Delhi District Court
State vs . 1. Joginder @ David on 16 September, 2022
IN THE COURT OF SH. SHIVAJI ANAND, ADDITIONAL SESSIONS
JUDGE-04 (NORTH), ROHINI COURTS, DELHI
Session Case No. : 58067/2016
CNR No. DLNT01-000440-2011
State Vs. 1. Joginder @ David
S/o Sh. Ajay Pal
R/o H. No. 33, G- Block, Vijay Vihar
Ph-1, Delhi.
2. Vinod @ Bidi
S/o Sh. Ramphal
R/o I-133, Vijay Vihar, Ph-I, Delhi.
3. Chanderhas
S/o Sh. Chander Pal
R/o H. No. F-239, Vijay Vihar,
Ph-1, Delhi.
4. Prince
S/o Sh. Paramjeet Singh
R/o H. No. I-120, Vijay Vihar
Ph-2, Delhi.
FIR No. : 384/2010
Police Station : Vijay Vihar
Under Sections : 392/397/411/419/34 IPC
Date of Institution : 01.02.2011
Date of committal to Sessions Court : 11.02.2011
Date of institution in Sessions Court : 15.02.2011
Date of Argument : 06.09.2022
Date on which Judgment pronounced : 16.09.2022
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 1 of 47
JUDGMENT
1. Briefly stated, the case of prosecution is that on dated 05.11.2010 on receipt of DD No. 58B, HC Dharmender alongwith Mohd. Rafiq reached at the spot J-141, Vijay Vihar where HC Pradeep and Ct. Ramphal were found present at the spot and HC Pardeep, Ct. Ramphal, complainant Surender Shah and Raj Kishore had presented four persons Vinod @ Bidi, Chanderhas, Prince and Joginder @ David to HC Dharmender. In his statement to HC Dharmender, complainant Surender Shah stated that he live as a tenant on the abovesaid address and run a welding shop on the same address. He further stated that he is resident of Village Patahi, Aanchal Narayani, District Rothat (Netal). He further stated that on 05.11.2010, he had come to the rickshaw garage of his relative Mahesh at J- 141, Vijay Vihar, Phase-I, and at around 10:00 p.m., he was sitting in the said garage in one room, at that time one Mohd. Tasleem was collected the rent from the rickshaw pullers, at that time four persons barged into the godown, out of which three persons remained in the godown and the fourth one went outside and locked the garage from outside. All the three persons, who came inside the godown stated that they were from crime branch and whatever money they had should be parted. When, they refused to give the money, those persons took out dandas, which they had concealed on their back side, and started assaulting him as well as Nand Kishore, Shravan, Raj Kishore, Birbal and Mohd. Tasleem mercilessly. In the meanwhile, the fourth person also came into the garage and also started assaulting them, and they committed robbery with them, one of them whose name was later on revealed as Vinod @ Bidi took out of Rs.2500/- from his pocket alongwith his watch, the other one by the name of Chanderhas removed Rs. 2300/- and one SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 2 of 47 mobile phone from the pocket of Raj Kishore, third one Joginder @ David removed one purse from the pocket of Shravan, containing Rs. 1500/-, whereas another one by the name of Prince robbed Nand Kishore, Birbal and Mohd. Tasleem of the articles, which were kept by them. All of them started running, but they chased them and caught one of them whose name was revealed as Prince. In the meanwhile, his relative Mahesh also came there and all of them started chasing the other accused persons and with the help of public persons, all the remaining three accused persons were caught. The said Mahesh made call to 100 number. They caused injury on the feet of Nand Kishore and on the face and other body parts of Shravan and snatched their money. Later on, all the robbed articles were recovered from the possession of the accused persons, including the dandas/baseball bats, used by the accused persons in the robbery. Since sufficient evidence was found against abovesaid accused persons, therefore charge-sheet u/s 394/397/411/419/34 IPC was filed against them before the concerned Magisterial Court on 01.02.2011. The case was committed to the Court of Sessions vide order dated 11.02.2011 and it was received by Sessions Court on 15.02.2011.
2. Vide order dated 05.05.2011 charge for the offences u/s 419/392/397/34 IPC IPC and u/s 411 IPC were framed against all the accused persons, to which, they pleaded not guilty and claimed trial.
3. To prove its case, the prosecution has examined 18 witnesses in all. The details of said witnesses are as under:-
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 3 of 47S.No. Name of prosecution witness Purpose of examination 1 PW1 Dr. Arvind Kumar, Senior For proving the fact that he Resident (Ortho), BSA Hospital, examined Nand Kishore and give his Rohini, Delhi. observation in respect of orthopedic point of view at point X on MLC Mark A. He has also given opinion on the basis of X-ray Film No. 2854 dated 05.11.2020.
2 PW2 HC Banwari Lal, Duty For proving the computerized copy Officer, PS Vijay Vihar. of FIR No. 384/10, u/s 394/419/34 IPC Ex.PW2/A, his endorsement on rukka Ex.PW2/B. 3 PW3 Ms. Deepti Bhatia, CMO, For proving the MLC of Nand Dr. BSA Hospital, Rohini, Delhi. Kishore Ex.PW3/A and MLC of Shrawan Kumar Ex.PW3/B. 4 PW4 W/Ct. Ritu For proving the computer generated copy of the PCR Form-1 Ex.PW4/A. 5 PW5 Ct. Sardar Singh, DD For proving the copy of DD No. 58B writer Ex.PW5/A. 6 PW6 Surender/ complainant For proving his statement Ex.PW6/A, seizure memo Ex.PW6/B, Ex.PW6/C and Ex.PW6/D and the arrest memo of all the accused persons Ex.PW6/E, Ex.PW6/F, Ex.PW6/G and Ex.PW6/H. He also came to prove the wrist watch Ex.P1, indemnity bond furnished for releasing the amount of Rs.2500/-
Ex.PW6/J, photocopy of the currency amount of Rs.2500/-
robbed from his possession Ex.P2 (Colly.).
7 PW7 Sh. Nand Kishore, He is one of the eye witness/victim
victim/eye witness in the present case. He came to
prove the incident in question but he
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 4 of 47
turned hostile.
8 PW8 Sh. Raj Kishore, Another He is also the victim in present case.
victim/eye witness. He also came to prove the incident
in question. He also came to prove
the indemnity bond furnished for
releasing the mobile phone and
currency notes Ex.PW8/A, mobile
phone Ex.PW8/Article-1.
9 PW9 ASI Pradeep Kumar. He was on patrolling duty with Ct.
Ramphal on the day of incident. He
came to prove the facts regarding
incident in question.
10 PW10 Mohd. Tasleem, He is also one of the eye
Victim/eye witness witness/victim in the present case.
He came to prove the incident in
question but he also turned hostile.
11 PW11 Birbal, independent He is the independent witness in the
witness present case. He came to prove the
incident in question but he turned
hostile.
12 PW12 Mahesh Prasad, Owner He is the owner of the garage. He
of the garage called at 100 number regarding the
incident but he turned hostile.
13 PW13 HC Sukhbir Singh, He came to prove the photocopy of
MHC(M) original register no. 19 containing
the entry regarding deposit of case
property including five seizure
memos and two personal search
memo, seized in case FIR No.
384/10, PS Vijay Vihar Ex.
PW13/A(OSR)
14 PW14 Mr. Shravan Kumar, He is one of the victim in the present
Victim/eye witness case. He came to prove the incident
in question and indemnity bond
furnished for releasing the purse
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 5 of 47
and recovered cash of Rs.1500/-
Ex.PW14/A. He also came to prove
the photograph of purse
Ex.PW14/B.
15 PW15 Ct. Ramphal He was on patrolling alongwith HC
Pradeep Kumar on the day of
incident.
16 HC Dharmender DD No. 53B was marked to him. He
came to prove the rukka
Ex.PW16/A, personal search memos
of accused Chanderhas, Joginder @
David, Vinod @ Bidi and Prince
vide Ex.PW16/B to Ex.PW16/E;
seizure memo of two baseball bats
and two wooden dandas seized by
IO vide memo Ex.PW16/F.
17 SI Satyavir Singh Further investigation of the case
was marked to him. He collected the
result on MLC of injured Nand
Kishore. He had added offence u/s
397 IPC in the investigation and
recorded the supplementary
statement of Sh. Surender Shah and
Sh. Raj Kishore. He prepared the
charge-sheet.
18 Insp. Sunil Kumar He came to prove the site plan
Ex.PW18/A and disclosure
statement of accused Vinod @ Bidi
Ex.PW18/B.
