Delhi District Court
State vs Mahadev @ Chintu on 6 September, 2014
In the Court of Sh. Vimal Kumar Yadav, Additional Sessions
Judge02, South District, Saket Court, Delhi.
Session Case No. 18/2014.
In the matter of :
State
Versus
Mahadev @ Chintu,
S/o Sh. Jaidev,
R/o H. No.6/209 & 210,
Dakshinpuri, Delhi.
FIR No. : 178/2014.
Police Station : Ambedkar Nagar.
Under section. : 397/506(II) IPC & 25 of the Arms Act.
Date of assignment : 04.07.2014.
Reserved for order on : 26.08.2014.
Date of decision : 30.08.2014.
JUDGMENT
1. The complaint lodged by Jitender Kumar on 24.03.2012 with regard to the incident of robbery in the intervening night of 22/22.03.2014 in which he specifically named the assailant resulted into registration of FIR bearing No.178/2014 under sections 394/397/506 IPC. The investigation was assigned to SI Amit Kumar, State v. Mahadev @ Chintu, FIR No. 178/2014. Page 1 of 19 who after carrying out the necessary proceedings including the medical examination of the complainant, preparation of the site plan, arrest of the accused Mahadev and recovery of part of the robbed cash amount of Rs.5,000/ out of Rs.15,000/, recovery of knife etc., filed the chargesheet against the accused Mahadev. The allegations being of robbery, with a deadly weapon made it a sessions trial case and accordingly after compliance of section 207 Cr.P.C. by the court of the Magistrate committed it for trial to the Court of sessions. On the basis of the material gathered during the investigation, a prima facie case was found against accused under section 397 IPC together with section 506 IPC and 25 of the Arms Act. A charge was accordingly framed to which accused pleaded not guilty and claimed trial.
2. Of the 11 witness arrayed in the list of witnesses against the accused, eight were examined as three witnesses were dropped by the learned Additional Public Prosecutor on the ground that they are repetitive in nature. Thereafter, the evidence of the prosecution was closed. Statement of accused was recorded under section 313 Cr.P.C. in which the evidence was put to him with a view to secure his version of the events. The accused while controverting the evidence against him claimed that he has been falsely implicated and to elaborate that he stated that there was a quarrel between the complainant and some State v. Mahadev @ Chintu, FIR No. 178/2014. Page 2 of 19 other persons in the locality with regard to some transactions of gambling but he has been falsely implicated in this case without any ryme or reason. It is also asserted by him that two days delay in lodging the FIR was used in fabricating a story against him. He opted to bring evidence in his defence and examined one Dilip Vishwas and concluded his defence evidence.
3. Argument were raised by the learned Additional Public Prosecutor and the learned counsel for the accused. I have considered the same and have gone through the record as well.
4. It is asserted on behalf the prosecution that testimony of PW1 Jitender, the victim, PW3 father of the victim Banbari Lal, coupled with that of PW4 Raju, PW5 Rajender Kumar and the incidentials of the investigation brought on record by the police witnesses, prosecution is able to show that on the fateful day, accused Mahadev, being known to the victim prior to the incident as a resident of the same vicinity, waylaid him in the alley near Park, Block no.6, Dakshinpuri and robbed Jitender by putting him under the threat of a knife. In that process, Jitender sustained minor abrasion on his neck. PW4 and PW5 are the witnesses to the fact that victim Jitender is into the business of transporting vegetables in the market and used to State v. Mahadev @ Chintu, FIR No. 178/2014. Page 3 of 19 collect money for the supplies made, through the entries made in the rough copies qua the transactions that the complainant and other persons had from time to time. It is thus submitted that the prosecution is able to show that accused not only robbed but injured the victim after threatening him with knife, which is a deadly weapon. The knife too was, incidentally, recovered and that being a knife of the prohibited specifications as per notifications under the Arms Act, therefore, the accused is required to be held guilty and punished accordingly.
