Delhi District Court
S.C. No. 107/10 Fir No. 341/2009 State vs . Salahuddin & Anr. 1 /39 on 7 February, 2014
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.107/10
(Unique ID No.02403R0422062009)
FIR No.341/2009
PS: Saket
U/S: 307/326/392/411/34 IPC and
25 & 27 Arms Act.
State
Versus
(1) Sallauddin @ Raja @ Asik
S/o Allauddin
R/o C/o Sheikh Azad Jhuggi,
Near Samshan Ghaat, Ward No.2,
Mehrauli, New Delhi.
(2) Shambhu Saha @ Babi Saha
S/o Subir Kumar Saha
R/o 83, Pawan Road, Matni Mandir,
Khagra, Distt & P.S Berhampur,
Musirabad, West Bengal.
Date of Institution : 10.12.2009
Date of Institution in Session Court : 24.12.2009
Date of Pronouncement Order : 07.02.2014
JUDGMENT
1. The prosecution case, in brief, is that on 26.09.2009 at about S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 1 /39 3:30 p.m when Rupesh was going on his Motorcycle, he stopped near Laddo-Sarai T-Point on M.B. Road where he was attacked by both the accused persons with knives and they robbed his mobile phone and Rs. 20,000/- from him. Accordingly, an FIR under Section 326 I.P.C was recorded. The robbed mobile phone was traced to the accused person Shambhu Saha and he was arrested. He disclosed about Salauddin. They both got recovered purse of the injured, knives and shirt of Shambhu Saha from Jungle. Accordingly, charge-sheet was filed under Section 307/326/397/ 411/34 IPC and 25 and 27 of the Arms Act.
2. Since the offences under Section 307 and 397 IPC are exclusively triable by the Sessions Court, the matter was committed to this court.
3. Vide order dated 25.11.2011, charge was framed under Section 307/397/411/34 IPC against both the accused persons, to which they pleaded not guilty and claimed trial. S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 2 /39
4. Prosecution examined 15 witnesses in support of its case. 4.1 PW-1 Tarun Khurana - Nodal Officer, Bharti-Airtel Ltd, produced the Customer Application Form Ex. PW1/A, Call Detail Records of 26.09.2009 Ex. PW1/C and the Cell ID Chart Ex. PW1/D of the location of the mobile phone No. 9871399699, which was in the name of Symphony International. He also proved the Certificate under Section 65B of the Indian Evidence Act as Ex. PW1/E. 4.2 PW-2 Rupesh is the injured, who stated that he was working as Operation Executive in Symphony International. He stated that on 26.09.2009, he left for his office at about 9:00 a.m from his house and at that time he was carrying Rs. 6,000/- which belonged to his office. It being an Ashthmi, was half-day office and next day was a holiday. At about 1:30 p.m, he left his office and took Rs. 14,000/- more from his office. When he reached Laddo-Sarai, he parked his bike to a road side to drink water from a public Pyaoo. When he was in the process of parking his bike, a boy came there S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 3 /39 and touched pocket of his pant but he caught his hand. Thereafter, another boy came from behind, who gave him a knife blow on his right wrist. The first boy also started giving him knife blows. He started feeling giddiness and both the boys took out money from his pocket and ran inside the Jungle. He chased them and raised alarm. The boys turned back towards him and showed knives to him and proceeded towards him, at which he returned back, feeling frightened. He started his bike and drove it. When he reached near Ahinsa Sthal, Mehrauli, he again felt giddiness and stopped his bike. He called for help and laid on footpath. He stated that both the boys had taken Rs. 20,000/- from his pocket and his Nokia mobile phone model - 2300 having phone mobile No. 9871399699. Somebody informed his wife, who informed his brother. After sometime, his brother reached at the spot. One of the public persons told him that he was a policeman and asked about the incident from him. He was taken to Batra hospital in Ambulance where he was operated upon and spent Rs. 3.5 lacs in his surgery. He stated that his statement was recorded on 04.10.2009 which he proved as Ex. PW2/A. After about 10-20 days of his discharge S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 4 /39 from the hospital, IO informed that one of the boys was apprehended. He went to Tihar for TIP of that boy, whom he identified as accused Sallauddin. He also identified him in the court. After about 10-12 days, he got information regarding apprehension of another boy. He again went to Tihar Jail for his TIP and identified that boy also, whom he identified in the court also as accused Shambhu Saha. He stated that he also identified his purse and mobile phone in TIP proceedings. He proved taking his purse Ex. P-1 on superdari from court vide superdiginama Ex. PW2/B and his motorcycle No. DL 3S BL 3431 Ex. P-2 vide superdiginama Ex. PW2/C. He also identified his mobile phone Ex. P-3 and knives Ex. P-4 and P-5 in the court. On being led by the Ld. Prosecutor, he stated that he had sustained injuries on his lower back, upper arms of right shoulder, right wrist inside, left hand forefinger and on upper side of his back. He also identified his clothes, which were seized in the hospital. The clothes were exhibited as P-6 to P-9. In his cross-examination, he stated that he had told about taking Rs. 14,000/- from his office in his statement to the police but he was confronted with the statement Ex. PW2/DA S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 5 /39 wherein it was not so recorded. He was also confronted with his statement wherein the words 'chasing after the accused persons' were not mentioned. He denied the suggestion that he had not seen the accused persons, who inflicted knife blows on him. He stated that police had not shown him the accused persons either at the PS or at Patiala House Courts before TIP of the accused persons at Tihar Jail. He also denied the suggestion that he had identified the accused persons as well as the case property at the instance of the IO.
