Delhi District Court
State vs Ajay @ Pawwa @ Sunil on 30 April, 2024
IN THE COURT OF ADDITIONAL SESSIONS JUDGE
(FAST TRACK COURT), SOUTH-WEST DISTRICT,
DWARKA COURT, NEW DELHI
Presided by: Mr. Sharad Gupta
Sessions Case No. 441299/2016
CNR No. DLSW01-004801-2016
FIR No. : 235/2016
Police Station : Binda Pur
Under Section : 394/450/411 IPC
In the matter of :
State
versus
1. Ajay @ Pawwa @ Sunil
S/o Late Sh. Parash Nath,
R/o H-472, Y-Block, Jhuggi Loha Mandi,
Naraina, New Delhi.
2. Sandeep Kumar @ Sunny
S/o Sh. Vinod Kumar,
R/o A-1/7, Om Vihar Phase-5,
Uttam Nagar, New Delhi.
Date of institution : 08.07.2016
Date of conclusion of arguments : 16.04.2024
Date of judgment : 30.04.2024
Decision : Accused Ajay @
Pawwa Convicted.
Accused Sandeep
Kumar @ Sunny
acquitted.
JUDGMENT
1. The accused Anil Kumar is facing trial on allegations that on 15.03.2016, at about 07.00 am, at H.No. E-83 State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 1 of 25A, Om Vihar Extension, Uttam Nagar, New Delhi, he alongwith his associate (since facing proceeding before JJB concerned) committed house tress-pass for the purpose of robbery and committed the robbery of gold neck chain, gold ring and gold ear rings from the complainant Ms. Manju Sharma and while committing the said robbery, he caused hurt to the complainant Ms. Manju Sharma, for commission of offences U/s 394/450 IPC.
Accused Sandeep Kumar @ Sunny is facing trial on the allegations that on 09.05.2016, he was found in possession of a gold neck chain, belonging to the complainant, knowing and having reasons to believe the same to be a stolen property, for commission of offence U/s 411 IPC.
CASE OF PROSECUTION
2. The case of the prosecution as gleaned from the charge-sheet is that on 15.03.2016, on receipt of PCR call vide DD no. 8A, SI Mukesh Kumar alongwith Ct. Mahender reached at the spot i.e. E-83 A, Om Vihar Extension, Uttam Nagar, New Delhi, where he came to know that the injured had already been shifted to Hospital. The IO reached at the hospital where he recorded the statement of the complainant Ms. Manju Sharma. Ms. Manju Sharma disclosed that while she was taking her scooty out of parking of her house, two persons came, one of whom was tall and the other was short. That the tall person came behind her and pressed her neck, while the other person snatched her gold chain, gold ring and gold ear top forcibly. She was taken to hospital. IO prepared rukka and got the present FIR registered through Ct. Mahender. During investigation, the IO State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 2 of 25collected the MLC of the injured, prepared site plan, recorded the statements of witnesses and made efforts to trace the accused persons. On 08.05.2016, accused Ajay @ Pawwa was arrested in case FIR no. 342/2016 U/s 392/411/34 IPC, wherein he made disclosure statement regarding the commission of the offence in the present case. Accused Ajay @ Pawwa was formally arrested in the present case. On the basis of the disclosure statement of accused Ajay @ Pawwa, accused Sandeep Kumar @ Sunny was apprehended and at his instance, one gold chain, robbed from the complainant, was recovered from his house. The gold chain was seized in the present case. The IO moved an application for TIP of accused Ajay @ Pawwa and during the TIP proceedings, the complainant correctly identified accused Ajay @ Pawwa. On 09.05.2016, CCL "S" @ "M" was apprehended in case FIR no. 355/2016, PS Binda Pur, U/s 356/379/411/34 IPC, wherein he made disclosure statement regarding the commission of offence in the present case. CCL "S" @ "M" was formally arrested in this case. An application for TIP of CCL "S" @ "M" was moved by the IO and during the TIP proceedings, he was correctly identified by the complainant. CCL "S" @ "M" was later on declared CCL by the concerned Magistrate and the PIR report was filed before the concerned JJB. On 04.06.2016, the complainant correctly identified the gold chain during the TIP proceedings of the case property. After completion of investigation, charge-sheet was filed against accused Ajay @ Pawwa for commission of offences punishable under Section 394/450/34 IPC and against accused Sandeep Kumar @ Sunny for commission of offences punishable under Section State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 3 of 25394/450/411/34 IPC.
