Delhi District Court
State vs . 1. Lala Ram @ Vishal @ Kale on 9 December, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II(NW): ROHINI COURTS: DELHI
Sessions Case No. 1009/09
Unique Case ID No. 02404R0059992009
State Vs. 1. Lala Ram @ Vishal @ Kale
S/o Sh. Dal Chand
R/o K-46, JJ Colony Wazirpur,
Delhi.
(Convicted)
2. Satish
S/o Sh. Bhagwan Dass
R/o House No. 238,
Jaipuria Meel, Near Amba
Cinema, Old Subzi Mandi,
Delhi.
(Convicted)
3. Prakash @ Om Prakash
S/o Sh. Jagdish Chand
R/o H. No. N-18A-206,
K Block, JJ Colony Wazirpur,
Delhi.
(Convicted)
4. Sunil @ Suraj
S/o Sh. Hari Chand
R/o H. No. WN-246,
Khyala, Delhi.
(Convicted)
FIR No. : 433/2008
Police Station: Model Town
Under Section: 392/397/411 Indian Penal Code &
27/54/59 of Arms Act
St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 1
Date of committal to sessions court: 18.3.2009
Date on which orders were reserved: 1.11.2010
Date of decision: 1.12.2010
JUDGMENT:
As per the allegations on 23.12.2008 all the four accused persons namely Lal Ram @ Vishal @ Kaley, Satish, Prakash @ Om Prakash and Sunil @ Suraj, in furtherance of their common intention committed robbery of Rs.33,500/- from the complainant Ashwani on the point of knives and voluntarily caused fear of instant death and instant hurt to him. Further, it is alleged that all the accused were apprehended at the spot itself and the accused Prakash @ Om Prakash was found in possession of Rs.33,500/- belonging to the complainant, which the accused dishonestly retained knowing or having reasons to believe the same to be stolen/ snatched property. It is also alleged that all the four accused persons were found in possession of buttondar knives in contravention of the Notification issued by NCT of Delhi.
BRIEF FACTS:
Case of the prosecution:
The case of the prosecution is that on 23.12.2008, DD No.47B was received in Police Station Model Town pursuant to which SI Richpal Singh along with Ct. Mukund Kumar reached GTK Road, near Telephone Exchange. The PCR Staff met them and a blue line bus of route no. 19 having registration no. DL-1P-7720 was also there. The Driver and Conductor of the said bus and other public persons St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 2 including one Ashwani Kumar were also present there. The PCR official HC Majid Khan handed over all the four accused persons along with Rs.33,500/- to SI Richpal Singh. The complainant Ashwani Kumar Rattan gave his complaint to the police wherein he has stated that he had started from his office at Malka Ganj Carrying Rs.33,500/- of which eleven notes were of Rs.1000/- denomination and forty five notes were of Rs.500/- denomination. He kept the money in the inner pocket of his pant and boarded the bus of route no. 19 from Ganta Ghar for GT Karnal Road. At about 1:45 pm when the bus reached near Gurdwara, GTK Road four persons surrounded him, two of them who were standing behind him took out the knives and put the same on his back. When he protested two boys who were standing in front of him, took out their knives and threatened him after which one of them cut the pocket of his pant from outside and robbed Rs.33,500/- from him. In the meantime the bus reached near telephone exchange where a police gypsy was standing and on seeing the said gypsy he raised an alarm on which the driver stopped the bus near the police gypsy. The police officials with the help of driver, conductor and other public persons apprehended all the said four boys i.e. Lala Ram @ Viahsl @ Kaley; Satish; Om Prakash and Sunil @ Suraj (whose name he came to know later on) with the open knives in their hands and Rs.33,500/-. On the basis of the said complaint of the complainant Ashwani Kumar Rattan, the present FIR was registered and after completion of investigations the accused persons were charge sheeted for the offence under Section 392/397/411 Indian Penal Code & Section 27/54/59 of Arms Act.St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 3
CHARGE:
The Ld. Predecessor of this court has settled the charges under Section 392/397/34 Indian Penal Code and under Section 25/54/59 of Arms Act against all the accused persons namely Lala Ram @ Viahsl @ Kaley; Satish; Om Prakash and Sunil @ Suraj to which they pleaded not guilty and claimed trial. Further, charge under Section 411 Indian Penal Code has also been settled against the accused Prakash @ Om Prakash to which he had pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as many as nine witnesses:
Public witness/ complainant:
The complainant Ashwani Kumar Rattan has been examined as PW1 who has deposed that on 23.12.2008 he started from his office at Malka Ganj carrying Rs.33,500/- which money he kept in the inner pocket of his pant. According to him, the denomination was 11 currency notes of Rs.1000/- and 45 currency notes were of Rs.500/-
and he boarded bus of route no. 19 from Ghanta Ghar for GT Karnal Road. He has further deposed that at about 1:45 pm when he boarded the bus from Ghanta Ghar some persons also boarded the bus with him. He has testified that after some time four persons encircled him in the bus, two of them who were standing behind him took out the knives and pointed the same towards him and directed him to handover the St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 4 money to them. The witness has deposed that when he protested the other two also, who were standing in front of him, took out their knives and one of them cut the pocket of his pant from outside on which the currency notes fell down and another one of them picked up the wad of currency notes. According to PW1, the occurrence was noticed by the passengers of the bus and driver and conductor also came to know and after some time the bus driver noticed the PCR vehicle and stopped the bus near the PCR vehicle. PW1 has testified that he alighted from the bus and told the PCR officials that he had been robbed and the robbers were still inside the bus on which the police officials apprehended the accused persons and recovered the money and knives from each one of them. He has further testified that some time later the officials from the Police Station Model Town also reached at the spot and the accused persons were handed over to them along with the recoveries. The witness has deposed that he had pointed out the accused persons to the officials of the Police Station Model Town and the accused persons had revealed their names during interrogation by the police. According to him, the names of the accused persons were Satish, Prakash, Lal Chand and the name of the fourth boy he does not remember but the said accused was a resident of village Khyala and one of them was also called as Kaley. He has further deposed that the accused persons were having several aliases. PW1 has proved his statement given to the police which is Ex.PW1/A. The witness has also deposed that the knives recovered from each of the accused persons were placed on white papers and their sketch were prepared on which he signed as a witness which sketches are Ex.PW1/B to Ex.PW1/E. According to St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 5 him, the said knives were also taken into possession vide memos Ex.PW1/F to Ex.PW1/I. The witness has proved that his pant which had been torn by the accused persons during the occurrence was also seized by the police vide memo Ex.PW1/J and the currency notes which were recovered from the accused persons were seized vide memo Ex.PW1/H along with the knife recovered from accused Prakash.
During the examination of the witness, the accused persons were shown to him for their identification on which the witness deposed that the accused persons seems similar to the persons who had committed robbery with him on 23.12.2008 in the bus on route no.19. It may be noted that the said accused were apprehended at the spot and in judicial custody from the date of their arrest.
PW1 has also proved the rough site plan which is Ex.PW1/K prepared by the investigating officer at his instance and the currency notes were released to him on Superdari, the photocopies of the said currency notes are Ex.P-1. He has also correctly identified the case property in the court i.e. the pant worn by him at the time of incident having a cut mark on the front side and also a corresponding cut in the inner pocket which is Ex.P-2; button actuated knife recovered from the possession of accused Lala Ram which is Ex.P-3 and other button actuated knives recovered from the possession of other three accused persons which are Ex.P-4 to Ex.P-6.
