Delhi District Court
State vs . Sanjeev @ Kale & Other 1 Fir No.43/10 on 30 May, 2011
State Vs. Sanjeev @ Kale & Other 1 FIR No.43/10
IN THE COURT OF SHRI VISHAL GOGNE :
METROPOLITAN MAGISTRATE:03 SOUTH WEST
DISTRICT, DWARKA, NEW DELHI
STATE Vs. Sanjeev @ Kale & Other Date of Institution 20.05.10
FIR No. 43/10 Judgment Reserved on 27.04.11
PS Kapashera Date of Judgment 30.05.11
Under 392/411/34 IPC
Section
JUDGMENT
a) Sr. No. of the case 129/2 b) Date of offence 28.02.10 c) Name of the complainant Ankaj Kushan
d) Name & address of the accused 1. Sanjeev @ Kale, S/o Sh. Babu Ram, R/o RZ Q 74, New Roshanpura, Near Pooja Pipe factory, Najafgarh, New Delhi.
2. Saleem @ Pummy, S/o Sh. Rakesh Kumar, R/o RZ Z 30A, New Shyam Vihar, Najafgarh, New Delhi.
e) The offence complained of 392/411/34 IPC
f) Plea of accused Pleaded not guilty
g) The final order Convicted in 392 IPC and acquitted in
411 IPC
h) Date of order 30.05.2011
State Vs. Sanjeev @ Kale & Other 2 FIR No.43/10
BRIEF STATEMENT OF REASONS FOR DECISION:
1. Accused Sanjeev and Salim alongwith two other boys (juveniles Rohit and Pankaj) allegedly committed robbery upon complainant namely Ankaj Kushan (PW1) on the night of 28.02.10. A gold ring purportedly robbed from PW1 was later recovered from accused Salim. Resultantly, the two accused came to be charged under section 392 IPC and accused Salim was additionally charged under section 411 IPC. Both pleaded not guilty.
2. The facts alleged by PW1 in his complaint (Ex.PW1/A) dated 04.03.10 forming the basis of the FIR (Ex.PW8/A) and during his deposition in court may be summarised as under:
On 28.02.10 PW1 set off at about 8:00 pm from the house of his sister at Bhogal, New Delhi and reached the vicinity of Uppal Orchid Hotel at 8:45 pm where his car No. DL 6C G 4089 developed a mechanical snag. As he stood attending to the same, a car (Maruti Zen) pulled up behind him and three boys came out of it. PW1 described them as being in the age group of 2025 years. One of the boys forced PW1 on to the back seat of his car and sat along with him with another boy having joined them on the back seat. The third boy started driving the vehicle while the fourth accomplice drove the car of the assailants behind the car of PW1. The boys pushed PW1 down and relieved him of his wallet containing two credit cards of the ICICI and HSBC Bank and ATM card of SBI, a driving licence, PAN card and cash amount of Rs.1,000/. The boys also robbed a gold ring, gold chain and a mobile phone (Nokia) from PW1. They continued to drive through Dwarka and encashed Rs. 500/ from the ATM card of PW1. They subsequently transferred PW1 to the Maruti Zen car and ultimately threw him into a dirty drain (ganda nala) ahead of Dichao crossing and escaped. PW1 stumbled to a tea shop nearby and found a PCR van parked there. SI Shodan Singh (PW5) from PS Kapashera reached the spot and got PW1 medically examined at Safdurjang hospital. PW1 explained that he made the statement on 04.03.10 after recovering from the incident.
3. It is the version of the prosecution as depicted in the chargesheet that State Vs. Sanjeev @ Kale & Other 3 FIR No.43/10 accused Salim and Sanjeev were arrested by the officials of PS Vasant Kunj (South) on 03.03.10 from Gurgaon, Haryana in FIR No.59/10 registered at the said police station. These accused then purportedly disclosed their involvement in the incident reported by PW1. The two accused alongwith juveniles Rohit and Pankaj were thus apprehended by the IO in the present matter. The articles recovered from accused Salim included the gold ring allegedly robbed from PW1.
