Delhi District Court
State vs Manoj & Anr on 30 June, 2015
IN THE COURT OF SH. TARUN YOGESH, ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, SOUTH DISTRICT, SAKET COURTS
COMPLEX, NEW DELHI
State v/s Manoj & Anr
FIR No. 256/10
PS: Saket
U/s: 392 r/w 34 IPC
JUDGMENT
1. S. No. / ID No. of the Case : 6R0352482010
2. Date of Commission of Offence : 09.09.2010
3. Date of institution of the case : 03.11.2010
4. Name of the complainant : Sh. Hari Om Sharma
S/o Gauri Shankar Sharma
R/o H. No. 1199, Sector3,
Pushp Vihar, New Delhi.
5. Name of accused, parentage : 1. Pawan (convicted on
21.02.2014)
S/o Sh. Rampal
R/o H. No. A470, Jhuggi,
Sector1, R.K. Puram, New
Delhi62
2. Manoj
S/o Shri Chand
R/o H.No. A133, Jhuggi,
Sector1, R.K. Puram, New
FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 1 of 13
Delhi.
6. Offence complained or proved : U/s: 392 r/w 34 IPC
7. Plea of Accused : Pleaded Not Guilty.
8. Final Order : Convicted u/s 392 IPC and
U/s 174A IPC
9. Date of Final Order : 30.06.2015.
B RIEF REASONS FOR SUCH DECISION :
01. Accused Manoj S/o Shri Chand has been charged U/s 392 read with 34 IPC upon allegation of having committed robbery alongwith co accused Pawan by wrongfully restraining complainant Sh. Hari Om Sharma on 09.09.2010 at about 11:00 PM, near bus stand, State Bank, MB Road, Saket and removing Rs. 4,300/ and voteridcard from his pocket by use of criminal force. He was subsequently charged U/s 174A IPC on 01.07.2014 for failure to appear in court on 23.01.2014 despite execution of proclamation under section 82 Cr.P.C on 23.12.2013.
02. Prosecution's case gleaned from chargesheet reveals that ASI Makhan Singh alongwith Ct. Shyam Singh reached at spot, near State Bank of India, MB Road, upon information received vide DD No. 32A and met FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 2 of 13 complainant Sh. Hari Om Sharma. Statement of complainant was recorded wherein he claimed to have gone to his friend's house after duty hours at Army Court, R. K. Puram and was returning to his home at Sector3, Pushp Vihar in the night of 09.09.2010 by busroute no. 680. At around 11:00 PM, he got down at Bus Stand MB Road near State Bank and was walking to his home, when two boys came from behind and one of the boys caught him while the other took out Rs. 4,300/ (all currency notes of Rs. 100 denomination) from his small pocket. He raised alarm of "chorchor" upon which both accused were apprehended with the help of public persons. Call was made on 100 number and thereafter police reached there and accused were handed over to police. They disclosed their names as Manoj S/o Shri Chand and Pawan S/o Sh. Ram Pal. Upon their cursory search, eight currency notes in the denomination of Rs. 100/ each and photocopy of complainant's voter ID card were recovered from accused Manoj. The currency notes and photocopy of voterIDcard were seized and ASI Makkhan Singh prepared tehrir for offence U/s 379/411 r/w 34 IPC which was sent to PS Saket through Ct. Shyam Singh for registration of FIR.
03. During investigation, ASI Makkhan Singh prepared site plan at the instance of complainant. Case property was kept in white cloth, FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 3 of 13 converted into pullnda, sealed with the seal of 'MS' and seized by IO. Accused were arrested. After consultation with senior officers, offence was altered from 379 IPC to 392 IPC. Having recorded statements U/s 161 Cr.P.C, ASI Makkhan Singh (IO) concluded investigation and prepared chargesheet which was filed in court and both accused were sent for trial.
04. Cognizance of offence was taken on 03.11.2010 and accused Pawan and Manoj were charged for offence U/s 392 r/w 34 IPC on 20.11.2010 to which they pleaded not guilty and claimed trial. Separate charge for offence U/s 174A IPC was given to accused Manoj on 01.07.2014 to which he pleaded not guilty and claimed trial.
05. Complainant Sh. Hari Om Sharma has entered the witness box as PW01. PW Ct. Shyam Singh & ASI Makkhan Singh (IO) have deposed as PW02 and PW03 respectively qua offence U/s 392 r/w 34 and U/s 411 IPC and PWs Ct. Amit Kumar, HC Lav Kumar and HC Giriraj have been examined as PW04, PW05 & PW06 respectively qua offence U/s 174A IPC.
