Delhi District Court
State vs . (1) Rahees Alam on 6 January, 2018
IN THE COURT OF SH. SANJEEV KUMAR MALHOTRA:
ADDITIONAL SESSIONS JUDGE; FTC : E COURT:
SHAHDARA: KARKARDOOMA COURT: DELHI.
SESSIONS CASE No. 123/2013
Unique Case ID No. 200/2016
FIR No. 451/2013
U/S: 392/397/307/411/34 IPC & 25 Arms Act.
P.S: Madhu Vihar
State Vs. (1) Rahees Alam
S/o. Abdul Mannan
R/o. 8/156, Trilok Puri, Delhi.
(2) Raju @ Tamba @ Haseen
S/o. Hasim
R/o. 16/33, Trilok Puri, Delhi.
Date of Institution : 13.12.2013
Date of Arguments : 08.11.2017
Date of judgment : 06.01.2018
__________________________________________________________________
FIR No.123/2013, PS. Madhu Vihar Page No.1 of 26 State Vs. Rahees Alam etc.
JUDGMENT
Case of Prosecution
1. Criminal law was set into motion on 02.08.2013 at 1.25 am upon receiving an information that one man is lying injured at Barapula Flyover while going towards Tyagraj Stadium, which was recorded vide DD No. 4A at PS. Hazrat Nizamuddin. The said DD was assigned to ASI Rajpal Singh, who handed over the same to ASI Shailender Singh. As the incident occurred within the jurisdiction of PP Sarai Kale Khan, ASI Shailender Singh informed SI Rajesh Dangwal regarding admission of one injured of robbery in trauma center. Thereupon, ASI Shailender went to Trauma Center and collected the MLC of one Vijay Prakash S/o. Chanderbhan Singh and recorded his statement. On the basis of statement of injured, case FIR no. 451/2013, U/s. 392/307/34 was got registered and same was assigned to SI Rajesh Dangwal. On 10.08.2013 site plan was prepared at the instance of complainant. On 18.08.2013, SI Rajesh Dangwal received an information that accused Raju @ Tamba @ Haseen R/o. 16/33, Trilok Puri, Delhi, committed the present incident and he was present at his house. On this information, a raiding party was __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.2 of 26 State Vs. Rahees Alam etc. formed and accused Raju @ Tamba @ Haseen was apprehended, who got recovered robbed mobile phone make Nokia and the knife used in the incident, which were seized by the IO. He further disclosed that one Akash S/o. Udaiveer Giri R/o. 16/27, Trilok Puri, Delhi and Auto Driver Rahees Alam R/o. 8/156, Trilok Puri were also involved in the present incident. Thereupon, accused Akash was apprehended at the instance of accused Raju @ Tamba @ Haseen from his house and he also got recovered one robbed bag containing two shirts and two pants, which were also seized. On 19.08.2013, accused Rahees was apprehended from his house and the Auto No. DL1RL 6732, which was used in the present incident was recovered at his instance. On enquiry, the date of birth of accused Akash was found to be 27.01.1999 and he was declared JCL. All the accused refused to join the TIP. During investigation, IO also obtained opinion on the MLC of injured and as the injuries sustained by complainant were grievous, section 397 IPC was added. Further investigation was carried out and after completing other necessary formalities, charge sheet was filed before the court.
2. On appearance copies were supplied to accused __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.3 of 26 State Vs. Rahees Alam etc. persons as per section 207 Cr.P.C and as offence punishable u/s 307/397 IPC is exclusively triable by the Court of Sessions, the matter was committed to the Sessions Court.
Charge against accused.
3. Charge u/s. 392/394/307/34 was framed against both the accused persons. Separate charges u/s. 397/411 IPC & 25/27 Arms Act were also framed against accused Raju @ Tamba @ Haseen.
Witnesses examined
4. To substantiate the charge, prosecution has examined 17 witnesses. The brief summary of the deposition of prosecution witnesses is as under.
