW2 that the complainant had suffered two injuries on his head, the first injury was swelling present over the left temporal area of the scalp. The second injury was lacerated wound 5x1 cm over the left temporal area of the scalp. The opinion as to the nature of the injury being "Simple", is an admitted document, Ex. A-4, since, the same was admitted by the accused Vipin Bhagwat in his statement u/s 294 Cr.PC, 1973.
25. It is further submitted by the Ld. Addl. PP for the state that the identity of the accused Vipin Bhagwat was fully established in the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:27:57 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 26/51 +0530 present case, as he was duly identified by all the prosecution witnesses, during their examination before the Court.
Submissions made on behalf of the Accused Vipin Bhagwat:
26. It is submitted by the Ld. LAC for accused Vipin Bhagwat that he has been falsely implicated in the present case and the IO has not conducted the fair investigation, since the accused was suffering from a mental disorder and he was taking appropriate treatment from IHBAS, Delhi and the IO chose not to bring the said documents on record. It is further submitted by the Ld. LAC that the accused Vipin Bhagwat is not capable of entering into his defense and considering his mental faculties, he could not have been attributed the commission of the offence in question and his case falls under the exception of section 84 of the Indian Penal Code, 1860.
27. It is submitted by the Ld. LAC for accused Vipin Bhagwat that the IO has falsely implicated the accused, since the IO SI Narender Singh was having a grudge against him, since he was working as an attendant in the parking of Delhi Vishwavidhyala Metro Station and one day, IO SI Narender Singh wanted to park his motorcycle in the said parking and refused to pay for the same. When the accused Vipin Bhagwat asked the IO SI Narender Singh to either pay or to park his motorcycle elsewhere, he was rebuked and was told that the accused would pay a huge price for his mistake and that he would falsely implicate the accused in some criminal matter, since, SI Narender Singh was a senior official of the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 27/51 11:28:02 +0530 Delhi Police. Thereafter, the entire story was cooked up by the IO and on the basis of the false statements of the complainant and the alleged eye witnesses, the accused was falsely implicated in the present case, after the IO turned up at his residence and picked him up in the dead of night.
28. It is submitted by the Ld. LAC for accused Vipin Bhagwat that the story as put forth by the prosecution is highly unbelievable and no reasonable prudent person would believe the same. There are number of contradictions between the testimonies of the complainant and the ocular witnesses, making them highly untrustworthy.
29. It is submitted by the Ld. LAC for accused Vipin Bhagwat that there are material contradictions between the inter-se testimonies of the two eye witnesses, PW3 Ashish Chaudhary and PW6 Sandeep Tomar. As per the case of the prosecution, the said witnesses were going about their affairs, when they had responded to the alarm raised by the complainant and that they had intervened and saved the complainant from the clutches of the assailants. As per the version of the IO, there was one other public witness namely Dipender, who was also traveling in the same car with PW3 and PW6, however, he was not examined before this Court, since, the IO chose not to include his name in the list of prosecution witnesses.
30. It is submitted by the Ld. LAC for accused Vipin Bhagwat that when PW3 Ashish Chaudhary entered into the witness box, he had categorically deposed that on the day of the incident, he was traveling Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:28:09 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 28/51 with his friend Dipender and he had not deposed that PW6 Sandeep Tomar was also traveling with them in the said car. The said discrepancy assumes significance, since it was categorically mentioned by the complainant in his complaint, Ex. PW1/A that when the assailants were giving him beatings and committed robbery upon him, one Swift car came there after he had raised the alarm and in the said car there were two occupants only.
31. It is submitted by the Ld. LAC for accused Vipin Bhagwat that it has categorically come in the testimony of the complainant PW-1 that the accused persons were not apprehended by the police in his presence from the spot. He had further categorically deposed that he did not knew as to from where the accused persons were apprehended by the police. Therefore, serious doubts are created upon the arrest and recovery in the present case and the benefit of the same must go to the accused persons.
