Delhi District Court
State vs . Sandeep And Adil on 11 December, 2020
State vs. Sandeep and Adil
IN THE COURT OF MM-05, EAST, KARKARDOOMA COURTS, DELHI
Presided by : Ms. Aakanksha Vyas
Cr. Case no. 7774/2016
STATE Vs. Sandeep and Adil
FIR No. 126/12
PS Krishna Nagar
JUDGMENT:
a) Case No. : 7774/2016
b) Name of the complainant : Surender Kumar
c) Name, parentage and : 1.Sandeep s/o late Sh. Babu,
address of the accused R/o C-Block, Welcome, Delhi.
persons. 2. Adil s/o late Sh. Assak Ali,
R/o H.No. 80/65, Gali no. 3, PN
Block, Welcome, Delhi.
d) Offences charged : U/s 392/411/34 IPC
e) Plea of accused persons : Not guilty
f) Date on which judgment was : 28.11.2020
reserved
g) Final order : Both accused convicted for the
offence u/s 379/34 IPC
h) Date of decision : 11.12.2020
FIR No. 126/12 Page No. 1 out of 10
State vs. Sandeep and Adil
FINAL ORDER
1. Vide this order, I shall dispose off the present case in which the accused persons herein namely Sandeep and Adil have faced trial for the commission of offences under sections 392/411/34 IPC. Briefly put, as per the chargesheet, the case of the prosecution is that on 7/4/2012, the complainant Surender Kumar and Ct. Vishan Dutt Joshi came to PS Krishna Nagar and produced the accused persons herein along with 5000/- stated to have been recovered from them and the complainant gave a complaint to the following effect. The complainant stated that on that day at about 4:00 pm, he took the bus of route no. GL23 and he was going from ISBT Delhi to Anand Vihar bus stand. The complainant alleged that when the bus was nearing Bihari colony bus stand, two persons who were standing near him made him get up on the pretext of vomiting and cornered him by standing in front of and behind him. Further, one of the said persons pressed him from behind while the other took 5000/- out of his pocket. The complainant alleged that when he raised alarm, the said persons jumped from the bus and started fleeing away. The complainant further stated that the bus driver stopped the bus and the complainant ran behind them while also raising alarm at the same time. The complainant further stated that a PCR vehicle was standing ahead and with the assistance of the PCR officials, the said persons i.e. the accused persons herein were apprehended. Further, from the right pocket of accused Adil, 5000/- in the form of ten notes of 500/- each, belonging to the complainant, were recovered. Thereafter, the complainant brought the accused persons to the police station in the PCR van. Accordingly, the present case was registered against both the accused persons vide FIR no. 126/2012. After the completion of the investigation, charge sheet for aforesaid offences was filed against both the accused persons and they were sent up to face trial.
2. To prove its case, the prosecution examined seven witnesses. The complainant Surender Kumar was examined as PW1. PW2 and PW4 are ASI FIR No. 126/12 Page No. 2 out of 10 State vs. Sandeep and Adil Nirmal Singh and HC Bishan Dutt Joshi respectively i.e. the PCR officials who apprehended the accused persons on the date of the alleged incident. PW3 is ASI Govind Ram who proved the registration of the present FIR and the call made on 100 no. qua the alleged incident. PW6 is HC Vivek who proved the entry in the register no. 19 whereby the case property i.e. the stolen amount of 5000/- was deposited in the malkhana. PW5 is SI Arvind who is the investigating officer (hereinafter referred to as the IO) of the present case and PW7 is SI Sandeep who assisted the IO during investigation.
The testimony of the PWs shall be discussed during appreciation of evidence.
3. Statements of the accused persons were recorded U/s. 313 Cr.PC wherein they pleaded innocence and false implication in this case by the complainant on account of quarrel with him regarding seating in the bus. However, accused persons chose not to lead defence evidence. Thereafter final submissions were heard. Ld. APP for state has argued that the testimony of police witnesses is consistent with each other and contradictions if any are minor in nature and do not impeach their credit. Further, reasonable explanation has been given for not joining other independent public witnesses. Furthermore, the accused have not led any defence evidence. In other words, the Ld. APP contended that a holistic reading of the testimony of prosecution witnesses shows that the offences charged are proved beyond reasonable doubt.
