Delhi District Court
State vs . Ajit Ranjeet Etc. on 4 December, 2018
IN THE COURT OF AASHISH GUPTA
METROPOLITAN MAGISTRATE07, SOUTH EAST DISTRICT
SAKET COURTS, NEW DELHI
FIR No. : 104/18
P.S. : Kotla Mubarak Pur
u/s : 394/411/34 IPC
State Vs. Ajit Ranjeet etc.
a. The Sl. No. of the case : 3558/18
b. The date of commission of offence : 03.04.2018
c. The date of Institution of the case : 08.06.2018
. The name of complainant : Sh. Maya S/o Sh. Raja Ram
e. The name of accused : 1. Ajit @ Ranjeet S/o Sh. Vijender
Singh H. No. L1st, 646/13,
Sangam Vihar, New Delhi
2. Shamsher Ali S/o Sh.
Riazuddin R/o LII, H. No. 1485
Gali No. 27, Baandh Road,
Sangam Vihar, New Delhi
f. The offence complained of : 394/411/34 IPC
g. Charge framed under sections : 394/34 IPC
h. The plea of accused persons : Pleaded not guilty
i. Arguments heard on : 14.11.2018
j. The final order : Both the accused convicted
k. The date of judgment : 04.12.2018
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 1 of 22
JUDGMENT
1. Accused Ajit @ Ranjeet and Accused Shamsher Ali ['the accused persons'] are alleged to have committed robbery of a mobile phone [make OPPO A37FW (white and golden colour)] from the hand of one Maya ['victim' / 'complainant']. In the process of committing the said robbery they are also alleged to have voluntarily caused simple injury on the body of the said victim. The incident is stated to have taken place on 03rd April 2018 at about 07:45 PM near N24, South Extension Part1, New Delhi.
2. It is alleged by the prosecution that while the aforesaid victim was trying to make a call to one of her relatives, the accused persons herein came on a motorcycle [make Pulsar of 'red color' bearing no. DL 6SAJ 7895] from behind and robbed her aforesaid phone. Prosecution claims that while accused Ajit @ Ranjeet was driving the said motorcycle, accused Shamsher was riding pillion. As per the prosecution, it was accused Shamsher who actually snatched the mobile phone from the hand of the victim, while accused Ajit @ Ranjeet drove the aforesaid motorcycle. Thus, as per the prosecution, both the accused herein acted in furtherance of common intention to rob the aforesaid mobile phone from the hand of the victim.
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 2 of 22
3. Soon after the said snatching, while the persons attempted to flee, victim showed presence of mind and caught hold of the collar of the shirt of the pillion rider (who was subsequently identified as accused Shamsher Ali). While accused Shamsher Ali tried to get himself free from the grip of the victim, the victim did not let go the collar of the accused Shamsher Ali and this led to accused Shamsher Ali getting disbalanced and being removed from the aforesaid motorcycle. But, before the said accused Shamsher Ali was removed from the motorcycle, victim Maya was dragged to some distance by the accused persons. This is because, as per the prosecution, after victim Maya caught hold of the collar of the shirt of accused Shamsher, Accused Ajit @ Ranjeet continued to drive the aforesaid motorcycle. With the collar of the shirt of accused Shamsher being in the grip of the victim, accused Ajit is stated to have stopped the aforesaid motorcycle only at some distance and in the process dragging the victim for the said distance (which, resulted to injury to her back).
4. Thereafter some public persons collected and one another eyewitness namely Mukesh Kumar came to the help of the victim and he helped the victim/complainant in apprehending both the accused persons and he also restored the robbed mobile to victim Maya subsequently (which is stated to have fallen on the ground in the process). Victim thereafter used the same phone to call police at 100 number, which eventually led to the registration of FIR in the present case.
5. To complete the chain of facts, it may be noted that the aforesaid motorcycle was eventually found to be a stolen property and, as per FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 3 of 22 police report, was required in an FIR no. 0009626/2018 registered in Police Station Malviya Nagar. Thus, as per police report, the motorcycle used in committing the offence was also found to be a stolen property.
6. As per the police investigation both accused herein were responsible for the aforesaid incident and thus as per the prosecution, offences made punishable u/s. 394/411/34 IPC were committed by the accused persons. Thus, on the aforesaid allegations, police had filed chargesheet before this court u/s. 394/411/34 IPC.
