:1: In the Court of Ms. [ENTITY] Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi. [CASE NUMBER] Unique ID No. : 02401R0087592010 [ENTITY] versus 1) [ENTITY] S/o Mohd. Kain R/o 2728, Gali No. 3 [ENTITY], Kailash Nagar Delhi 2) [ENTITY] S/o [ENTITY] R/o Jhuggi No. T27, Gali No. 1, Chander Nagar, Kailash Nagar, Delhi. [Convicted vide judgment dated 02.2.12] 3) [ENTITY] S/o [ENTITY] R/o 5275, [ENTITY], Chandni Chowk, Delhi. [Declared Juvenile vide order dated 30.3.11] Case arising out of: FIR No. : 156/09 Police Station : Old Delhi Railway Station Under [SECTION] [ACT] :2: Judgment reserved on : 07.11.2012 Judgment pronounced on : 09.11.2012 JUDGMENT
Case of the Prosecution :
The brief facts of the case as borne out from the chargesheet are that on 05.11.09 at 12.30 AM a call was received from Duty Constable deputed at Aruna Asaf Ali Hospital at PS Old Delhi Railway Station vide DD No. 2A to the effect that one [ENTITY] aged 27 years, who had been admitted by [ENTITY] has expired at 12.31 AM. Another call was received from Duty Ct. AAA Hospital vide DD No. 3A to the effect that one [ENTITY] has been admitted in the hospital by [ENTITY]. Both DD entries were marked to SI [ENTITY] who reached the said hospital and obtained the MLC of [ENTITY] where doctor had mentioned history of stab injury within the train and that the patient was brought dead. As per MLC of [ENTITY], doctor had mentioned stab injury within train and patient was stated to be fit for statement.
SI [ENTITY] recorded statement of complainant i.e. injured [ENTITY] who stated that on 04.11.09, he took Fusfus Express from Muradabad at 4.15 PM for Delhi and on his way his friend, i.e. deceased [ENTITY] also boarded the same train from Kafar Pur. They both were going to Bangalore for the recruitment in Army and were to take the train for Bangalore from Nizamuddin Railway Station, Delhi. They got down at Ghaziabad Station and bought the ticket for Nizamuddin Station and at about 10.45 PM they took EMU Shuttel train from Ghaziabad. At about 11.30 PM when the train had stopped just before Yamuna Bridge, two boys aged about 25 years whipped out their knives. Complainant further alleged that one of the boys took out his mobile make 'Fly' from his shirt's pocket at knife point and also took out his purse of black colour from the back pocket of his pant containing Rs. 3000/ along with other documents.
When the complainant requested the boys to return SIM card, one of boys abused him and stabbed him in the right thigh. Complainant [ENTITY] also alleged that other boy pointed a knife at [ENTITY] and took out mobile phone of [ENTITY] from his shirt and also asked him to hand over his purse, which [ENTITY] refused to do. The boy asked the other boy who stabbed him stating that 'stab him otherwise he will not give the purse'. Upon this the said other boy stabbed [ENTITY] in the stomach and took out the purse. Thereafter, both the boys got down from the train and ran away. When train reached at platform No. 12, one Home guard [ENTITY] met them and took them to AAA Hospital in a TSR where [ENTITY] was declared 'brought dead'. The complainant contended that he can identify both the boys who had stabbed him and [ENTITY] and looted their mobile phones and purse.
On the basis of said statement of [ENTITY], the case in hand was registered. During the course of investigation, SI [ENTITY] seized the clothes of injured [ENTITY] (since deceased) and blood sample of the deceased. Investigation was later transferred to Insp. [ENTITY], SHO PS ODRS. IO got conducted postmortem and seized the blood sample given to him by autopsy surgeon and also prepared rough site plan at the pointing out of injured [ENTITY].
During the course of investigation, IMEI numbers of the looted mobile phones were obtained as 356853030037580 of mobile No. 9917593978 of injured [ENTITY] and 355727023536670 of mobile No. 9759824464 of deceased [ENTITY]. The IMEI numbers were put on search and it was revealed that one mobile No. 9873084750 is running on IMEI No. 356853030037580 of injured [ENTITY]. Ownership of 9873084750 was obtained from Vodafone as of one [ENTITY] S/o [ENTITY] R/o T43 T huts [ENTITY], Kailash Nagar, Delhi. One other mobile No. 9910677863 was found running on the IMEI No. 355727023536670 of deceased [ENTITY]. Ownership of 9910677863 was obtained from [ENTITY] as of one [ENTITY] S/o [ENTITY] R/o 2797, Gali No. 4, Kailash Nagar, Delhi.
