Delhi District Court
State vs Sanjay Kumar Etc on 7 August, 2023
IN THE COURT OF MS. AMBIKA SINGH :ASJ-02:WEST
DISTRICT, TIS HAZARI COURT : NEW DELHI
STATE VS. SANJAY AND ANR
DLT No. DLWT010003252013
SC No. 56354/2016
FIR NO. 74/2013
PS Anand Parbat
Date of commission of offence 06.05.2013
Name of complainant Ms. Sweety
Name of accused persons. (1) Sanjay Kumar
S/o Sh. Ram Parvesh
(2) Mohd. Firoz
S/o Mohd. Khurshid
Offence complained of 420/468/471/394/397/411 IPC
Plea of the accused Pleaded not Guilty
Arguments heard/ order reserved 04.08.2023
Final order Accused Md. Firoz is convicted for
the offence u/s 394/397/411/420 r/w
34 IPC/471 IPC and Accused
Sanjay is convicted for 420/34 IPC.
Date of such order 07.08.2023
Brief statement of the reasons for the decision:
1.Briefly stated, it is the case of the prosecution that on 06.05.2013, an information was received vide DD No. 11A regarding one lady being stabbed while committing of FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 1 of 47 PS Anand Parbat robbery at F-109, Gulshan Chowk, Baljeet Nagar. SI Kamal went to the place of incident along with Ct. Raja Rao and found out that the injured had been shifted to the hospital by PCR Van. It is alleged that on 06.05.2013 at about 2:00 AM at Jhuggi of Gulshan Chowk, Baljeet Nagar, Anand Parbat, Delhi, accused Mohd. Firoz robbed Ms. Sweety of a sum of Rs.2,000/-, two mobile phones and a pair of gold ear rings and while committing robbery inflicted knife injuries on Ms. Sweety and caused simple sharp injuries to her and also while committing the above said robbery, accused Mohd. Firoz used a deadly weapon i.e. knife. Lastly, on 02.06.2013 from the rented house of accused Mohd.Firoz i.e. E-5/31, Rahul Garden, Village Bheta, Hazipur, Loni, Ghaziabad, accused Mohd. Firoz got recovered one pair of gold ear rings/tops and on 02.06.2013 from the house of one Neeraj situated at Village Bheta, Hazipur, Loni, Ghaziabad, accused Mohd. Firoz got recovered a mobile phone make Samsung Duos Model S-5302 having IEMI No 353877055512390 which was sold to Neeraj by accused Mohd. Firoz for sum of Rs.5,000/- which were dishonestly received or retained by accused Mohd. Firoz knowing that such property was stolen property belonging to Ms. Sweety. There are allegations against both the accused persons that after 06.05.2013, both the accused persons fraudulently and dishonestly forged a back date bill of mobile phone make samsung Duos Model S-5302 having IMEI No. FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 2 of 47 PS Anand Parbat 353877055512390 with intention to conceal the identity of said mobile phone from complainant Ms. Sweety and to sell the same to Neeraj as genuine. Further, after 06.05.2013 both the accused persons fraudulently and dishonestly forged a back date bill dated 24.02.2013 of mobile phone make samsung Duos Model S-5302 having IMEI No. 353877055512390 with intention to cheat Ms. Sweety and Neeraj. Further, in between 06.05.2013 and 02.06.2013, both the accused persons fraudulently and dishonestly sold the mobile phone make sumsang Duos Model S-5302 having IMEI No. 353877055512390 for sum of Rs.5,000/- with the help of forged bill no. 726 dated 24.02.2013 which was prepared by both the accused persons use that document for the purpose of cheating.
2. After considering the material on record and hearing the Ld. PP and accused persons, a prima facie case for the offence punishable under section U/s 420/468/471/34 IPC was made out against the accused Sanjay Kumar and offence u/s 420/468/471/394/397/411 IPC was made against the accused Mohd.Firoz to which the accused persons pleaded not guilty and claimed trial.
3. In order to prove its case, the prosecution has examined 17 witnesses:-
FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 3 of 47PS Anand Parbat
4. PW-1 Ms. Sweety has deposed that on 06.05.2013, in the night after taking meal, she alongwith her two children were watching movie on television till 1:30 AM in the night. Thereafter, they all slept. She was sleeping on a cot and her two children were sleeping on another cot. Since it was summer, the door of her jhuggi was slightly open for ventilation. At about 02:00 AM, she felt that someone had awakened her. She woke up and found that one boy, i.e. accused Mohd.Firoz was present in her jhuggi. She further deposed that accused Mohd. Firoz was carrying knife in his hand and he asked her to stand up from the cot. Due to fear, she stood up and accused Mohd. Firoz asked her to open the almirah. She told him that there was nothing in the almirah, upon which he stabbed in her abdomen with the knife. Then she opened the almirah in which Rs.2,000/- and a pair of gold ear rings were lying. Accused Mohd. Firoz took away Rs.2,000/- and gold ear rings from almirah. He also took off her wearing gold ear rings from her ears and he also took off her two mobile phones make Samsung & Lemon. While leaving her jhuggi accused Mohd. Firoz put that knife on the neck of her son saying that "AGAR HUNGAMA KAREGI TO ISSE MAAR DUNGA". Thereafter, he ran away with the robbed articles. she called the police on 100 number. PCR van took her to Lady Harding Hospital where she was got medically examined. Her statement Ex.PW1/A was recorded by the police in the hospital and she had narrated FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 4 of 47 PS Anand Parbat the incident and had given the detailed description of the accused Mohd.Firoz. Police got the case registered and prepared the site plan at her instance. During investigation, the police arrested the accused and a pair of her gold ear rings and Samsung mobile phone were got recovered. She had participated in TIP proceedings in Tihar Jail as well as Tis Hazari Courts. In the Tihar Jail, she had identified the accused Mohd. Firoz vide proceedings Ex.PW1/B. In Tis Hazari Courts, she had identified her gold ear rings vide TIP proceedings Ex.PW1/C. She had handed over the original bill of her gold ear rings which now Ex.PW1/D and the original bill of Samsung mobile which is now Ex.PW1/E to the police. The Samsung mobile was purchased by Mohd. Bakar, the husband of her younger sister and the bill is in his name. A pair of gold ear rings, a sum of Rs.2,000/- and Lemon mobile phone have not been recovered. The samsung mobile phone as well as the jewellery articles which were released to her vide superdarinama Ex. PW1/F. One blue samsung Duos mobile phone and a pair of gold tops which are Ex. P-1 and Ex. P-2 (Colly). Witness correctly identified the accused Mohd. Firoz present in the court on that day.
5. PW-2 Sh. Manoj Kumar has deposed that he has brought the judicial file pertaining of DD No. 33A dated 01.06.2013 PS Gulabi Bagh u/s 41.1 Cr. PC decided by the FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 5 of 47 PS Anand Parbat court of Ld. MM, Central, Delhi. He has been photocopies documents placed on record in this case. The said photocopies of from page no. 2 to 31 are the correct copies of the judicial record brought by him. The copies of the kalanadara with the documents till page no. 31 are Ex. PW2/A (Colly) (OSR).
