Delhi District Court
Dhananjay Singh Chauhan vs State 2013 Iv Ad (Cri) (Dhc) on 27 March, 2023
IN THE COURT OF MS DEEPALI SHARMA:
ADDITIONAL SESSIONS JUDGE 04: EAST DISTRICT
KARKARDOOMA COURTS: DELHI
CNR No. DLET010006762019
SC No. 258/2019
FIR No. 243/2016
U/s 394/397/34 IPC
P.S. Pandav Nagar
In the matter of :
State
versus
1) Amar @ Mohd. Umer,
S/o Malook Ahmad,
R/o H.No. 212, Jawahar Mohalla,
Patparganj, Delhi.
2) Tasleem,
S/o Hanif,
R/o H.No. A57, Shastri Mohalla,
Patparganj, Delhi.
3) Shahid,
S/o Walwahid @ Wahid,
R/o H.No. 226, Jawahar Mohalla,
Patparganj, Delhi.
Date of Institution : 23.01.2019
Date of reserving Judgment : 25.03.2023
Date of pronouncement : 27.03.2023
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Appearance
For the State : Ms. Parul Singh,
Additional Public
Prosecutor.
For accused persons : Shri S.S.Chaudhary, adv.,
counsel for accused Amar
@ Mohd. Umer.
Sh. Dinesh Yaduvanshi,
adv., LAC for accused
Tasleem and Shahid.
JUDGMENT
1) Briefly stated the facts of the present case are that on 10.05.2016 an information was received by a PCR call at PS Pandav Nagar about a quarrel and that the caller was beaten and his money was snatched at Old Police Station, Pandav Nagar. D.D. No.40A Ex. C3 was recorded in this regard. The said DD was assigned to ASI Jai Bhagwan. ASI Jai Bhagwan alongwith Const. Vikram reached near TB Hospital near Old Police Station Pandav Nagar. On reaching there they came to know that injured had been taken to LBS Hospital. Upon reaching LBS Hospital, they found that injured Nisar Ahmad was under treatment. ASI Jai Bhagwan made inquiries from him and recorded his statement Ex. PW4/A wherein he stated that on 10.05.2016 he alongwith his friends Gautam Kumar and Sukhpal took an auto to go to Old Delhi Railway Station from 23 Block crossing, at about 10.30 pm. When they reached near TB Hospital, Old Police Station, Pandav Nagar, the auto driver stopped the auto and told them that he will meet his brother and then take them. The complainant SC No. 258/2019 Page 2/30 ASJ-04/East/KKD/Delhi and his friends objected as they were in a hurry to catch a train. They had an altercation (KahaSuni) with the TSR driver. Meanwhile two boys came there and they started beating the complainant and the TSR driver snatched his mobile phone C5 IPhone Apple with SIM No. 9910301407 and thereafter they ran away from there. They were not able to note down the registration number of the auto. Thereafter the complainant called at 100 number and PCR van took him to LBS Hospital. The complaint is Ex. PW1/A.
2) On the basis of the statement of the complainant Nisar Ahmad Ex. PW1/A, FIR bearing No. 0243/2016 Ex. C1 was registered on 11.05.2016 at PS Pandav Nagar u/s 394/34 IPC.
3) IO conducted further investigation. The site plan was prepared and efforts were made to search the accused persons and the case property. On 14.05.2016 the IO arrested accused persons at the instance of the complainant from near TB Hospital, Old Police Station Pandav Nagar and conducted their personal search. IO also recorded disclosure statements of accused persons. IO also seized the TSR vide seizure memo Ex. PW6/A. One day PC remand of the accused persons was taken. However, mobile phone could not be recovered. Opinion on MLC No. 6295/2016 of complainant Nisar Ahmad was obtained and the injuries were opined to be 'grievous' in nature.
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4) After completion of necessary investigation, charge sheet was filed u/s 394/34 IPC against the accused persons. On the basis of chargesheet and the documents submitted with it, the learned Metropolitan Magistrate (East), Karkardooma Courts took cognizance of the alleged offences and subsequently vide order dated 14.01.2019 it was observed by Ld. Metropolitan Magistrate that Section 397 IPC is attracted in the present case and therefore after complying with the provisions contained in Section 207 Cr.P.C, vide order dated 14.01.2019 committed the case to the Court of Session for 23.01.2019.
Charge :
5) Vide order dated 25.02.2019 charge was framed against accused Amar @ Mohd. Umer, Tasleem and Shahid u/s 394/397/34 IPC. The charge so framed was read over and explained to the accused persons to which they did not plead guilty and claimed trial.
Prosecution Evidence :
6) In order to prove its case, the prosecution examined following witnesses.