32. It is submitted by the Ld. LAC for accused Vipin Bhagwat that as per the charges framed by the Ld. Predecessor of this court, accused Vipin Bhagwat was charged for committing the offence punishable u/s 397 IPC, 1860, since, allegedly he was armed with a deadly weapon i.e. the danda, while committing the robbery. It had categorically come in the testimony of PW1 Balram Mohanti that only one of the assailants had a danda in his hand and the said assailant who was having a danda in his hand was not accused Vipin Bhagwat or accused Mohd. Irshad (who was later declared as PO). Therefore, the accused Vipin Bhagwat cannot be convicted for committing the offence punishable u/s 397 IPC, 1860. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:28:14 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 29/51 +0530
33. It is submitted by the Ld. LAC for accused Vipin Bhagwat that it is highly unbelievable that the assailants while committing the robbery, would snatch the bag from the hands of the complainant, after they had searched the same, as per the testimony of PW1 Balram Mohanti and that the said bag was only containing his uniform and one tiffin box, while making no efforts to search the complainant for his mobile phone, since, he had categorically admitted the suggestion that none of the four offenders had searched his person for his mobile phone.
34. It is submitted by the Ld. LAC for accused Vipin Bhagwat that there are serious contradictions in the testimonies of the two police witnesses namely PW7 ASI Narender Kumar and PW5 SI Narender Singh regarding the timeline of the investigation and it raises serious doubts, upon the entire investigation, making it extremely fishy and suspicious.
35. It is submitted by the Ld. LAC for accused Vipin Bhagwat that one of the ocular witnesses PW3 Ashish Chaudhary had turned hostile and had not supported the case of the prosecution qua the identity of the assailants. Therefore, the accused Vipin Bhagwat cannot be convicted of the offences in question, since the prosecution failed to prove his identity beyond reasonable doubt.
Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:28:19 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 30/51 Relevant Law and Case Laws:
36. In the background of the above, before discussing the evidence brought on record in the present case, it is pertinent to point out that the accused person can be convicted on the basis of credible evidence brought on record and the appreciation of the said evidence must be done in correct and true perspective manner and in the natural course of events, what would have been occurred. Appreciation of evidence beyond reasonable doubt does not mean that it should be assessed beyond any iota of doubt. Beyond Reasonable Doubt means that the prosecution is required to place evidence at a higher degree of preponderance of probabilities compared to what is degree of preponderance of probability in civil cases. The theory of Beyond Reasonable Doubt means expecting higher degree of preponderance of probabilities and the natural conduct of human beings, as held by the Hon'ble High Court of Karnataka in "State of Karnataka Vs Venkatesh @ Venkappa & Anr" , Criminal Appeal No. 100492 of 2021, decided on 18.12.2023.
37. Section 3 of the Indian Evidence Act defines "evidence". The evidence can be broadly divided into oral and documentary. "Evidence"
under the Act can be said to include the means, factor or material, lending a degree of probability through a logical inference to the existence of a fact. It is an adjective law highlighting and aiding the substantive law. Thus, it is neither wholly procedural nor substantive, though trappings of both could be felt. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:28:32 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 31/51
38. The definition of the word "proved" though gives an impression of a mere interpretation, in effect, is the heart and soul of the entire Act. This clause, consciously speaks of proving a fact by considering the "matters before it". The importance is attached to the degree of probability in proving a fact through the consideration of the matters before the court.
What is required for a court to decipher is the existence of a fact and its proof by a degree of probability, through a logical inference.
39. Matters are necessary, concomitant material factors to prove a fact. All "evidence" would be "matters" but not vice versa. In other words, matters could be termed as a genus of which evidence would be a species. Matters also adds strength to the evidence giving adequate ammunition in the Court's sojourn in deciphering the truth. Thus, the definition of "matters" is exhaustive, and therefore, much wider than that of "evidence". However, there is a caveat, as the court is not supposed to consider a matter which acquires the form of an evidence when it is barred in law. Matters are required for a court to believe in the existence of a fact.
40. Matters, do give more discretion and flexibility to the court in deciding the existence of a fact. They also include all the classification of evidence such as circumstantial evidence, corroborative evidence, derivative evidence, direct evidence, documentary evidence, hearsay evidence, indirect evidence, oral evidence, original evidence, presumptive evidence, primary evidence, real evidence, secondary Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:28:48 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 32/51 evidence, substantive evidence, testimonial evidence, etc.
