Delhi District Court
State vs . (1) Narender Kumar @ Naresh on 18 February, 2012
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 80/2011
Unique Case ID: 02404R1241332005
State Vs. (1) Narender Kumar @ Naresh
S/o Ramphal
R/o Village Nathupur,
PS : Kundli, Distt.: Sonepat,
Haryana
(Convicted)
(2) Satish Kumar
S/o Mehar Singh
R/o Village Nathupur,
PS : Kundli, Distt.: Sonepat,
Haryana
(Convicted)
(3) Shyam Sunder
S/o Budh Ram
R/o Village Sabali
Distt.: Sonepat,
Haryana
(Convicted)
FIR No. : 71/2005
Under Section : 397/392/411/34 Indian Penal Code.
Police Station : Narela
St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 1 of 52
Date of committal to Sessions Court : 03.03.2007
Judgment reserved on : 23.01.2012
Judgment pronounced on : 02.02.2012
JUDGMENT
Brief Facts:
As per the allegations, on 31.1.2005 at about 2:30 AM in front of the road outside Gurudwara Dera Baba Resham Singh, Krishan Nagar the accused Narender Kumar, Satish Kumar and Shyam Sunder in furtherance of their common intention committed robbery of Toyota Corolla Car bearing No. DL7CE3953 of cream colour from the possession of Raj Kumar @ Raju S/o Dhakan Bhandari and while committing the robbery they used katta, a deadly weapon and thereby committed an offence under Section 392/397/34 Indian Penal Code. It is further alleged that thereafter on 1.2.2005, the above accused persons got recovered the stolen Toyota Corolla Car from TPoint, Pahaladpur, Pooth Kalan road near Sector 23, Rohini, which they retained knowingly or having reasons to believe that the said car was stolen property.
Case of prosecution in brief:
The case of the prosecution in brief is that on 30.1.2005 on the receipt of DD No. 12A, SI Suraj Bhan along with Ct. Satyavir Singh reached the spot i.e. Sindhu Border Road, Gurudwara Dera Baba, Resham Singh Krishna Nagar, Narela, where complainant Raj St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 2 of 52 Kumar @ Raju met them and has given his statement to the police. The complainant Raj Kumar Bhandari @ Raju has stated in his statement that on 23.01.2005 he was working as driver on the car bearing no. DL 7C E 3953 Toyoto Corrola of cream colour belonging to Mr. Umesh Kumar Gupta. He has further stated that on that day he along with his owner Umesh Gupta went to Gurudwara Dera Baba Reshan Singh at Krishan Nagar, Narela and they parked their car in front of the said Gurudwara, his owner Umesh Gupta went inside the Gurudwara and he (Raj Kumar) was present inside the car at that time. Raj Kumar Bhandari @ Raju has stated that at about 2.30 PM two boys came to him and one of them started abusing him and pressed his neck and his hand while the other one sat in the back seat of his (Raj Kumar) car. Raj Kumar Bhandari @ Raju has further told the police that at that time he was sitting on the driving seat of the car, when one of the boy pushed him towards left side seat of the car and put knife on his neck, when he (Raj Kumar) tried to open the door of the car to save himself, one of the accused took out katta and again pushed him inside the car after showing katta to him on which he (Raj Kumar) raised an alarm and both the boys ran away from the spot with his car as the key of the car was inside the starting switch of the car. The complainant Raj Kumar has stated in his statement that thereafter he immediately went inside the Gurudwara and informed his owner Umesh Gupta in this regard after St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 3 of 52 which the police was informed and PCR reached there. and his statement was recorded. The complainant Raj Kumar has also given the description of the assailants. On the basis of the statement of Raj Kumar, the rukka was prepared and FIR was got registered. After completing the investigations, the charge sheet was filed in the court. CHARGE:
Ld. Predecessor of this court settled charges under Section 392/397/411/34 Indian Penal Code to which the accused persons pleaded not guilty and claimed trial.
EVIDENCE:
The prosecution in order to discharge the onus upon it, has examined as many as eleven witnesses:
Public Witnesses:
PW1 Raj Kumar Bhandari @ Raju has deposed that on 23.01.2005 he was working as a driver on the car No. DL7CE3953 Toyota Corola of cream colour belongs to Mr. Umesh Kumar Gupta and on that day he along with his owner Umesh Gupta went to Gurudwara Dera Baba Resham Singh at Krishan Nagar Narela and they parked their car mentioned above in front of the said Gurudwara. According to him, his owner Uamesh Gupta went inside the Gurudwara while he was present inside the said car at that time.
St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 4 of 52 Witness has further deposed that at about 2:30 PM two boys came to him and he has also correctly identified those boys (accused persons namely Narender and Satish) who were present in the court. According to him accused Narender started abusing him and pressed his neck with his hand while the other boy Satish sat in the back seat of his car and at that time he was sitting on the driver seat of the car. Witness has further deposed that accused Narender pushed him towards the left side of the car and put the knife on his neck and when he tried to open the door of the car in order to save himself and to run away get down from the car, Satish took out a katta and again pushed him inside the car after showing katta to him and again tried to drag him towards the car. Witness has further deposed that he raised alarm and ran away from the spot on which both the accused ran away with his above mentioned car as the keys of the car was inside the starting switch of the car. He has testified that he immediately went inside the gurdawara and informed his owner Umesh Gupta in this regard. According to him, some one informed the police from the spot on which PCR reached at the spot. Witness has also deposed that he did not see at which place the accused Shyam Sunder sat in the car after the incident when the above two accused ran away from the spot with the car. Witness has further deposed that investigating officer recorded his statement Ex.PW1/A and he pointed out the place of occurrence to the investigating officer St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 5 of 52 who prepared site plan at his instance. According to him though he told the description of the two accused persons at the time of recording of his statement at the spot but he was very perturbed at that time due to this incident. Witness has further deposed that thereafter he went to police head quarters where the portrait/ sketch of the accused persons were prepared at his instance by the police which are mark A, B, C and D. However, in his cross examination by Ld. APP for the state the witness has admitted having seen the third accused, namely Shyam Sunder and has correctly identified the accused Shyam Sunder as the boy who sat in the car at a small distance from the place of incident when the remaining two accused persons stopped his car near him which fact he stated he had forgotten due to lapse of time.