06. Accused Manoj was examined U/s 313 (1)(b) Cr.P.C. and denied allegation of robbery and deposition of complainant and police witnesses for claiming falsely implication. Upon being reexamined by court FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 4 of 13 qua offence U/s 174A IPC he claimed of having no knowledge of any proclamation U/s 82 Cr.PC and also claimed to be suffering from blisters as reason for his nonappearance in the court. He, nonetheless, refrained from commenting upon depositions of Ct. Amit Kumar, HC Lav Kumar and HC Giriraj for want of knowledge and also declined to lead any evidence in defence.
07. However, judgment of conviction dated 23.07.2014 and order on sentence dated 04.08.2014 for offence(s) U/s 392 r/w 34 IPC & U/s 174A IPC were set aside by Ld. District and Sessions Judge vide judgment dated 30.05.2015 and matter was remanded back with direction to provide one opportunity to conclude the crossexamination of PW01 Sh. Hari Om Sharma.
08. After receiving back the judicialfile, PW01 complainant Sh. Hari Om Sharma was crossexamined by ld. defence counsel Sh. Jouhar Adeeb on 18.06.2015 and matter was relisted for final arguments.
09. Ld. APP for State has argued for convicting accused Manoj for offences U/s 392 r/w 34 IPC and U/s 174A IPC.
10. Adv. Sh. Jouhar Adeeb, per contra, has adverted to cross examination of PW01 recorded on 15.03.2011 read alongwith his further FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 5 of 13 crossexamination recorded on 18.06.2015 for contending that his duty hours being upto 8:00 PM, complainant has not sated the reasons to have left his office at around 7:00 - 7:30 PM on 09.09.2010. Ld. defence counsel has also drawn court's attention to FIR to submit that there is no mention of withdrawal of Rs. 4,000/ from bank and also referred to site plan showing no bushes and the fact that no slip of ATM or personal ticket was seized by IO and no efforts were made to search balance Rs. 3,500/.
11. Having heard their rival submissions and perused the evidence led on judicial record, it would be prudent to refer to the penal section.
12. Section 392 IPC provides punishment for robbery and 'robbery' itself is defined in section 390 IPC which is reproduced in verbatim below : Section 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.
FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 6 of 13 When extortion is robbery. .........................
13. Complainant Sh. Hari Om Sharma (PW01) has deposed that on 09.09.2010 at about 11:00 PM he reached near MB Road Bus stand, near SBI, when two boys came and took out Rs. 4,300/ from his pant's pocket and ran away. He has correctly identified accused Manoj in court and proved his statement (complaint) given to IO as Ex. PW 1/B. Though in his examinationinchief, he did not depose about any 'wrongful restraint' by accused, but, significantly during his crossexamination by Ld. LAC recorded on 15.03.2011 deposed by stating "The unknown persons have caught hold me and snatched my money...". Therefore, the essential ingredient of voluntary causing 'wrongful restraint' for commission of theft of Rs. 4,300/ to constitute 'robbery' has been established by his testimony recorded during his crossexamination. Upon his further crossexamination by Adv. Jauhar Adeeb on 18.06.2015, PW01 claimed to be carrying Rs. 4,300/ in his front inner pocket and photocopy of his voterIDcard in his front right pocket.
14. Complainant Sh. Hari Om Sharma (PW01) has proved the seizure memo of currency notes and photocopy of Voter ID Card as Ex. PW 1/A and has identified his signatures upon arrest memo and personal search FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 7 of 13 memo of accused as Ex. PW 1/D and Ex. PW 1/E. Case property viz eight currency of Rs. 800/ and photocopy of voterIDcard taken out of pullanda bearing seal of MS have been identified as Ex. P1 (Colly) and Ex. P2. Testimony of PW01 Sh. Hari Om Sharma has remained consistent during his crossexamination on 15.03.2011 and 18.06.2015 and inspires confidence of the court as there is no previous enmity with accused.
15. As regards contention raised by Ld. defence counsel in respect of recovery of Rs. 800/ out of Rs. 4,300/ and no efforts being made to recover Rs. 3,500/, recovery of lesser amount is not a fact which would impel the court to draw an adverse inference against prosecution. The possibility of accused having disposed of the remaining amount before they could be apprehended by complainant and publicpersons cannot be over looked. It is also relevant to note that during his crossexamination, complainant Sh. Hari Om Sharma (PW01) has deposed about accused having rushed into the bushes situated by the side of the road after snatching his money. Therefore, it is possible that accused might have managed to hide / dispose of the remaining amount in the bush before they were apprehended by complainant and public persons.
16. As regards nonjoining of public persons present at the spot FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 8 of 13 who were neither joined by IO nor any notice was given to them, the fact of nonjoining of public persons in proceeding is not fatal to the case of prosecution. The general apathy of public persons to join investigation is not unknown. Generally public persons are reluctant to join investigation in order to avoid harassment at the hands of the accused as also from taking rounds of court. While appreciating evidence, court has to see quality of evidence on record as public persons normally avoid to join themselves in police proceedings. Therefore, considering the testimony of complainant / PW01 which has withstood the test of crossexamination, the mere fact of non joining of public witnesses by itself is not sufficient enough to discard his testimony. (Reference be made to Mukesh Vs. State (NCT of Delhi) CRL. A. No. 274 / 2009).