The aforesaid [ENTITY] was interrogated and he revealed that on 06.11.09 he had got one mobile phone of coffee colour make Fly for Rs. 1500/ from one [ENTITY] S/o [ENTITY] who told him that he will give the papers later and when [ENTITY] did not give him papers of mobile phone, he returned the phone to [ENTITY] on 14.11.09. He also produced his SIM card which was seized and his statement was recorded.
[ENTITY] was also interrogated and he revealed that on 14.11.09 he had used one mobile phone of black colour make [ENTITY] 1680 given to him by one [ENTITY]. However, he did not like the phone and returned the phone to [ENTITY] in the evening of 14.11.09. He used his SIM No. 899110090714981407 H2 in that mobile phone and his mobile number was 9910677863. [ENTITY] produced his SIM card and same was seized and his statement was recorded.
On 20.11.09 accused [ENTITY] and [ENTITY] were apprehended and one mobile phone make [ENTITY] 1680 black colour without SIM card, IMEI No. 355727023536670 was recovered from the possession of accused [ENTITY]. He disclosed that he had looted this phone from two persons after stabbing one of them on the night of 4/5.11.09 from a train.
One mobile phone make Fly model O8200 coffee colour without SIM card IMEI No. 356853030037580 was recovered from possession of accused [ENTITY]. He also disclosed that he had looted this phone from two persons on the night of 4/5.11.09 from a train.
Both the recovered phones were seized and accused [ENTITY] and [ENTITY] were arrested. Their detailed disclosure statements were recorded. They also named one [ENTITY] as one of their associate stating that he was with them on 04.11.09. Both the accused persons identified the place of occurrence. Accused [ENTITY] refused to participate in the TIP proceedings.
During the course of investigation, accused [ENTITY] was arrested on 03.12.09. At his instance one black purse of raxine on which 'Woodland' was written was recovered from the bushes near the place of occurrence. Complainant [ENTITY] correctly identified accused [ENTITY] during the TIP proceedings.
After completion of investigation chargesheet was filed which was duly committed after completion of relevant statutory provisions.
During the course of proceedings vide order dated 30.3.11 accused [ENTITY] was declared juvenile and was directed to be produced before concerned JJB for his trial in accordance with law. Accused [ENTITY] was, however, found to be above 18 years of age. Charges :
Upon considering the material on record and submissions made, accused [ENTITY] was charged for offence punishable under [SECTION] [ACT], 394/397 [ACT] and for offence punishable under [SECTION] [ACT] for having been found in possession of stolen mobile phone of [ENTITY] 1680 belonging to deceased [ENTITY].
Accused [ENTITY] was charged for offence punishable under [SECTION] [ACT] for having been found in possession of mobile phone belonging to complainant [ENTITY]. Both the accused pleaded not guilty and claimed trial when the aforesaid charges were read over and explained to them.
As per record, after evidence of some of the witnesses had been recorded, accused [ENTITY] had voluntarily pleaded guilty for offence punishable under [SECTION] [ACT] and on the basis of evidence led on record against accused [ENTITY], he was convicted for offence punishable under [SECTION] [ACT] vide judgment dated 02.2.12. Accordingly, trial thereafter proceeded before this court only with respect to accused [ENTITY].
Prosecution Evidence :
In order to bring home the charges framed against accused [ENTITY] for offence punishable under [SECTION] [ACT], 394/397 [ACT] and for offence punishable under [SECTION] [ACT], Prosecution examined 19 witnesses.
Complainant [ENTITY] was examined as PW1. He deposed that on 04.11.2009, he boarded passenger train namely 'phus phus express' for Delhi from Moradabad, UP. He also deposed that he had to catch another train to Bangalore from Delhi i.e. from Nizammuddin Railway Station. His friend [ENTITY] was also accompanying him. Both of them got down at Ghaziabad Railway Station for boarding a EMU train for reaching Nizammuddin Railway Station as they came to know that 'phus phus express' was not going to Nizammuddin Railway Station. The complainant further deposed that they boarded EMU Train from Ghaziabad at about 10:45 PM and when the train reached near old Yamuna Bridge, it was stopped there and when the train was halted there, two boys aged about 2025 years old entered in the compartment and both of them took out knives and both of them asked them to handover whatever they were carrying by brandishing their knives. One of those boys had taken out some papers and his mobile phone make 'FLY' from the front pocket of his shirt and thereafter the same boy had taken out his wallet from the pocket of his pant. He further deposed that when he requested the said boy to handover the sim card of his mobile phone, the said boy stabbed him below his waist on the right side, while the second boy had taken out make 'NOKIA 1680' and some papers from the front pocket of his shirt. He further deposed that when this boy tried to took out the wallet of his friend [ENTITY] from the pocket of his pant, he resisted. At this, the boy who had taken his mobile and wallet told him "yeh aise nahien dega. Maar iske chaaku." At this, the said boy stabbed his friend [ENTITY] on his stomach and his wallet was taken out. After robbing them both the boys fled away. This witness further deposed that when the train reached at Old Delhi Railway Station, he informed the incident to a policeman who was present at the platform. On seeing the condition of his friend, he along with the said policeman took him to Aruna Asiaf Ali Hospital in a TSR where he was declared brought dead. The statement of this witness was recorded by the police in the Police Station which is Ex.PW1/A. PW1 correctly identified accused [ENTITY] as the person who had stabbed and robbed him and also instigated the other boy i.e. his coaccused. PW1 also identified mobile phone make 'FLY' IMEI No.356853030037586 coloured brown with battery bearing to be same which belongs to him which is Ex.P1. The witness further identified the second mobile phone of black colour make "NOKIA" model 1680 to be that of his deceased friend [ENTITY] bearing IMEI No.355727023536674 which is Ex.P2.
