Delhi District Court
State vs . : Bhupender on 18 February, 2008
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IN THE COURT OF SH. PRASHANT KUMAR: MM
ROHINI:COURTS: DELHI.
State Vs. : Bhupender
FIR NO : 268/02
U/s : 392/34 IPC
PS : Kanjhawala
JUDGMENT.
1. Sl. No. of the case 1/06
2. Offence complained of
or proved U/s 392/34 IPC
3. Date of Offence 05.11.02
4. Name of the complainant Rohtash
5. Name of the accused Bhupender @ Bhuppi
s/o Ram Kumar Vill Khedi
Jassor PS Sadar Bahadur
Garh Distt Jhajhar, Haryana
6. Plea of the accused Pleaded not guilty.
7. Final order Convicted
8. Date of Order 04.02.08
Brief reasons for decision:
1. The story of the prosecution in brief is as under: that 05.11.02 both the accused persons hired one maruti van bearing No DL 2CJ 6865 belonging to complainant Rohtash and took him towards Punjab Khor where they both took away the maruti van of complainant by threatening him. Thus FIR u/s 392/34 IPC was registered against the accused persons.
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2. IO conducted detailed investigation and filed his final report under section 173 Cr.P.C against the accused persons. After conducting the initial proceedings, documents were supplied to the accused persons. Thereafter, arguments on charge heard. It was found that prima facie material was available against the accused for offence u/s 392/34 IPC. Hence, charge under section 392/34 IPC was framed against both the accused persons to which they pleaded not guilty and claimed trial.
3. It is important to mention here that prosecution has examined 15 witnesses in support of its case and there is no evidence from the side of the accused in defence.
4. It is further important to mention here that one of the co- accused Mahabir @ Anil s/o Ram Kumar during the pendency of the trial admitted his liability and filed one application for accepting his guilty. Thus on 31.08.05 accused Mahabir was convicted.
4. PW1 ASI Murti has stated that on 05.11.02 she was posted as duty officer at PS Kanjhawala. She received one rukka sent by SI Jai Prakash through ct. Jitender and on that basis FIR No. 268/02 was registered which is Ex. PW1/A.
5. PW2 Rohtash, the complainant has stated to the effect that on the next day of Diwali last year (this witness was examined on 05.05.03) he was present at Karala Bus stand alongwith his maruti van bearing No. DL 2C-J-6865 as he used to ply this van as a 3 taxi on hire basis. At about 12.30 pm two boys, both the accused persons who were stated to be present in the court on that day and they were duly identified by the witness PW2, came to him and hired his taxi for Rs. 200/- for going to Jyonti. They were taken towards that direction, one of the accused Mahabir requested him to take the taxi to Punjab Khor and also agreed for the enhanced fare. PW2 proceeded towards Punjab Khor. When they reached near Tatesar village and crossed the village, accused Mahabir requested him to stay as he had to got to urinate. When the vehicle was stopped accused Mahabir took out the revolver type object and pointed out towards PW2 and asked him to get down. The other boy, the second accused who was sitting on the rear seat came out of the taxi and opened his driver side door and pulled him out of the taxi. Both the accused persons ran away with the taxi towards village Punjab Khor side. Police was called at 100 number from his mobile phone. After some time police reached there and recorded his statement Ex. PW2/A. Site plan was prepared at the instance of PW2. Maruti Van was recovered after 5/6 days and identified by Rohtash, the complainant. During TIP the complainant also identified accused Bhupender. This witness was not cross examined on behalf of accused Bhupender. This witness was cross examined on behalf of accused Mahabir who has already been convicted in this case. It is important to mention here that during his cross 4 examination, however PW2 has corroborated what he has stated in his examination in chief.
6. PW3 Const. Jitender has stated that on 05.11.02 he was posted at PS Kanjhawala. On receipt of DD No. 26 B, he alongwith SI Jai Prakash went to village Tatesar near one school and met the complainant Rohtash. Concerned SHO also reached there. Statement of Rohtash was recorded in respect of robbery of maruti van belonging to him. Rukka was prepared and he was sent to PS for registration of FIR. PW3 went to police station and get the FIR registered and he reached at the spot with the copy of FIR which was handed over to IO along with rukka. Nothing contrary has emerged from the cross examination of this witness.
