Delhi District Court
3.Title State vs . Irfan & Another on 23 April, 2014
THE COURT OF MS NEHA PALIWAL :
METROPOLITAN MAGISTRATE-03, EAST
KARKARDOOMA COURTS : DELHI
1.FIR No. 225/2013
2.Unique Case ID No. 02402R0229422013
3.Title State Vs. Irfan & Another
3(A).Name of complainant Smt. Prakashi Devi, W/o Late Sh. Daya
Ram Sharma, R/o 245/1 B,School Block
Talab Chowk, Mandawali, Delhi.
3(B).Name of accused 1. Irfan, S/o Sh. Manzoor Alam, R/o Village Jumri, PS Gorpad, District Saharsa, Bihar.
2. Deepak Kumar, S/o Sh. Shiv Bhola, R/o H. No. 229/20, Gali No.18, Railway Colony, Mandawali, Delhi - 110092.
4.Date of institution of challan 15.7.2013
5.Date of Reserving judgment Not reserved. Pronounced on the same date.
6.Date of pronouncement 23.4.2014
7.Date of commission of offence 21.4.2013
8.Offence complained of Under Section 394/411/34 IPC
9.Offence charged with Under Section 394/34 IPC and accused Deepak charged in the alternative for the offence U/s 411 IPC.
10.Plea of the accused Pleaded not guilty
11.Final order Convicted for the offence U/s 394/34 IPC BRIEF REASONS FOR THE DECISION OF THE CASE:-
1. The case of the prosecution in a narrow compass is that both accused Irfan and Deepak committed robbery and in committing robbery caused hurt to complainant/injured Smt. Prakashi Devi. The said offence was alleged to have been committed on 21.4.2013 at about 6.30am in front of H.No. 245/1 B, Talab Chowk, Mandawali, Delhi. It is the case of the prosecution that both accused persons in FIR No. 225/2013 State Vs Irfan & Another 1 of 17 furtherance of their common intention committed robbery of gold kundal and gold tabeez of complainant Prakashi Devi and while doing so caused hurt to the complainant. It is further the case of the prosecution that the aforesaid robbed tabeez of complainant was found in possession of accused Deepak.
2. In the present matter charge sheet was filed by the IO before the court on 15.7.2013 and the cognizance for the offence was taken on the very same date and thereafter, the copy of the documents were supplied to the accused persons on the same date and after compliance of the provisions of Section 207 Cr.P.C. and after hearing parties, charge for the offence punishable u/s 394/34 IPC was framed against both accused and charge for the offence U/s 411 IPC was framed against the accused Deepak on 25.7.2013, to which the accused persons pleaded not guilty and claimed trial.
3. Thereafter, matter was fixed for prosecution evidence.
Prosecution in order to prove its case against the accused in total has examined as many as 11 witnesses namely PW-1 Smt. Prakashi Devi, who is the complainant in the present matter, PW-2 Sh Mahesh Chand Sharma: Witness of the spot, PW-3 Suresh Chand: Witness of the spot, PW-4 Dr. Shiv Chouksey, PW-5 Wct. Manju, PW-6, Ct. Rajesh Kumar, PW-7 HC Kaushalya, PW-8 Dr. Rachna Jain, PW-9 Ct.RAjpal, PW-10 Dr. Parmesh Sharma and PW-10 SI Om Prakash.
4. In the present matter, accused persons admitted the conduction of TIP proceedings viz a viz case property i.e. Tabeez U/s 294 Cr.P.C. conducted before Ld. MM Sh. Sujit Saurabh and therefore the said witness was dropped from list of witnesses.
5. PW-1 Smt. Prakashi Devi is the complainant in the present matter and has deposed that on 21.4.2013 at about 6.30am, when she was sweeping on the road outside her house, the two accused persons came near to her and one of them caught hold of her and the other one robbed both kundal and gold tabeez worn by her at that time.
FIR No. 225/2013 State Vs Irfan & Another 2 of 17
6. The witness correctly identified both the accused persons present before the court. It was deposed by her that accused Irfan took out her gold kundal and tabeez and other accused Deepak had kept his leg on her chest. It was deposed by the witness that she raised alarm and accused Irfan pressed her mouth. Meanwhile, her two sons came and both accused persons ran away in the gali alongwith her kundal and tabeez.