In his cross examination by Ld. Defence counsel witness has admitted that after the incident he went inside the Gurdwara. According to him within five minutes he reached the place of occurrence with his owner Umesh Gupta and his statement was recorded by the investigating officer at the time of incident. Witness has further deposed that the day of incident was a Sunday and many vehicles were parked in front of the gurudwara at that time but their drivers were not present inside the cars. According to him, there were around 10 to 15 persons going and coming from gurdwara. He St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 6 of 52 has also stated that some laboures were also present in the jhuggies in a nearby plot and no other car was parked in front of his car and also behind his car as the car which was parked behind his car had left prior to the incident. Witness has further deposed that at the time of incident he was confused also when PCR reached at the spot and the PCR officials made inquiry from him and recorded his statement. According to the witness they left the spot as the police officials from police station Narela reached there at that time. He has stated that he signed his statement in the police station. Witness has further deposed that his statement was recorded by SI Suraj Bhan while sitting at the reception of the police station and his owner Umesh Gupta was called by him to the spot from the Gurdwara and he also accompanied him to police station Narela. According to the witness he is not aware whether the statement of the owner was recorded by the police or not. Witness has denied the suggestion that he had forgotten the facts and has voluntarily added that he still remembered this incident. According to him he had signed only one paper with police and he was present in the police station for half an hour, thereafter he went to the house of his owner by evening. The witness is unable to tell the name of the police officer of the PCR who had recorded his statement and states that only the investigating officer namely SI Suraj Bhan came to the spot. Witness has further deposed that except one paper no other paper was prepared by the St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 7 of 52 investigating officer at his instance. According to him, he had received one small injury on his neck but he did not tell the police in his statement about the fact of his receiving injury since he was not sure if the said injury occurred due to knife in the hand of the accused or on account of rubbing of his shirt on his neck. Witness has further deposed that before committing the above mentioned incident accused Narender and Satish had taken several rounds of his car and their faces were partly covered by the cloth i.e. silk cloth but when they scuffled with him the cloth opened/ come off and he saw their faces. Witness has admitted that he had been shown the photographs of several persons in the police station. According to him investigating officer did not meet him for 1520 days after the incident nor he went to the police. He has also stated that he did not go with the investigating officer to any place except Tis Hazari courts and has further deposed that he had seen the accused at the time of the incident and also at Tis Hazari Courts at Room No. 28. Witness has denied the suggestion that he had seen the accused persons in the police station or that he was identifying the accused in the court on the asking of the investigating officer or that accused had not looted the car from him and he has falsely implicated them at the instance of the investigating officer. Witness has further deposed that investigating officer did not record the statement of anyone else in his presence.
St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 8 of 52 PW5 Umesh Kumar Gupta has deposed that the car Toyota Corrola bearing No. DL 7C E3953 belongs to The Great Gatby Club of Indian and he being the president of said club had gone to Gurudwara Narela on 30.1.2005 and the vehicle was being driven by his driver Raj Kumar @ Raju. According to him they parked the car in front of the Gurudwara and his went inside the Gurudwara while the driver Raj Kumar remained sitting in the car. He has further deposed that after some time Raj Kumar came inside the Gurudwara crying and told him that three boys had robbed the vehicle from him by showing a revolver. According to the witness on coming to know about the incident, he immediately came outside the Gurudwara along with Raj Kumar. He deposed that police reached at the spot and the FIR was got registered. The witness has further deposed that on 10.2.2005 he was informed by the police that the vehicle had been recovered and thereafter on 11.2.2005 the vehicle was released to him on superdari vide Ex.PW5/B. The vehicle is Ex.P1 and the photographs are Ex.P1A to Ex.P1D and the RC is Ex.PW5/A. In his cross examination by Ld. Defence Counsel the witness has deposed that his statement was recorded by the police at PS Narela which was gone through by him but he does not remember if his signatures were obtained on it or not. He deposed that the driver had told him that three persons robbed the car after putting the St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 9 of 52 fire arm on his person as one of them was having weapon. According to him the driver had also told him that the assailants were young persons. According to him except 30.1.2005, 10.2.2005 and 11.2.2005 he was not called at the police station Police / Official Witnesses:
PW2 SI Kartar Singh has deposed that on 30.01.2005 he was posted at Police station Narela as ASI and was working as a duty officer and his duty hours were from 4PM to 12 night and on that day at about 4:40 PM he received a rukka through Ct. Satyavir sent by SI Suraj Bhan for the registration of the case. According to him as per Rukka, he registered the case FIR No. 71/05 U/S 392/397/34 IPC which is in his handwriting and after registration of the FIR, he also made endorsement on the original rukka vide DD No. 14A, thereafter copy of FIR and original rukka were handed over to Ct. Satyavir to further handed over to SI Suraj Bhan for further investigations. Witness has also brought the original FIR, copy of which is Ex.PW2/A and endorsement on the rukka is Ex.PW2/B. In his cross examination by Ld. Defence counsels witness has denied the suggestion that Ct. Satyavir did not come to the police station with rukka or that the FIR was fabricated at the instance of the investigating officer or that he was deposing falsely. St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 10 of 52 PW3 HC Satyavir Singh has deposed that on 30.01.2005 he was posted at police station Narela as a constable and on that day he was on emergency duty then at about 2:48 PM on receiving the DD No. 12A, he along with investigating officer SI Suraj Bhan reached at Gurudwara Dera Baba Resham Singh, Krishna Nagar, Narela where complainant Raj Kumar @ Raju met them and investigating officer recorded his statement and prepared rukka and handed over to him for the registration of the case. According to him he went to the police station and got registered the case and thereafter he came back at the spot with the copy of FIR and original rukka and same were handed over to the investigating officer. Thereafter, they tried to search accused persons but all in vain and they came back to the police station and investigating officer recorded his statement in this regard.
In his cross examination by Ld. Defence counsels witness has deposed that he took the rukka to the police station from the spot at about 4:25 PM and came back alone at the spot after registration of the FIR.
PW4 ASI Darshna has deposed that on 31.01.2005 she was posted at police station Narela and was working as a duty officer from 9AM to 5PM and on that day at about 2:48 PM she received a message through wireless operator and same was reduced into writing vide DD No. 12A dated 30.01.2005 and same was handed St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 11 of 52 over to SI Suraj Bhan and the said message was also given to Addl. SHO police station Narela. Witness has also brought the original DD No. 12A copy of the same is Ex.PW4/A. According to her on 03.02.2005 she was working as a duty officer from 9 AM to 5PM and on that day at about 11:30 AM she received a message from Insp.
Chander Kant of Crime Branch, Prashant Vihar and same was reduced into writing vide DD No. 8A dated 03.02.2005 and same was handed over to MHC(R). Witness has also brought the original DD No. 8A dated 03.02.2005 the copy of the same is Ex.PW4/B. He has not been cross examined on behalf of the accused despite opportunity.
