Delhi District Court
Fir No.263/2011 State vs Naeem Etc. Page No. 1 Of 81 on 18 April, 2022
IN THE COURT OF SH. AJAY GUPTA,
ADDL.SESSIONS JUDGE05 (EAST)
KARKARDOOMA COURTS, DELHI
S.C.No.1183/2016
FIR No. 263/2011
U/s 395/397/412/482/34 IPC &
u/s 25 Arms Act
PS Mandawali
State
Versus
1. Naeem
S/o Mohd. Salim
H.No.1800, Near Lakdi ki Taal,
Kala Mahal, Chandni Mahal,
Delhi.
2. Abdul Nanhe @ Salim
S/o Sh. Abdul Kadir
3469, Thelawali Gali,
Bara Hindu Rao,
Delhi.
3. Abdul Haq @ Soaib
S/o Sh Abdul Majid
1154, Gali Sayyed Wali,
Kala Mahal,
Delhi.
4. Danish
S/o Basheer
1217, Naseer Wali Gali,
Kala Mahal, Chandni Mahal,
Delhi.
FIR No.263/2011 State Vs.Naeem etc. Page no. 1 of 81
5. Abdul Farooq (Since Proclaimed Offender)
s/o Sh. Sayad Tahir Hussain
1217, Gali Naseer Wali,
Kala Mahal, Chandni Chowk,
Delhi.
6. Faeem s/o Sh Wafati (Since Expired)
r/o 1162, Gali Sunar Wali, Kala Mahal,
Chandni Mahal, Delhi
......Accused Persons
Date of Institution: 07.10.2011
Reserved for Judgment: 08.04.2022
Judgment pronounced on: 18.04.2022
JUDGMENT
1. As per prosecution case on 16.06.2011, on receipt of DD no.7A, SI Om Prakash (SI Om Prakash is the investigation officer of the present case, as such, hereinafter SI Om Prakash has been referred as IO) reached at the spot i.e. Akshardham Metro Station bus stand (hereinafter mentioned as first spot/place of incident) where HC Ramesh met him. At that time, no witness was present at the spot and the PCR vehicle R36 was found available near to the Akshardham picket. The staff of the PCR vehicle informed the IO that the offenders have been stopped near to the New Ashok Nagar Metro Station. Then IO alongwith HC Ramesh reached the place where accused persons had been stopped by the police officials who were on duty at that place. The aforesaid place is the place where the accused persons had been FIR No.263/2011 State Vs.Naeem etc. Page no. 2 of 81 stopped/apprehended and this place has been specified as a place situated near to the ganda nala, New Ashok Nagar Metro Station (hereinafter as second spot/place of apprehension). The PCR van R69 was also there. The police officials namely Ct.Ashok, Ct.Waleem, ASI Santok Raj, Ct. Banwari Lal were present at the place of apprehension of the accused persons alongwith complainant Prashant Sharma s/o Vinod Sharma. Accused persons namely Abdul Nanhe, Naeem, Danish, Abdul Haq @ Shoaib, Fahim @ Bhaiya and Abdul Farooq were also present there with the said police officials. A Swift VXI car having two different number plates was also there at the second spot. On the front side number plate of the said car, the registration number was specified as DL5CD 0829 and on the rear side number plate a different registration number i.e. DL 5CD 0888 was mentioned. The search of the accused persons was carried out and in their search, some weapons as well as belongings of the complainant were recovered. An ustra was recovered from accused Abdul Nanhe and a knife from accused Danish. A wooden cover of dagger was recovered from accused Abdul Haq@ Shoaib. The RC of complainant was recovered from accused Naeem while his wallet alongwith his ID card was recovered from accused Faeem. Cash amount of Rs.2900/ was recovered from accused Abdul Farooq. Complainant had identified all his aforesaid recovered articles and cash i.e. RC, wallet, ID card and Rs.2900/. Recovered weapons as well as wooden cover of dagger were seized. Thereafter, the statement of the complainant Prashant Sharma FIR No.263/2011 State Vs.Naeem etc. Page no. 3 of 81 was recorded. Complainant stated that he is working as Portfolio Manager in Earth Infrastructure Co., Chandni Chowk and after completing his official work, he was coming back to his house on his Motorcycle bearing no. DL7S BH3484 (Hero Honda). At about 12.15 a.m., he stopped his motorcycle at the corner of the road (this place is situated opposite to the Akshardham Metro Station and this is the place where complainant was looted) to relieve himself and while he was urinating, one Red colour Swift VXI car, having front side registration number as DL5CD0829 and rear side as DL5CD 0888, came and stopped there. Three boys got off the said Swift car and other three boys remained seated inside the car. One of the boys namely Abdul Nanhe (complainant came to know his name subsequently) put an ustra on his neck and another boy namely Danish put a knife on his stomach. The third accused Farukh forcibly took out his Brown colour wallet (Adidas) (containing Rs.5000/, his driving licence, RC of motorcycle, ATM and ID card) from the pocket of his trouser while threatening him that "shor kiya toh jaan se maar denge" (he would be killed if he would raise alarm). Thereafter, all the said six boys fled towards Noida, after sitting in the said Swift car. He subsequently came to know about the names of rest of the three boys and he mentioned their names as Shoaib @ Abdul Haq, Naeem and Faeem. He stated in his complaint that he has identified all the six boys who were involved in this incident. He stated that an ustra was recovered from accused Abdul @ Nanhe and from the search of accused Danish, a knife was recovered. He stated that a wooden FIR No.263/2011 State Vs.Naeem etc. Page no. 4 of 81 cover of dagger was recovered from accused Shoaib. He further stated that cash amount of Rs.2900/ was recovered from accused Farukh and RC of his motorcycle was recovered from accused Naeem. He stated that his wallet and ID card were recovered from accused Faeem. He has further stated that the said boys had looted him by using knife and ustra. Thus, on the basis of these allegations complainant requested that legal action be initiated against the accused persons. The Swift car which was used by the accused persons in this incident was also seized. All the said six accused persons were arrested and their personal search was conducted. IO prepared the site plan of the spot on the basis of the specifications provided by the complainant. Statements of the relevant witnesses were recorded by the IO and after completion of the investigation, the chargesheet was filed against the accused persons for the commission of offences under sections 395/397/412/482 IPC.
2. After compliance of the provisions of section 207 Cr.PC, the case was assigned to the Sessions Court for trial. During pendency of the case, accused Faeem passed away, thus, vide order dated 30.07.2012; the present proceedings were abated against him. Vide order 30.07.2012, charges were framed against rest of the five accused persons. A charge u/s 395/482/34 IPC was framed against all the five accused persons. Since, accused Abdul Nanhe and Danish had allegedly used weapons while committing dacoity, thus, an additional charge was framed against accused FIR No.263/2011 State Vs.Naeem etc. Page no. 5 of 81 Abdul Nanhe @ Salim and Danish u/s 397 IPC and u/s 25 Arms Act. As per prosecution case, some of the looted articles were recovered from accused Naeem and Abdul Farooq, thus, an additional charge was framed against these accused persons u/s 412 IPC. The accused persons pleaded not guilty and claimed trial. During pendency of case, accused Abdul Farooq absconded and thus, vide order dated 11.09.2017; he was declared a proclaimed offender and as such, the trial was held against rest of the four accused persons namely Abdul Nanhe, Danish, Abdul Haq and Naeem.
3. In order to prove its case against the accused persons, the prosecution has examined nine witnesses. The brief description of the testimony of these witnesses is being discussed as under: (3.1) PW1 Prashant Sharma is the complainant/victim of this case. He deposed on the similar lines of his complaint Ex.PW1/A, however, in his deposition, there are some variations and contradictions and impact of these variations and contradictions on the case of prosecution has been discussed while analyzing the testimonies of all the prosecution witnesses. PW1 deposed that on the intervening night of 15/16.06.2011, at about 12 midnight, he was coming from Chandni Chowk and going to his house on a motorcycle (Hero Honda Passion) and to relieve himself, he stopped his motorcycle at a place situated FIR No.263/2011 State Vs.Naeem etc. Page no. 6 of 81 opposite to the Akshardham Metro Station. He stated that while he was urinating, a Red colour Swift car stopped behind him and four boys came out of it, one of them kept on standing near to the car and other three boys came to him. During his evidence, he identified accused Danish as the same accused who had put an ustra on the left side of his neck and accused Abdul Nanhe as the same boy who had put a knife on his abdomen. He identified accused Naeem as the same boy who had taken out his wallet from the right side pocket of his short. PW1 stated that his wallet contained Rs.2900/, ATM Card, RC of motorcycle and some visiting cards. PW1 stated that accused Abdul Haq kept on standing at the rear side of the car. PW1 has further stated that all the three accused persons had caught hold him and one of them had put his arms around his neck and they had asked him to hand over his belongings. Some public persons were passing by the road and seeing these public persons coming towards the spot, accused Naeem, after taking away his wallet, ran towards the car telling other accused persons that he has taken the wallet. Accused Danish and Abdul Nanhe also rushed towards the car and they all sat in the said car and fled towards Noida. At the time of incident, PW1 was having two mobile phones which remained with him after the incident and in this regard, he stated that he had kept his mobile phones in left side of the front pocket of his shorts and accused could not notice the same as during incident, he had put his hand on his mobile phones. He deposed that within two minutes of accused persons leaving the spot, the PCR vehicle had FIR No.263/2011 State Vs.Naeem etc. Page no. 7 of 81 reached there and he informed the PCR that he has been looted by the four boys and they have fled towards Noida in a Red colour Swift Car. PCR gave a wireless message at Noida check post and asked them to detain the Red Swift car. He stated that he made a call to his cousin brother Ajay Sharma who was residing at Pandav Nagar and his cousin reached at the spot within 23 minutes. He further stated that a return message was received by the PCR that a Red colour Swift car has been detained at Noida Check Post. He was asked by the PCR to reach there and identify the culprits. Then he alongwith his cousin proceeded towards Noida and on the way at the check post of Ashok Nagar Metro Station, he saw that the said Red colour Swift car was already withheld by the police. He saw that six persons were detained by the police and they were made to sit on the side of the road. He identified accused Abdul Farooq as one of the boys who were detained by the police alongwith other four accused persons. He stated that he had identified all the accused persons at the place of their apprehension. He further stated that accused persons had told the police that they had thrown the looted articles on the road side. Police got recovered his mud stained empty wallet from the side of the road at the instance of one of the accused persons. Cash amount of Rs.2900/ was recovered from the possession of accused Naeem. RC of his motorcycle was also recovered but PW1 stated that he does not know from which of the accused persons it was recovered. He further deposed that police recorded his statement which he brought on record as Ex.PW1/A. He stated FIR No.263/2011 State Vs.Naeem etc. Page no. 8 of 81 that RC of motorcycle, his wallet containing ICard and cash amount of Rs.2900/were seized by the police vide seizure memos Ex.PW1/B, Ex.CW1/C and Ex.CW1/D. He stated a one feet long knife was recovered from possession of accused Abdul Nanhe and same was seized vide memo Ex.PW1/E. He stated an ustra was recovered from accused Danish and the same was seized vide seizure memo Ex.PW1/F. PW1 further stated that a wooden cover of dagger was recovered from the rear seat of the car and same was seized vide memo Ex.PW1/G. The swift car was seized vide memo Ex.PW1/H. He further stated that different number plates were put up on the swift car and the same were seized vide seizure memo Ex.PW1/J. He further deposed that the accused persons were arrested vide arrest memos Ex.PW1/K1 to Ex.PW1/K6 and their personal search was conducted vide memos Ex.PW1/L1 to L6. He identified the number plates of the car as Ex.P1, recovered knife as Ex.P2 and Ustra as Ex.P3. He also identified the wooden cover of dagger as Ex.P4, photographs of robbed currency notes as Ex.P5 (the currency notes were released to the complainant and since the complainant had spent the said money by the time his evidence was recorded therefore, the recovered currency notes were identified by its photographs), superdarinama of recovered currency notes as Ex.PW1/M, his wallet as Ex.P6, election ID card as Ex.P7 and RC as Ex.P8.
(3.2) PW2 HC Rampal Singh is the duty officer concerned who recorded FIR of the present case. PW2 has brought on record FIR No.263/2011 State Vs.Naeem etc. Page no. 9 of 81 the copy of FIR as Ex.PW2/A. PW 2 deposed that he had made an endorsement on the rukka and same has been exhibited as Ex.PW2/B. (3.3) PW3 is SI Kamal Singh. On the intervening night of 15/16.06.11, from 8 pm to 8 am, PW 3 was on duty as Incharge of PCR Vehicle R36, at Akshardham Mandir. He stated that on the intervening night of 15/16.06.2011, he had received a wireless message that the persons who committed the dacoity have been detained at the place situated near to the New Ashok Nagar Metro Station. He further deposed that SI Om Prakash came to him and he (PW3) informed him about the said facts and then SI Om Prakash went towards New Ashok Nagar Metro Station.
