Delhi District Court
State vs . on 1 April, 2011
1
IN THE COURT OF SURINDER KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - NORTH EAST
KARKARDOOMA COURTS:DELHI
State
Vs.
1. Maqsood Ahmed
S/o Abdul Majeed
R/o 319, Gali No.8
PhaseII, Shiv Vihar
Karawal Nagar, Delhi
2. Sonu Kumar
S/o Madan Singh
R/o C105/5, Gali No.4
PhaseI, Shiv Vihar
Karawal Nagar, Delhi
(SINCE EXPIRED)
FIR No. 671/06
PS: Seelampur
U.sec: 392/397/411/34 IPC
Sessions Case No. : 71/2009
Date of Institution of case : 19.07.2008
Date on which reserved for Judgment : 24.02.2011
Date of Judgment : 17.03.2011
Sessions Case No. 71/2009 Page1/22
2
JUDGMENT:
The present case was registered on the statement of one Sh.Pappu Kumar Gupta. He stated that on 6.11.2006, he along with his friend Mahender was going on a rickshaw. Mahender was paddling the rickshaw. At about 12.30 a.m (night) they reached in front of I.T Park, ISBT Road, Shastri Park. At that time two boys came on motorcycle and told them that they had touched their rickshaw with their motorcycle. Both the said boys started abusing them. One boy who was looking like pahari pointed ustra towards him. The other boy started beating them with slaps and fists. Thereafter both the said boys took out Rs.540/ from his pocket and then they turned their motorcycle towards ISBT. Pappu further stated that he noted down the number of the motorcycle of the accused persons i.e DL7SAX1342 which was of black and blue colour make Hero Honda. Thereafter he along with Mahender reached ISBT where they made call to the police on number 100.
On the basis of the motorcycle number, the police searched for the accused persons. On the same night both the accused persons were apprehended near Zero Pushta, Seelampur by the police of PS New Usmanpur. Two knives, ustra and currency Sessions Case No. 71/2009 Page2/22 3 notes were recovered from the their possession. Their disclosure statements were recorded wherein they disclosed their involvement in the present case. ASI Tahir Hussain of Police Station New Usmanpur informed the IO of this case regarding apprehension of the accused persons.
Both the accused persons were arrested in this case. After completion of investigation, challan was filed in the court for the offences punishable under section 392/397/34 IPC.
After supply of copies etc, Ld.M.M committed the case to the Court of Sessions.
During the trial, accused Sonu expired and vide orders dated 10.02.2010, the proceedings against accused Sonu were abated.
Vide orders dated 9.3.2010, charge for the offences punishable under section 392/34 IPC and under section 397 IPC was framed against accused Maqsood Ahmed to which the accused pleaded not guilty and claimed trial.
During the trial, the summons sent to complainant Pappu was received with the report that Pappu had expired on 23.7.2007. His name was therefore deleted from the list of Sessions Case No. 71/2009 Page3/22 4 witnesses.
In support of its case, the prosecution examined 10 witnesses.
PW1 Mahender Kumar was with complainant Pappu, at the time of the incident. He stated that on 06.11.2006 he along with Pappu were returning from Shahdara. At about 12:30 a.m, when they reached near Shastri Park and moved ahead towards Kashmiri Gate I.S.B.T, at that time two boys came on motorcycle and they struck their motorcycle against their cycle rickshaw being pulled by him while Pappu was sitting on rear seat. Those boy started fighting with them and one of the boys gave fist blow to him and thereafter both the boy thrashed Pappu and pointed churra towards him and both the said boys robbed Pappu of a sum of Rs.540/.
This witness further stated that he had seen the motorcycle number of those boys i.e. DLA1342, complete number he did not remember. Both the said boys ran away on their motorcycle. He then made telephone call to the Police on reaching ISBT. Police came and they all reached at the spot. Police asked about the description of the assailants. From there they were Sessions Case No. 71/2009 Page4/22 5 brought the Police Station, Seelampur where they saw those two boys and identified them.
The witness identified accused Maqsood Ahmed as one of the two boys and stated that he was the person who had shown churra to him and told him not to move. Thereafter accused along with his other accused had robbed Pappu.
