Delhi District Court
State vs Suhail @ Nirala & Others 1. Suhail @ ... on 21 May, 2022
IN THE COURT OF SH. POORAN CHAND,
ADDITIONAL SESSIONS JUDGE (WEST-02), DELHI
Sessions Case No. 56873/2016
Assigned to Sessions on 04.05.2011
FIR No. 23/2011
Police Station Moti Nagar
Under Section U/s. 394/397/411/34 IPC
Charged Under Section U/s. 392/394/397/411/34 IPC
State Vs Suhail @ Nirala & Others 1. Suhail @ Nirala,
s/o. Sh. Asphaq,
r/o. Jhuggi no. 177, Rakhi Market,
Zakhira, Delhi.
2. Mohd. Afzal @ Chikna @ Raju @
Karan, Proclaimed Offender (P.O.),
s/o. Mohd. Anvarul.
R/o. Jhuggi under Zakhira Flyover,
Delhi.
3. Sudhir Gosh @ Babu (JCL),
s/o. Sanatan Gosh
4. Parvez @ Gazni (absconded),
s/o. Mohd. Shakeel,
r/o. Jhuggi Gadde Wali, near Daya
Basti, Railway Station, Delhi.
Arguments heard on 21.05.2022
Date of Judgment 21.05.2022
Final Order Convicted
Appearance(s) : Sh. Alok Saxena, Ld. Addl. PP for the State.
Sh. R.R. Jha, Ld. LAC for accused Suhail @ Nirala
SC No.56873/2016 State Vs Suhail @ Nirala Page 1 of 30
JUDGMENT
(A) PRELUDE :
1. The case pertaining to the charge sheet u/s 173(2) Cr.P.C. in respect of FIR No.23/2011 u/s. 394/397/411/34 IPC of PS Moti Nagar was committed to the Ld. District & Sessions Judge (West), Delhi vide order dated 29.04.2011 of the Ld. MM.
(B) PROSECUTION VERSION :
2. The brief factual matrix as per the case of the prosecution are that accused Suhail @ Nirala and Mohd. Afzal @ Chikna (P.O.) were put on trial for the charges against them framed vide order dated 13.05.2011 on the allegation that they both alongwith Parvez @ Gazni (not arrested) and Sudhir Gosh @ Babu (JCL), on 31.01.2011 at about 1 pm at new Rohtak Road, near Old Petrol Pump in furtherance of their common intention robbed complainant Vijay Kumar Bhargava, Radha Bhargava, Rameshwar Bhargava and Shambhu while they were attending back after returning marriage from Rohtak by their Zen Estilo Car and while committing robbery have also used weapon and caused simple as well as grievous injury to the injured and were charged for having committed offence u/s. 392/394/397 r/w. Section 34 IPC and accused Suhail & Afzal @ Chikna were also charged u/s. 411 IPC for dishonestly retaining stolen property i.e. mobile phone belonging to complainant, Vijay Kumar Bhargava.
3. Facts arise to the present case are that DD No. 7A dated 31.01.2011 was recorded in P.S Moti Nagar to the effect that "maruti DL-7CK-6744 walon ke sath china jhapti hui hai". The said DD was marked to HC Nem Pal Sharma for attending and proceeding as per SC No.56873/2016 State Vs Suhail @ Nirala Page 2 of 30 law by the duty officer. Thereafter, police force set into motion and in the meantime, vide DD no. 8A and 9A from PCR it was further informed that injured has been shifted to Jeevan Mala Hospital, new Rohtak Road. Accordingly, HC Nem Pal Sharma alongwith Ct. Krishan reached at Jeevan Mala Hospital and obtained MLC no. 18/11 of Rameshwar, who was found unfit for statement as per observation of doctor and also obtained MLC no. 19/11, 20/11 of Shambhu and Vijay Kumar Bhargava respectively. On the MLC of Vijay Kumar Bhargava doctor gave observation i.e. "fit for statement". Thereafter, he made inquiry from complainant Vijay Kumar Bhargava and recorded his statement Ex. PW-1/A and prepared rukka and got the present FIR registered. As per complaint, Vijay Kumar Bhargava has stated that on 31.01.2011 at about 1:00 pm he was returning back alongwith Radha Bhargava, wife and Rameshwar Bhargava, brother-in-law, the said vehicle was being driven by PW Shambhu being driver, after attending marriage in Rohtak, prior to Jhakhira flyover, his driver noticed the noise of open dikki and on this complainant asked him to stop the vehicle and he locked the dikki and as and when he was about to shift in the car again, two boys aged about 20-22 years hit him on his head by a danda and also robbed his 2 gold rings, Rs. 2200/-, two ATM card, DL, wrist watch and mobile phone and thereafter also robbed his wife Radha Bhargava and brother in law and when his driver tried to save them they also robbed him and hit with the sharp edge weapon and thereafter, they all run away with the robbed articles. Thereafter, at some distance they found PCR van on duty who were informed by some passersby regarding this incident and they admitted the injured persons in Jeevan Mala Hospital. Thereafter, HC Nem Pal Sharma prepared the rukka and got the FIR registered through DO and after registration of the FIR further investigation was marked to SI Rajender Singh and thereafter SI Rajinder Singh (hereinafter called IO) reached SC No.56873/2016 State Vs Suhail @ Nirala Page 3 of 30 at Jeevan Mala Hosital where doctor handed over him two parcels and thereafter he came back to the spot and prepared the site plan. In the meantime, crime team as per direction of the I.O reached at the spot, took the photographs and lifted chance prints and recorded statement of the witnesss and also searched about the accused but of no avail.
4. Thereafter, on 03.02.2011, accused Suhail @ Nirala and Mohd.
Afzal @ Chikna were arrested on the information of secret informer from near Raja ka Hotel and got recovered weapon of offence, robbed articles i.e. gold rings and stolen mobile phone and case property pursuant to the disclosure statement of both the accused persons. After completion of the entire investigation, I.O calculated charge sheet and filed in the court for judicial verdict. It is pertinent to mention that since accused Sudhir Gosh @ Babu was a JCL, the separate charge sheet against him was filed in JJB. The charge sheet U/S 173 (2) Cr.PC was filed against Suhail @ Nirala and Mohd. Afzal @ Chikna in the court for the offences u/s. 394/397/411/34 IPC. It is also pertinent to mention that during the trial accused Mohd. Afzal stopped appearing in this case and he was declared PO vide order dated 06.05.2017. It is also pertinent to mention that accused Parvez @ Gazni could not be arrested and still absconded.
5. During the prosecution evidence supplementary charge sheet containing FSL report was filed. It is also pertinent to mention that on 21.05.2022 charge was altered u/s. 216 Cr.PC due to technical defects. In reply to the specific question whether the accused wishes to recall any witness already examined, he replied in negative.
SC No.56873/2016 State Vs Suhail @ Nirala Page 4 of 30(C) THE CHARGE :
6. After the committal proceedings, the case was sent to Ld. Sessions Court and Ld. Predecessor of this court after considering the material on record and hearing the Addl. PP and accused persons, found a prima facie case for the offences punishable under section 392/394/397/411/34 IPC against both the accused persons. Charges were accordingly framed to which they pleaded not guilty and claimed trial.
(D) PROSECUTION EVIDENCE :
In order to prove its case, prosecution examined in as much as 20 witnesses.
7. PW-1 is Vijay Kumar Bhargawa, who has deposed as under :
"On 31.01.2011, I was coming in my Zen Estilo car no. DL7CK 6744, along with my wife namely Radha and my brother in law Sh. Rameshwar Bharghav. The vehicle was being driven by our driver namely Sambhu. We were returning back to our home after attending one marriage party at Rohtak. At about 01:00 AM, we reached prior to Jakhira Flyover. Sound of opened dikki was coming. I asked my driver Sambhu to stop the vehicle on the side of the road, to check the dikki. After getting stopped the vehicle, I got down from the vehicle, went at the backside of the vehicle and I closed the dikki of the car and the moment I was returning to take my seat, someone hit a danda on my head. They were in total 4-5 persons. After having received injuries on my head, I sat on the road itself in the side of the vehicle and those persons had taken my two gold rings and my purse containing an amount of Rs.2100-2200/-, one driving license, ATM cards, RC and they had also taken my mobile phone no. 9910819945. Thereafter, those persons had taken 3 gold rings, one artificial ring and one artificial necklace and one purse of my brother in law containing money and stabbed him on his person. When our driver Sambhu tried to save us, he was also assaulted on his hand and he received injuries. They had also taken the mobile phone of Sambhu. Thereafter, they all run away from there. We drove our vehicle to some distance and some traffic police officials met us at some distance and we narrated all these facts to them. Police officials recorded my statement which is Ex.PW1/A, bears my signatures at point A. I have shown the place of occurrence to the police officials. Later on, I produced the aforesaid car before the police and they had taken the same into police possession. The vehicle has been released to my wife SC No.56873/2016 State Vs Suhail @ Nirala Page 5 of 30 on superdari as she was the registered owner of the vehicle. My wife had identified the gold rings during TIP proceedings of the case property. But case property has not been released to us till today. I identify both the accused persons standing in the dock. I can identify the case property if shown to me.