5. PW1 Sh. Vijay Prakash is the complainant/injured, who deposed that he had to appear for an interview on 02.08.2013 at Neelam College of Engineering, Agra. At about 11.30/11.45 pm, he went to Anand Vihar Bus Stand for taking bus for Agra but he came to know that there __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.4 of 26 State Vs. Rahees Alam etc. was no bus for Agra from Anand Vihar at that time and he can get the bus from Sarai Kale Khan. PW1 deposed that he started waiting for Auto near Petrol Pump in front of Anand Vihar Bus Stand for going to Sarai Kale Khan and after 1015 minutes an Auto came there in which two boys were already sitting besides the Auto driver. He further deposed that he took seat in between the two boys, who were already sitting in the Auto and after going a little distance, the boy who was sitting on his right put his arm around his neck and asked him to hand over whatever he was having, failing which he would be stabbed with knife. As per complainant, the boy who was sitting on his left then took out Rs.200 from the pocket of his shirt; removed his Nokia Mobile Phone C3 from the right pocket of his pant and also took out his mobile phone Nokia 1208 & ATM card of PNB from his bag and also threatened him not to shout, failing which they would kill him. PW1 further deposed that on reaching top of a flyover, those boys pushed him down from the Auto. He deposed that he asked them to give him the register, which was in his bag on which, the boy who was earlier sitting on his right side started hitting him with knife and thereafter, they ran away in the same Auto with his belongings. He further deposed that he tried to stop __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.5 of 26 State Vs. Rahees Alam etc. the passing vehicles but no one came to his rescue. In the meanwhile, a police vehicle which was on patrolling duty came there and took him to Safdarjang Trauma Centre, where his statement Ex.PW1/A was recorded. He further deposed that on 10.08.2013, he was discharged from the hospital and on that day he went to the Police Chowki Anand Vihar, from where he alongwith SI Rajesh Dangwal came at the spot and on his pointing out IO prepared site plan. He identified accused Raju @ Tamba @ Haseen as the person, who had stabbed him with knife and accused Rahees Alam as the person, who was driving Auto at that time. He also identified case property i.e his DELL Laptop Bag as Ex.P1, his clothes i.e two pants and two shirts as Ex.P2 (collectively) and his Nokia Mobile Phone as Ex.P3.
In his crossexamination by Ld. Counsel for accused Rahees Alam, he confirmed that there was sufficient light at the place, where he was standing but he did not take note as to what clothes Auto driver was wearing. He further confirmed that statement Ex.PW1/A was recorded under his dictation and he had gone through the same.
In his crossexamination by Ld. Counsel for accused Raju @ Tamba @ Haseen he confirmed that he __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.6 of 26 State Vs. Rahees Alam etc. remained hospitalised from 01.08.2013 till discharge and he was called at Police Chowki Anand Vihar by the IO on 10.08.2013 at about 10 am.
6. PW2 is Sh. Aditya Pandey, who had made call to the police at 100 number. He deposed that on 02.08.2013 at about 1.10/1.15 am while returning from Call Centre, Gurgaon to his house in the Cab when he reached at Barapula Flyover, he saw a person in injured condition in pool of blood, who was asking for help. He made call at 100 number from his mobile phone number 9711732450 so that the injured may get help. He further deposed that since there was female employees in the Cab, as per company norms and due to security reasons, the Cab driver did not stop the Cab.
7. PW3 is HC Sudesh, who on 02.08.2013 was posted as duty officer at PS Madhu Vihar and recorded the case FIR Ex.PW3/A. He deposed that after registration of FIR, he gave the copy of FIR and original rukka to Ct. Sunder for handing over the same to SI Rajesh Dangwal.
8. PW4 is HC Virender Singh, who on 18.08.2013 __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.7 of 26 State Vs. Rahees Alam etc. joined the investigation with SI Rajesh Dangwal . He deposed that IO received a secret information that accused Raju @ Tamba @ Haseen and his associates were involved in the incident and thereupon they arrested accused Raju @ Tamba @ Haseen. He deposed that pursuant to disclosure statement Ex.PW4/C, accused Raju @ Tamba @ Haseen got recovered a Nokia Mobile Phone and buttandar knife from a box from the first floor of the house. He further deposed that accused Raju @ Tamba @ Haseen then led the police party to the house of his associate Akash who also got recovered a black colour bag containing two pants and two shirts from the Almirah of the house, which was seized vide memo Ex.PW4/G. In his crossexamination, he confirmed that SI Rajesh Dangwal was the first person, who apprehended accused Raju @ Tamba @ Haseen and that they were in uniform.