He further stated that thereafter they were allowed to go after identification of the robbers. He further stated that he was living with Pappu for last about 2 years. Pappu was having a having TSR Driving License. He (Pappu) used to sign. He further stated that he could identify the signatures of Pappu. Mahender Singh identified the signatures of Pappu on EX PW1/A. PW2 SI Satya Dev is the Duty Officer. He stated that on 6.11.2006, he received rukka brought by HC Radhey Shyam which was sent by ASI Kamal Singh. On the basis of the said rukka he recorded FIR in this case and proved the copy thereof as Ex.PW 2/A. PW3 Ct.Vijender stated that on 6.11.2006 he joined the investigation of this case with ASI Kamal Singh. They went to the court and accused Maqsood Ahmed was formally arrested in Sessions Case No. 71/2009 Page5/22 6 this case vide memo Ex.PW3/A, as he had already been apprehended by officer of Police Station New Usmanpur.
PW5 ASI Tahir Hussain stated that on 6.11.2006 on receipt of DD No. 24A, he alongwith Ct. Manvir reached at Zero Pusta Usmanpur. There they met the SHO Kishan Lal and Ct. Sanjay Kumar. Constable Sanjay Kumar produced before him two persons along with two knives and one ustra. On inquiry, the accused persons told their names as Maqood Ahmed and Sonu Kumar. He further stated that he recorded statement of constable Sanjay. He sent rukka to PS New Usmanpur for registration of the case through Constable Manvir, who got the case FIR No. 389/06 registered and came back at the spot and handed over original rukka and copy of FIR to him. He then interrogated both the accused persons and recorded their disclosure statements which are Ex.PW5/A and Ex.PW5/B. He then informed the IO of case FIR No.671/06 Police Station Seelampur who collected the relevant documents from him including the disclosure statements.
PW6 Ct. Manvir Singh had joined the investigation of this case with the ASI Tahir Hussain. He stated that there at the spot Insp. Kishan Lal produced before the IO two accused persons Sessions Case No. 71/2009 Page6/22 7 Masqood and Sonu (Since expired). He further stated that both the accused were arrested and disclosure statement Ex.PW 5/A of accused Maqsood was recorded. The currency notes recovered from accused were seized vide memo Ex.PW6/A. He corroborated the testimony of ASI Tahir Khan on all material points.
PW8 Insp. Kishan Lal stated that on 6.11.2006 he was on night patrolling duty along with Ct.Sanjay who was his driver. Earlier during the night a call was received from the area of PS Seelampur that a robbery has been committed with some rickshaw puller. He had visited the spot at Seelampur and the local IO of PS Seelampur has also arrived. There one vehicle number DL7SAX1342 was also revealed at the spot on which two persons were riding. Thereafter he left for his patrolling duty at about 1.30 a.m. Again a call was received regarding money snatching of Rs.2000/. He briefed the staff on night duty and positioned himself at Shastri Park Chowk. At about 2.15 2.30 a.m one motorcycle was seen coming from Seelampur side and the said motorcycle took a right turn towards Pushta side. He observed the motorcycle number from the rear number plate and it was found to be 1342. He chased the motorcycle and signaled those two persons Sessions Case No. 71/2009 Page7/22 8 to stop near Zero Pusta. Since the two persons riding on the motorcycle had not stopped so he touched his official vehicle with the motorcycle due to which the motorcycle fell down. Accused Maqsood was pillion rider and other accused Sonu (Since expired) was driving the motorcycle. Two knives and ustra was recovered from both the accused persons. Both the accused persons were also found to be carrying currency notes but he had not checked the currency notes and amount. He then passed on the information to his police station on which HC Tahir arrived at the spot and custody of the accused persons was give to HC Tahir.
PW7 Ct. Sanjay was the official driver of the Insp. Kishan Lal who was the then SHO Police Station New Usmanpur. He had joined the investigation with the Insp.Kishan Lal. He corroborated the testimony of Insp. Kishan Lal on all material points. He stated that accused Maqsood made disclosure statement Ex.PW5/A and the recovered currency was seized vide memo Ex.PW 6/A. He further stated that message was conveyed to police station Seelampur and HC Tahir arrived at the spot. The custody of Maqsood and Sonu (since expired) along with the recovered case property was handed over to him.
