Delhi District Court
State vs . Tejpal @ Rohit @ Lala Etc. on 6 August, 2022
IN THE COURT OF SH. DEVENDER KUMAR, ADDITIONAL SESSIONS JUDGE-02 (NE), KARKARDOOMA COURTS, DELHI. CNR No. DLNE01-000034-2012 SC No. 44314/2015 State Vs. Tejpal @ Rohit @ Lala etc. FIR No. 137/2012 PS : Karawal Nagar U/s 341/324/394/411/397/34 IPC State Versus 1. Tejpal @ Rohit @ Lala S/o Sh. Jagat Singh R/o H. No. K-94, Near Govt. Dispensary, Village Karawal Nagar, Delhi. 2. Mahesh @ Ati Chauhan S/o Sh. Shree Chand R/o H. No. K-94, Near Govt. Dispensary, Village Karawal Nagar, Delhi. 3. Sonu S/o Sh. Mahavir R/o H. No. C-3, Gali no. 9 Mukund Vihar, Karawal Nagar, Delhi. Date of Institution / Committal : 09.04.2013 Date of Arguments : 30.07.2022 Date of Pronouncement : 06.08.2022 FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 1/31 JUDGMENT:
1. Prosecution case: It is case of prosecution that on 06/05/2012 at about 12:55 am, a DD No. 2B was received by PS Karawal Nagar through PCR regarding an incident of snatching of money after causing knife injury, which was assigned to HC Ravinder who along with Ct. Rakesh reached the spot of incident near Gyan Sarovar School, West Karawal Nagar, but injured had been removed to GTB Hospital. They went to GTB Hospital and collected MLC of injured Prem Pal and also recorded his statement Ex.PW2/A. Complainant alleged that on 06/05/2012, at about 12:20 am (midnight), he was going to his home after parking his TSR in pushta parking and reached near Gyan Sarovar School, when accused Tejpal @ Lala, Mahesh @ Atti Chauhan and Sonu stopped him and robbed his amount as well as mobile phone after beating and causing neck injury by a knife and fled away. All the accused were apprehended and mobile phone of the complainant was recovered at the instance of accused Tejpal @ Lala from his house, whereas no weapon was recovered from accused Sonu, but all accused have been chargesheeted u/s 392/394/397/34 IPC and section 411 IPC.
2. This charge-sheet committed to this court after compliance of Section 207 Cr.P.C.
3. Charges u/s 392/34 IPC were framed against all accused, whereas accused Tejpal @ Lala also charged under section 411 IPC. Separate charges under sections 394/397 IPC were also framed against accused Sonu vide order dated 18/09/2013 and all accused pleaded not guilty and claimed trial.
FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 2/31
4. To prove the charges, prosecution has examined PW1 Ct. Narender, PW2 Prem Pal, PW3 HC Om Prakash, PW4 Ct. Rakesh Dhawan, PW5 Dr. Sushma, PW6 SI Chetan Singh, PW7 Dr. Ankur Batra, PW8 ASI (then HC) Ravinder Kumar, PW9 SI Ashwani, PW10 SI Sushil Kumar and closed PE.
5. After PE, entire incriminating evidence was explained to all accused under Section 313 Cr.PC and their statements were recorded. Accused have not led any DE, but an application at the stage of FA was moved of accused Tejpal @ Lala which was dismissed vide order dated 23/07/2022.
6. To prove the case, prosecution has examined many witnesses and evidence led by prosecution witnesses is as under: -
6.1. PW1 Ct. Narender witnessed the arrest of accused Mahesh @ Ati Chauhan. On 23/06/2012, accused was arrested by SI Ashwani vide arrest memo Ex.PW1/A on his surrender before Karkardooma Court.
6.2. PW2 Prem Pal is complainant and has deposed that in the intervening night of 05/06.05.2012, at about 12:15 am, he parked his auto rickshaw in parking at pushta and was going to his home and, at about 12:30 am, he reached near Gyan Sarovar School, West Karawal Nagar when all three accused namely Tejpal @ Lala, Atti Chauhan and Sonu stopped him and started abusing and beating. Accused Sonu inflicted a knife injury on his neck and all of them robbed his Rs. 2800/- besides a mobile phone. He raised alarm and all accused fled away, but someone informed PCR. He was removed to GTB hospital by PCR van, where police recorded his statement Ex.PW2/A. He also pointed out the spot of incident and IO prepared site plan FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 3/31 Ex.PW2/B at his instance. On 07/05/2012, he went to PS where he identified accused Tejpal @ Lala, who was arrested vide arrest and personal search memos Ex.PW2/C and Ex.PW2/D. Accused Tejpal @ Lala got recovered one mobile phone from his house during police custody, which was seized vide seizure memo Ex. PW2/E. Mobile phone is identified as Ex. P1.