4. After completion of prosecution evidence, statement of accused persons were recorded u/s 313 Cr.P.C., wherein they have denied the case of prosecution and claimed false implication. However, they chose not to lead any SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 6 of 47 evidence in defence.
5. I have heard ld. Addl. PP for the State and ld. Counsels for the accused persons and have carefully gone through the record.
6. Ld. Addl. PP for the State has submitted that prosecution has successfully proved its case against the accused persons beyond reasonable doubt. In support of said contention, he heavily relied upon testimonies of PW6 and PW14, who are eye witnesses in the present case. He argued that PW6 and PW14 have fully supported the case of prosecution on all the material points and have also identified the accused persons to be the offender who had committed robbery. He further submitted that all the robbed articles were recovered from the possession of the accused persons, including the dandas/baseball bats used by the accused persons in the robbery. He, therefore, urged that the accused should be convicted in this case.
7. On the other hand, ld. counsels for the accused persons have submitted that accused persons have been falsely implicated in the present case. They have further submitted that accused persons were not involved in the commission of the offences. It is further submitted by ld. counsels for accused persons that medical report of both the alleged injured does not suggest suffering any injury from Dandas, baseball bats and/or hockey sticks. Alleged bruises and abrasions behind the left ear, over the face, left side of the neck and both the shoulders, left side of the back cannot be caused with Dandas, baseball bats or SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 7 of 47 hockey sticks. Ld. counsels further argued that none of the PWs have alleged beatings by Dandas/baseball bats or hockey sticks to the injured PW7 Nand Kishore and PW12 Shravan Kumar by the assailants on the right foot or back portion of heel of PW7 Nand Kishore and left lower back behind the left ear and over the face, left side of the neck, both shoulders and back side of PW12 Shravan Kumar. Ld. counsels further argued that there are contradictions regarding apprehension of culprits. PWs have alleged that culprits were apprehended by the victims by chasing them, police at the spot, then said they were apprehended by the public, then said accused Prince was apprehended firstly and other three accused persons were apprehended subsequently by the victims themselves by chasing them. Ld. counsels further argued that there are contradictions regarding place of incident as PW6 / Complainant Surender Shah also could not properly explain the place of incident. In his complaint, he has alleged the same as godown, at the time of recording of his testimony the same as garage, then said room in garage. Ld. counsels further argued that PWs have contradicted about number of alleged assailants. They further argued that most of the PWs have alleged that owner of garage had come subsequent to occurrence of alleged incident and apprehended the culprits, however, PW12 has specifically stated that on his reaching the garage he was informed that the snatchers were apprehended by the victims by chasing them. Ld. counsels further argued that there are contradictions as to who had taken the injured to hospital. They further argued that as per evidence available on record, out of total 7 victims only two i.e. PW6 complainant Surender Shah and PW14 Shravan Kumar have partly supported the prosecution case. Ld. counsels further argued that all the alleged six victims were given beatings with dandas etc. SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 8 of 47 but only one Nand Kishore had allegedly suffered only one grievous injury and Shravan Kumar suffered simple injury and no one else has suffered any injury due to alleged beatings. Ld. counsels further argued that admittedly none of alleged victim can prove ownership of their respective robbed articles. Ld counsels further argued that accused persons have been falsely implicated in this case by showing stake money of gambling as robbed money, through police informers, without any cause or reason on their part. In fact the alleged victims had lost their money in gambling and had developed grudge against the accused persons for losing their money and started demanding back their money from them in an illegal and arbitrary manner.
8. PW-1: Dr. Arvind Kumar, Senior Resident (Ortho) has deposed that he medically examined the patient Nand Kishore and his observations in respect of orthopedic point of view is at point X on MLC Mark A. He further deposed that he found pain and swelling on the right foot. Tenderness over right calacaneum (i.e. back portion of heel). He also opined the nature of injuries as grievous on the basis of X-ray Film No. 2854, dated 05.11.2010, which shows fracture in Calcaneum in right foot. His opinion is at point Y. During his cross-examination, he admitted that in his observation dated 05.11.2010 at point X he had not advised for the X-ray.
9. PW2 HC Banwari Lal is the duty officer. He deposed that his duty hours were from 1 a.m. (night) till 9 a.m. He further deposed that on the basis of contents of rukka sent by SI Sunil Kumar through Ct. Mohd. Rafik, he registered SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 9 of 47 this case vide FIR No. 384/10, u/s 394/419/34 IPC. The computer generated copy of FIR is Ex.PW2/A, which bears his signature at point A. He further deposed that after the registration of FIR, he handed over the rukka and copy of FIR to Ct. Mohd. Rafik for handing it over to SI Sunil Kumar. He further deposed that after registration of FIR, he made endorsement on the rukka Ex.PW2/B. During his cross-examination, he denied the suggestion that FIR is ante time and ante dated.
10. PW3 Dr. Deepti Bhalla, CMO, BSA Hospital deposed that on 05.11.2010 at around 11:25 p.m., one injured Nand Kishore S/o Sh. Ram Lakhan was brought to their department with alleged history of assault by the PCR. She further deposed that on examination following injuries were found on his body:
1. Diffused swelling and tenderness was present over both the ankle joints. Restriction of mobility was present.
She further deposed that after giving first aid, she advised X-ray of both the ankle joints and referred the patient to SR, Ortho for further management. Before that she declared the patient fit for statement at 11:30 p.m. vide endorsement made at point D. She prepared the MLC of injured Nand Kishore Ex.PW3/A. She further deposed that, at around 11:30 p.m., another injured Shrawan Kumar also brought to our casualty ward by the PCR with the alleged history of assault. She further deposed that on examination, following injuries were observed:
1. Multiple small size abrasions were present over the left lower back behind the left ear.SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 10 of 47
2. Multiple bruises were present over the face, left side of the neck, both the shoulders, left side of the back.
She deposed that after giving the first aid to the patient, the patient was asked to review in Surgery OPD, SOS. The patient was also declared fit for statement by her. She also found the injuries as simple. She prepared the MLC of Injured Shrawan Kumar Ex. PW3/B and opined regarding the nature of injuries as simple.
11. PW4 is Ct. Ritu. She has deposed that on 05.11.2010 at about 10:15 p.m., she received an information that 'at G-63, Phase-I, Block-G, Vijay Vihar, Chor Pakad Rakha Hai aur Jhagra', she recorded this information in PCR Form-1. She transmitted the information to concerned net. She further deposed that the number which was reflected at the time of receiving the information was 9873489327 and as per the record, the said number beongs to Mr. Manish Prasad. The computer generated copy of the PCR Form-1 is Ex.PW4/A. During her cross-examination, she denied the suggestion that she had flashed the information of Jhagra only or that she had not flashed the information of any thief being apprehended. She further denied the suggestion that she had later on manipulated the document at the instance of IO. She admitted that she had not brought the certificate u/s 65 B of the Indian Evidence Act.
12. PW5 is Ct. Sardar Singh. He has deposed that on 05.11.2010, he was on duty as a DD Writer from 8:00 p.m. to 2:00 p.m. (night). He further deposed SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 11 of 47 that at about 10:31 p.m., he had received an information from the wireless operator of the Police Station that at G-63, Vijay Vihar, Phase-I, E Block, Jhagra- 9873489327. He recorded the message in DD No. 58B. Attested copy of the same is Ex.PW5/A. During his cross-examination, he admitted that he had recorded the message in whole, which he received from the wireless operator. He also admitted that he had not received any information regarding the apprehension of thief.