4.3 PW-3 Dr. Anish Joseph deposed on behalf of Dr. Payal Saxena, who had examined the injured - Rupesh on 26.09.2009 vide MLC No. 6723. He proved the MLC as Ex. PW3/A and identified the signatures of Dr. Payal Saxena on the said MLC. He stated that a deep perforating wound over the left lower back 5 x 2 cms, air leak positive, cut lacerated wound over left shoulder 2 in number 5x2 cms., right wrist covering the medial side approximately 4x3 cms and right palm in 6/W index finger back of hand (0.5 x 1 cm) and thumb 3 x 2 cms, abdomen was tense and S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 6 /39 tender, were noted. He further stated that injures were found to be dangerous and the patient was declared fit for statement on 04.10.2009.
4.4 PW-4 HC Gopal Prasad deposed that on 28.10.2009, he alongwith the IO/SI Jitender Kashyap took accused Sallauddin @ Raja to AIIMS Hospital for his medical check-up and in his presence, his blood sample was taken, which was seized vide Ex. PW4/A. On 03.12.2009, he went to FSL, Rohini, with five sealed pullandas and deposited them there.
4.5 PW-5 Rakesh is the brother of injured - Rupesh. He deposed that on 26.09.2009, his Bhabhi received a call on her mobile phone from some person that his brother Rupesh is lying injured at Ahinsa Sthal. He reached Ahinsa Sthal and found his brother in injured condition, who was bleeding profusely from his shoulder, hands and back. Rupesh was almost unconsciousness. Picket police at Ahinsa Sthal had also reached there and they had called CATS-Ambulance. He shifted his brother Rupesh to Batra S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 7 /39 Hospital where he was admitted in ICU. He came to know there that mobile phone and purse of Rupesh were missing. In his cross- examination, he stated that his Bhabhi did not accompany him to the spot. The Ambulance came after 15 minutes of reaching. No inquiry was made by the police personnel from his brother in his presence. His brother could not speak properly and he was in semi conscious condition. Even after reaching the hospital, his brother could not speak. It was in his knowledge that Rupesh used to keep mobile phone and purse with him but the same were found missing. He had asked the Doctor whether they had seen the purse and mobile phone of his brother but the Doctor replied in negative. He did not deny the possibility that his brother might have left the mobile phone and purse at his office. He denied the suggestion that he had not gone to Ahinsa Sthal.
4.6 PW-6 Retd. HC Naresh Kumar deposed that on 26.09.2009, he was performing duty with Delhi Home Guard Ct. Vishnu Pratap at Ahinsa Sthal Picket. At about 3:45 p.m, one person came to him at the picket and informed him that a person was lying S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 8 /39 in injured condition at a distance of about 50-60 meters. He reached there and found an injured person, who told his name as Rupesh. He further told that he has been stabbed by knives by two boys in the area before Red-Light. He informed PCR. Brother of injured, namely, Rakesh reached at the spot. After sometime, CATS Ambulance came there and took Rupesh and his brother to unknown hospital. Motorcyle No. DL 3S BL 3431 was also at the spot. In his cross-examination, he stated that IO was making inquiries from public persons but no statement was recorded by him. He also stated that injured was in senses and was fit to give statement before arrival of Ambulance. He did not make efforts to record statement of the injured as it was necessary to give first aid to the injured first, than recording his statement. 4.7 PW-7 Ct. Satish Kumar deposed that on 13.10.2009, he alongwith SI Jitender Kashyap, HC Pradeep and Ct. Kishan Mohan went to Murshidabad, West Bengal for arrest of the accused Shambhu Saha. They reached Murshidabad on 14.10.2009 in the evening. They went to Town Police Station and came to know that S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 9 /39 father of the accused was working as a Driver in a hospital in Town city. On 15.10.2009, they went to hospital and met with Sukhbir Saha - father of the accused Shambhu Saha, who told that Shambhu Saha is his son. Then Shambhu Saha also came there and from his search, mobile phone make Nokia- 2300 was recovered, which was seized vide seizure memo Ex. PW7/A. Accused made his disclosure, which was recorded vide Ex. PW7/B and then he was arrested vide Ex PW7/C. He was brought to Delhi on 17.10.2009 after taking transit remand. He pointed out the place of occurrence, and its memo was proved as Ex. PW7/E. He further stated that it came to notice that accused Sallauddin used to come near Mehrauli Bus Terminus, in the evening time. On 27.10.2009 at about 4:15 p.m, co-accused Sallauddin was pointed out by accused Shambhu Saha. He was interrogated and his disclosure statement was recorded vide Ex. PW7/F and he was arrested vie Ex. PW7/G. Then, they went to Jungle area with both the accused persons and at the pointing out of the accused, one purse of the victim was recovered which contained voter ID card, RC, copy of DL. The purse was seized after converting it into pullanda vide seizure S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 10 /39 memo Ex. PW7/I. Two blood stained and rusted knives were also got recovered from beneath a big stone, which were carried by the accused persons. Sketches of the knives were proved as Ex. PW7/J and Ex. PW7/K and seized vide seizure memo Ex. PW7/L. From the bushes, one light green colour torn blood stained T-shirt was also recovered, which was seized vide seizure memo E PW7/M. He identified the Nokia mobile phone, shirt, purse, knives and the accused persons in the court. In his cross-examination, he denied the suggestion that Shambhu Saha informed the IO that he had purchased the said mobile phone from a person, who was standing near a tea-stall and that he can lead him to that tea-stall to get this fact verified from him that he had purchased the mobile phone but the IO had refused to go to the tea-stall. He stated that the jungle from where the case property was recovered is not a frequently visited place.