7. It may be noted that initially, first information report in this case was filed under section 392/34 IPC only. But, after investigation, section 394 IPC and section 411 IPC were invoked and thus the charge sheet was filed under the aforesaid sections.
8. Again, while taking cognizance, the court took cognizance for offences punishable u/s 394/411/34 IPC. Thereafter, at the stage of arguments on the point of charge, section 411 IPC was dropped and charge for offence punishable u/s 394/34 IPC was framed upon both the accused persons, to which each one of them pleaded not guilty and claimed trial. Thus, both the accused herein have faced trial for offence made punishable u/s. 394/34 IPC.
9. Prosecution has examined the following witnesses in support of its case:
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 4 of 22 Sr. No. Witness Nature of deposition/documents produced/proved Description i PW1 Maya Documents produced/proved:
A. Complaint Ex. PW1/A. B. Seizure memo of case property i.e. mobile phone Make OPPO A 37FW Ex. PW1/B. C. Superdarinama of the release of case property Ex. PW1/C (colly) D. Photocopy of the bill of the aforesaid mobile phone in the name of victim Maya Ex. PW1/D E. Arrest memo of both the accused Ex. PW1/E and Ex.
PW1/F F. 4 photographs of the mobile phone and the mobile phone Ex. P1 (colly) and Ex. P2.
The said witness is the victim/complainant and deposed that on 03.04.2018 while she was talking on phone with her auntie [at N24, South Extension, Part1], one Pulsar motorcycle bearing No. 7895 (complete number she did not remember) came from her back side. The pillion rider of said motorcycle had snatched her mobile phone from her right hand. The other person, as per her, drove the said motorcycle.
The witness claimed that when they tried to run away from the spot, she caught hold the collar of the pillion rider of the said motorcycle. When the said pillion rider tried to remove her hand, she did not let go the said collar, due to which, she was dragged with the said motorcycle and the accused fell down on the road. Thereafter, she raised an alarm and public persons gathered. Then she, along with the said persons, apprehended the motorcyclist and the pillion rider.
She claimed that in the aforesaid incident she sustained injuries on her back. Witness also claimed that in the process her mobile phone had fallen fell down and the same was then restored to her which she used to call the police.
It may be noted that this witness correctly identified both the accused persons as the perpetrators of the crime.
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 5 of 22
ii PW2 ASI Ved Documents produced/proved:
Pal
A. Seizure memo of 4 other mobile phones Ex. PW2/A
PW2 was police witness who has seized 4 mobile phone u/s 102 CrPC detailed in Ex. PW2/A from accused Shamsher [which were recovered from the residence of the said accused subsequently at his instance] It may be noted that inter alia the other mobile phones seized by this police witness, in the aforesaid manner were given Ex P2 [see evidence of this witness dated 22/09/2018].
It may further be noted that the mobile phone which was actually robbed i.e. OPPO phone A 37 FW was taken on superdari by victim Maya and produced in court by her during her evidence on 01/09/2018 and the same was also given Exhibit P2.
In order to avoid any confusion, the aforesaid mobile phone of victim i.e. OPPO phone A 37 FW shall be referred to as 'the robbed phone' and the other mobile phone seized by PW2 shall be referred to as 'mobile phones as per Ex. PW2/A' in the body of this judgment.
iii PW3 Sh. PW3 is the eyewitness of the case. He deposed the same Mukesh Kumar lines as PW1. He categorically identified the accused Shamsher Ali as the pillion rider of the motorcycle make Pulsar 'red color' and accused Ajit@ Ranjeet as the driver of the said motorcycle. This witness claimed to have seen the entire incident and claimed that accused Shamsher had robbed the mobile from the hand of victim Maya. He claimed to have helped in the apprehension of the accused persons. He also claimed that he saw the victim being dragged on road for some distance by the accused persons.
It may be noted that this witness correctly identified both the accused persons as the perpetrators of the crime.
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 6 of 22
iv PW4 Mrs. Documents produced/proved:
Mamta
A. Photocopy of the order dated 26.04.2018 mark X
[superdari order through which the motorcycle used in crime in this case was released to this witness by the concerned court in FIR no. 9626 PS Malviya Nagar].