17. In para no. 7 of the judgment of Hon'ble Supreme Court of India in case titled Ashok Kumar Chaudhary & Ors Vs. State of Bihar (2008) 12 Supreme Court Cases 173, Hon'ble Apex Court has held : "In our opinion, even otherwise it will be erroneous to lay down as a rule of universal application that nonexamination of a public witness by itself gives rise to an adverse inference against the prosecution or that the testimony of a relative of the FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 9 of 13 victim, which is otherwise creditworthy, cannot be relied upon unless corroborated by public witness."
18. As per the case of prosecution, accused Pawan and Manoj were apprehended by complainant and public persons and handed over to police. Further, Rs. 800/ and photocopy of voterIDcard of complainant was recovered from accused Manoj which was seized by police vide seizure memo. These incriminating evidence were explained to accused Manoj during his examination by court, but except for having denied the evidence as incorrect for claiming false implication, accused has not offered any explanation about his identification by complainant nor any explanation with respect to recovery of Rs. 800/ and photocopy of complainant's voterID card. He has also declined to lead any evidence in his defence. Failure of accused Manoj to offer any reasonable explanation therefore points towards his culpability.
19. PW03 ASI Makhan Singh (IO) during his crossexamination by Ld. LAC has interalia denied the suggestion of having apprehended accused from Birla school and having planted the money to falsely implicated them in this case. Robbery in this case was not committed in a moving bus, but only after complainant had deboarded the bus at MB road stand and was FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 10 of 13 walking to his home. It is also not expected from a reasonable person to carry his busticket and withdrawal receipt at all time. Hence, contention raised by Ld. defence counsel regarding failure of complainant to produce the bus ticket or withdrawal receipt, does not convince the court.
20. As regards the delay in sending tehrir / rukka to PS Saket is concerned, complainant Sh. Hari Om Sharma has deposed to have remained at the spot for around one hour. Court is required to evaluate evidence carefully and to consider whether the evidence as a whole inspires the confidence of court or not. In the facts and circumstances of the present case, considering the testimony of complainant Sh. Hari Om Sharma, the contentions raised by Ld. LAC are minor contradictions and insignificant discrepancies which are not fatal to the case of prosecution. In the case titled State of Punjab Vs. Gurmit Singh & Ors. AIR 1996 SC 1393 Hon'ble Supreme Court has held : Courts should examine the broader probabilities of a case and not get swayed by minor contradictions and insignificant discrepancies in the statement of the prosecutrix, which are not of a fatal nature, to throw out an otherwise reliable prosecution case.
FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 11 of 13
21. Therefore, on the basis of testimonies of witnesses examined on record, guilt of accused Manoj for offence U/s 392 r/w 34 IPC has been successfully proved by prosecution beyond reasonable doubt. As regards offence U/s 411 IPC, accused Manoj being held guilty U/s 392 r/w 34 IPC, he cannot be held guilty as receiver of stolen property. Refer to Rajjaua Vs. The State AIR 1959 ALL 718.
22. As regards offences U/s 174A IPC, Ct. Amit Kumar has deposed to have executed proclamation upon address i.e. A33, Sector01, R.K. Puram, New Delhi on 23.01.2013. He has proved his report upon proclamation as Ex. CW 1/B and statement of public person namely Sunny as Ex. CW 1/A, proved during deposition as Ex. PW 4/A. Nothing substantial has been evoked during his cross examination and he has denied the suggestion of having never visited the premises or having not pasted the proclamation upon the door of the said house. Similarly, HC Lav Kumar (PW05) has deposed to have arrested accused Manoj Kumar at INA Market and proved kalandara as Ex. PW 5/A, arrest memo of accused as Ex. PW 5/B and personal search memo of accused as Ex. PW 5/C.
23. Therefore, proclamation U/s 82 Cr.PC having been executed upon A33, Sector01, R.K. Puram, New Delhi on 23.12.2013 and accused FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 12 of 13 Manoj having failed to appear in court on 23.01.2014, i.e. after 30 days of execution of proclamation U/s 82 Cr.PC upon his address mentioned by him in his bail bond furnished and accepted in court, offence U/s 174A IPC stands squarely proved against him. Accordingly, accused Manoj is convicted for offence of robbery u/s 392 r/w 34 IPC and also U/s 174A IPC.
24. Be listed for submissions and order on the question of sentence on 06.07.2015.
ANNOUNCED IN THE OPEN COURT DATED: 30th June, 2015 (TARUN YOGESH) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE SOUTH DISTRICT, SAKET COURTS : NEW DELHI FIR No: 256/10 PS Saket State Vs. Manoj & Anr Page 13 of 13