(3.4) PW4 is HC Ramesh Mathur. He deposed that on 16.06.2011, on receipt of DD no.7A, he reached at the spot i.e. opposite to the Akshardham Metro Station and in the meantime, SI Om Prakash also reached there alongwith Ct. Sita Ram. PCR Romeo 36 told that the assailants have been apprehended near to the Ashok Nagar Metro Station. They reached there and found that PCR staff and picket staff have apprehended the accused persons alongwith one Red Maruti Swift car. The front side number plate of the said car was bearing registration no as DL5CD0829 and rear side number plate was having the registration number as DL5CD0888. He identified the accused persons in the Court. He further deposed that complainant was also present there and his FIR No.263/2011 State Vs.Naeem etc. Page no. 10 of 81 statement was recorded and on the basis of his statement rukka was prepared and the case was got registered through Ct. Sita Ram. He stated that weapons of offence i.e. knife, ustra and dagger were also seized. Recovered case property was taken into possession. Statement of PCR official was recorded at Akshardham and case property was deposited in the malkhana. He identified the case property i.e. rear side number plate as Ex.P1, knife which was recovered from accused Danish as Ex.P2, ustra which was recovered from accused Abdul Nanhe as Ex.P3, wooden cover of dagger which was recovered from accused Abdul Haq @ Shoib as Ex.P4, Brown colour purse and election identity card as Ex.P5 and Ex.P6 and Swift car as Ex.P7.
(3.5) PW5 Ct.Ashok is one of the police officials, who on the date of incident was on duty at the New Ashok Nagar Metro Station picket. He deposed that at about 12.30 p.m, while they were checking the vehicles, a Red colour Maruti Swift car came there and it was stopped by Ct. Walim Javed. Six persons were sitting in the said car. PCR R69 also reached there and its officials told them that some persons had fled in a Red colour Maruti car after committing some offence near to the Akashardham Temple. They checked the registration number of the said car and it was found that it had different number plates. Front number plate was having the number as DL5CD 0829 while rear side number plate was having the number as DL5CD0888. In the meantime, police officials who were on patrolling motorcycle Mobile 31 also reached FIR No.263/2011 State Vs.Naeem etc. Page no. 11 of 81 there and thereafter, SI Om Prakash also reached there. IO recorded the statement of complainant and prepared a complaint and sent the same for the registration of the case. He stated that the names of the persons who were sitting in the said vehicle are Naeem, Nanhe, Danish, Farukh, Faeem and Abdul Haq. PW5 identified all the five accused persons (except accused Faheem against whom the proceedings had already been abated as he had passed away) as the same who were apprehended by the IO.
(3.6) PW6 ASI Santokh Raj is the police official who, on 16.06.11 was on checking officers duty on the Mobile31 motorcycle in the PS Mandawali. PW 6 deposed that on that day, he had visited the spot alongwith Ct. Banwari where complainant met them and told that at the time when he was urinating, some persons came there in a Swift car and they snatched his wallet containing some amount and fled away in the said car. PCR Romeo 3 also met them near to the spot and there they were informed that the said car has been stopped at the picket situated near to the New Ashok Nagar. They also reached there and saw the Red colour Swift car there. He noticed that the registration number on front number plate of the car was DL5CD 0829 and while at the rear side number it was mentioned as DL5CD 0888. IO also reached there who recorded the statement of the complainant. Rukka was prepared and case was got registered. He deposed that there were six persons in the car. During his evidence, he identified all the five accused persons (except accused Faeem) as FIR No.263/2011 State Vs.Naeem etc. Page no. 12 of 81 the same accused persons who were apprehended at the aforesaid spot. He further deposed that knife, ustra, wooden khol(case) of dagger which were used in the commission of offence were taken into possession after preparation of the seizure memos alongwith recovered looted amount of Rs.2900/.
(3.7) PW7 SI Anwar Khan is the police official who was on duty at PCR Van Romeo69 on Dt.16.06.11. He deposed that at about 1212.30 (night), he received a message from control room that a Red colour car has gone towards Noida after committing a crime. Then he proceeded towards Noida and while he was going towards Noida, he found that a Red colour Swift car having front number plate with the number of DL5CD 0829 and rear number plate with the number of DL 5CD 0888 was got stopped by the police near to the New Ashok Nagar Metro Station Picket. He gave a message to the control room that the said car has been stopped. He saw that six persons were sitting in the car and he identified all the five accused persons who were facing trial during his evidence. He deposed that IO/SI Om Prakash and complainant also reached there and complainant identified the accused persons as the culprits.
(3.8) PW8 is HC Sita Ram is the police official who assisted PW9 is IO/SI Om Prakash Vishnoi in the investigation of the present case. At the time of incident both these police officials were posted in the PS Mandawali. DD no.7A which was recorded FIR No.263/2011 State Vs.Naeem etc. Page no. 13 of 81 in regard to the incident was assigned to the IO/PW9 and thereafter both of them went to the spot. The testimony of both these witnesses is on the similar lines, thus, in order to avoid repetition, the testimony of the IO/PW9 is being discussed at length.
(3.9) PW9 is the IO of this case. He deposed that on 15.06.11 he was posted at PS Mandawali as SI and his duty hours were from 8pm to 8am. At about 12.40am, he was entrusted the DDno.7A (Ex.PW9/A) whereupon he alongwith Ct. Sita Ram(PW8) visited the spot i.e. bus stand Akshardham Metro Station where he met PW 4 HC Ramesh who was already assigned with the said DD, therefore, he had also reached the spot. At that time complainant was not present there. The PCR Vehicle Romeo 36 was also present at the spot. The officials of said PCR informed him that complainant and robbers are present near to the picket of New Ashok Nagar Metro Station. Then PW 9 alongwith PW4 and PW8 reached there. The PCR Vehicle Romeo R 69 and its staff alongwith the Picket duty staff namely Ct.Ashok, Ct. Waleem, ASI Santokh Raj (checking officer of their Police Station) and Ct. Banwari Lal were present there. The complainant and six robbers alongwith the Swift car were also present there. Front number plate of the car was displaying registration number as DL5CD 0829 and rear side plate was having different registration number i.e. DL5CD0888. The number of rear number plate was changed with the help of Black colour plastic tape. Last two digits i.e. 2 and 9 FIR No.263/2011 State Vs.Naeem etc. Page no. 14 of 81 were changed to 8 and 8. He conducted the search of accused persons. He deposed that during search an ustra was recovered from accused Nanhe, a knife was recovered from accused Danish and cash amount of Rs.2900/ was recovered from accused Abdul Farooq. RC of complainant was recovered from accused Naeem and a wooden cover of dagger was recovered from accused Abdul Haq. One purse alongwith identity card of the complainant was recovered from accused Faeem. He deposed that complainant had identified his articles there at the spot. He prepared the sketch of knife(Ex PW1/E), ustra(Ex.PW1/F) and wooden cover of dagger (ExPW1/G). He sealed these weapons/articles in a cloth with the seal of OPV and seized the same vide memos Ex.PW1/E, Ex.PW1/F and Ex.PW1/G (It seems that inadvertently the sketches of the recovered weapons and their seizure memos have been given same exhibit numbers). He recorded the statement (Ex.PW1/A) of the complainant, prepared rukka (Ex.PW9/B) and sent the rukka for registration of FIR through Ct.Sita Ram. Then IO seized the RC vide seizure memo Ex.PW1/B, the recovered wallet containing identity card vide seizure memo Ex.PW1/C and the recovered cash amount of Rs.2900/vide seizure memo Ex.PW1/D. Thereafter, IO removed the fake number plate from the said Swift car which was put up at the rear side of the car. IO then prepared the pullanda of the fake number plate and seized the number plate of the car vide seizure memo Ex.PW1/J. He also seized the Swift car vide seizure memo Ex.PW1/H. Thereafter, he sent the complainant to the hospital for his medical examination.
FIR No.263/2011 State Vs.Naeem etc. Page no. 15 of 81 Thereafter Ct. Sita Ram reached at the spot after registration of FIR. Then IO mentioned the particulars of the case on the documents which were already prepared by him. Then IO arrested the accused persons vide memos Ex.PW1/K1, Ex.PW8/G1, Ex.PW8/G2 Ex.PW8/G3, Ex.PW8/G4 and Ex.PW8/G5. He conducted their personal search vide personal search memos Ex.PW1/L1, Ex.PW8/H1 to Ex.PW8/H4 and Ex.PW1/DA. IO recorded the disclosure statements of the accused persons which are Ex.PW8/A to Ex.PW8/F. Then, he alongwith the complainant went to the place of incident and prepared the site plan (Ex.PW9/C). IO/PW9 recorded the statement of the witnesses. He stated that the case property was deposited in the malkhana. IO/PW9 also identified weapons and the articles which were recovered from the accused persons.
4. After completion of prosecution evidence, the statements of all the four accused persons were recorded u/s 313 Cr.P.C. The accused persons have pleaded innocence and false implication. Accused Naeem opted to lead defence evidence but he did not lead any evidence in his defence. The other accused persons did not opt to lead the defence evidence.
5. Points which emerge for the determination of this case are:
(i) Whether on the intervening night of 15/16.06.11 at about 12 in the night, at the Bus Stand FIR No.263/2011 State Vs.Naeem etc. Page no. 16 of 81 situated in front of Akshardham Metro Station, the accused persons looted the wallet of complainant by using knife and ustra ?
(ii) Whether at the time of committing dacoity accused persons caused injuries on the hand of the complainant?
(iii) Whether the accused persons were apprehended soon after the incident at a spot situated near to the New Ashok Nagar Metro Station Picket and whether wallet of complainant and weapons used by the accused persons in the dacoity were recovered from them as specified in the chargesheet?
6. Arguments have been heard. During the course of arguments, Ld. Defence Counsel/Amicus Curiae submitted that there are various contradictions in the testimonies of the prosecution witnesses which indicate that the case of the prosecution is a false and highly doubtful case. It was submitted that as per prosecution case, the time of incident is 12.15 a.m but in his examination in chief, PW1 mentioned the time of incident as 12 midnight and in cross examination, he told the time of incident as 11.30 p.m/12.00 midnight. PW1 has stated in his examination in chief that he did not make any call at 100 number while in his cross examination, he stated that he made a call at 100 number. Ld. FIR No.263/2011 State Vs.Naeem etc. Page no. 17 of 81 Defence Counsel submitted that the prosecution case is highly doubtful in regard to the number of persons involved in the present case. He submitted that in this regard PW1 stated in his examination in chief that there were four assailants but in the same deposition, he simultaneously stated that he saw that six persons were detained by the police. He submitted that as per DD no.7A, the incident was committed by 34 assailants. PW1 stated that when he reached at the place of apprehension, he saw that assailants were made to sit on the road side but as per PW9 they were sitting in the car. All the PWs except PW1 stated that there was no public person present at the spot while PW1 himself deposed about the presence of his cousin brother at the spot. The complainant has given different version about the cash amount in his wallet. In his complaint, complainant stated that his wallet contained Rs.5000/ while in his testimony, he stated that the cash amount was Rs.2900/. He submitted that as per DD no.7A, the amount of Rs.4,000/ Rs.5,000/ was robbed. Ld. Defence counsel submitted that in his evidence, PW1 deposed that accused Danish had put an ustra on his neck and Abdul Nanhe had put a knife on his abdomen while in his complaint he stated that Abdul Nanhe had put an ustra on his neck and Danish had put a knife on his abdomen. In regard to the recovery of wooden cover of dagger, the PW1 and other prosecution witnesses have given different versions. PW1 stated that wooden cover of dagger was recovered from the rear seat of the car but the police witnesses stated that it was recovered from accused Abdul Haq. PW1 stated that wallet FIR No.263/2011 State Vs.Naeem etc. Page no. 18 of 81 was recovered from the roadside and cash amount of Rs.2900/ was recovered from accused Naeem while PW9 stated that wallet was recovered from accused Faheem and said amount of Rs.2900/ was recovered from accused Abdul Farooq. Ld. Defence counsel submitted that there are number of contradictions in regard to the timings of several proceedings which were carried out during investigation. PW1 deposed that accused persons were brought to PS at about 5.30 a.m while PW5 stated that IO and other police officials had left the spot at 1.15 a.m. In this regard PW9/IO stated that they had left the spot at about 6.30 a.m while PW6 stated that they finally left the spot at about 4.30 a.m. As per PW5, SI Om Prakash had arrived at the spot at 4.30 a.m and thus, it was submitted that PW5 is a not a reliable witness. Ld. Defence Counsel submitted that PW1 did not specify the denomination of currency notes of Rs.2900/. It was submitted that as per prosecution case, PW2 is the duty officer and as per his statement, he made endorsement on the rukka but as per rukka the endorsement has been made by ASI Mithilesh Yadav. It was also pointed out that as per PW3 the wireless message was received at about 12.15 a.m while PW6 stated that the call at 100 number was received at about 12.30 a.m. There is a contradiction in the statement of PW1 and in the testimony of the other prosecution witnesses regarding recovery of articles from the possession of accused Abdul Haq. In this regard PW1 stated in his cross examination that in the personal search of accused Abdul Haq only some knife like weapon was recovered while as per his personal FIR No.263/2011 State Vs.Naeem etc. Page no. 19 of 81 search memo (Ex.PW1/DA), the articles i.e. a Brown colour leather purse, Rs.520/ and a Black colour mobile phone were recovered. As per PW8, at the place of apprehension of accused persons, there were 1215 persons including police officials and public persons while as per PW6, no public person was present there. PW8 stated that he did not make any separate departure entry while PW9 stated that he was already in the area of Pandav Nagar and he immediately reached at the spot. As per PW8 and PW9, HC Rampal was the duty officer while as per record ASI Mithilesh Yadav was the duty officer. Ld. Counsel submitted that PW2 and PW8 have mentioned the different timings in regard to the departure of PW8 from the spot with rukka for registration of FIR, his reaching at the PS and returning back to the spot. It was further submitted that there are contradictions in the testimonies of PW5 and PW8 regarding timings of their leaving the police station and reaching at the spot. Ld. Counsel submitted that as per the testimonies of PW4 to PW7, the incident had occurred on 16.06.2011 but statement of PW9 shows that incident had occurred on 15.06.2011. PW8 stated in his examinationinchief that he had received the DD at about 12.40 a.m but in cross examination PW9 stated that information regarding robbery was received at about 12.15 a.m. PW9 stated that he remained at the spot (the place of incident) for approx.15 minutes i.e. till 1.05 a.m but as per PW5, at about 12.40 a.m, PW9 was present at New Ashok Nagar. PW9 stated that complainant was having minor injury but PW1 has not stated anything in this respect. It was FIR No.263/2011 State Vs.Naeem etc. Page no. 20 of 81 stated that the site plan doesn't bear the signature of PW1 which confirms that PW1 was not present at the spot. Ld. Defence Counsel further stated that prosecution has not examined the superdar to prove that the vehicle (Swift Car used in the incident) was in the possession of accused persons. It is also stated that Ct.Walim has not been made a witness in this case. Ld. Counsel has contended that though the complainant was having two mobile phones at the time of alleged incident but it is strange that the accused persons did not take away any of his mobile phones and that this fact makes the prosecution case highly doubtful. Thus, it has been submitted by the Ld. Defence Counsel that the prosecution case is highly doubtful as same suffers from number of material contradictions. Thus, it has been submitted that the accused persons may be acquitted.