The said witness is the owner of the Pulsar motorcycle bearing No. DL6SAJ7895; colour 'Red' and deposed that her said motorcycle was stolen on 23/03/2018 and was subsequently recovered by the police of PS Malviya Nagar. She got released the abovementioned motorcycle on superdari.
v PW5 Sh. Documents produced/proved:
Gautam Bhumia
A. Copy of EFIR No. 0009626/18 PS Malviya Nagar Ex.
PW5/A B. Order dated 26.04.2018 Ex. PW5/B (OSR) The said witness was summoned to bring the record qua FIR no. 9626/2018 PS Malviya Nagar and he produced the copy of the said FIR Ex. PW5/A [as per which one motorcycle DL 6 SAJ 7895 was stolen on 23/03/2018 of Make Bajaj Pulsar Color Dark Red]. He also produced the final order passed in the said case by the concerned court Ex. PW5/B. vi PW6 SI Ravi Documents produced/proved Yadav A. True copy of DD No. 33A Ex. PW6/A B. Rukka Ex. PW6/B C. Seizure memo of vehicle bearing No. DL6SAJ7895 Ex. PW6/C D. Personal search memos of both the accused persons Ex. PW6/D and Ex. PW6/E E. Site plan Ex. PW6/F He is the 1st IO of the case who carried out the investigation in the case.
vii PW7 W/Ct. The said witness took to the complainant Maya for medical
Lajwanti examination to AIIMS.
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 7 of 22
viii PW8 SI Documents produced/proved:
Pradeep Kumar
A. Disclosure statements of both the accused Ex. PW8/A and Ex. PW8/B. He is the 2nd IO of the case who carried out further investigation in the case and filed the police report before the court.
Documents admitted by the accused:
A. MLC bearing No. 500088016/18 dated 03.04.2018 and discharge summary of injured/victim/complainant Maya Ex. PA1 and Ex. PA2 (running into 3 pages) B. FIR (without contents) Ex. PA2 [due to oversight the discharge summary of victim Maya as well as the FIR has been given the same exhibit number and thus to avoid any confusion, the said documents shall be referred by their respective titles namely 'Discharge summary of victim Maya' and 'FIR' in the boy of this judgment)
10. All the said witnesses were duly examined on behalf of the State and cross examined [by the Ld. APP for State, if necessary, and more importantly by the counsel for the accused person(s)]. After closure of prosecution evidence, separate statements of both the accused were recorded u/s. 313 Cr.P.C in which they both claimed that the on the date, time and place alleged, they both were riding the motorcycle DL 6 SAJ 7895 [make Pulsar; colour Red] with accused Ajit @ Ranjeet driving the said motorcycle and accused Shamsher Ali sitting pillion. As per both of them the said motorcycle had brushed a girl who caught hold of accused Shamsher's collar and thereafter slapped him. As per both of the accused, some hot talks took place and thereafter people thought that they had snatched the mobile FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 8 of 22 phone of the said girl. Both of them claimed that they had never snatched the mobile phone of the said girl or had dragged her in any manner. Thus, they denied their involvement in the present case.
11. Both the accused did not lead any evidence in support of their case and thus, the matter reached the stage of final arguments.
12. Arguments heard. Record perused.
13. The learned counsel for the State argued that both the eyewitnesses namely Maya (who is also the victim in this case) and Mukesh Kumar have fully corroborated their testimonies and the said testimonies (of each of the said witnesses) are in line with the case set up by the prosecution before this court. Thus, the learned counsel for the State argued that this is a fit case for conviction of each of the accused for the offences alleged against them.
14. On the other hand respective counsels for each of the accused argued that this is a fit case for the acquittal of their clients. It is the argument of the respective counsels for the accused that each of the accused have been falsely implicated in this case because the public mistook them to have snatched the mobile phone of the victim when no such incident took place. They argued that the victim had entered into hot talks with each of the accused as the motorcycle being driven by the said accused persons had touched the said victim and in order to save herself (she having slapped one accused Shamsher), had falsely deposed against both the accused herein.
15. It was also argued that the investigation in this case is not proper inasmuch as the first investigating officer gave a wrong time of receipt of first FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 9 of 22 information report from the police station (at around 10:40 p.m.) when actually the said first information report was registered at about 10:55 p.m. It was argued, on the strength of the said contradiction, that the investigation in this case was not proper and therefore the benefit of doubt should be given to each of the accused herein and therefore both the accused should be acquitted in this case.
