Delhi District Court
State vs . 1. Harish Kumar Arora @ Dada @ Kalu on 3 August, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 1184/2011
Unique Case ID: 02404R0010292010
State Vs. 1. Harish Kumar Arora @ Dada @ Kalu
S/o Sh. Gulshan Arora
R/o H. No. C200, JJ Colony,
Wazirpur, Ashok Vihar, Delhi.
(Convicted)
2. Kuldeep @ Firkancy
Badam Singh
R/o A Block, Shastri Nagar
Delhi.
Also At:
Village : Jalal Garh,
PS Rampur, Distt.: Muraina,
Madhya Pradesh.
(Convicted)
3. Naka @ Naga
S/o Not known
R/o not known
(Not Arrested)
FIR No. : 334/2009
Under Section : 392/397/34 Indian penal Code.
Police Station : Model Town
SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 1 of 58
Date of committal to Sessions Court : 28.1.2010
Judgment reserved on : 21.7.2011
Judgment pronounced on : 23.7.2011
JUDGMENT (ORAL)
Brief Facts:
As per the allegations on 6.10.2009 at about 10:50 PM opposite Sant Kripal Ashram, Delhi, the accused Harish Arora and Kuldeep with their coaccused Naka @ Naga (not arrested) in furtherance of their common intention committed robbery of purse containing Rs.15,000/, Credit Card, PAN Card, other documents, one Bracelet, one Chain, One Ring and One Mobile Phone Make Nokia 6630 belonging to the complainant Rajesh Khanna on the point of knife. Case of prosecution in brief:
The case of the prosecution in brief is that on 6.10.2009 on receipt of DD No. 46A, ASI Jaibir Singh along with Ct. Ram Kumar reached at the spot i.e. opposite Sant Kripal Ashram where complainant Rajesh Khanna met them. ASI Jaibir Singh recorded the statement of Rajesh Khanna who told the police that on 6.10.2009 he was working at American Express Bank, at Gurgaon as Assistant Manager and on that day he had gone to visit his uncle at Gujranwala Town on his motorcycle bearing No. DL 85AN 5525 and at about 10:45 PM while SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 2 of 58 he was returning back and when he reached opposite Sant Kripal Ashram, he parked his motorcycle and started talking to his sister on his mobile phone. In the meantime three boys came on a black colour Pulsar motorcycle from behind and two of them shown him knives and asked him to give whatever he had. The complainant further told the police that thereafter those boys removed his purse containing Rs.15,000/, Credit Card, PAN Card along with other important papers and also removed his Bracelet, Chain, Ring and his mobile phone make Nokia 6630 bearing No. 9899923410. The complainant further told the police that the number plate of their Pulsar motorcycle was covered with mud due to which reason he could not read the same but he could identify those persons if produced before him.
On the basis of the statement of Rajesh Khanna, ASI Jaibir Singh prepared the rukka and got the FIR registered through Ct. Ram Kumar and investigations were initiated. Thereafter, during the accused Harish @ Dada and Kuldeep @ Firkancy were arrested from Kanhaiya Nagar Metro Station but the the third accused namely Naka @ Naga could not be arrested. After completing the investigations, the challan was filed in the court.
CHARGE:
Charge under Section 392/397/34 Indian Penal Code was settled against the accused Harish Arora and Kuldeep to which they have pleaded not guilty and claimed trial.
SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 3 of 58 EVIDENCE:
In order to discharge the onus upon it the prosecution has examined as many as eight witnesses.
Public Witness:
PW1 Kamal Kumar Sharma has deposed that he was running a mobile shop in the name of M/s. K.K. Communications at Jwala Heri Market, Paschim Vihar in the year 2009 and in the month of October, 2009, exact date he does not remember, one person by the name of Dada came to his shop whom he knew earlier as he wanted to sell his mobile as he was in need of money. He has deposed that he took the mobile phone 6630 from Dada for Rs.1,000/ and paid Rs.800/ to him at once and further promised him to pay Rs.200/ later. However, later, neither the said person returned nor he took the balance money nor he received any call from him. PW1 further deposed that thereafter he sold the said mobile phone to one Raj who was doing work of ladies garments at Jawala Heri Market. The witness has correctly identified the accused Harish in the court as the person who had sold his mobile phone to him and known as Dada. Witness has also identified Nokia 6630.
On leading question qua date of incident by Addl. PP, the witness is unable to tell if the accused came to him for selling his mobile phone on 7th and states that he only remembers the it was October, 2009. SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 4 of 58
In his crossexamination by Ld. defence counsel, the witness Kamal Kumar Sharma has deposed that he was running the shop since 2008 and closed the same in October, 2009. He has deposed that he did not get the shop registered nor he obtained any licence for the same. He has stated that he also did repairing work, sale of new mobile and purchase of old mobiles. He is unable to tell the actual name of Dada or his father's name or his address and states that Dada is the friend of his friend Nitin Gupta and he met him with Nitin Gupta for the first time. He has denied the suggestion that Dada had never come to his shop nor he knew him. According to him, police met him in connection with the present case and recorded his statement but he does not remember the dates. He has deposed that he did not issue any receipt for Rs.800/. He has deposed that he had read and signed the statement recorded by the police and identified his signature on Ex.PW1/DX1. He has further deposed that he did not mention this fact regarding the sale of mobile to Raj in his statement but voluntarily adds that the police had already known this fact as Raj disclosed them about the purchase of mobile from him. He has admitted that he did not tell the police that he had sold the mobile phone to Raj for Rs.1500/. He has further admitted statement Ex.PW1/DX1 to be his own statement which was given to police and not Ex.PW/DX2. He has denied the suggestion that it was under the pressure and influence of police that he made a wrong statement to the extent that the phone was sold to Raj and he did not SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 5 of 58 know Dada previously.
PW2 Rajesh Khanna is the victim / complainant in the this case. According to him on 06.10.2009 he was coming back to his house from his Uncle's house on motor cycle No. DL 8S AN5525 and at about 10.30/10.45 p.m. on reaching near Kripal Bagh Ashram adjacent to police line, Kingsway Camp, he stopped there and was calling to his sister on the mobile and in the meantime, three boys came on the Pulsar Motorcycle of Black colour whose number of was not visible. He has further deposed that, one of those boys came to him with a big knife from the right hand side and put knife on his neck and asked him to give whatever he had. He has further deposed that, one boy was sitting on the motorcycle and other came from his left hand side and put knife on his stomach and thereafter, on pointing out of knife, he handed over them all his belongings. The witness again said that the accused had taken out his mobile phone, ring, chain, bracelet, cash, purse containing licence, PAN card, voter card and credit cards etc. and the third boy sitting on the motorcycle also came there. According to the witness, one of the boys had taken the key of his motorcycle and thereafter all three ran away from the spot on their motorcycle. According to him, his mobile phone was Nokia 6630 and number was 9899923410. Thereafter he informed the police from the phone of a Sikh gentleman and also informed his sister. Thereafter, police came there and recorded his statement Ex.PW2/A. He has duly identified the accused Harish in SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 6 of 58 the court as the main accused who had come first and pointed the knife on him. The witness has pointed towards the accused Kuldeep in the court and deposed that he may be the second person who had come towards him from other side and put another knife on his stomach. According to him, he could not see the face of the third boy. This court has made an observation that the witness has identified the accused Harish Arora and Kuldeep in the court from amongst the many persons standing in the court room. Witness has also identified mobile phone make Nokia 6630 which is Ex.P1 and the motorcycle bearing No. DL 4S BJ 2511 which is Ex.P2.
