Delhi District Court
State vs . (1) Sumit @ Sahil on 25 July, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Session case No. 97/2013
Unique Case ID No.: 02404R0070262011
State Vs. (1) Sumit @ Sahil
S/o Sh. Chhabil
R/o House No. 182,
Moji Wala Bagh, Azad Pur,
Delhi
(Convicted)
(2) Krishna Murthy @ Vicky
S/o Ramesh Mohan
R/o House No. L233,
JJ Colony, Shakurpur,
Delhi
(Convicted)
(3) Mohd. Shankar @ Bunty
S/o Shyam Lal
R/o A32, Rana Pratap Bagh,
Sangam Park, Delhi
(Convicted)
(4) Amit @ Gujjar
S/o Sh. Surender
R/o 35/12, MCD Colony,
Jheel Wale Flats, Azad Pur,
Delhi
(Convicted)
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 1 of 122
(5) Kailash
S/o Hira Lal
R/o Sant Ram Dharamshala,
Toda Bhim, Mehndi Pur,
Rajasthan
(Acquitted/ compounded on 29.11.13)
(6) Tej Singh
S/o Hira Lal
R/o Ram Bhagat Dharamshala,
Mehndi Pur Balaji,
Rajasthan
(Acquitted/ compounded on 29.11.13)
FIR No.: 440/2010
Police Station: Saraswati Vihar
Under Sections: 392/397/34 Indian Penal Code
Date of committal to sessions court: 5.4.2011
Date on which orders were reserved: 8.7.2014
Date on which judgment pronounced: 11.7.2014
JUDGMENT:
(1) As per the allegations on 18.11.2010 at about 3:15 AM near F Block, Red Light, Ring Road, Saraswati Vihar, Delhi the accused Sumit @ Sahil, Krishnamurthy, Mohd. Shankar @ Bunty and Amit Gujjar in furtherance of their common intention had robbed Sandeep Sehgal of his camera D300 Nikon Lens, Battries CF cards, wallet containing Rs.2,000/, some documents and mobile phone make St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 2 of 122 Nokia6303. It has also been alleged that during the commission of robbery the accused Krishnamurthy used a knife i.e. a deadly weapon. It is also alleged that the accused Kailash and Tej Singh got recovered one mobile phone make Nokia 6303 which the accused Kailash sold to Tej Singh for a sum of Rs.2,000/ with the knowledge and having reasons to believe that it was a stolen property.
BRIEF FACTS/ CASE OF THE PROSECTUION:
(2) The case of the prosecution is that on 22.11.2010 at about 11:00 AM one Sandeep Sehgal came to Police Station Saraswati Vihar and made a complaint regarding robbery committed upon him on the point of knife on 18.11.2010 at about 3:00 AM. Pursuant to the complaint of Sandeep Sehgal, the present case was registered and investigations marked to SI Umesh Rana who recorded the statement of another eye witness Sharwan who was the Assistant of the complainant Sandeep Sehgal.
(3) On 24.11.2010 an information was received from Police Station Bhalaswa Dairy that one accused Sumit was arrested by SI Kamlesh and he had disclosed about the present case. Pursuant to the same the accused Sumit was interrogated who disclosed his involvement in the present case and thereafter he was arrested in the present case. The accused Sumit was kept in muffled face and during Judicial Test Identification Parade on 26.11.2010 complainant Sandeep St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 3 of 122 Sehgal could not identify the accused Sumit. Thereafter accused Sumit was further tendered for Judicial TIP qua other eye witness namely Shrawan and during that TIP proceedings, accused Sumit refused to take part in Judicial TIP. On 03.12.2010 the complainant Sandeep came to the Police Station to know the progress of his case and had identified the accused Sumit as one of the assailants. (4) On 10.12.2010, the Investigating Officer came to know that coaccused Krishna Murti was already arrested by Crime Branch in some another case wherein he had disclosed his involvement in the present case and was running in Judicial Custody after which he made a request before the Court concerned for his production for purposes of investigation. Thereafter the accused Krishna Murthy was arrested in this case on 14.12.2010 but the accused Krishna Murthy refused to take part in the Judicial Test Identification Parade. (5) On 16.12.2010, the complainant Sandeep handed over to the Investigating Officer the Bill of Mobile. On 25.05.2011 the Investigating Officer received an information from Special Staff NorthWest about the arrest of the accused Shanker @ Bunty after which accused Shanker @ Bunty was arrested in the present case on 26.05.2011 and thereafter the accused Shanker @ Bunty refused to participate in Judicial TIP. During Police Custody Remand, accused Shanker took the police party to his house at A - 32, Rana Pratap Bagh, Sangam Park from where he got recovered a black and blue St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 4 of 122 colour bag on which the sticker of 'IDLE SPORT SYSTEM, GIMMY DIGITAL' was affixed. The said bag was opened and it was found to contain a camera of black colour, make 'NIKON', made in Japan and on one side of the camera, D - 300 was mentioned. The bag was also found to contain Nikon Speed Light mentioning as D800. The said articles were thereafter seized. During Police Custody Remand the accused Shanker took the police party to the house of accused Kailash (accused who compounded the offence with victim) but accused could not found available there and was found available at Tea Shop i.e. Pawan Cold Drinks in front of Sant Naam Dharamshalla, Toda Bheem Road at the instance of accused Shanker. Thereafter the accused Kailash was arrested after which the accused Shanker took them to the house of accused Tej Singh from where the accused Tej Singh (accused who compounded offence wit the complainant) was apprehended near Ram Bhakt Dharamshalla from his house and was arrested. From the right pocket of the accused Tej Singh, a mobile phone, make NOKIA 6303, Black and Silver colour having IMEI No. 358005035969036 was recovered which was taken into possession.
(6) On 16.07.2011 the accused Amit had surrendered before the Ld. Illaqa Magistrate after which the accused Amit was interrogated and arrested in this case. After completion of investigations charge sheet was filed before the Court.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 5 of 122 CHARGE:
(7) Charges under Sections 392/34 Indian Penal Code were settled against the accused Sumit, Mohd. Shankar @ Bunty and Amit @ Gujjar to which they pleaded not guilty and claimed trial.
Further, charges under Sections 392 and 397 Indian Penal Code were settled against the accused Krishnamurthy to which he pleaded not guilty and claimed trial. Also, charges under Section 411 Indian Penal Code were settled against the accused Kailash and Tej Singh to which they pleaded not guilty and claimed trial.
(8) Here, I may observe that in so far as the accused Kailash and Tej Singh are concerned, since the charges invoked against them were only under Section 411 Indian Penal Code, therefore after permission from the Court they have compounded the offence with the complainant. Pursuant to the said compounding vide order dated 29.11.2013 both the accused Tej Singh and Kailash have been acquitted of the charges under Section 411 Indian Penal Code. (9) Before coming to the testimonies of individual witnesses, the details of the witnesses examined by the prosecution and the documents proved by them are hereby put in a tabulated form as under:
List of Prosecution Witnesses:
Sr. PW Name of Witness Details
No. No.
1. PW1 HC Saheb Singh Police Witness - Duty Officer
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 6 of 122
2. PW2 Sandeep Sehgal Public Witness - Complainant/ Victim
3. PW3 Ct. Mrityunjay Police Witness who has proved the arrest of
accused Amit @ Gujjar
4. PW4 Ct. Sandeep Police Witness who has proved the arrest of
accused Shankar @ Bunty
5. PW5 Ct. Dilawar Police Witness who has proved the arrest of
accused Sumit @ Sahil
6. PW6 HC Ravinder Nath Police Witness MHCM
7. PW7 Ct. Sanjeet Police Witness who has proved the arrest of
accused Krishnamurthy @ Vicky
8. PW8 Sharwan Kumar Public Witness - Assistant of the complainant
9. PW9 SI Sandeep Kumar Police Witness who had recorded the
statement of the complainant
10. PW10 SI Kamlesh Police Witness who has proved the arrest of
Kumar accused Sumit
11. PW11 SI Surender Police Witness who has proved the TIP
Kumar proceedings of case property
12. PW12 HC Baldev Raj Police Witness who has proved the arrest of
accused Kailash and Tej Singh
13. PW13 Ved Parkash Police Witness who has proved the arrest of
accused Shankar @ Bunty
14. PW14 Ct. Sohan Police Witness who has proved the arrest of
accused Shankar @ Bunty
15. PW15 Ct. Sanjay Police Witness who has proved the recovery
of case property
16. PW16 SI Umed Rana Police Witness - Investigating Officer
List of documents:
Sr. Exhibit Name of document Proved By
No. No.
1. PW1/A Copy of FIR HC Saheb Singh
2. PW1/B Endorsement on Rukka
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 7 of 122
3. PW2/A Statement of Sandeep Sandeep Sehgal
4. PW2/B TIP of Sumit @ Sahi
5. PW2/B1 TIP Proceeding of case property
6. PW2/C1 Photographs of case property
to C14
7. PW2/D CD of photographs
8. PW3/1 Affidavit of evidence of Ct. Mrityunjay Ct. Mrityunjay
9. PW3/A Arrest memo of Amit @ Gujjar
10. PW3/B Disclosure Statement of Amit
11. PW4/1 Affidavit of evidence of Ct. Sandeep Ct. Sandeep
12. PW4/A Arrest memo of Shankar
13. PW4/B Disclosure statement of Shankar
14. PW5/1 Affidavit of evidence of Ct. Dilawar Ct. Dilawar
15. PW5/A Arrest memo of Sumit
16. PW5/B Disclosure Statement of Sumit
17. PW6/1 Affidavit of evidence of HC Ravinder Nath HC Ravinder
18. PW6/A Copy of Entry Register No.19 Vide S.No. Nath
3474/11
19. PW6/B Copy of Entry Register No.19 Vide S.No.
3475/11
20. PW7/1 Affidavit of evidence of Ct. Sanjeet Ct. Sanjeet
21. PW7/A Arrest memo of Krishna
22. PW7/B Disclosure Statement of Krishna
23. PW9/A Rukka SI Sandeep
24. PW10/A Seizure memo of Motorcycle U/s 102 SI Kamlesh
Cr.P.C
25. PW10/B Arrest memo of Sumit
26. PW10/C Personal search memo Sumit
27. PW10/D Disclosure Statement of Sumit
28. PW10/E Seizure memo of Motorcycle No.DL8S AU2945 St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 8 of 122
29. PW10/F Seizure memo of Motorcycle No. DL8S AL 3188
30. PW10/G Site Plan of place where the accused was arrested
31. PW10/H Site Plan of the place where the motorcycles were recovered
32. PW10/I DD No.2A
33. PW10/J Copy of Kalandra
34. PW11/A Application for obtaining the copy of TIP SI Surender Kumar
35. PW12/A Arrest memo of accused Kailash HC Baldev Raj
36. PW12/B Personal search memo of Kailash
37. PW12/C Disclosure Statement of Kailash
38. PW12/D Arrest memo of Accused Tej Singh
39. PW12/E Personal search memo of Tej Singh
40. PW12/F Seizure memo of Mobile Phone Nokia 6303
41. PW12/G Photographs of Mobile Phone
42. PW12/H Photograph of Mobile Phone
43. PW13/A Arrest memo of accused Shankar @ Bunty SI Ved Parkash
44. PW13/B Personal search memo of Shankar @ Bunty
45. PW13/C Disclosure Statement of Shankar@ Bunty
46. PW13/D Kalandra U/s 41.1A
47. PW13/E DD No.61B entry regarding arrest of Shankar
48. PW15/A Seizure memo of Camera with lens make Ct. Sanjay Nikon along with flash light
49. PW15/B Supplementary Disclosure Statement of Shankar
50. PW16/A Site plan of place of Instance SI Umesh Rana
51. PW16/B Disclosure Statement of Krishna Murti
52. PW16/C Arrest memo of Krishna Murti St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 9 of 122 EVIDENC:
(10) In order to prove its case the prosecution has examined as many as Sixteen Witnesses as under:
Public witnesses/ complainant:
(11) PW2 Sandeep Sehgal has deposed that he is a businessman by profession and on 18.11.2010 at about 2.00 PM, he left Umrao Farm House, Gurgaon after attending the function of marriage along with his assistant Shravan and was coming home in a car bearing no. DL 4CP7267 via Ring Road, Punjabi Bagh Flyover, Shakurpur.
He has further deposed that at about 3:00 AM, after crossing the flyover at Britania Chowk, he felt slightly sleeping on which his car struck a divider at the turn of Shakurpur and hence he along with Shravan got down of the car and noticed that the front tyre of the car had got bursted and excel of the car was also broken. According to the witness, they were thinking about repairing of the car, when suddenly three motorcycles reached there on which three - four boys were riding and they stopped their bikes near his car. He has testified that one of the boys asked him (witness) as to what had happened on which he told him that his car has been struck with the divider but in the meantime one of those boys came to his side and showed him a big knife and first of all he punched him (witness) on his face and then asked him "tere paas jo kuchh hai nikal de". The witness has further deposed that at St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 10 of 122 that time he was sitting on the driving seat of his car whereas his assistant Shravan was present outside the car and was looking the damages caused and was caught hold by one of those boys. According to the witness, the boy who had showed him the knife, took search of his vehicle and removed his purse and mobile make Nokia 6303 Classic and thereafter his two other associates also entered the car by opening the rear gate and took search of the car and robbed his camera kit from the car, containing Camera D300 Nikon (initially wrongly mentioned as D3), Lens, Batteries, Flash, CF Cards etc. and also abused them after which they ran away in their motorcycles. The witness has deposed that thereafter one cyclist was passing through the road when he (witness) requested him to give him the mobile and then he made a call at 100 number to the police after which PCR Van came to the spot and he briefed the facts to the police but he could not tell the entire facts as he was perplexed. He has proved that on 22.11.2010 police recorded his statement vide Ex.PW2/A and also prepared the site plan at his instance.
(12) The witness has identified the accused Krishnamurthy by pointing out towards him as the boy who punched him and showed him the big knife and then removed his purse containing about Rs. 2,000/ and mobile phone. He has also identified the accused Sumit and Shankar by pointing out towards them as the boys who St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 11 of 122 removed his camera kit which were lying in his rear seat of car. He has also identified the accused Amit @ Gujjar by pointing out towards him as the boy who caught hold of his assistant Shravan who was outside the car. The witness has further deposed that he also went to Tihar Jail for identification of the accused Sumit but he could not identify him as his half face was muffled whereas one eye of the accused Sumit was damaged which was his specific identity and could not be seen being covered. According to the witness, he also went to Police Station on one occasion and had identified the accused Sumit there and police also recorded his statement. The witness has further deposed that once he went to Rohini Jail but he came to know that the accused Krishnamurthy has refused to participate in the TIP proceedings. He has also deposed that he handed over the bill of his mobile phone to the Police Station during investigations of this case and later on he came to know that his belongings had been recovered by the police. According to the witness he had identified his camera, lens, flash and mobile phone before the Ld. MM during the TIP proceedings after which he got released these articles on superdari. He has proved the TIP proceedings of accused Sumit @ Sahil which are Ex.PW2/B. (13) The witness has produced the aforesaid robbed articles which he had taken on superdari and has identified the same in the court i.e. the camera make Nikon D300 which is Ex.P1, lens Ex.P2, St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 12 of 122 flash Ex.P3, bag Ex.P4 and mobile make Nokia6303 which is Ex.P5 as the same which were robbed from him by the accused. The witness has also produced the original bill of the mobile phone copy of which is Ex.P5/1 and has identified his signatures on the TIP proceedings of the case property dated 20.8.2011 at point A vide Ex.PW2/B1 and the photographs and the CD of the case property which are Ex.PW2/C and Ex.PW2/D respectively. The witness has clarified that the model number of the camera is D300 instead of D3 (mentioned by him earlier in his deposition).
