IN THE COURT OF SANDEEP GARG ADDITIONAL CHIEF METROPOLITAN MAGISTRATE (SOUTH), NEW DELHI F.I.R. No: 292/12 U/s 394/411/34 [ACT] P.S. [ENTITY] State Vs. [ENTITY] and Anr. Date of Institution of Case : 10.07.2013 Judgment Reserved for : 27.06.2016 Date of Judgment : 27.06.2016 JUDGMENT:
(a) The serial no. of the case : 416/2/13(02406R017575213)
(b) The date of commission of offence : 01.10.2012
(c) The name of complainant : Sh. [ENTITY] : S/o Sh. [ENTITY], : C/o Sh. [ENTITY] : H.No. 590, Jhankar Gali, : Chirag Delhi, New Delhi.
(d) The name, parentage, of accused : 1. [ENTITY] : S/o Sh. [ENTITY] : R/o H.No. 72, Block No. : E1, [ENTITY], Phase 1st , : Ambedkar Nagar, New : Delhi.
: 2. [ENTITY] : S/o Sh. [ENTITY] : R/o H.No. A1 / 155, : [ENTITY], Ambedkar FIR No. 292/12, [ENTITY] & Anr. 1 of 35 : Nagar, New Delhi.
Permanent Addresses : As above (e) The offence complained of : U/s 394/411/34 [ACT] (f) The plea of accused : Pleaded not guilty (g) The final order : Convicted U/[SECTION] [ACT] (h) The date of such order : 27.06.2016 Brief statement of the reasons for the decision:
1. The present case arose out of information recorded vide DD No. 4 A dated 01.10.2012, [ENTITY] after which SI [ENTITY] and [ENTITY] reached at the spot where the complainant produced accused [ENTITY]. PCR vehicle was already present at the spot. Accused [ENTITY] and complainant had sustained injuries on their person and both were taken to AIIMS Trauma Center in PCR vehicle. Statement of complainant was recorded upon which endorsement was made by IO SI [ENTITY] and FIR was got registered through [ENTITY].
2. In his complaint, the complainant alleged that on 30.09.2012, he was going to his residence situated at Chirag Delhi via BRT Corridor on his bicycle. At around 12:30 AM (night), when he reached near [ENTITY] School, two boys stopped him and threatened him to give his belongings. One boy forcibly took out mobile phone and Rs. 4,000/ (approximately) from his FIR No. 292/12, [ENTITY] & Anr. 2 of 35 pocket. When both the boys began running, he raised an alarm and caught hold of the other boy. The other boy held by him started beating him to free himself. The boy who took out the mobile phone and money succeeded in fleeing away. Public gathered at the spot after which somebody called the PCR at 100 number. PCR and IO SI [ENTITY] accompanied by [ENTITY] reached at the spot. IO SI [ENTITY] took him and accused [ENTITY] (whose name was revealed during inquiry) to AIIMS Trauma Center in PCR vehicle where they were medically examined.
3. During investigation, IO and complainant went to the spot where a site plan was prepared at the instance of complainant and accused [ENTITY] was arrested after interrogation. He confessed having committed the crime and his disclosure statement was recorded. His personal search was conducted. On the information of a secret informer, coaccused [ENTITY] was arrested near a park in [ENTITY], New Delhi where complainant identified him and he was also arrested. His personal search was conducted during which the robbed Nokia mobile phone was recovered from his trousers, which was seized. Complainant identified the said mobile phone to be belonging to him. The recovered mobile phone was seized. Coaccused [ENTITY] also confessed having committed the crime and his disclosure statement was also recorded. Supplementary statement of complainant was recorded by IO. Complainant produced xerox copy of bill of robbed mobile phone which was seized. FIR No. 292/12, [ENTITY] & Anr. 3 of 35
4. Chargesheet was filed in the court and in compliance of [SECTION] [ACT], both accused were supplied copies of chargesheet alongwith documents annexed therewith. Thereafter, vide order dated 16.05.2014, charge U/[SECTION]/[SECTION] [ACT] was framed upon both the accused to which they pleaded not guilty and claimed trial. Additional charge U/[SECTION] [ACT] was also framed upon accused [ENTITY].
5. In order to substantiate its case, prosecution examined six witnesses. Thereafter, statements of both the accused were recorded in terms of [SECTION] [ACT] on 19.01.2016 wherein they claimed themselves to be innocent and having been falsely implicated in the case. Accused [ENTITY] preferred to adduce evidence in his defence and examined Sh. [ENTITY] as DW01, Smt. [ENTITY] as DW02 and Sh. [ENTITY] as DW03 to substantiate his defence.
Brief scrutiny of the evidence :
6. PW01 complainant Sh. [ENTITY] deposed that he was residing at H. No. 590, Jhankar Gali, Chirag Delhi in the house of [ENTITY] and was doing a private job. He had studied till 4 th standard. In the year 2012, he was running a shop in weekly market for sale of cosmetics items. On the night of 30.09.2012 - 01.10.2012, at about 12:30 AM, after closing his weekly shop at Sangam Vihar, he was returning to home on his bicycle. When he reached near FIR No. 292/12, [ENTITY] & Anr. 4 of 35 [ENTITY], two persons who were on foot stopped him and they snatched his bicycle because of which he fell down. Both of them gave beatings to him and took out money and mobile phone from his pocket. After taking out his mobile phone and money, one person fled away from spot, while he could manage to apprehend the other person. In the meanwhile, public persons also gathered there and someone called the police after which police control room officials reached there.
7. PW01 further deposed that police from local police station also reached at the spot. The person whom he had apprehended was handed over by him to the police. On inquiry, the said person disclosed his name as [ENTITY]. Thereafter, police took him and accused [ENTITY] to AIIMS Trauma Center. He was medically examined there and his statement was recorded by police which is Ex. PW 1/A. Thereafter, at about 5:00 AM in the morning, he alongwith accused [ENTITY] were taken to police station. Accused [ENTITY] was arrested vide memo Ex. PW 1/B. Thereafter, he and accused [ENTITY] were taken to the spot where police prepared a site plan.