41. In addition, they supplement the evidence in proving the existence of a fact by enhancing the degree of probability. As an exhaustive interpretation has to be given to the word "matter", and for that purpose, the definition of the expression of the words "means and includes", meant to be applied for evidence, has to be imported to that of a "matter" as well. Thus, a matter might include such of those which do not fall within the definition of Section 3, in the absence of any express bar.
42. What is important for the court is the conclusion on the basis of existence of a fact by analyzing the matters before it on the degree of probability. The entire enactment is meant to facilitate the court to come to an appropriate conclusion in proving a fact. There are two methods by which the court is expected to come to such a decision. The court can come to a conclusion on the existence of a fact by merely considering the matters before it, in forming an opinion that it does exist. This belief of the court is based upon the assessment of the matters before it. Alternatively, the court can consider the said existence as probable from the perspective of a prudent man who might act on the supposition that it exists. The question as to the choice of the options is best left to the court to decide. The said decision might impinge upon the quality of the matters before it.
43. The word "Prudent" has not been defined under the Act. When the court wants to consider the second part of the definition clause instead of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:28:53 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 33/51 believing the existence of a fact by itself, it is expected to take the role of a prudent man. Such a prudent man has to be understood from the point of view of a common man. Therefore, a judge has to transform into a prudent man and assess the existence of a fact after considering the matters through that lens instead of a judge. It is only after undertaking the said exercise can he resume his role as a judge to proceed further in the case.
44. The aforesaid provision also indicates that the court is concerned with the existence of a fact both in issue and relevant, as against a whole testimony. Thus, the concentration is on the proof of a fact for which a witness is required. Therefore, a court can appreciate and accept the testimony of a witness on a particular issue while rejecting it on others since it focuses on an issue of fact to be proved. However, the evidence of a witness as whole is a matter for the court to decide on the probability of proving a fact which is inclusive of the credibility of the witness. Whether an issue is concluded or not is also a court's domaine.
45. While appreciating the evidence as aforesaid along with the matters attached to it, evidence can be divided into three categories broadly namely, (i) wholly reliable, (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable. If evidence, along with matters surrounding it, makes the court believe it is wholly reliable qua an issue, it can decide its existence on a degree of probability. Similar is the case where evidence is not believable. When evidence produced is neither wholly reliable nor wholly unreliable, it might require corroboration, and Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:01 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 34/51 +0530 in such a case, court can also take note of the contradictions available in other matters. The aforesaid principle of law has been enunciated in the authority of Hon'ble Supreme Court of India in "Vadivelu Thevar v. State of Madras" , 1957 SCR 981 wherein it is held as under:
"In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that "no particular number of witnesses shall in any case, be required for the proof of any fact". The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's Law of Evidence -- 9th Edn., at pp. 1100 and 1101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s.134 quoted above. The section enshrines the well-recognized maxim that "Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:07 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 35/51 +0530 depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely: (1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should have no difficulty in coming to its conclusion either way -- it may convict or may acquit on the testimony of a single witness, if it is found to be Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:11 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 36/51 above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict, if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution." Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:16 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 37/51
46. Before proceeding ahead with appreciation of the evidence brought on record, this court deems it fit to discuss section 397 IPC, 1860 which is reproduced below:
"397. Robbery or dacoity, with attempt to cause death or grievous hurt ;
If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
47. As per the ingredients of offence punishable u/s 397 IPC, 1860 an act would fall within the mischief of the section if at the time of committing the robbery/dacoity the offender:
(a) uses any deadly weapon; or
(b) causes grievous hurt to any person; or
(c) attempts to cause death or grievous hurt to any person.
Reliance is placed upon the decision of the Hon'ble High Court of Bombay in "Shrawan Dashrath Datrange Vs. State of Maharastra"
(1997) 2 Crimes 47 (Bom).
48. As far as the interpretation of the word " uses" for the purpose of Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:22 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 38/51 section 397 IPC, 1860 is concerned, what is essential to satisfy the word "uses" is that the robbery being committed by an offender who was armed with deadly weapon which was within the vision of the victim, so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. Reliance is placed upon the decision of the Hon'ble Supreme Court of India in "Ashfaq Vs. State (Govt. of NCT of Delhi) " (2004) 3 SCC 116.