PW13 [ENTITY] who was working as constable of DHG deposed that on the intervening night of 0405.11.2009 he was posted at platform No.12 of Old Delhi Railway Station from 10 PM to 6 AM. At about 11:45 PM one shuttle EMU train from the side of Ghaziabad came there. One person who was himself injured came towards him carrying another person who was also in injured condition. He further deposed that the injured told him that both of them had got down from the said train and told him that they sustained injuries at the hands of two persons who had robbed mobile phone and wallet and had caused injuries to them. PW13 further deposed that the said person revealed his name as [ENTITY] and the name of other person to whom he was carrying as [ENTITY]. He also correctly identified the complainant before the court. He also deposed that he took both of them to Aruna Asaf Ali Hospital in TSR, where doctor declared injured [ENTITY] as brought dead, while injured [ENTITY] who had sustained injuries on his thigh was given treatment. After some time, SI [ENTITY] along with one head constable also reached at the hospital.
SI [ENTITY] was brought into the witness box as PW15 who deposed that on receipt of DD No.2A & 3A on 05.11.2009, he along with [ENTITY] reached at Aruna Asaf Ali Hospital and collected MLC of one [ENTITY] and [ENTITY]. He also seized the pulandas of the clothes of the deceased vide seizure memo Ex.PW10/A and that of injured [ENTITY] vide seizure memo Ex.PW10/B and also recorded statement of injured [ENTITY] Ex.PW1/A and got the case registered through [ENTITY]. He further deposed that after registration of FIR Insp.[ENTITY] to whom further investigation was handed over, directed [ENTITY] to preserve the dead body of the deceased at Subzi Mandi Mortuary. Thereafter he along with Insp.[ENTITY] and injured [ENTITY] reached at the place of incident i.e. Railway Line Kailash Nagar, Chanderpuri as pointed out by the injured and at the instance of injured Insp.[ENTITY] prepared site plan of the place of incident. He further deposed that Insp.[ENTITY] got conducted post mortem on the dead body of the deceased [ENTITY] and the sealed pulanda containing blood sample of deceased was seized vide memo Ex.PW2/A. Insp.[ENTITY] was examined as PW19. He also deposed that on reaching Aruna Asaf Ali Hospital on 05.11.2009 he met SI [ENTITY] and [ENTITY]. After registration of the case FIR, one pulanda duly sealed with the seal of CMO AAA containing clothes of the deceased [ENTITY] were handed over to him by SI [ENTITY] and other pulanda which was also sealed with the same seal was also handed over to him containing clothes of injured [ENTITY] and the dead body of the deceased was sent to mortuary through [ENTITY]. Thereafter, he along with complainant [ENTITY], SI [ENTITY] reached at the place of incident i.e. Railway Line, [ENTITY], Kailash Nagar and at the instance of complainant, he prepared site plan which is Ex.PW18/A. He further deposed that he recorded supplementary statement of the injured and prepared inquest form 25.35 (b) Ex.PW18/D and moved an application for the postmortem on the body of deceased Ex.PW18/E after which the same was handed over to the relatives of the deceased.
PW18 also deposed that on the basis of mobile phone number of complainant [ENTITY] and deceased [ENTITY], he collected CDR of both the mobile phones. On the basis of those CDRs, IMEI numbers of both the mobile phones was detected and those mobile phones were kept on surveillance. On the basis of IMEI number, the mobile phone of complainant [ENTITY] was found being used by one [ENTITY], using the SIM card of Vodafone. On 19.11.2009, the said [ENTITY] was found present in his house and was interrogated with regard to mobile phone of injured [ENTITY].