Sessions Case No. 71/2009 Page8/22 9
PW9 Sh.Vidhya Prakash M.M. stated that on 14.11.2006 he conducted TIP proceedings in respect of accused Sonu and Maqsood. Both the accused refused to participate in the TIP proceedings and stated that they have been shown to the witnesses and their photographs have also been taken and shown to the witnesses. He had warned both the accused that in case of their refusal to participate in the TIP proceedings, the court may draw an adverse inference against them during the trial. But, despite the warning, the accused refused to participate in the TIP. He proved the TIP proceedings conducted by him as Ex. PW 9/A and PW9/B. PW10 Retired SI Kamal Singh stated that on 6.11.2006 on receipt of DD NO.35A (Mark P10/A) he along with HC Radhey Shyam reached ISBT Ring Road at the bus stand from where buses go to Faridabad. There he met Pappu Kumar and recorded his statement Ex.PW1/A, made his endorsement Ex.PW10/A, prepared rukka and handed over the same to HC Radhey Shyam who went to the police station and got the case registered. Ct. Rahdey Shyam returned back to the spot and handed over the rukka and copy of FIR to him. He then prepared site plan Ex.PW 10/B at the pointing out of Pappu Kumar. Sessions Case No. 71/2009 Page9/22 10
He further stated that accused Maqsood was arrested in a case in PS New Usmanpur and he had made disclosure statement about commission of offence in the present case. The concerned IO of Police Station New Usmanpur, handed over to him, disclosure statement Ex.PW5/A. The accused Maqsood was arrested by him in the present case vide arrest memo Ex.PW3/A. The case property which was seized by the IO of Police Station New Usmanpur i.e Rs.540/ vide memo Ex.PW6/A was taken into possession by him from the MHC(M) PS New Usmanpur vide memo Ex.PW10/C. He then made a request for TIP of accused Maqsood Ahmed but the accused refused to join TIP. The case property was deposited in the malkaha and after recording statement of witnesses, he prepared the challan and filed the same in the court.
PW4 HC Radhey Shyam had joined the investigation of this case with ASI Kamal Singh. He deposed on the same lines as deposed by ASI Kamal Singh. He stated that he had taken the rukka to the Police station and got the case registered. He also stated that they had made search for motorcycle No.DL7SAX1342. He corroborated the testimony of PW5 ASI Sessions Case No. 71/2009 Page10/22 11 Kamal Singh on all material points.
Statement of accused was recorded under section 313 Cr.P.C wherein he denied the allegations against him and stated that he had been falsely implicated in this case. He stated that he was arrested by the police in case FIR No.705/06 PS Kamla Market under section 392/397/411 IPC and he was acquitted in this case by the court of Sh.Inderjeet Singh ASJ, Tis Hazari Courts on 20.07.2010. He further stated that he was arrested by the police in three other cases including the present case and nothing was recovered from his possession.
I have heard Sh.Mukul Kumar Addl.PP for the State and Sh.C.S.Tyagi Counsel for the accused. I have also gone through the case file.
It was contended contended by the Ld.Addl.PP for the State that testimony of PW1 Mahender proves that it was the accused Maqsood who along with Sonu (Since expired) had committed robbery on the person of Pappu (Since expired) on the point of deadly weapons i.e knife and ustra. It was further the contention of the Ld.Addl.PP that Mahender had noted down the number of the motorcycle of the accused persons and it was on the Sessions Case No. 71/2009 Page11/22 12 basis of the number of the motorcycle that the accused persons were apprehended by the police of police station New Usmanpur on the same night immediately after the incident. It was submitted by Ld.Addl.P.P accused Masqsood had been identified by PW1 Mahender and as such accused is liable to be convicted.
On the other hand, it was contended by Ld.Counsel for the accused that accused has been falsely implicated in this case. He stated that he was falsely implicated by the police in three cases including the present case. It was further the contention of the Ld.Counsel that the present FIR was registered on the statement of complainant Pappu but the said witness i.e Pappu has not been examined by the prosecution as he died, therefore, the complainant Ex.PW1/A cannot be said to be proved. It was also submitted that uncorroborated testimony of PW1 Mahender cannot be relied upon as there is no other independent witness to corroborate the testimony of PW1 Mahender. It was also submitted that the IO did not join any public witness in the investigation. As per Ld.Counsel the accused was liable to be acquitted.
I have considered the rival contentions.