7. It was further deposed that many public persons have gathered and within 5 minutes accused Irfan was apprehended by the public.
8. It was further deposed that in the meanwhile police arrived and her statement was recorded by the police which is Ex. PW-1/A and her tabeez was recovered. The witness identified her thumb impression on the said documents at point A. It was further deposed that she was taken to LBS Hospital where she was treated. The witness correctly identified the tabeez before the court as Ex. P-1.
9. The witness in her cross examination by the Ld. Counsel for the accused persons deposed that she came to know about the name of both accused prior to the recording of her statement Ex. PW-1/A which was recorded by the police at around 7.30-7.45am. It was further deposed that accused was apprehended in the Park and not in her presence and her statement was recorded prior to going to the hospital.
10. The witness deposed that her tabeez was recovered from the pocket of accused Irfan. However, later it is deposed by the witness that cutter was recovered from possession of accused Irfan. The witness failed to identify her thumb impression on document Ex. PW-1/D-1 which is the seizure memo of the cutter.
11. PW-2 Mahesh Chand Sharma has deposed that on 21.4.2013, he was present in his house and at about 6.30am his mother Smt. Prakashi Devi was sweeping outside the house. It is deposed by the witness that on hearing noise from outside he came FIR No. 225/2013 State Vs Irfan & Another 3 of 17 outside the house and saw that two boys were running and his mother told him that they had snatched both kundal and locket which his mother was wearing at that time.
12. It was further deposed by the witness that he chased them and apprehended one of them. The witness correctly identified accused Irfan being the person apprehended by him.
13. It was further deposed by the witness that the other accused was chased by his brother Suresh and other people but he could not be apprehended and Irfan was beaten up by the public persons who had already gathered and in the meantime police came.
14. It was deposed that on personal search of Irfan one plas cutter was recovered from his possession and police took the accused and his mother to the PS from where his mother was sent to LBS Hospital and in the meanwhile he came to know that other accused was also apprehended and after that they came back at the PS, where his mother identified the apprehended accused in the PS. It was further deposed that locket was recovered from the possession of the said accused in PS.
15. The other accused was taken to the spot by the police and he told that he had thrown the kundal in the park and IO searched for the same, but the kundal could not be found and thereafter the IO recorded his statement.
16. In his cross examination it was admitted by the witness that recovery has not taken place in his presence. It was further deposed that police had came on their own as they were on patrolling duty. It was further deposed that his statement was recorded by the police at PS. It was further deposed that no document was prepared by the IO in his presence at the spot.
17. PW-3 Suresh Chand has deposed that on the same lines as deposed by PW-1 and PW-2 and has further deposed that on the day of incident he heard a noise and he alongwith his brother came out of the house and saw that mother was lying on the ground and two FIR No. 225/2013 State Vs Irfan & Another 4 of 17 persons were running. Mother told that they had snatched her tabeez and kundal.
18. It was further deposed by the witness that accused Irfan was apprehended by him and his brother and other accused fled away. Thereafter, he alongwith his brother brought accused Irfan before their mother, who in turn identified him.
19. It was further deposed that his brother conducted search of accused Irfan and one cutter plas numa was recovered from his pant. It was further deposed that as he tried to flee, the public persons gathered there and he was beaten up by the public persons.
20. It was further deposed that in the meanwhile police came and cutter and accused person was handed over to the police. The statement of his mother was recorded and his mother was sent to LBS Hospital with his brother Mahesh Sharma.
21. Sketch of the cutter was prepared Ex. PW-3/A bearing his signatures at point A and the cutter was taken into possession vide memo Ex. PW-1/D-1 bearing his signatures at point B. Accuse Irfan was arrested and his personal search was conducted vide memos Ex. PW-3/B and Ex. PW-3/C and his disclosure statement was recorded Ex. PW-3/D. The witness identified his signatures on the documents at point A.
22. It was further deposed by the witness that thereafter, accused Irfan was taken to the park alongwith him as well as other persons where he pointed out towards co-accused and he got apprehended. On police interrogation his name was known as Deepak. The witness correctly identified accused Deepak present before the court.