In his crossexamination by the Ld. defence counsel on behalf of accused Kuldeep, PW2 has deposed that the accused Harish was wearing black shirt on the day of the incident but he does not recollect that what Kuldeep was wearing. According to him, one person was having a butcher's knife and the other person was having a big knife but he could not tell whether the knife was of iron or steel. According to the witness, his wallet which the accused had snatched was of black colour and was of "Provogue" company. He has deposed that none of his articles were recovered. He has further deposed that he got credits cards blocked by telephonic information. He has also stated that he had not got any duplicate driving licence issued and not maintained any photocopy of old licence. According to the witness, the ring robbed by the accused was given to him as a gift by his grandmother and the chain SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 7 of 58 and bracelet were given by his father. He had given his mobile number through which the police had traced it. He is unable to tell the mobile number of the Sikh passerby who came from Gurudwara from which he called at 100 number. According to him, he had seen both the accused in the police station, one of them was wearing same black shirt. He has denied the suggestion that accused Kuldeep was falsely implicated and had no concern with the incident.
Further, in the crossexamination on behalf of accused Harish, the witness PW2 has denied the suggestion that accused Harish was not wearing black shirt and accused Harish not involved in this case and he identified him at the instance of the police. He has further deposed that he could not recollect the exact number of days when he came to know that the accused have been apprehended but it must be after about 15 days. He has admitted that he cannot tell the date on which he went to the police station after the incident to identify the accused. The witness has further deposed that the place of incident is a double road. According to him, he had told the police that one of accused came to him with a big knife from his right hand side and put that knife on his neck and asked him to give whatever he has. He also told to police that in the meantime the other boy who was also having a big knife came there from the other side and he also put knife on his stomach. Witness was confronted with the statement Ex.PW2/A where it is recorded that one of these two boys showed him a knife and asked SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 8 of 58 him to handover his belongings. According to him, he had also told to the police that the third boy sitting on the bike whom he could not see but this fact was not mentioned in the statement when he was confronted. The witness has deposed that he had told the police that in the meanwhile the third boy also came to the spot and one of the boys took out the keys of his motorcycle and thereafter all the three boys ran away on their motor cycle. However, this was not recorded in the statement Ex.PW2/A when he was confronted. He does not remember having told the police that he had called the police from the mobile of a Sikh but he had told them that he called them from a mobile of a passerby and stated that the Sikh gentleman was still at the spot when the police reached there and he told the officers that he was the person from whose mobile he called them. He has further deposed that he does not know if the police officers had recorded this aspect in the statement or not. According to the witness, the statement of the Sikh gentleman was not recorded by the police in his presence but his statement was recorded by the police two times. He has stated that it was not completely dark at the time of incident and has explained on the query of the court that there was sufficient light and he could see the persons clearly. He has denied the suggestion that there was complete darkness at the spot and he could not have identified the accused. He has further deposed that electricity poles were present on the middle verge of the road and must be about 20 feet from the spot of the incident. He has SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 9 of 58 deposed that he only told the place of incident to police but site plan was not prepared in his presence. He remained at the spot for about half an hour and Police came within 2025 minutes. He went to the police station in police vehicle and remained at the police station for about half an hour and his statement was recorded at around 11.30 p.m. According to the witness, the accused persons were not wearing helmet. He has deposed that he does not know whether any knife was recovered from the the accused or not but when he went to the police station, some knives were lying there but he does not know whether they were recovered from the accused or not. He has admitted that he did not receive any injury. He has denied the suggestion that accused did not rob him of his articles or that none of the accused was present at the spot. He has further further denied that the pulsar motorcycle Ex.P2 was not involved in the incident. He has admitted that no recovery had been effected in his presence and he does not know from where the accused persons were arrested. He has denied the suggestion that the accused Harish was not involved in the present case or that he did not see him at the spot.
PW5 Raj has deposed that he is residing on the given address and doing the business of Lady's garment from shop No. 11 Jwala Heri Market. According to him on 08.10.2009 he purchased a mobile make Nokia No. 6630 from the shop of K.K. Communication, Jwala Heri Market from Kamal Kumar for a sum of Rs.1,500/ and SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 10 of 58 thereafter he activated the same on the same date. He has deposed that he had handed over the receipt of purchase to the IO which is Ex.PW5/A. According to the witness, he handed over this mobile to the IO during the investigations vide seizure memo Ex.PW5/B bearing his signature at point A. The witness has correctly identified his mobile phone make Nokia 6630 which is ExP1.
In his cross examination by Ld. defence counsel, the witness Raj has deposed that he had gone to the shop of Kamal Kumar in the afternoon to purchase the mobile but he does not remember the exact time. According to him, the IO had come to his shop when he handed over the mobile to him. He has deposed that it was 27th of August, 2009 when he handed over his mobile to the IO. He has also deposed that no public persons had gathered at his shop when the police came there for investigations and voluntarily adds that only the IO had come and told him that the mobile was a stolen set and asked him to come with him to police station to which he complied. The witness has deposed that at that time when the IO came to his shop, he was in civil dress and voluntarily adds that he had shown him his identity card. According to the witness, the IO had come to his shop in the afternoon after about 12.00 1.00 Noon. He has deposed that he is running his shop alone and when the IO had come to his shop, the market was opened and he had handed over his mobile set to the IO at shop itself. According to the witness, the IO did not call any person from the neighbouring shops SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 11 of 58 during the investigation carried out at his shop when he handed over his mobile to him. According to him, there was one other police official with the IO. The witness has deposed that he had called his brother from the neighbouring shop when the police had come to his shop but his statement was not recorded. He further deposed that his statement was recorded by the IO at the police station. According to him, it was on the next day that his statement was recorded in the evening hours but he does not remember the date and states that the police stayed at his shop for hardly 10 to 15 minutes. According to him they did not go straight to the police station and voluntarily adds on the way to the police station he was asked by the IO from whom he had purchased the mobile and he told him that it was from Kamal Kumar whom he could identified and therefore, they went to Shastri Nagar, near the Metro Station where Kamal Kumar who had been called by him on telephone, was also present whom he identified and thereafter they went to police station. He does not remember whether he had mentioned to the IO in his statement all these details regarding going to Shastri Nagar to identify Kamal Kumar. He has denied the suggestion that they had not gone to Shastri Nagar, Metro Station to identify Kamal Kumar and for this reason this fact does not find in his statement Ex.PW5/DX1. He has admitted that the number 6630 is not mentioned on the outer surface of the mobile and voluntarily added that he can identify by the model.
He has admitted that the mobile of this make are readily available in the SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 12 of 58 market. On court question, the witness has deposed that he has identified his mobile since he had put the logo/ sticker of Vodafone on the back side cover of the mobile. The court has observed that Vodafone sticker/ logo is present on the back side cover of the mobile.
The witness has further deposed that the seizure memo Ex.PW5/B was prepared in the police station in the evening but he does not remember the exact time. According to him at the time, the seizure memo was prepared only he and Kamal Kumar were present and only his signature was taken and not the signature of Kamal Kumar. The witness has further deposed that the SIM was of vodafone and at the time when he handed over the mobile phone to the IO it was containing the SIM card which was in his name. He has also deposed that the number issued was 9811483720. He has denied that the mobile phone identified by him in the court is ExP1 does not belong to him nor he had purchased any SIM card. He has deposed that he used this set only for a few days i.e. from 08.10.2009 to 27.10.2009. The witness has denied the suggestion that the receipt Ex.PW5/A is false and fabricated document and no such receipt was issued by Kamal Kumar. He has further denied that no such seizure memo Ex.PW5/B was prepared and that it was manipulated later on by the police officers by taking his signatures. He has also denied that no mobile was purchased by K.K. Communication and no such receipt was issued or that he has deposed SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 13 of 58 falsely.