COURT PROCEEDINGS
3. In light of the police report and the documents filed alongwith the same, cognizance was taken vide order dated 08.07.2016 passed by the learned Metropolitan Magistrate.
4. After complying with the provisions of Section 207 of Cr.PC, the learned Metropolitan Magistrate, vide order dated 22.07.2016, committed the case for trial to the Court of Sessions.
5. Vide order dated 22.10.2016, accused Ajay @ Pawwa was charged with commission of offence under Section 394/450 IPC and accused Sandeep Kumar @ Sunny was charged with commission of offence under Section 411 IPC. The case was received by way of transfer by this Court on 02.12.2022. The undersigned took charge of the Court on 20.03.2024.
ADMISSION/DENIAL OF DOCUMENTS
6. Statement of accused persons under Section 294 of Cr.P.C. was recorded on 22.05.2023 in which they admitted the following document(s):
1) FIR no. 235/2016 PS Binda Pur as Ex.A1.
Subsequent thereto on 01.08.2023, statement of accused persons under Section 294 of Cr.P.C. was again recorded on 01.08.2023 in which they admitted the following documents:
1) TIP proceedings of the case property dated 04.06.2016 as conducted by Sh. Vaibhav Mehta State Vs. Ajay @ Pawwa & Anr.FIR No. 235/2016 PS Bindapur Page 4 of 25
as Ex.PW2/3.
2) TIP proceedings of accused Ajay @ Pawwa @ Sunil dated 12.05.2016 as conducted by Sh.
Abhishek Kumar as Ex.PW2/2.
7. The accused persons stated that they do not dispute the contents and genuineness of the said documents and have no objection if the said documents are admitted in evidence without calling the said witnesses for their examination.
PROSECUTION EVIDENCE
8. To prove the charge against the accused, the prosecution has examined as many as seven (7) witnesses.
9. PW-1 Dr. G. Adhikari, proved the MLC of injured Ms. Manju Sharma, prepared by Dr. Sindush as Ex.PW1/A. He was cross-examined by the learned counsel for the accused.
10. PW-2 Ms. Manju Sharma is the victim in the present case. She deposed that on 15.03.2016, at about 7:00 a.m., she was taking out her scooty from the parking of her house when two persons came there. She identified accused Ajay as one of those two boys. She stated while pointing towards accused Ajay @ Pawwa that he came to her backside and pressed her neck, while the other person who was accompanying him had taken out her gold chain, gold ring and gold ear tops forcefully. She added that due to pressing of her neck, she became semi- conscious. She stated that the accused persons left her on the floor and when she regained consciousness, she shouted and called the police. She stated that police took her to Mahendru State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 5 of 25hospital. She stated that she had given her complaint Ex.PW2/1 to the police. She deposed that she had shown the spot to the police and at her instance, the site plan was prepared. She stated that she had identified accused Ajay @ Pawwa in the TIP proceedings vide Ex.PW2/2. She added that subsequently, she had also identified her gold chain in the court during the TIP proceedings vide proceedings Ex.PW2/3. The gold chain was taken by her on superdari vide superdarinama Ex.PW2/4. She produced the gold chain in the court and it was exhibited as Ex.P1. She added that it was the same gold chain which was snatched by accused Ajay @ Pawwa alongwith his associates on the date of incident. PW-2 Ms. Manju Sharma was cross- examined by the learned defence counsels in her cross examination by ld. Counsel for accused Sandeep. She stated that the gold chain did not bear any special mark for identification. That the chain was gifted to her by her son and she was not having bill of the said chain. In her cross examination by ld. Counsel for accused Ajay @ Pawwa, she stated that she was at the gate of her parking at the time of incident. That she had told the police that when a boy pressed her neck from back side, she started loosing her consciousness. She admitted that after the incident, she fell down on the floor. She stated that her gold chain was snatched and no effort was made by the accused to open the kunda (lock) of the chain. She admitted that the chain which she had brought on that day was in the same condition in which she received it from police station. She also admitted that the chain brought by her on that day was not broken.
