Delhi District Court
State vs Sanjeev Sharma on 1 April, 2014
IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.11/2012
FIR No.332/2004
PS Karol Bagh
U/s 392/394/324/34 IPC & 25 of Arms Act
State
Versus
1. Sanjeev Sharma
S/o Sh. Munshi Lal,
R/o Village Daiyapur,
PS Simbhawli, Hapur (UP).
2. Rohit @ Veera
S/o Bal Ram,
R/o H. No. N21, B71,
Maujiwala Bagh, Azadpur, Delhi.
3. Sachin Verma
S/o Sh. Pawan Kumar,
R/o E91, Street No. 8,
Hastal Road, Uttam Nagar, Delhi.
4. Satish Kumar Jha (Proclaimed Offender)
S/o Sh. Kripanand Jha,
R/o B252, Shastri Park Colony,
Burari, Delhi. .......Accused Person(s)
Date of institution : 21.03.2012
Date of Judgment : 01.04.2014
1
J U D G M E N T
Accused Sanjeev Sharma, Rohit @ Veera, Sachin Verma and Satish Kumar Jha were sent up for trial for an offences U/s 392, 394 read with sec.34 IPC, 397 & 324 read with sec.34 IPC.
2. Accusation levelled against the accused persons is that on 26.04.2004, at about 8 pm, at building no. 31/3146, at top floor, Bedonpura, Karol Bagh, all of them in furtherance of their common intention and common intention of their companion Rinku @ Vijay (juvenile) committed theft of jewellery belonging to complainant Banmali Patra. At that time one of the offenders caused hurt to the complainant using a deadly weapon i.e. a knife. One buttondar knife was recovered from Sanjeev Sharma (accused) soon after the occurrence. Gold weighing 5 grams, belonging to the complainant was recovered from Rohit on 29.04.2004. 6 grams of gold Katran and a knife was got recovered by the juvenile.
3. Case came to be registered on the statement of complainant Banmali Patra made on 26.04.2004.
As per version of the complainant, given to the police on 26.04.2004, On that day at about 8 pm, he was present at his shop, with his employee Uttam Dass. At that time three boys came to his shop and asked to display jewellery. Thereupon, complainant and his employee Sh. Uttam Dass started displaying jewellery before the accused persons. Out of those three boys, two picked up piece of gold weighing 200 grams and 50 grams "chhant" of gold (used in preparing jewellery) and started running away. Complainant tried to 2 catch hold of accused Sanjeev Sharma. But the latter took out a knife and inflicted injuries on thigh of former. Sanjeev Sharma was apprehended whereas his two companion made good their escape. Someone informed PCR staff.
4. Inspector Lekh Singh of PS Karol Bagh, on receipt of a call, accompanied by Ct. Diwan Singh reached the spot. On reaching there, complainant was found present there amongst the public. On personal search of accused Sanjeev Sharma, knife was recovered from right side pocket of his pant. Knife was then turned into parcel and sealed with the seal bearing impression YS.
Inspector Lekh Singh then recorded statement of the complainant and got the case registered.
Accused Sachin Verma was taken to Lady Hardinge Medical Hospital and got medically examined there. Thereafter, he was brought to police station. During interrogation, Sachin Verma accused made disclosure statement. He disclosed about involvement of juvenile.
The juvenile was apprehended on 29.04.2004. At the pointing out of juvenile, Rohit accused was arrested on the same day from Mauji Wala Bagh, Adarsh Nagar.
Case of the prosecution is that Rohit accused made disclosure statement and in pursuance thereof got recovered from his jhuggi No.21B71, Mauji Wala Bagh, Azadpur, Delhi, gold katran weighing 5 grams wrapped in a newspaper after picking it up from behind the idol of Lord Shiva. It was turned 3 into parcel, sealed and seized.
During investigation, it transpired that Rinku was juvenile. Accordingly separate proceedings were conducted against him and the matter put up before Juvenile Justice Board.
Satish Kumar Jha was not traceable and as such process under Section 82 CrPC had to be got against him. Ultimately, he was arrested on 08.05.2005 by Inspector Lekh Singh.
On 10.05.2005, Sachin @ Ashu accused was arrested while he was in custody in some other case.
Further it is case of the prosecution when application for holding of Test Identification Proceedings of the accused Rinku @ Vijay and Satish Kumar Jha was filed, they refused to participate in the proceedings.