Official / Police Witnesses:
PW3 Sh. Gautam Kant Niman, Ld. MM has proved the TIP proceedings of accused Harish @ Dada vide Ex.PW3/A and Kuldeep Ex.PW3/B conducted by him on 03.11.09. PW3 has also proved the application of IO for supply of copy of TIP proceedings Ex.PW3/C and order thereof Ex.PW3/D. According to the witness, both the accused Harish @ Dada and Kuldeep had refuded to participate in the TIP proceedings. The witness has not been cross examined on behalf of the accused despite opportunity in this regard hence entire testimony has gone uncontroverted.
PW4 Jyotish Chandra Moharana, Alternate Nodal Officer, Vodafone Essar Mobile Services Ltd, has brought the summoned record and as per their record Mobile No. 9899923410 is in the name of Rajesh Khanna, S/o Sh. K.C. Khanna, R/o 1008, Mukherjee Nagar, Near Batra Cinema, Delhi, copy of the customer application form is Ex.PW4/A and the copy of the passport is Ex.PW4/B. (Original seen and returned). The witness has also brought the call details from 01/10/2009 to 16/10/2009 which is Ex.PW4/C and the certificate U/S 65 B Evidence Act is Ex.PW4/D bearing his signature at point A. The witness has also brought the call details of IMEI No. 3543500007318840 and the same is SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 14 of 58 Ex.PW4/E and the certificate U/S 65 B Evidence Act is Ex.PW 4/F bearing his signatures at point A. In his cross examination by Ld. defence counsel, the witnesses deposed that he has only produced the official record. He has admitted that customer application Ex.PW4/A bears a cutting but he is unable to give the reason for the cutting after which the new number has been given. He deposed that he does not require a separate authorization to appear and depose in the court and he is authorized by virtue of his designation. He has denied the suggestion that he is not authorized to depose in the court. He has further denied the suggestion that the data Ex.PW4/C can be altered or changed by any person and voluntarily adds that it is an authentic electronic record maintained in the server which can not be altered or changed. He has denied the suggestion that the record produced before the court is not a true electronic record.
PW6 Ct. Ram Sewak has deposed that on 27.10.2009 he was posted as a constable at PS Model Town. On that day he had joined the investigation alongwith the IO SI Jagbir Singh. According to the witness, an information had been received regarding snatching and it was in this regard that he had joined the investigation. He deposed that a mobile phone had been put on tracing and as per the information received that mobile was traced to the address of house No. 40, E Block, Camp No.2, Opposite Lokesh Cinema, Nangloi, Delhi. According to the SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 15 of 58 witness, on receipt of this information they reached the said address and were told by the residents that this mobile was purchased by their son Raj who was having a shop at Jwalaheri Market. He further deposed that thereafter they reached Jwalaheri Market in the shop of Raj bearing No.11 where they met Raj who disclosed that he had purchased this mobile from his friend Kamal having a mobile phone shop in the same market under the name of M/s K. K. perhaps it was Electronics or something of this kind which he does not remember. He has further deposed that Raj was interrogated and he handed over one mobile phone make Nokia, Model 6600 and thereafter Raj took to the shop of Kamal and Kamal was interrogated and Kamal disclosed that he had purchased this phone for Rs.1000/ from one Harish @ Dada and can also call Harish @ Dada since out of Rs.1000/ he was paid only Rs. 800/ and Rs. 200/ were remaining. The witness has further deposed that Kamal also told them that Harish @ Dada had told him that he would give him more phones. The witness has deposed that thereafter Kamal took them to Kanhayya Nagar Metro Station where he (Kamal) telephonically called Harish @ Dada. He has deposed that thereafter, the accused Harish @ Dada reached the Metro Station on a motorcycle and on pointing out of Kamal they (police) apprehended Harish and conducted his search on which three more mobile phones were recovered from his possession with regard to which he could not give satisfactory reply and therefore they (police) brought Harish to police station. According to the SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 16 of 58 witness, the accused Harish was arrested vide memo Ex.PW6/A bearing is signature at point A and was personally searched vide memo Ex.PW6/B bearing his signature at point A. The witness has further deposed that thereafter Harish was interrogated in detail wherein he made a disclosure Ex.PW6/C bearing signature of this witness at point A. The witness has deposed that accused Harish disclosed that he had snatched the Nokia Mobile Model 6600 from near the Kripal Bagh Ashram from a person who was using the mobile phone while sitting on his motorcycle by threatening him with a knife. The witness has deposed that the accused at that time was also wearing a gold chain which he disclosed that the same was belonging to him and the same was mentioned in his personal search. The witness, again said that when the accused Harish had come on motorcycle, Kuldeep (present in the court and correctly identified by the witness), was with him and the accused Harish had disclosed to the IO in the incident of snatching at Kripal Bagh, Kuldeep and Naka @ Naga were also with him. According to the witness, Harish also stated that he can call Naka @ Naga but he could not call him as his address was not verified. The witness has further deposed that the accused Kuldeep was also brought to the police station where he was arrested vide memo Ex. PW6/D and his personal search was conducted vide Ex.PW6/E and he made a disclosure statement in his presence vide Ex.PW6/F all of which SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 17 of 58 documents bear signatures of the witness at point A, respectively. According to the witness, the motorcycle make Pulsar of black colour bearing no. DL 4S DJ 2511 on which Harish and Kuldeep had come was seized vide memo Ex.PW6/G and medical of both the accused was also conducted. According to him, the complainant Khanna from whom the mobile phone was snatched was called to the police station. The witness has further deposed that the remaining three mobiles which were recovered from the possession of Harish with regard to which he could not give any satisfactory reply were seized vide Ex.PW6/H bearing signature of the witness at point A in respect of which proceedings U/s 102 Cr. P.C. were initiated.
In his cross examination by Ld. APP request with permission of the court, the witness has deposed that he does not remember whether the aforesaid mobile phone was of 6630. He has admitted that it was a phone of Nokia Company but he does not remember the IMEI number of the said mobile. He has admitted that both the accused persons namely Harish Kumar and Kuldeep lead them (police) at Sant Kripal Ashram and pointed the spot where both the accused persons along with one Naka committed robbery of mobile phone, credit card, ATM card and other documents and the memos to this effect were prepared vide Ex.PW6/I and Ex.PW6/J bearing signature of this witness at point A. He has also admitted his signatures at arrest memos at point A. He has also identified his signatures that on the seizure memo of said mobile SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 18 of 58 also at point B. He has admitted that the accused Harish lead the police party to his house at C200 J. J. Colony and got recovered one "Pudiya" which was containing one chain stated to have been snatched by him with the help of his coaccused Kuldeep from a lady. He has further admitted that the memo to this effect was prepared vide Mark X bears his signatures at point A. He has denied the suggestion that he has not stated the aforesaid facts deliberately in order to give the benefit to the accused person. The witness has correctly identified the mobile which had been produced by Raj as Ex. P1 and also the other three mobiles which are Ex. P.3, P.4 and P.5. The witness has identified the motorcycle Ex. P.2.