11. PW-3 Head Constable Anil assisted IO SI Mukesh State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 6 of 25Kumar in the investigation of the case. In his presence, on 09.05.2016, the IO had formally arrested accused Ajay @ Pawwa in the present case vide memo Ex.PW3/A. Accused Ajay @ Pawwa made a disclosure statement vide Ex.PW3/B. One day PC remand of accused Ajay @ Pawwa was taken by the IO and during the PC Remand, accused Ajay @ Pawwa got apprehended his co-accused Sandeep. He stated that accused Ajay @ Pawwa took them to A-1/7, Om Vihar, Phase-V, Uttam Nagar, Delhi where they met accused Sandeep at his house. IO made enquiry from accused Sandeep and accused Sandeep made a disclosure statement Ex.PW3/C. Accused Sandeep got recovered a gold chain from the bedroom of his house. The gold chain was sealed and seized vide memo Ex.PW3/D in the present case and accused Sandeep was arrested vide memo Ex.PW3/E. He was cross- examined by the learned counsel for the accused.
12. PW-4 ASI Ramesh Chand is the duty officer who had received the QST from Operator and on the basis of the same, he recorded DD no. 8A, Ex.PW4/A which was handed over to SI Mukesh and Ct. Mahender who departed for the place of incident.
13. PW-5 Ct. Mahender Kumar assisted the IO. He stated that on 15.03.2016, he alongwith the IO reached at the spot upon receipt of the information vide DD no. 8A where they came to know that injured had been taken to Mahendru hospital. He alongwith IO reached Mahendru hospital where complainant Manju Sharma met them and gave her statement regarding State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 7 of 25robbery of her jewellery. IO prepared the rukka. After preparation of the rukka, the same was handed over to him for registration of the FIR. He got the FIR registered. On 08.05.2016, he alongwith Ct. Devender were on patrolling duty at main Matiala Road, Shukar Bazar. They noticed one person coming on motorcycle without number plate at about 6.00 pm. They stopped the said person near Verma properties and on enquiry, he could not produce ownership proof of the motorcycle. Intimation was given in the PS. IO came at the spot to whom he handed over the custody of accused Ajay @ Pawwa. Separate case bearing FIR No.342/16 PS Bindapur was registered against accused Ajay @ Pawaa wherein he made disclosure statement vide memo Mark PW5/A. IO seized the motorcycle in the said FIR. He was cross-examined by the learned counsel for the accused.
14. PW-6 Ct. Devender had also assisted the IO. He deposed that on 08.05.2016 while he and Ct. Mahender were on area patrolling duty, they noticed one person coming from Matiala side on Pulsar motorcycle without number plate. He was stopped near Verma Property. On asking he could no produce ownership documents of the motorcycle. PW6 suspected that the said person was involved in an accident of robbery which happened about four days back and his face was apparently similar as seen in the CCTV footage of the said incident. He gave information at the PS and SI Mukesh came at the spot. The said person was appreheneded and disclosed his name as Ajay @ Pawwa. The accused was arrested in his presence by SI Mukesh State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 8 of 25Kumar, in case FIR no. 342/2016 vide arrest memo Ex.PW6/A. The accused gave disclosure statement vide Ex.PW6/B. The case property in FIR No.342/16 was seized by the IO. On the next day, the accused was arrested in this case vide memo Ex.PW3/A. His disclosure statement was recorded vide Ex.PW3/B in this case. The accused led police officials to jeweller shop at Om Vihar, Phase-IV where accused Sandeep met them. He was interrogated by the IO. Accused Sandeep led them to his house i.e. WZ-17, Phase-IV, Uttam Nagar, Delhi from where he produced one chain and stated that same was given by the accused. Accused Sandeep was arrested vide memo Ex.PW3/E, was personally searched vide memo Ex.PW6/C and his disclosure statement was recorded vide Ex.PW6/D. IO seized the chain vide memo Ex.PW3/D after putting the same in the match box which was converted into a pullanda and was duly sealed with the seal of MK. He identified both the accused in the court and identified the chain from its photograph Ex.PW6/1. PW6 was cross examined by ld. Counsel for both the accused. In his cross-examination by ld. Counsel for accused Sandeep, he stated that public persons were asked to join the investigation on 09.05.2016 but they refused and left without disclosing their names and addresses. That no site plan of place of recovery of gold chain was prepared in his presence. He did not remember to whom seal was handed over by the IO. In his cross examination by ld. LADC for the accused Ajay @ Pawwa, he stated that no public persons were joined in the investigation of this case on 08.05.2016.
