State vs Anand (On Bail) on 15 July, 2015

Delhi District Court

State vs Anand (On Bail) on 15 July, 2015
Author: Sh. Sanjay Sharma
IN THE COURT OF SH. SANJAY SHARMA : SPECIAL JUDGE (NDPS) /
ADDL. SESSIONS JUDGE, (NORTH-EAST): KARKARDOOMA COURTS, DELHI

SC No. : 18(I)/13
FIR No. : 87/11
PS : Seelampur
U/Sec. : 379/397/327/411/394/34 IPC

Case ID : 02402R0312182011

State Versus Anand (on bail)

S/o Sh. Raj Kumar
R/o 191, Double Storey,
Welcome, Delhi

Date of Institution : 24.10.2013

Date of reserving order : 01.07.2015
Date of Judgment : 15.07.2015

JUDGMENT

The prosecution case:

1. On 23.03.2011, PW-7 SI Vinay Kumar with PW-5 Ct. Sandeep was returning to police station
Seelampur after attending PCR call vide DD No. 28A. When he reached near Seelampur Red Light,
PW-3 HC Devender and PW-1 Santosh Kumar Jha met and handed him over the accused Anand.
PW-7 SI Vinay Kumar recorded statement of PW-1 Santosh Kumar Jha. He prepared tehrir
Ex.PW7/A and handed it over to PW-5 Ct. Sandeep for being taken to PS Seelampur for registration
of case under section 379/327/34 of the Indian Penal Code, 1860 (Hereinafter referred to as 'IPC').

2. The statement of PW-1 Santosh Kumar Jha Ex.PW1/A is translated as under:-

"Statement of Santosh Kumar Jha S/o Sh. Srishti Narayan Jha R/o H. No. 16, Old
Seemapuri, Delhi. Age 35 years. Phone 22354388 / 9810583541.

Stated that I am residing at the afore- said address alongwith my family. I am doing
the work of repairing of embroidery machine. Today, on 23.03.2011, I was going to
my house from my office in Gandhi Nagar on foot. At about 8.00 p.m. when I reached
near Petrol Pump, Seelampur Main Road, two boys started quarrelling with me.
When they were about to leave, I checked my pocket. My mobile phone make 'Virgin'
colour greenish was missing. When I tried to stop the said boys then one of them
attacked on me with a sharp object. Both boys started fleeing from the place of

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 State vs Anand (On Bail) on 15 July, 2015

incident. I made noise. One police official who was present there chased one boy and
apprehended him. My mobile phone was recovered from the said boy. Several
persons gathered at the place of incident. The public persons given beatings to the
said boy. The name and address of the said boy revealed as Anand S/o Sh. Raj Kumar
R/o H. No. 191, Double Storey, Welcome, Delhi and the second boy escaped from the
place of incident. Legal action be taken against the boys who have robbed me. I have
heard the statement. The statement is correct.

Sd/-

Santosh Kumar Jha 23.03.11"

3. On 23.03.2011 at about 9.45 p.m., PW-5 Ct. Sandeep taken tehrir to PS Seelampur.

4. On 23.03.2011 at about 10.00 p.m., PW-2 SI Sajjan Singh got recorded case FIR No. 87/2011
under section 379/327/34 IPC and a copy thereof is Ex.PW2/B.

5. On registration of FIR, investigation of the case was entrusted to PW-7 SI Vinay Kumar.

6. During investigation, PW-7 SI Vinay Kumar inspected the place of incident and prepared a site
plan Ex.PW1/B thereof. He interrogated the accused Anand. He recorded his disclosure statement
Ex.PW7/B. He arrested the accused Anand vide arrest memo Ex.PW1/C and personal search memo
Ex.PW1/D. He seized the robbed mobile phone Ex.P1 vide seizure memo Ex.PW3/A. He sent PW-1
Santosh Kumar Jha to GTB Hospital with PW-5 Ct. Sandeep.