7. On the other hand, Sh. Gaurav Pandey, Ld. Addl. PP for the State submitted that the prosecution has proved the allegations against the accused persons beyond reasonable doubt through the testimonies of the prosecution witnesses. He further submitted that the PW1 Prashant Sharma(Complainant) is the star witness of this case and he has supported the prosecution case in all material aspects. PW1 has specified all the necessary details of incident in his statement and he has correctly identified the accused persons as the same persons who had committed dacoity with him. It was submitted that the testimony of PW1 has been corroborated by the recovery witnesses. PW1 has also specified FIR No.263/2011 State Vs.Naeem etc. Page no. 21 of 81 the role of each of accused in the dacoity. Thus, Ld. Addl.PP prayed that accused persons may be convicted for the offences they are charged with.
8. In the present case, PW1 Prashant Sharma is the complainant/victim. He is the star witness of this case and the case of the prosecution mainly rests upon his statement. The complainant Prashant Sharma(PW1) has supported the prosecution case in all material particulars. Complainant has brought on record his statement made to the police after the incident as Ex.PW1/A. In his deposition, complainant has brought on record all the relevant facts and circumstances to specify as to how and in what manner the accused persons had looted him. In his testimony complainant has fully corroborated his original complaint and fully supported the prosecution case. Complainant has deposed that four accused persons had come out of the car out of which one stood on the rear side of the car and three accused persons had come to him. He deposed that accused Danish had put an ustra on the left side of his neck and accused Abdul Nanhe had put a knife on his abdomen. The third accused Naeem had taken out his wallet from the right pocket of his shorts. His wallet contained Rs.2900/, ATM Card, RC of motorcycle and some visiting cards. After taking his wallet, all the six accused persons fled in the said Swift car towards Noida. Complainant also narrated the facts about the apprehension of accused persons and also about the recovery of his looted articles. It is further clear from FIR No.263/2011 State Vs.Naeem etc. Page no. 22 of 81 the testimony of the complainant that within two minutes of the incident a PCR van had reached the spot and they sent a wireless message about the movement of the accused persons and soon after a return message was received that the accused persons have been detained at Noida Check Post and for the purpose of identification of the accused persons, PCR officials asked the complainant to accompany them to the place of detention of the accused persons and when they were on their way to that place alongwith the PCR, he saw the Swift car of the accused persons at the police check post of New Ashok Nagar Metro Station. All the six accused persons were made to sit on the roadside. Complainant identified all the accused persons there at the spot. After complainant reached at the second spot (place of apprehension of accused persons), the recovery of the looted articles and weapons used by the accused in the dacoity was effected and in his testimony complainant has specified the particulars of articles and weapons which were recovered from the accused persons. The complainant stated that cash amount of Rs.2900/ was recovered from accused Naeem but he stated that he is not aware from which of the accused, RC of his motorcycle was recovered. He deposed that a knife was recovered from accused Abdul Nanhe and an ustra from accused Danish. Complainant deposed that the Swift car used by the accused persons in the incident was having different registration number on the front and rear number plates. In regard to his wallet complainant deposed that his empty wallet was recovered from the FIR No.263/2011 State Vs.Naeem etc. Page no. 23 of 81 roadside. In regard to the recovery of wooden cover of a dagger, he stated that it was recovered from the rear seat of the car. During his evidence all his recovered articles, weapons of offence and the altered number plate of the car seized by the police during investigation were produced for the purpose of identification. Complainant identified all the relevant articles. The complainant identified the number plate of the car as P1 and knife and ustra as P2 and P3. He identified the wooden cover of dagger as P4. The complainant had got released the currency notes of Rs.2900/, thus, he identified the photographs of the same as ExP5. He also identified his wallet at ExP6 and his Election ID card as Ex P7. He also identified the RC of motorcycle as ExP8. Thus, complainant brought on record all the relevant facts and circumstances and besides that he also brought on record all the looted articles alongwith the weapons of offence and altered number plate which was put up by the accused on the rear side of car used by them during the offence. Before placing reliance on the testimony of complainant, one important aspect regarding the nature and impact of the contradictions which have emerged on record during the testimony of complainant as well as police officials is required to be seen. Perusal of the record shows that there are some contradictions regarding the role of the accused persons in the incident as well as in regard to the recovery of the looted articles and other incriminating material from them when the testimony of the complainant is compared to his first statement (Ex.PW1/A). Some other contradictions have also emerged on record when FIR No.263/2011 State Vs.Naeem etc. Page no. 24 of 81 statement of complainant is compared with the statements of the police officials in regard to the recovery of looted articles and weapons of offence. These contradictions have also been pointed by Ld. Defence counsel. Thus, before analyzing the testimony of the other prosecution witnesses with a view to see if they have established the case of prosecution beyond reasonable doubt, the impact of the contradictions, which have come on record during their evidence is required to be seen. It is required to be seen whether on the basis of those contradictions it can be held that the case of the prosecution is untrustworthy.
9. During the course of arguments Ld. Defence counsel has pointed out several contradictions in the testimony of the prosecution witnesses. Ld. defence counsel submitted there are contradictions in regard to the call made by the complainant at 100 number. It was submitted that in his examinationinchief, PW1 stated that he did not make any call at 100 number and when during cross examination a question was asked about the same, PW1 stated that he made a call at 100 number. It is clear from the evidence of PW1 that both his mobile phones remained with him even after the incident, thus, he could have easily made a call at the 100 number. Thus, it is clear that there is no contradiction about this fact on record.
10. In regard to the number of accused persons involved in the present case, it was further submitted that initially, PW1 FIR No.263/2011 State Vs.Naeem etc. Page no. 25 of 81 stated in examination in chief that there were four assailants but in further part of his testimony, PW1 stated that he had seen that six accused persons were detained by the police. Ld. Defence Counsel also submitted that as per DD no.7A there were 34 assailants. Thus, it has been submitted that there are contradictions regarding number of accused persons involved in the incident. Perusal of the record shows that after incident, the statement of complainant was recorded which has been brought on record by him as Ex PW1/A. In his complaint, PW1 stated that there were six boys in the Swift car and out of those six boys three got off the car and came to him while other three remained seated in the car. PW1 stated that after taking his wallet, the three boys who had got off also sat in the said car and fled from the spot. He stated that all the six accused persons had committed the offence with him and he had identified all of them at the spot. During his evidence complainant did not mention the number of the accused persons who came at the spot in the said car and it seems that he gave his deposition only about the accused persons who got off the car. PW1 deposed that accused Danish, Abdul Nanhe, Naeem and Abdul Haq got off the car and accused Danish, Abdul Nanhe and Naeem came to him while accused Abdul Haq kept on standing on the rear side of the car. It is clear from the testimony of complainant that after the accused persons fled from the spot within two to three minutes the PCR van reached there and a wireless message was flashed about the movement of accused persons. PW1 deposed that a return message was received by the FIR No.263/2011 State Vs.Naeem etc. Page no. 26 of 81 PCR that accused persons have been detained at Noida check post and on the instructions of police officials, the complainant alongwith PCR staff went to the place of apprehension for the purpose of identification. It is also clear from his testimony that when they were on their way, they found that at the check post of New Ashok Nagar Metro Station six accused persons have been detained by the police alongwith the said Swift car. It is clear from Ex PW1/A that complainant has specified the number of offenders as six and he has also specified the names of the accused persons who got off the vehicle and looted him and also about the names of the accused persons who remained seated in the vehicle. It is further clear from the complaint as well as statement of complainant that out of six accused persons, three had actively participated in the offence while other remained in the car. It is further clear from the complaint as well as testimony of the complainant that after the three accused persons had taken his wallet they rushed towards their car and told the other accused persons sitting in the car that they have taken the wallet and then the said three accused persons also sat in the car and fled from there. It is crystal clear from the said facts and circumstances that all the accused persons including the accused who remained seated in the car had come to the spot in the same vehicle with the common intention to commit dacoity and they all were part and parcel of the same gang of dacoits as they came together and after committing the offence they fled together. It is further clear from the testimony of the complainant which has been duly corroborated FIR No.263/2011 State Vs.Naeem etc. Page no. 27 of 81 by the police officials examined in this case that on the basis of the wireless message, after a very short while of incident, the accused persons were apprehended at New Ashok Nagar Metro Station Check Post while they were on their run in their Swift car. It is clear from the testimony of complainant that he identified all the accused persons at the place of their apprehension. It is further clear that IO/PW9 had also reached at the place of apprehension and IO had carried out search of the accused persons in the presence of the complainant. It is also clear that at the place of apprehension of accused, the articles of the complainant and weapons of offence were also recovered in the presence of the complainant. The complainant has placed on record the seizure memos of recovered wallet and identity card as Ex.PW1/C, recovered currency notes of Rs.2900/ as Ex.PW1/D and weapons of offence as Ex.PW1/E and Ex.PW1/F. It is further clear that disclosure statements of all the accused persons were also recorded in the presence of the complainant. It is further clear that all the accused persons were arrested in the presence of the complainant. All these facts establish beyond reasonable doubt that all the six accused persons who were involved in the dacoity were apprehended soon after the commission of offence and they were identified by the complainant on the spot itself. It is also clear that during evidence also, complainant identified the all the five accused persons who were facing trial at the time of recording of his evidence (by the time PW1 was examined, the present proceedings against accused Faeem had already been abated on his demise and thus, FIR No.263/2011 State Vs.Naeem etc. Page no. 28 of 81 at the time of evidence of PW1, rest of the five accused persons were facing trial). In order to establish on record that the said six accused persons were apprehended at the relevant time, the prosecution has examined one of the police officials who was on duty at the Picket of New Ashok Nagar Metro Station alongwith Ct. Waleem Javed and checking the vehicles. Prosecution has also examined the police officials of PS Mandawali who had also reached the spot alongwith the IO. PW5 Ct. Ashok is one of the police officials who was on duty at the said Picket. PW4 HC Ramesh, PW8 HC Sita Ram and PW9/IO, are the members of investigating team and they had also reached at the place of apprehension of the accused persons after getting the information about the apprehension of the accused persons. All these police officials have deposed that all the said six accused persons were apprehended together in the said car at the said picket. In their evidence, PW4, PW5, PW6 and PW7 have deposed about the apprehension of all the six accused persons and they have also identified all the five accused persons (as sixth accused namely Faeem had passed away by that time) who were facing trial at that time. PW8 and PW9 also deposed about the apprehension of the said six accused persons and they also identified all the four accused persons except accused Faeem (against whom the proceedings stood abated) and accused Abdul Farooq as this accused had absconded and had already been declared a PO) who were facing trial at that time. Thus, it is clear from the evidence of complainant that all the six accused persons were FIR No.263/2011 State Vs.Naeem etc. Page no. 29 of 81 apprehended together and they all were identified by the complainant on the spot as well as during his evidence. It is further clear that the testimony of complainant, in regard to the identification of the accused persons, has been corroborated by a considerable number of police officials. Thus, it is held that prosecution has established beyond reasonable doubt that the offence was committed by the six accused persons who have been chargesheeted in the present case.