23. It was further deposed by him that on personal search of accused Deepak tabeez of his mother was recovered from his pant and pulanda of tabeez was prepared and the same was taken into possession vide seizure memo Ex. PW-3/E. The witness identified his signatures at point A. It was further deposed that thereafter, his mother and brother came and they also identified accused Deepak.
FIR No. 225/2013 State Vs Irfan & Another 5 of 17
24. Accused Deepak was arrested and his personal search was conducted vide memo's Ex. PW-3/F and Ex. PW-3/G. Witness identified his signatures on the documents at point A. Witness also identified the cutter recovered from the possession of accused Irfan as Ex. P-2.
25. In his cross examination by Ld. LAC it was deposed by the witness that the statement of his mother was recorded at the spot at around 6.30am and till that time other accused was not apprehended. It was further deposed that his statement was recorded at PS, However, the statement of his brother was recorded at the spot. It was further deposed that in his presence police did not ask any public person regarding the incident.
26. It was further deposed by the witness that he came to know about the arrest of second accused when he went to the PS at about 11.00am. It was further submitted that in his presence no seal was used by the IO.
27. PW-4 Dr. Shiv Chouksey, has deposed that on 21.4.2013 he had examined one lady namely Prakashi Devi with alleged history of assault and she was having complaint of pain and swelling over left foot for which plaster was done.
28. It was further deposed that on 4.5.2013, after confirmation of radiological report by the radiologist,he gave the opinion on nature of injury as simple. The witness exhibited his report i.e. MLC as Ex. PW-4/A and identified his signatures upon the same at point A.
29. In his cross examination it was deposed by him that the nature of injury as mentioned in the MLC could be caused if a person falls from stairs.
30. PW-8 Dr. Rachna Jain has deposed that she had examined the x-ray film of the complainant bearing no. 1586 on the basis of which she gave her report Ex. PW-8/A that there was no bony injury.
31. PW-10 Dr. Parmesh Sharma has deposed that on 21.4.2013, he had examined complainant Prakashi Devi vide MLC No. 5708/13 FIR No. 225/2013 State Vs Irfan & Another 6 of 17 Ex. PW-4/A. The witness identified his signatures on the MLC at point B. It was deposed that after examination and preparation of MLC, the patient was referred to Sr. Resident Orthology for detailed examination and further opinion.
32. PW-7 HC Kaushalya is the duty officer in the present matter and she has proved before the court the registration of FIR bearing no. 225/2013 Ex. PW-7/A (OSR) and endorsement upon rukka Ex. PW-7/B. The witness also identified her signatures upon FIR.
33. PW-5 Wct. Manju has deposed that on 21.4.2013, she reached alongwith Ct. Rajpal at the spot and from there she took the complainant to the hospital for getting her medically examined.
34. It was further deposed that after getting her medically examined she brought the complainant back to the park as she was informed that the accused has been apprehended in the park and thereafter the complainant remained with the IO for investigation. It was further deposed that she handed over the MLC of the complainant to IO.
35. The witness was cross examined by Ld. LAC wherein it was deposed that public persons had joined the investigation on asking of IO however, she does not know as to whether the IO has recorded their statements or not. It was deposed that IO recorded the statement of complainant and her son in her presence. The statement of the complainant was recorded when she came back from the hospital.
36. PW-6 Ct.Rajesh Kumar has deposed that on 21.4.2013 he alongwith SI Om Prakash was patrolling in the area and when they came near Talab Chowk they saw that public had gathered and on inquiry the complainant and her two sons told that two persons had snatched the kundal and locket of Smt. Prakashi Devi and out of them they had caught hold of one person namely Irfan. The witness correctly identified accused Irfan present before the court.
37. It was further deposed that despite efforts other accused could FIR No. 225/2013 State Vs Irfan & Another 7 of 17 not be found and thereafter, IO recorded the statement of the complainant and sent him to the PS alongwith the rukka for the recording of the FIR.
38. It is further deposed that thereafter, he handed over the copy of the original rukka and the FIR to the IO. Thereafter he alongwith IO and the two sons of the complainant and one of the accused namely Irfan went in search of accused to the park and at pointing out of accused Irfan another accused Deepak was apprehended from the spot. The witness correctly identified accused Deepak present before the court at the time of his deposition.