4. PW1 was the only eye witness cited and examined by the prosecution. The Ld. APP found the deposition of PW1 to be a sufficient indictment of both accused. It was pointed out that the eye witness had identified accused Sanjeev and Salim as being among the three boys who had come to the spot in a Maruti Zen car. Further, that PW1 had corroborated the contents of the original complaint Ex.PW1/A by deposing that the two boys had snatched his articles including a wallet, mobile phone, gold ring, chain and cash amount of Rs.1000/ apart from forcing him to deliver the PIN number of his ATM card and then withdrawn Rs.500/ from the ATM machine at Dwarka. The prosecutor argued that the act of snatching of the articles, beating (as further stated by PW1) and forcible obtaining of the PIN number by the two accused established that the aggravated form of theft as extortion had been committed by them. A conviction was thus sought under section 392 IPC.
5. It was submitted qua the charge under section 411 IPC against accused Salim that the police officials from PS Vasant Kunj i.e PW2, PW3 and PW10 had corroborated each other in asserting that a gold ring was seized from the said accused and taken into possession vide seizure memo Ex.PW2/A. Further, that this ring when produced in court was identified by PW1 as belonging to him. The Ld. APP submitted that the nature of the ring as stolen property was proved from the deposition of PW1 and the possession of the same established through the deposition of the police witnesses. Consequently, the charge under section 411 IPC was argued to have been proved.
6. The Ld. Defence counsels for the accused put forth various pleas. At the outset, it was pointed out that although the incident occurred on 28.02.10, PW1 State Vs. Sanjeev @ Kale & Other 4 FIR No.43/10 only made the complaint Ex.PW1/A to the police on 04.03.10. And that the delay in the registration of the FIR was neither explained by PW1 nor the IO (PW5).
It was next submitted that although PW1 had identified the two accused persons as being among the assailants, he failed to identify the juveniles namely Rohit and Pankaj during TIP. Also, that PW1 did not specify the respective role played by accused Sanjeev and Salim in the robbery. The counsel agitated that PW1 had indicated that the IO had shown the accused to him.
The purported recovery of the gold ring from Salim was also doubted by the defence counsel on the basis of certain contradictions in the versions of PW 2, PW3 and PW10 regarding the arrest of the accused. The Ld. Counsel submitted that no public witnesses were joined to the recovery proceedings and that no DD entry was made regarding the departure of the police party for arresting the accused at Gurgaon. It was thus represented to be a case of planting of evidence upon the two accused.
7. Undoubtedly, a sole witness to an incident of crime places a more onerous burden on the prosecution to prove the allegations. Yet, there exists no rule of law or prudence requiring that a solitary eye witness be disbelieved only for want of corroboration or be treated as being unworthy of belief. Indeed, if the court finds the testimony of the solitary witness to be reliable, a definitive finding of guilt can be based on the same. I find the deposition of PW1 to not suffer from any material infirmity. It is seen that PW1 quite cogently reiterated the contents of his original complaint Ex.PW1/A. He was specific in describing the manner of the incident. PW1 recounted that on 28.02.10, as he was trying to repair his vehicle near Uppal Orchid, three persons came in a Zen car and two of the boys restrained him on the back seat of the car with the third driving his vehicle. Thus, the initiation of the incident was sufficiently described by PW1. More crucially, PW1 elaborated that the two boys snatched his articles including a wallet, mobile phone, gold ring, chain and an amount of Rs.1,000/. It is not in doubt that the two boys had forcibly and wrongfully restrained PW1 in order to commit the theft of the above articles. The accused then forced PW 1 to disclose the PIN number of his ATM card and encashed Rs.500/. This conduct was no less than extortion. That PW1 was then beaten up thoroughly State Vs. Sanjeev @ Kale & Other 5 FIR No.43/10 fulfills the definition of theft and extortion as robbery as contained in section 390 IPC. It is certain that PW1 was robbed of these said articles and the cash amount.