Per contra, the Ld. Counsel for the accused has argued that there is no legally sustainable evidence against the accused persons and there are material contradictions in the testimony of the PWs. Further, the Ld. Counsel pointed out that even though the alleged incident occurred in a public place, no independent public witness was examined by the prosecution including the driver of the bus in which the complainant was travelling. It was also submitted that no call on 100 no. was made by the complainant at the time of FIR No. 126/12 Page No. 3 out of 10 State vs. Sandeep and Adil the alleged incident. It was contended that the above facts cast a strong doubt upon the credibility of the complainant's version. It was also submitted that the bus ticket of the complainant was also not seized during investigation which makes the complainant's presence on the spot doubtful. It was also contended that the accused persons have been charged for the offence u/s 392 IPC but there is no injury sustained by the complainant and hence section 392 IPC is not proved. Lastly, it was also contended that there is no identification mark on the currency notes allegedly seized from the accused and the number of the currency notes seized from the accused is also not mentioned in the seizure memo of the same and these facts cast doubt upon the alleged recovery of 5000/- from the accused.
4. In the present case, the accused persons have been charged u/s 392/411/34 IPC. Therefore it is important to look at the said provisions. Section 392 IPC prescribes punishment for the offence of robbery which is defined by section 390 IPC as follows:
"Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint."
Section 411 IPC provides as follows:
"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
5. In the present case, the testimony of the complainant/PW1 is most relevant and the same is reproduced below:
FIR No. 126/12 Page No. 4 out of 10State vs. Sandeep and Adil "I am residing at abovesaid address with my family and doing work at village Ghagga, Distt. Patiala, Teh-Patara, PS Ghagga, Punjab and having a Rehari shop of kulcha. On 07.04.2012, at about 04.00 pm, I was going to Anand Vihar from ISBT, Delhi by bus of route GL-23. When, my abovesaid bus had reached at Bihari Colony bus stand, two persons ,who are standing near me, had asked me that they had feeling vomiting and had requested to me and both accused persons had surrounded me from front and back side. One person who was behind me, had pressed me and the 2nd person who was standing in front of me, had taken out Rs. 5000/- from my pocket. I raised alarm and on this accused persons had tried to escape. Driver of the bus had stopped the bus and raised alarm. Accused persons tried to escape. Due to mean time, one PCR vehicle, which was standing near had apprehended both accused persons, who are present in the court today (correctly identified). During interrogation, who disclosed their names Aadil and Sandeep. My above said Rs. 5000/- had been recovered from the possession of accused. The above said Rs. 5000/- was of the denomination of Rs.500/-. The abovesaid recovered Rs. 5000/- was handed over to the police officer. Police officer had recorded my statement Ex.PW1/A bears my signatures at point A. The cash of Rs. 5000/- were recovered from the right side pocket of the wearing pant of the accused Adil. PCR Officials took me and accused persons to the PS along with recovered currency notes which were also produced before the police officials. The above said currency notes were taken by the police in their possession and prepared the documents in this regard vide seizure memo Ex.PW1/B bears my signatures on point A. Police had arrested both the accused persons vide arrest memo Ex.PW1/C and Ex.PW1/D who are also present in the court today. Their personals search memos Ex.PW1/E and Ex.PW1/F. Police officials also inquired with the both accused persons. I can identify the case property if shown to me which was sealed by the police officials after preparing a pullanda in white cloth and sealed with the seal of AK.
At this stage, MHC(M) produced the case property in white pullanda dully sealed with the seal of AK and particulars of the present case. Seal is broken and cash of Rs. 5000/- in the denomination of ten notes of Rs. 500/- each are taken out numbering 5KN 680156, 5PU 8172.8, FIR No. 126/12 Page No. 5 out of 10 State vs. Sandeep and Adil 5FQ 531531, 9GM 046530, 8FF 473597, 6NS 339936, 7BQ 496704m 9LP 173217, 5EW 248579, 4LH 406827 and shown to the witness which are dully identified by the witness as recovered from the possession of the accused Adil and robbed by both the accused persons. The ten currency notes of Rs. 500/- each is Ex.P1 collectively." A perusal of the testimony of PW1 shows that PW1 has identified the accused persons in the court and reiterated the averments of his complaint i.e. Ex. PW1/A. He was cross examined by the Ld. Counsel for the accused persons but his testimony was not impeached during cross examination. Only bare suggestions were given to the complainant that the accused persons had not stolen 5000/- from the complainant and no amount was recovered from the accused.
