Delhi District Court
State vs (1) Suraj Kumar on 31 January, 2020
IN THE COURT OF MS MANJUSHA WADHWA
ADDITIONAL SESSIONS JUDGE-3 (SHAHDARA)
KARKARDOOMA COURTS, DELHI
SC No.405/16
FIR No.73/11
Police Station Harsh Vihar
Under Section 392/395/397/411 IPC & 25/27 Arms Act.
State Versus (1) Suraj Kumar
S/o Sh. Karan Singh
R/o Vill. Kannour, PO- Dehra,
Rampur, PS-Bahadur Garg,
District Ghaziabad, UP.
(2) Sunil @ Aryan
S/o Sh. Mothai Lal
R/o Vill. Shah Pakadi, PS Chilian
District Shidartha Nagar, UP.
(3) Vijay S/o Nand Lal
R/o Dharamvir Ma Makan,
Amar Vihar, Behta Hazipur, Loni,
Ghaziabad, UP.
(4) Amit Gupta
S/o Kailash Chand Gupta
R/o Mohalla Kashwara
Matia Powanya, PS Powanya,
District Shahjanpur, UP.
(5) Rupesh Kumar
S/o Ramu Kashyap
R/o Mohalla Kashwara Matia
Powanya, PS Powanya,
District Shahjanpur, UP.
SC No.405/16 State Vs. Suraj Kumar & Ors. Page 1 of 48
Date of Institution : 07.10.2011
Date of judgment reserved : 17.01.2020
Date of judgment : 31.01.2020
Decision : Conviction
JUDGMENT
1. Police has filed the present chargesheet against accused Suraj Kumar, Sunil @ Aryan, Vijay, Amit Gupta and Rupesh Kumar for offences under Sections 394/397/412/109/120B/34 IPC and 25/27/54/59 Arms Act.
2. Briefly stating case of the prosecution is that on 23.05.2011, on receipt of DD no. 3A regarding incident of stabbing and robbery, ASI Prem Pal and Ct. Subhash Chand reached the spot where injured was reported to have been removed to GTB Hospital. They reached GTB Hospital where they collected MLC of injured Vivek Chaudhary and came to know that injured had been removed to some unknown hospital by his relatives. Subsequently, it transpired that injured had been removed to St. Stephan Hospital; police found injured Vivek Chaudhary admitted in the said hospital; statement of injured was recorded in which he stated that accused had stabbed him and robbed him of his Santro car no. DL-3C-AP- 9311 and other belongings. Tehrir was prepared on the basis of statement of complainant Vivek Chaudhary and present case was got registered; further investigation was assigned to SI Yogender Kumar who recorded statement of witnesses, inspected spot and prepared site plan. Afterwards, investigation was assigned to Insp. Dheeraj Singh; accused Suraj was arrested in case FIR No. 300/11 SC No.405/16 State Vs. Suraj Kumar & Ors. Page 2 of 48 under Section 25/54/59 Arms Act along with Santro car No. DL-3C- AP-9311. One country made pistol and 2 live cartridges were recovered from accused Suraj and he gave disclosure statement that he alongwith his associates Sunil @ Aryan, Vijay and Amit had committed the present incident of robbery on 23.05.2011. Information in that regard was given to PS Harsh Vihar and on 27.06.2011, accused Suraj was arrested in the present case. Thereafter, another accused Sunil @ Aryan was arrested on 30.06.201, Vijay was arrested on 07.07.2011, Amit Gupta was arrested on 11.07.2011. They also gave disclosure statement and stated that accused Rupesh Kumar exhorted them to commit the said incident of robbery. Accused Rupesh Kumar was formally arrested on 18.07.2011; accused persons refused to join TIP proceedings and they got recovered the remaining robbed articles viz. Silver ring, purse containing ATM car, driving licence, photocopy of marksheet of MCA Ist semester, voter ID and slip of OBC of complainant; statement of accused Amit Gupta under Section 164 Cr.P.C. was got recorded wherein he denied having committed any offence and that police obtained his signatures on blank papers; sanction under Section 39 Arms Act was obtained; site plans were prepared; statement of witnesses were recorded and on completion of investigation, charge sheet was filed.
3. After complying with provisions of Section 207 Cr.P.C., case was committed to Court of Sessions, which in turn assigned the case to this Court for trial in accordance with law.
4. On hearing Ld. counsel for accused persons and Ld. SC No.405/16 State Vs. Suraj Kumar & Ors. Page 3 of 48 Addl PP for the State, charges under Sections 392/394/397/34 IPC were framed against accused Suraj Kumar, Sunil @ Aryan, Vijay and Amit Gupta. Separate charges were framed under Section 411 IPC & 27 Arms Act against accused Suraj Kumar; under Section 411 IPC and 25 & 27 Arms Act against accused Vijay; under Section 411 IPC 25 & 27 Arms Act against accused Amit Gupta; under Section 411 IPC and 25 & 27 Arms Act against accused Sunil @ Aryan. A separate charge under Section 411 IPC was framed against accused Rupesh. All the accused persons pleaded not guilty to the charges and claimed a trial.
5. In order to prove its case, prosecution has examined as many as 31 witnesses. PW1 is the duty officer, who had recorded FIR in this case. He has proved copy of the FIR as Ex.PW1/A and endorsement made by him on the Rukka as Ex. PW-1/B. PW-2 Yogesh and PW-3 Lalit Chaudhary are friends of the complainant Vivek Chaudhary (PW6) and their testimony will be discussed in later part of the judgment. PW-4 HC Suresh Kumar had recorded DD no. 15A regarding making disclosure statement by accused Suraj in case FIR no. 300/2011 u/s 25 Arms Act and DD no. 15A has been proved as Ex.PW4/A. PW5 HC Abdesh Kumar had recorded DD no. 3A on 23.05.2011 at PS Harsh Vihar regarding stabbing of a person and robbery of Santro car. Said DD No. 3A is Ex.PW5/A. PW7 HC Ravindra Singh had recorded FIR 300/11 U/s 25/54/59 Arms Act, PS Jagat Puri on 22.06.2011, which is Ex.PW7/A. PW8 Dr. K.K.Banerjee, Professor, GTB Hospital gave subsequent opinion on MLC of accused Sunil @ Aryan, no definite opinion about injuries SC No.405/16 State Vs. Suraj Kumar & Ors. Page 4 of 48 being caused by teeth bite on Index finger could be given and subsequent opinion has been proved as Ex.PW8/A. PW9 Dr. Imran Ahmad had medically examined Vivek on 23.05.2011 vide MLC No. B-2672/2011 which has been proved as Ex.PW9/A. PW10 Ct. Subhash Chand joined investigation with ASI Prem Pal.
6. PW11 Ct. Jeet Pal received secret information on 22.06.2011 about arrival of the accused persons in robbed car. PW12 Puneet Puri SSO (Ballistic), FSL had examined the country- made pistol with 2 live cartridges and gave his detailed report Ex. 12/A. PW-13 Mohan Singh had produced judicial file of case FIR No. 300/11 u/s 25 Arms Act, PS Jagat Puri i.e. State Vs Suraj Kumar. He has proved seizure memo of Santro car as Ex.PW 11/A and disclosure statement of accused Suraj as Ex.PW11/B. PW14 Ct. Babar Raza and PW15 Ct. Rahul joined the investigation with IO/Insp. Dheeraj and ASI Prem Pal. PW16 Ct. Aman Malik joined the investigation with the IO on 18.07.2011 and is a witness to arrest of accused Rupesh Kumar who surrendered in concerned court. PW17 Dr. Neha Gupta examined the recovered knife and that incised wound on back of left chest and other wounds on the body of complainant Vivek and gave report that no opinion could be given so as to connect the injuries with recovered weapon. Her opinion is Ex.PW17/A. PW18 Gaurav Gupta, Ld. M.M. has proved TIP proceedings of Sunil @ Aryan conducted on 02.07.2011 as Ex. PW18/A; TIP proceedings of Amit Gupta conducted on 19.07.2011 as Ex.PW18/B; TIP proceeding of ring identified by complainant Vivek on 08.08.2011 as Ex.PW6/D. Both the accused Sunil@Aryan SC No.405/16 State Vs. Suraj Kumar & Ors. Page 5 of 48 and Amit Gupta refused to participate in TIP. PW19 SI Onkar Singh, was IO in case FIR 300/11 and he gave information on 23.06.2011 vide DD No. 15A at PS Harsh Vihar regarding recovery of Santro Car and arrest of accused Suraj and his making disclosure statement about present case. PW20 SI Prateek Saxena proved formal arrest of the accused Suraj in this case on 27.06.2011 vide arrest memo Ex.PW 20/A.