4.8 PW-8 Israr Babu, Alternate Nodal Officer of Vodafone, brought original Customer Application Form of mobile phone No. 9609452799 which was in the name of Shambhu Saha. The S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 11 /39 Customer Application From was exhibited as Ex. PW8/A and the copy of the Call details for the period 20.09.2009 to 03.12.2009 was proved as Ex. PW8/C while the Cell ID Chart was proved as Ex. PW8/D. The Certificate under Section 65B of the Indian Evidence Act was proved as Ex. PW8/E. 4.9 PW-9 Inspector Umesh Malik deposed that on 26.09.2009, DD No. 24A regarding an injured person lying in injured condition at Ahinsa Sthal near picket, was handed over to him. He proved the DD as Ex. PW9/A. When he reached the spot alongwith a Constable, he came to know that the injured had been shifted to Batra hospital. He found one motorcycle bearing No. DL 3S BL 3431 of the injured. He obtained MLC of the injured Rupesh from Batra Hospital but injured was declared unfit for statement. Brother of the injured and police officials of picket informed him that injured had been stabbed in the area of jurisdiction of P.S.Saket so he kept the investigation of DD No. 24A pending. On 26.09.2009, he collected exhibits from the hospital. He did not deposit the same as well as the motorcycle in the Malkhana as the jurisdiction of the S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 12 /39 place of the occurrence was not clear. On 28.09.2009, he again went to hospital to record statement of the injured but he was declared unfit for statement. He recorded statement of HC Naresh Kumar of Ahinsa Sthal Picket, which is Ex. PW6/A, according to which, jurisdiction of the place of occurrence fall in the area of P.S. Saket. In his cross-examination, he stated that he reached the hospital at about 6:00 p.m where he found the brother of the injured but he did not record his statement as he was not a witness to the occurrence. He further stated that the pullanda which he had collected on 26.09.2009 was in his custody in lock and he handed it over on 28.09.2009. He made entries regarding custody of pullandas with him at P.S Mehrauli.
4.10 PW-10 Sh. Sanjeev Kumar - Ld. Metropolitan Magistrate, Karkardooma Courts, proved the TIP proceedings dated 22.10.2009 of accused Shambhu Saha as Ex. PW10/A. 4.11 PW-11 Ms. Shashi Bala, Senior Scientific Officer (Biology) proved her Biology Report as Ex. PW11/A and Serological Report S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 13 /39 as Ex. PW11/B. 4.12 PW-12 D.K. Mishra - UDC proved the Notification of Delhi Government dated 17.02.1979 as Ex. PW12/A. 4.13 PW-13 Dr. Anish Joseph proved his opinion as Ex. PW13/A, according to which, he stated that after reading the description of wounds, the injuries could be due to any sharp object probably a knife but he could not identify the exact weapon. In his cross- examination, he stated that he had not prepared MLC of the injured or examined the injured.