6.2.1. During cross examination, he has deposed that at about 11:15 pm, he left ISBT after getting filled CNG in his auto and was going to his home on foot when this incident took place. He has denied that at the time of incident there was no electricity (power) in the area. He has admitted accused persons were not known to him prior to the incident. He has further admitted that shops and market used to remain open in the area upto late night, but at the time of this incident, no shop was opened and even public persons were also not present there. His statement was recorded in PS, but he did not remember the time of recording of his statement. He pointed out the place of incident to police for preparation of site plan and IO prepared site plan. He had purchased a new mobile from Karawal Nagar which was robbed by accused and later on was recovered at the instance of accused Tejpal @ Lala. He has admitted that he did not hand over bill of his new mobile to police. He has denied that a suggestion that he had fallen down on his auto under the influence of liquor and one iron sheet struck against his neck due to which he sustained injury on his neck. It is further denied that on 07.05.2012, he did not identify accused Tajpal @ Lala in PS or that accused persons have been falsely implicated to this case just to extort money.
6.3. PW3 HC Om Prakash was posted as DO with PS Karawal Nagar. In the intervening night on 05/06.06.2012, he received a rukka from Ct. Rakesh FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 4/31 sent by HC Ravinder Kumar and made his endorsement on rukka Ex.PW3/A and lodged FIR Ex.PW3/B. He handed over copy of FIR and rukka to Ct.
Rakesh.
6.4. PW4 Ct. Rakesh Dhawan joined investigation with HC Ravinder Kumar on assigning DD No.2B. He firstly visited the spot of incident but injured had been removed to GTB hospital. He alongwith IO also visited GTB Hospital where IO HC Ravinder Kumar recorded the statement of injured Ex.PW2/A and prepared rukka on the basis of the statement and handed him over to get recorded FIR. He visited PS and got registered FIR and handed over the same to IO. During cross examination, he has admitted that they received DD No.2B and reached the spot of incident at 10:00 am where 1-2 persons met them and informed that injured had been removed to GTB Hospital, however they were not joined into investigation. Statement of injured was recorded in hospital and rukka was handed over to him at about 3:00 am, whereas he reached PS at about 3:25 am and returned back to the spot of incident with FIR and rukka at about 4:00 am. HC Ravinder Kumar with complainant was present at the spot when he reached there, however complainant did not lead them to the house of accused Tejpal @ Lala.
6.5. PW5 Dr. Sushma has proved MLC of injured Prem Pal as Ex.PW5/A, as per which, he sustained stab injury measuring 1.5 cm x 0.5 cm on left side of his neck.
6.6. PW6 SI Chetan Singh witnessed the arrest of accused Tejpal @ Lala on 06.05.2012 in FIR No. 136/12. Accused made his disclosure statement pertaining to this case and was arrested vide arrest papers Ex.PW6/A to FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 5/31 Ex.PW6/C. He has denied that accused did not make any disclosure statement.
6.7. PW7 Dr. Ankur Batra has proved nature of injuries on the MLC of injured Ex.PW5/A as simple.
6.8. PW8 HC Ravinder Kumar was assigned DD No. 2B (Mark-A/PW8) regarding snatching of money near Gyan Sarovar School, Mukund Vihar, Karawal Nagar. He reached the spot but injured had been removed to GTB Hospital, however no eye witness was present there. Injured was found hospitalized in GTB Hospital and he recorded his statement and prepared rukka (Ex.PW8/A) and got registered FIR from PS through Ct. Rakesh. He also prepared site plan of the spot at the instance of the complainant which is Ex.PW2/B. It is further deposed that victim could not make his complete statement at the first instance regarding snatching of cash and mobile, due to he recorded his supplementary statement. He filed chargesheet against all accused. During cross examination, he has deposed that he received DD entry No. 2B at about 1:00 am and reached the spot at about 1:10 am. He recorded the supplementary statement of injured in GTB Hospital at about 4:00 am.
6.9. PW9 SI Ashwani conducted further investigation of this case and 26/06/2012, he arrested accused Mahesh @ Atti Patti Chauhan in Karkardooma Court on his surrender vide arrest memo Ex.PW1/A. 6.10. PW10 SI Sushil Tiwari was assigned further investigation of this case on 07/05/2012. He arrested accused Tejpal @ Lala on the basis of his disclosure statement made in FIR No.136/12 regarding his involvement to FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 6/31 this case vide arrest and personal search memos Ex.PW2/C & Ex.PW2/D. Accused made his disclosure statement Ex.PW10/A. Accused Tejpal @ Lala led police team to his house at K-94, Karawal Nagar and got recovered one stolen mobile phone, which was seized vide seizure memo Ex.PW2/E. After arrest accused was brought to PS where complainant identified him as well as recovered mobile phone. On 11/07/2012, he arrested accused Sonu, who was lying in JC of FIR No. 199/12 u/s 33 of Excise Act, on his production before the court concerned. He arrested him vide arrest papers Ex.PW10/B and Ex.PW10/C. Accused made his disclosure statement Ex.PW10/D, but knife used during the incident could not be recovered despite one day PC of accused. He has identified mobile phone as Ex. P1.
6.10.1. During cross examination, he has admitted that name of third accused Sonu was also disclosed by the complainant, but during his Police Custody, nothing incriminating was recovered. He made recovery of stolen mobile phone from the house of accused Tejpal @ Lala and his family members were present there at that time. He obtained the signature of complainant and Ct. Rakesh on seizure memo of mobile phone, but signatures of any other public persons were not obtained on seizure memo. He asked complainant regarding bill of mobile phone of the complainant, but he could not produce such bill. Even he also could not produce packing box of mobile phone as well, but he did not remember as to whether complainant disclosed the name of shopkeeper where-from he purchased this mobile phone, however he did not check it from the shopkeeper.