(14) In his cross examination by Ld. Defence Counsels, the witness has deposed that he has no knowledge if there is any model no. D3300 also launched by the company. According to him, in so far he recollects, after the incident he made a call to the police on 100 number and informed them that some boys had taken away some articles by snatching the same. He has also deposed that he had stated to the police in his statement Ex.PW2/A that the excel of his car had been broken. However, when confronted with his statement Ex.PW2/A the excel word has not been recorded and what is recorded was a bursting and has voluntarily added that he had told the police about the excel breaking and tyre bursting. Witness has further deposed that except his statement Ex.PW2/A, no other statement was recorded by the police. According to the witness, he had told the police that he made a call at St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 13 of 122 100 number after taking the mobile of a cyclist who was passing through the road. He further deposed that he had told the police that after noticing the bursting of tyre and breaking of excel, he again went inside the car. However, when confronted with his statement Ex.PW2/A the above fact was not found so recorded but it is recorded that he got down from the car. The witness has also deposed that he had told the police that one of the accused/ boy gave a fist blow on his person but when confronted with his statement Ex.PW2/A it is not found so recorded. Witness has denied the suggestion that when he called the police at 100 number, he informed them about the motorcycle no. DL 8SAN3894 and states that there were total three motorcycles but he could notice the number of only one motorcycle i.e. above said number. He has denied the suggestion that he made call at 100 number and informed that three boys were on one motorcycle who committed the robbery or that he told the police in his statement that his rupees 1500 and his mobile were snatched and has voluntarily added that he told that some boys had snatched his articles. According to the witness, his employee Shravan is working with him for the last about three years and sometime he used to drop Shravan at his residence and on some occasions in the office where his vehicle used to be stationed at the time when they go outside for the work of photography/ videography. He does not remember exactly whether Shravan was sent to his house prior to arriving of the police or after the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 14 of 122 arrival of police on the day of incident. According to the witness, the police did not conduct any inquiry at the spot, except taking him to the Police Station. He has further deposed that during investigation, he visited Police Station for about 78 times and also joined the investigation with the police on the other day after the incident. He has also deposed that it was 22.11.2010 in the afternoon when he visited the spot with the police but he does not remember if he again visited the spot with the police. The witness has testified that he did not tell the police about the repairing of his car and his car was removed to the service centre at Lawrence Road by a crane and he had paid Rs.750/ to the crane bearers. He has also deposed that he can produce the copy of insurance claim where it is clearly written that tyre of his car was bursted and excel was also broken as he claimed the same. The witness has further deposed that on 22.11.2010 when he visited the Police Station, none of the culprits was apprehended by the police, or shown to him by the police. The witness has denied the suggestion that at B2 Banqent Hall Punjabi Bagh when his car's tyre struck the divider there was no traffic jam or that after coming down from the B2 flyover there was traffic jam. He has admitted that the place where the tyre of his car had burst there is a CNG station adjacent to the road and has voluntarily added that the place where the tyre had burst was before this CNG station i.e. 50 to 100 meters before the CNG station while going towards Wazirpur. He has also admitted that on both the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 15 of 122 sides of the CNG station there is always a queue/ line of cars/ vehicle and has voluntarily added that the time of the incident is around 3:30 AM i.e. midnight and there was no car at that time and states that he did not go to the CNG station for any help. The witness has deposed that he had not given the physical description of the accused persons in his complaint/ rukka to the police at the time of the registration of the FIR and has voluntarily explained that he had given the number of persons to the Police. Witness has admitted that in his complaint/ statement he had not narrated about the fact that one of the boy was having problem in his eye being one eyed (kana tha) and has voluntarily explained that he had narrated to the police but they did not bring the same in his statement Ex.PW2/A. He has admitted that in his initial complaint to the police he had narrated that three/ four boys had robbed him but the police officials have arrested six persons in this case and that he did not lodged any complaint relating to his robbery at the Ring Road (spot of the incident) to the police officials on 18.11.2010, 19.11.2010, 20.11.2010 and 21.11.2010. He further admits that on the fifth day of the incident he went to the Police Station and lodged a written complaint. The witness has further admitted that there is a police post at the red light beneath B2 Punjabi Bagh Flyover where he was robbed. According to the witness he had told the Investigating Officer regarding the position at which various assailants were standing when they robbed him. He has admitted that the place St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 16 of 122 where he was robbed a busy road being the ring road. According to the witness, there were three cameras at that time when the TIP of the camera was being conducted by the Ld. MM. He has also admitted that the cameras recovered and put for TIP were of different companies and were of different models when came to identify them in front of Ld. MM and also that his mobile at the time of TIP was mixed up with the other mobiles of different make, different and different models in which he identified his mobile. He has also admitted that he had not stated in his statement Ex.PW2/A as to what clothes and the colour of the clothes accused persons were wearing at the time of committed the robbery. He has denied the suggestion that he had not even given the number and the colour of the motorcycle on which the assailants had come to the police and has voluntarily explained that he had given the number of motorcycle to the police when his FIR was registered. However, when confronted with his stated Ex.PW2/A the number of the motorcycle is not mentioned. He has further deposed that there was no sufficient light at the time when the offence was committed on 18.11.2010. He has admitted that he was not able to identify the accused Sumit @ Sahil as one of the assailants in the present case at the time of TIP at Tihar Jail. According to the witness, he had not narrated to the Ld. MM at the time of TIP dated 26.11.2010 Ex.PW2/B that he could not identify the accused Sumit @ Sahil as he was muffled face and he was not able to see his damaged eye. The witness has also St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 17 of 122 deposed that he had stated this fact to the Investigating Officer of the case SI Umesh Rana but his statement was not recorded by the Investigating Officer on 26.11.2010. He has further admitted that he himself did not make any complaint regarding nonidentification of the accused Sumit @ Sahil to the senior police officials as well as the Ld. MM in front of whom he got released the articles recovered on supardari. He is not aware as to when he came to know about the arrest of accused persons in the present case. He has denied the suggestion that he was regularly going to the Police Station on daily basis to find out the progress of his case. According to him, the Investigating Officer did not inform him regarding the apprehension of the accused in this case. He does not remember the day on which he first came to know about the recovery of the robbed articles. He also does not recollect the date on which he taken these articles on supardari. The witness has further deposed that accused Sumit @ Sahil was shown to him at the Police Station but he even cannot tell the approximate number of days after which he was shown to him in the Police Station. According to the witness, when he visited the Police Station the accused Sumit was not in the lock up and was sitting on the bench in the Police Station. He has further deposed that he had told the police that he was hit by the assailants but he did not specifically tell them that he was given a punch/ fist blow by one of the assailants. He has further deposed that he had told the police in his statement St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 18 of 122 Ex.PW2/A that his assistant had been caught by one of the assailants. Witness has admitted that he was regularly following up the progress of his case or that the accused persons after their apprehension were shown to him in the Police Station. He has admitted that initially it was a call of robbery of mobile and Rs.1500/. The witness has denied the suggestion that after due consultation he lodged a false complaint against the accused persons or that he made a call at 100 number on 18.11.2011 at around 4:35 AM regarding robbery committed upon him by three boys on a motorcycle bearing No. DL 8 SAH 3894. He has further denied the suggestion that none of the assailants were present at the spot or that to boost the false case the Investigating officer showed him the accused Sumit @ Sahil and asked him to identify him in the second TIP. He has further denied the suggestion that he was deposing falsely or that none of his camera articles were recovered or that he wrongly got released the camera articles on supardari which did not belong to him. He has also denied the suggestion that he did not hand over any receipt/ bill or ownership document of the stolen camera to the police or that he did not hand over any receipt/ bill or ownership document of the stolen camera articles to the police as it was not belonging to him. The witness has further denied the suggestion that the accused Krishnamoorthy, Sumit, Shankar and Amit have been falsely implicated on his identification. St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 19 of 122 (15) PW8 Sharwan Kumar has deposed that he used to work as assistant photographer with Sandeep Sehgal. According to him, on 18.11.2010 at about 3.00 AM they were coming to Rohini Sector 16 from Gurgaon after attending a marriage function where they took photographs and they were in Esteem Car which was being driven by Sandeep Sehgal. He has further deposed that he was sleeping in the car on the front seat whereas Sandeep Sehgal was driving the car and their car struck with the divider at Shakurpur after the Britania Chowk flyover. The witness has testified that he also received injuries and they found that the tyre of the car had burst and they were trying to repair the same when in the meanwhile four persons came there on two
- three motorcycles and asked about their presence there on which Sandeep informed them about the incident. The witness has further deposed that one of those persons took out one knife and kept the same on the neck of Sandeep and also slapped him and the knife was also kept upon him (witness) after which the above said persons took away their still camera of Nikon with complete kit and a mobile phone make NOKIA and purse of Sandeep and thereafter all the said four assailants went away from there after abusing them. According to the witness, Sandeep made call to his elder brother Chetan Sehgal from a mobile phone of a passerbye and also made call to the police at 100 number. The witness has pointed out towards accused Sumit @ St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 20 of 122 Sahil and identified him as one of the assailants who took away the camera kit from the car.
(16) In his crossexamination by the Ld. Defence Counsels, the witness has admitted that the Investigating Officer never summoned or called him for identification of the accused persons and he never asked the Investigating Officer regarding the progress of the case/ investigation from the day the case was registered and has voluntarily explained that Sandeep used to do the same. Witness has admitted that the time when the accused were apprehended, Investigating officer called them and asked to identify the accused as well as the articles recovered from them. According to the witness, he had not stated in his statement to the police officials that one of the assailants was having one defective eye. He does not remember the tentative or approximate days after which he was called upon to identify the accused persons. The witness has further deposed that he never asked the Investigating Officer to join him in the TIP proceedings and admits that lot of traffic was moving on the Ring Road at the time when the incident took place. According to him, there is no CNG filling station near the place where they were robbed and has voluntarily added that it was around 10 to 15 steps from the place where they were robbed. He is unable to tell whether there is a police booth near B2 Banquent Hall near Shakurpur red light but admits that when 100 number was called, police van came there. The witness has denied the suggestion that no St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 21 of 122 such incident took place with them or that after the due consultation and legal assistance, they concocted the false complaint to lodge the FIR. He has further denied the suggestion that he had not mentioned the description of accused persons having a defective/ damaged eye in the statement 161 Cr.P.C. as no such person was present in the actual assailants or that the Investigating Officer asked him to identify the accused Sumit @ Sahil outside the court to boost the present false case. Police Witnesses/ Official Witnesses:
(17) PW1 HC Saheb Singh has deposed that on 22.11.2010 he was working as Duty Officer at Police Station Saraswati Vihar and at about 11.20 AM, on receipt of a rukka from SI Sandeep he got recorded the present FIR through computer operator and handed over the copy of FIR and original rukka back to Ct. Pradeep for further handing over the same to the investigating officer SI Umesh Rana. He has proved the copy of FIR which is Ex.PW1/A and his endorsement on the rukka is Ex.PW1/B. Witness has further deposed that he has also recorded Kaimi DD No. 21A in this regard. This witness has not been cross examined on behalf of the accused despite opportunity. (18) PW3 Ct. Mrityunjay is a formal witness who has been examined by way of affidavit which is Ex.PW3/1 (as per the provisions of section 296 Cr.P.C.) wherein he has proved the arrest memo of accused Amit @ Gujjar S/o Surender which is Ex.PW3/A St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 22 of 122 and his disclosure statement which is Ex.PW3/B. (19) In his crossexamination, the witness has denied the suggestion that accused Amit did not make any disclosure statement or that Investigating officer had recorded the same of his own. Witness has admitted that the disclosure statement of Amit which was recorded while sitting outside the court room does not bear the signatures of any public witness or court staff.
(20) PW4 Ct. Sandeep is also a formal witness who has been examined by way of affidavit which is Ex.PW4/1 (as per the provisions of Sections 296 Cr.P.C.) wherein he has proved the arrest memo of accused Shanker @ Bunty S/o Shyam Lal which is Ex.PW4/A and his disclosure statement which is Ex.PW4/B. (21) In his cross examination by the Ld. Defence Counsel the witness has denied the suggestion that the accused Shanker @ Bunty did not make any disclosure statement or that Investigating officer had recorded the same of his own. Witness has admitted that the disclosure statement of Shanker @ Bunty which was recorded while sitting outside the court room does not bear the signatures of any public witness or court staff.
(22) PW5 Ct. Dilawar is also a formal witness who has been examined by way of affidavit which is Ex.PW5/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the arrest St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 23 of 122 memo of accused Sumit @ Sushil S/o Chhabil which is Ex.PW5/A and his disclosure statement which is Ex.PW5/B. (23) In his cross examination the witness has denied that the accused Sumit did not make any disclosure statement or that Investigating officer had recorded the same of his own. Witness has admitted that the disclosure statement of Sumit which was recorded while sitting outside the court room does not bear the signatures of any public witness or court staff.
(24) PW6 HC Ravinder Nath is a formal witness being the MHCM who has been examined by way of affidavit which is Ex.PW6/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved entry in Register No. 19 vide S. No. 3474/11 copy of which is Ex.PW6/A and Sr. No. 3475/11 copy of which is Ex.PW6/B. (25) In his cross examination, the witness has denied the suggestion that the entries in the register have been fabricated and ante dated / ante timed on the directions of the the investigating officer and senior officers. Witness has admitted that the time of entry has not been mentioned in any of the columns.
(26) PW7 Ct. Sanjeet is a formal witness who has been examined by way of affidavit which is Ex.PW7/1 (as per the provisions of Section 296 Cr.P.C.) wherein he has proved the arrest memo of accused Krishna Murthy @ Vicky @ Anna S/o Ramesh St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 24 of 122 which is Ex.PW7/A and his disclosure statement which is Ex.PW7/B. (27) In his cross examination, the witness has denied the suggestion that the accused Krishna Murthy did not make any disclosure statement or that Investigating officer had recorded the same of his own. Witness has admitted that the disclosure statement of Krishnamurthy which was recorded while sitting outside the court room does not bear the signatures of any public witness or court staff. (28) PW9 SI Sandeep Kumar has deposed that on 22.11.2010 he was posted at Police Station Saraswati Vihar and on that day the complainant Sandeep Sehgal came at the Police Station at about 10:45 11:00 AM and made allegations of robbery upon him on 18.11.2010 at about 3:00 AM. According to the witness, he recorded the statement of Sandeep Sehgal vide Ex.PW2/A and made endorsement upon the same vide Ex.PW9/A and handed over it to the Duty Officer who recorded the present FIR and further investigation was handed over to SI Umesh Rana. This witness was not cross examined on behalf of the accused despite opportunity in this regard.
(29) PW10 SI Kamlesh Kumar has deposed that on 23.11.2010 he was posted at Police Station Bhalaswa Dairy and on that day he was on picket checking along with Ct. Arun and Ct. Laxman at Mukund Pur Picket. According to him, at about 7.00 PM one blue color pulsar motorcycle came from Azadpur side area and one person was sitting on the motorcycle who was without helmet who was St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 25 of 122 stopped by them (police) and the documents were asked from him but he was unable to show any documents. The witness has further deposed that the motorcycle was with bearing no. DL 4S NC 9927 and after checking the engine number and chasis number of the said motorcycle, he contacted the Control Room officials who informed him that the said motorcycle was a stolen property of Police Station Mukherjee Nagar. According to the witness thereafter, he took the possession of the said motorcycle U/s. 102 Cr.P.C. vide Ex.PW10/A. According to him, the genuine number of the said motorcycle was found to be DL 8S NC 5824 and thereafter the motorcyclist namely Sumit was arrested vide Ex.PW10/B and his personal search was taken vide memo Ex.PW10/C after which he interrogated Sumit and recorded his disclosure statement vide Ex.PW10/D. The witness has further deposed that the accused Sumit made disclosure statement of FIR No. 410/10 Police Station Mukherjee Nagar and of this case.
According to him, two other motorcycles bearing no. DL 8S AU 2945 and DL 8S AL 3188 were recovered at his instance and he then seized both motorcycles vide Ex.PW10/E and Ex.PW10/F. The witness has further deposed that thereafter he prepared the site plan of the place where the accused was arrested by him vide Ex.PW10/G and also prepared the site plan of the place where remaining two motorcycles were recovered vide Ex.PW10/H. He has testified that thereafter they St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 26 of 122 returned back to Police Station where he deposited the seized articles in the malkhana and recorded DD No. 21A which is Ex.PW10/I. According to the witness, the accused Sumit was got medically examined after which he informed the concerned Police Stations i.e. Mukherjee Nagar and Saraswati Vihar regarding the disclosure statement of the accused Sumit. The witness has further deposed that on the next day, he produced accused Sumit before the Court with Kalandara Ex.PW10/J. According to the witness, SI Umesh Rana of Police Station Saraswati Vihar met him and collected photocopies of Kalandra from him and also recorded his statement. The witness has correctly identified the accused Sumit in the Court. (30) In his cross examination by Ld. Defence Counsel, the witness has deposed that he made departure entry in DD register regarding a picket duty at Mukund Pur Picket but he does not remember its number. He has further deposed that he had not handed over the copy of the said DD to SI Umesh Rana who was the Investigating Officer of the present case. Witness has admitted that the place where picket was put is a busy road and people used to pass through the same. Witness has further deposed that the motorcycle was of blue colour. He has admitted that nothing was recovered from the possession of accused Sumit @ Sahil which connected him in the present case. He does not remember as to whom the investigation was handed over regarding the stolen motorcycle. He has denied the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 27 of 122 suggestion that he is not able to tell the name of Investigating Officer of the stolen motorcycle case as he has never talked to him regarding the case. He has further denied that his statement was planted/ fabricated later on while sitting in the Police Station or that nothing was recovered from the possession of accused Sumit @ Sahil or that the disclosure statement of accused was written while sitting in the Police Station or that the accused was not arrested in the manner stated by him.