15. PW-7 Inspector Mukesh Kumar is the IO of the State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 9 of 25case. He deposed that on 15.03.2016, on receipt of DD No. 8A Ex. PW4/A, he alongwith Ct. Mahender reached at the spot i.e. H. No. E-83A, Om Vihar Extension, Uttam Nagar, where he came to know that the injured had already been shifted to Mahendru Hospital. The IO reached at Mahendru hospital where he recorded the statement of the complainant Ex. PW2/1, on the basis of which he prepared the rukka Ex. PW7/A and got the FIR registered through Ct. Mahender. He obtained the MLC of injured Ms. Manju Sharma, Ex. PW1/A and prepared site plan, Ex. PW-7/B. He further deposed that on 08.05.2016, accused Ajay @ Pawwa was arrested by him in case FIR No. 342/16, PS Bindapur as he was the investigating officer of that case. He stated that accused Ajay @ Pawwa was apprehended by Ct. Mahender and Ct. Devender and he arrested accused Ajay @ Pawwa in the said FIR vide memo Ex. PW6/A. He stated that accused Ajay @ Pawwa made disclosure statement Ex. PW6/B regarding his involvement in the present case. On 09.05.2016, he arrested the accused in the present case vide Ex. PW3/A and recorded his disclosure statement Ex. PW3/B. Accused Ajay @ Pawwa led them to the house of jeweller Sandeep at H. No. A- 1/7, Om Vihar, Phase-V, Uttam Nagar, where accused Sandeep met them. Accused Sandeep was interrogated and he got recovered one gold chain from his house. The gold chain was sealed after putting the same in a matchbox which was converted into a pullanda and was seized vide Ex.PW3/D. Accused Sandeep was arrested vide Ex. PW3/E and his personal search was conducted vide Ex. PW6/C. His disclosure statement was recorded vide Ex. PW6/D. He stated that accused Ajay @ Pawwa State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 10 of 25was produced before the Ld. MM for conducting his TIP proceedings and during the TIP proceedings, the complainant had correctly identified the accused. He also got conducted the TIP of case property. He also obtained the final opinion on the MLC of Manju Sharma which came to be simple in nature. He proved the certified copy of MLC as Ex.PW7/F. He stated that during investigation, one JCL "M" was also apprehended by him in the present case, however, PIR regarding him was filed before the Ld. JJB concerned. He stated that he recorded the statements of witnesses and after completion of the investigation, filed the charge-sheet in the court. He identified accused Ajay @ Pawwa in the court. Accused Sandeep was not present in court on that day and his identity was not disputed. He also identified the recovered gold chain from its photographs Ex.PW6/1. He was also cross-examined by learned defence counsel. In his cross examination by ld. Counsel for accused Sandeep @ Sunny, he stated that no public witness was joined during recovery of gold chain. That house of accused was surrounded by many other residential houses. That he did not remember to whom he handed over the seal after sealing the case property. After seeing the file, he stated that he did not remember if he had prepared memo of handing over the seal. He stated that hook of gold chain was broken as stated by the complainant. In his cross examination by ld. LADC for accused Ajay @ Pawwa, he stated that the accused was not shown to the complainant in the present case.
DEFENCE OF THE ACCUSED
16. In his statement recorded under Section 313 Cr.PC, State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 11 of 25accused Ajay @ Pawwa denied all the incriminating evidence against him. He claimed innocence and stated that he has been falsely implicated in the present case as well as in other criminal cases by the police to save the real culprits in connivance with his enemies. Accused Ajay @ Pawwa preferred not to lead any evidence in his defence.
17. In his statement recorded under Section 313 Cr.PC, accused Sandeep Kumar @ Sunny denied all the incriminating evidence against him. He claimed innocence and stated that he has been falsely implicated in the present case. He stated that nothing was recovered from him and the gold chain has been wrongly identified by the complainant. He stated that his signatures have been obtained on various documents under pressure at the police station. Accused Sandeep Kumar @ Sunny also preferred not to lead any evidence in his defence.
18. The record has been carefully perused. The respective submissions of learned SPP for the State and Sh. V. S. Chauhan, learned deputy legal aid defence counsel for accused Ajay @ Pawwa and Sh. Neeraj Dahiya, Ld. Counsel for accused Sandeep @ Sunny have been duly considered.
Relevant provisions of law
19. Before proceeding any further, it would be appropriate to refer to the relevant provision of the offences, the accused have been charged with.
Section 394 IPC reads as under:
"394. Voluntarily causing hurt in committing robbery - If State Vs. Ajay @ Pawwa & Anr.FIR No. 235/2016 PS Bindapur Page 12 of 25
any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also be liable to fine".
