Delhi District Court
State vs . Kishan on 14 January, 2020
IN THE COURT OF MS. MANU VEDWAN METROPOLITAN MAGISTRATE01, WEST, TIS HAZARI COURT, DELHI STATE VS. KISHAN FIR No. 478/17 PS: PUNJABI BAGH U/s 392/411 IPC. JUDGMENT
Case No. : 6088/17
Date of Institution : 23092017
Date of Commission of Offence : 09092017
Name of the complainant : Raj Kumar
S/o Sh Baghdev
R/o H no. F472, Raghubir Nagar, Delhi
Name & address of the accused : Kishan S/o Kailashi Ram
R/o H No. 715/4A Punjabi Basti,
Anand Parvat, Delhi
Offence complained of : U/s 392/411 IPC
Plea of accused : Pleaded not guilty
Final Order : Convicted under Section 379/411
IPC. Acquitted u/s 392 IPC
Date of announcing of judgment : 14012020
BRIEF STATEMENT OF THE REASONS FOR THE DECISION
State v. Kishan U/s 392/411 IPC 1/8
FIR No. 478/17 PS Punjabi Bagh
1. Vide this judgment this court shall decide the present case under Section 392/411 Indian Penal Code 1860.
2. The case of the prosecution is that on 09092017, at 12.15 AM, at Punjabi Bagh Bus Stand, main Rohtak Road, New Delhi, within the jurisdiction of Police Station Punjabi Bagh, accused had committed the robbery of Rupees 600/ belonging to the complainant Raj Kumar. It is alleged that the accused had committed the crime by putting the complainant in fear of hurt and wrongful restraint. It is further stated that on the same day the accused was found in possession of Rupees 600/ in the pocket of his pant. It is alleged that the accused had retained the said amount dishonestly or knowingly/reason to believe that same were robbed property. Therefore, accused had committed an offence punishable under Section 392/411 IPC.
3. Charge sheet was filed against the accused in the court. Documents were supplied to the accused and, charge under Section 392/411 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove the charge against the accused prosecution has examined four witnesses.
5. PW1 Raj Kumar, deposed that on the intervening night of 08092017, he alongwith his son was returning to their home after delivering the goods at Sadar Bazar. PW1 further deposed that at about 12:15 am they reached at Punjabi Bagh bus stand. There he deboarded from his vehicle (Auto Champion bearing registration number DL1LF 9149) as he was feeling thirsty. PW1 further deposed that after drinking water he came back to his vehicle and was about to start the same suddenly, there one person deboarded the bus nearby, and came State v. Kishan U/s 392/411 IPC 2/8 FIR No. 478/17 PS Punjabi Bagh towards his vehicle. PW1 further deposed that the person asked him "tere pas jo kuch hai nikal de". PW1 further deposed that thereafter that person slapped him and forcibly took an amount of Rupees 600/ from pocket of his shirt. PW1 then shouted for help but there was no one except his son and with the help of his son he apprehended that person and took him to the Punjabi Bagh Police Station.
6. PW1 further deposed that on interrogation he disclosed his name as Kishan.
Police had conduced personal search of the accused and recovered Rupees 600/ from his possession. Police had recorded his statement which is Ex.PW1/A bearing his signature at point A. Police had also prepared the site plan at his instance vide memo Ex.PW1/B bearing his signatures at point A. Police had also seized Rupees 600/ vide seizure memos Ex.PW1/C bearing his signature at point A. Police had arrested and conducted the personal search of the accused vide memos Ex.PW1/D and Ex.PW1/E bearing his signature at point A. PW1 was crossexamined at length by the Ld Legal Aid Counsel for the accused. During the course of his crossexamination, he submitted that accused had been taken by him to the police station.
7. PW2, Pankaj is the son of the complainant PW1. PW2 has also deposed on the same line as has been averred by PW1. PW2 thus has well supported the version of PW1. During the course of his crossexamination, PW2 has stated that he alongwith his father had taken the accused to the police station.
8. PW3, Constable Dinesh Kumar, deposed that on 09092017, at about 12:30 am complainant Raj Kumar came to Police Station alongwith the accused Kishan (correctly identified by PW3) and one Pankaj. PW3 further deposed that complainant had produced the accused before the investigating officer and told State v. Kishan U/s 392/411 IPC 3/8 FIR No. 478/17 PS Punjabi Bagh him that accused had committed robbery of Rupees 600/ from the complainant. PW3 further deposed that on cursory search of the accused, six notes in the denomination of Rupees 100/ were recovered from the right side pocket of his half pant. He further deposed that Investigating Officer Assistant Sub Inspector Rajinder Singh took the recovered cash in possession by preparing a pullanda, sealed the same with the seal of RS. PW3 further deposed that the recovered cash was seized vide seizure memo already Ex.PW1/C bearing his signatures at point B. The seal after use was handed over to him. Investigating Officer Assistant Sub Inspector Rajinder Singh recorded the statement of the complainant which is already Ex.PW1/A and prepared a tehrir and on the basis of the same the present First Information Report was registered. The custody of the accused was handed over to him by the Investigating Officer and the Investigating Officer went to the spot alongwith the complainant. PW3 further deposed that after some time the Investigating Officer returned to Police Station alongwith complainant and the accused was arrested and personally searched vide memos already Ex.PW1/D and Ex.PW1/E respectively both bearing his signatures at point B. PW3 further deposed that the accused was got medically examined at Acharya Bhikshu Hospital and thereafter lodged in police lock up. PW3 further deposed that the Investigating Officer recorded his statement. Case property has already been exhibited in the testimony of PW2 Pankaj as Ex.P1 to P6.