16. I have given thoughtful consideration to the arguments made before me and have gone through the entire record.
17. As per the evidence led before this court, there are two eyewitnesses of the incident. One is the victim namely Maya who stepped in the witness box as PW1 and another is a public witness namely Mukesh (who happened to be at the spot when incident took place) and he stepped in the witness box as PW3. This witness Maya claimed that on 3rd April 2018 at about 7:45 PM her mobile phone of make OPPO A37 [photographs of which are Ex P1 (colly) and the phone produced as Ex. P2: which was correctly identified by this witness and whose right to possession with PW1 is also proved by her vide its retail bill Ex. PW1/D which is in her name] was robbed from her while she was trying to make a call to one of her relatives. She claimed that the accused persons herein came on a motorcycle [make Pulsar of 'red color' bearing no. 7895] from behind and robbed her aforesaid phone. She claimed that while accused Ajit @ Ranjeet was driving the said motorcycle, accused Shamsher was riding pillion. As per her testimony before this court, it was accused Shamsher who actually snatched the mobile phone from her hand, while accused Ajit @ Ranjeet drove the aforesaid motorcycle.
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 10 of 22
18. The said witness also claimed that soon after she caught hold of the collar of the pillion rider i.e. accused Shamsher. She deposed that while accused Shamsher tried to get himself free from the grip of the victim, the victim did not let go the collar of the accused Shamsher and this led to accused Shamsher getting disbalanced and being removed from the aforesaid motorcycle. But, before the accused Shamsher was removed from the motorcycle, witness Maya, as per her, was dragged to some distance by the accused persons which cause injury to her back. Witness claimed that then accused Ajit stopped the aforesaid motorcycle but in the process, he dragged her on the road which led to injury to her.
19. This witness further claimed that thereafter some public persons collected and one another eyewitness (who she could not name) came to her help and he helped the victim/complainant in apprehending both the accused persons. As per the cross examination of this witness this person also restored the robbed mobile to victim Maya subsequently (which is stated to have fallen on the ground in the process). Victim thereafter used the same phone to call police at 100 number, which eventually led to the registration of FIR in the present case.
20. PW3/ Mukesh Kumar, who is the other eyewitness of the case, has also deposed on the same lines as PW1/ Maya. He categorically identified the accused Shamsher Ali as the pillion rider of the motorcycle make Pulsar 'red color' and accused Ajit@ Ranjeet as the driver of the said motorcycle. This witness claimed to have seen the entire incident and claimed that accused Shamsher had robbed the mobile from the hand of victim Maya. He FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 11 of 22 claimed to have helped in the apprehension of the accused persons. He also claimed that he saw the victim being dragged on road for some distance by the accused persons.
21. Now as per the testimony of both the eyewitnesses namely Maya/PW1 and Mukesh/PW3 the incident took place near N block, 24, South Extension Part 1, New Delhi at about 07:45 PM. Again, from the reading of the testimony of the said witnesses it transpires that after the incident of robbery, the accused Shamsher Ali and Ajit @ Ranjeet were apprehended soon after by the said witnesses. The date, time and place of the incident, as narrated by both the witnesses, and the chain of events as disclosed by both these eyewitnesses match on all material particulars and in the cross examination of either one of them nothing has come on record to disbelieve the testimony of the said two witnesses. The testimony of each of the said witnesses is credible and trustworthy. On account of the collaboration of the testimony of each of the said witnesses, their testimonies inspire the confidence of this court and is completely believable. Nothing has been brought to my notice by the respective counsel for the accused to give me a reason to disbelieve the said testimonies of each of the said witnesses.
22. In fact, on all material particulars, including the date, time, place or the chain of events as can be understood from the facts written in the first information report and as disclosed by either of the two witnesses, the testimony of either of the two eyewitnesses clinically match. Again, the facts recorded in the complaint Ex. PW1/A also match with the testimony of PW1/Maya. Even though, the said witnesses could not recall the entire FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 12 of 22 number of the motorcycle used in the crime, but, they both correctly gave the make as well as the colour of the said motorcycle. Each one of them claimed that the motorcycle used by the accused herein was of make Pulsar and its colour was claimed to be Red. At this stage it may be noted that both the accused herein, in their statements recorded under 313 CrPC have admitted that they were driving the motorcycle DL6 SAJ 7895 [Make Pulsar of Red color] at the date, time and place. Thus, in my opinion, the factum of non disclosure of the motorcycle number by the said witnesses, is of no consequence, in view of the aforesaid facts.