11. Before moving further it is also necessary to see whether the rest of the three accused persons who did not actively participated in the crime would form part of the gang of dacoits. The definition of dacoity has been prescribed in section 391 IPC. The definition of dacoity given in section 391 IPC is reproduced as under: 391 IPC When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to to commit "dacoity".
12. It is clear from the facts and circumstances of the present case that all the six accused persons had come to the spot in the same vehicle and three remained seated in the car while other three went out to commit the offence. It is also clear they fled FIR No.263/2011 State Vs.Naeem etc. Page no. 30 of 81 together after taking away the wallet of the complainant. Thus, it is clear that they had come to the spot with the common intention to commit the offence, as such, it is clear that they had conjointly committed the offence and at the time of offence they all were very well present at the spot which fulfills the requirement of the section. It is also well settled law that for falling a particular offence within the category of the offence of dacoity, the participating in the offence by each of the accused is not necessary and all the accused who are present together at the spot for commission of the offence with the rest of the accused persons( who actually commit the crime) and provide aid to the other accused persons, will also be considered to be the members of group of dacoits. In the present case also the number of accused persons who had conjointly committed the offence is more than five. In the present all the accused persons had not actively participated in the crime but it is clear that all the six accused persons had come together in the same vehicle and they all remained present at the spot at the time of commission of offence and also that after commission of crime they all fled together in the same vehicle and last but not the least that they all were apprehended together in the same vehicle soon after they fled. It is clear from the record that when three accused persons came out of the car to commit the offence with the complainant, the other three were staying on alert mode and they were waiting for those three who had gone out to commit the offence. The three accused persons were waiting in the car to flee together from the spot with the rest of the three accused persons FIR No.263/2011 State Vs.Naeem etc. Page no. 31 of 81 after they would come back alongwith the looted articles. It is clear that after the said three accused persons had taken the wallet of the complainant, they rushed towards their car and told the other three sitting in the car that they have taken the wallet and then those three also sat in the car and all the six accused persons fled together in their car alongwith the looted wallet. These facts also establish on record that in the present case, all six accused persons had conjointly committed the offence and out of these six accused persons, three had actively committed the offence while other three remain present on the spot to provide aid to them in their fleeing from the spot.
13. As already discussed that after a short while of the incident, on the basis of the immediate wireless message, the car of the accused persons was stopped at a short distance from the spot i.e. police picket of the New Ashok Nagar Metro Station and accused persons were also detained there. On the instructions of the police officials, the complainant also reached there. It is further clear from the testimony of the IO/PW9 that the DD no.7A (PW 9/A) was assigned to him and thereafter, he had visited the spot (the place of incident) alongwith Ct. Sita Ram(PW8) and there he was informed that the offenders have already been apprehended at the Picket of New Ashok Nagar Metro Station, then IO who was already present at the spot, alongwith PW8 and HC Ramesh (PW4), reached at the place of apprehension of the accused persons. There, PW9 carried out the search of the accused FIR No.263/2011 State Vs.Naeem etc. Page no. 32 of 81 persons in the presence of the complainant and in the said search weapons of offence and articles of the complainant were recovered from the accused persons. In regard to the recovery of his belongings, PW1 deposed that accused persons had informed the police that they have thrown the looted articles on the roadside and then at the instance of the accused his mud stained empty wallet was recovered from the roadside. PW1 also deposed that cash amount of Rs.2900/ was recovered from accused Naeem and besides that RC of his motorcycle was also recovered but he could not specify the name of the accused from whom his RC was recovered. In order to prove the said recovery, besides complainant, the prosecution examined PW4, PW8 and PW9/IO. Besides, the complainant, PW8 is another material witness to the recovery of looted articles and weapons of offence. PW8 deposed that RC was recovered from accused Naeem and cash amount of Rs 2900/ from accused Farooq (P.O.). PW8 deposed that a knife was recovered from accused Danish while an ustra from accused Abdul Nanhe. He further deposed that wooden cover of dagger was recovered from the accused Abdul Haq and one purse from accused Faeem (since passed away). PW9 also corroborated the testimony of PW8 in regard to the said recovery. In regard to the recovery of looted articles there are some contradictions when testimony of complainant is compared with the testimony of PW8 and PW9. These contradictions are mainly qua the recovery of cash amount and his wallet. As per PW1 the cash amount was recovered from accused Naeem while as per PW8 and PW9 it was FIR No.263/2011 State Vs.Naeem etc. Page no. 33 of 81 recovered from accused Abdul Farooq(P.O). As per complainant his wallet was recovered from roadside at the instance of one of the accused while as per PW8 and PW9 the wallet containing Voter ID Card was recovered from accused Faeem. It is clear from the testimony of the complainant that he has fully supported the prosecution case in regard to all the relevant details of the incident as well as in regard to the apprehension of the accused persons and also in regard to the recovery effected from them. Perusal of the testimony of complainant also shows that his testimony about the involvement of accused persons in the incident and about their identification is fully trustworthy. It is further clear from his testimony that all his looted belongings (including partly recovered cash) were recovered at the spot itself. As per complainant some of his articles were recovered from the accused persons and some of them from the roadside that too at the instance of the accused persons. Thus, it is clear that even as per complainant, some of his articles were recovered from the accused persons and rest at their instance, as such, there is nothing on record to suggest that any of these articles were planted upon the accused persons. Similar is the position about the weapons of the offence recovered from the accused persons. As per complainant a knife was recovered from accused Abdul Nanhe while ustra from accused Danish but as per PW8 and PW9 it was converse. Again it is clear that even as per complainant the said weapons of offence were recovered from the accused Abdul Nanhe and Danish, though, he could not properly pair the accused with the weapon recovered from them. Thus, it is FIR No.263/2011 State Vs.Naeem etc. Page no. 34 of 81 further clear that even as per complainant, the said weapons of offence were recovered from the accused persons at the spot itself and same have also not been planted upon the accused persons. As far as the contradiction about specifying the names of the accused persons from whom the said recovery was indeed made is concerned, it is clear that complainant was examined after a considerable gap of the incident and whenever a witness is examined after a considerable gap of incident, it is quite natural that the witness would not be able to remember/recall all the details of the incident very minutely due to lapse of time and under these circumstances possibility of some minor contradictions/minor variations in the evidence of such a witness would normally be there. Thus, under these circumstances, it can be very well assumed that the aforementioned contradictions have come on record in the evidence of PW1 (complainant) as his evidence was recorded after a long gap of the incident. There is one another contradiction in regard to recovery of wooden cover of dagger. As per PW1, the wooden cover of dagger was recovered from the rear seat of the car while as PW8 and PW9 it was recovered from the possession of accused Abdul Haq. As per complainant the said article was recovered from the seat of the car of the accused while as per PW8 and PW9 the same was recovered from accused Abdul Farooq. As such, it is clear that as far as recovery of wooden cover of dagger is concerned, both sets of witnesses are not on the same page and since, they have not corroborated the testimony of each other therefore the recovery of said article as far FIR No.263/2011 State Vs.Naeem etc. Page no. 35 of 81 as it is said to be from the custody of accused Abdul Farooq, would remain doubtful. Though, the recovery of the wooden cover from the possession of accused is doubtful because of different versions of the witnesses yet it can be surely said that the either it was recovered from the accused or it was found from their car so either way it belonged to them. It is clear from the record that the case of prosecution is based upon the identification of accused persons which was done by the complainant at the spot itself and in order to corroborate their involvement, the prosecution has also relied upon the recovery of looted articles and weapons. As such, when prosecution has proved the incident and involvement of the accused persons with the evidence of complainant, then the case of the prosecution can neither be disbelieved nor discarded because of some contradictions which have come on record only in regard to the recovery of some of the articles and weapons of offence. From the contradictions which have come on record in the testimony of complainant, it can be surely said that his testimony is fully trustworthy as he was not a tutored witness and he deposed on the basis of the facts and circumstances which were faced and witnessed by him.
14. It is further clear from the testimony of complainant that after complainant had identified the accused persons at the place of their apprehension, the recovery of belongings of complainant was effected from the accused persons. It is further clear from the testimony of complainant that after apprehension of FIR No.263/2011 State Vs.Naeem etc. Page no. 36 of 81 the accused persons, his statement (Ex PW1/A) was recorded by PW9 (the IO of the case) and he got the FIR registered. It is further clear from the testimony of PW1 that all the material proceedings i.e. recovery of his belongings and weapons of offence were conducted in his presence. It is further clear that the material part of the investigation of the case i.e. search of the accused persons and their vehicle, preparation of the documents related to the recovery and also regarding the arrest of the accused persons, was done at the spot itself. It is further clear that after registration of FIR, the accused persons were arrested in the presence of the complainant. The complainant was the first witness who was examined by the prosecution and it is clear that in his evidence, besides his complaint Ex PW1/A, the PW1 has brought on record all the relevant documents which were prepared by the IO regarding the recovery and arrest of the accused persons. It is clear from the testimony of PW1 that all the articles and weapons were seized in the presence of the complainant. All the seizure memos bear the signature of the complainant. PW1 has placed on record all these seizure memos (Ex PW1/B to PW1/J) which bear his signatures. It is clear from the testimony of PW1 that he, throughout remained at the spot and entire investigation was carried out in his presence. It is also clear that sketches of the weapons including wooden cover of dagger were prepared in his presence and he has also brought on record these sketches as PW1/E to PW1/G ( It seems that inadvertently the sketches and seizure memos of the weapons and wooden cover were given the FIR No.263/2011 State Vs.Naeem etc. Page no. 37 of 81 same exhibits number). It is further clear that all the accused persons were arrested in the presence of PW1. PW1 has placed on record the arrest memos and personal search memos of the accused persons.
15. As per PW1, the accused persons had come to the spot in their Red colour Swift car and after taking his wallet, the accused persons had fled in the said car which was detained by the police personnel at the check post of police picket New Ashok Nagar Metro Station. As per complainant (PW1) the said car was detained by the police officials of New Ashok Nagar Metro Station check post alongwith the accused persons. Thus, it is clear from his testimony that he had also identified the said car there at the spot itself. The said car was also seized in the presence of PW1 and PW1 has placed on record its seizure memo as Ex PW1/H. PW1 deposed that the said car was bearing different registration number on its number plates. He deposed that the rear number plate was having changed (wrong registration number) registration number and the said number plate was seized. PW1 has placed on record its seizure memo as ExPW 1/J. The aforesaid number plate was produced during the evidence of PW1 and he identified the said number plate and the same was placed on record as ExP1. The testimony of PW1 regarding the fact that accused persons had used the said Swift car has been corroborated by one of the police officials of the check post. PW5 is one of those police officials who was on duty at New Ashok Nagar Metro Station picket and FIR No.263/2011 State Vs.Naeem etc. Page no. 38 of 81 checking vehicles at the relevant time. PW5 deposed that for the purpose of checking, a Red colour Swift car was got stopped by Ct. Walim Javed (the other police official who was also present there for vehicle checking). While they were checking, the PW7 (who was on duty at PCR R69) reached there and the officials of the said PCR informed that some persons have fled in a Red colour Swift car after committing some offence at Akshardham Temple. He deposed that they found that different registration numbers were being displayed on the number plates of the said car. The front number plate was having registration number as DL 5CD0829 while rear number plate was having the registration number as DL5CD0888. He deposed that while they were checking the vehicle, the complainant and other police officials also reached there. It is also clear from the testimony of PW7 who was on duty at PCR R69 that on 16.06.2011, at about 1212.30 midnight, he got a wireless message that one Red colour car has gone towards Noida after committing a crime and when PW7 was on his way towards Noida, he noticed that a Swift car having different registration numbers has already been stopped at the Picket New Ashok Nagar Metro Station. Then PW7 gave a message to the control room about the same. It is clear from the testimony of these prosecution witnesses that after the accused fled in their aforesaid car, it was got stopped and then detained at the Picket of New Ashok Nagar Metro Station. Thus, it is clear that the chain of events, about the apprehension of the accused with their car after they fled from the spot, has been clearly established FIR No.263/2011 State Vs.Naeem etc. Page no. 39 of 81 on record by the overwhelming prosecution evidence. Thus, it is clear that all the six accused persons were apprehended immediately after they fled from the spot. It is also clear that accused persons alongwith the car used by them were identified by PW1. It is also clear that the said car was seized by the police vide seizure memo Ex PW1/J. It is also clear from the evidence of PW1, PW4 to PW9 that the accused persons had changed the registration number of the rear number plate of the car. It is also clear that altered number plate was also seized by the IO. It is also clear from the testimony of PW4 to PW9 that actual registration number of the car was DL5CD0829 and accused persons had knowingly changed the same for the rear number plate of the car. The said Swift car could not be produced during the evidence of the complainant, however it was produced during the evidence of PW4. PW4 identified the said car as ExP7. As such, it is clear that prosecution has proved on record through the testimony of PW1 that the accused persons had used the said car at the time of offence and it is clear that after committing the offence the accused persons had fled in the said car and it is clear from the testimony of PW4 to PW9 that the accused persons were apprehended while they were fleeing in the said car. Thus, it is established beyond doubt that accused persons had used the said car for committing dacoity with the complainant.