In his further examination in chief the witness has deposed that the name of the 4th accused came to know after inquiry as Sunil @ St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 6 Suraj. According to him, police had arrested all the accused persons from the spot. He has proved the arrest memos of the accused Prakash, Sunil @ Suraj, Satish and Lala Ram which are Ex.PW1/L to Ex.PW1/O and their personal search memos which are Ex.PW1/P to Ex.PW1/S. In his cross-examination the witness has deposed that he had purchased a ticket of Rs.5/- in the bus but the said ticket was not collected by the police from him. He has also deposed that he had withdrawn a sum of Rs.33,500/- from the Bank of Baroda, Jawahar Nagar Branch at about 12:00/ 1:00 noon and had walked down to some distance at near Ghanta Ghar from where he boarded the bus during which it took about three to four minutes. He has also deposed that he had not stated to the police officials that he had withdrawn the said money from bank and had admitted that there was no special mark of identification on the said currency notes which were robbed from him. PW1 has testified that he remained at the place where the PCR officials met him for about thirty minutes and from there they went to Police Station where he stayed till about 9:00pm. According to him, he did not leave the Police Station during this period when his statement Ex.PW1/A was recorded by the police in the Police Station. He has also stated that in his presence statement of any other person was not recorded. He has testified that no one from the other passengers who were traveling in the bus came to the Police Station and the bus was also not brought to the Police Station and might have left the place after they went to the Police Station since till such time the bus was there. He does not remember as to how many papers he had signed in all but St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 7 states that the papers signed by him pertained to the proceedings carried in respect of the incident in question. PW1 also does not remember whether any one else signed the said documents which were signed by him or not. The witness has further deposed that the knives recovered were opened by means of button and they were sufficiently long but he does not remember the description of the said knives. According to PW1, in his presence the police officials did not ask any public independent person to come in the Police Station and the PCR officials had not gone to the Police Station. He has denied the suggestion that he was not traveling in the said but or that no such incident of robbery took place with him. He has further denied that he had concocted a false story in connivance with the police or that Rs.33,500/- which were got released by him on sapurdari does not belong to him.
PW2 Sushil Kumar is the driver of the bus in which the incident took place. He has deposed that on 23.12.2008 he was the Driver on blue line bus No. DL-1PA-7720 plying on Route No.19 and one Monu was the conductor on the bus. According to him, on that day when their bus reached near telephone Exchange at GTK Road, near Nanak Piao he heard noise in the bus "roko roko" on which he stopped the bus near police gypsy which was standing near the telephone exchange. He has deposed that one of the passenger was crying that his money has been looted after which police came there and apprehended the accused persons. He is unable to tell the name of the accused persons and has stated that he had not notice what they were carrying as he was made to sit down on one side.
St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 8The witness PW2 has not been able to identify the accused persons and turned hostile on the aspect of identity of the accused persons. He was cross-examined by the Ld. Addl. Public Prosecutor for the State wherein he has deposed that in his bus there were around 150 passengers and all the seats in the bus were full and about 20 persons were standing. He has testified that he heard the noise that some money has been snatched and that is why he stopped the bus near the police gypsy. According to PW2, he had not made any inquiry as to whose money has been snatched and he remained at the spot for around 30 minutes and police also remained there for half an hour. He has testified that there were three police officials in the gypsy besides the driver and that he sat down outside the bus when the police came there and police had not made any inquiry from him but only asked him about his name and address. He is not aware if the the names of the four accused persons who were arrested by the police from his bus were revealed as Lala Ram @ Vishal, Satish, Parkash and Sunil nor is he aware if knives were also recovered from the possession of accused persons and Rs.33,500/- were also recovered from one of the accused. He has denied that the present four accused persons were arrested by the police from his bus with knives and who had robbed Rs.33,500/- from one of the passenger in his bus after showing the knives and from the possession of one of the accused Rs. 33500/- were recovered. He has denied that he is deposing falsely and not identifying the accused persons present in the court today as accused persons have threatened him.
St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 9In his cross-examination by the Ld. Defence Counsel the witness has admitted that he had not seen the occurrence but has denied that no such incident had occurred in his bus.
PW3 Monu is the Conductor of the bus in which the incident took place. He has deposed that date and month he does not remember but it was around eight to ten months ago (from the date of his deposition) that he was the helper on blue line bus No. 7720 of Route No. 19 i.e. from New Delhi to Jahangirpuri and vice versa. He has deposed that at around 12.00/12.30pm when their bus reached at Pratap Bagh he heard noise in the bus "Pakro Pakro" when at that time he was near the driver. According to him, the driver stopped the bus near police gypsy which was standing near the telephone exchange and thereafter they left the spot with bus immediately and nothing more was happened in his presence.
The said witness was cross-examined by the Ld. Addl. PP for the State since he was resiling from his previous statement made to the police. He has deposed that all the seats in the bus were full and only three to four persons were standing and he was issuing/ distributing the tickets to the passengers. He has further deposed that before telephone exchange there is bus stop of Bank Colony but nobody boarded the bus from Bank Colony. The witness has further deposed that when he heard the noise he looked back and saw the crowd which was saying Pakro Pakro. PW3 has deposed that he had not gone towards the crowd and police had entered into the bus and the police had apprehended the persons to whom the public were saying Pakro Pakro. He is unable to tell as to how many persons were apprehended St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 10 by the police. He has testified that the crowd were saying that some persons were snatching money but he is not aware how much money was snatched. According to PW3, police had not made any inquiry from him and they remained at the spot for about 10-15 minutes. He has denied that name of the accused persons who were apprehended from the bus were revealed as Lala Ram @ Vishal, Satish, Parkash and Sunil. He is not aware that knives were also recovered from the possession of accused persons and Rs.33,500/- were also recovered from one of the accused. He has denied that he is not identifying the accused persons in the court since the accused persons have threatened him.
Police/ official witnesses:
PW4 HC Bhagat Singh is the Duty Officer who has deposed that on 23.12.2008 on receipt of rukka mark X brought by Ct. Mukund and sent by ASI Richhpal Singh, he recorded FIR No.433/08 under Section 392/397/411/34 IPC R/w Section 27 Arms Act, 1959. According to him, the said FIR was typed by the computer operator on his dictation, copy of which is Ex.PW4/A. He has testified that after registration of the FIR he had handed over the printout of the said FIR along with the original rukka to Ct. Mukund for delivering the same to ASI Richhapal Singh and in this regard he also recorded DD No.20A in the rojnamcha and made an endorsement on the rukka which is Ex.PW4/B. In his cross-examination the witness has deposed that Ct. Mukund came to him with the rukka at around 4.45pm and he stayed St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 11 for about 40 minutes with him. He has deposed that no separate departure entry was made thereafter for Ct. Mukund and no other information was received by him in connection of the present incident prior to recording of the FIR. According to the witness, the investigating officer ASI Richhapl Singh had not returned back to the Police Station till 5.00 pm till such time he was on duty.
