Delhi District Court
State vs Arun on 31 March, 2014
IN THE COURT OF Ms. ANU MALHOTRA
DISTRICT & SESSIONS JUDGE (WEST) : DELHI
Sessions Case No. 10/12
Unique Case ID No. 0240IR0039372012
FIR No. 447/11
PS : Hari Nagar
Under Sections : 394/397/34 IPC
State
Versus
Arun, S/o Shri somvir
R/o Jhuggi No. W167/24
Harizan Colony, Near Block12
Tilak Nagar, Delhi.
Date of Committal : 16.02.2012
Date of reserving the Judgment : 26.03.2014
Date of pronouncement : 29.03.2014
JUDGMENT
This judgment shall dispose of the allegations levelled against the accused Arun S/o somvir in the chargesheet qua the alleged commission of the offences punishable under Section 394 read with 397 read with 34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC), qua which FIR No. 447 of 2011 PS Hari Nagar was registered against him on 08.10.2011.
SC10/2012 Page 1/28
The chargesheet in the instant case was instituted on 24.01.2012 and the proceedings were received on committal by the Court of Sessions on 22.02.2012.
The charge of allegations was framed against the accused on 15.03.2012 to the effect that the accused on 08.10.2011 at about 06:40 PM at Pratap Park walking track, Hari Nagar, Delhi within the jurisdiction of PS Hari Nagar alongwith the coaccused Ravi @ Doli (who has since not been arrested) in furtherance of their common intention committed robbery of a mobile phone and of Rs.8,000/ belonging to the complainant Amrit Mohan Singh and that whilst committing the said offence of robbery, the accused also used a surgical blade i.e. a deadly weapon and thus, the accused committed the offences punishable under Section 394/397/34 of the IPC, to which charge of allegations, the accused pleaded not guilty and claimed trial.
In support of the prosecution version, the State cited 12 prosecution witnesses, of whom 11 witnesses have been examined. The accused has not led any evidence in defence but has reiterated in his statement under Section 313 of the Cr.P.C., 1973 to the effect that he is innocent and that he was picked up from his house at 4.00 AM and taken to the Police Station Janakpuri and he further stated that he was informed that he had to be interrogated and thereafter, the police SC10/2012 Page 2/28 of PS Janakpuri handed over him to SI Ashok Kumar of PS Hari Nagar. He further stated that there was nothing recovered from him nor was anything recovered at his behest. Interalia, the accused admitted that he declined to participate in the Test Identification Parade but stated that he did so as he has been shown to the witnesses at the Police Station.
PROSECUTION VERSION As per prosecution version, SI Ashok Kumar on receipt of DD No. 27 dated 08.10.2011 PP Hari Nagar, Delhi, which DD entry was to the effect that there was a call received from the PCR at 7.00 PM to the effect that W50 had telephonically informed that in the front of the park in front of H. No. 128, Pratap Park , one person had been assaulted with a knife and this telephonic information had been given by HC Mukesh, No. 8306 of the PCR. Mobile No. 9953320313 whereupon the said DD entry was entrusted to SI Ashok Kumar, who alongwith Constable Devender, No. 2932 (West) reached the spot at the part at Pratap Park and found that there was blood on the walking track and on inquiries, it was learnt that the injured had been taken to the Lotus Hospital, Hospital, Janak Park, Hari Nagar and thus, SI SC10/2012 Page 3/28 Ashok Kumar left Constable Devender at the spot and informed the Crime Team, who reached the spot and he himself went to the Lotus Hospital where the injured Amrit Mohan Singh, son of Shri Kuldeep Singh, resident of H. No. 128, IInd Flor, Pratap Park aged 56 years was found admitted vide MLC No. 1P7406 and the doctor had mentioned on the MLC that there was an alleged history of being stabbed in the left arm, abdomen and being pushed and the doctor also declared the patient not being fit for making a statement presently because of he being put on anesthesia and thus, SI Ashok Kumar returned to the spot and in view of the DD entry and the MLC and the situation at the spot, the FIR was sent for registration of the offence u/s. 324 of the IPC with the rukka having been sent through Constable Devender to the Police Station. Interalia, it was mentioned by SI Ashok Kumar, Investigation Officer of the case in his endorsement Ex. PW10/A that there was no eye witness found at the spot.
