Delhi District Court
State vs . (1) Yamin @ Sohail on 2 June, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 40/2011
Unique Case ID: 02404R0212362011
State Vs. (1) Yamin @ Sohail
S/o Nyab Khan
R/o D107, Bindapur
JJ Colony, Delhi.
(Convicted)
(2) Vikas @ Vicky
S/o Nand Kishore
R/o D61, Gali No. 14,
Bhatta Road, Swaroop Nagar,
Delhi.
(Convicted)
(3) Deepak Singh @ Nepali
S/o Jagdish
R/o Gali No.1, Kubi Ka Makan
Swaroop Nagar, Delhi.
(since Juvenile)
FIR No. : 64/2011
Police Station : Bhalaswa Diary
Under Section : 394/397/411/34 Indian Penal Code
Date of committal to Sessions Court : 08.08.2011
Date on which orders were reserved : 22.05.2012
Date on which judgment pronounced : 28.05.2012
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 1 of 61
JUDGMENT
Brief Facts:
(1) As per the allegations, on 16.04.2011 at about 10:15 PM at underpass near service road between GT Road and Outer Ring Road, within the jurisdiction of Police Station Bhalswa Dairy, the accused Yamin @ Sohail and accused Vikas @ Vicky along with co accused Deepak @ Nepali (since Juvenile) came on black colored Pulsar motorcycle and hit the complainant Braham Dev Singh as a result he fell down and thereafter all three accused had attacked Braham Devi Singh with fist and slap blows and also hit some object on his head as a result blood started oozing and he fell down and thereafter all three accused committed robbery of his briefcase containing his clothes, School Certificates, Rs 3,500/, mobile phone bearing numbers 9718675676 and SIM bearing No. 9815079198, ATM Card of Bank of Baroda and driving licence and ran away from the spot. It is further alleged that thereafter on 16.05.2011, the accused Yamin @ Sohail was apprehended along with coaccused Deepak Singh @ Nepali (since juvenile) by Crime Team of Special Branch from near a red light Majnu ka Tilla and one mobile phone make NOKIA without SIM bearing IMEI No. 353180037737490 was recovered from the possession of accused Yamin @ Sohail which mobile phone was robbed by them from the victim Braham Dev Singh on 16.04.2011.
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 2 of 61
Case of prosecution in brief:
(2) The case of the prosecution in brief is that on 16.4.2011 on receipt of DD No. 58B, ASI Charan Singh along with Ct. Anil reached the spot i.e. bypass under the flyover near ganda nala, GTB Road (Service Road) and came to know that the injured was already removed to BJRM Hospital by PCR Van. ASI Charan Singh along with Ct. Anil thereafter went to BJRM hospital and collected the MLC of injured Braham Dev and recorded his statement. (3) The injured Braham Dev in his statement told the police that on 16.04.2011 he was coming to Delhi by bus after attending his training at Chandigarh and got down at Karnal bye pass at about 10 PM. He further told the police that he was walking towards the bus stand to catch a local from bye pass flyover, main GT road when at about 10:15 PM three boys came on black colored Pulsor motorcycle and hit him by the motorcycle on which he fell down but immediately got up and in the meantime those three boys started beating him by giving him leg and fist blows on his face and one of them hit some sharp object on his head as a result blood started oozing out and he fell down on the ground after which those three boys snatched his bag containing original documents from 10th class to B.Sc. and MCA, Rs.3,500/, mobile phone bearing No. 9718675676 and SIM No. 9815079198, ATM Card of Bank of Baroda and driving licence, and thereafter they ran away from the State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 3 of 61 spot. He further told the police that all three assailants were between the age group of 2530 years. Thereafter the PCR Van removed him to the hospital.
(4) On the basis of the statement of Braham Dev, FIR was registered and during investigations information was received from Police Station Bhalaswa Diary regarding the arrest of Yamin @ Sohail and Deepak @ Nepali who disclosed their involvement in the present case after which both Deepak and Yamin were arrested in the present case and during interrogation both these accused disclosed the name of their associate namely Vikas @ Vicky who was also arrested in this case. After completing the investigations, the charge sheet was filed in the court.
CHARGE:
(5) Charge under Section 394/397/34 Indian Penal Code was settled against the accused Yamin @ Sohail and Vikas @ Vicky.
Further, charge under Section 411 Indian Penal Code was also settled against the accused Yamin @ Sohail. Both the accused pleaded not guilty and claimed trial.
EVIDENCE:
(6) In order to discharge the onus upon it, the prosecution has examined as many as twenty seven witnesses:
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 4 of 61
Public Witnesses:
(7) PW6 Harpal Singh has deposed that he is running Mobile Shop No. 3 in NDMC market, Kali Bari Marg in the name of Bindra Communications Pvt. Ltd. According to him, on 12.08.2009, he had sold one mobile phone make NOKIA 7210 to Man Singh for Rs 4800/ and had issued the invoice / bill to him and same is Ex.PW6/A. The bill reflects that the said mobile set was having IMEI number 3531800377374940. The witness has identified the mobile phone Ex.P1 in the court as the same which was sold by him to Man Singh. This witness has not been cross examined on behalf of the accused persons and his entire evidence has gone uncontroverted.
(8) PW7 Dinesh has deposed that he is doing business of tour and travel having his office at Pusta Road, Swaroop Nagar.
According to him he knew Vikas @ Vicky as he was the friend of his younger brother Sanjay. According to the witness, the accused Vikas @ Vicky had been visiting at his office and some times he used to come and take Rs 100// or Rs 200/ from him. The witness has deposed that he (accused) often callled from his mobile bearing No. 9718026954 on his (witness) mobile phone No. 9899893706. The witness has identified the accused Vikas @Vicky in the court. In his crossexamination by Ld. Amicus Curiae for the accused persons, the witness has deposed that his brother is not working with him in his State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 5 of 61 travel agency. According to him, there was no particular reason why Vikas visit his office and has voluntarily added that he was a friend of his (witness's) brother being his school mate. Witness has denied the suggestion that he has deposed falsely at the instance of the local police.
(9) PW8 Surender Singh has deposed that he was working in Coaching Center i.e Kapoor Study Circle situated at C33, Shankar Acharya Road, Adarsh Nagar and has got his voter Identity Card issued on this address and also took the mobile phone bearing No. 7838393249 on the proof of this address which mobile he used for many days but later on he handed over the said phone to his younger brother Deepak @ Nepali who was running in JC in some other case. In his crossexamination by the Ld. Amicus Curiae for the accused persons, the witness has deposed that when he handed over the mobile phone to his younger brother Deepak, he was not in judicial custody at that time.
(10) PW9 Ramesh Kumar has deposed that he is having a business of building material at A21, Dharamshala Raod, Swaroop Nagar, Delhi, on the ground floor. According to him, no person in the name of Rajesh, S/o Binod had ever resided at his house as tenant. According to him, he is residing in the aforesaid address for the last 21 years and he does not know any person in the name of Rajesh. This witness has not been cross examined on behalf of the State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 6 of 61 accused persons and his entire evidence has gone uncontroverted. (11) PW10 Pawan Singh, Nodal Officer, Idea Cellular Ltd. has brought the record pertaining to mobile Phone No. 9718675676 which was issued to one Braham Dev Singh S/o Man Singh, R/o 56B, Police Colony, Model TownII, Delhi whose copy of customer application form is Ex.PW10/A, (OS&R) and the copy of driving licence in support of the address Ex.PW10/B. This witness has also produced the record pertaining to mobile Phone No. 9718026954 which was in the name of Rajesh Raut, S/o Sh; Binod Raut, R/o A21/22, Shiv Mandir Road, Swaroop Nagar, Delhi42 whose copy of customer application form is Ex.PW10/C, (OS&R), copy of election identity card in support of the address is Ex.PW10/D. The witness has also brought the record pertaining to mobile Phone No. 9990875073 which was issued in the name of Shakir Ali, S/o Sh. Gulzar Ansari, R/o B36, Gali No. 7, Swaroop Nagar, Delhi; whose copy of customer application from is Ex.PW10/E, (OS&R), copy of driving licence in support of the address is Ex.PW10/F. He has also brought the call details regarding mobile phone No. 9990875073 which is Ex.PW10/G, call details regarding mobile phone No. 9718675676 Ex.PW10/H and the call details regarding mobile phone No. 9718026954 Ex.PW10/I. He has also placed on record the Certificate under Section 65 B of Indian Evidence Act which is State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 7 of 61 Ex.PW10/J. He has also placed on record copy of cell ID chart showing the cell ID 2019 at Sanjay Gandhi Transport Nagar which is Ex.PW10/K. This witness has not been cross examined on behalf of the accused persons and his entire evidence has gone uncontroverted. (12) PW11 M.N. Vijayan, Nodal Officer, TATA Tele Services Ltd. has produced the record of mobile phone No. 9289248453 which was issued to one Suresh Devi, W/o Sh. Nand Kishore, R/o 5/21, Gali No. 1617, Khoda Colony, Swaroop Nagar, Delhi. He has placed on record the customer application form of Suresh Devi is Ex.PW11/A; copy of election Identity card of the subscriber Ex.PW11/B and the call details of the said phone number which is Ex.PW11/C. The witness has also placed on record the Certificate of correctness under Section 65 B of Indian Evidence act which is Ex.PW11/D. This witness has not been cross examined on behalf of the accused persons and his entire evidence has gone uncontroverted.