7. PW21 HC Zakir Hussain deposited one sealed pulanda at FSL, Rohini vide RC 65/21/11 on 29.07.2011. PW22 Ct. Sunil Kr. has also joined investigation in this case. He deposed that accused Amit Gupta was arrested and he pointed out place of incident and IO prepared pointing out memo at his instance as Ex PW-22/A; accused Amit Gupta led this witness(PW-22), Inspector Dheeraj Singh and Ct Uday Bhan to his rented premises and from there he took out one bag made of cloth from which he got recovered one purse of black colour and one silver ring. The said articles were seized vide seizure memo Ex PW-22/B. Accused Amit also took out a knife from the same cloth bag which was seized vide seizure memo Mark. PW-22/A and its sketch is Ex. 22/C. PW23 Ct. Mehtab Singh joined the investigation with Ct. Karamvir and Insp. Dheeraj Singh and on 19.07.2011, they alongwith accused Rupesh went to his tenanted premises where he got recovered a slip of OBC of complainant Vivek, photocopy of election ID card of complainant Vivek and same were seized vide memo Ex. PW-23/A.
8. PW24 Sh. Rajneesh Gupta, the then Addl DCP had accorded sanction against accused Vijay under section 39 Arms Act, SC No.405/16 State Vs. Suraj Kumar & Ors. Page 6 of 48 which has been proved as Ex. PW24/A. PW25 Dr. S.K. Verma has proved the subsequent opinion as Ex.PW25/A as per which injuries nos. 1 to 3 mentioned on MLC No. B2672/11 are opined to be possible by the weapon examined. PW26 HC Harender Kumar is a witness to arrest of accused Sunil@Aryan on 30.06.2011 as well as recovery made at the instance of accused Vijay and Sunil@Aryan. PW27 Vivek Kr. Gulia Ld. CMM, deposed that on 08.07.2011, accused Vijay had refused to participate in judicial TIP vide proceedings Ex. PW-27/A.
9. PW28 SI Hasrat Ali is IO in case FIR No. 300/11 PS Jagat Puri. PW29 HC Sanjay Kumar (MHCM) has proved that articles seized in the case were deposited in the malkhana and he had made entries in register no. 19 from Ex.PW29/A to Ex.PW29/H. PW30 Insp. Dheeraj Singh is second IO of the case. PW31 SI Prem Pal is first IO of the present case.
10. On conclusion of prosecution evidence, statement of accused persons under Section 313 Cr.P.C. were recorded. In the statement under Section 313 Cr.P.C., incriminating circumstances were put to the accused persons to which the accused persons broadly stated they have been falsely implicated in the present case. However, accused Suraj stated that he was lifted by the police while he was returning from Karkardooma courts to his house. He stated that he had visited the Court as Parokar of his wife Sonu, who was facing trial of some criminal case. They opted not to lead any evidence in their defence and vide order dated 06.08.2018, defence evidence was closed.
SC No.405/16 State Vs. Suraj Kumar & Ors. Page 7 of 48Medical Evidence:
11. PW9 Dr. Imran Ahmad had medically examined patient Vivek in the Causality of GTB Hospital on 23.05.2011 vide MLC Ex.PW9/A and found following injuries as:-
1) Incised wound 3 x 2.5 cm on left shoulder;
2) Incised wound 2 x 1.5 cm on left thigh; &
3) Incised wound 3 x 2.5 cm on back of left chest.
This witness in his cross-examination stated that said injuries could be caused by falling on sharp object.
12. PW17 Dr. Neha Gupta, Assistant Professor, Department of Forensic Medicine, Hindu Rao Hospital, Delhi deposed that on 28.09.2011, she was posted as Senior Demonstrator at GTB Hospital. On that day, Insp. Dheeraj Singh appeared before her along with the victim Vivek seeking opinion whether injuries sustained by Vivek were possible with the recovered knife. IO had also produced two sealed pulandas. She had physically examined the victim Vivek and found that all the wounds had completely healed, so she gave report that no opinion could be given so as to connect the injuries with the recovered weapon. She has proved her report as Ex.PW17/A.
13. PW25 Dr. S.K.Verma, Professor, Department of Forensic Medicine, UCMS & GTB Hospital deposed that on 30.07.2015, he received an application from Insp. Dheeraj Singh along with two sealed pulandas for providing subsequent opinion regarding injuries mentioned on MLC No. B-2672/11; a medical SC No.405/16 State Vs. Suraj Kumar & Ors. Page 8 of 48 board consisting of this witness, Dr. Sanjay Gupta, Dr. Ravinder Singh and Dr. Sushma Kumari was constituted on directions of the Court; two parcels containing knives were produced. This witness testified that knives were examined and board gave its opinion as mentioned in the report Ex.PW25/A stating that injuries(1-3) as mentioned in the MLC are possible by the weapon examined.
Testimony of material police witnesses:
14. PW28 SI Hasrat Ali is IO in case FIR No. 300/11 PS Jagat Puri. He testified that on 22.06.2011, he was posted at PS Jagat Puri and on that day, he along with PSI Vijay, HC Veerpal, HC Balbir, Ct. Jeetpal and other police staff were on patrolling duty and they were present near DAV Public School, Sukh Vihar, Delhi. At about 1.00 p.m., Ct. Jeetpal received a secret information that 3 persons would come in a Santro Car with intention to commit robbery and he passed on this information to him; SHO concerned was informed and SHO directed him to conduct the raid. Secret informer was with them; they put barricades near Ambedkar Gate, road no. 57 and they started checking the vehicles; one Santro Car of white colour bearing registration no. DL-3C-AP-9311 came from Karkari Moar side and secret informer pointed out towards said car;
said car was got stopped. The person, who was driving said car, revealed his name as Suraj and names of other two persons were revealed as Sonu and Sunil. On search of accused Suraj, one loaded country-made pistol was recovered from his possession apart from one another live cartridge from right pocket of his pant. From SC No.405/16 State Vs. Suraj Kumar & Ors. Page 9 of 48 accused Sonu, one loaded country-made pistol was recovered, whereas from accused Sunil, one button actuated knife was recovered. FIR no. 300/11 under Section 25 Arms Act Ex.PW7/A was registered against accused Suraj. Pursuant to FIR No. 300/11, accused Suraj made disclosure statement as Ex.PW11/B and aforesaid Santro car was seized vide memo Ex.PW11/A. In his cross-examination, he stated that disclosure statement of accused Suraj was recorded by SI Omkar Singh, to whom further investigation was entrusted in the said case.
15. PW31 SI Prem Pal is first IO in this case. He testified that on the night intervening 22/23.05.2011, he was posted at PS Harsh Vihar as ASI. On that day on receipt of DD no. 3A regarding stabbing and robbing of a car, he along with Ct. Subhash reached Sewadham Road, near Prem Property near Wine shop where injured was reported to have been shifted to GTB Hospital and he reached there. He collected MLC of injured Vivek Chaudhary and on enquiry he came to know that relatives of injured had shifted him to St. Stephan Hospital. He went to St. Stephan Hospital and met injured Vivek, his friends Yogesh and Lalit and family members of injured. He recorded statement of injured Vivek Chaudhary as Ex.PW6/A. Thereafter, he along with Ct. Subhash and Yogesh came back to the spot; Yogesh showed him the place of incident; PW31 prepared Rukka Ex.PW31/A and got the case registered by sending Ct. Subhash to PS with a Rukka. Further investigation was assigned to SI Yogender whose role was very limited as to recording of statements of a few witnesses under Section 161 Cr.P.C. and SC No.405/16 State Vs. Suraj Kumar & Ors. Page 10 of 48 preparation of site plan.
16. PW30 Insp. Dheeraj Singh is second IO of this case. He deposed that investigation of this case was entrusted to him and he examined the complainant Vivek Chaudhary and recorded his statement under Section 161 Cr.P.C. He received copy of DD no. 15A recorded at PS Harsh Vihar regarding arrest of accused Suraj in case FIR No. 300/11 u/s 25 Arms Act at PS Jagat Puri; he obtained copy of said FIR, disclosure statement of accused Suraj and seizure memo of Santro Car.
17. PW30 Insp. Dheeraj Singh further testified that on 27.06.2011, he reached the concerned Court of PS Harsh Vihar at Karkardooma Courts; he moved application Ex.PW30/A for interrogation; he interrogated accused Suraj and formally arrested him in this case vide memo Ex.PW20/A and he moved an application Ex.PW30/B for extension of police remand of accused Suraj. He further testified that on 29.06.2011, he along with ASI Prem Pal and HC Harender left for native village of accused Sunil @ Aryan at Shah Pagri, PS Chiliya, District Siddharth Nagar and reached there on 30.06.2011; accused Sunil @ Aryan was arrested vide memo Ex.PW26/A; his personal search was conducted vide memo Ex.PW26/B and his disclosure statement was recorded vide memo Ex. PW-30/C. Accused Sunil refused to get his TIP conducted vide TIP proceedings Ex.PW30/D. Santro car was brought to PS Harsh Vihar from PS Jagat Puri and was seized in this case vide memo Ex.PW30/E. Accused Sunil was got medically examined vide MLC Ex.PW30/G regarding teeth bite by the complainant. Doctor gave SC No.405/16 State Vs. Suraj Kumar & Ors. Page 11 of 48 report Ex.PW8/A regarding injury of teeth bite.
