Delhi District Court
State vs Javed @ Galla Phad on 26 September, 2011
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THE COURT OF V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSION JUDGE : ROHINI COURTS : DELHI
IN THE MATTER OF :
SC No.285/06
FIR No.952/05
PS UTTAM NAGAR
U/s.394/397/412/34 IPC
State
Versus
1. Javed @ Galla Phad
s/o. Sadiq
r/o. C315, JJ Colony,
Hastsal Road, near Masjid,
Uttam Nagar,
New Delhi.
2. Amarjeet (since proclaimed offender)
s/o. Mahender
r/o. Vegabond, Delhi,
permanent address:
Village Mujaffarpur,
Malutara,
District Mujaffarpur,
Bihar.
3. Bantoo @ Dev Prakash (since proclaimed offender)
s/o. Ghanshyam
r/o. Battery Wali Gali,
Behind Allahbad Bank,
Nawada,
Uttam Nagar,
New Delhi.
FIR NO.952/05
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4. Satpal
s/o. Mange Ram
r/o. B1/81, Kiran Garden,
Matiala,
Uttam Nagar,
New Delhi.
5. Jai Ram Dass
s/o. Hari Kishan Lal
r/o. C193, Hastsal Colony,
Uttam Nagar,
New Delhi.
6. Suresh
s/o. Ishwar Singh
r/o. H.No.720, Nawada Village,
Uttam Nagar,
New Delhi.
Date of Receipt : 13.04.2006
Date of Conclusion of arguments: 19.09.2011
Date of Decision : 24.09.2011
JUDGMENT :
1. On the intervening night of 1819.10.2005, Rajbir Bhargav closed his factory, situated at Plot No.20, Matiala Extension. Watchman Arun Kumar was on the factory. During night, at about 3.00 AM, on hearing the noise, Arun Kumar woke up, switched on the light and came out of his room, but when he came out of his room, two persons caught hold of him. He found that lock of the gate of the factory had already been broken. He was slapped and forced to sit inside the room. He was threatened by putting knife at his abdomen, that if he raised alarm, he FIR NO.952/05 Page 2 of 16 3 would be killed. Thereafter, they removed the articles from the factory and fled away.
2. On 23.12.2005, police apprehended Amarjeet, Bantoo @ Dev Prakash and Javed. From their possession, part of the stolen articles were recovered. They confessed about the commission of crime. They led the police team to the shops of junk vendors namely Jai Ram, Suresh Kumar and Satpal. From their possession also, part of the robbed articles were recovered. The other accused persons i.e. Raju and Sonu could not be arrested. After completion of investigation, the chargesheet was filed against the accused persons. Ld. M.M. after complying with the provisions of Section 207 Cr.PC, committed the case to the Sessions Court, as the offence punishable U/s. 397 & 412 IPC is exclusively triable by the Sessions Court.
3. Accused Javed was charged for the offence punishable U/s.397 IPC;
accused Amarjeet and Bantoo @ Dev Prakash were charge for the offence punishable U/s.394 r/w. Section 34 of IPC; accused Jairam, Suresh and Satpal were charged for the offence punishable U/s.412 IPC, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for the prosecution evidence.
4. During trial, accused Amarjeet and Bantoo @ Dev Prakash absconded and they were declared proclaimed offenders.
5. Prosecution in order to bring home the guilt of accused, examined eleven witnesses.
6. Ct. Bijender, who was part of the team and apprehended the accused FIR NO.952/05 Page 3 of 16 4 persons and effected the recovery, was examined as PW1. He deposed about the arrest and recovery of the accused persons.
7. Rajbir Bhargav, the complainant was examined as PW2. He deposed that on 19.10.2005, in the morning, his worker Arun Kumar telephoned him that during the night, at about 3.00 or 3.30 AM, some persons came to the factory, gave him beatings and had stolen the tools, auto parts and motors. He also informed the police at 100 number. He identified the case property. During cross examination, he stated that Arun Kumar was working with him for the last about 67 years, before the incident. He also stated that there was no phone installed in his factory and the nearest PCO was about 1 KM from the factory. He denied the suggestion that Arun sold the articles from the factory and concocted the story.
