Delhi District Court
Criminal Appeal No. 689/2013 Titled As ... vs . State Of on 28 August, 2014
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 104/1
Unique Identification No. 02404R0364032011
State
Versus
1. Jitender Kumar
S/o sh. Nathu Lal
R/o H.No. K453,
Wazirpur JJ Colony,
Delhi.
2. Ashish Kumar @ George Bush
S/o Sh. Anil George
R/o H.No. 265, Delhi Admn. Flats,
Nimri colony, Ashok Vihar, Delhi.
FIR No. 176/10
PS Keshav Puram
U/s. 392/394/34 of IPC
Date of Decision: 25/08/2014
Date of Order on Sentence: 28/08/2014
ORDER ON SENTENCE
28/08/2014
Present: Ld Substitute APP for State.
Convicts all three from JC.
Heard on the point of sentence.
Learned defence counsel has contended that convict Jitender is aged
about 30 years. It is further contended that he is unmarried and has to support his
parents. He is electric rickshaw driver and is earning Rs. 70008000 per
month. He has faced a lot of hardship in life and has faced trial since the year 2010.
It is further contended that he is not a previous convict nor habitual offender. It is
SC No. 104/1 1
further contended that convict Jitender is having clean past antecedents. It is further
contended that a lenient view be taken, while sentencing the convict and minimum
sentence be awarded to him.
Learned defence counsel has contended that convict Ashish @ Geroge
Bush is aged about 23 years. It is further contended that he is unmarried and he
has to support his father. He is doing private job and is earning about Rs. 10,000/
per month. It is further contended that he has faced trial since the year 2010. It is
further contended that he is not a previous convict.. It is further contended that a
lenient view be taken, while sentencing the convict and minimum sentence be
awarded to her.
On the other hand, learned APP has contended that considering the nature
and gravity of the offences proved against the convicts, appropriate sentence be
awarded upon the convicts with compensation.
Offence U/s. 392 of IPC is punishable with rigorous imprisonment for a
term which may extend to ten years and shall also be liable to fine.
Offence U/s. 394 of IPC is punishable with imprisonment for
imprisonment of life or with rigorous imprisonment for a term which may extend to
ten years and shall also be liable to fine.
I have considered the submissions made on behalf of the convicts and
also on behalf of State alongwith the age, character and antecedents of the convicts .
Considering the same, sentence of five years RI is imposed on each
convict with fine of Rs. 1000/ U/s. 392/34 of IPC. In default of payment of fine, each
convict shall further undergo one and half year simple imprisonment.
Sentence of five years RI is also imposed on each convict with fine of
Rs.1000/ U/s. 394/34 of IPC. In default of payment of fine, each convict shall
further undergo one and half year simple imprisonment.
On the point of compensation, Ld defence counsel has contended that
considering the earning capacity and family liabilities of each convict, minimum
SC No. 104/1 2
compensation be awarded.
It has been held in Delhi Domestic Working Women's forum V. Union of
India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice
Act 1972 which gave the Courts powers to make an ancillary order for compensation in
addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The
Criminal Justice Act 1982 made it possible for the first time to make a compensation order
as the sole penalty. It also required that in cases where fines and compensation orders were
given together, the payment of compensation should take priority over the fine. These
developments signified a major shift in penology thinking, reflecting the growing
importance attached to restitution and reparation over the more narrowly retributive aims
of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required
courts to consider the making of a compensation order in every case of death, injury, loss or
damage and, where such an order was not given, imposed a duty on the court to give
reasons for not doing so. It also extended the range of injuries eligible for compensation.
These new requirements mean that if the court fails to make a compensation order, it must
furnish reasons. Where reasons are given, the victim may apply for these to be subject to
judicial review. The 1991 Criminal Justice Act contains a number of provisions which
directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in
Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of
Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation
have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to
the violations of human rights or international humanitarian law. Restitution requires inter
alia, restoration of liberty, family life, citizenship, return to one's place of residence, and
restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage
resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical
services.
SC No. 104/1 3
In view of above, on account of Physical or mental harm, including pain,
suffering and emotional distress and loss of valuable articles, which could not be
recovered along with expenditure made by the complainant on the treatment,
compensation to the tune of Rs. 5000/ is awarded against each convict. In default of
payment of compensation, convict each , shall further undergo sentence of six months
SI.
Convict Jitender remained in custody in this case from 30/05/10 to
23/07/10 and is in custody from 25/08/2014 till today.
Convict Ashish Kumar @ George remained in custody in this case
from 28/11/2011 to 07/09/2012 and is in custody from 25/08/2014 till today
Both the substantive sentences of imprisonment shall run concurrently.
Benefit of Section 428 of Cr.P.C. be also given to the convicts.
Compensation if deposited and no appeal is preferred within the period
of limitation, then the same be released to the complainant.
Fine and compensation not deposited.
Convicts are remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 28th of August 2014 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 104/1 4
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 104/1
Unique Identification No. 02404R0364032011
State
Versus
1. Alok @ Lala
S/o Sh. Pan Singh
R/o H.No. 216,
Delhi Administration Flats,
Nimri colony, Wazirpur, Delhi.
FIR No. 176/10
PS Keshav Puram
U/s. 392/394/34 and 397 of IPC
Date of Decision: 25/08/2014
Date of Order on Sentence: 28/08/2014
ORDER ON SENTENCE
28/08/2014
Present: Ld Substitute APP for State.
Convicts all three from JC.
Heard on the point of sentence.
Learned defence counsel has contended that convict Alok @ Lala is
aged about 29 years. It is further contended that he is married and he has wife, who
is pregnant and is also having old ailing parents to support. He is only bread earner of
the family. He is doing a private job and is earning Rs. 56 thousand per month. It
is further contended he has faced a lot of hardship due to this case and has faced
trial since the year 2010. It is further contended that he is not a previous convict nor
habitual offender. It is further contended that convict Alok @ Lala is having clean
SC No. 104/1 5
past antecedents. It is further contended that a lenient view be taken, while sentencing
the convict and minimum sentence be awarded to him.
On the other hand, learned APP has contended that considering the nature
and gravity of the offences proved against the convicts, appropriate sentence be
awarded upon the convicts with compensation.
Offence U/s. 392 of IPC is punishable with rigorous imprisonment for a
term which may extend to ten years and shall also be liable to fine.
Offence U/s. 394 of IPC is punishable with imprisonment for life or with
rigorous imprisonment for a term, which may extend to ten years and shall also be
liable to fine.
Offence u/s 397 of IPC is punishable with imprisonment which shall not
be less than seven years.
I have considered the submissions made on behalf of the convict and also
on behalf of State alongwith the age, character and antecedents of the convict .
Considering the same, sentence of seven years RI is imposed upon
convict Alok @ Lala with fine of Rs. 1000/ U/s. 392/34 read with Section 397 of
IPC. In default of payment of fine, convict shall further undergo one and half year
simple imprisonment.
Sentence of five years RI is also imposed upon convict with fine of Rs.
1000/ U/s. 394/34 of IPC. In default of payment of fine, convict shall further
undergo one and half year simple imprisonment.
On the point of compensation, Ld defence counsel has contended that
considering the earning capacity and family liabilities of convict, minimum
compensation be awarded.
It has been held in Delhi Domestic Working Women's forum V. Union of
India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice
Act 1972 which gave the Courts powers to make an ancillary order for compensation in
SC No. 104/1 6
addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The
Criminal Justice Act 1982 made it possible for the first time to make a compensation order
as the sole penalty. It also required that in cases where fines and compensation orders were
given together, the payment of compensation should take priority over the fine. These
developments signified a major shift in penology thinking, reflecting the growing
importance attached to restitution and reparation over the more narrowly retributive aims
of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required
courts to consider the making of a compensation order in every case of death, injury, loss or
damage and, where such an order was not given, imposed a duty on the court to give
reasons for not doing so. It also extended the range of injuries eligible for compensation.
These new requirements mean that if the court fails to make a compensation order, it must
furnish reasons. Where reasons are given, the victim may apply for these to be subject to
judicial review. The 1991 Criminal Justice Act contains a number of provisions which
directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in
Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of
Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation
have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to
the violations of human rights or international humanitarian law. Restitution requires inter
alia, restoration of liberty, family life, citizenship, return to one's place of residence, and
restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage
resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical
services.