PW6 HC Vijender and PW8 HC Dilawar Singh both are the members of the raiding party and have deposed in toto. According to them on 1.2.2005 they were posted at Special Team Crime Branch, Prashant Vihar and on that day ASI Ram Kumar received a secret information after which a raiding party was constituted comprising of themselves, Inspector Hoshiar Singh, ASI Ram Kumar, Ct. Dilawar, Ct. Veerpal, Ct. Ved Prakash, Ct. Heera Singh and driver Ct. Dharampal and the raiding party left the office along with the secret informer at about 5:30 PM in a official vehicle i.e. tempo traveller bearing no. DL 1CF 4280 after taking two barricades with them and reached at Sector 23 Rohini at about 5:50 PM. According to these witnesses, ASI Ram Kumar made efforts to St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 12 of 52 join public witnesses in the raiding party but none agreed and left the place and therefore without wasting further time the raiding party reached at T Point, Prahladpur and barricaded the road and ASI Ram Kumar started checking the vehicle. They have further deposed that at about 6:30 PM one Toyota Corolla came from Prahladpur side and the informer pointed out towards the said car on which the said car was surrounded by the raiding party. According to them, ASI Ram Kumar disclosed his identity as police officers of Spl. Team Crime Branch and asked the driver and two other persons sitting in the car to get down from the car but in the meantime the driver fired towards ASI Ram Kumar which bullet did not hit him. According to these witnesses, thereafter the person who was sitting by the side of the driver of that car also took out a country made pistol and tried to point the barrel of the country made pistol towards the police party and the person who was sitting in the back seat of the car took out a dagger. However, Ct. Dilawar Singh immediately overpowered the person sitting on the driver seat who had fired and snatched the country made pistol from the right hand of the said person, whose name revealed later as Narender Kumar @ Naresh. The remaining two persons i.e. accused Satish Kumar @ Mota and Shyam Sunder were overpowered by the other members of the party. According to PW6 HC Vijender he along with Ct. Heera Singh overpowered the accused Shyam Sunder and from his possession one dagger was St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 13 of 52 recovered. According to them from the hand of the accused Satish one country made pistol loaded 315 bore was recovered. They have deposed that on checking the country made pistol which was recovered from the accused Narender, it was found to contain an empty fired cartridge and from his search one live cartridge was also recovered from the pocket of his pant. According to these witness, the IO prepared the sketch of the country made pistol, live cartridge and empty cartridge vide memo Ex.PW6/A and thereafter these articles were taken into possession vide memo Ex.PW6/B. According to these witnesses, he has further deposed that the country made pistol recovered from accused Satish was unloaded and one live cartridge was taken out from the said pistol after which the IO prepared the sketch of the pistol vide memo Ex.PW6/C and took into possession vide memo Ex.PW6/D. According to them the IO also prepared the sketch of the dagger recovered from the accused Shyam Sunder vide memo Ex.PW6/E and the dagger was sealed and seized vide memo Ex.PW6/F. They have further deposed that the vehicle was also taken into possession vide memo Ex.PW6/G and thereafter the accused persons were arrested in case FIR No. 187/05 under Section 307/353/186/412/34 IPC and Section 25 Arms Act, Police Station Sultanpuri. These witnesses have identified in the court all three accused and the case property i.e. the stolen Toyota Car St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 14 of 52 recovered from the possession of the accused persons which Ex.P1, dagger which was recovered from the accused Shyam Sunder as Ex.P2, the country made pistol and cartridges recovered from accused Satish which are Ex.P3 and Ex.P4, two empty cartridges, one country made pistol and one live cartridge as recovered from accused Narender which are Ex.P5, Ex.P6 and Ex.P7.
In his crossexamination by Ld. Defence Counsel, PW6 HC Vijender has deposed that when he received the information at about 5 PM he was in the DO office and they left vide DD No. 12 recorded by ASI Ram Kumar at 5:30 PM. According to him they reached at Sec. 23 Rohini at about 5:50 PM. He deposed he did not made any separate DD entry that he was carrying a pistol. According to him they parked the government vehicle towards Pooth village near barricade. He has deposed that all the documents i.e. sketch of recovered articles, their seizure and rukka including the arrest memos, personal search memos and disclosure statements of the accused, etc. were prepared by ASI Raj Kumar while sitting in the government vehicle at the spot itself. He has deposed that all the accused were apprehended simultaneously. He left the spot finally at 2 AM in the night. He has denied the suggestion that nothing was recovered from the possession of the accused. He has also denied that the accused were not apprehended and arrested in the manner he has deposed.
St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 15 of 52 In his crossexamination by Ld. Defence Counsel, PW8 HC Dilawar Singh has deposed that at the time of constitution of raiding party, he was present in the office of crime branch. According to him he was having service pistol with him which was with him permanently on those days. He deposed that some of the members of raiding party were also having weapons. According to him after reaching the spot, they parked the vehicle towards the Pooth side but he is unable to tell the distance from the barricades. The site plan Ex.PW8/DX was shown to the witness who pointed out his position at point Y along with ASI Ram Kumar, HC Vijender and informer. He has deposed that on that day it was not dark at about 6:30 PM. According to him the IO first prepared the sketch of country made pistol and cartridge recovered from the accused Narender after which Ct. Veerpal took the rukka to police station. He has deposed that he lastly signed the seizure memo of recovered Toyota car. According to him the empty cartridge of fired bullet was not recovered. He has denied the suggestion that nothing was recovered from the accused persons and all the articles have been planted upon the accused.
PW7 HC Mahender has deposed that on 1.2.2005 he was posted at PS Sultanpuri and was working as MHC (M) when SI Ram Avtar had deposited the vehicle No. DL 7C E3953 along with two sealed parcels containing country made pistol with cartridges, one St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 16 of 52 sealed parcel containing dagger, three personal search of accused along with FSL form of case FIR No. 187/05. He made entry in this regard at SL. No. 8357 in register No. 19 which copy is Ex.PW7/A. According to the witness, on 10.2.2005 the car was sent to PS Narela through Sub Inspector Suraj Bhan vide RC No. 682/21 for deposing in case FIR No. 71/05 (present case) and entry in this regard is at point X on Ex.PW7/A. He has deposed that on 26.8.2005 two sealed parcels containing one country made pistol and cartridge in each were sent to FSL Rohini vide RC No. 396/21 through Ct. Devender which entry is made at point X1 on Ex.PW7/A. Thereafter, on 18.9.06 Ct Sanjay deposited the parcels in FSL vide entry at point X2 on Ex.PW7/A. He has also proved the entry no. 682/21 dated 10.2.05 of RC register vide memo Ex.PW7/B and entry no. 396/21 dated 26.8.05 vide memo Ex.PW7/C. According to him the case property was not tampered by anybody till it remained in his custody.
In his cross examination by Ld. Defence Counsel, the witness has deposed that he is unable to tell when SI Ram Avtar deposited the case property with him. He has denied the suggestion that entries are manipulated at the instance of IO.