It has been further stated through the charge sheet that the Crime Team collected the blood from the walking track and put the same into a plastic box and also took the earth control cement separately and put the same into another box and also took the blood stained cement and put the same into another box and all the three boxes were sealed in cloth pullanda with the seal of AKS and was SC10/2012 Page 4/28 seized vide seizure memos. Interalia, the blood stained clothes of the injured i.e. a shirt and an underwear of Shri Amrit Mohan Singh were also collected by SI Ashok Kumar and put the same into a plastic bag and then, put into a cloth pullanda and sealed with the seal of AKS and seized and the entire case property was deposited into the Malkhana. Interalia, it has been submitted through the charge sheet that the Crime Team also inspected the spot and handed over its report to SI Ashok Kumar. As per the allegations in the charge sheet, an attempt was made by SI Ashok Kumar to trace out the accused but the accused could not be traced out. It has been further submitted in the charge sheet that on 09.10.2011, the injured Amrit Mohan Singh was declared fit for statement by the doctor and thus, his statement was recorded and on 10.10.2011, it was informed by Shri Aman Deep Singh, the son of the injured that the mobile phone of the make Nokia C5002 of black colour bearing mobile number as 9811419710 with IMEI No. 357006044218135 at the time of assault had got lost, whereby SI Ashok Kumar sent the information to the ACP/TN to get the call details and on 15.10.2011, on a secret information, SI Ashok Kumar informed 4/5 passersby to join the investigation proceedings, all declined to do so expressing their inability. SI Ashok Kumar alongwith an accompanying Constable reached the spot and at the SC10/2012 Page 5/28 pointing out of the secret informer, apprehended the accused Arun, son of Shri somvir.
As per the prosecution version, the accused on being apprehended disclosed to the police of the commission of the alleged offence in the instant case alongwith his associates Ravi and Doli, residents of Keshavpur Mandi. The Investigation Officer is stated to have recorded the disclosure statement of the accused Arun, son of Shri somvir qua the present case and the accused also produced Rs. 410/ from his pocket and informed the police that out of Rs. 2,000/ that had come to his share on the commission of the offense, Rs.410/ were the balance that remained with him and the remaining had been spent by him. The said Rs. 410/ are stated to have been seized by the Investigation Officer. The accused is alleged to have stated that the mobile phone involved in the instant case was with the coaccused Ravi and the accused also led the police to the spot of occurrence and thereafter, also led the police to the recovery of the surgical blade involved in the alleged commission of the offence, which was found from Nirmal Chhaya, Tihar Jail Complex at Pratap Park in the park beneath a stone near a tree where the surgical blade was found with blade stain and was put into a match box and then, put into a cloth pullanda and sealed with the seal of AKS and was thus seized and SC10/2012 Page 6/28 seizure memo was prepared to the seizure effected. As per the prosecution version, though all attempt was made to search the accused Ravi and Doli but they could not be traced out. Interalia, as per the prosecution version, the accused Arun was remanded to judicial custody and thereafter, produced before the ld. Metropolitan Magistrate for conducting of the Test Identification Parade but the accused refused to participate in the same. It has been further submitted through the charge sheet that the exhibits were also sent to the FSL for examination and that the FSL result had not been received till the filing of the charge sheet. It was further stated through the charge sheet that in view of the investigation conducted, the police report had been instituted under Section 394/397/411/34 of the IOC and that the coaccused Ravi and Doli were yet to be arrested.
During the course of the proceedings, the FSL result has been submitted on 04.09.2012.