PW5 SI Richhpal Singh has deposed that on 23.12.2008 he was posted as ASI at Police Station Model Town. According to him on that day upon receipt of DD No.47B he along with Ct. Mukund Kumar went to GTK Road, near telephone exchange where a PCR van was parked and HC Majid Khan, Incharge PCR van along with staff met him and one bus No. DL-1P-7720 plying on route No. 19 (blue line) was also found there and its driver, conductor besides one complainant Ashwani Kumar and other public persons and the four accused persons (correctly identified by the witnesses) were also produced before him. The witness has further deposed that HC Majid Khan also produced before him four button actuated knives which were stated to be recovered from the four accused. He has further deposed that HC Majid Khan also produced Rs.33,500/- which were stated to be recovered from accused Parkash. PW5 has testified that Ashwani Kumar who was present at the spot identified the said currency notes to be belonging to him which according to him were robbed by the accused persons. He has further deposed that Ashwani Kumar had told him that the accused persons had forcibly took out the said money from his pocket by pointing out knives. The witness has proved having recorded the statement of Ashwani Kumar which is Ex.PW1/A and St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 12 thereafter he made his endorsement which is Ex.PW5/A thereunder and sent the rukka to Police Station through Ct. Mukund for registration of the case. According to PW5, after registration of the case Ct Mukund handed over to him copy of FIR along with original rukka after which he prepared sketch of all the four recovered knives which are Ex.PW1/C to Ex.PW1/E. He has further deposed that the knife which was recovered from accused Lala Ram was measuring 38 cm and its blade was 17.5 cm long and its width was 3.7cm and there were circular designs on the handle of the knife in red and green colour. According to the witness, the knife recovered from accused Satish was measuring 37 cm and its blade was of length 17cm with width 3.7cm and there were circular designs on the handle of the knife in red and green colour.
He has testified that the knife recovered from accused Parkash was measuring 37 cm and its blade was of length 17cm with width 3.7cm and there were circular designs on the handle of the knife in red and green colour. The witness has further deposed that the knife recovered from accused Sunil was measuring 37 cm and its blade was of length 17cm with width 3.5cm and there were circular designs also on the handle of the knife in red and green colour. PW5 has proved that all the four knives were thereafter sealed in four separate pullandas sealed with the seal of RPS and were seized vide memos Ex.PW1/F to Ex.PW1/I and the currency notes of Rs.33,500/- were also sealed in a separate pullanda with the seal of RPS and same was seized vide memo Ex.PW1/H. He has also deposed that he recorded the statement of Driver, conductor and PCR officials and Ct. Mukund after which he arrested the accused Parkash, Sunil, Satish and Lala Ram vide arrest St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 13 memos which are Ex.PW1/L to Ex.PW1/O respectively and the personal search memo of accused Lala Ram, Sunil, Prakash and Satish were prepared which are Ex.PW1/P to Ex.PW1/S respectively. PW5 has testified that all the accused persons were brought to the Police Station and on next day they were sent to judicial custody. According to the witness, the pullanda of the knife recovered from accused Lala Ram was given Sl. No. 1, that of accused Satish was given Sl. No.2, that of accused Parkash was given Sl. No.3 and that of accused Sunil was given Sl. No.4. He has also testified that the pant of Ashwani Kumar from inside which the money was taken out by the accused persons was also taken into possession vide memo which is Ex.PW 1/J. The witness has correctly identified the accused persons in the court as well as the case property i.e. photocopies of the currency notes which are collectively Ex.P-1; pant of Ashwani Kumar which is Ex.P-2; button actuated knife recovered from accused Lala Ram which is Ex.P-3; button actuated knife recovered from the accused Prakash which is Ex.P-4; button actuated knife recovered from the accused Sunil which is Ex.P-5 and button actuated knife recovered from the accused Satish which is Ex.P-6.
In his cross-examination the witness has deposed that he reached the spot at around 1:56 pm or so, on his own private motorcycle and he stayed there for about 4 hours or so. He has admitted that he had collected the PCR form during the course of his investigation, copy of which is Ex.PW5/DA and that there are four names mentioned of the accused persons along with their parentage and St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 14 address at the bottom of the PCR form which speaks about one Sunil, Vishal, Rajbir and Prince. The witness has explained that it might be possible that some mistake might have committed by the PCR HQ Officials while noting down the names conveyed to them on wireless and in fact the present accused persons are known by various names and they have a number of "aliases". He is not aware as to how recovery of only two knives is mentioned and states that only four knives were recovered. The witness has deposed that he had mentioned in the conviction slip of the four accused persons prepared by him as well as the arrest documents of the accused persons their aliases (other names) but he has not collected any other evidence to the effect that these accused persons are also known by different names. PW5 has testified that he did not carry out any investigation as to in what circumstances the name parentage or address of the accused persons is differently mentioned in the PCR form as compared to the one now mentioned by him in the charge sheet prepared or various other documents prepared by him during the course of investigation. He has further admitted that in DD No.47B also there is mention of only two knives and the names of the accused persons are not mentioned. The witness has further deposed that he did not record anything in the statement of complainant as to from where he had brought the said money. He has testified that he asked the complainant about the bus ticket but he stated that the same has been misplaced by him during the scuffle. The witness has also deposed that he reached the Police Station after about 6.30pm and made arrival entry and no writing work was carried out after reaching the Police Station. According to PW5, the St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 15 seal after use was handed over to Ct. Ashwani Kumar and he recorded this fact in the statement of Ct. Ashwani Kumar which seal was returned to him by Ct. Ashwani Kumar after three to four days. He has denied the suggestion that pant Ex.P2 was later on cut by him in the Police Station by a blade or that the accused persons were lifted from their house and were falsely implicated in this case after a false story was concocted in connivance with complainant Ashwani Kumar. The witness has also denied that the knives have been planted upon the accused persons or that the actual culprits have been let off.
The said witness was re-examined by the Ld. Addl. PP for the State, with the permission of the court, in respect of the names, parentage and address of the accused persons mentioned in the charge sheet and other documents. He has admitted that he has mentioned the name, parentage and address of the accused persons as disclosed to him by them but address of only two accused persons could be verified i.e. that of accused Parkash @ Om Parkash and Lala Ram and the address of other two accused persons were found to be fake.
In his further cross-examination by the Ld. Defence Counsel the witness has denied that all accused persons have been falsely implicated or that he has not annexed Parcha 12 of the accused persons along with the charge sheet.
PW6 HC Majid Khan is the PCR official who has deposed that on 23.12.2008 he was posted as Incharge PCR on PCR Van Commander C57 and was on duty from 8:00 am to 8:00 pm along with HC Udmiram gunman. According to him, on that day at around 1.35 pm when they were present near telephone exchange Aryabhatt Poly St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 16 technique at GTK Road suddenly one blue line bus no. DL-IPA-7720, route no.19 came there and stopped as one person was crying from the bus that his pocket has been picked. He has deposed that after hearing the noise he along with HC Udmiram went inside the bus and the passengers told that accused were four in number and were standing inside the bus and as soon as the person pointed out towards the accused persons the accused tried to flee away. The witness has further deposed that as soon as the accused tried to flee away they apprehended four accused persons and all were carrying open knife and one of them also was having money in his hand. PW6 has testified that they apprehended the accused persons with the help of conductor, driver of the bus and with the help of other public persons after which the accused persons were brought down from the bus and the money was found to be Rs.33,500/- which were recovered from the possession of one of the accused. According to the witness, he informed the control room and thereafter ASI Richpal Singh along with two constables came there and he handed over all the four accused along with four knives and money to the investigating officer. The witness is unable to tell the name of the accused persons and has deposed that the investigating officer sealed all the four knives and money which were recovered from the accused persons and the investigating officer recorded statement of complainant. He has proved that the investigating officer prepared the rukka and got the FIR registered and has proved the memos of the knives which are Ex.PW1/F to Ex.PW1/I. He has further deposed that thereafter the investigating officer took all of them to the police station. The witness has correctly identified the four accused in the court as the St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 17 persons who were apprehended by them and also the accused Prakash @ Om Prakash as per person who was having money and knife but he does not remember the name of the other accused persons.