23. Thus, based on the testimony of the said witnesses, I have no doubt that a mobile phone [as seen in Ex. P1 (colly) of make OPPO A37 golden and white in colour and described in Ex. PW1/D (retail invoice of the said phone) and Ex. PW1/B (seizure memo of the said phone)] which was in possession of victim Maya was actually removed from the body of the complainant Maya without her consent. The testimony of each of the said witnesses is categorical that accused Shamsher was sitting pillion on a motorcycle of make Pulsar; colour Red and accused Ajit was driving the same.
24. Now, with the accused Ajit @ Ranjeet driving the motorcycle and with accused Shamsher Ali removing the phone from the hand of the victim, it is evident that both the accused herein were acting as a group and shared the common intention to commit the act of removing the phone in possession of the complainant without her consent. It may be noted herein that both the accused had come from behind the complainant and had robbed her phone FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 13 of 22 from her hand. This fact of the accused persons, with accused Ajit @ Ranjeet driving the bike and accused Shamsher Ali then removing the phone from the hand of the victim, with these accused coming from behind the victim, clearly show that both of the accused herein were acting in tandem, as a team, to complete the act i.e of robbing the phone in question from the complainant/victim. This also show that they both were acting and operating in furtherance of their common intention to rob the property of the complainant.
25. At the stage, it may be recalled that each of the accused herein, in their respective statements recorded under 313 Crpc, have admitted that each one of them was riding the motorcycle in question i.e. DL 6 SAJ 7895 at the date, time and place alleged by the prosecution. It may further be noted that both of them in the said statements have also admitted that accused Ajit @ Ranjeet was the driver of the said motorcycle and accused Shamsher Ali was the pillion rider thereupon. Thus there is no dispute with regard to the presence of both the accused herein at the spot where the incident took place. Again, there is no dispute that accused Ajit @ Ranjeet was the driver of the said motorcycle and accused Shamsher Ali was the pillion rider there upon. Thus, these admitted facts are in line with the prosecution case, as set up in the police report and also brought on record by the testimonies of the two eyewitnesses namely Maya/PW1 and Mukesh/PW3.
26. Now, the testimony of either of the said two eyewitnesses, as described above, clearly shows the role of each of the two accused herein in the incident in question and thus, in my opinion, the material brought on record FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 14 of 22 by the prosecution is sufficient to bring home the guilt of both accused, with regard to offence made punishable under section 392/34 IPC. In my opinion, all the essential ingredients of the said section are complete in the facts of this case. The question now is, whether section 394/34 IPC is attracted to facts of the case or not?
27. I have already noted that from the cross examination of either of the aforesaid two witnesses nothing has come on record to either shake the veracity of the facts disclosed by them or to disbelieve their testimony. It may be reiterated, even at the cost of repetition that the date, time and place of the incident, as narrated by both the witnesses, and the chain of events as disclosed by both these eyewitnesses match on all material particulars. The testimony of each of the said witnesses is credible and trustworthy. On account of the collaboration of the testimony of each of the said witnesses, their testimonies inspire the confidence of this court and is completely believable. Nothing has been brought to my notice by the respective counsel for the accused to give me a reason to disbelieve the said testimonies of each of the said witnesses.
28. Again, there is no credible explanation or any motive is attributed to either of the said two witnesses by either of the accused herein to show any reason for falsely implicating the accused herein. At this stage, I may take note of the argument raised by the respective counsel for the accused explaining the reason of implication of accused by the victim in this case. It is the argument of the respective counsels for the accused that each of the accused have been falsely implicated in this case because the public mistook them to FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 15 of 22 have snatched the mobile phone of the victim when no such incident took place. They argued that the victim had entered into hot talks with each of the accused as the motorcycle being driven by the said accused persons had touched the said victim and in order to save herself (she having slapped one accused Shamsher), had falsely deposed against both the accused herein. Counsels for the accused argued that the said facts can be read from the statement of each of the accused recorded under 313 CrPC.