8. PW01 further deposed that accused [ENTITY] took them to [ENTITY] where he got arrested the 2nd accused vide memo Ex. PW 1/C. His mobile phone was recovered from the possession of the 2nd accused which was seized by the police vide seizure memo Ex. PW 1/D. Thereafter, both the accused were taken to PS. On the next day, on the demand of police official, he FIR No. 292/12, [ENTITY] & Anr. 5 of 35 had given the copy of mobile bill which was seized vide seizure memo Ex. PW 1/E. He got his mobile phone released later on vide superdarinama Ex. PW 1/F. He identified both accused persons in the court as well as copy of bill of the mobile phone which is Ex. P1.
9. During his crossexamination on behalf of accused [ENTITY], PW01 / complainant stated that the incident occurred at around 12:30 AM at in front of Birla School, [ENTITY] Bhawan. One two public persons were coming and going. The person whom he had apprehended had not consumed alcohol. A fight broke out between them, but he did not beat them. After 57 minutes, public persons reached there. He does not know as to who called the police. Police reached at the spot within 15 minutes and remained there for around half an hour. After recording the names of persons, police took them to Trauma Center, AIIMS. They reached at Trauma Center at around 1:00 AM and remained there for around 34 hours. No writing work was done in the hospital. They reached police station at around 4:00 AM and remained there till evening. During this period, he visited the spot alongwith police at around 9:30 AM and remained there for around 10 minutes.
10. During his crossexamination on behalf of accused [ENTITY], PW01 / complainant further stated that police did not record statement of any other person at that time in his presence. They again came back to PS at around 11:00 11:30 AM and writing work was done at that time. He signed on FIR No. 292/12, [ENTITY] & Anr. 6 of 35 his statement Ex. PW 1/A in PS. He does not know its contents, being illiterate. He admitted that Ex. PW 1/B and Ex. PW 1/C bears his signatures. He denied that signatures on Ex. PW 1/B to Ex. PW 1/E does not match. He does not remember as to where, he had signed on these documents. He admitted that the documents were duly filled up when he signed on them. He does not know their contents being illiterate. He admitted that he had signed at the instance of police. His cycle and mobile phone were seized by police. He admitted that he did not produce his mobile phone as the same was stolen. However, he can produce the cycle, if directed by the court. He had taken the cycle on superdari after twothree days of incident. At that time, no writing work was done at PS nor his signature were obtained on any document. He denied that accused [ENTITY] was not apprehended at the spot, but later on he had come there and was falsely implicated by him in this case. He denied that he was deposing falsely.
11. During his crossexamination on behalf of accused [ENTITY], PW01 / complainant stated that he was coming on his cycle. After the incident, he left his cycle at the spot. On next day, he got his cycle from police station. He was medically examined at AIIMS Trauma Center. Police officials also took the accused [ENTITY] to AIIMS Trauma Center. He accompanied the police officials and accused [ENTITY] to the house of the accused [ENTITY]. His mobile phone was recovered from the house of accused [ENTITY] which was handed over to the police officials by accused [ENTITY]. Later on, he got his mobile phone released on superdari vide superdarinama. After 2 months of the FIR No. 292/12, [ENTITY] & Anr. 7 of 35 said incident, he lost his mobile phone. Both accused persons were present at the time of incident and accused [ENTITY] had snatched his mobile phone from his pocket.
12. During his crossexamination on behalf of accused [ENTITY], PW01 / complainant further stated that he had apprehended accused [ENTITY] at the spot, whereas accused [ENTITY] had fled away alongwith his mobile phone. He accompanied the police officials to the house of accused [ENTITY] from where his mobile phone was recovered. After recovery, police officials took accused [ENTITY] to the police station. He denied that nothing was recovered from the house of accused [ENTITY]. He denied that accused [ENTITY] did not hand over the said mobile phone to police officials. He denied that he never accompanied the police officials to the house of accused [ENTITY]. He denied that the police officials falsely planted the said mobile phone upon accused [ENTITY]. He denied that he was deposing falsely at the instance of police officials.
13. PW02 Dr. [ENTITY] deposed that he had been deputed by Medical Superintendent, AIIMS Trauma Center to depose on behalf of Dr. [ENTITY] as she was no more working with AIIMS, Trauma Center. The MLC bearing no. 332568 dated 01.10.2012 of Sh. [ENTITY] was prepared by Dr. [ENTITY], as per which, the injuries were swelling and tenderness over right hand, swelling over right upper lip and laceration found upon body of injured which FIR No. 292/12, [ENTITY] & Anr. 8 of 35 were opined by Dr. [ENTITY] as simple, caused by some blunt force. Thereafter, copy of Xray report of injured [ENTITY] brought by Sh. [ENTITY] had been shown to him which does not reveal any fracture. The copy of X ray report is MarkA.
14. During his crossexamination on behalf of accused [ENTITY], PW02 admitted that specific part of body bearing lacerated wound was not mentioned in the MLC. Injuries mentioned in the MLC cannot be caused by mere push. Such injuries can be caused as a result of person falling on ground as a result of pushing. He admitted that the part of body (front or back) where lacerated injury was found, was not mentioned in MLC.
15. During, his crossexamination on behalf of accused [ENTITY], PW02 admitted that he was not associated with Dr. [ENTITY] at the time of preparing MLC. Such lacerated injury can be caused due to person falling on the ground. He had no personal knowledge of the case.
