Delhi District Court
Fir No. 137/08 Of P.S. Timarpur Titled As ... vs . Mukesh @ Hemant Etc. The on 20 March, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 142/1/2009
State
Versus
1- Mukesh @ Hemant
S/o Ramesh Chand
R/o Village-Karkora, P.S. Ahmadgarh,
District - Bulandsher, U.P.
2- Tajveer S/o Ramesh Chand
R/o Village-Karkora, P.S. Ahmadgarh,
District - Bulandsher, U.P.
3- Anil Kumar S/o Mahipal
R/o Village-Ghangola, P.S. Kasna,
District-Gautambudh Nagar, U.P.
4- Nand Lal @ Ganesh S/o Lalui,
R/o Village- Dewana, District-Kaushambi,
Allahbad, U.P.
(i)Case arising out of FIR No. 137/2008
U/S:
365/392/397/412/34
IPC
P.S. Timarpur
(ii) Date of FIR 10/03/08
(iii) Date of Institution 01/10/08
(iv)Date of Final Arguments 19.03.2010
(v)Judgment reserved on 19.03.2010
(iv) Date of judgment 20.03.2010
JUDGMENT
This judgment shall dispose of the present case pertaining to the FIR No. 137/08 of P.S. Timarpur titled as State Vs. Mukesh @ Hemant etc. The allegation against the accused persons are that on 8.3.2008 at about 4.35 am at outer Ring Road, Burari Chowk towards Mukundpur, Bypass within the S.C.No. 142/1/2009 Page 1/12 jurisdiction of PS Timarpur , they all in furtherance of their common intention robbed complainant Rati Mohd and cleaner Yaseen a mobile phone NO. 9761829302, Rs. 10,000/- and a truck bearing NO. HR38K-8539 by using knife by one of th em and abducted Rai Mohd. and cleaner Yaseen with the purpose to confine them secretly. All the accused persons have also been facing trial on the allegation that they were found in possession of plastic dana which they retained dishonestly knowing the same to be stolen property and thus thereby committed offence punishable v/s 392/397/365/411/34 IPC.
As per the chargesheet the case of prosecution is that the Sanjay Kumar engaged in the business of transport by the name of Pooja Transport at Punjabi Bagh Transport Centre. On 8.3.2008 his truck No. HR38K 8539 was loaded from Pata, UP with plastic grains which were about 600 bags and the same was to be delivered in Delhi. The goods were to go to Goa by passing from Delhi Sanjay Gandhi Transport Centre. On 10.3.2008, he had come to know in the morning from his driver Rati Mohd, that the truck was stopped at Burari Chowk Ring Road by another DCM and the persons sitting in DCM have overpowered driver, helper and took his truck in their custody. The truck was taken to Tulip Farm. They had taken away plastic grains begs from his truck and only 178 bags of grains was left in the truck. He had gone to Tulip Farm and called the police. Police made inquiries and recorded statement of Rati Mohd. and helper. Police had seized the truck with the remaining plastic begs in his presence. He had given a mobile phone to his driver Rati Mohd. for his use and later on got his truck released from court on supardari vide supardarinama and indemnity bone Ex. PW5/A. Further as per the deposition of PW4 Rati Mohd, who stated that on 08.03.2008 he had come to Delhi after loading his truck with Plastic grains No. HR 38K 8539. The time was about 03:30 AM and when reached near Burari Chowk after a little distance one DCM Toyota came in front of his truck and his S.C.No. 142/1/2009 Page 2/12 truck was made to stop. Some persons came out of the DCM and 4 came in his truck and he was overpowered by them and they started beating and his conductor Yaseen who was in the truck. They were having knives with them by which he was threatened. He and his conductor were tied with rope of their hands and legs even their mouths were covered with a blanket and tied and they drove his truck from there and they unloaded the Plastic Grains loaded in their truck which was in gunni bags and loaded the same in their DCM