6. PW-3 ASI Jai Singh has deposed that on the intervening night of 05/06.05.2013 at about 3:00 AM, he received information through wireless that one lady had stabbed while committing theft at F-109, Gulshan Chowk, Baljeet Nagar. He recorded this message in the daily dairy vide DD No. 11A and the facts of the DD was brought into the notice of SI Kamal by him on the telephone. The said DD is in his handwriting and photocopy of the same is Ex. PW3/A (OSR).
7. PW-4 HC Rupender has deposed that on 06.05.2013 he was working as a duty officer at PS Anand Parbat from 08:00 AM to 04:00 PM. On that day at about 12.50 PM, he received the rukka sent by SI Kamal through Constable Raja Rao. On the basis of said rukka, he got the present FIR recorded on computer through computer operator. He has brought the original FIR today in the court which is the computer print out and another computerized copy of the same is Ex.PW4/A(OS&R). He made his endorsement on FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 6 of 47 PS Anand Parbat the original rukka which is Ex.PW4/B. The Certificate u/s 65 B of Evidence Act is Ex.PW4/C. He had handed over the copy of the FIR and original rukka to Ct. Raja Rao to hand over the same to SI Kamal.
8. PW-5 HC Umed Singh has deposed that on 06.05.2013, he was posted in PCR, Central Zone and was on Oscar Double-V PCR van based near Hanuman Mandir near 212 Bus Terminal, Anand Parbat. At about 03:00 AM, he received a message from District Control Room that one lady was stabbed. He along with his staff reached at F- 113, Anand Parbat, Baljeet Nagar, Delhi where he found one lady Sweety w/o Kamruddin in injured condition. She was having stab injury in her abdomen. She told him that one boy aged in between 27-28 years had robbed her. He had removed the injured to Lady Harding Medical College and got her admitted vide MLC No.39424.
9. PW-6 SI Pankaj Kumar has deposed that on 06.05.2013, he was posted as Incharge, Mobile Crime Team, Central District, Delhi. On that day, on receipt of information from District Control Room, he along with ASI M.S. Bisht/finger print expert and Ct. Vijay/photographer had reached the spot i.e. F-113, Gulshan Chowk, Baljeet Nagar, Delhi where IO/SI Kamal along with other staff met. He had inspected the scene of FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 7 of 47 PS Anand Parbat crime and on the direction of IO, Ct. Vijay took photographs at the spot from different angles. The injured was already shifted to hospital. He had prepared his detailed report which is Ex.PW6/A.
10. PW-7 Ct. Vijay Kumar has deposed that on 06.05.2013, after receiving the information, he alongwith incharge Crime Team SI Pankaj and other members of team reached at the spot i.e. F-113, Gulshan Chowk, Baljeet Nagar, Anand Parbat, Delhi. IO of the case and other police official were also present there. He took the photographs from different angles on the direction of IO and incharge crime team.
11. PW-8 Sh. Deepak has deposed that mobile SIM no.
7835887265 was issued in his name by Idea company. In the year 2013, accused Md. Firoz @ Rocky met him in the shop of Sanjay run by him in the name of Sanjay Telecom Centre as Md. Firoz came there to sell a mobile phone make Samsung-5302. He was passing through the shop of Sanjay and he called him in his shop. He purchased the said mobile phone from Md. Firoz for sum of Rs.2500/- in presence of Sanjay. He used that mobile phone 3-4 days by using his above said SIM Card. Thereafter, he asked accused Md. Firoz @ Rocky to provide him the original bill of that mobile phone but he refused, therefore, he FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 8 of 47 PS Anand Parbat returned his mobile phone to him. Later on, the police had enquired from him and recorded his statement. The case property i.e. Mobile phone Ex. P2.
12. PW-9 Dr. Mani Jain, Lady Harding Medial College has deposed that he has seen the x-ray report of Ms. Sweety and as per the report, no bony injury is seen during the examination of x-ray plates of the patient. The said report is Ex. PW9/A which was prepared by Dr. Shweta and signed by her at point A. Since Dr. Shweta had left the service from the hospital and her present address was not available. However, he has identified her handwriting and signature on the said report as he had seen her writing and signing during the course of their official duty.
13. PW-10 SI Madan Singh Bisht has deposed that on 06.05.2013, he was posted as ASI and working as Finger print proficient in Mobile Crime Team, Central District, Crime Branch, Delhi. On that day, Sh. Pankaj, Incharge, Crime Team and Ct. Vijay Kumar, Photographer reached the spot Le F-113, Gulshan Chowk, Baljeet Nagar, Anand Parbat, Delhi where SI Kamal along with local police met them. At the direction of SI Kamal and SI Pankaj, one surveyed the scene of crime and made best efforts in lifting the chance prints at the spot. However, despite best efforts the chance prints could not be lifted. One kitchen knife FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 9 of 47 PS Anand Parbat was found at the spot, its handle was of plastic and orange in colour and on its both sides S-Delux was written. Despite the best effort, no chance print was found at that knife also. The spot was inspected from 12:10 PM to 01:00 PM.
14. PW-11 Mr. Neeraj Sharma has deposed that he had purchased a second hand mobile phone make Samsung for sum of Rs.5,000/- from accused Mohd. Firoz. Accused Md. Firoz had also handed over a cash memo/ bill to him saying that it was the bill of that mobile phone. The photocopy of that bill placed on record is already Mark A. In the year 2013, one police official, SI Gaje Singh came to his abovementioned residence along with accused Mohd.Firoz. He has inquired from him about that Samsung mobile phone and its bill. He had handed over that Samsung phone and its bill, which were given to him by accused Mohd. Firoz. He had used mobile SIM No.9899920271 in that Samsung mobile handset for few days. The bill of Samsung is already placed on record and already Ex. PW2/A(Colly). Witness correctly identified the accused Mohd Firoz present in the court on that day.