At the outset before proceeding further, it is essential to observe that there is a minor discrepancy and error in the charge framed on 15.03.2012 in as much as the accused is alleged to have committed the alleged offences of robbery and assault with user of deadly weapon in furtherance of his common intention with the co accused Ravi @ Doli, whereas as per the prosecution version SC10/2012 Page 7/28 mentioned in the charge sheet, Ravi and Doli are two different persons, who could not be arrested till the filing of the charge sheet. The said discrepancy however does not necessitate the conducting of any new trial as there has been no failure of justice by this irregularity in the charge framed on 15.03.2012. In view thereof, the Court proceeds to analyse the evidence on record.
PROSECUTION EVIDENCE The then ld. Metropolitan Magistrate Shri Vijay Shanker, now ACMM, Dwarka Courts cited at serial No. 10 of the prosecution witnesses in relation to the Test Identification Parade conducted, in which, the accused refused to participate appeared on 23.07.2013 and the Test Identification Parade placed in the sealed cover were unsealed and in terms of Section 294 of the Cr.P.C., put to the accused for admission/denial and were thus admitted by the accused as Ex. C1 (Colly).
PW1 examined by the State was HC Katya Pradesh, who testified to having got the FIR No. 447/11 registered on the computer through the Computer Operator on receipt of the rukka at about 10.40 pm brought by Constable Devender sent by SI Ashok Kumar, where SC10/2012 Page 8/28 upon he was posted as Duty Officer. The computer generated copy of the FIR testified by the witness as being Ex. PW1/A. The testimony of the PW1 has not been challenged by the accused through cross examination.
PW4 put forth in the witness box was Amrit Mohan Singh, the injured, who testified to the effect that he resides at H. No. 128, Pratap Park , Hari Nagar, Delhi and stated that in the month of October 2011, he had gone in the evening to walk in the park and was walking in the track in the park and at about 6.45 pm, two persons came from behind him and caught hold him by hands and one of them started beating him with fist and another one pointed out a knife on him and thereafter, one of them took out his purse from his pocket, which contained Rs. 8,000/. Interalia, PW4 stated that the person who had took out the purse from his pocket, would be one of two accused persons but he could not state as to the accused present in the Court i.e. the accused Arun, who was present in the Court at the time of recording of the testimony of the witness, was the person, who had taken the purse from his pocket as he had stated that both the accused and the other person with him, were at his back and who also caused injuries to him and he fell down and became unconscious. Thereafter, he regained consciousness after about 15 minutes and his son SC10/2012 Page 9/28 Amandeep brought him to Lotus Hospital where he was given treatment and his clothes were also taken into possession of the police. Interalia PW4 identified his shirt and underwear with brown stains as being the clothes, he was wearing at the time of incident and said clothes were brought in a sealed envelope sealed with the seal of FSL, which have been identified by the injured and exhibited as Ex. P1 (colly). The testimony of this witness has not been challenged by the accused through crossexamination.
PW6 produced in the witness box was HC Balwan Singh, who testified to the effect that on 08.10.2011, when he was posted at PP Hari Nagar at about 7.00 pm, a PCR call was received at PP Hari Nagar, which was recorded by him as DD No. 27 and after recording of the said DD, the copy of the same was given to Constable Sunder for handing over the same to SI Ashok Kumar for investigation and further testified that the copy of the DD No. 27 is Ex. PW6/1, which bore his signature. The testimony of this witness too was not challenged by the accused.
