Delhi District Court
State vs . 1. Sunil @ Suraj, S/O Sh. Ashok, on 11 May, 2017
IN THE COURT OF SH. RAKESH KUMAR1
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS)
WEST DISTRICT, TIS HAZARI COURTS, DELHI
SC No.56530/2016
FIR No.987/2015
PS Patel Nagar
U/s 392/397/411/34 IPC
In the matter of:
State Vs. 1. Sunil @ Suraj, S/o Sh. Ashok,
R/o 3621/B, Gali No.21,
Baljeet Nagar, Delhi.
2. Satish @ Yahi,
S/o Sh. Anant Ram,
R/o T2461, Gali No.21A,
Durga Mohalla, Baljeet Nagar, Delhi.
:J U D G M E N T:
1.The above named accused persons were booked by SHO PS Patel Nagar U/s 392/397/411/34 IPC with the allegations that on 22.11.2015 at about 10.40 AM at Bhim Park near Railway Line, Prem Nagar, Patel Nagar, Delhi, accused persons alongwith Purshottam (Juvenile) in furtherence of their common intention had robbed off the complainant Sh. Rupesh Pandey of his Mobile Phone make Asha Nokia 200 and cash amount of Rs.500/ and while committing the said offence of robbery, accused Satish used a deadly weapon i.e. chhura (knife) to threaten him in order to rob and further on the same day accused Sunil and Satish were found in possession of Rs.200/ each which were dishonesty received or retained by them knowing that said property was stolen property belonging to the complainant.
2. FACTUAL MATRIX: It is the case of the prosecution that on 22.11.2015 on receipt of (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 1 of pages 27 DD No.11A at PS Patel Nagar, SI Prahlad alongwith Ct. Hans Raj reached at Railway Crossing, Prem Nagar, where caller Sh. Dinesh Chand Pandey and his son namely Sh. Rupesh Pandey met them. They narrated about the incident to SI Prahlad and stated that the boys who had done snatching are roaming around there. Two boys, who were found sitting near Railway Line, Prem Nagar, were overpowered on the identification of complainant and the said boys disclosed their names as Suraj @ Sunil and Satish @ Yahi. Their third companion alongwith the looted mobile and money had already left from there, whose name was disclosed by said Suraj @ Sunil and Satish @ Yahi as Purshotam Pathak. Thereafter, SI recorded the statement of complainant Sh. Rupesh Pandey wherein he alleged that: "today on 22.11.2015 in the morning, he alongwith his younger brother Sagar had come to Bhim Park, Prem Nagar to play cricket and at about 10.40 AM after playing cricket, when he was coming back to his house, three boys were standing outside the park. They stopped him and after catching hold of his hand, they dragged him to the bushes. One boy, out of the said three boys, caught hold of him and other boy showed him knife type object and started snatching and took out his mobile phone make Nokia Asha.200 from the pocket of his wearing pant and other boy took out Rs.500/ (i.e. five notes of Rs.100/ each) from his pocket, which were given to him by school for purchase of uniform. The said boys ran towards Karampura.
His younger brother informed his father at home, who made a call at 100 number. Thereafter, police (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 2 of pages 27 came there with his father and near the Prem Nagar Railway Pathak, he met them. He narrated about the incident to police. Out of the said three boys, two boys were sitting near Railway Line and third boy had ran away from there. Police caught hold of said two boys, out of which one boy was carrying knife type object in his hand, who had robbed his mobile phone and his name was revealed as Satish @ Yahi and other boy's name was revealed as Suraj @ Sunil, who took out Rs.500/ from his wearing pant. The third boy, who caught hold of him, had already flee away from there."
3. On the basis of said statement, SI prepared rukka and got the instant FIR registered by sending rukka at PS Patel Nagar through Ct. Hansraj. Thereafter, he prepared the Site Plan at the instance of the complainant. Then on making interrogation and on finding sufficient material against accused Suraj @ Sunil and Satish @ Yahi, they were arrested in this case. Their disclosure statements were recorded, wherein they confessed the crime. They stated that Rs.200/ each came into their shares and Rs.100/ was given to other accused Purshotam as his share. Mobile was also given to Purshotam to sell and it was agreed that sale proceed of same will be distributed among them. During Jamatalashi from the possessions of accused Suraj @ Sunil and Satish @ Yahi two notes each of Rs.100/ denominations bearing Sr. No.8ES608267 & 3FA47007 and Sr. No.8EU51121 & 8LW753795 respectively were recovered. Thereafter, IO recorded the statements of witnesses U/s 161 Cr.P.C. On 23.11.2015, third person namely Purshottam aged 17 years was arrested from his house in this case, at the instance of accused Sunil @ Suraj who (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 3 of pages 27 was on one day PC remand, and he also confessed his crime and stated that the amount of Rs.100/ which came to his share, he has spent it and got recovered the mobile phone make Nokia Asha200, which he hide on the roof of his house. Thereafter, JCL was produced before the Ld. Juvenile Justice Board. During investigation, on finding sufficient material against the accused persons, Section 397 IPC was added in this case. Then on completion of investigation, charge sheet was filed before the concerned Ld. Metropolitan Magistrate against accused Suraj @ Sunil and Satish @ Yahi, who after completing the committal proceedings, sent the case to the Sessions for trial as the offence alleged is exclusively triable by the court of sessions.
