Delhi District Court
State vs . Rakesh @ Goga & Another on 8 December, 2014
IN THE COURT OF SH. AMIT BANSAL, ADDITIONAL SESSION
JUDGE 04 (NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
S.C. No. 151/01/14
Unique case ID No. 02404RO325202011
FIR No. 210/11
U/S 394/397/411/201/34 IPC
P.S. Ashok Vihar
State Vs. Rakesh @ Goga & Another
STATE VERSUS 1. Rakesh @ Goga
S/O Shri Kashi Nath Giri
R/O Jhuggi No. 395. B68 in
front of Factory, WPIA, Delhi.
2. Azad S/O Sh. Ram Samuj,
R/O Jhuggi No. D53, SS
Nagar, WPIA, Delhi
Date of receipt of file in this Court: 12.02.2014
Date when arguments were heard: 02.12.2014
Date of judgment : 08.12.2014
JUDGMENT
1. The above said accused persons have been charge sheeted by PS Ashok Vihar for commission of offences punishable u/s SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 1 of 32 394/397/411/201/34 IPC.
2. Copy of charge sheet was supplied to both the accused persons by Ld. MM, Rohini, Delhi. The Ld. Metropolitan Magistrate after complying with the provision of Section 207 CrPC, committed the case to the Court of Sessions as the offence punishable U/S 397 IPC is exclusively triable by the Sessions Court.
3. Story of the prosecution in brief is that PW2 / complainant Sh.
Ramesh Chand Sharma used to work as a cleaner / helper with the driver Sh. Raju on truck No. HR38 J 1570. On 17.08.2011, they loaded their said truck/ container from Tuglakabad, Delhi and reached on 18.08.2011 at about 3 a.m. at factory No. A126, Wazir Pur Industrial Area ( WPIA), where the said container had to be unloaded. The owner of the said factory told them that the truck would be unloaded in the morning and thereafter they parked the said truck/ container in front of the above said factory. Both PW1 and driver Sh. Raju went to sleep in the chamber of the said truck, PW1 was sleeping on the lower birth of the said truck whereas Sh. Raju was sleeping on the upper birth of the said chamber. At about 5:00/5.15 a.m. ( on 18.08.2011), PW1 felt that someone was searching his wearing clothes and when he woke up, he saw that three persons were present in the chamber of the truck and were searching the pockets of his wearing pants SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 2 of 32 and shirt. Out of said three persons, two persons were having one knife each in their hands, whereas , the third person was having a scissors type weapon in his hand . PW1 caught hold of two persons having knife in their hands and raised an alarm asking the driver Raju to help him. The third person having scissor type weapon in his hand threatened Sh. Raju not to come down and gave two blows of said scissors type weapon on the right thigh of PW1. After receiving the injury on his person, the grip of PW1 became loose on the said persons and they gave knife blows on the person of PW1 with their knives. One of the said assailant took out the TATA mobile phone of PW1 from the pocket of his wearing T shirt and the other took out his purse from the back side pocket of his wearing pants. The purse of PW1 contained three currency notes of denomination of Rs. 500/ each, five currency notes of denomination of Rs. 100/ each, his voter Identity card and some other miscellaneous papers. Accused Azad was standing outside near the truck. Thereafter all the said four persons ran away from the spot. During the incident, the driver Raju did not came down from the upper birth as the said persons were threatening him. Raju, however, made a call on 100 number, PCR reached at the spot and PW1 was removed to the BJRM hospital. The police from P SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 3 of 32 S Ashok Vihar also reached at the said hospital. PW1 due to pain, did not give his statement to the police on 18.08.2011 and was discharged from the hospital on 18.08.2011 at about 11 a.m./ 12 noon.
