Delhi District Court
State vs . Rahishu Etc. on 22 September, 2014
IN THE COURT OF SH. KAPIL KUMAR, MM,
ROHINI COURTS, DELHI
State Vs. Rahishu Etc.
PS. Adarsh Nagar
1. FIR No. : 307/12
2. Date of Offence : 18.12.2012
3. Name of the complainant : Radha Saini
D/o Gopal Das
R/o J- 1843, Jhangir Puri,
Delhi
4. Name, parentage and Address : 1. Rahishu
of the accused S/o Sh. Nasir Khan.
R/o H.no.4/1303 Jhangir
Puri, Delhi.
2. Jai Kishan @ Deepak
S/o Sh. Bhagirath
R/o G-217, Jhangir
Puri, Delhi.
3. Ved Prakash
S/o Raman Kumar
R/o G-195, Jhangir Puri,
Delhi.
5. Offences complained of : 392/34 IPC
6. Plea of the accused : Pleaded not guilty.
7. Sentence or final order : Convicted
FIR No.307/12 Unique ID no. 2404R0078192013 1/10
8. Date of order : 22.09.2014
JUDGMENT
1. The case of the prosecution is that on 08.12.2012 at 9.45 AM infront of Khan Hospital, near Adarsh Nagar Metro Station, Delhi, within the jurisdiction of PS. Adarsh Nagar accused persons in furtherance of their common intention robbed Rs. 1 Lac from complainant which she was carrying in pocket of her jacket.
2. After investigation, charge-sheet was filed against accused persons. The copy of charge-sheet and annexed documents were supplied to accused persons in compliance of Section 207 Cr. P.C. Thereafter charge under Section 392/34 IPC was framed against accused persons to which they pleaded not guilty and claim trial.
3. In support of its version, prosecution examined 8 witnesses. PW-1 is Ms. Radha Saini(complainant), PW2 is Sh. Varun Kumar Tyagi , PW3 is Ct. Surjeet, PW5 is Sh. Rajbir Singh, Principal MCD Primary boys school PW6 is SI Aadesh, PW7 is WHC Santosh, PW8 is Dr. javed Salan and PW9 is SI Rakesh Kumar. There is no witness as PW4 in the present case. The numbering of prosecution witnesses is not being changed to avoid any confusion.
FIR No.307/12 Unique ID no. 2404R0078192013 2/10
4. After conclusion of prosecution evidence, statements of accused persons were recorded separately wherein accused persons claimed to be innocent and denied the allegations against them. Accused persons first opted to lead DE but on 10.09.2014 Ld. Counsel for accused persons submitted that accused persons do not want to lead DE and thereafter matter was fixed for final arguments.
5. I have heard Ld. APP for State and Ld. Counsel for accused. I have perused the record.
6. The testimonies of prosecution witnesses are being touched upon, in brief, as follows:-
61. PW1 deposed that on 08.12.2012 at about 9.30 AM, she hired a rickshaw from 100 number bus stand to go to Azad Pur Mandi. She deposed that she was wearing a khaki colour jacket on that day and was having 2 bundles of Rs.50,000/- each in left side pocket of jacket. She further deposed that her mobile phone rang when and she took out the mobile phone to answer the call 3-4 boys came and snatched two bundles of currency notes from her pocket. She deposed that after snatching the money boys started running towards jhuggis situated at Shah Alam Bandh. She followed those boys but they could not be apprehended. PW1 identified accused persons during examination in chief.
6.2 PW 2 deposed that he works as Commission Agent in Azad Pur FIR No.307/12 Unique ID no. 2404R0078192013 3/10 Mandi and he knew the complainant. He deposed that on 06-07.12.2012 he gave Rs. 1 Lac to the complainant and took a cheque dated 05.12.2012 in view of that amount.
6.3 PW3 deposed that on 09.01.2014 he was posted in Adarsh Nagar as Constable and on that day he joined investigation with SI Rakesh and complainant. He deposed that a secret informer met the IO and told that the persons involved in the present case are standing at Sai Baba Mandir. He deposed that accused persons were apprehended from Sai Baba Mandir and were identified by complainant.
6.4 PW5 who is the principal of MCD School, Jhangir Puri brought the school admission register along with other documents for the age proof of accused Ved Prakash. He deposed that as per their record the date of birth of accused Ved Prakash is 10.06.1994.