At this stage, MHC(M) produced the case property i.e. one small sealed parcel. Parcel is got opened and it is found containing one gold ring, now in damaged condition. I identify the gold ring. It is the gold ring of my wife which was taken away by the accused persons. The gold ring is Ex.P1.
I have brought the aforesaid vehicle. The same is parked in the parking of Tis Hazari Court. At this stage, the witness, Ld. Defence counsel went outside the court to see the vehicle.
At this stage, the witness and Ld. Defence counsel, both attended the court and witness stated that it was the same Zen Estilo car in which he along with other persons was traveling back to his residence from Rohtak. The vehicle is Ex.P2.
XXX by Sh. Anil Dutt Sharma, Ld. Counsel for Suhail @ Nirala. The aforesaid vehicle was a model of December 2010. I am not aware if the driver has two switch handle to operate the dikki of the car while sitting on the driver seat and the other switch handle to open petrol tank lid. I know driving. After getting stopped the vehicle, first and foremost I got down from the vehicle to check the dikki. It is correct that other persons were sitting inside the vehicle at that time. I had taken the keys from the driver and I locked the dikki without opening it. It hardly 10 seconds to me to close the dikki and after closing the dikki I was about to board inside the vehicle when I was assaulted with a danda on my head. It is correct that I was assaulted on my head from my back and at that time I could not exactly see the total number of assailants. Out of those accused persons, one accused only assaulted me on my head with danda.
XXX by Sh. A.K. Sharma, Ld. Cl. for both accused.
We started from Rohtak at about 10.45 PM. We reached the spot at about 12.45-1.00 AM on the next day. I went to close the Dicky. I did not see the face exactly of the assailant who has hit me by Danda but he was a person of short height. He was of the age of 18-19 years. I have seen all other 4-5 persons. At this stage, the witness identifies the accused Afzal (in the dock) and states that there was one more person. All of them have collectively snatched the goods including my rings, jewellery and purse. I cannot specify who has snatched what. I cannot specify who has snatched chain from my wife. My brother in law was gherao by them and was stabbed by them. He was yelling continously. I cannot specify who has snatched the goods from my brother-in-law. CQ: Whether the snatching was done jointly by all the accused? Ans. Yes. Everyone was snatching.
We did not call the police. Vol. We were shunted away by the accused persons. My statement was recorded by the police in the hospital. I did not meet the police thereafter as my brother -in- law was critically injured. It is correct that police did not take me. Again said: I got confused in answering, the police has taken me to the spot at that time only. "
Thereafter, this witness was again called for further cross- examination but despite opportunity Ld. Counsel did not appear in the court, hence, witness was discharge after giving nil opportunity for cross-examination. "
SC No.56873/2016 State Vs Suhail @ Nirala Page 6 of 308. PW-2 is SI Devender Kumar, part IO and is a witness of formal in nature and have deposed that on 15.03.2011 he collected the case property in sealed condition from the MHC(M) and alongwith 8 more gold rings of similar shape, size and colour produced before Sh. Rajender Kumar, the then Ld. MM for conducting TIP and have also produced Smt. Radha Bhargav, witness, who identified the case property.
9. PW-3 is Shambhu, driver of complainant, who has deposed as under :
"On 30/31.01.2011, being driver of my employer Sh. Vijay Bhaghav, I went with them in Rohtak to attend a marriage. Late night i.e. 31.01.2011 in Zen Estilo car no. 6744, along with his wife namely Radha and his brother in law Sh. Rameshwar Bharghav. We were coming back from Rohtak. At about 12:45 AM, we reached prior to Jakhira Flyover. Sound of opened dikki was coming. Vijay Bharghav asked me to stop the vehicle on the side of the road, to check the dikki. After getting stopped the vehicle, he got down from the vehicle, went at the backside of the vehicle and he closed the dikki of the car and the moment when he was returning to take his seat, someone hit a danda on his head. They were in total 4-5 persons. They were armed with knives. They dragged Vijay Bharghav outside the car. He received injuries on his head. The accused persons had taken one gold ring and purse of me and Vijay Bharghav and mobile phones of me and Vijay Bharghav were also snatched by the accused persons Thereafter, those persons had taken ring and chain and stabbed on the person of brother in law of Vijay Bharghav. I tried to resist to save us , they assaulted me and stabbed on my hand and hip. Thereafter, they all run away from there. There was all blood in the vehicle. We drove our vehicle to some distance and some traffic police officials met us at some distance and we narrated all these facts to them. Police officials came there.
I cannot identify any of the accused person. PCR came on the spot and we were taken to the hospital. Rameshwar Bhargave and I was admitted in Jeevan Mala Hospital. After two days police personnel came in the hospital and showed me the photographs and I was asked to identify the assailants from the amongst the photographs but I have not been able to identify any of the assailants. Thereafter Police personnel requested me to get the sketch of the assailants make and they took me to some office where I described the physical appearance of the assailants and got the sketch made. Prior to it police recorded my statement in the hospital. After few days I went to PS Moti Nagar with the receipt of the mobile phone and I was asked to identify two of the boys who were made to sit at the P.S but I failed to identify them as a assailants. I handed over the receipt of the said mobile to the police person and seized it vide seizure memo Ex PW 3/A bearing my signatures at point A. The said receipt is Ex P-3/1. ( two pages ). On the same day in the evening my employer and and his son in law went to the PS to get his vehicle released on superdari. I can identify my mobile phone, if shown SC No.56873/2016 State Vs Suhail @ Nirala Page 7 of 30 to me. At this stage mobile phone sealed in a pulanda sealed with the seal of AS having case particulars. The seal is broken and one mobile phone is taken and is shown to the witness, which the witness correctly identifies as belonging to him and was snatched on the said date by the assailants. The said mobile phone is Ex P-3. I cannot identify the knife with which I was attacked. I cannot identify the assailants now as sufficient time has elapsed since then. Moreover the incident had happened in the night time and we were caught unawares. At this stage, Ld. Addl. PP requested to cross-examine the witness as he is resiling from his previous statement. Heard. Request allowed. XXXX by Addl. PP Sh. Rajat Kalra for State.
It is correct that it was Maruti Zen Estilo car bearing No. DL 7CK-6744. It is also correct that we departed for attending the marriage ceremony at Rohtak on 30.01.2011. It is correct that firstly two boys aged around 20-
22 yrs came from across the road and one of the boys struck danda in the head of Vijay Bhargav. I came to know the name of accused as Gazni as he was being addressed by the other boy with this name. Vol. Vijay Bhargav caught hold of his head in his hands and laid down on the road after having been struck with danda . I alighted from the car and at that moment one more boy joined them. Accused Gazni addressed the other boy namely Chikna that in case anybody tries to intervene he be struck with knife. At this stage, the other boy being addressed as Chikna struck on my left thigh. It is wrong to suggest that they snatched my mobile phone. Vol I gave to them my purse having Rs.300/- , D/L and my mobile phone make Nokia 2690 and in the meantime one other boy also joined them and he was being addressed as Babu. I do not remember whether I had told the police that all the said three boys then got indulged in snatching of purse, necklace and money from Vijay Bhargav, Radha Bhargav and Rameshwar Bhargav. Vol.one of the said three boys snatched the gold ring, necklace and purse of Radha Bhargav. It is wrong to suggest that they were all four in number. Vol, they were five. It is further vol that the said three boys caught hold of me by over powering me and dragged me towards the darker side, near the petrol pump. I do not remember now whether the boy being addressed as Gazni struck Rameshwar Bhargave with the knife on his left thigh. All that I can say is that Rameshwar Bhargav was pulled outside the car. They demanded money from Rameshwar Bhargav on the point of knife. Rameshwar Bhargav gave some amount to them. Once he had parted with some amount on the point of the knife, one of the said boys asked Rameshwar Bhargav to give more amount and on this Rameshwar Bhargav stammered that he did have any more. The boy who was carrying the knife struck Rameshwar Bhargav with the knife on his thigh. It is correct that they snatched from Vijay Bhargav his mobile phone, two gold rings and his purse. I cannot say whether they had taken away three gold rings which Radha Bhargav was having. Vol I heard one of the boy demanding the ring from Radha Bhargav which she was wearing on the point of knife. (Confronted with statement Mark A where the said facts find mention. ) I do not remember whether I went to PS Moti Nagar on 4.2.2011. I do not remember whether I went with Vijay Bhargav and Radha Bhargav to the PS Moti Nagar on 4.2.2011 for release of vehicle on superdari. All that I can say is that I did went to the PS and handed over the receipt of the mobile phone. It is correct that my statement was recorded on 4.2.2011. It is wrong to suggest that I identified the accused persons namely Mohd Afzal @ Chikna and Suhail @ Nirala at the P.S. (Confronted with statement Mark B where the said facts find mention.) At this stage, on being pointed out towards the accused persons it is suggested to the witness that the accused perons namely Mohd Afzal @ SC No.56873/2016 State Vs Suhail @ Nirala Page 8 of 30 Chikna and Suhail @ Nirala are present in the Court and are two of the boys who had indulged in snatching of the said articles on the point of knife and caused injuries to him, Vijay Bhargav and Rameshwar Bhargav on the said date. However after again seeing them witness says that he did not identify them in the PS on 4.2.2011 and he also failed to identify them today in the Court. It is wrong to suggest that I did identify them in the PS on 4.2.2011 and deposed falsely as to the said fact today in the Court as I have been won over by the accused persons.. It is wrong to suggest that I am deliberately not identifying the accused persons in the Court as I have been won over by the accused persons. XXXXXXXXXX By Ld Counsel Sh Puneet Varshney, Amicus Curiae for both the accused persons.