The said [ENTITY] has also been examined by the Prosecution as PW4. He deposed that accused [ENTITY] (already convicted) offered to sell mobile phone make 'Fly' on 06.11.2009 for Rs.1500/ and he asked [ENTITY] to produce documents of the said mobile phone. At this, [ENTITY] assured him that he will bring the documents within 89 days and the mobile phone may be kept by him. PW4 further deposed that he used the said mobile phone by sim card having No.9873084750. On 14.11.2009, since the accused [ENTITY] failed to produce any document of the said mobile phone, he returned the mobile phone to accused [ENTITY] and kept the sim card with him. The said sim card was taken into police possession vide seizure memo Ex.PW4/A. As per IO/Insp.[ENTITY] (PW18), on the basis of mobile phone of deceased [ENTITY], it was found being used by one [ENTITY] (PW6) R/o 2797, Gali No.4, Chanderpuri, Kailash Nagar, who upon interrogation revealed that he had purchased that phone from accused [ENTITY] on 14.11.2009 for Rs.1200/, but he was not satisfied with the performance of the said mobile phone, therefore, it was returned to [ENTITY] on the same day. The said sim card of [ENTITY] was taken into police possession vide seizure memo Ex.PW3/A. PW18 also deposed that on 20.11.2009, on the basis of secret information [ENTITY] and [ENTITY] were apprehended. One mobile phone of black colour make '[ENTITY]' was recovered from right side pocket of his wearing pant. On checking the IMEI number of that mobile phone, it was tallied with the mobile phone of deceased [ENTITY]. The said mobile was taken into police possession and seized vide seizure memo Ex.PW9/A. Accused [ENTITY] was arrested vide arrest memo Ex.PW9/E and his disclosure statement Ex.PW9/C was recorded wherein he disclosed about his other associate namely [ENTITY] (Juvenile). IO/Insp.[ENTITY] further deposed that on 22.12.2009 he reached the place of incident along with SI [ENTITY] (PW8) and Insp.[ENTITY] (PW6) and SI [ENTITY] (PW8) prepared scaled site plan at his instance.
In order to prove that the mobile phone no.9759824464 was subscribed in the name of deceased [ENTITY], the Prosecution examined PW14 [ENTITY], Nodal Officer, Vodafone Mobile Services Ltd. who proved the Customer Application Form of the aforesaid mobile phone which was in the name of deceased [ENTITY]. The same is Ex.PW14/A. The CDR of the said mobile phone for the period 01.11.2009 to 04.11.2009 is Ex.PW14/B. With regard to the mobile phone belonging to complainant [ENTITY] bearing No.9917593978, the Prosecution examined PW7 [ENTITY], who deposed that he has given his Voters' ID Card to [ENTITY] and on the basis of his Voters' ID Card, [ENTITY] had obtained the mobile phone connection. The witness on seeing the copy of the Customer Application Form of the mobile connection no.9917593978 correctly identified his photograph on the same and also identified the photograph of his Voters' ID Card annexed therewith.
Besides the aforesaid, the Prosecution also examined Dr.[ENTITY] as PW2, who had conducted the post mortem on the dead body of the deceased [ENTITY] Ex.PW2/AB. He deposed that on external examination following ante mortem injuries were present on the body of the deceased:
a) Stab incised wound 2.6 x 0.2 cm x abdominal cavity deep present on right side lower abdomen, obliquely placed 2.5 cm below the umblicus and 2.5 cm right to midline. The lower outer angle of the bone is acute and the other angle is blunt. The wound enter the cavity by cutting the mesentry and small intestine. Total depth of the wound was about 14 cms and about 2 litres of blood mixed with clotted blood present in the cavity.
On internal examination the viscera of the deceased were pale and injuries in the bowels is already mentioned in ante mortem injuries. The witness opined the cause of death as hemorrhagic shock due to ante mortem stab injury to abdomen and sufficient to cause death in ordinary course of nature. He further deposed that injury No.1 is ante mortem in nature, recent in duration and could be caused by single sharp edged weapon and sufficient to cause death in ordinary course of nature. Time since death was about 1218 hours. This witness also deposed that all clothes of the deceased and deceased's blood soaked on gauze piece were preserved and handed over to the IO along with sample seal, which were taken into police possession vide seizure memo Ex.PW2/A. PW5 [CASE NUMBER] is Duty Officer, who had registered FIR Ex.PW5/A on the basis of rukka brought by [ENTITY] sent by Insp.[ENTITY].