5. Counsel for the accused, on the other hand, came up with the plea that delay in lodging the FIR coupled with the inherent contradictions in the testimony of the witnesses renders the case of the prosecution highly unbelievable and pointed out various anamolies in the testimonies of the witnesses focussing on PW1 complainant Jitender and PW2 his father and that of PW8 SI Amit Kumar. Counsel for the accused contended that PW1 complainant has admitted that recovery of cash was not effected in his presence, he is not aware about the recovery of knife and accused was not arrested on his pointing out and he identified him in the police station whereas PW6 HC Rajesh and PW8 SI Amit Kumar have testified that accused was arrested on the pointing out of PW1 complainant. Recovery of State v. Mahadev @ Chintu, FIR No. 178/2014. Page 4 of 19 money and knife is also doubtful as PW1 admits that these things were not recovered in his presence whereas PW6 and PW8 have testified specifically that recovery of cash amount of Rs.5,000/ and knife was effected from the house of the accused in the presence of the complainant. In the FIR complainant has stated that after the incident he went home and slept whereas in his testimony before the court he states that after the incident he had gone to Chirag Delhi to bring the articles from the market. PW3 father of the accused has stated in his statement that when he was sitting near the park, accused and one of his associates had shown knife to his son but he has, though, been produced by the prosecution but not as an eye witness to the incident.
6. In order to establish section 397 IPC, prosecution has to show the following facts
(a) in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft;
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
(e)voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
State v. Mahadev @ Chintu, FIR No. 178/2014. Page 5 of 19
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint. If the ends does not fall within (a) to (c) but, the offender still causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint, the offence would not be robbery. That (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only when (a) or (b) or (c) coexist with
(d) and (e) or there is a nexus between any of them and (d), (e) would amount to robbery; reference can be made to the judgment in State of Maharashtra v.
Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).
7. As regards the case in hand, except above, the prosecution in order to establish the case under section 25 of the Arms Act has to show the possession of some weapon/arm in violation of the notification, which prohibits possession of knife of some specifications and that the victim was criminally intimidated and threatened to drive home a case under section 506 (ii) IPC.
8. The fate of the case of the prosecution rests on the shoulders of the victim of the incident Jitender who has been examined PW1, who has categorically stated that while he was coming home at about State v. Mahadev @ Chintu, FIR No. 178/2014. Page 6 of 19 12.30pm in the intervening nigh of 21/22.03.2014, he was waylaid by accused Mahadev, whom he knew by name and face, being one of the neighbours and that is why in his complaint to police Ex.PW1/A he has specifically named him. Jitender has supported the case of the prosecution almost in its entirety and has identified the accused Mahadev in the court as well and also stood by his complaint Ex.PW1/A. H has also stated about amount of money robbed from him and referred it to the tune to Rs.15,000/. He has signed various memos prepared by the police i.e. recovery memo, site plan and personal search memo etc. however he has pleaded ignorance about the recovery of dagger/knife from the possession of the accused, but he has admitted his signature on the sketch, seizure memo of the knife Ex.PW1/F and G respectively.
9. Though he did not give any identification marks on the currency notes which were robbed from him nor he could point out any distinction in the currency notes of Rs.5,000/ recovered from accused but has identified the currency notes to the tune of Rs.5,000/ as part of the money which was robbed from him.