7. PW4 Const. Shahib Singh has stated to the effect that on 15.12.02 he was posted at PS Kanjhawala. On that day he accompanied SI Jai Prakash in the investigation and they reached CIA Staff at Sonepat. ASI Randhir Singh met them there and IO collected some documents from him and thereafter reached the court at Sonepat where HC Balbir Singh of PS Kharkhoda, Haryana received the police remand of accused Mhavir @ Anil in FIR No. 205/02 u/s 307 IPC when the co accused Mahabir @ Anil was produced in the court. Proceedings with regard to his arrest was conducted by moving an application. Disclosure statement of accused Mahabir was also recorded. The case property was 5 recovered and seized at his instance. This witness PW4 was cross examined with regard to accused Mahabir. Accused Mahabir has already been convicted. Thus the evidence of PW4 is not relevant in respect of accused Bhupender.
8. PW5 const. Budh Singh has stated that on 21.11.02 he was posted at PS Kanjhawala as a DD writer. On that day he recorded DD NO. 58 B, attested copy of which is Ex. PW5/A.
9. PW6 HC Saroj has stated that on 05.01.02 she was posted at PS Kanjhawala as DD writer. AT about 12.55 pm information was received with regard to robbery of one maruti van bearing No. DL DL 2CJ 6895 of white colour from Tatesar in respect of which the investigation was handed over to SI Jai Prakash. Entry was made in this respect vide DD NO. 26 B. the attested copy of said document is Ex. PW6/A.
10. PW7 const. Anuradha has stated that on 3.11.02 she was posted at PS Kanjhawala. On that day information was received from ASI Kaptan Singh from PS Sadar Bahadurgarh on telephone that accused Bhupender had made a disclosure statement with regard to commission of robbery in FIR No. 441/02. The accused Bhupender was on P/C remand for 18.11.02. This fact was recorded at DD No. 38 B, copy of same is Ex. PW7/A. On 14.12.02 another information was received from ASI Ranjeet Singh CIA Staff Sonepat that accused Mahabir was arrested in FIR No. 374/02 of PS Sonepat 6 who made some disclosure statement. Entry was made in this regard vide DD No. 19 B, copy of which is Ex. PW7/B.
11. PW8 HC Dharam Chand has stated that on 13.12.2000 he was posted at PS Sadar Bahadurgarh. On that day he joined investigation with ASI Kartar Singh. Accused Bhupender was taken out from police custody and was interrogated who made disclosure statement in respect of incident dated 05.11.02 and 12.11.02 in respect of robbery of one maruti van and motorcycle. The disclosure statement is Ex. PW8/A.
12. PW9 HC Rajender Singh has stated that on 05.11.02 he was posted at PCR commander 75 and was on duty from 8 am to 8 pm as Incharge. At about 12.56 pm one information was received that one Maruti Van bearing No. DL 2CJ-6865 of white colour had been robbed from village Tatesar and robbers went towards Punjab Khor village. PW9 reached to village Tatesar and found complainant Rohtash there who stated that two boys had robbed his Maruti Van on the point of revolver. The vehicle and robbers were searched for but no clue was found.
13. PW10 HC Rajbir Singh has stated to the effect that on 08.11.02, he was posted as MHC(m). On that day HC Satpal deposited with him one Maruti Car bearing No. DL 2CJ 6895 in respect of which entry at Sr. No. 25 in registered no. 19 was made. This Maruti Van was handed over to SI Jai Prakash of PS 7 Kanjhawala.
14. PW11 ASI Kartar Singh has stated to the effect that on 13.11.02 he was posted at PS Sadar Bahadurgarh. Accused Bhupender was apprehended by him from Bhupnia in FIR No. 441/02 PS Sadar Bahadurgarh. On 13.11.02 He was taken out for interrogation. During interrogation he disclosed that on 05.11.02 he along with co-accused Mahabir took one maruti car bearing No. DL 2CJ 6865 on hire for Rs. 200/- for going to village Jyonti. When they reached at Tatesar Village he snatched the car from the driver at the point of revolver. The Maruti car was stated to have been parked in the house of one Kartar Singh at village Dishorkheri. Thus information was given to duty officer in PS Kanjhawala on 13.11.02 by PW11 itself. On that day SI Jai Prakash from PS Kanhawala came to him, interrogated him and collected the copy of documents prepared by him in FIR No. 441/02 PS Sadar Bahadurgarh. The disclosure statement of accused Bhpender is Ex. PW8/A. This witness was not cross examined by the accused Bhupender.