Leading questions were put to the witness with the permission of the court, in respect of the names of the accused and the seizure of the trouser of the victim during which the witness has admitted that name of the accused came to know after inquiry Lalaram @ Vishal @ Kaley, S/o Dal Chand, Satish, Parkash @ Om Parkash and Sunil @ Suraj. He has also admitted the sketches of the knives which are Ex.PW1/C to Ex.PW1/E and that the pant of the complainant Ashwani was also seized vide memo Ex.PW1/J. The witness has also identified the knives recovered from the accused persons which are Ex.P-3 to Ex.P-6 and photocopy of the currency notes which are Ex.P1 collectively.
In his cross-examination the witness has deposed that he remained with the investigating officer from 1:35 pm to 3:00 pm. He has deposed that he had identified the notes even without seeing them since he can identify them by their coloured photocopies which were of the currency notes which he got recovered from the accused. During the course of examination, it has been observed that the original currency notes have been released on Superdari to the complainant. He is unable to tell the number of pages of photocopies and has deposed that there is no distinct mark on the photocopies to show that they are of the notes which were recovered and has stated that he can identify by his naked eye because he had got recovered 11 notes of Rs.1000 each and 45 notes of Rs.500/- each. The witness has also deposed that St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 18 photocopies were got done in his presence and they were sealed in his presence at the spot. He does not remember which of the knife recovered and produced in the court were in the hand of which particular accused but states that all the accused were carrying one knife each and at the time of incident were having knives in their hand. PW6 has denied that at the time he gave the message to district control room he had stated that four picked pocketer were apprehended with two knives and has stated that he had stated that four knives were recovered. The witness has admitted that he had given the names of all the four accused. According to him, the names of the persons apprehended which he had given to the control room were Sunil, S/o Hari Chand, aged 35 years, R/o WN-Khayala, Delhi-110002; Vishal S/o Budh Ram, aged-32 years, R/o K Block, Wazirpur, Delhi; Rajbir S/o Hari Singh, aged-46 years, R/o H.No. 238, Ghanta Ghar and Prince S/o Sher Singh, aged-32 years, R/o H. No. 6571, Nabikarim which he had given on the basis of information given to him by accused themselves. According to PW6, he had also given the details of the currency notes and had given this information at 1.50 pm but states that there may be minor discrepancies in the time since the time which he had given on the basis of the watch installed at the PCR van. He has denied that there was a cutting in the denomination of currency notes written as 33,500/- and states that there is no cutting. According to the witness, the victim was given another pant to wear by one of his relative after the pant which he wearing was seized by them but he is not aware the name of the relative. The witness has further testified that all the knives were of one size and states that the entire knife was St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 19 measuring 37.5cm and has admitted that the knives have different designs. He has denied the suggestion that the entry no. at Serial No.150 reflects the recovery of only two knives which has been made as four by interpolation and the message flashed was only of two knives and therefore form-1 of the PCR reflects the recovery of only two knives. According to the witness, he had signed five to six persons but he does not remember whether any other witnesses had also signed those papers. He does not remember whether the investigating officer had recorded the statement of any witness as he was busy in his work.
PW7 W/Ct. Kusum is a formal witness being the DD Writer. She has deposed that on 23.12.2008 at about 2:00 pm she recorded DD No.47-B copy of which is Ex.PW7/A and thereafter information of the same was sent to ASI Richpal.
In her cross-examination the witness has deposed that there is no entry regarding this case prior to this DD entry and no subsequent entry was lodged in this connection by her. She has testified that there is no departure entry of ASI Richpal recorded by her nor did she record the arrival entry of ASI Richpal.
PW8 Ct. Anil Yadav, UDC, Home Department, Delhi Secretariat has placed on record the copy of the notification bearing no. F.13/203/78-Home(G) dated 17.2.1979 issued by the then Under Secretary, Home (General), which is Ex.PW8/A. PW9 HC Udmi Ram is the PCR official who has deposed that on 23.12.2008 he was posted at PCR, North west Zone and was on duty from 8 AM to 8PM at Commander 227 as gun man. According to him, at about 1:35 PM (noon) they were having their position at St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 20 telephone exchange GTK Road when a blue line bus bearing No. DL- 1PA-7720 route No.19 which was going from Shakti Nagar towards Azadpur suddenly stopped towards their vehicle and they heard loud noises from the said bus on which he along with the Incharge reached near the said bus and they found that four persons all of whom were having knifes in their hands were threatening passengers in the bus. According to the witness, one person whose name he later on came to know as Ashwani Kumar informed them that the said boys had taken his purse. He has proved that the Incharge of the PCR van with the help of public persons, driver and conductor of the bus overpowered those boys and brought them down from the bus and put them in the PCR van and the knives which the said boys were carrying in their hands were taken into possession and thereafter they were searched. PW9 has deposed that on the search of one of the boys whose name they later came to know as Prakash, Rs.33,500/- were recovered from his pocket on which the Incharge PCR immediately informed the control room. According to the witness, the name of the other boys were also revealed as Lala Ram, Satish and Sunil. During his examination the witness has not identified the accused persons by their names but he has correctly identified all the four accused and also the accused Parkash from whom the cash amount of Rs.33,500/- was recovered. He has testified that the complainant Ashwani Kumar who was present at the spot identified the cash recovered from the possession of Parkash as belonging to him which had been picked from his pocket by the accused persons. According to him, in the meantime the investigating officer from the Police Station also came to the spot St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 21 and the incharge handed over all the four boys along with the four knives and the cash amount recovered.
The witness has correctly identified the case property in the court i.e. photocopies of the currency notes which are collectively Ex.P-1; button actuated knife recovered from accused Lala Ram which is Ex.P-3; button actuated knife recovered from the accused Prakash which is Ex.P-4; button actuated knife recovered from the accused Sunil which is Ex.P-5 and button actuated knife recovered from the accused Satish which is Ex.P-6.
In his cross-examination the witness has deposed that the complainant told the Incharge that the currency notes were in his right side pocket. According to him, the investigating officer did not obtain his signatures on the seizure memo of currency notes. He is unable to tell the name of the Constable to whom the seal was handed over by the investigating officer after using the same and states that he was standing away from the place where the proceedings were being conducted by the investigating officer from the local police. He has also testified that the control room was informed after about 4-5 minutes of the accused being apprehended and the local police reached at the spot after about 10-12 minutes. He has denied the suggestion that he was not present at the spot nor there was any recovery of arms or cash from the accused as alleged by him and it is for this reason that the various documents do not bear his signature. He has also denied that the accused persons were not apprehended in his presence or that no recovery was effected from them.
St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 22Statement of the accused/ defence evidence:
After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence has been put to them. The accused Lala Ram has stated that he is innocent and has been falsely implicated in the present case after being lifted from his house. The accused Satish has stated that he has been lifted from his residence after which he was falsely implicated in the case and that he has nothing to do with the incident. The accused Prakash @ Om Prakash has also stated that he has been falsely implicated in the present case after being lifted from his residence and that he has nothing to do with the incident. In so far as the accused Sunil @ Suraj is concerned, he has similarly deposed that he has been falsely implicated in the present case after being lifted from his house. However, the accused have preferred not to lead any defence evidence.