PW2 produced in the witness box was Constable Devender, who testified to the effect that on 08.10.2011, he was posted on emergency duty at PP Hari Nagar PS Hari Nagar and on receipt of copy of DD No. 27, he alongwith IO / SI Ashok Kumar went SC10/2012 Page 10/28 to the park of Pratap Park, in front of House No. 128 where a crows was gathered and he found blood on the walking track and on inquiry, they came to know that the injured had been removed to Lotus Hospital, Janak Park, Hari Nagar and SI Ashok Kumar sent a message for sending a Crime Team at the spot and himself went to the Lotus Hospital. Interalia PW2 testified to the effect that IO had returned to the spot and handed over to him the rukka, which he took to the Police Station for registration of the FIR and thereafter, returned to the spot with the copy of FIR and the original rukka, which he handed over to the IO. PW2 further testified to the effect to the effect that the IO having lifted the blood lying on the walking track with the help of a cotton and kept it in a plastic jar and also of having lifted the cement of track and kept it in a separate plastic and thereafter, all the three plastic jars were sealed by the IO with the seal of AKS and seized the same vide seizure memo Ex.PW2/A. Interalia, PW2 testified to the inspection of the site plan and to the preparation of the site plan by the IO and stated that thereafter, he alongwith the IO went to the Lotus Hospital where the doctor handed over the blood stained clothes of the injured to the IO, which were sealed with the seal of AKS and seized the same vide seizure memo Ex. PW2/B. Interalia PW2 testified to the effect that the IO had recorded his statement.
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On being crossexamined by the counsel for the accused, the witness PW2 denied that he had not visited the spot or the hospital and denied that the entire writing work had been done whilst sitting in the Police Station and further denied that he has deposed falsely.
PW8 put forth in the witness box was HC Devender Kumar, who testified to the effect that on 08.10.2011, he alongwith ASI Azad Singh, ASI Dharamveer and Driver Constable Sunil (Finger Print Expert) had gone in a vehicle to the spit at Adarsh Park, Hari Nagar and at the main gate of the Adarsh Park, there was a blood lying there, which was photographed by him. He further testified to having taken the photograph of the floor on the walking track and stated that there was blood also on the Eucalyptus leaves lying on the ground, which were photographed by him and that he had taken eight photographs of the spot and testified to Ex. PW8/1 (1 to 8 colly) as being the said photographs with negatives thereof as being Ex. PW8/2 (1 to 8 colly). The testimony of this witness too was not challenged by the accused.
PW9 ASI Azad Singh, the InCharge of the Crime Team also testified having reached the spot alongwith his Crime Team i.e. HC Devender Kumar, the photographer and ASI Dharamveer, the Finger Print Expert and on having reached Adarsh Park, Opposite Gate SC10/2012 Page 12/28 No.3 of the Tihar Jail, New Delhi, on receipt of secret information on 08.10.2011 from the Control Room. He corroborated the version of PW8 that there was a lot of blood lying in front of the main gate of the park and on the walking track and on the tree i.e. the safeda tree (Eucalyptus) and on the leaves on the ground and testified to having prepared the report in relation to the places where the blood was found and also testified to the effect that he prepared a report Ex. PW9/1, which he handed over to the IO.
Interalia on being crossexamined by the counsel for the accused, the witness PW9 stated that he reached the spot and remained there till 9.00 am and that when he reached there, there were 12 Constables in uniform at the spot and there were members of the public also there. Interalia, he further stated that there was no barricade around the blood but members of the public were not being allowed to enter the park and denied that he did not go to the spot.
PW3 examined by the State was HC Balmiki Mishra, the then MHC(M), PS Hari Nagar, who testified to the effect that on 08.10.2011, SI Ashok Kumar, the IO of the case deposited three pullandas sealed with the seal of AKS alongwith the copy of seizure memo and also deposited one sealed pullanda sealed with the seal of AKS alongwith a copy of seizure memo. He also made an entry to the SC10/2012 Page 13/28 effect in register No. 19 at serial No. 3458, copy of which is testified to be Ex. PW3/A. Interalia PW3 testified that the IO deposited one sealed pullanda sealed with the seal of AKS alongwith a copy of seizure memo and cash of Rs. 410/ alongwith a copy of seizure memo on 15.10.2011 and stated that he had made an entry to this effect in register No. 19 at serial No. 3473, copy of which is testified to be Ex. PW3/B and testified to having brought the original register. PW3 further testified to the deposit of the personal search of the accused vide the same entry by the IO. Interalia, it was testified by the PW3, the then MHC(M) that he had handed over the five sealed pullandas sealed with the seal of AKS to Constable Kishan Lal vide Road Certificate No. 167/21 for depositing the same at the FSL, Rohini, which were so deposited and thereafter, Constable Kishan Lal returned to the Police Station and handed over the receipt of FSL to him. Interalia, the witness PW3 further testified to the effect that so long the case property remained in his possession, the same was not tampered with. The testimony of PW3 has not been challenged on behalf of the accused by crossexamination.