16. During the course of arguments Ld. Defence counsel submitted that case of the prosecution regarding involvement of FIR No.263/2011 State Vs.Naeem etc. Page no. 40 of 81 accused persons and use of the said car by the accused persons is highly doubtful as prosecution neither produced the said vehicle during the evidence of the complainant nor did they examine the superdar to prove that at the time of offence, the possession of car was with the accused persons. This court does not find substance in the these arguments of the Ld. Defence counsel for several reasons. It is clear from the evidence of prosecution witnesses that while accused persons were fleeing in the said car they were stopped by the picket staff at New Ashok Nagar Metro Station for checking and detained there alongwith the said car and after a short while the complainant and the IO alongwith his team members had reached there. It is further clear that complainant had identified the said car at the spot itself. It is also clear that the car as well as its altered number plate was seized by the IO at the spot itself in the presence of the complainant and complainant has placed on record the relevant seizure memos. It is further clear from the record that the superdar had produced the car during the evidence of PW4 (one of the members of investigating team) and PW4 had identified the said car and it was brought on record as Ex P7. Thus, it is clear from the record that PW4 had identified the said car as the same which was detained by the picket staff alongwith the accused persons. It is further clear from the evidence of the complainant that complainant had identified the car at the spot itself and the car together with its altered number plate was seized in his presence. As such, it is clear that use of the said car by the accused persons in the commission of the offence has been FIR No.263/2011 State Vs.Naeem etc. Page no. 41 of 81 proved beyond reasonable doubt. It is clear from the record that said car was seized by the police from the possession of the accused persons and subsequently, when superdar came to know that his car has been seized by the police, he moved an application before the court of Ld. MM and got it released on superdari. It is not the case of superdar that his car was stolen or lifted by the police prior to it was seized by the police in this matter. The superdar clearly stated in his application that he is the owner of the said Swift car which has been seized by the police and he prayed that it may be released to him on superdari. Thus, it is clear from the conduct of the superdar also that the car was neither stolen nor taken by the police prior to the incident and this conduct of the superdar clearly establishes on record that the car was seized by the police in the manner stated by the prosecution witnesses. All these facts and circumstances clearly establish that the said car was in the possession of the accused persons at the time when they looted the complainant and also when they were apprehended. Furthermore, once the prosecution has proved its case from the direct evidence of complainant which is well corroborated by the evidence of police officials then in these circumstances non production of car would not affect the prosecution case as far as the involvement of the accused persons in committing offence of dacoity with the complainant is concerned. It is clear from the evidence of complainant that he had identified all the accused persons as the same persons who had committed dacoity with him at the place of their apprehension itself. The FIR No.263/2011 State Vs.Naeem etc. Page no. 42 of 81 complainant also identified the accused persons during his evidence. As such, it is clear from the record that prosecution case mainly depends on the evidence of complainant and police officials and the production of car could have only provided the corroboration to the evidence of the prosecution witnesses. Hence, non production of car ( as far as the offence of dacoity is concerned) during the evidence of PW1/complainant doesn't not affect the prosecution case at all. It is clear from the above made discussions that the involvement of accused persons as well as the recovery of the belongings of the complainant from the accused has been proved beyond reasonable doubt. The accused persons have claimed false implication and in case, they did commit the offence and prosecution has concocted a false story that they committed the offence by using the car then under these circumstances, the accused persons, who were given ample opportunities, ought to have lead some evidence in their defence to prove their innocence. In case, the car was not in their possession at the time of offence as stated by the prosecution then they could have proved the same by examining the superdar in their defence. The accused persons did not lead any evidence at all to prove their innocence. Thus, it is held that firstly, the prosecution has very well established that accused persons committed the offence by using the said car and secondly, non production of the car during the evidence of complainant by itself would not affect the prosecution case when it has been very well proved by the direct evidence of the complainant and other FIR No.263/2011 State Vs.Naeem etc. Page no. 43 of 81 prosecution witnesses.
17. As discussed above, the recovery of the car from the possession of the accused persons, has been well proved by the prosecution. PW5 is one of the police officials who was on duty at the picket where the accused persons were stopped and detained. PW5 deposed that the rear number plate of the car of the accused persons was altered as it had registration number as DL5CD0888 while the original registration number was DL5CD0829. In this regard, the testimony of PW5 has been corroborated by PW1/Complainant as well as other police officials examined by the prosecution. The altered number plate was removed from the car and seized by the IO. The complainant has placed on record the seizure memo of the same as Ex PW1/J. The said number plate was produced during evidence of the complainant which was duly identified by him as the same which was taken into possession by the police. PW1/complainant has placed the same on record as Ex P1. Thus, it is clear from the evidence brought on record by the prosecution in this regard that at the time of offence, the accused persons had used the altered number plate on the car used by them during the commission of the offence. The said action of the accused persons shows the menesrea that they had changed the registration number on the rear number plate so that a wrong number is noted down, in case, somebody notes down the number of their vehicle when they flee after committing the offence. The accused persons had done the same with the sole intention to FIR No.263/2011 State Vs.Naeem etc. Page no. 44 of 81 conceal their identity. This is another corroborating fact that all the accused persons had come to the spot with the common intention to commit the offence and they wanted to hide their identity as they knew very well that if they display the original number they would be very easily identified and apprehended. The accused persons did their best for their easy escape. They changed the registration number to hoodwink the complainant and hide their identity but due the very swift action on the part of complainant in informing the police about the incident and in turn very swift action on the part of police also in flashing the message about the movement of the vehicle of the accused, the accused persons could not escape and were apprehended at a short distance from the spot.
18. During the evidence of Complainant/PW1, the weapons recovered from the accused persons as well as the wooden cover of dagger were produced in the sealed cloth pullandas (having seal of OPV) for the purpose of identification. PW1 identified the knife and ustra as the same weapon which were recovered from the accused persons. The knife and ustra were given identification marks as Ex P2 and Ex P3. PW1 also identified the wooden cover of dagger as the same which was recovered from the vehicle of the accused persons. The wooden cover of dagger was brought on record as Ex P4. PW1 had taken the recovered cash amount of Rs.2900/,his wallet, Voter ID Card and RC of motorcycle on superdari. The complainant did not produce the currency notes of Rs.2900/ as he had spent the FIR No.263/2011 State Vs.Naeem etc. Page no. 45 of 81 same. Thus, PW1 identified the photographs of currency notes as the same which were robbed and recovered and these photographs were brought on record as Ex P5. PW1 also brought on record its superdarinama as Ex PW1/M. During his evidence, PW1 had produced his wallet, Election ID Card and one RC and PW1 identified the aforesaid articles as the same which were robbed from him on the day of incident and these articles were brought on record and were given identification marks from Ex.P6 to Ex.P8. The testimony of PW1, in regard to the recovery of aforementioned weapons and his belongings from the accused persons has been duly corroborated by the members of investigating team as well as by the IO. PW4 and PW8 are the members of the investigating team and they have identified the weapons as well as wooden cover of dagger. During the evidence of PW4 also, the wallet and Election ID card were produced by PW1 and same were identified by PW4. PW8 also identified the weapons and wooden cover of dagger. PW8 also identified the currency notes, wallet and RC from their photographs. Since PW8 had identified these articles on the basis of their photographs, thus, photographs of these articles were brought on record as Ex PW8/J and Ex PW8/K. PW4, PW8 and PW9 have corroborated the testimony of complainant in regard to the recovery of knife and ustra from the possession of accused persons. It is also clear from the testimony of PW9 that after the recovery of weapons and other articles, he sealed all the articles in separate cloth pullandas and he sealed the same with the seal of OPV. It is also clear that all the FIR No.263/2011 State Vs.Naeem etc. Page no. 46 of 81 articles were produced in the court with the same seal. It is also clear that after completion of sealing process, PW9 prepared all the relevant documents and after preparation of rukka, he got the FIR registered. It is further clear from the testimony of PW9 that after registration of FIR, he put FIR number on all the documents which were already prepared by him prior to the registration of FIR. PW1 also categorically deposed that knife and ustra were recovered from the possession of accused Danish and Abdul Nanhe, however, he could not pair the accused Danish and Abdul Nanhe correctly with the actual weapons recovered from them as he deposed that knife was recovered from accused Abdul Nanhe and ustra from accused Danish. All the members of investigating team have categorically deposed that a knife was recovered from accused Danish while an ustra from accused Abdul Nanhe. All these witnesses have corroborated each other on all material aspects regarding the recovery of weapon and belongings of the complainant. It has already been discussed that the contradiction in deposition of complainant about the recovery of weapon can be said to be only on account of lapse of time as it is clear from rest of his testimony that he has confidently and categorically deposed about each and every aspect of the matter from the time of the beginning of the incident and till the time he participated in the investigation. Thus, the said part of the deposition of the complainant can be said to be a minor variation and hence, it is held that the same doesn't affect the prosecution case in any manner. In view of these discussions it is held that prosecution has FIR No.263/2011 State Vs.Naeem etc. Page no. 47 of 81 established on record through the testimony of PW1/complainant and the police officials that the all the said six accused persons had looted the complainant and they were apprehended while they were on their run after the incident and last but not the least that belongings of complainant alongwith the weapons used by the accused persons in the crime were recovered from the accused persons at the place of their apprehension.
19. PW1 has deposed that the incident took place at about 12 in the night. It is further clear from his testimony that he made a call to the police immediately after the assailants had left the spot. It is further clear that after a few minutes of his call the PCR vehicle had arrived there and complainant informed them that the offenders have fled towards Noida in their Red Swift car. It is further clear from his testimony that the said police officials immediately passed on the wireless message for the detention of the vehicle of the accused. It is also clear that the said PCR officials received a return message that the Red colour Swift car has been detained. PW1 has deposed that PCR officials asked him to reach to the place of the detention of the car of the offenders and identify them and then he reached there. There at the place of the detention of the car complainant identified all the accused persons and in his presence, the recovery of his belongings was effected from some of the accused persons besides recovery of weapons used by the accused persons in the offence. It is clear from the evidence of PW5 Ct. Ashok Kumar, one FIR No.263/2011 State Vs.Naeem etc. Page no. 48 of 81 of the police officials who was on vehicle checking duty at Picket New Ashok Nagar Metro Station that they had detained the vehicle of the accused about 12.30 pm. Though PW5 stated the time of detention of vehicle as 12.30 pm, however, it is clear that the correct time is 12.30 am when his testimony is read in its entirety. Thus, it is clear from the testimony of PW1 as well PW5 that after the accused persons had fled from the spot, their vehicle was detained during checking as the said car was having different registration number on its rear number plate. The factum of detention of vehicle of the accused persons, at about 12.30 am, at the above mentioned place, is further clear from the testimony of PW7 who was on duty at PCR Van Romeo 69. It is also clear that PW7 also passed on the said message to the control room. After receiving the information about the vehicle of the accused persons, Complainant/PW1 and PW7 had reached there and there complainant identified the car as well as the accused persons. It is further clear that after sometime, the PW9/IO also reached there alongwith his team members namely PW4 HC Ramesh Mathur and PW8 Sita Ram. It has also come on record in the testimony of PW1 as well as members of investigating team that aforementioned belongings of the complainant were recovered from the accused persons as already discussed. As such it is clear that the recovery of belongings of complainant was effected from the accused persons soon after the same were looted. As per prosecution case, the looted articles were recovered from three accused persons namely, Naeem, Faeem and Abdul Farooq and FIR No.263/2011 State Vs.Naeem etc. Page no. 49 of 81 at present, out of these three accused persons, only accused Naeem is facing trial as Faeem has expired and accused Abdul Farooq is P.O. Thus, in the wake of the aforesaid recovery and in view of the settled provisions of section 114(a) of Evidence Act, the onus was on the accused Naeem to explain the circumstances under which he came into possession of the aforesaid looted article. The accused Naeem has simply denied the recovery and he did not bring on record any material to explain the reasons for the same. As such, under these circumstances an adverse inference should be drawn against the accused Naeem that he had looted the complainant alongwith his associates and that is why one of the looted articles was recovered from his possession soon after the incident.