FINDINGS:
I have gone through the evidence on record and considered the submissions made before me. The prosecutrix in order to prove its case has examined as many as nine witnesses. The accused have denied the various allegations against him but preferred not to lead any evidence in their defence. They have stated that they have been falsely implicated and that they are innocent and that they were lifted from their houses.St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 23
Firstly in the present case the victim Ashwani Kumar Rattan has has been examined as PW1 has duly proved his complaint made to the police which is Ex.PW1/A. Secondly the prosecution has proved the apprehension and arrest of all the accused persons at the spot of the incident itself.
Thirdly the aspect of robbery having being committed on the victim/passenger in the bus near the GTK Road, Nanak Piao has been duly proved not only by PW1 Ashwami Kumar Rattan the victim but also by the Driver and Conductor of blue line bus bearing registration no. DL-1PA-7720 plying on route no.19 i.e. Sushil Kumar (PW2) and Monu (PW3). Though both these witnesses i.e. Sushil Kumar (PW2) and Monu (PW3) have turned hostile on the names and identity of the accused yet they have duly admitted and proved the incident. They have specifically deposed that when their bus reached near Telephone Exchange when they heard the noise of Roko-Roko as a passenger had been robbed when the Driver Sunil Kumar stopped the bus near the police gypsy and the police officials came inside the bus and apprehended the accused persons. PW2 has in his cross-
examination deposed that he does not know the names of the four accused persons who had been apprehended. Even PW3 Monu has deposed that at about 12:00/ 12:30 pm when their bus reached at Pratap Bagh he heard the noise in the bus Pakro-Pakro and the driver stopped the bus near the police gypsy which was standing near the Telephone Exchange. The testimony of the victim Ashwani Kumar Rattan, therefore, finds a due corroboration from two independent sources i.e. from the testimony of the Driver Sunil Kumar (PW2) and Conductor St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 24 Monu (PW3) of the bus. It has been duly proved by the prosecution that PW1 Ashwani Kumar Rattan was travelling in bus no. DL-1PA- 7720 plying on route no.19 when this incident of pick pocketing happened in the bus and before anybody could get down from the bus, the driver stopped the bus. PW1 Ashwani Kumar Ratten has in his testimony proved that when he had boarded the bus from Ghanta Ghar some other persons also boarded the bus with him and after some time four persons encircled him in the bus out of which two were standing in front of him and pointed out a knife towards him and directed him to handover the money and when he protested two other persons who were standing in his front also took out their knives and one of them cut the pocket of his pant from outside and the currency notes fell down on which the other one picked up the currency notes which occurrence was also noticed by rest of the passengers of the bus and also come to the notice of the Driver and Conductor on account of which the driver stopped the bus near the PCR vehicle.
Fourthly the victim Ashwani Kumar Rattan (PW1) has further proved that as soon as the bus stopped near the PCR vehicle he alighted from the bus and told the police officials that he had been robbed and the robbers were still inside the bus on which the police officials apprehended the accused persons and after sometime police officer from Police Station Model Town reached the spot and the accused persons were handed over to them. PW1 Ashwani Kumar Rattan has proved that he had pointed out the accused persons to the police of Model Town Police Station whose names he came to know later on as Satish, Prakash and Lal Chand and the name of 4th boy he St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 25 does not remember but states that the 4th boy was a resident of Khyala. The said witness Ashwani Kumar Rattan, later in his examination-in- chief conducted on 24.9.2009, also gave the name of 4th boy as Sunil @ Vijay. In his cross-examination the said witness has deposed that he had withdrawn the amount of Rs.33,500/- from the Bank of Baroda, Jawahar Nagar Branch and had walked down to Ghanta Ghar from where he boarded the bus. He has proved his signatures on the various documents prepared by the investigating officer during the investigations including the documents of arrest of the accused at the spot. The identity of the accused persons has been duly proved though this witness has not been able to specifically state who were the accused who had pointed out the knives initially and who were the persons who had removed the money from his pant.
Fifthly the recovery of amount of Rs.33,500/- which had been stolen from the possession of the victim Ashwani Kumar Rattan and recovered from the possession of accused Prakash has also been duly proved, which the witness PW1 Ashwani Kumar Rattan has proved having taken on Superdari to which there is no rebuttal. The witness has also proved that out of the currency notes stolen from him, eleven notes were of the denomination of 1000/- and forty five notes were of 500/- denominations. The accused persons have been arrested from the spot of the incident itself and the recovery of the amount of Rs.33,500/- from the accused Prakash, gives authenticity to the case of prosecution and the accused has not been able to controvert the same. The oral testimony of the witness Ashwani Kumar Rattan finds a due corroboration from the testimony of PW9 HC Udmi Ram and PW6 HC St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 26 Majid Khan who have duly proved the recovery of the currency notes from Prakash and have also identified the coloured photocopies of the same.
Sixthly the pant of the victim which had been torn by the accused while committing the incident as seized at the spot of the incident vide memo Ex.PW1/J. The victim Ashwani Kumar Rattan (PW1) has duly proved the seizure memo in respect of the pant and also the currency notes and identified the pant which is Ex.P-2. It is evident from the record that the grey colour pant produced in the court was bearing a cut on the front right hand side and also a corresponding cut which corroborates the oral testimony of the victim Ashwani Kumar Rattan (PW1).
Seventhly Ld. counsel appearing on behalf of the accused has vehemently argued that the complainant/ victim has not been able to identify the accused persons and he does not state that the accused persons are the robbers who committed robbery with him. It is argued that in fact some other persons had committed the robbery incident and the accused persons have been falsely implicated in the present case. I am not convinced by the argument of the Ld. defence counsel in view of the fact that the witness Ashwani Kumar Rattan very categorically states that the accused persons were apprehended at the spot itself. He has proved the various documents of arrest and seizure prepared in his presence. The currency notes robbed from the complainant have also been recovered from the accused Prakash @ Om Prakash on the spot of the incident itself which fact has also been proved in accordance with law. The accused persons are running in custody and there is no reason St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 27 to disbelieve the testimony of the victim in this regard more so as he himself identified the accused persons before the police of Model Town Police Station as the boys who had committed the offence of robbery with him. Further, the defence raised by the accused persons that they have been lifted from their houses also does not hold any merit in view of the fact that the Driver Sunil Kumar (PW2) and Conductor Monu (PW3) though have turned hostile on the aspect of identification, yet have proved the incident of robbery in the bus when the passenger raised an alarm on which the Driver Sunil Kumar stopped the bus near police gypsy stationed on the route.
Eighthly the testimony of the victim also finds a corroboration from the testimony of the officials posted at PCR Van Commander C-57 i.e. PW6 HC Majid Khan and PW9 HC Udmi Ram. They both have proved that on the date of incident i.e. 23.12.2008 they were present near the Telephone Exchange, Aryabhatt Poly Technique at GTK Road when the blue line bus bearing no.DL-1PA-7720 came to the spot and one person was shouting that his pocket has been picked on which HC Majid Khan (PW6) and HC Udmi Ram (PW9) went inside the bus and the passenger told them that the accused were four in numbers and were standing in the bus and as soon as the victim pointed towards them they tried to flee away but were apprehended. Both the witnesses i.e. PW6 HC Majid Khan and PW9 HC Udmi Ram have corroborated the testimony of PW1 to the extent that the accused were carrying knives in their hands and one of them was having money in his hand. They have deposed that all the accused persons were apprehended with the help of other public persons and were brought St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 28 down and a total sum of Rs.33,500/- was recovered from the possession of the accused on which the information was given to Control Room pursuant to which ASI Richpal from local police reached the spot to whom the accused persons were handed over.