The information regarding the above said quarrel was received at P S Ashok Vihar on 18.08.2011 from District control room via intercom and said information was reduced into writing by PW7 vide DD No. 8A dated 18.08.2011 ( Ex. PW 7/A). The said DD was marked to PW13 SI Umesh Kumar/ IO of the case. The statement of PW1 was recorded by the police on 19.08.2011 when he along with Raju went to the police station. The rukka was prepared upon which the case FIR was registered. Upon the secret information and at the identification of PW1, the accused Rakesh @ Goga and Jitender @ Chussi ( JICL) were apprehended on 19.08.2011 at about 9 p.m. from Raja Park, B Block, WPIA Area. Upon search of accused Rakesh @ Goga, one knife Ex. P2 was recovered from the back pocket of his pants and Rs. 350/ cash were recovered from the pocket of the shirt. The sketch of the knife ( Ex. PW 1/C) was prepared and it was seized vide seizure memo Ex. PW 1/D. SI Rohit Lohchab had also reached at the spot being the juvenile officer. The seizure memo of currency notes of Rs.350/ is Ex. PW 1/E. At the SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 4 of 32 instance of Jitender @ Chussi ( JICL) one purse of black color Ex. P1 was recovered from the park behind toilet of CSI Colony. The said purse at that time was containing one passport size photo of PW1 and his identity card. The same was also seized. The disclosure statement Ex. PW 1/B of accused Rakesh @ Goga was recorded from which it came to be known that accused Azad and Sanjiv Rana ( JICL) were also involved in the present incident. On 20.08.2011 Ct. Naveen and Ct. Babu Lal brought accused Azad and upon his personal search Rs. 300/ cash i.e. three currency of Rs. 100/ denomination each were recovered from the pocket of his half pants, which were seized vide seizure memo Ex. PW 11/E after preparing a pullanda. On 05.11.2011, PW8 Ct. Sidharth collected the sealed pullanda of knife Ex. P2 from the malkhana and handed over photocopy of MLC of the victim to the doctor BJRM Hospital for providing subsequent opinion regarding weapon of offence. On 11.11.2011, on the asking of doctor, PW13/IO along with PW6 HC Ashok Kumar and PW1 reached BJRM Hospital and the doctor ( PW12) after examining the weapon of offence and the victim/ PW1 gave a subsequent opinion regarding weapon of offence Ex. PW 12/A / Ex. PW 13/D. After completion of investigation, the charge sheet U/S 394/397/411/201/34 IPC against the accused Rakesh @ SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 5 of 32 Goga and Azad was filed in the court, whereas the charge sheet against both the JICL namely Jitender @ Chussi and Sanjiv Rana was filed before Ld. JJB.
4. Accused Rakesh @ Goga and Azad are facing trial on the allegations of the prosecution that on 18.08.2011 at about 5:00/ 5.15 a.m. in the cabin of truck No. HR 38 J 1570 parked at the road near factory No. A126, WPIA, Delhi within the jurisdiction of P S Ashok Vihar, both of them along with their co accused Jitender @ Chussi and Sanjiv Rana (JICLs), in furtherance of their common intention robbed PW1 Ramesh Chand Sharma of a mobile phone and a purse containing Rs.2000/ and at the time of committing aforesaid robbery also voluntarily caused injuries on the person of PW1/ complainant and thereby committed an offence punishable U/S 392/394/34 IPC.
Accused Rakesh @ Goga is further facing trial on the allegations of the prosecution that on the above mentioned date, time and place , he used a deadly weapon i.e. a knife Ex. P2 while committing the aforesaid robbery and thereby committed an offence punishable U/S 397 IPC.
Both the said accused persons i.e. Rakesh @ Goga and Azad are also facing trial on the allegations of the prosecution that on 19.08.2011, accused Rakesh @ Goga was SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 6 of 32 found in possession of Rs.350/ and on 20.08.2011 accused Azad was found in possession of Rs.300/ i.e. the amount out of the above said robbed Rs.2000/ of complainant/ PW1, which they had dishonestly received or retained knowing or having reasons to believe to be stolen property and thereby committed an offence punishable U/S 411 IPC.
The above said charge was framed by the Ld. Predecessor of this court on 16.12.2011 to which both the accused persons pleaded not guilty and claimed trial. The case was thereafter fixed for prosecution evidence.
5. The prosecution in support of its case has examined total 13 witnesses and thereafter the prosecution evidence was closed.
6. The statement of the accused persons U/S 313 CrPC was recorded in which they denied all the material incriminating circumstances appearing in the prosecution evidence on record against them and stated that they are innocent and have been falsely implicated in this case at the instance of the IO. They further stated that nothing was recovered from their possession. Both the accused persons in their respective statements did not prefer to lead any defence evidence.
7. I have heard the final arguments and perused the record.
8. Ld. Addl. P P for the State argued that the prosecution has been SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 7 of 32 able to prove its case against both the accused persons beyond reasonable doubt U/S 392/394 /34 IPC. He argued that from the testimony of PW1/ victim/ complainant, the prosecution has proved beyond reasonable doubt that both the accused persons in furtherance of their common intention with Jitender @ Chussi ( JICL) and Sanjiv Rana ( JICL) robbed PW1 of a mobile phone and a purse containing Rs.2,000/ and at the time of commission of said robbery also voluntarily caused injuries on the person of PW1. In this regard he also referred to MLC of PW1 dated 18.08.2011 i.e. Ex. PW 10/A and also to the testimony of PW10. He argued that PW1 has correctly identified the accused Rakesh @ Goga and that accused Rakesh @ Goga was arrested upon the identification of PW1. He contended that non examination of the truck driver i.e. Raju shall not affect the case of the prosecution as he was untraceable and referred to the order sheets specially order sheet dated 15.04.2013 wherein statement of PW13/ IO was recorded to the effect that despite best efforts the said witness Raju could not be traced and in these circumstances, the name of said witness Raju was struck off from the list of witnesses. He further argued that even otherwise, in view of the reliable testimony of PW1, an injured victim, the non examination of PW Raju ( truck driver) will not have any SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 8 of 32 adverse bearing on the case of the prosecution. He argued that a knife i.e. a deadly weapon was used by accused Rakesh @ Goga at the time of commission of the case offence and the said knife was also recovered from his possession, which was seized vide seizure memo Ex. PW 1/D. He submitted that the said knife has been proved as Ex. P2. He in this regard also referred to the subsequent opinion Ex. PW 12/A as given by PW12 regarding the weapon of offence. He further submitted that in these circumstances, the accused Rakesh @ Goga is liable to be convicted U/S 397 IPC . He further argued that Rs.350/ cash and Rs.300/ cash out of the total robbed amount were recovered from accused Rakesh @ Goga and accused Azad respectively and hence, the accused in alternative can also be convicted U/S 411 IPC. He thus argued that the prosecution has proved its case against both the accused persons beyond reasonable doubt and prayed that they be convicted in this case.