15. PW-12 HC Raja Rao has deposed that on 06.05.2013, he was posted as Constable at P.S. Anand Parbat. On that day, he was on night emergency duty from FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 10 of 47 PS Anand Parbat 08:00 PM to 08:00 AM with SI Kamal. On that night, SI Kamal had receipt a DD no.11A and he along with him reached the spot i.e. F-113, Gulshan Chowk, Baljeet Nagar, Delhi where the injured was told to be shifted to hospital by PCR van. They reached Lady Harding Hospital where the injured Ms. Sweety found admitted. Doctor had opined her as unfit for statement. He further deposed that on the next day in the morning, they again reached the hospital and doctor had opined the injured as fit for statement. SI Kamal had recorded the statement of Ms. Sweety and prepared rukka on the same and handed over to him for registration of the FIR. He reached P.S. Anand Parbat and got the FIR registered. He came back to the spot and handed over the rukka and copy of the FIR to SI Karnal, to whom the further investigation was assigned. Crime Investigation Team was already present there and conducted investigation. IO prepared the site plan in his presence at the instance of complainant which is now Ex.PW2/A. One vegetable cutting knife was recovered by the IO at the spot. IO prepared the sketch of that knife and thereafter, prepared pullanda of it while sealing the same with the seal of APRVT-I and seized the same vide seizure memo was Ex.PW12/B. They reached the police station. IO deposited the case property in malkhana. Witness correctly identified the case property i.e. knife is Ex. PW12/X. FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 11 of 47 PS Anand Parbat
16. PW-13 Mr. Sunil Kumar Sharma, as Ld. Administrative Civil Judge Cum Commercial Civil Judge cum Addl. Rent Controller, North-West, Rohini Courts, Delhi has deposed that one envelop bearing the particulars of the present case duly sealed with the seal of SKS is opened. From the said envelop TIP proceedings of case property running into three pages alongwith a separate application for providing copy of the said TIP proceedings are taken out. He further deposed that on 12.07.2013, he was posted as Metropolitan Magistrate, West-10, Tis Hazari Courts, Delhi. On that day an application for TIP of case property, moved by IO was marked to him by Mr. Pulastaya Parmachala, Ld. ACMM, West, Tis Hazari Courts, Delhi being his Link MM and he had fixed the date to conduct the TIP proceedings of case property as 12.07.2013. On 12.07.2013, he had conducted the TIP proceedings of case property in this case by taking all precautions as mentioned in detail in such TIP proceedings, which are now Ex.PW13/A(colly) at three places and initial on its first page, in such proceedings. The witness Ms. Sweety W/o Mr. Kamruddin had correctly identified the case property i.e. one pair of yellowish ear rings, submitting that "the same was purchased by her on 29.04.2013 from a jeweller near Prem Nagar railway Phatak for Rs.4,100/- for gifting the same in the ring ceremony of her younger sister Kiran", during the TIP proceedings. The application of the IO for supply of copy FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 12 of 47 PS Anand Parbat of TIP proceedings is Ex.PW13/B and same was allowed vide his order at point A of the even date. He further deposed that another envelop bearing the particulars of the present case i.e. FIR No.74/13 P.S. Anand Parbat u/s 394/397 IPC State V/S Md. Firoz @ Rocky dated 07.06.2013, duly sealed with the seal of 'SKS' is opened. From the said envelop TIP proceedings of accused Md. Firoz @ Rocky running into two pages alongwith two separate applications of IO for fixing the date of the TIP and for providing copy of the TIP proceedings are taken out. On 04.06.2013, he was posted as Metropolitan Magistrate. On that day an application for TIP of accused, moved by IO/SI Kamal was marked to him on 03.06.2013 by Mr. Pulastya Parmachala, Ld. ACMM, being his Link MM. The said application is Ex.PW13/C. The TIP of accused was initially fixed for 05.06.2013 in the presence of accused but on 05.06.2013, the investigating officer appeared before him with the case diary and the TIP of accused was re-scheduled for 07.06.2013 at 02:00 PM, as he was working as a duty Magistrate on 05.06.2013. On 07.06.2013, he had conducted the TIP proceedings of accused Md. Firoz @ Rocky S/o Khurshid. He explained the meaning of TIP to accused and asked him if he wanted to join the TIP proceedings, for which he agreed voluntarily to take part in such TIP proceedings. The TIP proceedings in this regard were recorded by him and the same are Ex.PW13/D(colly) in two pages bearing his FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 13 of 47 PS Anand Parbat signatures at six places at point A and initials at first page at point A and left hand thumb impression as well as signature of accused at point B on its first page. The accused Md. Firoz @Rocky was duly identified by Mr. Mahavir Singh, Asst. Superintendent of jail. The witness Ms. Sweety had correctly identified accused Md. Firoz @Rocky during TIP proceedings. The witness was duly identified by the IO/SI Kamal. The application of the IO for supply copy of TIP proceedings is Ex.PW13/E and same was allowed vide his order dated 07.06.2013 at point A.
17. PW-14 HC Vijay Kumar has deposed that on 06.05.2013, he was posted with the Mobile Crime Team, central District as constable (photographer). On that day, an information from Control Room regarding the incident was received by SI Pankaj, Incharge of Mobile Crime Team and on receiving the said information, he along with him and other staff members went to the spot by government vehicle. The local police officials including Sl Kamal were found present at the spot. There at the instance of IO/SI Kamal, he took the photographs of the spot from different angles. The photographs are exhibited as PW14/A-1 to PW14/A-5 respectively and the negatives are exhibited as Ex. PW14/A-6 colly.
FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 14 of 47PS Anand Parbat
18. PW-15 Ct. Hari Narain has deposed that on 10.06.2013, he along with IO/SI Kamal came at Tis Hazari Courts, Delhi. There the accused Md. Firoz @Rocky was produced before the Court. SI Kamal with the permission of Court interrogated and formally arrested the accused Md. Firoz. During interrogation, the accused Md. Firoz confessed his involvement in the present case. The PC remand for one day was obtained against the accused Md. Firoz. During PC remand, accused Md. Firoz led them to Jhuggi no. F-113, Gulshan Chowk, Baljeet Nagar, Anand Parbat, Delhi where the offence was committed by him and in this regard pointing out memo was prepared by SI Kamal vide memo Ex. PW15/A. The complainant Ms. Sweety was also found present on the spot and she identified the accused Md. Firoz. The accused was interrogated regarding mobile phone which were robbed by him. However, he did not give satisfactory reply in this regard. On sustained interrogation, the accused disclosed that he had thrown away the mobile phone make China. The efforts were made to trace out the said mobile phone, but in vain. During PC remand, the accused also led them to his rented accommodation at H. No. E-5/31, Rahul Garden, Village Bheta, Hazipur, Loni, Ghaziabad, U. P. There the accused pointed towards a cup while stating that he had concealed the robbed ear rings under the same and those ear rings had already been recovered by the staff of PS Gulabi Bagh. The accused also disclosed that he had FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 15 of 47 PS Anand Parbat sold the robbed mobile make Samsung to one person namely Neeraj for Rs.5,000/-. The accused also led them to the house of Neeraj at his village Bheta. There Neeraj was asked about the mobile phone and it was revealed that the mobile phone had already been taken into possession by the staff of PS Gulabi Bagh. The accused Md. Firoz also led them to the telecommunication shop of Mr. Sanjay through whom, the accused Md. Firoz got prepared the forged bill of the mobile phone. In this regard pointing out memo of the respective places, which were pointed out by the accused Md. Firoz, was prepared vide pointing out memo Ex.PW15/B. From U. P., they returned at Delhi along with accused Md.Firoz. The medication examination of accused Md. Firoz was got conducted at Lady Harding Hospital. The accused was left in his custody after serving him food. There was no facility of lock up at PS Anand Parbat and therefore, accused was left in his custody. On the next date, the accused Md. Firoz was produced before the Hon'ble Court and he was sent to JC remand.
19. PW-16 Dr. P. Rahul has deposed that he has been deputed by Medical Superintendent of the hospital to appear in Court on behalf of Dr. Aravinda P.S who has left the services of the hospital. He has well acquainted with the handwriiting and signatures of Dr. Aravinda P.S. as he had seen him writing and signing during the course of official duties. He has seen MLC number 39424/13 of FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 16 of 47 PS Anand Parbat Sweety. The opinion regarding injury was given by Dr. Aravinda P.S which is simple in nature. The opinion of Dr. Aravinda P.S is Ex. PW16/A which bears signatures of Dr. Aravinda P.S at point A.