13. PW6 is Sh. Surender. He is the complainant of the present case. He deposed that he is residing at Khasra No. 183, Village Rithala, Delhi and running a welding shop on the said address. He further deposed that on 05.11.2010, at about 9:45-10:00 p.m., she was present at the rickshaw garage of his brother-in-law (jija) Mahesh at premises No. J-141, Vijay Vihar, Phase-I. He further deposed that 7-8 persons were sitting there and Taslim was taking rent from the rickshaw pullers. He further deposed that in the meanwhile four boys entered inside the garage. One boy remained outside the room, but inside the garage and other three boys came inside the room. The said room is also inside the garage. He further deposed that the boy, who was standing outside the room locked the door by latches. He further deposed that the three boys came inside the room, told that they were from Crime Branch and they also told to hand over the articles, which we have possessed. He further deposed that when we refused to hand over the articles and money, then all the three boys took out the dandas from their back side from hidden position and started beating us i.e Nand Kishore, Sravan, Raj Kishore, Birbal, Mohd. Taslim and myself. In the meanwhile, the fourth boy, who was standing outside also came SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 12 of 47 inside the room, after opening the latches, and he also gave beatings to us by danda. He further deposed htat accused Vinod @ Bidi robbed currency amount of Rs.2500/- and watch from him. He further deposed that above said accused persons also robbed his other colleagues by snatching money. He further deposed that after committing robbery and snatching the articles, the above said four boys tried to ran away and they chased them. He further deposed that all the four accused were apprehended while chasing and his brother-in-law Mahesh also reached there. His brother-in-law Mahesh called the police on 100 number. He further deposed that the names of all the four accused persons were revealed later on, on inquiry by the police as Vinod @ Bidi, Prince, Jogender @ David and Chander Hass. He further deposed that his colleague Nand Kishore received serious injuries. PCR Van as well as local police reached at the spot, and injured Nand Kishore and Sarwan were shifted to the hospital. He further deposed that police recorded his statement Ex.PW6/A. He further deposed that on search of accused Vinod @ Bidi, his currency amount of Rs.2500/- and his watch make Sonata was recovered. From the search of other accused persons, robbed currency amount, identity card, mobile phone and purse were recovered. He further deposed that the wrist watch and currency amount were seized by the police vide seizure memo Ex.PW6/B. He further deposed that other robbed articles, which were recovered from the different accused persons were also seized by the police vide memos Ex.PW6/C & Ex.PW6/D. He further deposed that all the four accused persons were arrested by the police vide documents of arrest Ex.PW6/E, Ex.PW6/F, Ex.PW6/G and Ex.PW6/H. He has identified all the accused persons present in the court. He has SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 13 of 47 further deposed that one wrist watch make Sonata Ex.P1 is produced by the superdar/witness, which he identified as the same which was robbed and later on recovered from the accused Vinod @ Bidi. He further deposed that currency amount of Rs.2500/- which was robbed from his possession by the accused persons were also recovered, which was released to him on idemnity bond Ex.PW6/J. The photocopy of the currency amount is Ex.P2.
During his cross-examination, he deposed that first police officials from PCR reached at the spot. Local police also reached at the spot. He further deposed that he did not know, whether PCR official took the injured persons Nand Kishore and Sharwan to hospital or local police. PCR officials remained at the spot for about 5-10 minutes. He further deposed that he cannot say whether PCR officials performed any writing work there or not. Local police also remained at the spot or about 5-10 minutes before the injured persons were shifted to the hospital. He further deposed that he did not remember where my statement Ex.PW6/A was recorded by the police. He did not remember whether the local police again visited the place of incident or not. He further deposed that he had signed 8-10 documents as a witness. He further deposed that the said documents were not read over to him, but the said documents were written, when he signed the same and same were not blank.
He further deposed that he had not given any cash memo/receipt in respect of his Sonata Watch to the police, but he identified his watch by mark of welding. He further deposed that owner of rickshaw garage namely Mahesh was not present at the garage. The currency amount of Rs.2,500/- were kept in his right pocket of the pant, which were robbed by the accused persons. He further deposed SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 14 of 47 that after the incident, about 100-200 people were gathered at the spot. He denied the suggestion that accused persons were not armed with dandas. He further denied the suggestion that none of the accused persons were present at the spot, at the time of incident. He also further denied the suggestion that nothing has robbed from him or from any other of his companions. He further denied the suggestion that at the time of incident, there was complete darkness or that he could not identify any of the persons involved in the said incident, as stated by him. He further denied the suggestion that none of the accused persons were caught from the spot. He also denied the suggestion that nothing was recovered from the possession of Prince.
He deposed that nothing was destroyed / broken in the garage due to above mentioned incident. Blood did not ooze out from the persons, who were beaten by the accused persons, but due to said beatings fracture was caused. He denied the suggestion that nothing was recovered from the possession of Joginder @ David.
He further deposed that he had stated to the police the denomination of his currency amount of Rs. 2500/- but he cannot say whether the said denominations was written by the police or not. He further deposed that accused persons gave beatings to them in the room of the garage. He further deposed that at the time of arrest of accused persons, he was present there. Police officials told him that, his currency amount of Rs.2500/- and Sonata was recovered from accused Vinod @ Bidi. He further denied the suggestion that nothing was recovered from the possession of accused persons Chander Haas and Vinod @ Bidi.
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 15 of 4714. PW7 is Sh. Nand Kishore. He is one of the injured/eye witness in the present case. He deposed that on 05.11.2010, he returned from rickshaw at 10:00 p.m., and reached at the garage of Mahesh, situated at J-141, Vijay Vihar, Phase-II. He further deposed that Tasleem is Munshi of Mahesh. He further deposed that he handed over the hire money of rickshaw to Munshi, who was sitting in the garage. At that time, Surender, Sarvan, Birbal apart from Tasleem were also present. In the meantime, four outsider persons came, three entered in the room and one closed the door from outside. He further deposed that they started beating him and Sarvan, with danda, without any provocation. After sometime, the fourth one also entered inside the room and he also gave beatings to him. He sustained injury and he fell down. He does not know whether they snatched anything from his person, as he had fell down. He also deposed that he became unconscious, he did not know whether those persons snatched anything from Sarvan, Surender, Birbal and Tasleem. He further deposed that he cannot identify those four boys, who committed the abovesaid offence and their name were not come to his knowledge. He further deposed that Mahesh had made the telephonic call at 100 number. He further deposed that PCR van took him to the hospital in unconscious state. He further deposed that he did not know whether police had taken any other person to the hospital.
He has been cross-examined by ld. Addl. PP for the State as he was resiling from his previous statement. During his cross-examination by ld. Addl. PP for the State he stated that police inquired him in the hospital, regarding the incident and recorded his statement, which is Ex.PW-7/A. He further deposed that SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 16 of 47 Raj Kishore, one of his colleague also reached at the spot later on. He admitted that all the four boys ran away from there, but he did not know whether the said four boys were apprehended by them with the help of public persons. He denied the suggestion that he intentionally and deliberately suppress the true and incriminating facts in his statement Ex.PW7/A as he has been won over by the accused persons.
During his cross-examination by ld. counsel for the accused Vinod @ Bidi, he deposed that he did not know the house number adjoining to the said garage. He further deposed that he cannot say whether opposite to the said garage of Mahesh, the house of Jogender @ David was situated as bearing no. G-33, Vijay Vihar, Phase-I. He further deposed that the four persons, i.e. Surender, Sarvan, Birbal and Tasleem were sitting for reward of Dewali Festival. He further deposed that he was also to get the reward of Dewali Festival. He further deposed that Mahesh was come to distribute the rewards of Dewali Festival. He denied the suggestion that four person came the garage for gambling. He met Surender Shah for the first time on that day. He further stated that he cannot say whether Surender Shah was also a rickshaw puller or he was the relative of other persons, sitting in the garage.
15. PW8 is Raj Kishore. He deposed that he was living at H.No. E-128, Vijay Vihar, Phase-II, Delhi as tenant and at the relevant time, Sarvan was also living with me in the said accommodation. He further deposed that on the last year, on the day of Dewali Festival i.e. 05.11.2010, he parked his rickshaw at about 09:00-9:30 pm, in the garage of Mahesh, situated at Vijay Vihar. He further SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 17 of 47 deposed that there is one room constructed in the garage and when he went towards the room to collect the key, someone pushed him from behind inside the room. He further deposed that he saw inside the room, Sarvan, Nand Kishore, Tasleem and one more person, whose name he does not remember now, were being beaten by 3-4 persons. After pushing him inside the room, the person, who were giving beatings forcibly snatched currency amount of Rs.2300/- and one mobile phone make Nokia 1110 from his pocket. The witness identified accused Jogender in the Court, as the person, who had pushed him inside the room. He also identified accused Chanderhass, who had snatched his money and mobile phone. He further deposed that he could not see other persons properly.
He further deposed that accused Jogender was armed with sota (danda). He further deposed that those persons also snatched the purse, money and some other articles of Sarvan, Nand Kishore, Tasleem and Surender. Thereafter, all the accused persons ran away from the spot. Thereafter, public persons gathered and chased them and apprehended them. Thereafter, the owner of the garage namely Sh. Mahesh also arrived at the spot and he made call to the police at 100 number. He further deposed that Sarvan and Nand Kishore had sustained injuries on their person from the beatings. Thereafter, they were taken to the hospital for medical treatment. He deposed that his mobile phone and currency amount of Rs.2300/- was recovered from them. The articles belonging to Sarvan were also recovered. He further deposed that he did not come to know the name of remaining accused persons. He further deposed that articles belonging to Sarvan were also recovered. He further deposed that police had obtained his signatures after the apprehension of accused persons and after recovering the robbed articles SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 18 of 47 from the accused persons. He further deposed that he purchased his mobile phone make Nokia 1110 from another rickshaw puller, who was also a rickshaw puller in the same garage, but he did not remember his name. He further deposed that the mobile was old mobile and therefore no purchase bill was available. He further deposed that the mobile phone Ex.PW8/Article-1 and currency notes were released to him on idemnity bond Ex.PW8/A vide order dated 18.02.2011. He failed to identify other accused persons as he deposed that he had not noticed other accused persons except accused Chander Hass. This witness turned hostile on the point of identification of other accused Vinod @ Bidi and Prince.