7. I have heard the arguments and perused the record. All the accused persons have been charged u/s 392/34 IPC jointly, whereas accused Sonu has FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 7/31 also been charged separately u/s 394/397 IPC. Accused Tejpal @ Lala has further been charged u/s 411 IPC. However, before appreciating the testimonies of prosecution witnesses, it is necessary to revisit ingredients of robbery prescribed under section 390 IPC and punishable u/s 392 and 394 respectively. Relevant sections 390/392/394 IPC are as under:
390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Illustrations
(a) A holds Z down and fraudulently takes Z's money and jewels from Z's clothes without Z's consent. Here A has committed theft, and in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
(b) A meets Z on the high roads, shows a pistol, and demands Z's purse. Z in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery.
FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 8/31
(c) A meets Z and Z's child on the high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his purse. Z, in consequence delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z.
(d) A obtains property from Z by saying--"Your child is in the hands of my gang, and will be put to death unless you send us ten thousand rupees". This is extortion, and punishable as such; but it is not robbery, unless Z is put in fear of the instant death of his child.
(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
392. Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, volun- tarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
8. Perusal of section 390 would suggest that in order that theft may constitute robbery, prosecution has to establish :-
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 9/31 In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. If the ends do not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. That (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them and (d), (e) would amount to robbery.
9. If prosecution succeeds in proving that accused has committed theft or extortion with such amount of hurt/ wrongful restraint / or attempt to death / hurt as contemplated u/s 390 IPC, then it will be an offence under section 392 IPC and punishment would be upto 10 years. However, if during above said robbery any injury is caused, irrespective of the nature of injury, then it shall be an offence punishable u/s 394 of IPC and punishment will enhance to imprisonment of life. Section 394 IPC has covered specific cases of hurt during this theft as covered by robbery. However, separate charge of hurt or wrongful restraint is not be considered for the purpose of punishment of accused as it contemplates under this section only. On the basis of the abovesaid legal proposition the case of accused persons has to be decided.
10. UNDER SECTION 341/392 IPC: Now the charges against accused persons have to be considered. The proceedings of this case were initiated by lodging of a PCR call recorded by concerned PS vide DD entry No. 2B, which was lodged on 06.05.2022 at about 12:55 am. The information was FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 10/31 "Bhagat Singh Gali No-4, Gyan Sarovar ke pas chaku mar diya hai vai paise chhein liye hai." That DD entry was marked to HC Ravidner (Mark- A/PW8), who alongwith Ct. Rakesh (PW4) visited the spot of incident, but injured had been removed to GTB Hospital. HC Ravinder Kumar visited GTB Hospital and collected MLC of injured and also recorded his statement Ex.PW2/A. Injured disclosed about the incident and implicated all three accused as assailants.
11. To prove abovesaid charges, PW1 Prem Pal has deposed that he used to ply auto upto 12:00 mid night between Khajoori to ISBT / bus adda. In the intervening night of 05/06.05.2012, at about 11:15 am, he got filled gas in his auto at ISBT and left for his home. He got boarded 1-2 passengers in his auto from ISBT and at about 12:15 am, he parked his auto rickshaw in parking at pushta and was going towards his home on foot and reached near Gyan Sarovar School, West Karawal Nagar. At about 12:30 am, all three accused persons namely Tejpal @ Lala, Sonu and Ati Chauhan got him stopped and started abusing and beating. Accused Sonu inflicted knife injury on his neck and all of them snatched his purse containing Rs. 2,000/- and some other documents from pocket of his pant, whereas they also robbed Rs. 800/- from his left side pocket. They also robbed one mobile phone Nokia 5233 from right side pocket of his shirt. He raised alarm and all accused fled away. Someone informed PCR which removed him to GTB hospital, where his MLC was prepared. Police recorded his statement Ex.PW2/A in hospital.
12. The abovesaid testimony of PW2 is almost unrebutted on all material aspects. Accused persons have not disputed this incident and this fact is well clear by a suggestion put to PW2, which has been denied by him that "it is FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 11/31 wrong to suggest that at the time of incident there was no electricity (power) in the area". This suggestion has proved that accused persons have not disputed this incident and rather tried to give it some another angle. PW2 was further suggested that he had fallen on his auto under the influence of liquor and one iron sheet struck against his neck and sustained injury, which was further denied by him, but has confirmed that injured sustained injury during this incident at the spot. Contrary to it, PW2 has proved that accused robbed Rs. 2,000/- and Rs.800/- respectively from his pockets besides a mobile phone and some other documents, whereas accused persons have not sought any clarification from PW2 about robbed amount and have only put a single suggestion that he was not possessing such amount of Rs. 2800/- at the time of this incident. Besides it, they have not cross examined him further and such denied suggestion is not sufficient to rebut a reliable testimony of PW2/ victim. The recovery of mobile phone has fortified this incident of robbery by the accused persons. PW2 has further proved that on 07/05/2012, he went to PS and identified accused Tejpal @ Lala who was arrested on his identification vide arrest and personal search memos Ex.PW2/C and Ex.PW2/D and also his mobile phone recovered at the instance of Tejpal @ Lala from his house vide seizure memo Ex. PW2/E. PW2 has also identified mobile phone as Ex. P1. MLC of injured / complainant Ex.PW5/A has also corroborated this incident during which he sustained injury.