16. PW03 [ENTITY] deposed that on 01.10.2012, he was on emergency duty with SI [ENTITY] from 8:00 PM to 8:00 AM. On that day, at around 1:00 AM, IO received a call that two persons had snatched a mobile and cash from one person and scuffle. He alongwith IO reached at the spot at service lane, BRT corridor, near [ENTITY] School where they met the complainant namely [ENTITY] who produced a person namely [ENTITY] FIR No. 292/12, [ENTITY] & Anr. 9 of 35 (correctly identified in court) and stated that accused [ENTITY] alongwith co accused (who managed to flee away from the spot) had snatched mobile phone and cash from him. IO got accused [ENTITY] and complainant [ENTITY] medically examined. IO recorded statement of complainant, put endorsement on it, prepared a [ENTITY] and gave it to him for registration of FIR. He got the FIR registered, went back to the spot and handed over copy of FIR and original [ENTITY] to IO. They made efforts to search other accused who was apprehended from [ENTITY] area and whose name was later on revealed as [ENTITY] (correctly identified in court). Accused persons were arrested and their personal searches were conducted vide memos Ex. PW 1/A & Ex. PW 1/B and Ex. PW 3/A & Ex. PW 3/B.
17. PW03 [ENTITY] was declared hostile and was crossexamined by ld. APP for the State. During his crossexamination by Ld. APP for the State, he was shown seizure memo Ex. PW 1/D and after perusing the same, he stated that a mobile phone make Nokia was recovered from the possession of accused [ENTITY] from his right pocket of his trousers which was seized by the IO vide seizure memo Ex. PW 1/D. Upon being shown four photographs of case property i.e. mobile phone make Nokia by Ld. APP, he correctly identified the said mobile phone in the photographs. The photographs and CD of mobile phone are Ex. P1 (Colly).
18. During his crossexamination by ld. defence counsel on behalf of FIR No. 292/12, [ENTITY] & Anr. 10 of 35 accused [ENTITY], PW03 stated that one or two public persons were present when they apprehended the accused [ENTITY]. No statement of public persons were recorded as SI [ENTITY] (IO) did not join them in investigation. He left the spot at about 1:10 AM for hospital alongwith accused and they reached the hospital within 10 minutes. He remained at hospital for about two and half hours. He came back at spot at about 3:45 AM. IO recorded statement of Sh. [ENTITY] and he took the [ENTITY] to PS. He reached at PS within 1015 minutes and remained there for about 1020 minutes. He came back to spot at about 4:20 AM. IO recorded statement of PCR van officials and disclosure statement of accused. They left the spot for reaching [ENTITY], but he cannot tell the location of spot or house number where they reached. They reached there at about 5:00 AM. No efforts were made to join public persons. They remained there for about 15 minutes and thereafter, came back at the spot at about 5:30 AM. IO prepared arrest memo of the accused and thereafter, they left for PS and reached there at about 5:45 AM. IO prepared seizure and other memos which are Ex. PW 1/A, Ex. PW 1/B, Ex. PW 3/A and Ex. PW 3/B which he signed at PS at the instance of IO. He denied that he had not accompanied the IO at the spot. The photographs of mobile phone were taken in PS when it was handed over by the accused on next day. He denied that he was deposing falsely.
19. During his crossexamination by ld. defence counsel on behalf of accused [ENTITY], PW03 stated that accused [ENTITY] was arrested by FIR No. 292/12, [ENTITY] & Anr. 11 of 35 SI [ENTITY] in his presence on 01.10.2012 at about 5:15 AM from A Block, near Park, [ENTITY]. He apprehended the accused [ENTITY] when he was coming from somewhere at 5:00 AM in the morning. Accused [ENTITY] was not trying to escape at the time of his apprehension. He took search of accused [ENTITY] and one Nokia phone was recovered from his possession. No money was recovered from the possession of accused [ENTITY]. Accused [ENTITY] was accompanying them at the time of apprehension of accused [ENTITY]. He denied that he was deposing falsely.
20. PW04 HC [ENTITY] deposed that on 01.10.2012, he was posted as Duty Officer at [ENTITY] and he registered the present FIR on the basis of [ENTITY] received from [ENTITY] which was sent by SI [ENTITY]. He proved copy of the FIR, Ex. PW 4/A and his endorsement on the [ENTITY], Ex. PW 4/B (OS & R).
21. PW05 IO Inspector [ENTITY] deposed that on 01.10.2012, he was on emergency duty from 8:00 PM to 8:00 AM alongwith [ENTITY]. At around 1:00 AM, he received DD No. 4A regarding a quarrel which took place near [ENTITY] School. Thereafter, he alongwith [ENTITY] went to the spot where they met complainant Sh. [ENTITY] who produced accused [ENTITY] (correctly identified in court) before him. PCR van was also present there. Complainant and accused [ENTITY] were in injured condition and they were taken to hospital in PCR van. After getting medical examination of FIR No. 292/12, [ENTITY] & Anr. 12 of 35 complainant and accused conducted, their MLCs were obtained. He recorded the statement of complainant which is already Ex. PW 1/A upon which, he made his endorsement which is Ex. PW 5/A. He prepared a [ENTITY] which was handed over to [ENTITY] who went to [ENTITY] to get the FIR registered. He returned to the spot alongwith complainant and accused in PCR van.
22. PW05 IO Inspector [ENTITY] further deposed that he prepared a site plan at the instance of complainant which is Ex. PW 5/B. In the meantime, [ENTITY] returned to the spot alongwith original [ENTITY] and copy of FIR which were handed over to him. He interrogated, arrested and carried out personal search of accused [ENTITY] vide memos which are Ex. PW 1/B and Ex. PW 3/A respectively. He recorded disclosure statement of accused [ENTITY] which is Ex. PW 5/C. He recorded the statement of SI [ENTITY] (PCR Incharge). Thereafter, they were in search for coaccused and were going towards [ENTITY]. In the park of [ENTITY], one secret informer met them who informed that the coaccused [ENTITY] used to come at his house in the morning. Thereafter, he alongwith [ENTITY], accused [ENTITY] and the complainant were waiting for coaccused [ENTITY] near Park in [ENTITY] and at around 11:30 AM, coaccused [ENTITY] was coming from road side. Complainant identified him and he apprehended accused [ENTITY].