During his cross-examination by ld. Addl. PP for the State, he admitted that robbed articles were recovered from four persons including Chander Hass. He also admitted that he had stated in his statement, recorded on 08.02.2012, that accused Joginder had pushed him inside the room. He also admitted that he had appended his signatures on Ex.PW6/B, Ex.PW6/D & Ex.PW6/E, the police prepared at the time of recovery from the accused persons.
16. PW9 is ASI Pradeep Kumar. He deposed that in the intervening night of 05/06.11.2010, he was on patrolling duty with Ct. Ramphal. He further deposed that on or about 10 pm, when they had reached near J-Block, Vijay Vihar, Phase-I, they heard a noise of 'pakdo pakdo' made by some public persons. Upon hearing the said noises, they immediately reached there where public persons were found gathered. He further deposed that accused persons namely Prince, Joginder @ David, Vinod @ Bidi and Chander Hash were already apprehended by the public persons and were produced before them by the said public persons. He SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 19 of 47 further deposed that two persons were also found in injured condition. He further deposed that they inquired the injured persons and other public persons present there on which they told them that the aforesaid accused persons had robbed cash and articles from their possession and had also given beatings to them.
He further deposed that in the meantime, PCR Van had also reached at the spot and took both the aforesaid injured persons namely Sarwan and Nand Kishore to BSA Hospital. He further deposed that in the meantime, HC Dharmender alongwith Ct. Rafiq had also reached at the spot and HC Dharmender recorded the statement made by Sh. Surender Singh who was found present at the spot. Thereafter, HC Dharmender left him, Ct. Rafiq and Ct. Ramphal at the spot and went to BSA Hospital. After sometime, HC Dharmender returned back to the spot and handed over rukka to Ct. Mohd. Rafiq. Accordingly, Ct. Mohd. Rafiq went to PS for getting the FIR registered. He further deposed that after sometime, Ct. Mohd. Rafiq alongwith SI Sunil Kumar reached at the spot and produced the copy of FIR and original rukka to SI Sunil as the investigation of this case was marked to him. He further deposed that they had handed over all the aforesaid four accused persons to SI Sunil Kumar and briefed him about the facts of the case. SI Sunil Kumar took the formal search of all the four accused persons. He further deposed that upon formal search of accused Vinod @ Bidi, one wrist watch make Sonata with chain and Rs. 2500/- were recovered from the pocket of his pant. Upon formal search of accused Chanderhas, one mobile phone make Nokia 1110 and Rs. 2300/- were recovered from the pocket of his pant. Upon formal search of accused Prince, photocopy of Voter I-Card in the name of Nand Kishore and Rs. 1000/- were recovered. The said currency notes were found wrapped in photocopy SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 20 of 47 of one Voter I-card. Upon formal search of accused Joginder @ David, one black colour purse containing currency notes of Rs. 1500/-, one photograph and one bank receipt, were recovered. The aforesaid articles were seized vide separate seizure memos and same were witnessed by HC Dharmender and other public witnesses. Thereafter, IO had effected the arrest of accused persons namely Chanderhas, Joginder @ David, Vinod @ Bidi and Prince vide arrest memos already Ex.PW6/E to Ex.PW6/H respectively. Their personal search was also conducted. He further deposed that accused persons also pointed out the place of incident and got recovered two baseball dandas and two wooden dandas, which were seized by IO after sealing the same.
During his cross-examination, he admitted that when he reached on the spot, the public has already apprehended the accused persons. No one has left the spot after seeing him. All the shops were closed at that time. He further deposed that dandas were not in the hands of the accused persons whom he found present on the road. The PCR also came there but he cannot say who had called the police. He denied the suggestion that some shopkeepers had called the police regarding the forcible collection by the police officials from the shopkeepers on the day of Diwali. He further deposed that IO SI Sunil also came on the spot and he recorded his statement on the spot at about 4:45/5 am. He admitted that he had handed over the accused persons to the IO of the case. He also admitted that none of the injured had received injuries in his presence. He further deposed that no statement of the injured was recorded in his presence as the injured was already removed to the hospital. He further deposed that the currency which was recovered in his presence were in the denomination of Rs.500/-X3 & Rs.100/- X8. He SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 21 of 47 admitted that no statement was recorded by the IO upto 5 am till he remains present there.
17. PW10 is Mohd. Tasleem. He is also one of the eye witness in the present case. He deposed that in the year 2010 at about 10:00 p.m. in the night of Diwali, he was present in the garage of Mahesh. He further deposed that some rickshaw puller was also present there but he did not remember their names. He further deposed 4-5 persons came in the garage and they gave beatings to them. They also robbed money, wrist watch and mobile phone of the rickshaw pullers who were present in the garage. They did not rob me. He further deposed that due to darkness he could not see the culprits. He further deposed that Mahesh, owner of the garage reached at the spot later on. He further deposed that none of the rickshaw puller sustained injury in this incident. Police had not made any inquiries from him. He further deposed that he cannot identify those 4-5 boys.
The witness turned hostile as he was resiling from his previous statement.
During his cross-examination by ld. Addl. PP for the State, he admitted that Surender Shah was present in the garage at the time of incident but he cannot say whether his statement was recorded by the police or not. He also stated that due to darkness he could not see the culprits at the time of incident hence he cannot identify them. He denied the suggestion that the intentionally and deliberately suppress the true and incriminating facts of his statement mark PW10/A as he has been won over by the accused persons and want to save them.
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 22 of 4718. PW11 is Birbal. He deposed that he did not remember the date and month of the incident but it was the day of Diwali of year 2010. He further deposed that on that day at about 9:00 p.m, he came to the garage of Mahesh for parking the rickshaw and to hand over the rent of the rickshaw. He further deposed that he alongwith 5-6 persons were striking the crackers near the garage. After hearing the noise, they fled away from there leaving the crackers there. He further deposed that after some time, when he returned at the garage, he found public persons gathered there. Police met him there and made inquiries from him but had not recorded his statement. He further deposed that no incident of robbery took place with him. He further deposed that he did not know whether any incident had taken place at the above said garage. He further deposed no person was apprehended in his presence. This witness also turned hostile as he was resiling from his previous statement.
During his cross-examination by ld. Addl. PP for the State, attention of witness was drawn towards accused persons namely Jogender @ David, Vinod @ Bidi, Chanderhas and Prince but the witness refused to identify the abovesaid accused persons stating that no incident of robbery had taken place in his presence.
19. PW12 Mahesh Prasad is the owner of garage. He deposed that he is running a rickshaw garage at J-141, Vijay Vihar, Delhi. He further deposed that on the day of Diwali i.e. 05.11.2010, he had gone ho his house at about 9:30/10:00 p.m. and was not present at the garage. He further deposed that one of his relative Surender Shah informed him that 3-4 rickshaw pullers have been beaten up by 4-5 persons and money has been snatched from them. He deposed that his house is at SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 23 of 47 a distance of two galis from his garage and he immediately reached his garage but did not find anybody in the garage. He further deposed that he came to know that the snatchers have been caught and also saw that Nandkishore, Birbal, Raj Kishor, Tasleem Kumar and Sharvan were running after them. Later on, he came to know that Nandkishor had received the fracture/injuries in his leg and the Sharvan was also complaining of chest pain during the incident. He telephoned the police at 100 number. PCR officials alongwith PCR van reached there. PCR officials took Nandkishor and Sharvan to BSA hospital. He further deposed that some police officials had also reached at the spot. Thereafter, statement of Surender Shah was recorded by the police officials and a case was registered. He further deposed that he does not know the four accused persons present in the Court. He did not see them at the spot. He further deposed that no recovery was effected from them in his presence.
This witness also turned hostile as he was resiling from his previous statement.
During his cross-examination by ld. Addl. PP for the State, he deposed that his statement was not recorded by the police. He admitted that his relative Surender Shah told him that accused persons had beaten up 4-5 boys including Nandkishor and Sharvan and had snatched cash and some articles from those persons.