8. Arun Kumar was examined as PW3. He stated that on 18.10.2005, he went to sleep at about 10.00 PM, after closing the gate. At about 3.00 AM, he heard some noise on the gate of factory. He woke up and switched on the light of room. He came out with a stick in his hand, two persons caught hold of him. The lock of the gate had already been broken. They slapped him and took him inside the room. Two persons remained with him in the room and they were having knives in their hands, which they put on his stomach. There were 45 more persons with those two persons and they threatened him that if he would raise alarm, he would be killed. Thereafter, they collected the goods in the Katta (bag) and fled away alongwith the property. In the morning, at about 8.00 AM, he made a telephone call to the factory owner from an STD booth. He identified accused Bantoo @ Dev Prakash, Amarjeet FIR NO.952/05 Page 4 of 16 5 and Javed as the persons, who committed the offence and stated that other persons are not present in the Court. He identified accused Javed as the person, who was having knife. During cross examination, he stated that he had left that services about two and a half years back. He denied the suggestion that Javed and Amarjeet were his friends, or that he used to call them in the factory. He denied the suggestion that he identified the accused persons at the instance of IO.
9. HC Nasib Singh was examined as PW4. He was also part of the team, which apprehended the accused persons and effected recovery and deposed on the same lines.
10. ASI Anju Kumari was examined as PW5. She was working as Duty Officer and recorded the FIR and on the basis of FIR, she proved the carbon copy of the FIR as Ex. PW5/A.
11. HC Anil Kumar was examined as PW6. He proved the entry in Register No.19 as Ex. PW6/A, regarding deposit of the case property in the Malkhana.
12. Sh. Anil Kumar Sisodia, who was working as Ld. MM at that time, was examined as PW7. He proved the TIP proceedings. It is important to note that all the accused persons refused to join the TIP proceedings.
13. HC Nainpal was examined as PW9. He reached the factory on receiving the information about the commission of offence. On the spot, he also called the Crime Team. He recorded the statements of Rajbir PW2 and got registered the FIR.
14. HC Richhpal was examined as PW10. He was the member of team, which apprehended the accused persons and effected recovery. He was cross examined by Ld. Addl. PP, as he did not fully support the case of prosecution.
15. ASI Mahender Singh, who apprehended the accused persons and also FIR NO.952/05 Page 5 of 16 6 effected the recovery alongwith other police officials, was examined as PW11. He did not fully support the case of prosecution and was cross examined by Ld. Addl. PP.
16. Thereafter, prosecution evidence was closed.
17. Statements of accused persons were recorded U/s.313 Cr.PC, wherein they denied the entire prosecution evidence and stated that they have been falsely implicated. They wished to lead defence evidence, but closed their defence evidence without examining any witness.
18. Thereafter, the case was fixed for arguments.
19. I have heard the Ld. Addl. PP for the State, Ms. Poonam Mahajan, Ld. Counsel for accused Javed, Suresh and Jairam and also Ld. Amicus for accused Satpal, and perused the record.
20. Ld. Addl. PP submitted that it is a case of dacoity, committed on the intervening night of 1819.10.2005 in the factory situated at Plot No.20, Matiala Extension. Ld. Addl. PP submitted that on 18.10.2005, PW2 went home after closing his factory. PW3 Arun Kumar was left at the factory. He also went to sleep at about 10.00 PM, after locking the gate of the factory. He woke up after hearing the noise at about 3.00 AM. He switched on the light of the room. When he came out, he was caught hold by two accused persons. He found that the lock of the gate had already been broken. He was slapped and forced to sit in his room. He stated that there were 45 more persons. He was threatened on the point of knife by accused Javed that if he would raise alarm, he would be killed. He also identified the other two accused namely Amarjeet and Bantoo @ Dev Prakash that they were also there and thereafter, they all took away the articles from the factory, after putting them in Kattas. Ld. Addl. PP submitted that the testimony of this witness inspires FIR NO.952/05 Page 6 of 16 7 confidence. There is nothing on record that he had any reason to falsely implicate the accused persons. Defence had also not been able to bring on record anything to show that PW3 had any reason to depose falsely against the accused persons. From the testimony of PW3, it is clear that accused Javed alongwith his other accused persons and two of them were Amarjeet and Bantoo @ Dev Prakash (since proclaimed offenders), committed the dacoity in the factory, situated at Plot No.20, Matiala Extension, and during the dacoity, accused Javed used a knife, which he pointed on the abdomen of PW3 and extended threat that if he would raise alarm, he would be killed. Ld. Addl. PP submitted that PW2 is the owner. He proved the presence of Arun Kumar in the factory at the relevant time and that is not under challenge. The defence has given a suggestion to PW2 that the articles were removed by PW3 himself, which was denied by PW2. Ld. Addl. PP submitted that keeping in view the testimonies of PW2 and PW3, it is clear that the dacoity was committed by accused Javed alongwith his other coaccused and in the commission of dacoity, accused Javed used the knife.