In view of above, on account of Physical or mental harm, including pain,
suffering and emotional distress and loss of valuable articles, which could not be
recovered along with expenditure made by the complainant on the treatment,
compensation to the tune of Rs. 5000/ is awarded against convict. In default of
payment of compensation, convict, , shall further undergo sentence of six months SI.
SC No. 104/1 7
Convict Alok @ Lala remained in custody in this case from
25/08/2010 to 03/11/2010 and is in custody from 25/08/2014 till today
All the substantive sentences of imprisonment shall run concurrently.
Benefit of Section 428 of Cr.P.C. be also given to the convict.
Compensation if deposited and no appeal is preferred within the period
of limitation, then the same be released to the complainant.
Fine and compensation not deposited.
Convict is remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 28th of August 2014 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 104/1 8
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 104/1
Unique Identification No. 02404R0364032011
State
Versus
1. Jitender Kumar
S/o sh. Nathu Lal
R/o H.No. K453,
Wazirpur JJ Colony,
Delhi.
2. Ashish Kumar @ George Bush
S/o Sh. Anil George
R/o H.No. 265, Delhi Admn. Flats,
Nimri colony, Ashok Vihar, Delhi.
FIR No. 176/10
PS Keshav Puram
U/s. 392/394/34 of IPC
Date of Decision: 25/08/2014
Date of Order on Sentence: 28/08/2014
ORDER ON SENTENCE
Present: Ld Substitute APP for State.
Convicts all three from JC.
Heard on the point of sentence.
Learned defence counsel has contended that convict Jitender is aged
about It is further contended that he is married and has to support. He is doing
work of and is earning Rs. per month He has faced a lot of hardship in life and
has faced trial since the year 2010. It is further contended that he is not a previous
convict nor habitual offender. It is further contended that convict Jitender is having
SC No. 104/1 9
clean past antecedents. It is further contended that a lenient view be taken, while
sentencing the convict and minimum sentence be awarded to him.
Learned defence counsel has contended that convict Alok @ Lala is
aged about years. It is further contended that he is married, to support and he is
only bread earner of the family. He is working as and is earning. It is further
contended he has faced a lot of hardship due to this case and has faced trial since
the year 2010. It is further contended that he is not a previous convict nor habitual
offender. It is further contended that convict Alok @ Lala is having clean past
antecedents. It is further contended that a lenient view be taken, while sentencing the
convict and minimum sentence be awarded to him.
Learned defence counsel has contended that convict Ashish @ Geroge
Bush is aged about years. It is further contended that he is unmarried and to look
after and their life will become miserable without parents. It is further contended
that she has faced trial since the year 2011. It is further contended that she is not a
previous convict nor habitual offender. It is further contended that convict Ashish @
Geroge is having clean past antecedents. It is further contended that a lenient view be
taken, while sentencing the convict and minimum sentence be awarded to her.
On the other hand, learned APP has contended that convicts are anti
social elements and prosecution has proved the case against them beyond reasonable
doubts. It is further contended that considering the nature and gravity of the
offences, appropriate sentence be awarded upon the convicts with compensation.
Offence U/s. 392 of IPC is punishable with rigorous imprisonment for a
term which may extend to ten years and shall also be liable to fine.
Offence U/s. 394 of IPC is punishable with imprisonment for an
imprisonment of life or with rigorous imprisonment for a term which may extend to
ten years and shall also be liable to fine.
I have considered the submissions made on behalf of the convicts and
also on behalf of State alongwith the age, character and antecedents of the convicts .
SC No. 104/1 10
Considering the same, sentence of imposed on each convict with fine of
Rs. / U/s. 392/34 of IPC. In default of payment of fine, each convict shall
further undergo nine months simple imprisonment.
Sentence of is also imposed on each convict with fine of Rs. ________
U/s. 394/34 of IPC. In default of payment of fine, each convict shall further undergo
nine months simple imprisonment.
On the point of compensation, Ld defence counsel has contended that
convict Jitender is earning around per month, convict Alok @ Lala is earning
around Rs. 50,000/ per month. It is further contended that convict Ashish Kumar @
Geroge Bush is earning Rs. It is further contended that all the convicts have
responsibilities towards their families, so considering the liabilities of the convicts,
minimum compensation be awarded.
It has been held in Delhi Domestic Working Women's forum V. Union of
India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice
Act 1972 which gave the Courts powers to make an ancillary order for compensation in
addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The
Criminal Justice Act 1982 made it possible for the first time to make a compensation order
as the sole penalty. It also required that in cases where fines and compensation orders were
given together, the payment of compensation should take priority over the fine. These
developments signified a major shift in penology thinking, reflecting the growing
importance attached to restitution and reparation over the more narrowly retributive aims
of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required
courts to consider the making of a compensation order in every case of death, injury, loss or
damage and, where such an order was not given, imposed a duty on the court to give
reasons for not doing so. It also extended the range of injuries eligible for compensation.
These new requirements mean that if the court fails to make a compensation order, it must
furnish reasons. Where reasons are given, the victim may apply for these to be subject to
judicial review. The 1991 Criminal Justice Act contains a number of provisions which
directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in
Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of
SC No. 104/1 11
Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation
have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to
the violations of human rights or international humanitarian law. Restitution requires inter
alia, restoration of liberty, family life, citizenship, return to one's place of residence, and
restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage
resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical
services.
Ld APP has contended that
In view of above, on account of loss of love and affection and the cost of
upbringing and maintenance of the minor child including pain, suffering and emotional
distress; a compensation of Rs. 2,50,000/ is awarded against convict and Rs. 1,
50,000/ is awarded against convict payable to the minor child for her upbringing and
maintenance. In defualt of payment of compensation, convict each , shall further undergo
sentence of six months SI.
Convict Jitender remained in custody in this case from
Convict Ashish Kumar @ George is in custody in this case from
Both the substantive sentences of imprisonment shall run concurrently.
Benefit of Section 428 of Cr.P.C. be also given to the convicts.
Compensation if deposited and no appeal is preferred within the period
of limitation, then the same be given to the daughter of deceased Jyoti.
Fine and compensation not deposited.
Convicts are remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 26th of May, 2014 Additional Sessions Judge
SC No. 104/1 12
Fast Track Court, Rohini Courts,Delhi.
SC No. 104/1 13
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 104/1
Unique Identification No. 02404R0364032011
State
Versus
1. Jitender Kumar
S/o sh. Nathu Lal
R/o H.No. K453,
Wazirpur JJ Colony,
Delhi.
2. Alok @ Lala
S/o sh. Pan Singh
R/o H.No. 216,
Delhi Administration Flats,
Nimri colony, Wazirpur, Delhi.
3. Ashish Kumar @ George Bush
S/o Sh. Anil George
R/o H.No. 265, Delhi Admn. Flats,
Nimri colony, Ashok Vihar, Delhi.
FIR No. 176/10
PS Keshav Puram
U/s. 392/394/397/411/34 IPC
Date of institution of the case: 06/01/2011
Arguments heard on: 20/08/2014
Date of reservation of order: 20/08/2014
Date of Decision: 25/08/2014
JUDGMENT
This case was registered on the statement of one Harsh Chauhan on 29/05/2010, u/s. 394/34 of IPC. Prior to that, DD No. 58B was recorded at PS Keshav Puram on 29/05/2010 to the effect that near Keshav Puram police station, SC No. 104/1 14 three boys, having long hair, riding on motorcycle no. DL8SAG8054 had snatched money, mobile phone and ring. Copy of this DD was handed over to ASI Bhagwat Singh, who left for the spot along with Ct Parvinder.
At the spot, complainant Harsh Chauhan met them in injured condition, who was sent to BJRM hospital and was medically examined. Thereafter, statement of complainant was recorded. On his statement, rukka was prepared and case was got registered u/s. 394/34 of IPC.