During his cross-examination by ld. defence counsel, he admitted that police had not recorded his statement and he was never called to the PS.
20. PW13 is HC Sukhbir Singh. He deposed that on 06.11.2010, he was SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 24 of 47 posted as MHC(M) at PS Vijay Vihar. He further deposed that on that day, SI Sunil Kumar had deposited the case property including five seizure memos and two personal search memo, seized in case FIR No. 384/10, PS Vijay Vihar, in Malkhana. He further deposed that he had made entry at serial no. 328/10 in register no. 19 in this regard. Photocopy of the relevant page containing the aforesaid entry is Ex.PW13/A (OSR).
During his cross-examination, he admitted that there is an overwriting in respect of FIR number in entry no.328/10. He volunteered stated the entries in register no. 19 are serial wise and prior to depositing the case property in the present case, the case property of case FIR no. 383/10, was deposited in Malkhana and as such there is no overwriting.
21. PW14 is Mr. Shravan Kumar. He is the eye witness/injured in the present case. He deposed that in the year 2010, he was residing as tenant at premises no. E-128, Phase 2, Vijay Vihar, Delhi along with his co-villager namely Raj Kishore. He further deposed that he and Raj Kishore used to work as rickshaw pullers. He further deposed that though he does not remember the exact date, but in the month of November 2010 on the festival of Diwali, on or about 10:00 pm, he went to rickshaw garage of Mahesh for depositing the rent of the rickshaw. He also deposed that he had parked the rickshaw at inside the garage and thereafter he went to pay rent to Mohd. Taslim, mechanic in the garage of Mahesh. While he was paying the rent to Mohd. Taslim, suddenly 4 persons came there. He identified all the 4 accused persons present in Court. He further deposed that three of the aforesaid four accused persons entered inside the room where he was paying the SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 25 of 47 rent to Mohd. Taslim and one of the aforesaid accused had bolted the kunda of the room from outside. He further deposed that the three accused persons who had entered inside the room stated to them that they were the officers of Crime Branch and they demanded whatever they were carrying. He further deposed that along with him, Mohd. Taslim, Nand Kishore and Birbal were present in the said room. They all had refused to hand over their money to them. Upon this, the accused persons took out the hockies and dandas which they were hiding in back and started assaulting them with the said hockies and dandas. He further deposed that after sometime, the fourth accused present in court forcibly took Raj Kishore inside the said room after opening the kunda of the door of the said room and thereafter, all the four accused persons also gave beatings to Raj Kishore. He further deposed that one of the accused persons present in court forcibly took out his purse which he had kept in his pocket containing Rs. 1500/-. The remaining accused persons robbed the money from the possession of aforesaid persons and also robbed the mobile phone of Kishore and also robbed the wrist watch of Nand Kishore. Thereafter, all the four accused persons starting running away. He further deposed that while they were running he and aforesaid persons along with 2-3 other boys of garage chased the accused persons and they managed to apprehend accused Prince. He further deposed that thereafter, their garage owner Mahesh had also reached at the spot and they narrated the incident to them. He further deposed that Mahesh had made a call at no. 100. Thereafter, they all made efforts for search of associates of Prince and managed to apprehend accused Joginder, Vinod and Chander Haas. He further deposed that the police officials took him and Nand Kishore to Dr. BSA Hospital where they were medically examined. During SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 26 of 47 investigation, his robbed purse containing Rs. 1500/- was recovered from the possession of accused Joginder @ David.
He further deposed that he had obtained his purse and recovered cash of Rs. 1500/- on superdari. He has identified the indemnity bond/superdarginama Ex.PW14/A executed by them at the time of obtaining the case property at superdari. He has identified the photocopies of currency notes and photograph of his purse available on judicial file. The photograph of purse is Ex. PW14/B and the photocopies of currency notes are already Ex. P6(collectively). He has further deposed that he cannot identify the weapons of offence i.e. dandas etc. even if shown to him as he was not properly able to see the said dandas which were used by the accused persons during the commission of offence.
During his cross-examination, he stated that he used to earn Rs. 200- 300/- per day during the relevant period. He used to keep the said amount with him. He voluntarily stated that since it was days of Diwali festival, he had saved the money for purchasing the relevant items. He further stated that he did not go to market for purchasing on that day. He denied the suggestion that infact they were gambling in the said garage on the date of incident. He further deposed that when he used to drive rickshaw the persons who used to hire his rickshaw used to pay to him currency notes in the denomination of Rs. 10/-, Rs. 20/- and Rs. 50/-. He further deposed that when he went to pay the rent of rickshaw in the garage, along with him Mohd. Taslim, Birbal and Nand Kishore were present in the said room. The said garage was at some distance away from the market. He further stated that it is not within his knowledge as to whether any quarrel has taken place between market people and police officials on that night. Mohd. Taslim, Birbal and Nand SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 27 of 47 Kishore belonged to their native village however, he knew them after he had come to Delhi. Police recorded his statement at PS. Police did not ask anything from him except regarding the identification of accused persons. He denied the suggestion that the quarrel had taken place on issue of gambling or he had lost certain money in the gambling or that had demanded certain money, the accused persons refused to return the money or that he along with aforesaid persons had created a false story that they had been robbed by the accused persons.
22. PW-15 is Ct. Ramphal. He deposed that in the intervening night of 05/06.11.2010, he was on patrolling duty with HC Pradeep Kumar. He further deposed that it was the night of festival of Dewali. He further deposed that while patrolling on or about 10 pm, when they had reached at near J-Block, Vijay Vihar, Phase-I, they heard a noise of 'pakdo pakdo' made by some public persons. Upon hearing the said noises, they immediately reached there where public persons were found gathered. He further deposed that accused persons namely Prince, Vinod @ Bidi, Chanderhas and Joginder @ David, were already apprehended by the public persons and were produced before them by the said public persons. He further deposed that two persons were also found in injured condition whose names were revealed to them as Sharvan and Nand Kishore. He further deposed that upon enquiry, they told them that the aforesaid accused persons had robbed cash and articles from their possession and had also gave beating to them.
He further deposed that in the meantime, PCR Van had also reached at the spot and took both the aforesaid injured persons to BSA Hospital. He further deposed that in the meantime, HC Dharmender alongwith Ct. Rafiq had also SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 28 of 47 reached at the spot. HC Dharmender recorded the statement made by Sh. Surender Singh who was found present at the spot. Thereafter, HC Dharmender left him, Ct. Rafiq and HC Pradeep at the spot and went to BSA Hospital. After sometime, HC Dharmender returned back to the spot and handed over rukka to Ct. Mohd. Rafiq. Accordingly, Ct. Mohd. Rafiq went to PS for getting the FIR registered. He further deposed that after sometime, Ct. Mohd. Rafiq alongwith SI Sunil Kumar reached at the spot and produced the copy of FIR and original rukka to SI Sunil as the investigation of this case was marked to him. He further deposed that they had handed over all the aforesaid four accused persons to SI Sunil Kumar and briefed him about the facts of the case. SI Sunil Kumar took the formal search of all the four accused persons. He further deposed that upon formal search of accused Vinod @ Bidi, one wrist watch make Sonata, one golden colour chain and Rs. 2500/- were recovered from the pocket of his pant. Upon formal search of accused Chanderhas, one mobile phone make Nokia 1110 and Rs. 2300/- were recovered from the pocket of his pant. Upon formal search of accused Prince, photocopy of Voter I-Card in the name of Nand Kishore and Rs. 1100/- were recovered. The said currency notes were found wrapped in photocopy of one Voter I-card. Upon formal search of accused Joginder @ David, one black colour purse containing currency notes of Rs. 1500/-, one photograph and one bank receipt, were recovered. The aforesaid articles were sealed by IO in separate pullandas and were sealed vide separate seizure memo and same were witnessed by HC Dharmender and other public witnesses. Thereafter, IO had effected the arrest of accused persons namely Chanderhas, Joginder @ David, Vinod @ Bidi and Prince vide arrest memos already Ex.PW6/E to Ex.PW6/H respectively. Their personal search SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 29 of 47 was also conducted. He further deposed that accused persons also pointed out the place of incident and got recovered two baseball bats and two wooden dandas, which were seized by IO after sealing the same. He further deposed that one sealed cloth parcel sealed with the seal of Court was opened and the same found containing cash sum of Rs. 1000/- wrapped in photocopy of Voter I-Card in the name of Nand Kishore. Same were shown to the witness and witness identified the same being recovered from the possession of accused Prince Ex.P3.