21. Ld. Addl. PP further submitted that on 23.12.2005, ASI Mahender Singh received a secret information that the persons, who committed dacoity at Plot No.20, Matiala Extension, are present in Mansa Ram Park. He met the other police officials namely Ct. Bijender PW1, Ct. Nasib Singh PW4, HC Richhpal PW10 and also Ct. N.V. John. They all reached Mansa Ram Park alongwith secret informer. On the pointing out of secret informer, three accused namely Javed, Bantoo @ Dev Prakash and Amarjeet were apprehended. They confessed about the commission of crime. From the possession of accused Bantoo, three cutting tools were recovered, which he was keeping after wrapping them in the newspaper. From the possession of accused Amarjeet, FIR NO.952/05 Page 7 of 16 8 five yoke teeth were recovered and from the possession of accused Javed, one electric motor was recovered. Accused Javed pointed out the shop of Jairam and from there, 40 cross bearings and grinder were recovered. Accused Bantoo @ Dev Prakash led the police team to the shop of Satpal and from there, one electric motor was recovered and accused Amarjeet led the police team to the shop of Suresh and got recovered two electric motors. Ld. Addl. PP submitted that these recoveries were effected at night. No public witness could be joined, as despite efforts nobody agreed, But as the police witnesses examined as PWs 1,4,10 & 11 have supported and corroborated each other and there is nothing on record to disbelieve them, their testimonies cannot be discarded merely because they are from the police force. They have proved the recovery of stolen articles from the possession of accused Javed and also other accused persons. It is prayed that accused Satpal, Jairam and Suresh be held guilty for the offence punishable U/s.412 IPC, for having been found in possession of property looted in dacoity, as the prosecution has discharged its onus.
22. Ld. Defence Counsel submitted that there are many contradictions in the story of prosecution. Prosecution has not been able to prove its case beyond doubt. The presence of Arun Kumar itself is very doubtful. The incident had taken place, according to him at about 3.00 AM, but he did not inform either to the police, or the owner at 3.00 AM. This part of the testimony of PW3 itself creates doubt, as to why he did not inform the police, or the owner immediately after the incident. Ld. Amicus further submitted that in fact PW3 himself removed the articles from the factory, sold them somewhere and later on in order to save himself, he named the accused persons in this case. Ld. Counsel submitted that identification of accused Javed for the first time in the FIR NO.952/05 Page 8 of 16 9 Court, after the commission of dacoity, that also at night time, cannot be relied upon. The benefit must be given to the accused and he be acquitted. PWs 2 & 3 had also contradicted each other. PW2 stated that PW3 had left his services only about 67 months back, whereas, as per PW3, he left the services for about two and a half years back, whereas both the witnesses were examined on the same day. Ld. Counsel also submitted that this itself creates doubt about the truthfulness of the story of prosecution. Ld. Counsel further submitted that so far as evidence regarding the apprehension of accused persons and recovery is concerned, that is very much doubtful. Four witnesses PWs 1,4,10 & 11 had been examined by the prosecution to prove and establish its case regarding the apprehension of accused persons and recoveries from them. No public witness had been joined at the place of apprehension, or the recovery. Though, admittedly public persons were available. Mansa Ram Park itself is situated at a very crowded place, but no efforts whatsoever were made by the prosecution to join the public witnesses in this case. It is also important to note that it was month of December and the time was beyond 6.00 PM, when the proceedings started. Admittedly, it was pitch dark in the jungle, from where the accused persons were admittedly arrested. There was no arrangement of light, but surprisingly, all the writing work was done by the police officials in the jungle itself, without any facility of the light. Ld. Amicus submitted that according to the evidence, the rukka was sent at 8.00 PM and the constable came back after getting the FIR registered, at about 8.15 PM. Ld. Amicus submitted that it is something impossible that in pitch dark police continued to carry on the proceedings in the jungle. This itself creates doubt about the truthfulness of the story of prosecution. There are other contradictions in the testimonies of the witnesses. According to FIR NO.952/05 Page 9 of 16 10 PW1, after completing the proceedings at Mansa Ram Park, they left for Chowki, whereas according to the other witnesses, they firstly went to the shop of Jairam, thereafter, they went to the shop of Suresh and then Satpal, only thereafter, they