PW9 ASI Ram Kumar has deposed that on 1.2.2005 he was posted at Special Team, Crime Branch, and at about 4:45 on informer came to him and informed him that three boys who were St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 17 of 52 involved in robbery and having weapons with them and having robbed one car from the area of Narela, by which car they would come while going towards Nangloi via Prahladpur, Pooth Kalan at about 6:30 PM. He reduced the said information in writing vide DD No. 11 at about 5 PM and also passed on this information to the senior officer and on receiving instructions, he constituted the raiding party and left for the spot in a government vehicle. According to him he along with Inspector Hoshiyar Singh briefed the members of raiding party and thereafter took their positions at the spot i.e. Pooth Prahladpur Road On the way, he also asked some public persons to join the raiding party but none agreed. He has deposed that at about 6:30 PM the secret informer pointed out towards the vehicle in which three boys were coming and the raiding party surrounded the said vehicle. According to him he introduced himself to those boys as police officer on which the accused Narender fired towards him which bullet missed him and in the meantime Ct. Dilawar caught hold of the katta of accused Narender and snatched the same. He has deposed that thereafter Ct. Veerpal overpowered the boy sitting in side the car i.e. accused Satish and snatched the pistol from his hand. He has deposed that HC Bijender and Ct. Hira Lal overpowered the boy i.e. Shyam Sunder who was sitting on the backseat of the car and they snatched the dagger from his hand. According to the witness, he prepared the sketch of the recovered articles, sealed them and seized St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 18 of 52 them including the vehicle. He thereafter, prepared the rukka Ex.PW9/A and got the case registered vide FIR No. 187/2005 PS Sultanpuri after which he arrested the accused persons, conducted their personal search and also recorded their disclosure statements. These witness has identified in the court all the three accused and the case property i.e. the stolen Toyota Car recovered from the possession of the accused persons which Ex.P1, dagger which was recovered from the accused Shyam Sunder as Ex.P2, the country made pistol and cartridges recovered from accused Satish which are Ex.P3 and Ex.P4, two empty cartridges, one country made pistol and one live cartridge as recovered from accused Narender which are Ex.P5, Ex.P6 and Ex.P7.
In his cross examination by Ld. Defence Counsel, the witness has deposed taht Ct. Veerpal took the rukka on two wheeler of SI Ram Avtar. According to him SI Ram Avtar reached the spot at about 9:30 PM. He has denied the suggestion that at about 6:30 PM there was dark because of winter season in the month of February. He deposed that they tried to search the lead of fired cartridge but was not found. He has further deposed that he was standing at Mark B of the site plan and has denied the suggestion that he did not receive any secret information as stated in the examination in chief. He has further denied that he did not prepare any raiding party or that on 1.2.2005 he did not receive any secret information. St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 19 of 52 He has further denied that no desi kattas were recovered from the possession of accused Narender and Satish and the same have been planted upon them. He has also denied that nothing was recovered from the accused Shyam Sunder and the dagger had been planted upon him. He has denied the suggestion that the accused persons had been falsely implicated.
PW10 Inspector Ram Avtar has deposed that he was the investigating officer in case FIR No. 187/05 of PS Sultan Puri in which three accused persons namely Narender Kumar, Satish Kumar and Shyam sunder were arrested by him. He further deposed that the Toyota Corrolla car was recovered from the accused persons in that case. According to him the accused had made their disclosure statement that the said car was robbed by them from the area of PS Narela. He has deposed that ASI Ram Kumar who was a member of the raiding party verified this fact from PS Narela and found that the said car was involved in case FIR No. 71/05 of PS Narela and therefore, he had given the information to the Police Station Narela regarding arrest of accused persons and recovery of said vehicle in case FIR No. 187/05 through Inspector Chander Kant. He has deposed that he had provided the relevant documents to SI Suraj Bhan IO of case FIR no. 71/05 of PS Narela.
In his cross examination by Ld. Defence Counsel, the witness has deposed that no separate DD was recorded regarding St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 20 of 52 sending of information to the PS Narela. He has denied that the accused persons have been falsely implicated in this case. He admits that the said car was not handed over to the IO from the spot. He has further admitted that he was not a member of raiding party in case no. 187/05 or that the aforesaid car was not recovered in his presence.
PW11 Retd. SI Suraj Bhan has deposed that on 30.1.2005 he was posted at Police Station Narela and was on emergency duty from 8 AM to 8 PM along with Ct. Satyavir. On that day at about 2:48 PM, he received a DD No. 12A which is Ex.PW4/A and thereafter he along with Ct. Satyavir Singh reached the spot i.e. Sindhu Border Road, Gurudwara Dera Baba, Resham Singh Krishna Nagar, Narela, where complainant Raj Kumar @ Raju met them and has given his statement which is Ex.PW1/A. According to him he prepared rukka Ex.PW11/A and got the case registered through Ct. Satyavir. Thereafter, he prepared the site plan vide Ex.PW11/B at the instance of Raju @ Rajkumar bearing his signatures at point A. He thereafter recorded the statement of Ct. Satyavir and supplementary statement of Raj Kumar @ Raju. He also made efforts to trace the accused and the case property but the same could not traced till then and thereafter they came back to the police station. He has deposed that on 31.1.2005, he got the WT message flashed and got the sketches of the accused persons prepared which is St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 21 of 52 now Ex.PW11/C1 to Ex.PW11/C3. He has deposed that on 3.2.2005 he received an information that the accused persons had been arrested in case FIR No. 187/05 Crime Branch by the Team of Crime Branch and the Car bearing No. DL 7CE 3953 has been recovered in the said case. According to the witness, he went to office of Crime Branch and met SI Ram Avtar who provided him the photocopies of the disclosure statements, seizure memos and the other relevant documents. He has deposed that on 7.2.2005 he moved an application before Ld. MM seeking production warrants of accused persons which was allowed and thereafter on 14.2.2005 the accused persons namely Narender, Satish and Shyam Sunder and they were produced before Ld. MM and after permission of the court, he arrested the accused Shaym Sunder vide memo Ex.PW11/D, the accused Satish was arrested formally vide memo Ex.PW11/E and accused Narender Kumar was arrested formally in this case vide memo Ex.PW11/F. According to him the accused persons were interrogated and he recorded the disclosure statement of accused Narender which is Ex.PW11/G, disclosure statement was corroborated by remaining accused namely Shyam Sunder and Satish therefore he took the signatures of all three accused on the disclosure statement of accused Narender @ Naresh. On 10.2.2005, he went to PS Sultan Puri and got the aforesaid car transferred vide RC No. 682/21/05 to PS Narela and deposited the same in the Malkhana of PS Narela. According to St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 22 of 52 him, on 11.2.2005 the said car was released on superdari to its owner Umesh Kumar after taking the photographs of the car which are Ex.P1A to Ex.P1D. He has deposed that on 16.2.2005, the complainant Raj Kumar @ Raju had come to the court and had identified the accused persons while they were being produced before Ld. MM. He has identified the accused in the court.