To establish commission of offence under Section 394 IPC, the prosecution is required to establish that the accused was one amongst others in committing or attempting to commit robbery, that the accused caused hurt to any other person while doing so and that he caused hurt voluntarily.
Section 450 IPC reads as under:
"450. House-trespass in order to commit offence punishable with imprisonment for life - Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment for life shall be punished with imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine".
To establish commission of offence under Section 450 IPC, the prosecution is required to establish that the accused committed house-trespass as envisaged in Section 442 IPC and that the purpose of such house-trespass was to commit an offence punishable with imprisonment for life.
Section 411 IPC reads as under:
"411. Dishonestly receiving stolen property - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term State Vs. Ajay @ Pawwa & Anr.FIR No. 235/2016 PS Bindapur Page 13 of 25
which may extend to three years, or with fine, or with both".
To establish commission of offence under Section 411 IPC, the prosecution is required to establish that the accused received or retained stolen property with dishonest intention and he did so knowing or having reason to believe that the said property was stolen.
Evidence adduced to establish commission of offence of voluntarily causing hurt in committing robbery and house trespass in order to commit offence punishable with imprisonment for life.
20. To establish the commission of offences under Section 394/450 IPC, the prosecution has examined 7 witnesses including the complainant and sole eye witness PW2 Smt. Manju Sharma. The prosecution in the present case was initiated on complaint of Smt. Manju Sharma vide Ex.PW2/1 in which she disclosed that on 15.03.2016 at about 7.00 am, she was taking out her scooty from the parking at ground floor at her house. In the meantime, two boys came inside the parking. One of the said boy was tall and the other was short. The tall boy suddenly came behind her and pressed her neck due to which, she started loosing consciousness. The short boy forcibly took away her gold chain, gold ear tops and her wearing gold ring.
21. Smt. Manju Sharma was examined in the court as PW2. PW2 during her examination in court stated that on 15.03.2016, at about 7:00 a.m., she was taking out her scooty from the parking of her house when two persons came there.
FIR No. 235/2016 PS Bindapur Page 14 of 25She identified accused Ajay as one of those two boys. She stated while pointing towards accused Ajay @ Pawwa that he came to her backside and pressed her neck, while the other person who was accompanying him had taken out her gold chain, gold ring and gold ear tops forcefully. She added that due to pressing of her neck, she became semi-conscious. She stated that the accused persons left her on the floor and when she regained consciousness, she shouted and called the police. She stated that police took her to Mahendru hospital.
22. PW2 identified accused Ajay @ Pawwa as per the person who had pressed her neck after going behind her. PW2 has been cross examined at length but her veracity could not be shaken. The stand of PW2 has been consistent during investigation and trial. The testimony of PW2 appears to be believable and credible and inspires the confidence of the court.
23. It is a matter of record that the accused Ajay @ Pawwa was apprehended on 08.05.2016 by PW6 Ct. Devender and Ct. Mahender Singh in FIR No.342/16. Accused was found in the possession of one motorcycle but he could not produce any documents of the said motorcycle. PW6 Ct. Devender suspected that the accused was involved in another case of looting as his face apparently resembled the offender as seen in CCTV footage of the said incident. Information was given to duty officer and thereafter PW7 Insp. Mukesh Kumar reached at the spot. The accused was arrested in FIR No.342/16 PS Bindapur.
24. On 09.05.2016, the accused was arrested in this case by PW7 Insp. Mukesh Kumar vide Memo Ex.PW3/A and State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 15 of 25his disclosure statement Ex.PW3/B was recorded. Further proceedings regarding recovery of one gold chain were conducted which are discussed in another part of this judgment.
25. Pertinent to the present adjudication, PW7 moved application for getting conducted TIP proceedings of the accused Ajay @ Pawwa vide Ex.PW7/C. TIP proceeding of the accused were got conducted vide Ex.PW2/2. It is a matter of record that the victim PW2 Smt. Manju Sharma identified the accused as the culprit during TIP proceedings Ex.PW2/2 dated 12.05.2016. Thus, the victim / complainant PW2 Smt. Manju Sharma consistently identified the accused during investigation and trial as the culprit. This fact also strengthens the case of the prosecution.
26. Furthermore, it is a matter of record that the victim was got medically examined. On her medical examination vide MLC Ex.PW1/A an abrasion was noticed on anterior aspect of her neck and abrasion and mild swelling was noticed on her left ring finger. The MLC thus establishes that the victim / complainant suffered injuries during commission of the offence. The injuries suffered by the victim are also consistent with the manner of commission of offence and thus the same also corroborates the prosecution version.