18. PW30 Insp. Dheeraj Singh further testified that on 07.07.2011 on the basis of a secret information about accused Vijay, he reached Old Delhi Railway Station and at about 9.45 p.m., secret informer pointed out towards accused Vijay, who was coming outside from the Railway Station. Accused Vijay was arrested vide memo Ex.PW14/A; his personal search was conducted vide memo Ex.PW14/B and his disclosure statement was recorded as Ex.PW15/A. Thereafter, he moved an application Ex.PW30/H for conducting TIP of accused Vijay; he also moved another application Ex.PW30/I for obtaining copy of TIP proceedings; he also moved an application Ex.PW30/J for obtaining PC remand of accused Vijay.
19. It has also come in the testimony of PW30 Insp Dheeraj Singh that on 11.07.2011, he along with other police staff and accused Sunil and Vijay reached at tenanted house of accused Sunil in village Saboli, Delhi and accused Sunil got recovered one button actuated knife and one RC of vehicle bearing registration no. DL-3C- AP-9311 of Santro Car from a bag kept in his house. Total length of knife was 24.5 cm, width of blade was 2.5 cm and length of blade was 11 cm and length of handle was 13.5 cm. Sketch Ex.PW14/F of knife was prepared and it was seized vide memo Ex.PW14/E. Accused Vijay and Sunil pointed out the place of incident vide memo Ex.PW14/C and Ex.PW14/D respectively. RC of Santro car was seized vide memo Ex.PW14/G.
20. PW30 Insp. Dheeraj Singh further testified that thereafter, accused Vijay led the police party to his house in Aman SC No.405/16 State Vs. Suraj Kumar & Ors. Page 12 of 48 Vihar, Baheta Hajipur, Loni, Ghaziabad and he got recovered one desi katta along with 2 live cartridges from a black colour bag. He also took out one passport size photograph and one marksheet (MCA from MD University) of the complainant; sketch of cartridges and katta Ex.PW14/I was prepared and same were seized vide memo Ex.PW14/H; photograph and marksheet of the complainant were also seized vide memo Ex.PW14/J. On 11.07.2011, PW30 Insp. Dheeraj Singh received secret information regarding accused Amit that he would come at Old Delhi Railway Station where he was arrested at the instance of secret informer vide memo Ex.PW14/K and his personal search was conducted vide memo Ex.PW14/L.
21. PW30 Insp. Dheeraj Singh further testified that on 13.07.2011, he produced accused Amit Gupta before the concerned Court and moved application Ex.PW30/M for his TIP but accused wanted to confess his guilt, so his TIP application was not allowed. He moved an application Ex.PW30/N for recording statement of accused Amit Gupta under Section 164 Cr.P.C. and his statement in that regard was recorded on 15.07.2011. Pointing out memo of place of occurrence at the instance of accused Amit is Ex.PW22/A. Accused Amit led the police party to his rented house in Rahul Garden, Behta Hajipur, Loni, Ghaziabad, U.P. and got recovered one knife from a bag, which was used by him in the incident. He prepared sketch Ex.PW22/C of the said knife. Total length of the knife was 33 cm, length of its handle was 18 cm and length of its blade was 15 cm. Said knife was seized vide memo Ex.PW22/B. Accused Amit also took out one purse of black colour made of raxin SC No.405/16 State Vs. Suraj Kumar & Ors. Page 13 of 48 and one ring of silver like object reported to have been robbed and same were seized vide memo Ex.PW22/B. PW30 got TIP of purse and ring conducted vide proceedings Ex.PW6/D. The application for TIP of purse and ring is Ex.PW30/Q and application for obtaining copy of TIP proceedings is Ex.PW30/R. He prepared site plan of the place from where one silver ring and purse and one button actuated knife were got recovered by accused Amit Gupta, which is Ex.PW30/U.
22. It has also come in the testimony of PW-30 Inspector Dheeraj Singh that on 16.07.2011, he had received an application regarding surrender of accused Rupesh in the Court. Accused Rupesh was formally arrested in court vide memo Ex.PW16/A and his personal search was conducted vide memo Ex.PW16/B and his disclosure statement was recorded as Ex.PW16/C. Application Ex.PW30/O was moved for taking PC remand of accused Rupesh. Accused Rupesh led the police to his rented premises at Rahul Garden, Behta Hazipur, Loni, Ghaziabad and got recovered one Slip of Oriental Bank of Commerce dated 29.06.2010 and photo ID relating to complainant Vivek Chaudhdary from the heap of papers kept in the said room and same were seized vide memo Ex.PW23/A. He prepared site plan of place of recovery as Ex.PW30/T. He further deposed that SI Yogesh prepared site plan of the spot, which is Ex.PW30/S. He prepared pointing out memo at the instance of accused Suraj as Ex.PW30/V. He proved certificate under Section 65B of Evidence Act regarding lodging of FIR as Ex.PW30/W; application for TIP of accused Amit Gupta as Ex.PW30/X and his SC No.405/16 State Vs. Suraj Kumar & Ors. Page 14 of 48 request to conduct TIP of accused Amit Gupta as Ex.PW30/Y. This witness has identified country-made pistol Ex.PW14/P-1; live cartridge Ex.PW14/P-2; cartridge case Ex.PW14/P-3, which were recovered at the instance of accused Vijay. He has also identified knife Ex.PW14/P-4 and copy of RC Ex.PW6/Article-2 recovered at the instance of accused Sunil; one black colour purse Ex.PW6/Article 6, ring Ex.PW6/Article-7,knife Ex.PW22/Article-1, recovered at the instance of accused Amit.
23. In cross-examination, PW30 Inspector Dheeraj Singh has stated that he had not asked the shopkeepers in respect of the incident on his first visit after marking the case to him. He had not made any DD entry regarding secret information received in respect of accused Vijay. He admitted that Old Delhi Railway Station is a busy place and public persons were always present at the Railway station/platform. He along with his staff was present at the exit gate facing towards Kaudiya Pul side. He had asked the public persons to join the investigation but no one agreed for the same. He had not given any information either to police officials of Old Delhi Railway Station or the Local PS and had also not taken any assistance of the police officials of those places. He had made arrival entry in the PS after arresting accused Vijay. He stated that house of accused Vijay was situated within jurisdiction of Ghaziabad District and he had not given any information about their visit to the local police and had not taken their assistance. Family members of Vijay were present there at his house but his had not obtained their signatures at the time of recovery on the seizure memo.
SC No.405/16 State Vs. Suraj Kumar & Ors. Page 15 of 4824. PW30 Insp. Dheeraj Singh further testified in his cross examination that accused Amit took them in Rahul Garden, Bahehta Hajipur, U.P. but the house does not bear any number. He did not remember the owner of left side and right-side houses of alleged house in Rahul Garden. He further stated that at that time, ladies were present, who did not agree to join the investigation. He could not serve any notice to them because those ladies had bolted the house from inside. He did not remember the name of the owner of that alleged rented premises in Rahul Garden. He also did not remember the number of storey and rooms in the said rented premises. He has further testified in cross examination that knife in closed condition was got recovered from the house of accused Amit from ground floor wherein he was living as a tenant. Two more items were recovered, which were lying along with the buttondar knife but he did not remember about those items. After seeing the judicial file, this witness stated that two other recovered items were one silver colour ring and one dark colour purse. There was no specific identification mark on the purse but it was of black colour.
25. PW-30 Insp. Dheeraj Singh further stated in cross- examination that he had recorded disclosure statement of accused Suraj in Court premises. Suraj had disclosed about co-accused Sunil @ Aryan, whom he arrested first in the present case. He had gone to Saboli to arrest Sunil where he was living with his sister. He could not tell the name of sister of Sunil. He did not collect any document regarding status of occupants of the house. He did not remember the number of storey of said house. He testified that room SC No.405/16 State Vs. Suraj Kumar & Ors. Page 16 of 48 was on ground floor. He had orally inquired from the sister of accused who told him about their permanent address of Sidharth Nagar, U.P. They went to Gorakhpur by train and thereafter had hired a private vehicle. The local PS of that area was Chilliya. They had recorded DD entry regarding their arrival there. The Headman/Pradhan of village was called when they reached in the village and he remained there throughout the proceedings but his signatures were not taken on documents i.e. arrest and personal search memos of accused Sunil. He had not recorded statement of Pradhan on that day. Nothing material has been elicited in the cross- examination of this witness.
Submissions of Sh. Vikas Kumar, Ld. Addl. PP for the State; Sh. A.K. Tiwari, LAC for the accused Vijay; Sh. Mukesh Ahuja Advocate for the accused Rupesh and Amit Gupta; Sh. Pramod Singh, Advocate for the accused Suraj and Sunil.