9. PW5 is Dr. K.S.Krishna Prasad, SR Surgery, AIIMS Trauma Centre, who proved the MLC of injured Vijay Prakash as Ex.PW5/A and identified the signatures of Dr. Rashmi Dass since she had left the service of the hospital. In his crossexamination, he confirmed that he has __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.8 of 26 State Vs. Rahees Alam etc. seen Dr. Rashmi Dass writing and signing in the medical record section on the basis of which he identified her writing and signatures.
10. PW6 is SI Shailender Singh, who deposed that on 02.08.2013, he was posted at PP Sarai Kale Khan, PS Sunlight Colony. ASI Rajpal of PS Hazrat Nizamuddin came to him and told that one injured of a robbery was admitted in Trauma Centre and the said robbery took place in the area of PP Sarai Kale Khan. He collected the MLC of injured Vijay Prakash and recorded his statement as Ex.PW1/A. In his crossexamination, he confirmed that none of the family members of the injured met him at the Trauma Centre and that he did not visit the spot.
11. PW7 is Sh. R.K.Singh, Nodal Officer, Bharti Airtel Ltd., who deposed that as per customer application form (CAF) Mobile number 9650349080 was registered in the name of Vijay Prakash S/o. Chanderbhan Singh and proved the copy of same as Ex.PW7/A. The CDRs of aforesaid mobile number were proved as Ex.PW7/B and certificate u/s. 65B of Indian Evidence Act was proved as Ex.PW7/D. __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.9 of 26 State Vs. Rahees Alam etc.
12. PW8 is HC Jayanti Prasad, who on 02.08.2013 was posted at PS Hazrat Nizamuddin and was working as duty officer from 12 mid night to 8 am. He proved the copy of DD No.4A as Ex.PW8/A.
13. PW9 is Sh. Dev Narayan Sahni, who deposed that he bought TSR No. DL 1RL 6732 from a Financer in the year 2009 and the said TSR was in the name of Mohd. Shokeen. He deposed that the said TSR could not be transferred in his name, however, he gave his TSR to Rahees Alam on rent. He further deposed that on 01/02.08.2013 the TSR was on rent with accused Rahees Alam, who himself used to drive the TSR. He denied the suggestion that he had not given the TSR on rent to the accused.
14. PW10 Ct. Chander Pal was also a member of raiding party in whose presence accused Raju @ Tamba @ Haseen was arrested and recovery of mobile phone and buttandar knife was effected. He deposed on the similar lines as of PW4.
In his crossexamination, he deposed that they all __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.10 of 26 State Vs. Rahees Alam etc. apprehended accused Raju @ Tamba @ Haseen together.
15. PW11 is Ct. Sunder Singh to whom copy of FIR and original rukka was handed over by duty officer and he supplied the same to SI Rajesh Dangwal at Trauma Centre.
16. PW12 is Smt. Kamal Arora, Manager, Punjab National Bank, who brought the bank statement of account of injured/complainant Vijay Prakash from 01.07.2013 to 31.10.2015 and proved the same as Ex.PW12/A. In her crossexamination, she confirmed that time of withdrawal of Rs.500 on 01.08.2013 is not mentioned in the bank statement Ex.PW12/A.
17. PW13 is Ct. Sunil, who was posted at CPCR, Police Head Quarter and on the intervening night of 01/02.08.2013, at about 1.17 am he received a message from mobile phone no. 9711732450 regarding incident. He proved the PCR form as Ex.PW13/A and certificate u/s. 65B of Indian Evidence Act as Ex.PW13/B.