8. Identification of the assailants is the gateway to conviction. PW1 was again explicit in this regard and stated that the two boys in question were present before him during deposition and pointed towards accused Sanjeev and Salim as the two boys. The identification being confident, the objections raised by the Ld. Defence counsel hold no force. When PW1 deposed that the two boys had snatched his articles and beaten him, there was no further requirement for specifying the minute role of each accused. In the commotion which must necessarily have occurred in the act of snatching, and that too in the constricted space in the backseat of a car, it would be too much to expect PW1 to have recalled as to which accused first laid a hand upon him and which of the two relieved him of the articles in question. It is sufficient as proof of robbery by the two accused that PW1 described the act of snatching, specified the articles/cash and identified accused Salim and Sanjeev as the offenders.
9. For the same reasons, it is of no adverse consequence to the prosecution that PW1 failed to identify the two juvenile accomplices of the above accused who did not face trial before this court. It may well be that the juveniles were not involved in the incident. After all, the very purpose of a test identification parade is to enable the police to identify the correct accused. Here, it would be pertinent to record that accused Salim and Sanjeev both refused to join TIP when it was sought to be conducted before the Ld. MM (PW7) who proved the TIP proceedings as Ex.PW7/A. The court ought to draw the necessary adverse inference inter alia that the result of the TIP would have been adverse to the two accused if they had participated in the same. That PW1 ended up identifying the accused persons in court during his deposition nailed the guilt of the accused facing trial before this court.
10. The aspect of the purported role of the IO in prompting PW1 to identify the two accused as the assailants may also be examined. The Ld. Defence counsel had pointed out that PW1 admitted that the boys in question has been State Vs. Sanjeev @ Kale & Other 6 FIR No.43/10 showed to him by the IO and that PW1 had even admitted in response to the court question that he had seen the accused properly only when shown by the IO.
It appears that the Ld. Defence counsels have artfully interpreted the clarifications by PW1 in favour of the accused when such would not be the logical construction. A witness is not well versed with the craft of cross examination and can often fall into a trap capable of dual construction. It is then the duty of the court to place a meaningful construction on the entire deposition of the witness including his examination in chief and cross examination. Reliance must foremost be placed on the first and natural deposition viz the examination in chief which is unaided and also unobstructed. During the examination in chief, PW1, while describing the incident, pointed out the two accused as the assailants. This identification was made in the natural course of examination and must be believed. What PW1 stated during cross examination was only a response to the question from the defence counsel. Even if the IO showed the accused to PW1, the own identification by PW1 does not become diluted. If the accused refused to participate in the TIP, the IO was duty bound to elicit from the complainant i.e PW1 as to whether the two accused held in custody by the IO were among the three boys who entered his car. Thus the reply by PW1 must be seen in this context. It is also relevant to note that PW1 denied the suggestion of the defence counsel that he had identified the boys only at the instance of the police. In sum, the identification of the two accused by PW1 cannot be treated as having been discredited during cross examination.
11. Another leg of the defence rested on the submission that no public witnesses were involved by PW2, PW3 and PW10 when apprehending the accused. The presence of public witnesses would certainly have added credibility to the evidence. Yet, the court must weigh the evidence qua the charge. The charge under section 392 IPC stands proved through the forceful deposition of PW1. Once the incident of robbery and the identity of the offender is established, any deficiency in the subsequent investigation inter alia want of public witnesses would not off set the incriminating value of the material witness viz PW1. The guilt of both accused is proved beyond any State Vs. Sanjeev @ Kale & Other 7 FIR No.43/10 doubt. Both accused are liable to be convicted under section 392 IPC.