26. Ld. Addl PP for the State has submitted that on the basis of evidence on record, prosecution has been able to prove its case against the accused persons. He has further submitted that all the accused were armed with deadly weapons at the time of committing robbery and caused injuries with knife on the person of the complainant. It is also contended that robbed articles were recovered from the possession of accused persons. Hence, prosecution has been able to prove its case against the accused persons beyond reasonable doubt.
27. On the other side, ld. counsel for the accused Vijay submitted that the accused persons were arrested much after SC No.405/16 State Vs. Suraj Kumar & Ors. Page 17 of 48 incident dated 23.5.2011 as date of arrest of accused Suraj Kumar is 27.6.2011, date of arrest of accused Sunil @ Aryan is 30.6.2011, date of arrest of accused Vijay is 07.07.2011, date of arrest of accused Amit is 11.7.2011, date of arrest of accused Rupesh Kumar is 18.07.2011. He submitted that the accused persons had refused TIP as there was a time gap between the date of arrest and the date of incident; identification of accused persons in the court is not reliable to show that the accused persons are involved in the incident of robbery. He further submitted that the complainant did not disclose the physical description of the assailants to connect the accused persons with the present offence. It is also his contention that weapon of offence is knife which was recovered from accused Amit and Sunil @ Aryan and therefore offence u/s 397 is not made out against accused Vijay; pistol allegedly recovered from the accused Vijay is not weapon of offence as per prosecution case. It is also his contention that the robbed articles i.e. Photo of the complainant and photocopy of marksheet have been recovered from the accused Vijay while as per column no. 9 of FIR, the robbed articles are silver finger rings, (one silver ring); car (Santro car no. DL-3C-AP-9311), purse containing ATM Card. He thus submitted that the recovery of marksheet and photo of complainant are planted upon the accused Vijay.
28. It is also his contention that there is delay of about 8-10 hours in registration of FIR; accused Vijay has been arrested only on the basis of disclosure statement of co- accused Suraj given in the FIR no. 300/11 u/s 25/54/59 Arms Act, PS Jagat Puri; exact place of SC No.405/16 State Vs. Suraj Kumar & Ors. Page 18 of 48 incident is not mentioned in DD no. 3A dt. 23.05.2011(Ex PW-5/A); place of incident i.e. Prem property office and wine shop are disclosed in the statement of Vivek Chaudhary, Ex. PW6/A whereas site plan Ex PW-30/S is silent in respect of Prem Property Office; site plan Ex PW-30/S has not been prepared at the instance of victim but at the instance of PW2 Yogesh who had accompanied the police official to the place of occurrence.
29. Ld. counsel for the accused Amit Gupta and Rupesh has submitted that the alleged story of the prosecution is manipulated as the complainant in his cross-examination did not recall whether the road was under construction or not. He further submitted that if the road was not under construction, there was no reason for the complainant to slow down his vehicle and drive the same at the speed of 10 Kms per hour. He has further submitted that IO did not array Sonu as an accused and intentionally took action against accused Amit Gupta in place of Sonu; complainant could not see the accused persons on the date of alleged incident as there was no street light at about 1.30 a.m. at the place of occurrence; the complainant did not identify accused Rupesh. It is further submitted that if two views are possible, the Court must consider the view towards innocence of the accused.
30. Ld. Counsel for the accused Suraj and Sunil@Aryan submitted that the accused Suraj has been falsely implicated in the present case as the complainant(PW-6) testified that he had identified the accused persons in Karkardooma Court in the month of September 2011 when he had come for release of his car and RC SC No.405/16 State Vs. Suraj Kumar & Ors. Page 19 of 48 while they were in custody of IO, however, the complainant had visited the Karkardooma Court for release of his vehicle on Superdari on 04.07.2011 and for release of RC of vehicle on 12.08.2011; there is contradiction in the testimony of PW-2 and PW- 6; PW-6 admittedly did not make any complaint to the police or doctor. It is his further contention that PW-6 has improved upon his version by giving supplementary statement that he bit finger of accused Sunil@Aryan which has also not been established on record inasmuch as PW-8 Dr. K.K. Banerjee opined that no definite opinion can be given whether or not injuries are caused by teeth bite; there is also contradiction in the testimony of witnesses qua floor of recovery of robbed articles from the possession of accused Sunil@Aryan; co-accused Suraj has not given any disclosure statement in the present case.
31. In order to consider the rival contentions of the parties, it is also necessary to consider the testimony of victim and other material witnesses.
Evidence of the victim & other material witneses
32. PW6 Sh. Vivek Chaudhary is the main witness in this case as he is the complainant with whom the incident of robbery and stabbing had taken place. He testified that on the night intervening 22/23.05.2011 at about 1.30/2.00 a.m., after dropping his friend at Sewa Dham Road, he was returning to his house in his Santro car and when he reached Mandoli Road near Sharab Ka Theka, one boy came there and pulled out key from his car. He testified that at that time car was moving slowly due to poor condition of the road and SC No.405/16 State Vs. Suraj Kumar & Ors. Page 20 of 48 window of his car was open. His car stopped and, in the meantime, 3/4 other associates of the said boy also came there; they dragged PW6 out of his car and one of them stabbed PW6 on his left thigh. Those persons also stabbed four times on his left shoulder; they took him to right side of the road where they removed purse from pocket of his pant as well as his silver ring. He deposed that his purse was having DL, ATM Card and cash of Rs.600, one photocopy of his MCA Marks statement of first year. When PW6 tried to raise alarm, one of those persons tried to shut his mouth with the help of his right hand and he bit his finger. He further deposed that accused persons had tied his legs with the help of a cloth. Thereafter, those persons ran away with his Santro Car bearing registration No. DL-3C-AP- 9311. He further testified that RC, Insurance and Pollution papers of the car were also lying in the car.
33. PW6 Sh. Vivek Chaudhary deposed that accused persons could not rob his mobile phone which was lying in pocket of his jeans pant and he called his friend Yogesh, who reached there within 5 minutes. Yogesh called police at no. 100 and removed him to GTB Hospital. As no proper treatment was given at GTB Hospital, his parents removed him to St. Stephan Hospital; police came there and recorded his statement Ex.PW6/A. After about one month, he came to know that his car had been recovered by the Police; he received the same on superdari vide memo Ex.PW6/B and he received the RC on superdari vide memo Ex.PW6/C. He has identified his car as Ex.PW6/Article-1; photocopy of RC as Ex.PW6/Article-2; copy of his marksheet as Ex.PW6/Article-3; his SC No.405/16 State Vs. Suraj Kumar & Ors. Page 21 of 48 photograph as Ex.PW6/P-1; photocopy of letter of Oriental Bank of Commerce as Ex.PW6/Article-4; photocopy of Voter ID as Ex.PW6/Article-5; purse as Ex.PW6/Article-6; silver ring as Ex.PW6/Article-7; TIP proceedings of silver ring as Ex.PW6/D.
34. PW6 Sh. Vivek Chaudhary has correctly identified accused persons Suraj, Sunil @ Aryan, Vijay and Amit Gupta by stating that they are the person who had stabbed him and robbed him of his articles and his Santro Car. This witness has identified accused Sunil and specified that he was the person whose finger he had bit while he was trying to shut his mouth with his hand. Witness identified accused Amit Gupta and Sunil, who had stabbed him and remaining two accused Vijay and Suraj were having weapon like Katta in their hands at the time of robbery. This witness clarified that accused Suraj was the main accused, who had removed key of his car and he was leader of accused persons. Accused Suraj had exhorted accused Amit Gupta and Sunil to stab him.
35. In his cross-examination, PW6 Sh. Vivek Chaudhary stated that he had gone to IGI Airport for his personal work at about 4.00/5.00 p.m. He stated that he did not know if there was any street light on the road where the incident had occurred. He stated that he made first call to his friend Yogesh after the incident and he did not call the police at no. 100. He did not call any other person. He added that he tried to contact at his home but he did not get response. He also tried to contact his friend Lalit and informed him about the incident. His friend Yogesh had called the PCR in his presence, which did not arrive at the spot in his presence and PCR SC No.405/16 State Vs. Suraj Kumar & Ors. Page 22 of 48 van came at hospital. No public person had gathered at the spot at the time of incident when he cried for help. His friend Lalit and his family members arrived at GTB Hospital. Knives and katta were not recovered by the police in his presence. He had stated to the IO in his statement that two accused were having kattas in their hands, which is not recorded in his statement Ex.PW6/A but mentioned in his supplementary statement Ex PW-6/DA. Police had not prepared papers in his presence and had not obtained his signature on any paper. He stated that he had gone to Airport to drop his friend. But he volunteered that he had gone to Airport for his personal work. He did not remember as to whether the road where incident had taken place was under construction or not. He admitted that his car was not stopped by the accused persons from the front side. He volunteered that accused came from the right side of car and took out keys from his car. He admitted that accused who removed key of his car had no weapon at that time.