In his cross examination by Ld. Defence Counsel, the witness has deposed that he along with Satyaveer went to the spot on his two wheeler scooter within ten minutes but he did not made any departure entry before leaving the Police Station. He has denied that the spot is a crowded area as a Gurudwara is situated there and states that he had recorded the statement of complainant Raj Kumar on the spot while sitting on the pavement on the road. According to him Ct. Satya Veer returned back to the spot after registration of FIR after about one hour and admits that the complainant Raj Kumar did not tell him that there were three persons involved in the offence prior to 16.02.05. He has denied the suggestion that he did not record the statement of complainant nor conducted any proceeding in the present matter. He has denied that the said FIR was fabricated at the instance of complainant and the owner of the car. Statement of Accused & Defence Evidence:
After completing the prosecution evidence, statements of the accused persons under Section 313 Code of Criminal Procedure St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 23 of 52 were recorded wherein all the incriminating evidence was put to them which they have denied. According to accused Narender Kumar he has been falsely implicated in this case after being lifted from his house on 30.1.2005. The accused Satish Kumar has stated that he has been falsely implicated in this case after being lifted from Singhu border. The accused Shaym Sunder has stated that he has been falsely implicated in this case after being lifted from his house on 31.1.2005. However, they did not examine any witness in defence.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel appearing on behalf of the accused. I have also considered the testimonies of the various witnesses examined by the prosecution and have gone through the written memorandum of arguments filed by the parties. Identity of the accused:
Firstly, the accused persons have not been named in the FIR and as per the complainant two boys had come to him and committed the offence. The accused in the present case have been apprehended on a secret information on 1.5.2004 by the Special Team Crime Branch, Prashant Vihar in case FIR No. 187/05 Police Station Sultanpuri and it was pursuant to the disclosure statements St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 24 of 52 made by them regarding their involvement in the present case after which production warrants were issued against them and they were taken into custody in the present case also.
Secondly, it is evident from the record that no Judicial Test Identification Parade has been conducted because on 14.2.2005 when all the three accused were produced before the Ld. MM, they were not in muffled faces and therefore the request of the IO was rejected on that day by Ld. MM. Even the request made by the IO seeking police custody remand and permission to interrogate the accused persons, was rejected by the then Magistrate. It is further evident from the testimonies of complainant Raj Kumar (PW1) and the SI Suraj Bhan (PW11) that on 16.2.2005 the complainant Raj Kumar had accompanied the IO to the court and identified the accused persons while they were being produced in the court and his supplementary statement was recorded.
Thirdly, while testifying in the court, the complainant Raj Kumar (PW1) has correctly identified the accused Narender and Satish as the two boys who had come to him and committed the offence. He has identified the accused Narender as the boy who started abusing him and pressed his neck with his hand while the accused Satish sat in the back seat of the car and the accused Narender pushed him towards the left side seat and put the knife on his neck. The complainant has further testified that when he tried to St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 25 of 52 open the door of the car to save himself and run away, the accused Satish took out a katta and again pushed him inside the car after showing a katta to him and tried to drag him towards the car.
Fourthly, in so far as the accused Shyam Sunder is concerned, in his examination in chief, the victim Raj Kumar (PW1) has stated that he did not see at which place the accused Shyam Sunder sat in the car after the incident when the two accused ran away. In his cross examination by Addl. PP, the victim Raj Kumar has only stated that he had seen the third accused Shyam Sunder when he sat in the car a little distance away from the place of incident.
Lastly, the offending act is only attributed to accused Narender and Satish and not to accused Shyam Sunder. In fact according to the victim and that too on the suggestion of the Addl. PP, he had seen the accused Shyam Sunder after the incident when he sat in the car at a little distance from the place of incident. In his statement Ex.PW1/A made to the Investigating Officer on the basis of which the FIR was registered, the complainant has mentioned only about two persons and has given their descriptions and even helped in preparation of portraits. It is writ large that the accused Shyam Sunder i.e. the third person has neither been named by the complainant nor identified by him in the court as having participated in the commission of the offence. Rather, it was only after he was St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 26 of 52 specifically pointed out by the Addl. Public Prosecutor that the witness for the first time identified him as a person who had entered the car after some distance.
In view of the above, I hereby hold that in so far as the identity of the accused Narender and Satish is concerned, it stands established qua the incident of robbery. However, in case of the accused Shyam Sunder, the prosecution has failed to establish his identity as the person involved in the robbery beyond reasonable doubt.
Allegations against the accused:
The only evidence against the accused persons is the sole testimony of complainant Raj Kumar (PW1). According to him he was working as driver of Umesh Gupta and used to drive Toyota Corola of cream colour bearing No. DL7CE 3953 and on the date of incident he along with his owner Umesh Gupta went to Gurudwara Dera Baba Resham Singh at Krishan Nagar Narela and parked the above Toyota Car in front of the said Gurudwara and his owner Umesh Gupta went inside the Gurudwara while he remained inside the car when the incident took place at about 2:30 PM. The relevant portion of the testimony of victim Raj Kumar (PW1) is read as under:
"On 23.1.2005 I was working as a driver on the car No. DL7CE 3953 Toyota Corola of cream colour belongs to Mr. Umesh Gupta. On that day I St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 27 of 52 along with my owner Umesh Gupta went to Gurudwara Dera Baba Resham Singh at Krishan Nagar Narela and we parked our car mentioned above in front of the said Gurudwara. My owner Umesh Gupta went inside the Gurudwara and I was present inside the said car at that time.
At about 2:30 PM two boys came to me and those two boys are present in the court today.
Witness has correctly pointed out towards the accused Narender and Satish. Accused Narender started abusing me and he pressed my neck with his hand and the other boy Satish sat in the back seat of my car. At that time I was sitting on the driver seat of the car. Accused Narender pushed me towards the left side seat of the car and put knife on my neck. When I tried to open the door of the car to save myself and to run away get down from the car. The accused Satish took out katta and again pushed me inside the car after showing katta to me and he was trying to drag me towards the car. I raised alarm and ran away from the spot and both the accused ran away with my above mentioned car as the keys of the car was inside the staring switch of the car. Then I immediately went inside the Gurudwara and informed my owner Umesh Gupta in this regard.
Someone informed the police from the spot and PCR reached at the spot. I did not see as to which place the accused Shyam Sunder sat in the car after the incident when two accused mentioned above ran away from the spot with my car. IO recorded my statement Ex.PW1/A which bears my signatures at point A. ....."