4.14 PW-14 SI Jitender Kashyap stated that on 28.09.2009, at about 8:10 p.m., SI Umesh Malik came in the Police Station and made an arrival entry DD No. 27B, according to which, one Rupesh was admitted in Batra Hospital with stab injuries. SI Umesh Malik had brought MLC of the injured alongwith sealed pullanda containing clothes and sandles of the injured. He also produced one Bajaj Discover Motorcyle No. DL 3S BL 3431. He also brought one S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 14 /39 statement of HC Neresh recorded under Section 161 Cr.P.C in which incident was narrated. On the directions of the SHO, he made endorsement on it and got the case registered under Section 326 IPC. He proved his endorsement as Ex.PW14/A. He also seized pullandas, sample seal and motorcycle vide seizure memos Ex.PW9/A and Ex.PW9/B. The case property was deposited in Malkhana. On 29.09.2009, he went to Batra Hospital and found injured Rupesh admitted in ICU but he was unfit to give statement. He recorded statement of Rakesh - brother of injured. He came to know that mobile phone Nokia -2300 of Rupesh was missing having Airtel No. 9871399699. He obtained call details records of the said mobile number and collected IMEI number of the mobile phone and sent the said mobile IMEI number to all the concerned agencies. He came to know from Vodafone Company that the said IMEI number was running on mobile No. 9609452799 in the name of Shambhu Saha of West Bengal. He obtained reply from Vodafone Company to this effect. On instructions of the SHO, a raiding team comprising of HC Pradeep, Ct. Satish and Ct. Krishan Mohan was prepared. In the meantime, he kept on visiting the S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 15 /39 hospital to know the condition of the injured. On 04.10.2009, Doctor declared Rupesh fit for statement and he recorded his statement Ex. PW2/A in which, Rupesh stated that his brown colour purse containing his voter ID card, RC of the motorcycle, and DL of Rakesh, cash Rs.20,000/- and his mobile phone, were robbed at M.B. Road, Laddo Sarai Village, New Delhi. On 13.10.2009, he alongwith his aforesaid team went to West Bengal and reached there on 14.10.2009. However, the address could not be clarified. On 15.10.2009, they met senior police officers and with their assistance, they came to know that Subeer Saha - father of Shambhu Saha was working as Driver with Dr. Indrani Saha at 117, Ravinder Nath Tagore Road, Berhampur. They reached there and met Subeer Saha. Shambhu Saha also came there, who was identified by his father. Shambhu Saha was apprehended and on being asked for his mobile phone, he produced a gray colour mobile phone Nokia -2300 from his pocket. Its IMEI number matched with the IMEI number of the phone of Rupesh. The mobile phone was seized vide seizure memo Ex.PW7/A. On interrogation, Shambhu Saha confessed his guilt. He was arrested vide seizure memo S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 16 /39 Ex.PW7/C. His disclosure was recorded as Ex.PW7/B. He also disclosed about Salahuddin that after giving knife blows, they robbed Rs. 20,000/-, purse and a mobile phone from a person at M.B. Road, Laddo Sarai, New Delhi. Salahuddin gave Rs. 7,000/- to him alongwith the looted mobile phone. He also disclosed that Salahuddin had already sustained injuries on his hand prior to the incident and during the robbery, Salahuddin's shirt got stained with blood and after committing robbery, they went inside the Jungle where they shared cash and looted mobile. The blood stained shirt was thrown there and knives were concealed there. Thereafter, they fled away to Kolkatta. On 22.10.2009, he got the TIP of accused Shambhu Saha conducted at Tihar Jail. He searched for co-accused Salahuddin. From records of PS Mehrauli and came to know that he was convicted in various cases. On 27.10.2009, he took accused Shambhu Saha on 5 days police remand. A raiding team was prepared and with accused Shambhu Saha, accused Salahuddin was searched. Shambhu Saha had told that Salauddin used to come at Mehrauli Bus Terminal for purposes of drugs. At 4:00 p.m., they reached Mehrauli Bus Terminal with Shambhu Saha. At 4:20 p.m, S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 17 /39 Salauddin came and he was apprehended. He made his confession and was arrested vide arrest memo Ex.PW7/G. His disclosure was proved as Ex.PW7/F. In pursuance to disclosure of both the accused persons, they went to Mehrauli Jungle from where accused Salahuddin got recovered one blood stained light green colour shirt from back side of bushes. From near a big stone, he got recovered a purse which contained DL of Rakesh, one voter ID card, RC of the motorcycle, one sim card and a key. One big stone looked to have been moved and on doubt when the said stone was lifted, two knives were recovered from beneath the said stone. After preparing sketches of the knives, they were converted into pullandas and seized vide seizure memo Ex. PW7/L. The blood stained shirt was converted into pullanda and seized vide seizure memo Ex. PW7/M. The recovered purse was seized after being converted into pullanda vide pointing out-cum-seizure memo Ex. PW7/I. Accused Salahuddin pointed out the place of occurrence and the pointing out memo was prepared which was proved as Ex. PW7/N. On 28.10.2009, both the accused persons were taken to AIIMS Hospital for their medical examination where blood sample of accused S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 18 /39 Salahuddin @ Raja was taken by the Doctor and same was sealed with the seal of hospital and was seized vide seizure memo Ex.PW4/A. On 28.10.2009, both the accused persons were produced before the court in muffled face. TIP of accused Salahuddin was got conducted on 06.11.2009 where complainant correctly identified accused Salahuddin. On 07.11.2009, TIP of the case property, namely, purse was got conducted and the complainant correctly identified his purse and other articles. He collected subsequent opinion with regard to weapon of offence from Batra Hospital and filed charge-sheet in the court. In his cross- examination, he stated that during the police remand of accused Shambhu Shah, the injured did not visit Police Station nor he met him outside the Police Station. He denied the suggestion that during police remand, accused Shambhu Saha was shown to the injured or that on 19.10.2009, Shambhu Saha was shown to the injured at Patiala House Courts. He stated that the disclosure of accused Shambhu Saha was recorded on 15.10.2009 while the recoveries were effected on 27.10.2009. He gave the reason for delay that routes of Jungle in Delhi were not known to the accused S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 19 /39 Shambhu Saha, although, efforts were made to effect the recoveries on 19.10.2009. He further stated that the stone beneath which the recoveries were effected could have been moved by a single person by using force. He stated that Jungle is a public place but the place of recovery seemed to be a place where public persons rarely visit. He denied the suggestion that at the time of arrest of accused Shambhu Saha, he informed him to have purchased the mobile phone from a person at tea-stall.