20. PW-17 Insp. Gaje Mathur has deposed that on 01.6.2013, he was on emergency duty from 8.00 PM to 8.00 AM. He alongwith Ct. Narender was coming back to PS after attending PCR call. At about 8.45 PM when they reached Gulabi Bagh Traffic Signal, accused Md. Firoz, (present in the Court on that day and correctly identified) was found standing alongwith red coloured motorcycle bearing registration Number DI-7SAS-9576 at the corner of traffic signal of Gulabi Bagh. On suspicion, they made enquiry from accused Md. Firoz. However, he failed to give satisfactory reply to their queries in respect of his presence there. The cloth bag was checked and it was found containing one iron rod, one lighter and one knife. Accused failed to give satisfactory reply qua carrying the same. He was taken to PS for further verification. Next day, accused was interrogated and he disclosed his involvement in present case. In this regard, his disclosure statement was recorded. Accused also disclosed that he could get the robbed articles pertaining to this case recovered. On the basis of his disclosure statement, accused Md. Firoz led them to Village Behta, Hajipur FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 17 of 47 PS Anand Parbat where he was living in rented premises. Accused produced two ear rings from under tea cup which was found kept on the slab in the room. Ear rings were kept in transparent pouch and same were sealed in cloth pullanda with the seal of 'GS' and seized accordingly. Thereafter, accused Md. Firoz took them to the house of Neeraj to whom he had sold the robbed mobile phone by getting prepared the forged bill through a person namely Sanjay. Neeraj was present at his house and he identified Md. Firoz being the person from whom he had purchased the mobile. Neeraj produced mobile along-with bill No.726 dated 24.2.2013 issued by Sanjay Communication. Neeraj also informed that he had verified from Sanjay in respect of issuance of the bill No.726 and that after confirmation, he had purchased the mobile from accused Md. Firoz. Mobile phone was kept in cloth pullanda which was sealed with the seal of 'GS' and seized. Bill was also seized. Statement of Neeraj was recorded. Thereafter, accused Md. Firoz took them to the shop of Sanjay which was situated in the same village. Accused Sanjay was found present in his shop. Accused Sanjay produced his bill book from Sl. No.701 to 800. On checking, carbon copy of the bill no.726 was found available. The carbon copy of the bill was seized. Accused Sanjay disclosed the entire circumstances and on interrogation, he disclosed that he had prepared the bill on asking of Md. Firoz in lieu of Rs.1,000/-. Accused Sanjay was arrested and his personal FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 18 of 47 PS Anand Parbat search was conducted.
21. PW-18 SI Kamal has deposed that on 06.05.2013, he was on emergency duty with Constable Raja Rao. On that day on receipt of information of DD No.11A from Duty Officer, he alongwith Ct. Raja Rao reached the spot i.e. F- 113, Gulshan Chowk, Baljeet Nagar. They came to know that injured had already been removed to Lady Harding Hospital. Therefore, they went to said hospital where injured Sweety was found admitted and she was declared 'unfit for statement' by doctor. Thereafter, they reached the spot again. There crime team was called. Crime Team member took photographs of the spot. The Incharge of Crime Team prepared a report and same was handed over to him. Thereafter, they reached the hospital again. Statement of injured Sweety was recorded at hospital as doctor declared her 'fit for statement'. The statement has already been exhibited as Ex.PW1/A. He made endorsement on the said statement vide endorsement Ex.PW18/A. Rukka was handed over to Ct. Raja Rao who was instructed by him to reach spot after getting the case registered. From hospital, he went to the spot. Constable Raja Rao came at the spot after registration of case and handed over copy of FIR to him and Rukka. Site plan already Ex.PW12/A was prepared by him. During her statement, injured Sweety had informed him that assailant FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 19 of 47 PS Anand Parbat had thrown the weapon of offence, i.e. vegetable knife at the spot after assaulting her. Therefore, he searched for the said knife at the spot and same was found. Sketch of the knife was prepared vide Ex.PW18/B. The said knife was taken into possession by preparing pullanda vide seizure memo already exhibited as Ex.PW12/B. He made efforts to trace the culprits. Secret informers were also deployed for the same. He further deposed that on 3.6.2013, SI Gaje Singh from PS Gulabi Bagh informed that on 2.6.2013, accused persons, who were wanted in the present case, were arrested by him in a kalandra vide DD No.30A. SI Gaje Singh also informed that accused persons would be produced before Ld. Court concerned. On receipt of the said information, he alongwith Ct. Hari Narayan went to the Court of concerned Ld. MM. With the permission of Court, accused persons who were present in the court on that day, were interrogated and formally arrested. Accused Md. Firoz was produced in the court in muffled face. During interrogation, accused persons confessed their guilt and their disclosure statements Ex.PW18/C and Ex. PW18/D were recorded. Arrest memos are exhibited as Ex.PW18/E and F respectively. He collected copy of kalandra from SI Gaje Singh. It was also informed by SI Gaje Singh the case properties had also been recovered from the possession of accused persons. Therefore, he collected the case properties from SI Gaje Singh. He moved an application for conducting TIP of accused FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 20 of 47 PS Anand Parbat Mohd. Firoz. During TIP proceeding, complainant/injured correctly identified him. He collected the report of TIP proceedings vide his application in this regard already exhibited as Ex.PW13/B. TIP of gold earrings which had been recovered from the possession of accused persons, was got conducted. During said TIP proceedings, complainant correctly identified her earrings. One day PC remand of accused Mohd. Firoz was obtained, during which accused pointed out the place of occurrence. Opinion about nature of injury was obtained. Complainant gave him the bills pertaining to purchase of stolen jewelry and bill of mobile phone of the shop of Harsh Mobile Gallery. Bills have already been exhibited as Ex.PW1/D and Ex.PW1/E respectively. As per kalandara which was prepared by SI Gaze Singh, one bill of mobile phone was recovered from the possession of accused Sanjay. The said bill was shown to be issued by Sanjay Communication, was sent to FSL after taking the specimen of handwriting and signature of accused Sanjay. The copy of said forged bill has already been marked as mark A. Pointing out memo which was prepared at instance of accused Md. Firoz has already been exhibited as Ex.PW13/A. Accused Md. Firoz led them to his house for pointing the place where he had concealed the robbed mobile phone of complainant. In this regard pointing out memo was prepared vide memo already Ex.PW15/B. The case properties which were collected by SI Gaze Singh, were FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 21 of 47 PS Anand Parbat brought to PS Anand Parbat through RC No.41/21/13 vide memo in this regard Ex.PW18/G. SI Gaje Singh had a Bill book from the possession of accused Sanjay who was running a mobile shop. The application which was moved for TIP of accused Md. Firoz had already been exhibited as Ex.PW13/C. Witness correctly identified the case property i.e. Knife Ex. PW12/X.