Toyota. They loaded 422 bags of plastic grains in their DCM Toyota. They had also taken Rs.10,000/- and one mobile which he was having at that time and they went away. After some time somebody opened his hands and untied him and from a nearby PCO, he informed to to his truck owner Sanjay Kumar regarding the incident. Sanjay Kumar reached at the spot and they went to PS Alipur and from there they then came to PS Timarpur. Police from PS Timarpur had come to the spot where his truck was lying and police also visited the place of incident where his truck was initially stopped by DCM Toyota and police had made a site plan. Police had recorded his statement Ex.PW4/A. He had informed police that assailants were of middle age group and he could not identify the assailants because it was dark. Police had seized his truck with the remaining plastic grains' bags and seizure memo Ex.PW4/B was prepared. Invoice and builty papers were seized vide memo PW4/C. On 10.3.2008 complainant Rati Mohd. gave statement Ex. PW4/A regarding looting of plastic grains from h is truck No. HR38K539 at outer ring road a little ahead of Burari Crossing. SI Sahib Singh prepared the Tehrir Ex. PW9/A on which FIR in the present case was registered vide Ex. PW2/A. It is further that on 10.6.2008 on receipt of secret information, SI Virender Parkash had come to Mellanium Park Sarai Kale Khan at about 5 pm and at the instance of informer they had apprehended all the four accused persons, all were interrogated, they disclosed that they had committed robbery at S.C.No. 142/1/2009 Page 3/12 high way i.e. at outer ring road in the night and had looted goods from the truck plastic grains bags and the driver and helper of the truck were tied and left in the area of Alipur and mobile phone and cash was also loot ed from them. He recorded disclosure statement of accused persons vide Ex. PW8/A, PW8/B, PW8/C and PW8/D. From accused Nand Lal a mobile phone of make NOKIA ( 1110) of that case was recovered and seized vide seizure memo vide memo Ex. PW8/E. And he had also seized the truck NO UP13B-5432 and car No. DL4CF0543 which were used in the robbery at Burari Chowk vide seizure memo Ex. PW8/F and PW8/G. All accused were arrested in the Kalandra u/s 41.1 Cr.P.C vide arrest memo Ex. PW8/H,I,J and K. and personal search of accused were conducted vide memo Ex. PW8/L,M,N and O. He had also recorded DD NO. 11 dated 10.6.2008 in the office of crime branch vide Ex. PW8/P and Kalandra u/s 41.1 Cr.P.C is Ex. PW8/Q. M and also seized another mobile phone which was also NOKIA make (1200). He had informed to the IO of case FIR NO. 137/08 PS Timarpur and produced the accused persons in the court of Ld. M.M at Patiala House courts. The IO of this case had collected the documents from him.
The IO/ACP Ram Avtar stated that on 10/03/08, the present case after registration was assigned to him for further investigation. He took the complainant Rati Mohammad firstly to Burari Chowk where he identified the spot. Then from the spot they proceeded to Alipur near Tulip Farm House. The complainant then pointed out the spot. One truck bearing no.HR38K8539 was found parked near the road. In the said truck 178 bags of plastic dana each weighing 25 Kg were found in the truck. The case property was seized vide seizure memo Ex Pw4/B. He had also seized the goods, challan, invoice and Builty vide seizure memo Ex Pw4/C. After that they came to the PS and the case property was deposited in the malkhana. On 11/06/08 an information was received from SOS Crime Branch that they had apprehended some persons who S.C.No. 142/1/2009 Page 4/12 had made a disclosure statement regarding the present case. The said information was recorded in the DD vide no.37B.