On completion of investigation, challan was put in court.
5. Copies of documents relied upon by the prosecution were supplied to the accused free of costs U/s 207 Cr.P.C, by the committing Magistrate. Thereafter, case came to be committed to the Hon'ble Court of Session.
Charge
6. Prima facie case having been made out, charge was framed against the accused persons on 30.04.2012 as under: (1) for an offence under Section 392 read with Section 34 IPC against Sanjeev Sharma and Rohit accused;
(2) for an offence under Section 25 of Arms Act against Sanjeev Sharma accused;
4 (3) for an offence under Section 392 read with Section 397 IPC against Satish Kumar Jha accused;
(4) for an offence U/s 411 IPC and framed against Rohit accused. Accused persons pleaded not guilty to charge and claimed trial. Thereupon, prosecution was called upon to lead evidence.
Prosecution Evidence
7. In order to prove its case prosecution examined, following witnesses: PW1 HC Sanwar Mal Witness to disclosure statements made by Rohit, Rinku @ Vijay and Sanjeev Sharma on 28.04.2004; recovery of pieces of gold containing in a polythene, at the instance of the accused persons and about recovery of a knife at the instance of juvenile and recovery of 5 grams of gold at the instance of Rohit accused.
PW2 SI Satya Pal, Duty Officer To prove recording of FIR Ex PW2/A
PW3 Sh. Banmali Patra Complainantvictim
PW4 Dr. Anamika To prove MLC Ex PW4/A of the
complainant.
PW5 Retd. Inspector Baljeet Singh To prove as to how proceedings were initiated against juvenile.
PW6 Ct. Diwan Singh Who accompanied SI Lekh Singh during investigation.
PW7 Inspector Lekh Singh Investigating officer
Statement of Accused
8. When examined U/s 313 Cr.P.C. the accused persons denied all the incriminating circumstances appearing in evidence against him and claimed false implication.
5
Plea put forth by accused Sanjeev Sharma is as under: "I do not know the complainant or any of my coaccused. Once in April, 2004, I visited Monday market in the area of Karol Bagh. At about 7 7.30 pm, when I was taking bhalla papries at a shop, I was picked up by the police of PS Karol Bagh and taken to the police station. I have been falsely implicated in this case. "
Plea put forth by accused Rohit @ Veera is as under: "Police picked up me from my jhuggi situated in Mauji Wala Bagh, Lal Bagh. But I do not remember the date. At that time, police was accompanied by Vijay @ Tinku and 23 other boys. They also used to reside in the same locality."
Plea put forth by accused Sachin Verma is as under: "On the given date and time I was not present there. "
9. Arguments heard. File perused.
Learned Addl. P.P. has referred to the statement of complainant and the statements of the other prosecution witnesses to contend that the accusation levelled against each accused stands fully established and all of them deserve to be convicted and sentenced thereunder.
On the other hand, learned counsel for Sanjeev Sharma accused has contended that statement made by the complainant in court is not in consonance with the statement made by him before the police on the point of recovery of gold from this accused. Further it has been pointed out that there is no corroboration to the version of the complainant as no independent witness has been examined. Therefore the contention is that Sanjeev Sharma accused is entitled to acquittal.
On behalf of Sachin Verma accused it has been contended that his 6 name does not find mention in the statement made by the complainant and this fact creates doubt in the prosecution version regarding his involvement. It is submitted that complainant has come up with the version that he knew Sachin Verma accused even prior to the occurrence, he having his shop in the immediate neighbourhood, but even then he did not name him in his statement. Further it has been submitted that no recovery was made from Sachin Verma accused, which creates doubt in the case of prosecution regarding his involvement in commission of the crime.
As regards Rohit accused, it has been contended that Investigating Officer failed to join any witness from the public in support of its case regarding recovery of any gold from his jhuggi on the given date, time and place and that nonjoining of independent witness from the locality adversely affects the case of prosecution. Further it has beensubmitted that there are contradiction in the statements of prosecution witnesses regarding recovery at the instance of Rohit. It has also been submitted that name of Rohit or his description does not find mention in the statement made by the complainant which also goes to show that he has been falsely implicated in this case simply on suspicion.