St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 28 of 52 Here I may observe that the victim has proved his first statement Ex.PW1/A wherein he has narrated the entire incident and has specifically given the description of the accused. As per the statement Ex.PW1/A, the boy who had drove the vehicle away was about 5.8", medium built, fair complexion aged about 3540 years and had wrapped himself with grey colour chaddar / sheet, whereas the other boy was about 5.6" height, shallow complexion, long hairs who was wearing cherry coloured jacket and blue colour jeans and sat on the back seat of the car. The victim Raj Kumar in his statement Ex.PW1/A, on the basis of which the FIR was registered, has specifically stated that he could identify those two boys if produced before him but in his testimony before the court he has specifically deposed that he had gone to Tis Hazari Courts along with the IO where he had seen the accused at the time of their production in Room No. 28 and had identified them. He has also explained that before committing the above incident, the accused Narender and Satish had taken several rounds in their car and their faces were covered of cloth but during the scuffle with him, the said cloth had come off and he could see their faces. He has also admitted in his cross examination that he had been shown the photographs of several persons in the police station. It is evident that the victim was never known to the accused previously and it was for the first time at the time of the incident that he had seen their faces and later identified St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 29 of 52 them in the Tis Hazari Courts (since Ld. MM had refused to conduct the test identification parade as the accused were produced in unmuffled faces in the court). Further, the incident cannot be doubted since Umesh Gupta (PW5), the owner of the car bearing No. DL 7CE 3953 Toyota Corola which was belonging to The Great Gatby Club of Indian situated at Institutional Area, Parparganj, has deposed that on 30.1.2005 he had gone to the Gurudwara, Narela in his capacity as president of the club and his car was being driven by Raj Kumar @ Raju (victim) and while he went inside the Gururdwara, Raj Kumar was with the vehicle outside the Gurudwara and after some time Raj Kumar came inside the Gurudwara crying that three boys robbed the vehicle from him by showing a revolver on which he came out of the Gurudwara along with Raj Kumar while the police also reached there and the FIR was registered. He has proved having taken the car on supardari and has identified the same in photographs Ex.P1A to Ex.P1D which was belonging to The Great Gatby Club, which car had been recovered from the possession of the accused persons on 1.2.2005 when the Special Team Crime Branch, Prashant Vihar had received a secret information pursuant to which they reached at Prahladpur T Point and barricaded the road after which they started checking the vehicles and at about 6:30 PM the said car came from Prahladpur side and on the pointing out of the secret informer the said car was surrounded by the police party in which car the accused St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 30 of 52 Narender, Satish and Shyam Sunder were sitting. After they were stopped, the driver of the car i.e. the accused Narender fired by the country made pistol towards ASI Ram Kishan which bullet did not hit anybody while the other boy i.e. the accused Satish also fired towards the police party and it was only after the interrogation that the names of the boys were disclosed as Narender and Satish and the third boy who was sitting in the car who was having a dagger was the accused Shyam Sunder, pursuant to which the FIR No. 185/05 Police Station Sultanpuri was got registered and it was pursuant to the disclosure statements made by the accused disclosing their involvement in the present case, that the information was given to the Investigating Officer of this case and they were formally arrested.
Ld. Defence Counsel has argued that the victim in his examination has improved upon the version given by him to the police by stating that Narender had pushed him towards the left side seat of the car and put knife on his neck whereas in his cross examination he states that before committing the offence, the accused Narender and Satish took several rounds in his car when their faces were partly covered by silk cloth but when the scuffle took place between them, the cloth opened and he could saw their faces. It is also pointed out that the DD No. 12A also proved that no knife was used while committing the offence and it is mentioned that two boys have snatched a car and they were having a pistol. In this regard I St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 31 of 52 may mention that the testimony of PW5 Umesh Kumar Gupta is relevant who has deposed that the victim Raj Kumar told him that during robbery the accused persons used fire arm.
I have considered the submissions made before me. Before coming to the same on merits, I may observe that the Hon'ble Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC, the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses.
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 32 of 52 used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated lateron.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing crossexamination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved through the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
Now applying the settled principles of law to the facts of present case, it is evident that the victim is only a driver of Umesh St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 33 of 52 Gupta (PW5) and was sitting in the car while waiting for his owner who was inside the Gurudwara. He must certainly have been taken by surprise when the accused suddenly came to him and started abusing him and after pressing his neck pushed him towards the seat and used arms to commit robbery of the car. In his first statement made to the police soon after the incident, the victim Raj Kumar has specifically explained that one of the boys had caught hold of his neck and thereafter when he tried to open the left side door of the car to escape, the other boy who came from the back seat showed him katta and caught hold of his neck and pushed him inside due to which button of his shirt was broken and he somehow saved him after raising an alarm on which both the boys drove the vehicle towards the nala side and in the said process even his shoes which he had removed, were left inside the vehicle. It is evident that the use of katta has been alleged on only one person i.e. the boy who was sitting at the backseat whom the witness has identified as accused Satish Kumar. The allegations of the knife being put on his neck are made in the court at the very first time and therefore being material improvement the testimony of the victim to the extent of use of knife as against the accused Narender is liable to be rejected. The witness has explained in his cross examination that he was perplexed and shocked at the time of the incident. His testimony finds a corroboration from the testimony of Umesh Gupta who has explained St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 34 of 52 that he was crying, naturally because he was shocked as the incident had taken place in quick succession. It is further evident that no medical examination of the victim Raj Kumar was got conducted and therefore the testimony of the victim that he had received small cut on account of the knife, is not admissible being an improvement, which fact also does not find any circumstantial corroboration.
It is further evident that in so far as the accused Shyam Sunder is concerned, there is no incriminating material and no specific role has been attributed by the victim qua him. In his first statement the victim has named only two boys as the assailants and makes no mention of the third boy and it was only on the suggestion of the Addl. PP that he has identified the accused Shyam Sunder as the boy who sat in the car later after some distance. This in my considered opinion is not sufficient for concluding any kind of common intention on the part of the accused Shyam Sunder but in so far as the accused Narender and Satish are concerned, both of them were consortium and therefore they both are liable for committing the offence under Section 392 IPC. Further, the accused Satish is also liable for committing the offence under Section 397 IPC whereas benefit of doubt is being given to the accused Shyam Sunder for the same.
Further, in so far as the recovery of the stolen vehicle from the possession of the accused is concerned, the testimonies of St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 35 of 52 all the police witnesses who are the members of the raiding party i.e. PW6 HC Vijender, PW8 HC Dilawar Singh and PW9 ASI Ram Kumar, having proved the receipt of information. Here, I may observe that this secret information has been reduced into writing vide DD No. 11 by and large ruling out planting of false case upon accused. Therese witnesses have also proved the constitution of raiding party, barricading of the area, checking of the vehicle and apprehension of the accused Narender, Satish and Shyam Sunder after stopping the car on the pointing out of the secret informer and the recovery of the fire arms from the possession of accused Narender and Satish and recovery of dagger from the possession of accused Shyam Sunder. It also stands established that the police party had received the secret information regarding accused persons coming in the aforesaid car from Prahladpur road and going towards Nangloi. It is further established that no public witness could be joined on account of the lack of time and that ASI Ram Kumar had asked some passerbyes to join the raiding party but none of them agreed to do so and thereafter without wasting further time they barricaded the area and took positions at the spot and started checking vehicles. The valid explanation is forthcoming for the same and there is no question to deny the same.