9. PW4, Assistant Sub Inspector Rajinder Singh also deposed on the same lines as is averred by PW3 in his statement. PW4 further deposed that he prepared a tehrir Ex.PW4/A bearing his signatures at point A. PW4 also recorded the disclosure statement of accused Ex.PW4/B bearing his signatures at point A. State v. Kishan U/s 392/411 IPC 4/8 FIR No. 478/17 PS Punjabi Bagh PW4 also recorded the statement of concerned witnesses. The accused was produced before the court and sent to judicial custody and after completion of investigation, challan was prepared and filed in the court. Case property has already been exhibited in the testimony of PW2 Pankaj as Ex.P1 to P6. The witness was crossexamined at length by the counsel for the accused.
10. Accused had admitted the factum of registration of captioned FIR a Police Station Punjabi Bagh and had made the statement in that regard under Section 294 Cr.P.C.
11. Thereafter, vide order dated 14012020, PE was closed. Statement of accused person was recorded under Section 313 Cr.P.C to which he denied all the allegations.
INGREDIENTS OF SECTION
12. Robbery is defined under Section 390 IPC. Theft or extortion is robbery if -
1. in order to commit the theft or in committing the theft, or carrying away or attempting to carry away property obtained by theft.
2. the offender should have voluntarily caused/ attempts to cause to any person death or hurt or wrongful restrain or fear of instant death/hurt/wrongful restrain.
13. While, the essential ingredients to prove the offence under Section 411 IPC are:
1. The property should be in possession of the accused.
2. Such property should be 'stolen property' i.e it should have been transfered by theft, extortion or robbery, or which has been criminally State v. Kishan U/s 392/411 IPC 5/8 FIR No. 478/17 PS Punjabi Bagh misappropriated.
3. The accused had received the same knowing or having reason to believe the same to be stolen property.
14. With regards to Section 390 of Indian Penal Code would show that in order that theft may constitute robbery, prosecution has to establish:
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft; or
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c); or
(e) 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 instant wrongful restraint.
The chief distinguishing element in robbery is the presence of imminent fear of violence. The second para distinguishes robbery from theft, the third distinguishes it from extortion.
15. Regarding, the essential ingredients, for punishment under S. 392, of Indian Penal Code these are summed up as:
(1) The accused committed theft;
(2) he voluntarily caused or attempted to cause;
(i) death, hurt or wrongful restraint
(ii) fear of instant death, hurt or wrongful restraint; (3) he did either act for the end:
(i) of committing theft,
(ii) while committing theft
(iii) in carrying away or in the attempt to carry away property obtained by theft.State v. Kishan U/s 392/411 IPC 6/8
FIR No. 478/17 PS Punjabi Bagh
16. Thus, Robbery is a special and aggravated form of either theft or extortion. Aggravation is in the use of violence causing death or fear of death, hurt or restraint. It is no doubt that in order to make an offence of theft a robbery there must be either theft and injury or threat of injury while committing theft. The expression "for that end" clearly means that the hurt caused by the offender must be with the object of facilitating the committing of theft or must be caused while the offender is committing theft or is carrying away or is attempting to carry away property obtained by theft.
17. It is pertinent to mention here that the star witness of the Prosecution (PW1) is Raj Kumar. PW1 including PW2 has miserably failed to narrate any of the sequences of the events during the deposition before the court which led to the establishment of the ingredients of theft converting into robbery. As, it has already been discussed that robbery is aggravated form of theft and that only when theft accompanying with injury / hurt or wrongful restraint may be converted into robbery. In the present case, no such injury as is required according to the ingredients of robbery had been inflicted by the accused.
18. Further, all the facts required to be seen cumulatively, including, that the accused had accompanied the complainant as well as his son to the police station. Thus, in the totality of circumstances and in the light of fact that PW1 has well identified the accused and has also given a detailed and lucid account of the incident of theft of property and also recovery of the stolen property from possession of accused. The offence established that of theft and that of recovery of stolen property.