13. Testimony of PW2 has been duly corroborated by PW10 SI Sushil also, who has duly corroborated the facts that accused Tejpal @ Lala was identified by PW2 along with his mobile phone recovered at the instance of accused Tejpal @ Lala from his house. PW4 has also corroborated that he met complainant and IO at the spot of incident when returned back from PS FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 12/31 with rukka and FIR and IO / HC Ravinder Kumar prepared site plan Ex.PW2/B. PW8 HC Ravinder Kumar also corroborated this fact. PW2 has categorically denied the suggestions that on 07/05/2012, he did not identify accused Tajpal @ Lala in PS or that all accused have been falsely implicated to this case just to extort money. PW8 HC Ravinder Kumar has further corroborated that initially, injured / victim could not make his complete statement regarding robbery and made his supplementary statement on the same day at about 4:00 am and disclosed the complete incident, whereas accused have not cross examined PW2 and PW8 on this aspect to prove that it was done intentionally to manipulate incident. PW10 Sushil Tiwari has also corroborated that accused Tejpal @ Lala led the police team to his home and got recovered robbed mobile phone. As such, the testimony of the PW2 has duly proved the incident.
14. Further, the arrest of accused Tejpal @ Lala has been duly proved by PW6 SI Chetan, who has corroborated that accused Tejpal @ Lala was arrested in FIR No. 136/12 u/s 326/34 IPC vide arrest papers Ex.PW6/A to Ex.PW6/C. The disclosure statement of accused Tejpal @ Lala has been proved by PW10 which is Ex.PW10/A. This disclosure statement coupled with disclosure statement of accused in connected FIR No 136/12 have duly corroborated that accused confessed his crime and got recovered stolen property. No doubt, police have not seized any document of ownership of the robbed mobile phone recovered at the instance of accused Tejpal @ Lala, but accused has not taken any such plea that this mobile phone belonged to him or his family members. On the other hand, PW10 has tendered an explanation that he asked PW2 regarding receipt of ownership of mobile phone, but he tendered an explanation that receipt was in his purse itself which was robbed FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 13/31 by the accused persons. Accused have not conducted any further cross examination nor put any suggestion to PW10 to deny this fact. As such, testimony of PW2 and duly corroborated by PW4, PW8 and PW10 has proved that all the accused in furtherance of their common intention committed this robbery after causing his neck injury.
15. Ld. Counsels for accused persons have argued that the testimony of PW2 is not reliable as he has admitted during cross examination that he did not know the accused persons, due to it was not possible to him to identify or name the accused as assailants. It is further argued that false implication of accused to this case may not be ruled out. It is further argued that all accused were already arrested in case FIR No. 136/12 and they might have been shown to complainant to identify them as assailants during police custody due their identity before court is not proved beyond doubt. It is further argued that even alleged recovery of mobile phone at the instance of accused Tejpal @ Lala from his house is also disputed, as the police have not seized or verified the authenticity/ ownership of this mobile phone, due to cannot be said that it really belonged to the complainant. It is further argued that IO/PW10 has admitted that he did not verify the purchase of mobile phone from shopkeeper whereas PW2 also did not provide any ownership proof of recovered mobile phone, due to it could not be proved that accused robbed or got recovered stolen / robbed mobile phone or that it really belonged to him. It is further argued that factum of dispute of ownership of recovered mobile is sufficient to prove that false implication of accused to this case may not be ruled out. It is further argued that complainant / PW2 made an initial statement regarding a quarrel and FIR u/s 323/323/341/34 IPC was also lodged against accused person, but he subsequently and deliberately made a supplementary statement FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 14/31 under the pressure of police to falsely implicate the accused persons, due to his version is not reliable. It is prayed that all accused are entitled for benefit of doubt.
16. On the other hand, Ld. Addl. PP for State has argued that PW2 has categorically proved that his mobile phone was robbed by accused persons and recovery of said mobile phone in pursuance of disclosure statement of accused Tejpal @ Lala during police custody has corroborated the version of the prosecution. It is further argued that recovery of mobile phone at the instance of accused was sufficient to prove an authentic recovery of stolen property from the accused which cannot be doubted just for the want of receipt of ownership. It is further argued that the complainant named all accused in FIR itself and it was not possible to him without knowing them earlier, due to admission of one single suggestion by PW2 that he did not know the accused prior to this incident is not sufficient to brush aside his reliable testimony. It is further argued that the complainant has already clarified that he was nervous while making his earlier / initial statement, due to he subsequently modified his previous version to disclose the actual incident and there is no reason to disbelieve it. It is further argued that accused persons are liable to be convicted for this robbery as well as recovery of stolen property.