36. In answer to a specific question, PW6 Vivek Chaudhary stated that accused who removed key from his car was followed by two other assailants and one of whom was carrying knife. He admitted that first knife blow was given on his left thigh. He testified that second stab was given by the accused persons on his left shoulder where they had stabbed him three or more times. His legs were tied by accused persons before giving him knife blow. He further stated that at the time when accused persons left the spot, he was free and not tied. He has given his phone no. as 8800545533. He did not remember the mobile number of Yogesh. He also did not SC No.405/16 State Vs. Suraj Kumar & Ors. Page 23 of 48 remember the mobile number of Lalit as it was fed in the mobile phone. He admitted that he had not made any call at no. 100. He admitted that Yogesh had called at no. 100 in his presence, while this witness was lying on back seat of the vehicle. He admitted that he had not become unconscious till his reaching the hospital or subsequent thereto but he was in pain since they left the place of occurrence. He stated that Lalit is his neighbour. He admitted that he did not inform or make any complaint to the police or doctor. Shirt and baniyan of this witness were torn by accused persons and thrown away on the spot itself. He did not remember whether his blood-stained pant was seized at the hospital or not. He did not go to the spot after the incident at any time subsequent to the occurrence.
37. PW-2 Yogesh is friend of the complainant. He deposed that in the year 2011, perhaps in the month of September/October, on the day of incident, he along with his friend Vivek Chaudhary were returning from Indira Gandhi Airport to their houses and Vivek dropped him at his home. After about 15/20 minutes, on receipt of telephonic call from his friend Vivek Chaudhary that some boys had stabbed him, he reached at Mandoli Road near the Wine shop and found his friend Vivek Chaudhary lying on the road at right hand side and that he was having stab injuries and blood was oozing out from his injuries. He called police at no. 100 and thereafter took his friend Vivek to GTB Hospital before arrival of PCR. Police officials reached at GTB Hospital from PS Harsh Vihar and police recorded his statement and statement of Vivek Chaudhary. He had accompanied SC No.405/16 State Vs. Suraj Kumar & Ors. Page 24 of 48 police to the place of incident. He further deposed that they were not satisfied with the treatment given to Vivek Chaudhary at GTB Hospital, they shifted Vivek to St. Stephan Hospital. Police officials of PS Harsh Vihar met them at St. Stephan Hospital on the next day. He deposed that accused persons had robbed the Santro Car and purse of his friend Vivek Chaudhary and that he was only left with his mobile phone. In his cross-examination, PW2 admitted that the incident had not taken place in his presence.
38. PW-3 Sh. Lalit Chaudhary deposed that on receipt of telephonic message from his friend Vivek Chaudhary on 20.05.2011 that he had been robbed by accused persons and that he had sustained stab injuries, he reached at Mandoli Road, where he saw car of his friend Yogesh, who was taking Vivek Chaudhary to GTB Hospital and he followed the said car. He along with Yogesh got Vivek Chaudhary admitted at GTB Hospital. He found that his friend Vivek was having stab injuries on his shoulder and thigh. Police officials had reached GTB Hospital from PS Harsh Vihar. He further deposed that as they were not satisfied with the treatment given to Vivek at GTB Hospital, they shifted him to St. Stephan Hospital. Later on, IO of this case met him and recorded his statement. In his cross-examination, PW3 stated that he received telephonic call from Vivek Chaudhary at about 1.45/2.00 a.m. His statement was recorded at GTB Hospital. He also stated that he had followed Vivek and Yogesh on his motorcycle.
SC No.405/16 State Vs. Suraj Kumar & Ors. Page 25 of 48APPRECIATION OF TESTIMONY OF STAR WITNESSES
39. PW6 Sh. Vivek Chaudhary, who is injured/victim has narrated the incident of robbery and about the injuries caused to him by the accused persons. In his deposition, PW6 has stated about the injuries sustained by him during the incident, which also finds corroboration from the MLC Ex.PW9/A. PW6 is also specific as to the articles robbed of him viz. Santro car bearing registration no. DL- 3C AP 9311; documents of his car i.e. RC, insurance papers, pollution under Control paper etc.; ring and purse containing DL, ATM Card and cash of Rs.600, one photocopy of his MCA Marks statement of first year.
40. With respect to robbed articles, Ld. counsel for accused Vijay submitted that said articles are not as per list of robbed articles mentioned in the FIR Ex.PW1/A. It is his contention that Sl. no. 9 of the FIR Ex.PW1/A mentions the stolen properties as silver finger ring, Santro Car DL3C AP 9311, wallet containing ATM card which is also version of PW-6 in his statement Ex.PW6/A but in supplementary statement dated 16.09.2011 Ex.PW6/DA, PW6 added that purse was also containing important documents. The said contention is devoid of any merit inasmuch as in the statement Ex.PW6/A, PW-6 has mentioned the robbed articles as silver ring, Santro car, purse which also contains ATM and driving license. Meaning thereby, possibility of purse containing other documents could not be ruled out. This statement is also seconded by his supplementary statement dated 16.09.2011 Ex.PW6/DA which mentions about his purse containing important documents.
SC No.405/16 State Vs. Suraj Kumar & Ors. Page 26 of 4841. It is also contention of ld. counsels for the accused that the accused persons were arrested in the present matter after a long gap, which raises doubt on the story of prosecution. In order to appreciate this contention, it is necessary to look into the aspect of date of arrest of the accused persons and recovery effected from them pursuant to their arrest in conjunction with the testimony of the witnesses.
42. In the instant case, FIR was registered against unknown persons and the accused persons were arrested in the present case only after disclosure statement of accused Suraj in case FIR No.300/11 Ex.PW7/A dated 22.06.2011. In this regard, one may peruse the testimony of PW11 Ct. Jeet Pal, who testified that he received secret information about the 3 criminals coming in a robbed Santro Car at Jagat Puri Market from Karkari Moar and on the basis of said information, car was stopped which was found driven by accused Suraj with other two occupants namely Sunil and Sonu. One country-made Pistol of 315 bore with 2 live cartridges were recovered from accused Suraj, whereas one country made pistol was recovered from accused Sonu and accused Sunil was found in possession of one knife. Accused Suraj had made disclosure statement Ex.PW11/B in FIR No. 300/11 that he had robbed the said Santro Car from Sewadham road along with his associates, namely, Vijay, Amit and Sunil @ Aryan. PW11 Ct. Jeet Pal admitted that 3 separate FIRs were registered against accused Suraj, Sunil and Sonu.
43. Thereafter on 30.06.2011, PW 26 HC Harender Kumar SC No.405/16 State Vs. Suraj Kumar & Ors. Page 27 of 48 along with IO Insp. Dheeraj Kumar and ASI Prem Pal were present at village Shah Pagri, District Siddhartha Nagar, UP in connection with investigation of this case where secret informer met IO and pointed towards accused Sunil @ Aryan, who was arrested at his instance. On 07.07.2011, accused Vijay was arrested by the IO at Old Delhi Railway Station on the basis of secret information. On 11.07.2011, accused Amit Gupta was also arrested at the instance of secret informer from Old Delhi Railway Station. On 16.07.2011, IO had received an application regarding surrender of accused Rupesh and date of surrender was fixed as 18.07.2011. The accused Rupesh was formally arrested on 18.07.2011.
44. On 11.07.2011, accused Sunil led the police party to his tenanted house in village Saboli, Delhi wherefrom he got recovered one button actuated knife and one RC of Santro Car bearing registration no. DL 3C AP 9311 from a bag kept in his house. Thereafter, accused Vijay led the police party to his house in Aman Vihar, Baheta Hajipur, Loni, Ghaziabad and he got recovered one desi katta along with 2 live cartridges from a black colour bag; one passport size photograph and one marksheet (MCA from MD University) of the complainant. On 21.07.2011, accused Amit led the police party to his rented house in Rahul Garden, Behta Hajipur, Loni, Ghaziabad, U.P. and got recovered one knife from a bag, one purse of black colour made of raxin and one ring of silver like object. On 19.07.2011, accused Rupesh led the police to his rented premises at Rahul Garden, Behta Hazipur, Loni, Ghaziabad and got recovered one Slip of Oriental Bank of Commerce dated 29.06.2010 SC No.405/16 State Vs. Suraj Kumar & Ors. Page 28 of 48 relating to complainant Vivek Chaudhdary; photocopy of ID of complainant from the heap of papers kept in the said room.
45. During the course of evidence, PW6 Vivek Chaudhary identified Santro car as Ex. PW-6/Article1, photocopy of RC of Santro car as Ex. PW-6/Article 2; photocopy of marksheet of first year MCA as Ex.PW6/Article-3; his photograph as Ex.PW6/P-1; photocopy of letter of Oriental Bank of Commerce as Ex.PW6/Article- 4 and photocopy of his Voter ID as Ex.PW6/Article-5; purse and silver ring as Ex.PW6/Article-6 and Ex.PW6/Article-7 respectively. TIP proceedings of purse and silver ring was also conducted wherein the complainant Vivek Chaudhary correctly identified the same vide proceedings Ex.PW6/D.