During investigation, rough site plan of the place of occurrence was prepared. Statements of witnesses were recorded. Ownership details of motorcycle no. DL8SAG8054 were obtained and raid was conducted at H.No. K453, Wazirpur, JJ colony, of accused Jitender, who was arrested on the identification of complainant Harsh Chauhan. His personal search was conducted. He also got recovered one motorcycle no. DL8SAG8054, which was used in the commission of the crime. It was seized by preparing a memo. He also made disclosure statement, wherein he disclosed about involvement of his other coaccused persons Alok @ Lala and Ashish Kumar @ George Bush. He also pointed out the place of occurrence. Pointing out memo was prepared in this regard. Two days PC remand of accused Jitender was obtained to recover the looted property and to arrest the coaccused persons. In the meantime, ASI Bhagwat Singh was transferred so, investigation was carried out by ASI Udai Singh.
On 25/08/2010, accused Alok @ Lala was arrested in this case. His personal search was conducted. He also made disclosure statement. He got recovered one silver ring from his house, which was seized by preparing a memo. He also pointed out the place of occurrence. Pointing out memo was prepared in this regard. Thereafter, on transfer of ASI Udai Singh, investigation was handed over to SI Rakesh Duhan.
During investigation, result on the MLC of injured was obtained. Accused Ashish Kumar @ George Bush could not be arrested, so, his NBWs were SC No. 104/1 15 got issued. Thereafter, proceedings u/s. 82 of Cr.P.C. were initiated. On 12/10/2010, accused was declared proclaimed offender.
On completion of investigation, chargesheet was filed against all the three accused persons, showing accused Ashish @ George Bush as proclaimed offender, u/s. 392/394/397/411/34 of IPC on 06/01/2011. Case was committed to the Court of Session on 10/05/2011 and was received on 20/05/2011. On 25/05/2011, charge u/s. 392 read with Section 34 of IPC, u/s. 394 read with section 34 of IPC and u/s. 397 of IPC was framed against accused Alok @ Lala, whereas charge u/s. 392 read with Section 34 of IPC and u/s. 394 read with section 34 of IPC was framed against accused Jitender Kumar, to which, they pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW6. In the meantime, on 25/01/2012, supplementary chargesheet has been filed against accused Ashish Kumar @ George Bush. Same was committed to the Court of Session on 10/02/2012 for 15/02/2012. On 26/04/2012, charge u/s. 392 read with Section 34 of IPC and u/s. 394 read with Section 34 of IPC was framed against accused Ashish Kumar @ George Bush, to which, he pleaded not guilty and claimed trial. Thereafter, PW1 to 6 were again recalled for examination against accused Ashish Kumar @ George Bush.
Thereafter, PW6 to 16 were examined. So, in all, PW1 to 16 were examined by the prosecution to support its case. On completion of the evidence of the prosecution, statements of all the three accused persons were recorded u/s. 313 Cr. P.C., wherein they have denied the case of the prosecution and have claimed false implication.
In defence, accused Jitender has examined DW1.
I have heard learned APP for the State, learned defences counsels for all the three accused persons and have gone through the material placed on record with evidence adduced.
PW2 Lady Constable Sunita has deposed that on 29/05/2010, she was SC No. 104/1 16 posted at PS Keshav Puram and was working as DD Writer from 8.00 AM to 4.00 PM. On that day, at 9.25 a.m., wireless operator came to her and informed that near Keshav Puram Metro Station, three boys, on motorcycle no. DL8SAG8054 of red colour, having long hairs, had snatched money, mobile and ring. On this information, she recorded DD no. 58B, which was assigned to ASI Bhagwat Singh, who left the spot along with Ct Balwinder. Copy of DD is Ex. PW2/A. She has produced original DD register before the Court.
Complainant/injured Harsh Chauhan has been examined as PW1. He has stated that on 29/05/2010, he was coming from Sultan Pur Mazra and was going towards his house. At about 9.00/9.15 p.m., when he entered the Rani Jhansi Stadium, Keshav Puram, C3 block, suddenly, one boy threw a stone on him, which struck on his abdomen, due to which, he bent forward. Thereafter, two boys came from his backside. One of them caught hold his hair and the other caught hold his both the hands and thereafter, all the said three boys took him inside the stadium. The boy, who had thrown stone on him, hit him with a baseball bat on his head, one blow landed on his head and one blow landed on his hand, while he was defending himself.
PW1 has identified accused Jitender as the same, who had thrown stone on him and hit him with a baseball bat, accused Alok @ Lala as the same, who had shown him a knife and asked him to keep mum and also removed his silver ring, having Panna gem fitted in the said ring, from the little finger of his right hand. He has further deposed that he could identify the third boy, if shown to him, who had removed Rs. 132/, and his mobile phone make Samsung bearing no. 9278902342 and photocopy of his election I/card from the pocket of his pant. After robbing him, accused Alok @ Lala said "kamaate ho to humein nahin doge, hum is desh ke raja hai". PW1 has voluntarily stated that but he did not disclose this fact to the police, while recording his statement. Thereafter, the accused persons fled away from the spot on a bike bearing registration no. DL8SAG8054. On being putting question SC No. 104/1 17 whether there was any problem while starting the bike, the witness has replied that initially, bike did not start and one of the accused said "jitender teri bike start nahin ho rahi hai", and from this, he came to know the name of one of the accused.
PW1 has further deposed that thereafter, the bike started and accused persons fled away. From the spot, he went to his house and thereafter, he along with his brother reached at the PS. His brother telephoned his father and he also reached at the PS. His statement was recorded in the PS, which is Ex. PW1/A. PW1 has further deposed that on 30/05/2010, he along with ASI Bhagwat Singh and one more police official joined the investigation of this case and reached at K453, JJ Colony,Wazirpur, Delhi, where he identified accused Jitender Kumar, who was standing outside his house and his said bike bearing no. DL8SAG8054 was also parked there. On his identification, accused Jitender was arrested and the said bike was seized by the IO. Arrest memo and personal search memo of accused Jitender Kumar are Ex. PW1/B and Ex. PW1/C respectively. The seizure memo of the said motorcycle is Ex. PW1/D. On that day also, his statement was recorded by the IO.
PW1 has further deposed that after about three months of the incident, exact date, he does not remember, it was either 24 th or 25th August, 2010, police officials reached at his house and he joined the investigation of this case and in search of the accused, they all reached at Major Dhyan Chand Stadium, where he saw accused Alok @ Lala, while sitting in a park, whose name he came to know later on, being one of the robbers and on his identification, accused Alok @ Lala was apprehended by the police, who confessed his guilt on being interrogated by the police. He was arrested and his personal search was conducted vide memos Ex. PW1/E and Ex.PW1/F respectively. IO recorded his disclosure statement Ex. PW1/G. Accused also pointed out the place of occurrence vide pointing out memo Ex. PW1/H. PW1 has further deposed that in pursuant to his disclosure statement, SC No. 104/1 18 accused Alok @ Lala led the police party to his residential house and from the drawer of his computer table, which was lying in one of the room of his house, his said silver ring, which was fitted with Panna, was recovered. He identified the same, which was robbed from his possession by the accused persons. The said silver ring was seized by the IO after preparing a pullanda, which was sealed with the seal of 2nd IO Udai Singh, but he does not remember the seal impression. Seizure memo of the ring is Ex. PW1/J. PW1 has further deposed that SIM in his mobile was in the name of his father Anil Chauhan. He was unable to trace the bill of his said silver ring.
PW1 has identified the silver ring fitted with green colour gem before the Court as Ex. P1, which was robbed by the accused persons and was recovered at the instance of accused Alok @ Lala. He has also identified the motorcycle no. DL8S AG8054 before the Court as Ex. P2, which was used by the accused persons in the commission of offence and was later on recovered from the house of accused Jitender.
PW1 Harsh Chauhan has been recalled for examination against accused Ashish, who was arrested as proclaimed offender. He has identified accused Ashish @ George Bush before the Court as the same, who had taken out his mobile phone make Samsung, some rupees and documents from the pocket of his pant at the time of occurrence.