Appreciation of Evidence:
49. In the background of the abovesaid decisions, I shall now appraise the evidence brought on record. The prosecution has duly proved through the testimony of PW1 Balram Mohanti that he had made a call to the police at 100 number, which led to registration of DD No.71-B at PS Sonia Vihar, from his mobile number 9910300149. Although, the IO had not filed the copy of the said DD entry alongwith the chargesheet, however, it had categorically come in the examination-in-chief of PW1 Balram Mohanti that after the incident, when the public persons, who were traveling in a car had responded to his cries for help, he was saved from the clutches of the accused persons and their accomplice. Thereafter, the assailants had turned their attention towards the good samaritans, who had responded to the alarm raised by the complainant. In the meanwhile, the complainant managed to escape and run towards the red light, where the booth the Delhi Traffic Police was situated.
When he found no officer on duty there, he dialed the 100 number from Digitally
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ATUL AHLAWAT
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his mobile phone. Although, the lapse on the part of the IO, in not filing the relevant DD entry is noteworthy, however, the same is not a material lapse, so as to dent the entire case of the prosecution, since, it was not disputed by the accused persons that no such call was ever made to the police or the said call was not marked to PW5 IO SI Narender Singh. Therefore, the prosecution has been able to prove beyond reasonable doubt, the genesis of its case i.e. the call on 100 number.
50. The testimony of complainant, PW1 Balram Mohanti is highly categorical in nature and he had specifically deposed about the role of accused Vipin Bhagwat after correctly identifying him before this Court at the time of recording of his testimony. He had specifically deposed that accused Vipin Bhagwat alongwith co-accused Mohd. Irshad (later declared as PO) had assaulted him with a danda and had dragged him towards the jungle and had snatched his bag from him.
51. PW1 Balram Mohanti had categorically deposed that on 19.03.2017, at about 10:30 PM, he was present near Nanaksar Bus Stand, situated on main Wazirabad Road and was waiting for a bus to report for his night duty. At that time, 3-4 persons came near him from behind and they gave danda blows on his leg and head and thereafter, started searching the bag that he was carrying at that time. He had further categorically deposed that the assailants including accused Vipin Bhagwat were trying to drag him towards the forest. He had raised the alarm and two persons who were in a car coming on the road at that time, responded to the cries of help and the said persons opened the window of their car and asked the Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:32 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 40/51 +0530 assailants including accused Vipin Bhagwat to stop giving beatings to the complainant and that they should leave him alone.
52. The said testimony of the complainant PW1 Balram Mohanti was fully corroborated by the testimonies of the eye witnesses PW3 Ashish Chaudhary and PW6 Sandeep Tomar, in all the material aspects. Their categorical depositions had made the testimony of the complainant highly trustworthy.
53. It was categorically deposed by PW3 Ashish Chaudhary that on 19.03.2017 at around 10:30-11:00 PM, while they were passing through Nanaksar Bus Stand, they saw that 2-3 persons were dragging a man towards Pusta Pipeline and at that time the victim was raising an alarm. They has responded to the said cries for help and the assailants including the accused Vipin Bhagwat came next to their car and started hitting it with a danda. They managed to overpower and apprehend two of the said assailants, including accused Vipin Bhagwat and co-accused Mohd. Irshad (later declared PO), while the third assailant managed to escape.
54. The PW3 Ashish Chaudhary had initially deposed that he could not identify the assailants at the time of his examination-in-chief, however, the said identity of the accused Vipin Bhagwat was duly established in the cross examination conducted by Ld. Defense Counsel on 06.06.2024, wherein, he had categorically deposed that "I had called the police after the accused Vipin Bhagwat and his accomplice were overpowered and apprehended by us". He had further deposed that "I had reached the PS Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:37 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 41/51 in my own vehicle and accused Vipin Bhagwat was taken by the police officials in their official car". He went on to further depose that "The accused Vipin Bhagwat had also received injuries on his head". Therefore, from the careful perusal of his examination-in-chief and cross examination, when read as a whole, it is made absolutely clear that accused Vipin Bhagwat was the person whom PW3 had overpowered and apprehended from the scene of crime after the incident.