20. In their statements recorded u/s 313 Cr.P.C. all the four accused persons pleaded innocence and claimed false implication. Accused Naeem stated that on 12.06.2011, at about 9.15 pm, he was coming from his friends house after attending a party and at that time he was under the influence of liquor. On the way near to the Mother Dairy, the police officials stopped him and he had an altercation with them and at that time the police officials had threatened him that they will implicate him in a false case. He also stated that police had arrested him from his house. Thus, according to the accused Naeem, after few days of the said altercation, he was falsely implicated by the police officials after lifting him from his house. Thus, accused Naeem has taken a plea FIR No.263/2011 State Vs.Naeem etc. Page no. 50 of 81 of alibi. Likewise, accused Abdul Nanhe stated that while he was running after a bus to catch it, some police officials caught him for pick pocketing and then he was falsely implicated in this case. Similar is the stand of accused Abdul Haq. He stated that he is running a mutton shop at Darya Ganj and when refused to give free mutton to the police officials, they threatened him to implicate him in a false case. Thus, he also claimed that he has been falsely implicated after lifting him from his house. The fourth accused Danish also claimed false implication and took plea of alibi. He stated that he was arrested by the police officials when he was going to a Disco at Vasant Vihar and then he has been falsely implicated in this case. As discussed while analyzing the evidence of the complainant and concerned police officials that all the accused persons were detained and identified soon after the incident. The prosecution has established on record on the basis of the testimony of the complainant that the accused persons who are presently facing trial in the present case are amongst those six offenders who had committed dacoity with the complainant. The evidence of complainant in regard to the recovery of weapon as well as his belongings has been corroborated by the police officials in all material particulars. Thus, under these circumstances the onus was on the accused persons to establish on record that at the time of offence they were present at the place specified by them. They were also required to establish that they were lifted or arrested from the places mentioned by them. The accused persons were required to bring at least some evidence on record, however, FIR No.263/2011 State Vs.Naeem etc. Page no. 51 of 81 it is clear from the record that accused persons did not lead any evidence to prove the plea of alibi taken by them. Thus, it is held that accused persons have failed to prove their defence of alibi and since the accused persons have failed to prove their alibi an adverse inference is to be drawn against them that they took false pleas to save themselves from punishment of the offence. It is well settled law that taking a false plea of alibi by the accused is to be considered as an additional incriminating circumstance against him to connect him with the crime. In this regard this court is supported by the judgment of Hon'ble Delhi High Court reported as 2014 (7) AD Delhi 250 and titled as Kanchan Singh Vs. State.
21. Before proceeding further, the other contradictions pointed by by Ld. Defence counsel are required to be discussed. It is required to be seen whether the case of the prosecution can be said to be doubtful on the basis of the contradictions pointed by Ld. Counsel.
22. It has been submitted by Ld. Defence counsel that there are contradictions in the case of the prosecution in regard to the number of accused persons committed the offence. Ld. Defence counsel submitted that PW 1 has made contradictory statements in regard to the number accused persons as in his examination in chief PW1/complainant initially submitted that there were four assailants and in further part of his testimony, he submitted that he had seen that six accused persons were FIR No.263/2011 State Vs.Naeem etc. Page no. 52 of 81 detained by the police. In this regard, Ld. Counsel also referred to the contents of DD entry Ex PW9/A. Ld counsel submitted that as per the contents of DD, the 34 assailants had committed the incident. In this regard the contents of the complaint (Ex.PW1/A), the contents of DD (Ex.PW9/A) and the testimony of the complainant/PW1 are required to be seen together. It is clear from the perusal of the complaint that complainant has clearly specified as to how many accused persons had come to the spot in the said car. He stated that three boys got off the vehicle while three remained seated in the car and after the incident they all sat in their car and fled from the spot. It is clear from the complaint that six accused persons had committed the incident. It is also clear that he has identified all the accused persons and he has also specified their role in the incident. It is clear that during his evidence, complainant identified all the accused persons (five accused persons) as the perpetrators of the crime (PW1/complainant identified rest of the five accused persons as accused Faeem had passed away). PW1 has also deposed that he had identified all the accused persons at the spot also.
23. In order to analyse the aforesaid submission of Ld. Defence counsel in regard to the contradictions of number of accused persons involved in the present case, the contents of DD entry Ex.PW9/A are also required to be noted which reads as follows: "Samay 0040 Hrs per E50 Operator ne bajriye phone FIR No.263/2011 State Vs.Naeem etc. Page no. 53 of 81 tehrir pharmaya ki Akshardham Metro Station ke samne bus stand per Noida ki taraf jate hue ek ladka Prashant Sharma s/o Vinod Sharma r/o A56, Sector 30, Noida U.P ko 34 ladke aaye aur chaku dikhakar purse chhinkar le gaye jisme 45 hazar rupay the R36 From H.C Kamal No.3639/PCR hasb aamad itlah PCR call darj roznamcha ki jaker aakab me bajriye phone HC Ramesh No.354/E ko batlai gai jo mauke per pahunchkar munasib karyawahi amal me layenge Bakalam HC/DO Nij call SI Om Prakash sahab ko bajriye phone batai gai HC/DO." (At 0040 hours, Operator E50 informed via phone that at the bus stand (towards Noida) situated in front of Akshardham Metro station, threefour boys came and they snatched the wallet (which contains Rs.4000Rs.5000) of one boy Prashant Sharma s/o Sh. Vinod Sharma r/o A56, Sector 30 Noida U.P by using a knife. The said information is given by HC Kamal No. 3639/PCR. The said information was passed on to HC Ramesh No.354/E who will carry out appropriate proceedings after reaching at the spot. The duty officer who noted down the said information also passed on the said information to SI Om Prakash via phone).
24. It is clear from the record that there is no contradiction about the number of offenders when the testimony of complainant is compared to the contents of DD entry (Ex PW9/A). It is clear from the contents of DD entry that it only talks about the number of persons who actually looted the belongings of the complainant and not about the total number of persons who were involved in commission of the offence. There is a slight variation in the testimony of complainant as far as the number of accused persons who remained seated in the car and who had come out of the car is concerned. As per complaint three accused persons had come out while three kept on sitting in the car, however in his testimony, FIR No.263/2011 State Vs.Naeem etc. Page no. 54 of 81 complainant stated that four accused persons had come out of the car and out of these four, three had committed the incident with him while the fourth accused kept on standing on the rear side of the car. Thus, it is clear that there is no contradiction as far as the total number of accused persons involved in the present case and the accused who went to the complainant to commit the incident is concerned. As far as the aforementioned contradiction is concerned same can be said to be a slight variation and this doesn't affect the veracity of the version of the complainant. It is also clear from the perusal of the contents of DD entry that at the time when he informed the police about the incident, he had specified the numbers of only those accused persons who had looted him. Thus, it is clear that there is no contradiction in the testimony of PW1/complainant in regard to the number of persons involved in the offence. It is clear that complainant has clearly specified the number of accused persons involved in the incident. The complainant had identified all the accused persons after they were apprehended. It is also clear that complainant has also identified all the accused persons during his evidence, however, perusal of the record shows that there are some variations in the testimony of the complainant in regard to the role of the accused. In his complaint, complainant stated that accused Abdul Nanhe, Danish and Farukh had come out of the car while other three namely Abdul Haq, Naeem and Faeem remained inside the car. During his evidence, complainant stated that four accused persons had come out of the car and out of those four accused Danish, FIR No.263/2011 State Vs.Naeem etc. Page no. 55 of 81 Abdul Nanhe and Naeem had come to him. It is already discussed that complainant has categorically mentioned that six accused persons had come to the spot and they all were apprehended soon after the incident. It is also clear that complainant had identified all the accused persons chargesheeted in the present case at the place of their apprehension. It is also clear from the evidence of the complainant that all the material investigation was conducted in the presence of the complainant including the arrest of the accused persons. It is also clear that all the accused persons (five accused persons) were identified by the complainant during his evidence as the persons who committed dacoity with him. Thus, it has been established beyond reasonable doubt that all the accused persons facing trial were involved in the incident. As such, under threes circumstances, neither the testimony of the complainant can be disbelieved nor the same can be discarded only due to the said minor variations regarding the role of some of the accused persons in the incident. It is also clear from the record of the case that complainant was examined after a considerable period of the incident. It is further clear when the testimony of the complainant is read that complainant is a reliable witness not for the sole reason that he is the victim in this case. The testimony of the complainant is fully trustworthy as it is clear that he did not depose as per the version of the prosecution and it is apparent that he has deposed whatever he went through and whatever he actually witnessed at the place of incident and also at the place of apprehension of the accused persons. During his cross FIR No.263/2011 State Vs.Naeem etc. Page no. 56 of 81 examination also, he remained unshaken and remained firm. Complainant was cross examined by all the Ld. Defence counsels at length and it is clear that even during his cross examination, he remained firm in regard to the important aspects of the incident rather he clarified all the relevant aspects of the matter. Furthermore, in order to arrive at a conclusion regarding the veracity of the testimony of the complainant, his entire testimony is required to be taken into consideration. Thus, under these circumstances it can be said that complainant is a natural witness and therefore, due to the aforesaid variations, his testimony cannot be said to untrustworthy and under these circumstances, the reasons for the aforesaid variations could be only because of the lapse of time.
25. Ld. Defence counsel further contended that the case of the prosecution is highly doubtful as no public person has been joined during the entire investigation. Ld. Counsel submitted that as per official witnesses, no public person was available at the place of apprehension and recovery though PW1 has deposed that at that time, his cousin brother namely, Ajay Sharma was present with him. PW1/complainant has stated in his testimony that his cousin brother Ajay Sharma had come to the spot after incident and thus, joining of Ajay Sharma as a witness in this case was not necessary at all. Furthermore, as per record, the incident took place at about 12 midnight, thus, the possibility of availability of public witnesses at this odd hour would be minimal. The IO/PW9 FIR No.263/2011 State Vs.Naeem etc. Page no. 57 of 81 was cross examined on the aspect of non joining of an independent witness. IO specified the reason for non joining and stated that due to late night no independent public person available at the place of arrest. IO admitted in his cross examination that at that time some vehicles were passing from the spot. It is admitted position of fact that no independent witness has been joined in the present case. It is required to be seen whether in the present case joining of an independent witness was necessary as the same would be required only for the purpose of corroboration. Now it is to be seen whether any corroboration of the testimony was required from other independent source. PW1 himself is the victim and most material witness in this case and as already discussed he has fully supported his case and his testimony in regard to the involvement of the accused and also qua the recovery effected from them has been found to be trustworthy. Thus, under these peculiar circumstances there was no requirement of corroboration of his testimony from any other independent source, however, it is clear that as far as recovery is concerned, the testimony of the complainant has been duly corroborated by several police officials examined by the prosecution. Furthermore, no material has been placed on record to show or establish (though claimed in their statements recorded u/s 313 Cr.P.C.) by the accused persons that either complainant or the police officials were either acquainted with them or having any kind of animosity with them. It well settled law that where version of complainant has been found to be trustworthy then non joining of an independent witness would not FIR No.263/2011 State Vs.Naeem etc. Page no. 58 of 81 affect the authenticity of the prosecution case. In regard this court is supported by the Judgment of Hon'ble High Court reported as Manjeet Singh Vs. State, 2014(709) DLT475. The relevant para of this case is being reproduced as under:
15. It is a settled legal position, that if the testimony of an eye witness is found reliable, the conviction can be based solely on the testimony of an eye witness. In the matter of Alil Mollah and Another v. State of West Bengal reported in II (1997) CCR 103 (SC) : AIR 1996 Supreme Court 3471 the Hon'ble Apex Court held as under:
"It is now well established that conviction can be based on the testimony of a single eye witness provided the court finds from the scrutiny of his evidence that he is a wholly reliable witness . Where, however, the court is of the opinion that the single eye witness is only partly reliable, prudence requires that corroboration of his testimony in material particulars should be sought before recording conviction."
26. Furthermore, as per prosecution case, during the incident, the complainant/PW1 suffered some injuries for which he was got medically examined at LBS Hospital by the IO of the case. It seems that complainant did not mention this fact as he suffered very minor injury on his elbow, however it is clear from the MLC of complainant that on 16.06.2011 at about 4.55 a.m, he was medically examined at LBS hospital vide MLC Ex A1 and that he had suffered an injury on his elbow due to an assault. The doctors concerned were not included in the list of witnesses by the IO, thus, in order to bring the MLC of complainant on record, the Ld. Addl.P.P. had moved an application for summoning and examining the doctors concerned and this application was allowed, however, FIR No.263/2011 State Vs.Naeem etc. Page no. 59 of 81 the doctors concerned were not summoned as Ld. Defence counsel did not dispute the authenticity of the MLC of complainant and admitted the same u/s 294 Cr.P.C. Accordingly, the MLC of complainant was brought on record as Ex.Al. It is clear from the perusal of the Ex A1 that complainant had suffered injury during the incident and this fact makes the version of the complainant more authentic that such an incident had taken place and during the incident, he had suffered an injury on his elbow.