4. After hearing the rival submissions of both the sides, a charge U/s 392/411/34 IPC was framed against both the accused persons and charge U/s 397 IPC was also framed against accused Satish @ Yahi, to which they pleaded "not guilty" and claimed "trial".
5. In its support, the prosecution has examined as many as five witnesses.
6. PW1 Constable Hansraj stated that on 22.11.2015 at about 11:15 AM on receipt of DD No.11A Ex.PW1/A by SI Prahlad, he accompanied him to Prem Nagar Railway Crossing where one Dinesh Chand along with his son Rupesh Pandey met them. IO recorded the statement of Rupesh Pandey and he revealed about the incident of robbery happened with him. Then they along with the complainant made search for the two boys involved in the robbery and when they reached railway line, Prem Nagar, the complainant pointed out towards two boys sitting by the side of railway lines stating to be the same boys who robbed him. Accordingly, they apprehended both those boys, who revealed their names as Sunil @ Suraj and Satish @ Yahi. IO had interrogated both the accused persons and they revealed the name of their associate who ran (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 4 of pages 27 away from there as Purshottam. IO prepared the rukka and handed over the same to him for registration of the FIR. He reached the police station and got registered the FIR through duty officer and after registration of the FIR, the duty officer had handed over the copy of the FIR and original rukka to him. He reached the spot and handed over the same to IO. IO arrested both the accused persons vide arrest memos Ex.PW1/A and Ex.PW1/B, both bearing his signatures at point A. IO had also conducted the personal search of both the accused vide memos Ex.PW1/C and Ex.PW1/D, both bearing his signature at points A. In the personal search of both the accused persons two currency notes of Rs.100/ each were recovered and the complainant identified the same as of robbed money. IO had also recorded the disclosure statements of both the accused persons Ex.PW1/E and Ex.PW1/F both bearing his signature at point A. IO seized those currency notes recovered from both the accused persons vide memos Ex.PW1/G and Ex.PW1/H, both bearing his signature at points A. Thereafter, they came back to police station and after medical examination of accused persons they were kept in lockup. On 23.11.2015, he had joined the investigation in this case with the IO and on that day accused Sunil @ Suraj, who was on PC remand, led them to the house of their associate Purshottam i.e house no.151/63, Prem Nagar and he pointed out towards one boy present there as their associate Purushottam involved in this case. They apprehended Purshottam and IO prepared his apprehension memo, as during interrogation he was found juvenile. In presence of father of complainant Mr. Dinesh, Purushottam got recovered one mobile phone make Nokia Asha from the beddings lying at first floor made from tirpal and father of complainant had identified that mobile phone as of his son Rupesh Pandey. IO had kept that mobile phone in a plastic box and sealed with the seal of PSM and seized the same vide seizure memo Ex.PW1/J bearing his signature at point A. Accused (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 5 of pages 27 Purshottam is facing trial before Juvenile Justice Board. He correctly identified the mobile phone Ex.P1 to be the same which was got recovered by accused Sunil from the house of Purushottam (JCL). He also correctly identified two currency notes Ex.P2 (colly) in the denomination of Rs.100/ recovered from accused Sunil. He further correctly identified two currency notes Ex.P2 (colly) in the denomination of Rs.100/ recovered from accused Satish.
During cross examination, he conceded that as per DD No.11A the information was received that some boys had taken Rupesh Pandey aged 16 years from his house. On receipt of the information first of all they reached Prem Nagar railway line where the complainant along with his father met them. As per the call received from 100 number to the IO, they reached Prem Nagar railway lines. He could not tell the phone number by which the call was made at 100 number. He stated that the police officials provided the phone number of the caller to them and then they called at that number on which the father of complainant told them that they were present at Prem Nagar railway lines and therefore, they reached there at about 11:20 AM. At that place, the complainant along with his father and younger brother met them. IO did not record the statement of father of complainant prior to recording of his statement. Except the rukka, no other document was prepared by the IO at the spot prior to registration of FIR. He had reached the police station with rukka at about 02:50 PM and came back to the spot with copy of the FIR and original rukka at about 03:30 PM. Except the complainant, his father and brother, no other public person was found available at the spot during the investigation from 11:30 AM to 02:30 PM. IO had recorded the statement of father of complainant after his arrival at the spot with copy of the FIR and rukka. He could not tell as to whether the IO had prepared any document during the time when he went to police station with rukka. The place where they reached after (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 6 of pages 27 receiving the information and the place from where the accused persons were apprehended are the different places and the distance between these two places are of 34 minutes on foot. The incident took place near Bhim Park, railway track. He came back with copy of the FIR and rukka to the place of occurrence from where he went to police station with rukka. Bhim Park is the different place from the place from where the accused persons were apprehended. The document prepared at the place of occurrence is only the site plan. Accused persons were apprehended at the instance of complainant, after 40 minutes of their search. Some persons were passing from the place at the time when the accused persons were apprehended. IO had requested the public persons to join the proceedings but none agreed. The disclosure statements of accused persons were recorded at the same place from where they were apprehended. The arrest memos were prepared after recording of disclosure statements of accused persons. Further two currency notes of Rs.100/ were recovered from the left pant pocket of accused Sunil and two currency notes of Rs.100/ were recovered from the right pant pocket of accused Satish. The complainant did not give any specific mark on those currency notes from which he could identify those notes belonging to him. They along with accused Sunil reached the house of Purushottam at about 08:00 PM. The father of complainant had also accompanied them to the house of Purushottam. In presence of IO, he along with accused Purshottam went to first floor of his house from where Purushottam got recovered the mobile phone from the beddings. He could not tell as to whether the complainant had provided the ownership document of his mobile phone to the IO, however, he had provided IMEI number and SIM number. When the mobile phone was recovered from the house of Purushottam, its SIM number was found removed. No neighbour of Purushottam joined the investigation. Further at the place of recovery of (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 7 of pages 27 mobile phone, perhaps the IO had recorded the statement of father of complainant.