(31) PW11 SI Surender Kumar has deposed that on 19.08.2011 he was posted at Police Station Subhash Place and on that day the TIP proceedings of the case property was conducted by Sh. V.K. Jha, Ld. MM at Rohini Courts Delhi wherein the complainant identified the case property after which he (witness) moved an application for the copy of the TIP Proceedings which is Ex.PW11/A. (32) In his crossexamination, the witness has denied the suggestion that the case property brought by him was already shown to the complainant in the Police Station so that he could identify the same before the Ld. MM. He has further denied the suggestion that the case property was not in the sealed condition or that it was tampered with in the Police Station.
(33) PW12 HC Baldev Raj has deposed that on 05.06.2011 he was posted at Police Station Subhash Place and on that day he joined the investigations with SI Umesh Rana. According to the witness, one St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 28 of 122 accused Shankar @ Bunty was in police custody with him at that time and during the investigations he (witness) along with SI Umesh Rana and accused Shankar @ Bunty went to Mehndipur Balaji Rajasthan with permission of senior officers and reached the Police Post Toda Bhim and made arrival DD there. According to the witness, at the instance of the accused Shankar @ Bunty, another accused Kailash was apprehended at Mehandipur Balaji near Sant Ram Dharamshala in front of a Tea Shop. The witness has further deposed that the accused Shankar @ Bunty informed them that the mobile phone was handed over to accused Kailash by Amit @ Gujjar and thereafter Kailash was interrogated by the Investigating Officer and was arrested by vide arrest memo Ex.PW12/A, his personal search was taken vide memo Ex.PW12/B and his disclosure statement was also recorded vide memo Ex.PW12/C. The witness has further deposed that the accused Kailash disclosed that he handed over the said mobile phone to his cousin Tej Singh and thereafter they reached at the house of Tej Singh at the instance of Kailash where the accused Tej Singh met them who was formally searched by the Investigating officer and one mobile phone of Nokia was recovered from his possession. The witness has testifed that the accused Tej Singh was arrested by the Investigating officer vide memo Ex.PW12/D, his personal search was taken vide memo Ex.PW12/E and the mobile phone was also seized vide Ex.PW12/F which mobile phone was of Nokia model 6303 of black and silver St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 29 of 122 color however he does not remember the IMEI number of the said mobile phone but the Investigating Officer mentioned the same in the seizure memo. The witness has also deposed that thereafter they returned back to the Police Station Subhash Place with the accused persons and recovered articles and accused were kept in the lock up after their medical examination. Witness has identified the accused Tej Singh, Kailash and Mohd. Shankar @ Bunty.
(34) The witness has also correctly identified the case property i.e. mobile phone which is Ex.P5 and its photographs which are Ex.PW12/G and Ex.PW12/H as recovered mobile phone. (35) In his cross examination, the witness has deposed that he i not aware of the DD Number of the arrival. Witness has admitted that the place where the Santram Dharamshala is from where the accused Kailash was arrested is a busy area. According to the witness he was unable to tell if the information regarding the arrest of the accused persons was passed over to senior police officials of the District Dossa and District Karaoli. Witness has admitted that none of the police officials from the local Police Station who joined them in the investigations, became witness to the documents prepared by the Investigating Officer. He has denied the suggestion that none of the local police officials became the witness on the paper work done by the Investigating Officer as they (witness) never joined the local police officials from district Karaoli and Dossa. He has further denied the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 30 of 122 suggestion that he is taking a false plea at the instance of the Investigating Officer that they joined local police in the investigations or that they never visited the Mehandipur Balaji for the recovery of the mobile. He has also denied the suggestion that there is a beat of the police post Todapur Bhim in front of the Mehandipur temple but he does not remember the name of the police officials who had accompanied them for the recovery of the mobile phone. Witness has admitted that the similar colour or model of mobile phone are easily available in the market. The witness has also denied the suggestion that no recovery was effected from the accused at Mehandipur or that they never visited the Mehandipur temple. The witness has further deposed that he did not make any separate departure while leaving the Police Station nor the arrival entry and has voluntarily added that the Investigating Officer must have made the same and he cannot give the details of the same. According to the witness, the Investigating Officer did not join any public person in the investigations while leaving the Police Station or even at Dharamshala at Mehndipur Balaji. He has denied the suggestion that the accused Shankar @ Bunty did not accompany them to Mehandipur Balaji or that all the documents were conducted while sitting in the Police Station. (36) PW13 SI Ved Prakash and PW14 Ct. Sohan have deposed that on 25.5.2011, they were posted in Operation Cell, North West District and on that day, they along with Ct. Mahesh and HC St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 31 of 122 Narender were in patrolling in the area of Azadpur vide DD No. 8 copy of which is Ex.PW13/E. They have further deposed that at about 12:30 PM, they reached near MCD Flats, Azadpur where informer met them and informed that Shanker @ Bunty who was wanted in the present case of robbery of Police Station Saraswati Vihar, was present in Flat No. 34/4, MCD Flat, Azadpur, and if immediate raid is conducted, he could be apprehended. According to the witnesses, they passed the said information to the senior officers and also asked 45 public persons to join the investigations who refused to do so. They has also deposed that thereafter they along with the staff reached in front of Flat No. 34/4, MCD Flat, Azadpur, Delhi and SI Ved Prakash (PW13) knocked the door of the flat with the name of Shankar @ Bunty who opened the door but on seeing them (police), he tried to escape and came in the gallery and jumped from the railing. The witnesses have further deposed that thereafter Ct. Mahesh and Ct. Sohan Lal (PW14) also jumped from the railing to apprehend the accused and ultimately they overpowered the accused Shankar @ Bunty and in that process, both Shankar and the staff sustained some injuries. According to these witnesses, on interrogation Shankar confessed his involvement in the crime of robbery in this case after which he was arrested vide Ex.PW13/A under Section 41.1A Cr.PC, his personal search was conducted vide memo Ex.PW13/B and his disclosure statement was recorded vide memo Ex.PW13/C and after St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 32 of 122 getting the medical examination of Shankar conducted from BJRM Hospital, information of his arrest was passed on to Police Station Saraswati Vihar. They have proved the arrival entry i.e. DD No. 61B which is Ex.PW13/D. Both SI Ved Prakash and Ct. Sohan have identified the accused Shankar @ Bunty in the court. Both these witnesses have not been cross examined by the Ld. Defence Counsel despite being granted an opportunity in this regard. (37) PW15 Ct. Sanjay has deposed that on 04.06.2011 he was posted at Police Station Saraswati Vihar and on that day Shankar had been brought on police custody remand for one day. According to the witness, he joined the investigations along with SI Umesh Rana and from the court, they went to the DCP Office Ashok Vihar for preparation of his conviction slip. According to him, thereafter the accused Shankar was taken to BJRM hospital and after the medical examination the accused took them to his house at the third floor, address he does not recollect. The witness has further deposed that while they were on the way from the hospital at Jahangirpuri to his house the accused had informed them that he had kept the stolen articles in a bed in his house. According to the witness, as soon as they reached the third floor, they found a double bed and the the mother of accused Shankar was also present. He has deposed that the accused Shankar asked his mother to get the things out of his bed "maa ko kaha saman nikal kar de". Witness has clarified that the accused St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 33 of 122 himself lifted the top of the bed and from there took out black bag, one camera with lens make NIKON made in Japan along with a flash light make NIKON made in Japan written on the same and the Investigating Officer converted the same into pullanda with the help of white cloth and sealed with the seal of UR and seized the same vide memo Ex.PW15/A. According to him, thereafter they returned to the Police Station where the case property was deposited in the malkhana. According to the witness, in the Police Station the accused Shankar also disclosed that after the incident they had gone to Balaji where he had sold the mobile phone to somebody of Rs.1,500/ and that he can identify the said person to whom he had sold the mobile phone. The witness has further deposed that the Investigating Officer recorded his supplementary disclosure statement which is Ex.PW15/B. (38) The witness has identified the accused Shankar @ Bunty in the court and also identified the case property i.e. camera Ex.P1, lens Ex.P2, Flash light Ex.P3 and black bag Ex.P4 by way of their photographs which are Ex.PW2/C1 to Ex.PW2/C14. (39) Leading questions were put to the witness by the Ld. Addl. PP for the State, wherein the witness has admitted that the accused was taken to Bhagwan Mahavir hospital and not to BJRM hospital for his medical examination. He has admitted that the address where the accused Shankar took them was A32, Sangam Park, Rana Pratap St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 34 of 122 Bagh, Third Floor. He has explained that he has forgotten these details on the passage of time and could not recollect the same. (40) In his cross examination by the Ld. Defence Counsel, the witness has deposed that when accused Shankar @ Bunty was telling them in the vehicle where the stolen articles were kept by him, Investigating Officer did not record his statement in his presence. He has further deposed that they started from the court at 2:00 PM and reached the house of accused at about 5:306 PM. According to the witness, they remained in the hospital for about half an hour. The witness has deposed that the Investigating Officer did not join any public persons in the investigations in his presence when they reached the house of accused Shankar @ Bunty. Witness has admitted that in the house of Shankar @ Bunty there were other residents also on the ground, first and second floor. Witness has further deposed that the Investigating Officer did not join any of the said residents in the investigations. He has admitted that the seizure memo prepared at the spot does not bears the signatures of any public persons. According to him, they remained at the house of Shankar @ Bunty for about 2030 minutes and returned the Police Station at about 6:156:30 PM. The witness has further deposed that the distance between the house of accused Shankar and the Police Station is about 45 kms. He has denied the suggestion that he did not join the investigations and that is why he is unable to give the correct details of the hospital and the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 35 of 122 address of the accused and also the time taken during the investigations. He has denied the suggestion that all the documentation was done while sitting in the Police Station and he signed the same on the asking of the senior officers.
(41) PW16 SI Umesh Rana is the Investigating Officer of the present case who has deposed that on 22.11.2010 he was posted in Police Station Subhash Place and on that day, Duty Officer handed over him the copy of FIR and original Rukka and thereafter, he along with complainant Sandeep Sehgal reached at FBlock, Shakur Pur, Red Light, Ring Road where on the instance of complainant Sandeep, site plan was prepared which is Ex.PW16/A. According to the witness, he came back to Police Station where one of the eye witness Shrawan was found present after which he recorded his statement 161 Cr.P.C. and after that, supplementary statement of complainant Sandeep was recorded under Section 161 Cr.P.C. The witness has further deposed that thereafter on 24.11.2010, an information was received from Police Station Bhalaswa Dairy vide DD No. 5A that one accused Sumit was arrested by SI Kamlesh and he had disclosed about case FIR No. 440/10, Police Station Subhash Place. According to him, on this he reached at Rohini Court along with Constable Dilawar and after taking permission from concerned Court, interrogated the accused Sumit and formally arrested him vide memo Ex.PW5/A and his disclosure statement was recorded vide Ex.PW5/B. He has testified that St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 36 of 122 thereafter the accused Sumit was kept in muffled face and he was produced before the Court concerned. The witness has also deposed that he moved an application for conducting the TIP and ultimately his TIP was got fixed for 26.11.2010 but during Judicial TIP, complainant Sandeep Sehgal could not identify the accused Sumit. (42) According to the witness, in the present case, there was another eye witness Shrawan and the accused Sumit was further tendered for Judicial TIP qua other eye witness namely Shrawan and during that TIP proceedings, accused Sumit refused to take part in Judicial TIP. He has further deposed that on 01.12.2010, accused Sumit was taken on two days' Police Custody Remand for recovery of the robbed articles and for arrest of coaccused but during Police Custody Remand, accused Sumit could not recovered any robbed article. According to the witness, on 03.12.2010, Complainant Sandeep came to the Police Station came to know the progress of his case and had identified the accused Sumit as one of the assailants. The witness has further deposed that thereafter he recorded the statement of Sandeep under Section 161 Cr.P.C. in this regard and thereafter, accused Sumit was produced before the Ilaqa Magistrate and thereafter, he was sent to Judicial Custody and he recorded the statements of witnesses. The witness has further deposed that on 10.12.2010, he came to know that coaccused Krishna Murti was already arrested by Crime Branch in some another case and was St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 37 of 122 running in JC after which he made a request before the Court concerned for his production for want of investigation. According to the witness, on 14.12.2010, the accused Krishna Murti was produced by the Jail Authority before the Court concerned and he then with the permission of the Court interrogated the accused Krishna Murti who made his disclosure statement vide Ex.PW16/B and thereafter accused Krishna Murti was formally arrested vide memo Ex.PW16/C. The witness has also deposed that thereafter accused was produced before the Court concerned and he moved an application for conducting the TIP but during TIP proceedings, accused Krishna Murti refused to take part after which the accused Krishna Murti was taken on Police Remand but the accused Krishna Murti could not recover any robbed articles.
(43) The witness has testified that on 16.12.2010, the complainant Sandeep handed over him the bill of mobile which he kept on record copy of which is Mark 'A'. According to the witness, thereafter, on 25.05.2011, he received an information from Special Staff NorthWest about the arrest of the accused Shanker @ Bunty after which accused Shanker @ Bunty was produced in the Court concerned. According to the witness, on 26.05.2011 he reached in the Court concerned and formally arrested the accused Shanker @ Bunty vide memo Ex.PW4/A. The witness has deposed that the accused was produced before the Court concerned for getting his Judicial TIP but St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 38 of 122 accused refused to participate in Judicial TIP and thereafter, accused was taken on Police Custody Remand for the recovery of the robbed articles. According to the witness, during Police Custody, accused Shanker took them to his house at A - 32, Rana Pratap Bagh, Sangam Park from where he took out a black and blue colour bag on which the sticker of 'IDLE SPORT SYSTEM, GIMMY DIGITAL' was affixed. The witness has further deposed that the said bag was opened and it was found to contain a camera of black colour, make 'NIKON', made in Japan and on one side of the camera, D300 was mentioned. According to the witness, the bag was also found to contain Nikon Speed Light mentioning as D800 and told him that he had robbed this bag on 18.11.2010. The witness has deposed that the said camera, flash of the camera was kept in the same bag and the same was converted into white cloth pullinda and sealed with the seal of 'UR' and was taken in Police possession vide memo Ex.PW15/A. He has also deposed that thereafter accused Shanker got recovered one mobile phone, make 'NOKIA' and during PC Remand and in pursuant of the disclosure statement, the accused Shanker took them to the house of accused Kailash but accused was not found available there and was found available at Tea Shop i.e. Pawan Cold Drinks in front of Sant Naam Dharamshalla, Toda Bheem Road at the instance of accused Shanker. According to the witness, the accused Kailash was interrogated who made his disclosure statement vide Ex.PW12/C after St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 39 of 122 which the accused Kailash was arrested vide memo Ex.PW12/A and his personal search was carried out vide memo Ex.PW12/B. The witness has further deposed that in pursuance of disclosure statement, accused Kailash and Shanker took them to the house of accused Tej Singh where Tej Singh was apprehended near Ram Bhakt Dharamshalla from his house and was arrested vide memo Ex.PW12/D, his personal search was carried out vide memo Ex.PW12/E. According to the witness, when the search of the accused was carried out, from the right pocket of the accused Tej Singh, a mobile phone, make 'NOKIA' make '6303', Black and Silver colour having IMEI No. 358005035969036 was recovered stated to be robbed from the complainant. The witness has proved that he took into possession the said mobile phone vide memo Ex.PW12/F and thereafter he along with accused Shanker, Kailash and Tej Singh and along with the case property returned to the Police Station. (44) The witness has further deposed that on 16.07.2011, the accused Amit had surrendered before the Ld. Illaqa Magistrate and he (witness) was informed on which he appeared in the Court and after taking the permission of the Court, accused Amit was interrogated who made his disclosure statement Ex.PW3/B after which accused Amit was arrested vide memo Ex.PW3/A and thereafter the accused was tendered for judicial TIP but he refused to participate in Judicial TIP. St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 40 of 122 The witness has further deposed that thereafter, the accused was produced before the concerned Court and was sent to Judicial Custody.He has proved that during investigations he recorded the statement of witnesses and after completion of investigations he filed the charge sheet.
(45) The witness has identified the accused persons as well as the case property i.e. camera Ex.P1, lens Ex.P2, Flash light Ex.P3 and black bag Ex.P4 by way of photographs which are Ex.PW2/C1 to Ex.PW2/C14.