7. On 23.03.2011 at 10.45 p.m., PW-4 Dr. Nitin Chawla, Examining Medical Officer, GTB Hospital
examined PW-1 Santosh Kumar Jha and observed following injuries:

(i) Cut mark on left side of face laterally of around 2 cm;

(ii) horizontal cut mark on left ear over pinna of 1.5 cm.

8. PW-4 Dr. Nitin Chawla opined that the weapon of offence used for causing the said injuries was
sharp. He declared PW-1 Santosh Kumar Jha fit for making statement. He prepared MLC
Ex.PW1/X.

9. During investigation, PW-7 SI Vinay Kumar obtained opinion about the nature of the injury.

10. On completion of investigation, the accused Anand was charge-sheeted under section
379/327/411/394/34 IPC.

11. On 25.06.2012, Sh. Dharmender Rana, Ld. Metropolitan Magistrate, KKD Courts, Delhi taken
cognizance of the offences and summoned the accused Anand.

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 State vs Anand (On Bail) on 15 July, 2015

12. On 14.01.2013, the Court of Ld. Metropolitan Magistrate charged the accused Anand under
section 394/411 IPC and commenced the trial.

13. On 21.10.2013, the Court of Ld. Metropolitan Magistrate examined Dr. Parmeshwar Ram. He
examined the injured Santosh Kumar Jha and MLC. He stated that the scar on the face of the
injured Santosh Kumar Jha was permanent and given opinion that the nature of the injury
sustained by the injured Santosh Kumar Jha was grievous.

14. On 21.10.2013, the Court of Ld. Metropolitan Magistrate was of the opinion that offence under
section 397 IPC was made out and therefore, it committed the case to the Court of Session for trial.

15. In due course, this case was assigned to this Court.

16. On hearing and appraisal of the material on record, the accused Anand was charged under
section 397 and 411 IPC to which he pleaded not guilty and claimed trial.

17. The prosecution examined 8 witnesses, as under:-

The witnesses Description of the witnesses PW-1 Santosh Kumar Jha Injured/complainant PW-2 SI
Sajjan Singh Duty Officer, PS Seelampur PW-3 HC Devender Ist Investigating Officer PW-4 Dr.
Nitin Chawla Examining Medical Officer, GTB Hospital PW-5 Ct. Sandeep Accompanied IO SI Vinay
Kumar PW-6 HC Narayan Singh In-charge, Malkhana, PS Seelampur PW-7 SI Vinai Kumar IInd
Investigating Officer PW-8 Dr. Parmeshwar Ram CCMO, GTB Hospital

18. Incriminating circumstances appearing in the evidence were put to the accused Anand. He
denied that he had inflicted injury in the form of a permanent scar on left side of the face of the
injured Santosh Kumar Jha with a sharp edged object i.e. blade. He denied that he was apprehended
at the place of incident and mobile phone Ex.P1 was recovered from him. He stated that he was
picked up by the police from a park near his house on 23.03.2011 at about 8.00 p.m.-8.15 p.m. He
was shown to Santosh Kumar Jha in the police station. HC Devender is an interested witness and he
has identified him at the instance of SI Vinay Kumar. He stated that the mobile phone was planted
upon him. His defence is as under:-

"Question 31: Why the witnesses have deposed against you?

Ans. I was lifted from a park near my house and taken to the police station. I was
shown to the complainant in the police station. police officials have deposed against
me as they intended to falsely implicate me in this case. Complainant has identified
me at the instance of IO SI Vinay Kumar. I am innocent and falsely implicated in this
case. I have not committed any robbery. Nothing was recovered from me.

Question 32: Do you want to say anything else?

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 State vs Anand (On Bail) on 15 July, 2015

Ans. I am innocent. I have been falsely implicated by the police and the alleged phone
was not recovered from me. I was lifted from a park near his house. Complainant
identified me at the instance of police. I do not know any person with the name of
Bhola. I did not make any disclosure statement to the police."

19. The defence has not examined any witness in defence evidence.

20. I have heard Sh. I.H. Siddiqui, Ld. Addl. PP for the State and Sh. Abdul Sattar Ghazi, Amicus
Curiae for the accused Anand and examined the evidence on record.