9. Ld. Amicus Curiae on behalf of both the accused persons argued that the prosecution has failed to prove its case beyond reasonable doubt against the accused Azad and even PW1/ complainant did not identify accused Azad in the court. He argued that as per the case of prosecution Rs.350/ were recovered from the accused Rakesh @ Goga whereas Rs.300/ SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 9 of 32 were recovered from accused Azad from their wearing clothes, however, no specific mark or currency number has been given to prove that the said currency notes were part of the alleged robbed currency. He thus argued that prosecution has failed to prove any charge against the accused Azad and the prosecution has also failed to prove the charge u/s. 411 IPC against both the accused persons. He argued that no public persons had been joined by the IO during the investigation of the case. He argued that the alleged weapon of offence i.e knife Ex.P2 was planted upon accused Rakesh @ Goga by the IO and there were no blood stains on the said knife. He further argued that the prosecution failed to examine Shri Raju ie the driver of the truck who would have been a material witness for the prosecution being an alleged eye witness of the case incident. He contended that the non examination of the said witness without any proper explanation from the side of prosecution is fatal to the case of the prosecution. He thus argued that both the accused persons should be acquitted in the present case.
10.As mentioned above, the prosecution in support of its case has examined total 13 witnesses.
PW1 Sh. Ramesh Chand Sharma is the most material witness for the prosecution being the complainant/ injured victim SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 10 of 32 of the case incident. The statement of PW1 dated 19.08.2011 upon which the case FIR was registered has been proved as Ex. PW 1/A. The disclosure statement of accused Rakesh @ Goga is Ex. PW 1/B . PW1 has deposed to the effect that from the cursory search of accused Rakesh @ Goga a sum of Rs. 350/ was recovered and one knife (vegetable cutting knife) was also recovered from the back side pocket of his wearing jeans pants. He deposed that the knife did not have any blood stains at that time. He deposed that the said knife was measured and its sketch has been proved as Ex. PW 1/C bearing signatures of PW1 at point A. The knife was kept in a cloth parcel and was sealed with the seal of RL and was seized vide seizure memo Ex.PW 1/D . The currency notes of Rs. 350/ as recovered from accused Rakesh @ Goga were kept in a cloth piece, were converted into a parcel which was sealed with the seal of RL and the same was seized vide seizure memo Ex. PW 1/E. He further deposed that accused Jitender @ Chussi ( JICL) led them to the place behind Shochalya and got recovered one purse, which was identified by him, and at that time the purse was found to contain his( PW1) voter I card and passport size photograph. The said purse was also sealed in a cloth parcel with the seal of RL and was taken into possession. PW1 deposed that on 26.08.2011 at about 5 SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 11 of 32 p.m. when he was present at factory No. A126, WPIA, the IO reached there with accused Sanjiv @ Rana ( JICL) and he identified him there. The said purse and the articles contained therein are Ex. P1 ( colly). The above said knife which was got recovered by accused Rakesh @ Goga is Ex. P2. The currency notes totaling Rs.350/ ( three notes in the denomination of Rs.100/ each and one note of Rs.50/ denomination) as got recovered from accused Rakesh @ Goga have been collectively proved as Ex. P3. PW1 correctly identified the accused Rakesh @ Goga in the court as the person who had robbed him at knife point. In crossexamination , PW1 inter alia deposed that the door of the chamber of the truck was not locked, but it was closed and it could be opened from both the sides i.e. outside or inside. He further deposed that he caught hold of accused Rakesh @ Goga with his right hand . He further deposed that his complaint Ex. PW 1/A was recorded at the police station on 19.08.2011 on his dictation , therefore, he did not go through the same before signing it. He further deposed that at the time of incident he had raised an alarm but none came forward for his help from the public. He further deposed that no public person was present in the side of the park from where the accused persons were apprehended/ arrested.
SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 12 of 32 PW2 HC Mukesh Kumar was posted as MHC (M) at P S Ashok Vihar at the relevant time. He has proved the entries in his register No. 19 regarding the depositing and taking away of articles in and from the malkhana . The said entries are Ex. PW 2/A to Ex. PW 2/D and Ex. PW 2/F. The copy of RC No. 125/21/11 vide which on 05.11.2011 one parcel containing knife sealed with the seal of RL was sent to BJRM Hospital through Ct. Sidharth for seeking the opinion has been proved as Ex. PW 2/E. PW3 HC Sunil Kumar was posted as a Duty Officer on 19.08.2011 at P.S. Ashok Vihar from 8 a.m. to 4 p.m. He deposed that on that day at about 1 p.m., PW13 SI Neeraj Kumar presented a rukka before him upon which he made an endorsement Ex. PW 3/A and thereafter the case FIR Ex. PW 3/B was got registered. He deposed that after registration of the case, he handed over the computerized copy of FIR and rukka to SI Neeraj for investigation.
PW4 HC Dinesh Chand was posted as a DD writer on 19.08.2011 at P S Ashok Vihar from 4 p.m. to 12 midnight. He deposed that on 19.08.2011 at about 9.30 p.m., PW13 SI Neeraj gave telephonic information that a juvenile namely Jitender @ Chussi S/O Kalu had been arrested and requested that some juvenile officer be sent. PW4 reduced the SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 13 of 32 said information into writing vide DD No. 24 A dated 19.08.2011, which has been proved as Ex. PW 4/A. PW5 H C Shamsher Singh has deposed that on 26.08.2011 at about 3.30 p.m. , PW13 SI Neeraj gave telephonic information that a juvenile namely Sanjiv @ Rana had been arrested and made a request that some juvenile officer be sent . PW5 reduced the said information to writing vide DD No. 13 A dated 26.08.2011( Ex. PW 5/A).
PW6 H C Ashok Kumar has deposed that on 11.11.2011, he accompanied IO / PW13 S I Neeraj Kumar and PW1/ complainant from P S Ashok Vihar to BJRM Hospital mortuary . He deposed that there, IO produced PW1 before PW 12 Dr. Bheem Singh who was already having sealed case property i.e. the knife with him. He deposed that PW1 was identified by the IO before PW12 after which PW1 showed the injury marks on his hands, feet and shoulders to PW12 and after observing the said injuries, PW12 gave an opinion regarding the weapon of offence. He deposed that the weapon i.e. the knife was again sealed by PW12 with the seal of FMT BJRM Hospital and thereafter PW12 handed over the sample seal and the sealed weapon to him, which were deposited in the malkhana by him.
SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 14 of 32 PW7 ASI ( retired ) Prem Chand was working as a Duty Officer on 18.08.2011 at P S Ashok VIhar from 12 midnight till 8 a.m. He deposed that on that day he received an information from District Control Room via intercom about a quarrel at WPIA, A Block, company No. 126 and he reduced the said information in writing vide DD No. 8 A dated 18.08. 2011 ( Ex. PW 7/A).
PW8 Ct. Sidharth has deposed to the effect that on 05.11.2011, MHC(M) P S Ashok Vihar on instructions of PW13, handed over to him one sealed pullanda having seal of RL and a request letter vide RC No. 125/21/11 ( Ex. PW 2/E) for depositing the same at BJRM Hospital for opinion. PW 8 took the said pullanda and the request letter, deposited the same at BJRM Hospital and on return handed over the receipt to the MHC(M).
PW9 HC Jasvir has deposed to the effect that in the intervening night of 17/18.08.2011 he was posted at PCR van Commander 28 as Incharge and on that night at about 5.30 a.m. he received a call about the quarrel at A126, WPIA, Delhi. He deposed that he along with his PCR van reached at the reported place, where he met PW1 i.e. the helper in vehicle No. HR 38J 1570 and one Raju i.e. driver of the said vehicle. He deposed that PW1 was injured while said Raju was not injured and PW1 SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 15 of 32 was taken to BJRM Hospital and got admitted there. He further deposed that said Raju also accompanied PW1. In his cross examination, PW9 inter alia deposed that except PW1 and Raju no one else met them at the spot, concerned IO of the case reached at the hospital at about 6 a.m. and immediately thereafter they left the hospital.
PW10 Dr. Deepak Chugh, Medical Officer, BJRM Hospital, Delhi was deputed by the M.S of BJRM Hospital to depose in place of Dr. Ajit Tripathi and Dr. Annu Babu. He deposed that he had worked with said doctors, he was well conversant with the handwritings and signatures of said doctors and the said doctors had left the hospital and their present whereabouts were not known. He proved the MLC No. 30171 of PW1 as prepared by above said doctors as Ex. PW 10/A bearing the signatures of Dr. Ajit Tripathi at point A and that of Dr. Annu Babu at point B. He deposed that as per MLC, Dr. Annu Babu gave nature of injury as simple at point X on MLC Ex. PW 10/A. He deposed that as per MLC, following injuries were there on the person of PW1:
1. Lacerated wound of size 2 cm x .5 cm x 1 cm and 1 cm x .5 cm x 1 cm over right thigh.
2. Lacerated wound of size 2 cm x .5 cm x 1 cm over left SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 16 of 32 forearm.