(i) PW1 Nisar Ahmad - complainant himself. (ii) PW2 Gautam Kumar, friend of complainant, who accompanied him in the TSR. SC No. 258/2019 Page 4/30 ASJ-04/East/KKD/Delhi (iii) PW3 Deepak Maggo, owner of TSR No. DL1RL
6186, who deposed that the said TSR was taken on rent by accused Mohd. Umer, whom he identified before court. He got the TSR released on superdari vide Ex. PW3/A. The photographs of the TSR are Ex. PW3/B1 to B4. He stated that the TSR shown in the photographs was the same, which was taken on rent by accused Mohd. Umer.
(iv) PW4 Const. Vikram Singh - part of investigation, who alongwith ASI Jai Bhagwan reached the spot on receipt of DD No. 40A. Injured had already been taken to LBS Hospital.
They went to LBS Hospital where injured Nisar Ahmad was found to be under treatment. IO recorded statement of injured and prepared a rukka in his presence. PW4 identified the handwriting and signatures of ASI Jai Bhagwan. The rukka is Ex. PW4/A. He also identified the signatures of ASI Jai Bhagwan on the statement of complainant Ex. PW1/A. ASI Jai Bhagwan handed over rukka to PW4 for registration of FIR. PW4 took the same to PS Pandav Nagar and got the FIR registered and returned to the spot and handed over copy of FIR and rukka to ASI Jai Bhagwan. Despite efforts accused could not be found out at that time.
(v) PW5 Sukdu, who accompanied the complainant in the TSR.
vi) PW6 HC Manoj - part of investigation. He joined investigation on 14.05.2016 and apprehended three accused SC No. 258/2019 Page 5/30 ASJ-04/East/KKD/Delhi persons alongwith ASI Jai Bhagwan and Const. Mukesh, at the instance of the complainant from TB Hospital, Pandav Nagar, Delhi, at about 07.30 pm. The TSR in which the accused persons were sitting i.e. TSR No. DL1RL6186 was seized vide seizure memo Ex. PW6/A.
vii) PW7 Dr. Sanjeev Gambhir, who identified the handwriting and signatures of Dr. Vishal Gupta on the MLC of the complainant bearing no. 6295/2016 dated 10.05.2016, Ex. C
4. As per opinion given by Dr. Vishal Gupta, the patient had suffered dislocation of right shoulder and Dr. Vishal Gupta opined that the nature of injury suffered by patient Nisar Ahmad was grievous in nature.
viii) PW8 SI Mukesh Malik, who joined investigation on 14.05.2016 alonwith ASI Jai Bhagwan and Ct. Manoj and was involved in the arrest of the accused persons at the instance of the complainant. The TSR was also taken into police possession. The accused persons were arrested and their personal search was conducted. The facts disclosed by accused Mohd. Umer were recorded as his disclosure statement vide Ex. PW8/A. The disclosure statement of accused Tasleem and Shahid are Ex. PW8/B and PW8/C respectively.
7) Ld. Counsel for the accused persons did not dispute the genuineness of FIR No. 243/2016 of PS Pandav Nagar, certificate u/s 65B of Indian Evidence Act, DD No. 40A dated 10.05.2016 and MLC No. 6295/2016 (CR No. 98984/2016) of SC No. 258/2019 Page 6/30 ASJ-04/East/KKD/Delhi complainant Nisar Ahmad and as such these documents were exhibited as Ex. C1, Ex. C2, Ex. C3 and Ex. C4 respectively.
Statement of accused persons :
8) After conclusion of prosecution evidence, statement of the accused persons namely Amar @ Mohd. Umer, Shahid and Tasleem were recorded under Section 313 Cr.P.C wherein they denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were innocent and were falsely implicated in this case. Accused Amar @ Mohd. Umer, Shahid and Tasleem stated that they are innocent and falsely implicated in the present case at the instance of complainant Nisar Ahmad. Nisar Ahmad and his two friends Gautam Kumar and Shukhru were under influence of liquor and they themselves quarreled with them on the issue of TSR fare.
They had not beaten Nisar Ahmad rather public persons had beaten Nisar Ahmad and his two friends as they were under the influence of liquor and were creating commotion and were misbehaving with them and other locality persons. The said incident was witnessed by locality residents and other public persons, who saved them from the complainant and his two friends.
9) Accused persons opted to lead evidence in their defence and they led the evidence of DW1 Sh. Sandeep Sharma.
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10) I have heard the arguments of ld. Counsel for the accused persons and Ld. Addl.P.P. for the State and perused the record.