18. PW14 is Sh. Ankur Jain, ACMM, SouthWest __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.11 of 26 State Vs. Rahees Alam etc. District, Dwarka, to whom the application for conducting TIP of accused Raju @ Tamba @ Haseen, Rahees Alam & JCL 'A' was marked. He proved the TIP proceedings as Ex.PW14/A.
19. PW15 is Sh. Ankit Jain, who deposed that on 01.07.2011, he was running a shop with the name and style of Electric Point and on that day, he had sold one mobile phone make Nokia Model C3 to Vijay Prakash for a sum of Rs.6,000/. He proved the cash memo of the said phone as Ex.PW15/A.
20. PW16 SI Rajesh Dangwal is the IO of the case, who conducted the investigation and proved the various memos prepared by him during investigation.
In his crossexamination, he deposed that first of all, he apprehended accused Raju @ Tamba @ Haseen, who was standing on the Eastern side of his house. He denied the suggestion that property no. 16/32 & 16/33, Trilok Puri, Delhi are adjoining properties.
21. PW17 is HC Sushil Kumar, who was posted as MHC(M) at PS Madhu Vihar and with whom case property in __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.12 of 26 State Vs. Rahees Alam etc. sealed condition was deposited. He proved various entries in register no. 19 as Ex.PW17/A to Ex.PW17/C. Statement and Defence of accused persons.
22. Statements of both the accused u/s. 313 Cr.P.C were recorded, wherein they claimed themselves innocent and did not lead any defence evidence. Accused Rahees Alam in his statement u/s. 313 Cr.P.C in reply to question No. 2 stated that he used to drive TSR in day time but not during night hours. Similarly, accused Raju @ Tamba @ Haseen in reply to question no.14 stated that he only knew that Rahees Alam was an Auto driver but he did not take police party to the house of accused Rahees Alam.
Arguments and Conclusion
23. Arguments have been addressed by Sh. Ashok Kumar, Ld. Addl. PP for the State as also by Sh. K.K.Upadhyay, Ld. Counsel for accused Rahees Alam and Sh. S.S.Rawat, Ld. Counsel for accused Raju @ Tamba @ Haseen. I have also gone through the written submissions filed on __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.13 of 26 State Vs. Rahees Alam etc. behalf of accused Rahees Alam.
24. It has been argued by Ld. Addl. PP for State that prosecution has proved its case beyond reasonable doubt. It has been further argued that complainant has identified both the accused persons correctly and also the robbed case property recovered from their possession.
25. Per contra, Ld. Defence Counsel for accused Rahees Alam argued that as per case of prosecution, Mohd. Shokeen was the owner of the TSR in which alleged incident of robbery had taken place but his statement was not recorded. It has been further argued that nothing was recovered at the instance of accused Rahees Alam and he was falsely implicated at the instance of IO. It was further argued that complainant did not take note of the clothes, which the Auto driver was wearing at the time of incident but during investigation, he identified accused Rahees Alam as the person, who was driving the TSR.
Ld. Counsel for accused Raju @ Tamba @ Haseen argued that as per case of prosecution, the incident occurred at Barapula Flyover and the public witness, who gave __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.14 of 26 State Vs. Rahees Alam etc. information at 100 number was coming from Gurgaon, so there was no occasion for him to see towards opposite direction while going in a Cab. It has been further argued that the information regarding incident was given to police at 1.34 am and within 10 minutes injured was admitted in the hospital, which is not probable. It was further argued that accused Raju @ Tamba @ Haseen was arrested on 18.08.2013 while co accused Rahees Alam was arrested on 19.08.2013 and no explanation is coming on record as to how police arrested co accused Rahees Alam on 19.08.2013 at the instance of accused Raju @ Tamba @ Haseen when his PC remand was not obtained after his arrest on 18.08.2013. It has been further argued that IO did not collect any proof that accused Raju @ Tamba @ Haseen was residing at the alleged place of his arrest.