It is further stated by IO that on 13/06/08 the accused persons were being produced in the local courts at Delhi and accordingly he visited the court and after obtaining permission of the court for formal interrogation the accused persons were arrested vide arrest memo Ex Pw1/A to Pw1/D. The accused were than taken on for two days custody remand. They had also pointed out the place of occurrence vide is Ex Pw1/E. On 14/06/08 all the four accused made a disclosure statement which was recorded in the PS vide Ex Pw3/B to Pw3/E. On 14/06/08 the driver Rati Mohd. and cleaner Yasin had come to the PS and identified all the four accused persons being the same who had robbed them on 08/03/08. Since the accused persons had disclosed that they had sold half the robbed articles to one Mama and the other half to Nur Mohammad. He along with the Police team and the accused persons went to Sangam Vihar where the accused persons pointed out the house of Nur Mohammad. They had searched the house of Nur Mohammad and recovered five bags of plastic dana with particulars written on it and the same were seized vide seizure memo Ex Pw3/A. A Site plan was also prepared vide Ex Pw10/A and the case property was deposited in the Malkhana.
The other case property comprising of one mobile phone which was robbed from the complainants was recovered by the official of SOS Branch and it was informed that the said case property has been deposited in PS Nizammudin. The said case property was transferred and deposited in the malkhana of PS Timarpur. The container/canter used by the accused persons in commission of robbery was also seized by the officers of SOS Branch and the same was also got transferred to PS Timarpur. He also recorded the statement of witnesses and also collected the papers from the SOS Crime Branch which relates to the arrest, disclosure, seizure memo of this case etc He searched for S.C.No. 142/1/2009 Page 5/12 Nur Mohammad but he could not be found and got declared PO vide order dated 19.9.2005 later on, on 28/07/08 on his transfer the case file was handed over to MHC(R). He also got the truck no.HR38K8539 photographed and the photographs are now mark X1 to X3. He had also recorded the supplementary statement of complainant Rati Mohammad on 10/03/08 and 14/03/08. He also identified the case property i.e. one mobile phone moder 1110 , five bags containing plastic dana vide Ex. P-1 and P-2. He has also identified the accused persons. After completion of investigation chargesheet filed before the court for trial.
On completion of proceeding u/s 207 IPC the case file was assigned to this court and prima facie charge for offence punishable u/s392/397/365/411/34 IPC framed upon the accused persons. All the accused persons pleaded not guilty for the same and claimed trial.
Prosecution in order to prove the charges against the accused persons examined PW4 Rati Mohd, complainant , who in his examination has stated the story as narrated in the preceding para of the judgment, who has also stated that "he could not identify the accused as it was dark". In his cross examination by Ld. APP he stated that "He did not tell the police that he could identify those persons who were involved in the incident. It is correct that he have stated that assailants were 20/25 years of age. He possess a heavy driving license which he have got issued from Agra Authority which he obtained after passing the test in the authority. He did not meet police official or the IO of the present case on 14.06.2008 and did not give any statement to Insp. R.A. Meena on 14.06.2008. He did not learn the names of assailants as Anil, Mukesh, Tejveer and Nandlal and he had identified these persons and had stated in his statement to the IO that identified these assailant of the incident on 10.03.2008. It is denied t hat in order to save the accused persons he is deliberately deposing falsely and he have been won over by S.C.No. 142/1/2009 Page 6/12 the accused person.
PW12 Yasin is cleaner in the said truck alongwith complainant Rati Mohd. who also being declared hostile and deposed that " He cannot say who were those person who had beaten him and he cannot identify them as those persons heads put some Chadar on them. His hands were tied and he cannot say what happened thereafter. His statement was not recorded by the police.
The other witnesses are PW5 Sanjay Kumar is the owner of the goods has stated whatever conversation took place with complainant Rati Mohd. He has also identified the plastic grains bags recovered as well as taken the truck on supardari.
The other witnesses are the police officials who joined the investigation and proved the document prepared during the course of investigation.
After completion of prosecution evidence, statement of accused persons have also been recorded u/s 313 Cr.P.C. All the incriminating evidence come on record has been put to the accused persons. All the accused persons denied the same and deposed that they have been falsely implicated in this false case. All the accused also denied to lead evidence in their defence.
I have heard submission of Ld. APP for State, counsel for accused and also gone through the material on record.