11) It is argued by ld. Counsel for accused Amar @ Mohd. Umer that the complainant and his two friends were under the influence of liquor and they had quarreled with him on the issue of TSR fare. Public persons had beaten the complainant and his two friends as they were under the influence of liquor and were creating commotion and were misbehaving with him and other locality persons. It is argued by ld. Counsel for the accused persons namely Tasleem and Shahid that they have not committed any offence. They were present at the spot amongst the crowd of 1015 persons and had come to save the injured. Only PW1 Nisar Ahmad has identified accused Tasleem and Shahid and his other two friends PW2 Gautam Kumar and PW5 Sukru have not identified them. It is stated that both the accused persons have no connection with accused Amar @ Mohd. Umer, who was the TSR driver, and they were present at the spot amongst the crowd. It is stated by the counsel for the accused persons that the injuries were suffered by the complainant as a result of a fall. No mobile phone had been snatched from the complainant PW1 Nisar Ahmad at the time of incident and even as per the testimony of PW5, the mobile phone of PW1 had fallen down at the time of incident. It is urged that the initial DD No. 40A was recorded regarding quarrel and that the caller had been beaten and his money had been snatched, whereas the FIR was lodged regarding robbery of a mobile phone. The mobile SC No. 258/2019 Page 8/30 ASJ-04/East/KKD/Delhi phone has not been recovered and nothing has been brought on record to show that PW1 was the owner of the alleged mobile phone. Even the mobile number is not mentioned in his testimony. No bill or invoice of the mobile phone has been placed on record, thereby indicating that the accused persons have been falsely implicated in the present case. It is urged that it was a case of quarrel on the issue of TSR fare, which has been given the colour of robbery by the police at the instance of the complainant. In these circumstances, in absence of any evidence, the accused persons are liable to be acquitted for the offences they are charged with.
12) On the other hand, it is argued by Ld. Addl.P.P. for the State that the complainant PW1 Nasir Ahmad has deposed on the lines of his initial complaint. His testimony is corroborated by the testimony of PW2 regarding the incident and identity of accused Amar @ Mohd. Umer. Though PW5 turned hostile on some points, however, considering the evidence on record in entirety including medical evidence, the accused persons are liable to be held guilty for the offences they are charged with.
Testimonies of material witnesses :
13) Injured Nisar Ahmad, complainant, was examined as PW1, who deposed that on 10.05.2016, he alongwith his friends Gautam Kumar and Shukh Lal @ Shukhru boarded a TSR from Block23, Trilok Puri, Delhi, for Old Delhi Railway Station. At about 10.30 pm when they reached near TB Hospital, near Old Pandav Nagar Police Station, Delhi, the auto driver stopped the SC No. 258/2019 Page 9/30 ASJ-04/East/KKD/Delhi TSR on the pretext that his two brothers had to go to Railway Station and they will also join them. PW1 protested as they were in a hurry to reach the railway station and told the TSR driver not to accompany them in the TSR, however, the TSR driver was adamant. PW1 suspected the conduct of the TSR driver, so they got down. At this the TSR driver Mohd. Umer, whom PW1 identified as the TSR driver before the court, stated grappling with PW1. Meanwhile other two accused persons Shahid and Tasleem, whom PW1 identified before court, also joined accused Mohd. Umer and all of them started beating PW1. Accused Shahid tried to snatch his mobile phone make 'Apple', which was in his hands. PW1 deposed that accused Shahid snatched his mobile phone and hit it on his forehead. At that stage, PW1 showed a scar above his right eyebrow stating that it was a scar of the said injury. PW1 deposed that he was beaten by all accused persons due to which his right shoulder got dislocated.
He fell down on the ground and all the three accused persons fled away from the spot in the same TSR. On seeking the incident his aforesaid two friends also ran away. PW1 made a call to the police at 100 number. PCR arrived at the spot and took PW1 to LBS Hospital where the police recorded his statement Ex.PW1/A. He also deposed regarding the arrest of accused persons upon his identification and he identified his signature on arrest memos Ex. PW1/B, Ex. PW1/C and Ex. PW1/D as well as personal search memos Ex. PW1/E, Ex. PW1/F and Ex. PW1/G.
14) PW2 Gautam Kumar, friend of complainant Nisar Ahmad PW1, deposed that on 10.05.2016 he alongwith his friend SC No. 258/2019 Page 10/30 ASJ-04/East/KKD/Delhi Nisar Ahmad and Shukhru boarded a TSR from Block No. 23, Trilok Puri, Delhi, for going to Old Delhi Railway Station. At about 10.30 pm when the TSR reached TB Hospital near old Police Station Pandav Nagar, the TSR driver stopped the TSR stating that two other persons were also coming to travel with them in the said TSR. They protested as they were not willing to travel with any other person and they were already getting late to reach the railway station. The TSR driver started arguing with his friend Nisar Ahmad and started quarreling with him. In the meanwhile two other persons also reached there and all of them started beating his friend Nisar Ahmad. During this time, he was in process of taking out their luggage from the TSR. PW2 further deposed that on seeing that all the three persons were beating his friend, he left the spot with his luggage. At the time of incident, the mobile phone make 'Apple' of his friend Nisar Ahmad was also snatched by accused persons. Later on police made inquiries from him at LBS Hospital, where he reached after knowing that his friend Nisar Ahmad has been taken to LBS Hospital. He narrated all facts to the police and his statement was recorded. PW2 identified only accused Amar @ Mohd. Umer being driver of TSR, who had quarreled with his friend Nisar Ahmad alongwith his two other associates. PW2 deposed that he had not seen two associates of accused Mohd. Umer properly as he was in hurry to take out his luggage from the TSR.