29. I am not inclined to accept the said argument raised on behalf of the accused persons. Firstly, no witness in support of the said contention has been produced by either of the said accused. Even though, each of the accused, in law, has a right of silence, but once they took the defence that since the complainant had slapped Shamsher Ali and she wanted to save herself from any legal consequences and therefore she had implicated the accused herein in this case, it is reasonable to expect that each of the said accused may have brought the said facts on record by either their own testimony or by the testimony of any independent witness. Nothing of the sort was done in this case. Secondly, the story being set up by the accused persons appears to be in genuine if not extraordinary. It is too much to accept that only because the complainant had some hot talks with the accused persons or had slapped the accused persons (presuming the same to be true, only for the sake of arguments), the complainant would allege robbery of her mobile phone by the said accused persons and would also go to the length of then registering a police complaint and further still step in the witness box in support of her said claim.
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 16 of 22
30. Again, even if it is presumed for a short period of time that the same happened, why would another eyewitness namely Mukesh come in support of the complainant? It is very remote that a complete stranger namely Mukesh who did not know either the accused persons or the complainant, would help the complainant in first apprehending the accused persons and then going to the police station and then again coming to court to depose. There is, in my opinion, very remote possibility that a complete stranger to both parties would make a claim supporting one party (Maya herein) over the other (the accused herein) except when he is stating the truth. More so when the same involves a very serious crime like the one at hand.
31. Further still, how would then the injuries suffered by the complainant be explained? It is to be noted that each of the two eye witnesses namely Maya and Mukesh have categorically stated that after the incident of snatching of the mobile phone, the collar of accused Shamsher was caught hold of by victim Maya. Both of them claimed that when accused Shamsher Ali tried to free himself from the grip of Maya, Maya did not let go the said collar of the shirt of accused Shamsher Ali. In the meanwhile accused Ajit @ Ranjeet continued to drive the motorcycle, dragging Maya with the said motorcycle. This led to injury on the body of Maya (on her back) which has been proved on record through her MLA Ex. PA1 as well as through her discharge summary Ex. PA2 [which show that she had suffered some injury to her back]. This injury on the body of the victim matches with her claim made in her testimony and also correlates with the timing of the incident as well as with the time of the drawing up of this MLC. Thus, the chain of events as described by the victim Maya is corroborated by the testimony of the other FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 17 of 22 eye witness Mukesh and is further corroborated by the aforesaid medico legal report of the said victim. The same is in the face of the argument raised by the counsel for the accused persons.
32. Further still, the story of the motorcycle touching the victim Maya has been set up for the very first time during the statement of the accused under section 313 CrPC and no suggestion in this regard was put to each of the two eyewitnesses during their cross examination. In fact, during the cross examination of the said witnesses, the counsels for the accused claimed that purportedly a strap of the purse of victim Maya (which was being carried by her on the day of the incident and also on the day she deposed before this court) had got entangled into the motorcycle of the accused persons which lead to the hot talks. But, while recording the statement of each of the accused under 313 CrPC, a new defence appears to have been taken that the motorcycle of the accused persons had touched the body of Maya which led to some hot talks, which is in contradiction to the claim by each of the accused persons that the strap of the purse being carried by Maya had got entangled in the motorcycle driven by the accused persons, which was taken at the time of the cross examination of the said witness.
33. Thus, in my opinion, in the absence of any defence evidence for the plea taken by the accused persons in their statement under 313 CrPC and also considering the contradictory defence as set up during the cross examination of the eye witnesses and the one taken in the statements recorded under 313 CrPC, the argument of the counsel of the accused that the accused have been falsely implicated appears to be a self serving argument with no factual FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 18 of 22 basis. This is more so on account of the injury suffered by victim Maya in the incident for which no explanation has been offered.
34. At this stage, it may be noted that before to the incident, neither the complainant nor the other eyewitness Mukesh knew either of the accused herein. Thus, the theory of false implication raised before this court is neither credible nor believable. There is nothing on record to show that the complainant knew the accused herein (prior to the incident) or had any other motive to falsely implicate him. Similar is the case with the other eyewitness namely Mukesh. That being the case, in my opinion, the evidence brought on record by the prosecution is sufficient to bring home the guilt of both the accused under section 392/34 IPC.