4.15 PW-15 Sh. S.P.S. Laler, ACJ (West), Tis Hazari Courts, Delhi, proved the TIP proceedings of accused Salahuddin having been conducted on 06.11.2009 where witness Rupesh had correctly identified the accused Salahuddin. He proved the proceedings as Ex.PW15/C and gave certificate regarding correctness of TIP. Similarly, he also proved the TIP of the case property i.e wallet having been conducted on 07.11.2009 which was correctly identified by witness Rupesh. The proceedings were proved as Ex. PW15/G and gave certificate regarding correctness of TIP. S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 20 /39
5. All the incriminating circumstances were put to the accused persons but they denied their involvement in the case. Accused Salahuddin stated that nothing was recovered at his instance or from his possession nor he had caused any injury to any person. He stated that he was lifted from the house of his sister at Calcutta. He sought permission to lead defence evidence but no defence evidence was led by him. Co-accused Shambhu Saha stated that he did not rob Rupesh or any other person. He purchased the mobile phone Nokia -2300 from a person near a tea-stall in Calcutta and told about this fact to the IO at the time of his arrest at Calcutta and told him that he can verify this fact from that person, who could be found near that tea-stall at Calcutta. He denied to have made any disclosure statement and that he was wrongly identified in TIP proceedings as well as in court. To the question as to whether he wanted to lead any defence evidence, he replied in 'negative'.
6. Ld. Addl. PP has argued that the prosecution has been able to prove its case beyond all reasonable doubts. The accused when stopped his motorcycle near Laddo Sarai to drink water from a road S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 21 /39 side Pyaoo, the accused persons first touched his pocket and when he tried to catch their hands, he was given stab injuries by both the accused persons with knives and they fled away in Jungle taking Rs. 20,000/- cash and his Nokia - 2300 mobile phone. When the injured chased them in Jungle, they charged towards him with knives and injured came back. He remained hospitalized for nine days and his injuries were opined to be dangerous having been caused by sharp object. From the Call Detail Records of the robbed mobile phone, police came to know that the said mobile phone was being used by accused Shambhu Saha - a resident of West Bengal. After his arrest, the said mobile phone was recovered and its IMEI number was the same as that of the mobile phone of injured Rupesh. At his instance, co-accused Salauddin was apprehended and at the instance of both the accused persons, the wallet of injured Rupesh, shirt of accused Salauddin and two knives were recovered from the Jungle. Conviction has, therefore, been prayed for both the accused persons under Section 307, 397 and 411 IPC. S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 22 /39
7. On the other hand, Shri Rajeev Jain, Ld. Counsel has stated that the prosecution has miserably failed to prove its case beyond all reasonable doubts against the accused persons. It has been stated that there are improvements in deposition of PW-2 Rupesh regarding the amount of Rs. 14,000/-. PW-5 Rakesh - brother of injured Rupesh also stated that it was possible that Rupesh might have forgotten his purse and mobile in his office. On the basis of this it is stated that there is a doubt that the purse and mobile having been left by the injured in his Office itself. Further, regarding chasing the accused persons in jungle also where the victim was shown knife by the accused persons, there are improvements. It was argued that when the victim did not chase the accused persons, there is no question of him being shown knife and hence the charge u/s 307 IPC is not proved. He stated that the injured became unconscious after the incident and the entire incident had taken place only for a couple of minutes and as such it was not possible for the injured to identify the accused and hence identification of the accused persons by the victim cannot be believed, more so when the accused persons were taken on police remand and the possibility S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 23 /39 of their being shown to the victim cannot be ruled out. So far as recovery of mobile phone from the accused Shambhu Saha is concerned, the same is also doubtful. The said mobile phone was purchased by the accused Shambhu Saha from a person near a tea stall at Calcutta but there is no investigation or inquiry by police from his parents as to whether accused had purchased the said mobile or not. Ld. Counsel thus argued that there are doubts in prosecution story and the benefit should go to the accused and hence the accused persons may be acquitted.
8. I have heard both the sides and have perused the records of the case. The accused persons are stated to have robbed the injured of his mobile phone and cash, by giving him stab injuries by knives. Subsequently, purse and mobile phone were recovered. Thus, charges u/s 397/34, 307/34 and 411 IPC were leveled against both the accused persons.
9. There is no eye witness to the offence of the accused persons except the injured himself. The injured gave the description of the S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 24 /39 offence by stating that on 26.9.2009 at about 3 pm he reached Lado Sarai on his motorcycle and parked his bike to drink water from a roadside Pyaoo. He was having Rs. 20,000/- with him. At that time, one boy touched the pocket of his pant and when the witness caught his hand, another boy came from behind and gave a knife blow on his wrist. At this time, the first boy also gave knife blows to him. They took out Rs. 20,000/- from his pockets and his mobile phone. Then they ran inside the jungle. He chased them but the assailants charged towards him and showed knife to him, at which he came back. He then came to his bike, started it, rode it and when he reached near Ahinsa Sthal, he felt giddiness and stopped his bike. From there, police help was given to him. His wife was informed by public, who informed his brother, who reached there and the injured was shifted to hospital. He also stated that his statement was recorded on 4.10.2009.
10. PW-6 Retd. HC Naresh Kumar proved that 26.9.09 at about 3.45 PM, on being told by a person, about an injured, he reached to him, who told his name as Rupesh and that he was stabbed by two S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 25 /39 persons, whereafter he informed PCR. Then Rakesh - brother of Rupesh reached there and ambulance took him to hospital.