The offence for which the accused has been charged are U/s 392 read with 397/34 IPC and 411 IPC. The definition for the purpose of punishment for robbery is defined U/s 390 IPC "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. S.C.No. 142/1/2009 Page 7/12
The offence of robbery is punishable U/s 392 IPC. When fear is used to enable any person to carry away booty, it amounts to robbery, theft is robbery when in committing theft or in order that theft by committing or in carrying away the booty force is used. Similarly robbery involve extortion hence person cannot be convicted both for the extortion and for robbery which is a special aggrievated from the extortion. The dacoity consisting of five or more persons conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commit a robbery and person present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
So far as, in respect of the charge u/s 397 IPC, it is essential to satisfy the word "uses" for the purpose of section 391 IPC, robbery being committed by an offender who was armed with a deadly weapon which was then in the vision of the victim shown as to create a terror in the mind of victim and in that it should be further shown, have been used for cutting, stabbing, shooting as the case may be. In Phool Kumar Vs Delhi Administration AIR 1925 SC 905 and Jung Singh Vs State of Rajasthan 1984 Crl. J. 1135, in these two cases it was held that "use of deadly weapon by one offender at the time of committing robbery does not attract section-397 for imposition of any minimum punishment for another offender who did not use such weapon and when the accused is charged U/s 395 read with 397 IPC for committing dacoity with attempt to cause grievous hurt, he cannot be convicted u/s 397 IPC only because one revolver had been recovered from the accused. This is no proof that he used the revolver while committing dacoity was charge u/s 397 will not attract. The provision postulates on only individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably neglects the use of the contradict or vicarious liability engrafted in section 34 IPC.
In case titled Sh. Shravan Dashratha Vs State of Maharashtra S.C.No. 142/1/2009 Page 8/12 1998 Crl. J. 1196 Bombay. The Bombay High Court has held that liability u/s 397 IPC he individually and not contradictive and this would become crystal clear and analysis of the section 397 IPC, it is only when a person while committing dacoity or attempting to commit dacoity uses any deadly weapon or caused grievous hurt or attempts to cause death or grievous hurt to any person then that person will be guilty of section 397 IPC. When there is no evidence at the time of committing robbery the accused used any deadly weapon or caused any grievous hurt or made any attempt to cause death or grievous hurt to any person who cannot be convicted u/s 397 IPC. The prosecution case is that it is the co- accused who inflicted the major injuries to the victim by committing high way robbery. Even though the accused participated in the case of robbery he did not commit any offence u/s 397 IPC and committing the offence U/s 392 and 394 IPC.
The section 390 IPC contemplates that the accused should have, from the very start, the intention to deprive the complainant of the property, and should for that purpose either hurt him or place him under wrongful restraint. The definition of "robbery" requires that either death or hurt or wrongful confinement is caused or it must be actually found that the victims were put in fear of instant death, instant hurt or instant wrongful confinement. In the absence of these findings and merely because the articles were removed from the persons of the victims when the accused were armed with lathis, does not by itself make out a case of robbery.
Where no force or show of force is found to have been used in the committing of theft, etc. the offence of robbery cannot be said to have been committed. If theft is already committed and violence is used to help an offender to escape, theft is not robbery. When two views are possible that violence was used either to help in removal of stolen article or to enable an offender to escape after commission of theft, the view favourably to the accused should be S.C.No. 142/1/2009 Page 9/12 accepted.
Accidental infliction of the injury by the thief will not convert offence into robbery that come under the definition of theft. The accused abandoned the property obtained by theft and through stones at his pursuer but determined him from continuing pursuit. It was held that the accused was guilty of theft and not for robbery. It is not sufficient that any transaction of committing theft, hurt etc. has been caused. If hurt etc. is caused at the time of commission of theft but for an object other than the one referred in this section theft would not amount to robbery. There is no rule of thumb that after the lapse of a long period the witnesses would in no case be able to identify the robbers they had seen in the course of robbery. The court has to be extremely cautious in appraising such evidence and the decision in each case must turn on its own special facts. Where the ocular witnesses had ample opportunity to notice and mark the special features of the miscreants and they had given some particulars of identify of the culprits in their statements to the police and they were not cross examined on this point vis-a-vis their police statements, the identity of the appellants as the robbers was established beyond reasonable doubt.