6.5 PW6 is SI Aadesh who deposed that on 09.01.2013 at 5.30 PM complainant at the police station to inquire about her case than he along with Ct. Surjeet, Ct. Rahul and complainant made search for accused persons and went to place of incident i.e 100 number bus stand. He deposed that on the basis of information given by secret informer accused persons were apprehended and identified by the complainant. 6.6 PW7 was the duty officer on 08.12.2012 in PS. Adarsh Nagar. She deposed that at about 9.15 AM she recorded the DD entry 10A on the basis of call from control room. She deposed that at about 11.20 AM on the receipt of rukka she recorded the present FIR which is ExPW7/B. 6.7 PW8 is Dr. Javed, who was the junior medical specialist from BJRM Hospital. In his testimony the bone ossification test report of accused FIR No.307/12 Unique ID no. 2404R0078192013 4/10 Rahishu and Jai Kishan were proved as ExPW8/A and ExPW8/B. He deposed that the age of accused Rahishu was opined between 22-25 years and the age of accused Jai Kishan as 18-19 years. 6.8 PW9 is the IO of the present case. He deposed on the lines of PW3.
7. It is the cardinal principle of Criminal Justice delivery system that the prosecution has to prove the guilt of accused beyond reasonable doubts.
No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own leg.
8. At the outset, the discussion as to the age of accused persons on the day of offence is required because in the conviction slip the age of accused persons are mentioned between 18-21 years by the IO. 8.1 Qua accused Ved Prakash the testimony of PW5 is sufficient to declare that the accused Ved Prakash was major at the time of alleged offence. PW5 who was the Principal of MCD Primary School stepped into the witness box and deposed that as per their school record the date of birth of Ved Prakash is 10.06.1994. The photocopy of admission register of school is on record and I have gone through the same. The same is admissible under Rule 12 of JJB Rules 2009. The date of alleged offence is 08.12.2012, hence on the day of alleged offence the accused Ved Prakash was more than 18 years old.
8.2 Bone ossification test of accused Rahishu was conducted as accused Rahishu never went to any school nor any documents/certificate as per FIR No.307/12 Unique ID no. 2404R0078192013 5/10 Rule 12 of JJB Rules is available. The ossification test of accused Rahishu ExPW8/A suggest that on the day of examination of accused Rahishu he was between 22-25 years of age. If the lower side the considered, than also on the day of alleged offence the accused was more than 21 years old. Hence, on the day of alleged offence i.e 08.12.2012 the accused Rahishu was more than 18 years old. 8.3 Now, coming to accused Jai Kishan. Accused Jai Kishan also never went to any school nor any other certificate as to his age proof was available on record which could be admissible under Rule 12 of JJB Rules 2009 hence his bone ossification test was conducted. Doctor opined his age between 18-19 years. Pertinent to mention here that vide order dated 16.05.2013, Ld. Predecessor of this court dismissed the application U/s 7A JJ Act moved on behalf of accused Jai Kishan. Ld. Predecessor while dismissing that application hold that the accused Jai Kishan was major on the date of offence. Admittedly, that order remain unchallenged and attained finality. Accordingly as per order of Ld. Predecessor the accused Jai Kishan was major on the day of offence.
Hence, in view of above discussion it comes on record that all the three accused persons under trial in the present case FIR were major at the time offence.
9. Now coming to the merits of the present case. As the testimony of PW1 reveals that the case of prosecution in brief is that accused persons snatched Rs. 1 Lac from complainant on 08.12.2012 and ran away. PW1 identified all the three accused persons and deposed that accused FIR No.307/12 Unique ID no. 2404R0078192013 6/10 persons under trial are those boys who snatched Rs.1 Lac from her. PW1 was cross examined by Ld. Defence Counsel but she remained unshaken during cross examination. She deposed in cross examination that she had seen the faces of accused persons at the time when they snatched money from her pocket. She categorically deposed that- " Accused Ved Prakash had snatched the money from my pocket and immediately thereafter he handed over the bundles to accused Jai Kishan and thereafter accused Jai Kishan and Rahishu started running from the spot along with bundles."
At this stage, Section 390 & 392 of Indian Penal Code are to be referred to see whether the ingredients of robbery are made out or not:-
390. Robbery:- In all robbery there is either theft or extortion.
When theft is robbery- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, 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 of instant wrongful restraint.
When extortion is robbery- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation- The offender is said to be present if he is sufficiently near to FIR No.307/12 Unique ID no. 2404R0078192013 7/10 put the other person in fear of instant death, of instant hurt or of instant wrongful restraint.
392. Punishment for robbery- Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
Robbery is aggravated form of either of theft or extortion. The opening words of Section 390 IPC show that there cannot be any robbery, if there is no theft or extortion. Theft will become robbery, if, in order to facilitate the commission of theft or in carrying away or attempting to carry away the stolen property, the offender(i.e thief) voluntarily causes or attempt to cause death, hurt or wrongful restraint or fear of instant death, hurt or wrongful restraint. The word 'for that end' appearing in Section 390 IPC are very crucial, which distinguishes a case of theft accompanied with assault/criminal force with that of robbery. Thus, if the death, hurt or wrongful restraint has not been caused for the end of achieving the object of theft or carrying away stolen property, that will not amount to offence of robbery U/s 390 IPC.