PW7 examined in the instant case was Constable Kishan Lal, who testified to the effect that on 04.11.2011, whilst he was posted at PS Hari Nagar on the direction of the IO, he had obtained the SC10/2012 Page 14/28 exhibits in the instant case, which were deposited by him in the FSL, Rohini in a intact condition and that he handed over the receipt to the MHC(M).
On being crossexamined by the counsel for the accused, the witness PW7 denied that case property had been tampered with and that he had testified falsely.
PW11 examined in the instant case is Dr. Ajay Kumar, Consultant Surgeon, Lotus Hospital, Hari Nagar, New Delhi, who testified to the effect that on 08.10.2011, the patient Amrit Mohan Singh aged 56 years (i.e. PW4 i.e. the injured) was brought to the Lotus Hospital by the attendant relatives and he examined the patient and testified to Ex. PW11/A being the report qua the medical examination conducted by him bearing his signature and being in his handwriting. Interalia, the witness stated that he had opined the nature of injury as being grievous and caused by a sharp object as per Ex. PW11/A. He further testified that he made a statement to the IO that the patient on 08.10.2011 at about 9.20 pm was unable to make any statement and was under the effect of Anesthesia. No cross examination of this witness has been conducted on behalf of the accused despite opportunity granted.
PW5 put forth in the witness box was Constable Harbin SC10/2012 Page 15/28 Singh Cathi, who testified to having joined the investigation of the case on 15.10.2011 with the IO / SI Ashok Kumar and accompanied him to Hari Nagar DTC Depot where the IO have met an informer, who gave the information that the wanted persons in this case would come in a park and thus, they reached the park alongwith the informer and noticed that the accused, who was identified by the witness to be the person present in the Court was sitting alone opposite Nirmal Chhaya. As per the testimony of PW5 Constable Harbir Singh Rathi, the accused was interrogated by the IO and during the interrogation, the accused made a disclosure statement and Rs. 410/ were recovered from his possession and was seized vide seizure memo Ex. PW5/1. The witness also stated that the accused recovered a surgical blade, which was seized vide seizure memo Ex. PW5/2 and testified to accused having pointed out towards the spot and thus, pointing out memo was also prepared by the IO as Ex. PW5/3, on which, PW2 stated that he has signed. The witness also testified to Ex. PW5/4 and PW5/5 as being the arrest memo and personal search memo respectively of the accused both bearing his signatures there on. The witness was shown a parcel sealed with the seal of FSL, which seal was opened by the MHC(M), which found to be containing another envelope, which contained a match box containing surgical blade Ex. SC10/2012 Page 16/28 P2.
On being crossexamined by the counsel for the accused, the witness PW5 stated that the informer met them at 4.00 pm at the DTC Depot, Hari Nagar and that he did not no whether IO had made any DD entry before leaving the Station. Interalia, PW5 also stated that they reached the spot at 4.15 pm and that there was no parking attendant present there at that time, as no vehicle was parked there and that the writing work was done at the park whilst sitting in the parking and no notice was given to the public persons, who refused to join them. It is admitted by the witness that the place of incident was already visited by the IO before the pointing out by the accused. Interalia, PW5 stated that they went in a private Wagon R for the search of the associates of the accused to Keshav Puram Mandi. He further stated that there was no specific mark on the surgical blade Ex. P2 put for its identification. PW5 denied that he had not joined the investigation of the case on the said date, time and place and further denied that nothing was recovered from the accused and denied that the accused was not arrested on the said date in question. Further PW5 denied that all the proceedings were initiated in the Police Station itself and denied that he had testified falsely at the behest of his superiors.