21. Sh. I.H. Siddiqui, Ld. Addl. PP for the State submitted that PW-1 Santosh Kumar Jha is the
complainant and injured. He submitted that PW-1 Santosh Kumar Jha in his testimony has
categorically deposed that the accused Anand and his associate scuffled with him and taken out the
mobile phone Ex.P1 from left pocket of his trousers and when he protested the stealing, then he was
attacked with a sharp edged object on his left cheek under the left ear to his left eye. He submitted
that the accused Anand was apprehended at the place of incident by PW-3 HC Devender while he
was fleeing after committing the offence. He submitted that the mobile phone Ex.P1 was recovered
from the accused Anand at the place of incident. He submitted that there is no infirmity in the
deposition of PW-1 Santosh Kumar Jha. He submitted that the complainant Santosh Kumar Jha had
no reason to falsely implicate the accused Anand. He submitted that the defence has not suggested
any reason to PW-1 Santosh Kumar Jha to implicate Anand in this case. He submitted that the
deposition of PW-1 Santosh Kumar Jha find corroboration from medical evidence. He submitted
that MLC Ex.PW1/X shows that PW-1 Santosh Kumar Jha was examined at 10.45 p.m. on
23.03.2011 soon after the incident and he had a cut mark on left side of his face and another cut
mark on his left ear over pinna.

22. Sh. I.H. Siddiqui, Ld. Addl. PP for the State further submitted that FIR No. 87/11 under section
379/327/34 IPC was registered at PS Seelampur at 10.00 p.m. on 23.03.2011 soon after the incident.
He submitted that there was no scope for any embellishment or false implication as the complaint
Ex.PW1/A and FIR Ex.PW2/B were promptly recorded soon after the incident. He submitted that
the scar on the left side of the face of the injured Santosh Kumar Jha is permanent in nature and as
such, it is a grievous injury as provided under section 320 IPC. He submitted that the accused
Anand has failed to account for possession of the stolen property and therefore, he is liable to be
held guilty under section 397 and 411 IPC.

23. Sh. Abdul Sattar Ghazi, Amicus Curiae for the accused Anand submitted that the prosecution
has failed to prove its case. He submitted that PW-1 Santosh Kumar Jha in his statement Ex.PW1/A
stated that he was attacked with a sharp edged object but in his cross-examination, he stated that he
was attacked with a blade. He submitted that the injured Santosh Kumar Jha in his statement
Ex.PW1/A and the statement under section 161 Cr.P.C. has not stated that the accused Anand
attacked him with a sharp edged object or a blade. He submitted that the injured Santosh Kumar
Jha stated that a blade was recovered from the accused Anand but no such blade has been produced
before the Court. He submitted that the accused Anand was falsely implicated in this case by the
police after picking him from a park near his house.

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 State vs Anand (On Bail) on 15 July, 2015

24. Sh. Abdul Sattar Ghazi, Amicus Curiae for the accused Anand further submitted that the location
of the accused Anand has not been shown in the site plan Ex.PW1/B. He submitted that the mobile
phone was not recovered from the possession of the accused Anand but it was given by PW-3 HC
Devender to PW-7 SI Vinay Kumar. He submitted that the complainant Santosh Kumar Jha has not
produced any proof of ownership in respect of the mobile phone Ex.P1 and therefore, Section 411
IPC is not made out. He submitted that IMEI number of the mobile phone Ex.P1 as mentioned in
seizure memo Ex.PW3/A is incorrect. He submitted that the mobile phone Ex.P1 was planted in
order to frame the accused Anand in this case. He submitted that no public witness was associated
at the time of the search and seizure proceedings. He submitted that there is no site plan of the place
of recovery of mobile phone Ex.P1. He submitted that the prosecution has failed to prove that the
mobile phone Ex.P1 was a stolen property and the accused Anand was in conscious possession
thereof knowingly that it was a stolen property. He submitted that the prosecution has failed to
bring home the charge against the accused Anand.