15. PW12 ASI Ranjeet Singh has stated to the effect that on 13.12.02 he was posted in CIA Staff Sonepat. Accused Mahabir @ Anil was arrested by him. PW12 recorded his disclosure statement. This witness PW12 stated with regard to co accused Mahabir who has already been convicted in this case.
16. PW 13 Smt Sukhvinder Kaur Ld MM has stated to the 8 effect that she conducted the TIP of accused Bhupender on 27.11.02. Accused Bhupender was identified by witness Rohtash Singh. Documents vide which TIP was conducted is Ex. PW13/B and the certificate annexed with that proceedings is Ex. PW13/C.
17. PW14 ASI Satpal Singh has stated that on 08.11.02 he was posted at chowki Ashodha and received information on telephone from Village Dassor Khedi that one maruti van was parked in Seth Ka Ghar. PW14 went to the spot and found one maruti van No. DL 2CJ 6865. The said maruti van was seized through seizure memo u/s 102 Cr.P.C which is Ex. PW14/A. Information was received earlier from PS Kanjhawala regarding this van. This information was sent to PS Kanjhawla on telephone.
18. PW15 SI Jai Prakash has stated that on 05.11.02 he was posted at PS Kanjhawala and was on emergency duty and received one DD No. 26 B regarding snatching of one vehicle near village Tatesar and that vehicle had been taken towards village Punjab Khor. PW15 along with const Jitender reached the spot where they saw one PCR along with complainant Rohtash. Statement of Rohtash was recorded by PW15 which is Ex. PW1/B. One tehreer was prepared and and same was sent through const. Jitender for registration of the FIR under this case. Site plan Ex. PW15/A was prepared at the instance of complainant. Efforts to trace out the accused were made but in vain. FIR was registered. On 13.11.02 9 ASI Kartar Singh PS Sadar Bahadurgarh informed through DD No. 38 B regarding arrest of accused Bhupender that he has disclosed about his involvement in the present case. On 18.11.02 PW 15 appeared in the court at Bahadurgarh and met the accused Bhupender and ASI Kartar Singh and handed over the documents regarding the accused to him. Permission was obtained from the court and he was formally arrested in this case. Arrest memo of accused Bhupender is Ex. PW15/B and his made disclosure statement which is Ex. PW15/C. Accused Bhupender pointed out the place from where he had hired the vehicle and the place from where the vehicle was left abandoned after robbing the same. On 27.11.02, TIP of accused were conducted wherein the complainant Rohtash identified the accused Bhupender. PW15 along with const. Saheb Singh went to the CIA Staff Sonepat and obtained documents in connection with the present case from ASI Surjeet. Mahabir another co-accused was arrested formally in this case vide memo Ex. PW 15/G. It is further important to mention here that accused accused Mahabir has already been convicted in this case. As per the disclosure statement, the case property were recovered and the vehicle in question was transferred from PS Bahadurgarh to PS Kanjhawala. Accused has already been identified by complainant, the other case property i.e., stereo and other accessories were also duly identified by the witness.
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19. After examination of these prosecution witnesses, statement of both the accused was recorded wherein all the incriminating evidence was explained to them. Accused Mahabir at first instance stated that he do not want to lead evidence in defence and pleaded his innocence but subsequently, voluntarily, out of his own free will, admitted his liability. Thus accused Mahabir has already been convicted. Accused Bhupender pleaded his innocence and stated that he do not want to lead evidence in his defence.
20. I have heard the final arguments so advanced by the counsel for accused and Ld APP for the state. I have perused the material placed before me along with the testimony of PW's.
21. All the PW's including complainant Rohtash have supported the story of the prosecution and there is no evidence from the side of the accused in defence. The reasons for arriving at this conclusion are as under.