PW6 is Insp.[ENTITY] who deposed that on 22.12.2009 he had accompanied Insp.[ENTITY] (PW18) and [ENTITY] (PW8) to the place of incident and at the instance of Insp.[ENTITY], SI [ENTITY] inspected the place of incident and took measurements of the said place. He further deposed that he also collected CDRs and record of documents from the concerned service providers and recorded the statements of the witnesses who had joined investigation with him.
[ENTITY] stepped into the witness box as PW9. He deposed that he had joined investigation of this case along with Insp.[ENTITY] and SI [ENTITY]. He further deposed regarding recovery of mobile phone make '[ENTITY]' from the possession of accused [ENTITY] whose IMEI number was found tallying with the IMEI number of the mobile phone of the deceased [ENTITY] which was seized vide memo Ex.PW9/A. Arguments of the Prosecution :
On the basis of the aforesaid evidence, it was contended by the ld. APP that the allegations against the accused [ENTITY] have been established beyond reasonable doubt. He relied upon the deposition of the complainant PW1 [ENTITY] and argued that the complainant not only correctly identified the accused [ENTITY] but also identified the mobile phone belonging to him as well as the deceased [ENTITY]. The factum of recovery of mobile phone of the deceased from the possession of accused [ENTITY] is also stated to have been proved from the testimonies of PW9 [ENTITY] and Insp.[ENTITY] (PW18). He further contended that the recovery of the mobile phone of complainant [ENTITY] from the possession of accused [ENTITY] (already convicted) has also been established beyond reasonable doubt. The injuries sustained by injured [ENTITY] have been proved by the deposition of PW19 Dr.[ENTITY], who examined injured [ENTITY] vide MLC Ex.PW12/A. The cause of death of deceased [ENTITY] has also been proved vide post mortem report Ex.PW2/B which is coupled with the eye witness account of the complainant PW1 and duly corroborated by the testimony of PW13 [ENTITY], the Prosecution has been able to prove its case against the accused [ENTITY]. Arguments of Defence :
On the other hand, the case of the Prosecution was assailed by the defence primarily on the following grounds:
(a) It was firstly contended by learned defence counsel that the place of occurrence has not been established on record by the Prosecution. My attention has been drawn to the rukka Ex.PW1/A, as per which the place of occurrence of the incident in question was in the coach of the stationary train near Old Yamuna Bridge. On the other hand as per PW12 who proved MLCs Ex.PW12/A and Ex.PW12/B wherein the PW1 has given the history of stabbing at ODRS. PW13 [ENTITY] has deposed that he took the injured to Aruna Asaf Ali Hospital from ODRS and that PW1 has stated that the place of incident was at Old Yamuna Bridge.
(b) The defence next contended that the site plan Ex.PW18/A has not been proved on record in accordance with law.
Moreover, no copy of the same was supplied to the accused and the same cannot be read in evidence.
(c) The third argument of defence was that the recovery of the mobile handset from the possession of the accused [ENTITY] Ex.PW9/A has not been proved in accordance in law since the place of its recovery does not contain any mention in the recovery memo Ex.PW9/A.
(d) Lastly, it was argued that the witnesses of the Prosecution were unable to state the correct number of case diaries recorded during the investigation of this case and hence the provisions of [SECTION] of the [ACT] as applicable to Delhi have been violated in this case.
It was thus contended that the case of the Prosecution has not been proved beyond reasonable doubt and the accused merits acquittal.
On the other hand ld. APP argued that the eye witness account of the complainant PW1 [ENTITY] coupled with the recovery of the mobile handset from the possession of accused [ENTITY] clearly establishes the case of the Prosecution. Analysis & Findings :
I have considered the rival submissions of the Defence and the Prosecution in the light of evidence on record. I find on going through the deposition of the complainant/eye witness/PW1 [ENTITY] that not only this witness has categorically narrated the entire incident, but has also correctly identified the accused as the person who had robbed him and the deceased at knife point and had also caused fatal injuries. He further deposed while pointing at accused [ENTITY], present before the court that he is the same person who had stabbed and robbed him and had also instigated the other boy (i.e. coaccused [ENTITY]) for stabbing his friend i.e. deceased [ENTITY]. PW1 further correctly identified the mobile phone make '[ENTITY]' model 1680 bearing IMEI No.355727023536674 as the one belonging to deceased [ENTITY].
In order to establish that mobile No. 9759824464 was subscribed in the name of deceased, the Prosecution relied upon the testimony of PW14 [ENTITY], Nodal Officer, Vodafone Mobile Services Ltd. who proved the Customer Application Form in the name of [ENTITY] s/o [ENTITY] and the CDR for the period 01.11.2009 to 04.11.2009. The witness was not crossexamined by the defence.