SC10/2012 Page 17/28
PW10 produced in the witness box is the Investigating Officer SI Ashok Kumar, who corroborated the prosecution version set forth in the FIR through his testimony and testified to Ex. PW10/A being the endorsement that was made by him in his writing for the purpose of registration of the FIR and testified to having took up the blood from the track with the help of a cotton, to picking up the ground earth control sample, which were all sealed with the seal of AKS and seized. Interalia, PW10 further testified of having recorded the statement of Amrit Mohan Singh, the injured and also testified to having apprehended the accused Arun on the identification of the secret informer on 15.10.2011 in front of Nirmal Chhaya. Hari Nagar. IO further testified to the effect that the accused having made the disclosure statement and having given the names of two other persons namely Ravi and Dolly and testified to the said statement being Ex. PW10/D. It was testified by the IO that the accused pointed out the place of occurrence and that he also prepared the pointing out memo Ex. PW5/3 and arrested the accused and recovered Rs. 410/ as being the balance of the sum of Rs. 2,000/, which was disclosed by the accused to have come to his share in the incident. The IO further testified to the arrest memo being Ex. PW5/4, the personal search memo Ex. PW5/5 and testified to the disclosure statement of the SC10/2012 Page 18/28 accused being Ex. PW10/D. Interalia, it was testified by the IO that alongwith the accused Arun and Constable Harbir Singh, he reached the Keshav Pur Subzi Mandi in search of the coaccused Ravi and Dolly at the behest of the accused Arun. The IO further testified that from the time of arrest of the accused Arun, he was kept in a muffled face and produced him in the Court next day and thereafter, the accused was remanded to judicial custody and that an application for conducting the Test Identification Test of the accused was filed but the accused declined to participate in the same. The IO further stated that on the date of the arrest of the accused, he also got recovered a surgical blade used in the crime from beneath a stone in a hole near a tree where he was seated and that there was blood on that surgical blade also and the said surgical blade was put into a match box and thereafter, the same was put in a cloth pullanda and sealed with the seal of AKS and seized vide seizure memo Ex. PW5/2 and that he sent the exhibits from the Malkhana through Constable Kishan for their examination and then, he prepared the charge sheet and then, on receipt of FSL result, he filed the supplementary charge sheet. Ex. PW10/1, PW10/2 and PW10/3 were testified by the IO being the FSL reports in the matter and the IO also identified the clothes of the injured Amrit Mohan Singh as being those recovered from the Lotus SC10/2012 Page 19/28 Hospital.
On being crossexamined on behalf of the accused, the IO stated that someone from the crowd at the gate on the date of the occurrence had informed that the injured had been taken to the Lotus Hospital but he did not record the statement of those persons. Interalia the IO stated that he did not know the accused from before and had not seen the accused before 15.10.2011 and that he had arrested the accused on the identification of the informer. The IO further stated that the complainant had not given the specific numbers of the currency notes to him nor did he specified any identification made on the stolen currency notes. The IO further stated that he had arrested the accused around 4.45 pm and did not call the complainant to identify the accused at that time. He had taken the accused to Keshavpur Mandi in search of the accused and apart from taking him to Keshavpur Mandi in search of the coaccused, he had not taken him to anywhere else. He further testified to the effect that a surgical blade was recovered at the instance of the accused at the pointing out of the accused from a hole beneath a stone near a tree in the parking outside the park. The IO further stated that the parking was unattended there and there was no one in the parking and thus, he did not record any statement of any person from the parking. He had asked some people SC10/2012 Page 20/28 i.e. some passersby to join the proceedings but they declined the same stating that they were in a hurry. The IO accepted the submission of the accused that the place of recovery of the surgical blade was accessible to all. He denied that he had not received any secret information on 15.10.2011 and denied that he had not arrested on the same day. The IO further denied that there was no money recovered from the accused and denied that no surgical blade was recovered at the behest of the accused and has reiterated that the accused had got the recovery of Rs. 410/ effected and had also got effected the recovery of the surgical blade as testified by him. The IO further denied that he had not kept the accused in a muffled face during the investigation and stated that he had taken the accused from the spot of arrest itself in a muffled face to Kesahvpur Mandi and denied that he had testified falsely.