10. Occurrence is alleged to taken place on 26.04.2004, at about 8 pm, at the workshop of Sh. Banmali Patra where he was present with his colleague Uttam Dass.
Ex PW2/B is copy of DD no. 26A recorded at 8.45 pm, at PS Karol Bagh on the same night to the effect that lady constable Maya of PCR informed that one thief had been apprehended in street no. 30, Bedonpura, Karol Bagh and 7 that he was being given beatings. SI Lekh Singh was directed to leave for the spot. Accordingly, SI reached the spot in the company of Ct. Dewan Singh.
The version narrated by the complainant before SI Lekh Singh was sent to the police station and it led to registration of this case vide FIR Ex PW2/A. Rukka was despatched from the spot at about 10 pm. FIR came to be registered at 10.15 pm. While appearing in Court as PW3 Sh. Banmali Patra, complainant has narrated the manner in which occurrence took place at the shop no. 3146, Bedonpura, Karol Bagh. He further stated that police reached the spot and he made statement Ex PW3/B. In his cross examination, complainant could tell as to who had informed the police and as to whether the two police officials, who reached the spot were from local police or PCR.
While appearing in Court as PW7 Inspector Lekh Singh has deposed about his arrival near Ganda Nala (drain) in the area of Bedonpura, Karol Bagh on the basis of DD no. 26A in the company of Ct. Diwan Singh.
PW6 Ct. Diwan Singh has supported version of the prosecution that regarding his departure from the police station on 26.04.2004 in the company of SI Yashwant and their arrival at the spot i.e. street no. 33, Atma Ram Park, Bedonpura, Karol Bagh, Delhi.
It is true that according to PW6 Ct. Diwan Singh, he named the Sub Inspector Yashwant in place of SI Lekh Singh but it does not create any doubt in the prosecution version regarding their arrival at the spot.
From the documentary evidence in the form of DD No.26A, statement of 8 PW7 Inspector Lekh Singh it transpirs that memory of PW6 Ct. Diwan Singh did not help him as to whom he actually accompanied from the police station. It is in the statement of PW6 Ct. Diwan Singh and PW7 Inspector Lekh Singh that complainant was found amongst the crowd present there and that complainant made statement, to which rukka was appended leading to the registration to this case.
From the aforesaid testimony, it cannot be doubted that police reached the spot after having left the police station Karol Bagh at about 8.45 pm. It also stands established that statement of the complainant was recorded at the spot and on its basis rukka was despatched from the spot itself at about 10 pm which led to registration of the FIR at 10.15 pm. Prompt lodging of report in the version of pointer towards genuineness of version narrated in Ex PW3/A before the police and rules out possibility of deliberation and consultation.
Ocular Account
11. As regards the manner in which the occurrence took place, PW3 Banmali Patra has stated that on 26.04.2004, when he was present at the aforesaid shop, at about 8 pm, Sanjeev Sharma, Satish Kumar Jha and Rohit accompanied by another came there.
All of them then asked him to display jewellery. At that time, his employee Uttam Dass was also present there. Both of them started displaying jewellery before the accused persons and they started picking up the same. They picked up a piece of gold of 24 carat, weighing 200 grams and 50 grams channt of gold (which was being used in preparing jewellery). Then all the 9 offenders started running away from the top floor. He succeeded in catching hold of Sanjeev Shrama, but the latter took out a knife from the pocket of his pant and caused him several stab wounds whereas his three companions made good their escape.
On arrival of the police he produced Sanjeev Sharma before them. Police recovered from Sanjeev Sharma channt of gold and knife. Both items were seized by the police.
The complainant on seeing all the "four accused present in Court, identified them saying that they were involved in commission of crime on the aforesaid night at his shop.
It is significant to note that the witness was put leading question by learned Addl. PP after seeking permission from the Court. When so examined, complainant admitted that in his statement Ex PW3/B (made before the police) he stated that "three persons" had entered in shop.
There is no explanation from the complainant as to why he stated in Ex PW3/B that only three persons had entered the shop whereas in Court he stated that all the four accused had entered the shop. So this is an unexplained improvement in his statement.