3. Lacerated wound of size 2 cm x .5 cm x.5 cm over right wrist on palmer side .
4. An abrasion over right shoulder.
5. Lacerated wound of size 1 cm x .5 cm x.5 cm over left side of lower lip.
PW10 in a reply to a court question deposed that the above said injuries could be caused by scissors like weapon and /or a knife, if these had blunt edges.
PW11 Ct. Naveen Kumar has deposed on the lines of testimony of PW13 SI Neeraj Kumar. The testimony of PW11 shall be discussed along with the testimony of PW13.
PW12 Dr. Bhim Singh has deposed to the effect that on 11.11.2011 he was posted as Specialist, Forensic Medicine at BJRM Hospital, Delhi and on that day he received an application from PW13 along with one sealed pullanda sealed with the seal of RL for seeking subsequent opinion regarding weapon of offence as per the injury mentioned in MLC No. 30171 dated 18.08.2011. He deposed that he opened the said pullanda which was found to contain one knife having length approximately 21.7 cms and corroborated with the injury mentioned in MLC . He deposed that he gave the subsequent opinion regarding the SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 17 of 32 weapon of offence, which has been proved as Ex. PW 12/A. He deposed that he also prepared the sketch of weapon of offence in his subsequent opinion reflected at point X in Ex. PW 12/A and after giving the opinion, the weapon of offence i.e. knife was again sealed with the seal of FMT BJRM Hospital and handed it over to the IO. PW12 correctly identified the said knife ( Ex. P2) .
PW13 SI Neeraj Kumar is a material witness for the prosecution being the IO of the case. He deposed that on 18.08.2011 he was marked DD No. 8 A dated 18.08.2011 regarding quarrel at factory No. 126, WPIA, Delhi by the Duty Officer. The copy of said DD has been proved as Ex. PW 13/A ( also Ex. PW 7/A). He deposed that he went to the informed place but did not find anything there , however, found one truck No. HR 38 J 1570 standing outside the factory. He deposed that on inquiry, he came to know that the injured had been taken to BJRM Hospital by PCR van, he went to BJRM Hospital and found PW1 admitted there vide MLC No. 30171. He deposed that at that time, PW1 did not give any statement due to pain and PW1 stated that he would come to the police station on the next day to give his statement . On 19.08.2011 PW1 along with the truck driver Raju came to P S Ashok Vihar where the statement of SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 18 of 32 PW1 was recorded. The rukka as prepared by PW13 has been proved as Ex. PW 13/B. PW13 deposed that after registration of the FIR Ex. PW 3/B, the Duty Officer handed over the original rukka and copy of FIR to him. Thereafter, PW13 along with PW 1, Raju, PW11 Cr. Naveen Kumar and Ct. Govind proceeded to the place of incident. PW13 prepared the site plan Ex. PW 13/C of the place of incident at the pointing out of PW1. He deposed that at about 4 p.m. , one secret informer told him that the boys who had committed the offence could be apprehended from Raja Park, B Block at about 8 p.m. PW13 passed on the said information to PW1 who expressed his willingness to join the investigation. At about 9 p.m. they reached Raja Park, BBlock, WPIA area and there the secret informer pointed out at two boys sitting inside the park, who were also identified by the complainant. PW13 deposed that both the said boys were apprehended and their names were revealed as Rakesh @ Goga and Jitender @ Chussi ( JICL). He deposed that on conducting general search of accused Rakesh @ Goga, one knife was recovered from the back pocket of his wearing pants and Rs.350/ cash was recovered from the pocket of his shirt. PW13 prepared the sketch ( Ex. PW 1/C) of the knife, total length of the knife was 21.7 cms, length of the blade was 11.7 cms and the length of the SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 19 of 32 handle was 10 cms. The said knife was seized vide seizure memo Ex. PW 1/D. The said pullanda was sealed with seal of RL belonging to SI Rohit Lohchab who had also reached at the spot being the juvenile officer. Rs.350/ cash i.e. three currency notes of Rs. 100/ denomination each and one currency of Rs. 50/ denomination were also seized vide seizure memo Ex. PW 1/E after preparing the pullanda and sealing the same with the seal of RL. The arrest memo and personal search memo of accused Rakesh @ Goga have been proved as Ex. PW 11/A and Ex. PW 11/B respectively. He deposed that at the instance of Jitender @ Chussi ( JICL) one purse of black color was recovered from the park behind toilet of CSI Colony, the said purse was containing one passport size photograph of the complainant and the identity card of the complainant, the said purse was identified by the complainant and thereafter it was seized vide a seizure memo after preparing the pullanda and sealing the same with the seal of RL. The pointing out memo of the place of occurrence at the instance of accused Rakesh @ Goga has been proved as Ex. PW 11/C. PW13 deposed that as per the disclosure statement Ex. PW 1/B of accused Rakesh @ Goga, accused Azad and Sanjiv Rana ( JICL) were also involved in the present incident and as such on 20.08.2011 in the morning hours PW11 Ct. Naveen SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 20 of 32 and Ct. Babu Lal brought the accused Azad in the police station. He deposed that on conducting the personal search of accused Azad, Rs.300/ cash i.e. three currency notes of Rs.100/ denomination, out of the robbed amount, were recovered from the pocket of his half pants, which were seized vide seizure memo Ex. PW 11/E. The arrest memo and personal search memo of accused Azad have been proved as Ex. PW 11/D and Ex. PW 11/ D1 respectively. He deposed that on 21.08.2011, the accused Azad led the police party to the spot i.e. in front of factory No. A126, WPIA, Delhi and pointed out the place of occurrence, vide pointing out memo Ex. PW11/G. The request of PW13 for subsequent opinion regarding weapon of offence has been proved as Ex. PW 13/D. The black purse containing the photograph and identity card of PW1 which was recovered at the instance of Jitender @ Chussi ( JICL) along with its contents is Ex. P1. The above said knife which was recovered from the possession of accused Rakesh @ Goga is Ex. P2. The currency notes totaling Rs. 350/ as recovered from the possession of the accused Rakesh @ Goga have collectively been proved as Ex. P3. The currency notes totaling Rs. 300/ as recovered from the possession of accused Azad have been collectively proved as Ex. P4. In crossexamination, PW13 inter alia deposed that after SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 21 of 32 receiving DD No. 8 A, he reached at the spot along with his staff at about 5.45 a.m. on his personal motorcycle. He deposed that the place of incident was the public place and when he reached there the public persons were present. He further deposed that he reached the hospital at about 6.15 - 6.30 a.m. He denied the suggestion of Ld. Defence counsel that nothing was recovered from the possession or at the instance of both the accused persons or that the case property was planted upon both the accused or that they were falsely implicated in the present case at the instance of victim.
11. PW1 Shri Ramesh Chand Sharma is the complainant/ victim/injured of the case incident. PW1 has specifically deposed to the effect that he was working as a cleaner/ helper with driver Shri Raju on truck No. HR 38J 1570. He deposed that on 17.8.2011, they loaded the said truck / container from Tughlakabad, Delhi and reached at factory No. A126, WPIA, where the said container had to be unloaded. He deposed that they reached there at about 3.00am on 18.8.2011, however, the owner of the said factory told them that the said truck would be unloaded in the morning. He further deposed that thereafter they parked their truck in front of above said factory and went to sleep in the chamber of said truck. PW1 deposed that he was sleeping SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 22 of 32 on the lower berth whereas the driver Raju was sleeping on the upper berth of the chamber of said truck. PW1 deposed that at about 5.005.15am, he felt that someone was searching his wearing clothes and when he woke up, he saw that three persons were present in the said chamber and were searching the pockets of his wearing pants and shirt. He deposed that two persons were having one knife each in their hands and the third person was having a scissors type weapon, he caught the two persons having knives, raised an alarm and asked Raju to help him. He deposed that the person having scissors type weapon threatened Raju not to come down otherwise, he would be killed and also gave two blows of said weapon on his ( PW1) right thigh. PW1 deposed that after receiving the injury on his person with said blows, his grip became loose and the persons having knives got themselves released from his grip and also started giving knife blows on his person with their respective knives. He further deposed that one of them took out his mobile phone make TATA from the pocket of his Tshirt and the other took out his purse from the backside pocket of his pants. PW1 deposed that his purse contained three currency notes of denomination of Rs.500/ each, five currency notes of Rs.100/ denomination, his voter Identity card and some other miscellaneous papers. He also deposed that one another SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 23 of 32 person was also standing outside near the truck and thereafter, all the said four assailants ran away. He deposed that during the said incident, the driver Raju did not come down from the upper berth as the said persons were threatening him and Raju made a call on 100 number. He deposed that PCR reached the spot, he was removed to the hospital and the local police also reached the hospital, however, due to pain, he could not give his statement to the police, he was discharged from the hospital on 18.8.2011 at about 11.0012.00 noon, thereafter, he went to his house and on the next day, ie 19.8.2011, he along with Raju went to the PS, where his statement Ex.PW1/A was recorded.