10. Now, it is to be considered whether the ingredients Section 390 IPC are fulfilled in the present case or not. The testimony of PW1 is already been referred above. PW1 was the victim/eye witness of the present case. None of the other witness is the eye witness of the offence. The whole case of the prosecution revolved around the testimony of PW1.
FIR No.307/12 Unique ID no. 2404R0078192013 8/10 The testimony of police official are not very relevant to the fact of the present case as there is no charge U/s 411 IPC in the present case. At the risk of repetition, it is to be mentioned here again that PW1 deposed that accused Ved Prakash snatched money from her and given to that accused Jai Kishan and thereafter Jai Kishan and Rahishu ran away with the bundle of notes. Nothing came in the testimony of PW1 which could be suggestive that she was put any fear of instant death, hurt or wrongful restraint. The basic ingredient which convert the offence of theft into robbery i.e fear of instant death, hurt or wrongful restraint is missing in the present case. Section 392/34 not made out against accused persons. Here, the provisions of 356 and 378 IPC are to be referred:
356. Assault or criminal force in attempt to commit theft of property carried by a person- Whoever assaults or uses criminal force to any person, in attempting to commit theft on any property which that person is then wearing or carrying, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
378. Theft- Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft.
In the present case the ingredient of offence of theft are made out as it is came in the testimony of PW1 clearly that accused person in furtherance of common intention snatched money from the complainant and ran away. The snatching of money from the complainant falls under the FIR No.307/12 Unique ID no. 2404R0078192013 9/10 purview of offence U/s 356 IPC. Accordingly all the accused persons are hereby convicted for the offences U/s 356/379/34 IPC. Copies of this judgment be given to accused persons free of cost.
File be consigned to Record Room after due compliance.
Announced in the open court (KAPIL KUMAR)
on 22.09.2014. Metropolitan Magistrate-06
North District, Rohini Courts
Delhi.
FIR No.307/12 Unique ID no. 2404R0078192013 10/10
FIR No. 307/12
P. S. Ad. Nagar
22.09.2014
Present: Ld. Sub. APP for the state.
Accused Rahishu produced from JC.
Accused Ved Prakash and Jai Kishan are present on bail.
Accused persons are represented by LAC Ms. Rakhi Budhiraja.
Final arguments heard at length.
Vide separate judgment of even date, announced in open court, accused persons are convicted U/s 356/379/34 IPC.
Ld. Counsel for accused persons wishes to advance arguments on the point of sentence today only. Request considered.
Arguments on the point of sentence heard. Ld. Sub.APP for the state submits that a substantive punishment be awarded to convicts so that a deterrent message be sent to the society. Convicts pray for a lenient view as they have submitted that they want to repent for the above said offence and they have further submitted that he wants an opportunity for reformation.
The penology is largely based on two cardinal principle i.e. Deterrent and reformative theories. The convicts have shown a genuine desire to repent, therefore, must be granted a fair opportunity for reformation so that they can be a useful citizens of the country. Simultaneously, the convicts must be awarded such a sentence, which discourages the other like minded people of the society from entering the world of crime. However, a balance is required to be maintained FIR No.307/12 Unique ID no. 2404R0078192013 11/10 between the theories, while sentencing the convicts. No single theory whether deterrent, preventive, retributive or reformative can help in eliminating crimes and criminals from society. It is only through an effective combination of two or more of these theories that an ideal penal programme can be drawn to combat crimes. It is also essential to understand crime as a social and individual phenomenon and the need to prevent its commission or repetition by adapting an attitude conducive to the resocialization and reformation of the criminal. The criminals reformation serves a great social purpose and society itself becomes the greatest beneficiaries of this reformation by being freed from his depredations. If the society cannot reform an offender, it is punishment for the society.
In view of the aforesaid discussion and submissions of the parties and the genuine desire of the convicts to reform, and in view of the fact that convicts had just crossed the age of 18 years at the time of offence and they are the sole bread earner of the family, the convicts are sentenced for the period already undergone by them. Bail bonds cancelled. Sureties discharged. Documents, if any be returned as per rules.
Accused Rahishu be released from JC, if not required in any other case.
File be consigned to Record Room after due compliance.
(Kapil Kumar) MM06, North District Rohini Courts, Delhi 22.09.2014 FIR No.307/12 Unique ID no. 2404R0078192013 12/10 FIR No.307/12 Unique ID no. 2404R0078192013 13/10