26. PW1 Sh. Vijay Prakash/complainant is the star witness of the prosecution, who has deposed the entire incident in cogent manner. PW1 deposed that accused Rahees Alam was the Auto driver and coaccused Raju @ Tamba @ Haseen alongwith one JCL 'A' who was sitting in the TSR robbed him. He deposed that accused Raju @ Tamba @ Haseen is the __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.15 of 26 State Vs. Rahees Alam etc. person, who had stabbed him with knife and after stabbing him pushed him down from the Auto and ran away. PW2 Sh. Aditya Pandey, who made call at 100 number also corroborated the fact that when he reached at Barapula Flyover, he saw one person in injured condition lying in pool of blood, who was asking for help and thereafter, he informed the police, so that he may get the help. Ld. Defence Counsels crossexamined these two witnesses at length but nothing came on record, which may diminish the evidentiary value of their testimonies. Their evidences appear to be reliable and trustworthy and there is no reason to disbelieve their testimonies. The Hon'ble Supreme Court in 2012 (2) RCR(Criminal)231, Sampath Kumar Vs Inspector of Police Krishangiri referring to Vadivelu Thevar Vs. State of Madras AIR 1957SC614 spoke of three category of witnesses: those that are wholly reliable, those that are wholly unreliable and who are neither wholly reliable nor wholly unreliable. In the case of the first category the courts have no difficulty in coming to the conclusion either way. It can convict or acquit the accused on the deposition of single witness if it is found to be fully reliable. In the second category also there is __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.16 of 26 State Vs. Rahees Alam etc. no difficulty in arriving at an appropriate conclusion for there is no question of placing any reliance upon a deposition of a wholly unreliable witness. It is only in the case of witnesses who are neither wholly reliable nor wholly unreliable that the Courts have to be circumspect and have to look for corroboration in material particulars by reliable testimony direct or circumstantial. The Hon'ble Supreme Court thus held that the testimony of a witness who is not wholly reliable or wholly unreliable, can be relied if it is corroborated on material aspects. PW1 is the witness of first category and has given a consistent statement on material aspects, which is corroborated by the evidence of PW2 a public witness and the evidence of witnesses of investigation and medical examination.
27. Now coming to the contention of Ld. Counsel for accused Rahees that Mohd. Shokeen was the owner of the TSR but his statement was not recorded. In this regard, PW9 Sh. Dev Narayan Sahni deposed that the said TSR No. DL1RL 6732, which he purchased from a financer in the year 2009, could not be transferred in his name and he gave his TSR to accused Rahees Alam on rent and on the date of incident i.e 01/02.08.2013, TSR was on rent with accused, who himself __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.17 of 26 State Vs. Rahees Alam etc. used to drive the same. It is not the defence of accused Rahees Alam that he was not driving the TSR No. DL1RL 6732 on the day of incident. In his statement u/s. 313 Cr.P.C while replying to question no.9 that TSR No. DL1RL 6732, which was hired by the complainant for going to Sarai Kale Khan, was given to him on rent by PW9 and he used to drive the said Auto, accused admitted these facts as correct. In view thereof, I find no force in the contention of Ld. Defence Counsel that nonexamination of Mohd. Shokeen is fatal to the case of prosecution.
28. The next contention of Ld. Defence Counsel for accused Rahees was that complainant admitted in his cross examination that he did not take note of the uniform of TSR driver but he identified him during evidence. It was thus argued that when complainant was unable to see the uniform, he could not have seen the face of TSR driver. Admittedly, complainant took seat between two other coaccused on the back seat of the TSR and he had interacted with the TSR driver while hiring the auto for Sarai Kale Khan Bus Stand and at that time it was highly improbable that someone would take note of the wearing clothes of the driver. Complainant has confirmed __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.18 of 26 State Vs. Rahees Alam etc. that there was sufficient light at the place where he was standing and that is the reason he identified accused Rahees Alam as the person, who was driving the Auto.