PW1 has further deposed that on 30/11/2011, on being called by the IO SI Rakesh Duhan, he reached at Tihar Jail to participate in the TIP proceedings and had joined the proceedings in Tihar Jail conducted by the Ld. MM. At that time, on seeing accused Ashish, he identified him before the ld. MM as one of the accused, who had committed robbery with him on the date, time and place. At that time, he signed the TIP proceedings conducted by the Ld. MM. After TIP proceedings, IO had also made inquiries from him regarding the specific role played by accused Ashish and recorded his statement, in which, he explained about the specific role played by SC No. 104/1 19 the accused. PW1 has identified his signatures at point A on TIP proceedings Ex. PW1/K. PW4 ASI Bhagwat Singh is the first IO of the case. He has stated that on 29/05/2010, he was posted at PS Keshav Puram as ASI. On that day, on receiving DD no. 58B, he along with Ct Parvinder reached at C3 Block, Rani Jhansi Stadium, Keshav Puram, Lawrence Road, Delhi, where complainant PW1 Harsh Kumar met them, who narrated the facts of the incident to him. Firstly, he got him medically examined at BJRM hospital and collected his MLC. Thereafter, he recorded statement of Harsh Chauhan Ex. PW1/A, on which, he prepared rukka Ex. PW4/A and handed over the same to Ct Parvinder,who went to PS and after getting the FIR registered came back at the spot and handed over the copy of FIR and original rukka to him. He prepared site plan Ex. PW4/B at the instance of complainant and searched the accused persons, but they were not traceable.
PW3 HC Jai Prakash has deposed that on 29/05/2010, he was posted at PS Keshav Puram and on that day, he was working as Duty Officer from 4.00 p.m. to 12.00 night. At about 11.55 p.m., he received rukka, sent by ASI Bhagwat through Ct Parvinder, on the basis of which, he got recorded FIR of this case on computer through computer operator. Computerized copy of FIR is Ex. PW3/A. Further investigation was also taken up by ASI Bhagwat Singh. He made his endorsement on the rukka, which is Ex. PW3/B. PW4 ASI Bhagwat Singh has further deposed that on 30/05/2010, he along with PW6 Ct Narender and complainant left the PS in search of the accused persons and reached at Wazirpur JJ Colony, K Block, H.No. K453, where accused Jitender was present outside his house. He was apprehended at the instance of complainant. He was interrogated. Accused confessed his crime. Motorcycle no. DL8SAG8054 was got recovered by the accused. It was seized vide memo Ex.PW1/D. Accused was arrested vide memo Ex. PW1/B and his personal search was conducted vide memo Ex.PW1/C. He recorded his disclosure statement Ex. SC No. 104/1 20 PW4/C. In his disclosure statement, accused Jitender had told that he could get arrest his associates and could get recover mobile phone and money. He pointed out the place of occurrence vide memo Ex.PW4/D. Thereafter, he was brought to PS and was put in lockup. The motorcycle was deposited with the MHC(M). He briefed the facts to the SHO. On the next day, accused was produced before the Court and his two days PC remand was obtained. They tried to search the other accused persons, but they were not traceable. Thereafter, he was transferred, so, he deposited the case file with the MHC(R).
Constable Narender, who had accompanied IO PW4 ASI Bhagwat Singh has been examined as PW6. Complainant PW1 Harsh Chauhan joined them and pointed out accused Jitender, who was standing at H.No. K453, K block, Wazirpur JJ Colony, as the same person, who had robbed him and accused Jitender was apprehended. Motorcycle No. DL8SAG8054 was also taken into possession. Accused was arrested and he also made disclosure statement. The witnesses have also identified the motorcycle as Ex. P2, which has been produced by superdar i.e. Nathu Lal before the Court. Nothing came out from the cross examination of this witness to disbelieve his testimony.
Learned defence counsel has contended that according to the depositions, accused Jitender was arrested on 30/05/2010 and motorcycle was also seized at that time, but seizure memo Ex. PW1/D and arrest memo of accused Jitender Ex. PW1/B are bearing the date of 31/05/2010, whereas disclosure statement Ex. PW4/C of accused Jitender is bearing the date of 30/05/2010 and pointing out memo Ex. PW4/D is bearing the date of 30/05/2010, which raises doubt as to when the proceedings were conducted.
In my view, the witnesses have explained about the same. According to the arrest memo Ex. PW1/B, accused was arrested at about 11.15 p.m., so, it was the intervening night and IO PW4 ASI Bhagwat Singh has stated in his deposition that as the next day had started at midnight, so, he put the date of 31/05/2010 on the memos. SC No. 104/1 21 So, it is not a contradiction nor raises any doubts about the proceedings conducted by the police officials regarding the arrest of accused Jitender, making of disclosure statement by him and seizure of motorcycle No. DL8SAG8054 at that time.
PW5 ASI Rishipal is the second IO of the case. He has deposed that on 04/07/2010, he was posted at PS Keshav Puram. On that day, investigation of this case was marked to him. He collected the file from MHC(R) and perused the same. He started searching the accused persons, but they were not traceable till 15/07/2010. Thereafter, he was transferred from PS Keshav Puram, so, he again deposited the file with the MHC(R).
The case was registered on the statement of complainant Harsh Chauhan, wherein he had narrated the manner, in which, incident had taken place, but the accused persons were not known to him at that time. The information of the incident was recorded as DD No. 58B on 19/05/2010, at about 9.25 p.m., in which, motorcycle number DL8SAG8054 was given, on which, three persons fled away after robbing the complainant of money, mobile phone and finger ring.
The case was solved on the basis of the motorcycle number, which was found to be belonging to one Nathu Lal, father of accused Jitender. The motorcycle has been produced before the Court and the photographs have also been placed on record. The incident had taken place at about 9/9.30 p.m. night and according to the MLC of injured Harsh Chauhan, who was beaten by the accused persons at the time of robbery, was removed to BJRM hospital by Constable Ranbir Singh with the alleged history of physical assault since one hour back. Arrival of the injured in the hospital is at about 10.45 p.m. Complainant has sustained simple injuries. One bruise on right parietal region was found and tenderness along with swelling on left forearm was found.
According to the statement of complainant, who has been examined as PW1, on 29/05/2010, he was going towards his house. At about 9.00/9.15 p.m., when he entered the Rani Jhansi Stadium, Keshav Puram, C3 block, suddenly, one boy SC No. 104/1 22 threw a stone on him, which struck on his abdomen, due to which, he bent forward. Thereafter, two boys came from his backside. One of them caught hold his hair and another caught hold his both the hands and thereafter, all the said three boys took him inside the stadium. They boy, who had thrown stone on him, hit him with a baseball bat on his head, one blow landed on his head and one blow landed on his hand, while he was defending himself. Accused Jitender had caused injuries to him with baseball bat and had also thrown stone on him. The injuries, as deposed by PW1 Harsh Chauhan are corroborating with the MLC Ex. PW10/A of complainant Harsh Chauhan. Accused Jitender has been identified before the Court by the complainant.
Accused Ashok @ Lala has also been identified by the complainant before the Court, who had shown him knife and asked him to keep mum. Accused Ashok @ Lala had removed his silver ring, having panna gem, from his little finger of right hand. The third boy removed Rs.132/, his mobile phone make Samsung and photocopy of his election I/card from the pocket of his pant and then fled away on bike no. DL8SAG8054.
According to PW1 Harsh Chauhan, accused Jitender was arrested on his pointing on 30/05/2010 from outside his house and the said bike was also found parked there. Accused was arrested and motorcycle was also seized vide memo Ex.PW1/D. Learned defence counsels for the accused persons have contended that accused persons were not named in the complaint and after the arrest of accused Jitender, he was not asked to join the TIP. It is further contended that according to cross of PW1 Harsh Chauhan, the bike could not enter the stadium from the gate, from where he entered, so, the story of the complainant that accused persons fled away on the bike is not acceptable. It is further contended that incident had taken place at about 9/9.15 p.m. and there was no light at the gate of the stadium. The electric poler was at a distance of 1015 feet from the gate, as stated by PW1 Harsh Chauhan in his cross examination. He has also failed to disclose either there was SC No. 104/1 23 tube light or bulb light. It is further contended that source of light has not been shown in the site plan, so, the identity of the accused persons is doubtful. It is further contended that neither stone, with which, complainant was hit has been recovered nor the baseball bat could be recovered from the place of incident or from the possession or on the pointing of the accused persons, hence, witness cannot be relied upon.