(46) Leading questions were put to the witness by Ld. Addl. PP for the State, wherein the witness has admitted that the accused was taken to Bhagwan Mahavir hospital and not to BJRM hospital for his medical examination. He has further admits that the address where the accused Shankar took them was A32, Sangam Park, Rana Pratap Bagh, third floor. He has explained that he forgotten these details on the passage of time and could not recollect the same. (47) In his cross examination by Ld. Defence Counsels, the witness has deposed that when the accused Shankar @ Bunty was telling them in the vehicle, where the stolen articles were kept by him, he did not record his statement. According to the witness, they started from the court at 2:00 PM and reached the house of accused at about 5:306:00 PM According to the witness, they remained in the hospital for about half an hour. He has testified that he did not join any public St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 41 of 122 persons in the investigations when they reached the house of accused Shankar @ Bunty. Witness has admitted that in the house of Shankar @ Bunty there were other residents also on the ground, first and second floor but he did not join any of the said residents in the investigations. Witness has also admitted that the seizure memo prepared at the spot does not bear the signatures of any public persons. He has also deposed that they remained at the house of Shankar @ Bunty for about 2030 minutes and returned the Police Station at about 6:156:30 PM. According o him, the distance between the house of accused Shankar and the Police Station is about 45 kms. He has denied the suggestion that he did not join the investigations and that is why he is unable to give the correct details of the hospital and the address of the accused and also the time taken during the investigations. He has further denied the suggestion that all the documentations were done while sitting in the Police Station and he signed the same on the asking of the senior officers. He further denied the suggestion that nothing was recovered from the possession of accused Shanker @ Bunty or that no mobile phone was recovered from the possession of accused Kailash and Tej Singh. He has also denied the suggestion that the alleged recovery was planted upon the accused persons by him. Witness has admitted that no public person joined the investigation at the time of arrest of accused persons and that he did not give any notice to the person who did not join the investigation St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 42 of 122 during the arrest and recovery of the articles from the accused. Witness has denied the suggestion that the signatures of the accused persons obtained on some blank papers which were later on converted into incriminating documents against the accused persons or that he was deposing falsely being the Investigating officer of the present case.
STATEMENT OF ACCUSED/ DEFENCE EVIDENCE:
(48) After completion of prosecution evidence the statements of the accused were recorded under Section 313 Cr.P.C. wherein all the incriminating material was put to them which they have denied. The accused Sumit has stated that he is innocent and has been falsely implicated by the police in the present case. According to the accused he has nothing to do with the alleged incident. (49) The accused Krishnamurthy has stated that he has been falsely arrested and later on falsely implicated in this case. According to the accused, he did not make any disclosure statement and his signatures were obtained by the police on some blank papers which were later on converted into various memos. He has further stated that nothing was recovered from his possession or at his instance and the alleged recovery has been planted upon him. The accused has also stated that he has nothing to do with the alleged innocent and he is innocent.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 43 of 122 (50) The accused Shankar has similarly stated that he has been falsely arrested and later on falsely implicated in this case. According to the accused, he did not make any disclosure statement and his signatures were obtained by the police on some blank papers which were later on converted into various memos. He has further stated that he has nothing to do with the alleged incident and he is innocent. (51) The accused Amit @ Gujjar has stated that the police was visiting his house frequently and harassing him and his family due to which he surrendered himself before the Court to prove his innocence.
However, he has been falsely arrested and later on falsely implicated in this case. He has further stated that he did not make any disclosure statement and his signatures were obtained by the police on some blank papers which were later on converted into various memos. The accused has also stated that he has nothing to do with the alleged incident and he is innocent.
FINDINGS:
(52) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. I first propose to deal with all the averments made by the various witnesses individually in a tabulated form as under and later on comprehensively.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 44 of 122 Sr. Name of the Details of deposition No. witness Public witnesses:
1. Sandeep Sehgal He is the victim/ complainant in the present case who (PW2) has deposed as under:
1. That on 18.11.2010 at about 2.00 PM, he left Umrao Farm House, Gurgaon after attending the function of marriage along with his assistant Shravan and was coming home in a car bearing no. DL 4CP7267 via Ring Road, Punjabi Bagh Flyover, Shakurpur.
2. That at about 3:00 AM, after crossing the flyover at Britania Chowk, he felt slightly sleeping on which his car struck a divider at the turn of Shakurpur and hence he along with Shravan got down of the car and noticed that the front tyre of the car had got burst and excel of the car was also broken.
3. That they were thinking about repairing of the car, when suddenly three motorcycles reached there on which three - four boys were riding and they stopped their bikes near his car.
4. That one of the boys asked him (witness) as to what had happened on which he told him that his car has been struck with the divider.
5. That in the meantime one of those boys came to his side and showed him a big knife and first of all he punched him (witness) on his face and then asked him "tere paas jo kuchh hai nikal de".
6. That at that time he was sitting on the driving seat of his car whereas his assistant Shravan was present outside the car and was looking the damages caused and was caught hold by one of those boys.
7. That the boy who had showed him the knife, took search of his vehicle and removed his purse and mobile make Nokia 6303 Classic St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 45 of 122 and thereafter his two other associates also entered the car by opening the rear gate and took search of the car and robbed his camera kit from the car, containing Camera D300 Nikon (initially wrongly mentioned as D3), Lens, Batteries, Flash, CF Cards etc. and also abused them after which they ran away in their motorcycles.
8. That thereafter one cyclist was passing through the road when he (witness) requested him to give him the mobile and then he made a call at 100 number to the police.
9. That PCR Van came to the spot and he briefed the facts to the police but he could not tell the entire facts as he was perplexed.
10. That on 22.11.2010 police recorded his statement vide Ex.PW2/A and also prepared the site plan at his instance.
11. That he also went to Tihar Jail for identification of the accused Sumit but he could not identify him as his half face was muffled whereas one eye of the accused Sumit which was damaged and was his specific identity, could not be seen being covered.
12. That he went to Police Station on one occasion and had identified the accused Sumit there and police also recorded his statement.
13. That once he went to Rohini Jail but he came to know that the accused Krishnamurthy has refused to participate in the TIP proceedings.
14. That he handed over the bill of his mobile phone Ex.P5/1 to the Police Station during investigations of this case and later on he came to know that his belongings had been recovered by the police.
15. That he had identified his camera, lens, flash and mobile phone before the Ld. MM during the TIP proceedings Ex.PW2/B after which he got released these articles on superdari.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 46 of 122
16. That the TIP proceedings of the case property was conducted on 20.8.2011 vide Ex.PW2/B1 and the photographs and the CD of the case property which are Ex.PW2/C and Ex.PW2/D respectively.
17. That the model number of the camera is D300 instead of D3 (mentioned by him earlier in his deposition).
The witness has identified the accused Krishnamurthy by pointing out towards him as the boy who punched him and showed him the big knife and then removed his purse containing about Rs.2,000/ and mobile phone. He has also identified the accused Sumit and Shankar by pointing out towards them as the boys who removed his camera kit which were lying in his rear seat of car. He has also identified the accused Amit @ Gujjar by pointing out towards him as the boy who caught hold of his assistant Shravan who was outside the car.
2. Sharwan Kumar He has been working as assistant photographer with (PW8) Sandeep Sehgal and has deposed on the following aspects:
1. That on 18.11.2010 at about 3.00 AM they were coming to Rohini Sector 16 from Gurgaon after attending a marriage function where they took photographs and they were in Esteem Car which was being driven by Sandeep Sehgal.
2. That he was sleeping in the car on the front seat whereas Sandeep Sehgal was driving the car and their car struck with the divider at Shakurpur after the Britania Chowk flyover.
3. That he also received injuries and they found that the tyre of the car had burst and they were trying to repair the same when in the meanwhile four persons came there on two -
three motorcycles and asked about their presence there on which Sandeep informed St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 47 of 122 them about the incident.
4. That one of those persons took out one knife and kept the same on the neck of Sandeep and also slapped him and the knife was also kept upon him (witness).
5. That the above said persons took away their still camera of Nikon with complete kit and a mobile phone make NOKIA and purse of Sandeep and thereafter all the said four assailants went away from there after abusing them.
6. That Sandeep made call to his elder brother Chetan Sehgal from a mobile phone of a passerbye and also made call to the police at 100 number.
The witness has pointed out towards accused Sumit @ Sahil and identified him as one of the assailants who took away the camera kit from the car.
Police/ Official witnesses:
3. HC Saheb Singh He is a formal witness being the Duty Officer who has (PW1) proved the copy of FIR which is Ex.PW1/A and his endorsement on the rukka is Ex.PW1/B.
4. Ct. Mrityunjay He is a formal witness who has proved the arrest memo (PW3) of accused Amit @ Gujjar S/o Surender which is Ex.PW3/A and his disclosure statement which is Ex.PW3/B.
5. Ct. Sandeep He is a formal witness who he has proved the arrest (PW4) memo of accused Shanker @ Bunty S/o Shyam Lal which is Ex.PW4/A and his disclosure statement which is Ex.PW4/B.
6. Ct. Dilawar He is a formal witness who has proved the arrest memo (PW5) of accused Sumit @ Sushil S/o Chhabil which is Ex.PW5/A and his disclosure statement which is Ex.PW5/B. St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 48 of 122
7. HC Ravinder He is a formal witness being the MHCM who has Nath (PW6) proved entry in Register No. 19 vide S. No. 3474/11 copy of which is Ex.PW6/A and Sr. No. 3475/11 copy of which is Ex.PW6/B.
8. Ct. Sanjeet He is a formal witness who has proved the arrest memo (PW7) of accused Krishna Murthy @ Vicky @ Anna S/o Ramesh which is Ex.PW7/A and his disclosure statement which is Ex.PW7/B.
9. SI Sandeep This witness has proved that on 22.11.2010 at about Kumar (PW9) 10:4511:00 AM the complainant Sandeep Sehgal came at the Police Station and made allegations of robbery upon him on 18.11.2010 at about 3:00 AM on which he recorded the statement of Sandeep Sehgal vide Ex.PW2/A and made endorsement upon the same vide Ex.PW9/A and handed over it to the Duty Officer who recorded the present FIR and further investigation was handed over to SI Umesh Rana.
10. SI Kamlesh This witness has deposed on the following aspects:
Kumar (PW10) 1. That on 23.11.2010 he was on picket checking along with Ct. Arun and Ct. Laxman at Mukund Pur Picket.
2. That at about 7.00 PM one blue color pulsar motorcycle came from Azadpur side area and one person was sitting on the motorcycle who was without helmet who was stopped by them (police) and the documents were asked from him but he was unable to show any documents.
3. That the motorcycle was with bearing no. DL 4S NC 9927 and after checking the engine number and chasis number of the said motorcycle, he contacted the Control Room officials who informed him that the said motorcycle was a stolen property of Police Station Mukherjee Nagar.
4. That he took the possession of the said motorcycle U/s. 102 Cr.P.C. vide Ex.PW10/A.
5. That the genuine number of the said motorcycle was found to be DL 8S NC 5824.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 49 of 122
6. That the motorcyclist namely Sumit was arrested vide Ex.PW10/B and his personal search was taken vide memo Ex.PW10/C after which he interrogated Sumit and recorded his disclosure statement vide Ex.PW10/D.
7. That the accused Sumit made disclosure statement of FIR No. 410/10 Police Station Mukherjee Nagar and of this case.
8. That two other motorcycles bearing no. DL 8S AU 2945 and DL 8S AL 3188 were recovered at his instance and he then seized both motorcycles vide Ex.PW10/E and Ex.PW10/F.
9. That thereafter he prepared the site plan of the place where the accused was arrested by him vide Ex.PW10/G and also prepared the site plan of the place where remaining two motorcycles were recovered vide Ex.PW10/H.
10. That they returned back to Police Station where he deposited the seized articles in the malkhana and recorded DD No. 21A which is Ex.PW10/I.
11. That on the next day, he produced accused Sumit before the Court with Kalandara Ex.PW10/J.
12. That SI Umesh Rana of Police Station Saraswati Vihar met him and collected photocopies of Kalandra from him and also recorded his statement.
11. SI Surender This witness has proved that on 19.08.2011 the TIP Kumar (PW11) proceedings of the case property was conducted by Sh.
V.K. Jha, Ld. MM at Rohini Courts Delhi vide Proceedings Ex.PW11/A.
12. HC Baldev Raj He has joined the investigations with the Investigating (PW12) Officer SI Umesh Rana and has proved the following documents:
Ex.PW12/A Arrest memo of Kailash
Ex.PW12/B Personal search memo of Kailash
Ex.PW12/C Disclosure statement of Kailash
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 50 of 122
Ex.PW12/D Arrest memo of Tej Singh
Ex.PW12/E Personal search memo of Tej Singh
Ex.PW12/F Disclosure statement of Tej Singh
13. SI Ved Prakash Both these witnesses have proved the apprehension
(PW13) & Ct. and arrest of the accused Shankar @ Bunty. They have
Sohan (PW14) proved the following documents:
Ex.PW13/A Arrest memo of accused Shankar @
Bunty
Ex.PW13/B Personal search memo of accused
Shankar @ Bunty
Ex.PW13/C Disclosure statement of accused
Shankar @ Bunty
Ex.PW13/D DD No. 61B (arrival entry)
Ex.PW13/E DD No. 8 (Departure entry)
14. Ct. Sanjay This witness has deposed on the following aspects:
(PW15) 1. That on 04.06.2011 the accused Shankar had been brought on police custody remand for one day.
2. That the accused Shankar was taken to Bhagwan Mahavir Hospital and after the medical examination the accused took them to his house i.e. A32, Sangam Park, Rana Pratap Bagh, Third Floor.
3. That while they were on the way from the hospital at Jahangirpuri to his house the accused had informed them that he had kept the stolen articles in a bed in his house.
4. That as soon as they reached the third floor, they found a double bed and the the mother of accused Shankar was also present.
5. That the accused Shankar lifted the top of the bed and from there took out black bag, one camera with lens make NIKON made in Japan along with a flash light make NIKON made in Japan written on the same and the Investigating Officer converted the same into pullanda with St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 51 of 122 the help of white cloth and sealed with the seal of UR and seized the same vide memo Ex.PW15/A.
6. That thereafter they returned to the Police Station where the case property was deposited in the malkhana.
7. That in the Police Station the accused Shankar also disclosed that after the incident they had gone to Balaji where he had sold the mobile phone to somebody of Rs.1,500/ and that he can identify the said person to whom he had sold the mobile phone.
8. That the Investigating Officer recorded his supplementary disclosure statement of the accused which is Ex.PW15/B.
15. SI Umesh Rana He is the Investigating Officer of the present case who (PW16) has proved the following documents:
Ex.PW16/A Rough site plan
Ex.PW5/A Arrest memo of accused Sumit
Ex.PW5/B Disclosure statement of accused Sumit
Ex.PW16/B Disclosure statement of Krishnamurthy
Ex.PW16/C Arrest memo of Krishnamurthy
Ex.PW4/A Arrest memo of Shankar @ Bunty
Ex.PW15/A Seizure memo of camera got recovered
by the accused Shankar
Ex.PW12/A Arrest memo of Kailash
Ex.PW12/B Personal search memo of Kailash
Ex.PW12/C Disclosure statement of Kailash
Ex.PW12/D Arrest memo of Tej Singh
Ex.PW12/E Personal search memo of Tej Singh
(53) Coming now to the microscopic evaluation of the evidence
against the accused.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 52 of 122
Delay in registration of FIR:
(54) In the present case admitted the incident took place on the
intervening night of 1718.11.2010 i.e. in the early morning hours of 18.11.2010 at about 3:30 AM when the complainant, who is a Photographer by profession along with his assistant was returning from Gurgaon and while they were coming down from the flyover after the Britania Chowk their vehicle had hit the barricades as a result of which the front tyre of their car got brust and the excel also broke and they were compelled to stop on account of the same when the incident of robbery took place when the complainant and his assistant were assessing the damage to the vehicle. The Ld. Defence Counsels have vehemently argued that the entire case has been planted upon the accused persons and no such incident had taken place and it is for this reason that the delay in registration of FIR is fatal to the prosecution case.
(55) I have considered the arguments raised and before coming to the merits of the case, I may observe that the Hon'ble Apex Court in the case of State of Rajasthan Vs. Om Prakash reported in (2002) 5 SCC 745, has held that in case where delay is explained by the prosecution in registering the case, the same could be condoned moreover when the evidence of the victim is reliable and trustworthy. (56) Further, in the case of Tulshidas Kanolkar Vs. The State of Goa reported in (2003) 8 SCC 590, the Hon'ble Supreme Court has St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 53 of 122 observed as under:
"..... The unusual circumstances satisfactorily explained the delay in lodging of the first information report. In any event, delay per se is not a mitigating circumstances for the accused when accusation of rape are involved. Delay in lodging first information report cannot be used as a ritualistic formula for discarding prosecution case and doubting its authenticity. It only puts the court on guard to search for and consider if any explanation has been offered for the delay. Once it is offered , the Court is to only see whether it is satisfactory or not. In a case if the prosecution fails to satisfactory explain the delay and there is possibility of embellishment or exaggeration in the prosecution version on account of such delay , it is a relevant factor. On the other hand satisfactory explanation of the delay is weighty enough to reject the plea of false implication or vulnerability of prosecution case. As the factual scenario shows, the victim was totally unaware of the catastrophe which had befallen to her. That being so the mere delay in lodging of first information report does not in any way render prosecution version brittle."