(13) PW13 Israr Babu, Alternate Nodal officer, Vodafone has brought the record pertaining to mobile phone No. 7838393249 which was issued to one Surender Singh, S/o Sh. Jagdish Singh, R/o C33, Shankara Acharya Road, Adarsh Nagar, Delhi. He has also produced the customer application form which is Ex.PW13/A, copy of election Identity card of the subscriber is Ex.PW13/B, the call State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 8 of 61 details of the said phone number from the period 01.04.2011 to 06.05.2011 which is Ex.PW13/C. He has also placed on record the Certificate of correctness under Section 65 B of Indian Evidence act which is Ex.PW13/D. This witness also brought the record of mobile phone No. 9899893706 which was issued to one Dinesh Sharma, S/o Sh. Sant Kumar, R/o 25, Sindhi City, Swaroop Nagar, Delhi, and has proved the copy of customer application form is Ex.PW13/E, copy of driving licence of the subscriber is Ex.PW13/F. This witness has not been cross examined on behalf of the accused persons and his entire evidence has gone uncontroverted.
(14) PW14 Brahm Dev Singh is the victim who is working as Quality Control Inspector in FCI. He has deposed that on 16.04.2011 he was coming to Delhi by bus after attending his training at Chandigarh, and got down from the bus at Karnal bye pass at about 10 PM. According to him, he had to take local bus from bye pass fly over, main GT road and was going towards the bus stand when at about 10:15 PM three boys came on black colored Pulsor motorcycle and hit him by the motorcycle after which one boy got down from the motorcycle and caught him from his neck while the remaining persons hit something on his head from behind and thereafter they all attacked him as a result of which he started bleeding. According to the witness, one boy remained sitting on the motorcycle and continued to hit him by giving him punches while State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 9 of 61 sitting on the motorcycle itself whereas the remaining two persons had hit him on his face and slapped him. The witness has deposed that he was having a bag in his hand which he did not leave. According to him, he tried to push one of them but the person who was sitting on the motorcycle again hit him from behind on which he fell down on the road. The witness has deposed that there was scuffling between himself and those persons and they continued to snatch his bag and in this process the handle broke from his bag and they took his bag. According to the witness, one of the boy was saying to the other to give a knife blow to him (victim) but other boy shouted by saying that "sab kuch to chin liya ab bhago". The witness has further deposed that his bag was containing original documents from 10th class to B.Sc. and MCA, Rs 3500/, mobile phone, ATM card of Bank of Baroda, driving licence which they taken away. According to the witness, he had given the age of those boys as between 2530 years. He has deposed that he immediately made a phone call to his father and also made a call to 100 number and after some time PCR van came and took him to BJRM hospital where his statement was recorded vide Ex.PW14/A. (15) The witness Braham Dev has further deposed that he was discharged from the hospital at Jahangirpuri and he was referred to Parmanand Hospital as he was having some breathing problem. The witness has deposed that he was kept in ICU for whole night at State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 10 of 61 Parmanand Hospital and was was discharged in the morning and thereafter he had to join his duty on 18.04.2011 therefore he went to his office at Sangrur and joined his duty on 18.04.2011 in afternoon. According to him, on the next Saturday night he came back to Delhi and gave the location of the spot to the police when they came to his house. According to him, later on he was also called to the jail on two occasions where he had gone for identification of the accused but they refused and the proceedings could not be completed. The witness has deposed that he does not remember the exact date but in the last days of the month of June he made a call to the police station to know the progress of his case on which some officials at police station informed him that the investigating officer of his case had come to Rohini Court and asked him to met him, therefore he came to Rohini Court and met the IO. The witness has also deposed that he found two persons already in the custody of police, and he had identified both the accused as the same persons who along with another person committed the robbery upon him. According to him, he was informed by the IO that their names were Yamin and Vikas which names he came to know later. The witness has correctly identified the accused Yamin and Vikas by pointing out towards them in the court and has explained that Yamin was the person was sitting on the motorcycle and continuously hitting him and giving him punches whereas Vikas as the person who caught hold of his State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 11 of 61 neck and had hit him with some object on his head due to which he started bleeding and continued to beat him and had hit him the most. The witness has deposed there was a third boy also who is facing trial separately and he has already identified him in the said court. This court has observed that trial of coaccused Deepak @ Nepali has been separated being a juvenile and is before the juvenile court. The witness has also identified the case property i.e. mobile phone Ex.P1 as belonging to him; black colored pulsor motorcycle bearing No. DL9CAE1029 Ex.P2 as the same on which the accused persons had come to the spot.
(16) In his cross examination by Ld. Amicus Curiae for the accused persons, the witness has deposed that the documents pertaining to his training were in the suit case which was robbed by accused persons. He has deposed that many TSR drivers and public persons were present there when he deboarded from the bus but at the time of incident he was alone and walking on a lonely road. He admits that he had not stated in his statement Ex.PW14/A that he immediately made a call to his father and thereafter he made a call at 100 number. According to the witness, the PCR came to the spot after about 1015 minutes after making the call whereas his father reached to the hospital. According to the witness, on reaching the Rohini court, he made call to IO who has given his location to him and thereafter he met him when he identified the accused persons. State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 12 of 61 The witness has deposed that when he identified the accused persons outside the court room, he had given the details i.e. role of each accused, to the IO. He has denied the suggestion that the accused persons and their photographs were shown to him in the police station by the IO. He is unable to tell the name or designation of the person who recorded his statement in the hospital. According to the witness, his father came to the hospital in between during the period when his statement was being recorded. He has deposed that it took about 2025 minutes when accused persons assaulted him. According to him, some TSR drivers came there but they did not stop, even on his request for help. He has denied the suggestion that the actual culprits has escaped from the place of incident and at the instance of IO he had falsely implicated the accused persons in the present case. Medical Evidence / Witnesses:
(17) PW5 Dr. Rajesh Satija, SR, ENT department, BJRM Hospital, has deposed that on 16.04.2011, she was posted at BJRM hospital as SR, ENT. According to the witness, on that day Dr. Parveen had examined the patient Braham Dev, S/o Sh. Man Singh aged about 24 years, male with alleged history of physical assault vide MLC Ex.PW5/A bearing his signatures at point A. The witness has further deposed that the patient was referred to ENT OPD and X Ray nasal bone was advised which was reported by radiologist Dr. State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 13 of 61 Shipra Ram Pal as fractured nasal bone. According to the witness, on the basis of opinion of Dr. Shipra Ram Pal, she had given the opinion regarding nature of injury as Grievous vide endorsement at point B and bearing her signatures at point C. The witness has deposed that she is well conversant with the handwriting and signatures of Dr. Parveen having seen him while writing and signing during course of her official duties. In her crossexamination by Ld. Amicus Curiae for the accused persons, the witness has denied the suggestion that she had given the opinion of injury as grievous only at the instance of the Investigating Officer and not as per the record. (18) PW12 Dr. Shipra Rampal, Radiologist, BJRM hospital, has deposed that on 23.04.2011, she was working as Radiologist in BJRM hospital and on that day she examined the XRay plate and on the basis of which she had given her opinion which is Ex.PW12/A showing a fractured nasal bone. This witness has not been cross examined on behalf of the accused persons and his entire evidence has gone uncontroverted.
(19) PW16 Dr. Neeraj Chaudhary, CMO, BJRM Hospital, has appeared to depose on behalf of Dr. Sameer, SR (Ortho).
According to the witness, the patient Brahm Dev S/o Man Singh aged about 24 years, male, was referred to SR Ortho. where Dr. Sameer had examined him vide his endorsement at point D and bearing the signatures of Dr. Sameer at point E. The witness has State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 14 of 61 further deposed that thereafter the patient was referred to Eye OPD. According to the witness, he advised the IO to bring the patient with eye OPD slip for eye opinion and his endorsement to this effect is at point F and finally the opinion has given by Dr. Rajesh Satija as Grievous. In his cross examination by Ld. Amicus Curiae, the witness admits that Dr. Parveen had not prepared the said MLC in his presence.