39. It was further deposed that on formal search of accused Deepak, Tabeez was found in his possession which was identified by the son of Smt Prakashi Devi. It was further deposed by the witness that thereafter the IO put the tabeez in a match box and sealed the match box with seal of OPV and both the accused were interrogated individually and accused Deepak told that the kundal are in the bushes near the park at Talab Chowk. It was further submitted that despite efforts the said kundals could not be traced and thereafter Prakashi Devi also came at the spot.
40. It was further deposed that the accused were taken by him alongwith Ct. Rajpal to LBS Hospital for medical examination and thereafter dozier was prepared and thereafter they were produced before the court and after taking judicial custody they were sent to Tihar Jail.
41. The witness was cross examined by the Ld. Counsel for accused persons wherein it was deposed by the witness that in his presence the statement of the complainant and her son was recorded and that the statement of the complainant was recorded prior to arrest of other accused. It was deposed by the witness that public persons have joined investigation. It was further deposed that besides tabeez a plas numa cutter was also recovered from possession of accused Irfan. It was further deposed that after he FIR No. 225/2013 State Vs Irfan & Another 8 of 17 came back from the PS with the copy of FIR and rukka the site plan and statement of witness Prakashi Devi was recorded. It was deposed by the witness that he had not signed on any document in the present matter.
42. PW-9 Ct. Rajpal, has deposed that on 21.4.2013, he alongwith WCt. Manju reached at the spot from where IO sent the complainant and Mahesh Sharma alongwith Wct. Manju at LBS Hospital for their medical examination and gave tehrir to Ct. Rajesh for registration of FIR. It was deposed that accused Irfan was in his custody. The witness identified his signatures on the sketch of the cutter Ex. PW-3/A at point B and on seizure memo Ex. PW-1/D1 at point C, on the arrest memo and personal search memo at point B and on the disclosure statement at point B.
43. It was further deposed that on the disclosure of accused Irfan, he alongwith accused Irfan and Suresh Sharma reached near liquor shop where Ct. Rajesh also came after registration of FIR. Thereafter IO mentioned the FIR Number on the documents prepared.
44. It was further deposed that thereafter, accused Deepak was apprehended at the instance of accused Irfan from inside the Talaab Park and he was also identified by Suresh Sharma. It was further deposed that on formal search of accused Deepak a Tabeez was recovered from the left side pocket of his pant which was identified by Suresh Sharma.
45. It was further deposed by the witness that the said tabeez was kept by the IO in the match box, a pulanda was prepared and was sealed with the seal of OPD and was seized vide seizure memo Ex. PW-3/B. The witness identified his signatures on the seizure memo at point A. It was further deposed that the seal after use was handed over to him.
46. The witness identified his signatures on the arrest memo and personal search memo of accused Deepak Ex. PW-3/F and Ex. PW-3/G at point B. It was further deposed that after some time complainant FIR No. 225/2013 State Vs Irfan & Another 9 of 17 and Mahesh Kumar Sharma also came with Wct. Manju from LBS Hospital and complainant identified accused Deepak and IO recorded the supplementary statement of complainant and statement of Suresh and Mahesh. It was further deposed that after medical examination, accused persons were produced before the court and from there they were sent to judicial custody and case property was deposited in the Malkhana and seal was taken by the IO from him and his statement was recorded. The witness correctly identified the accused persons present before the court.
47. In his cross examination, by Ld. Counsel for accused persons, it was deposed by the witness that seal was returned to IO on the same day. It was further admitted that no inquiry was made from any public persons in his presence. It was further deposed that IO did not asked any public person to join the proceedings at the time of the recording of disclosure statement of accused Irfan. It was admitted that cutter was not recovered in his presence from accused Irfan.
48. It was further deposed that at the time when accused Deepak was arrested IO had asked the public persons to join the proceedings but no one agreed. It was further deposed that no notice was given to any public person who refused to join the proceedings.
49. PW-10 SI Om Prakash is the IO of the present matter and he has deposed that on 21.4.2013 he alongwith Ct. Rajesh was conducting investigation in another case and was in that area and when they reached near Talab Chowk Park they saw that public had gathered and on inquiry two persons namely Suresh Chand and Mahesh Chand produced accused Irfan alongwith a plaas type cutter and complainant Smt. Prakashi Devi was also there. Ct. Rajpal and Wct. Manju also came at the spot.