10. The tone and tenor of the testimony of PW1 is supportive of the vital aspects of the case of the prosecution that he was waylaid in State v. Mahadev @ Chintu, FIR No. 178/2014. Page 7 of 19 the night of 21/22.03.2014, a sum of Rs.15,000/ was robbed from him by accused Mahadev while putting him under threat of knife, he sustained a minor scratch also from knife. However, on certain aspects he has not come up to the expectation of the prosecution as has denied that the knife was recovered from the possession of the accused in his presence, accused was arrested from his house in his presence and that too on his pointing out etc. but has stated that he has signed various memos in the police station such as arrest papers and personal search papers but has denied the suggestion of the learned Additional Public Prosecutor given while crossexamining him that he had witnessed the recovery of cash from the room of the accused. Sealing and seizing proceedings have been denied by him but has stated that he had identified the currency notes in the police station when shown in the police station. Thereby indicating that police did documentation work at the police station. However, he has been able to secure the soul of the case in his testimony that he was robbed and robbed by Mahadev at knife point. The procedural lapses seems to be there on the part of the investigating agency but can a case be thrown on this ground whereas the material aspects have come in the testimony of witnesses? In any case, the follies of police can't be blown too big and are required to be ignored. Reference in this context can be made to the judgments in Dayal Singh v. State of State v. Mahadev @ Chintu, FIR No. 178/2014. Page 8 of 19 Uttaranchal 2012 VII AD (S.C.) 541 = (2012) 8 SCC 263, the Hon'ble Supreme Court while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under; (SCC pp. 28083, paras 2736) "Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P., (1972) 3 SCC 613, this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, 2004 IV AD (S.C.) 365 = (2004) 3 SCC 654, held: (SCC p. 657, para 5) 'In the case of a defective investigation the court has to be circumspect in evaluating the evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.' Reference can also be made to Paras Yadav v.
State of Bihar, (1999) 2 SCC 126, State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715, Ram Bali v. State of U.P. 2004 VI AD (S.C.) 49 = (2004) 10 SCC 598, Karnel Singh v.
State of M.P., (1995) 5 SCC 518, Ram Bali.
State v. Mahadev @ Chintu, FIR No. 178/2014. Page 9 of 19
11. Learned counsel for the accused has pointed out and relied upon certain contradictions and discrepancies in order to show that the case set up by the prosecution is a false case. However, the discrepancies pointed out by the learned counsel for the accused are not significant enough to ruin the case of the prosecution. It has been pointed out that Jitender has deposed in the court that he had gone to Chirag Delhi, without giving any specific date, whereas in the FIR it has been reported by him that he was returning home. The victim has deposed that there was minor scratch due to the assault by the accused but as per the MLC there was not fresh injury and that the accused was not arrested on the pointing out of the victim Jitender which is contrary to the case set up by the prosecution. However, these factors are not able to negate the material aspects of the case which have been deposed by the victim PW1. So far as the injury is concerned, it is deposed by Jitender that he received a minor scratch on his neck in the intervening night of 21.22.03.2014. He was medically examined on 24.03.2014 at about 9.00pm where abrasion mark was found present on the right side of the neck thereby supporting the version of the witness. According to the medical records, it is a small abrasion of one or two days old would be self healing injury and may not reflect on the body in any prominent manner. Nevertheless, the MLC State v. Mahadev @ Chintu, FIR No. 178/2014. Page 10 of 19 corroborates the version of the complainant. As regards coming from the market as referred in Ex.PW1/A and deposition before the court that he had gone to Chirag Delhi Market. Learned counsel has tried to portray it as two things coming and going. However, the inference of both, if read together, is the same and as such no contradiction is there.
12. Lapses on the part of the police in the investigation or in documentation cannot be made a reason to disbelieve the witness as a whole. It is pertinent to mention here that the witness has admitted his signature at the documents but has not supported preparation of the documents in the manner in which it has been presented by the prosecution/ police. But in the peculiar set of circumstances of the instant case these anamolies pales into insignificance and is not able to corrode the credibility of the prosecution's case so far as robbery is concerned.
13. It is not the case of the accused that there was some previous enmity between him and the complainant, therefore, in these circumstances, there is no possibility of false implication and it stands ruled out. PW1 Jitender seems to be truthful and reliable witness which can be further inferred from the fact that he has seemingly State v. Mahadev @ Chintu, FIR No. 178/2014. Page 11 of 19 deposed the things in the manner it took place. He has also stated that the accused had felt sorry for what he did and is ready to compensate / return the money robbed from the complainant. Learned counsel for the accused has not touched this aspect that that nothing of the sort has happened or no such offer has been made either by the accused or on his behalf. Truthfulness of the complainant further emerges that he has deposed in a natural manner.