(20) PW17 Dr. R. S. Mishra, CMO, BJRM Hospital,has deposed that on 16.04.21011 he was working as CMO at BJRM Hospital and on that day Dr. Parveen and Dr. Sameer were working under his supervision. According to him, on that day Dr. Parveen examined the patient Braham Dev S/o Man Singh, aged about 24 years, male with alleged history of physical assault vide MLC Ex.PW5/A. The witness has deposed that, the said MLC bears the signature of Dr. Parveen at point A and bears the signatures of Dr. Sameer at point E which he has identified being well conversant with the handwriting and signature of Dr. Parveen and Dr. Sameer having seen them while writing and signing in due course of his official duty. He has not been cross examined on behalf of the accused and his entire evidence has gone uncontroverted.
Police Witnesses:
(21) PW1 HC Rajender Kumar has been examined way of affidavit which is Ex.PW1/1. He has proved registration of FIR copy State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 15 of 61 of which is Ex.PW1/A and the endorsement on rukka which is Ex.PW1/B. In his crossexamination by Ld. Amicus Curiae for the accused persons, the witness has denied the suggestion that he in connivance with the investigating officer had recorded the FIR ante datedly.
(22) PW2 Ct. Satya Pal has been examined by way of affidavit which is Ex.PW2/1. He was posted as DD writer and has proved the copy of DD No. 58B which is Ex.PW 2/A. In his cross examination by Ld. Amicus Curiae for the accused persons, the witness has deposed that he was working as DD writer from 8 PM to 8AM and the above DD is in his own handwriting which was recorded by him at 10:40PM on a telephonic call from control room and further information was given to SI Charan Singh. (23) PW3 HC Dharambir Singh has been examined by way of affidavit which is Ex.PW3/1. He has proved the registration of DD No. 16A copy of which is Ex.PW 3/A. This witness has not been cross examined on behalf of the accused persons and his entire evidence has gone uncontroverted.
(24) PW4 HC Sukhbir Singh has been examined by way of affidavit which is Ex.PW4/1. In his crossexamination by Ld. Amicus Curiae for the accused persons, the witness has deposed that he had collected the case property on the instructions of the SI Vikas State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 16 of 61 Pannu. According to him, he had made a ravangi and wapsi before leaving for the Crime Branch Office but does not remember it.
(25) PW15 HC Himmat Singh has deposed that on 26.05.2011, he was working as MHC (M) at Police Station Bhalswa Dairy and on that day SI Vikas Pannu had deposited one PULSOR motorcycle of black color bearing No. DL9CAE1029, one mobile phone make NOKIA without SIMs. According to him he received the same vide entry No. 234 of register No. 19, copy of the same is EX PW 15/A. In his cross examination by Ld. Amicus Curiae, the witness has denied that the register No. 19 has been manipulated and the entries have been manifactured and fabricated at the instance of the IO.
(26) PW18 ASI Charan Singh has deposed that on 16.04.2011, he was posted at Police Station Bhalswa Dairy and on that day on the receipt of DD No. 58B Ex.PW2/A regarding robbery he along with Ct. Anil Kumar reached at under byepass flyover near ganda nala GT road/service road where he came to know that injured had already been taken to BJRM hospital by PCR. According to the witness, thereafter he along with Ct. Anil reached at BJRM Hospital where he collected the MLC of injured Brahm Dev who was fit for giving his statement therefore he recorded his statement which is Ex.PW14/A. The witness has thereafter prepared rukka Ex.PW18/A and send the same to the police station through Ct. Anil Kumar. State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 17 of 61
According to the witness, thereafter he reached at the spot and no eye witness met him till then and he made efforts to trace the clue in this case but on that day no clue could be ascertain. According to the witness, on the next day i.e. on 17.04.2011 the investigations was handed over to SI Vikas. This witness has not been cross examined on behalf of the accused and his entire evidence has gone uncontroverted.
(27) PW19 SI Jagdeep has deposed that he was the investigating officer of FIR No. 67/11 under Section 392/397/34 IPC of Police Station Swaroop Nagar in which the accused Vikas @ Vicky was arrested by him on 10.5.2011. According to the witness, on 19.5.2011, during the police remand, the accused Vikas @ Vicky went to Govt. Senior Secondary, Gali No. 15, Swaroop Nagar, and got recovered one mobile phone make Nokia of black colour. The witness has deposed that he converted the said mobile phone into parcel and seized the same vide memo Ex.PW19/A. The witness has identified the accused Vikas @ Vicky and also the mobile Ex.P1 in the court. This witness has not been cross examined on behalf of the accused and his entire evidence has gone uncontroverted.
(28) PW20 HC Ramesh Kumar has deposed that on 16.4.2011 he was working at PCR Unit North West Zone and on that day his duty was as Incharge, Commander 42. According to him, on receipt of call regarding robbery at C42, Mukarba Chowk, he along State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 18 of 61 with his staff reached at the spot and found the injured Braham Dev in injured condition. He took the injured to BJRM hospital in his PCR Van. This witness has not been cross examined on behalf of the accused and his entire evidence has gone uncontroverted. (29) PW21 Ct. Anil Kumar has deposed that on 16.04.2011, he was posted at Police Station Bhalsawa Dairy and on that day he was on duty at police station and at about 10.40PM ASI Charan Singh received DD No. 58B and thereafter he along with him reached at service road near Mukaraba Chowk under flyover where they came to know that injured was already taken to the BJRM Hospital by the PCR Van. According to the witness, thereafter they reached at the BJRM Hospital and ASI Charan Singh collected the MLC of injured Braham Dev. The witness has further deposed that ASI Charan Singh recorded statement of injured Braham Dev and thereafter prepared the rukka and handed over the same to him (witness) for registration of FIR and he went to Police Station Bhalasawa Dairy and FIR No. 64/2011 was got registered there. According to the witness, thereafter he returned back at the place of incident at Mukaraba Chowk and handed over original rukka and computerized copy of FIR to ASI Charan Singh. This witness has not been cross examined on behalf of the accused and his entire evidence has gone uncontroverted.
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 19 of 61 (30) PW22 Ct. Manjeet Singh has deposed that on 17.05.2011 he was posted at police station Bhalsawa Dairy and on that day he along with SI Vikas Pannu went to Tis Hazari Courts. According to the witness, SI Vikas Pannu interrogated two accused Yamin @ Sohail and Deepak @ Nepali with the permission of Court and SI Vikas Pannu arrested accused Yamin @ Sohail vide Ex.PW22/A and also recorded disclosure statement of accused Yamin @ Sohail vide Ex.PW22/B. The witness has further deposed that thereafter SI Vikas Pannu arrested accused Deepak @ Nepali vide Ex.PW22/C and recorded disclosure statement of accused Deepak @ Nepali vide Ex.PW22/D. According to the witness, on 26.05.2011 he again joined the investigations with SI Vikas Pannu and reached at Rohini Courts and accused Deepak @ Nepali was produced before the court from JC and one day Police Remand of accused Deepak was granted. The witness has deposed that thereafter at the instance of the accused Deepak, they reached at Shah Alam Bandh near H4 jhuggies, Jahangir Puri and he (accused) pointed out the place where the robbed suitcase was burnt by him along with coaccused Yamin but nothing was recovered from there. The witness has deposed that SI Vikas Pannu prepared the pointing out memo Ex.PW22/E and thereafter accused Deepak pointed out the place of incident at G T Karnal Road, Byepass, at Mukarba Chowk near prepaid booth where he had committed robbery with State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 20 of 61 his coaccused and pointing out memo was prepared by SI Vikas Pannu vide Ex.PW22/F. Witness has identified the accused Yamin @ Sohail in the court. (Accused Deepak @ Nepali is facing trial before Juvenile Justice Board). This witness has not been cross examined on behalf of the accused and his entire evidence has gone uncontroverted.