29. PW1 Sh. Vijay Prakash i.e complainant/injured identified his Nokia Mobile Phone i.e Ex.P3 recovered from the house of accused Raju @ Tamba @ Haseen as also his robbed DELL Laptop bag containing two pants & two shirts as Ex.P1 & P2, which were recovered at the instance of JCL 'A', who was apprehended pursuant to disclosure statement of accused Raju. PW4 HC Virender Singh, PW10 Ct. Chander Pal Singh & PW16 SI Rajesh Dangwal are witnesses of recovery of mobile phone and knife from the house of accused Raju @ Tamba @ Haseen. They have categorically deposed that pursuant to his disclosure statement Ex.PW4/C, accused Raju @ Tamba @ Haseen got recovered one Nokia Mobile Phone and buttondar knife from the first floor of his house. They have been crossexamined at length but except some minor discrepancies, they remained consistent throughout and there is no reason to disbelieve their testimonies. The robbed mobile phone of complainant and his laptop bag containing clothes, which were recovered from JCL 'A' , who was arrested __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.19 of 26 State Vs. Rahees Alam etc. at the instance of accused Raju @ Tamba @ Haseen also proves that they robbed the complainant.
30. It was argued by Ld. Defence Counsel for accused Raju @ Tamba @ Haseen that PW2 Sh. Aditya Pandey was admittedly coming from Gurgaon and thus it was highly improbable for him to see PW1 complainant/injured lying on the road in opposite direction. In this regard, PW2 Sh. Aditya Pandey deposed that they did not come to Barapulla via Dhaula Kuan and rather they came from the side of Sarai Kale Khan. No suggestion was given to this witness that whether while coming from the side of Sarai Kale Khan, he was in a position to see the injured or not. Even otherwise, PW2 only informed the police at 100 number so that the injured may get the help and as such there is no reason to disbelieve him. Further, 100 number call as made by PW2 Sh. Aditya Pandey from his mobile no. 9711732450 was received by PW13 Ct. Sunil, who was posted at Police Headquarter, at 1.17 am on the intervening night of 01/02.08.2013 and complainant/injured was admitted at Safdarjung Trauma Center by the PCR Van at 1.44 am. The distance from Barapula to Safdarjung Trauma Center can be easily covered within 25 minutes.
__________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.20 of 26 State Vs. Rahees Alam etc.
31. It was argued by Ld. Defence Counsel for accused Raju @ Tamba @ Haseen that PW4 HC Virender Singh deposed that PW16 IO/SI Rajesh Dangwal had firstly apprehended the accused while PW10 Ct. Chander Pal deposed that they all together apprehended accused Raju @ Tamba @ Haseen.
In this regard, I am guided by the Judgment of Hon'ble Supreme Court in Appabhai and another Vs. State of Gujarat AIR 1988 Supreme Court 696, wherein the Hon'ble Court held that 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 errors of perception or observation should not be given importance. The errors due to lapse of memory maybe given due allowance. It was further held therein that 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.
Thus, it can safely be held that the discrepancy __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.21 of 26 State Vs. Rahees Alam etc. with regard to arrest of accused, as pointed out by Ld. Defence Counsel is minor discrepancy and will not affect the prosecution case in view of the other overwhelming evidence on record and in my opinion, the circumstances leading to the involvement of the accused in the commission of the offence has been established.
32. It was further argued that no independent witness was joined in the recovery proceedings and that H.No. 16/33, Trilok Puri was not belonging to accused Raju @ Tamba @ Haseen that is why no documentary proof regarding ownership of the said house was collected by the IO during investigation. A suggestion was given to PW16 IO/SI Rajesh Dangwal that one Rajasthani family was residing at H.No. 16/33, Trilok Puri, Delhi, which was denied by him. The plea of Ld. Defence Counsel that some Rajasthani family was residing at H.No.16/33, Trilok Puri, Delhi is further falsified by the fact that when statement of accused Raju @ Tamba @ Haseen u/s. 313 Cr.P.C was recorded, he gave his address as H.No.16/33, Trilok Puri, Delhi. Accused Raju @ Tamba @ Haseen did not take the stand that he was not residing at the aforesaid address, therefore, this plea of Ld. Defence Counsel is outrightly __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.22 of 26 State Vs. Rahees Alam etc. rejected having no force.