In his cross examination, PW3 admitted that shop of Sachin accused was on the right side of his shop on the same floor and Sachin had taken the shop on rent. He could not specifically state in Court if Sachin accused had also entered his shop. The witness tried to explain that his shop being of small, he could not say if Sachin had entered the shop. According to the 10 witness, on the night of occurrence, shop of Sachin was lying closed. He candidly admitted in his cross examination to have come to know of involvement of Sachin accused after he had made statement before the police. Admittedly, he so learnt from the police but could not tell as to after how many he learnt about involvement of Sachin accused.
Had Sachin been present on the given date time and place, he being immediate neighbour of the complainant would have specifically named him in Ex PW3/B before him after the occurrence. He named Sachin and identified him in Court while making statement on 26.03.2013. But fact remains that he did not name Sachin as one of the intruders/offenders. All this goes to show that the complainant either did not see Sachin with coaccused at the spot or id not know at the time he made statement Ex PW3/B know that Sachin was one of the offenders involved in the commission of the crime.
As regards other two offenders, as noticed above, Ex PW3/B, statement made before the police he named only Sanjeev Sharma. Therein he did not name Satish and Rohit accused. Had Satish and Rohit entered his shop and committed crime, complainant having opportunity to see them for sufficient time, while making statement Ex PW3/B he must have given their description. However, in Ex PW3/B no description of any of the accused other than Sanjeev Sharma finds mention.
Since Satish and Rohit were neither specifically mentioned nor their description finds mention in Ex PW3/B, consequent upon their arrest, the Investigating Officer should have got conducted their Test Identification 11 Proceedings.
In his statement PW7 Inspector Lekh Singh stated that Satish Kumar Jha refused to participate in Test Identification Proceedings. In this regard, he proved his application Ex PW7/K and proceedings Ex PW7/L. But no step he nowhere deposed to taken steps for Test Identification Proceedings of Rohit accused.
As noticed above, Sh. Uttam Dass colleague of the complainant was an eye witness to the occurrence, but prosecution could not secure his presence despite ample opportunities. Therefore, regarding occurrence, main stay of the prosecution is on the statement of PW1 Banmali Patra.
It is in the statement of the complainant (made before the police) that when three boys involved in commission of crime stated running by climbing down stairs, he tried to catch hold hold one of them but the said offender caused injuries on his thigh with a knife. He further stated therein that although he suffered injuries, he continued to raise alarm and with the help of public only, one of the offenders name Sanjeev Sharma was apprehended.
As regards Sanjeev Sharma, while appearing in Court, complainant fully supported the version narrated by the him before the police regarding involvement of Sanjeev Sharma in commission of the crime, his attempt to flee away and that he was apprehended with the help of public . He further supported the the prosecution version regarding infliction of knife injury on his person by Sanjeev Sharma accused. Name of Sanjeev Sharma finds specifically mentioned in Ex PW3/B. It also stands recorded therein that 12 Sanjeev Sharma was produced before the police and when police conducted his personal search, he was found in possession of a buttondar knife. The manner in which knife was sealed and seized stands recorded therein.
DD No. 26A recorded at the police station at 8.45 pm also reveals that one thief had been apprehended and persons were giving him beatings. This lends corroboration to the version of the complainant regarding apprehension of Sanjeev Sharma at the spot soon after the theft.
PW7 Inspector Lekh Singh and PW6 Ct. Diwan Singh also supported the version narrated by the complainant that Sanjeev Sharma accused was produced before them in street.
As regards recovery of knife, PW6 and PW7 have again supported the version of the complainant by stating that knife was recovered from the right side pocket of the pant of Sanjeev Sharma accused. Its sketch Ex PW3/A was prepared. The knife was turned into a parcel and sealed with the seal bearing impression YS and then seized memo Ex PW3/C. Ex PW7/B is the site plan depicting point 'A' as the place of occurrence and from where the three boys ran away. Point B is the place from where Sanjeev Sharma was apprehended by public. It is at the end of street no. 33. This document also lends corroboration to the version of prosecution regarding arrest of Sanjeev Sharma accused soon after the occurrence.
Rough sketch Ex PW3/A of the knife bears attestation of Ct. Diwan Singh and Banmali Patra. It was prepared by Inspector Lekh Singh at the spot. Earlier Ex PW3/C regarding seizure of knife was also prepared at the 13 spot. It bears attestation of the aforesaid two witnesses. Attestation of these two documents corroborate the prosecution version regarding arrest of Sanjeev Sharma from street no. 33 soon after the occurrence and regarding recovery of knife.