In his cross examination by Ld. defence counsel, the witness has deposed that he does not know the time of receiving of information regarding snatching. He left the police Station at about 4.00 PM along with Ct. Deepak and ASI Jaibir and reached at the spot on their private motorcycles at the spot at about 5.00 PM and met Raj at about 5.30 PM and then they met Kamal after 2025 minutes. He is unable to tell from which number and to which number Kamal talked to Harish. He also cannot say about the make of mobile phone from which the call was made by Kamal. He does not remember the description of the clothes worn by Kuldeep at the time of his apprehension. He deposed that the mobile phones recovered from the possession of accused Harish were of SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 19 of 58 Nokia and were of black colour. He did not collect any document regarding ownership of house of Raj. He also did not make any witness from public. He returned back to police station at about 10.00 PM with accused persons.
The witness has further deposed that his statement was recorded by the IO at Kripal Bagh at about 9.00/9.15PM on 27.10.2009. He left the police station with IO on 27.10.2009 at about 4.00 PM. He did not record his departure entry while leaving the police station. They straight away reached at Nangloi at 5.00PM. He has deposed that no writing work was done in Nangloi by the IO in his presence nor he recorded any statement of witness at Nangloi. They left Nangloi within 510 minutes and reached at Jwala Heri Market at about 5.30PM and they all were in police uniform. According to him, the shop of Raj was situated in a thickly populated market at Jwala Heri Main market and some public persons also gathered at the shop. He has admitted that many public persons were coming and going in front of the shop but no public persons were joined in the investigation at the shop of Raj. According to him, the statement of Raj was recorded by the IO at his shop at about 5.40PM. They remained at the shop of Raj for about 10 minutes and left the shop at about 5.45 PM. He has further deposed that Jwala Heri Market is situated in the Jurisdiction of PS Paschim Vihar. According to the witness, the local police was not called by the IO at the shop of Raj nor they made any entry or marked their presence at Police SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 20 of 58 Station Paschim Vihar. The witness has further deposed that they reached at the shop of Kamal at about 5.50 PM. According to him, except the statement of Raj, no other seizure memo or document was prepared by the IO at the shop of Raj. He has deposed that the brother of Raj was not present at the shop during the investigation with Raj. He is not aware how much documents were signed by him but states that they remained at the shop of Kamal for about 5 minutes and thereafter they left for Kanhayya Nagar Metro Station. He is unable to tell the distance between Kanhayya Nagar Metro Station and the shop of Kamal but they reached at Kanhayya Nagar Metro station at about 6.307.00 PM. According to him, many persons were coming and going at Kanhayya Nagar Metro Station. He is not aware whether the IO collected the call details of accused Kamal and Harish. He is unable to tell the time when the accused reached at Kanhayyha Nagar Metro Station but states that no photographs or video film was prepared by them. They remained at Kanhayya Nagar Metro Station for about 10 15 minutes but no public persons were joined by the IO at Kanhayya Nagar Metro Station. According to him, IO did not prepared any documents at Kanhayya Nagar Metro Station nor recorded any statement of any witness. They left the Kanhayya Nagar Metro Station at about 7.15 PM and thereafter they went to Kripal Bagh Ashram at about 8.00 PM. Witness is unable to tell the distance between Kripal Bagh and Kanhayya Nagar Metro Station but states that they remained SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 21 of 58 at Kripal Bagh for about 5 minutes and then left the spot. According to him the disclosure statement of the Harish was recorded at Kripal Bagh by the IO while sitting on motor cycle but he is unable to tell what facts disclosed by accused Harish. The witness has deposed that thereafter they left for Wazirpur, Delhi and reached there at about 9.00/9.15 PM for arrest of accused Naka @ Naga. He deposed that accused Naka was not traced out. They remained at Wazirpur for about 5 to 10 minutes and thereafter they reached at the house of accused Harish. He is not aware about the floor of house of the accused Harish. He has deposed that only mother of the accused Harish met them but he is unable to tell the exact address of house of accused Harish but statement of mother of the accused Harish was not recorded. They remained at the house of Harish for about 10 minutes and no documents were prepared at the house of Harish and thereafter they returned back at police station at about 10.00 PM. He states that he did not make his departure entry in the police station. He is not aware as to what documents were prepared by the IO in the police station however arrest memo of the accused Harish was prepared at Police Station. He is unable to tell the time of arrest of accused Harish in police station and states that no public person joined the investigation at the time of arrest of Harish. He has deposed that he never seen complainant of this case. He is not aware whether mobile Ex.P1 having SIM card at the time of its seizure or not. He has admitted that such type of mobile like ExP1 is easily available in the SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 22 of 58 market. He deposed that Raj was left at the shop at Jwala Heri when they (police) left the shop thereafter he not remained with them. He has deposed that only Kamal was with them at Kanhayya Nagar Metro Station and thereafter Kamal left them and he is not aware where he went. The witness has further deposed that the IO recorded his statement at Kripal Bagh at about 9.00PM. He further deposed that one private motorcycle was belonging to Ct. Deepak and other was belonging to ASI Jaivir. He has not got recorded in his statement to the IO that an information had been received regarding snatching. According to the witness, he had not got recorded in the statement given to the IO that the mobile phone has been put on the tracing and as per the information received that the mobile phone was traced to the address of H. No. 40, E Block, Camp No.2, Nangloi, Delhi. He has denied the suggestion that he had not joined the investigation of this case or that he had not visited Nangloi, Jwala Heri Market, Kanhayya Nagar Metro Station, Kripal Bagh, Wazirpur J. J. Colony and house of accused Harish or that no mobile phone was recovered by the IO in his presence from Raj. He has further denied the suggestions that no receipt was taken into possession or that the accused was not arrested in his presence or that the accused had not made any disclosure statement to the IO in his presence or that Kamal had not disclosed that he purchased this mobile phone from accused Harish. The witness has admitted that nothing was recovered from the possession or at the instance of accused Harish in this case. He SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 23 of 58 has denied that no incident of snatching occurred with complainant or that motorcycle Ex.P2 is not involved in this case in any manner. He has further denied the suggestion that the accused Harish was lifted by the police from his house on dated 25.10.2009 and wrongly confined by the police and falsely implicated in this case on 27.10.2009. He is not aware to whom the information of arrest of accused Harish was given by the IO. He has denied the suggestion that the accused Harish not visited on his motorcycle at Kanhayya Nagar Metro Station as alleged by him in his examination in chief. He has denied that he has deposed falsely.