Specific charge under Section 411 Indian Penal Code has been framed against all three accused. The ingredients of Section 411 St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 36 of 52 IPC being covered under Section 392 IPC and all three accused being identified by the victim, the provisions of Section 411 IPC are liable to be read into Section 392/397 IPC for which technically no separate offence is made out. In so far as the accused Shyam Sunder is concerned, since he was found sitting in the stolen car and has been apprehended along with the coaccused Narender and Satish and no explanation is forthcoming from the accused Shyam Sunder in this regard despite being specifically asked to explain and he only says that he was lifted from his house on 31.12005. Therefore, under these circumstances, I hereby hold the accused Shyam Sunder guilty of the offence under Section 411 Indian Penal Code. Use of fire arms during commission of the offence of robbery:
The case of the prosecution is that the accused Narender and Satish have used fire arms while committing the robbery and therefore charges under Section 397 Indian Penal Code have been framed against all the three accused. In terms of my observations and findings as discussed herein above (not being repeated for the sake of brevity) it has been already observed that in so far as the use of katta is concerned, it only stands established against the accused Satish who had shown the kata to the victim when he was trying to free himself and escape from the car where he was held by the accused but in so far as the accused Narender Kumar is concerned, the fact St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 37 of 52 that he was having a dagger, has not been conclusively proved and established. It is for the first time in the Court that Raj Kumar in his testimony has made these allegations regarding use of dagger which does not find any independent corroboration in the form of medical record of the victim. Had the victim received injury on his neck by use of dagger, the police would certainly have noticed the same and got his medical examination done, which is not the case. Further, in case of the accused Shyam Sunder there is no incriminating material against him in so far as the incident of robbery is concerned and the only allegation made by the victim is that he saw Shyam Sunder entering the car after some distance which allegation was made only after a specific suggestion was made to him by Addl. PP in this regard. This being the background, benefit of doubt is being given to the accused Narender and Shyam Sunder in so far as the use of weapon is concerned and only the accused Satish is liable for the offence under 397 IPC.
Common Intention:
It is the case of the prosecution that all three accused in furtherance of their common intention have robbed the car from the possession of victim Raj Kumar (PW5). Before coming on the merits of the allegations, I may observe that Section 34 IPC has been enacted on the principal of joint liability in the doing of a criminal St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 38 of 52 act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 39 of 52 jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all" nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P. reported in 2004(3) SCC 793.
Applying the settled principles of law to the facts of the present case, I may observe that in so far as the accused Narender and Satish are concerned, there can be no dispute that both of them had acted in consortium (common intention) while committing the robbery, while Narender entered in the vehicle from front side door and pushed the victim inside, it was the accused Satish who sat from St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 40 of 52 the backseat and pulled out a katta when he (victim) tried to free himself resulting into scuffle between Raj Kumar and the accused. Therefore, under these circumstances the common intention on the part of accused Narender and Satish in committing the robbery in which the accused Satish also used the fire arm to threaten the victim and put him in fear, stands established at the time of the incident of robbery.
Further, it stands established that on 1.2.2005 all the three accused had been apprehended while they were coming in the stolen car from Praladpur side which vehicle was stopped by the police on the pointing out of the secret informer. Further, PW5 Umesh Gupta has duly proved before the court that the vehicle i.e. Toyota Corola car bearing No. DL 7CE 3953 was being used by him in the capacity of president of Great Gatby Club which was being driven by the victim Raj Kumar at the time of incident. He has proved the photographs of the vehicle Ex.P1A to P1D and also the copy of RC of the vehicle Ex.PW5/A which vehicle he later took on superdari vide Ex.PW5/B. None of the accused have been able to satisfy the court that they were not present in the stolen vehicle at the time of recovery of the vehicle or how the said vehicle came into their possession. I therefore hold that in so far as the common intention of all the accused while being in possession of stolen vehicle is concerned, the same stands conclusively proved and established. St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 41 of 52 FINAL CONCLUSION:
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.
Applying the above principles of law to the facts of present case, it is evident that the investigations conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 42 of 52 The identity of all three accused persons stands established and proved. It stands proved that on 23.01.2005 the victim Raj Kumar @ Raju was driving the Toyota Corola car bearing no. DL 7C E 3953 belonging to Mr. Umesh Kumar Gupta and had gone to Gurudwara Dera Baba Reshan Singh at Krishan Nagar, Narela and parked the car in front of the said Gurudwara. It is further proved that Umesh Gupta went inside the Gurudwara and Raj Kumar remained present inside the car when about 2.30 PM accused Narender and Satish came to him and Narender started abusing him and pressed his neck and his hand while the accused Satish sat in the back seat of the car. It further stands proved that the accused Narender pushed him towards left side seat of the car and put knife on his neck and when the victim Raj Kumar tried to open the door of the car to save himself, the accused Satish took out katta and again pushed him inside the car after showing katta to him on which Raj Kumar raised an alarm and both the boys ran away from the spot with his car. Further, the recovery of the stolen vehicle on 1.2.2005 from the possession of the accused Narender Kumar, Satish Kumar and Shyam Sunder has been proved by the police witnesses/ members of the raiding party i.e. PW6 HC Vijender, PW8 HC Dilawar Singh and PW9 ASI Ram Kumar, having proved the receipt of information, constitution of raiding party, barricading of the area, checking of the vehicle and apprehension of the accused Narender, Satish and Shyam St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 43 of 52 Sunder after stopping the car on the pointing out of the secret informer and the recovery of the fire arms from the possession of accused Narender and Satish and recovery of dagger from the possession of accused Shyam Sunder (FIR No. 187/05, PS Sultan Puri).
In view of the above, the accused Satish Kumar is hereby held guilty for the offence under Section 392/397 read with Section 411 Indian Penal Code and convicted accordingly. The accused Narender is held guilty for the offence under Section 392 read with Section 411 Indian Penal Code and convicted accordingly, however he is acquitted of the charges under Section 397 IPC. In so far as the accused Shyam Sunder is concerned he is held guilty only for the offence under Section 411 Indian Penal Code and convicted accordingly but he is acquitted of the charges under Section 392/397 IPC.
Be listed for arguments on sentence on 8.2.2012.