11. PW-3 Dr. Anish Joseph proved that the injured Rupesh was brought to Batra Hospital on 26.9.09 at 4.30 pm with alleged history of stab wounds by unknown persons near Lado Sarai around 3.30 pm. He had complaint of respiratory distress. He had a deep perforating wound on his left lower back of the size of 5x2 cm, two cut lacerated wounds of 5x2 cms on left shoulder. There were other injuries also on his wrist, palm, finger and thumb. He was stated to be critical and was immediately resuscitated. Urgent ICU admission was advised and was referred for surgery. The injuries were opined to be dangerous. He also stated that the patient was declared 'fit for statement' on 4.10.2009.
12. The above depositions make it clear that the injured was given stab injuries by two persons on 26.9.09 at about 3.30 pm and he was hospitalized for the same. Although the injured was confronted with his statement wherein he had not stated to the S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 26 /39 police that he had caught hand of the boy who had touched his pocket and regarding chasing of the boys in jungle, but these things are not material or fatal to the prosecution case. What has come on record is that two boys robbed the injured after giving knife blow injuries to him.
13. Injured PW-2 Rupesh has stated that he was using the mobile phone number 9871399699. This mobile phone is the clincher of this case. The Call Detail Records of this mobile phone number 9871399699 were proved by PW-1Tarun Khurana as Ex. PW-1/C according to which IMEI Number of the phone No. 9871399699 was 358373003585540 and the last call was made from this number at 2.36.55 pm. He also proved the Certificate u/s 65 B of the Indian Evidence Act as Ex. PW-1/E. PW-8 Israr Babu proved the call details records of mobile number 9609452799 as Ex. PW-8/C. From Ex. PW-8/A, he proved the customer application form of this mobile number which was in the name of accused Shambhu Saha. According to the call details record of this mobile phone, w.e.f. 08.09.29 PM of 26.9.2009 this number was used in the mobile S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 27 /39 phone having IMEI no. 358373003585540 and prior to that, the mobile phone having IMEI No. 356815024730610 was being used by the accused. At the time of the said call at 08.09.29 pm, the Cell ID was 58683, which was located at Emaar MGF, Kasturba Gandhi Marg, Connaught Place, New Delhi. It is noteworthy that the incident in question had also taken place on 26.9.2009 at about 3.30 pm and from 8 pm of the same day, the robbed mobile phone was used by the accused. The defence put up by the accused in his examination u/s 313 Cr PC in response to Question No. 3 is that he had purchased the mobile phone from a person near a tea stall in Calcutta. This defence in itself is false as the accused was using this mobile phone in Delhi on the evening of the offence and hence the stand that he had purchased it in Calcutta is nothing but sham. The accused was arrested in Calcutta on 15.10.2009 and the said mobile phone was recovered from him.
14. After his arrest, he made disclosure about co-accused Salauddin and Salauddin was arrested on 27.10.2009 and both the accused persons got recovered purse of the injured from a jungle S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 28 /39 which contained his voter ID card, driving licence of Rakesh, RC of the motorcycle etc. Two knives were also recovered from under a big rock/stone in the jungle. A torn shirt of accused Salauddin was also got recovered by accused from the jungle behind the bushes. Both the accused persons namely Salauddin and Shambhu Saha were identified by the injured in judicial TIP. PW-14 IO/SI Jintender Kashyap had stated that after the arrest of the accused, he was kept in muffled face and he was not shown to the injured either in the police station, or outside police station or in Patiala House Court. The TIP reports were duly proved by PW-15 Sh. S.P.S. Laler Ld. ACJ and Sh. Sanjeev Kumar - Ld. MM, respectively. Both the accused persons were also identified by the injured in Court.
15. An argument was made by the Ld. Defence counsel that although the accused Shambhu Saha had told to the police that he had purchased the mobile phone from a person at Calcutta, but no investigation in this regard was done. This argument is bereft of merit. The mobile phone in question is proved to have been used by the said accused on the same evening at Delhi and hence the S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 29 /39 defence built is nothing but an afterthought.
16. Yet another argument was made by the ld. Counsel that the entire incident had taken place only for a couple of minutes and it is hard to believe that the injured would be able to identify the accused persons. However, this argument has no substance as the accused persons were duly identified by the injured not only in Court, but also in judicial TIP.
17. It was also argued that there is delay in recovery of knife etc as accused Shambhu Saha was arrested on 15.10.2009 while the recoveries were effected on 27.10.2009. However, this argument is inconsequential. It has been stated by PW14 SI Jitender Kashyap that the accused Shambhu Saha was not knowing the routes in jungle in Delhi and he was a resident of West Bengal and despite efforts, no recovery could be effected. Accused Salauddin was arrested on 27.10.2009 from Mehrauli and he made a disclosure that he can get recovered the purse and knives from the jungle. Thereafter, recoveries of knives, purse containing RC of motor S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 30 /39 cycle, driving licence of Rakesh, voter ID card of Rupesh etc. were effected at the instance of accused Salauddin and Shambhu Saha from the jungle. A shirt of accused Salauddin having blood stains was also recovered. The injured Rupesh had identified the purse containing Driving Licence, voter ID card in judicial TIP. The TIP proceedings were duly proved by PW-15 Sh. SPS Laler, ACJ as Ex. PW-15/G. The knives were also identified by the injured Rupesh in Court during his deposition. As such, late recoveries are not fatal for the prosecution.