PW7 ASI Jai Veer Singh has deposed that on 06.10.2009 he was posted at PS Model Town and on that day on receipt of DD No. 46A vide Ex.PW7/A he along with Ct. Ram Kumar reached at Sant Kripal Ashram, Sant Kripal Marg where complainant Rajesh Khanna met them and has given his statement Ex.PW2/A. He thereafter prepared rukka Ex.PW7/B and got the FIR Ex.PW7/C recorded through Ct. Ram Kumar. He has deposed that he is well conversant with the handwriting and the signature of the then Duty officer as he have seen him while writing and signing during the course of his duties. He thereafter prepared site Plan Ex.PW7/D at the instance of Rajesh Khanna and they tried to trace the accused but they could not be traced till then. According to the witness, the mobile number was got placed on CDR to trace the location of the said mobile and on on 15.10.2009 SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 24 of 58 report from CDR had came the same is marked Y1 to Y5 and it was found that the mobile was working / running in the area of Nangloi. The witness has deposed that as per the report of CDR the house was learnt as 40, Camp No.2, Nangloi, Opp. Lokesh Cinema. He thereafter along with Ct. Ram Sewak and Ct. Deepak reached the above said address but the person who was having the said mobile was not available and stated to have gone to his native village. Thereafter, on 27.10.2009 he along with Ct. Deepak and Ct. Ram Sewak again went at the aforesaid house where one Kishore met them who told them that his brother Raj was present in Jwala Heri Market and having the said mobile on which they went to Jwala Heri Market at the shop of Raj and met Raj there. Thereafter, inquiry was made from Raj about the said mobile to which he had produced the mobile phone make Nokia 6630 and informed that he had purchased the said mobile from one Kamal Kumar for a sum of Rs.1,500/. According to the witness, Raj had also placed a receipt thereof and he (witness) took the said mobile from Raj and the receipt vide seizure memo Ex.PW5/B and reciept of the said phole is Ex.PW5/A. Thereafter, they reached at the shop of Kamal Kumar who met them and who was interrogated about the said mobile and he (Kamal) has admitted that he had purchased the said phone from one Harish for a sum of Rs.1000/. The witness has deposed that, Kamal had stated that he had already paid Rs.800/ to Harish and the balance of Rs.200/ was still balance. Witness has further deposed that, SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 25 of 58 Kamal told him (witness) that he can get Harish apprehended and they asked Kamal to talk to Harish on which Kamal spoke to Harish and then they took Kamal to Kanhaiya Nagar Metro Station where Harish and Kuldeep (both correctly identified by the witness in the court) came there on one motorcycle and Kamal pointed out towards both the accused persons and left the Metro Station. Thereafter, they (police) apprehended both Harish and Kuldeep who were interrogated in this case wherein they admitted the aforesaid facts after which both the accused were arrested in this case vide Ex. PW6/A and Ex/PW6/D bearing signature of this witness at point B and personally searched vide memos Ex.PW6/B and Ex.PW6/E which also bears his signature. The witness has deposed that three other mobile phone were also recovered from accused Kuldeep out of which two mobile phones were taken from accused Harish on his personal search vide memo Ex.PW6/B. The witness has deposed that both Harish and Kuldeep were interrogated and their disclosure statements were recorded vide Ex.PW6/C and Ex. PW6/F bearing his signatures at point B and thereafter in pursuance to their disclosure statements both took them (police) to Sant Kripal Ashram and pointed out the spot of this incident and memos were prepared to this effect vide Ex.PW6/I and Ex.PW6/J bearing signature of this witness at point B and thereafter both the accused persons were brought to the police station. The witness has deposed that the SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 26 of 58 motorcycle on which they came at Kanhayya Nagar Metro Station, was also taken into possession vide seizure memo Ex.PW6/G bearing his signature at point B. Thereafter, case property was deposited in the MalKhanna and further investigation of this case was transferred to other office. The witness has correctly identified the motorcycle and mobile phone which are Ex.P1 and Ex.P2.
Ld. APP with permission of court put leading question to witness wherein witness has admitted that he had filed an application before Ld. MM for getting the Test Identification Parade of the accused Harish and Kuldeep conducted wherein both the accused had refused to participate in the Test Identification Parade Ex.PW3/A and Ex.PW3/B. In his cross examination by Ld. defence counsels, the witness has deposed that he received DD NO. 46 A at about 11 PM and left from the police station immediately after about 5 minutes on his personal bullet motorcycle bearing No. DL 2SJ0940 and reached the spot within 23 minutes and found the complainant standing alone and there was no great rush of the traffic. He has deposed that there was street light near the spot. He did not find any injury on the person of Rajesh Khanna. He has deposed that Ct. Ram Kumar took the rukka after about one hour after our arrival there but he does not remember the exact time. He also does not remember the exact time of arrival of FIR to the spot and states that he did not mentioned the street light in the site plan. He does not remember the exact date and time in which date CDR SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 27 of 58 was traced. According to him they met Raj on 27/10/2009 at Jwala heri market at about 66:30PM and the statement of Raj was recorded at the spot itself. He remained there for about 45 minutes and they reached the shop of Kamal at about 7:30 PM and the statement of Kamal was also recorded at his shop itself. They stayed at the shop of Kamal for about 45 minutes. According to the witness, Kamal talked with Harish from his shop from his own mobile and thereafter they reached at Metro station Kanhiya Nagar at about 8:45 PM. He does not remember the description and color of the clothes worn by the accused persons came at metro station Kanihya Nagar. According to him, they stopped at a distance of about 1015 paces from them (police). He has denied the suggestion that three mobile phones were not recovered from accused Kuldeep from his personal search. He has admitted that the said three mobiles recovered from the personal search of accused Kuldeep had no concern with the present case. He has deposed that the disclosure statement of accused Kuldeep was recorded near metro station Kanhaiya Nagar itself and no other documentation was done there except preparation of seizure memo and they remained at the Metro station for investigation for about one and a half hour. He has deposed that he made request from public persons to join the proceedings but none agreed and left the spot. He has deposed that they left for the spot directly from the metro station. He has stated that they prepared the memo of pointing out at the spot at about 10:3011 PM and went to the SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 28 of 58 Police Station from the spot at about 11:30PM. He states that he recorded the statement of Ct. Deepak and Ct. Ram Sewak in the police station. He has denied the suggestion that he did not conduct the investigation fairly or that the recoveries have been planted upon the accused Kuldeep or that the accused persons had not come to the metro station, Keshavpuram or that he has deposed falsely to this effect.
The witness PW7 has further deposed in his cross examination that he reached Kirpal Bagh at 11:05 PM where he remained for about one hour and only Ct. Ram Kumar was with him. He does not remember the time when he recorded the statement of complainant but has deposed that after one hour he reached to the Police Station whereas complainant had gone to his house. According to him the complainant again met him on 7.20.2009 to collect the copy of FIR. He has admitted that nothing was recovered from the possession or at the instance accused Harish in this case. He deposed that complainant disclosed him in his statement that accused Harish remained standing with his motorcycle at a distance of 56 feet from complainant and he had not shown any knife to complainant and not come close to the complainant nor he has snatched anything from him. He has denied the suggestion that Harish is not involved in this case in any manner. He has denied the suggestion that Ct Ram Kumar not reached at the spot during the time he remained present at the spot. He has denied the suggestion the site plan Ex.PW7/D was not prepared at the instance of Rajesh SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 29 of 58 Khanna. He has admitted that such type of mobile phone as Ex.P1 are easily available in the market. He left the Police Station at 6 PM along with Ct. Deepak and Ct. Ram Kumar on 27.10.2009 and reached Nangloi at about 6:30 PM but he has not placed on record the departure entry. He has deposed that the shop of Raj is situated in a thickly populated main market of Jwalahedi but no public witness was joined in the proceedings at the time of recovery of mobile phone from Raj. He has denied the suggestion that no mobile phone Ex.P1 was recovered from Raj. He deposed that the shop of Kamal is situated at a distance of 200 meters and they reached there at about 7:15 PM and remained there for 15 minutes. He has denied the suggestion that Raj had not handed over him any receipt. He has further denied the suggestion that Kamal had not issued any receipt Ex.PW5/A to Raj. He has admitted that the receipt Ex.PW5/A does not bears the father name, surname and address of Raj. According to the witness, they reached the Kanhaiya Nagar Metro Station at about 8 PM and admits that it is a thoroughfare and many public persons were coming and going at that time but no one was joined during the investigations. He deposed that he and Ct. Ram Kumar were in civil clothes during entire proceedings and they remained at Kanhaiya Nagar Metro Station for about two hours and left the same at about 10 PM. According to him, the accused did not try to run away on seeing them (police) Kanhaiya Nagar Metro Station. He has deposed SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 30 of 58 that the incident is dated 7.10.2009. From the spot they reached at police station at about 11:30 PM and he made his arrival entry at about 2:30 AM on 8.10.2009. He has denied the suggestion that the accused Harish Arora had not made any disclosure statement or that he has been falsely implicated or that all the writing work had been done at the police station. He has further denied the suggestion that he had not visited the Jwalahedi market or not recovered the mobile phone from Raj or that he had not visited the shop of Kamal or not taken any receipt into possession as the same was not handed over to him by Raj or that he had not visited the Kanhaiya Nagar Metro Station or at the spot as stated by him in his examinationinchief. He has denied the suggestion that the accused Harish was lifted from his house on 25.10.2009 and illegally detained for two days and falsely implicated and arrested in this case on 27.10.2009. He has deposed that it is mentioned on the paper Ex.PW7/DA at portion A to A that Raj tied 17 years before. He has denied the suggestion that Kamal not disclose to him that he purchased phone Ex.P1 from accused Harish. He has denied the suggestion that Ex.PW6/I and Ex.PW6/J were not prepared by him at the spot. He has also deposed that one golden chain, two mobile phones (one Nokia and one Tata Indicom), one gold kara were recovered in his personal search which belong to him. He has further denied the suggestion that his investigations is bias and tainted or that he had not investigated the case properly. He has further denied the suggestion that no such incident had SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 31 of 58 taken place or that the accused have been falsely implicated in this case.