According to cross of PW1 Harsh Chauhan, he had seen the face of accused Jitender, when he threw stone on him and the injuries sustained by injured Harsh Chauhan are corroborating with the manner, in which, he was beaten by the accused persons. The case was solved on the basis of the number of the motorcycle, which initially was disclosed in the DD, when the information was recorded, so, there could not be any possibility of false implication of the accused persons. Accused Jitender was apprehended and arrested on the pointing of complainant, so, there was no need to join the accused in TIP. According to cross of PW1 Harsh Chauhan, registration number was written in two rows, which is corroborating with the photographs of the motorcycle placed. According to statement of PW1 Harsh Chauhan, initially the bike did not start and one of the accused said "Jitender teri bike start nahin ho rahi hai", which shows that complainant came to know the name of accused Jitender at the time of incident. In the cross examination, PW1 Harsh Chauhan has stated that his statement Ex. PW1/A was recorded after return from the hospital or may be before, which clarifies that complainant was medically examined from BJRM hospital. According to cross of PW1 Harsh Chauhan, he was taken to hospital in PCR van and PW4 ASI Bhagwat Singh had accompanied him in the van, when he was taken to hospital, which corroborates the testimony of PW4 ASI Bhagwat Singh, who has stated that firstly, he got the complainant medically examined at BJRM hospital and collected his MLC. Name of PW4 ASI Bhagwat Singh is also appearing on the MLC Ex. PW10/A. So, there is no contradiction in conducting medical examination of the complainant and also in recording his statement by the IO. From the cross examination of PW4 ASI Bhagwat Singh, it is SC No. 104/1 24 clear that there was dim light at the gate of the stadium and further, after discharge from the hospital, injured came to PS along with his father at about 10.30/11.00 p.m. Contradiction about taking the injured to BJRM hospital either in PCR van or in the TSR with constable Parvinder is not material in any manner in view of the MLC of injured, wherein name of one Constable Ranbir Singh is appearing, who had removed the injured to the hospital and was PCR official and further the MLC was collected by PW4 ASI Bhagwat Singh of injured from the hospital.
It is further contended by learned defence counsels that according to the deposition of PW1 Harsh Chauhan, after the incident, he came back to his house and thereafter, he along with his brother reached at the PS. His father also reached at the PS, who was informed by his brother. His statement was recorded at the PS, which is Ex. PW1/A. It is further contended that this fact is not corroborating with the MLC Ex. PW10/A or with the deposition of the IO as PW4 ASI Bhagwat Singh, initially who reached at the spot on receipt of DD No. 58B along with Constable Parvinder, found complainant present there and firstly, he got him medically examined from BJRM hospital and thereafter, he recorded his statement Ex. PW1/A. He also prepared rukka and handed over the same to Ct. Parvinder, who got registered the case and again came back to the spot and handed over copy of FIR and rukka to him. It is further contended that Constable Parvinder is not a witness to the case of the prosecution and it is not certain whether complainant's statement was recorded in the PS or at the spot. It is also not certain whether the complainant was got medically examined from BJRM hospital by Constable Parviner or by Constable Ranbir Singh. It is further contended that Constable Ranbir Singh is also not a witness to the case of the prosecution. It is also not certain as to how the complainant was got medically examined from BJRM hospital, as to whether by PW4 ASI Bhagwat Singh through Constable Parvinder or he was sent for his medical examination from PS or was sent for his medical examination from the spot. So, the contradictions appearing regarding the investigation in the statements of the witnesses i.e. PW1 Harsh Chauhan and PW4 SC No. 104/1 25 ASI Bhagwat Singh are material, hence, both the witnesses cannot be relied upon. It is further contended that even PW1 Harsh Chauhan has not been able to depose before the Court as to whether he was got medically examined and was sent to BJRM hospital from the spot or from the PS. According to PW1 Harsh Chauhan and PW4 ASI Bhagwat Singh, on 30/05/2010, complainant joined investigation with PW4 ASI Bhagwat Singh with one more Ct Narender and they reached at H.No. K453, Wazirpur JJ Colony, K Block, where complainant identified accused Jitender, who was standing outside his house and bike no. DL8SAG8054 was also found parked there. Accused was arrested. He made disclosure statement and the bike was seized vide memo Ex.PW1/D. Accused Jitender has not raised any defence except that he has been falsely implicated in this case and the motorcycle has been planted against him and that he was shown to the complainant outside the court at the time of recording evidence, on the basis of which, complainant had identified him. Accused Jitender has also examined one defence witness. She is Bhagwati, who has been examined as DW1. She has stated that accused Jitender is her cousin brother. On 29/05/2010, accused had come alone to her house at Rithala at about 34.00 p.m. to collect the committee money and stayed at her house in the night and left her house on the next day at about 10/11.00 a.m. By examining DW1 Bhagwati, accused Jitender has raised the plea of alibi, but the witnesses regarding his arrest have not been cross examined on this aspect. It is suggested to PW1 Harsh Chauhan that accused Jitender was not present at the time of incident and he had seen accused Jitender for the first time on 31/05/2010 in the PS, but both these suggestions have been denied by the witness. The suggestion that accused Jitender was seen by the complainant on 31/05/2010 in the PS is selfcontradictory to the explanation given by the accused at the time of recording his statement u/s. 313 Cr.P.C. to the extent that he was shown to the witness outside the court on the day of his examination i.e. on 20/08/2011. So, the defence raised by accused Jitender is not in consonance with the evidence brought SC No. 104/1 26 on record and accused has not been able to prove his plea of alibi in any manner.
DW1 Bhagwati has denied the knowledge of the incident and has stated in the cross examination that she came to know that a case has been registered against accused Jitender on 30/05/2010, which shows that accused Jitender was arrested on 30/05/2010. DW1 has not been able to disclose the address of Rithala, where she was residing at that time nor she has produced any document regarding her residence at Rithala, so, she has not been able to prove that on 29/05/2010, she was residing at Rithala. Even otherwise, in this respect, family members of the accused were also relevant defence witnesses, who have been withhold and not examined.
In respect of arrest of accused Jitender, PW4 ASI Bhagwat Singh has stated that he came to know the address of accused Jitender from transport authority, when he verified the particulars of the motorcycle, number of which was provided by the injured and it was confirmed on 30/05/2010, so, merely that statement of transport authority official has not been recorded nor any particulars of the motorcycle were collected does not mean that motorcycle was not belonging to father of accused Jitender i.e. Nathu Lal because the motorcycle has been taken on superdari by Nathu Lal and he has not been examined as a defence witness in any manner to the extent that on the day of incident, motorcycle was not in possession of accused Jitender or accused Jitender was present in his house or had gone somewhere, rather so called distant relative has been examined, who has failed to inspire any confidence.
According to cross of PW4 ASI Bhagwat Singh, on 30/05/2010, they left at about 9.30 p.m. in search of accused Jitender including Ct Narender and complainant from PS and they reached at the house of accused Jitender at about 9.45 p.m., where complainant had pointed out the accused from a distance of 1015 steps. The arrest memo was prepared by the IO and accused has also made disclosure statement. They remained present there for about two hours, so, nothing came out from the cross of either PW1 Harsh Chauhan or PW4 ASI Bhagwat Singh to SC No. 104/1 27 disbelieve their testimonies regarding the arrest of accused Jitender on the pointing of complainant from his house and also seizure of motorcycle No. DL8SAG8054, which was found parked at the house of accused Jitender.
In support of his contentions, learned defence counsels have relied upon 2009 (1) CCJ 615 titled as Jafar Malik Vs. State (NCT of Delhi), 2007 CRI. L.J. 1783 titled as State of Rajasthan Vs. Netrapal & Ors. , 2002 (2) JCC (SC) 631 titled as Rang Bahadur Singh & ors. Vs. State of U.P., 2003 (3) JCC 1358 titled as Mousam Singha Roy & Ors Vs. State of West Bengal, 1998 (1) CC Cases 499 (HC) titled as Ramesh Kumar Vs. State U.T. Chandigarh, 1997 CRI.L.J. 3813 titled as Puran Lal Vs. State of U.P. and 2007 (2) JCC 1003 titled as Surender Kumar & Anr Vs. The State (NCT of Delhi).