27. It is a matter of record that the nature of injuries on person of complainant were opined subsequently as simple injuries vide MLC certified copy whereof was exhibited as Ex.PW7/F. Thus the prosecution has been able to establish that the victim had suffered simple injuries during commission of the offence.
FIR No. 235/2016 PS Bindapur Page 16 of 2528. It is argued on behalf of the accused Ajay @ Pawwa that PW2 stated that the accused had come from behind and for this reason she could not have identified the accused Ajay @ Pahwa in the court or during TIP proceedings. It is thus argued that the prosecution version is not believable.
29. In this context, as already observed, the contention of PW2 Smt. Manju Sharma was that on 15.03.2016, she was taking her scooty from the parking of her house. At that time, two persons came there. Out of the said two persons, one of them identified by her as accused Ajay came from behind and pressed her neck while the other person accompanying accused Ajay robbed her jewellery articles. Thus, the accused Ajay and his accomplice had first come to the parking of house of PW2 Smt. Manju Sharma and thereafter, accused Ajay had moved behind her back and pressed her neck. Thus, the complainant / victim had ample opportunity to see the accused Ajay @ Pawwa and his accomplice. Thus, I am unable to agree with the contention of the accused that the victim PW2 did not have any opportunity to see the accused Ajay @ Pahwa.
30. Furthermore, it is a matter of record that even in her complaint Ex.PW2/1, the contention of Smt. Manju Sharma was that two boys had come to the parking of her house on the day of incident out of whom one boy was tall and the other was short and they were aged about 22 years. That the tall boy had suddenly come behind her and pressed her neck. After which, the other short boy had taken away her jewellary articles forcibly. Thus the tone and tenor of the complaint Ex.PW2/1 would also show that the victim had ample opportunity to see State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 17 of 25both the assailants and had seen both the assailants and had described one of the assailants who strangled her from behind as a tall boy and the other one as a short boy. Thus, the argument of the accused that PW2 Manju Sharma had not seen the accused Ajay @ Pawwa by face, is thus liable to be rejected.
31. It is argued on behalf of accused that the victim was unable to speak and this raises a suspicion as to how the statement of the complainant / victim was recorded by the IO. It is thus argued that the prosecution case is itself suspect. In this context, it would be fruitful to refer to the MLC of the victim Ex.PW1/A. The same records that the complainant complained of throat pain and difficulty in swallowing. Thus there is nothing on record to suggest that the victim was unable to speak or to recount the details of the incident to the IO. This argument of the accused is thus liable to be rejected.
32. The accused Ajay @ Pawwa took a plea of false implication during trial. In his statement under Section 313 Cr.P.C., he stated that he was falsely implicated in this case by police to save the real culprits in connivance with his enemies. However, the accused was unable to bring on record or to elicit anything in cross examination of prosecution witnesses to show that either the complainant or any of the police officials were inimical towards him. The accused has thus not been able to bring out anything to suggest the reason for his alleged false implication. The plea of false implication thus does not inspire confidence and does not appear to be believable.
33. Thus, to sum up the prosecution has been able to establish that the accused alongwith his accomplice (since State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 18 of 25facing proceedings before JJB concerned), came inside the house of complainant PW2 Manju Sharma when she was taking her scooty out of the parking. The accused Ajay @ Pawwa went to the back side of the victim/ complainant and pressed her neck, while his accomplice took away the gold chain, gold ring and gold ear tops of the victim forcibly. Prosecution has been able to establish that FIR Ex.A1 in this regard was got registered on complaint of PW2 Smt. Manju Sharma Ex.PW2/1. Prosecution has also been able to establish that the victim identified the accused as the culprit during TIP proceedings conducted vide Ex.PW2/2 dated 12.05.2016. The victim positively identified the accused as the culprit who had pressed her neck during the instance of robbery during TIP proceedings as well as in the court. Prosecution has also established that the victim suffered simple injuries during the course of incident and her MLC was prepared vide Ex.PW1/A. Evidence adduced to establish the commission of offence of receiving of stolen property by co-accused Sandeep Kumar @ Sunny.
34. The accused Sandeep Kumar @ Sunny is facing trial on allegation that on 09.05.2016 he was found in possession of one gold neck chain at his house at A1/7 Om Vihar, Phase-V, Uttam Nagar, New Delhi which had been snatched from the complainant about one and a half months back.