During his cross-examination by ld. defence counsel, he deposed that departure entry was made during the intervening night of 05/06-11-2010 when he alongwith HC Pardeep Kumar had left PS for patrolling duty at about 5.30 p.m. He voluntarily stated that said departure entry was made by Duty Officer. He deposed that he did not remember the DD entry number of said departure entry. He further stated that they had reached at the place of occurrence somewhere about 9.45- 10.00 pm or so. He could not tell the name of any particular public person who had informed them regarding the incident in question. Incident had already taken place by the time they had reached there. It is not within his knowledge as to who had made PCR call at 100 number. He further deposed that PCR officials had reached at the spot somewhere around 10.35-10.40 pm or so. He further deposed that HC Dharmender alongwith Ct. Rafiq had reached at the spot at about 10.50- 11.00 pm or so. Both the said officials left for BSA hospital within five-ten minutes thereof. He further deposed that before leaving for BSA hospital, HC Dharmender had recorded statement of public person namely Shravan. He further deposed that HC Dharmender had returned back to spot from hospital at about 12:30 am. No senior police officer reached at the spot in between the said period.
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 30 of 47He further deposed that he himself neither took search of any of the accused persons nor made any enquiries from any of them during the said period. He further deposed that in his presence, IO SI Sunil Kumar had recorded statement of 6-7 witnesses. He further deposed that his statement was recorded by SI Sunil Kumar on 06.11.2010 during afternoon but he did not remember the exact time. He did not presently remember the colour of the clother worn by aforesaid three accused persons at that time. He further stated that they had left the spot somewhere around 5.00 am on 06.11.2010.
He further deposed that so far as he remembers all the relevant memos prepared by IO at the spot, were signed by HC Dharmender and by one of he public witnesses but he did not presently remember his name. He himself did not sign any of those memos. He further deposed that accused persons were formally arrested at around 1.00 am or so. He again said that they were arrested at around 3.00 am or so. He denied the suggestion that the FIR number mentioned in column no. 3 of the arrest memos Ex.PW6/E to Ex.PW6/H are in different ink or in different handwriting.
23. PW16 is HC Dharmender. He deposed that on the intervening night of 05/06.11.2010, he was posted at PS Vijay Vihar and was on night emergency duty from 8 pm to 8 am. He further deposed that on that day, DD No. 53B was marked to him and accordingly, he alongwith Ct. Mohd. Rafiq went to the place of information i.e. near J-Block, Vijay Vihar, Phase-I. He further deposed that upon reaching there, they found public persons being gathered there and HC Pradeep and Ct. Ramphal were also present there. He identified the accused persons SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 31 of 47 namely Prince, Vinod @ Bidi, Chanderhas and Joginder @ David, present in the Court who were already apprehended by the public persons and were produced before HC Pradeep by the said public persons. He also deposed that two persons who were in injured condition whose names were revealed to them as Sharvan and Nand Kishore, were already taken to the hospital by the PCR Van. Upon inquiry, the public persons as well as the aforesaid police officials told him that the aforesaid accused persons had robbed cash and articles from the possession of aforesaid injured persons and had also gave beating to them.
At the spot, he had recorded the statement made by Sh. Surender Singh who was found present at the spot. Thereafter, he had left Ct. Ramphal, Ct. Rafiq and HC Pradeep at the spot and went to BSA Hospital. In BSA Hospital, he had collected the MLCs of Sharwan and Nand Kishore. He further deposed that he had made enquiries from them. From the hospital, he had returned back to the spot and prepared rukka Ex.PW16/A and handed over the said rukka to Ct. Mohd. Rafiq. Accordingly, Ct. Mohd. Rafiq went to PS for getting the FIR registered. After sometime, Ct. Mohd. Rafiq alongwith SI Sunil Kumar reached at the spot and produced the copy of FIR and original rukka to SI Sunil as the investigation of this case was marked to him. We had produced all the aforesaid four accused persons before SI Sunil Kumar and briefed him about the facts of the case. He further deposed that SI Sunil Kumar took the formal search of all the four accused persons. Upon formal search of accused Vinod @ Bidi, one wrist watch make Sonata, one golden colour chain and Rs. 2500/- were recovered from the pocket of his pant.
He further deposed that upon formal search of accused Chanderhas, SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 32 of 47 one mobile phone make Nokia 1110 and Rs. 2300/- were recovered from the pocket of his pant.
He deposed that upon formal search of accused Prince, photocopy of Voter I-Card in the name of Nand Kishore and Rs. 1100/- were recovered. The said currency notes were found wrapped in photocopy of one Voter I-card.
He further deposed that upon formal search of accused Joginder @ David, one black colour purse containing currency notes of Rs. 1500/-, one photograph and one bank receipt, were recovered. The aforesaid articles were sealed by IO in separate pullandas and were sealed vide separate seizure memos already Ex.PW6/B, Ex.PW6/C, Ex.PW6/D and Ex.PW6/E respectively. All said memos bear his signatures at points-C. Thereafter, IO had effected the arrest of accused persons namely Chanderhas, Joginder @ David, Vinod @ Bidi and Prince vide arrest memos already Ex.PW6/E to Ex.PW6/H respectively. All said memos bear his signatures at points-C. He also deposed that their personal search was also conducted vide memos Ex.PW16/B to Ex.PW16/E respectively, all bearing his signatures at points-C. Accused persons had also pointed out the place of incident and got recovered two baseball bats and two wooden dandas, which were seized by IO after sealing the same with the seal of SKR, vide seizure memo Ex.PW16/F, which bears his signature at point-C. He further deposed that during investigation, IO had recorded his statement in this regard.
He further deposed that one cloth parcel opened during his testimony containing cash sum of Rs. 1000/- wrapped in photocopy of Voter I-Card in the name of Nand Kishore shown and he identifies the same being recovered from the SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 33 of 47 possession of accused Prince. Same are already Ex.P3.
During his cross-examination, he stated that DD No. 53B was marked to him at about 10.31 pm and he reached at the spot on or about 10.50 pm. on a motorcycle. He further stated that he cannot recollect the number of public persons who were found gathered at the spot. He further deposed that he left the spot for the hospital on or about 12 night. He further stated that he had not recorded statement of any other public person except of Sh. Surender Saha upon reaching at the spot. He remained in the hospital for about 15-20 minutes. He further stated that from the hospital, he came back to the spot at about 12.45 am. Except SI Sunil, nobody else had taken the formal search of accused persons.
24. PW-17 is SI Satyavir Singh. He deposed that on 15.11.2010, further investigation of the present case was marked to him. During investigation, he had collected result on MLC of injured Nand Kishore from BSA Hospital on 01.12.2010. As the nature of injury was opined to be grievous on the said MLC, he had added offence U/s 397 IPC in the investigation. He had also recorded the supplementary statements of Sh. Surender Shah and of Sh. Raj Kishore. Thereafter, he had prepared the chargesheet.
25. PW-18 is Inspector Sunil Kumar. He deposed that in the intervening night of 05/06.11.2010, DD No. 53B was marked to HC Dharmender and accordingly, he alongwith Ct. Mohd. Rafiq went to the place of information i.e. near J-Block, Vijay Vihar, Phase-I. He further deposed that HC Dharmender through Ct. Mohd. Rafiq got the FIR no. 384/10 registered at the PS. After the SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 34 of 47 registration of the FIR, the investigation of the present case was marked to him. Accordingly, he alongwith Ct. Mohd. Rafiq reached at the spot and Ct. Mohd. Rafiq produced the copy of FIR and original rukka to him. He further deposed that at the spot, HC Dharmender alongwith staff and public persons had produced accused persons namely Prince, Vinod @ Bidi, Chanderhas and Joginder @ David, before him and briefed him about the facts of the case. He took the formal search of all the four accused persons. Upon formal search of accused Vinod @ Bidi, one wrist watch make Sonata, one golden colour chain and Rs. 2500/- were recovered from the pocket of his pant. Upon formal search of accused Chanderhas, one mobile phone make Nokia 1110 and Rs. 2300/- were recovered from the pocket of his pant. Upon formal search of accused Prince, photocopy of Voter I-Card in the name of Nand Kishore and Rs. 1000/- were recovered. The said currency notes were found wrapped in photocopy of one Voter I-card. Upon formal search of accused Joginder @ David, one black colour purse containing currency notes of Rs. 1500/-, one photograph and one bank receipt, were recovered. The aforesaid articles were sealed by him in separate pullandas and were sealed vide separate seizure memos already Ex.PW6/B, Ex.PW6/C, Ex.PW6/D and Ex.PW6/E respectively. All said memos bear his signatures at points-X. Thereafter, he had effected the arrest of accused persons namely Chanderhas, Joginder @ David, Vinod @ Bidi and Prince vide arrest memos already Ex.PW6/E to Ex.PW6/H respectively. Their personal search were also conducted vide memos already Ex.PW16/B to Ex.PW16/E respectively. He further deposed that accused persons had also pointed out the place of incident and got recovered two baseball bats and two wooden dandas, which were seized by him after sealing the same with the seal SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 35 of 47 of SKR, vide seizure memo already Ex.PW16/F. He further deposed that during investigation, he had recorded the statement of witnesses in this regard. He had also prepared rough site plan Ex.PW18/A of the place of occurrence. He had also recorded the disclosure statement Ex.PW18/B made before him by accused Vinod @ Bidi. He had also recorded the statement of witnesses and deposited the case property in Malkhana. Thereafter, on 07.11.2010, further investigation of the present case was marked to ASI Satbir as per the direction of SHO.