THE STATEMENT OF THE ACCUSED UNDER SECTION 313 OF THE CR.P.C. In his statement under Section 313 of the Cr.P.C. the accused reiterated that he was innocent and that he had been falsely implicated in the instant case. Significantly, the accused stated that he had made no disclosure statement of the like Ex. PW10/D and stated SC10/2012 Page 21/28 that he had been picked up from his house at 4.00 am whereas the accused admitted his signatures on Ex. PW10/A, the disclosure statement and also the pointing out memo Ex. PW5/3, on which, he stated that the said signatures were taken at the Police Station when he had been taken from his house at 4.00 am for questioning and had been taken at the Police Station Janakpuri, and it cannot be overlooked that the accused has categorically denied that Ex. PW5/2, the seizure memo in relation to the surgical blade bore his signatures and stated that the said signatures at point 'X' on Ex. PW5/2 were not his. Through Ex. PW5/2, the prosecution seeks to bring forth that the accused had led the police to the surgical blade, which was recovered from near a tree from beneath a stone in the parking near Nirmal Chhaya, Tihar Jail Complex at Pratap Park within the jurisdiction of PS Hari Nagar.
No evidence in defence was led by the accused despite an opportunity granted.
Arguments were addressed on behalf of the State by the Ld. Chief Public Prosecutor Shri B. S. Kain and on behalf of the accused by the Ld. counsel Shri Vineet Jain.
Whereas, it has been contended on behalf of the State that the allegations levelled against the accused stood wholly established through the testimonies of the prosecution witnesses and also through SC10/2012 Page 22/28 the FSL results Ex. PW10/1, PW10/2 and PW10/3, which corroborated the exhibit Marks Q1, Q2, Q3 and Q4 respectively on the shirt Ex. 4A of the injured as could have been those that could have been caused by the surgical blade Ex. P2 sent to the FSL for examination, which surgical blade Ex. P2 is stated to be that allegedly recovered at the pointing out of the accused vide Ex. PW5/3 on 15.10.2011, and it was further submitted on behalf of the State that an adverse inference was necessarily to be drawn against the accused, in view of his refusal to participate in the Test Identification Parade, on behalf of the accused, it was submitted that there were several contradictions in the testimonies of the prosecution witnesses, in relation to the alleged weapon of offence alleged to have been recovered from the accused whereas in the statement of the injured allegedly recorded under Section 161 of the Cr.P.C., the weapon utilized in the commission of the alleged offence as mentioned in Ex. PW10/C was "**" and in the statement before the court, PW4 Shri Amrit Mohan Singh stated that he had been assaulted with a knife, which had been pointed at him, and as per the prosecution version, the weapon of offence allegedly recovered was a surgical blade, which itself sufficed to detract from the prosecution version. Interalia, it was submitted on behalf of the accused that the place from where the surgical blade was allegedly SC10/2012 Page 23/28 recovered was an open space for parking area as submitted by the IO himself that it is accessible to all and thus the recovery of the same could not be attributed to be that on behest of the accused. It was also submitted on behalf of the accused that the accused had submitted before the ld. Metropolitan Magistrate that he had been shown to the witnesses and that the accused had already stated that he had been picked up from his house and taken to the Police Station Janakpuri.