22. After completing the prosecution evidence, statement of accused u/s 313 Cr. PC was recorded. Accused has denied the allegations of the prosecution. He has deposed that he is innocent and he has been falsely implicated in this case. However, they did lead defence evidence.
23. DW-1 Vinod has deposed that he and his brother (accused) are running shop in the name of Sanjay Communication since 2010 as he used to work in a factory i.e. Pyken Industries from 09:00 AM to 05:00 PM and 06:00 PM to 11:30 PM, he run the shop and his brother goes home, that in the last week of May, 2013, He did not remember the exact date, four police officials came in civil and took him and his brother at the PS Gulabi Bagh and on the very same day they asked about the bill book and took that bill book at PS Gulabi Bagh. They gave him one pager number and asked him to call on that number and whenever they will call they have to come to the PS. FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 22 of 47 PS Anand Parbat Sanjay was retained by the police officials at PS Gulabi Bagh. In the evening/night, he and his family came to know about the arrest of the accused and since one week he and his family were taking rounds of PS Gulabi Bagh, PS Anand Parbat. He mostly used to prepare the bills with regards to the mobile which they sold or any other purpose reason being he was literate and his brother was illiterate. With regard to the selling of mobile phone, he only used to prepare bill along with the IMEI number sticker. The bill in question was prepared by his brother but it is not correct that it was prepared at the shop but it was prepared by the police officials at PS Gulabi Bagh. The original bill of the complainant from Harsh Mobile Gallery which was brought by the IO is not genuine reason being the IMEI sticker which is pasted on the bill is having bar code which is normally present on the box of the mobile and in general, IMEI sticker which is pasted on the bills should have only IMEI number and having numbers 1 and 2 i.e. one copy for the customer and one for the seller. The bill as alleged is prepared at the PS and his brother is falsely implicated and only after analysis of complete bill book of the alleged bill and the bill book of the original bill relying by the prosecution can alter the truth. If the Hon'ble Court demands the previous bill book he can bring them.
24. DW-2 accused has deposed that on 27/28/29.05.2013, he was sitting at his mobile repairing FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 23 of 47 PS Anand Parbat shop, one vehicle stopped in front of his shop and one person was getting down from the vehicle and one person namely Neeraj who was resident of their colony told to the police official that he repaired mobile phone at his shop. Police official told him to shut down the shop and then taken out bill pad from him and took him in a vehicle to PS Gulabi Bagh and he remained in the PS at about 1-2 days and obtained some papers and obtained his signature also on the bills and changed the same and then he was medically examined and he was sent to Jail. He was not aware in which cases he was arrested by the police.
25. I have heard the arguments of Ld. Addl. PP for the State and Ld. counsel for the accused and perused the record carefully.
26. First of all, I shall dealing with the offence u/s 394 IPC as well as Section 397 IPC as well as Section 411 IPC as against accused Mohd. Firoz.
Section 394 IPC states that:- "Voluntary causing hurt in committing robbery.- if any person, in committing, or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with (imprisonment for life) or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 24 of 47PS Anand Parbat Section 397 IPC states that:-"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 cause grievous hurt to any persons, 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."
Section 411 IPC states that "Dishonestly receiving stolen property.- whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both."
27. It is the case of the prosecution that on 06.05.2013 at about 02:00AM, accused robed Rs. 2,000/-, two mobile phones and a pair of gold ear-rings from complainant Ms. Sweety and caused knife injuries to her and later two ear- rings and mobile phone was recovered at the instance of accused Md. Firoz.
28. PW-Sweety has deposed that on 06.05.2013, she slept in her Jhuggi, around 01:30 AM and at that time of incident, the light of her Jhuggi was off. However, the light from street light was coming. At about 02:00 AM, she felt that someone has awakened her and she woke up and found that one boy who was present in the court that day correctly identified was present in the Jhuggi. She further FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 25 of 47 PS Anand Parbat deposed that Mohd. Firoz was carrying a knife in his hand and asked her to stand up. Due to the fear she stood up and accused Mohd. Firoz asked her to open the almirah. She told him that there was nothing in the almirah, upon which he stabbed in her abdomen with knife. Then she opened the almirah in which Rs. 2,000/- and a pair of gold ear rings were lying. Accused Mohd. Firoz took away Rs. 2,000/- and gold earning from almirah and also took off her wearing gold rings from her earns and also took off her two mobile phones make Samsung & Lemon. While leaving her jhuggi accused Mohd. Firoz put the knife on the neck on her son saying that "Agar hungama karegi to isse maar dunga" and thereafter he ran away with the robbed articles. She called 100 no. Accused persons were apprehended and she identified her gold earring and Samsung mobile phone in TIP proceedings and also identified accused in the court. In the cross-examination, she has struck to her stand and deposed that at the time of incident, the light of her jhuggi was off, however, the light of street light was there in the jhuggi. She denied the suggestion that there was no proper light coming through street light in the jhuggi and it was completely dark there. She further states that when the accused Mohd. Firoz had awaken her and asked for keys of the almirah, she had argued for 5-10 minutes as to why he came there and who sent him, upon which he stabbed her in abdomen with knife. She states that she did not shout on accused Mohd.
FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 26 of 47PS Anand Parbat Firoz because he had threatened her not to raise alarm. She further denied the suggestion that she had received minor injuries or that she was not stabbed with the knife. She correctly states that she had identified the accused Mohd. Firoz in the Police station and also states that police officials did not show her the photograph of accused Mohd. Firoz, she told the physical description of accused Mohd. Firoz to police. She also denied the suggestion that the police officials had shown her the photographs of accused Mohd. Firoz.
29. It has been argued by the Ld. counsel for accused persons that no public witness has examined or even cited by the prosecution in support of the case of the prosecution and some inconsistencies have cropped up in the examination of the complainant. As regards the is anxiety of Ld, counsel for accused persons, it can be said that there is no bar in relying the testimony of sole eye witness, if his testimony is found to be reliable. There is nothing in law to not to take into consideration the testimony of an injured person in the absence of the testimony of any other public witness.
30. It is the quality of the evidence and not the quantity which is to be seen. The Hon'ble Supreme Court in judgment ttled as "Ramesh Krishna Madhusudan Nayar Vs. State of Maharastra" reported in 2008 Crl. LJ 1023 upheld a conviction u/s 302 IPC based on the sole FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 27 of 47 PS Anand Parbat testimony of a witness. The court held that "on the basis of a solitary evidence conviction can be maintained. It made a reference to section 134 and held that no particular number of witnesses are required to establish the case Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence in unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Reference: in this record can also be made to "Jamil & Ors. Vs. State of Rajasthan through PP" "RLW 2007 (4) RAJ 3373 wherein, it was observed that if sole testimony is found to be trustworthy and unshaken and there is o reason to disbelieve it then, it can be taken that it has established the prosecution's case beyond reasonable doubt. Thus, testimony of complainant, which finds support and corroboration from medical evidence, is sufficient to establish the charge against accused. It would be grossly unfair to reject the testimony of complainant and the medical evidence merely because cited independent witness did not support the prosecution's case.