17. I have heard the arguments of both parties and perused the record. Ld. Counsel for the accused has mainly assaulted the testimony of PW2 on the basis of his initial version that initially, he reported an incident of quarrel, but subsequently converted it into an incident of robbery due to his version is not reliable. However, this argument has no force. Prior to lodging of FIR, this FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 15/31 incident was reported to PCR by the way of DD No. 2B, which has corroborated that it was an incident of snatching after causing knife injury, but it is beyond explanation as to why police preferred to lodge an FIR u/s 323/324/341/34 IPC instead of section of robbery. Police have not offered any clarification / explanation as to why and how this incident of snatching and stabbing was reported to PCR and converted to simple incident of quarrel. Even accused have also not sought any such explanation from IO. If this incident was an incident of robbery since beginning, then supplementary statement by which case was recorded regarding robbery was not out placed. Even otherwise, any such lapse in investigation is not a ground to discard a reliable testimony of a witness without his fault.
18. Further, PW2 instantly disclosed correct version on the incident on same day at 4.00 pm itself which has proved that he did not cause undue delay to disclose correct incident and to implicate the accused persons to the incident, whereas they were absconding at that time. On the other hand, accused persons have not conducted cross examination of PW2 on this aspect which suggests that they have accepted this version of the prosecution and there is no reason to doubt the testimony of PW2. If fact, if accused would have conducted any cross examination of this witness on this aspect, then he would have offered some explanation to this fact, but without any cross examination, there is no reason to doubt the testimony of PW2 and now such arguments have no substance.
19. Admittedly, complainant / victim Prem Pal also sustained injuries during this incident and his oral evidence as well as MLC has proved this fact. The Hon'ble Apex Court has treated testimony of such injured with FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 16/31 special care and caution and law related to such testimony has laid down in case titled State of UP v. Kishan Chand, (2004) 7 SCC 629 as under: -
...the testimony of a stamped witness has its own relevance and efficacy. This fact that the witness sustained injuries at the time and place of occurrence, lends supports to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy cross examination and nothing can be elicited to discard his testimony, it should be relied upon...
20. Further, it is held in Abdul Sayeed V. State of Madhya Pradesh & others, (2010) 10 SCC 259 that "weight is to be attached to the evidence of a witness that was himself injured in the course of occurrence and testimony of such witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailants in order to falsely implicate someone. As such convincing evidence is required to discredit an injured witness. Similarly, in (2004) 7 SCC 629, it is reiterated that "the fact that the witness sustained injuries at the time and place of occurrence lends support his testimony that he was present during the occurrence. In case injured witness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon".
21. In view of above said case law, it stands proved that the testimony of injured witness has to be treated with special care and may be discarded only under special circumstances. Ld. Counsel has argued that accused persons were not known to the complainant due to his version is not reliable. However, names of all accused were disclosed by the complainant in his initial statement Ex.PW2/A itself, on which basis, this FIR was lodged. He also identified accused Tejpal @ Lala and recovered mobile phone in PS also. Recovery of stolen mobile phone was also made in his absence which FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 17/31 suggests that there is no reason to believe that the complainant has falsely implicated him to this case. PW10 has duly proved that the complainant identified the accused before the police and has duly corroborated that accused Tejpal @ Lala was arrested on his identification. No doubt, PW2 has admitted during cross examination that accused persons were not known to him prior to this incident, but merely on the basis of this statement, it cannot be said that he did not know the accused person actually, whereas his statement in FIR Ex.PW3/A has proved that he named all accused Tejpal @ Lala, Sonu and Atti Chauhan as assailants and committed this incident. It is quite possible that complainant / victim might have no interaction with accused, otherwise it was not possible to him to lodge by named FIR prior to the arrest of accused persons in another FIR No. 136/12 and FIR No. 199/12 also. Further, this FIR (Ex.PW3/A) had already been lodged on 06/05/2012 at 3:30 am itself, whereas accused Tejpal @ Lala was arrested in another FIR on 06/05/2012 at 11:15 pm, which has ruled out any false naming or implication of accused to this case by the complainant in connivance with police. As such, this argument has no force.
22. Besides it, the statement of injured / complainant before this court cannot be disputed merely before the contents of FIR are different. Even if it is assumed for the sake of arguments that contents of this FIR are not proved, then also it is not fatal to this case in view of law laid down by case titled Krishna Mochi v. State of Bihar, (2002) 6 SCC 81 as under:
35. It has been further submitted that the informant, Satendra Kumar Sharma has not been examined as such, the first information report cannot be used as a substantive piece of evidence inasmuch as on this ground as well the appellants are entitled to an order of acquittal. The submission is totally misconceived. Even if the first information report is not proved, FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 18/31 it would not be a ground for acquittal, but the case would depend upon the evidence led by the prosecution. Therefore, non-
examination of the informant cannot in any manner affect the prosecution case.
23. Further, even recovery of mobile phone at the instance of accused Tejpal @ Lala was also made much prior to his arrest in this FIR on the basis of his earlier disclosure statement in FIR No.136/12. Accused Tejpal @ Lala was arrested in this case on 07/05/2012 at about 10:00 am and made his disclosure statement Ex.PW10/A, in which, he disclosed that he could get recovered robbed mobile from his residence and the same was also recovered from his house itself, which has been duly proved by PW10 also. Seizure memo was prepared at PS and it has also been proved by PW2. As such, this recovery of mobile phone is well admissible u/s 27 of Evidence Act and may not be disputed lightly.