During his cross-examination by ld. counsel for accused Prince, he denied the suggestion that no such recoveries were effected from the possession of accused Prince as deposed by him during his examination-in-chief or that the same was planted upon the said accused to falsely implicate him in the present case. He further denied the suggestion that he had not carried out fair investigation. He also denied the suggestion that while playing gambling as it was the night of Diwali, there was a quarrel amongst the accused persons on the issue of gambling or that due to the said issue, the complainant had created a false story and falsely implicated accused Prince in the present case.
APPRECIATION OF EVIDENCE OF MATERIAL WITNESSES
26. The present case is related with the direct evidence. In a case where there is an eye witness the reliability of the witness has to be testified. It is the quality and not the quantity of witnesses that is required to prove a case. Even a single witness, if he is reliable and trustworthy may be sufficient to convict. In the SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 36 of 47 present case, the prosecution has produced six eye witnesses i.e. Surender (PW6), Nand Kishore (PW7), Raj Kishore (PW8), Mohd. Tasleem (PW10), Birbal (PW11), Shravan Kumar (PW14). They all came to prove the incident in question.
The relevant portion of the testimony of PW6 Surender is as under:
".......In the meanwhile, four boys entered inside the garage. One boy remained out side the room, but inside the garage and other three boys came inside the room. the said room is also inside the garage. The boy, who was standing outside the room locked the door by latches. The three boys came inside the room, told that they were from Crime Branch and they also told to hand over the articles, which we have possessed. When, we refused to hand over the articles and money, then all the three boys took out the dandas from their back side form hidden position and started beating us i.e. Nand Kishore, Sravan, Raj Kishore, Birbal, Mohd. Taslim and myself. In the meanwhile, the fourth boy, who was standing outside also came inside the room, after opening the latches, and he also gave beatings to us by danda. Accused Vinod @ Bidi robbed currency amount of Rs.2500/- and my watch from me. The abovesaid accused persons also robbed my other colleagues by snatching money. After committing robbery and snatching the articles, the abovesaid four boys tried to ran away and we also chased them....."
The relevant portion of the testimony of PW7 Sh. Nand Kishore is as under :
"...... At that time, Surender, Sarvan, Birbal apart from Tasleem were also present. In the meantime, four outsider persons came, three entered in the room and one closed the door from outside. They started beating me and Sarvan, with danda, without any provocation. After sometime, the fourth one also entered inside the room and he also gave beatings to us. I sustained injury and I fell down....."
The relevant portion of the testimony of PW8 Sh. Raj Kishore is as SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 37 of 47 under:
".....There is one room constructed in the garage and when he went towards the room to collect the key, someone pushed me from behind inside the room. I saw inside the room, Sarvan, Nand Kishore, Tasleem and one more person, who name I do not remember now, were being beaten by 3-4 persons. After pushing me inside the room, the person, who were giving beatings forcible snatched currency amount of Rs.2300/- and one mobile phone make Nokia 1110 from my pocket......"
The relevant portion of the testimony of PW10 Mohd. Tasleem is as under:
".....4/5 persons came in the garage and they gave beatings to us. The also robbed money, wrist watch and mobile phone of the rickshaw pullers who were present in the garage...."
The relevant portion of the testimony of PW11 Birbal is as under:
"......I alongwith 5-6 persons were striking the crackers near the garage. After hearing the noise, we fled away from there leaving the crackers there. After some time, when I returned at the garage, found public persons gathered there. Police met me there......."
The relevant portion of the testimony of PW14 Mr. Shravan Kumar is as under:
".... While I was paying the rent to Mohd. Taslim, mechanic in the garage of Mahesh. While I was paying the rent to Mohd. Taslim, suddenly 4 persons present in court today correctly identified came there. At this stage, witness has correctly identified all the 4 accused persons present in court today by literally pointing out towards them. Three of the aforesaid four accused persons entered inside the room where I was paying the rent to Mohd. Taslim and one of the aforesaid accused bolted the kunda of the room from outside. The three accused persons who had entered inside the room stated to us that they were the officers of Crime Branch SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 38 of 47 and they demanded whatever we were carrying. Along with me and Mohd. Taslim, Nand Kishore and Birbal were present in the said room. We all had refused to hand over our money to them. Upon this, the accused persons took out the hockies and dandas which they were hiding in back and started assaulting us with the said hockies and dandas. After sometime, the fourth accused present in court today forcibly took Raj Kishore inside the said room after opening the kunda of the door of the said room and thereafter, all the four accused persons also have beatings to Raj Kishore. One of the accused persons present in court today forcible took out my purse which he had kept in my pocket containing Rs.1500/-. The remaining accused persons robbed the money from the possession of aforesaid persons and also robbed the mobile phone of Kishore and also robbed the wrist watch of Nand Kishore. Thereafter, all the four accused persons starting running away....."
From the statements of all these PWs, it is clear that they all have consistently deposed as per the case of prosecution about the incident in question except PW11. PW6 and PW14 have identified all the accused persons in the Court during their testimony and PW8 Raj Kishore has identified the accused Joginder @ David and Chander Hass in the Court. However, PW7 Nand Kishore and PW10 Mohd. Tasleem have not fully supported the case of the prosecution as they failed to identify the accused persons but they also have stated about the incident in question that all the accused persons gave beatings to them and PW 10 deposed that they all robbed money, wrist watch and mobile phone of the rickshaw pullers who were present in the garage. As per statements of PW6 (complainant/eye- witness), PW8 Raj Kishore (another eye witness) and that of PW14 (eye witness/injured), all the accused persons were apprehended on the spot and all the robbed articles were recovered from the possession of the accused persons after the incident. However, there are minor contradictions regarding the apprehension of accused persons but this does not falsify the evidence of prosecution witnesses.
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 39 of 47From the testimony of PW6 and PW14, it is also evident that the accused persons had impersonated themselves as the officials of the crime branch in order to rob them.
WHETHER THE TESTIMONIES OF THE WITNESSES GET CORROBORATION FROM THE MEDICAL EVIDENCE.
27. The relevant witnesses produced by the prosecution in this regard were PW1 and PW3.
The relevant portion of the testimony of PW1 Dr. Arvind Kumar is as under:
"..... On 05.11.2010, I medically examined patient Nand Kishore, when he was referred to Ortho Department by Dr. Deepti Bhalla. My observations in respect of orthopedic point of view is a encircled point X on MLC Mark A. I found pain and swelling on the right foot. Tenderness over right calcaneum (i.e. back portion of heel). I also opined the nature of injuries as grievous on the basis of X-ray Film No. 2854, dt. 05.11.2010, which show fracture in Calcaneum in right foot..."
The relevant portion of the testimony of PW3 Deepti Bhalla is as under:
".... On that day, at around 11.25 p.m. one injured Nand Kishore s/o Ram Lakhan was brought to our department with alleged history of assault by the PCR. On examination following injuries were found on his body:
1. Diffused swelling and tenderness was present over both the ankle joints. Restriction of mobility was present......"
".....On the same day, at around 11.30 p.m. another injured Shrawan Kumar S/o. Mohinder Dass was also brought to our Casualty Ward by the PCR with the alleged history of assault. On examination, following injuries were observed:SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 40 of 47
1. Multiple small size abrasions were present over the left lower back behind the left ear.
2. Multiple bruises were present over the face, left side of the neck, both the shoulders, left side of the back......"
PW1 Dr. Arvind Kumar, Senior Resident (Ortho) has opined the nature of injury as grievous on the basis of X-ray of PW7 Nand Kishore, which shows fracture in Calcaneum in right foot. PW3 Dr. Deepti Bhalla who came to prove the MLC of injured Nand Kishore (PW7) and Shravan (PW14) as Ex.PW3/A and Ex. PW3/B also corroborates the version of prosecution witnesses. The injuries to PW7 and PW14 have neither been opined to be self-inflicted nor they appear to be so or even suggested to be so in the cross-examination of the relevant prosecution witnesses.