(57) Applying the settled principles of law to the facts of the present case it is evident that Sandeep Sehgal (PW2) is a photographer by profession and was returning after attending a marriage at Gurgaon when in the morning hours. While he was on the driver seat and was driving the car, his assistant Sharvan Kumar was sleeping on the adjoining seat and Sandeep Sehgal felt sleepy and the vehicle went out St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 54 of 122 of control and hit the divider. He has explained that the robbers had taken away his mobile phone and hence it was only after borrowing the mobile phone from some passerbye that he could made a call at 100 number. Incidentally the PCR form reflecting the 100 number call has not been placed on record and what has been placed on record is DD No. 9 which is based upon information from control Room which contains only half information on the basis of which initially SI Manmeet reached the spot, perhaps most disinterestingly and as a matter of formality simply mentions in the Daily Diary report that the complainant had refused to make any statement being in a state of shock and also being scared and had stated that he would come in the morning to make a complaint but did not return till 22.11.2010. The evidence on record and the material placed before this Court shows that SI Manmeet himself made no efforts to contact the complainant during this intervening period nor there is any other material to show what proceedings he had conducted on the call which was marked to him. It is writ large that there was a total inaction by the local police on the complaint which had been received by them in the morning hours. According to the complainant he had informed the PCR officials about the involvement of threefour boys in the incident though later he came to know that many other boys had also been arrested but he has explained that at that time he was unable to give all the details to the police and told them that he would come to them in St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 55 of 122 the morning. The casual conduct of the police and their hesitation in registering the FIR particularly in cases relating to theft and robbery is a fact which is not unknown. Public persons too are equally hesitant in getting the FIR registered not only on account of fear of hardened criminal but also on account of harassment which they may face by going to the Police Station and Courts time and again. In the present case what had taken place was an armed robbery. While committing robbery the assailants had shown a big knife to the complainant after which they had removed his articles. They had taken the advantage of the helpless situation of the complainant when their vehicle had struck the divider on the main road. There is very possibility that the complainant himself was not in a proper mental and physical state while returning from the marriage in the later night rather midnight hours and hence hesitant to go to the Police Station. While on the one hand the accused had taken the advantage of this helpless situation of the complainant and committed and armed robbery whereas on the other hand his troubles got compounded by the lackadaisical attitude and conduct of the officer who first reached the spot. It is only when on 22.11.2010 that when the complainant went to the Police Station and got his statement recorded through SI Sandeep on the basis of which rukka was prepared and the FIR was registered, that the investigations in the present case were kicked off. The incident in question cannot be doubted since in his complaint the complainant has not only given the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 56 of 122 details of the entire incident but also gave the details of the articles which had been robbed. There is also no reason why he would fabricate an incident unnecessarily for getting a false FIR registered. In addition to the same the PCR call confirms the incident though the manner in which the call has been recorded in the DD as conveyed to the Duty Officer, which though is not very accurately worded. The contents of the PCR calls cannot be taken as credible and accurate account of the incident except that it confirms and establishes the time when the first information of some incident is received by the police but what exactly is the incident can only be ascertained and confirmed after the Police Team reaches the spot to investigate the matter. (58) Further, it is also a matter of common knowledge that in a sudden violent incident the which victim could not anticipate, would certainly leave him in a state of shock so as to be in a position to explain the complete details to anybody including the PCR officials when the call is first made and only a short information regarding the spot where the incident suffices and is incorporated in the PCR Forms which too at times is also not accurately recorded. The victim in the present case has explained that he had made the PCR call and informed the police of the incident. Hence, under the given circumstances, the delay in registration of FIR if any has been duly explained and would not be fatal to the case of the prosecution particularly in view of the fact that the PCR call was made immediately upon which DD No.9 St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 57 of 122 was recorded and kept pending for which the complainant cannot be put at fault and also in view of the subsequent recoveries of the stolen articles i.e. mobile and camera kit, details of which had already been given by the complainant/ victim which recoveries were got effected by accused who have also been identified in the Court as assailants. Therefore, I hold that there is no merit in the argument raised by the Ld. Defence Counsel in this regard.
Identity of the accused/ Ocular Evidence:
(59) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborates each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(60) In the present case the entire prosecution case rests upon the testimony of Sandeep Sehgal (PW2) and the eye witness/ his assistance Sharwan Kumar (PW8) who was with him at the time of the incident. According to the prosecution case both Sandeep Sehgal and Sharwan Kumar who are professional photographers had gone to attend a marriage at Umrao Farm House at Gurgaon from where they St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 58 of 122 left at around 2:00 AM and it was around 3:00 AM that they were present in the area of Ring Road Shakurpur having crossed the Flyover. According to Sharwan Kumar he was sitting next to the driver seat whereas Sandeep Sehgal was driving the vehicle. At that time Sharwan dozed off and even Sandeep Sehgal was feeling sleepy and in that process accidentally hit the divider as a result of which there was breaking of excel/ bursting of front tyre. As soon as they came out to see what had happened, about three motorcycles having around four to five or may be more boys came and asked as to what the matter was on which Sandeep Sehgal informed them that his car had been damaged. As soon as he said that, one of the said persons pulled out a knife and asked Sandeep Sehgal to handover his belongings.
Thereafter Sandeep Sehgal was searched, his mobile phone and purse were taken away and his car was also searched and his camera kit containing Camera make Nikon T300, lens, flash light and bag were also removed after which these boys went away on their motorcycles. (61) Since the prosecution is placing its heavy reliance on the testimonies of Sandeep Sehgal (PW2) and Sharvan Kumar (PW8), hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 59 of 122 determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978).
(62) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 60 of 122 found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(63) Applying the settled principles of law to the facts of the present case coming first to the testimony of Sandeep Sehgal (PW2) the relevant portion of his examination in chief is reproduced as under:
"...... I am having business of photography.
On 18.11.2010, at about 2.00 PM, I left Umrao Farm House, Gurgaon, after attending the function of marriage. My assistant Shravan was with me. We were coming to our house by our car no.
DL4CP7267 via Ring Road, Punjabi Bagh flyover, Shakur Pur, and when we were crossing the flyover of Britannia Chowk, it was about 3.00 AM, and after crossing the flyover I was slightly sleepy and my car struck with the divider at the turn of Shakur Pur. I got St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 61 of 122 down from my car and noticed that the front tyre of my car got burst and Shravan also got down from the car. We also noticed that the excel of the car was also broken. When we were thinking about the repair of car, at that time, three motorcycles reached there and threefour boys were there on those bikes and they stopped their bike near my car. One of them asked me as to what happened. I told him that my car had struck the divider. Then, one of the boys came to my side and showed me a big knife. First of all, he punched me on my face and then asked me, "Tere Paas Jo Kuchh Hai Nikal De". At that time, I was sitting on the driving seat of my car, whereas my assistant Shravan was present outside the car, who was looking at the damages. He was caught hold by one of the boy. The boy who showed me the knife, took search of my vehicle and removed my purse and mobile make Nokia 6303 Classic. Thereafter, his two other associates also entered the car by opening the rear gate and took search of the car. They robbed my camera kit from the car, containing Camera D3 Nikon, Lens, Batteries, Flash, CF Cards etc. They abused us and thereafter ran away on their motorcycles. One cyclist was passing through the road and I requested him to give me the mobile and then I made call at 100 number to the police. PCR van reached there. I told them regarding the incident. I did not tell the entire facts to the police, as I was perplexed.
On 22.11.2010, police recorded my statement, which is Ex.PW2/A, bears my signature at point A. Police also prepared site plan of the spot at my instance. I can identify those boys.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 62 of 122 At this stage, witness pointed out towards accused Krishnamurthy, present in the Court, correctly identified, and says that ....he is the person, who punched me and showed me big knife and then removed my purse, containing about Rs.2000/ and mobile...
The witness has further pointed out towards accused Sumit and Shankar, accused present in the Court today, Correctly identified as one ...who removed the camera kit, which was lying rear seat of my car.....
The witness further pointed out towards accused Amit @ Gujjar and states that .....he is the person, who caught hold my assistant Shravan, who was outside the car.....
I also went to Tihar Jail for identification of accused Sumit, where I could not identify him, as his half face was muffled, whereas, one eye of accused Sumit is damaged, which was his specific identity.
I also went to PS on one occasion and identified him in the PS. Police recorded my statement.
Once, I also went to Rohini Jail regarding identification of accused Krishnamurthy, where I came to know that he had refused to join the proceedings.
I handed over the bill of my mobile phone to the PS during investigation of this case. Later on, I came to know that my belongings had been recovered by the police. I identified my camera, lens, flash and mobile phone before the Ld. MM during TIP proceedings, which I got released on superdari.
At this stage, one sealed envelope with the seal of Court is opened. It is found containing judicial TIP proceedings pertaining to the refusal of accused St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 63 of 122 Krishnamurthy.
At this stage, another envelope sealed with the seal of Court also opened. It is found containing Judicial TIP of the accused Sumit @ Sahil. Same is Ex.PW2/B and the witness identifies his signature at point A. Today, I have brought the case property, which was released to me on superdari.
At this stage, witness has produced a camera make Nikon T300, lens, flash, bag and mobile make Nokia 6303. Witness identifies that these are the same articles, which were robbed from him by the accused persons and were subsequently released to him on superdari, after judicial TIP. The camera is Ex.P1, lens is Ex.P2, flash is Ex.P3, bag is Ex.P4 and mobile phone is Ex.P5.
Witness also produced the original bill of the mobile make Nokia 6303. Photocopy of same is Ex.P5/1. Original bill seen and returned.
At this stage, one sealed envelope available on the judicial file is opened.
It is found containing TIP proceedings of the case property dated 20.08.2011. Witness identifies his signature on the TIP proceedings at point A. The TIP proceeding is Ex.PW2/B. Today, I have also brought the case property. Photographs of the same are total 14 in number and are from different angles, alongwith CD, containing the images of the said photographs. The photographs are collectively Ex.PW2/C and the CD is Ex.PW2/D. I may mention here that the model number of my camera is D300, instead of D3, as mentioned in my earlier examination....."
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 64 of 122 (64) This witness has been exhaustively crossexamined by the Ld. Defence Counsels wherein he has stood by his version. According to him, when he called the police at 100 number he had informed them about motorcycle No. DL8SAN3894 and has explained that there were total three motorcycles but he could notice the number of only motorcycle as above. He has further explained that he had not given the physical description of the accused persons in his complaint/ rukka to the police at the time of registration of the FIR and he only gave them the number of persons. He has further stated that he had narrated to the police that one of the boy was having problem in his eye (Kana) but the police did not bring the same in his statement. (65) The witness Sandeep Sehgal has specifically identified the accused Krishnamurthy as the person who showed him a big knife and then removed his purse, containing about Rs.2000/ and mobile make Nokia 6303 Classic. He has also identified the accused Sumit and Shankar as the persons who had removed the camera kit containing Nikon camera, lens, flash light, batteries, bag etc., which were lying rear seat of his car. The victim has further identified the accused Amit @ Gujjar as the person who had caught hold of his assistant Shravan, who was outside the car.
(66) Coming now to the testimony of the witness Sharvan Kumar (PW8), I may observe that in his examination in chief Sharvan St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 65 of 122 Kumar has only identified one of the accused i.e. Sumit @ Sahil and says that he cannot identity the others but has confirmed and corroborated the entire incident as narrated by Sandeep Sehgal in toto. The relevant portion of the testimony of Sharvan Kumar is reproduced as under:
"........ I used to work as assistant photographer with Sandeep Sehgal. On 18.11.2010 at about 3.00AM we were coming to Rohini Sector 16 from Gurgaon after attending a marriage function where we took photographs. We were in Esteem Car which was being driven by Sandeep Sehgal. I was sleeping in the car on the front seat and the Sandeep Sehgal was driving the car. Our car struck with the divider at Shakurpur after the Britania Chowk fly over. I received injuries and we found that the tyre of the car was burst and we were trying to repair the same. Meanwhile four persons came there on two - three motorcycles. They asked about our presence there and Sandeep informed them about the incident. One of those persons took out one knife and kept the same on the neck of Sandeep and also slapped him.
A knife was also kept upon me. The above said persons took away our still camera of Nikon with complete kit and a mobile phone make NOKIA and purse of Sandeep and thereafter they above said four assailants went away from there after abusing us. Thereafter Sandeep made call to his elder brother Chetan Sehgal from a mobile phone of a passer bye. Sandeep also made call to the police at 100 number.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 66 of 122 I can identify one of the assailants only if shown to me.
At this stage witness pointed out towards accused Sumit @ Sahil and identified as one of the assailants who took away the camera kit from the car......"
(67) This witness Sharvan Kumar has also been crossexamined by the Ld. Defence Counsels wherein he has explained that at the time when the accused were apprehended the Investigating Officer called them and asked them to identify the accused as well as the articles recovered from him. He has also explained that there was no CNG Filling station near the place where they were robbed and it was around 1015 steps from the place where they were robbed. (68) A joint reading of testimonies of both Sandeep Sehgal and Sharvan Kumar would show that they have corroborated each other on material particulars relating to the manner in which the incident had taken place. They are the persons who are not known to any of the accused persons. The accused on the other hand are professional robbers who are involved in large number of cases. Their previous involvements present on record confirm that they are operating in the area adopting similar modus operandi and in fact two other cases i.e. FIR No. 439/2010 PS Saraswati Vihar and FIR No. 377/2010 Police Station Rani Bagh (both cases pending before this Court and being dealt with along with the present case as some of the accused are St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 67 of 122 common).
(69) The accused Sumit @ Sahil is a person who is one eyed/ kana and in the initial Test Identification Parade conducted had offered himself for the TIP but Sandeep Sehgal could not identify him. In this regard Sandeep Sehgal has offered a specific explanation that he could not identify Sumit @ Sahil in the Judicial Test Identification Parade since Sumit had covered his one eye which was damaged with a cloth which was his specific identification mark due to which he was not able to identify him but he soon informed the Investigating Officer that one of the accused was one eyed and hence when he saw Sumit in the Police Station he was able to identify him. Even before the Court and during his deposition he has correctly identified the accused Sumit and even his assistant Sharvan Kumar has identified the accused Sumit @ Sahil on account of his distinction (being one eyed) though Sharwan was not been able to identify other assailants. I may mention that it is apparent from the testimonies of both these eye witnesses that at the time of the incident intially Sandeep Sehgal was outside and was observing his car and the damaged caused to it and then came inside and sat on the driver seat when the boys stopped their bike near him and showed him a knife whereas Sharvan Kumar was still standing outside the case when he was caught hold of by the accused Amit @ Gujjar. The possibility that Sharvan Kumar was not able to see the boy who had caught hold of him cannot be ruled out and perhaps this is the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 68 of 122 reason why he could not identify him. On the other hand Sandeep Sehgal who was sitting on the driver seat was in a better position to closely observe all the boys including the one who had shown him the knife, who had spoken to him, who had snatched his mobile phone and two other boys who had entered the vehicle and taken away the camera kit. In so far as the accused Sumit @ Sahil is concerned on account of his distinction having one eye damaged both the witnesses have been able to very easily identify him. A specific suggestion was made to the witness Sandeep Sehgal if he had informed the police officer that one of the assailant was one eyed to which Sandeep Sehgal has explained that though he did inform the Investigating Officer but incidentally the said fact was not recorded by the Investigating Officer. There is no reason to doubt the testimonies of these two eye witnesses who themselves are victims. The place where the incident took place is a running road i.e. Ring Road with large number of street lights i.e. neon lights installed and not a dark spot and there is no reason why the victims/ witnesses would not be in a position to see the assailants clearly. Further, it has also been suggested that such an incident is not possible on a busy road with large number of traffic running 24 hours. I am not convinced by the argument raised by the Ld. Defence Counsel, since Ring Road has a heavy traffic during the night hours i.e. large number of trucks and interstate heavy vehicles entering the City which are permissible during the night hours. Further more the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 69 of 122 manner in which the car of Sandeep Sehgal had struck on the divider and threefour motorcyclist had stopped around him, it is natural other passersbyes not having paid any much attention to what had happened on account of the fact that the they would have though that it was a accident which had taken place with people trying to help the victims and hence passed through the area. Even otherwise, the indifference of the public persons to the crime which is happening around them in Delhi is a matter of common knowledge and merely because people does not stop to help the victim can be no ground to disbelieve the victims who otherwise have no reason to create the incident and falsely implicate the accused who were unknown to them prior to the incident. (70) This being the background, I hereby hold that the testimonies of both these witnesses Sandeep Sehgal and Sharvan Kumar are trustworthy, truthful and credible and hold that their identification to be valid. In fact the accused Sumit @ Sahil has been identified by both the witnesses Sandeep Sehgal and Sharvan Kumar and there is no reason to disbelieve the said identity particularly so when Sandeep Sehgal has explained why he could not identity Sumit @ Sahil earlier in the Judicial Test Identification Parade as he had covered his eye which was damaged. This only lends credence to the fact that Sandeep Sehgal has identified the correct assailant more so when the recovery of the stolen camera and the mobile phone have also been got affected by the accused pursuant to their arrest. St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 70 of 122 (71) Therefore, under these circumstances I hereby hold that the prosecution has been able to successfully prove and establish the allegations against the accused Sumit @ Sahil, Mohd. Shankar @ Bunty and Amit @ Gujjar of having committed robbery upon the complainant for which the accused Sumit @ Sahil, Mohd. Shankar @ Bunty and Amit @ Gujjar are held guilty of the offence under Section 392 Indian Penal Code. In so far as the accused Krishnamurthy is concerned, he has been identified by the complainant/ victim Sandeep Sehgal as the person who had shown him the knife during the robbery and hence I hold the accused Krishnamurthy guilty of the offence under Section 392 read with 397 Indian Penal Code.