23. PW05 IO Inspector [ENTITY] further deposed that on interrogation, name of accused was revealed as [ENTITY] (correctly identified FIR No. 292/12, [ENTITY] & Anr. 13 of 35 in court). He arrested coaccused [ENTITY] and carried out his personal search vide memos Ex. PW 1/C and Ex. PW 3/B respectively. Upon personal search of accused [ENTITY], one Nokia mobile phone (black and grey colour) was recovered from right pocket of his trousers. The complainant identified the said mobile phone and stated that it belongs to him. Thereafter, he seized the said mobile phone vide seizure memo which is Ex. PW 1/B. He recorded supplementary statement of complainant after which, the complainant left the spot. He also recorded the disclosure statement of coaccused [ENTITY] which is Ex. PW 5/D. Accused [ENTITY] was produced before the court after medical examination and was sent to JC. They returned to PS and the case property was deposited in malkhana. He recorded the statement of [ENTITY] at PS. On the next day, the complainant came at PS and handed over photocopy of mobile bill which is Ex. P2. He seized the said mobile bill vide seizure memo Ex. PW 1/E. He obtained the result on MLC of complainant and the concerned doctor opined that the nature of injury as simple. He also identified photographs of case property i.e. mobile phone make Nokia in court which are Ex. P1 (Colly).
24. During his crossexamination on behalf of accused [ENTITY], PW05 stated that they left the PS at about 1:00 AM. He did not make any departure entry. They reached the spot within 10 minutes. 34 public persons were present at the spot. He did not ask them to join investigation. They immediately left the spot for hospital and reached there within 1015 minutes and remained there for about 23 hours. He recorded statement of complainant in FIR No. 292/12, [ENTITY] & Anr. 14 of 35 hospital and sent [ENTITY] with [ENTITY] to PS. [ENTITY] reached at the spot at about 4:15 AM and they reached at the spot from hospital at about 4:00 AM. It took about one hour to conclude the proceedings at the spot. Apart from SI [ENTITY] (PCR Incharge), he did not record statement of any other person at the spot. He did not make SI [ENTITY] as witness in this case. They left the spot after 23 hours and proceeded towards [ENTITY]. They reached Ablock, near a Park at about 9:10 AM.
25. PW05 further stated that many public persons were present there. He requested some public persons to join the investigation, but none of them agreed and left the spot without disclosing their names and address. They waited for accused [ENTITY] for about one hour. They apprehended accused [ENTITY] at about 11:30 AM, arrested him and carried out his personal search. They left the spot at about 1:00 PM for reaching hospital. He alongwith constable and both accused reached the hospital at about 2:003:00 PM. They remained at hospital till about 3:00 - 4:00 PM and during this period, both the accused were medically examined. Thereafter, they reached in court at about 4:00 PM. They left the court and reached PS at about 5:00 PM. He recorded his arrival entry at PS, but the same is not attached with judicial file. After 23 months, the MHC (M) called the photographer who took photographs of mobile phone, but he did not collect its negatives.
26. PW05 volunteered that CD of the photographs is available on FIR No. 292/12, [ENTITY] & Anr. 15 of 35 judicial file, but the CD was not prepared by the photographer in his presence. He did not pay professional charges of photographer. He cannot tell as to whether complainant paid the charges of photographer or not. He did not seize the cycle of the complainant. He denied that he handed over the cycle and the phone to complainant after two days. He admitted that he had also got accused [ENTITY] medically examined when complainant was got medically examined. Complainant had told him that he was trying to apprehend the accused who was trying to flee away from the spot and as a result, he fell down and sustained injuries. He does not remember, if he recorded the same in the statement of the complainant or not. He denied that he did not conduct the investigation properly or that he intentionally did not conduct the investigation properly as to how accused [ENTITY] had sustained injuries. He does not remember, if he had mentioned as to how accused [ENTITY] sustained injuries in his case diary. He denied that he was deposing falsely or that accused [ENTITY] was falsely implicated in this case. He did not investigate the authenticity of the mobile bill in question.
27. During his crossexamination on behalf of accused [ENTITY], PW05 stated that after five hours of arrest of accused [ENTITY], he also arrested accused [ENTITY]. He does not remember the colour of clothes worn by accused [ENTITY] at that time. Accused [ENTITY] was trying to escape from the spot when he caught him and one Nokia mobile phone (model 1616) was recovered from him. The mobile phone was having SIM, but he does not FIR No. 292/12, [ENTITY] & Anr. 16 of 35 remember the connection number or on whose name the same was issued. Complainant recognized the mobile phone and he recovered the same from accused [ENTITY]. He did not conduct any investigation regarding the owner ship of mobile bill. He arrested the accused at the instance of complainant Sh. [ENTITY]. He did not get the TIP of the accused conducted in court as the accused had already been identified by complainant at the spot. He denied that he was deposing falsely.
28. PW06 SI [ENTITY] deposed that on 01.10.2012, he was posted as Incharge PCR Van and on that day, his duty was from 08:00 PM to 08:00 AM at Khanpur, Tpoint. At around 01:00 AM (night), he received a call and went to [ENTITY] School where he met complainant Sh. [ENTITY]. Complainant produced accused [ENTITY] (correctly identified in court) and told him that the accused had snatched his mobile phone and currency notes. In the meantime, [ENTITY] and SI [ENTITY] came at the spot. He alongwith [ENTITY] took the accused as well as complainant to AIIMS Trauma Center where they were medically examined. After their medical examination, they alongwith complainant and the accused returned to the spot. The accused was handed over to SI [ENTITY] (IO) who recorded his statement.