31. Coming now to the testimony of injured witness. To answer this question, I would like to rely upon the FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 28 of 47 PS Anand Parbat judgment of Hon'ble Delhi High Court in Jai Singh Rawat Vs. State (NCT of Delhi), ILR(2012), Delhi para 18 of the said judgment is as follows:-
18. "The evidence of an injured witness cannot be disbelieved without assigning congent reasons. Mere contradictions/improvements on trivial matters cannot render an injured witness's deposition untrustworthy. The law on this aspect has been detailed in the Latest judgment State of Uttar Pradesh Vs. Naresh and Ors. (2011 4 SCC 324 as under):
27. "The evidence of an injured witness must be given due weightage being stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he as spared the actual assailant in order to falsely implicate someone else.
The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and thus lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (vide Jarnail Singh Vs. State of Punjab, Balraje Vs. State of Maharashtra and Adbul Sayeed Vs. State of M.P.).
32. Similarly, in another case Abdul Sayed Vs. State of Madhya Pradesh (2010) 10 SCC259. Hon'ble Supreme Court laid down:-
"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this court where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 29 of 47 PS Anand Parbat considered to be very reliable, as he is a witness that come with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant (s) in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness."
"While deciding this issue, a similar view was taken in Jarnail Singh Vs. State of Punjab, where this court reiterated the special evidential status accorded to the testimony of an injured accused and relying on its earlier judgments held as under : (SCC pp. 726-27 para 28-29)."
Darshan Singh (PW-4) was an injured witness. He had been examined by the doctor. His testimony could not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tube-well. In Shivalingappa Kallayanappa Vs. State of Karnataka this court has held that the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies, for the reason that his presence on the scene stands established in case it is proved that he suffered the injury during the said incident.
33. In a recent case titled a "Kalu @ Amit Vs. State of Haryana 2301 (I) AD SC 641, it has been stated by the Hon'ble Apex Court in Para 9 of its judgment that conviction can be based on the evidence of the sole eye witness if his evidence inspires confidence.
34. The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law. This is an consequence of the fact that the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 30 of 47 PS Anand Parbat will not want to let his actual assailant to unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein.
35. PW-Sweety is the star witness of the present case.
She has deposed emphatically on oath accused Firoz has woken her up with knife and robbed her on point of a knife and stabbed her in abdomen. She has struck to her stand during cross-examination and nothing has been brought on record to demolish or to shatter her credibility. She identified the accused Md. Firoz during TIP proceedings and also during court proceedings.
36. PW-Sweety has deposed emphatically on oath that she was robbed and also accused Firoj inflicted knife injuries on her. The injuries have been proved by Dr. P. Rahul. Also, PW-16 Dr. P. Rahul has deposed on behalf of Dr. Harvinder that he identified his handwriting. He has proved the MLC no. 39424/13 of Ms. Sweety. The opinion regarding the injury was given as simple in nature. In view the same, the injuries stands proved.
37. During the course of the investigation, the ear-rings and one mobile phone was recovered. The ear-rings were FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 31 of 47 PS Anand Parbat identified by the victim PW- Sweety during the TIP proceedings Ex.PW1/C. PW-Sunil Kumar Sharma has proved the TIP proceedings and has deposed that during the TIP proceedings, the victim has identified the case property.
38. It is axiomatic, in the present case, the case property was recovered at the instance of accused himself from a place which only he could have been aware of. Section 27, Indian Evidence Act is based on the view that if a fact is actually discovered in consequences of information given, some guarantee is afforded thereby, that the information was true and accordingly, can be safely allowed to be given in evidence but clearly the extent of the information admissible must depend on the exact nature of the fact discovered, to which such information is required to relate. The ban of inadmissibility of condessing in evidence recorded by police was presumably inspired by the fear of the legislature that a person under police influence might be induced to confess by the exercise of undue pressure. But if all that is required to lift the ban on the inclusion in the confession of information relating to an object subsequent produced, it seems reasonable to suppose that the persuasive powers of the police will prove equal to the occasion, and that in practice the ban will lose its effects.
39. PW-11 Mr. Neeraj has deposed that he had FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 32 of 47 PS Anand Parbat purchased a second hand mobile phone make Samsung for sum of Rs.5,000/- from accused Mohd. Firoz alongwith cash memo/ bill to him saying that it was the bill of that mobile phone. The photocopy of that bill placed on record is already Mark A. He had used mobile SIM No.9899920271 in that Samsung mobile handset for few days. The bill of Samsung is already placed on record and already Ex. PW2/A(Colly). He further deposed in his cross-examination that he does not remember the date when accused Mohid Firoz sold the mobile phone to him, however, it was in the year 2013 and he handed over the samsung mobile phone and its bill to SI Gaje Singh on 02.06.2013. He further deposed in his cross-examination that it is correct that except accused Mohd Firoz, he did not meet anyone else regarding that samsung phone and its bill and he knew accused Mohd. Firoz for the last one and half month prior to the incident.
40. PW-15 Ct. Hari Naraian has deposed that during police remand of the accused Md. Firoz, he pointed towards a cup in the rented house at H. No. E-5/31, Rahul Garden, Village Bheta, Hazipur, Loni, Ghaziabad, U. P. of accused Md. Firoz, while stating that he had concealed the robbed ear rings under the same and those ear rings had already been recovered by the staff of PS Gulabi Bagh. The accused also disclosed that he had sold the robbed mobile make Samsung to one person namely Neeraj for FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 33 of 47 PS Anand Parbat Rs.5,000/-. He further deposed that the accused Md. Firoz also led them to the telecommunication shop of Mr. Sanjay through whom, the accused Md. Firoz got prepared the forged bill of the mobile phone.
41. PW-17 Insp. Gaje Mathur has deposed that accused led them to the house of PW Neeraj from where he got recovered the mobile phone.
42. It has been argued by the Ld. Defence Counsel that testimonies of above mentioned recovery witness i.e. Insp. Gaje Mathur, Ct. Hari Narain should not be believed in as they are the police witnesses and no independent witness has been joined during the alleged recovery.
43. Ld. Counsel for the accused has urged that independent witnesses could not identify the accused persons therefore, testimony of other police officials also to be doubted. To address this issued, I would like to refer to the following judgment of the Hon'ble Supreme Court of India in State Government of NCT of Delhi Vs. Sunil and Another (2001) 1 SCC 652, it has been observed:
"In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 34 of 47 PS Anand Parbat made under Chapter VII of the Code. Section 100(5) of the Code requires that such search shall be made in their presence and a list of all things seized in the course of such search and of the places in which they are respectively found, shall be prepared by such officer or other person and signed by such witnesses. It must be remembered that search is made to find out a thing or document which the searching officer has no prior idea where the thing or document is kept. He prowls for it either on reasonable suspicion or on some guess work that it could possibly be ferreted out in such prowling. It is a stark reality that during searches the team which conducts search would have to meddle with lots of other articles and documents also and in such process many such articles or documents are likely to be displaced or even strewn helter-skelter. The legislative idea in insisting on such searches to be made in the presence of two independent inhabitants of the locality is to ensure the safety of all such articles meddled with and to protect the rights of the persons entitled thereto. But, recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code. This Court has indicated the difference between the two processes in the Transport Commissioner, Andhra Pradesh, Hyderabad & anr. Vs. S. Sardar Ali & Ors. (1983 SC 1225). Following observations of Chinnappa Reddy J. can be used to support the said legal proposition: Section 100 of the Criminal Procedure Code to which reference was made by the counsel deals with searches and not seizures.