14. So far as the money being with him is concerned it came through the testimony of PW4 and PW5, with whom he has business transactions, both of whom have further corroborated their version of the things by producing note books maintained by them to keep an account of the payment made and received.
15. On the one hand PW1 Jitender admits in the cross examination on behalf of the accused that there was darkness where the incident took place but he has specifically denied that he had not seen the person who had put knife on his neck and robbed him thereby cementing and confirming the identity of accused and his complicity and that seems to be the reason accused had been named at the very initial stages while lodging the FIR.
State v. Mahadev @ Chintu, FIR No. 178/2014. Page 12 of 19
16. Learned counsel for the accused has tried to draw some mileage out of the fact that the incident took place in the intervening night of 21/22/03.2014 but the FIR was lodged on 24.03.2014. The delay, apparently, is there but then what prejudice was caused to the accused has not been brought forth by the accused. On the other hand, reasons are there which might have contributed in delaying the registration of the FIR. Although, at the outset it seems slightly unconvincing that the matter would not be reported to the police immediately after the incident. However, the complaint Ex.PW1/A itself contains averments to the effect that the victim was threatened by the accused. This fact has not been deposed by the victim in his testimony in the court but then he has stated that the accused is a neighbour, known to him, therefore in these circumstances, the possibility cannot be ruled out that the victim and his family might have contemplated to resolve the issue and not to lodge complaint. In any case, the explanation to the delay has come from the testimony of PW3 Banvari Lal, father of the victim, who has categorically stated that he had not called the police due to the fear of the accused. The very opening line of the cross examination of PW6 HC Rajesh further fortifies the version of PW3 that the delay was on account of the element of fear with which the victim and his family were confronted with. PW6 has stated on being asked about the delay in lodging the complaint that the victim had State v. Mahadev @ Chintu, FIR No. 178/2014. Page 13 of 19 informed that he was scared after the incident. It is, therefore, clear that the victim could not muster the courage to report the matter with the police but later on, seemingly after consultation with the family, the complainant and his father both decided to proceed and thus lodged the FIR. In these circumstances, the delay in lodging the FIR is not fatal to the case of the prosecution, especially when the accused is involved in more than one case of violent nature/criminal case and as such the fear or apprehensions in the minds of complainant and his father is not unfounded.
17. There are certain circumstances which are not convincing on the parameters of reason and logic as the arrest of the accused appears very dramatic. It has been deposed by police personnels that the accused was arrested from his house while he was sleeping in his house at about 12.30 in the night while all the doors of his house were open. It is apparently not believable that at that point of time the doors of the house would be ajar and that the robbed money would be placed under the pillow in a very careless manner albeit latter still seems possible. Nevertheless, as there is no dispute about the identity and involvement of the accused such aspects can be ignored.
18. As regards, the recovery of knife, the same is plausible enough State v. Mahadev @ Chintu, FIR No. 178/2014. Page 14 of 19 but as the complainant has failed to identify the knife, therefore, use of knife which has been shown to have been recovered from the accused becomes questionable. Further the violation of the notification cannot be attributed to the accused as the notification dated 11.02.1979 under the Arms Act requires possession of knife which has to be either spring actuated, graridar knife, button actuated or other knife which open and close with some mechanical device and has certain specifications qua the length and breadth of the blade. However, knife recovered in the instant case is not covered under the notification and in any case recovery of the knife and its identity is under cloud, therefore, charge under section 25 Arms Act cannot be sustained against the accused.