Apprehension/arrest of the accused persons and recovery of stolen articles:
(72) It is the case of the prosecution that after the incident there were no clues about the assailants and it is only when the accused Sumit @ Sahil was apprehended in another case with a stolen motorcycle that he disclosed about his involvement in the present case and also disclosed about the details of his other associates involved in the case that it came to be known that along with Sumit it was Mohd.
Shankar @ Bunty, Krishnamurthy and Amit @ Gujjar who were involved in the incident of robbery. It was only after this breakthrough St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 71 of 122 that led to the subsequent arrest of accused Mohd. Shankar @ Bunty, Krishnamurthy and Amit @ Gujjar and pursuant to their disclosure statements the property robbed from the victim Sandeep Sehgal i.e. his mobile phone make Nokia 6303 bearing IMEI no. 358005035969036 and camera Nikon D300, lens, batteries, camera bag were recovered. (73) In order to prove its case the prosecution has placed its reliance on the testimonies of Ct. Mrityunjay (PW3), Ct. Sandeep (PW4), Ct. Dilawar (PW5), Ct. Sanjeet (PW7), SI Kamlesh Kumar (PW10), HC Baldev Raj (PW12), SI Ved Prakash (PW13), Ct. Sohan (PW14), Ct. Sanjay (PW15) and SI Umesh Rana (PW16). (74) However, before coming to the merits of the evidence which has come on record, I may observe that as per the provisions of Section 27 of Evidence Act, which is in the nature of a proviso to Section 26 of the Act, to the extent it is relevant, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Thus the requirement of law is that before the fact discovered in consequence of an information received from an accused is allowed to be proved, he (accused) needs to be in the custody of a police officer.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 72 of 122 (75) Section 3 of the Indian Evidence Act explains the meaning of the word Fact. It provides that a fact means and includes:
1. Anything, state of things, or relation of things, or capable of being perceived by the senses,
2. Any mental condition of which any person is conscious.
(76) It further provides five illustrations as to what would constitute a fact which are as under:
1. That there are certain objects arranged in a certain order in a certain place, is a fact
2. That a man heard or saw something, is a fact.
3. That a man said certain words, is a fact.
4. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.
5. That a man has a certain reputation, is a fact.
(77) A cojoint reading of Section 3 and Section 27 of Evidence Act would apply that as much of the statement as would relate to the discovery of fact connected with the accused would be admissible in evidence. The discovery of the fact is not only the discovery of the articles but also the discovery of the fact that the articles were kept by a particular accused at a particular place because in principle there is no difference between the statement made by the accused to the effect that "I will show you the person to whom I have given the articles" and St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 73 of 122 the statement that "I will show you the place where I have kept the articles".
(78) The Hon'ble Supreme Court in the case of K. Chinnaswamy Reddy Vs. State of A.P. reported in AIR 1962 SC 1788 had exhaustively discussed the scope and ambit of Section 27 of the Evidence Act had considered the question as to whether the statement of the accused to the effect that "he had hidden them (the ornaments)" and "would point out the place", where they were, is wholly admissible in evidence under S. 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. In the above case the Ld. Sessions Judge had relied upon the judgment of Pulukuri Kotayya Vs. KingEmperor reported in 74 Ind App 65:
AIR 1947 PC 67 where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. It was observed by My Lords of the Hon'ble Supreme Court that in the above case (Pulukuri Kotayya) the Judicial Committee considered S. 27 of the Indian Evidence Act, as under: "Provided that when any fact is deposed to as discovered in consequence of information received from a person, accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 74 of 122 proved......"
".... this section is an exception to Ss. 25 and 26 which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody unless it is made in immediate presence of a Magistrate. Section 27 allows that part of the statement made by the accused to the police "whether it amounts to a confession or not"
which relates distinctly to the fact thereby discovered to be proved. Thus even a confessional statement before the police which distinctly relates to the discovery of a fact may be proved under S.
27. The Judicial Committee had in that case to consider how much of the information given by the accused to the police would be admissible under S. 27 and laid stress on the words "so much of such information. . . .. ...... as relates distinctly to the fact thereby discovered" in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that "the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact...."
"........Information as to past user, or the past history of the object produced is not related to its discovery in the setting in which it is discovered. This was exemplified further by the Judicial Committee by observing that the information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' leads to the discovery of the fact that a knife is concealed in St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 75 of 122 the house of the informant to his knowledge and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If, however, to the statement the words be added 'with which I stabbed A', these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant......"
(79) After considering the settled principles the Hon'ble Apex Court observed as under:
"......If we may respectfully say so, this case clearly brings out what part of the statement is admissible under S. 27. It is only that part which distinctly relates to the discovery which is admissible; but if any part of the statement distinctly relates to the discovery it will be admissible wholly and the court cannot say that it will excise one part of the statement because it is of a confessional nature. Section 27 makes that part of the statement which is distinctly related to the discovery admissible as a whole, whether it be in the nature of confession or not. Now the statement in this case is said to be that the appellant stated that he would show the place where he had hidden the ornaments. The Sessions Judge has held that part of this statement which is to the effect "where he had hidden them" is not admissible. It is clear that if that part of the statement is excised the remaining statement (namely, that he would show the place) would be completely meaningless. The whole of this statement in our opinion relates distinctly to the discovery of ornaments and is admissible under S. 27 of the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 76 of 122 Indian Evidence Act. The words "where he had hidden them" are not on a par with the words "with which I stabbed the deceased" in the example given in the judgment of the Judicial Committee. These words (namely, where he had hidden them) have nothing to do with the past history of the crime and are distinctly related to the actual discovery that took place by virtue of that statement. It is however urged that in a case where the offence consists of possession even the words "where he had hidden them" would be inadmissible as they would amount to an admission by the accused that he was in possession. There are in our opinion two answers to this argument. In the first place S. 27 itself says that where the statement distinctly relates to the discovery it will be admissible whether it amounts to a confession or not. In the second place, these words by themselves though they may show possession of the appellant would not prove the offence, for after the articles have been recovered the prosecution has still to show that the articles recovered are connected with the crime, i.e., in this case, the prosecution will have to show that they are stolen property. We are, therefore, of opinion that the entire statement of the appellant (as well as of the other accused who stated that he had given the ornament to Bada Sab and would have it recovered from him) would be admissible in evidence and the Sessions Judge was wrong in ruling out part of it. Therefore, as relevant and admissible evidence was ruled out by the Sessions Judge, this is a fit case where the High Court would be entitled to set aside the finding of acquittal in St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 77 of 122 revision though it is unfortunate that the High Court did not confine itself only to this point and went on to make rather strong remarks about other parts of the evidence.
(80) Later in the year 1969 the Three Judges Bench of the Hon'ble Supreme Court has in the case of Zaffar Hussain Dastagir Vs. State of Maharastra reported in 1969 (2) SCC 872 while dealing with the applicability of the provisions of Section 27 of the Indian Evidence Act relied upon the case of K. Chinnaswamy Reddy Vs. State of A.P. observed as under:
"....in order that the Section may apply the prosecution must establish the information given by the accused led to the discovery of some fact deposed to by him and the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by the accused.
The essential ingredient of the Section is that the information given by the accused must led to the discovery of the fact which is the direct outcome of such information; secondly only such portion of the information given as is distinctly connected with the said discovery is admissible against the accused and thirdly the discovery of the fact must relate to the commission of some offence.
(81) In the said case the Hon'ble Supreme Court further went to explain that:
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 78 of 122 "..... In a case where the accused is charged with theft of articles or receiving stolen articles states to the police "I will show you the articles at the place where I have kept them" and the articles were actually found there, there can be no doubt that the information given by the accused led to the discovery of a fact that is keeping of the articles by the accused at the place mentioned. However, the discovery of the fact deposed to in such a case is not the discovery of the articles but the discovery of the fact that the articles were kept by the accused at a particular place. It was observed that in principle, there is no difference between the above statement and that made by the accused in the case which in effect is that "I will show you the person whom I have given the diamonds exceeding 200 in number". The only difference between the two statements is that a "named person" is substituted for "the place" where the articles are kept. In neither case are the articles of the diamonds, in fact discovered. There can be no doubt that the portion of the alleged statement of the accused would be admissible in evidence......"
(82) In the recent past the Hon'ble Supreme Court has in the case of State (NCT of Delhi) Vs. Navjot Sandhu with Shaukat Hussain Guru Vs. State (NCT of Delhi) reported in AIR 2005 SC 3820 reinforced the above view when it observed that "discovery of fact" should be read with the definition of "fact" as contained in Section 3 of the Evidence Act which defines the "fact" as meaning and St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 79 of 122 including anything, state of things or relation of things, capable of being perceived by the senses and also includes any mental condition of which any person is conscious (emphasis supplied). It was held that the provisions of Section 27 would apply whenever there is discovery which discovery amounts to be confirmatory in character guaranteeing the truth of the information given to which facts the police officer had no access earlier which also includes recovery of material object. The Hon'ble Court further observed that so much of the information as relates distinctly to the fact thereby discovered is admissible. (83) Applying the settled principles of law to the facts of the present case I may observe that after the PCR call was received from the victim Sandeep Sehgal on 18.11.2010 at 3:45 AM and after registration of the case thereafter on the statement of Sandeep Sehgal there was no clue with regard to the persons who had committed the robbery and it was only after the accused Sumit @ Sahil was apprehended by the checking staff at Mukundpur Picket on 23.11.2010 at 7:00 PM and pursuant to this disclosure and recovery of two other stolen motorcycles that it came to be known that the incident in the present case had also been committed by Sumit and his associates namely Mohd. Shankar @ Bunty, Krishnamurthy and Amit @ Gujjar who were operating in the area and had committed robberies in other cases by using the same modus operandi. Not only did the arrest of Sumit crack the present case but after the arrest of the other accused St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 80 of 122 the robbed property was also recovered. The testimony of SI Kamlesh Kumar (PW10) is relevant in this regard. He has proved that on 23.11.2010 while he was on picket checking along with Ct. Arun and Ct. Laxman at Mukund Pur Picket, at about 7.00 PM one blue color pulsar motorcycle came from Azadpur side area and one person was sitting on the motorcycle who was without helmet who was stopped by them (police) and the documents were asked from him but he was unable to show any documents. The said motorcycle was with bearing no. DL 4S NC 9927 and on checking it was found to be a stolen property of Police Station Mukherjee Nagar and the original number of the said motorcycle was found to be DL8SNC5824. Thereafter the motorcyclist i.e. accused Sumit was arrested and interrogated and at his instance two other motorcycles bearing no. DL8SAU2945 and DL8SAL3188 were also recovered. While Sumit @ Sahil was under interrogation in the present case it was then that he disclosed and it came to be known to the first time that he along with Mohd. Shankar @ Bunty, Krishnamurthy and Amit @ Gujjar were involved in the robbery incident in the present case which took place at 3:45 AM on 18.11.2010 on the Ring Road flyover. Information was immediately sent to the Police Station Saraswati Vihar and to the Investigating Officer in the present case who then formally arrested Sumit @ Sahil in the present case which formal arrest in the present case is not disputed. Hence, it was only after his arrest that for the first time the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 81 of 122 names of the other persons involved in the incident i.e. Mohd. Shankar @ Bunty, Krishnamurthy and Amit @ Gujjar came to be known which were previously not known to the police and is a disclosure of fact and admissible in evidence as contemplated under Section 27 of Evidence Act.
(84) Coming next to the apprehension and arrest of the accused Shankar @ Bunty, I may observe that for the first time on 25.5.2011 the Investigating Agency came to know about the involvement of Mohd. Shankar @ Bunty in the present case. SI Ved Prakash (PW13) and his team comprising of Ct. Sohan (PW14), Ct. Mahesh and HC Narender from the Operation Cell had received a secret information regarding the presence of Mohd. Shankar @ Bunty at his residence on the same day i.e. 25.5.2011. They have proved that on 25.5.2011 they were in patrolling in the area of Azadpur when at about 12:30 PM, they reached near MCD Flats, Azadpur where a secret informer informed that Shanker @ Bunty who was wanted in the present case of robbery of Police Station Saraswati Vihar, was present in Flat No. 34/4, MCD Flat, Azadpur. They have further proved that when they knocked the door of house, it was the accused Shankar @ Bunty who opened the door and on seeing the police party tried to run away by jumping over the railing as a result of which Ct. Sohan and Ct. Mahesh followed him by similarly jumping over the railing and sustained injuries while apprehending Shankar @ Bunty. The medical record of both the police St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 82 of 122 officials is also on record showing that they had actually sustained injuries while jumping over the railings but successful in apprehending the accused Mohd. Shankar @ Bunty. Pursuant to the same the accused Mohd. Shankar @ Bunty was apprehended and on interrogated wherein he confessed his involvement in the crime of robbery in this case after which he was arrested vide Ex.PW13/A under Section 41.1A Cr.PC, his personal search was conducted vide memo Ex.PW13/B and his disclosure statement was recorded vide memo Ex.PW13/C wherein he not only disclosed about the details of other coaccused but also about the robbed articles and further disclosed that he could get the same recovered. On 4.6.2011 during the Police Custody Remand the accused Mohd. Shankar @ Bunty took the Investigating Officer to his house at A32, Sangam Park, Rana Pratap Bagh where he took them to his room on third floor in which there was a bed and after lifting the top of the bed, he took out a black bag which contained one camera with lens make NIKON made in Japan along with a flash light make NIKON made in Japan and informed that this was the property which they had robbed from Sandeep Sehgal after which the said Camera Kit was seized vide memo Ex.PW15/A. SI Umesh Rana (PW16) and Ct. Sanjay (PW15) have proved the aforesaid aspects of disclosure leading to the recovery of the robbed property which is admissible inevidence as per the provisions of Section 27 of Evidence Act.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 83 of 122 (85) I may further observe that Ct. Sanjay (PW15) and SI Umesh Rana (PW16) have further proved that after the recovery of the robbed camera kit as aforesaid the accused Shankar @ Bunty was further interrogated as regards the stolen mobile make Noika 6306 which had not been recovered so far, on which the accused Mohd. Shankar @ Bunty made a further disclosure that after the incident of robbery he along with his associate Amit @ Gujjar had gone to Mehndipur Balaji, Rajasthan where Amit @ Gujjar had sold this mobile phone to somebody for a sum of Rs.1,500/ pursuant to which his supplementary disclosure statement was recorded which is Ex.PW15/B. (86) Pursuant to this supplementary disclosure statement by accused Mohd. Shankar @ Bunty the Investigating Officer SI Umesh Rana (PW16) and HC Baldev Raj (PW12) accompanied the accused Mohd. Shankar @ Bunty to Mehndipur Balaji where the accused leads them to one Kailash as the person to whim he along with Amit @ Gujjar handed over the stolen mobile phone. SI Umesh Rana and HC Baldev Raj have proved that they then apprehended Kailash at Mehandipur Balaji near Sant Ram Dharamshala in front of a Tea shop since the accused Shankar @ Bunty had informed them that the robbed mobile set had been handed over to accused Kailash by Amit @ Gujjar after which the accused Kailash was interrogated by them and he was arrested vide arrest memo Ex.PW12/A, his personal search was taken St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 84 of 122 vide memo Ex.PW12/B and his disclosure statement was also recorded vide memo Ex.PW12/C wherein he admitted that the stolen mobile phone had been given to him but further disclosed that he had handed over the said mobile phone to his brother Tej Singh. On this Kailash led the police party to his house and identified his brother Tej Singh to whom he had handed over the robbed mobile which was given to him by Amit @ Gujjar and Mohd. Shankar @ Bunty and thereafter Tej Singh was also arrested and her personal search was conducted from which one mobile phone make Nokia was recovered. The arrest memo of Tej Singh Ex.PW12/D, his personal search Ex.PW12/E and the seizure of the mobile phone make Nokia model 6303 of black and silver color having IMEI No. 358005035969036 Ex.PW12/F has been proved by these witnesses. Here, I may note that in so far as the ownership of this mobile phone Ex.P5 is concerned, the same has been duly established since the victim/ complainant Sandeep Sehgal had handed over the purchase receipt of this mobile phone to the Investigating Officer which receipt is Ex.P5/1 on which IMEI No. 358005035969036 is mentioned. This aspect of the handing over of the receipt has also been proved by the complainant (PW2) as well as the Investigating Officer SI Umesh Rana (PW16) and has not been controverted by the accused. It stands established that the IMEI No. of the mobile phone Ex.P5 recovered from the possession of Tej Singh St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 85 of 122 tallies with the IMEI No. of the robbed mobile belonging to the complainant and hence completes the entire sequence leading to the recovery of the stolen property and is discovery of an event/ fact admissible in evidence under Section 27 of Evidence Act. (87) In so far as the arrest of accused Krishnamurthy is concerned, he does not dispute his formal arrest in the present case. He is involved in large number of cases of similar nature. Pursuant to the disclosure statement made by Sumit @ Sahil it had come to be known to the Investigating Officer that Krishnamurthy was also involved in the present incident but was on the run. He was also wanted in other cases and it was only on 10.12.2010 that the Investigating Officer SI Umesh Rana (PW16) was informed that the Crime Branch had apprehended and arrested Krishnamurthy in FIR No.439/2010 PS Saraswati Vihar and had also disclosed his involvement in the present case. SI Umesh Rana has proved that after he came to know about the same he made a request before the Court concerned for production of Krishnamurthy for purposes of investigations. Thereafter the accused Krishna Murthy was arrested in this case on 14.12.2010 but he refused to participate in the Judicial Test Identification Parade in the present case. Krishnamurthy does not dispute his arrest as aforesaid and I may observe that he has been identified by the victim Sandeep Sehgal as the person who had put the knife on him and threatened him at the time of committing the robbery. St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 86 of 122 (88) Coming now to the accused Amit @ Gujjar he also does not dispute his arrest his formal arrest dated 16.7.2011 pursuant to his surrender before the Ld. MM which forms a part of the Judicial Proceedings in the present case.