35. To establish its case, the prosecution has examined 7 witnesses. It is urged on behalf of the State that the gold State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 19 of 25chain was recovered from the house of co-accused Sandeep Kumar @ Sunny on 09.05.2016 pursuant to arrest of accused Ajay @ Pawwa on 09.05.2016 in this case. It is urged that accused Ajay had lead the police party to accused Sandeep Kumar @ Sunny and thereafter the accused Sandeep got recovered one gold chain from his house. The accused Sandeep was arrested in this case vide memo Ex.PW3/E and was personally searched vide memo Ex.PW6/C. His disclosure statement Ex.PW6/D was recorded and the gold chain got recovered at the instance of accused Sandeep Kumar @ Sunny was seized vide memo Ex.PW3/D. It is further submitted that the victim PW2 Ms. Manju Sharma identified the gold chain during course of TIP proceedings Ex.PW2/3. That she also identified the gold chain taken by her on superdari vide bond Ex.PW2/4 as Ex.P1. It is thus argued that the prosecution has been able to prove its case against accused Sandeep Kumar @ Sunny.
36. It is argued on behalf of accused Sandeep Kumar @ Sunny that the prosecution version regarding recovery of gold chain is highly suspicious. That as per recovery memo Ex.PW3/D the latch of the chain was found broken during recovery. That however, PW2 Ms. Manju Sharma during her cross examination stated that the chain brought by her i.e. Ex.P1 was not broken. She also admitted that the chain which she brought in the court was in the same condition in which she had received the same from the police station. It is thus argued that the prosecution case is doubtful.
37. It is further argued by the accused that public State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 20 of 25persons were not joined in the recovery proceedings despite the house of accused Sandeep Kumar @ Sunny being located in the residential locality. That the circumstance of the recovery itself are suspicious. That two disclosure statements of accused Ajay are on record. That as per the first disclosure statement Ex.PW5/A given by the accused Ajay in FIR No.342/16 he had sold the jewellary articles to one jeweller in Uttam Nagar. However, no particulars of the said jeweller were given in the said disclosure statement. That as per disclosure statement Ex.PW3/B given by the accused in this case, the accused disclosed that he had sold the jewellery to accused Sandeep Kumar who was having a shop in Som Bazar. That however, the recovery was effected from the house of accused Sandeep Kumar and there is nothing on record how the police officials went to the house of accused Sandeep Kumar and the prosecution version in this regard is inconsistent and doubtful. That as per PW3 HC Anil and PW7 Insp. Mukesh Kumar, accused Ajay @ Pawwa led police party to the house of accused Sandeep from where the recovery was effected. However, PW6 Ct. Devender stated that accused Ajay had led police officials to the shop of accused Sandeep from where accused Sandeep took the police officials to his house whence the recovery of the chain was effected. That however, PW6 and PW7 have given different addresses of the place from where the recovery was effected.
38. As regards the argument that the circumstances of recovery of gold chain are suspicious, it is a matter of record that the prosecution version regarding recovery of chain in State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 21 of 25question has not been consistent. As per PW3, the accused Ajay @ Pawwa took them directly to the house of accused Sandeep from where the recovery had been effected. However, as per PW6 Ct. Devender, the accused Ajay @ Pawwa had led them to the jeweller shop of accused Sandeep at Om Vihar from where the accused Sandeep had taken them to his house from where he got the chain in question recovered. However, PW7 Insp. Mukesh Kumar stated in his examination in chief that accused Ajay @ Pawwa directly led them to the house of accused Sandeep at H.No.A1/7, Om Vihar, Phase-V, Uttam Nagar where the accused Sandeep met them and got the chain recovered.
39. It is also a matter of record that while PW3 HC Anil and PW7 Insp. Mukesh Kumar disclosed that the recovery was effected from house of accused and gave the address of house of accused as H.No.A1/7, Om Vihar, Phase-V, Uttam Nagar, PW6 Ct. Devender gave the address of house of accused as WZ-17, Phase-IV, Uttam Nagar, Delhi from where the chain was got recovered as per his version. Thus, the stand of prosecution witnesses regarding recovery of the chain in question has not been consistent.