12. The charge under section 411 IPC could, however, not be sustained by the prosecution. Firstly, the ring Ex.P1 was identified only by PW1. When PW2, PW3 and PW10 were examined, this ring was not identified by them. Although the police witnesses identified the seizure memo Ex.PW2/A, they did not identify the ring as it was not produced before them. It is not in dispute that PW1 was not a witness to the recovery. Thus the witness who identified the ring in court did not prove its recovery and the witnesses who proved the recovery did not identify the ring. Additionally, the absence of public witnesses, though not adverse to the charge under section 392 IPC, does harm the allegations under section 411 IPC. Especially since the police witnesses admitted that there existed shops at the place of arrest at Gurgaon. The IO ought to have recorded the statements of these shopkeepers. It cannot be ruled out that the recovery was not made as alleged. It would be unsafe to hold the accused guilty under section 411 IPC.
13. The evidence led by the prosecution is sufficient proof of the charge related to robbery but not recovery of the ring from accused Salim. Both accused are convicted under section 392 IPC and acquitted under section 411 IPC.
Announced in open Court.
Delhi Dated the 30th May, 2011 This Judgment contains 7 pages and each paper is signed by me.
VISHAL GOGNE
Metropolitan Magistrate 03 Dwarka
New Delhi
State Vs. Sanjeev @ Kale & Other 8 FIR No.43/10
IN THE COURT OF SHRI VISHAL GOGNE :
METROPOLITAN MAGISTRATE:03 SOUTH WEST
DISTRICT, DWARKA, NEW DELHI
STATE Vs. Sanjeev @ Kale & Other Date of Institution 20.05.10
FIR No. 43/10 Judgment Reserved on 27.04.11
PS Kapashera Date of Judgment 30.05.11
Under 392/411/34 IPC
Section
Order on Sentence
The two convicts were found in guilty by the court under section 392 IPC for having committed robbery of certain articles and cash upon the complainant (PW1). The prosecution succeeded in proving that in the night of 28.02.10, the two accused alongwith another juvenile accomplice bundled PW1 into his own car and snatched certain gold articles, credit cards and cash from him apart from forcing him to part with ATM PIN number and encashed Rs.500 using the same.
The Ld. APP has prayed for the imposition of a stringent sentence since the convicts acted in concert and also beat up the victim. It is submitted that deterrence should be ensured to prevent similar acts by the accused. The plea on behalf of the convicts is that they are young in age being only around 20 years old and deserve a chance to reform themselves. It is argued that the company of hardened criminals at the jail would deny them the opportunity to emerge as lawful citizens.
The evidence given by PW1 left it in no doubt that the convicts followed the car of PW1 and forcibly pushed him to the back seat of the car and then after beating him up they snatched the articles and cash and finally threw him into a dirty canal. The incident is quite grave.
State Vs. Sanjeev @ Kale & Other 9 FIR No.43/10 It was only the good fortune of PW1 that he did not lose much more than his valuables when the assault could easily have resulted in bodily harm and even worse. The conduct of the two convicts was criminal in the extreme. It is quite grave a circumstance that boys so young in age committed such a brazen offence. The trauma suffered by the victim can certainly be judged to be severe. Such incidents are a threat to law abiding citizens who have no inkling that danger could be lurking even during an innocent stop while driving a vehicle. The young age of the boys does not by itself entitle them to leniency. For the above reasons, the court does not find it prudent to exercise the option of releasing the convicts on probation as the same would amount to a case of misplaced mercy. The facts invites the punitive principle. A suitable period of imprisonment would serve as an opportunity for them to ponder over their conduct and realise the punishment which can befall a person who commits such acts of robbery. The time spent in custody would perhaps facilitate reform of the convicts.
The convicts are sentenced to simple imprisonment for two years and fine of Rs.5000/. In default of payment of fine, the convicts shall undergo SI for two months. The convicts shall be entitled to the benefit of section 428 Cr.PC.
Announced in open Court.
Delhi Dated the 25th June, 2011 VISHAL GOGNE Metropolitan Magistrate 03 Dwarka New Delhi