Recoveries in the present case are of articles which were robbed from the complainant/injured. With regard to non joining of public persons, it is a known fact that public persons rarely become available to join the investigation, therefore, because of nonjoining of public person, the testimony of police witnesses does not become unreliable. Reliance is placed upon the judgment of Hon'ble Supreme Court in Karamjit Singh Vs State (Delhi Administration) AIR 2003 SC 1311, wherein it was held:
" the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as from of other persons and it is not proper judicial approach to distrust and suspect them without good grounds."
33. It was argued by Ld. Defence Counsel for accused Raju @ Tamba @ Haseen that he was arrested on 18.08.2013 but coaccused Rahees Alam was arrested on 19.08.2013 __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.23 of 26 State Vs. Rahees Alam etc. although he could have been arrested on the same day. It has been further argued that no police custody remand of accused Raju @ Tamba @ Haseen was taken on 19.08.2013 then how the police arrested coaccused Rahees Alam, remains unexplained. In this regard, arrest memo of accused Raju @ Tamba @ Haseen Ex.PW4/A shows that he was arrested on 18.08.2013 at 9 pm and thereafter, as per PW16 SI Rajesh Dangwal, he led the police party to the house of JCL 'A' at whose instance laptop bag and clothes of the complainant were recovered. It is also the case of prosecution as deposed by IO/SI Rajesh Dangwal that accused Raju @ Tamba @ Haseen disclosed the names and addresses of coaccused. Therefore, if the IO was aware about the address of accused Rahees Alam as disclosed by accused Raju @ Tamba @ Haseen, there was no need for obtaining any police custody remand of accused Raju @ Tamba @ Haseen to arrest the coaccused as recovery had already been effected from him. As per CAF Ex.PW7/A, the mobile phone having SIM number 9650349080 recovered from the house of accused Raju @ Tamba @ Haseen was registered in the name of complainant Vijay Prakash. PW15 Sh. Ankit Jain also proved cash memo of the Nokia Mobile Phone, which was sold to complainant Vijay Prakash as Ex.PW15/A. One __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.24 of 26 State Vs. Rahees Alam etc. laptop bag and clothes of the injured, which were recovered at the instance of JCL 'A' were also identified by the complainant in TIP proceedings. The case property was also proved by the complainant as Ex.PW1/B.
34. PW1 Sh. Vijay Prakash/complainant has clearly deposed that accused Raju @ Tamba @ Haseen had stabbed him with knife and accused Rahees Alam was the Auto driver at the time of incident. The evidence brought on record thus proved that both accused in furtherance of their common intention robbed the complainant of his mobile phone, laptop bag containing clothes & Rs.200/ and while committing robbery, accused Raju @ Tamba @ Haseen used a knife. Therefore, accused Raju @ Tamba @ Haseen is held guilty for offence punishable u/s. 392/34 IPC r/w section 397 IPC & u/s. 25 Arms Act and accused Rahees Alam is held guilty for offence punishable u/s. 392/34 IPC.
35. Now coming to the charge whether accused while committing robbery voluntarily caused injuries to the complainant or they had made an attempt to murder the complainant. In this regard, MLC of complainant Vijay __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.25 of 26 State Vs. Rahees Alam etc. Prakash Ex.PW5/A shows that he sustained five stab injuries, out of which, two were on the vital part of his body i.e neck & right side of chest. Further, the act of accused persons that after causing stab injuries on the vital part of the body of complainant, they pushed him from Auto at a secluded place i.e Barapula Flyover, shows that they had intention to kill the complainant. Therefore, both the accused are also held guilty for offence punishable u/s. 307/34 IPC. Both accused persons are hereby convicted for the aforesaid offences. SANJEEV KUMAR MALHOTRA Digitally signed by Announced in the open court SANJEEV KUMAR MALHOTRA Location: Karkardooma Courts, Delhi on 06.01.2018 Date: 2018.01.06 20:54:14 +0530 (Sanjeev Kumar Malhotra) ASJ/FTC/ECOURT Shahdara/KKD/Delhi __________________________________________________________________ FIR No.123/2013, PS. Madhu Vihar Page No.26 of 26 State Vs. Rahees Alam etc.