Medical Evidence
12. Prosecution has examined PW4 Dr. Anamika to prove medicolegal examination of the complainant at Lady Hardinge and Medical College and Hospital on 27.04.2004. As per MLC Ex PW4/A prepared by this witness, the complainant was brought to the hospital on 27.04.2004 at about 1.45 am. The doctor observed following injuries on the person of the complainant as under: "1. There was a cut measuring 1 cm above left eyebrow.
2. There was a cut of 1.5 cm X 0.5 cm lateral to the left eye.
3. Cruciat Lacerated wound above lip.
4. Lacerated wound measuring 2 cm x .5 cm on the frontal aspect of left thigh."
According to the doctor, all the injuries were caused with the sharp weapon. This medical evidence also lends corroboration to the statement of the complainant regarding use of knife by one offender while he tried to catch hold of him during his escape from the spot after the occurrence.
Recovery of knife & gold from Sanjeev Sharma, accused
13. While making statement in court as PW3, complainant stated about recovery of "Chhant of gold" from Sanjeev Sharma, accused and further that it was turned into parcel and sealed in his presence. When case property was produced in court by the witness himself he stated that the Chhant brought by him to the curt was 11 gm and formed part of stolen property. He further 14 stated that it was recovered from Sanjeev Sharma accused and from an other in his presence.
From the aforesaid testimony of the complainant, it appears to be his version that stolen property was recovered not only from Sanjeev Sharma accused apprehended at the spot, but also from another person. But the complainant nowhere stated as to who was the other person from whom the stolen property was recovered.
It is not case of prosecution that any gold was recovered from co accused Sanjeev Sharma, in presence of the complainant. In Ex.PW3/B i.e. statement made before police, complainant nowhere stated about any recovery of gold or in the form of chhant from Sanjeev Sharma accused. Therein, he deposed about recovery of a knife from Sanjeev Sharma accused. That is why Learned Addl. P.P. sought permission from the court to put leading questions to the complainant on the point that no recovery of gold was made from Sanjeev Sharma accused. But the complainant denied this suggestion put forth by learned Addl. P.P. that no gold was recovered from Sanjeev Sharma accused.
The complainant stated to have seen some of the gold recovered by the police from Sanjeev Sharma accused. In his cross examination, the complainant stated that he had seen chhant at the police station after its recovery on the night of crime itself.
Version narrated by PW3 - complainant regarding recovery of chhant from Sanjeev Sharma accused at the spot does not find corroboration from the 15 statements of PW6 and PW7. None of them has deposed about recovery of gold or in the form of chhant from Sanjeev Sharma accused soon after he was produced before them in Street no.33. Had any gold (even in the form of chhant) been recovered form Sanjeev Sharma accused in street no.33, these two witnesses would not have omitted to depose about the same. Similarly, recovery of gold or in the form chhant from Sanjeev Sharma accused soon after his arrest in street no.3 must have been mentioned by the complainant in his statement Ex.PW3/B or by SI Lekh Singh in the rukka appended to the said statement and despatched from the spot. There is no recovery memo pertaining to recovery of gold or chhant from Sanjeev Sharma accused in street no.33. The only recovery memo pertaining to Sanjeev Sharma accused is in respect of recovery of knife.
In view of the above discussion it becomes doubtful if any gold or chhant belonging to the complainant was recovered from Sanjeev Sharma accused soon after his arrest in presence of the complainant.
However, in view of the cogent and convincing evidence it stands established that Sanjeev Sharma accused was apprehended at the spot soon after the robbery and found in possession of the knife.
Involvement of Sachin Verma accused
14. While appearing in court complainant has admitted that he knew Sachin Verma accused as he was having his shop near his shop. As discussed above, had the complainant seen Sachin Verma accused with the offenders, he would have specifically named him in his statement Ex.PW3/B, but he did 16 not name him as one of the culprits. Admittedly, he came to know about involvement of Sachin Verma subsequently but he has not explained as to how Sachin Verma came to be arrested when he had not raised any accusing finger against him. No incriminating material was recovered from Sachin Verma accused. Therefore, prosecution has failed to substantiate the accusation levelled against Sachin Verma accused.