46. Having considered the disclosure statement of accused Suraj Ex.PW11/B in FIR No. 300/11 and arrest of co-accused thereafter as well as recovery of robbed articles from the said accused persons, there is no merit in the contention of Ld. counsels for accused persons that time gap in the arrest of accused persons raises doubt about the story of prosecution. The time gap in the arrest of the accused persons has no significance inasmuch as the case property i.e. Santro car of the present case was recovered from the accused Suraj ; RC of the said car was recovered at the instance of accused Sunil @ Aryan and one passport size photograph and one copy of marksheet of first year of MCA belonging to the complainant were recovered at the instance of accused Vijay and purse of black colour made of raxin and silver ring were recovered at the instance of accused Amit, whereas slip of Oriental Bank of SC No.405/16 State Vs. Suraj Kumar & Ors. Page 29 of 48 commerce and copy of photo ID of complainant were recovered at the instance of accused Rupesh. The aforesaid recovered articles from the accused persons were also duly identified by the complainant Vivek Chaudhary.
47. Even the complainant has duly identified the accused persons, Suraj, Sunil @ Aryan, Vijay and Amit Gupta except accused Rupesh in Court and stated that these are the same persons who stabbed him and robbed him of his articles including Santro Car. He also testified that he had identified aforesaid accused persons in the month of September, 2011 in Karkardooma Courts when he had gone for release of Santro Car and its RC.
48. The testimony of the PW-6 Vivek Chaudhary has been corroborated with his MLC and subsequent opinion proved by PW25 Dr. S.K. Verma as per which the aforesaid injuries no. 1-3 is possible by the weapon used. Thus, the MLC of the complainant gives credence to the testimony of the complainant in as much as the complainant deposed to have sustained stab injuries on his left shoulder and left thigh. However, PW-6 has improved upon his statement Ex. PW-6/A by way of his supplementary statement and deposition before this court, as PW-6 did not state in his statement Ex PW-6/A as to when he tried to raise alarm, one of those accused persons tried to shut his mouth with the help of his right hand, he bit his finger, whose name he mentioned as Sunil in his testimony. Further, PW-6 stated in his statement Ex PW-6/A that a boy aged about 25-26 years came near him and removed key from his moving car; second boy removed him from the car and thereafter third boy SC No.405/16 State Vs. Suraj Kumar & Ors. Page 30 of 48 came and caught him; all the three boys took him behind the wall towards the roadside where one of their associates was standing with a katta in his hand, however, in his subsequent statement dated 16.09.2011 Ex PW-6/DA, he stated that two of accused persons were having katta in their hands.
49. In his testimony, PW6 identified accused Amit Gupta and Sunil @Aryan as accused persons, who had stabbed him and remaining two accused Vijay and Suraj were having weapon like Katta in their hands at the time of robbery. Meaning thereby, PW6 has improved upon his statement dated 23.05.2011 Ex.PW6/A later in his subsequent statement dated 16.09.2011 Ex.PW6/DA as PW6 did not state about biting finger of accused Sunil @ Aryan and about possession of katta in the hands of two of the accused persons. Be that as it may, the testimony of PW6 read as a whole inspires confidence qua incident of robbery and same is corroborated with recovery of robbed articles as well as by his medical evidence.
NON-JOINING OF PUBLIC WITNESSES
50. It is also contention of Ld. Counsel for the accused that no public witness was examined at the time of apprehension of the accused and at the time of recovery of case property and weapons of offence i.e. knives and kattas (countrymade pistols) from the accused though public persons were present.
51. The Hon'ble Apex Court in the judgment dated 15.02.2019 passed in Crl. Appeal No. 2100 of 2008 titled as Kripal Singh Vs State of Rajasthan has held that there is no legal SC No.405/16 State Vs. Suraj Kumar & Ors. Page 31 of 48 proposition to say that evidence produced by police officials is unworthy of acceptance without the support of an independent witness. Relevant paras are reproduced hereunder as:-
"8. Learned senior counsel further submits that the recovery memos of axe(Exh. 40), dhoti(Exh. 36) and motorcycle(Exh. 51) has been attested by the police personnel with no independent witnesses i.e. PW 15 Dhara Singh and PW 22 Raghuveer Singh for axe and Birdhi Chand, SHO(PW20) and Shafiq Mohammed(Head Constable) PW23 for motor cycle have been produced to attest the said recoveries and a presumption with regard to statement by police officer as independent evidence cannot be presumed under Section 114 of the Evidence Act.
17. The submission of the learned senior counsel for the appellant that recovery has not been proved by any independent witness is of no substance for the reason that in the absence of independent witness to support the recovery in substance cannot be ignored unless proved to the contrary. There is no such legal proposition that the evidence of police officials unless supported by independent witness is unworthy of acceptance or the evidence of police officials can be outrightly disregarded."
52. The Hon'ble Apex Court in Baldev Singh Vs. State of Haryana 2015(17) SCC 554 has observed as under:-
"10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinized and independently SC No.405/16 State Vs. Suraj Kumar & Ors. Page 32 of 48 appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness."
53. It is trite from the reading of aforesaid judgments that non joining of public witnesses is not fatal to the case of prosecution and the prosecution case cannot be doubted or thrown out on such ground alone. In the instant case, the prosecution has not been able to produce any independent witness to the apprehension of the accused persons and recovery effected from them. Public witnesses, generally do not want them to be associated in cases where they are asked to appear in Courts. People keep themselves away from the police and court due to various reasons i.e. time constraint, fear to depose against accused persons etc. Therefore, non-joining of public persons is not fatal to the case of prosecution.
Site Plan of the place of occurrence.
54. It is also contention of Ld. Counsel for the accused persons that the site plan does not depict the place of occurrence and exact place of incident is also not mentioned in DD no. 3A Ex.PW5/A dated 23.05.2011; site plan is silent in respect of Prem Property's office, whereas place of incident as per statement of PW6 Vivek Chaudhary is near wine shop and Prem Property's office. It is also contended that site plan was prepared at the instance of PW2, friend of the complainant and not the complainant.
55. PW6 mentioned the place of incident in his statement Ex.PW6/A as near Sharab Ka Theka and Prem Property office on SC No.405/16 State Vs. Suraj Kumar & Ors. Page 33 of 48 Sewadham Road. Perusal of site plan Ex.PW30/S shows that incident of robbery took place at point A whereas the complainant was tied at point B. Point A is shown on the main Sewadham Road, which appears to be near to the Wine shop. DD no. 3A Ex.PW5/A mentions the place of incident on Sewadham Road. Pertinently, point A in the site plan Ex.PW30/S where the incident is shown to have taken place is also shown on the Sewadham Road. No doubt, site plan is silent about the office of Prem Property, nevertheless wine shop is shown in the site plan. It was for the IO of the case to prepare the site plan in consultation with the complainant and case of the complainant cannot be brushed aside simply because IO has not performed his part of duty in preparing the site plan.
56. It is also contention of ld. Counsel for the accused persons that there is delay of about 8-10 hours in registration of FIR. The said contention has no merit inasmuch as DD no. 3A Ex.PW5/A was recorded at about 2.25 a.m. on 23.05.2011 regarding stabbing of a friend and robbery of Santro Car. FIR Ex.PW1/A was registered at about 8.14 a.m. on 23.05.2011. It is case of the complainant as well as prosecution that first of all, injured was removed to GTB Hospital and thereafter he was removed to St. Stephan Hospital by his family members; IO had visited the spot, thereafter GTB Hospital and then St. Stephan Hospital and made enquiries from the complainant and his friend Yogesh. As such, there is no delay in registration of the FIR.
57. It is also contention of Ld. Counsel for the accused persons that Sonu was not made an accused though he was SC No.405/16 State Vs. Suraj Kumar & Ors. Page 34 of 48 apprehended along with accused Suraj in the robbed Santro Car when the same was intercepted by Ct. Jeet Pal (PW11). Perusal of testimony of Ct. Jeet Pal shows that accused Suraj was found driving robbed Santro car and accused Suraj disclosed about the involvement of accused Sunil @ Aryan, one of two occupants of the said car alongwith other two co-accused namely Amit Gupta and Vijay. Meaning thereby, he did not disclose the name of Sonu as co- accused in the present incident. Therefore, there was no occasion for the IO to array Sonu as accused in the present FIR.
58. It was also argued that other co-accused, namely, Sunil @ Aryan, Vijay and Amit Gupta have been falsely implicated in the present case on the basis of disclosure statement of accused Suraj. The aforesaid co-accused were arrested on the basis of disclosure statement of accused Suraj but the recovery of robbed articles thereafter in pursuance to disclosure statement of co-accused themselves made that part of their disclosure statements admissible under Section 27 of the Indian Evidence Act. Even, recovery of robbed articles has been corroborated by correct identification of the robbed articles by the complainant (PW6) in TIP as well as in Court. In addition, the complainant has correctly identified the accused persons in Court except accused Rupesh, which lends support to the case of prosecution.