ANALYSIS On a consideration of the rival submissions made and on a perusal of the entire available record, it is brought forth that the complainant of the instant case has not been able to identify the accused and the IO has admitted that on the date of arrest, he made no attempt to get the accused identified. The factum that there are three variant versions as to what was the weapon of offence of assault utilized in the alleged commission of the offence as already detailed hereinabove in as much as the injured in his statement under Section 313 of the Cr.P.C. Ex. PW10/C is indicated to have stated that some "** (an iron weapon) was utilized for the assault. In his testimony in Court as PW10, the IO had stated that a knife was pointed out on him SC10/2012 Page 24/28 and the weapon of offence allegedly utilized in the instant case is stated to be a surgical blade, the sketch of which surgical blade is also not indicated to have been prepared at the spot. Another factum, which could not be overlooked is that the accused had categorically denied his signature on Ex. PW5/2, the recovery memo in relation to the surgical blade but has admitted his signatures on Ex. PW10/D, the disclosure statement and Ex. PW5/3, the pointing out memo in relation to the spot of the alleged occurrence and has stated that his signatures were taken at the Police Station at Janakpuri. This aspect is material as the signatures on Ex. PW5/2, the recovery memo in relation to the alleged seizure of the surgical blade at the instance of the accused at point 'X' thereon are not identical to the signatures at points 'X' on Ex. PW10/D, the disclosure statement of the accused and Ex. PW5/3, the pointing out memo in relation to the alleged place of occurrence. The signatures on Ex. PW5/2 do not tally with the signatures of the accused on hi statement under Section 313 of the Cr.P.C. recorded on 08.01.2014 as well. These signatures of the accused on the documents Ex. PW5/2, PW10/D and PW5/3 and the statement under Section 313 of the Cr.P.C. have been compared by the Court in terms of Section 73 of the Indian Evidence Act, 1872. In view thereof, the accused is entitled to the benefit of a reasonable doubt.
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Another aspect that cannot be overlooked is that in the instant case, there is only circumstantial evidence that the State seeks to rely upon to bring forth the allegations levelled against the accused and in relation to the same in the instant case, taking into account the factum that the injured has been unable to identify the accused, the factum that there is a discrepancy in relation to the weapon of offence utilized through the version put forth by the injured and the Investigating Agency, coupled with the factum that the weapon of offence has been allegedly recovered from that spot in an open space beneath a stone alleged in a place accessible to all as stated by the IO, coupled with the factum that despite the alleged recovery of the alleged weapon of offence having been made from a public place, no members of the public have been joined into the proceedings, coupled with the factum that the mobile phone of the injured have been of the injured bearing No. 9811419710 was lost at the time of the commission of the offence and as per the prosecution version, the call details were being attempted to be searched, there is nothing to indicate that any further investigation was conducted by the Investigating Agency in relation to the said aspect despite the IMEI number being traceable and taking into account the observations in terms of Section 73 of the Indian Evidence Act, 1872 in relation to the SC10/2012 Page 26/28 alleged signatures of the accused on Ex. PW5/2, the seizure memo vide which the surgical blade stated to be utilized in the offence was allegedly recovered at the behest of the accused, which signature of the accused are variant from the signatures of the accused on Ex. PW10/D, his alleged disclosure statement and Ex. PW5/3, the alleged pointing out memo of the place of occurrence and the statement of the accused under Section 313 of the Cr.P.C. recorded on 08.01.2014.
CONCLUSION In the facts and circumstances of the instant case, the allegations levelled against the accused Arun, son of Somvir qua the alleged commission of the offences under Section 394/397/34 of the IPC are held to have not been established beyond a reasonable doubt. In the circumstances of the case, the accused is held entitled to the benefit of reasonable doubt and thus, acquitted of the alleged commission of the offences punishable under Section 394/397/34 of the IPC, 1860 in relation to FIR No. 447/2011 PS Hari Nagar. Further in terms of Section 437A of the Cr.P.C., the bail bond of the accused and the surety bond of the surety submitted on record of Shri Somvir, his father dated 19.12.2011 shall continue to subsist in operation for a SC10/2012 Page 27/28 period of six months with directions to the accused to put in appearance before the Superior Court as and when required and with directions tot he surety to produce the accused before the Superior Court as and when recorded. The file be consigned to the Record Room.
Announced in the Open Court (Anu Malhotra)
today this the 31st day of District & Sessions Judge (West)
March, 2014 Delhi.
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