29. During his crossexamination on behalf of both accused, PW06 stated that within two minutes of receiving call, they reached at the spot. Local police reached the spot within 5 minutes thereafter. They did not record FIR No. 292/12, [ENTITY] & Anr. 17 of 35 statement of anybody in his presence. They reached hospital within 15 minutes and remained there for about 15 minutes. Thereafter, they came back to the spot. SI [ENTITY] was present at the spot when they again came back to the spot. He went back to his duty point with [ENTITY]. He admitted that no document was prepared by IO in his presence. He did not hand over any DD entry regarding this at the spot to the IO. He had recorded the information in his callbook, but same was not handed over to IO by him. He denied that he was deposing falsely.
30. DW01 Sh. [ENTITY] deposed that on 01.10.2012, he was present at his home. Suddenly one police man came at his house and asked him about the whereabouts of his son. He lied to the police that his son was not present at his residence though he was sleeping in the house. He was taken to [ENTITY] at around 12:00 PM, where police personnel told him to call his son namely [ENTITY]. He called his son [ENTITY] who reached at PS within 10 minutes. Police personnel told him that his son is involved in a case of snatching and asked him to give Rs. 10,000/, failing which, his son will go to Tihar Jail. He refused to pay money. Then police officials caught his son and implicated him in a false and frivolous case and sent him to Tihar Jail. He does not know accused [ENTITY] and any other person who were involved in this case. His son was innocent and he never got involved in any criminal activity.
31. During his crossexamination by ld. APP for the State, DW01 FIR No. 292/12, [ENTITY] & Anr. 18 of 35 admitted that he was not present near [ENTITY] School on 01.10.2012 at around 12:30 AM. He volunteered that he was at his house at that time. He admitted that the police had come alongwith one [ENTITY]. He denied that on the identification of accused [ENTITY], police arrested his son. He denied that one mobile phone make Nokia was recovered from his son / at his instance from his house. He volunteered that when police came to his residence, he lied to the police that his son was not at home, though, his son was very much sleeping in the house. He was taken to PS and later on his son came to PS at his own and at that time, his son was carrying a Nokia phone which was his phone. He does not have receipt of the said phone. He denied that he was deposing falsely. He denied that his son was not arrested from his house. He denied that he was deposing falsely in order to save his son. He admitted that he had not lodged any complaint with the police till date regarding his allegations that his son was falsely implicated.
32. DW02 Smt. [ENTITY] deposed that on 01.10.2012 at about 8:009:00 AM, two police men had come to her house. She does not know their names. They asked her about her son [ENTITY]. She lied to the police. Though, her son was sleeping in the house, she told them that he was not there. The police men asked about his father. She told them that he was in the house. Her husband was taken to PS. Her husband called her from the PS and thereafter, she sent her son alongwith her nephew [ENTITY] to [ENTITY]. Later on, she came to know that her son was falsely implicated in this case. FIR No. 292/12, [ENTITY] & Anr. 19 of 35
33. During her crossexamination by ld. APP for the State, DW02 admitted that she had lied to the police regarding her son being not present at the house. She volunteered that she was scared on seeing the police. She admitted that on 01.10.2012 at about 12:30 AM, she was not present at Service / Cycle lane, near [ENTITY] School. On the previous night, her son had come to the house after his job at around at 9:00 PM and was at their house only. She denied that she was deposing falsely. She denied that she was deposing falsely in order to save her son. She admitted that she had not given any complaint to police regarding her claim that her son was falsely implicated.
34. DW03 Sh. [ENTITY] deposed that police officials came at the house of accused [ENTITY] and they took his father to the PS. Thereafter, mother of accused [ENTITY] came at his house and she told him that police officials took the father of accused [ENTITY] to PS. He visited [ENTITY] and the police officials told him that if accused [ENTITY] came at his house, he should bring him to PS. He searched for accused [ENTITY] here and there. In the meantime, accused [ENTITY] came at his house on his own after two hours. He complied with the directions of police officials and took accused [ENTITY] to [ENTITY] and handed him over to police officials. The police officials released the father of accused [ENTITY]. He alongwith father of accused [ENTITY] returned to their house. Accused [ENTITY] remained at the PS. Thereafter, accused [ENTITY] was implicated in this case. Two or three days ago, mother of accused came at his house and she requested him to give a FIR No. 292/12, [ENTITY] & Anr. 20 of 35 statement before the court in the present case.
35. During his crossexamination by ld. APP for the State, DW03 admitted that he does not remember the date and month. However, the said incident occurred in the year 2012. He admitted that on 01.10.2012 at about 12:30 AM, he was present at his home and was not present at the spot i.e. near [ENTITY] School. He had not seen the incident in question. He is not aware as to whether the mother of the accused [ENTITY] deposed before the court that she had lied to the police officials that her son was not present at their house. He admitted that he had not received any summons from the court. He admitted that at the time of recovery of alleged mobile phone from accused [ENTITY], he was not present at the spot i.e. near the house of the accused [ENTITY]. He also admitted that at the time of the incident in question, he was not present at the spot i.e. near Birla Niketan School. He had not maintained any diary to record day to day incidents. He admitted that he had not filed any complaint before any authority regarding false implication of accused in the present case. He knew the accused and his family prior to the day of incident. He denied that the police officials did not take father of accused to PS. He denied that police officials took the accused to PS and that he did not take the accused to PS. He denied that he was deposing falsely in order to save the accused.
36. The court has heard the arguments advanced by Ld. defence counsels appearing on behalf of both the accused persons as well as Ld. APP FIR No. 292/12, [ENTITY] & Anr. 21 of 35 appearing on behalf of the State and has perused the record with their able assistance.
37. It has been emphatically contended by Ld. defence counsel on behalf of accused [ENTITY] that a perusal of testimony of PW01 [ENTITY] shows that neither the snatched mobile phone nor the bicycle was produced during trial. Admittedly, no public persons were joined during investigation despite their availability. PW01 has admitted during his cross examination that he had signed on his complaint, Ex. PW 1/A in the police station. He admitted that he does not know the contents of his complaint, Ex. PW 1/A as he is illiterate. He admitted that he had signed on the documents which were already filled up. This establishes falsity of the prosecution case and proves that accused have been falsely implicated.