(31) PW23 ASI Veer Pal has deposed that on 16.04.2011, he was posted at Police Station Mahendra Park and on that day he was on emergency duty and was present in the area to conduct a police proceeding of earlier call and at about 10.15 PM he received a telephone call from the Duty Officer that a robbery took place at Mukarba Chowk, GTK Road. According to the witness, he immediately reached the spot along with Ct. Sushil and came to know that the place of incident was situated in the jurisdiction of police station Bhalaswa Dairy and the injured had already been taken to BJRM Hospital by PCR Van. He immediately reached at BJRM Hospital and found Braham Dev S/o Man Singh present at the hospital and receiving medical treatment. According to the witness, in the meanwhile ASI Charan Singh of police station Bhalaswa Dairy also reached at the hospital and thereafter he (witness) left the hospital. This witness has not been cross examined on behalf of the accused and his entire evidence has gone uncontroverted. State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 21 of 61 (32) PW24 HC Mohan Lal has deposed that on 16.05.2011, he was posted at Special Team Crime Branch, Parshant Vihar as HC and on that day at about 1:30 PM Ct. Sanjay had received a secret information which he shared with Insp. Parveen Kumar after which a police party was constituted and he along with Insp. Parveen, ASI Hari Om, ASI Ramesh Kumar, Ct. Vijay, Ct. Sanjay, ASI Ved Prakash and Ct. Himanshu started from their office and reached Majnu Ka Tilla, Petrol Pump. The witness has further deposed that there ASI Ved Prakash shared this information with 45 passersby and requested them to join the raiding party but they refused expressing their inability and went away. According to the witness, without wasting further time, they reached Majnu Ka Tilla, Gurudwara and after parking their vehicles in the parking. The witness has further deposed that ASI Ved Prakash briefed the raiding party and stationed them at various places in front of the Gurudwara on the red light and thereafter at about 3:15 PM the secret informer pointed out towards a black colored Pulsor motorcycle coming from Wazirabad side which was being driven by two boys who after crossing the red light, parked their motorcycle on one side and were standing there. The witness has deposed that on the pointing out of secret informer they overpowered both those boys and on interrogation they disclosed their names as Yamin @ Sohail, S/o Naib Khan and Deepak @ Nepali S/o Sh. Jagdish Singh and State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 22 of 61 thereafter ASI Ved Prakash carried out a formal search of both the accused. According to the witness, on formal search of Yamin one mobile phone was recovered from his right pocket and four mobile phones from the left pocket. The witness has depose that on formal search of Deepak @ Nepali two mobile phones were recovered from the left side pocket of his shirt. According to the witness, thereafter ASI Ved Prakash interrogated both the accused and they disclosed their involvements in two cases including robbery at GT Karnal Road (Byepass). The witness has further deposed that disclosure statement of Sohail @ Yamin was recorded vide Ex.PW24/A, he was arrested vide arrest memo Ex.PW24/B and his personal search was conducted vide memo Ex.PW24/C. According to the witness, ASI Ved Prakash seized one mobile phone recovered from the Yamin @ Sohail vide memo Ex.PW24/D. The witness has deposed that ASI Ved Prakash also seized another mobile recovered from the left pocket Yamin vide memo Ex.PW24/E and the disclosure statement of accused Deepak @ Nepali was also recorded by ASI Ved Prakash vide memo Ex.PW24/F and he was arrested vide memo Ex.PW24/G and his personal search was taken vide Ex.PW24/H. The witness has deposed that two mobile phones were recovered from the pocket of shirt of accused Deepak @ Nepali which were seized vide memo Ex.PW24/J. According to the witness, the above said motorcycle State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 23 of 61 was also seized by the IO vide seizure memo Ex.PW24/K. He has deposed that one driving licence of accused Deepak was also seized vide seizure memo Ex.PW24/L. According to the witness, his statement was recorded by the IO on 17.05.2011.
(33) Witness (HC Mohan Lal) has correctly identified the accused Yamin @ Sohail in the Court and it is observed that the accused Deepak @ Nepali is facing trial separately being juvenile. The witness has also identified the mobile phone make NOKIA 7210 bearing IMEI No. 353180/03/773749/4 Ex.P1 as the same which was recovered from the possession of accused Yamin @ Sohail. He also identified the black coloured pulsar motorcycle bearing No. DL 9S AE 1029 parked at Rohini Court Parking Ex.P2.
(34) In his cross examination by Ld. Amicus Curaei for the accused, the witness has deposed that they were in civil clothes when they departed from their office and were having their official weapon with them. According to the witness, he was having his private WagonR Car when they departed from their office and the another vehicle Santro was also used for reaching at the spot. The witness has deposed that they took about 45 minutes for reaching to the spot from their office and the secret informer did not accompanied them to the place from where the accused persons were apprehended. According to him, accused were apprehended at the instance of ASI Ved Prakash who was informed by the secret informer about the State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 24 of 61 accused but no public persons had gathered at the spot after they apprehended the accused persons. The witness has deposed that the accused persons were not allowed to run away as they overpowered them and have not been given any warning by them. Witness has admitted that the traffic for general public was on and the public persons were passing through from there. According to the witness, ASI Ved Prakash did not ask any passer by to join the police proceedings in his presence. The witness has further deposed that the entire writing work was done by ASI Ved Prakash at the spot while sitting in their private vehicles but he does not remember the time consumed by ASI Ved Prakash for preparing the documents. According to the witness, he left the spot at about 4.30 PM and admits that a Gurudwara is situated at the place where the accused persons were apprehended by them but no person was called from the Gurudwara or from the parking of the Gurudwara. According to the witness, accused persons were taken to the Crime Branch office at Prashant Vihar after their medical examination in his Wagon R car and were also medically examined at BSA Hospital, Rohini, Delhi. Witness has denied the suggestion that he did not participate in the investigation of this case and has deposed falsely.
(35) PW25 ASI Ramesh Kumar has deposed that on 16.05.2011, he was posted at Special Team Crime Branch, Parshant Vihar as ASI and at about 1:30 PM Ct. Sanjay had received a secret State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 25 of 61 information which he shared with Insp. Parveen Kumar after which a police party was constituted and he along with Insp. Parveen, ASI Hari Om, HC Mohan Lal, Ct. Vijay, Ct. Sanjay, ASI Ved Prakash and Ct. Himanshu started from their office and reached Majnu Ka Tilla, Petrol Pump and in the way ASI Ved Prakassh asked 45 passersbye to join the raiding party but they refused. According to him, without wasting further time, they reached Majnu Ka Tilla, Gurudwara where ASI Ved Prakash briefed the raiding party and at about 3:15 PM the secret informer pointed out towards a black colored Pulsar motorcycle coming from Wazirabad side which was being driven by two boys who after crossing the red light, they parked their motorcycle on one side and were standing there. According to the witness, on pointing out of the secret informer, they overpowered those boys and on interrogation they disclosed their names as Yamin @ Sohail, S/o Naib Khan and Deepak @ Nepali S/o Sh. Jagdish Singh. The witness has deposed that thereafter ASI Ved Prakash carried out a formal search of both the accused and on formal search of Yamin one mobile phone was recovered from his right pocket and four mobile phones from the left pocket and on formal search of Deepak @ Nepali two mobile phones were recovered from the left side pocket of his shirt. According to the witness, thereafter ASI Ved Prakash interrogated both the accused and they disclosed their involvements in two cases including robbery State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 26 of 61 at GT Karnal Road ( Byepass). The witness has deposed that the disclosure statement of Sohail @ Yamin was recorded vide Ex.PW24/A and he was arrested vide memo Ex.PW24/B after which his personal search vide memo Ex.PW24/C. According to the witness thereafter ASI Ved Prakash seized the mobile phones recovered from the accused Yamin vide memos Ex.PW24/D, Ex.PW24/E. According to the witness, disclosure statement of accused Deepak @ Nepali was also recorded by ASI Ved Prakash vide memo Ex.PW24/F and he was arrested vide memo Ex.PW24/G and his personal search was taken vide Ex.PW24/H. The witness has deposed that two mobile phones were recovered from the pocket of shirt of accused Deepak @ Nepali which were sealed and seized the same vide seizure memo Ex.PW24/J. The witness has further deposed that the above said motorcycle was also seized by ASI Ved Prakash vide seizure memo Ex.PW24/K and driving licence of accused Deepak (Juvenile) was also seized vide seizure memo Ex.PW24/L. Witness has correctly identified the accused Yamin @ Sohail in the court. Witness has also identified mobile phone make NOKIA 7210 bearing IMEI No. 353180/03/773749/4 which is Ex.P1 as the same which was recovered from the possession of accused Yamin @ Sohail. He has further identified the black coloured pulsar motorcycle bearing No. DL 9S AE 1029 which is Ex.P2 parked at State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 27 of 61 Rohini Court Parking.
(36) In his crossexamination by Ld. Amicus Curaei for the accused, the witness has deposed that they were in civil clothes when they departed from their office and he was having official pistol with him but he does not remember about official arms with other police officials. According to him he was driving his private Wagon R Car when they departed from their office while the another vehicle Santro was also used for reaching at the spot but he does not know about the owner of that Santro Car nor he is aware of its registration number. The witness has deposed that they took about 45 minutes for reaching to the spot from their office and do not remember by what means of transport secret informer reached at the spot. According to the witness, the secret informer pointed out towards the accused persons from the distance of about 2025 paces but public person gathered at the spot after they apprehended the accused persons. The witness has deposed that the accused were not allowed to run away as they overpowered them and they have not been given any warning by the police. According to the witness, ASI Ved Prakash did not ask any passer by to join the police proceedings in his presence. He further deposed that he entire writing work was done by ASI Ved Prakash while sitting on foot path under the street light and took about 3 or 3 ½ hours. The witness has deposed that first of all seizure memo of the mobile phone Ex.P1 was prepared. State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 28 of 61 He has deposed that he left the spot at about 6.307.00PM and admits that a Gurudwara is situated at the place where the accused persons were apprehended by them but no person was called from the Gurudwara or from the parking of the Gurudwara. The witness has deposed that the accused persons were taken to the Crime Branch office at Prashant Vihar after their medical examination in his Wagon R car and were also medically examined at BSA Hospital, Rohini, Delhi and it took about 30 minutes in medical examination of the accused persons. Witness has denied the suggestion that he did not participate in the investigation of this case or that accused persons were not arrested in the manner as deposed by him or that they were lifted from their respective houses and falsely implicated in this case. The witness has further denied the suggestion that nothing was recovered at the instance of the accused persons or that the alleged recovery was planted upon them.