Ninethly it is evident from the record that the oral testimonies of these witnesses from PCR also finds a corroboration from the Form-1 of PCR which is Ex.PW5/DA. Though the Ld. counsel for the accused has tried to take the benefit of the same since the information given on the Wireless is that pocket of one boy namely Ashwani (PW1) before this court had been picked and he had raised a hue and cry on which they stopped the bus and they had apprehended four boys and there was a recovery of two knives and Rs.33,500/-. Ld. counsel for the accused has argued that this only proves that initially only two knives were recovered and other two knives were planted upon the accused persons later. It may be noted that the report noted on Form-I of the PCR is in the name of the initial report which has been given to Control Room in respect of whatever had transpired even before the detailed inquiry/ investigation was conducted. The possibility of two knives being recovered later from the search of other two accused persons cannot be ruled out. The PCR form also reflects that four boys were apprehended whose names mentioned in the FIR were different. A valid explanation is forthcoming for the same. PW6 HC Majid Khan in his testimony has specifically deposed that the accused persons have a number of aliases and the names given by him to the Control Room was on the basis of the information and names given to him by the accused themselves which fact finds a St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 29 corroboration from the testimony of PW1 Ashwani Kumar Rattan. It has also come on record that out of the addresses supplied by the accused persons, the addresses of two accused were found incorrect when the Form-12 was sent for verification. Therefore, under these circumstances, the accused cannot be permitted to take the benefit of their own wrongs having supplied incorrect information to the investigating officer. Further, all the accused persons had been apprehended at the spot and have been identified in the court as the same boys who had been apprehended by the PCR officials. Both PW1 Ashwani Kumar Rattan and PW6 HC Majid Khan have identified the accused by pointing out towards them though they did not recollect their names.
Tenthly the officials of the PCR i.e. HC Majid Khan (PW6) and HC Udmi Ram (PW9) have correctly identified the knives recovered from the possession of the accused which finds a due corroboration from the testimony of PW1 Ashwani Kumar Rattan. The sketches and seizure memos prepared by the investigating officer have also been proved in accordance with law which shows that the various knives recovered from the possession of the accused were in violation of the Gazette Notification dated 17.2.1979 bearing No.F.13/203/78- Home (C) issued by the Government of NCT of Delhi.
Lastly Ld. counsel for the accused has vehemently argued that there are material discrepancies in the testimonies of the various witnesses. He has argued that the DD No.47 B is very clear which shows the recovery of only two knives from four accused persons and the information conveyed by the PCR was received at the Police Station St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 30 at 2:00 pm whereas PW5 SI Richpal Singh in his cross-examination has deposed that he reached the spot at about 1:56 or so i.e. exactly at the time of receiving the information from PCR. Ld. counsel for the accused has also pointed out that PW6 HC Majid Khan has deposed that he does not remember if the local police had reached the spot at 2:56 pm. It is further argued that the investigating officer did not even try to ask the complainant from where he had brought the said money and the ownership of the recovery of currency notes is not proved beyond reasonable doubts. The Ld. Amicus Curiae appearing on behalf of the accused persons has further argued that the seal after use was handed over to Ct. Ashwani Kumar who according to PW5 the investigating officer has returned the same at the spot after completion of the proceedings but the said witness again said that the seal was returned to him after three to four days, which creates doubt regarding the misuse of seal and the possibility of creating evident regarding recovery cannot be ruled out. Ld. counsel has also pointed out that before preparing the pullanda of the knives no attempt was made by the investigating officer to obtain the fingerprints of the accused persons from the knives. It is also argued that PW2 Sushil Kumar who is the Driver of the bus and PW3 Monu who is the Conductor/ Helper of the bus have turned hostile on the identity of the accused persons. He has argued that PW1 Ashwani Kumar Rattan has deposed that his statement was recorded only one by the police whereas his supplementary statement has also been attached with the charge-sheet. It is submitted that PW6 HC Majid Khan in his cross-examination deposed that he had signed his statement recorded by the investigating officer as well as the St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 31 site plan whereas there are no signatures of this witness.
I have duly considered the above contradictions pointed out by the Ld. counsel for the accused. In the case of State of H.P. Vs. Lekhraj and another reported in JT 1999 (9) SC 43 it was observed by the Supreme Court of India that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :-
"It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 32
So far as minor inconsistencies are concerned in the statement of the witnesses it was held in the case of Ousu Varghese Vs. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. Further, in the case of Jagdish Vs. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Hon'ble Supreme Court has observed that when the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981)2 SCC 752 it was observed that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.
Even otherwise, when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully made his testimony totally non-discrepant. Courts should, however, bear in mind that it is only when discrepancies in evidence of witness are so incompatible with the credibility of his version that the Court is justified in St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 33 jettisoning his evidence. Too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny.
The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 34 used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. One cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 35 moment.
Further, as regards the contradictions in the timings, presence of a particular police official at a particular time etc., I am of the considered that the same are too immaterial and irrelevant as it is the evidence of the prosecution witnesses regarding the commission of the offence by the accused which is more important than the investigation conducted in the present case. Even otherwise, the alleged contradictions are not fatal to the prosecution case in any manner as the same relate to the investigation. Merely due to the contradictions in the evidence regarding investigation or even if there is faulty investigation, the same do not absolve the accused of his liability as it is the evidence of the material and star witnesses which is more important than the evidence of the witnesses of the investigation.
I do not find any force in the submission of the counsel for throwing out the case of the prosecution merely on the ground of certain discrepancies/contradictions in the deposition of various prosecution witnesses. I am of the considered view that such discrepancies are bound to occur in the deposition of various witnesses being usual and natural and even otherwise as they are found to be formal in nature without striking at the root of the matter and the same cannot be treated as fatal for the prosecution.
It may be observed here that it is a general handicap attached to all eye witnesses, if they fail to speak with precision their evidence would be assailed as vague and evasive, on the contrary if the speak to all events very well and correctly their evidence becomes St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 36 vulnerable to be attacked as tutored. Both approaches are dogmatic and fraught with lack of pragmatism. The testimony of a witness should be viewed with broad angles. It should not be weighed in golden scales, but with cogent standards. In a particular case an eyewitness may be able to narrate the incident with all details without mistake if the occurrence had made an imprint on the canvas of his mind in the sequence in which it occurred. He may be a person whose capacity for absorption and retention of events is stronger than another person. It should be remembered that what he witness was not something that happens usually but a very exceptional one so far as he is concerned. If he reproduces it in the same sequence as it registered in his mind, the testimony cannot be dubbed as artificial on that score alone. Similar observations have also been made by the Supreme Court in the judgment reported as Bhag Singh and Others Vs. State of Punjab, reported in 1997 VII AD SC 507.
As regards the above discrepancies, it may be observed that the same are too minor to be even taken into consideration. All the discrepancies in the timings as pointed out by the counsel for the accused are to immaterial can be ignored attributing the same to the lapse of time as the material facts have been substantially proved by the prosecution.