25. I have carefully considered arguments of the parties to the lis and examined the evidence on
record.

26. PW-1 Santosh Kumar Jha is the complainant in this case. He is also an injured. In his testimony,
he has given a cogent and categorical account of the incident.

27. PW-1 Santosh Kumar Jha, in his testimony, proved that on 23.03.2011 at 8.00 p.m. near Petrol
Pump, Seelampur, Delhi, the accused Anand and his associate wrongfully restrained him and
robbed his mobile phone and the accused Anand caused grievous injury on his face with a sharp
edged object while carrying away the stolen property, as under:-

"I am doing repairing work of embroidery machine. On 23.03.2011 at about 8.00

p.m., I was going to my home from my office situated in Gandhi Nagar, Delhi. When I
reached near Petrol Pump, Seelampur, Delhi two boys arrived there and scuffled
(hatha-pai) with me. One boy took out my mobile phone make Virgin colour brown
from my left pocket of my trouser. I protested the stealing of my mobile. Then, they
attacked me with a sharp edged object weapon on left cheek under the left ear to just
below the left eye (wrongly typed as 'right'). I had suffered 22 stitches. I have the scar
mark on left (wrongly typed as 'right') side of my cheek from left ear to left (wrongly
typed as 'right') eye. The boy who had taken my mobile and caused injury to me is
present in the Court. Witness has pointed out towards the accused Anand who is
present in the box as the person who had taken out his mobile and inflicted injury on
his left (wrongly typed as 'right') cheek with a sharp edged object....."

28. The accused Anand was apprehended at the place of incident by PW-3 HC Devender. The mobile
phone Ex.P1 was recovered from the accused Anand at the place of incident. PW-1 Santosh Kumar
Jha deposed as under:-

".....I raised hue & cry after accused caused injury to me and on hearing my cry, police
officials present near the spot apprehended the accused Anand and recovered my

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 State vs Anand (On Bail) on 15 July, 2015

stolen mobile from his possession and his other associate ran away from the spot....."

29. The defence could not elicit anything from his cross- examination. He is a trustworthy and
reliable witness.

30. PW-3 HC Devender corroborated PW-1 Santosh Kumar Jha on material aspect. He apprehended
the accused Anand and recovered the mobile phone Ex.P1 from him. There is nothing in his
testimony which can discredit him. He has no enmity against the accused Anand. He was patrolling
in the area of his beat and during patrolling, he chased and apprehended the accused Anand after
hearing noise of PW-1 Santosh Kumar Jha. He deposed as under:-

"On 23.03.2011, I was posted at PS Seelampur as HC. On that day, I was on patrolling
in the area of my beat. When I reached near Petrol Pump, GT Road, I saw that
accused present in the Court today was crossing the road fastly and one another
person was chasing him by raising alarm 'chor chor'. I apprehended the accused. The
person who was chasing him also reached there and informed me that the accused
had stolen his mobile. The name of the accused came to know as Anand. Public had
gathered at the spot and beaten the accused. Stolen mobile phone of the complainant
Santosh Kumar was recovered from the accused which was of Virgin make....."

31. PW-7 SI Vinay Kumar with PW-5 Ct. Sandeep Kumar reached at Seelampur T-point as he was
returning to the police station after attending a PCR call. He has corroborated the presence of PW-1
Santosh Kumar Jha and the accused Anand at the place of incident. He has also corroborated the
presence of PW-3 HC Devender at the place of incident. PW-3 HC Devender handed over the
accused Anand and the stolen mobile phone Ex.P1 to PW-7 SI Vinay Kumar. He recorded statement
of PW-1 Santosh Kumar Jha and prepared tehrir at the place of incident and sent it to police station.