50. It is further deposed by the witness that thereafter he recorded the statement of the complainant Ex. PW-1/A bearing his signatures at point X and thereafter he sent the complainant to LBS Hospital alongwith her son Mahesh Chand and Wct. Manju. Thereafter, he FIR No. 225/2013 State Vs Irfan & Another 10 of 17 prepared rukka Ex. PW-10/A bearing his signatures at point X and gave the same to Ct. Rajesh for registration of FIR.
51. It is further deposed by the witness that thereafter he prepared site plan Ex. PW-10/B bearing his signatures at point X and prepared the sketch of the cutter Ex. PW-3/A bearing his signatures at point X. Thereafter he seized the cutter vide seizure memo Ex. PW-1/D-1 bearing his signatures at point X and then confirmed the FIR No. and arrested the accused vide arrest memo Ex. PW-3/B and conducted his personal search vide memo Ex. PW-3/C and recorded the disclosure statement of accused Irfan Ex. PW-3/D, all the documents bearing his signatures at point X.
52. It is further deposed that thereafter Ct. Rajesh came back at the spot alongwith copy of FIR and rukka. Thereafter, accused Deepak was apprehended at the instance of accused Irfan. The said accused was identified by Suresh Chand and from his personal search tabeez was recovered from the left side pocket of his pant. It is further deposed that tabeez was kept in a match box and the same was kept in a white cloth and pulanda was prepared, which was sealed with the seal of OPV and was seized vide seizure memo Ex. PW-3/A bearing the signatures of witness at point X. It was further deposed that accused Deepak was arrested and his personal search was conducted vide memos Ex. PW-3/F and Ex. PW-3/G both bearing the signatures of the witness at point X.
53. It is further deposed by the witness that in the meanwhile complainant and her son also came at the spot and identified accused Deepak.
54. It is further deposed that after medical examination accused persons were produced before the court and were sent to judicial custody, the case property was deposited in the malkhana and statement of police witnesses was recorded.
55. It is further deposed that thereafter, opinion on the MLC of the complainant was taken and on 31.5.2013 TIP of tabeez was FIR No. 225/2013 State Vs Irfan & Another 11 of 17 conducted wherein the complainant correctly identified her tabeez. It is further deposed that after conclusion of investigation he has filed charge sheet in the court. The witness correctly identified both the accused persons present before the court and identified the cutter Ex. P-2 and the photographs of tabeez Ex. P-3 and Ex. P-4.
56. In his cross examination it was deposed by the witness that he was in the area for the investigation of FIR No. 224/2013 and had reached the spot at around 6.45 am. It is further deposed that he asked public persons to join the investigation, but they denied and left the place without disclosing their names and addresses. It was further deposed that he had recorded the statement of PW-2 and PW-3 Suresh Chand and Mahesh Chand after effecting recovery near Talab Chowk Park.
57. It was further deposed that no public person was present inside the park at the time of apprehension of accused Deepak. It was further deposed that tabeez was recovered in the present of PW Suresh Chand and both the constables.
58. Prosecution evidence was closed in the present matter vide order dated 17.2.2014 and the statement of accused persons U/s 313 read with Section 281 Cr.P.C. was recorded before the court on 3.3.2014, wherein all the incriminating evidence were put to the accused persons to which it was submitted by the accused persons that they are innocent and have been falsely implicated in the present matter and the complainant has identified them being an interested witness. As it was submitted by the accused persons that they do not wish to lead any evidence in their defence, the matter was fixed for final arguments.
59. I have heard the final arguments as advanced by the Ld. APP for the State and LAC for accused persons and have perused the entire material available on record.
60. In the present matter accused persons are charged for the offence U/s 394 IPC. Section 394 IPC provides for punishment for FIR No. 225/2013 State Vs Irfan & Another 12 of 17 voluntarily causing hurt in committing robbery. Section 390 IPC defines the offence of robbery and in the present matter the first limb of Section 390 IPC is attracted which deals with the situation when theft is robbery.