(37) PW26 SI Vikas Pannu has deposed that on 17.04.2011, he was posted at Police Station Bhalsawa Dairy and on that day further investigation of this case was handed over to him. According to the witness, on 20.04.2011, he examined the complainant who led him to the place of incident and at his instance he prepared the site site plan Ex.PW26/A. The witness has deposed that on 16.05.2011, he received information from the Duty Officer that two persons namely Yamin @ Sohail and Deepak @ Nepali have been arrested State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 29 of 61 by the police of Special Team of Crime Branch, Prashant Vihar Delhi and both have made their disclosure statement about their involvement in this case and they would be produced in the Tis Hazari Court on the next day i.e. 17.05.2011. According to the witness, on 17.05.2011, he along with Ct. Manjeet reached at Tis Hazari Courts and with the permission of Court, he interrogated accused Yamin @ Sohail and Deepak @ Nepali and arrested accused Yamin @ Sohail vide Ex.PW22/A and also recorded his disclosure statement vide Ex.PW22/B. The witness has deposed that he also arrested accused Deepak @ Nepali vide Ex.PW22/C and recorded his disclosure statement vide Ex.PW22/D. On 19.5.2011, he along with PSI Ravinder reached at Rohini Court and with the permission of the Court, he interrogated accused Vikas @ Vicky and thereafter arrested him vide memo Ex.PW26/B and recorded his disclosure statement vide Ex.PW26/C. The witness has further deposed that he moved the Judicial Test Identification Parade (TIP) application of the accused persons and on 25.05.2011 the TIP of accused Vikas @ Vickey and Deepak @ Nepali was conducted. The witness has further deposed that on 26.05.2011, he came to the Rohini Court along with Ct. Manjeet and obtained one day police remand of accused Deepak @ Nepali who pointed out the place at Shah Alam Bandh near H4 Block Jhuggies, Jahangir Puri where he had burnt the suit case of the victim with his coaccused and pointing out memo State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 30 of 61 was prepared vide Ex.PW22/E. According to the witness, accused Deepak also pointed out the place of incident at service road at GT Karnal Road near Mukarba Chowk and pointing out memo was prepared by him vide Ex.PW22/F. The witness has deposed that he obtained the opinion about the injuries to victim. The witness has further deposed that during the investigations, he also collected the documents of FIR No. 67/11 of police station Swaroop Nagar in respect of accused Vikey @ Vikas and also collected PCR form Ex.PW26/E. The witness has identified the accused Yamin @ Sohail and Vikas @ Vickey in the court. (Juvenile Deepak @ Nepali is facing trial separately).
(38) In his cross examination by Ld. Amicus Curaei for the accused, the witness has denied the suggestion that he had not conducted the investigation fairly or that accused persons have been falsely charge sheet in the present case.
(39) PW27 ASI Ved Prakash has deposed that on 16.05.2011, he was posted at Special Team Crime Branch, Parshant Vihar as ASI and on that day at about 1:30 PM Ct. Sanjay had received a secret information which he shared with Insp. Parveen Kumar after which a police party was constituted and he along with Insp. Parveen, ASI Hari Om, HC Mohan Lal, Ct. Vijay, Ct. Sanjay, ASI Ramesh Kumar and Ct. Himanshu started from their office and reached Majnu Ka Tilla, Petrol Pump. According to the witness there he shared this State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 31 of 61 information with 45 passerbyes and requested them to join the raiding party but they refused expressing their inability and went away. The witness has further deposed that without wasting further time they reached Majnu Ka Tilla, Gurudwara and after parking their vehicles in the parking and he also briefed the raiding party and stationed them at various places in front of the Gurudwara on the red light. According to the witness, at about 3:15 PM the secret informer pointed out towards a black colored Pulsar motorcycle coming from Wazirabad side which was being driven by two boys who after crossing the red light, parked their motorcycle on one side and were standing there. The witness has deposed that on the pointing out of secret informer they overpowered those two boys and on interrogation they disclosed their names as Yamin @ Sohail, S/o Naib Khan and Deepak @ Nepali S/o Sh. Jagdish Singh. According to the witness, thereafter he carried out a formal search of both the accused and on formal search of Yamin one mobile phone was recovered from his right pocket and four mobile phones from the left pocket while on formal search of Deepak @ Nepali two mobile phones were recovered from the left side pocket of his shirt. According to the witness, thereafter he interrogated both the accused and they disclosed their involvements in two cases including robbery at GT Karnal Road ( Byepass). The witness has deposed that the disclosure statement of Sohail @ Yamin was recorded vide State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 32 of 61 Ex.PW24/A, after which he was arrested vide arrest memo Ex.PW24/B and his personal search vide memo Ex.PW24/C. According to the witness, he seized one mobile phone which was recovered accused Yamin @ Sohail vide memo Ex.PW24/D and Ex.PW24/E. The witness has further deposed that disclosure statement of accused Deepak @ Nepali was also recorded vide memo Ex.PW24/F and he was arrested vide memo Ex.PW24/G and his personal search was taken vide Ex.PW24/H and two mobile phones were recovered from the pocket of shirt of accused Deepak @ Nepali were also seized vide memo Ex.PW24/J. The witness has deposed that the motorcycle bearing No. DL 9S AE 1029 was also seized vide memo Ex.PW24/K and the driving licence of accused Deepak was also seized vide seizure memo Ex.PW24/L. (40) According to the witness, PW27, he made departure entry vide DD No. 30 dated 16.05.2011 at about 7.50 PM which is Ex.PW27/A. He has deposed that the information received at their office which was recorded at about 1.45PM vide DD No.26 dated 16.05.2011 and the same is Ex.PW27/B. According to the witness, after the arrest of the accused and recoveries effect from the accused, he made his arrival entry vide DD 30 and deposited the seized articles in the Malkhana at Nehru Place and prepared the Kalandara vide Ex.PW27/C against both the persons Yamin @ Sohail and State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 33 of 61 Deepak @ Nepali and informed the police of police station Bhalaswa Dairy. The witness has identified the accused Yamin @ Sohail in the court. (accused Deepak @ Nepali is facing trial separately). The witness has identified mobile phone make NOKIA 7210 bearing IMEI No. 353180/03/773749/4 which is Ex.P1 as the same which was recovered from the possession of accused Yamin @ Sohail. He has also identified the black coloured pulsar motorcycle bearing no. DL 9S AE 1029 parked at Rohini Court Parking Ex.P2. (41) In his cross examination by Ld. Amicus Curiae for the accused, the witness has denied the suggestion that registration number of motorcycle was edited later on. He admits that at the time of recording the disclosure statement no public person was present there. He further admits that a large number of Sewadars, Granthies, public persons including devotees are present at Majnu Ka Tilla, Gurudwara for 24 hours. He has also admitted that the staff of the Gurudwara is managing the parking and is available for 24 hours in the parking. According to him, he did not join any person from the Gurudwara including the sewadars who are present in the Gurudwara and the parking in the police party. He has denied the suggestion that he deliberately did not join the said persons because there was no such incident which had taken place and the recoveries were planted upon the accused. He has further denied suggestion that photographs of accused Yamin were obtained at the Crime Branch office. State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 34 of 61 Statement of Accused & Defence Evidence:
(42) After completing the prosecution evidence, statement of accused were recorded under Section 313 Code of Criminal Procedure in which all the incriminating evidence / material was put to them which they have denied.
(43) The accused Yamin @ Sohail has stated that he is innocent and has been falsely implicated in this case and has nothing nothing to do with the alleged incident. According to him nothing was recovered from his possession or at his instance and the case property, if any, has been planted upon him by the police officials to falsely implicate him. He has further stated that he had been shown to the complainant and his photographs were taken prior to the TIP proceedings.
(44) According to the accused Vikas @ Vicky he is innocent and has been falsely implicated in this case and has nothing was recovered from his possession or at his instance and the case property, if any, has been planted upon him by the police officials to falsely implicate him. He has further stated that he had been shown to the complainant and his photographs were taken prior to the TIP proceedings.