Applying the settled principles of law to the facts and circumstances of the present case, it is evident that in so far as the discrepancy with regard to the names and details of different persons mentioned in the PCR Form is concerned, a valid explanation is forthcoming for the same. PW5 SI Richpal Singh in his testimony St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 37 specifically deposed that there may be mistake which might have been committed by the PCR HQ officials while noting down the names conveyed to them on wireless. PW6 HC Majid Khan has specifically deposed that the accused are known by a number of aliases and in fact it was the accused themselves who had given him the said names and addresses. This testimony also finds a corroboration from the testimony of victim Ashwani Kumar Rattan (PW1) who has similarly deposed that the accused have number of aliases and also from the fact that the addresses submitted by two of the accused have been found to be incorrect. This being so, the accused cannot take the benefit of their own wrongs. Once the accused persons have been specifically identified by the eye witness/ victim and the PCR officials who had apprehended them at the spot, merely because wrong names have been mentioned in the PCR Form will not affect the case of the prosecution. This being so, the objections raised by the Ld. counsel for the accused is hereby unfounded.
FINAL CONCLUSION:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 382. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the first and the second investigating officers. They have proved having gone to the spot of incident. The identity of the accused persons has been established. They have been correctly identified by PW1 Ashwani Kumar Rattan. The accused Lala Ram @ Vishal @ Kale, Satish, Om Prakash @ Prakash and Sunil @ Suraj have been named in the FIR and have been identified by the witnesses in the court by pointing out towards them.
St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 39Ld. Amicus Curiae for the accused persons has highlighted the various lacunas in the prosecution case. He has argued that the investigating officer had not made any inquiries from the complainant/ victim in respect of the ownership of the money of Rs.33,500/-. It is also submitted that PW2 Sushil Kumar who is the driver of the bus and PW3 Monu the Conductor/ Helper of the bus have turned hostile on the identity of the accused persons and no attempt was made by the investigating officer to obtain the fingerprints of the accused persons from the knives prior to preparation of pullandas of knives. He submits that benefit of the same should be given to the accused persons.
I have considered the submissions made before me. It is a settled law that it is the actual crime which is important than the investigation. Where the actual crime is being elaborated and proved in the evidence of witness PW1 Ashwani Kumar Rattan then the investigation becomes less important as PW1 Ashwani Kumar Rattan has not only deposed regarding the manner of commission of the crime but has also elaborated all the details thereof. Once the accused have been apprehended at the spot at the instance and on pointing out of the victim and the recovery of the knives have been made at the spot itself, then where is the requirement of lifting the finger prints from the weapons.
There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 40 committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. I do not find any substance in the grounds raised by the Amicus Curiae for this accused. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
It also stands conclusively proved that all the accused persons Lala Ram @ Vishal @ Kale, Satish, Om Prakash @ Prakash and Sunil @ Suraj, on 23.12.2008 at 1:45 pm near Telephone Exchange, GTK Road in furtherance on their common intention committed robbery of Rs.33,500/- from the complainant Ashwani Kumar Rattan on the point of knives. It has been proved that all the accused persons namely Lala Ram @ Vishal @ Kale, Satish, Om Prakash @ Prakash and Sunil @ Suraj were apprehended at the spot. The recovery of the robbed amount and the knives from the accused persons has also been proved.
Therefore, under these circumstances, I hereby hold all the accused persons namely Lala Ram @ Vishal @ Kale, Satish, Om St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 41 Prakash @ Prakash and Sunil @ Suraj guilty of the offence under Section 392 & 397 Indian Penal Code read with Section 25/54/59 of Arms Act and convict them accordingly.
Case be listed for arguments on sentence on 7.12.2010.
Announced in the open court (Dr. KAMINI LAU) Dated: 1.12.2010 ASJ-II(NW)/ ROHINI St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 42 State Vs. Lale Ram @ Vishal FIR No. 433/08 PS Model Town 1.12.2010 Present: Addl. PP for the State.
All the four accused in JC with Amicus Curiae Sh. Rajneesh Antil Advocate.
Vide my separate detailed order dictated and announced in the open court, I hold the accused Lale Ram @ Vishal; Satish; Prakash @ Om Prakash and Sunil @ Suraj guilty of the offence under Section 392/397 read with Section 34 Indian Penal Code and Under Section 25 of Arms Act for which they are accordingly convicted.
Case be listed for arguments on sentence on 7.12.2010.
(Dr. Kamini Lau) ASJ-II(NW)/ 1.12.2010 St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 43 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II(NW): ROHINI COURTS: DELHI Sessions Case No. 1009/09 Unique Case ID No. 02404R0059992009 State Vs. 1. Lala Ram @ Vishal @ Kale S/o Sh. Dal Chand R/o K-46, JJ Colony Wazirpur, Delhi.
2. Satish S/o Sh. Bhagwan Dass R/o House No. 238, Jaipuria Meel, Near Amba Cinema, Old Subzi Mandi, Delhi.
3. Prakash @ Om Prakash S/o Sh. Jagdish Chand R/o H. No. N-18A-206, K Block, JJ Colony Wazirpur, Delhi.
4. Sunil @ Suraj S/o Sh. Hari Chand R/o H. No. WN-246, Khyala, Delhi.
FIR No. : 433/2008Police Station: Model Town Under Section: 392/397/411 Indian Penal Code & 27/54/59 of Arms Act Date of Conviction: 1.12.2010 Arguments heard on: 7.12.2010 Date of Sentence: 9.12.2010 St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 44 APPEARANCE: Present: Sh Taufiq Ahmed, Addl. PP for the State.
All convicts are in judicial custody with Amicus Curiae Sh. Rajneesh Antil Advocate and Sh. Sagir Ahmed Advocate.
ORDER ON SENTENCE:
Vide my separate detailed judgment dated 1.12.2010, all the four convicts namely Lala Ram @ Vishal @ Kale; Satish; Prakash @ Om Prakash and Sunil @ Suraj have been convicted for the offence under Section 392/397 read with Section 34 Indian Penal Code and Section 25/54/59 of Arms Act.
The convicts before this court namely Lala Ram @ Vishal @ Kale; Satish; Prakash @ Om Prakash and Sunil @ Suraj are desperate criminal who had robbed the complainant Ashwani Kumar Rattan in broad day light on 23.12.2008 in a moving blue line bus bearing no. DL-1PA-7720 plying on route no. 19 from Ghanta Ghar. The complainant Ashwani Kumar Rattan had withdrawn a sum of Rs.33,500/- from the Bank of Baroda, Jawahar Nagar Branch and boarded the aforesaid bus from Ghanta Ghar. When the bus reached near Gurdwara, GTK Road all the four accused surrounded him inside the bus. Two of the accused standing behind the complainant showed him the knives and directed him to handover the money. When the complainant protested, the other two accused standing in front of him, took out their knives and out of them one convict cut the pocket of his pant from outside due to which the currency notes fell down and the other convict picked up the same. The victim, however, raised an alarm St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 45 and the Driver of the bus who noticed the PCR van on the route immediately stopped the bus near the PCR van on hearing the alarm while the accused were still inside. On this after the bus stopped near the PCR the complainant immediately narrated the incident to the PCR officials who with the help of other public persons apprehended all the accused on the pointing out of the victim and the sum of Rs.33,500/- which had been removed from the pocket of accused Ashwani Kumar Rattan was recovered from the possession of convict Om Prakash @ Prakash. The knives which the accused were carrying with which they threatened the convict/ complainant have also been recovered from their possession. The accused gave their incorrect names and addresses to the PCR officials and even to the local police so much so that the Form No.12 shows that the addresses given by the convicts Sunil @ Suraj and Satish were found to be incorrect. All the convicts have been held guilty of the offence under Section 392/ 397 read with Section 34 Indian Penal Code and Section 25/54/59 of Arms Act on the basis of the testimony of the complainant and their identification by him and also on the basis of the testimonies of other witnesses including Driver & Conductor of the blue line bus and HC Najid Khan and HC Udmi Ram of the PCR van who apprehended the accused on the pointing out of the complainant with the help of public persons.