PW9 ASI Udai Singh Yadav is the third IO of the case. He has deposed that on 25/08/2010, he was posted at PS Keshav Puram. On that day, he along with PW7 Ct Lokesh Kumar and PW8 Ct Yadvender went to the house of complainant, who was joined in the investigation. Thereafter, they left in the search of accused Ashish and Alok. They reached at Nimri Colony, at Delhi Administration Flats, from where, they made inquiries from the watchman of the locality, who informed them that accused Alok had left the colony approximately half an hour earlier. Thereafter, they came out from the colony in his search.
PW9 has further deposed that at about 1.00 p.m., complainant PW1 Harsh Chauhan noticed accused Alok sitting in the park, under a tree near Dhyan Chand Stadium. He pointed out towards him, at which, accused Alok was apprehended. He made interrogation from accused Alok and recorded his disclosure statement Ex. PW1/G. In pursuance of his disclosure statement, accused Alok took them to his house and after reaching there, he took out a silver ring with stone from the drawer of computer table. The said ring was converted into a pullanda and was sealed with the seal of "USY" and was seized vide memo Ex. PW1/J. Thereafter, SC No. 104/1 28 accused Alok was arrested vide memo Ex.P W1/E and his personal search was conducted vide memo Ex. PW1/F. Thereafter, accused pointed out the place of incident vide pointing out memo Ex. PW1/H. Thereafter, they came back to PS. He deposited the case property in the malkhana and recorded the statements of the witness. PW9 has identified the said ring before the Court as Ex. P1.
PW7 Ct Lokesh Kumar and PW8 Ct Yadvender have deposed the same facts as of PW9 ASI Udai Singh Yadav.
According to PW1 Harsh Chauhan, after about three months of the incident either on 24th or 25th/08/2010, police officials came to his house and he joined investigation of this case. In search of accused persons, they reached at Major Dhyanchand Stadium, where he saw accused Alok @ Lala sitting in a park, whose name he came to know later on being one of the robber and on his identification, accused Alok @ Lala was apprehended by the police. He was interrogated and was arrested vide memo Ex. PW1/E and his personal search was conducted vide memo Ex. PW1/F. He also made disclosure statement Ex. PW1/G and pointed out the place of occurrence vide memo Ex. PW1/H. PW1 has further deposed that in furtherance of his disclosure statement, accused Alok @ Lala led the police party to his residential house and from the drawer of his computer table in a room, one silver ring fitted with Panna gem was recovered, which was belonging to him. He identified that ring at that time, which was robbed by the accused persons. The ring was sealed and seized by the IO vide memo Ex. PW1/J. PW1 has also identified the said silver ring before the Court as Ex. P1.
According to the arrest memo of accused Alok @ Lala Ex. PW1/E, the police officials were Constable Lokesh, Constable Yadvender and IO ASI Uday Singh. Constable Lokesh has been examined as PW7. He has deposed the same facts regarding joinging of the investigation by PW1 complainant Harsh Chauhan and arrest of accused Alok @ Lala and also that, accused Alok @ Lala got recovered the SC No. 104/1 29 silver ring. PW8 Constable Yadvender has also deposed the same facts regarding arrest of accused and recovery of silver ring from the possession of accused Alok @ Lala. PW9 ASI Uday Singh has also deposed the same facts regarding arrest of accused Alok @ Lala and recovery of silver ring fitted with panna gem on his pointing.
Learned defence counsel for accused Alok @ Lala has contended that PW1 complainant Harsh Chauhan, who had visited each and every room of the house of accused Alok @ Lala, has not been able to explain as to what type of articles were lying in the room, which shows that he did not join the investigation with the police, so, he cannot be relied upon. It is further contended that computer table has not been seized in any manner. There is no witness to the recovery of silver ring either from the family of accused or any public person. It is further contended that PW1 has not been able to depose the exact date of arrest of accused Alok @ Lala nor the time of arrest. It is further contended that PW1 has stated that some documents were prepared at the place of arrest and some were prepared in the PS. It is further contended that documents were prepared in this respect are arrest memo, personal search memo, disclosure statement, pointing out memo of the place of occurrence and seizure memo. So, it is doubtful whether the documents were prepared at the spot or in the PS. It is further contended that neither the seizure memo of the silver ring Ex. PW1/J nor the disclosure statement of accused Alok @ Lala is bearing the signatures of accused Alok @ Lala and PW1 Harsh Chauhan has not explained to the extent that accused Alok @ Lala had refused to sign the seizure memo and disclosure statement.
Arrest memo and personal search memo have been signed by accused Alok @ Lala, which shows that he was arrested in the manner, as deposed by the witnesses. Accused Alok @ Lala has not examined any witness in defence that he was not arrested in the manner as deposed by the witnesses or that silver ring has been planted upon him. Accused Alok @ Lala has merely stated in his statement that he has been falsely implicated in this case, but failed to point out as to what was the SC No. 104/1 30 reason for the complainant or the police officials to implicate him falsely in this case, so, the contentions of learned defence counsel are not helpful in any manner being not forceful in any manner.
According to cross of PW7 Constable Lokesh, on 25/08/2010, they left the PS at about 12.00 p.m. and reached at the house of complainant at about 12.10 p.m. After joining the complainant, they reached at Dhyanchand Stadium at about 1.00 p.m. day and prior to that, they also searched other places also. He has further stated that accused Alok @ Lala was apprehended at the instance of complainant. He was arrested from the park, in front of the stadium. The documents were prepared at the spot.
Learned defence counsel has contended that according to cross of this witness, disclosure statement was signed by accused Alok @ Lala but the same is contrary to the disclosure statement as signatures of accused Alok @ Lala are not appearing in the disclosure statement, so, this witness cannot be relied upon. It is further contended that after recovery of the silver ring, it was not tried on the complainant to ascertain as to whether it was fitting in the finger of the complainant. So, even if silver ring has been recovered, it is not proved that the same was belonging to the complainant. Moreover, complainant has not been able to bring on record any receipt of the same. It is further contended that according to cross of PW7 Constable Lokesh, one boy and a girl were present at the house of accused at the time of recovery , but they have not been made as a witness to the case, so, in absence of any independent witness, the recovery of silver ring, in the manner as deposed by the witnesses, cannot be relied upon.
In the cross examination, PW8 Constable Yadvender has stated that documents i.e. arrest memo, personal search memo and disclosure statement were prepared at the spot, where the accused was arrested and has denied that ring has been planted upon the accused. So, nothing came out from his cross examination to disbelieve his testimony.
SC No. 104/1 31
According to cross of PW9 ASI Uday Singh, they left the PS at about 12 noon, which is corroborating with the statements of PW7 Ct Lokesh and PW8 Ct Yadvender. PW9 has again affirmed in the cross examination that in furtherance of his disclosure statement, accused Alok @ Lala took out a silver ring with stone from the drawer of computer table of his house. Mother and other family members of accused were present in the house, but on seeing them, they closed the doors of other rooms inside the flat and told that they had no concern with the accused.
Learned defence counsel has contended that IO has been cross examined on the aspect that disclosure statement and seizure memo of the ring are not bearing the signatures of accused, which has been admitted by the IO, but he has not been able to explain about the same nor he had written on both the documents that accused Alok @ Lala had refused to sign the same, so, neither the disclosure statement nor the seizure memo of the ring can be relied upon.