61. Section 390 IPC reads as under:-
Robbery.-In all robbery there is either theft or extortion When theft is robbery.- 'Theft is "robbery" if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant hurt, or of instant wrongful restraint.
62. Thus in order to attract first limb of Section 390 IPC it has to be proved before the court firstly that theft was committed. Secondly, that in order to committing it or while committing it or in carrying away the property obtained by theft the offender voluntarily caused or attempted to cause hurt or wrongful restraint to the victim.
63. Section 378 IPC defines the offence of theft and states that if a person intended to take dishonestly any movable property out of the possession of any person without that persons consent and moves that property in order to such taking he is said to commit theft.
64. In the present matter the complainant has not only identified both the accused persons before the court as the persons who have robbed the kundal and the gold tabeez worn by her at the relevant point of time, but has also specified the manner of commission of the offence alongwith the role claimed by each of the accused in committing the robbery and in carrying away the robbed articles as she has deposed that accused Irfan took out her gold kundal and tabeez and accused Deepak kept his leg on her chest and when she FIR No. 225/2013 State Vs Irfan & Another 13 of 17 raised alarm accused Irfan pressed her mouth. Thus the complainant has categorically identified the two accused persons before the court. She has also identified her tabeez in the TIP proceedings held on 31.5.2013.
65. The said complainant was also medically examined on the very same day and in her MLC, the nature of the injury is opined to be simple and it has been observed that she was having two small bruises over right side of neck 1x1 cm in size and red in colour.
66. PW-4 has deposed that he had examined the complainant on the same date and the lady was having swelling over the left foot for which she was plastered.
67. In the present matter there are certain discrepancies in the deposition of the witnesses regarding the fact as to when and in whose presence accused Deepak was apprehended. As it is deposed by the complainant that prior to the recording of her statement Ex. PW-1/A, she knew the name of both accused persons. It is deposed by the police witnesses that accused Deepak was apprehended in the presence of PW Suresh Chand and PW-3 Suresh Chand also in his examination in chief has stated that Deepak was apprehended in his presence. However, the said witness in his cross examination has deposed that he came to know that about the arrest of second accused when he went to the PS at about 11.00am.
68. Further more, there is discrepancy with respect to the fact as to where was the statement of the complainant was recorded as it is deposed by the complainant that initial statement was recorded at PS whereas it is deposed by IO and other witnesses that her statement was recorded at the spot. There is also discrepancy with respect to the fact as to where the complainant and PW-2 Mahesh Chand Sharma had identified accused Deepak as it is deposed by PW-2 that they had identified him in the PS where it is deposed by the police witnesses that they have been identified at the spot of apprehension.
69. The above discussed discrepancies are with respect to FIR No. 225/2013 State Vs Irfan & Another 14 of 17 investigation in the matter and not with respect to commission of offence, and does not fall in the category of material discrepancies as they are minor in nature and do not struck at the root of the matter. Mathematical precision cannot be expected in deposition of witnesses. Thus, they do not come to the rescue of the accused persons who are duly identified in court by all the prosecution witnesses who have corroborated the testimony of each other in material particulars.
70. It is settled law that the court has to see the quality of the evidence and not quantity of the same. Similarly when the witnesses are examined in the Court after a long gap, minor contradictions, omissions and discrepancies are bound to occur in the testimony of the witnesses. Hardly, one comes across a witness whose evidence does not contain a grain of untruth or an exaggeration, embroideries or embellishments. Merely because in one respect it is unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects also.
71. Reliance is placed upon Sukhdev Yadav & Others Vs. State of Bihar (2001) 8SCC 86 wherein it has been held 'Once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirely appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. When the witnesses are examined after a long gap minor contradictions omissions and discrepancies are bound to occur in the testimony of witnesses'. Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) 9 SCC 525 it was observed that there are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirely. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases.
FIR No. 225/2013 State Vs Irfan & Another 15 of 17 Minor embellishments, there may be, but variations by reason therefore should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.