35. Now, as already noted, in the incident Maya had sustained injuries on her back, which was a direct result of the robbery committed by the accused herein, in furtherance of their common intention. As already noted, each of the two eye witnesses namely Maya and Mukesh have categorically stated that after the incident of snatching of the mobile phone, the collar of accused Shamsher was caught hold of by victim Maya. Both of them claimed that when accused Shamsher Ali tried to free himself from the grip of Maya, Maya did not let go the said collar of the shirt of accused Shamsher Ali. In the meanwhile accused Ajit @ Ranjeet continued to drive the motorcycle, dragging Maya with the said motorcycle. This led to injury on the body of Maya (on her back) which has been proved on record through her MLA Ex. PA1 as well as through her discharge summary Ex. PA2 [which show that she had suffered some injury to her back]. This FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 19 of 22 injury on the body of the victim matches with her claim made in her testimony and also correlates with the timing of the incident as well as with the time of the drawing up of this MLC. Thus, the chain of events as described by the victim Maya is corroborated by the testimony of the other eye witness Mukesh and is further corroborated by the aforesaid medico legal report of the said victim and shows that in committing of the robbery in this case, the accused herein had voluntarily caused injury to the victim Maya.
36. All the said acts, as already noted, were done in tandem by each of the accused acting in a ground in furtherance of a common goal and thus they both had the necessary common intention to commit the act of robbery as well the voluntariness in causing injury to the victim Maya. Thus, the present case shall come out of the ambit of section 392/34 IPC and shall fall in the ambit of the graver offence as defined under section 394/34 IPC.
37. In my opinion, the accused here in committed robbery of mobile phone and in the process also voluntarily caused simple injury (by dragging the victim with the motorcycle when she resisted and tried to catch the accused herein). Thus, both the accused herein are guilty of offences made punishable u/s 394/34 IPC.
38. As far as the argument raised by the counsel for the accused persons that investigation in this case is not proper because the investigating officer, while deposing before this court could not give the correct time when he received the copy of the first information report after its registration from FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 20 of 22 the police station, suffice is to say that with the positive identification of the each of the accused herein by the two eyewitnesses and considering the credible evidence of each one of them, nothing much turns on the said omission on the part of the investigating officer. At best, there is some lapse of memory on the part of the investigating officer when he deposed before this court as a witness. The time when he received the copy of the first information report from the police station is of no consequence in the facts of the present case. This is considering the credible testimony of two witnesses whose evidence has been found to be of sterling quality. Suffice is to say that once the testimony of the two eyewitnesses has been found to be credible and trustworthy, which inspires the confidence of the court, the aforesaid contradiction/omission, in my opinion, is of no consequence. The fact that there is some discrepancy in investigation, may raise a suspicion on the manner in which the investigation was carried out, but, in my opinion, the same cannot belly the entire case of the prosecution. The lapse on the part of the prosecution cannot absolve the accused persons, in the facts of the present case, from the offence alleged against them.
39. This is because the material facts of the case relate to the act of removing of goods i.e the mobile phone from the body of the complainant without her consent, by the accused persons herein, with both acting in furtherance of a common intention. The other material fact is voluntary causing of injury by the said accused persons on the body of the victim while committing the act of removal of goods / mobile phone by dragging the complainant with the motorcycle bearing no. DL 6SAJ 7895. It may be noted that the said motorcycle was also a stolen vehicle (see evidence of PW4 and PW5). Once FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 21 of 22 the said facts are duly proved on record, any omission or discrepancy in the conduct of investigation is not a material fact for proving the guilt of the accused and is at best a lapse of investigation which is of no consequence or of any benefit to the accused.
40. Thus, in my opinion, considering the aforesaid facts and circumstances of the present case, both the accused Ajit @ Ranjeet and accused Shamsher Ali are guilty of offence made punishable under section 394/34 IPC. It is ordered accordingly.
Digitally signed by AASHISH AASHISH GUPTA
GUPTA Date:
Announced in the Open 2018.12.04
15:00:17 +0530 Aashish Gupta
th
Court on 04 day of December, 2018 MM(South East)07
Saket, New Delhi.
FIR no. 104/18 State V/s. Ajit @ Ranjeet and Anr. Page no. 22 of 22