PW1 has specifically deposed that on19.8.2011, at about 2.30pm, one informer gave the information to the IO (PW13) who in turn told him that persons involved in the incident were sitting in a park in Wazirpur Jhuggi Area, he accompanied IO to the said park and found two boys sitting in the park, who were identified by him as the same persons who had robbed him at knife point and scissors. PW1 correctly identified the accused Rakesh @ Goga in this regard and upon his identification only, the accused Rakesh @ Goga was apprehended and arrested on 19.8.2011. PW11 and PW13 have also corroborated the testimony of PW1 in this regard. The arrest memo ie Ex.PW11/A SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 24 of 32 qua accused Rakesh @ Goga also shows that PW1 is one of the witness to it. It is pertinent to note that the other accused Jitender @ Chussi was a JICL and faced trial before the Ld. JJB. PW1 has specifically deposed that from the search of accused Rakesh @ Goga, one knife (vegetable cutting knife) was also recovered from the backside pocket of his jeans pants, which was seized vide seizure memo Ex.PW1/D. He also deposed that Rs.350/ were also recovered from accused Rakesh @ Goga which were seized vide seizure memo Ex.PW1/E. It is further pertinent to note that both the said seizure memos ie Ex.PW1/D and Ex.PW1/E also bear the signatures of PW1 at point A. Both the said memos have also been witnessed by PW11 and have been prepared by PW13/ IO. The said knife i.e. Ex. P2 as recovered from the possession of accused Rakesh @ Goga has also been correctly identified by PW1, PW11 and PW13 in their respective testimonies. As far as knife Ex. P2 is concerned, PW1 has admitted in his examination in chief that the said knife did not have any blood stains at that time and the record also shows that in the absence of any such blood on it, the same has not been sent to FSL for examination. It is, however, pertinent to note that PW12 Dr. Bhim Singh, MD Forensic Medicine, Incharge Mortuary, BJRM Hospital, Delhi has given his SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 25 of 32 subsequent opinion Ex. PW 12/A regarding the said knife i.e. weapon of offence/ Ex. P2 to the effect that the injuries mentioned in MLC No. 30171/11 ( Ex. PW 10/A qua injured PW
1) dated 18.08.2011 could be possible by the said knife. Perusal of Ex. PW 12/A and Ex PW 1/D ( seizure memo of knife) shows that the total length of knife is 21.7 cms., the length of the handle is 10cms and the length of the iron blade is 11.7 cms. with width as 2.3 cms. The specifications of the said knife Ex. P2 shows that the length of the iron blade was 11.7 cms with maximum width as 2.3 cms and, therefore, it was a deadly weapon. It is pertinent to note that the said knife Ex. P2 was also identified by PW12 in the court. The Ld. Counsel for both the accused persons preferred not to crossexamine PW12 despite opportunity and hence, shall be deemed to admit the testimony of PW12. Further, nothing has appeared in the cross examination of PW1 to discredit his testimony. The submissions of Ld. Amicus Curiae for both the accused persons to the effect that the IO has failed to join any public witness in this case shall not help the accused persons because PW1 has deposed in his crossexamination that he had raised alarm but none came forward for his help from the public and that no public person was present in the side of the park from where the accused persons SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 26 of 32 were apprehended/ arrested. The non examination of driver Raju by the prosecution will also not be fatal to the case of prosecution because record shows that the said witness could not be served despite repeated efforts of the prosecution and the Investigating Officer/ PW13 also made a statement on 15.04.13 to the effect that the said witness had shifted from his given address for an unknown place, mobile No. given by the said witness was also not in service and despite his best efforts the said witness could not be traced. The report of IO in this regard was proved as PX. The Ld. Predecessor of this court thereafter, in view of the statement of the IO struck off the name of the said witness from the list of witnesses vide order dated 15.4.13. In these circumstances, the prosecution has shown sufficient grounds for not examining the said witness and hence, the non examination of said prosecution witness shall not be fatal to the case of the prosecution. Even otherwise, PW1/ complainant/injured has supported the case of prosecution on material aspects of the case. Moreover, nothing has come on record to show that there was any previous enmity between complainant/PW1 and the accused persons so that the complainant could have falsely implicated the accused persons in the present case. The testimony of PW1 , who is an injured/ SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 27 of 32 victim of the case incident, is reliable and trustworthy and can be safely relied upon. In view of the above said discussion, the prosecution has proved beyond reasonable doubt that on 18.08.11 at about 5: 00 5.15 a.m. in the cabin of truck No. HR38 J 1570 parked at the road near factory No. A126, WPIA, Delhi, the accused Rakesh @ Goga along with some of his associates in furtherance of their common intention robbed complainant / PW1 Ramesh Chand Shama of a mobile phone and a purse containing Rs.2000/ and also that at the time of committing such robbery, the accused Rakesh @ Goga used a deadly weapon i.e. knife Ex. P2 and thereby the accused Rakesh @ Goga is liable to be convicted U/S 392/34 IPC & Section 397 IPC.