15) PW5 Shukhru (Sukdu) deposed that on 10.05.2016 he alongwith his known persons Nisar Ahmad and Gautam Kumar, resident of Block No. 23, Trilok Puri, hired a TSR for SC No. 258/2019 Page 11/30 ASJ-04/East/KKD/Delhi going to Old Railway Station. At about 10.50 pm when TSR reached near TB Hospital, near Pandav Nagar, the TSR driver stopped the TSR. Thereafter, an altercation took place between Nisar Ahmad and TSR Driver. He was drunk at that time and on seeing that they started quarreling, he ran away from the spot. He did not know what was the reason for altercation due to his drunken condition. The phone call was made to the police at 100 number by Nisar Ahmad. PCR arrived at the spot and took injured Nisar to Hospital. Police made inquiries from him and he he narrated the whole incident to the police.
16) Ld. Addl.P.P. for the State crossexamined PW5, however, he denied the suggestions regarding the incident as stated by Ld. Addl.P.P. for the State and he failed to identify any of the accused persons, present in the court.
17) Accordingly, PW1 has deposed that he was given beatings by the accused persons at the time of incident and he made a call at 100 number. PCR arrived at the spot and took him to LBS Hospital where he was medically examined. Hence, PW1 deposed regarding the incident being an injured witness. As regards testimony of an injured witness, the Hon'ble Supreme Court in Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 made the following observations:
"Injured witness
28. 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 SC No. 258/2019 Page 12/30 ASJ-04/East/KKD/Delhi occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with a builtin 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."
18) In Abdul Sayeed v. State of M.P., (supra), the Hon'ble Supreme Court also reiterated the special evidentiary status accorded to the testimony of an injured accused and relying on its earlier judgments and noted the decision in Shivalingappa Kallayanappa v. State of Karnataka [1994 Supp (3) SCC 235 : 1994 SCC (Cri) 1694] wherein it was 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. The Hon'ble Supreme Court further observed as follows:
"30. The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a 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 will not want to let his actual assailant go 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 SC No. 258/2019 Page 13/30 ASJ-04/East/KKD/Delhi grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."
19) In State of U.P. v. Kishan Chand [(2004) 7 SCC 629 : 2004 SCC (Cri) 2013] a similar view has been reiterated observing that the testimony of a stamped witness has its own relevance and efficacy. The fact that the witness sustained injuries at the time and place of occurrence, lends support to his testimony that he was present during the occurrence. In case the injured witness is subjected to lengthy crossexamination and nothing can be elicited to discard his testimony, it should be relied upon.
20) The law on the point can be summarised to the effect that the testimony of the injured witness is accorded a special status in law. This is as a 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 will not want to let his actual assailant go 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.
21) The testimony of the witnesses has to be examined in the light of the law discussed hereinabove. From perusal of testimony of PW1 Nisar Ahmad, it is manifest that on the date of incident i.e. 10.05.2016, he alongwith his friends Gautam Kumar SC No. 258/2019 Page 14/30 ASJ-04/East/KKD/Delhi PW2 and Shukhru PW5 took a TSR from 23 Block, Trilok Puri, Delhi, for old Delhi railway station. At about 10.30 pm when they reached near TB Hospital, near Old Pandav Nagar Police Station, Delhi, the auto driver i.e. accused Amar @ Mohd. Umer stopped the TSR to take his two brothers alongwith them to the Railway Station. The complainant PW1 protested as they were in a hurry to reach the railway station and asked the TSR driver not to take them along in the TSR, however, the TSR driver was adamant. PW1 suspected the conduct of the TSR driver, so they got down. At this the TSR driver Mohd. Umer started grappling with PW1. Meanwhile other two accused persons Shahid and Tasleem also joined accused Mohd. Umer and all of them started beating PW1. Accused Shahid tried to snatch his mobile phone make 'Apple', which was in his hands and accused Shahid snatched his mobile phone and hit it on his forehead. PW1 was beaten by all accused persons due to which his right shoulder got dislocated. He fell down on the ground and all the three accused persons fled away from the spot in the same TSR. On seeing the incident his aforesaid two friends also ran away. PW1 made a call to the police at 100 number.
22) The testimony of PW1 also stands corroborated by the testimony of PW2 on all material points regarding the incident on 10.05.2016 at about 10.30 pm when PW2 alongwith his friends Nisar Ahmad and Shukhru took a TSR to go to Old Delhi Railway Station. The TSR driver stopped the TSR stating that two other persons would also accompany them in the TSR. They protested as they were not willing to travel with other SC No. 258/2019 Page 15/30 ASJ-04/East/KKD/Delhi persons and were already getting late to reach the railway station. The TSR driver started arguing and quarreling with Nisar Ahmad. Meanwhile other two accused persons also reached there and all of them started beating Nisar Ahmad.