returned to the Chowki. There is also dispute as to at what time, they left the Mansa Ram Park, from where the accused persons were apprehended and at what time, they apprehended the other accused persons. According to PW4, they left Mansa Ram Park at about 9.30 PM, but according to PW11, the IO of case, they reached at the shop/house of accused Jairam at about 6.45 PM, whereas, according to PW4, they reached the shop of Jairam at about 10.30 PM. According to PW4, from the shop of Jairam, they went to the shop of Suresh and they reached there at about 11.30 PM, whereas according to PW11, they reached the shop of Suresh at about 8.00 PM. According to PW4, from the shop of Suresh, they reached the shop of Satpal at about 12.30 AM, whereas, according to PW11, they reached the shop of Satpal at about 9.00 PM. it is important to note that according to him, shop of Satpal was found open at 12.30 AM and there were also other shops nearby. Similarly, he stated that there were also other shops, near the shops of Jairam and Suresh. He also stated that Jairam was found sitting on Takhat, whereas, according to PW11, it was a cot and no shops were situated near the shop of Jairam. They have also contradicted each other on the point of recovery, as to what was recovered from whom. Similarly, PW10 also contradicted other witnesses. He stated that accused Amarjeet was arrested at about 6.35 PM and they reached Nawada at about 7.00 PM and accused Suresh was found present at his shop and according to him, from the shop of Suresh, they reached the workplace of Jairam and thereafter to the shop of Satpal. According to him, the recoveries were FIR NO.952/05 Page 10 of 16 11 effected from the godowns of Suresh and Jairam. He also stated that so far as accused Satpal is concerned, recovery was effected from his house, whereas, witnesses PW4 and PW11 stated that the recovery was effected from his shop and not from his house. Ld. Amicus submitted that keeping in view all these contradictions and the testimonies of these four witnesses and fact that no public witness joined, creates doubt regarding the truthfulness of the story of prosecution and prayed that accused persons be acquitted.
23. After hearing the arguments and going through the record, I found that there is two sets of evidence, firstly about the incident of the intervening night of 18 19.10.2005 and then the evidence about the arrest and recovery. PW3 is the only eye witness of the incident of dacoity, which was committed at about 3.00 AM on the intervening night of 1819.10.2005. PW3 has specifically stated that he wok up due to the noise, switched on the light and when he came out of his room, he was overpowered by two persons; he was slapped; he was taken inside his own room and was forced to sit; he was threatened with knife that if he would raise alarm, he would be killed. He identified accused Javed, as the person who had shown knife to him. PW3 had stood through the test of cross examination. There is nothing on record to prove and establish that he had enmity with accused Javed, or had any reason to falsely implicate the accused. It was suggested to the witness that accused Javed and Amarjeet were his friends, but he denied the suggestion. If this suggestion is considered, then it is clear that there was no enmity between PW3 and accused Javed and also there is no reason for him to name Javed, he being his friend. Further more, Ld. Counsel argued that PW3 had himself stolen the property from the factory and falsely named the accused and that is why he did not inform the owner immediately. Here, it is important to that not FIR NO.952/05 Page 11 of 16 12 only PW3 but PW2 also denied the suggestion that PW3 himself committed the theft in the factory. So far as passing on the information is concerned, according to the evidence, there was no telephone installed in the factory and PW3 was also not having any phone. According to PW2, the nearest PCO was about 1 KM from the factory and according to PW3 also, he informed his owner from STD Booth. Under the circumstances, in my opinion, the delay in informing the owner about the incident by PW3 is explain and on this count, there is only one contradiction in the testimony of PWs 2 & 3. As according to PW3, PW3 le3ft his services about 67 months back, but according to PW2, he left the services about two and a half years back. In my opinion, this contradiction has no relevancy so far as the present incident is concerned and also does not go to the root of the controversy and hence, no benefit can be given to the accused on this count. As mentioned above, PW3 had stood through the test of cross examination. There is no reason to disbelieve the testimony of PW3. He has fully supported the prosecution case and identified the accused Javed, as the person who committed the dacoity alongwith his other coaccused and also used the knife in the commission of offence.