(89) In so far as the accused Kailash and Tej Singh are concerned, they were found in possession of the robbed mobile phone and in the Court have compounded the offence with the complainant. Hence, in this background, it is evident that the recovery of the robbed camera at the instance of the accused Shankar @ Bunty from his own house has been duly proved by Ct. Sanjay (PW15) and SI Umesh Rana (PW16). They both have proved that it was the accused Shankar @ Bunty who pursuant to his disclosure statement led them to the third floor of his house from where the box of the bed he got a bag recovered containing the stolen camera i.e. NIKON D300, lens, flash light, batteries etc. The said articles have been duly put to the complainant in the Judicial Test Identification Parade proceedings Ex.PW11/A duly proved by SI Surender (PW11). The complainant Sandeep Sehgal has identified the said articles in the Judicial Test Identification Parade proceedings. The Camera is Ex.P1, lens is Ex.P2, Flash light is Ex.P3 and black bag is Ex.P4. (90) In so far as the recovery of stolen mobile phone from the accused Tej Singh is concerned, as already discussed herein above the same has been proved by HC Baldev (PW12), Ct. Sanjay (PW15) and St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 87 of 122 SI Umesh Rana (PW16) who had gone to Mehndipur Balaji along with the accused Shankar @ Bunty from where they arrested the accused Kamlesh who then led the Investigating Officer to Tej Singh from hose possession the stolen mobile phone was recovered which mobile is Ex.P5 and has been duly identified by the complainant. The Ld. Defence counsel has vehemently argued that the Judicial Test Identification Parade of the mobile phone has not been properly conducted in as much as that the mobile of different makes were mixed and it was easy for the complainant to have identified the same. In this regard I may observe that the purchase receipt bearing the IMEI No. 358005035969036 of the mobile phone had already been given to the Investigating Officer which receipt is Ex.P5/1 which not only proves the purchase of the mobile but also the identity of the said mobile whose IMEI No. matches with that the mobile of the complainant and hence under these circumstances I hereby hold that the same cannot be disputed.
(91) Further, an objection has also been raised by the Ld. Defence Counsels that at the time of recovery of the mobile phone and the camera no public witnesses were joined despite their availability. In this regard I may observe that the Hon'ble Supreme Court has in numerous cases observed that police officers are competent witnesses. It is common experience that public persons are generally reluctant to join police proceedings. There is general apathy and indifference on St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 88 of 122 the part of public to join such proceedings. This position of law was reiterated in the case of Aslam and Ors. (Mohd.) Vs. State reported in 2010 III AD (Delhi) 133. Further, it was observed by Hon'ble High Court that reluctance of the citizens to join police proceedings is well known and needs to be recognized. It cannot be disputed that public does not want to get dragged in police and criminal cases and wants to avoid them, because of long drawn trials and unnecessary harassment. Similar view was taken in Manish Vs. State, reported in 2000 VIII AD (Scheduled Caste/ Scheduled Tribes (Prevention of Atrocities) Act, 1989) 29 and in the case of A. Bhai vs. State reported in AIR 1989 SC 696, where it was held that we cannot be oblivious to the reluctance of the common man to join such raiding parties organized by the police, least they are compelled to attend police station and Courts umpteen times at the cost of considerable inconvenience to them, without any commensurate benefit.
(92) Moreover, there is no reason to disbelieve testimony of police officials regarding recovery of camera and mobile phone at the instance of accused Shankar @ Bunty. Their testimonies cannot be rejected merely because they happen to be police officers. As observed by the Hon'ble Supreme Court in Tahir Vs. State, reported in 1996 (3) SCC 338, no infirmity attaches to the testimony of police officials merely because they belong to the police St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 89 of 122 force. It was observed in Aner Raja Khima Vs. The State of Saurashtra, reported in AIR 1956 SC 217 that the presumption that a person acts honestly and legally applies as much in favour of police officers as of others. It is not proper and permissible to doubt the evidence of police officers. Judicial approach must not be to distrust and suspect their evidence on oath without good and sufficient ground thereof.
(93) I may observe that the accused are the hardened criminals and there is a normal hesitance of the public persons to join the investigations particularly the residents of the area who do not want to get themselves involved in the police proceedings. Therefore, the non joining of public witnesses shall not be fatal to the prosecution case. (94) Even otherwise the make of the camera and its model number has been very specifically given by the complainant who has also clarified that due to mistake he had mentioned the model No. as M3 whereas it was D300 and should be read as D300. There is no reason to disbelieve this version given by the complainant since there is no model as M3 and the only model of the camera is D300 which has been recovered at the instance of the accused Shankar @ Bunty from his house.
(95) When this entire evidence on record was put to the accused they did not offer any valid explanation for the same. Rather, on the contrary the accused Kailash and Tej Singh have already compounded St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 90 of 122 the offence by entering into a settlement with the complainant the offence being compoundable in nature. The accused Kailash and Tej Singh were not involved in the robbery and they admitted that the mobile in question had been passed on to them by the accused Shankar @ Bunty and Amit @ Gujjar. This rather strengthens the case of the prosecution as the coaccused Kailash and Tej Singh have themselves claimed that the stolen property was handed over to them by the accused Shankar and Amit @ Gujar who have both been identified by the complainant Sandeep Sehgal in the Court.
(96) In view of the above I hereby hold that the disclosure statements of the accused particularly the disclosure statements of the accused Shankar @ Bunty and Amit @ Gujjar and the accused Kailash and Tej Singh (who have already compounded the offence with the complainant) which lead to discovery of fact and recovery of stolen articles i.e. camera and mobile phone of the victim, are admissible in evidence and a strong pointer towards the guilt of accused Shankar @ Bunty and Amit @ Gujjar particularly so as the victim Sandeep Sehgal has identified the accused Sumit @ Sahil (one eyed person), Krishnamurthy, Mohd. Shankar @ Bunty and Amit @ Gujjar as the ones who were involved in the robbery, whose statement finds due confirmation from the testimony of Sharvan Kumar who has similarly identified Sumit @ Sahil as one of the persons involved in the incident.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 91 of 122 Contradictions and discrepancies:
(97) Ld. Defence Counsels have pointed out various contradictions and discrepancies in the testimonies of the public witnesses with regard to the clothes worn by the assailants; time of the time; time when they made a call to the PCR; number of the assailants involved in the incident, the details of the places which are around the spot of incident and the role attributed to the accused. It is argued that the above contradictions and discrepancies are material benefit of which should be given to the accused persons. (98) On the other hand the Ld. Addl. PP for the State has vehemently argued that the contradictions as pointed out by the Ld. Defence Counsels are immaterial and would not be fatal to the prosecution case.
(99) I have considered the rival contentions and I may observe that in the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Hon'ble Supreme Court that: "......In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 92 of 122 approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
(100) Further, in the case of Surender Singh Vs. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : ".......It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity...." (101) As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v.State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies are comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also, in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 93 of 122 observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
(102) Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (103) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. The observations made in the case of Tehsildar Singh Vs. State of UP reported in AIR 1959 SC 1012 were later on reaffirmed by the Hon'ble Supreme Court in the cases of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1) and Leela Ram Vs. State of Haryana reported in AIR 19997 SC 3717, wherein the Hon'ble Supreme Court pointed out the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 94 of 122 following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief.
(b) If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details.
(c) When eye witness is examined at length it is quite possible for him to make some discrepancies. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence.
(d) Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 95 of 122 or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
(e) Too serious a view to be adopted on mere variations falling in the narration of an incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
(f) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(g) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(h) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(i) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(j) In regard to exact time of an incident or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 96 of 122 moment at the time of interrogation and one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the timesense of individuals which varies from person to person.
(k) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(l) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
(m) A former statement though seemingly inconsistent with the evidence need not necessarily be sufficient to amount to contraction. Unless the former statement has the potency to discredit the later statement, even if the later statement is at variance with the former to some extent it would not be helpful to contradict that witness.
(104) It should be remembered that human behaviour varies from person to person and different people react and behaved differently in a different situation. How person can behave in a St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 97 of 122 particular situation cannot be predicted. (Ref.: State of UP Vs. Devender Singh reported in AIR 2009 SC 3690).
(105) Applying the settled principles of law to the facts of the present case, it is evident that the incident in question had taken place in a quick succession and had taken the complainant/ victim by surprise. It is natural that the witnesses could not have anticipated the incident and their mental faculties cannot be expected to be attuned to absorb the minute details. Even otherwise, the complainant Sandeep Sehgal was in a state of shock so much so that even after making a PCR call, for four days the complainant was contemplating whether or not to make a formal statement to the police immediately on the happening of the incident and it was only on 22.11.2010 that he could find courage and made his statement to the police. Therefore, I hereby hold that the contradictions as pointed out by the Ld. Defence Counsel with regard to the number of persons involved in the incident and the complainant not having given the detailed description of the persons or the places around the spot would not be fatal to the prosecution case. (106) Further, in so far as the discrepancies in the testimonies of the various police witnesses are concerned with regard to the timings, presence of a particular police official at a particular time, storeys of the house of the accused etc., I am of the considered view that the same are too immaterial and irrelevant as it is the evidence of the witnesses regarding the commission of the offence by the accused which is more St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 98 of 122 important than the investigation conducted. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation including going of the police officials to the house of the accused etc. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation (Ref. Rabinder Kumar Pal @ Dara Singh Vs. Republic of India reported in AIR 2011 SC 1436).
(107) This being the background, I hereby hold that the contradictions and discrepancies so pointed out by the Ld. Defence Counsels are immaterial and would not be fatal to the prosecution case. FINAL CONCLUSIONS:
(108) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 99 of 122 only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(109) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. From the evidence on record the following aspects stand established:
➢ That the complainant/ victim Sandeep Sehgal is a photographer by profession and Sharvan Kumar used to assist him. ➢ That on 18.11.2010 at about 2.00 PM, Sandeep Sehgal left Umrao Farm House, Gurgaon after attending the marriage function with his assistant Shravan and was coming home in a car bearing no. DL 4CP7267 via Ring Road, Punjabi Bagh St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 100 of 122 Flyover, Shakurpur.
➢ That at about 3:00 AM after crossing the flyover at Britania Chowk, Sandeep Sehgal felt slightly sleepy while driving on which his car struck a divider at the turn of Shakurpur. ➢ That Sandeep Sehgal along with Shravan got down of the car and noticed that the front tyre of the car had got burst and excel of the car was also broken.
➢ That suddenly three motorcycles reached there on which three -
four boys were riding and they stopped their bikes near the car of Sandeep Sehgal.
➢ That one of the boys asked Sandeep Sehgal as to what had happened on which he told him that his car has been struck with the divider.
➢ That in the meantime one of those boys came to the side of Sandeep Sehgal and showed him a big knife and punched him on his face and then asked to hand over all his belongings "tere paas jo kuchh hai nikal de".
➢ That at that time Sandeep Sehgal was sitting on the driving seat whereas Shravan Kumar was outside the car and was assessing the damages caused and was caught hold by one of those boys. ➢ That the boy who had showed the knife to Sandeep Sehgal, took search of his vehicle and removed his purse and mobile make St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 101 of 122 Nokia 6303 Classic bearing IMEI No. 358005035969036 . ➢ That thereafter two other boys also entered the car by opening the rear gate and took search of the car and robbed the camera kit of Sandeep Sehgal from the car, containing Camera D300 Nikon (initially wrongly mentioned as D3), Lens, Batteries, Flash, CF Cards etc. and also abused them after which they ran away on their motorcycles.
➢ That thereafter Sandeep Sehgal requested to one cyclist to give him the mobile phone and then he made a call at 100 number to the police on which PCR Van came to the spot and he briefed the facts to the police but he could not tell the entire facts as he was nervous and scared on account of sudden happening . ➢ That on 22.11.2010 Sandeep Sehgal went Police Station Saraswati Vihar and got his complaint recorded on the basis of which the present FIR was registered and investigations kicked off.
➢ That on 24.11.2010 an information was received from Police Station Bhalaswa Dairy that one accused Sumit was arrested by SI Kamlesh and the accused Sumit had disclosed about the present case.
➢ That pursuant to the same the accused Sumit was arrested in the present case.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 102 of 122 ➢ That on 26.11.2010 during Test Identification Parade the complainant Sandeep Sehgal could not identify the accused Sumit since the accused had covered his damaged eye which was his distinct identification mark.
➢ That Sumit was further tendered for Judicial TIP qua other eye witness namely Shrawan but during that TIP proceedings the accused Sumit refused to participate.
➢ That on 10.12.2010, the Investigating Officer came to know that the coaccused Krishnamurthy was arrested by Crime Branch in some another case wherein he had disclosed his involvement in the present case.
➢ That thereafter the accused Krishnamurthy was arrested in this case on 14.12.2010 but the accused Krishna Murthy refused to participate in the Judicial Test Identification Parade. ➢ That on 16.12.2010, the complainant Sandeep handed over to the Investigating Officer the Bill of Mobile.
➢ That on 25.05.2011 the Investigating Officer received an information from the Special Staff NorthWest about the arrest of the accused Mohd. Shanker @ Bunty after which accused Shanker @ Bunty was arrested in the present case on 26.05.2011.
➢ That during Police Custody Remand the accused Shanker @ St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 103 of 122 Bunty took the police party to his house at A - 32, Rana Pratap Bagh, Sangam Park from where he got recovered a black and blue colour bag which was containing a camera of black colour, make 'NIKON', made in Japan and on one side of the camera, D
- 300 was mentioned and Nikon Speed Light mentioning as D800 which the accused disclosed to be robbed from the victim of the present case.
➢ That the accused Mohd. Shanker @ Bunty took the police party to accused Kailash (accused who compounded the offence with victim) at Tea Shop i.e. Pawan Cold Drinks in front of Sant Naam Dharamshalla, Toda Bheem Road, since the accused Mohd. Shankar disclosed that he along with Amit @ Gujjar had soled the robbed mobile phone to Kailash.
➢ That thereafter the accused Kailash was arrested after which the accused Shanker took the police party to the house of his brother Tej Singh from where the accused Tej Singh (accused who compounded offence wit the complainant) was apprehended near Ram Bhakt Dharamshalla and was arrested.
➢ That from the right pocket of accused Tej Singh, a mobile phone, make NOKIA 6303, Black and Silver colour having IMEI No. 358005035969036 (belonging to the victim) was recovered which was taken into possession.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 104 of 122 ➢ That on 16.07.2011 the accused Amit had surrendered before the Ld. Illaqa Magistrate after which the accused Amit was interrogated and arrested in this case.