23) PW2 also stated that at that time he was taking out luggage from the TSR and on seeing that all three accused persons were beating PW1, he left the spot with his luggage. He also stated that at the time of incident the mobile phone make 'Apple' of Nisar Ahmad was also snatched by them. PW2 identified accused Mohd. Umer as the the TSR driver. He failed to identify the other two accused Shahid and Tasleem while stating that he had not seen the two associates of accused Mohd. Umer properly as he was in a hurry to take out luggage from the TSR.
24) Accordingly, PW2 in his testimony has corroborated the testimony of PW1 on all material points. The fact that he could not identify accused Shahid and Tasleem will not accrue to the benefit of the accused persons as PW2 has stated that he had not seen the associates of accused Mohd. Umer as he was in a hurry to take out his luggage from the TSR. All the three accused persons stand identified by the complainant PW1.
25) PW3 Deepak Maggo was the owner of the TSR no. DL1RL6186. He deposed that the said TSR was taken on rent by accused Mohd. Umer and was impounded by the police in the present case. He got the TSR released on superdari. He proved SC No. 258/2019 Page 16/30 ASJ-04/East/KKD/Delhi the photographs of the TSR Ex. PW3/B1 to B4, which were taken at the time of releasing the TSR to him at the police station. Nothing was revealed in his crossexamination to indicate that he was not the owner of the said TSR. However, he stated that there was no written agreement between him and accused Mohd. Umer for taking his TSR on rent. No suggestion was given to him that he had not given the said TSR on rent to accused Mohd. Umer or that he was not the owner of the said TSR.
26) PW5 Shukhru (Sukdu) has also deposed regarding the incident and the fact that a quarrel had occurred between Nisar Ahmad and the TSR driver. He was drunk at that time and ran away from the spot. However, he did not know the reason for altercation due to his drunken condition. He did not depose regarding the involvement of accused Tasleem and Shahid. He could not identify the TSR driver.
27) PW5 was crossexamined by Ld. Addl.P.P. for the State, however, he did not support the allegations against the accused Tasleem and Shahid or that the mobile phone of Nisar Ahmad was snatched by them. He volunteered that the mobile phone of Nisar had fallen down on the place of incident. He denied that he was deliberately not telling true facts of the case or not identifying the accused persons in order to save them as he had been won over by the accused persons. PW5 was confronted with his statement to the police recorded u/s 161 Cr.P.C., however, he stuck to his version as deposed by him in his examinationinchief.
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28) It is settled law that it is not that the testimony of hostile witnesses is to be discarded altogether as the same is available to be read. In this context, reference can be made to Dhananjay Singh Chauhan vs State 2013 IV AD (Cri) (DHC) 259 wherein the Hon'ble Supreme Court observed as under:
"There appears to be misconception regarding the effect on the testimony of a witness declared hostile. It is a misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. This Court in Bhagwan Singh v. State of Haryana [AIR 1976 SC 202] held that merely because the Court gave permission to the Public Prosecutor to cross examine his own witness describing him as hostile witness does not completely efface his evidence. The evidence remains admissible in the trial and there is no legal bar to base conviction upon the testimony of such witness. In Rabindra Kumar Dey v. State of Orissa [AIR 1977 SC 170] it was observed that by giving permission to cross examine nothing adverse to the credit of the witness is decided and the witness does not become unreliable only by his declaration as hostile. Merely on this ground his whole testimony cannot be excluded from consideration. In a criminal trial where a prosecution witness is crossexamined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy."
29) The above principle of law has been followed in Krishan Chander vs. State of Delhi, (2016) 3 SCC 108 etc. The Law therefore permits courts to take into consideration the deposition of the hostile witness to the extent the same is in SC No. 258/2019 Page 18/30 ASJ-04/East/KKD/Delhi consonance with the case of the prosecution and is found to be reliable on careful judicial scrutiny.
30) Hence, even though PW5 turned hostile on certain aspects regarding involvement of accused Tasleem and Shahid. It is a settled legal proposition that testimony of a hostile witness can also be considered to the extent that it is found. PW5 has supported the prosecution version as regards the time and place of incident and the fact that an altercation took place between Nisar Ahmad and TSR driver. He stated that on seeing that they were quarreling, he ran away from the spot. He also stated that he did not know the reason for quarrel due to his drunken condition.