19. Therefore, in view of the above discussion and in the totality of circumstances, as State v. Kishan U/s 392/411 IPC 7/8 FIR No. 478/17 PS Punjabi Bagh the ingredients of robbery are not being made out, though, at the same time the court is of the considered opinion that the prosecution has successfully proved its case beyond all reasonable doubts qua the accused with respect to theft of property and recovery thereof from the possession of complainant. Hence, the accused Kishan is held guilty of the offence punishable under Section 379/411 IPC. As to offence u/s 392 IPC, no ingredients is found out. Accordingly, he is acquitted for the offence u/s 392 IPC.
20. Accordingly, accused Kishan S/o Kailashi Ram stands convicted for offence under Section 379/411 Indian Penal Code. Be listed arguments on point of sentence today itself at 3.00 p.m Announced in the open court today itself i.e. 14012020 (MANU VEDWAN) METROPLITAN MAGISTRATE01 WEST/TIS HAZARI/COURTS/DELHI State v. Kishan U/s 392/411 IPC 8/8 FIR No. 478/17 PS Punjabi Bagh STATE VS. KISHAN FIR No. 478/17 PS: PUNJABI BAGH U/s 392/411 IPC.
14012020 Present: Ld APP for the State.
Accused in person with Ld Counsel.
Ld. Counsel for the accused has submitted that statement of accused u/s 294 Cr.P.C. be recorded. Accordingly, statement of accused with respect to admitting the FIR is recorded separately. In these circumstances, the testimony of concerned witness is dispensed with.
At this stage, ld. Counsel for accused that all the witnesses have been examined and PE may be closed. Ld. APP for the state also confirms the same. In these circumstances, PE stands closed. Statement of accused recorded.
Vide separate detailed order and operative part announced in the open court the accused Kishan has been convicted under section 379/411 IPC. As to offence u/s 392 IPC, no ingredients is found out. Accordingly, he is acquitted for the offence u/s 392 IPC.
Be put up for hearing the convict Kishan on the quantum of sentence with respect to offence u/s 379/411 IPC today at 3 PM.
ANNOUNCED IN THE OPEN (MANU VEDWAN)
COURT ON 14012020 MM01 (WEST)/TIS HAZARI COURTS
DELHI
At 3 PM
Present: Convict Kishan with Ld LAC.
Vide separate order on sentence the convict has been sentenced to the period already undergone.
File be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN (MANU VEDWAN)
COURT ON 14012020 MM01 (WEST)/TIS HAZARI COURTS
DELHI
FIR No.478/17, PS Punjabi Bagh 9 State Vs. Kishan
STATE VS. KISHAN
FIR No. 478/17
PS: PUNJABI BAGH
U/s 392/411 IPC
ORDER ON SENTENCE
At 3:00 pm
I have heard Ld. APP for the State and Ld. Counsel for the convict on the point of sentence.
Convict is inquired about his individuality and family circumstance. It is submitted by ld. Counsel for convict that convict belongs to very poor strata of the society and are daily wage earners. It is further submitted that convict has no previous involvement in any criminal case and has no complicity of whatsoever nature in any other case. It is further submitted by ld. Counsel that the case property has already been recovered that too on the alleged disclosure of the convict itself. It is further submitted that convict has families and now he is leading a family life. Ld. Counsel for convict prays that lenient view may be taken against him and opportunity may be given to lead a peaceful life. It is submitted that keeping in view the reforming aspect of sentencing policy one opportunity be given to the convict to be in main line of the society. It is submitted that if he will be sentenced at this age they may not be able to rejoin the society and society will also not let him to be it's part. It is submitted that sometimes poor innocent people just out of some innocent wrongs may get involved in these petty offences and he may be given one opportunity keeping in view the overall facts and circumstances. It is also submitted that accused has already incarcerated for 24 days and he may be sentenced for the period already undergone by him.
On the other hand ld. APP submitted that convict do not deserve any leniency and maximum punishment be awarded.
Heard and perused.
Therefore, in view of the aforementioned discussion, the antecedents and the inclination of the convict to improve his behaviour to live in the society as a law abiding citizen. Further, there is change of philosophy of punishment in modern era from retribution to restitution. Time and again it is reiterated that Jurisprudence in an evolved society presupposes that the ultimate goal of penal sanctions is to reform the individual and not eradicate his/ her personality. Keeping in view the nature of the crime, no previous conviction of the convicts and they are under the process of rehabilitation into the society, the convicts be released after due admonition and with the sentence till the rising of the court. Copy of judgment/order be supplied to the convicts. File be consigned to record room.
ANNOUNCED IN THE OPEN (MANU VEDWAN)
COURT ON 14012020 MM01 (WEST)/TIS HAZARI COURTS
DELHI
FIR No.478/17, PS Punjabi Bagh 10 State Vs. Kishan