Nil. ( Opportunity given)
10. PW-4 is ASI Rajender Kumar, Duty Officer who has deposed that on 31.01.2011 he recorded DD no. 7A regarding the incident and proved the same as Ex. PW-4/A and also proved Ex. PW-4/B, DD entry no. 8A on the same night and also proved Ex. PW-4/C, DD no. 9A on the same night. It is also in evidence that in the morning about 6:20 am he recorded FIR Ex. PW-4/D on the basis of rukka and marked the investigation to SI Rajender through Ct. Krishan and have also proved his endorsement on rukka as Ex. PW-4/E, certificate u/s. 65B as Ex. PW-4/F. This witness was not cross examined by the accused despite the opportunity given for the same.
11. PW-5 is SI Kuldeep Shekhawat who was member of the crime team and have deposed that on 31.01.2011 on information received from the control room visited the spot i.e. near old petrol pump Darbanga Jhuggi alongwith HC Devender, photographer and Ct. Suresh Kumar, finger print proficient and also prepared his report Ex. PW-5/A after the inspection. This witness was not cross examined by the accused despite the opportunity given for the same.
12. PW-6 is SI Om Prakash, Duty Officer who has deposed that on 03.02.2011 he lodged DD no. 50A at about 8:10 pm as Ex. PW-6/A SC No.56873/2016 State Vs Suhail @ Nirala Page 9 of 30 regarding the information of you and your co-accused standing near Raja Hotel and forwarded the said information to SI Rajender for further action. This witness was not cross examined by the accused despite the opportunity given for the same.
13. PW-7 Radha Bhargava, who has state as under :
"I am a house wife and has been residing with my family on the address mentioned aforesaid. On 31.01.2011, I was coming in our Zen Estilo car no. DL7CK 6744, along with my husband namely Vijay Kumar Bhargava and my brother Sh. Rameshwar Bharghav. The vehicle was being driven by our driver namely Sambhu. We were returning back to our home after attending one marriage party at Rohtak. At about 01:00 AM, we reached prior to Jakhira Flyover. Sound of opened dikki was coming. My husband asked my driver Sambhu to stop the vehicle on the side of the road, to check the dikki. After getting stopped the vehicle, my husband got down from the vehicle, went at the backside of the vehicle and he properly closed the diggi of the car. At that time, my husband was returning to take his seat and suddenly, someone hit a danda on the head of my husband. They were in total 4-5 persons. They were having knives in their hands. After having received injuries on his head, he sat on the road. Those while starting raising alarm and threatened us to hand over whatever we had. They were also instructing each other. Our driver Shambu tried to object, one of those stabbed Shambu and snatched his mobile. Those persons had taken away two gold rings and purse containing an amount of Rs.2100-2200/-, one driving license, ATM cards, Mobile Phone and RC from my husband. Thereafter, those persons had taken 3 gold rings, one artificial ring and one artificial necklace from me forcibly. The purse of my brother containing money was also taken away by those prsons and when my brother tried to object, he was stabbed by those persons. Thereafter, they all run away from there. We drove our vehicle to some distance and some traffic police officials met us at some distance and my husband narrated all these facts to them. During the investigation, I identify one of my gold ring before Ld. MM during the TIP. The card was in my name and I got released on superdhari. Both the accused persons standing in the dock are the same persons who stabbed us and robbed us. I can identify the case property if shown to me. At this stage, MHC(M) produced the case property i.e. one small sealed parcel with court seal. Parcel is got opened and it is found containing one gold ring, now in damaged condition. The witness identifies her gold ring . The gold ring is already Ex.P1." This witness was also not cross examined by the accused persons despite giving opportunity for the same.
14. PW-8 Dr. Kundan, who has deposed as under :
"I am working in Jeevan Mala Hospital since 2007. On 31.01.2011 at about 1.30AM one injured Rameshwar son of Kunj Bihari Lal was brought to the hospital by PCR official HC Ram Singh. I medically examined injured and prepared MLC Ex PW8/A, bearing my signatures at point A. I observed six injuries on the person of the injured . At that time the injured was unfit for statement and I mentioned this fact at point SC No.56873/2016 State Vs Suhail @ Nirala Page 10 of 30 X on Ex PW8/A. The garments of the injured was also seized and handed over to the IO . The injured was admitted. The injuries were opined as dangerous and sharp . I also identified the signatures of Dr Ajay Chouhan at point 'Z' on Ex PW8/A since I have worked with him and have seen him writing and signing during the course of our duties. The Doctor has already left the hospital and his present address is not available in the hospital. On the same day another injured Shambu S/O Balmiki Dutt was brought to the hospital by PCR official HC Ram Singh. I also medically examined injured and prepared MLC Ex PW8/B, bearing my signatures at point A. I observed three injuries on the person of the injured with sharp object. At that time the injured was fit for statement and I mentioned this fact at point X on Ex PW8/B. The garments of the injured was also seized and handed over to the IO . The injuries were opined as simple . I also identified the signatures of Dr Ajay Chouhan at point 'Z' on Ex PW8/B since I have worked with him and have seen him writing and signing during the course of our duties. The Doctor has already left the hospital and his present address is not available in the hospital. On the same day another injured Vijay Bhargav S/O Bhagwan Dass was brought to the hospital by PCR official HC Ram Singh. I also medically examined injured and prepared MLC Ex PW8/C, bearing my signatures at point A. I observed three injuries on the person of the injured with sharp object. At that time the injured was fit for statement and I mentioned this fact at point X on Ex PW8/C. The injuries were opined as simple . I also identified the signatures of Dr JPS Deed at point 'Z' on Ex PW8/C since I have worked with him and have seen him writing and signing during the course of our duties . The Doctor has already left the hospital and his present address is not available in the hospital."
This witness was also not cross examined by the accused persons despite giving opportunity for the same.
15. PW-9 Sh. Rajinder Kumar, Ld. MM, who has deposed as under:
"On 15.03.2011 I was posted as Metropolitan Magistrate-07 West Tis Hazari Courts. On that day, an application for conducting judicial TIP of the case property was marked to me by the Ld. Link MM Shri and I directed to conduct the TIP in the chamber. The SI Devender appeared before me with the case property. I called the IO inside the chamber along with the case file and sealed case property with the seal of RST. I opened the pullanda and the items taken out of it were mentioned in the proceedings in detail. 8 more gold rings of similar type of jewellery were also brought by the IO and which were identical in appearance with the case property. The IO identified the witness Radha Bhargava. I mixed the case property with the identical items and arranged the same on my table. The witness was called inside the chamber and thereafter she was asked to identify her gold ring. The witness correctly identified the case property. I appended the certificate of the correctness of the proceedings same as Ex.PW9/A bearing my signature at point X. The proceedings of TIP is Ex.PW9/B. The case property was again sealed separately with my seal and handed over to the IO. The other items brought for the purpose of mixing were returned to the IO. I directed to send the proceedings of TIP in sealed cover to the concerned court. I also allowed the application Ex.PW9/C bearing my signature at point X, of the IO to provide photocopy of the proceedings."
This witness was also not cross examined by the accused persons despite giving opportunity for the same.