Both prosecution witnesses i.e. complainant Rati Mohd. and Yasin did not identify the accused persons. The complainant was also being cross examined by Ld. APP at length, where in he categorically stated that "He did not tell the police that he could identify those persons who were involved in the incident. It is correct that he have stated that assailants were 20/25 years of age. He possess a heavy driving license which he have got issued from Agra Authority which he obtained after passing the test in the authority. He did not meet police official or the IO of the present case on 14.06.2008 and did not give any statement to Insp. R.A. Meena on 14.06.2008. He did not learn the names of assailants as Anil, Mukesh, Tejveer and Nandlal and he had identified these persons and had stated in S.C.No. 142/1/2009 Page 10/12 his statement to the IO that identified these assailant of the incident on 10.03.2008. It is denied t hat in order to save the accused persons he is deliberately deposing falsely and he have been won over by the accused person."
It is further revealed from the material placed on record that the incident was taken place on 8.3.2008 and statement of complainant was recorded on 10.3.2008 and the FIR was recorded on 10.3.2008 and the accused was nabbed in this case on 13.6.2008 on the basis of disclosure statement under Kalandra u/s 41.1 Cr.P.C by SOS Crime Branch, Sun Light Colony. There is no judicial TIP was conducted. Nor any weapon of offence or any article were recovered from them. The plastic grain of 178 bags or 5 bags as alleged to recovered from Noor Mohd home at Sagarpur and truck tyota DCM are not being produced in the court for identification.
In case titled as Ram Kishan 1982 Cri L.J. (NOC) 14 (MP), it has been held that " where there was no proof that offender at the time of committing dacoity used deadly weapons, conviction was quashed. The use of a deadly weapons. It does not apply to such persons taking part in a dacoity as may be liable for grievous hurt committed by one of the party only by virtue of section 34. Both the star witnesses have not corroborated the testimony of prosecution case and there is no recovery of weapon of offence either on 10.6.2008 or on 13.6.2008. There is no evidence which shows that accused persons have every been shown to the witnesses. When the evidence adduced did not conclusively lead to the guilt of the accused and only pointed needle of suspicion towards the accused and nothing more he cannot be convicted because suspicion is no substitute for proof in criminal trial.
The five plastic grain begs shown to be recovered from the accused Noor Mohd. neither being produced for Judicial TIP nor for identifying of the prosecution witnesses. During the examination of prosecution witnesses it S.C.No. 142/1/2009 Page 11/12 revealed that the accused persons sold the stolen goods to one Mammu and Noor Mohd. The Noor Mohd. and Mammu was never apprehended, interrogated or put in column NO. 2 at the time of filing the challan.
Hence, in view of aforesaid discussion and the fact that both the witnesses have discarded the allegation levelled against the accused an they failed to identify the accused persons as the persons who have committed the offence in question. They also failed to bring home the guilt of accused persons within the four corners of offence as alleged as their testimony do not inspire any confidence. The testimony of both the star witnesses is unreliable, untrustworthy and unbelievable. Therefore, the prosecution is failed to prove its case against the accused persons beyond all reasonable doubt. Accordingly all the accused persons namely Mukesh @ Hemant S/o Ramesh Chand, Tajveer S/o Ramesh Chand, Anil Kumar S/o Mahipal and Nand Lal @ Ganesh S/o Lalui are hereby acquitted for the charges levelled against them. Their bail bonds cancelled. Their respective sureties are also stands discharged. Case property if, any be disposed of in accordance with law. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 20.03.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C.No. 142/1/2009 Page 12/12