55. The Ld. Defense Counsel had put certain suggestions to PW3 Ashish Chaudhary that certain other unknown persons had come to the spot and the said persons had given injuries to accused Vipin Bhagwat or that the said unknown persons had robbed the victim Balram Mohanti and that the accused persons were innocent and that accused Vipin Bhagwat was himself a victim. The said suggestions were categorically denied by PW3 Ashish Chaudhary. Therefore, in the mind of this Court, PW3 Ashish Chaudhary has lent enough credence to the testimony of the injured victim PW1 Balram Mohanti.
56. The testimonies of the complainant PW1 Balram Mohanti and PW3 Ashish Chaudhary was fully supported by the other ocular witness, namely PW6 Sandeep Tomar. He had also categorically deposed that on 19.03.2017, at around 10:30 PM, he alongwith his friends namely PW3 Ashish Chaudhary and one Dipender were going towards Model Town from Bhajanpura and when they reached near Nanaksar Gurudwara, he saw that three persons were dragging one man towards the jungle and they were giving beatings to the said person with danda. He had further Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:42 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 42/51 +0530 deposed that they got down from their car and one of the assailants was having a danda in his hand. He further categorically deposed that he alongwith his two friends intervened and saved the victim from the clutches of the assailants and the victim had also received some injuries in the said assault committed by the assailants. He further categorically deposed that out of the three assailants, they managed to overpower and apprehend two assailants, however, the third one managed to escape.
57. PW6 Sandeep Tomar had correctly identified accused Vipin Bhagwat as one of the assailant, who was assaulting the complainant and the one who was apprehended by them on the day of the incident. His categorical testimony has also provided enough corroboration to the testimony of the complainant, so as to establish the veracity of the prosecution story as a whole.
58. The MLC of the complainant Balram Mohanti, Ex. PW2/A was duly brought on record through the testimony of PW2 Dr. Deepika. In the said MLC, it was duly mentioned by the PW2 that the complainant had suffered two injuries on his head, the first injury was swelling present over the left temporal area of the scalp. The second injury was lacerated wound 5x1 cm over the left temporal area of the scalp. The opinion as to the nature of the injury being "Simple" is an admitted document, Ex.
A-4, since, the same was admitted by the accused Vipin Bhagwat in his statement u/s 294 Cr.PC, 1973. Therefore, the prosecution has been able to prove beyond reasonable doubt that complainant Balram Mohanti had sustained injury during the assault carried out by the accused Vipin Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 43/51 11:29:48 +0530 Bhagwat and his accomplices.
59. Through the testimony of PW1 Balram Mohanti and PW5 IO SI Narender Singh, the prosecution has proved beyond reasonable doubt that the robbed articles i.e. cotton/cloth bag containing one blue shirt having the badge of "Sergeant Brother Security", one black pant and one white plastic tiffin box were recovered from the possession of co-
accused Mohd. Irshad (later declared as PO), vide seizure memo, Ex. PW5/C. The said looted articles, Ex. P-1 (colly) were correctly identified by the complainant PW1 Balram Mohanti and the IO PW5 SI Narender Singh.
60. The non recovery of the weapon which was used during the commission of the offence, i.e. the danda is not fatal to the case of the prosecution, since the ocular witnesses, namely PW3 Ashish Chaudhary and PW6 Sandeep Tomar have categorically deposed that they managed to overpower and apprehend two of the assailants, including accused Vipin Bhagwat, however, the third assailant managed to run away from there. Furthermore, it had also come in the cross examination of PW1 Balram Mohanti that one of the assailants had a danda in his hand and the said assailant was not facing trial before this Court, therefore, the said danda could have been in the possession of the said third assailant, who was never traced during the investigation.
61. As far as the offence punishable u/s 397 IPC, 1860 is concerned, in the present case, the Ld. Predecessor of this court had framed charges Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:29:53 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 44/51 against accused Vipin Bhagwat for committing the offence punishable u/s 397 IPC, 1860. It is trite law as held by the Hon'ble Apex Court in "Ashfaq Vs. State" (2004) 3 SCC 116, that section 397 IPC, 1860 postulates only the individual act of the accused relevant to attract the said section. It inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34 of IPC, 1860. On similar grounds the accused against whom there are specific allegation of committing the offence punishable u/s 397 IPC, 1860 are leveled, can be tried for the commission of the said offence and the co-accused person cannot be held guilty on the basis of sharing common intention with the said person. Since, it had categorically come in the testimony of the complainant PW1 Balram Mohanti that one of the assailants had a danda in his hand and accused Vipin Bhagwat was not the said assailant, therefore, the prosecution could not establish through the testimony of any material witness that accused Vipin Bhagwat had used any deadly weapon or had caused any grievous hurt to the complainant Balram Mohanti or attempted to cause the death or grievous hurt to any person, during the said incident in question, therefore, he cannot be convicted for committing the offence punishable u/s 397 IPC, 1860.