SC No.56873/2016 State Vs Suhail @ Nirala Page 11 of 3016. PW-10 ASI Devender Kumar, who has deposed as under :
"On 31.1.2011, I was posted as Photographer with the Mobile Crime Team,West Ditt. On that day on receipt of call I along with the crime team under the supervision of SI Kuldeep and Contable Suresh reached at Ambar Park, Darbanga Colony Old Petrol Pump, Main Rohtak Road near Zahkira Flyover and found that blood was scattered there. On the instructions of the IO, I took in all, 10 photographs of the scene of occurrence and also after reaching at Jeevan Mala Hospital The photographs are Ex. PW10/A 1 to Ex. PW 10/A 10. Today I have brought the negatives of the same photographs and the same are Ex. PW 10/B 1 to Ex. PW 10/B-10.
XXXXXXXXX By Ld Counsel Sh Puneet Varshney, Amicus Curiae for both the accused persons.
Nil. ( Opportunity given)"
17. PW-11 Rameshwar Bhargav, who has deposed as under :
"I do not remember again said on 30.01.2011 when we(Vijay Bhargav my son in law, Radha Bhargav my sister and driver Shambhu) were returning after attending marriage at around 1.00 PM in the car( I do not remember the number now) a thak- thak sound came in the car and driver of the car alighted from the car. We kept on sitting in the car. At that time three/four boys surrounded our car. One of the boy struck Vijay Kr Bhargav in his head, I do not with which object he was struck. Thereafter two of the boy got me down from the car. They have snatched the belongings of Vijay Bhargav and Radha Bhargav and my belongings as well . I was given knife blows 8 to 10 times in my thighs, over my hip and on my back. However I cannot tell now who of the said boys stuck me with knife. At this stage witness identifies both the accused persons, present in court, correctly identified as the ones who were present over there at the time of incident and indulged in the crime against him. ( But the witness does not recognize them by name) There was one more person/boy who was fear in complex and who is not present today in the Court. They snatched cash more than 1000/- that was I was carrying at that time. After receiving knife blows I felt somewhat unconscious and fell down on the road. I cannot tell what had happened thereafter. On the next day, police inquired from me and I gave my statement to the police. XXXXXXXXXXXXXX By Sh M Yusuf, for accused Suhail @ Nirala. I do not remember the place where we attended the marriage however we left the spot of marriage at around 12.00 mid night. We had gone outside Delhi to attend the marriage however I cannot tell the exact distance between the place of incident the spot of marriage. It is correct that for the first time during our journey back the driver stop the car. I was sitting on the back side seat of the car alongwith my sister. It is correct that the boys who surrounded the car pulled me only out of the car. I regained my consciousness on the next day in the hospital .It is correct that I do not know what had happened in between. Police met me in the hospital on the next date i e 31.1.2011. I do not remember whether police recorded my statement in the hospital on 31.1.2011. It is correct that police did not record my statement thereafter. Police did not met me thereafter. It is correct that police never took me to the place of incident thereafter. Police did not record statement of any other witness in my presence. I was never called at the P.S. I do not remember how much time the incident spanned. I cannot tell whether the information of incident was given by any of members boarding the car to the police so SC No.56873/2016 State Vs Suhail @ Nirala Page 12 of 30 long as I was conscious enough. At the spot of incident when I was pulled up of the car there was enough light. It was the light of the car as well as street light . At the time of incident I was heavily drunk. It is wrong to suggest that I cannot identify the accused persons since I was drunk at that time. It is wrong to suggest that I was already in unconscious state of mind as I was drunk. Vol I was not so drunk. It is wrong to suggest that I was not traveling in the said car. It is wrong to suggest that I am deposing falsely.
XXXXXXXXX By Mohd Afzal @ Chikna.
Nil. ( Opportunity given.)"
18. PW-12 is HC Ram Singh, who has deposed as under :
"On 30/31.1.2011, I was posted as In Charge Oscar-60 PCR (Central Zone). On that night I was present at the PCR and my PCR was positioned near Zakhira Pul. At around 5.15 night a maruti No. SL 7CK-
6744 came closed to PCR, got stationed and I was told that on the other side of Zakhira Pul they had been looted and one Rameshwar Bhargav who was present in the Car was made injured by the accused persons. Thereafter I took them to Jeevanmala Hospital. I kept my PCR alongwith their car all the way to Jeevanmala Hospital, New Rohtak Road. Other injured persons namely Vinay and Sagar were also present in the Maruti Car and I got all three them admitted in the hospital. I flashed the information in the Control Room after getting the injured persons admitted. Today I have not brought the record regarding the said PCR call as the said record stood destroyed vide order mark X. I recorded my statement.
XXXXXXXXXXXX By Ld Cl M Yusef for accused Suhail @ Nirala. At around 1.15 am on 31.1.2011 the injured persons came in a Maruti Car and gave the information. There were all three persons in the said vehicle. I do not know who was driving the vehicle. They did not disclose the time of the occurrence of the incident. As soon as the injured reached to me I immediately took them to the hospital and admitted them there. It is correct that I did not visit the place of incident. There were no public person alongwith injured person when they come to me. The IO Naimpal had reached at the hospital. Thereafter I left the hospital. XXXXXXXX By accused Mohd Afzal @ Chikna.
Nil (Opportunity given)"
19. PW-13 is Ct. Kishan Kumar, who has deposed as under :
"On 30/31.1.2011, I was posted at PS Moti Nagar. On that day at about 2.15 night DD No.7A was received and it was marked to HC Naimpal. I alongwith him reached Jeevanmala hospital, Rohtak Road. We reached there and collected the MLCs of injured namely Rameshwar Bhargav, Shambu and Vijay Bhargav. IO recorded the statement of Vijay Bhargav, made endorsement on it and gave me tehrir. I went with the tehrir to the PS for the registration of FIR. I got the FIR registered and came back at the spot and handed over the tehrir and copy of FIR to the IO. In the meantime IO also reached there. Thereafter we again reached at Jeevanmala hospital took the injured Vijay Bhargav along. Thereafter we again reached at the spot . Crime team arrived there. Place of occurrence was got photographed. Site plan was prepared at the instance of injured. From the spot blood sample, earth control and blood stained earth were lifted vide seizure memo Ex 13/A, Ex PW13/B and Ex PW13/C. All the said memos bears my signatures at point A. Thereafter SC No.56873/2016 State Vs Suhail @ Nirala Page 13 of 30 we again reached at the hospital alongwith the members of the crime team. The car bearing No.DL 7CK-6744 that was parked outside the hospital was got photographed and IO seized the polythene of seat cover and the dusters that were blood stained vide seizure memo Ex PW13/D, bearing my signatures at point A. Before seizing the same, IO converted them into a pulanda and sealed with the seal of 'RST'. IO seized the car bearing the said number ( Zen Estilo) vide seizure memo Ex PW13/E, bearing my signatures at point A. The Dr concerned handed over the IO two sealed pulandas one containing the cloths of the injured Shambu and another containing the cloth of injured Rameshwar Bhargav which the IO seized vide seizure memo Ex PW13/F and G, both the said memos are bearing my signatures at point A. I can identify the case property if shown to me. The said Zen ( Estilo) car is already Ex P-2. At this stage MHC (M) produces a sealed pulanda seal with the seal of FSL (Parcel NO.6) . It is now opened and one duster and polythene cover of the seat (Both blood stained ) are taken out which the witness identifies as having been seized in his presence. These two articles are collectively Ex P.3. At this stage MHC ( M) produces a sealed pulanda seal with the seal of FSL (Parcel NO.1) . It is now opened and one plastic dibbi is taken out containing the blood sample in blood gauze which the witness identifies as having been seized in his presence. It is now given as Ex P-4. At this stage MHC ( M) produces a sealed pulanda seal with the seal of FSL (Parcel NO.2) . It is now opened and one plastic dibbi is taken out containing the blood stained earth ,which the witness identifies as having been seized in his presence. It is now given as Ex P-5. At this stage MHC (M) produces a sealed pulanda seal with the seal of FSL (Parcel NO.3) . It is now opened and one plastic dibbi is taken out containing the earth control ,which the witness identifies as having been seized in his presence. It is now given as Ex P-6. XXXXXXXXXXXX By Ld Cl M. Yusuf for accused Suhail @ Nirala.