27. Ld. Counsel further contended that version of complainant is doubtful as he has given different figures of robbed amount on different occasions. It was submitted that in the DD entry Ex PW9/A, it has been mentioned that an amount of Rs.40005000 was robbed while in the complaint, the robbed amount has been mentioned as Rs.5000/. It was submitted that in the examination in chief complainant/PW1 specified the robbed amount as Rs.2900/. Perusal of the record shows that there is no contradiction in regard to the quantum of looted amount. It is clear that in his initial information which was taken down in DD Ex.PW9/A, complainant had specified the figure of looted amount as around 4000 to 5000 and subsequently, at the time of recording his statement by the IO, he mentioned the exact looted amount. It is further clear that in his examination in chief, complainant mentioned that at the time of incident, he was carrying Rs.2900/ in his wallet, however it is clear that in his cross examination, he has specified the said anomaly. In this regard complainant stated in his FIR No.263/2011 State Vs.Naeem etc. Page no. 60 of 81 cross examination that in his examination in chief, he specified the figure of the looted amount as Rs.2900/ as this was the amount, which was recovered from the possession of the accused persons. Thus, it is clear from the testimony of complainant that there is no contradiction in regard to the quantum of looted amount in his examination in chief, as complainant/PW1 has only deposed about the quantum of money which was recovered from the accused and not about the quantum of looted amount.
28. Ld. Defence counsel further contended that there are a lot of contradictions in regard to the timings of the departure of the IO and other police officials from the spot. It was submitted that in this regard the complainant/PW1 deposed that accused persons were brought to the police station at about 5.30am, thus, Ld.defence counsel submitted that they might have left the spot sometime back. It was submitted that in this regard PW5 stated that IO and other police officials had left the spot at 1.15 a.m while PW9 stated that they finally left the spot at about 6.30 a.m. As per PW6 they finally left the spot at about 4.30 a.m. The complainant/victim is the star witness of the present case. It has already been discussed that from the time he reached at the place of apprehension of the accused persons and till the time all necessary proceedings were carried out regarding the search and seizure and finally the arrest of the accused persons, the complainant remained at the spot. There is not much difference in the timings mentioned by all these witnesses. Furthermore, it is FIR No.263/2011 State Vs.Naeem etc. Page no. 61 of 81 clear that evidence of all these witnesses was recorded after a considerable time of incident, thus, under these circumstances these variations are quite possible. As far as statement of PW5 regarding timings of leaving the spot by the IO and other police officials at about 1.15 a.m is concerned, there seems to be no substance in it and it cannot be given much weightage when his testimony is read in its entirety. In the examination in chief, he himself stated that at about 12.30 p.m (should be a.m) while they were checking the vehicles, a Red colour Maruti Swift came there from the side of Akshardham and it was got stopped by Ct. Walim Javed. In his deposition, PW9 stated that he reached at Akshardham Metro Station at about 12.50 a.m, remained there for about 15 minutes and then he proceeded towards the place of apprehension of the accused persons. Thus, it is clear from these facts that IO would have reached at the place of apprehension of the accused persons at about 1.15 a.m. and thereafter, he carried out all the necessary proceedings at the spot in the presence of PW6 and other witnesses, then, the question of their leaving the spot at about 1.15 a.m doesn't arise. Thus, there doesn't seems to be much difference in the timings of departure mentioned by the different witnesses and the slight difference in mentioning the timings could be only because of time gap which is quite natural.
29. It was further argued that the testimony of PW2 doesn't match with the endorsement Ex.PW2/B on the rukka. It was submitted that prosecution has examined PW2 as duty officer FIR No.263/2011 State Vs.Naeem etc. Page no. 62 of 81 and as per PW2, he made endorsement on rukka but as per rukka, the endorsement has been made by ASI Mithilesh Yadav. Perusal of the FIR Ex.PW2/A clearly shows that PW2 HC Rampal Singh has recorded the said FIR and he is the duty officer concerned. Thus, it is clear that the prosecution has examined the concerned police official/duty officer who recorded the FIR. As far as the said anomaly is concerned, the prosecution has not furnished any explanation. However, this anomaly by itself would not make the case of the prosecution doubtful as it doesn't affect the prosecution case as far as the registration of FIR on the basis of rukka Ex.PW9/B is concerned and it is clear that the rukka and FIR have been duly proved on record by the prosecution.
30. Ld. Counsel has also contended that as per complainant, at the time of incident, he was having two mobile phones with him but surprisingly, the accused persons did not take away any of his mobile phones and this particular fact creates doubt about the veracity of the statement of complainant. It is clear from the record that in his examination in chief, the complainant/PW1 himself mentioned the fact that at the time of incident he was having his two mobile phones with him. He has also mentioned as to how he saved his mobile phones from the accused persons. He deposed that at the time of incident, he was carrying his mobile phones in the left side front pocket of his shorts and at the time of incident, he had put his hand on his mobile phones due to which accused persons could not notice the same.
FIR No.263/2011 State Vs.Naeem etc. Page no. 63 of 81 Thus, it is clear that PW1 has himself clarified as to why the accused persons did not take away his mobile phones. Even otherwise, the version of the complainant cannot be doubted for the reason that some of his belongings were looted while the others were not.
31. Ld. defence Counsel further pointed out that there are contradictions in the versions of complainant regarding the time of incident. In the complaint, complainant stated that, incident took place at 12.15 a.m while in his examination in chief, he deposed that time of incident was 12 midnight and in his cross examination, he told that incident took place around 11.30 p.m/12.00 midnight. It is clear from the said timings referred by Ld. Defence counsel that variations in the timings mentioned by the complainant at different places is not significant. It is also clear that at every place, he has mentioned the approximate time and at the cost of repetition, it is said that these kinds of variations are quite natural and these variations are bound to come on record due to time gap.
32. Ld. Counsel also submitted that the PW1 has nowhere specified the denomination of the amount of Rs.2900/. Non mentioning of denomination of the said money is not significant as it is clear from the record that the said amount was taken into possession vide seizure memo Ex PW 1/D. It is further clear that the said amount was released to complainant and during evidence complainant has brought on record the photograph(Ex P5) of the FIR No.263/2011 State Vs.Naeem etc. Page no. 64 of 81 said currency notes which clearly shows its denomination. Ld. Counsel pointed out another contradiction from the record. He submitted that PW1 deposed that when he reached at the place of apprehension of accused, he observed that the accused persons were made to sit on the roadside but in this regard PW9 stated that the accused persons were made to sit in the car. It is clear from the above discussed facts and circumstances that all the accused persons were apprehended at the checking point of picket of New Ashok Nagar Metro Station and it is also clear that at the time when complainant and IO and his team members reached there accused persons had already been apprehended and they were found present there alongwith their car. It is also clear that all the proceedings regarding search of accused and their vehicle was done in the presence of the complainant after the IO and his team members had reached there. So the variations in the statements of these witnesses regarding the exact position of the accused at the time of their arrival would not affect the case of the prosecution in any manner.
33. Ld. Defence counsel has further pointed out some other contradictions. Ld. Counsel submitted that in his cross examination, PW1 stated that a knife was recovered from the personal search of the accused Abdul Haq, however, in the personal search memo (PW1/DA) of accused Abdul Haq no such recovery has been mentioned instead some other articles have been mentioned. It is well settled procedure that after FIR No.263/2011 State Vs.Naeem etc. Page no. 65 of 81 apprehension of the accused, initially the search of the accused is required to be conducted for the recovery of case property and all the incriminating articles/weapons pertaining to the offence and subsequently, after registration of case, at the time of arrest of the accused, his search is again carried out to make a memorandum of the personal belongings of the accused which he was carrying at the time of his apprehension. As such, the factum of recovery of the knife was not required to be mentioned in the personal search memo of the accused and it was only required to be mentioned in the seizure memo of knife (Ex PW1/F). Even otherwise also there is no substance in this submission as according to prosecution case the knife was recovered from accused Danish and not from accused Abdul Haq. As per prosecution case a wooden cover of dagger was recovered from the possession of accused Abdul Haq, thus, the factum of this recovery was required to be mentioned in the seizure (ExPW1/G) and not in the personal search memo. It is clear from the personal search memo of accused Abdul Haq that particulars of all his belongings have been clearly mentioned in the said memo.
34. Ld. Counsel also submitted that there is a contradiction in the testimony of the police officials in regard to date of offence. It was submitted that according to PW4 to PW7 incident occurred on 16.06.2011 but as per PW9 the incident occurred on 15.06.2011. It is clear from the evidence led by prosecution that the incident had taken place on the intervening FIR No.263/2011 State Vs.Naeem etc. Page no. 66 of 81 night of 15/16.06.2011. It is further clear that all the aforesaid police officials got the information about the incident only after 12 of midnight, thus, technically all these police officials made their movements on 16.06.2011. Thus, all these police officials have rightly mentioned the date of incident as 16.06.2011. PW9 has deposed that on 15.06.2011, he was on duty from 8 pm to 8 am and he was assigned with the DD No.7A (Ex PW9/A) at about 12.40am. Thus, it is clear from the perusal of the testimony of PW9 also that he has not mentioned the date of 15.06.2011 as the date of incident and this he said about his duty timings on that day. It is clear from his testimony that he was assigned the DD about the incident only after 12 midnight and thus, even according to this witness also the incident had taken place on 16.06.2011 and therefore there is no contradiction in the testimony of these witnesses about the date of incident.
35. It is further submitted that as per chargesheet and case of the prosecution, the complainant had suffered injury in the incident, and the case of prosecution is highly doubtful as the complainant, who said to have suffered injury in the incident, has been completely silent on this aspect and it was only PW9, who deposed about the same. This aspect of the matter has already been discussed while considering the authenticity of the statement of the complainant about the incident and recovery. It has already been observed that as per MLC( Ex A1) complainant/PW1 had suffered minor injury in the incident and the factum of medical FIR No.263/2011 State Vs.Naeem etc. Page no. 67 of 81 examination of the complainant vide the said MLC has been admitted by the Ld. counsel of accused persons, thus, there cannot be any doubt that complainant had suffered some injury in the incident. Though, PW1 ought to have also deposed about the same yet it doesn't affect the case of the prosecution as far as involvement of accused persons in the present case and recovery effected from them is concerned.
36. It was further submitted by Ld. Defence Counsel that site plan of does not bear the signature of PW1 and this confirms that he was not present at the spot. The purpose of preparation the site plan is to clearly specify the point where incident had taken place. It is clear from the record of the case that the clear description of the place of incident is mentioned in various documents as well as evidence of prosecution witnesses. As per prosecution case, the incident of dacoity took place at the Bus stand which was situated in front of the Akshardham Metro Station. It is clear from the perusal of the contents of DD Ex PW9/A that in the very first information given by the complainant about the incident, the clear description of the said place of incident has been mentioned. It is further clear from the evidence of the officials of PCR and investigation team members that they had visited the said spot only, after they got the information of incident. It is further clear that complainant had firstly met the PCR officials at said place of incident. Thus, there is no doubt about the identity of place of incident. Therefore, under these circumstances, it is clear that FIR No.263/2011 State Vs.Naeem etc. Page no. 68 of 81 the IO could have prepared the site plan only on basis of the specifications provided by the complainant/PW1. It cannot be assumed that complainant was not present at the spot merely for the reason the site plan doesn't bear the signature of the complainant. As far as presence of the complainant at the spot is concerned, overwhelming evidence is available on record which has already been discussed while analyzing the evidence of the prosecution witnesses.
37. Ld. Defence counsel further submitted that as per prosecution case Ct. Waleem was one of the police officials who was also on duty at New Ashok Nagar Check Post, however, he has not been examined by the prosecution and non examination of this witness creates doubt about the authenticity of the prosecution case. As per prosecution case, at the time of apprehension of accused persons, PW5 Ct. Ashok and Ct. Waleem were on duty at the picket of New Ashok Nagar Metro Station. It is clear that one of the police officials who was on duty at the place of the apprehension of the accused persons has been examined by the prosecution as PW5. It is also clear that Ct. Waleem was also cited a witness in the list of witnesses and he was also summoned for his evidence on 02.04.2019. On 02.04.2019, it was submitted by Ld. Addl.P.P. that he doesn't wish to examine Ct. Waleem as another witness (PW5 Ct. Ashok) of the same facts has already been examined. Thus, keeping in view of the these facts and circumstances, the witness Ct. Waleem was not examined and FIR No.263/2011 State Vs.Naeem etc. Page no. 69 of 81 allowed to be dropped. Since, one of the witnesses of the same facts was already examined by the prosecution, therefore, under these circumstances, dropping of another witness of the same facts was considered to be justified and as such, no adverse inference can be drawn against the prosecution for non examination of the said witness.