18. One more argument which was made is that the possibility of change of case properties cannot be ruled out because the pullandas were kept by PW-9 Inspector Umesh Malik with him on 26.9.2009 and not in maalkhana and he only handed over on 28.9.09. Again the argument is too enthusiastic. PW-9 Inspector Umesh Malik on 26.9.2009 i.e. the date of incident, was posted in PS Mehrauli. In his examination-in-chief he stated that the injured was stabbed in the jurisdiction of Saket Police station and therefore DD No. 24 A was kept pending. He collected sealed exhibits from hospital but he S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 31 /39 did not deposit them in Maalkhana as the jurisisdiction was not clear to him. He also stated that on 28.9.2009 he again went to hospital but the injured was still unfit for statement. He then recorded statement of HC Naresh and he himself went to PS Saket and handed over papers to the Duty Officer. There SI Jitender Kashyap made rukka and got the case registered and then he handed over the exhibits and seal to SI Jitender Kashyap who seized them vide seizure memo Ex. PW-9/B. In his cross examination Inspector Umesh Malik stated that the pullanda was lying in his almirah in the police station and was under his lock and key from 26.9.09 to 28.9.2009 and he had made entries regarding custody of these pullandas in Police station. As such, no benefit can be drawn by the accused persons from this.
19. An argument was made that there are discrepancies in the prosecution story which creates a doubt and the benefit of the said doubt should go to the accused persons. It is not the law that when- ever there is a discrepancy, invariably its benefit has to go to the ac- cused. Only in the case of major discrepancies, such a benefit can S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 32 /39 go to an accused but if the discrepancy is only minor in nature, no fatality can be attached to it. In A. Shankar vs. State of Karnataka 2011 (6) SCC 279, Hon'ble Supreme Court made following observations in this regard:
17. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence. "Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. "Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions." The omissions which amount to contradictions in material particulars, i.e., materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide: State Represented by Inspector of Police v.
Saravanan & Anr., AIR 2009 SC 152; Arumugam v. State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar Pradesh, (2009) 11 SCC 334; Dr. Sunil Kumar Sambhudayal Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287; Vijay @ Chinee v. State of M.P., (2010) 8 SCC 191; State of U.P. v. Naresh & Ors., (2011) 4 SCC 324; and Brahm Swaroop & Anr. v. State of U.P., AIR 2011 SC 280].
S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 33 /39
20. Similarly, in the case of Sucha Singh & Anr. v. State of Punjab [(2003) 7 SCC 643] Hon'ble Supreme Court held that:
"20. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent. Letting guilty escape is not doing justice according to law. (See Gurbachan Singh v. Satpal Singh & Ors. (AIR 1990 SC 209). Prosecution is not required to meet any and every hypothesis put forward by the accused (See State of U.P. v. Ashok Kumar Srivastava (AIR 1992 SC 840). A reasonable doubt is not an imaginary, trivial or merely possible doubt, but a fair doubt based upon reason and common sense. It must grow out of the evidence in the case. If a case is proved perfectly, it is argued that it is artificial; if a case has some flaws inevitable because human beings are prone to err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. Proof beyond reasonable doubt is a guideline, not a fetish. (See Inder Singh and another v. State (Delhi Admn.) (AIR 1978 SC 1091. Vague hunches cannot take place of judicial evaluation. 'A Judge does not preside over a criminal trial, merely to see that no innocent man is punished. A Judge also presides to see that a guilty man, does not escape. Both are public duties.' (Per Viscount Simen in Stirland v. Director of Public Prosecutor 91944 AC (PC 315) quoted in State of U.P. v. Anil Singh (AIR 1988 SC 1998). Doubts would be called reasonable if they are free from a zest for abstract speculation. Law cannot afford any favourite other than truth."
21. Ld. Counsel for the accused argued that there is no corroboration of the accused persons with the FSL results. It has been stated that the FSL result is in favour of the accused as blood sample of accused Salahuddin was putrefied and no blood was S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 34 /39 detected on a knife. However, the argument is bereft of merit. Baniyan of the injured was found to be having blood group of 'B', one of the knife was found to be having blood group 'B'. It thus cannot be said that the FSL results do not corroborate with other evidences led in the matter.
22. The injured Rupesh Kumar has identified the accused persons and the other case properties and there is no reason why should he implicate the accused persons in this case. There was no previous enmity between the injured and the accused persons. He himself sustained injuries in the incident due to which he remained in the hospital for more than a week, suffered surgery and spent Rs.3.5 lacs in the hospital. Apart from it, the robbed mobile phone was found to be used by accused Shambhu Saha on the same night of the incident and the defence raised in this regard is that the said mobile phone was purchased by him from a tea stall at Kolkatta. This reply is fatal and belies the entire defence. There is no material on record to discredit the testimony of the injured. In Bhajan Singh vs. State of Haryana 2011 (8) AD Supreme Court S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 35 /39 203, it was held as under:-
"Evidence of a stamped witness must be given due weightage as his presence at the place of occurrence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present at the time of occurrence. Thus, the testimony of an injured witness is accorded a special status in law. Such a witness comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant in order to falsely implicate someone. Convincing evidence is required to discredit an injured witness. Thus, the evidence of an injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein."