(110) The victim Sandeep Sehgal has identified the accused Krishnamurthy as the boy who punched him and showed him the big knife and then removed his purse containing about Rs.2,000/ and mobile phone. He has also identified the accused Sumit and Shankar as the boys who removed his camera kit which were lying in his rear seat of car. He has further identified the accused Amit @ Gujjar by pointing out towards him as the boy who caught hold of his assistant Shravan who was outside the car. The witness Sharvan Kumar has also identified the accused Sumit @ Sahil as one of the assailants who took away the entire camera kit from the car.
(111) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. (112) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 105 of 122 prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(113) Therefore, under these circumstances I hereby hold that the prosecution has been able to successfully prove and establish the allegations against the accused Sumit @ Sahil, Mohd. Shankar @ Bunty and Amit @ Gujjar of having committed robbery upon the complainant for which the accused Sumit @ Sahil, Mohd. Shankar @ Bunty and Amit @ Gujjar are held guilty of the offence under Section 392 Indian Penal Code. In so far as the accused Krishnamurthy is concerned, he has been identified by the complainant/ victim Sandeep Sehgal as the person who had shown him the knife during the robbery and hence I hold the accused Krishnamurthy guilty of the offence under Section 392 read with 397 Indian Penal Code. All the accused are accordingly convicted. (114) In so far as the accused Kailash and Tej Singh are concerned, they have already compounded the offence with the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 106 of 122 complainant/ victim Sandeep Sehgal and hence they have been acquitted of the charge under Section 411 IPC on 29.11.2013. (115) Be listed for arguments on sentence on 16.7.2014.
Announced in the open court (Dr. KAMINI LAU)
Dated: 11.7.2014 ASJII(NW)/ ROHINI
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 107 of 122
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Session case No. 97/2013 Unique Case ID No.: 02404R0070262011 State Vs. (1) Sumit @ Sahil S/o Sh. Chhabil R/o House No. 182, Moji Wala Bagh, Azad Pur, Delhi (Convicted) (2) Krishna Murthy @ Vicky S/o Ramesh Mohan R/o House No. L233, JJ Colony, Shakurpur, Delhi (Convicted) (3) Mohd. Shankar @ Bunty S/o Shyam Lal R/o A32, Rana Pratap Bagh, Sangam Park, Delhi (Convicted) (4) Amit @ Gujjar S/o Sh. Surender R/o 35/12, MCD Colony, Jheel Wale Flats, Azad Pur, Delhi (Convicted) St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 108 of 122 (5) Kailash S/o Hira Lal R/o Sant Ram Dharamshala, Toda Bhim, Mehndi Pur, Rajasthan (Acquitted/ Compounded on 29.11.13) (6) Tej Singh S/o Hira Lal R/o Ram Bhagat Dharamshala, Mehndi Pur Balaji, Rajasthan (Acquitted/ compounded on 29.11.13) FIR No.: 440/2010 Police Station: Saraswati Vihar Under Sections: 392/397/34 Indian Penal Code Date of Conviction: 11.7.2014 Arguments concluded on: 22.7.2014 Date of Conviction: 25.7.2014 APPEARANCE:
Present: Sh. Tofeeq Ahmed, Ld. Addl. PP for the State.
Convicts Sumit @ Sahil, Krishnamurthy @ Vicky, Shankar @ Bunty and Amit Gujjar in Judicial Custody with Sh. Shubham Asri, Gajraj Singh and Sh. Anil Bhardwaj Advocates.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 109 of 122 ORDER ON SENTENCE:
As per the allegations on 18.11.2010 at about 3:15 AM near F Block, Red Light, Ring Road, Saraswati Vihar, Delhi the accused Sumit @ Sahil, Krishnamurthy, Mohd. Shankar @ Bunty and Amit Gujjar in furtherance of their common intention had robbed Sandeep Sehgal of his camera D300 Nikon Lens, Batteries CF cards, wallet containing Rs.2,000/, some documents and mobile phone make Nokia6303 bearing IMEI No. 358005035969036. It has also been alleged that during the commission of robbery the accused Krishnamurthy used a knife i.e. a deadly weapon.
On the basis of the testimonies of the various prosecution witnesses particularly the victim Sandeep Sehgal, his assistant Sharvan Kumar and also on the basis of the other evidence on record, vide a detail judgment dated 11.7.2014 this Court has held the accused Sumit @ Sahil, Mohd. Shankar @ Bunty and Amit @ Gujjar guilty of the offence under Section 392 Indian Penal Code. The accused Krishnamurthy has also been held guilty of the offence under Section 392 read with 397 Indian Penal Code. The accused Kailash and Tej Singh have compounded the offence with the victim/ complainant Sandeep Sehgal.
Vide the detail judgment this Court has observed that the prosecution has been able to establish that the complainant/ victim Sandeep Sehgal is a photographer by profession and Sharvan Kumar St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 110 of 122 used to assist him; that on 18.11.2010 at about 2.00 PM, Sandeep Sehgal left Umrao Farm House, Gurgaon after attending the marriage function with his assistant Shravan and was coming home in a car bearing no. DL 4CP7267 via Ring Road, Punjabi Bagh Flyover, Shakurpur; that at about 3:00 AM after crossing the flyover at Britania Chowk, Sandeep Sehgal felt slightly sleepy while driving on which his car struck a divider at the turn of Shakurpur; that Sandeep Sehgal along with Shravan got down of the car and noticed that the front tyre of the car had got burst and excel of the car was also broken; that suddenly three motorcycles reached there on which three - four boys were riding and they stopped their bikes near the car of Sandeep Sehgal; that one of the boys asked Sandeep Sehgal as to what had happened on which he told him that his car has been struck with the divider; that in the meantime one of those boys came to the side of Sandeep Sehgal and showed him a big knife and punched him on his face and then asked to hand over all his belongings "tere paas jo kuchh hai nikal de"; that at that time Sandeep Sehgal was sitting on the driving seat whereas Shravan Kumar was outside the car and was assessing the damages caused and was caught hold by one of those boys; that the boy who had showed the knife to Sandeep Sehgal, took search of his vehicle and removed his purse and mobile make Nokia 6303 Classic bearing IMEI No. 358005035969036; that thereafter two other boys also entered the car by opening the rear gate and took search of the car and robbed the St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 111 of 122 camera kit of Sandeep Sehgal from the car, containing Camera D300 Nikon (initially wrongly mentioned as D3), Lens, Batteries, Flash, CF Cards etc. and also abused them after which they ran away on their motorcycles.
Further the prosecution has been able to establish that thereafter Sandeep Sehgal requested to one cyclist to give him the mobile phone and then he made a call at 100 number to the police on which PCR Van came to the spot and he briefed the facts to the police but he could not tell the entire facts as he was nervous and scared on account of sudden happening; that on 22.11.2010 Sandeep Sehgal went Police Station Saraswati Vihar and got his complaint recorded on the basis of which the present FIR was registered and investigations kicked off; that on 24.11.2010 an information was received from Police Station Bhalaswa Dairy that one accused Sumit was arrested by SI Kamlesh and the accused Sumit had disclosed about the present case; that pursuant to the same the accused Sumit was arrested in the present case; that on 26.11.2010 during Test Identification Parade the complainant Sandeep Sehgal could not identify the accused Sumit since the accused had covered his damaged eye which was his distinct identification mark; that Sumit was further tendered for Judicial TIP qua other eye witness namely Shrawan but during that TIP proceedings the accused Sumit refused to participate.
This Court has also observed that the prosecution has been St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 112 of 122 able to establish that on 10.12.2010, the Investigating Officer came to know that the coaccused Krishnamurthy was arrested by Crime Branch in some another case wherein he had disclosed his involvement in the present case; that thereafter the accused Krishnamurthy was arrested in this case on 14.12.2010 but the accused Krishna Murthy refused to participate in the Judicial Test Identification Parade; that on 16.12.2010, the complainant Sandeep handed over to the Investigating Officer the Bill of Mobile; that on 25.05.2011 the Investigating Officer received an information from the Special Staff NorthWest about the arrest of the accused Mohd. Shanker @ Bunty after which accused Shanker @ Bunty was arrested in the present case on 26.05.2011; that during Police Custody Remand the accused Shanker @ Bunty took the police party to his house at A - 32, Rana Pratap Bagh, Sangam Park from where he got recovered a black and blue colour bag which was containing a camera of black colour, make 'NIKON', made in Japan and on one side of the camera, D - 300 was mentioned and Nikon Speed Light mentioning as D800 which the accused disclosed to be robbed from the victim of the present case; that the accused Mohd. Shanker @ Bunty took the police party to accused Kailash (accused who compounded the offence with victim) at Tea Shop i.e. Pawan Cold Drinks in front of Sant Naam Dharamshalla, Toda Bheem Road, since the accused Mohd. Shankar disclosed that he along with Amit @ Gujjar had soled the robbed mobile phone to Kailash; that thereafter St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 113 of 122 the accused Kailash was arrested after which the accused Shanker took the police party to the house of his brother Tej Singh from where the accused Tej Singh (accused who compounded offence wit the complainant) was apprehended near Ram Bhakt Dharamshalla and was arrested; that from the right pocket of accused Tej Singh, a mobile phone, make NOKIA 6303, Black and Silver colour having IMEI No. 358005035969036 (belonging to the victim) was recovered which was taken into possession; that on 16.07.2011 the accused Amit had surrendered before the Ld. Illaqa Magistrate after which the accused Amit was interrogated and arrested in this case.
It has also been observed by this Court that the victim Sandeep Sehgal has identified the accused Krishnamurthy as the boy who punched him and showed him the big knife and then removed his purse containing about Rs.2,000/ and mobile phone. He has also identified the accused Sumit and Shankar as the boys who removed his camera kit which were lying in his rear seat of car. He has further identified the accused Amit @ Gujjar by pointing out towards him as the boy who caught hold of his assistant Shravan who was outside the car. The witness Sharvan Kumar has also identified the accused Sumit @ Sahil as one of the assailants who took away the camera kit from the car.
Therefore, under these circumstances it has been held by this Court that the prosecution has been able to successfully prove and St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 114 of 122 establish the allegations against the accused Sumit @ Sahil, Mohd. Shankar @ Bunty and Amit @ Gujjar of having committed robbery upon the complainant for which the accused Sumit @ Sahil, Mohd. Shankar @ Bunty and Amit @ Gujjar have been held guilty of the offence under Section 392 Indian Penal Code. In so far as the accused Krishnamurthy is concerned, he has been identified by the complainant/ victim Sandeep Sehgal as the person who had shown him the knife during the robbery and hence the accused Krishnamurthy has been held guilty of the offence under Section 392 read with 397 Indian Penal Code.
Heard arguments on the point of sentence. The convict Sumit @ Sahil is a young boy aged 20 years having a family comprising of aged widow mother, one brother, two sisters, wife, one son and one daughter. He is a Matriculate and is a Waiter by profession.
The convict Krishnamurthy is a young boy aged about 27 years having a family comprising of aged parents, three brothers and one sister. He is 7th class pass and is a Peon by profession.
The convict Mohd. Shankar @ Bunty is aged about 32 years having a family comprising of aged widow mother, three brothers, two sisters, wife, one son and one daughter. He is 6 th class pass and was doing the work of animal husbandry.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 115 of 122 The convict Amit @ Gujjar is a young boy of 21 years having a family comprising of aged parents, one brother, three sisters and wife. He is 8th Class Pass and is a Peon by profession. It is argued by the Ld. Counsels that the convicts are young boys and in fact the convict Amit @ Gujjar is a first time offender. It is prayed that keeping in view the family background of the convicts a lenient view be taken against them.
On the other hand, the Ld. Addl. PP for the State has pointed out that though the convict Amit @ Gujjar is a first time offender, yet his associates i.e. convicts Sumit, Krishnamurthy and Mohd. Shankar @ Bunty are habitual offenders and are involved in many other cases. He has pointed out that the convict Sumit is involved in Three other cases details of which are as under:
1. FIR No. 410/2010, PS Mukherjee Nagar, Under Sections 379/411/ 484/34 IPC which is pending trial.
2. FIR No. 442/2010, PS Subhash Place, Under Sections 397/392/34 IPC wherein he has been convicted.
3. FIR No. 435/2008, PS Model Town, Under Sections 356/379/34 IPC which is pending trial The Ld. Addl. PP for the State has also pointed out that the convict Krishnamurthy is involved in as many as Twenty One Cases and has already been convicted in as many as Ten Cases, details of St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 116 of 122 which are as under:
S. FIR No. Section Police Station Status of Case No.
1. 236/2011 326/34 IPC K N Katju Marg Acquitted
2. 442/2010 392/34 IPC Saraswati Vihar Acquitted
3. 439/2010 302/307 IPC & Saraswati Vihar Pending Trial 25/54/59 A Act
4. 377/2010 379 IPC Rani Bagh Pending Trial
5. 372/2010 186/353 IPC Hari Nagar Convicted
6. 53/2008 307/302 IPC Saraswati Vihar Acquitted
7. 1107/2007 308/120B/34 Saraswati Vihar Acquitted IPC
8. 1127/2007 323/394/397/34 Saraswati Vihar Discharged IPC
9. 43/2006 21 NDPS Keshav Puram Convicted
10. 658/2005 457/380/411/34 Keshav Puram Convicted IPC
11. 600/2005 25/54/59 A Act Saraswati Vihar Convicted
12. 219/2005 457/380 IPC Saraswati Vihar Acquitted
13. 469/2005 380/411/34 IPC Saraswati Vihar Convicted
14. 605/2005 380/341 IPC Saraswati Vihar Untraced
15. 641/2005 457/380 IPC Sarawati Vihar Convicted
16. 623/2005 457/380 IPC Saraswati Vihar Convicted St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 117 of 122
17. 644/2005 380/341 IPC Saraswat Vihar Convicted
18. 686/2005 380/341 IPC Saraswati Vihar Convicted
19. 774/2005 25/54/59 A Act Saraswati Vihar Convicted
20. 1098/2005 25/54/59 A Act Saraswati Vihar Acquitted
21. 581/2004 295/295A/379/ Keshav Puram Pending Trial 411/34 IPC In so far as the convict Mohd. Shankar @ Bunty is concerned, it is pointed out that he is involved in another case bearing FIR No. 498/2001, PS Mukherji Nagar, Under Section 379 IPC.
Ld. Addl. PP for the State has argued that keeping in view the criminal background of the convicts, a stern view be taken against the convicts.
I have considered the rival contentions and I may observe that in the recent past Delhi is experiencing a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. There has been a 43.6 percent increase in Delhi's crime graph in 2013 over 2012. A staggering 73,958 cases were registered under the Indian Penal Code in 2013 up from 51,479 in the previous year.
The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. Instances of young persons getting involved in criminal activities of robbing St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 118 of 122 innocent persons by putting them under threat of death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the crime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175). Punishment ought to fit the crime and sometime it is desirability to keep the offender out of circulation.
There was no previous animosity between the convicts and the victim Sandeep Sehgal and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence upon the convicts who are habitual and repeat offenders would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 119 of 122 award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
The convict Krishnamurthy @ Vicky is involved in as many as Twenty One criminal cases whereas the convict Sumit @ Sahil is involved in Three other cases and the convict Mohd. Shankar is involved in another criminal case. The manner in which the offence has been committed shows that both the convicts are desperadoes who have no respect for law and legal process of this Country and they have an impression that perhaps the Legal System of this Country is incompetent to hold them back for their illegal activities. No doubt, the Indian Legal System particularly the Criminal Justice Mechanism has certain practical failings which is highly disturbing and to some extent appears to have shaken the faith of the people resulting into emboldening of the wrong doers but still I hold that things are not as bad as they may appear.
Keeping in view the above criminal background of the convicts and the desirability and need to keep the convicts out of circulation, the convicts Sumit, Mohd. Shankar @ Bunty and Amit @ Gujjar are hereby sentenced to Rigorous Imprisonment for a period of Five (5) Years and fine to the tune of Rs.5,000/ (Rs. Five Thousand) for the offence under Section 392 Indian Penal Code. In St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 120 of 122 default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of 15 days.
In so far as the convict Krishnamurthy is concerned, he is hereby sentenced to Rigorous Imprisonment for a period of Seven (7) Years and fine to the tune of Rs.5,000/ (Rs. Five Thousand) for the offence under Section 392 r/w 397 Indian Penal Code. In default of payment of fine the convicts shall further undergo Simple Imprisonment for a period of 15 days.
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them, as per rules.
It is clarified that the sentence in the present FIR shall run CONSECUTIVELY to the sentences awarded to the convicts in other cases.
The convicts have been informed that they have a right to prefer an appeal against the judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
One copy of the judgment and order on sentence be given to both the convicts free of costs and one copy of order on sentence be attached with their jail warrants.
St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 121 of 122 File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 25.7.2014 ASJII(NW)/ ROHINI St. Vs. Sumit Etc., FIR No. 440/10, PS Saraswati Vihar Page No. 122 of 122