24. The mode and manner of recovery in custody has been dealt with in titled Anter Singh v. State of Rajasthan (2004) 10 SCC 657, in which, scope u/s 27 of Evidence Act has summed up as under:
"16. The various requirements of the section can be summed up as follows:
1. The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the facts discovered admissible.
2. The fact must have been discovered.
3. The discovery must have been in consequence of some information received from the accused and not by the accused's own act.
FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 19/31
4. The person giving the information must be accused of any offence.
5. He must be in the custody of a police officer.
6. The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
7. Thereupon only that portion of the information which related distinctly or strictly to the fact discovered can be proved. The rest is inadmissible."
25. It is further held in State of Maharashtra v. Damu (2000) 6 SCC 269 that:
"35. The basic idea embedded in section 27 of the Evidence Act is the doctrine of confirmation by subsequent events. The doctrine is founded on the principle that if any fact is discovered in search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. The information might be confessional or no exculpatory in nature, but if it results in discovery of a fact it becomes reliable information. Hence the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum."
In view of abovesaid law, it stands proved that the recovery from accused Tejpal @ Lala during custody stands proved and there is no reason to disbelieve this recovery.
26. So far as ownership of recovered mobile phone at the instance of accused Tejpal @ Lala is concerned, Ld. Counsel for accused has argued that it could not be proved that complainant was the owner of this mobile phone due to accused cannot be convicted on this ground. However, this argument has no substance. PW2 has deposed that his mobile make Nokia 5233 was robbed by the accused persons and the same mobile phone has recovered at FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 20/31 the instance of accused, whereas accused Tejpal @ Lala has not denied this recovery. Accused has not claimed that recovered mobile phone belonged to him or his family members. Accused was supposed to dispute that this recovery was not effected at his instance, but he has not rebutted this fact, especially when this recovery was made soon after his arrest and has a presumption u/s 114 (a) of Evidence Act which was to be rebutted by him only. As such, recovery of stolen property at the instance of accused stands proved.
27. Admittedly, many persons use mobile phone without having ownership proof or they don't care to preserve such ownership documents, but it cannot be said that they are not owners of such instruments. PW2 has proved that he purchased this mobile from Karawal Nagar, but did not hand over bill of mobile phone to police, however he has tendered an explanation that mobile phone receipt was in his purse itself, which was robbed by the accused persons. The failure of police not to verify the ownership of the mobile phone, as admitted by IO, may be lapse of investigation but may not dispute this recovery. The mobile phone with model number was recovered from accused as per description mentioned in FIR there is no reason to dispute this recovery and stands proved. The judgment titled Iqbal and Another v. State of Uttar Pradesh, 2015 III AD (CRI.) (SC) 329 relied upon by Ld. counsel for accused is not applicable on the facts, as in that there was a dispute of identity of accused as well recovery of articles in pursuance of disclosure statement, which is not in this case.
28. Ld. Counsel for accused has further argued that the prosecution has not examined informant of DD entry No. 2B and it is fatal to this case, as FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 21/31 informant could have proved the actual incident. However, it is not always fatal, if informant of an FIR or incident is not examined by the prosecution, especially when prosecution has successfully proved the entire incident beyond doubt. Legal proposition is well clear by case titled Umesh v. State of Maharashtra, (2007) 15 SCC 393 as under:
19. The next contention of the learned counsel for the appellant that adverse inference should be drawn against the prosecution for non-examination of the informant and other material witness does not merit acceptance. In the teeth of the reliable and convincing evidence, which has come on record, we have no other option but to accept the finding recorded and the conclusion arrived at by the High Court on reappraisal of the entire evidence on record to hold that it was the appellant and none else who has committed the murder of Dilip. The prosecution has been able to establish the offence against the appellant beyond reasonable doubt. None of the contentions raised by the learned counsel on behalf of the appellant can be accepted.
29. Ld. Counsel has also argued that the police have not joined public persons despite their presence at the spot and it is fatal to this case. However, non-joining of public persons is not always fatal. Now-a-days, it is very difficult to get joined public persons in investigation and this obstacle of police has been duly recognized by Hon'ble Supreme Court of India in case titled Appabhai v. State of Gujrat 1988 Supp SCC 241 and relevant observation is as under: -
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate; but it is there everywhere whether in village life, towns or cities. One cannot ignore this FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 22/31 handicap with which the investigating agency has to discharge its duties. The court therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused. The court, however, must bear in mind that witnesses to a serious crime may not react in normal manner. Nor do they react uniformly. The horror-stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be ordinary type in the normal circumstances. The court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner".
In fact, objections of Ld. Counsel for accused that non-joining of public persons during investigation is fatal, is not sustainable. Admittedly, time of incident was at about 12:30 am (midnight) and public persons at such odd timings were/are usually not expected to join investigation. On the other hand, accused persons were supposed to make a complaint against IO or to tender an explanation under which circumstances they were falsely implicated to this case. They have also not tendered any explanation during their statements under section 313 Cr.P.C about it. Even no evidence has been led regarding any previous enmity or biasness of police which led IO to falsely implicate them. As such, objections of the accused persons could not be proved.