59. It is also contention of Ld. Counsel for accused persons that there was no sufficient light at the spot at the time of alleged incident i.e. around 1.30 a.m., therefore, the complainant would not have properly seen the assailants. It is further contended that the SC No.405/16 State Vs. Suraj Kumar & Ors. Page 35 of 48 complainant had not mentioned about the physical description of assailants in his statement Ex.PW6/A. In this regard, one may peruse the testimony of PW6 Vivek Chaudhary (complainant). In his testimony, he denied knowledge whether there was any street light on the road where the incident had occurred. He further denied the suggestion whether it was totally dark at the time of alleged incident on that day. He volunteered that there was so much light that he could see face of the assailants. He further testified that he had not disclosed the facial features of the assailants to the IO but he had disclosed about the stature, height etc. He testified that he disclosed the age of accused persons to the IO and the IO had recorded the same in his statement. The testimony of PW6 Vivek Chaudhary clearly envisage that there was sufficient light at the spot on the day of incident at the given time and he was able to see the face of assailants. The statement of PW6 Ex.PW6/A also mentions the age of the assailants as 20-27 years and it is not disputed in cross- examination that age of the assailants disclosed by the complainant (PW6) is not in tune with age of the accused persons. CUMULATIVE EFFECT OF EVIDENCE COUPLED WITH LEGAL POSITION
60. The testimony of the complainant (PW6 Vivek Chaudhary) also finds credence from the recovery of case property from the accused persons. The police witness also coherently deposed as regards the investigation carried out in the present case. The complainant has correctly identified the accused persons except accused Rupesh and the case property in court.
SC No.405/16 State Vs. Suraj Kumar & Ors. Page 36 of 4861. The complainant (PW6) has categorically deposed that accused persons inflicted stab injuries on his person while committing robbery. The said version of the complainant stands corroborated by his MLC Ex.PW9/A. In addition, PW25 Dr. S.K. Verma has proved the supplementary opinion Ex.PW25/A vide which the Medical Board opined that injuries no.1 to 3 mentioned in the MLC Ex.PW9/A are possible by the weapons i.e. both the knives examined by him. The relevant point to mention herein that PW-6 Vivek Chaudhary in his statement Ex PW-6/A did not mention the number of accused persons who had stabbed him. He simply stated that when he resisted the tying of his feet, they gave knife blow to him and also beat him with leg and fists. He further stated that knife struck him at his left thigh and left shoulder. However, there is no clarity in the said statement about number of accused persons who stabbed him. There is also no clarity as to whether more than one knife was used in commission of offence. Even he did not mention in his supplementary statement Ex PW-6/DA dated 16.09.2011 as to which of the four accused persons gave knife blow in his left shoulder and left thigh but while identifying the accused persons in court, he specifically mentioned that accused persons Sunil @ Aryan and Amit Gupta had stabbed him. In his deposition, he testified that he was stabbed once on his left thigh and four times on his left shoulder prior to his being taken on right side of the road while in his statement Ex. PW-6/A, he stated that he was given knife blows after he was taken behind the wall on the road side where one of the accused was standing with katta where they tried to tie his feets and SC No.405/16 State Vs. Suraj Kumar & Ors. Page 37 of 48 upon his resistance, he was given knife blows. Again, while identifying them as the persons who stabbed him, he did not mention as to which of the accused persons had stabbed him on his shoulder or which one of them had stabbed him on his left thigh.
62. Indeed, in cross examination, this witness (PW-6) stated that one of the two accused persons who followed third accused, who removed keys from car, was having knife. As per the case of prosecution, two of the aforesaid accused Sunil @Aryan and Amit Gupta were having knife. The said contradiction in the case of prosecution and testimony of PW-6 Vishal Chaudhary raises doubt as to which of the accused persons was having knife and had actually stabbed PW6. Notwithstanding that there is no clarity as to which of the four accused persons was having knife and who actually had inflicted injury on the person of PW-6 Vivek Chaudhary, his sustaining injury by knife used by the accused persons during the incident of robbery has been proved by his MLC and subsequent opinion Ex.PW25/A. The presence of all the four accused persons on the spot and recovery of robbed articles from them subsequently shows their common intention in committing offence of robbery. Since all the 4 accused persons jointly committed the offence of robbery and caused hurt to the complainant(PW6) in furtherance of their common intention, all the four co-accused persons are liable for the act of stabbing as if it were done by each one of them irrespective of the fact that which of the four accused persons had stabbed the complainant(PW-6 Vivek Chaudhary). In view thereof, prosecution has been able to prove its case under Section SC No.405/16 State Vs. Suraj Kumar & Ors. Page 38 of 48 392/394/34 IPC against accused persons Suraj, Sunil @ Aryan, Vijay and Amit Gupta.
63. Now coming to the charge under Section 397 IPC, the point is whether the aforesaid proved case of prosecution meet with the criterion of Section 397 IPC. In Dilawar Singh vs State Of Delhi, Appeal (Crl.) 491 of 2002 decided on 5 September, 2007, the Hon'ble Apex Court has considered the criterion for falling of offence in four corners of Section 397 IPC as:-
"22. The essential ingredients of Section 397 IPC are as follows:
1. Accused committed robbery.
2. While committing robbery or dacoity
(i) accused used deadly weapon
(ii) to cause grievous hurt to any person
(iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon. When only one has used the deadly weapon, others cannot be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But other accused are not vicariously liable under that Section for acts of co-accused.
23. As noted by this court in Phool Kumar vs. Delhi Administration (AIR 1975 SC 905), the term "offender" under Section 397 IPC is confined to the offender who uses any deadly weapon. Use of deadly weapon by one offender at the time of committing robbery cannot attract SC No.405/16 State Vs. Suraj Kumar & Ors. Page 39 of 48 Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon. There is distinction between 'uses' as used in Section 397 IPC and 398 IPC. Section 397 IPC connotes something more than merely being armed with deadly weapon.
24. In the instant case admittedly no injury has been inflicted. The use of weapon by offender for creating terror in mind of victim is sufficient. It need not be further shown to have been actually used for cutting, stabbing or shooting, as the case may be. (See:Ashfaq v. State (Govt. of NCT of Delhi) AIR 2004 SC 1253)."
64. The ratio of the aforesaid judgment is that when the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the offence of robbery. In the instant case, the complainant in his statement Ex.PW6/A stated that one of the accused persons had shown Katta to him. However, in his subsequent statement dated 16.09.2011 Ex.PW6/DA, PW6 stated that two of the accused persons had shown katta to him whom he identified in his testimony as accused Suraj and Vijay. Even, PW6 in his examination-in-chief did not state as to at which point of time of the incident of robbery, katta was shown by the accused persons.
65. In his entire examination-in-chief, PW6 is silent about the use of katta except stating at the time of identification of the accused persons that Vijay and Suraj were having weapon like katta in their hands at the time of robbery. It is settled law that Section SC No.405/16 State Vs. Suraj Kumar & Ors. Page 40 of 48 397 IPC is applicable only with respect to the accused, who uses the deadly weapon i.e. katta. But in the instant case, improvement in the version of the complainant in his statement recorded after a gap of about 3 months (Ex.PW6/DA), makes it hard to believe that two persons were having katta instead of one person. It is also pertinent to mention that PW6 in his testimony has stated that accused Suraj is the main accused, who had removed keys of his car, which also raises doubt upon his version that he was having katta since as per his statement Ex.PW6/A, the complainant stated that one of the co- accused who was standing behind the wall on the roadside was having katta in his hand. Further, as per his statement Ex.PW6/A, accused who removed the keys of the car and the accused, who was standing behind the wall with the katta were different. In addition, PW6 stated in cross-examination that the person who removed keys of the car was not having any weapon, who as per his examination- in-chief is Suraj. In such factual background, it is not safe to presume as to which of the two accused persons, namely, Suraj and Vijay were having katta in their hands at the time of commission of offence of robbery. Therefore, charge under Section 397 IPC qua accused Suraj and Vijay does not stand proved.
66. Insofar as charge under Section 397 IPC against accused Amit and Vijay are concerned, complainant (PW6) has identified them in court as the accused persons, who had stabbed him. Knives were also recovered at their instance and vide subsequent opinion Ex.PW25/A, the injuries mentioned in the MLC of Vivek Chaudhary are opined to be possible with the weapons i.e. SC No.405/16 State Vs. Suraj Kumar & Ors. Page 41 of 48 knives used by accused persons. However, in cross examination, PW-6 Vivek Chaudhary admitted that accused who removed key of his car had no weapon at that time. In answer to a specific question, PW-6 Vivek Chaudhary stated that accused who removed key from his car was followed by two other assailants and one of whom was carrying knife. Meaning thereby, out of the three accused persons, only one accused was having knife and other two accused persons were having no weapon in their hands. It has already come in his statement Ex. PW-6/A that accused standing behind the wall was having katta. Meaning thereby, only two of the four accused persons were having weapons i.e. one was having katta and one was having knife. However, as per the case of prosecution, two of the four accused persons were having katta and other two co-accused were having knife in their hand. As per settled law, section 397 IPC is applicable only on the accused person who was found using the deadly weapon at the time of commission of offence of robbery or dacoity.