I have heard arguments on the point of sentence. Ld. Amicus Curiae appearing on behalf of the convicts prayed for a lenient view against the convicts. He submits that the convicts belong to very poor families and are in judicial custody w.e.f. 24.12.2008. He has also argued that the convict Sunil @ Suraj and Satish are first time offenders St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 46 and are not involved in any other case. Ld. counsel appearing on behalf of the convicts has further argued that the convicts are not previous convicts and are not involved in any other case. He requests that the benefit of Probation of Offenders Act be given to the convicts and placed placed his reliance on the authority in the case of Masarullah Vs. State of Tamil Nadu reported in 1983 Crl. L. J. 1043.
On the other hand Ld. Addl. PP for the State has prayed for the maximum sentence against the convicts keeping in view the nature of offence committed by them and the fact that the convicts are desperado who have committed robbery in broad day light without any fear of law and do no hesitated to take law into their hands.
I have considered the rival contentions and have gone through the authority relied upon by the Ld. counsel for the convicts which authority is not applicable to the facts of the present case. Out of the four convicts, two of the convicts i.e. Lala Ram @ Vishal @ Kale and Om Prakash @ Prakash have other cases against them and are not first time offenders as argued by the Ld. counsel. Further, this is a case where the convicts had committed an offence in a pre-planned manner. They are members of an organized gang of robbers and have committed the offence of robbery in a public transport in broad day light. The manner in which the offence has been committed implies previous preparation. The convicts could not incidentally flee because of the instinctive reflex by the Driver of the bus who took the bus to the stationed PCR vehicle and the alarm raised by the victim alerted the police officials which facilitated the apprehension of the convicts with the help of public persons. The offence was a daring act and is St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 47 reprehensible in nature and it therefore, does not entitle the convicts to be benefit of Probation of Offenders Act.
The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The hon'ble Supreme Court has while considering the sentencing policy in the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78 has observed that:
"........law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 48 committed, the move for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant facts which would enter into the area of consideration......"
The Hon'ble Court has further observed that:
"...........The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion the the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations culpability that are raised by the special facts of each case. Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations.
Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread......"
"......Proportion between crime and punishment is a goal respected in principle, and in spite of errant St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 49 notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crime with equal severity is not unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is through then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment had some very undesirable practice consequences.."
Further in the case of Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463 it has been held by the Hon'ble Supreme Court that:
"......Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 50 nature of the offence and the manner in which it was executed or committed etc...."
The convict Lala Ram @ Vishal @ Kale is aged about 39 years having a family comprising of aged parents, one unmarried daughter, wife, two daughters and one son. He is totally illiterate and was doing the work of Carpenter. He is involved in seven other cases under Section 399/402/394/397 IPC, under Section 25 of Arms Act and under Section 21/61/85 of NDPS Act. The convict has, however, informed this court that he has already been acquitted in five case and only two cases under Section 21 of NDPS Act and 25 of Arms Act are pending trial.
The convict Prakash @ Om Prakash is aged about 34 years having a family comprising of mother, two married brothers, one married sister, wife, one son and one daughter. He is 7th class pass and is a driver by profession. He is also involved in four other cases under Section 452/427, 399/402 IPC and 25 of Arms Act but according to the convict he has been acquitted in all the said cases and only the present case is pending against him.
The convict Satish is aged about 46 years having a family comprising of one married daughter and one unmarried son. He is totally illiterate and is a labour by profession. He is not involved in any other case and is a first time offender.
The convict Sunil @ Suraj is aged about 36 years having a family comprising of father, one married brother and one married sister. He is 6th class pass and is a painter by profession. He is not involved in St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 51 any other case and is a first time offender.
The convicts before this court are desperate criminals who have no fear of law and have committed robbery in broad day light in a moving bus i.e. public transport system creating a fear psychosis in the minds of the general public which adversely affects the public peace and social order. But for the courage shown by the complainant Ashwani Kumar Rattan and the instant reflex by the Driver of the Blue Line bus namely Sunil who immediately stopped the bus near the PCR Van, the convicts could never have been apprehended and taken to task.
Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. They are spreading terror in the society and adversely affecting social order and the faith of people in the system. No leniency can be shown to persons who does not hesitate to take the law into their hands for pure monetary reasons and any leniency or indulgence by the court, under these circumstances, can be misplaced.
Keeping in view the aforesaid and the manner of the offence and also in view of the the fact that the offence has been committed in broad day light without any fear of law, I award the following sentences to the convicts:
The convict Lala Ram @ Vishal @ Kale is sentenced to Rigorous Imprisonment for a period of eight years and fine to the tune of Rs.2,000/- for the offence under Section 392 read with Section St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 52 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of fifteen days. In so far as the offence under Section 25/54/59 Arms Act is concerned, the convict is sentenced to Rigorous Imprisonment for a period of three years and fine to the tune of Rs.2,000/-. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of fifteen days. Both the sentences shall run concurrently.
The convict Satish is sentenced to Rigorous Imprisonment for a period of eight years and fine to the tune of Rs.2,000/- for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of fifteen days. In so far as the offence under Section 25/54/59 Arms Act is concerned, the convict is sentenced to Rigorous Imprisonment for a period of three years and fine to the tune of Rs.2,000/-. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of fifteen days. Both the sentences shall run concurrently.
The convict Prakash @ Om Prakash is sentenced to Rigorous Imprisonment for a period of eight years and fine to the tune of Rs.2,000/- for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of fifteen days. In so far as the offence under Section 25/54/59 Arms Act is concerned, the convict is sentenced to Rigorous Imprisonment for a period of St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 53 three years and fine to the tune of Rs.2,000/-. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of fifteen days. Both the sentences shall run concurrently.
The convict Sunil @ Suraj is sentenced to Rigorous Imprisonment for a period of eight years and fine to the tune of Rs.2,000/- for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of fifteen days. In so far as the offence under Section 25/54/59 Arms Act is concerned, the convict is sentenced to Rigorous Imprisonment for a period of three years and fine to the tune of Rs.2,000/-. In default of payment of fine the convict shall undergo Simple Imprisonment for a further period of fifteen days. Both the sentences shall run concurrently.
Benefit of Section 428 Code of Criminal Procedure shall be given to all the convicts for the period already undergone by them during the trial, as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment dated 1.12.2010 and order on sentence be given to the convicts free of costs and another be attached with their jail warrants.
St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 54File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 9.12.2010 ASJ-II(NW)/ ROHINI
St. Vs. Lale Ram @ Vishal Etc., FIR No.433/08, PS Model Town Page No. 55