PW1 complainant Harsh Chauhan, PW7 Ct Lokesh, PW8 Constable Yadvender and PW9 ASI Uday Singh have corroborated each other to the extent that they left the PS at 12 noon and joined the complainant in the investigation. Accused Alok @ Lala was apprehended on the pointing of complainant from the park, outside the stadium. He made disclosure statement and in furtherance of his disclosure statement, he got recovered one silver ring fitted with Panna gem, which was belonging to the complainant and the complainant had identified the same at the time of recovery. So, merely the ring was not tried in the finger of the complainant to ascertain as to whether it was belonging to the complainant or not does not go to the extent to disbelieve the witnesses regarding the recovery of the silver ring. IO has sufficiently explained about the nonjoining of family members of accused, who on seeing the police party, had closed the doors of their rooms and had told that they had nothing to do with the accused. So, in such circumstances, there could not be any public witnesses to the proceedings of recovery of silver ring. The name, parentage and addresses of both the accused were already given by accused Jitender in his SC No. 104/1 32 disclosure statement and accused Alok @ Lala was identified by the complainant and was arrested on his pointing, so, the contradictions as pointed out by learned defence counsel are not material in any respect and are not affecting the trustworthiness of the witnesses.
The finger ring has been identified by the complainant before the Court as the same, which was recovered from the possession of accused Alok @ Lala. Accused has not claimed the ownership of the ring in any manner nor it has come in the cross examination of the witnesses that the same was planted upon the accused.
PW12 HC Jai Prakash has deposed that on 31/05/2010, he was posted as MHC(m) at PS Keshavpuram. On that day, PW4 ASI Bhagwat had deposited with him one motorcycle No. DL8SAG8054 make Hero Honda CV, which he further deposited in the malkhana vide entry no. 2563/10 in register no. 19. PW12 has produced the original register no.19 in proof of the entry, copy of which is Ex. 12/A. PW12 has further deposed that on 12/06/10, as per the orders of Ld ACMM, the said motorcycle was given on superdari to Nathu Lal son of Sukhpal r/o K455, Wazirpur JJ Colony Delhi.
PW16 SI Rakesh Duhan is the IO of the case. He has deposed that on 06/09/10, he was posted as SI at PS Keshav Puram and on that day, investigation of this case was marked to him. On receipt of the case file from MHC(R) and after going through the same, he came to know that accused Jitender and Alok @ lala were already arrested by the previous IO and Coaccused Ashish @ Geroge Bush was absconding, so his NBWs were also issued by the IO. MLC of PW1 complainant Harsh Chauhan was yet to be collected , hence, he submitted MLC of complainant to the concerned doctor for obtaining opinion regarding nature of injuries sustained by complainant Harsh Chauhan, on which, doctor had opined the nature of injuries as simple. He also made efforts to arrest accused Ashish @ Geroge Bush, but accused could not be arrested. He got issued process u/s 82/83 of Cr.PC against accused Ashish @ George Bush, who was declared PO on 10/12/2010. During the course of SC No. 104/1 33 investigation, he made further inquiry from the complainant and recorded his supplementary statement on 11/10/2010.
PW16 has further deposed that on 12/12/2010, he also recorded another supplementary statement of the complainant. On the same day, he also recorded statement of Ct Parvinder u/s 161 of Cr.PC and after completing investigation, he made challan against accused Jitender, Alok @ Lala and accused Ashish @ George Bush as PO.
PW16 had further deposed that on 26/11/2011, accused Ashish @ Geroge Bush had been arrested in case FIR no 239/11, PS Bharat Nagar and case FIR No. 242/11 of PS Bharat Nagar and he was running in JC, hence on 26/11/11, he got issued his production warrants for 28/11/11. Accordingly, on 28/11/11, he reached in the concerned court of Ld ACMM, where accused Ashish @ George Bush was produced from JC in muffled face. At that time, he moved an application before Ld ACMM for interrogation of the accused, which was allowed. After interrogation, accused Ashish was formally arrested in this case vide arrest memo Ex.PW15/A. At that time, he also got recorded his disclosure statement,which is Ex.PW15/B. Thereafter, accused was sent to JC. On the same day, he moved an application before Ld ACMM for conducting the TIP of accused Ashish, which was fixed for 30/11/11. PW15 HC Jitender also accompanied him to the Court, who had also joined in the proceedings, so he recorded his statement u/s 161 of Cr.PC.
PW15 HC Jitender has deposed the same facts as of PW16 SI Rakesh Duhan.
PW16 has further deposed that on 30/11/11, as per directions given to the complainant, they reached at Tihar Jail for joining the TIP of accused Ashish, where TIP proceedings of accused Ashish @ George Bush was conducted vide Ld Link MM and at that time, he moved application for obtaining copy of TIP proceedings, which was allowed by Ld ACMM. After opening the proceedings, he came to know that accused Ashish was correctly identified by the complainant. His SC No. 104/1 34 application for conducting TIP is Ex.PW16/A. His application for obtaining the copy of proceedings is Ex.PW16/B. On the same day, he also recorded the supplementary statement of complainant Harsh, in which, complainant had specified the role of the accused persons. After that, complainant was discharged. Thereafter, he came back at the PS. PW16 has further deposed that on 02/12/11, he along with PW13 Ct Bijender reached before the Court of Ld ACMM ,where he moved an application seeking one day PC remand of accused Ashish. Copy of the said application is Ex.PW16/C. One day PC Remand of accused was allowed. Thereafter, after taking accused Ashish with them, firstly, he was medically examined and thereafter they came back to the PS, where accused was further interrogated in detail and he recorded his supplementary disclosure statement, which is Ex.PW13/A. Thereafter, accused Ashish took them to the spot near C3 Block, at Rani Jhansi stadium, where he pointed out the place of occurrence vide memo Ex.PW13/B. Efforts were also made to find out the knife, base ball bat and robbed mobile at the instance of accused at the places disclosed by him, in his supplementary disclosure statement, but nothing could be recovered from there. Hence, they came back at the PS, where accused was put up in lockup and he recorded the statement of Ct u/s 161 of Cr.P.C. and on the next day, accused was produced before the concerned court and was remanded to JC.
PW13 Ct Bijender has deposed the same facts as of PW16 SI Rakesh Duhan.
PW16 SI Rakesh Duhan has deposed the On 22/12/11, he reached at Lancers Convent School, Prashant Vihar, Rohini, where he served notice u/s 91 of Cr.PC to School authority to provide the information regarding the date of birth of accused Ashish @ George Bush . At that time, Secretary of School provided date of birth certificate of accused Ashish, which is Ex.PW14/B. At that time, Secretary of School had also handed over to him MCD birth certificate of Ashish, photocopy of which is Ex.PW16/D. After completing the investigating, against accused Ashish @ SC No. 104/1 35 George Bush, he prepared supplementary challan against him.
PW14 Joginder Maan has stated that he is the Secretary of Lancers Senior Secondary School, Prashant Vihar, Rohini. On 22/12/2011, in view of notice to him u/s. 91 Cr.P.C., he had given information regarding date of birth of Master Ashish George, son of Sanjay George. As per record, Ashish George was admitted in their school on 01/04/98 in first class and left the school on 06/07/2002. At the time of his admission, father of Ashish George had submitted photocopy of birth certificate of Ashish issued by MCD, on the basis of which, date of birth of Ashish George was recorded in their school as 31/12/91. PW14 has produced the school record i.e. photocopy of birth certificate issued by MCD, admission form and withdrawal register pertaining to Ashish George. He has also produced the certified copy of the same,which are Ex. PW14/A collectively (running into 7 pages). He has identified the certificate of Ashish George issued by him in respect of his date of birth as Ex. PW14/B. He has produced the original of the same.
PW10 Dr Sameer Kad has deposed that on 29/05/2010, he was posted in BJRM hospital as Senior Resident (Orthopedics). On that day, at about 10.45 p.m., one Harsh Chauhan was examined in the hospital by Dr. Ranveer, Junior Resident vide MLC No. 10272, which is Ex.PW10/A. After examining the patient, Dr. Ranveer referred the patient to SR (Ortho). Accordingly, he examined the patient and made his endorsement Ex. PW10/B on the MLC. After examining the patient, he found the nature of injury suffered by victim Harsh Chauhan simple in nature. He also gave his opinion regarding the injury, which is Ex. PW10/C. PW11 Dr. Neeraj Chaudhary has appeared to depose on behalf of Dr. Ranveer, who has left the hospital and whose present whereabouts are not known. Dr. Ranveer had examined patient Harsh Chauhan, aged about 23 years, male, who was brought to the casualty as per MLC no. 10272 on 29/05/2010 and referred the patient to SR (Ortho). PW11 has identified the writing and signatures of Dr. Ranveer on MLC Ex. PW11/A as he had seen him writing and signing during the official course SC No. 104/1 36 of his duties.