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 35 of 61
FINDINGS:
(45) I have heard the oral arguments advanced before me and perused the written synopsis of arguments filed on behalf of accused.
I have also gone through the evidence on record and considered the testimonies of various prosecution witnesses examined before the court. My findings are as under:
Identity of the Accused:
(46) In so far as the identity of the accused Yamin @ Sohial and Vikas @ Vicky is concerned, they have not been named in the FIR. They were not known to the victim previously. It is evident from the record that both Yamin and Vikas had refused to participate in the Judicial Test Identification Parade (TIP), which proceedings are Ex.PX3 and Ex.PX6 (not disputed by the accused) after which the victim came to the Rohini Court complex and identified the accused as his assailants who had attacked him and it was then that he came to know that their names were Yamin and Vikas. (47) In the Court, the victim Braham Dev has identified the accused Yamin and Vikas in the court by pointing out towards them and has stated that Yamin was the person who was sitting on the motorcycle and was continuously hitting him and giving him punches and the Vikas as the person who caught hold of his neck and had hit him with some object on his head due to which he started bleeding State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 36 of 61 and continued to beat him and had hit him the most. There is nothing on record to show that the victim had any reason or personal enmity to falsely implicate the accused. I hereby hold that the identity of the accused stands established.
Allegations against the accused persons:
(48) The case of the prosecution is that the accused are highway robbers who indulge in looting and robbing of innocent passerbyes who become their chance victims. On 16.4.2011 while the victim Braham Dev Singh was coming back to Delhi after attending his training programme at Chandigarh and got down at Karnal bye pass at about 10 PM and was thereafter standing on GT Road to take a bus when at about 10:15 PM three boys came on black colored Pulsor motorcycle and hit him by the motorcycle. It is the case of prosecution that first one boy got down from the motorcycle and caught him from his neck while the remaining persons hit something on his head from behind and thereafter they all attacked him as a result bleeding was started after which they gave him punches and also slapped him while one of them hit some sharp object on his head and thereafter they snatched his bag containing original documents from 10th class to B.Sc. and MCA, Rs 3500/, mobile phone, ATM card of Bank of Baroda, driving licence which they taken away. Thereafter, the victim immediately made a State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 37 of 61 telephone call to his father and also at 100 number after which PCR Van came and took him to the hospital.
(49) The relevant portion of the testimony of victim Braham Dev (PW14) is reproduced as under:
"I am working as quality control inspector in FCI and presently posted at district Sangrur, Punjab. On 16.04.2011 I was coming to Delhi by bus after attending my training at Chandigarh. I got down from the bus at Karnal bye pass at about 10PM. I had to take local bus from bye pass fly over, main GT road and I was going towards the bus stand. At about 10:15 PM three boys came on black colored Pulsor motorcycle. The motorcycle hit me. One boy got down first from the motorcycle who caught me from my neck. Remaining persons hit something on my head from behind. They all attacked me as a result bleeding started. One boy remained sitting on the motorcycle and continued to hit me by giving me punches while sitting on the motorcycle and remaining two persons had hit me on my face and slapped me. I was having a bag in my hand which I did not leave. I tried to push one of them but the person who was sitting on the motorcycle hit me from behind again. I fell down on the road. There was scuffling between myself and those persons and they continued to snatch my bag and in this process the handle broken from the bag and took my bag. One of the boy was saying State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 38 of 61 other to give the knife blow to me but other boy shouted by saying that "sab kuch to chin liya ab bhago" (we have snatched everything now run). My bag was containing original documents from 10th class to BSc and MCA, Rs 3500/, my mobile phone, ATM card of Bank of Baroda, driving licence which they taken away. I had given the age of those boys in between 2530 years. I immediately made a phone to my father and thereafter I made a call to 100 number. After some time PCR van came and took me to BJRM hospital. Police came at hospital.
My statement was recorded in the hospital by the police and same is EX PW 14/A bearing my signatures at point A. I was discharged from the hospital at Jahangirpuri and I was referred to Parmanand Hospital as I was having some breathing problem. I was kept in ICU for whole night at Parmanand Hospital. I was discharged from the hospital in the morning and thereafter I had to join my duty on 18.04.2011 therefore I went to my office at Sangrur and join my duty on 18.04.2011 in afternoon. On the next Saturday night I came back to Delhi. I had given the location of the spot to the police when they came to my house.
Later on I was also called to the jail on two occasions where I had gone for identification of the accused but they refused and the proceedings could not be completed. State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 39 of 61
I do not remember the exact date but in the last days of the month of June I made a call to the police station to know the progress of my case. Some official at police station informed me that the investigating officer of my case had come to Rohini Court and asked me to met him, therefore I came to Rohini Court and met the IO. I found two persons already in the custody of police. I had identified both the accused as the same persons who along with another person committed the robbery upon me. I was informed by the IO that their names were Yamin and Vikas which names I came to know later. I can identify the accused persons.
At this stage, the witness has correctly identified both the accused persons sitting in the court room. He has correctly identified the accused Yamin and Vikas by pointing out towards them and has stated that Yamin was the person was sitting on the motorcycle and continuously hitting him and giving him punches and Vikas as the person who caught hold of his neck and had hit him with some object on his head due to which he started bleeding and continued to beat him and had hit him the most. There was also a third boy whom is facing trial separately and I have already identified him in the said court. (court observation trial of coaccused Deepak @ Nepali has been separated being a juvenile and is before the juvenile court)."
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 40 of 61
(50) The victim Braham Devi Sinigh has been subjected to a sustained cross examination. He has identified the mobile phone which is Ex.P1 as the same belonging to him which had been robbed by the accused persons. He has also identified the black motorcycle bearing No. DL 9C AE 1029 which is Ex.P2 as the one on which the accused persons had come to the spot and assaulted him while committing robbery. In his crossexamination, the witness has clarified that the PCR had come to the spot after about 1015 minutes of his making a call and his statement was recorded while he was in the hospital. He has also proved having identified the accused persons outside the court room and states that earlier he had given the details of the accused to the investigating officer but has denied that their photographs had been shown to him in the police station. It is further evident from the aforesaid that no eye witnesses have been cited and in this regard I may observe that the incident had taken place on 16.4.2011 at about 10:15 PM and it is natural that at that time during the night there would not have been much of a crowd. Even otherwise it has been lately noticed that there has been growing public tendency where public persons do not get them involved in such incidents out of fears of the ruffians / robbers of late and under these circumstances benefit of the same cannot be given to the accused. There is nothing on record to show that victim had any kind of enmity with the accused or was known to them. I, therefore, find State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 41 of 61 the witness credible and trustworthy and it is writ large that he has identified the accused Yamin @ Sohail as the person who was sitting on the motorcycle and continuously hitting him and giving him punches and the accused Vikas @ Vicky as the person who caught hold of his neck and had hit him with some object on his head due to which he started bleeding and thereafter continued to beat him and had hit him the most. The evidence on record is silent about the use of deadly weapon but the medical evidence establishes that the injuries received by the victim were grievous. It is established that both the accused were repeatedly giving punches and fist blows to the victim. It is therefore not possible to establish as to who was the actual person whose blows caused the grievous injuries to victim. Under these circumstances, both the accused Yamin and Vikas are held guilty of the offence under Section 394 read with 397 Indian Penal Code.
Medical Evidence:
(51) Dr. Rajesh Satija (PW5) has duly proved the MLC of injured Braham Dev Singh which his Ex.PW5/A showing the injury as grievous in nature as the nasal bone had been fractured. It is evident from the MLC that the injured was brought to the BJRM hospital on 16.4.2011 at about 11:30 PM with alleged history of physical assault and was referred to radiology and his injury was State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 42 of 61 opined to be 'grievous'. Further, the perusal of the MLC shows CLW 1.5 cm X 0.5 cm on parital region, CLW 1 cm X 0.2 cm on upper lip, bruises on lower eye lid, clots were present on both nostrils and abrasion on knee joint, which reflects that there was a scuffle in the incident and the victim had been beaten. The MLC corroborates the oral version given by the victim not only with regard to the incident but also the nature of injuries received by him.