31) Considering that the testimony of PW1 is corroborated by the testimony of PW2 Gautam Kumar on material points without there being significant contradictions in their testimonies, it transpires that on the date and time of incident accused Amar @ Mohd. Umer alongwith his associates Tasleem and Shahid had given beatings to PW1 Nisar Ahmad. The TSR in issue was taken on rent by accused Mohd. Umer from PW3 Deepak Maggo. The mobile phone of make 'Apple' of Nisar Ahmad was snatched by accused Shahid, who also hit Nisar Ahmad with that mobile phone on his forehead. Thereafter all the three accused persons fled away from the spot in the said TSR.
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32) Nisar Ahmad PW1 was medically examined at LBS Hospital vide MLC No. 6295/2016 bearing CR No. 98984/2016 on 10.05.2016 at 11.28 pm Ex. C4 with an alleged history of assault. As per the MLC, there were following injuries found on the complainant Nisar Ahmad.
i) LW of size 2x1 cm on right eyebrow (shape of wound drawn in MLC - crescent shape).
ii) Right shoulder pain. iii) Abrasion on lower lip.
The patient was referred to SR. Ortho and advised XRay of right shoulder.
33) The opinion given by Dr. Vishal Gupta was proved by PW7 Dr. Sanjeev Gambhir. He deposed that as per the opinion of Dr. Vishal Gupta, the patient had suffered dislocation of right shoulder and he opined that the nature of injury suffered by patient Nisar Ahmad were 'grievous' in nature.
34) Accordingly the testimony of PW1 also stands corroborated by the medical evidence. PW1 Nisar Ahmad had deposed that accused Shahid had hit the mobile phone on his forehead. He also showed a scar above his right eyebrow at the time of recording of his testimony stating that it was the scar of that injury. The MLC Ex. C4 also indicated a lacerated wound over the right eyebrow wherein the cresent shape of the said injury is also drawn. The injury suffered by the complainant i.e. dislocation of his right shoulder has been opined to be grievous SC No. 258/2019 Page 20/30 ASJ-04/East/KKD/Delhi in nature. It is also noteworthy that PW1 has deposed that he was discharged from LBS Hospital on the same day.
35) Hence, in the present case no major contradiction or discrepancies have been brought forth in the testimony of PW1, which stands corroborated by the testimony of PW2 on material points regarding the manner in which the incident transpired as also by the testimony of PW5 regarding the time and place of the incident and that PW5 had boarded a TSR alongwith PW1 and PW2 to go to Old Delhi Railway Station and also that an altercation took place between Nisar Ahmad and TSR driver. The testimony of PW1, who is an injured witness, inspires confidence. His testimony is duly corroborated by his MLC Ex. C4, which was prepared on the same night of the incident i.e. on 10.05.2016 and the incident had occurred in between 10.30 to 11.00 pm. The nature of injuries as deposed by PW1 is also corroborated by MLC Ex. C4. As per the opinion given as regards the nature of injury, the complainant PW1 had suffered dislocation of shoulder which was opined to be 'grievous' in nature.
36) As deposed by PW1 and PW2, they had boarded an auto alongwith their friend Shukhru to go to Old Delhi Railway Station. At about 10.30 pm, when they reached near TB Hospital, near Old Pandav Nagar Police Station, Delhi, the auto driver stopped the TSR saying that his two brothers also had to go to railway station and that they will also accompany them. It is urged by ld. Counsel for the accused persons that in his initial SC No. 258/2019 Page 21/30 ASJ-04/East/KKD/Delhi complaint Ex. PW1/A, the complainant has stated that he would meet his brother and then proceed, hence, there is a contradiction as regards the purpose for which the TSR driver had stopped the auto. However, considering the fact that the main reason of quarrel was stoppage of the auto on way to the Railway Station, the fact that it was stopped for meeting the brother or for taking them along in the auto would not be such a material contradiction so as to dislodge the prosecution case.
37) It is noteworthy that PW1 and PW2 protested as they were not willing to travel with the associates of accused Amar @ Mohd. Umer i.e. Tasleem and Shahid as they were already getting late. PW1 suspected the conduct of TSR driver and therefore they got down and an altercation ensued between PW1 and the TSR driver i.e. accused Amar @ Mohd. Umer and he started grappling with PW1. Meanwhile, accused Tasleem and Shahid also joined him and all of them started beating PW1. From the said testimony it is manifest that accused Amar @ Mohd. Umer had stopped the auto at the spot, while taking the complainant and his friends to the railway station and when the quarrel started, his two associates i.e. accused Tasleem and Shahid also joined Amar @ Mohd. Umer in giving beatings to PW1 and also robbed him of his mobile phone, which shows that they were acting in furtherance of their common intention. Infact PW1 also deposed that he suspected the conduct of accused Amar @ Mohd. Umer, so they deboarded the auto, also indicates that the intention of accused Amar @ Mohd. Umer in stopping the auto midway was not bonafide.