6. The testimony of PW2 and PW4 is also material as in their presence, the amount of 5000/- stolen from the complainant was recovered from accused Adil. Therefore let us look at their testimony as well. The testimony of PW2 is as follows:
" On 07.04.2012, I was posted as HC at Vivek Vihar Circle, PCR Zone. On this day, my duty hours were from 08.00 am to 08.00 pm. I was incharge of PCR vehicle Romio-25. At about 03.50 pm, my vehicle Romio-25 was positioned in front of main gate of Bihari Colony . Suddenly, I saw two persons were running from Bihari Colony towards Krishna Nagar and one person was chasing them. With the help of Ct.Bishan Joshi I had apprehended the said persons who were running. On enquiry I found their names as Sandeep and Aadil. Accused persons present in the Court correctly identified by the witness. In the meantime, one Surender reached us and told me that he was travelling in a bus from Kashmere gate to Anand Vihar and further told the accused persons were also travelling in the same bus and in the crowd they had forcibly taken his money from his wearing pant in the bus . As soon as the bus reached at red light of Bihari Colony. The accused persons had come down from the bus and started fleeing away from there. But I was chasing them. On this I took personal FIR No. 126/12 Page No. 6 out of 10 State vs. Sandeep and Adil search of the accused persons and found Rs. 5000/- (ten notes of Rs. 500/-). I along with accused persons and Surender went to the PS Krishna Nagar. I had handed over the accused persons and recovered cash from them and Surender to the IO SI Arvind. On the complaint of Surender a FIR was registered against the accused persons at PS Krishna Nagar. IO had seized the recovered cash in my presence vide seizure memo already Ex.PW1/B which bears my signatures at point A. IO had taken the personal search of the accused persons vide search memo already Ex.PW1/E and Ex.PW1/F bearing my signatures at point B. IO had arrested the accused persons vide arrest memo already Ex.PW1/C and Ex.PW1/D both bears my signatures at point B. IO had recorded a disclosure statement of accused Sandeep vide memo Ex.PW2/A and of accused Adil vide memo Ex.PW2/B both bears my signatures at point A. My statement was recorded by the IO under Section 161 Cr.PC."
The testimony of PW4 is as follows:
" On 07.04.2012, I was posted at PCR East Zone at vehicle Romio-25 as a gunman. ON that day, I along with I/C of R-25 HC Nirmal Singh and driver of the said vehicle Ct. Vikas were present near police picket ,Kanti Nagar , Delhi as it was base of R-25, at about 3.50 pm, he saw two boys were running from bihari Colony towards Kanti Nagar, Delhi and one person was running behind them with alarm "pakdo pakdo" on which I along with I/C HC Nirmal Singh had apprehended the said boys after chasing them in running steps. IN the meantime, the said person who was following them reached us and informed us that the said boys had snatched /stolen his Rs. 5000/- from his pocket when he was coming to Anand Vihar from ISBT, Kashmere Gate through bus no. GL-23. Thereafter in presence of the said person/complainant, I see HC Nirmal Singh had taken cursory search of the said boys with my help and found ten notes of Rs. 500/- denomination from one boy who had disclosed his name as Aadil (Accused Aadil is present in the court and correctly identified by the witness) and some documents were recovered from the pocked of another boys who had disclosed his name as Sandeep (accused Sandeep is also present in the Court today and correctly identified by the witness), we had taken the accused FIR No. 126/12 Page No. 7 out of 10 State vs. Sandeep and Adil persons along with complainant to PS Krishna Nagar, Delhi and handed over the said boys along with the case property to the police officials of PS Krishna Nagar, Delhi. Thereafter, IO SI Arvind had taken the position of said currency notes after seizing the same vide seizure memo already Ex.PW1/B,bearing my signature at point 'B'. Thereafter, IO had interrogated the said boys and after getting sufficient evidence against them, the IO had arrested the accused persons vided arrest memos already exhibited as Ex.PW1/C and Ex.PW1/D both bearing my signatures at points 'C', both the accused persons were also personally searched by the IO vide personal search memos already Ex.PW1/E and Ex.PW1/F, both bearing my signatures at points 'C'. IO had recorded the disclosure statements of accused persons which already Ex.PW2/A and Ex.PW2/B, both bearing my signatures at point 'B'. My statement was recorded by the IO. I can identified the case property i.e. currency notes recovered from the accused persons if shown to me. Case property is already exhibited in the examination of PW1 as Ex.P-1."