Section 392 IPC reads as under:
"Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." 11
'Robbery' has been defined in Section 390 IPC. Section 390 IPC reads as under:
"Robbery- In all robbery there is either
theft or extortion.
When theft is robbery - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away of attempting to carry away property obtained by theft, the offender, for that end, voluntarily caused or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death of of instant hurt, or of instant wrongful restraint. When extortion is robbery- Extortion is "robbery' if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, or instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation- The offender is said to be present if 12 he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
22. Thus robbery is a special and aggravated form by either theft or extortion. The chief distinguishing element in robbery is the presence of eminent fear of violence". In the presence case, in the light of the story so narrated by the prosecution, extortion is attracted here as accused Bhupender along with other co accused Mahabir (who has already been convicted) took forcibly the maruti van belonging to complainant at the instance of pointing a gun towards him.
23. 'Extortion' therefore is defined u/s 383 Cr.P.C which reads a under:
"Extortion- Whoever intentionally puts any person in fear of any injury to that person, or to any other, and thereby dishonestly induces the person so put in fear to deliver to any person any property or valuable security, or anything signed or sealed which may be converted into a valuable security, commits "extortion". "
Essential ingredients, therefore for extortion are two fold:
1. Intentionally putting a person in fear of injury to himself or another, 13 dishonestly inducing the person so put in fear to deliver two any person, any property or valuable security.
24. Section 392 IPC which is attracted in the present case as alleged prosecution, contemplates that the accused should have from the very start, the intention to deprive the complainant of the property and should, for that purpose either hurt him or place him under wrongful restraint.
Thus, another essential requirement apart from the two ingredients as stated above for attracting section 392 IPC is that; at the time of committing of the offence i.e. theft or extortion, the person should be put in fear of instant death, or instant hurt, or of instance wrongful restraint and that person so put in fear be induced to deliver up the thing extorted.
It is important to define extortion first.
Extortion is committed by wrongful obtaining of consent and inducing the person to deliver the property by putting any person in fear of injury.
25. In all robbery there is either theft or extortion. Extortion is robbery if the offender at the time of committing extortion is in the immediate presence of the person put in fear of instant death, or of instant hurt or of instant wrongful restraint. The inter-relation between extortion and robbery arises when there is cause decoerced of property to another, extortion and robbery are akin to 14 each other and the differences between them reduces to one of degree. For example where A threatens B through telephone saying " unless sent the money demanded you will be killed" , it is extortion, if B consents to sent the amount. But if A goes to the room of B with a weapon and tell him that he would be killed unless money is given and if B consents to give money pursuant thereof, the offence of extortion snowballs into robbery. When extortion is committed in the immediate presence of the victim, extortion is robbery because of the fear of instant death, or instant hurt, or instant wrongful restraint caused thereby.
26. For the definition of robbery, it is quite clear that there should be use of force or about to use force, for the purpose of committing theft or in carrying away or attempting to carry away property to obtained by theft. In case Indrason Kaur Vs. Sita Ram Pandey 1970 Cr LJ 647 it was held that "mere fact that the assault and theft took place in the same transaction is not enough. The assault must be to facilitate commission of theft."
27. It is further important to mention here that an accidental infliction of injury by thief will not convert an offence into robbery. In case Teekaibheer (1866) SWR (Crl.) 1995, it was observed that wherein committing theft there is undebutably an intention seconded by an attempt to cause hurt, the offence of robbery. Thus, in order to 15 make an offence of theft and robbery there must be either theft, an injury or threat of injury while committing theft.
28. The complainant Rohtash in his statement has stated in clear words that he was plying his Maruti van on hire basis as taxi. Both the accused persons Bhupender and Mahabir all of a sudden took out a revolver thus putting him in the fear of instant injury and directed him to get down.
By this evidence, Rohtash the complainant has shown that he was put in the fear of instant injury of death or at least hurt with the pistol which was pointed out towards him and he was alarmed and terrified.
Another accused Bhupender who was sitting behind came to him and throw him out of the Maruti Van and both accused Bhupender and Mahabir took his maruti van away towards Punjab Khor side.