The recovery of the mobile phone of the deceased [ENTITY] at the instance of accused [ENTITY] has been proved from the statements of PW9 [ENTITY] and SI [ENTITY] (PW15) which is also duly corroborated by the statement of Insp.[ENTITY] (PW18). All the said witnesses have consistently deposed that on 20.11.2009, on receipt of secret information accused [ENTITY] was apprehended from near Mazar near Railway Line, Chanderpuri, Kailash Nagar, Delhi. All the said witnesses correctly identified accused [ENTITY] and also mobile phone make '[ENTITY]' model 1680 which was recovered from the right side pocket of his wearing pant on the said date. The witnesses further deposed that on checking the IMEI number of the said mobile phone, it was found tallying with the mobile phone of deceased [ENTITY] and the same mobile phone was seized vide seizure memo Ex.PW9/A. It is also pertinent to mention that on going through the seizure memo of accused [ENTITY] Ex.PW9/E, it is apparent that the place of arrest being near Mazar near Railway Line, Chanderpuri, Kailash Nagar, Delhi has been clearly mentioned in the said arrest memo and the argument of the defence that the place of recovery of the mobile phone is not mentioned in the seizure memo Ex.PW9/A thus loses its significance in view of deposition of the aforesaid witnesses regarding recovery of the mobile phone from the possession of the accused [ENTITY].
It may also be relevant to mention that the fact that the last digit of the IMEI number of the mobile phone make '[ENTITY]' model 1680 recovered from the possession of accused [ENTITY] is different from the IMEI number as mentioned in the charge sheet and the CDR. However, in view of observations of the Hon'ble Supreme Court in [ENTITY] vs. Navjot Sandhu & Other connected matters reported as [PRECEDENT] to the fact that the last digit of the IMEI number is variable, not much significance can be given to the variance in the last digit of the IMEI Nos. of the mobile phone as mentioned in the seizure memo Ex.PW9/A and in the page of the charge sheet.
Apart from the fact that the eye witness complainant PW1 has categorically identified [ENTITY] as one of the assailants and coupled with the fact that the mobile phone of the deceased [ENTITY] was recovered from the possession of accused [ENTITY], reliance may also be placed on the statement of PW13 [ENTITY], who found the complainant and the deceased in an injured condition alighting from shuttle EMU train at platform No.12 in the intervening night of 0405.11.2009. This witness also deposed that the person who was himself injured and was carrying another person who was in injured condition and both of them came to him and the person who was carrying the injured person told him that both of them got down from the said train and told him that they sustained injuries at the hands of assailants who were travelling in the said train and also robbed their mobile phones and wallet after causing injuries to both of them.
It is also pertinent to mention that the contention of the defence with regard to the place of occurrence being uncertain and unestablished by the Prosecution witnesses cannot be attached much significance. It has been duly established from the deposition of the Prosecution witnesses that the incident occurred in shuttle EMU train in the intervening night of 0405.11.2009 while the train was on its way from Ghaziabad to Nizamuddin Railway Station and when the train had reached Old Yamuna Bridge, apparently the incident occurred at about 10:45 PM as per the testimony of PW1 and considering the aforesaid facts and circumstances to ascertain the exact place where the incident occurred may not be possible. The fact that as per MLC Ex.PW12/A the examining doctor has recorded "Alleged history of stab injury within train at ODRS at around 11:30 PM yesterday as per statement by patient", cannot, in my opinion, be said to be fatal to the case of the Prosecution. It is well settled law that any examining doctor is more concerned about rendering medical assistance to the patient and the history and the place of incident as may be recorded by the examining doctor in the MLC cannot always be treated as gospel truth. Even otherwise, to ascertain the exact place of incident in dead of the light in a moving train may not be possible and the fact as regards identity of the accused has been established on record beyond reasonable doubt. The fact that the incident occurred in the EMU Shuttle train plying between Ghaziabad and Nizammuddin has also been established on record and the variance in the deposition of PW1 [ENTITY] regarding the place of incident as mentioned in the MLC or as deposed by PW13 [ENTITY] cannot, in my opinion, be said to be fatal to the case of the Prosecution.