PW8 SI Jagbir Singh has deposed that on 15.11.2009 he was handed over the investigation of the present case from ASI Jagbir Singh and he took over the file. According to him, the Test Identification Parade of the mobile could not be got conducted as the IMEI number was specifically mentioned and also because he could not get a similar mobile for mixing up. He recorded the supplementary statement of complainant on 21.12.2009 and thereafter prepared the charge sheet and thereafter file the same in the court. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
STATEMENT OF ACCUSED & DEFENCE EVIDENCE:
After completing the prosecution evidence, statement of accused under Section 313 Code of Criminal Procedure were recorded wherein all the incriminating evidence was put to them which they have denied.
The accused Harish Arora @ Dada @ Kalu has stated that he is innocent and has been falsely implicated in this case after lifting by the police from his house. According to him nothing was recovered from him or at his instance. He has stated that he was illegally detained by the police and then falsely implicated in this case. He further stated that his photograph was taken by the police and he was also shown to SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 32 of 58 the witness / complainant by the police in police station that is why he refused to join the Test Identification Parade proceedings.
Similarly, the accused Kulpdeep has deposed that he is innocent and has been falsely implicated in this case and that nothing was recovered from him or at his instance. He has further stated that he was illegally detained by the police and then falsely implicated in this case. According to him his photograph was taken by the police and he was also shown to the witness / complainant by the police in police station that is why he refused to join the Test Identification Parade proceedings. He has further stated that he was lifted by the police from Vaishno Devi Mandir, Shastri Nagar near Gulabi Bagh and falsely implicated in this case.
The accused Harish Arora has examined his father Gulshan Kumar as DW1 who has deposed that on 25th, month he does not remember, which was about 1½ years back, at 5 AM, two police persons came to his house and taken away his son Harish Kumar to a Halwai shop namely Chhabra Sweets at Nimbri Colony. According to him he asked the police persons why they were taking his son and they said that they would leave him after short inquiry but later on they falsely implicated him.
In his cross examination by Ld. Addl. PP, this witness has deposed that he does not recollect the exact month and the year but he think it was 2010. According to him when he asked those police SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 33 of 58 persons about their credentials, they told him that they are from Crime Branch. He has deposed that the shop of Chhabra Sweets was closed at that time and they were standing outside the shop. He has denied the suggestion that the person whom he said had taken his son, could be his associates or any body else and has voluntarily added that he say that they were policemen as he had received a call from the police station Model Town from one Ram Sewak of Crime Branch and he was asked to come their office. On court question if there any office of Crime Branch at Model Town where he had gone, the witness has answered that he had gone to the police station. The witness has stated that he is unable to tell the designation of Ram Sewak. He has denied the suggestion that there is no officer by the name of Ram Sewak in the Crime Branch nor any officer of the Crime Branch had lifted his son. He has further denied that he has concocted this story of the crime branch having lifted his son.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on behalf of the accused. I have also considered the testimonies of the various witnesses examined by the prosecution and have gone through the written memorandum of arguments filed by the parties. My findings are as under:
SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 34 of 58 Identity of the Accused:
In so far as the identity of accused Harish Arora @ Dada @ Kalu and Kuldeep @ Firkancy is concerned, the victim Rajesh Khanna (PW2) has in his testimony before the court correctly identified both of them. He has identified the accused Harish Arora as the main accused who had come first to him and pointed a knife on him and also identified by pointing out towards the accused Kuldeep as the person who had come from other side and put another knife on his stomach.
PW2 Rajesh Khanna has deposed that he could not see the face of the third person who was sitting on the bike. It is further evident that both the accused have refused to participate in the judicial Test Identification Parade proceedings which are Ex.PW5/A and Ex.PW5/B and the only explanation given by them is that they were already shown to the witness at the police station. In this regard, I may observe that the explanation given by the accused is vague and non specific with regard to the details of the person, place and time when they were shown to the witness as they have not identified the witness to whom they were shown in the police station and therefore under these circumstances an adverse inference is liable to be drawn against them and the victim having correctly identified both the accused in the court, I hold that the identity of both the accused stand established beyond reasonable doubt. SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 35 of 58 Allegations against the accused:
The case of the prosecution is that on 6.10.2009 at about 10:30 / 10:45 PM when the victim Rajesh Khanna was coming in his motorcycle from opposite Sant Kripal Ashram, the accused Harish and Kuldeep along with their associate Naka @ Naga (not arrested) in furtherance of their common intention stopped the victim and committed the robbery upon him of mobile phone make Nokia 6630, one ring, one chain, one bracelet and purse containing Rs.15,000/, lincence, PAN card, voter card and credit cards, on the point of knives, after which the victim made a call to the PCR after borrowing a mobile phone from a passers bye and on receipt of the information police reached at the spot i.e. opposite Sant Kripal Ashram and found the victim present who made his statement Ex.PW2/A on the basis of which the present FIR was recorded. The victim PW2 Rajesh Khanna has correctly identified his statement on the basis of which the FIR was registered. He in his first statement to the police had stated that he was in a position to identify the persons who had committed the robbery upon him and also the motorcycle which they were driving whose number plate was covered with mud due to which reason he could not read the number. He has also provided the details of his mobile phone make Nokia 6630 bearing No. 9899923410 in his statement Ex.PW2/A and thereafter the said stolen mobile number was placed on CDR to SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 36 of 58 trace its location on which the IMEI number came to be known and on 15.10.2009 it was found that the mobile was working / running in the area of Nangloi. Further, as per the record of the CDR, the address was learnt as 40, Camp No. 2, Nangloi, Opposite Lokesh Cinema and on 27.10.2009 the said mobile was traced at the shop of one Raj at Jwalahedi Market who produced the stolen mobile and further informed the police that he had purchased the said mobile from one Kamal Kumar for a sum of Rs. 1,500/ and also shown the receipt thereof which receipt was seized by the investigating officer and pursuant to that the police party reached at the shop of Kamal Kumar Sharma (PW1) who was interrogated and he informed the police that he had purchased the said mobile phone from one Dada who he has identified as the accused Harish for a sum of Rs.1,000/. Thereafter, PW1 Kamal Kumar led the police party to Kanhaiya Nagar Metro Station from where both the accused Harish and Kuldeep were apprehended at his instance. During investigations both the accused have admitted their involvement in the present case in their disclosure statement and also identified the spot where they had committed the robbery and also having sold the mobile phone to PW1 Kamal. The most material evidence before this court is the testimony of victim PW2 Rajesh Khanna. It is evident that there is no history of animosity between the victim and the accused nor they knew each other previously and hence there is no reason for the victim to falsely implicate them. He has correctly identified both the accused SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 37 of 58 as the boys who had committed the robbery upon him by showing him knives. He has identified the accused Harish as the boy who had first came to him and put the knife upon him and also identified the accused Kuldeep as the boy who had kept the knife on his stomach from another side. Though in his crossexamination the witness Rajesh Khanna is not sure about the second boy showing him the knife from the other side yet perusal of Ex.PW2/A i.e. the statement made by the victim to the Investigating Officer at the first instance, shows that he had specifically stated that there were two boys who had showed him the knife. The fact that he did not specifically mention that the knife was shown to him by the second boy from the other side, would not be fatal to the case of the prosecution since the material aspect of two boys having shown him the knives while committing robbery to the victim had already been mentioned by the victim (PW2) to the Investigating Officer at the first instance and benefit of the same cannot go to both the accused.