38. Secondly, it is contended on behalf of accused [ENTITY], PW Dr. [ENTITY] has admitted during his crossexamination that no specific part of the body is mentioned in the MLC where lacerated wound was found and he has no personal knowledge of the case.
39. Thirdly, it is contended on behalf of accused [ENTITY], PW03 [ENTITY] has admitted that one or two public persons were present when accused [ENTITY] was apprehended. However, they were not joined in investigation by IO which casts aspersions on FIR No. 292/12, [ENTITY] & Anr. 22 of 35 the veracity of the prosecution case. Moreover, on 19.05.2015, he stated that he cannot identify the case property, if shown to him. Photographs of the mobile phone were not shown to the complainant. He admitted that he had taken the [ENTITY] from the spot and not from the hospital. He also admitted that he had signed on seizure memo at the police station at the instance of IO.
40. Fourthly, it is contended on behalf of accused [ENTITY] that PW05 IO Inspector [ENTITY] has admitted that he did not record his departure entry in the daily diary register. Admittedly, MLC of accused [ENTITY] has not been filed, though, IO has admitted that he was also got medically examined. This casts aspersions on the veracity of the prosecution case.
41. Fifthly, there are glaring contradictions in the testimonies of PW01 complainant [ENTITY] and PW05 IO Inspector [ENTITY]. PW01 Sh. [ENTITY] admitted during his crossexamination that his statement / complaint, Ex. PW 1/A was recorded in the PS whereas PW05 IO Inspector [ENTITY] has deposed that he recorded statement of the complainant in the hospital. These contradictions establish falsity of the prosecution case and accused [ENTITY] deserves to be acquitted of the charges leveled against him.
42. It is emphatically contended on behalf of accused [ENTITY] that FIR No. 292/12, [ENTITY] & Anr. 23 of 35 as per the prosecution case, accused [ENTITY] was arrested from near his residence at about 11:30 AM. It is improbable that any person will carry a snatched phone even after lapse of around 11 hours after the incident. PW01 [ENTITY] has deposed during his crossexamination that he had accompanied the police officials to the house of accused [ENTITY] and his snatched mobile phone was recovered from the house of accused [ENTITY], whereas as per the prosecution case, the accused was arrested from near his house and the snatched mobile phone was also allegedly recovered from his possession. Therefore, there are material contradictions in the testimonies of prosecution witnesses and accused deserves to be given benefit of doubt.
43. Secondly, it is contended on behalf of accused [ENTITY] that PW05 IO Inspector [ENTITY] has admitted during his crossexamination that he did not conduct any investigation on the aspect as to in whose name the SIM card / mobile phone connection was issued. He also admitted that he did not conduct any investigation to verify authenticity of mobile phone bill produced by the complainant.
44. Thirdly, it is contended on behalf of accused [ENTITY] that the prosecution has failed to establish identity of the alleged snatched mobile phone as it was not produced in the court during trial. Complainant has deposed during his crossexamination that no writing work was done in AIIMS, Trauma Center. Therefore, prosecution has miserably failed to establish its case. FIR No. 292/12, [ENTITY] & Anr. 24 of 35
45. Fourthly, it is contended on behalf of accused [ENTITY] that DW03 Sh. [ENTITY] has categorically deposed that he had handed over accused [ENTITY] to the police officials at [ENTITY]. Therefore, it has been disproved that accused [ENTITY] was arrested from near his house and snatched mobile phone was recovered from his possession. Accused [ENTITY] deserves to be acquitted of the charges leveled against him.
46. Per contra, it is contended by Ld. APP for the State that a perusal of the testimony of PW03 [ENTITY] recorded on 20.11.2015 shows that the identity of case property comprising of snatched mobile phone was proved by adducing photographs and CD, Ex. P1 (Colly). The bicycle was not a case property as it was not seized. In any case, it is well settled proposition of law that it is not essential for the prosecution to produce case property for establishing its case. The prosecution has adduced cogent and convincing evidence to bring home guilt of the accused persons. PW01 complainant Sh. [ENTITY] is an independent public person who is not even previously known to the accused persons. It is hardly of any significance as to where the complaint, Ex. PW 1/A was signed. The complainant has reiterated the allegations leveled in his complaint, Ex. PW 1/A during trial and nothing material has come out during his crossexamination. Therefore, it is immaterial that he has stated that he does not know the contents of his complaint, Ex. PW 1/A and he had signed on documents which were already filled up.
FIR No. 292/12, [ENTITY] & Anr. 25 of 35
47. Secondly, it is contended by Ld. APP for the State that as per MLC bearing no. 332568 dated 01.10.2012 of complainant Sh. [ENTITY], he had sustained simple injuries on his person. This fact is also corroborated by the testimony of the complainant who has categorically deposed that both the accused gave beatings to him and snatched his money and mobile phone. Therefore, it is immaterial that the doctor had not specified the specific part of the body on which lacerated wound was found.
48. Thirdly, it is contended by Ld. APP for the State that PW01 complainant Sh. [ENTITY] is an independent public person who is not even previously known to both the accused persons. Moreover, the public persons had arrived after the incident and therefore, there was no need to join them in investigation. PW03 [ENTITY] identified the case property through four photographs and CD, Ex. P1 (Colly). It is hardly of any significance as to from where [ENTITY] was taken by [ENTITY] as the complainant has reiterated the allegations leveled in his complaint, Ex. PW 1/A during trial and nothing material has come out during his crossexamination.
49. Fourthly, it is contended by Ld. APP for the State that failure to record his departure entry in daily diary register by IO SI [ENTITY] and omission to file MLC of accused [ENTITY] are only minor and insignificant procedural lapses which do not have any bearing on merits of the case.