I have received information of this incident from Duty Officer at about 2.15 am. I was on emergency duty at PS Moti Nagar, at that time. The then Duty officer received the information through wireless. I alongwith IO reached at the spot of occurrence. We reached at the spot after 15 minutes on receiving the call. The distance between the spot and PS is 3 km. We reached at the spot on motor cycle. We found nobody at the spot. We reached at the hospital from the spot on the information of PCR. We reached the hospital within 10-15 minutes after reaching at the spot. In the hospital we met Rameshwar, Radha, Shambu and Vijay. It is correct that PCR had already shifted the injured to the hospital. After reaching at the hospital first of all IO made inquiries from Vijay again said IO recorded his statement only. IO did not record statement of any injured person in the hospital in my presence. Only Shambu was admitted in the hospital. Vol Rameshwar was also admitted in the hospital. One lady namely Radha was also admitted there. During the time IO prepared ruqqa I was with him and it took around one hour to him to prepare ruqqa. It is correct that when I left with ruqqa IO was at the hospital. I do not remember the time when I came back at the spot with copy of FIR. SI Rajinder, second IO was present at the spot. I cannot tell when second IO arrived at the spot and on whose information. I remained at the spot for 10-15 minutes alongwith Second IO. No writing work was done at the spot in my presence by the second IO. It is correct I reached at the hospital with second IO. No statement was recorded of any other injured person or public person in my presence in the hospital when we again went to the hospital. I reached alongwith second IO at the hospital on the motor cycle. When we reached the spot alongwith second IO and Vijay Kumar the vehicle of the SHO had come at the SC No.56873/2016 State Vs Suhail @ Nirala Page 14 of 30 hospital and IO alongwith Second IO again reached at the spot by SHO vehicle. The Senior Officer and crime team was already present at the spot. It is correct that after preparation the ruqqa by the first IO namely HC Nempal I did not meet him during the completion of investigation. Again said in the hospital I met him but he was relieved by the second IO. I do not remember the exact time for how long we remained at the spot alongwith Vijay Bhargav. IO did not record any statement of any other persons. Four members of the crime team was present at the spot. Crime team had already reached at the spot. I cannot tell the exact time when we finally left the spot. After reaching at the hospital again I recorded the statement of Shambu and Radha. IO recorded the statement of PCR officials in my presence. I cannot say whether IO inquired from where Radha Bhargav had come in the hospital as PCR official deposed about the taking of three injured persons only. I cannot tell the exact time when we left the hospital finally. When I left the hospital, I left with second IO only. Crime team had already left the hospital before we left. It is wrong to suggest that no incident had occurred. It is wrong to suggest that I did not join the investigation with the IO. It is wrong to suggest that I am deposing falsely at the instance of IO.
XXXXXXXX By accused Mohd Afzal @ Chikna.
Nil (Opportunity given)"
20. PW-14 is W/Ct. Usha Rani is again a witness of formal in nature and has deposed that on 31.01.2011 while she was posted in CPCR PHQ ITO Delhi, on that day she was on duty at Extention no. 103 from 8 pm of 30.01.2011 to 8 am of 31.01.2011 and has received an information that Maruti Car no. DL 7 EA 6744 wale ke sath china jhapti hui hai and he had proved PCR form as Ex. PW-14/A.
21. PW-15 HC Pyare Lal who has deposed as under :
"On 31.01.2011 I was posted at PS Moti Nagar and was on duty as MHC (M). On that day SI Rajinder Singh had deposited two sealed pulandas sealed with the seal of Jeevan Mala Hospital alongwith sample seal, four sealed pulandas sealed with the seal of RST and one car , maruti Zen having registration NO. DL 7CK 6744. I made entry in register NO.19 at Sl No.2291. I have brought the register NO.19 and photocopy of said entry is Ex PW15/A (OSR) ( running into five pages). On 3.02.2011 SI Rajinder Singh had deposited two sealed pulandas sealed with the seal of RST I made entry in register NO.19 at Sl No.2303. Photocopy of said entry is Ex PW15/B (OSR) ( running into two pages).On 4.02.2011 SI Rajinder Singh had deposited one sealed pulanda sealed with the seal of RST I made entry in register NO.19 at Sl No.2308. Photocopy of said entry is Ex PW15/C (OSR) ( running into two pages). On 5.02.2011 SI Rajinder Singh had deposited one danda I made entry in register NO.19 at Sl No.2322. Photocopy of said entry is Ex PW15/D (OSR) ( running into two pages). On 25.03.2011 seven sealed pulandas and one sample seal of Jeevan Mala Hospital were sent to FSL Rohini through HC Manoj vide RC No.23/21/11. I have brought the register SC No.56873/2016 State Vs Suhail @ Nirala Page 15 of 30 NO.21.Photocopy of said RC is Ex PW15/E (OSR)It bears my signatures at point A and of HC Manoj at point B. After depositing the exhibits HC Manoj returned back to PS and handed over the acknowledgment to me.
Photocopy of the same is Ex PW15/F (OSR).
XXXXXXXXXX By Sh R.R Jha Ld DLSA counsel for accused Suhail @ Nirala.
It is wrong to suggest that the all the entries are ante dated and manipulated. It is wrong to suggest that the seal of the pulandas were tempered by me during its custody with me. It is wrong to suggest that no exhibits were sent to FSL Rohini. I do not remember the time when HC Manoj returned to PS after depositing the case property."
22. PW-16 ASI Nempal Sharma, Part IO, who has deposed as under :
"On 30/31.1.2011, I was posted at PS Moti Nagar as Head Constable. On that day at about 2.15 night DD No.7A was received and it was marked to me. I alongwith him Ct Kishan Kumar reached Jeevanmala hospital, Rohtak Road. We reached there and collected the MLCs of three injured persons namely Rameshwar Bhargav, Shambu and Vijay Bhargav. I recorded the statement of Vijay Bhargav Ex PW1/A and made endorsement Ex PW16/A on it and gave the tehri to Ct Kishan Kumar who went with the tehrir to the PS for the registration of FIR. After registration of the case the further investigation was marked to SI Rajinder Singh.
XXXXXXXX Sh R.R.Jha Ld DLSA Cl for accused Suhail @ Nirala. The DD No.7A was handed over to me by the duty officer. We reached in the hospital on a private motor cycle. I did not make any separate departure entry. We reached at hospital at about 3.00 am . On the MLC of Shambu and Rameshwar Bhargav unfit for statement was mentioned I had recorded the statement of Vijay Kumar. I did not record the statement of any concerned Doctor. It is wrong to suggest that I did not reach at the hospital."
23. PW-17 ASI Rajesh Kumar, IO, who has deposed as under :
"On 03.02.2011, I was posted at PS Moti Nagar as Head Constable. On that day, I joined the investigation with SI Rajender and Ct. Rajesh. During investigation when we were under the zakhira fly over then the Duty officer of PS Moti Nagar informed SI Rajender that some unknown person informed him on telephone that the robbery which was committed at old petrol pump at Zakhir Fly over, the persons who were involved in the said robbery are present at near Raja ka hotel, Rakhi Market Jhuggi, zakhira. On receiving the said information we immediately rushed to the said place. Two persons were present there on seeing police they tried to escape. Then we all three apprehended the said boys. On interrogation their names were disclosed as Suhail and Afzal. Both resident of Zakhira Jhuggis. On instruction of SI Rajender I searched Suhail. On search one mobile phone of Nokia was recovered from the right lower pocket of track suit. Ct. Rajesh searched the accused Afzal and recovered one golden ring from his possession. On interrogation accused Suhail disclosed to SI Rajender that they had robbed the aforesaid mobile at old petrol pump, Zakhira from a person by giving lathi blow and knife blow to a person. Some more persons were also with him from whom they robbed SC No.56873/2016 State Vs Suhail @ Nirala Page 16 of 30 the mobile phone. He also disclosed that he robbed the said person along with his associate Afzal and two other persons namely Gazni and Babu. Thereafter, the SI Rajender prepared the pullanda of recovered mobile and sealed with the seal of RST and seized the same vide seizure memo Ex. PW17/A bears my signatures at point A. He also prepared the pullanda of recovered golden type ring and sealed it with the seal of RST and seized it with seizure memo Ex. PW17/B bears my signatures at point A. Thereafter, both the accused persons were arrested vide seizure memo Ex. PW17/C and Ex. PW17/D respectively bears my signatures at point A. Their personal search were conducted vide a memo Ex. PW17/E & PW17/F respectively bears my signatures at point A. Disclosure statement of accused Suhail was recorded which is Ex. PW17/G bears my signatures at point A. & disclosure statement of accused Afzal is Ex. PW17/H bears my signatures at point A. Thereafter, accused led us to old Petrol Pump Zakhira and IO prepared the pointing out memo of the place of crime which is Ex. PW17/I bears my signatures at point A. Thereafter we returned to the police station along with accused persons and case property. Case property was deposited in PS Malkhana. IO recorded my statement. I again joined the investigation on 04.02.2011 along with SI Rajender and Ct. Nand Ram. Accused Afzal was on PC and he led us to the bushes near Jhuggis railway line, Zakhira. From bushes Afzal took out a knife and handed over the same to SI Rajender. IO prepared the sketch of the recovered knife which is Ex. PW17/J bears my signatures at point A. The total length of the knife was 22.3 cm, length of handle 12.1 cm, length of blade 10.2 and its width was 2.5 cm. It was a buttondar knife and name of K. K. Rampuri UP was written on its blade. The handle was of fish shaped and figure of the lady was engraved on it. IO prepared the pullanda of knife and sealed it with the seal of RST. And seized it vide a seizure memo Ex. PW17/K bears my signatures at point A. The seal was handed over to me by IO after use. Thereafter, we returned to the PS and case property was deposited in PS Malkhana. IO recorded my statement. Accused Suhail @ Nirala is present in the court today. I can identify accused Afzal if produced before me. At this stage, MHC(M) produced the case property in a sealed pullanda with the seal of Court. Seal is opened and one mobile phone is taken out from it. The said mobile phone is of make Nokia of black colour. Witness identified the same by saying that this is the same mobile phone which was recovered from the possession of accused Suhail. Same is Ex.P17.