According to PW16 SI Rakesh Duhan, on 06/09/2010, investigation of this case was assigned to him. On receipt of the case file and after going through the same, he came to know that still one of the accused Ashish @ Geroge Bush was absconding, so he got issued his NBWs. He collected MLC of PW1 complainant Harsh Chauhan and submitted the same for obtaining subsequent opinion regarding nature of injuries, which were opined as simple. He also made efforts to arrest accused Ashish @ Geroge Bush and got issued process u/s 82/83 of Cr.PC and he was declared PO on 10/12/2010.
PW16 has further deposed that on 26/11/2011, accused Ashish @ Geroge Bush had been arrested in case FIR no 239/11, PS Bharat Nagar and case FIR No. 242/11 of PS Bharat Nagar and he was running in JC, hence on 26/11/11, he got issued his production warrants for 28/11/11 and on that day, accused Ashish @ George Bush was produced before the Court in muffled face. At that time, he moved application for interrogation of the accused, which was allowed. After interrogation, accused Ashish was formally arrested in this case vide arrest memo Ex.PW15/A. He recorded his disclosure statement Ex.PW15/B and thereafter, accused was remanded to JC.
PW16 has further deposed that on the same day, he moved application before the Court for conducting the TIP of accused Ashish Ex. PW16/A, which was fixed for 30/11/11 and on that day, as per directions, he along with complainant reached at Tihar Jail for joining the TIP, where TIP proceedings were conducted. He obtained copy of TIP proceedings vide application Ex. PW16/B. From the copy of the TIP proceedings, he came to know that accused Ashish was correctly identified by the complainant during TIP proceedings.
At the time of arrest of accused Ashish @ George Bush, PW15 HC Jitender had accompanied PW16 SI Rakesh Duhan, so, he has also deposed the same facts as of IO and has specifically stated that accused Ashish @ George Bush was SC No. 104/1 37 produced in muffled face and was again sent to J.C. in muffled face.
According to PW1 complainant Harsh Chauhan, on 30/11/2011, he was called by the IO. He reached at Tihar Jail to join the TIP proceedings and had identified accused Ashish @ George Bush as one of the robber. He had signed the TIP proceedings Ex. PW1/K. In the cross examination, PW1 has denied that accused persons were known to him previously. He has also denied that accused persons were shown to him, on which basis, he identified the accused persons before the Court at the instance of police. PW1 has also denied that he was called at the PS to show the accused persons. PW1 has again stated in the cross examination that he had identified accused Ashish @ George Bush in Central Jail Tihar during TIP proceedings. He has denied that photographs of accused persons were shown to him during investigation prior to their arrest.
PW1 has also identified accused Ashish @ George Bush before the Court as the same, who had committed robbery with his coaccused persons on the date, time and place, as deposed by him.
On 02/12/2011, PW16 SI Rakesh Duhan along with PW13 Constable Bijender had gone to the Court of Ld. ACMM and one day PC remand was obtained of accused Ashish @ George Bush vide application Ex.PW16/C and after PC remand, supplementary disclosure statement of accused was recorded Ex. PW13/A. Accused had pointed out the place of occurrence vide memo Ex. PW13/B. Knife, baseball bat and robbed mobile could not be recovered, so, they came back to PS and accused was remanded to J.C. on the next day. So, in this manner, accused Ashish @ George Bush was formally arrested in the Court on production warrants and in furtherance of disclosure statement and supplementary disclosure statement, nothing could be recovered, but accused Ashish @ George Bush has been identified in the TIP proceedings at Central Jail Tihar and also before the Court by PW1 complainant, who has denied that he identified the accused because photograph of the accused was SC No. 104/1 38 shown to him prior to the arrest of accused. None of the police official has been cross examined on the aspect as to from where, they came in possession of the photographs of the accused persons. No point has been raised regarding illegal custody of the accused persons by the police. Accused Jitender was apprehended and arrested on the pointing of complainant. Accused Alok @ Lala was also apprehended and arrested on the pointing of complainant. Nothing came out from the cross examination of the witnesses to disbelieve their testimonies regarding the identity of the accused persons as the case was solved on the basis of the motorcycle number, which was given by the complainant, while informing the police, on which basis, DD entry Ex. was recorded and the said motorcycle was found to be belonging to father of accused Jitender.
The judgments relied upon by learned defence counsels are in respect of identification of accused persons and trustworthiness of the witnesses and about their creditability, but I am afraid, in view of the deposition of PW1 complainant Harsh Chauhan, which remained unrebutted and unshaken during cross examination coupled with the fact that two of the accused Jitender and Alok @ Lala were arrested on his pointing out and further, one finger ring of silver with panna gem was also recovered from the possession of accused Alok @ Lala, the judgments are not applicable to the facts and circumstances of the present case.
The testimony of PW1 complainant Harsh Chauhan has been corroborated by other witnesses. Accused Ashish @ George Bush was identified by the complainant during the TIP and when he was formally arrested in this case, accused was produced from J.C. in some other case, in muffled face and he was sent back to J.C. in muffled face, so, there was no possibility/occasion of seeing accused Ashish @ George Bush in the Court at the time of his formal arrest by the complainant. The witnesses have also not been cross examined on this aspect that complainant had seen accused Ashish @ George Bush at that time in the Court, when he was formally arrested on production warrants.
SC No. 104/1 39
It has been held in Bhogin Bhai Hirji Bhai Vs State of Gujarat, AIR 1983 SC 753:
"By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
Ordinarily, it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence, which so often has an element of surprise. The mental faculties, therefore, cannot be expected to be attuned to absorb the details."
The learned defence counsels for the accused persons have pointed out certain discrepancies in the investigation, but they are not affecting the testimony of the complainant in any manner as identity of the accused persons before the court is unshaken and two of the accused were arrested on his pointing out. His testimony remained unshaken and he inspires confidence about the recovery of silver ring belonging to him from the possession of accused Alok @ Lal after his arrest.
It has been held in State of West Bengal Vs. Mir Mohd. Omar, AIR 2000 SC 2988:
"We must not forget that investigating officers are human beings. One must bear in mind the time constrains of the police officer in the present systems, the illequipped machinery they have to cope with, the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are the realities which the police force has to encounter while conducting investigation."
In respect of the nonjoining of the public witnesses, I rely upon Sanjay Alias Kaka Vs. State (NCT Delhi), AIR 2001 SC 979, wherein it has been held that independent witnesses were not associated with recovery is not sufficient to create doubt regarding truth of the prosecution version.
All the three accused persons have been charged for offences u/s. SC No. 104/1 40 392/334 of IPC and u/s. 394/34 of IPC. Accused Alok @ Lala has also been charged for offence u/s. 397 of IPC.
From the deposition of the complainant corroborated by other witness and the recovery of silver ring belonging to complainant, prosecution has been able to prove beyond reasonable doubts that on the day of incident, all the three accused persons in furtherance of their common intention robbed the finger ring, mobile phone, Rs. 132/ and photocopy of his election card from his possession, while accused Jitender had given a blow on his head with baseball bat and another blow landed on the hands of the complainant, when he defended himself. Accused Alok @ lala had shown the knife, at the time of robbery, so, merely that baseball bat and knife have not been recovered during investigation is of no consequence as PW1 complainant Harsh Chauhan has deposed in detail in the examination in chief and also in the cross examination and accused persons were apprehended on his pointing out.
Accordingly, prosecution has been able to prove offences u/s. 392/34 of IPC and u/s. 394/34 of IPC against all the three accused persons beyond reasonable doubts, for which, all the three accused persons are held guilty and convicted for the same.
The prosecution has also been able to prove offence u/s. 397 of IPC against accused Alok @ Lala beyond reasonable doubts, for which, he is held guilty and convicted for the same.
Announced in the open Court
Today on: 25th of August, 2014 ( Virender Kumar Goyal)
Additional Sessions Judge,
Fast Track Court,
Rohini/Delhi
SC No. 104/1 41