28. Other witnesses produced by the prosecution i.e. PW9 ASI Pradeep Kumar and PW15 Ct. Ramphal also supports the case of the prosecution who deposed that on 5/6.11.2010, they were on patrolling duty at about 10.00 p.m. and when they reached near J Block, Vijay Vihar, Phase-I, they heard the noise of 'pakdo-pakdo' of public persons. They deposed that when they reached there where public persons were gathered, four accused persons namely Prince, Joginder @ David, Vinod @ Bidi and Chander Hass were already apprehended by the public persons. Two persons were also found in injured condition. They inquired the injured persons and other public persons present there on which they told that the abovesaid accused persons had given beatings to them and they had also robbed cash and articles from them. PW16 HC Dharmender to whom DD No. 53B was SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 41 of 47 marked also identified the accused persons in the Court who were already apprehended by the public persons and were produced before HC Pradeep by the said public persons. He also deposed that two persons who were in injured condition whose names were revealed to them as Shravan and Nand Kishore, were already taken to the hospital by the PCR Van. He further deposed that upon enquiry, the public persons as well as the aforesaid police officials told him that the aforesaid accused persons had robbed cash and articles from the possession of aforesaid injured persons and had also gave beating to them.
29. Other witness PW12 Mahesh Prasad, who is the owner of the garage produced by prosecution however, did not fully support the case of the prosecution as he failed to identify the accused persons at the time of his deposition before the Court and also deposed that no recovery was effected from them in his presence. However, he admitted that one of his relative Surender Shah informed him that 3-4 rickshaw pullars have been beaten up by 4-5 persons and money has been snatched from them. The same is relevant u/s 6 of the Indian Evidence Act as the information by Surender Shah can be considered as a part of same transaction. He also deposed during his testimony that he came to know that Nand Kishore had received the fracture/injuries in his leg and the Shravan was also complaining of chest pain during the incident. He also admitted about making of call at 100 number regarding the incident and police officials taking the injured Nand Kishore and Shravan to BSA hospital. Thus, the testimony of this witness also corroborates the version of PW6 and PW14 to some extent.
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 42 of 4730. Another eye witness produced by prosecution is PW11 Birbal. This witness had completely turned hostile and did not support the case of the prosecution but there are other prosecution witnesses also i.e. PW6 (complainant/eye witness) and PW14 (eye witness/injured) who fully supports the case of the prosecution. PW11 turned hostile this does not mean that other witnesses are not reliable witnesses.
EVIDENCE REGARDING RECOVERY FROM THE ACCUSED PERSONS
31. It is the case of the prosecution that the accused persons were apprehended on the spot. Immediately thereafter seizure memos were prepared. Upon formal search of accused Vinod @ Bidi, currency amount of Rs.2500/- and wrist watch make Sonata were recovered from the pocket of his pant, which were seized vide seizure memo Ex.PW6/B. The wrist watch Ex.P1 and photocopy of currency amount Ex.P2 were correctly identified by PW6 Surender to be robbed from his possession during his testimony. He also deposed during his testimony that the currency amount of Rs.2500/- was released to him on Indemnity Bond Ex.PW6/J. Upon formal search of accused Chanderhas, one mobile phone make Nokia 1110 and Rs.2300/- were recovered from the pocket of his pant, which were seized vide seizure memo Ex.PW6/C. PW8 Raj Kishore deposed during his testimony that accused Chanderhas had snatched his money and mobile phone. PW8 further deposed during his testimony that the mobile phone and currency notes SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 43 of 47 were released to him on indemnity bond Ex.PW8/A vide order dated 18.02.2011.
Upon formal search of accused Joginder @ David, one black colour purse containing currency notes of Rs.1500/-, one photograph and one bank receipt were recovered, which were seized vide seizure memo Ex.PW6/E. PW14 deposed during his testimony that his robbed purse containing Rs. 1500/- were recovered from the possession of accused Joginder @ David. PW14 Sharvan during his testimony also identified the indemnity bond/superdarginama Ex.PW14/A executed by him at the time of obtaining the case property at superdari. PW6 also identified the photocopy of currency notes Ex.P6 and photograph of purse Ex.PW14/B. All the abovesaid witnesses also corroborates the version of the complainant. However, PW7 Nand Kishore had turned hostile on the point of identification of robbed articles by saying that "I sustained injury and I fell down, I do not know whether they had snatched anything from my person, as I had fell down. I became unconscious'. Non identification of the robbed articles by PW7 does not create doubts on the credibility of other eye witnesses. The argument of ld. counsels that none of alleged victim can prove ownership of their respective robbed articles i.e. mobile phone or wrist watch etc. by submitting the invoices, receipts etc for the same, is not of much value as in general people do not carry bills/invoices with them and it is well known that all the victims are rickshaw pullers and during their testimony PW6 deposed that there is welding mark on his wrist watch and regarding mobile phone PW8 deposed that he purchased his mobile phone make Nokia 1110 from another rickshaw puller, who was also a rickshaw puller in the same garage, but he did not remember his name. He further deposed that the mobile was old mobile and therefore no purchase bill was available.
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 44 of 47APPLICABILITY OF SECTION 114(A) INDIAN EVIDENCE ACT
32. In the present case, the accused persons were arrested in a short interval after the incident. As per the seizure memo Ex.PW6/B to Ex.PW6/E, robbed articles were recovered from the possession of Vinod @ Bidi, Chanderhas, Joginder @ David and Prince. In such circumstances, the presumption u/s 114(a) Indian Evidence Act read with Section 410 IPC is also applicable as the accused persons were found to be in possession of the stolen property soon after the incident. The relevant sections 114(a) and 410 IPC are reproduced herein under:
SECTION 114 (A) OF INDIAN EVIDENCE ACT:
"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; SECTION 410 of IPC "Stolen property.------Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which [***] criminal breach of trust has been committed, is designated as "stolen property', [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without [india]]. But, if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property."
Nothing has come on behalf of the accused persons to rebut the SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 45 of 47 presumption. Articles were subsequently identified by the complainants namely PW6, PW8 and PW14.
REGARDING RECOVERY OF WEAPON
33. PW16 HC Dharmender during his testimony deposed that accused persons had also pointed out the place of incident and he got recovered two baseball bats and two wooden dandas, which were seized by IO after sealing the same with the seal of SKR, vide seizure memo Ex.PW16/F. The same has not been correlated by the witnesses who came to prove MLC but the same is not fatal in view of the testimonies of PW6 and PW14 who have specifically mentioned the kind of articles used by the accused persons to inflict injuries.
CONCLUSION
34. For proving its case, prosecution had produced six eye witnesses. Out of which, PW6 and PW14 have fully supported the case of prosecution and identified all the accused persons correctly. PW7 also supported the case of prosecution and identified two of the accused persons out of four. All other eye witnesses however not fully supported the case of the prosecution but all of them admitted the incident in question except PW11 Birbal, who completely turned hostile. During the incident, PW7 and PW14 had also received grievous and simple injuries respectively which find corroboration from the testimonies of PW1 and PW3. From the aforesaid discussion, the identity and presence of accused persons at the spot at the relevant SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 46 of 47 time stands proved. All the robbed articles including the baseball bats/dandas used by accused persons during robbery were recovered from the possession of the accused persons also stand proved. From the deposition of PW6/complainant and PW14, the fact regarding impersonating themselves as the officials of Crime Branch to rob them also stand proved. 'Officials of Crime Branch' is a branch separate in itself. There is no reason to disbelieve the witnesses. From the aforesaid testimonies and evidences the prosecution has been successful to prove the case beyond reasonable doubt. Therefore, all the accused persons namely Joginder @ David, Vinod @ Bidi, Chanderhas and Prince are held guilty for the offences u/s 392/397/411/419/34 IPC.
35. Copy of the judgment be supplied to accused persons free of cost.
Announced in the open Court
today i.e. on 16th September, 2022 (Shivaji Anand)
Additional Sessions Judge-04
North District/Rohini Courts/Delhi
SC No. 580672016, FIR no. 3842010 PS Vijay Vihar, State Vs Joginder @ David Page 47 of 47