12. As discussed above, PW1 has deposed to the effect that accused Rakesh @ Goga has robbed him at the point of knife Ex. P2 and also gave knife blows on his person at that time. PW10 has proved the MLC No. 30171 dated 18.08.2011 of BJRM Hospital qua PW1 as Ex. PW 10/A. The nature of injuries have been opined as simple in Ex. PW 10/A, however, as mentioned above, said MLC shows four lacerated wounds and one abrasion on the person of PW1/ complainant . As already discussed above, PW 12 in his subsequent opinion regarding weapon of offence i.e. Ex. PW 12/A has after mentioning the injuries on PW SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 28 of 32 1 has opined that the injuries mentioned in the said MLC could be possible by knife Ex. P2 ( the knife which was recovered from the accused Rakesh @ Goga on 19.08.2011). PW 10 replied to a court question that the injuries as mentioned in the MLC could be caused by a scissors like weapon and/ or a knife, if they have blunt edges. In these circumstances and discussion , the prosecution has further proved that at the above mentioned date, time and place, the accused Rakesh @ Goga in furtherance of his common intention with his associates voluntarily caused injuries on the person of PW1/ complainant Ramesh Chand Sharma at the time of committing the above said robbery and thereby committed an offence punishable U/S 394/34 IPC. The accused Rakesh @ Goga is thus also liable to be convicted U/S 394/34 IPC.
13. As far as accused Azad is concerned, PW1/ complainant has also deposed in his regard that one another person was also standing outside near the truck and after committing the offence all the four persons ran away from the spot. PW13/ IO has deposed in this regard that he informed the beat staff that as per the disclosure statement of accused Rakesh @ Goga, accused Azad and Sanjiv Rana ( JICL) were also involved in the present incident and as such on 20.08.2011 in the morning hours, PW11 SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 29 of 32 and Ct. Babu Lal brought Azad and upon his personal search Rs.300/ cash ( three currency notes of Rs. 100/ each denomination) i.e. Ex. P4 ( colly) were recovered. It is pertinent to note that PW1 during his testimony in the court has nowhere identified the accused Azad. The arrest memo and personal search memo of accused Azad i.e. Ex. PW 11/D and Ex. PW 11/D1 also does not show that PW1 is a witness to them i.e. the accused Azad was not identified by PW1. No judicial TIP proceedings qua accused Azad were also conducted. In these circumstances, the prosecution has failed to prove beyond reasonable doubt that accused Azad was an associate or accomplice of accused Rakesh @ Goga at the time of commission of case offence. Further, it is not the case of prosecution that the currency notes of Rs.300/ as allegedly recovered from the search of accused Azad were having any specific marks to enable PW1 to identify the same as part of the robbed amount and their serial numbers have also not been mentioned. The prosecution has thus failed to prove beyond reasonable doubt that the recovered Rs.300/ from accused Azad was a stolen property within the definition of Section 410 IPC. The accused Azad is thus liable to be acquitted U/S 392/394/34 IPC and also U/S 411 IPC.
SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 30 of 32
14. As the accused Rakesh @ Goga has been convicted U/S 392/394/34 IPC and also U/S 397 IPC, therefore, he cannot be convicted U/S 411 IPC for dishonestly receiving the stolen property. No discussion in this regard is required, however, it is pertinent to note that as per the case of prosecution Rs.350/ (Ex. P3 collectively)were recovered from his possession which were seized vide seizure memo Ex. PW 1/E. In this regard again, it is pertinent to note that it is not the case of prosecution that there were any specific marks or signs on the said currency notes and even the serial numbers of said notes have not been mentioned on the basis of which, the complainant could have identified them as a part of his robbed amount. In these circumstances, the accused Rakesh @ Goga is liable to be acquitted U/S 411 IPC.
15. Keeping in view the above said facts and circumstances of the case and discussion, the prosecution has proved beyond reasonable doubt the charge U/S 392/394/34 IPC and U/S 397 IPC against the accused Rakesh @ Goga. The accused Rakesh @ Goga is thus convicted U/S 392/394/34 IPC and U/S 397 IPC . The accused Rakesh @ Goga is, however, acquitted U/S 411 IPC. The accused Azad is acquitted U/S 392/394/34 IPC and also U/S 411 IPC. Accused Azad be released from Judicial Custody, if not required in any other case.
SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 31 of 32
16. Let the convict Rakesh @ Goga be heard on the quantum of sentence .
Announced in the open court ( Amit Bansal)
on 8th day of December, 2014 Addl. Sessions Judge04 ( N/W)
Rohini Courts: Delhi.
SC No. 151/01/14 FIR No. 210/11 P.S. Ashok Vihar S/V Rakesh & Goga @ Anr Page No. 32 of 32