Insofar as site plan Ex.PW18/A is concerned, it is apparent on going through the same that the same has been prepared by Insp.[ENTITY] (PW18) at the instance of the complainant, while the scaled site plan Ex.PW8/A is prepared by the draftsmen at the instance of IO/Insp.[ENTITY]. Further, the contention of the accused that he was not supplied with the copy of the site plan Ex.PW18/A is also an after thought since during the entire length of trial the accused never raised the plea that he was never been supplied the copy of the site plan Ex.PW18/A. Lastly, the contention of the defence regarding variance in number of case diaries recorded during the course of investigation can at the most be said to be an irregularity committed during the investigation and does not, in my opinion, constitute a ground for acquittal of the accused. Even otherwise, the law has been settled by way of various pronouncements of Hon'ble Apex Court titled as [PRECEDENT] titled as [ENTITY] of UP vs. Hari Mohan & Ors. and [PRECEDENT] titled as Dhanaj Singh @ Shera & Ors. vs. [ENTITY] of Punjab, wherein it was categorically held that Investigation being defective in nature cannot be made a basis for acquitting the accused, more so when a case is made out agianst all or any one of the accused persons. Further, the court has to be circumspect in evaluating the evidence and the accused cannot be acquitted solely on account of defective investigation, which would tantamount to plying into hands of Investigating Officer if investigation is designedly defective.
It has already come on record by way of deposition of PW1 complainant [ENTITY] that accused [ENTITY] caused hurt on the person of complainant while committing robbery along with other co accused (who is juvenile) and thus committed offence under [SECTION] [ACT]. It has further been established from the deposition of PW1 that the accused [ENTITY] had stabbed him below his waist on the right side and injuries were sustained by the complainant PW1. The deposition of PW1 stands corroborated by way of MLC of injured [ENTITY] Ex.PW12/A. Further, as regards the injuries upon the person of [ENTITY], it has come in the deposition of PW1 that both the accused including [ENTITY] were armed with knives and accused [ENTITY] used that knife to cause injuries upon his person.
In view of the said deposition of the complainant and the MLC Ex.PW12/A and since it has been established that the accused used a knife for causing the said injuries. The injuries sustained by complainant [ENTITY] were opined to be simple in nature. Thus the testimony of the injured complainant (PW1) becomes extremely relevant. Despite lengthy crossexamination by learned defence counsel the deposition of PW1 remained unimpeached. The Hon'ble Supreme Court in a judgment titled as [ENTITY] of UP Vs Naresh & Ors. Reported as [CASE NUMBER] while dealing with the deposition of an injured witness observed that "The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein".
The recovery of the mobile phone of deceased [ENTITY] and injured [ENTITY] also stand established from the deposition of PW9 [ENTITY] and PW18 Insp. [ENTITY]. The said mobile phones were also correctly identified by the complainant PW1 when he stepped into the witness box. Thus, having regard to the material on record and the above discussion, I find that the offence punishable under [SECTION] [ACT] also stands proved against accused [ENTITY].
I may, however, hastened to add at this juncture that a possible argument which could have been raised by the defence is that accused [ENTITY] could not be convicted for the offence under [SECTION] with the aid of [SECTION] [ACT], although this argument was not raised by the learned defence counsel, however, I deem it appropriate to deal this aspect i.e. as to whether accused [ENTITY] could be convicted for the offence under [SECTION] [ACT] with the aid of [SECTION] [ACT].
In this context, it may be relevant to revert to the deposition of PW1 [ENTITY]. Both the accused were armed with knives. Further, accused [ENTITY] asked his coaccused (since juvenile) to stab deceased [ENTITY] with knife upon his refusal to handover his belongings. PW1 deposed that accused [ENTITY] had told his coaccused by saying that "yeh aise nahien dega. Maar iske chaaku" when the deceased [ENTITY] had resisted at the time when accused [ENTITY] (since juvenile) was trying to took out the wallet of [ENTITY] from the pocket of his pant. The possible argument in these circumstances could have been that there is no material for holding accused [ENTITY] guilty of offence punishable under [SECTION] [ACT] and at the most he may be held liable for having abated the commission of said offence.
However, upon going through the provisions of [SECTION] [ACT] and the judgment of Hon'ble Supreme Court in Khujji @ Surendra Tiwari vs. [ENTITY] of Madhya Pradesh reported as 1991 Crl.LJ. 2653, I am of the opinion that the accused [ENTITY] must be convicted for offence punishable under [SECTION] [ACT] with the aid of [SECTION] [ACT] having regard to the facts and circumstances of the present case. In Khujji @ Surendra Tiwari vs. [ENTITY] of M.P. (Supra) the it has been observed as under:
"Murder case - Several accused - All but one acquitted - Sole accused convicted for murder not proved to have caused the fatal injury -
Conviction for substantive offence of murder can be sustained with aid of [SECTION] when involvement of other persons in crime evident from direct testimony".
In the present case also it has been established from the eye witness account of PW1 [ENTITY] that both the accused were in possession of knives. It has further been established that while accused [ENTITY] caused injuries upon the person of complainant [ENTITY], his coaccused (since juvenile) caused fatal injuries upon the deceased [ENTITY] and the said act was also done in furtherance of the common intention of both the accused. The deposition of PW1 clearly establishes that the accused were acting in concert and shared a common intention while committing the offence in question.