30. Ld. Counsel for accused has argued that the accused persons are not liable u/s 341/34 IPC, as there is no evidence against them that they put any wrongful restraint to injured / PW2. To decide this argument, it is necessary to go through section 390 IPC. Perusal of illustration (a) of section 390 IPC has replied to this query which is as under:
FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 23/31
(a) A holds Z down and fraudulently takes Z's money and jewels from Z's clothes without Z's consent. Here A has committed theft, and in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
In view of abovesaid illustration, it stands proved that any wrongful restraint to PW2 Prem Pal by the accused persons while committing robbery is well covered by section 390 IPC itself and no separate charge is required to be proved against the accused persons. As such, accused persons are liable for robbery and not for wrongful restraint.
31. Admittedly, all the accused committed this offence in furtherance of their common intention and Section 34 IPC is applicable in those cases where more than one accused commits the offence in furtherance of their common intention. In fact, meeting of mind all accused is required to commit such offence and each accused shall be equally liable for the acts of others in the same manner as if it were done by him alone. The section 34 IPC has come into interpretation before the Hon'ble Supreme Court in case titled Ramesh Singh @ Photti v. State of A.P. (2004) 11 SCC 305 and the observation of the Hon'ble Court is as under:-
"12. ....... As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 24/31 would be responsible for the offence committed irrespective of the share which he had in its perpetration. ........."
32. In view of the above said law, it stands proved that all the accused persons, who committed the offence of robbery in furtherance of their common intention, are liable jointly and may be convicted with the help of this Section 34 IPC. In this case, PW2 has duly proved that all the accused firstly assaulted him by kicks and fist blows and accused Sonu caused knife injury on his neck and robbed of his mobile phone and cash of Rs. 2800/-. This testimony of PW2 is sufficient to prove the involvement of all accused to this robbery.
33. Under Section 394/397 IPC: Next charges against accused Sonu are u/s 394/397 IPC. Accused Sonu caused neck injury to the complainant Prem Pal during this incident due to he has been separately charges under Section 394/397 IPC. Section 394 IPC prescribes if any accused during robbery voluntarily causes hurt to victim is liable under this section. In this case, it stands proved that offence of robbery after causing injury was committed by all accused but only accused Sonu has been charged for this offence, whereas all of them ought to be liable for this offence with the help of joint liability. However, in the absence of any such charge under section 394 IPC, other accused namely Tejpal @ Lala and Mahesh @ Atti Chauhan cannot be convicted for this offence without framing of formal and specific charge. All accused had beaten up the complainant during robbery and this fact is well clear by his first statement as well as his testimony, but it is not sufficient to convict them u/s 394 IPC. Section 222 CrPC prescribes a conviction of accused without framing of formal charges, but it is not applicable where charges have been framed for higher degree of offences and conviction is FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 25/31 made for lesser offences, which is not the case herein. Though this court is vigilant that charges may be amended at any stage of trial, yet this case is one of the oldest cases of this court and recalling of witnesses for re-examination after amendment of charges would definitely cause further delay of trial, especially conclusion of trial after more than 10 years. As such, amendment of charge may not be in the interest of justice.
34. In view of the abovesaid observations, I am of the opinion that all accused have committed the offence of robbery, but accused Sonu used weapon during incident and caused injury to PW2. This injury and use of weapon has been duly proved by MLC of injured which is Ex.PW5/A, due to he is liable for the charged offence u/s 394 IPC individually and other accused may not be convicted for such offence.
35. So far as charge under section 397 IPC is concerned, section 397 IPC prescribes enhancement of sentence in the cases where any dangerous weapon has been used during robbery or that grievous injury has been caused to victim during incident. This section enhanced the sentence not below 7 years. Section 397 IPC is as under:
Section-397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
In view of this section, it is clear that use of deadly weapon by any accused is punishable under this section and accused, who uses such dangerous weapon, is liable under this offence, though it is not a separate offence, yet prescribes FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 26/31 enhanced punishment. PW2 has duly proved that accused Sonu used a knife, which was definitely a deadly/ dangerous weapon and was also used to cause injury on the neck PW2 and has proved the intention as well as deliberation of the accused to use this weapon.
36. Ld. Counsel for accused has further argued that no weapon of offence has been recovered at the instance of accused Sonu, due to his involvement to cause injury to PW2 could not be proved. However, this submission has no force. The involvement of accused Sonu could not be disputed merely because no weapon of offence has been recovered at his instance, especially when PW2 Prem Pal has duly proved that this accused used knife to cause him injury. Medical evidence / MLC has duly corroborated the mode and manner of injuries by the accused Sonu. Non-recovery of weapon of offence is not always fatal to a case particularly when mode and manner of inflicting such injury has been duly proved by injured/ eye witness in very natural manner. The law to this effect has been laid down by Hon'ble Supreme Court of India in case titled Anwarul Haq v. State of UP, (2005) 10 SCC 581 that the eye witnesses have described the knife, and merely because the knife has not been recovered during the investigation same cannot be a factor to discard the evidence of PWs. Wounds noticed by the doctor also throw considerable light on this aspect. The doctor's opinion about the weapon, though theoretical, cannot be totally wiped out. As such, non-recovery of weapon of offence/ knife at the instance of accused Sonu is not fatal to give him benefit of doubt, especially when MLC of injured has corroborated that injury was likely to be caused by such weapon used by accused. in fact, involvement of accused Sonu is well clear by the testimonies of witnesses and testimony of the complainant/PW2 cannot be discarded merely by non-
FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 27/31 recovery of weapon of offence. Accused Sonu is liable for both offences u/s 394/397 IPC.