19. In view of the foregoing discussion, it is evident that the accused, being neighbour of the victim robbed him and caused injury to him with the some sharp object or knife but in the absence of the knife which was used or the one which has been recovered being no identified by the victim takes the robbery out of the scope and ambit of section 397 IPC as it would not be possible to comment and decide as to whether a deadly weapon was used in the robbery or not. The presence of minor scratch on the neck of the victim reflects that something of the sharp nature was used which may or may not be a State v. Mahadev @ Chintu, FIR No. 178/2014. Page 15 of 19 knife but in any case it cannot be commented upon as to whether any deadly weapon was used by the accused or not. Nevertheless, the testimony of the victim brings on record the factum of robbery by the accused but leaving scope for speculation qua causing injury to him during that process. Evidence, thus, sufficient only to bracket the case under section 392 IPC as the injury is minor abrasion as an old one. Thus, it would not be safe to connect it with incident. Since, the victim has not deposed about the intimidation or threat extended by the accused therefore, allegations under section 506 IPC also do not find support in evidence may be because of the compromise reflected in the shape of the compensation money or otherwise. As a result, the accused is held guilty for the offence under section 392 IPC and convicted thereon, while he stands acquitted under section 25 of the Arms Act.
Announced in the open Court (Vimal Kumar Yadav)
On 30.08.2014 Additional Sessions Judge02,
South District, Saket Courts,
New Delhi.
State v. Mahadev @ Chintu, FIR No. 178/2014. Page 16 of 19
In the Court of Sh. Vimal Kumar Yadav, Additional Sessions Judge02, South District, Saket Court, Delhi.
Session Case No. 18/2014.
In the matter of :
State Versus Mahadev @ Chintu, S/o Sh. Jaidev, R/o H. No.6/209 & 210, Dakshinpuri, Delhi.
FIR No. : 178/2014. Police Station : Ambedkar Nagar. Under section. : 392 IPC. Order on sentence
1. While seeking lightest possible sentence it is submitted by counsel for the convict that he is a young man, has clean antecedents and is the only earning member of his family, therefore, considering the fact that even the victim had shown some compassion towards the convict and the so called robbed amount was merely a sum of Rs.15,000/, he should be released on the basis of period of custody already undergone by him. In order to strengthen her arguments, she has relied upon Dharam @ Banti v. State, decided by the Hon'ble High Court on 16.07.2013 and Sonu @ Chhotu v. State v. Mahadev @ Chintu, FIR No. 178/2014. Page 17 of 19
The State (Govt. of NCT of Delhi), decided by the Hon'ble High Court on 16.11.2012.
2. On the other hand, learned Additional Public Prosecutor submitted that the convict deserves to be punished properly commensurate to what has been done by him notwithstanding the fact that he is a young man or that the amount of money robbed is not a big amount. It is asserted that the manner in which the robbery was committed reflects the desperate nature of the convict and therefore, learned Additional Public Prosecutor has advocated suitable punishment to the convict.
3. Having considered the facts of the case and the arguments advanced, especially the fact that the convict is a young man, barely out of his teens and that the complainant seems to have forgiven him but then the compassion and justice is to be mixed in a right proportion so as to do the justice compassionately and justifiably. The convict must realise that he had done something which is not permissible, acceptable or approved by any standard of civilized living. Thus considering the entire gamut of facts and circumstances, the convict Mahadev @ Chintu is sentenced to undergo rigorous imprisonment for two years and to pay a sum of Rs.3,000/ as fine, in default of payment of fine, he shall further undergo simple imprisonment for a period of three months. He shall be entitled to the benefit of set off under section 428 Cr.P.C. Copy of judgment and order on sentence be State v. Mahadev @ Chintu, FIR No. 178/2014. Page 18 of 19 given to the convict free of costs. After compliance, file be consigned to record room.
Announced in the open Court (Vimal Kumar Yadav)
On 06.09.2014 Additional Sessions Judge02,
South District, Saket Courts,
New Delhi.
State v. Mahadev @ Chintu, FIR No. 178/2014. Page 19 of 19