In the very nature of things when property is seized and not recovered during a search, it is not possible to comply with the provisions of sub-section (4) and (5) of section 100 of the Criminal Procedure State v. Silva Kumar, U/s 411/34 IPC page no.10 / 15 FIR No.12/04 PS Uttam Nagar Code. In the case of a seizure [under the Motor Vehicles Act], there is no provision for preparing a list of the things seized in the course of the seizure for the obvious reason that all those things are seized not separately but as part of vehicle itself. Hence, it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by independent witnesses. Of FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 35 of 47 PS Anand Parbat course, if any such statement leads to recovery of any articles it is open to the investigating officer to take the signature of any person present at that time, on the document prepared for such recovery. But, if no witness was present or if no person had agreed to affix his signature on the document, if is difficult to lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The Court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
We feel that it is in archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. Its hang over persisted during post-independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the Court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence, when a police officer gives evidence in Court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the Court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the State v. Silva Kumar, U/s 411/34 IPC page no.11 / 15 FIR No.12/04 PS Uttam Nagar Court has any good reason to suspect the truthfulness of such records of the police the Court could certainly take into account the fact that no other independent person was present at the time of recovery. But, it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 36 of 47PS Anand Parbat
20. It is abundantly clear from the above said judgment that there is no rule of law which enjoins upon the Court not to rely upon the testimony of the police officials in the absence of any independent/public witness. The only concern is to be more cautious and circumspect before placing any reliance on their testimonies. In other words, their testimony is to be subjected to careful scrutinization and assessment as compared to the testimony of any other public person. On the touchstone of these principles, I am of the considered opinion that in the instant case, there is no ground not to believe the testimonies of all the police personnels."
In such circumstances, the arguments of defence that the testimony of police officials should be discarded merely because there is no independent public witness of recovery does not hold ground. Reference in this regard can be made to the decision in Ajmer Singh Vs. State of Haryana 2010 (2) RCR (Crl.) 132 and Ram Swaroop Vs. State (Govt. of NCT of Delhi) 2013 VI AD (SC 228).
44. All the above said witnesses have deposed emphatically on oath that mobile phone and earings were recovered at the instance of accused Firoz. All the said PWs have been cross-examined at length, however, nothing substantial have come which could demolish or shatter their testimony. In our case PW-15 Ct. Hari Naraian and PW-17 Insp. Gaje Mathur have stuck to their stand in their cross-examination. Therefore, their testimonies are clear, coherent and reliable in nature and conviction can be based upon their testimonies.
45. PW Sweety has deposed emphatically on oath that FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 37 of 47 PS Anand Parbat accused Md. Firoz has robbed the earrings and two mobile phones on point of knife and also caused her knife injuries while committing the said robbery. And further one of the mobile phones and the ear rings were recovered by Ct. Hari Narain and Insp. Gaje Mathur. In view of the above offence u/s 394/397/411 IPC stands proved against accused Md. Firoz.
46. Coming now to the offence u/s 420/468/471/34 IPC.
Firstly, the offence relating to cheating and dishonestly inducing delivery of property specified in Section 420 IPC as under:
"Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 468 IPC that is forgery for purpose of cheating states that:
"Whoever commits forgery, intending that the document forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
Section 471 using as genuine a forged (Document or electronic record) states that:
"Whoever fraudulently or dishonestly uses as genuine any (document or electronic record) which he knows or has FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 38 of 47 PS Anand Parbat reason to believe to be a forged (Document or electronic record), shall be punished in the same manner as if he had forged such (Document or electronic record)."
47. It is the case of the prosecution that both the accused persons in furtherance of their common intention fraudulently and dishonestly forged a back date bill of mobile phone Samsung DUOS Model S-5302 having IMEI No. 353877055512390 with intention to conceal the identity of said mobile phone from complainant and to sell the same to Neeraj as genuine and also with intention to cheat complainant Sweety and Neeraj. Also, between 06.05.2013-02.06.2013 accused Mohd. Firoz with co- accused Sanjay Kumar in furtherance of their common intention fraudulently and dishonestly sold the said mobile phone for a sum of Rs. 5,000/- to Neeraj with the help of forget bill and use that said bill for the purpose of cheating.
48. PW-8 Sh. Deepak has deposed that mobile sim no.
7835887265 was issued in his name by Idea company. In the year 2013, accused Md. Firoz @ Rocky met him in the shop of Sanjay run by him in the name of Sanjay Telecom Centre as Md. Firoz came there to sell a mobile phone make Samsung-5302. He was passing through the shop of Sanjay and he called him in his shop. He purchased the said mobile phone from Md. Firoz for sum of Rs.2500/- in presence of Sanjay. He used that mobile phone 3-4 days by using his above said SIM Card. Thereafter, he asked FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 39 of 47 PS Anand Parbat accused Md. Firoz @ Rocky to provide him the original bill of that mobile phone but he refused, therefore, he returned his mobile phone to him. Later on, the police had inquired from him and recorded his statement. In the cross- examination of the said PW he denied the suggesting that he will not be able to tell the said date because no such mobile phone was purchased by him from the accused. Accused Md. Firoz was known to him through one Sanjay who runs a mobile phone shop near his house. He further denied the suggestion that he had not asked accused Md. Firoz to provide the bill of the said Samsung mobile phone. He has asked the accused to hand over the bill of the said mobile phone at the time of purchase of the said phone and thereafter 2-3 times after gap of one or two days after the purchase. He further denied the suggestion that he had not purchased the said samsung mobile phone from the accused or had not asked any bill of the said mobile phone and also that he had not purchased any mobile phone at the presence of accused Sanjay.
49. PW-11 Mr. Neeraj Sharma has deposed that he had purchased a second hand mobile phone make Samsung for sum of Rs.5,000/- from accused Md. Firoz. Accused Md. Firoz had also handed over a cash memo/ bill to him saying that it was the bill of that mobile phone. The photocopy of that bill placed on record is already Mark A. In the year 2013, one police official, SI Gaje Mathur came FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 40 of 47 PS Anand Parbat to his above mentioned residence along with accused Md. Firoz. He has inquired from him about that Samsung mobile phone and its bill. He had handed over that Samsung phone and its bill, which were given to him by accused Md. Firoz. He had used mobile SIM No.9899920271 in that Samsung mobile handset for few days. The bill of Samsung is already placed on record and already Ex. PW2/A(Colly). Witness correctly identified the accused Md. Firoz present in the court on that day. He further denied in his cross-examination that he does not remember the date when accused Md. Md. Firoz sold the mobile phone to him, however, it was in the year 2013. He had handed over the Samsung phone its bill to SI Gaje Mathur on 02.06.2013.He admitted that except accused Md. Firoz, he did not meet anyone else regarding that Samsung Phone and its bill, he knew accused Md. Md. Firoz for the last one and a half month prior to the incident. He had visited PS Anand Parbat once but he was not sure.