Electronic Evidence:
(52) PW10 Pawan Singh has proved that mobile number 9718675676 which was issued to the victim Braham Dev Singh S/o Man Singh whose customer application from is Ex.PW10/A supported by driving licence in support of the address Ex.PW10/B. He has also produced the record of mobile number 9718026954 issued in the name of Rajesh Raut S/o Sh. Binod Raut, R/o A21/22, Shiv Mandir Road, Swaroop Nagar, Delhi42 whose customer application from is Ex.PW10/C supported by copy of election identity card in support of the address is Ex.PW10/D. He has further produced the record of mobile number 9990875073 issued in the name of Shakir Ali S/o Sh. Gulzar Ansari, R/o B36, Gali No. 7, Swaroop Nagar, Delhi whose customer application from is Ex.PW10/E supported by copy of driving licence which is State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 43 of 61 Ex.PW10/F and the call detail record is Ex.PW10/G. He has also placed on record the CDR of mobile number 9718675676 which is Ex.PW10/H and the call details record of mobile number 9718026954 which is Ex.PW10/I along with the Certificate under Section 65 B of Indian Evidence Act which is Ex.PW10/J. This witness has also placed on record copy of cell ID chart showing the cell ID 2019 at Sanjay Gandhi Transport Nagar which is Ex.PW10/K. (53) Similarly, PW11 M.N. Vijayan has produced the record of mobile number 9289248453 issued in the name of Suresh Devi, W/o Sh. Nand Kishore, R/o 5/21, Gali No. 1617, Khoda Colony, Swaroop Nagar, Delhi whose customer application form is Ex.PW11/A; copy of election Identity card of the subscriber Ex.PW11/B and the call details of the said phone number which is Ex.PW11/C along with Certificate under Section 65 B of Indian Evidence act which is Ex.PW11/D. (54) Further, PW13 Israr Babu has produced the record pertaining to mobile phone number 7838393249 issued in the name of Surender Singh S/o Sh. Jagdish Singh, R/o C33, Shankara Acharya Road, Adarsh Nagar, Delhi whose customer application form is Ex.PW13/A, copy of election Identity card of the subscriber is Ex.PW13/B, the call details of the said phone number from the State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 44 of 61 period 01.04.2011 to 06.05.2011 is Ex.PW13/C along with Certificate under Section 65 B of Indian Evidence act which is Ex.PW13/D. He has also produced the record of mobile phone number 9899893706 issued in the name of Dinesh Sharma S/o Sh.
Sant Kumar, R/o 25, Sindhi City, Swaroop Nagar, Delhi, whose customer application form is Ex.PW13/E supported by copy of driving licence of the subscriber is Ex.PW13/F. (55) I have gone through the electronic evidence on record and it is evident from the stolen mobile having IMEI number 35318003737490 which was recovered from the accused Yamin (whose call detail record is Ex.PW10/H) that the last call was made by him at 9:45 on mobile number 9250056889 from mobile having IMEI number 35318003737490.
(56) It is further evident from the CDRs of mobile number 9289248453 which is in the name of Suresh Devi the mother of accused Vikas @ Vicky that Vikas had been receiving calls on the mobile number 9718026954 (SIM in the name of Rajesh Raut) from his mother thereby establishing the mobile number 9718026954 was in fact being used by Vikas. Further, even PW7 Dinesh has proved that the accused Vikas at the time of incident was using mobile number 9718026954. He has testified that he was known to Vikas as he was the friend of his brother Sanjay and used to come to his shop and used to demand Rs.100/ or Rs.200/ from him. Hence it stands State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 45 of 61 established that Vikas was using the mobile number 9718026954. Further, the call detail record Ex.PW10/I shows that the accused Vikas was using mobile number 9718026954 showing that on 16.4.2011 at about 10 PM its location was at Sanjay Gandhi Transport Nagar as evident from the Cell ID Chart. Further, at 9:51:37 PM he had made a call on the mobile number 7428695319 and at that time his location was at Sanjay Gandhi Transport Nagar which also covers Karnal Bypass where the robbery had taken place. Further, the CDRs shows that there are number of calls between Vikas and Deepak who was using the mobile number 7838393249 on 17.4.2011 and 18.4.2011 and also reflect the number of calls thereafter also showing that both of them were known to each other and were associates.
(57) It is also the case of the prosecution that the accused Yamin at the time of incident was using mobile number 9990875073 (original SIM was in the name of Shakir Ali) and perusal of the CDRs of Deepak @ Nepali who was using mobile number 7838393249 (SIM is in the name of his brother Surender Singh) on the date of incident shows that there has been communications between Yamin and Deepak on the aforesaid telephone numbers also establishing that Deepak and Yamin were known and in contact of each other. The fact that Yamin was using the SIM No. 9990875073 is established from the CDRs Ex.PW10/G and Ex.PW10/H that after State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 46 of 61 the theft of the mobile of the complainant bearing IMEI No. 35318003737490, SIM No. 9990875073 was put and used in the same. Further, from this number 9990875073 there are calls which have been made to the mobile number of coaccused Deepak i.e. 7838393249 (in the name of his brother). At the time of his arrest, the mobile set bearing IMEI No. 35318003737490 was found from the possession of accused Yamin which possession he has not been able to explain, thereby established that he was the used of the same. (58) In view of the aforesaid, the electronic evidence as discussed herein above conclusively establishes that the accused Yamin, Vikas and Deepak @ Nepali were known to each other and were frequently interacting with each other on mobile phones. It also stands established that the electronic evidence shows the presence of the accused Vikas at Sanjay Gandhi Transport Nagar at the time of incident and this is a fact which supports the oral testimony of the victim who has correctly identified the accused as the assailants. Ownership of the Mobile Phone:
(59) The victim has during the course of investigations handed over the original bill (Ex.PW6/A) of the stolen mobile phone having IMEI No. 3531800377374940 make Nokia 7210 which he purchased from vide Bill No. 2456 dated 12.8.2009 from Bindra Communication, Shop No. 3, Kali Bari Marg, near Gol Dak Khana, State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 47 of 61 New Delhi, which has been proved by Harpal Singh (PW6) who had issued the bill to the purchaser of the mobile (i.e. father of victim Braham Dev Singh). The said witness has not been cross examined and his testimony has gone uncontroverted, thereby establishing that the actual owner of the stolen mobile is Man Singh who is the father of victim Braham Dev Singh. In this background I hold that the ownership of the mobile phone having IMEI No. 3531800377374940 make Nokia 7210 stands established.
Seizure of Stolen Property for the Accused Persons:
(60) The accused persons have disclosed their involvement in the present case and thereafter the accused Deepak had pointed out the place where he along with Vikas and Yamin had burnt the suitcase of the victim. Further, at the time of his arrest, the accused Yamin had got recovered the mobile phone having IMEI number 3531800377374940 which is the stolen mobile of victim which was purchased by his father Man Singh vide bill Ex.PW6/A. Rather, four more mobile phones make YXTEL, TATA Indicom, SIGMATEL along with one broken mobile, were also recovered from the possession of accused Yamin @ Sohail.
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 48 of 61
FINAL CONCLUSION:
(61) In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 49 of 61 (62) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of both accused Yamin @ Sohail and Vikas @ Vicky stands proved. It stands established that on the date of incident i.e. 16.4.2011 the victim was having mobile phone bearing number 9718675676 having IMEI number 35318003773749400 and at about 9:45 PM he had made last call on 9250056889 from the said mobile. It stands proved that on 16.04.2011 at about 10:15 PM when the victim Braham Dev Singh was waiting for bus at near service road between G T Road and Outer Ring Road, the accused Yamin @ Sohail and accused Vikas @ Vicky along with coaccused Deepak @ Nepali (Juvenile) came on black colored Pulsar motorcycle (Ex.P2) and gave fist and slaps blows to Braham Dev Singh and thereafter robbed of his briefcase containing his clothes, School Certificates, Rs. 3,500/, mobile phone bearing numbers 9718675676 and SIM bearing No. 9815079198, ATM Card of Bank of Baroda and driving licence and ran away from the spot. It stands proved that the MLC of the victim is corroborative of the oral version given by him. The electronic evidence on record conclusively establishes that the accused Yamin, Vikas and Deepak @ Nepali were known to each other and were frequently interacting with each other on mobile State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 50 of 61 phones showing their presence in the area of Sanjay Gandhi Transport Nagar (near the spot of incident). It stands established from the CDRs Ex.PW10/G and Ex.PW10/H that the accused Yamin was using number 9990875073 on 30.4.2011 at 7:40 PM after putting the same in the mobile phone having IMEI No. 35318003737490 belonging to the victim Braham Dev Singh which mobile phone of the complainant (with IMEI No. 35318003737490) was recovered from the possession of the accused Yamin at the time of his arrest. It is also established from the CDR Ex.PW10/G that from this number 9990875073, the accused Yamin had been frequently calling the coaccused Deepak @ Nepali (Juvenile) after 30.4.2011. Further, the ownership of the mobile phone having IMEI No. 3531800377374940 make Nokia 7210 recovered from accused Yamin stands established as belong to Maan Singh who is the father of the victim Braham Dev Singh and no explanation is forthcoming from the accused Yamin as to how this mobile set came into his possession. Hence, the use and possession of the stolen mobile with the accused Yamin stands established.
(63) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 51 of 61 who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, etc. (64) There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up continuous link. (65) In view of the above, I hereby hold the accused Yamin @ Sohail and Vikas @ Vicky guilty for the offence under Section 394 read with 397 Indian Penal Code.