XXXX by Sh. R. R. Jha, Ld. Legal Aid Counsel for accused. I joined the investigation on 03.02.2011 at about 6-7 PM. There were no written instructions to me in this regard. We reached at Zakhira Fly over at about 7:30-8 PM through two motor cycles. I had not made any departure entry in this regard. I came to know regarding the call received by SI Rajender Singh as I was with him at that time. We reached at Rakhi Market Jhuggis at about 8.30-9 PM. Both accused were standing near Raja Ka Hotel. It is correct that public persons were present there. I personally searched accused Suhail @ Nirale. I do not remember the colour of his clothes. IO requested 3-4 public persons to joined the investigation but they refused and left the place without disclosing their names and addresses. It is wrong to suggest that mobile phone was planted upon the accused to falsely implicate the accused. Interrogation was made at the spot and disclosure was also recorded at the spot. We remained at the place of arrest for about 1 1/2 hours. We reached at old petrol pump zakhira at about 11-11:30 PM. Both accused were with us. We remained there for about 15-20 minutes. No public persons were present there. It is wrong to suggest that there were many public persons at the petrol pump. We returned to the PS before 12 mid night. My SC No.56873/2016 State Vs Suhail @ Nirala Page 17 of 30 statement was recorded at the PS. It is wrong to suggest that I never joined the investigation and signed all the documents by sitting at the PS"
24. PW-18 Ct. Nand Ram, who has deposed as under :
"On 04.02.2011 I was posted at PS Moti Nagar as Constable. On that day, I joined the investigation with IO/ SI Rajinder Singh and HC Rajesh Kumar. Accused Raju @ Chikna and Suhail Nirala were taken out from the police lock up, who were in police custody. Thereafter accused persons led us to Zakira Flyover. Accused Raju @ Chikna got recovered a knife from the bushes. IO checked the knife and took the measurement and prepared the sketch of the recovered knife already Ex PW17/J bearing my signatures at point B. The total length of the knife was 22.3 cm, length the blade was 10.2 cm, length of the handle was 12.1 cm and the width of the blade was 2.5 cm. The handle of the knife was of brass and blade was of iron. K.K Rampuri (UP) was written on the blade and there was photograph of a lady embossed on the handle. A pulanda was prepared and same was sealed with the seal of RST. The knife was seized vide seizure memo already Ex PW17/K bearing my signatures at point B. We also tried to search the other co-accused persons but they were found to be absconding. Thereafter we return to the P.S. The case property was deposited in the Malkahana. On 05.02.2011 I again joined the investigation with IO/SI Rajinder Singh and Ct Rajesh. Both the accused namely Raju @ Chikna and Suhail @ Nirala were taken out from the lock up and made to join in investigation. Both the accused led us to Railway Track near Zakira Flyover. Accused Suhail @ Nirala got recovered one danda from the bushes on the side of the Railway track. A pulanda of the recovered danda was prepared and taken into police possession vide seizure memo Ex. PW18/A bearing my signatures at point A. The total length of recovered Danda was 3.6 feet. IO had recorded the disclosure statement of accused Suhail @ Nirala and accused Raju @ Chikna which are now exhibited as Ex. PW18/B and Ex. PW18/C, respectively bearing my signatures at point A. We searched the other accused persons but in vain. Thereafter we returned to police station. At this stage, MHCM produced the Danda having the particulars of present case. The witness identified the same Danda which was recovered at the instance of accused Suhail @ Nirala. The same is Ex.P-
1. MHCM also produced a sealed envelope bearing parcel no.7 (however, the entire writing on the seals not visible). The seals of the same are broken and one knife is taken out from the envelope. The knife is having particulars of FSL 2011/13-1480, Bio no. 292/11, Exhibit no.7 dated 13.12.2014. The witness identified the knife by saying that this is the same knife which was recovered at the instance of accused Raju @ Chikna. The same is Ex.P-2. There is image of woman embossed at the end of the handle of knife and although there is rust on blade. 'KK Rampuri' is written on the upperside of blade of knife. Accused Suhail @ Nirala is present in the court today (correctly identified by the witness). XXXXX by Sh.R.R.Jha, LAC for accused Suhail @ Nirala. I do not remember the exact time when the accused persons were taken out from the lock up, but it was around 10-11 AM. We reached at Zakhira flyover after 10-20 minutes. The distance between the PS and Zakhira flyover is about 2-3 kilometers. We reached there from a private vehicle. I do not remember the registration number of that vehicle. The bushes are situated at about 200-400 meters from the Nazafgarh road. There were many public persons but they did not join the investigation giving SC No.56873/2016 State Vs Suhail @ Nirala Page 18 of 30 their personal excuses. Some Jhuggis are also situated there. It is wrong to suggest that IO never told any public person to join the investigation. All pulendas were prepared in my presence. I do not remember that how long I remained at the spot. I do not remember at what time I returned back to police station.
I do not remember at what time I joined investigation on 5.2.2011. We reached near the railway track in the afternoon, but I do not remember the exact time. The distance between the bushes and railway track is about 5-7 meters. There were many Jhuggis at some distance from bushes. No public persons were present there. It is wrong to suggest that many public persons were present there but IO did not ask any person to join investigation. It is correct that width of the Danda was not measured by the IO. I remained at the spot for about one and half hour. We returned to PS in the evening but I do not remember the exact time. It is wrong to suggest that I never joined the investigation at any point of time and I signed all the documents by sitting at the PS itself."
25. PW-19 Statement of ASI Suresh Chand, who has deposed as under "On 31.01.2011, I was posted as Constable in Mobile Crime Team. I was in Crime team as Finger Print Proficient. On that day, on receipt of PCR Call, I alongwith SI Kuldeep Singh, HC Devender and driver Naresh Kumar went to the spot I.e. Old Petrol Pump, Darbanga Colony, Main Rohtak Road, Delhi. We reached the spot at about 08:30 AM. I had developed four Chance Prints from Estilo Car bearing no. DL-7CK-6744. HC Devender took the photographs of the Chance Prints and then Chance Prints were lifted. After thorough inspection of the scene of Crime, Incharge Crime team prepared his report which is already exhibited as Ex.PW-5/A. XXXX by Sh.R.R.Jha, Ld. legal aid Counsel for accused. Public persons were present at the spot. It is wrong to suggest that I have not followed the standard operating procedure for lifting the Chance Prints from the spot. It is further wrong to suggest that I am not properly trained and qualified for lifting the Chance Prints. It is further wrong to suggest that Chance Prints were never lifted by me from the spot or that lateron it was manipulated.