FIR No. 292/12, [ENTITY] & Anr. 26 of 35
50. Fifthly, it is contended by Ld. APP for the State that it is well settled proposition of law minor inconsistencies and contradictions in the testimonies of witnesses are likely to occur due to fading of memory and lapse of time. The court has to weigh the evidence adduced on record and appraise its veracity. The prosecution has been successful in bringing home guilt of both the accused persons by adducing cogent and convincing evidence. Rather, the defence set up by the accused persons is contradictory and mutually exclusive which reinforces the fact that both the accused persons had indeed committed the crime.
51. Sixthly, it is contended by Ld. APP for the State that there is no merit in the contention of ld. defence counsel that it is improbable that a person will carry snatched mobile phone even after lapse of 11 hours after the incident. This is perfectly probable. Nothing material has come out during cross examination of the prosecution witnesses who have withstood the test of cross examination. It is hardly of any significance as to whether accused [ENTITY] was arrested from near his house or from his house as the involvement of both the accused at 12:30 AM on 01.10.2012 has been established beyond all doubts.
52. Seventhly, it is contended by Ld. APP for the State that the complainant Sh. [ENTITY] identified his snatched mobile phone which was recovered from the possession of accused [ENTITY]. The complainant also got his mobile phone released on superdari later on. At no stage, the accused FIR No. 292/12, [ENTITY] & Anr. 27 of 35 persons claimed their ownership of the SIM card / mobile phone connection. Therefore, there was no need for the IO to conduct any investigation on the aspect of ownership of SIM card and authenticity of mobile phone bill produced by the complainant.
53. Eighthly, it is contended by Ld. APP for the State that a perusal of the testimony of PW03 [ENTITY] recorded on 20.11.2015 shows that the identity of case property comprising of snatched mobile phone was proved by adducing photographs and CD, Ex. P1 (Colly). In any case, it is well settled proposition of law that it is not essential for the prosecution to produce case property for establishing its case. It is hardly of any significance as to where writing work was done as the complainant has reiterated the allegations leveled in his complaint, Ex. PW 1/A during trial and nothing material has come out during his crossexamination.
54. Lastly, it is contended by Ld. APP for the State that a perusal of testimonies of DW01 Sh. [ENTITY], DW02 Smt. [ENTITY] on one hand and testimony of DW03 Sh. [ENTITY] on the other hand shows that they are contradictory in material aspects which reflects their falsity. While DW01 Sh. [ENTITY] and DW02 Smt. [ENTITY] have deposed that Sh. [ENTITY] was taken to the police station at about 12:00 PM where he was told to call his son [ENTITY]. Sh. [ENTITY] called his son [ENTITY] who reached at PS within 10 minutes and was falsely implicated in the present case. On the FIR No. 292/12, [ENTITY] & Anr. 28 of 35 other hand, DW03 Sh. [ENTITY] has deposed that he took accused [ENTITY] to [ENTITY] and handed him over to police officials after which police officials released his father Sh. [ENTITY]. DW01 Sh. [ENTITY] had admitted during his crossexamination that accused [ENTITY] was carrying a Nokia mobile phone when he arrived at police station. This corroborates the prosecution story that the snatched mobile phone was recovered from the possession of accused [ENTITY]. All the three DWs have admitted that they did not lodge any complaint regarding false implication of accused [ENTITY] with any authority / forum. Therefore, the prosecution has been successful in bringing home guilt of both the accused persons and they should be convicted for commission of offence punishable U/[SECTION] [ACT].
55. The court is of the considered view that the prosecution has proved FIR, Ex. 4/A, endorsement made on [ENTITY], Ex. PW 4/B. Complainant has proved his statement, Ex. PW 1/A. It has proved [ENTITY], Ex. PW 5/A, site plan prepared at the instance of complainant, Ex. PW 5/B. Both the accused persons were arrested vide arrest memos Ex. PW 1/B & Ex. PW 1/C and their personal searches were conducted vide personal search memos Ex. PW 3/A and Ex. PW 3/B respectively. Seizure memo of snatched Nokia mobile phone is Ex. PW 1/D; seizure memo of mobile bill, Ex. PW 1/E; copy of mobile bill, Ex. P1; superdarinama of mobile phone, Ex. PW 1/F; photographs and CD of Nokia mobile phone, Ex. P1 (Colly). It has proved the disclosure statements made by both the accused persons which are Ex. PW 5/C and Ex. PW 5/D. Therefore, it FIR No. 292/12, [ENTITY] & Anr. 29 of 35 has been able to establish the complete chain of events.
56. Although the identity of snatched mobile phone was not established by the testimony of the complainant, but a perusal of the testimony of PW03 [ENTITY] recorded on 20.11.2015 shows that the identity of case property comprising of snatched mobile phone was proved by adducing photographs and CD, Ex. P1 (Colly). Admittedly, the bicycle was not a case property as it was not seized and there was no need to produce it during trial. It has been held by High Court of Punjab and Haryana in the case of [PRECEDENT] that even if case property is not proved, the same is not fatal to the prosecution case as the court is supposed to appraise the entire evidence adduced on record and weigh its evidentiary value a whole. PW01 complainant Sh. [ENTITY] is an independent public person to whom no motive for false implication has been attributed by the accused persons.
57. Moreover, there is a tendency amongst witnesses to desist from joining/assisting the investigation. Civilized people withdraw both from the victim and the vigilante and they keep themselves away from the Court unless it is inevitable. ([PRECEDENT]). There is no requirement of law that everyone who has witnessed the occurrence, whatever there number be, must be examined as a witness. ([PRECEDENT]). In [PRECEDENT] it was observed that FIR No. 292/12, [ENTITY] & Anr. 30 of 35 it is hard these days to get association of public witnesses in criminal investigation and nobody from public is prepared to suffer any inconvenience for the sake of society.