SC No. 258/2019 Page 22/30 ASJ-04/East/KKD/Delhi Defence of the accused persons :
38) In their statements recorded u/s 313 Cr.P.C. accused persons denied the correctness of all the incriminating circumstances appearing in the evidence against them and stated that they were innocent and were falsely implicated in this case at the instance of complainant Nisar Ahmad. Nisar Ahmad and his two friends Gautam Kumar and Shukhru were under influence of liquor and they themselves quarreled with them on the issue of TSR fare. They had not beaten Nisar Ahmad rather public persons had beaten Nisar Ahmad and his two friends as they were under the influence of liquor and were creating commotion and were misbehaving with them and other locality persons. The said incident was witnessed by locality residents and other public persons, who saved them from the complainant and his two friends.
39) The accused persons opted to lead evidence in their defence and led the evidence of DW1 Sandeep Sharma, who deposed that on 10.05.2016 at about 10.30 pm, there was no electricity in the area. He came out from his house. He saw that a TSR driver and three passengers, who were seemed to be drunk, were arguing. Accused Tasleem was present with him and talking to him. On seeing the arguments between TSR driver and those passengers, Tasleem went there. Accused Shahid was also standing with TSR driver. When Tasleem joined them i.e. Shahid and TSR driver, a quarrel took place between those three passengers and these three persons. The quarrel was started by SC No. 258/2019 Page 23/30 ASJ-04/East/KKD/Delhi the passengers. Thereafter, those passengers left the spot and accused persons also reached home. He remained present at the spot for about an hour but no policeman came there till that time.
He did not know anything else about the case.
40) DW1 was also crossexamined by Ld. Addl.P.P. for the State and he deposed that he knew Shahid for the past six to seven years and Tasleem for the past seven years. He did not know the TSR driver. He did not go to the spot where the quarrel took place and it was at a distance of 1020 meters from him. He did not know the reason of quarrel between them. Arguments started in his presence. DW1 stated that Tasleem was known to Shahid and that is why he went there. He stated that he came to know about the case against the accused persons a day before the previous day. Prior to that he was never told about the present case by the accused persons. He denied that he was deposing falsely at the instance of the accused persons to save them and that is why he was denying that he was aware of the present case despite the fact that both the accused persons were known to him since long.
41) Accordingly from the testimony of DW1 and the statements of accused persons recorded u/s 313 Cr.P.C. it is manifest that the accused persons were admittedly present at the spot at the time of incident. DW1 also stated that a quarrel took place between the three passengers and the three accused persons. The nature of quarrel has not been described by DW1.
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42) Infact testimony of DW1 corroborates the version of the complainant that a quarrel had indeed taken place between the accused persons and the passengers i.e. complainant and his two friends. Additionally, though DW1 has mentioned about the quarrel, however, he has omitted to depose regarding the nature of quarrel (i.e. beatings given to the complainant), which has to be seen in light of the fact that the witness DW1 had known accused Shahid and Tasleem since a long time.
43) It is also noteworthy that in their statement recorded u/s 313 Cr.P.C. the accused persons have stated that the complainant Nisar Ahmad and his two friends Gautam Kumar and Shukru were under influence of liquor and they themselves quarreled with the accused Amar @ Mohd. Umer and other two accused persons on the issue of TSR fare. They also stated that the public persons had beaten Nisar Ahmad and his two friends, who under the influence of liquor were creating commotion and misbehaving with accused persons and other locality persons. On the other hand, DW1 has not stated anything regarding any beatings given by the public persons to the complainant and his friends. DW1 has also not deposed regarding the reason for quarrel. He also did not depose regarding any beatings given by public persons to the complainant and his friends despite the fact that he claimed himself to be the eye witness of the incident. In these circumstances, the testimony of DW1 has to be viewed with circumspection considering that he was known to the accused persons since long.
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44) Nothing has emerged in the crossexamination of complainant PW1 Nisar Ahmad or PW2 Gaurav Kumar to prove the defence raised by the accused persons and the said witnesses stuck to their version as given in their examinationinchief despite their crossexamination at length. PW1 Nisar Ahmad identified all the accused persons before the court. He identified accused Amar @ Mohd. Umer as the TSR driver, accused Shahid as the person who snatched his mobile phone and hit it on his head as well as accused Tasleem as the person who was present there and had joined in the beatings given to him.
45) The contention of ld. Counsels for the accused that if the complainant was hit on his head with the alleged mobile phone, then he would not have suffered a dislocation of shoulder and his shoulder got dislocated as he himself fell down, as indicated in his MLC Ex. C4, is untenable, in as much as PW1 has also categorically deposed that he was given beatings by the accused persons due to which his right shoulder dislocated and he fell down on the ground and all the three accused persons fled away from the spot.