26. PW-20 SI Rajender Singh, main IO, who has deposed as under :
"On 31.01.2011 I was posted as SI at PS Moti Nagar. On that day, investigation of this case was assigned to me after registration of FIR. After receiving original rukka and copy of FIR I alongwith Ct. Krishan went to Jeevan Mala Hospital, where HC Nem Pal met me. HC Nem Pal handed over three MLCs to me which were in the names of Vijay Bhargav, Rameshwar Bhargav and Shambhu. Doctor handed over to me two sealed parcels sealed with the seal of the hospital. I seized them vide seizure memo already Ex. PW-3/F & G which bears my signatures at point B. Injured Vijay Bhargav was discharge by the doctors. I alongwith him and Ct. Krishan went to the spot near old petrol pump, Jakhira. I inspected the spot and prepared site plan Ex. PW-20/A at the SC No.56873/2016 State Vs Suhail @ Nirala Page 19 of 30 instance of Vijay Bhargav. The site plan bears my signatures at point A. Crime Team came to the spot and inspected the spot. Crime team In- charge handed over to me his report and crime team photograph took the photographs of the spot. Thereafter, I seized blood sample, blood stained earth and earth control vide seizure memo already Ex. PW-13/A to C respectively after converting them into different sealed parcels. Thereafter, I again went to the hospital where I seized car of complainant no. DL-7CK-6744 vide seizure memo Ex. PW-3/E which bears my signatures at point B. Blood was found on the polythene of rear seat of the car. A blood stained duster was also lying there. I seized the said polythene as well as duster vide seizure memo already Ex. PW-3/D which bears my signatures at point B. I recorded statement of witnesses. I went to police station and deposited case property with MHC(M). I made efforts to trace the accused persons. But no clue was found on that day. On 03.02.2011 I received a secret information in respect of accused persons and DD no. 50A was lodged in that regard at PS Moti Nagar at about 8:10 pm. I alongwith HC Rajesh and Ct. Rajesh went to Raja Ka Hotel under Jakhira Flyover. Two boys were found there. After seeing police team they tried to run away but both of them were apprehended by us. Their names were revealed as Suhail @ Nirala & Afzal @ Chikna. On formal search of them, a Nokia 2690 mobile phone was recovered from Suhail @ Nirala and a gold ring was recovered from the possession of accused Afzal. Both the above articles were seized vide seizure memo already Ex. PW-7/A and B respectively which bear my signatures at point B. I arrested both the accused persons vide arrest memo already Ex. PW-7/C and D which bear my signatures at point B. their personal search was taken vide memo already Ex. PW-7/E and F which bears my signatures at point B. Both the accused persons made their disclosure statements which are Ex. PW-7/G and H which bear my signatures at point B. Both the accused persons pointed out the place of occurrence vide memo already Ex. PW-7/I which bears my signatures at point B. Thereafter, accused Afzal got recovered a knife from railway track near bushes. I prepared the sketch of knife which is Ex. PW-7/J which bears my signatures at point C. A blood stained was found on the tip of the knife. I converted the knife into sealed parcels sealing the same with the seal of RST. I seized the same vide seizure memo Ex. PW-7/K which bears my signatures at point C. Accused Suhail got recovered one bamboo stick which I seized vide seizure memo already Ex. PW-8/A which bears my signatures at point B. Both the accused persons were medically examined and were produced before Ld. MM in muffled face. Both the accused persons refused to take part in TIP proceedings. Thereafter, I took police custody remand of both the accused persons and went to PS. I deposited case property with MHC(M) and lodge the accused persons in lock-up. I made efforts to trace other two accused persons in this case. I arrested one of them and he was found JCL and separate proceedings were conducted in this regard. One wanted namely Parvez @ Gajni was got declared P.O. During investigation I sent exhibits including knife to FSL Rohini. Later on FSL result was collected. Accused Suhail @ Nirala is present in the court. Witness correctly identified the accused. (accused Afzal @ Chikna is also P.O.). I can identify the case property. At this stage, MHC(M) produced one knife sealed with the seal of FSL. The same is opened and one knife is taken out. The same is shown to the witness. After seeing the knife, witness states that it was the same knife which was recovered at the instance of accused Suhail. The knife is Ex. PX1.
XXXX by Sh. R.R. Jha, Ld. LAC for accused Suhail @ Nirala. I received rukka at about 7:00 am. I reached hospital within 15 minutes. I SC No.56873/2016 State Vs Suhail @ Nirala Page 20 of 30 remained in the hospital for about 15-20 minutes. I reached the Jakhira Flyover at 7:45 am. I stayed there for about 45 minutes. No public witness was found at the spot. I reached hospital again at about 8:45 am. It is wrong to suggest that I did not seize any article from the spot. It is further wrong to suggest that blood etc. were planted in this case in order to falsely implicate the accused persons. I returned to the PS at about 11 am. I had lodged arrival entry but I do not remember DD number. On 03.02.2011 when I received DD no. 50A Ct. Rajesh and HC Rajesh were with me. When I received the DD I was near Jakhira Flyover. I had reached Jakhira Flyover at about 8:30-8:35 am. HC Rajesh over powered accused Suhail. I had seen accused Suhail for the first time from the distance of 15 feet. It is wrong to suggest that accused Suhail was not apprehended in the manner as stated by me above or that accused did not make any disclosure statement. It is wrong to suggest that signatures of accused Suhail on blank papers and converted them into disclosure statement and seizure memo of danda. No public person had joined the proceedings when I had arrested accused Suhail. It is wrong to suggest that accused Suhail did not point out place of incident. It is wrong to suggest that bamboo stick was planted on the accused Suhail. It is wrong to suggest that I had falsely implicated accused Suhail in this case or that I am deposing falsely being IO of the case."
27. After conclusion of prosecution evidence, statement of accused under Section 313 CrPC was recorded wherein the accused has taken the plea of false implication in the present case. In support of his defence, he has not led any defence evidence.
(D) REASONS AND DECISION :
28. I have heard the Ld. Addl. PP for the State and Ld. LAC Sh. R.R. Jha, for the accused Suhail @ Nirala.
29. It is argued on behalf of accused by Ld. LAC that accused is falsely implicated in this case and got identified by the complainant and other public witnesses by showing his photographs prior to TIP in the PS. It is also argued that accsed was lifted from his house and falsely arrested in this case without any legally admissible evidence. It is also argued that the weapon of offence I.e. danda allegedly recovered from accused Suhail is planted one. It is also argued that no other article SC No.56873/2016 State Vs Suhail @ Nirala Page 21 of 30 recovered from or at the instance of accused and they are planted one. It is also argued that as accused was involved in other cases also that is why he is also implicated in the present case only on the basis of suspicion. Hence, it is prayed that accused Suhail @ Nirala may be acquitted for the charge.
30. While opposing the arguments of Ld. LAC of accused, Sh. Alok Saxena Ld. Addl. PP for the State has argued that all the material PWs examined by the prosecution have firmly stood in the test of cross- examination and has been able to prove the case of prosecution beyond the pale of reasonable doubts. It has been stated that the prosecution has been able to establish its case clearly and categorically and merely because there are some discrepancies in the testimony of PWs does not take away their clear and categorical deposition before the Court and the Court is not required to procure a parroted version of PWs. It is also argued that the testimonies of the prosecution witnesses who have not been cross examined by the accused despite giving opportunity for the same remained unrebutted. It is also argued that accused has not lead any evidence qua his plea of planting the danda and mobile phone. Hence, it is argued that accused be convicted and sentence as per law.
31. I have given a thoughtful consideration to the record and the arguments advanced. It is a settled proposition of law that to bring home conviction, the prosecution has to establish its case beyond the pale of reasonable doubt by establishing an unbroken chains of events, leading to commission of the offence. It is further a settled proposition of law that once this chain is broken or a plausible theory of another possibility is shown, the accused becomes entitled to the benefit of doubt which ultimately leads to his/her acquittal. 1997 (3) SC No.56873/2016 State Vs Suhail @ Nirala Page 22 of 30 Crimes 55 titled Sadhu Singh Vs State of Punjab.
32. Thus, the cardinal rule in the criminal law is that prosecution has to prove their case beyond reasonable doubt and the benefit of the doubt has to be given to the accused. In Batcu Venkateshwarlu Vs. Public Prosecutor High Court of A.P, (SC) 2009(1) R.C.R ( Criminal) 290 : 2009(1) R.A.J: 2008 (15) Scale 212, the Hon'ble Supreme Court observed as under:
"A person has, no doubt, a profound right not to be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is, however, no absolute standard. What degree of probability amounts to "proof" is an exercise particular to each case..... Doubts would called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favorite other than truth. To constitute reasonable doubt, it must be free from an over-emotional response.
Doubts must be actual and substantial doubts as to the guilt of the accused persons arising from the evidence,or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt, but a fair doubt based upon reason and common sense.
It must grow out of the evidence in the case."
33. Before adverting to the analysis of evidence which has come on record it would be appropriate to first briefly discuss the offences with which the accused has been charged with.
34. Section 392 IPC provides for punishment for robbery. The essential ingredient are as follows :
1. Accused committed theft ;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3.He did either act for the end.
SC No.56873/2016 State Vs Suhail @ Nirala Page 23 of 30(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
4. It is to be noted that the Section 392 provides punishment for robbery. It is punishment for the offence defined in Section 390. Punishment is higher if it is committed on a highway and between sunset and sunrise.
35. Section 394 IPC - voluntarily 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, shall also be liable to fine.
36. Section 397 IPC is the aggravated form of robbery which deals with the offence of robbery or dacoity, with attempt to cause death or grievous hurt requires the following ingredients to be established:-
Commission of Robbery or Dacoity by the accused persons;
(ii) At the time of commit robbery or dacoity, the accused person used deadly weapon or caused grievous hurt or attempt to cause death or grievous hurt;
(iii)The above acts were done during the commission of robbery or dacoity.