32. The relevant portion of testimony of PW-7 SI Vinay Kumar is as under:-

"On 23.03.2011, I was posted in PS Seelampur as SI. On that day, myself alongwith
Ct. Sandeep was coming after attending PCR call vide DD No. 28A. At about 8.00
p.m., when I reached Seelampur T-point, HC Devender produced one person and a
mobile phone make Virgin. Thereafter, I recorded statement of complainant Sh.
Santosh Kumar Jha which is already exhibited as Ex.PW1/A. Thereafter, I made an
endorsement Ex.PW7/A and it bears my signature at point A. The copy of tehrir was
given to Ct. Sandeep for registration of the case. After that, the mobile phone given by
HC Devender was seized by me vide seizure memo already exhibited as Ex.PW3/A
which bears my signature at point A and I had taken the signature of the accused at
point B. On the instance of complainant, I had prepared site plan which is already
exhibited as Ex.PW1/B and it bears my signature at point B. After investigation, I
arrested the accused whose name is Anand. Statements of the witnesses were
recorded and the accused was arrested vide arrest memo already exhibited as
Ex.PW1/C and information about arrest was given to his father over his mobile phone
No. 9210821737 vide arrest memo already exhibited as Ex.PW1/C and it bears my

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 State vs Anand (On Bail) on 15 July, 2015

signature at point C and his personal search was carried out vide personal search
memo which is already exhibited as Ex.PW1/D and it bears my signature at point C. I
interrogated the accused and recorded his disclosure statement Ex.PW7/B and it
bears my signature at point C. Ct. Sandeep came at the spot and handed over copy of
the FIR and tehrir to me....."

33. PW-5 Ct. Sandeep was accompanying PW-7 SI Vinay Kumar. He also corroborated PW-1
Santosh Kumar Jha and PW-3 HC Devender as regards the presence of PW-1 Santosh Kumar Jha,
PW-3 HC Devender and the accused Anand at the place of incident.

34. The relevant portion of testimony of PW-5 Ct. Sandeep is as under:-

"On 23.03.2011, I was on Emergency Duty at PS Seelampur, Delhi. On that day, at

about 8.00 p.m., I alongwith SI Vinay Kumar had gone to attend a call at Seelampur
and while we were returning from there, HC Devender alongwith complainant
Santosh Kumar Jha met us near Red Light Seelmapur near Petrol Pump. They had
produced accused Anand before us alongwith a mobile phone recovered from
accused. Accused Anand present in the Court today. IO recorded statement of
complainant Santosh Kumar Jha and prepared rukka and sent me to police station
for registration of FIR alongwith rukka....."

35. PW-1 Santosh Kumar Jha was sent to GTB Hospital with PW-5 Ct. Sandeep.

36. In the MLC Ex.PW1/X, it is recorded that PW-1 Santosh Kumar Jha was brought to GTB
Hospital by PW-5 Ct. Sandeep at about 10.45 p.m. on 23.03.2011.

37. Testimony of PW-1 Santosh Kumar Jha is corroborated by the medical evidence.

38. PW-4 Dr. Nitin Chawla, Junior Resident, Accident & Emergency, GTB Hospital, Delhi examined
PW-1 Santosh Kumar Jha on 23.03.2011 at 10.45 p.m. He observed following injuries on the face of
PW-1 Santosh Kumar Jha with a sharp edged object:-

(i) Cut mark on left side of face laterally around 2 cm;

(ii) horizontal cut mark on left ear over pinna around 1.5 cm.

39. PW-4 Dr. Nitin Chawla has stated that such type of injury was not possible due to a fall on a
barbed wire.

40. It has come on the record that the statement of PW-1 Santosh Kumar Jha Ex.PW1/A was
recorded at about 8.10 p.m. PW-5 Ct. Sandeep had taken rukka to the police station at about 9.45
p.m. and PW-2 SI Sajjan Singh, Duty Officer, PS Seelampur recorded FIR Ex.PW2/B at about 10.00
p.m.

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 State vs Anand (On Bail) on 15 July, 2015

41. It is, therefore, evident that the statement of PW-1 Santosh Kumar Jha was recorded soon after
the incident and FIR was lodged promptly. There was no scope for any embellishment,
improvement or false implication of the accused Anand in this case.