Involvement and arrest of Rohit accused
15. Case of prosecution is that Sanjeev Sharma accused made disclosure statement and it led to apprehension of juvenile on 29.03.04. Disclosure statement of Sanjeev Sharma accused is Ex.PW7/C. This disclosure statement bears attestation of Ct. Ved Parkash.
Prosecution has not examined Ct. Ved Parkash to lend corroboration to the prosecution version regarding disclosure statement said to have been made by Sanjeev Sharma accused. As per prosecution version at the pointing out of juvenile, Rohit was arrested from Moji Wala Bagh, Adarsh Nagar, and on the basis of his disclosure statement, he got recovered 5 gms of gold katran form his jhuggi situated in the same area. It may be mentioned here that in his statement Ex.PW7/C Sanjeev Sharma accused did not disclose the addresses of the coaccused or that of juvenile. So, it remains unexplained as to how Inspector Lekh Singh succeeded in apprehending the juvenile.
Prosecution has examined HC Sanwar Mal as PW1. According to this witness, on 29.04.04, he, SI Lekh Singh and another Constable were present at PS Karol Bagh while Rohit, Sanjeev Sharma and the juvenile were in 17 custody. It may be mentioned here that while appearing in court, the Head Constable identified Sanjeev accused. He identified accused Rohit as the juvenile. So he did not correctly identify Rohit accused. Further according to PW1, all the three accused made disclosure statements that they could get discovered stolen property i.e. gold from jhuggi, in the area of Moji Wala Bagh, Azadpur. The witness then proved disclosure statement Ex.PW1/A made by Sanjeev and disclosure statement Ex.PW1/B made by Rohit. Further according to him, all the three accused accompanied them to jhuggi in the area of Moji Wala Bagh and Rinku @ Vijay (who is actually juvenile) picked up a polythene from under the pillow lying on a bed in the jhuggi. Polythene was found to contain gold in pieces. SI Lekh Singh turned the same into parcel, sealed it and seized the same. He further stated that one knife produced by Rinku (juvenile) was also seized by SI Lekh Singh after the same was turned into a parcel and sealed.
However, when we advert to the statement of PW7 Inspector Lekh Singh, there is no mention that juvenile made such and such disclosure statement or that the juvenile and his two companions made disclosure statements in presence of HC Sanwar Mal on 29.04.04 or that the juvenile led to any jhuggi or got recovered gold or produced any knife. This creates doubt in the version narrated by PW1 HC Sanwar Mal about recovery of any stolen property by the juvenile.
According to PW1 HC Sanwar Mal, Rohit accused also led them to another jhuggi and got recovered from there 5 gms of gold, which was seized 18 vide memo Ex.PW1/C. PW7 Inspector Lekh Singh has also deposed about recovery of 5 gms. of gold at the instance of Rohit, accused from his jhuggi and about its seizure memo Ex.PW1/C. Statement of PW7 is in contradiction with the statement of PW1 HC Sanwar Mal on significant aspects. Whereas according to PW1 HC Sanwar Mal other accused also accompanied them at the time Rohit accused took to his jhuggi, but PW7 SI Lekh Singh nowhere stated that any other accused was also accompanying them at that time.
According to PW1, HC Sanwar Mal, he accompanied SI Lekh Singh and the other from police station after recording disclosure statements of all the three accused, including the juvenile, and then made recoveries, but PW7 Inspector Lekh Singh has given different version. According to PW7, on 29.04.04, they apprehended Rohit from in front of petrol pump at 9.00 p.m. and from there, they reached jhuggi of Rohit at about 10.45 p.m. He did not state to have started from the police station in the company of all the three accused after recording their disclosure statements. Rather, according to him, from in front of the petrol pump they straightway reached the jhuggi of Rohit. In this way statement of Inspector is not in consonance with the version of PW1 even regarding their visit to the jhuggi of the juvenile.
In suchlike cases of recovery from any building or house effort should be made to join respectable persons from the locality or persons from the public for the purpose of transparency. According to PW1 HC Sanwar Mal and PW7 Inspector Lekh Singh , persons from the locality were asked to join the 19 party, but none came forward. No notice was admittedly issued by the Inspector to any of the neighbours who refused to join the investigation. Admittedly, Inspector Lekh Singh did not ask Pardhan of the jhuggi cluster to join the party. In the given circumstances, absence of corroboration from independent source adversely affects the case of prosecution.