37. Section 411 IPC - In order to convict a person for the offence of receiving stolen property, it is necessary to SC No.56873/2016 State Vs Suhail @ Nirala Page 24 of 30 establish three factors :
(i) that the property in question was stolen property,
(ii) that the stolen property was in possession of the accused,
(iii) that it was dishonestly received or retained and
(iv) the accused knew or had reason to believe that the, property was stolen property.
38. Now on the basis of testimony of witnesses and documents on record, the court has to scrutinies whether the case of the prosecution satisfies any or all of the aforesaid ingredients.
39. The prosecution version is primarily based on the statement of public witness/ complainant namely PW-1 Vijay Kumar Bhargava, PW- 3 Shambhu, Driver of the complainant's car, PW-7 Radha Bhargava, wife of complainant and PW-11 Rameshwar Bhargava, brother-in-law of complainant who deposed that while they were coming on 30/31.01.2011 night after attending the marriage from Rohtak by their Zen Estilo Car and reached prior to Zakhira flyover, heard sound of open dikki, asked the driver to stop vehicle, after getting stopped the vehicle, PW1 got down from the vehicle, when at the back side of vehicle, he closed the dikki of the car and the moment he was returning the take his seat, someone hit a danda on his head, they were 4-5 persons in total, after having receive injury on his head, he sat on the road itself in the side of vehicle and those persons robbed him with his purse, two gold rings and mobile phone. Thereafter, those persons has also robbed 3 gold ring, one artificial ring, one artificial neckless, one purse of PW-11 and stabbed him on his person, when their driver Shambu i.e. PW-3 tried to save them he was also assaulted on his hand and has also robbed his mobile phone and ran away. It is pertinent to mention that out of these four witnesses PW-1 SC No.56873/2016 State Vs Suhail @ Nirala Page 25 of 30 Vijay Kumar Bhargava, complainant and PW-11 Rameshwar Bhargava were duly cross-examined by the accused, however, PW-3 Shambu and PW-7 Radha Bhargava were not cross-examined by the accused despite the opportunity given for the same.
40. The main defence of the accused Suhail in the present is case of false implication by planting the bamboo danda (one of the weapon of offence) and mobile phone (belonging to complainant) and also his arrest in the present case by lifting him from his house and also on the suspicion that accused was involved in other cases of similar nature. Therefore, as per defence of the accused he has not participated in the commission of crime in any manner whatsoever at any point of time and has been falsely implicated.
41. I have minutely gone through the testimony of PW-1 complainant who has identified the accused Suhail and Mohd. Afzal (since P.O.) in the court by stating that while they were coming from after attending marriage party by their Zen Estilo Car and reached prior to Zakhira flyover, heard sound of open dikki, asked the driver to stop vehicle, after getting stopped the vehicle, PW1 got down from the vehicle, when at the back side of vehicle, he closed the dikki of the car and the moment he was returning the take his seat, someone hit a danda on his head, they were 4-5 persons in total, after having receive injury on his head, he sat on the road itself in the side of vehicle and those persons robbed him with his purse, two gold rings and mobile phone. Thereafter, those persons has also robbed 3 gold ring, one artificial ring, one artificial neckless, one purse of PW-11 and stabbed him on his person, when their driver Shambu i.e. PW-3 tried to save them he was also assaulted on his hand and has also robbed his mobile phone and ran away. This very part of testimony of the four SC No.56873/2016 State Vs Suhail @ Nirala Page 26 of 30 witnesses remained unimpeached despite cross examination of PW-1 and PW-11. However, testimony of PW-3 and PW-7 remained unrebutted as these witnesses were not cross examined. All these witnesses except PW-3 Shambu had not identified the accused Suhail and accused Mohd. Afzal (since P.O.). It is also pertinent to mention that PW-3 Shambhu was duly cross examined by Ld. State Counsel and during his cross examination he has admitted that accused Gazni addressed the other accused by his nick name Chikna & all the boys were aged around 20-22 years old. He has also admitted having snatched the gold ring and neckless of PW-7 Radha Bhargava. Hence, PW-3 has supported the prosecution version as narrated by other eye witness except identification of accused persons.
42. The incident was happened in the night of 30-31/01/2011 and as per PCR form Ex. PW-14/A the call was made at 100 number at around 1:12:33 am and thereafter, police reached at the spot and on the same night present FIR was registered. Even, as per the MLC all the injured were admitted to Jeevan Mala Hospital between 1:30 to 1:45 am. As per testimony of PW-9 Sh. Rajinder Kumar the then Ld. MM, accused Suhail refused to participate in the TIP proceedings on the pretext that his photographs have been shown to the witnesses. The plea of showing the photographs to the witness is not tenable as both accused persons namely Suhail and Mohd. Afzal were arrested on 03.02.2011 i.e. after two days of the incident. Even this plea has not been put to the witness during cross examination that they have identified the accused as their photographs were shown to them. Moreover, on appreciation of the evidence of all the eye witnesses, this court is of the considered opinion that these witnesses have stated only and only truth and nothing else. Even accused has not come with any reason as to why these eye witnesses who are a private person, SC No.56873/2016 State Vs Suhail @ Nirala Page 27 of 30 non related to accused have identified him in the court. No previous enmity or any reason is alleged.
43. The nature of injury as deposed by the PWs in their statement is also corroborated from their MLCs proved on record. From the record it is also clear that there is no delay in reporting the matter to police or in recording the FIR.
44. PW1 Vijay Kumar Bhargava specially PW11 Rameshwar Bhargava (who sustained injury by knife) have correctly identify accused Suhail and Afzal as the person giving the stab injury to PW-3 and PW-11. But these witnesses could not recollect after a lapse of time as to which of the accused that is accused Suhail or Mohd. Afzal caused stab injury with knife. But surprisingly, no question and not even a suggestion put to any of these witnesses to disclose as to which of the accused present in the court caused stab injury. Pertinently, PW3 Shambhu and PW7 Radha Bhargava not cross examined,hence, their testimony remained unrebutted. Since accused Suhail could not discharge his burden of asking the witness as to which of accused caused the stab injury he cannot be given benefit of non using deadly weapon.
45. As per settled preposition of law for convicting an accused for having committed offence u/s 397 IPC, offender refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, other cannot be awarded the minimum punishment. It only envisaged the individual liablity and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses a deadly weapon or does any of the act mentioned in the provision. But the other accused are not vicariously liable under that SC No.56873/2016 State Vs Suhail @ Nirala Page 28 of 30 section for the act of co-accused.
46. In the present case PW11 Rameshwar Bhargava sustained stab injury with the knife who has categorically deposed that "I was giving knife blow 8 to 10 times in my thighs , over my hip and on my back. However, I cannot tell now who of the said boys stuck me with knife. At this stage, witness identifies both the accused persons present in the court, correctly identified as the ones who were present over there at the time of incident and indulge in the crime against him". But during cross examination conducted on behalf of accused Suhail even no suggestion have been put to this witness that he has not caused any knife injury to PW-11.
47. As regards the arguments of accused regarding recovery of mobile phone and bamboo danda (one of the weapon of offence) that same has not been recovered either from the accused or on his instance, this argument is not tenable as using of wooden danda and robbing of mobile phone is deposed by all the witnesses, therefore, this arguments is not tenable. Moreover, all the recovery witnesses have been duly cross examined by the accused and they have denied the suggestion of having planted the wooden danda.
48. From the testimony of all the four eye witnesses, this court is of the view that they have been robbed of their belongings which were duly identified by them in the court by voluntarily causing hurt in the night of 30-31/01/2011 and during the investigation the mobile phone of complainant was recovered from the possession of accused Suhail which he retained knowingly that it is a stolen property.
SC No.56873/2016 State Vs Suhail @ Nirala Page 29 of 3049. Therefore, this court is of the considered opinion that in view of above reasons prosecution has been able to proved that accused Suhail alongwith his co-accused persons in furtherance of their common intention committed robbery by voluntarily causing hurt by bamboo danda and knife and retained the stolen property knowingly, hence, he is found guilty of having committed offence u/s. 392/394/397/411/34 IPC.
(E) CONCLUSION :
50. In view of my above reasons, accused Suhail @ Nirala is held guilty and convicted for having committed offence u/s. 392/394/397/411/34 IPC.
51. Let accused be heard on the point of sentence.
Digitally signed by POORAN POORAN CHAND
ANNOUNCED IN THE OPEN CHAND Date:
2022.05.24
COURT ON 21.05.2022 12:15:25 +0530
(POORAN CHAND )
ADDITIONAL SESSIONS JUDGE-02
(WEST):DELHI
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