(66) Be listed for arguments on sentence on 01.06.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.05.2012 ASJ (NW)II: ROHINI
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 52 of 61
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI Sessions Case No. 40/2011 Unique Case ID: 02404R0212362011 State Vs. (1) Yamin @ Sohail S/o Nyab Khan R/o D107, Bindapur JJ Colony, Delhi.
(Convicted) (2) Vikas @ Vicky S/o Nand Kishore R/o D61, Gali No. 14, Bhatta Road, Swaroop Nagar, Delhi.
(Convicted) (3) Deepak Singh @ Nepali S/o Jagdish R/o Gali No.1, Kubi Ka Makan Swaroop Nagar, Delhi.
(since Juvenile)
FIR No. : 64/2011
Police Station : Bhalaswa Diary
Under Section : 394/397/411/34 Indian Penal Code
Date of conviction : 28.05.2012
Arguments heard on : 01.06.2012
Date of Sentence : 02.06.2012
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 53 of 61
APPEARANCE:
Present: Sh. Sukhbir Singh, Addl. Public Prosecutor for the State.
Convicts Yamin @ Sohail and Vikas @ Vicky in judicial custody with Sh. Rajneesh Antil, Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Vide my detailed judgment dated 28.5.2012 the accused Yamin @ Sohail and Vikas @ Vicky have been held guilty for the offence under Section 394 read with 397 Indian Penal Code.
As per the allegations, on 16.04.2011 at about 10:15 PM at underpass near service road between GT Road and Outer Ring Road, within the jurisdiction of Police Station Bhalswa Dairy, the accused Yamin @ Sohail and accused Vikas @ Vicky along with co accused Deepak @ Nepali (Juvenile) came on black colored Pulsar motorcycle and hit the complainant Braham Dev Singh as a result he fell down and thereafter all three accused had attacked Braham Devi Singh with fist and slap blows and also hit some object on his head as a result blood started oozing and he fell down and thereafter all three accused committed robbery of his briefcase containing his clothes, School Certificates, Rs.3,500/, mobile phone bearing numbers 9718675676 and SIM bearing No. 9815079198, ATM Card of Bank of Baroda and driving licence and ran away from the spot. It is further alleged that thereafter on 16.05.2011, the accused Yamin @ State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 54 of 61 Sohail was apprehended along with coaccused Deepak Singh @ Nepali (Juvenile) by Crime Team of Special Branch from near a red light Majnu ka Tilla and one mobile phone make NOKIA without SIM bearing IMEI No. 353180037737490 was recovered from the possession of accused Yamin @ Sohail which mobile phone was robbed by them from the victim Braham Dev Singh on 16.04.2011.
On the basis of the testimonies of the various witnesses examined by the prosecution, particularly the victim Braham Dev Singh (PW14), vide detailed judgment dated 28.5.2012 the accused Yamin @ Sohail and Vikas @ Vicky have been held guilty for the offence under Section 394 read with 397 Indian Penal Code.
The convict Yamin @ Sohail is 26 years old and is totally illiterate. He is a motor mechanic by profession and is having a family comprising of aged father, mother, two brothers, one sister, wife, one daughter (aged 6 years) and one son (aged one year). He has already remained in judicial custody for One Year and 15 days. He is also involved in many other cases whose details are as under:
1. FIR No. 459/97 under Section 380 IPC PS Jahangirpuri.
2. FIR No. 479/97 under Section 380 IPC PS Jahangirpuri.
3. FIR No. 1115/98 under Section 457/380 IPC PS Jaitpur.
4. FIR No. 733/99 under Section 307/341 IPC PS Uttam Nagar.
5. FIR No. 593/99 under Section 392/34 IPC PS Uttam State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 55 of 61 Nagar.
6. FIR No. 662/02 under Section 25 Arms Act PS Uttam Nagar.
7. FIR No. 63/03 under Section 25 Arms Act PS Hari Nagar.
8. FIR No. 875/03 under Section 380 /411 IPC PS Uttam Nagar.
9. FIR No. 767/07 under Section 394/34 IPC PS Dabri.
10. FIR No. 669/05 under Section 25 Arms Act PS Uttam Nagar.
11. FIR No. 8/07 under Section 21 NDPS Act PS Uttam Nagar.
12. FIR No. 549/04 under Section 379/411 IPC PS Defence Colony.
13. FIR No. 1013/04 under Section 307/34 IPC PS Uttam Nagar.
14. FIR No. 150/08 under Section 379 IPC PS Bindapur.
15. FIR No. 258/08 under Section 379/34 IPC PS Bindapur.
16. FIR No. 67/11 under Section 392/394/397/34 IPC PS Swaroop Nagar.
The accused Yamin @ Sohail has also been convicted in the following cases previously:
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 56 of 61
1. FIR No. 1180/03 Under Section 356/379/34 IPC PS Uttam Nagar.
2. FIR No. 37/2006 Under Section 324/341/34 IPC PS Hari Nagar The convict Vikas @ Vicky is 24 years old and is 9th class pass. He is a carpenter by profession and is having a family comprising of aged father, mother, one younger brother and two sisters. He has already remained in judicial custody for One Year and 13 days. He is also involved in many other cases whose details are as under:
1. FIR No. 186/04 under Section 379/411/341 IPC & 25 Arms Act PS Samaypur Badli.
2. FIR No. 432/05 under Section 25/54/59 Arms Act PS Smaypur Badli.
3. FIR No. 792/05 under Section 25/54/59 Arms Act PS Samaypur Badli.
4. FIR No. 601/07 under Section 186/ 353 /365/411/506/34 IPC PS Modle Town.
5. FIR No. 263/09 under Section 356/357/34/394/411 IPC PS Janakpuri.
6. FIR No. 67/11 under Section 392/394/34 IPC PS Swaroop Nagar.
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 57 of 61
The convict Vikas @ Vicky has also been convicted previously in the following cases:
1. FIR No. 51/06 Under Section 25/54/59 Arms Act PS Smaypur Badli.
2. FIR No. 8/07 Under Section 379/411/34 IPC PS Swaroop Nagar
3. FIR No. 2/07 Under Section 452/324 IPC PS Samaypur Badli.
Ld. Amicus Curiae has vehemently argued that keeping in view the young age of the convicts any harsh view would be detrimental not only to the convicts but also the their families. He requests that a lenient view be taken against the convicts.
On the other hand the Ld. Addl. PP for the State has prayed that a strict punishment be awarded to the convicts keeping in view their other involvements. He has argued that the convicts do not hesitate in using dangerous weapons upon innocent victims and by their acts adversely affect social order for which reason they do not deserve any leniency.
I have considered the rival contentions. Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 58 of 61 death, are also on rise. Criminals are unhesitatingly and indiscriminately using dangerous weapons on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system. In the recent past Delhi has experienced a spurt and rise in the incidents of snatching, robbery, dacoity, murder and other kinds of crime. In the year 2010 alone, a total number of 48,161 cases were registered out of which 567 cases were of looting; 1,596 cases were of chain snatching and 318 cases were of dacoity. The deteriorating law and order problem of the City is a matter of serious concern and immediate steps are required to be taken at all levels for ensuring security and safety of the citizens. In the present case, there was no previous animosity between the convicts and the victim and the intent was solely monetary gain. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
The courts are required to find answers to the new challenges facing the society and to mould the sentencing system to State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 59 of 61 meet these challenges. The Hon'ble Apex Court has time and again stressed upon the need for awarding the punishment for a crime which should not be irrelevant but should be conform to and be consistent with the atrocity and the brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence of the rime and responding to the society's cry for justice against the criminal. (Ref. Ravji Vs. State of Rajasthan reported in 1996 (II) SCC 175).
Keeping in view the previous criminal records of the convicts, it is evident that they are professional robbers and habitual criminals who have a large number of criminal involvements against them and have also been convicted by other courts. It is writ large that these convicts do not hesitate to take law into their hand and are hence not entitled to any leniency. I hold that undue sympathy shown to the convicts to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society. I, therefore, award the following sentence to the convict Yamin @ Sohail:
For the offence under Section 394 read with Section 397 Indian Penal Code, the convict Yamin @ Sohail is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs. 10,000/. In default of payment of fine the convict State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 60 of 61 shall undergo Simple Imprisonment for a period of One Month.
Further, I award the following sentences to the convict Vikas @ Vicky :
For the offence under Section 394 read with Section 397 Indian Penal Code, the convict Vikas @ Vicky is sentenced to Rigorous Imprisonment for a period of Ten (10) Years and fine to the tune of Rs. 10,000/. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of One Month.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by him during the trial, as per rules.
The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached along with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 02.06.2012 ASJ (NW)II: ROHINI
State Vs. Yamin etc., FIR No. 64/2011, PS Bhalaswa Dairy Page 61 of 61