67. It is also relevant to note herein that accused Suraj was arrested on 27.06.2011; accused Sunil@Aryan was arrested on 30.06.2011; accused Vijay was arrested on 07.07.2011; accused Amit Gupta was arrested on 11.07.2011 and the accused Rupesh was formally arrested from the Court on 18.07.2011. Once all the accused persons were already arrested on 18.07.2011, and PW-6 Sh. Vivek Chaudhary as per his deposition had identified the accused persons in court when he visited KKD court in the month of September 2011 for release of his Santro car, he still did not SC No.405/16 State Vs. Suraj Kumar & Ors. Page 42 of 48 describe their role in supplementary statement dated 16.09.2011, Ex. PW-6/DA. Further, as per testimony of PW-6 Vivek Chaudhary in cross examination, one of the accused persons was having knife. In such factual background of the present case, it is not safe to presume as to which one of the accused persons i.e. whether Amit Gupta or Sunil were possessing knife since testimony of PW-6 Vivek Chaudhary in cross-examination makes it apparent that one of the four accused persons were having knife though as per case of prosecution, two of the four accused persons were having knife in their hands. Apparently, PW-6 Vivek Chaudhary has not whispered in his examination in chief that two out of the four co-accused were armed with a knife but he identified Amit Gupta and Sunil as the accused persons who had stabbed him. He has not clarified in his examination in chief as to whether the accused persons Amit Gupta and Sunil had inflicted injury with one knife or more than one knife since as per his testimony in cross-examination, only one accused was holding knife. In such circumstances, one cannot make out as to which of the four accused persons were holding knife and which of the accused persons had inflicted injury upon PW-6 Vivek Chaudhary with a knife. Therefore, charge under section 397 IPC is not proved against both the accused persons namely Amit Gupta and Sunil beyond reasonable doubt.
68. Now coming to the charge under Section 25/27 Arms Act, the prosecution has neither placed on record nor proved the notification No. F-13/451/79 Home (G 29.10.1980 issued by Delhi Administration). However, the Court can take judicial notice of the SC No.405/16 State Vs. Suraj Kumar & Ors. Page 43 of 48 notification in terms of Section 57 of the Indian Evidence Act. As per the said notification, no person in the Union Territory of Delhi shall manufacture, sale or possess for sale or test spring actuated knives, gararidar knives, bottondar knives and other knives which open or close with any other mechanical device with a sharp edged blade of 7.62 cms or more in length and 1.72 cms or more in breadth in the Union Territory of Delhi, unless he holds a license issued in accordance with the provisions of the Arms Act, 1959 and framed Arms Rules, 1962, with effect from the publication of Notification of Delhi Gazette. The knife recovered from the possession of accused Amit Gupta, had length of the blade as 15 cm, length of handle as 18 cm and width of the blade as 2.6 cm. The knife recovered at the instance of accused Sunil, is having length of the blade as 11 cm, length of handle as 13.5 cm and width of the blade as 2.5 cm. Therefore, the accused Sunil @ Aryan and Amit Gupta were found in possession of a knife in contravention of Government notification no. F-13/451/79 Home (G 29.10.1980 issued by Delhi Administration). The acquisition and possession or carrying of any knife of above dimensions in contravention of the notification is punishable under Section 25 (1-B) (b) of the Act. Keeping in view that the accused Sunil @ Aryan and Amit Gupta were found to be in possession of knife which falls within the description of 'arms' as defined in Section. 2(1)(c) of the Act, 1959, prohibited by Section 4 and made punishable under Section 25(1B)(b) of the said Act, as such, both the accused Sunil @ Aryan and Amit Gupta are liable to be convicted under Section 25 (IB)(b) of Arms Act.
SC No.405/16 State Vs. Suraj Kumar & Ors. Page 44 of 4869. As regards accused Vijay, it is case of the prosecution that after his arrest on 07.07.2011 from Old Delhi Railway Station, he made disclosure statement and pursuant thereto he got recovered one desi Katta along with 2 live cartridges from his house in Aman Vihar, Behta Hajipur, Ghaziabad, on 11.07.2011. The possession of the desi katta without license is an offence under Section 25 of Arms Act and therefore accused Vijay is also liable to be convicted under Section 25(1)(a) Arms Act.
70. So far as the Section 27 of Arms Act is concerned, Section 27 of Arms Act has prescribed the use of arms or ammunition in contravention of Section 5 & 7 of Arms Act. In this case, the accused was having possession of knife in contravention of Section 4 of Arms Act, which is not covered under Section 27 of Arms Act and Section 7 concerns prohibited arms or prohibited ammunition as defined in Section 2 (1) (i) and (h) of the Act of 1959 while knife does not fall in any of the said provisions of Arms Act. Therefore, the accused Sunil @ Aryan and Amit Gupta are not liable for the offence under Section 27 of Arms Act.
71. With respect to charge framed against accused Suraj and Vijay qua possessing and using illegal desi katta, which was recovered from their possession, the prosecution has not been able to prove as to who was holding katta at the time of incident and therefore, charge under section 27 Arms Act is also not made out against the accused Suraj and Vijay.
SC No.405/16 State Vs. Suraj Kumar & Ors. Page 45 of 4872. So far the charge under Section 411 IPC is concerned, accused Suraj was apprehended on 22.06.2011 with robbed Santro car of the complainant Vivek Chaudhary in FIR no. 300/11 Ex.PW7/A. On 30.06.2011, accused Sunil @ Aryan was arrested and on 11.07.2011, he got recovered RC of the aforesaid robbed Santro car No. DL3C AP 9311 from a bag kept in his tenanted house in village Saboli, Delhi. Thereafter on 07.11.2011, accused Vijay was arrested and on 11.07.2011, he got recovered one passport size photo and one photocopy of marksheet of the complainant from his house in Aman Vihar, Behta Hazipur, Loni, Ghaziabad. On 11.07.2011, accused Amit Gupta was arrested from Old Delhi Railway Station and on 21.07.2011, he got recovered one purse of black colour made of raxin and one ring of silver like object from his rented house in Rahul Garden, Behta Hajipur, Loni, Ghaziabad. On 18.07.2011, accused Rupesh was formally arrested in the Court and on 19.07.2011, he got recovered one slip of Oriental Bank of Commerce dated 29.06.2010 and photo ID of the complainant from the room of his rented premises at Rahul Garden, Behta Hajipur, Loni, Ghaziabad.
73. As per case of prosecution, accused Rupesh was not present at the time of incident of robbery and he was also not identified by the complainant Vivek Chaudhary(PW6) in Court. Except the disclosure statement of co-accused, the prosecution has not been able to establish that it was accused Rupesh who exhorted the incident of robbery and distributed the robbed articles. The slip of Oriental Bank of Commerce dated 29.06.2010 and photo ID of the SC No.405/16 State Vs. Suraj Kumar & Ors. Page 46 of 48 complainant recovered at the instance of accused Rupesh has no monetary value and its recovery at the instance of accused Rupesh would not impute knowledge to him that he had dishonestly receivedthe same knowing to be stolen property, moreso when he was not present at the place of incident of robbery.
74. As per settled law, the recovery of stolen property during the process of theft or soon after the theft does not amount to retaining the stolen articles deliberately or knowing to be stolen. The immediate recovery of robbed articles is well covered u/s 392 IPC itself and no separate offence is made out against the accused. But in the instant case, robbed articles were recovered after a lapse of considerable time and as such prosecution has been able to prove the charge under Section 411 IPC against all the four accused persons, namely, Suraj Kumar, Sunil @ Aryan, Vijay and Amit Gupta. Accused Rupesh is acquitted of the charge under Section 411 IPC.
75. In view of the above, this court is of the considered opinion that the accused persons, namely, Suraj Kumar, Sunil @ Aryan, Vijay and Amit Gupta have committed the offences under 392/394/34 IPC and they have also committed offence under Section 411 IPC and are convicted thereunder. Accused Vijay has also committed an offence under Section 25(1)(a) of the Arms Act, whereas accused Sunil @ Aryan and Amit Gupta have committed an offence under Section 25(IB)(b) of Arms Act and they are convicted thereunder. Hence, accused Suraj Kumar, Sunil @ Aryan, Vijay and Amit Gupta are acquitted of the charge under Section 397/34 IPC SC No.405/16 State Vs. Suraj Kumar & Ors. Page 47 of 48 and under Section 27 Arms Act. Accused Rupesh is acquitted of charge under Section 411 IPC.
Digitally signed by MANJUSHA WADHWAMANJUSHA Location: Shahdara District, Karkardooma WADHWA Courts, Delhi Date: 2020.02.01 16:13:46 +0530 Announced in the open Court (MANJUSHA WADHWA) Dated: 31.01.2020 Addl. Sessions Judge-3 (Shahdara) Karkardooma Courts, Delhi SC No.405/16 State Vs. Suraj Kumar & Ors. Page 48 of 48