Witness Rajesh has also proved that it was the accused Harish and Kuldeep who robbed him all his belongings after which he made PCR call from the phone of a passersby a Sikh gentleman and also called his sister and informed about the incident. He has correctly identified his mobile phone stolen from him duly produced in the court which is Ex.P1. This court has observed that the mobile phone had been recovered from the possession of PW5 Raj after it which put on surveillance and it was PW5 Raj who led police party to PW1 Kamal SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 38 of 58 Kumar who had purchased the stolen mobile and it was Kamal Kumar who informed the police that it was the accused Harish who sold the said mobile phone to him and therefore I hold that the entire sequence of events have been effectively linked to the accused. The recovery of the mobile has also been proved from the possession of the witness Raj who had taken the same from Kamal to whom Rajesh had sold the same. Arrest of the Accused:
The case of the prosecution is that the arrest of the accused was effected with the assistance of Kamal who had purchased the mobile from the accused Harish Arora and it was the said Kamal who had thereafter telephoned Harish Arora and called him to Kanhiya Nagar Metro Station and it was on the pointing out of Kamal that both the accused Harish Arora and Kuldeep were apprehended. It has been duly proved by the prosecution that it was PW1 Kamal Kumar from whom PW5 Raj had purchased the stolen mobile and it was Kamal who had assisted the police party in apprehension of the accused. PW1 Kamal was known to the accused Harish who had sold the mobile to him and the accused Harish and Kuldeep were apprehended at Kanhaiya Nagar Metro Station where the police party reached at the instance of Kamal, which aspect has been proved by the PW1 Kamal Kumar Sharma. Further, the CDR report Ex.PW4/C on the basis of which the police party was led to the shop of PW5 Raj has been duly proved by SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 39 of 58 PW4 Jyotish Chandra Moharana along with certificate under Section 65 B Evidence Act. In this background, I hereby hold that the apprehension and arrested of the accused Harish Arora and Kuldeep stands proved.
Recovery of stolen Mobile Phone and Call Detail Records:
In his first complaint to the police, the complainant had provided the details of the stolen mobile including its make and number and immediately CDR of the same was obtained on the basis of which the IMEI number of the mobile phone was known to the investigating agency. The said mobile was also having a distinct mark i.e. sticker of Vodaphone on the basis of which PW5 (Raj) has identified the same. It has been duly established from the CDR's that after the mobile phone was stolen from Rajesh (PW2) it passed two hands i.e. of Kamal (PW1) and Raj (PW5) and was ultimately recovered from Raj (PW5) who had purchased it from Kamal and it was the accused Harish who had sold it to Kamal. It conclusively proves and establishes the guilt of the accused Harish.
Common Intention:
Ld. Counsel appearing on behalf of the accused has vehemently argued that both the accused cannot be held liable jointly since they did not share any common intention. In this regard, I may observe that Section 34 Indian Penal Code has been enacted on the SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 40 of 58 principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if prearranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 41 of 58 similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them.
As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
Applying the settled principles of law to the facts of the present case it is evident that both the accused were together at the time of occurrence. The victim Rajesh Khanna has identified the accused Harish Arora as the boy who had put a knife on his neck on the one side while the accused Kuldeep is alleged to have came from the other side of the victim and put a knife on the stomach of the victim. There is no SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 42 of 58 doubt to disbelieve the version given by the victim. Therefore I hold that the existence of the common intention between both the accused Harish Arora and Kuldeep to commit robbery stands established and proved.
Discrepancies in the testimonies of witnesses:
Ld. defence counsels appearing on behalf of the accused have pointed out various discrepancies in the testimonies of the prosecution witnesses with regard to the place of incident, recovery of stolen mobile and time and place of arrest of the accused. In this regard, I may observe that in the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India as that: "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 43 of 58 and genuine approach for administering justice in a criminal trial."
Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : "It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
When an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally nondiscrepant. Courts have to bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
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The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) 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.
(b) 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.
(c) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
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(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
Applying the above settled principles of law to the facts of the present case, it is evident that the victim / complainant who has no previous history of any enmity with the accused has appeared before this court and has correctly identified both the accused as the assailants SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 46 of 58 who had committed robbery upon him and at least one of them i.e. Harish was carrying a knife which he used while committing the robbery. It has also been proved that no motive can be attributed to the victim in respect of any falls implication of the accused and there is no reason for him to have falsely implicate the accused and therefore the discrepancies with regard to the time and place of arrest of the accused are immaterial. It is not disputed that the accused had been arrested on 27.10.2009 and after their apprehension and arrested as many as three mobile phones were recovered from the accused in respect of which separate kalandra under Section 103 DP Act was also prepared. It is also revealed that the accused Harish Arora and Kuldeep are previous offenders and are involved in similar other cases of snatching, theft and robbery prior to the present incident. The accused Harish has also been correctly identified by PW1 Kamal Kumar as the boy who had sold the stolen mobile to him which mobile has been correctly identified by the witness in the court. Under these circumstances, I hold that the discrepancies as pointed out by the Ld. counsels for the accused are immaterial and does not affect the case of the prosecution. FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 47 of 58 are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 48 of 58 police witnesses including the investigating officer. Further, the identity of both accused Harish Arora and Kuldeep has been proved and established. It has been proved that on 6.10.2009 at about 10:30 /10:45 the victim Rajesh Khanna parked his motorcycle on one side opposite Sant Kripal Ashram and while he was talking on his mobile to his sister, three boys came on their motorcycle and one of the boys showed him a knife while the other boy came from the other side and also showed him a knife and robbed him of his purse containing Rs.15,000/, Credit Card, PAN Card including other documents, one Bracelet, one Chain, One Ring and One Mobile Phone Make Nokia 6630. It has been further proved that the said boys have been duly identified as Harish and Kuldeep who had showed the knives to the victim. It is also proved that the mobile phone make Nokia 6630 bearing No. 9899923410, which is Ex.P1 and was stolen from the victim Rajesh was recovered from Raj who had purchased the same from Kamal who in turn was given the same by the accused Harish. This mobile phone has been identified by the victim Rajesh, in the court. It has been also proved that the stolen mobile phone Ex.P1 was sold by the accused Harish to PW1 Kamal and Kamal further sold the same to PW5 Raj who was operating the same by putting old SIM on it. Further, it has been proved that on the basis of the CDR record, the police first reached at the shop of PW5 Raj who led them to PW1 Kamal Kumar and in turn PW1 Kamal led the police party to the accused Harish and Kuldeep and got them apprehended. SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 49 of 58
There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by by each other and the witness of the prosecution have been able to built up a continuous link.