58. In [PRECEDENT], it was held as under:
"In our system of administration of justice no particular number of witnesses is necessary to prove or disprove a fact. If the testimony of a single witness is found worth reliance, conviction of an accused may safely be based on such testimony. In our system we follow the maxim that evidence is to be weighed and not counted. It is the "quality" and not the "quantity" of the evidence which matters in our system. This cardinal principle of appreciation of evidence in a case has been given a statutory recognition in [SECTION] of the [ACT]."
It is immaterial as to where the complaint, Ex. PW 1/A was signed. The complainant has reiterated the allegations leveled in his complaint, Ex. PW 1/A during trial and nothing material has come out during his crossexamination. Therefore, it is inconsequential that he has stated that he does not know the contents of his complaint, Ex. PW 1/A and he had signed on documents which were already filled up.
59. Secondly, as per MLC bearing no. 332568 dated 01.10.2012 of FIR No. 292/12, [ENTITY] & Anr. 31 of 35 complainant Sh. [ENTITY], he had sustained simple injuries on his person. This fact is also corroborated by the testimony of the complainant who has categorically deposed that both the accused gave beatings to him and snatched his money and mobile phone. Therefore, it is immaterial that the doctor had not specified the specific part of the body on which lacerated wound was found.
60. Thirdly, PW01 complainant Sh. [ENTITY] is an independent public person to whom no motive for false implication has been attributed by the accused persons. Moreover, the public persons had arrived after the incident and therefore, there was no need to join them in investigation. PW03 [ENTITY] identified the case property through four photographs and CD, Ex. P1 (Colly). It is immaterial as to from where [ENTITY] was taken by [ENTITY] as the complainant has reiterated the allegations leveled in his complaint, Ex. PW 1/A during trial and nothing material has come out during his cross examination.
61. Fourthly, failure to record his departure entry in daily diary register by IO SI [ENTITY] and omission to file MLC of accused [ENTITY] are minor procedural lapses which do not have any bearing on merits of the case, particularly in view of the cogent and convincing evidence adduced on record by the prosecution.
62. Fifthly, it is well settled proposition of law that minor discrepancies FIR No. 292/12, [ENTITY] & Anr. 32 of 35 are bound to occur in the testimonies of witnesses due to lapse of time and consequent fading of memory. Reference can be made to judgment delivered by Hon'ble Supreme Court in the case of [PRECEDENT]. The court has to weigh the evidence adduced on record and appraise its veracity. It is immaterial as to where statement of complainant was recorded as the complainant has reiterated the allegations leveled in his complaint, Ex. PW 1/A during trial and nothing material has come out during his crossexamination.
63. Sixthly, it is very much possible that a person may carry a stolen property even after lapse of 11 hours after the incident. It is hardly of any significance as to whether accused [ENTITY] was arrested from near his house or from his house as the involvement of both the accused at 12:30 AM on 01.10.2012 has been established. Nothing material has come out during cross examination of the prosecution witnesses who have withstood the test of cross examination.
64. Seventhly, the complainant Sh. [ENTITY] identified his snatched mobile phone which was recovered from the possession of accused [ENTITY]. He also got his mobile phone released on superdari later on. Admittedly, the accused persons have never claimed their ownership of the SIM card / mobile phone connection. Therefore, there was no need for the IO to conduct any investigation on the aspect of ownership of SIM card and FIR No. 292/12, [ENTITY] & Anr. 33 of 35 authenticity of mobile phone bill produced by the complainant.
65. Eighthly, a perusal of the testimony of PW03 [ENTITY] recorded on 20.11.2015 shows that the identity of case property comprising of snatched mobile phone was proved by adducing photographs and CD, Ex. P1 (Colly). It is immaterial as to where the writing work was done as the complainant has reiterated the allegations leveled in his complaint, Ex. PW 1/A during trial and nothing material has come out during his crossexamination.
66. Lastly, a perusal of testimonies of DW01 Sh. [ENTITY], DW02 Smt. [ENTITY] on one hand and testimony of DW03 Sh. [ENTITY] on the other hand shows that they are contradictory in material aspects. While DW01 Sh. [ENTITY] and DW02 Smt. [ENTITY] have deposed that Sh. [ENTITY] was taken to the police station at about 12:00 PM where he was told to call his son [ENTITY]. Sh. [ENTITY] called his son [ENTITY] who reached at PS within 10 minutes and was falsely implicated in the present case. On the other hand, DW03 Sh. [ENTITY] has deposed that he took accused [ENTITY] to [ENTITY] and handed him over to police officials after which police officials released his father Sh. [ENTITY]. Moreover, DW01 Sh. [ENTITY] has admitted during his crossexamination that accused [ENTITY] was carrying a Nokia mobile phone when he arrived at police station. This corroborates the prosecution story that the snatched Nokia mobile phone was recovered from the possession of accused [ENTITY]. All the three DWs have FIR No. 292/12, [ENTITY] & Anr. 34 of 35 admitted that they did not lodge any complaint regarding false implication of accused [ENTITY] with any authority / forum. Therefore, there is no merit in the contention of ld. defence counsel that DW03 Sh. [ENTITY] disproved that accused [ENTITY] was arrested from near his house.
67. In view of the above discussion, the court holds that on 01.10.2012 at about 12:30 AM, on service lane / cycle lane, near [ENTITY] School, [ENTITY], New Delhi, both the accused in furtherance of their common intention, voluntarily caused hurt on the person of the complainant while dishonestly taking away his money and Nokia mobile phone without his consent. Therefore, both accused viz. [ENTITY] and [ENTITY] are held guilty for commission of offence punishable U/[SECTION] [ACT] and are convicted for committing the said offence. However, since theft is an inherent ingredient of offence of robbery, no independent offence punishable U/[SECTION] [ACT] is made out against accused [ENTITY].
Copy of the judgment be given to both the accused free of charge.
Announced in the open ([ENTITY]) court on 27.06.2016 ACMM (South), New Delhi. FIR No. 292/12, [ENTITY] & Anr. 35 of 35