7. The depositions reproduced above show that the testimonies of PW2 and PW4 lends credence to and corroborates the version of events narrated by the complainant. Further PW2 and PW4 are also eye witnesses to the recovery of the amount of Rs.5000/- from accused Adil which the complainant has alleged was stolen from him by the accused persons. The testimony of PW2 and PW4 also remained unimpeached during cross examination. The Ld. Defence counsel had strongly contended that the testimony of PW2 and PW4 cannot be relied upon as they are not independent witnesses. However this contention cannot be accepted. Firstly, there is no rule of law or even prudence that testimony of police officials cannot be relied upon. Reliance is placed upon the judgment of the apex court in the case titled as Girija Prasad v. State of MP (AIR 2007 SC 3106) wherein it was held that:
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a FIR No. 126/12 Page No. 8 out of 10 State vs. Sandeep and Adil police official but it is not the law that the police witnesses should ot be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and truthworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convicted that what was stated by a witness has a ring of truth, conviction can be based on such evidence."
Moreover in the present case, PW2 and PW4 are natural witnesses in as much as they happened to be present at the spot when the alleged incident unfolded and they are not part of the investigation.
8. I now come to the defence. The plea of defence of the accused persons is that they have been falsely implicated by the complainant as they had a quarrel with him regarding seat in the bus. But firstly this plea has been taken by the accused persons only in their statements u/s 313 Cr.PC. It is trite to state that a statement under section 313 Cr.PC has no evidentiary value. The accused persons did not examine themselves on oath nor led any evidence in support of their plea. Further, no suggestion to this effect was given to the complainant and hence the said plea appears to be an afterthought. Per contra, the factum of recovery of Rs.5000/- from accused Adil which is corroborated by the testimony of PW2 and PW4 strongly belies the plea taken by the accused persons.
FIR No. 126/12 Page No. 9 out of 109. The upshot of the preceding discussion is that the allegations of the complainant stand proved from the evidence on record. However having reached the aforesaid conclusion, I am of the opinion that offence under section 379/34 IPC is proved from the evidence that has come on record as opposed to section 392/34 IPC. Section 392 IPC defines robbery which is an aggravated form of theft. To prove the offence of robbery, the prosecution must prove that the accused persons had voluntarily caused or attempted to cause death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint to the complainant. However the testimony of PW1/ complaint nowhere suggests any of the above. Therefore the ingredients of section 392 IPC are not proved in the present case. However the testimony of complainant establishes that Rs.5000/- were dishonestly taken out of his possession without his consent by the accused persons. Further, common intention of the accused persons is also adequately borne out by the fact that the complaint has deposed that the accused persons crowded him as one of the accused persons stood in front of him and the other stood behind him and then one of them took Rs.5000/- from his pocket. Therefore offence u/s 379/34 IPC stands proved. Section 411 IPC is also not proved against the accused persons as the offence under section 411 IPC is not made out against the thief. Reliance is placed in this connection on the judgment of the Supreme Court in the case titled Trimbak v. State of Madhya Pradesh, AIR 1954 SC 39.
10. Accordingly the accused persons stand convicted for the offence u/s 379/34 IPC. Copy of the judgment be given to the accused persons free of cost.
Digitally signed by Announced in the open court on AAKANKSHA VYAS AAKANKSHA Location: Karkardooma VYAS Courts, Delhi Date: 2020.12.11 16:42:13 +0530 this day i.e. 11.12.2020 (AAKANKSHA VYAS) MM-5, East, KKD Courts, Delhi 11.12.2020 FIR No. 126/12 Page No. 10 out of 10