24. Now, I take the case of apprehension of accused and recovery. There are four witnesses on this point i.e. PWs 1,4,10 & 11. No public witness has been joined. Though, admittedly, the place from where the accused Javed, Amarjeet and Bantoo @ Dev Prakash were apprehended, was situated in a thickly populated area. According to the prosecution case, they were apprehended on 23.12.2005 from Mansa Ram Park. It is important to note that it was month of December and police apprehended the accused persons at around 6.45 PM. all the proceedings were recorded in the jungle. According to the evidence, the proceedings continued there upto 9.30 PM, as FIR NO.952/05 Page 12 of 16 13 deposed by PW4. On the arrest memos of accused, the time is mentioned as 7.00 PM, 7.10 PM & 7.15 PM and the proceedings continued upto 9.00 PM. Admittedly, there were no source of light in the dark and it was pitch dark, as deposed by the witnesses. Under the circumstances, I fail to understand, how ASI Mahender SinghPW11, recorded the proceedings in the dark. This itself creates doubt about the truthfulness of the story of prosecution. The witnesses have also contradicted each other, as to what was recovered from whom. PW1, when appeared in the witness box, does not speak about the recovery from the other accused persons and he was also not able to identify the accused properly. He identified accused Satpal as Bantoo. He also deposed that four boys were sitting in the jungle and three boys were apprehended, whereas all other witnesses deposed that only three boys were sitting and all the three boys were apprehended. According to the prosecution case, after arresting the accused Amarjeet, Javed and Bantoo, the accused persons led them to the shop of Jairam, from there, they went to the shop of Suresh and then to the shop of Satpal. According to PW10, they reached the place of Jairam at about 7.15 or 7.20 PM; reached the shop of Satpal at about 7.30 or 7.40 PM and that of Suresh at about 7.00 PM. he has changed the sequence. According to him, firstly they reached the shop of Suresh, then of Jairam and then of Satpal. According to the prosecution case, the recovery was from the shops, but according to PW10, the recoveries were from the godowns and not from the shops and so far accused Satpal is concerned, it was not the shop, but it was his house, but the other witnesses stated that it was the shop and not the house. PW11 did not fully support the prosecution case and was also cross examined by Ld. Addl. PP. He also stated that they reached the place of Jairam at about 6.45 FIR NO.952/05 Page 13 of 16 14 PM, but according to the documents prepared by him, at that time, he was still at Mansa Ram Park, as the last arrest memo was prepared at about 7.00 PM. According to PW4, they reached the shop/house of Satpal at about 12.30 AM and surprisingly, according to him, at that time, his shop was lying open. He also stated that there were other shops near the shop of Jairam, but PW11 contradicts him and says that there were no other shops, as the shop of Jairam was situated in residential area. All these contradictions in the testimony of the witnesses, coupled with the fact that no public witness was joined and the police witnesses also turned hostile and were cross examined by Ld. Addl. PP on the point of recovery, in my opinion, prosecution has not been able to prove the recovery from the possession of accused Satpal, Jairam and Suresh. No doubt, this evidence also creates doubt about the manner of arrest of accused Javed and recovery from him, but there is other overwhelming evidence against the accused, regarding his involvement in the commission of offence of dacoity, as deposed by PW3.
25. Keeping in view the entire evidence, I hold accused Javed guilty and convicted him for the offence punishable U/s.397 IPC. So far as, other three accused namely Suresh, Satpal and Jairam are concerned, I acquit them, giving them benefit of doubt.
Announced in open Court
on 24th September, 2011 (V.K. BANSAL)
ADDL. SESSION JUDGE
ROHINI : DELHI : 24.09.2011
FIR NO.952/05
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IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 285/06 FIR No. 952/05 P.S. Uttam Nagar U/s 394/397/412/34 IPC State Versus Javed @ Galla Phad S/o Sadiq ORDER ON THE POINT OF SENTENCE 26.09.2011 Present: Ld. APP for the State.
Convict produced from J.C., with Ms. Poonam Mahajan, Adv. Arguments heard on the point of sentence. File perused. Learned counsel for the convict submitted that he is of young age having old aged mother. He is having five brothers and aged mother, but all the brothers are living separately with their families and there is no one to look after her ; he is the sold bread earner for his mother ; he belongs to a very poor family. He is unmarried ; he has already remained in custody for about three years during the trial. It is prayed that a lenient view may kindly be taken and he may be given a chance to rehabilitate himself in the society. Ld. counsel prayed that he may be sentenced for the period, he had already remained in J.C. Per contra, Ld. Addl. PP for the State submitted that convict has committed FIR NO.952/05 Page 15 of 16 16 a severe offence of dacoity and during commission of dacoity , he used knife, a deadly weapon, on the point of which, he threatened PW3. It is prayed that no leniency be shown to him and maximum punishment be awarded.
Keeping in view all the submissions, facts, circumstances of the case and the gravity of offence that he along with his coaccused commited dacoity in a factory and also threatened watchman on the point of knife, I sentence the convict Javed to rigorous imprisonment for seven years along with a fine of Rs.5,000/ for the offence punishable u/s 397 IPC, in default of payment of fine, to undergo R.I., for six months. Benefit of Section 428 Cr.P.C be given to him.
Copy of judgment and copy of order on the point of sentence be given to the convict, free of cost.
File be consigned to record room.
Announced in open Court
on today i.e. 26.09.2011 (V.K. BANSAL)
ADDL. SESSION JUDGE : DELHI
FIR NO.952/05
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