29. Thus the complainant has stated in clear words that :
I. It were both the accused persons Mahabir (who has already been convicted) and Bupender who hired his taxi. II. During the passage accused Mahabir pointed out a gun towards him and asked him to get down by which he was terrified. III. Another accused Bhupender then came to complainant Rohtash and asked him to get down and threw him from the driving seat and took his maruti van forcibly from his possession while leaving the 16 complainant at that place.
30. All the other PW's have corroborated their statements and have supported the story of the prosecution by showing the investigation so conducted by the IO that the accused persons were searched on that day itself when the incident took place and subsequently both the accused persons were formally arrested from the court of PS Sadar Bahadurgarh and accused Bhupender has been duly identified by complainant Rohtash during TIP proceedings.
31. Accused on the other hand, has not shown anything to the contrary rebutting the testimonies of PW's, particularly that of complainant Rohtash showing that he was not present at the spot or he was not the person who committed this offence or anything to the contrary against the version of Rohtash against him. In these circumstances, I am of the opinion that the prosecution has been able to discharge the burden of proving its case against the accused Bhupender by showing that accused Bhupender in assistance with another co-accused Mahabir (who has already been convicted) put complainant Bhupender in the fear of instant death or hurt by pointing out a gun towards him and forcibly took his maruti van away. The maruti van was subsequently recovered and has been handed over to complainant. The complainant has also identified the accused Bhupender as stated above. There is nothing shown to the contrary to the version of PW's by the accused Bhupender. Thus in 17 these circumstances, I am of the considered opinion that prosecution has been able to establish its case against the accused Bhupender beyond reasonable doubt. All the essential ingredients of section 392 IPC are fully established against the accused Bhupender, thus accused Bhupender @ Bhuppi s/o Ram Kumar is convicted u/s 392 IPC. Arguments on sentence shall be heard separately.
Announced in open Court (PRASHANT KUMAR)
Dated 04.02.08 Metropolitan Magistrate
Delhi
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FIR NO. 268/02
PS A N
u/s 392/34 IPC
04.02.08
Present : APP for the state.
Accused Bhupender present on bail.
Accused Mahabir has already been convicted.
Final arguments heard at length. Final judgment pronounced vide separate order sheet. Accused Bhupender is convicted for offence punishable u/s 392 IPC. Put up for hearing arguments on sentence on 18.02.08.
(PRASHANT KUMAR) Metropolitan Magistrate Delhi/04.02.08 19 IN THE COURT OF SH. PRASHANT KUMAR: MM ROHINI:
COURTS: DELHI.
State Vs. : Bhupender
FIR NO : 268/02
U/s : 392/34 IPC
PS : Kanjhawala
ORDER ON SENTENCE
18.02.08
Present : Ld. APP for the State.
Accused Bhupender with counsel.
Arguments on sentence heard at length. Record perused thoroughly. In the light of the alleged offence against the accused and the reasons so given in the conviction, provision of Probation of offenders Act are not be considered against the accused. The accused has previous record and one other case is also pending against him from PS Bahadurgarh. The offence, so committed by the accused is heinous in nature whereby he lifted one Maruti Van belonging to the complainant, with the assistance of co accused Mahabir by pointing out a pistol at him and also throw him out of the Van.
In the light of these facts and circumstances, no lenient view is taken against the accused and accused Bhupender s/o Ram Kumar is sentenced to undergo S.I for 3 years. Benefit of section 428 Cr.PC be given to accused. Surety for accused stands discharged. Documents, if any, be returned. Endorsement, if any, be cancelled. File be consigned to record room.
Announced in open court (PRASHANT KUMAR)
Dated 18.02.08 Metropolitan Magistrate
Delhi
20
State Vs. : Bhupender
FIR NO : 268/02
U/s : 392/34 IPC
PS : Kanjhawala
18.02.08
Present : APP for the state.
Accused present in person.
Arguments on sentence heard vide separate order sheet. Accused is sentenced to undergo SI for 3 years. Benefit of section 428 be given to the accused.
File be consigned to record room.
(PRASHANT KUMAR) Metropolitan Magistrate Delhi 21