50. PW- SI Gaje Mathur deposed that accused Sanjay present in the court that day produced his bill book from 701-800. On checking, carbon copy of the bill no. 726 was found available. The carbon copy of the bill was seized. Accused Sanjay was disclosed the entire circumstances and on interrogation, he disclosed that he had prepared the bill on asking of Md Firoz in lieu of Rs. 1,000/-. In his cross-examination he denied the suggestion that the FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 41 of 47 PS Anand Parbat accused Sanjay was interrogated at PS or that he had not produced any bill book or that he was deposing falsely. He further deposed that it is correct that in the CC of Bill No. 726, mobile numbers 8586086660, 8750367933 and 9540696525 were mentioned with pen which appears to have been written subsequently. Accused Sanjay was arrested at his shop and his arrest memo was prepared.
51. Perusal of the testimonies of PW Neeraj, Deepak and SI Gaje Mathur as discussed in preceding paras of the judgment shows that the accused persons first tried to sell the mobile phone Samsung to PW-Deepak and when Deepak asked the original bill, they failed to give him the same and PW- Deepak returned the mobile phone and the same was then sold to PW-Neeraj and this time they gave a fake bill again. The Carbon copy of the fake bill Ex. P3 and Ex. P4. PW-Neeraj has produced the photocopy of the bill which was Marked-A.
52. PW Deepak have deposed emphatically on oath that accused Md. Firoz sold them the said mobile in the shop of Sanjay. The accused persons induced PW Deepak to pay the money to them for the stolen mobile phone. PW- Neeraj has deposed accused Md. Firoz sold him Samsung Mobile phone along with fake bill. The said mobile phone was recovered by the police officials of PS Gulabi Bagh at the instance of accused Md. Firoz. PW Sweety has FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 42 of 47 PS Anand Parbat identified the mobile phone, PW Gaje Mathur has deposed that accused Md. Firoz took them to the house of PW Neeraj from where the robbed mobile phone was recovered. By selling the stolen mobile phone to PW- Neeraj and Deepak has caused wrongful loss to PW Sweety, Deepak and Neeraj and wrongful gain to accused persons. It has been argued by the Ld. Defence Counsel that no offence of Section 420 IPC can be proved against the accused Sanjay as he has not sold the mobile to PW Neeraj and whereas in the charge, the offence of cheating has been made out against PW Neeraj only. However, this argument is merit less as when the mobile phone was first sold to PW Deepak & he was induced to pay the amount of Rs. 2500/- for the said mobile phone, the offence of cheating was complete. Both of these PW Deepak and Neeraj had no knowledge that the mobile was stolen one and they came to know about the same later at the stage of investigation. It is also a well settled law that Section 215 Cr.P.C provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. In the present case, the cross-examination of PW Deepak shows that it has been done with a point of view regarding the involvement of accused Sanjay in the offence of cheating. Therefore, FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 43 of 47 PS Anand Parbat there is nothing on record to even fadely suggest that the accused was misled by such error. PW Deepak has been specifically cross-examined regarding the involvement of accused Sanjay and he has deposed that accused Md. Firoz was known to him through accused Sanjay only and he further denied the suggestion that he has not purchased the mobile phone in the presence of accused Sanjay. During examination u/s 313 Cr.P.C, the accused Sanjay was specifically questioned that PW Deepak identified accused Md. Firoz to be person who has sold the said Samsung phone in the shop of accused Sanjay. Therefore, in these circumstances it is not the case that the accused Sanjay was not aware of the evidence regarding the offence of cheating.
53. Now coming to grip with charge u/s 34 IPC against both the accused persons. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The liability of on person for an offence committed by another in the course of criminal act perpetrated by several persons arises u/s 34 IPC if such criminal act is done furtherance of a common intention of the persons who join in committing the crime. In the case titled Jagan Shravan Patil Vs. State of Maharashtra, 2009 (2) RCR (Criminal) 269 has been held by Hon'ble Apex Court that where offence is committed by a number of persons in furtherance of common intention, direct proof FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 44 of 47 PS Anand Parbat of common intention is seldom available and therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common initiation, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the air of section 34, be it per-arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. In the instant case, it has been specifically deposed by PW Deepak that he purchased the said mobile phone from Md. Firoz for sum of Rs.2500/- in presence of Sanjay (owner of the shop). This, it can be safely extrapolated that both the accused persons shared the common intention of cheating him. In these circumstances, offence u/s 420/34 IPC stands proved against the accused persons namely Sanjay and Md. Md. Firoz.
54. As far as offence u/s 468 IPC is concerned, section punishes the forgery done for the purpose of cheating. There is no evidence regarding the accused persons committing the offence u/s 468 IPC. There has to be evidence that accused persons made any false document i.e. bill in the present case with intent to commit fraud. There is no witness who has seen the accused persons making the alleged bill. The hand writing samples were FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 45 of 47 PS Anand Parbat not sent to the FSL along with the alleged bill to show that it was the accused persons only who have prepared these bills. Therefore, the case, the offence u/s 468 IPC is not proved against the accused persons.
55. Coming now to the offence u/s 471 IPC, discussed above, there is evidence to show that the bill Ex.PW1/E was not the original as proved from the testimony of PW- Sweety who has identified her mobile phone and the accused Md. Firoz have used that fake bill is also proved from the testimonies of PW- Neeraj. However, there is nothing on record to suggest that accused Sanjay sold that mobile phone to PW Neeraj. In the cross-examination, he has admitted that he has talked to the accused Md. Firoz only for that mobile phone. Therefore, the offence u/s 471 IPC is proved against the accused Md. Firoz only. It has been argued by the Ld. Defence Counsel the testimony of PW-Deepak and Neeraj should not be believed in as there is no corroboration from independent witnesses. However, as I have discussed earlier, there is nothing on record to suggest that these PWs had any motive to falsely implicate the accused persons in the present case and absolutely nothing has been brought on record to demolish or shatter their testimony. They have struck to their stand in the cross-examination.
56. In the statement u/s 313 Cr.P.C, the accused has taken the stand that all the PWs are interested witnesses FIR No. 74/2013 State Vs. Sanjay Kumar & Anr. Page No. 46 of 47 PS Anand Parbat and their testimony cannot be believed. However, no motive has been brought on record as to why the PWs would falsely implicate the accused persons. Absolutely nothing has been brought on record to discredit the testimony of the PWs. Therefore, reliance can be placed upon their testimonies.
57. In view of the aforesaid discussion, the prosecution has proved its case beyond reasonable doubt and therefore, the accused Md. Firoz is convicted for the offence u/s 394/397/411/471 & 420/34IPC and Accused Sanjay is convicted for 420/34 IPC.
58. Let the accused be heard on the point of sentence.
Announced in the (AMBIKA SINGH)
Open Court on 07.08.2023 ASJ-02 West THC Delhi
07.08.2023
FIR No. 74/2013
State Vs. Sanjay Kumar & Anr. Page No. 47 of 47
PS Anand Parbat