The main contention of the Ld.Counsel for the accused Sessions Case No. 71/2009 Page12/22 13 was that there is no other witness to the incident except PW1 Mahender Kumar and it was not safe to reply upon the uncorroborated testimony of PW1 Mahender Kumar and that no public witness was joined by the IO at any stage of the proceedings.
So far as the contention of the Ld.Counsel that it was not safe to rely upon the uncorroborated testimony of PW1 is concerned, in this regard, it has been held time and again by Hon'ble Supreme Court that it is the quality of evidence which matters it and not the number of the witnesses. This contention of Ld. Defence Counsel is to be ignored in view of the judgment of Hon'ble Supreme Court of India which is reported as Lallu Manjhi and another Vs. State of Jharkhand, '' 2003 1 AD (SC) 597 '' wherein it has been held that conviction of accused can be based even on the testimony of a solitary witness when his evidence is found to be wholly reliable.
The perusal of testimony of PW1 Mahender Singh shows that he is consistent and reliable. He has clearly stated that on the day of the incident, he along with Pappu (since expired) was returning back when two boys came on motorcycle and struck their Sessions Case No. 71/2009 Page13/22 14 motorcycle against their rickshaw. Thereafter they picked up quarrel with them, gave beatings to him and Pappu and snatched Rs.540/ from Pappu on the point of knife. Mahender Singh further stated that he could note down the number half of number of motorcycle of the accused persons DLA1342. He correctly identified accused Maqsood Ahmed to the person who had pointed churra upon him and commanded him not to move. Thereafter accused and his associate committed robbery on Pappu.
Thus PW1 Mahender Singh had specifically identified accused Maqssood Ahmed to the person who had pointed churra and committed robbery.
So far as the contention of the Ld.Counsel for the accused that no public witness was joined by the IO at the time of conducting proceedings in the case. The incident is of night at about 12.30 a.m. It were odd hours. Usually it is seen that no one is interested to join the police proceedings and as it was late night hours. This is not a ground to discard the statement of witnesses if they are otherwise trustworthy. Hence, this contention of the Ld.Counsel has to be ignored.
The next contention of the Ld.Counsel was that the Sessions Case No. 71/2009 Page14/22 15 case was registered on the statement of Pappu who did not appear in witness box as he had expired. Therefore the complaint Ex. PW1/A, on the basis of which FIR was registered, cannot be said to be proved.
Admittedly, the complainant Pappu has expired. PW1 Mahender Singh has identified the signatures of Pappu on the complaint Ex.PW1/A. Nothing could come out in the cross examination of PW1 Mahender which could shake his credibility on this point. Hence, it cannot be said that the complaint Ex. PW 1/A has not been proved.
The next contention of the Ld.Counsel that the PW1 Mahender Singh could not tell the complete number of the bike nor he could tell the length of the churra. In my view, these contradiction do not go to the root of the case, when the prosecution witnesses are otherwise reliable.
Insp. Kishan Lal PW8 had apprehended the accused persons on same night when the robbery was committed as he had received information that a robbery has been committed and motorcycle No. DL 7S AX 1342 used by the robbers was also revealed to him. He stated that he had chased the said motorcycle, Sessions Case No. 71/2009 Page15/22 16 and the accused Maqsood was the pillion rider on the same while accused Sonu (Since expired) was driving the said motorcycle. He further stated that on their search, two knives and ustra were recovered and they were also found in possession of some currency notes.
Thus, the testimony of PW1 Mahender Kumar finds support from the testimony of police officials who had apprehended the accused persons.
PW1 Mahender Singh correctly identified accused Maqsood Ahmed to be the person who was with the other accused at the time when robbery was committed on the person of PW1 Mahender Singh and stated that it was accused Maqsood who had shown churra to them and then committed robbery on the person of Pappu.
No suggestion was put to PW1 Mahender Singh by the Ld.Counsel for the accused in the crossexamination of PW1 Mahender Singh that accused Maqsood Ahmed was not the person who had committed robbery on the person of Pappu on the point of ustra on the day of the incident.
In a case reported as "State of Himachal Prasad Vs. Sessions Case No. 71/2009 Page16/22 17 Thakur Dass, 1983, Cr.L.J. 1694 1701 (HP)" it was observed that whenever a statement of fact made by a witness is not challenged in crossexamination, it has to be concluded that the fact is question is not disputed.