62. During the trial, the accused Vipin Bhagwat had taken two parallel defenses. Although, taking contradictory pleas in the defense is not a taboo under the criminal jurisprudence, however, the accused person who had taken the said pleas, has to create a reasonable doubt in the mind of the Court, making the prosecution version unbelievable.
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ATUL AHLAWAT
AHLAWAT Date:
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63. The first defense taken by the accused Vipin Bhagwat is that he was suffering from the mental disorder or that he was receiving treatment from IHBAS, Dilshad Garden for the same and therefore, the case against him falls within the general exception of section 84 of IPC, 1860. The said defense taken by the accused Vipin Bhagwat is not tenable, since it is trite law, as contained in section 105 of the Indian Evidence Act, 1872 that the burden of proving that the case of accused Vipin Bhagwat fell within the general exception of section 84 of IPC, 1860, was upon him and this Court had to presume the absence of such circumstances. Except for the odd suggestions given to the IOs, the accused had not discharged the special burden cast upon him u/s 105 of Indian Evidence Act, 1872. He chose not to bring any defense evidence to substantiate his defense that he was receiving treatment from IHBAS at any point of time, so as to effect his mental faculties to commit the offence in question.
64. The second defense taken by the accused Vipin Bhagwat is that the accused was himself a victim and that certain unknown person had also come to the spot and the said unknown persons had given injuries to accused Vipin Bhagwat and the said unknown persons had also committed the robbery upon victim Balram Mohanti. The said defense was nothing but a mere suggestion given to one of the witnesses namely PW3 Ashish Chaudhary and the said suggestion was not even put to the complainant or to the other ocular witness, PW6 Sandeep Tomar. There is nothing on record to show the involvement of any other person in the offence in question or that accused Vipin Bhagwat was himself a victim. Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
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65. Admittedly, the IO had filed the MLC of accused Vipin Bhagwat, Ex. PW5/F alongwith the chargesheet and the said fact of him receiving the injuries have come in the testimony of PW3 Ashish Chaudhary and PW5 IO SI Narender Singh. In the said MLC, the concerned doctor had recorded the alleged history of physical assault by "ten known identifiable persons, as told by patient". Therefore, the accused had himself mentioned before the concerned doctor that the said ten persons were known to him, therefore, the said MLC is running counter to his defense that unknown assailants had given beatings to him, while the said persons were committing the robbery and assault upon the complainant Balram Mohanti.
66. The injury on the body of the accused Vipin Bhagwat can also be attributable to the fact that he was apprehended from the spot by the public persons including PW3 Ashish Chaudhary and PW6 Sandeep Tomar, since it had categorically come in the cross examination of PW6 that when they apprehended the two assailants including accused Vipin Bhagwat, a minor scuffle had ensued, while they tried to rescue the complainant from the clutches of the assailants/accused persons.
67. The third line of defense was taken by the accused Vipin Bhagwat was taken at the time of his statement recorded u/s 313 Cr.PC, 1973, wherein, he had completely flipped the story and he has himself contradicted his earlier defense as being put to other prosecution witnesses, that the IO has falsely implicated the accused, since the IO SI Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:30:09 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 47/51 +0530 Narender Singh was having a grudge against him, since he was working as an attendant in the parking of Delhi Vishwavidhyala Metro Station and one day, IO SI Narender Singh wanted to park his motorcycle in the said parking and refused to pay for the same. When the accused Vipin Bhagwat asked the IO SI Narender Singh to either pay or to park his motorcycle else where, he was rebuked and was told that the accused would pay a huge price for his mistake and that he would falsely implicate the accused in some criminal matter, since, SI Narender Singh was a senior official of the Delhi Police. No defense evidence was led by him to establish the said defense taken by him. Furthermore, the accused Vipin Bhagwat had tried to blow hot and cold at the same time, since, first he takes the defense that although he was near the spot at the time of the alleged incident, however, he himself is a victim and some unknown persons committed the assault upon him and the complainant, however, later on he flips the entire defense by stating that he was falsely implicated by the IO, as the IO was having a grudge against him. Therefore, the said defense is nothing but an after thought.