37. UNDER SECTION 411 IPC: This charge has been framed against accused Tejpal @ Lala for recovery of a mobile phone belonged to the complainant / victim Prem Pal, which was a stolen property and was recovered at his instance from his house. Section 411 IPC prescribes that whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, is liable under this section. In this case, I have already discussed in detail that accused Tejpal @ Lala was arrested and led to the recovery of stolen mobile phone Ex. P1, which was seized vide seizure memo Ex.PW2/E, in pursuance of his disclosure statement Ex.PW10/A. This recovery is duly admissible u/s 27 of Evidence Act and u/s 8 of Evidence Act as conduct of accused. Though Ld. Counsel for the accused has argued that this recovery was made instantly due to no separate offence u/s 411 IPC is made out against this accused, yet this argument has no force. Admittedly, this incident occurred in the intervening night on 05-06/06/2012, whereas recovery was made from his residence on 07/05/2012 itself, which suggests that accused dishonestly received or retained thsi stolen mobile phone. Even this recovery of stolen mobile phone soon after his arrest on next day of incident has also proved that presumption u/s 114(a) of Evidence Act is also against accused and it shall be presumed, either accused was thief or received stolen property knowingly. For further elaboration, it is necessary to see Section-114(a) of Evidence Act as under : -
Section 114. Court may presume existence of certain facts. -- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 28/31 in their relation to the facts of the particular case. Illustrations The Court may presume--
(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
38. The above said section came into interpretation in case titled Hatti Singh v. State of Haryana, (2007) 12 SCC 471 and relevant observation is under:
32.The learned counsel for the State would submit that recovery of the articles would raise a presumption under Section 114 of the Evidence Act. Application of such a presumption is limited. A presumption may be in respect of commission of theft or receipt of stolen property; if a person is found to be in possession of the property belonging to the deceased, but on such presumption alone, the appellant could not have been convicted for commission of murder, particularly when on the same evidence other persons had been given benefit of doubt.
In view of the abovesaid law, it stands proved that, though there is no presumption that a person found in possession of stolen articles was robber/ murderer or committed any robbery, yet it may be presumed that he dishonestly received or retained the stolen property. In this case also, accused Tejpal @ Lala got recovered stolen property from his house in pursuance of his disclosure statement and there was no much difference of time to manipulate by anyone, due to it stands proved that accused Tejpal @ Rohit @ Lala committed this offence u/s 411 IPC.
39. Ld. Counsel for the accused has further argued that the contradictions in the testimonies of PWs are glaring and cannot be ignored due to accused are entitled for benefit of doubt. On the other hand, Ld. APP for the State has opposed this submission that PWs have duly proved the involvement of all FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 29/31 accused beyond doubt and they are liable to be convicted.
40. The law of contradictions has been dealt with by Hon'ble Supreme Court of India in case titled Bhajan Singh & Ors v. State of Haryana, (2014) 7 S.C.R.1 as under;
"while appreciating the evidence of a witness minor discrepancies on trivial matters, which do not affect the core of the prosecution's case, may not prompt the court to reject the evident in its entirety. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labeled as omissions or contradictions". Difference in some minor detail, which does not otherwise affect the core of the prosecution case, even if present, would not itself prompt the court to reject the evidence on minor variations and discrepancies. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go the heart of the matter and shake the basic version of prosecution witness. As the mental capabilities of a human being cannot be expected to be attuned to absorb all the details, minor discrepancies are bound to occur in statements of witnesses."
In view of abovesaid law, it stands proved that minor contradictions emerged during the testimonies of PWs are liable to be discarded and those are not such glaring to give benefit of doubt to the accused persons. As such, accused persons are liable for committing this robbery, use of dangerous weapon to cause injury and also recovery of stolen property.
41. Keeping in view of the facts and circumstances of this case, I am of the considered opinion that accused Tejpal @ Rohit @ Lala and Mahesh @ Atti Chauhan are liable for the offence and convicted u/s 392/34 IPC. Accused Tejpal @ Rohit @ Lala is also liable and convicted under section FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 30/31 411 IPC. Accused Sonu is not liable u/s 392/34 IPC, but he is liable and convicted u/s 394/397 IPC. All the convicted accordingly.
42. All accused persons are taken into custody and remanded for custody. Their Bail Bonds Cancelled. Sureties discharged. Endorsement, if any cancelled. Originals, if any returned. Digitally signed by DEVENDRA DEVENDRA KUMAR KUMAR Date:
2022.08.06 16:21:22 +0530 Announced in open court (Devender Kumar) today on 06.08.2022 Additional Sessions Judge-02 (NE) Karkardooma Courts, Delhi.
FIR No. 137/2012 State Vs. Tejpal @ Rohit @ Lala etc. 31/31