In view of the above discussions, I hereby hold that the prosecution has successfully proved and established the allegations under Section 392 /397 read with Section 34 Indian Penal Code against both the accused Harish Arora @ Dada @ Kalu and Kuldeep @ Frikancy beyond reasonable doubt for which they are accordingly convicted.
Case be listed for arguments on sentence on 3.8.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 23.7.2011 ASJ (NW)II: ROHINI SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 50 of 58 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 1184/2011 Unique Case ID: 02404R0010292010 State Vs. 1. Harish Kumar Arora @ Dada @ Kalu S/o Sh. Gulshan Arora R/o H. No. C200, JJ Colony, Wazirpur, Ashok Vihar, Delhi. (Convicted) 2. Kuldeep @ Firkancy Badam Singh R/o A Block, Shastri Nagar Delhi. Also At: Village : Jalal Garh, PS Rampur, Distt.: Muraina, Madhya Pradesh. (Convicted) 3. Naka @ Naga S/o Not known R/o not known (Not Arrested) FIR No. : 334/2009 Under Section : 392/397/34 Indian penal Code. Police Station : Model Town SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 51 of 58 Date of Judgment: 23.7.2011 Arguments heard on: 3.8.2011 Date of Sentence: 3.8.2011 APPEARANCE: Present: Sh. Taufiq Ahmed, Addl. Public Prosecutor for the State.
Convict Harish Kumar Arora @ Dada in judicial custody with Sh. L.S. Saini Advocate.
Convict Kuldeep in judicial custody with Ms. Neelam Dubey Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment dated 23.7.2011, both the accused Harish Kumar Arora @ Dada and Kuldeep have been held guilty of the offence under Section 392/ 397 read with 34 Indian Penal Code and accordingly convicted.
The case of the prosecution is that on 6.10.2009 at about 10:30 /10:45 the victim Rajesh Khanna parked his motorcycle on one side opposite Sant Kripal Ashram and while he was talking on his mobile to his sister, three boys came on their motorcycle and one of the boys showed him a knife while the other boy came from the other side and also showed him a knife and robbed him of his purse containing Rs. SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 52 of 58 15,000/, Credit Card, PAN Card including other documents, one Bracelet, one Chain, One Ring and One Mobile Phone Make Nokia 6630. The mobile phone make Nokia 6630 bearing No. 9899923410 which was robbed from the victim Rajesh was recovered from one Raj who had purchased the same from Kamal to whom it was given by the accused Harish. The said mobile phone has been identified by the victim Rajesh, in the court. The stolen mobile phone was sold by the accused Harish to Kamal who further sold the same to Raj who was operating the same by putting old SIM on it. Kamal has duly identified the accused Harish in the court. On the basis of the Call Details Record, the police first reached the shop of Raj who led them to Kamal Kumar and in turn Kamal led the police party to the accused Harish and Kuldeep and got them apprehended. The victim Rajesh Khanna has duly appeared before the court and has identified both the accused Harish Kumar Arora and Kuldeep as the boys who had shown the knives to him while committing robbery. On the basis of the testimonies of the various witnesses examined by the prosecution including the victim Rajesh Khanna and public witnesses Kamal Kumar and Raj, this court has held both the accused Harish Arora and Kuldeep guilty of the offence under Section 392/ 397 read with 34 Indian Penal Code and convicted them accordingly.
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I have heard the arguments on the point of sentence. The convict Harish Kumar Arora is a young boy of 24 years having a family comprising of father, mother and two unmarried sisters. He is 10th class pass and was doing a private job in a chemical factory. He has already remained in judicial custody for about 21 months and 6 days. The convict Harish Arora is also reported to be involved in following cases:
1. FIR No.2/07, under Section 379/34 IPC, Police Station Rohini.
2. FIR No.280/09, under Section 379/411/34 IPC Police Station Ashok Vihar.
3. FIR No.39/09, under Section 379 IPC, Police Station Ashok Vihar.
4. FIR No. 145/09, under Section 356/279/411 IPC, Police Station Model Town.
The convict Kuldeep is also a young boy of 22 years having a family comprising of father, mother, two brothers and two sisters. He is a Matriculate and was working in a private factory. He has already remained in judicial custody for about 21 months and 6 days and is also involved in another case bearing FIR No. 145/09, PS Model Town under Section 356/279/411 IPC which is pending trial. SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 54 of 58
Ld. counsel appearing on behalf of the convict Harish Arora has vehemently argued that the convict is a young boy and he has already been acquitted in FIR No.2/07 under Section 379/34 IPC Police Station Rohini; FIR No. 280/09 under Section 379/411/34 IPC Police Station Ashok Vihar and FIR No.39/09 under Section 379/ IPC Police Station Ashok Vihar. It is submitted that though the convict is involved in other case bearing FIR No. 145/09, PS Model Town under Section 356/279/411 IPC but he has not been convicted in any other case so far. Ld. Counsel has further argued that the convict Harish Kumar Arora is the only son of his parents and his mother is a heart patient and his father is physically very week on account of low hemoglobin so much so that he is unable to look after the ailing mother of the convict. He has pointed out that convict is the sole bread earner of his family and any harsh view would be prejudicial to his entire family. He requests that a lenient view be taken against the convicts.
In so far as the convict Kuldeep is concerned, it is argued that he is a young boy and at the time of committing the offence he was in his early twenties. It is submitted that though the convict Kuldeep is involved in another case but he has not been convicted so far. Ld. Counsel has requested that a lenient view be taken against the convict Kuldeep.
The Ld. Addl. PP on the other hand has prayed for a strict punishment against both the convicts keeping in view the nature of SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 55 of 58 offence and allegations involved.
I have considered the rival contentions. Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. The criminals are unhesitatingly and indiscriminately using dangerous arms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system.
No leniency can be shown to persons who have no respect for law. Anyone who does not hesitate to take the law into his hands for pure monetary reasons does not deserve any leniency and any indulgence by the court, under these circumstances, can be misplaced. However, it is evident that both the convicts are young boys. Though they are involved in other cases but they have not been convicted in any other case so far. The minimum punishment prescribed for the offence under Section 397 Indian Penal Code is Seven Years. Therefore, in view of the various mitigating facts, I sentenced the convict Harish Kumar Arora to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one week. SC No. 1184/10, State Vs. Harish Arora, FIR No. 334/09, PS Model Town Page 56 of 58
In so far as the convict Kuldeep is concerned, he is also sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one week.
Benefit of Section 428 Cr.P.C. shall be given to both the convicts for the period undergone by them during the trial, as per rules.
The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached along with their jail warrants.
I may observe that since the convicts have pointed out that their petition for quashing of FIR is pending before the Hon'ble Delhi High Court, needless to say this order would be subject to the outcome of the High Court petition.
File be consigned to Record Room.
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Announced in the open court (Dr. KAMINI LAU)
Dated: 3.8.2011 ASJ (NW)II: ROHINI
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