40. This fact assumes significance as the chain was stated to have been recovered with broken latch as per recovery memo Ex.PW3/D. PW7 Insp. Mukesh Kumar during his cross examination by accused Sandeep @ Sunny stated that the hook of the gold chain was broken as stated by the complainant. PW2 Smt. Manju Sharma stated in her cross examination by accused Sandeep that she was sure at the time of identification of her gold chain regarding its identity and the said chain was State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 22 of 25intact and was not broken. Furthermore, she stated that she had brought the chain in question in the same condition in which she received it from the police station and the chain produced by her in court was not broken. Furthermore, in her cross examination she also stated that her gold chain was snatched and no efforts was made by the accused to open the kunda of the chain.
41. It is pertinent to observe that the photographs of case property are on record as Ex.PW6/1. However, it is not clear from the same if the latch of the chain was broken or not at the relevant time.
42. Thus, as per the prosecution version and the recovery memo, the chain was broken at the time of its recovery while as per PW2 Smt. Manju Sharma the chain was intact at the time of its identification by her. She further stated that she had not made any alteration to the said chain and had produced the chain in court in the same condition in which it was received by her. There is nothing on record to explain the above discrepancy as to how the broken chain came to be repaired. This fact casts a doubt upon the prosecution version regarding recovery of stolen property.
43. Furthermore, as per prosecution version, the case property was duly converted into a white cloth pullanda which was sealed by the IO/PW7 Insp. Mukesh Kumar. However, during his cross examination PW7 was unable to say to whom he had handed over the seal after sealing of the case property and the said fact was also not mentioned in the chargesheet. Furthermore, no handing over memo of the seal was prepared in the present matter. Furthermore, the house of the accused State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 23 of 25Sandeep was admittedly located in a residential area. However, there is nothing on record to suggest that the investigating agency made any efforts to join any public witness during the recovery proceedings. PW7 in his cross examination stated that no public witness was joined during recovery of the gold chain. Pertinently, PW6 Cr. Devender and PW3 HC Anil during their cross examination stated that some public persons were asked to join the investigation but they refused. However, no such assertion was made by PW7 during his cross examination. Thus, the prosecution version has not been consistent even as to if any efforts were made to join public witnesses in the recovery proceedings and apparently no efforts were made by the investigating agency to join public witnesses in the recovery proceedings. The above circumstances when taken together render the prosecution version regarding the recovery highly suspect especially when a reasonable doubt has been created qua the case property i.e. gold chain itself.
44. To my mind, the prosecution has not been able to establish that the accused Sandeep dishonestly received or retained possession of gold chain knowing or having reason to believe the same to be stolen property.
45. It is argued on behalf of accused Ajay @ Pawwa that the recovery itself being doubtful and suspicious, the accused Ajay @ Pawwa is also entitled to benefit of the same. However, to my mind, the case of accused Ajay @ Pawwa and accused Sandeep stand on different footing. Accused Ajay @ Pawwa is facing trial for having trespassed in the house of complainant Manju Sharma and having robbed her jewellery State Vs. Ajay @ Pawwa & Anr.
FIR No. 235/2016 PS Bindapur Page 24 of 25articles and accused Sandeep is facing trial for receiving stolen property. The stand of the victim PW2 Manju Sharma has been consistent during investigation and trial and she identified the accused during TIP proceedings as well as in the court. Thus, merely because the recovery of case property has been deemed suspicious would not affect the veracity of prosecution version regarding accused Ajay @ Pawwa.
46. In view of above discussion, the accused Ajay @ Pawwa stands convicted for offence punishable under Section 394/450 IPC. However, the accused Sandeep Kumar is acquitted for the offence under Section 411 IPC giving him benefit of doubt. Bail bond furnished by accused Sandeep Kumar, except the bond furnished under Section 437A Cr.P.C. are cancelled and surety stands discharged. Surety bond of accused Sandeep under Section 437A Cr.P.C. is accepted in terms of Section 437A Cr.P.C.
Let the accused Ajay @ Pawwa be heard separately on point of sentence.
Announced in the open Court on 30th April 2024.
(SHARAD GUPTA) Additional Sessions Judge (Fast Track Court) South West District, Dwarka Courts/New Delhi.
It is certified that this Judgment contains Twenty Five (25) pages and each page bears my initials / signatures.
Digitally
signed by
SHARAD (SHARAD GUPTA)
SHARAD GUPTA
Additional Sessions Judge (Fast Track Court) GUPTA Date:
2024.04.30 South West District, Dwarka Courts/New Delhi. 17:22:13 +0530 State Vs. Ajay @ Pawwa & Anr.FIR No. 235/2016 PS Bindapur Page 25 of 25