Announced in the open court (Dr. KAMINI LAU)
Dated: 02.02.2012 ASJ (NW)II: ROHINI
St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 44 of 52
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI
Sessions Case No. 80/2011
Unique Case ID: 02404R1241332005
State Vs. (1)
Narender Kumar @ Naresh
S/o Ramphal
R/o Village Nathupur,
PS : Kundli, Distt.: Sonepat,
Haryana
(Convicted)
(2)
Satish Kumar
S/o Mehar Singh
R/o Village Nathupur,
PS : Kundli, Distt.: Sonepat,
Haryana
(Convicted)
(3)
Shyam Sunder
St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 45 of 52
S/o Budh Ram
R/o Village Sabali
Distt.: Sonepat,
Haryana
(Convicted)
FIR No.: 71/2005
Under Section: 397/392/411/34 Indian Penal Code.
Police Station: Narela
Date of conviction: 2.2.2012
Arguments heard on: 8.2.2012/15.2.2012
Date of sentence: 18.2.2012
APPEARANCE:
Present: Sh. D.K. Singh, Addl. Public Prosecutor for the State.
All the three convicts Narender Kumar, Satish
Kumar and Shyam Sunder in
judicial custody with Sh. Rajneesh Antil
Advocate/ Amicus Curiae.
ORDER ON SENTENCE:
Vide my detailed judgment dated 2.2.2012, the
accused Satish Kumar has been held guilty of the offence under Section 392/397 read with 411 Indian Penal Code; accused St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 46 of 52 Narender Kumar has been held guilty of the offence under Section 392 read with Section 411 Indian Penal Code and the accused Shyam Sunder has been held guilty of the offence under Section 411 Indian Penal Code.
The case of the prosecution is that on 23.01.2005 the victim Raj Kumar @ Raju who was driving the Toyota Corola car bearing no. DL 7C E 3953 belonging to Mr. Umesh Kumar Gupta, had gone to Gurudwara Dera Baba Reshan Singh at Krishan Nagar, Narela along with Umesh Kumar Gupta and parked the car in front of the said Gurudwara. Umesh Gupta went inside the Gurudwara and Raj Kumar remained present inside the car when about 2.30 PM accused Narender and Satish came to him and Narender started abusing him and pressed his neck and his hand while the accused Satish sat in the back seat of the car. The accused Narender pushed Raj Kumar towards left side seat of the car and put knife on his neck and when the victim Raj Kumar tried to open the door of the car to save himself, the accused Satish took out katta and again pushed him inside the car after showing katta to him on which Raj Kumar raised an alarm and both the boys ran away from the spot with his car. The said Toyota Corolla belonging to Umesh Gupta was recovered from the possession of the accused Narender Kumar, Satish Kumar and Shyam Sunder on 1.2.2005 when they were apprehended by the members of the raiding party i.e. HC Vijender, St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 47 of 52 HC Dilawar Singh and ASI Ram Kumar who all have proved having received the information, constitution of raiding party, barricading of the area, checking of the vehicle and apprehension of the accused Narender, Satish and Shyam Sunder after stopping the car on the pointing out of the secret informer. The recovery of the fire arms from the possession of accused Narender and Satish and recovery of dagger from the possession of accused Shyam Sunder has been established (FIR No. 187/07, PS Sultan Puri).
On the basis of the testimonies of the various witnesses examined by the prosecution including the victim Raj Kumar, this court has convicted the accused Satish Kumar for the offence under Section 392/397 read with Section 411 Indian Penal Code; accused Narender has been convicted for the offence under Section 392 read with Section 411 Indian Penal Code (however he is acquitted of the charges under Section 397 IPC) and the accused Shyam Sunder has been convicted for the offence under Section 411 Indian Penal Code but he has been acquitted of the charges under Section 392/397 IPC.
Heard arguments of the point of sentence. The convict Narender Kumar aged about 29 years is a Matriculate and is a driver by profession. He has a family comprising of aged parents, three sisters, wife and two sons. He is also involved in two St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 48 of 52 other cases i.e. FIR No. 187/2005, Police Station Sultanpuri, under Sections 307/353/186/412/34 IPC & Sections 25/54/59 of Arms Act wherein he has been held guilty of the offence under Section 186 read with Section 353 Indian Penal Code and Section 25 of Arms Act and FIR No. 319/04, Police Station Chidawa Jhunjhunu (Rajastan), under Sections 392/398/120B IPC. He has already remained in judicial custody in this case for about one month and twelve days.
The convict Satish Kumar aged about 24 years is a Matriculate and is having his own shop. He has a family comprising of aged widow mother, one brother and two sisters who all are married and wife. He is involved in other cases i.e. FIR No. 187/2005, Police Station Sultanpuri, under Sections 307/353/186/412/34 IPC & Sections 25/54/59 of Arms Act wherein he has been held guilty of the offence under Section 186 read with Section 353 Indian Penal Code and Section 25 of Arms Act. He has already remained in judicial custody for about one month and thirteen days.
The convict Shyam Sunder aged about 27 years is 6th class pass and is a tailor by profession. He has a family comprising of aged parents, two married sisters, wife and two daughters. He is involved in other cases i.e. FIR No. 187/2005, St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 49 of 52 Police Station Sultanpuri, under Sections 307/353/186/412/34 IPC & Sections 25/54/59 of Arms Act wherein he has been held guilty of the offence under Section 186 read with Section 353 Indian Penal Code and Section 25 of Arms Act and has already remained in judicial custody for about one month and twenty seven days.
Ld. Amicus Curiae for the convicts has vehemently argued that all the convicts are young boys and are helping hands of their respective families. It is argued that all the convicts have undergone the mental agony for about seven years. He requests that a lenient view be taken against them. The Ld. Addl. PP for the State on the other hand has prayed that a strict punishment be awarded to the convicts keeping in view the allegations involved.
I have considered the rival contentions. All the convicts are young boys and at the time of the incident they were in their early twenties. The conduct of all the convicts throughout the trial remained satisfactory and they were regular in their appearances. Keeping in view the fact that the convicts have suffered the agony of trial for the last seven years and the fact that any harsh view would be detrimental not only to the convicts but also to their respective families, a lenient view is taken against them.
The convict Narender Kumar is hereby sentenced to Rigorous Imprisonment for a period of three year and St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 50 of 52 fine to the tune of Rs.2,000/ for the offence under Section 392 read with 411 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of two weeks.
In so far as the convict Satish Kumar is concerned, he is sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.5,000/ for the offence under Section 392 read with 397/411 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of one month.
The convict Shyam Sunder is sentenced to Rigorous Imprisonment for a period of one year and fine to the tune of Rs.2,000/ for the offence under Section 411 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of two weeks.
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them as per rules. It is further clarified that the sentence in the present case shall run concurrent to the sentences in case FIR No. 187/05, PS Sultan Puri.
The convicts are informed that they have a St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 51 of 52 right to prefer an appeal against this order. 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 with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU) Dated: 18.2.2012 ASJ (NW)II: ROHINI St. Vs. Narender Kumar Etc., FIR No. 71/05, PS Narela Page No. 52 of 52