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11. Date on which Order Announced : 28.07.2023.

BRIEF FACTS AND REASONS FOR DECISION:

1. The prosecution case is that on 09/11/2018, at around 05:30PM, in jungle of Tuglakabad Village Qila, near e-rickshaw stand, Chhuriya Mohalla, accused Vickey @ Murderi, Kamal @ Takkal and Shiva robbed victims Sameer Ali and Gautam Mazumdar of cash of Rs.18,000/- and two mobile phones at the point of knife. On 29/11/2018, one of the robbed Oppo mobile phone and part robbed cash of Rs.800/- were recovered from accused Kamal @ Takkal and Shiva respectively, whereas, the knife used to commit robbery was recovered from accused Vickey @ Murderi.

5. (a) PW2/victim Sameer Ali deposed that on 09/11/2018, at about 05:30PM, after attending nature's call in forest of Tuglakabad village, when he alongwith his friend Gautam Mazumdar was returning, three boys came from their behind, out of whom one boy showed and pointed a knife on stomach of Gautam Mazumdar. He deposed that another boy hit him with elbow and snatched his Oppo F1 Plus mobile phone having Sim No.8851506793, whereas, the third boy snatched Rs.17,000 - 18,000/- from Gautam Mazumdar and, thereafter, all of them fled from the spot. He deposed that he went back to his home and informed the police about the incident from the mobile phone of his friend Deepu Das. After some time police reached near to his house and recorded his statement Ex. PW2/A. He deposed that on next day police informed him about arrest of the accused persons, who robbed him and his friend, at the pointing out of his friend Gautam Mazumdar. He deposed that he visited the police station and found the accused who had hit him with his elbow and snatched his mobile phone, present there. He pointed out towards accused Shiva and correctly identified him as the accused. He also identified accused Vickey and Kamal in Court stating that both of them were arrested at the instance of accused UID No. 99/2018 FIR No. 388/2018 Shiva. PW2 further deposed that on next day police informed him about recovery of his mobile phone that he got released from the Court on superdari. He deposed that he alongwith police visited the spot and the police prepared site plan at his instance. He produced Oppo F1 Plus mobile phone, Ex. P1 in Court.

6. PW3 Deepu Das deposed that on 09/11/2018 his friends Sameer and Gautam Mazumdar told him that they were robbed in jungle near e-rickshaw stand and, on their request, he made a call to police at 100 number from his registered mobile no.9555594941.

In cross examination by Ld. Defence Counsels, he replied that he was outside the gali at that time. He admitted that he had not witnessed the incident.

7. (a) PW4 HC Ali Gohar deposed that on 09/11/2018 he was posted at PS Govind Puri and, on that day, on receipt of DD UID No. 99/2018 FIR No. 388/2018 No.40A, Ex. A-2, he reached the spot but found no one present there. He contacted the caller and, thereafter, met victims Sameer Ali and Gautam Mazumdar at police booth after a long gap. He recorded statement Ex. PW2/A of victim Sameer Ali, prepared tehrir Ex. PW4/1 and got the present case registered. He deposed that after registration of case, it was assigned to SI Devender Singh. He deposed that on 28/11/2018 he assisted IO in investigation alongwith Ct. Sanjay and in the intervening night of 28-29/11/2018, on the basis of secret information, IO arrested accused Shiva vide arrest memo Ex. PW4/2. He deposed that on interrogation Rs.800/- were recovered from possession of accused Shiva, as part of robbed amount, and the same were seized by IO vide seizure memo Ex. PW4/3. He deposed that accused Shiva disclosed the name of his co-accused persons as Kamal @ Takkal and Vickey @ Murderi, who were arrested at his instance, vide arrest memos Ex. PW4/4 and Ex. PW4/5 respectively. He deposed that the robbed Oppo golden colour mobile phone was recovered from possession of accused Kamal @ Takkal and the same was seized vide seizure memo Ex. PW4/6. He deposed that the weapon of offence i.e. knife was recovered from accused Vickey @ Murderi. IO prepared the sketch Ex. PW4/7 of recovered knife, seized it vide seizure memo Ex. PW4/8 and sealed it with the seal of 'DS'. He deposed that the IO prepared pointing out memo Ex. PW4/9 of the place of occurrence at the instance of accused persons and conducted their personal search vide memos Ex. PW4/10, Ex. PW4/11 and Ex. PW4/12, respectively. Thereafter, IO deposited the case UID No. 99/2018 FIR No. 388/2018 property in malkhana and sent the accused persons to JC. He identified all the accused persons in Court. The production of case properties was dispensed with being already exhibited in testimony of PW1 and PW2 and their identity was not disputed by Ld. Defence Counsels.

16.(d) It is strange and incomprehensible that accused Kamal @ Takkal was arrested around 20 days after the incident and was found carrying the robbed Oppo mobile phone, that too, without a SIM card (Ref. seizure memo Ex. PW4/6). Since police had UID No. 99/2018 FIR No. 388/2018 shown accused persons to the complainants in the police station for identification, there is reasonable ground to assume that police did the same in respect of case property i.e. Oppo mobile phone and currency notes Ex. P-1, and knife Ex. P-2, on account of which, recovery cannot be considered as genuine and reliable.