72. In the present matter the complainant had categorically identified both the accused persons. Accused Irfan was apprehended at the spot by PW-2 and PW-3 and they have also identified accused Irfan before the court. The case property i.e. Tabeez was recovered from possession of accused Deepak and accused Deepak was arrrested subsequent to disclosure statement of co-accused Irfan. Though, it is established that PW-3 was not present at the time when Deepak was apprehended. However, tabeez which has been recovered from his possession has been identified by the complainant in TIP Proceedings and further more and more importantly the complainant has identified the accused as one of the assailants.
73. In the present matter injury has been caused to the complainant. It is opined in the MLC that the injury was simple in nature. However, there is an injury existing. The MLC is of the same date. There is proximity in the time of preparation of MLC, commission of offence and recording of FIR. Though it is deposed by PW-4 that the injury can be caused even if a person falls down from stairs. However, that is a mere presumption. The proximity in the time of preparation of MLC i.e. on 21.4.2013 at 10.30am coupled with the deposition of PW-5,PW-4, PW-10 Dr. Parmesh Sharma, PW-8 and the time of the sending of rukka at 8.45am, shows before the Court that hurt was caused to the complainant in the commission of the offence of robbery.
74. Thus in the present matter in view of testimonies of prosecution witnesses and in view of the material available on record, the prosecution has been able to prove that accused persons voluntarily caused hurt to the complainant. The said hurt was caused in committing robbery. Theft of movable property i.e. tabeez and FIR No. 225/2013 State Vs Irfan & Another 16 of 17 kundal was done. The said property was in possession of the complainant and was removed from her person without her consent with a dishonest intention and in committing the theft and for the purpose of carrying away the property obtained by theft, hurt and wrongful restraint were caused to the complainant.
75. The ingredient of wrongful restraint is further satisfied with categorical deposition that one of the accused has kept his leg on the chest of the complainant and other accused pressed her mouth.
76. Thus in view of the material available on record, it is established before the court that robbery was committed and voluntarily hurt was caused in committing the said offence.
77. Thus the accused persons are convicted for the offence punishable U/s 394 read with Section 34 IPC.
78. Let the Convict be heard separately on the quantum of sentence.
79. Copy of judgment be supplied to the convict free of cost.
Announced in the (Neha Paliwal) Open Court on 23.4.2014 Metropolitan Magistrate, KKD/Delhi
It is certified that this judgment contains 17 pages and each page bears my signatures.
(Neha Paliwal) Metropolitan Magistrate, KKD /Delhi 23.4.2014 FIR No. 225/2013 State Vs Irfan & Another 17 of 17 FIR No. 225/2013 PS Mandawali U/s 394/411/34 IPC State Vs Irfan & Deepak 28.4.2014 Order on sentence.
Present: Ld. APP for State.
Convicts Irfan and Deepak, produced from JC with LAC Sh. Sanjeev Kumar.
It is submitted by Ld. Counsel for the convicts that the convicts Irfan and Deepak are aged 23 and 25 years respectively and are in custody in the present matter since the day of their arrest i.e. from 21.4.2013. It is further submitted that convicts have old parents to support and an opportunity be given to them to reform themselves. It is further submitted that they are the first time offenders and there is no previous conviction record.
Per contra it is submitted by Ld. APP for State that maximum punishment be given to the convict as prescribed under law.
Submissions heard. Record perused.
In the present matter the convicts are convicted for the offence U/s 394/34 IPC. The complainant is an old lady aged 72 years of age and the movable property i.e Kundal and Tabeez worn by her at the relevant point were robbed with force. Out of the two convicts one convict was arrested at the spot and case property was recovered from other convict, duly identified by the complainant in TIP proceedings. The incident is of 6.30am. While convicting the court has to look both at the mitigating and aggravating factors and the sentence should be such so as to inculcate the faith of the society in the legal system.
Considering the gravity of the offence proved against the convicts, the convicts are sentence to a rigorous imprisonment of 2 years and further sentence to pay a fine of Rs. 4000/- each which would be given as compensation to the complainant in default of payment of fine, the convicts are further sentence to simple imprisonment for a period of one month.
Benefit of Section 428 Cr.P.C.be given to the convicts. Warrant of commitment be prepared. Convicts be sent to Tihar Jail. File be consigned to record room.
(Neha Paliwal) MM-03 (E)/KKD: Delhi/28.4.2014 FIR No. 225/2013 State Vs Irfan & Another 18 of 17