38. Ld. Defence counsel has also pointed out some more contradictions in regard to the timings specified by different witnesses qua the same facts. Ld. Counsel submitted that during cross examination PW3 and PW6 have mentioned different timings about the receipt of the information of the offence. There seems to be no substance in this submission as there is no contradiction in this regard in their testimony. It is clear that PW3 is the police official who was on duty at PCR concerned and it is also clear that he has not mentioned the said timings (12.15 a.m) regarding the receipt of the information of the offence and he has mentioned the said timings which is about the apprehension of the accused persons. It is further clear that PW6 who was on duty at Mobile Motorcycle has mentioned the said timings(12.30 a.m) when he was given the information about the offence. Thus, both these witnesses have specified the timings about the different aspects of the matter. As per well settled procedure the call made at 100 number is received at the PHQ and from there the relevant information is immediately passed on to the PCR on duty in the area concerned and on receipt of the said information PCR visits FIR No.263/2011 State Vs.Naeem etc. Page no. 70 of 81 the spot for necessary action. It is also clear from the evidence of the complainant that immediately after the incident, he had called at 100 number and within two to three minutes PW3 had reached at the spot in his PCR van. It is also clear that PCR officials had also flashed a wireless message for detaining the car of the offenders and due this swift action, the car of the accused persons was stopped and they were apprehended and this information was also passed on to the PW3 and it is clear that he has mentioned the timings i.e.12.15 am which was not about the occurrence of the incident and which was about the receipt of the information about the apprehension of the accused persons. On the other hand PW6 who was on mobile motorcycle duty has mentioned the time (12.30 am) when he got the information about the incident.
39. It was further submitted that PW8 who is the member of investigation team deposed that they received the DD (recorded about the incident) at about 12.40 a.m but in this regard PW9 stated that the said information was received at about 12.15 a.m. Perusal of the record shows there is no contradiction on this aspect as it is clear from the evidence of both these witnesses that both of them stated that they received the DD about the incident at about 12.40 am. There is no contradiction about the time of receipt of the DD in the evidence of both these witnesses. During his cross examination, PW9 has clarified this aspect and stated that he was already present in the area to attend another call and at about 12.15 am, he was telephonically informed about the incident and FIR No.263/2011 State Vs.Naeem etc. Page no. 71 of 81 then he directly went the spot and he reached there at about 12.40 am. Thus, the time of 12.15 am has been mentioned by the PW9 regarding his receiving information about the incident and not about the timings of the receipt of the DD entry.
40. Ld. Defence counsel has also pointed out some more contradictions which are also about the timings of certain aspects of the matter. Ld. Counsel submitted that PW2 and PW8 have mentioned different timings of departure of PW8 from the police station after registration of FIR. It was submitted that as per PW2, PW8 left the PS at about 4.30 a.m while PW8 stated that after registration of the FIR, he reached the spot at about 4.30 a.m. It was also submitted that PW9 stated that he reached at the spot at about 12.40 am and remained there for about 15 minutes, however, PW5 has deposed that at around 12.40 am PW9 was present at New Ashok Nagar Metro Station (the place of apprehension of the accused persons). These variations pointed out by Ld. Defence counsel can be said to be minor variations which could be because of lapse of time. It is well settled that there could always be normal discrepancies even in the testimony of a truthful witness which could be due to lapse of time. In regard to the normal discrepancies in the case of State of Rajasthan Vs. Kalki, AIR 1981 SC 1390 that the Hon'ble Supreme Court has observed as follows: 'in the deposition of witnesses there are always normal discrepancies, however honest and truthful they may FIR No.263/2011 State Vs.Naeem etc. Page no. 72 of 81 be. It was further observed that these discrepancies are due to normal errors of observations, normal errors of memory, due to lapse of time and due to mental disposition such as shock and horror at the time of occurrence and the like.'
41. It is also well settled law that while analyzing the evidence court must not give undue Importance to the minor discrepancies. In this regard the observations made by Hon'ble Supreme Court in the case of Jugendra Singh vs State of U.P., reported as AIR 2012 SC 2254, are relevant here which are as follows: "The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal efforts of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story.
The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy."
42. It is clear from the record that the prosecution FIR No.263/2011 State Vs.Naeem etc. Page no. 73 of 81 witnesses were cross examined by Ld. Defence Counsels at length, however, no material contradiction has surfaced on record to disbelieve or discredit their testimonies. The contradictions which have emerged are insignificant and are insufficient to discredit the testimony of the prosecution witnesses and cannot be given undue importance in view of the legal position already discussed. It is further clear that the complainant has corroborated his complaint on all the material points i.e. regarding the identification of the accused persons, their complicity in the offence, the use of knife and ustra by the accused persons in commission of offence and also in regard to the recovery of his belongings and weapons of the offence. It is clear from the evidence led by the prosecution in the present case that the contradictions pointed out by the Ld. Defence Counsel are of trivial nature which are natural and possible due to lapse of time. These minor contradictions and minor variations cannot be given undue importance as they do not affect core of the case in any manner. Therefore, the case of the prosecution which has been very well proved by the overwhelming evidence led by the prosecution can neither be disbelieved nor can be discarded due the aforementioned minor variations pointed out by Ld. Defence counsel.
43. The statements of the accused persons were recorded under section 313 Cr.P.C. to explain the above detailed incriminating circumstances which have come on record against FIR No.263/2011 State Vs.Naeem etc. Page no. 74 of 81 them. As already discussed the accused persons have claimed false implication and taken the plea of alibi; however, they have not led any evidence to establish that the police officials had lifted them from the places mentioned by them and then implicated them in this case. They have also not brought any evidence on record to show that they had animosity with the police officials as claimed by them. The complainant has neither claimed any acquaintance with the complainant nor any animosity, thus, there seems to be no other reason for the complainant to depose against the accused persons except that they had committed dacoity with him in the manner deposed by him before the court. There is one very important aspect of the matter which is also required to be mentioned here. Prosecution has proved on record that the car which was used by the accused persons in commission of offence was also recovered from there possession. This car was got released by the superdar on superdari and it is clear from the record that superdar has not raised any kind of protest either before this court or at any other forum that his car has been misused by the police to falsely implicate the accused persons. In case, the said car was also planted upon the accused, then accused ought to have explained the reason as to why the superdar let the police use his car for their false implication. Again the accused persons are completely silent on this aspect. They have not explained as to why the superdar let the police misuse his vehicle if the same was not used by them in the offence. Furthermore, till date the accused persons have not raised any FIR No.263/2011 State Vs.Naeem etc. Page no. 75 of 81 protest against their alleged false implication which shows that they have taken this plea for the sake of plea and there is no substance in it.
44. In view of the aforesaid discussions, it is held that prosecution has successfully established the charges against all the accused persons (Naeem, Abdul Nanhe, Abdul Haq and Danish) that they with their common intention committed dacoity with the complainant Prashant Sharma and looted him on the date, time and place as deposed by the complainant in his testimony and during commission of the offence, accused Abdul Nanhe used an ustra and accused Danish used a knife (deadly weapons). They had also altered the number plate of the car used by them in the offence with a view to conceal the real registration number of the car in order to hide their identity and escape without being apprehended. It is further clear that accused persons were apprehended after a short while of incident and cash amount of Rs.2900/, RC/wallet of the complainant alongwith his Icard as well as the knife used by the accused Danish and Ustra used by accused Abdul Nanhe were recovered from the possession of accused persons.
45. In view of the aforesaid discussions, the accused Naeem, Abdul Nanhe, Abdul Haq and Danish are held guilty u/s 395/34 IPC for committing dacoity with the complainant and they FIR No.263/2011 State Vs.Naeem etc. Page no. 76 of 81 are convicted accordingly. The accused Abdul Nanhe and Danish are separately held guilty u/s 397 IPC for using deadly weapons (ustra and knife) while committing the offence of dacoity and they are convicted accordingly. Since the accused persons had knowingly altered the registration number of the Swift car used by them in the commission of the offence, thus, all the four accused persons namely Naeem, Abdul Nanhe, Abdul Haq and Danish are also held guilty u/s 482/34 IPC and convicted accordingly.
46. Since accused Abdul Nanhe and accused Danish used deadly weapon while committing dacoity therefore, separate charges were framed against both the accused persons u/s 25 Arms Act. The prosecution has established on record that accused Abdul Nanhe had used ustra and accused Danish had used a knife while committing dacoity with the complainant. Now it is to be seen whether both the weapons used and possessed by these accused persons comes within the category of prohibited weapons (knives) and for this purpose the contents of the relevant notification issued by Delhi Administration are required to be seen. The contents of the aforesaid relevant notification reads as under: "NOTIFICAITION DATED 17.02.79 No.E.13/203/78. HOME (G): Whereas the administration, is of the opinion that having regard for the circumstances prevailing FIR No.263/2011 State Vs.Naeem etc. Page no. 77 of 81 in the Union Territory of Delhi, it is necessary and expedient in the public interest that the acquisition, possession and carrying of spring actuated knives, Graridar, Buttondar knives or other knives which open or close with the any other mechanical devices with a blade of any size or folding knives with a sharp edged blade 7.12 cm or more in length and 1.72 cm or more in breadth in public place should be regularized.
Now therefore, in exercise of the power of the conform by section 4 of Arms Act 1959 read with the Govt of India, Ministry of Home Affairs, Notification No.2/2/69/H.T.A (1) dated the 21 st June and in suppression of the Administration Notification No.F13(71)/78. Home (G) dated the 10 th may 1978, the administration hereby directed that the said section 4 of the arms Act 1959 shall apply to the said territory with effect from the date of publication of this notification, in the Delhi Gazette in respect of acquisition possession, carrying of the said arms in public place only.
By order and in the name of the administration of the Union territory of Delhi.
Sd/ (Jai Shri Raghu Ram) Under Secretary, Home(General) Delhi Administration, Delhi No.13/203/78 HOME(General) Dated 17/19.02.1979"
47. It is clear from the perusal of the aforesaid notification that the ustra is not covered within the category of prohibited FIR No.263/2011 State Vs.Naeem etc. Page no. 78 of 81 weapons (knives). It is further clear from the perusal of the aforesaid notification that all the buttondar knives as well as other knives which open and close with the use of any mechanical device fall within the category of prohibited knives. Besides, the other knives which are having the sharp edge blade of 7.12 cm length or more and also having 1.72 cm breadth or more also fall within the category of prohibited knives. In the present case, the knife of small size (Ex.P2) was recovered from the possession of accused Danish and as per record, neither the knife is a buttondar knife nor it has been mentioned that it opens or closes with the help of a mechanical device and the length of its blade is 5.6 cm which is lesser than the requisite length. Thus, in view of these discussions, it is held that neither the ustra recovered from accused Abdul Nanhe nor the knife recovered from accused Danish falls within the prohibited category of knives. Accordingly, accused Abdul Nanhe and Danish are acquitted from the charges u/s 25 Arms Act.
48. As per prosecution case, the RC of the motorcycle of complainant was recovered from accused Naeem and cash amount of Rs.2900/ was recovered from accused Abdul Farooq. Thus, additional charges have been framed against both these accused persons u/s 412 IPC. The provisions of section 412 IPC reads as under: 'dishonestly receiving property stolen in the commission of a dacoity - Whoever dishonestly FIR No.263/2011 State Vs.Naeem etc. Page no. 79 of 81 receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits property which he knows or has reason to believe to have been stolen, shall be punished with imprisonment for life or with RI for a term which may extend to ten years and shall also be liable to fine'.
49. The accused Abdul Farooq absconded during the pendency of this case and he has already been declared a proclaimed offender, thus, at this stage, the case of the prosecution as far as the charges u/s 412 IPC is concerned, is required to be considered only qua accused Naeem. The recovery of RC of the motorcycle of the complainant from the possession of accused Naeem has been proved on record by the prosecution. Though the recovery of the RC of the motorcycle of the complainant has been proved by the prosecution, however, it is well settled law that the accused who is guilty of committing dacoity (u/s 395 IPC) cannot be simultaneously convicted u/s 412 IPC for the reason of recovery of looted articles from his possession as he himself cannot be called to be the receiver of the looted property. In this regard, this Court is supported by the Judgement of Hon'ble Delhi High Court titled as Abdul Qayum Vs State reported as 2017 (6) AD (Delhi) 424. As such, in view of the settled law, accused Naeem cannot be held guilty u/s 412 IPC. Accordingly, he is acquitted from the charges u/s 412 IPC.
FIR No.263/2011 State Vs.Naeem etc. Page no. 80 of 81
50. In view of these discussions, the accused Naeem, Abdul Nanhe, Abdul Haq and Danish have been held guilty u/s 395/482/34 IPC and accused Abdul Nanhe and Danish have been separately held guilty u/s 397 IPC and all these accused persons have been convicted accordingly.
51. Accused Abdul Frooq is a Proclaimed Offender in this case. Thus prosecution is granted liberty to have the case revived as and when accused Abdul Farooq (Since P.O.) is re arrested.
Digitally signed by AJAY AJAY GUPTA
Announced in the open GUPTA
Date:
2022.04.18
17:31:20
court on 18.04.2022. +0530
(Ajay Gupta)
Addl. Sessions Judge05(East)
Karkardooma Courts,Delhi.
FIR No.263/2011 State Vs.Naeem etc. Page no. 81 of 81