42. None of the contention raised by the defence could cause dent to the case of the prosecution.

43. As regards contention that the injured Santosh Kumar Jha in his statement Ex.PW1/A stated
that the injury was caused by a sharp edged object but in his cross-examination, he stated that he
was attacked with a blade is concerned, it can be stated that such variation in the statement is
natural and insignificant. In any case, the injury sustained by PW-1 Santosh Kumar Jha was caused
by a sharp edged object. He might have omitted to mention the exact object and stated it as a sharp
edged object in his statement.

44. As regards contention that PW-1 Santosh Kumar Jha did not produce the proof of ownership of
the mobile phone is concerned, it can be stated that for an offence of robbery, the ownership of the
stolen property is not required.

45. As regards contention that the IMEI number of the mobile phone did not match with the IMEI
number of the mobile phone mentioned in the seizure memo is concerned, it can be stated that the
seizure memo was prepared in the night at the place of incident and omission to mention the figure
'1' in the seizure memo is not fatal to the case of the prosecution.

46. On examination of the prosecution evidence, the following facts are proved:-

(a) On 23.03.2011 at 8.00 p.m. near Petrol Pump, Seelampur, G.T. Road, Delhi, the
accused Anand with his associate stolen one mobile phone make Virgin Ex.P1 from
the left pocket of trousers of PW-1 Santosh Kumar Jha; and

(b) The accused Anand attacked on the left side of the face of PW-1 Santosh Kumar
Jha with a sharp edged object when he protested the stealing of mobile phone Ex.P1;
and

(c) The accused Anand was apprehended at the place of incident by PW-3 HC
Devender; and

(d) The stolen mobile phone Ex.P1 was recovered from the accused Anand at the
place of incident.

47. It is, therefore, proved that the accused Anand with his associate committed offence of robbery
punishable under section 392 IPC.

48. PW-1 Santosh Kumar Jha sustained a lateral cut mark on left side of his face about 2 cm and
horizontal cut mark on left ear over pinna around 1.5 cm. PW-1 Santosh Kumar Jha appeared before
the Court and shown the scar mark on the left side of his cheek from left ear to left eye.

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 State vs Anand (On Bail) on 15 July, 2015

49. PW-8 Dr. P. Ram, CCMO, GTB Hospital, Delhi proved that the injury sustained by PW-1
Santosh Kumar Jha over his face is permanent in nature. He proved that the injury on the face of
injured Santosh Kumar Jha is grievous in nature. The Court also recorded its observation that there
is an injury on the left side of the face of injured Santosh Kumar Jha i.e. a cut mark emanating from
just below the left ear to left maxillary area.

50. PW-8 Dr. Parmeshwar Ram, CCMO, GTB Hospital, Delhi examined the injured Santosh Kumar
before this Court and his MLC Ex.PW1/X. He deposed as under:-

"I have examined MLC Ex.PW1/X. I have also examined injured Santosh Kumar Jha
who is present in the Court today. There is a scar on the face of the injured Santosh
Kumar Jha which was mentioned as cut mark on posteriorly left pinna measuring 3
cm (the measurement is 3 cm as the cut mark is continuous from posterior left ear to
anteriorly left side of the face).

The scar present over the face of injured is permanent in nature. It can only be cured
with the help of plastic surgery. The injury on the face of injured Santosh Kumar Jha
is grievous in nature. It was caused by a sharp edged weapon/object."

51. The injury sustained by PW-1 Santosh Kumar Jha is covered under sixth clause of Section 320
IPC as it amounts to permanent disfiguration of the face and therefore, the injury caused by the
accused Anand to the face of PW-1 Santosh Kumar Jha is grievous hurt.

52. Section 397 IPC is applicable when grievous hurt is caused at the time of commission of offence
of robbery.

53. Accordingly, the accused Anand is held guilty for committing offence under section 397 of the
Indian Penal Code, 1860.

54. Copy of this judgment be given to the accused Anand.

Announced in the open court SANJAY SHARMA on this 15th day of July, 2015. Special Judge NDPS
(North-East) ASJ:KKD Courts, Delhi.

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