68. The testimony of the complainant PW1 Balram Mohanti is of sterling character and no major improvements or contradictions were pointed out in his deposition. He was fully corroborated on material particulars by the ocular witness, PW3 Ashish Chaudhary and PW6 Sandeep Tomar. The factum of accused Vipin Bhagwat being overpowered by the public persons and him being caught red handed was further corroborated through the testimonies of PW5 IO SI Narender Singh and PW7 ASI Narender Kumar. The accused could not raise any Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:30:14 +0530 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 48/51 reasonable doubt in the case of the prosecution, by cross examining the material witnesses or by leading defense evidence. The contradictory defenses taken by the accused in his suggestions being put to the material prosecution witnesses and in his statement recorded u/s 313 Cr.PC, 1973, has further weakened his likely defense and nothing material came out from the records of the present case that there could have been another hypothesis, consistent with the innocence of the accused.
Conclusion and Findings:
69. It is settled law that accused has to only probabilize the defense and he is presumed to be innocent till he is proved to be guilty. Suspicion, however, strong can never take place of proof. There is indeed a long distance between accused "May have committed the offence" and "Must have committed the offence", which must be traversed by the prosecution by adducing reliable evidence. Emphasis is supplied on the decision of the Hon'ble Supreme Court of India in "Kailash Gaur Vs. State of Assam" (2012) 2 SCC 34 and "Padala Veera Reddy Vs. State of Andhra Pradesh" AIR 1990 SC 79. In the present case, the prosecution has been able to travel the long distance from "may" to "must", by duly leading reliable evidence through the testimony of PW1 Balram Mohanti, PW3 Ashish Chaudhary and PW6 Sandeep Tomar. Their testimonies were fully supported and corroborated by the testimony of the police officers PW5 IO SI Narender Singh and PW7 ASI Narender Kumar. The categorical testimony of the complainant PW1 Balram Digitally signed by ATUL ATUL AHLAWAT AHLAWAT Date:
2025.02.03 11:30:19 CNR No. DLNE01-010108-2016 State Vs. Vipin Bhagwat & Anr. FIR No. 58/2017 Page no. 49/51 +0530 Mohanti, was fully corroborated by the ocular witness, PW3 Ashish Chaudhary and PW6 Sandeep Tomar, regarding the role of the accused Vipin Bhagwat, in commission of the offence in question.
70. Merely because, one of the other culprit could not be traced and the weapon used during the commission of the offence by the said culprit, were not recovered, does not mean that the offence committed by the present accused Vipin Bhagwat stands washed out.
71. In the facts of the present case, the prosecution was able to prove all the material links of the chain of circumstantial evidence and the said chain pointed towards the guilt of accused Vipin Bhagwat and no other hypothesis inconsistent with his guilt could be brought on record and the defense taken by the accused person that he was not party to the offence in question is not believable in the light of the testimony of the complainant, PW1 Balram Mohanti and the corroborating testimonies of PW3 Ashish Chaudhary and PW6 Sandeep Tomar.
72. In view of the aforesaid, the accused Vipin Bhagwat S/o Ramji Bhagwat is hereby held guilty and convicted for committing the offence punishable under section 392/394 R/w section 34 of the Indian Penal Code,1860; and he is acquitted for committing the offence punishable u/s 397 of the Indian Penal Code, 1860.
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ATUL AHLAWAT
AHLAWAT Date:
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73. To be now heard on the point of sentence.
Announced in the open court on 03.02.2025.
This judgment consists of 51 pages and all of them have been digitally signed by me.
Digitally
signed by
ATUL
ATUL AHLAWAT
AHLAWAT Date:
2025.02.03
11:30:34
+0530
(ATUL AHLAWAT)
ASJ (FTC)/North-
East/KKD Courts/
Delhi/03.02.2025.
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