It is significant to note that the IO failed to get any test identification proceedings conducted in respect of the case property said to have been got recovered by Rohit accused. There is no explanation in this regard. As noticed above, according to PW3 - complainant, "chhant" was recovered from accused Sanjeev Sharma soon after he was arrested in street no.33 but this version stated by him is not in consonance with the version of the prosecution. Therefore, prosecution version regarding recovery of chhant / katran from Rohit accused also becomes doubtful.
Use of Knife Although prosecution has led evidence that complainant was attacked with a knife, while the offenders were making good their escape with the stolen property, and that a knife was recovered from Sanjeev Sharma, accused, the knife was not sent to FSL for analysis. In absence of any evidence that any blood stains were observed on the knife recovered from Sanjeev Sharma accused, it cannot be said that he used this knife in inflicting injuries on the person of the complainant while making good his escape.
In this case, prosecution has not proved on record any notification prohibiting possession of knife recovered from Sanjeev Sharma, accused. For 20 want of any notification, charge for the offence U/s 25 of Arms Act framed against Sanjeev Sharma falls to the ground.
From the above discussion, this court comes to the conclusion that prosecution has fully established its case against accused Sanjeev Sharma that he was one of the offenders, who committed robbery at the shop of the complainant on the night of 26.04.04 at about 8.00 p.m. and that the complainant managed to capture Sanjeev Sharma accused while he was fleeing away whereas his companions made good their escape. Although prosecution has not been able to establish accusation levelled against the co accused Rohit and Sachin Verma, there is no doubt that atleast three persons including Sanjeev Sharma participated in commission of the robbery at the shop of the complainant. Even if prosecution has failed to substantiate accusation levelled against Rohit and Sachin Verma, having regard to the number of assailants, this court holds Sanjeev Sharma guilty of offence U/s 392 read with Sec.34 IPC.
In view of the aforesaid findings, Sanjeev Sharma, accused is convicted of the offence U/s 392 read with Sec.34 IPC. But he is acquitted of the charge U/s 25 of Arms Act.
As a result of the above findings, Rohit and Sachin Verma are acquitted of the charge U/s 392 Read with Sec.34 IPC. Rohit is also acquitted of the offence U/s 411 IPC.
Let Sanjeev Sharma convict be heard on the point of sentence.
Announced in Open Court
on 01.04.2014 (Narinder Kumar )
Additional Sessions Judge(Central)/Delhi.
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IN THE COURT OF SH. NARINDER KUMAR
ADDITIONAL SESSIONS JUDGE (CENTRAL): DELHI
SC No.11/2012
FIR No.332/2004
PS Karol Bagh
State
Versus
Sanjeev Sharma .......Convict
ORDER ON SENTENCE
01.04.2014
Present: Sh. Rakesh Mehta, Addl. P.P. for State.
Convict Sanjeev Sharma with counsel Sh. Sandeep Sharma. I have heard learned Addl. P.P., Sanjeev Sharma convict and his learned counsel on the point of sentence.
Convict and his learned counsel have prayed for leniency on the point of sentence submitting that convict is to support his family, which includes two children.
On the other hand, learned Addl. P.P. submits that having regard to serious nature of the offence, the convict be sentenced without showing any leniency.
As held above, accused - convict did commit robbery of the gold at the shop of the complainant in the company of two others and when 22 complainant chased them one of them attacked him with knife and inflicted injuries on his person. The convict was apprehended in the same street after chase.
Record reveals that the convict remained in custody during investigation, inquiry and trial from 29.04.2004 to 08.07.2004.
Having regard to facts and circumstances of the case including the submissions made by the convict, he is hereby sentenced to undergo RI for three and a half years (3 ½ years) and to pay fine of Rs.10,000/ or in default of payment of fine, to undergo SI for one month, for t7he offence U/s 392 read with Sec.34 IPC.
The period of imprisonment already undergone during investigation, inquiry and trial to be set off against the period of sentence awarded vide this judgment.
Satish Kumar Jha is 'Proclaimed Offender'. Therefore, file is ordered to be consigned to record room with direction that it shall be taken up as and when he appears or is produced before the court.
Announced in Open Court
on 01.04.2014 (Narinder Kumar )
Additional Sessions Judge(Central)
Delhi.
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