Accordingly, in the light of the above discussion, the evidence on record and the relevant statutory provisions, I have no hesitation in concluding that the offence punishable under [SECTION] [ACT] is proved to have been committed by accused [ENTITY] beyond the shadow of reasonable doubt and he is liable to be convicted for the said offence.
Besides the aforesaid offence, accused [ENTITY] is also proved to have committed offence punishable under [SECTION] [ACT]. I am conscious of the fact that as per MLC of the injured [ENTITY] Ex.PW12/A, the injuries sustained upon his person were opined to be simple in nature. It is also not disputed that the knife used for the commission of crime was not recovered during the course of investigation. However, a perusal of the provisions of [SECTION] [ACT] clearly shows that the necessary ingredients for the offence under [SECTION] [ACT] are as follows:
(a) Robbery or dacoity is committed.
(b) At the time of committing robbery or dacoity the offender
(i) uses any deadly weapon, or
(ii) causes grievous hurt to any person, or
(iii) attempts to cause death or grievous hurt to any person. From the testimony of PW1 and the MLC of the injured [ENTITY] Ex.PW12/A it has clearly been established that he sustained knife injuries upon his person at the hands of accused [ENTITY]. The defence, in these circumstances, could have argued that since the knife allegedly used by accused [ENTITY] was not recovered, there is nothing on record to suggest that it would fall within the meaning of "deadly weapon" as required under [SECTION] [ACT]. However, the Hon'ble Supreme Court in a judgment titled as Ashfaq vs. [ENTITY] (Govt. of NCT of Delhi), (2004) 3 SCC 116 in para 9 has clearly held that "knife" is a deadly weapon for the purposes of [SECTION] [ACT].
In view of the aforesaid ruling of the Hon'ble Apex Court, there is not even an iota of doubt that the accused [ENTITY] also committed the offence punishable under [SECTION] [ACT] r/w [SECTION] [ACT]. Accused [ENTITY] s/o [ENTITY] is accordingly convicted for the offence punishable under [SECTION] [ACT] in addition to the offences punishable under [SECTION] [ACT] and [SECTION] [ACT].
Let him be heard on the point of sentence.
Announced in the Open Court on 09.11.12 ([ENTITY]) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
In the Court of Ms. [ENTITY] Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.
[CASE NUMBER] Unique ID No. : 02401R0087592010 [ENTITY] versus 1) [ENTITY] S/o [ENTITY], Kailash Nagar Delhi 2) [ENTITY] S/o [ENTITY] R/o Jhuggi No. T27, Gali No. 1, Chander Nagar, Kailash Nagar, Delhi. [Convicted vide judgment dated 02.2.12] 3) [ENTITY] S/o [ENTITY] R/o 5275, [ENTITY], Chandni Chowk, Delhi. [Declared Juvenile vide order dated 30.3.11] Case arising out of: Police Station : Old Delhi Railway Station Under [SECTION] [ACT] Judgment pronounced on : 09.11.2012 ORDER ON SENTENCE:
1. The above named accused have been convicted for the offence punishable under [SECTION] [ACT] in addition to the offences punishable under [SECTION] [ACT] & 411 [ACT] vide judgment dated 09.11.12.
2. I have heard the submissions made by Learned Defence Counsel and Learned APP on the point of sentence.
3. Having regard to the nature of offences committed by the convict and upon considering the facts and circumstances of the case, the convict [ENTITY] S/o [ENTITY] is sentenced as under:
i) For offence punishable under [SECTION] [ACT], the above named convict is sentenced to Rigorous Imprisonment for life in addition to payment of fine of Rs. 10000/ in default whereof, he shall undergo Simple Imprisonment for 2 years.
ii) For offence punishable under [SECTION] [ACT], the above named convict is sentenced to undergo Rigorous Imprisonment for 10 years in addition to payment of fine of Rs.5000/ in default whereof, he shall undergo Simple Imprisonment for one year.
iii) For offence punishable under [SECTION] [ACT], the above named convict is sentenced to undergo Rigorous Imprisonment for 07 years.
iv) For offence punishable under [SECTION] [ACT], the above named convict is sentenced to undergo Rigorous Imprisonment for 03 years.
All the sentences shall run concurrently. The convict shall be entitled to benefit of [SECTION] [ACT]. Copy of judgment and order on sentence be provided to convict free of cost. File be consigned to Record Room.
Announced in the Open Court on 23.11.12 ([ENTITY]) Additional Sessions JudgeFTC (Central) Tis Hazari Courts: Delhi.