In another case titled as Motilal Vs. State of of Madhya Pradesh, 1990 Cri.l.J. NOC 125 MP, it was observed that if there is no crossexamination of a prosecution witness in respect of a facts it will only show the admission of that fact.
Therefore, the testimony of PW1 Mahender Singh regarding the fact that the accused along with his coaccused Sonu (since expired) committed robbery on the person of Pappu on the point of ustra has remained unchallenged. Therefore, in view of the Judgment referred above, the testimony of PW1 Mahender Singh to the effect that accused along with his coaccused Sonu (since expired) had committed robbery on the person of Pappu on the point of ustra/knife has to be believed.
The scrutiny of the statement of PW1 Mahender Singh reveals that he is consistent and coherent. There are no inconsistencies in his statement. Nothing has come out in his cross examination which could shake his credibility. Sessions Case No. 71/2009 Page17/22 18
The defence of the accused that he had been falsely implicated in this case by the police, cannot be considered. In the present case the complainant is a public witnesses. It has nowhere come on record that the either the victims or the accused persons were known to each other prior to the incident. Hence, there is no chance of false implication of the accused by the complainant Pappu PW1 Mahender Singh. PW1 Mahender Singh correctly identified accused Maqsood Ahmed to be the person who had committed robbery along with his coaccused. Hence, this plea taken by the accused does not hold any ground.
Thus, the prosecution has been able to prove on record that on the day of the incident i.e on 6.11.2006, at about 12.30 a.m, accused Maqsood Ahmed along with his coaccused Sonu (since expired) committed robbery on the person Pappu Kumar Gupta (since expired).
It is also proved on record that while committing the said robbery, the accused persons used deadly weapons i.e ustra and knife.
Therefore the accused is held guilty for the offences punishable under section 392 IPC and 397 IPC and is convicted Sessions Case No. 71/2009 Page18/22 19 thereunder.
Accused be heard separately on the point of sentence. Announced in open Court on 17th March' 2011.
(Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi Sessions Case No. 71/2009 Page19/22 20 IN THE COURT OF SURINDER KUMAR SHARMA ADDITIONAL SESSIONS JUDGE - NORTH EAST KARKARDOOMA COURTS:DELHI State Vs.
1. Maqsood Ahmed S/o Abdul Majeed R/o 319, Gali No.8 PhaseII, Shiv Vihar Karawal Nagar, Delhi
2. Sonu Kumar S/o Madan Singh R/o C105/5, Gali No.4 PhaseI, Shiv Vihar Karawal Nagar, Delhi (SINCE EXPIRED) FIR No. 671/06 PS: Seelampur U.sec: 392/397/411/34 IPC ORDER ON THE POINT OF SENTENCE.
01.04.2011 Present: Sh.Mukul Kumar Addl.P.P for the State. Sessions Case No. 71/2009 Page20/22 21
Convict Maqsood in J.C with Sh.C.S.Tyagi and Sh.B.D.Sharma Advocates.
Arguments heard on the point of sentence It is submitted by Ld.Addl.P.P for the State that maximum punishment be given to the convict.
On the other hand, it is submitted by Ld. Counsels for the convict that the convict is not a previous convict. It is further the submission of the Ld.Counsel that the convict has two minor children, wife and his parents to support. He is the only bread earner in the family. Therefore, request of taking a lenient view is made.
I have heard both the sides.
In view of the totality of the facts and circumstances of the case, convict Masqsood is sentenced to undergo Rigorous Imprisonment for a period of three (3) years with fine of Rs.1000/ for the offence punishable under section 392 IPC. In default of payment of fine, the convict shall further undergo Simple Imprisonment for period of two months.
The convict is further sentenced to undergo Rigorous Imprisonment for a period of seven (7) years with fine of Rs.1500/ Sessions Case No. 71/2009 Page21/22 22 for the offence punishable under section 397 IPC. In default of payment of fine, the convict shall further undergo Simple Imprisonment for period of three months.
Both the sentences shall run concurrently. The convict be given benefit of section 428 Cr.P.C A copy of Judgment and order on sentence be supplied to the convict free of cost today itself.
File be consigned to record Room.
Announced in open Court on 1st April 2011 (Surinder Kumar Sharma) Additional Sessions Judge (North East) Karkardooma Courts, Delhi Sessions Case No. 71/2009 Page22/22