46) It is also contended by ld. Counsel for the accused persons that no recovery of mobile phone has been effected and the complainant has failed to prove that he owned any mobile phone of make 'Apple' at the time of incident. The complainant has not even mentioned his mobile number in his testimony recorded before the court. No bill or invoice of the alleged mobile phone has been placed on record to show that the SC No. 258/2019 Page 26/30 ASJ-04/East/KKD/Delhi complainant owned the alleged mobile phone on the date of incident. In this regard it is noted that recovery of the mobile phone is not a sine qua non in order to prove the offence of robbery. The testimony of PW1 in this regard is also corroborated by the testimony of PW2 and they have stated that the mobile phone of 'Apple' make of the complainant had been robbed at the time of incident. Though the mobile number of the complainant is mentioned in the initial complaint Ex. PW1/A, however, the same is not mentioned in the testimony recorded before the court. Moreoever, the complainant has not been cross examined on that aspect. No questions have been put to PW1 or PW2 controverting the said fact and no suggestion has been put to the said witnesses that PW1 Nasir Ahmed did not have any ' Apple' mobile phone at the time of incident.
47) It is also argued that though DD No. 40A Ex. C3 was lodged regarding beatings to the caller and that his money had been snatched, however, the complaint had been lodged regarding snatching away of the mobile phone by the accused persons, which is a material contradiction thereby creating doubt on the version of the complainant. In this context it is noted that DD No. 40A, Ex. C3 was recorded at the police station on the basis of PCR call received and it was the only initial information given to the police that an incident had occurred and to bring the police machinery into action. Much emphasis cannot be placed on the contents of the said DD entry as the version of the complainant as given in the complaint Ex. PW1/A and then in his SC No. 258/2019 Page 27/30 ASJ-04/East/KKD/Delhi testimony recorded before the court regarding snatching of his mobile phone has remained consistent.
48) In view of the aforesaid discussion, the accused persons have failed to prove the defence raised by them.
49) Hence, it is proved on record that the accused persons in furtherance of their common intention had given beatings to the complainant Nasir Ahmad PW1 and accused Shahid had also snatched away his mobile phone at that time and hence, committed robbery. While committing robbery, the accused persons had caused grievous injury to complainant Nisar Ahmad PW1. The complainant Nisar Ahmad had suffered dislocation of shoulder and the injury was opined to be grievous in nature vide Ex. C4. In terms of Clause Seventhly of Section 320 IPC fracture or dislocation of bone is designated as grievous hurt. Accordingly, grievous hurt as described in Clause Seventhly of Section 320 IPC was caused to the complainant at the time of incident.
50) The accused persons have been charged for the offences u/s 394/397/34 IPC. In this regard it would be worthwhile to consider the judgment of the Hon'ble High Court passed in case Chattar Pal v. State NCT of Delhi, in Crl.A.723/2011 dated 30.04.2015 wherein it is held as under :
"9. In this case, prosecution has failed to prove that appellant had used any 'deadly weapon' at the time of commission of robbery or had caused 'grievous hurt'. Role of causing grievous hurt has also not been singularly assigned to the appellant. Statement of witnesses are that SC No. 258/2019 Page 28/30 ASJ-04/East/KKD/Delhi appellant along with accomplices had entered in the house and committed robbery and while committing robbery, grievous hurt was caused on the persons of Rajwati Devi and Nagender Kumar Rai by iron rods. No specific role has been assigned to the appellant either of using a 'deadly weapon' or causing grievous hurt inasmuch as, who caused grievous hurt is also not clear as only a general statement has been made in this regard. Accordingly, though ingredients of offence under Section 394 IPC are attracted since while committing robbery grievous hurt was caused to the above named two victims, however, ingredients of offence under Section 397 IPC are not attracted since no evidence has come on record that the appellant had caused grievous hurt or used deadly weapon, inas much as weapon of offence was not recovered from him. Accordingly, conviction of appellant under Section 397 IPC is set aside."
51) Similarly, in facts of the present case, it is not proved on record as to which of the accused persons had inflicted the said grievous injury to the complainant at the time of commission of robbery. In these circumstances, charge u/s 397 IPC is not proved against any specific accused person. However, charge u/s 394 r/w Sec. 34 IPC has been framed against the accused persons. Considering that the accused persons had caused grievous hurt to the complainant at the time of commission of robbery, the accused persons are therefore held guilty for the offence u/s 394 r/w Section 34 IPC for voluntarily causing hurt while committing robbery.
52) In these circumstances, it is proved on record that the accused persons namely Amar @ Mohd. Umer, Tasleem and Shahid in furtherance of their common intention committed robbery of mobile phone from the complainant Nisar Ahmad and while committing robbery, they voluntarily caused hurt to the SC No. 258/2019 Page 29/30 ASJ-04/East/KKD/Delhi complainant at the time of robbery and therefore, they are held guilty for the offence u/s 394 r/w Section 34 IPC.
order DEEPALI Digitally signed by DEEPALI SHARMA Announced in the open Court SHARMA Date: 2023.03.27 17:03:48 +0530 on this 27th day of March, 2023 (Deepali Sharma) Additional Sessions Judge04 East District/KKD Courts/Delhi.
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