23. The charges which are framed against the accused persons are under section 397/34, 307/34 and 411 IPC.
S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 36 /39
24. Section 307 IPC deals with attempt to commit murder. What is necessary for conviction under the Section is the intention or the knowledge of the accused that if by that act he caused death, he would be guilty of murder. Use of deadly weapon and causing grievous injury with it, brings a case within the purview of Section 307 IPC. The act of giving multiple knife injuries by both the accused persons to the injured shows that the accused persons possessed the knowledge that their act can lead to death of the injured as deep injury was caused in left lower back of the injured. Apart from it, there were cut wounds on left shoulder, right wrist, palm, fingers and thumb and all these injuries show that multiple attacks were made by the accused persons on the injured. As per the MLC, air leak was also found and condition of the patient was critical when he came in the hospital. Immediately, his wounds were packed and sutured and he was admitted in ICU and surgeries were performed. The nature of injuries were opined as 'dangerous'. Both the accused persons were duly identified by the victim. As such, the ingredients of Section 307 IPC are fulfilled and both the accused persons are convicted for the offence under Section 307 IPC. S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 37 /39
25. The offence under Section 397 IPC requires dacoity or robbery with the use of deadly weapon or causing grievous hurt to any person. A theft becomes robbery when the offender in carrying away the property stolen, causes hurt or wrongful restraint. The facts as proved during this trial are that both the accused persons used knives and caused grievous injuries to the victim and took away Rs. 20,000/- cash and his wallet and his mobile phone. Even otherwise, in Deepak @ Wireless vs. State of Maharashtra 2012 (9) AD SC 198 it was held that use of a knife in the course of commission of such a crime has always been held to be use of a deadly weapon. As such, all the ingredients of Section 397 IPC are fulfilled and both the accused persons are convicted for the offence under Section 397 IPC.
26. The robbed mobile phone of the accused was recovered from accused Shambhu Saha. The wallet of the victim was also got recovered by accused Salahuddin which contained RC, one voter- card, one Driving License etc. and hence both the accused persons are also convicted for the offence punishable under Section 411 S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 38 /39 IPC.
27. As such, both the accused persons are convicted for the offences under Section 307/397/411 IPC.
Announced in the open Court. (Rajeev Bansal)
Dated:07.02.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 39 /39
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.107/10
(Unique ID No.02403R0422062009)
FIR No.341/2009
PS: Saket
U/S: 307/326/392/411/34 IPC and
25 & 27 Arms Act.
State
Versus
(1) Sallauddin @ Raja @ Asik
S/o Allauddin
R/o C/o Sheikh Azad Jhuggi,
Near Samshan Ghaat, Ward No.2,
Mehrauli, New Delhi.
(2) Shambhu Saha @ Babi Saha
S/o Subir Kumar Saha
R/o 83, Pawan Road, Matni Mandir,
Khagra, Distt & P.S Berhampur,
Musirabad, West Bengal.
ORDER ON SENTENCE
PRESENT: Sh. S.K. Kain, Ld. Addl.PP for State
Both convicts produced from JC, with
Counsel Sh. Rajeev Jain.
Arguments heard from the side of the convicts on the S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 40 /39 quantum of punishment. It has been stated on behalf of the convicts that accused Shambhu Shah is a married person and has a child to look after and he is only sole bread earner in his family whereas accused Salahuddin is of young age and also has an old mother to look after. Ld. Counsel has prayed that in view of these circumstances, a lenient view may be taken against the convicts.
Vide judgment dated 07.02.2014, convicts were convicted under Section 307/397/411 IPC.
Section 307 IPC provides for an imprisonment which may extend upto life imprisonment in case the victim has suffered a hurt in such an act.
Section 397 IPC provides for a sentence of at least seven years.
Section 411 IPC provides for a sentence of either description upto three years or with fine or both.
The injured Rupesh sustained stab injuries and remained hospitalized for about nine days and is stated to have incurred an expenditure of Rs. 3.5 lacs in his surgery in the hospital. In the circumstances, the convicts are sentenced to RI of seven years and fine of Rs. 5,000/- each for the offence under Section 307 IPC. In default of payment of fine, the convicts shall further undergo SI of six months each. The convicts are also sentenced to RI of seven years for the offence under Section 397 S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 41 /39 IPC. For the offence under Section 411 IPC, convicts are also sentenced to undergo RI of two years each with fine of Rs. 2,000/- each. In default of payment of fine, the convicts shall further undergo SI of four months each. All the sentences to run concurrently. The convicts shall be entitled to the benefit of Section 428 Cr.P.C.
Fine not paid.
Copy of the judgment and order on sentence be supplied to the convicts free of cost.
Announced in the open court. ( Rajeev Bansal )
Dated: 12.02.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 107/10 FIR No. 341/2009 State vs. Salahuddin & Anr. 42 /39