PW2 Mr. Rupesh Pandey (complainant) stated that on 22.11.2015 he along with his younger brother Sagar had gone to Bhim Park, Prem Nagar to play cricket. At about 10:30/10:40 AM after playing cricket, when they came outside the park, they found three boys standing there. They stopped him and caught hold of him and then they took him inside the nearby bushes and after seeing this his brother Sagar ran away from there. After taking him inside the bushes, one of those boys caught hold of him, one of other two boys took out a knife and kept it on his abdomen and from one of his hands, he took out his black Nokia Asha mobile phone and the third boy took out his wallet from jeans pocket containing a sum of Rs.500/(five currency notes in denomination of Rs.100/ each). That money was given to him by school authorities to purchase the uniform. After the incident, those boys ran away to Karam Pura side. He stated that out of those three boys, two boys are present in the court. The witness has correctly pointed out towards accused Sunil stating he took out his wallet containing Rs.500/ and towards accused Satish stating that he kept knife on his abdomen and took out his mobile phone). His younger brother Sagar informed his father and his father also reached at the spot. His father had informed the police at 100 number. Due to fear, he did not follow the accused persons. Police reached the spot and had enquired from him. Thereafter, they started search for the accused persons. Two accused persons namely Sunil and Satish were sitting near the railway track at a distance of about 200 Metres and he had pointed out them. Accordingly, police apprehended both of them. Those persons revealed their names and Sunil and Satish and told that one of their associate namely Purushottam had ran away. Police recorded his statement Ex.PW2/A bearing his signature at point A. Police had arrested (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 8 of pages 27 both the accused persons vide arrest memos Ex.PW1/A and Ex.PW1/B both bearing his signatures at points B. Police had also inquired from the accused persons and prepared some documents at the spot. On 23.11.2015 his father had told him that his mobile phone was got recovered from the house of third boy, who ran away from the spot. He correctly identified the mobile phone as Ex.P1 and currency notes as Ex.P2 and Ex.P3.
During cross examination, he stated that it was Sunday on the day of incident. On that day he left his house with his brother to play cricket at about 09:00 AM. At that time, there were two mobile phones used in their family i.e. 8802637002 which was being used by his father and mobile no.8285576602 which was with him at the time of incident and was being used by his mother. He used to get a sum of Rs.1,700/ from his school for uniform, stationery etc. once in a year during November/ December. He had received that money from his school on 17/ 18.11.2015. He had handed over the money received from the school to his mother on the same day when he received it. On the day of incident, he was playing cricket in the park with his brother and friends namely Vishnu and Ajay and some other local boys. He along with his brother came outside the park at about 10:40 AM. His other friends left that park from other side and none else came with them. On the day of incident, except the playing articles he was carrying mobile phone and money in his pocket with him. One day prior to the incident, he took Rs.600/ from his mother as he went to picnic from school and a sum of Rs.500/ - Rs. 550/ left with him as he used some amount as fare. He kept that money in his wallet which remained in his pocket when he left to play on the day of incident. He was carrying mobile phone in one pant pocket and five currency notes of Rs.100/ each in another pant pocket. The accused persons caught hold of him when he was coming out of the park. That (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 9 of pages 27 place was not a busy place. He did not notice any other public person passing from there at the time of incident. One of the accused persons was wearing jeans and blue shirt and another accused person was wearing red Tshirt and lower. One of those boys had put knife on his abdomen and asked "JO KUCH LIYE HO NIKAL DO". He did not sustain any injury in the incident. It was a proper knife, small in size, which accused had showed him and it was not a PATTI type or any other weapon. He did not raise alarm due to fear. He rushed towards Karam Pura side i.e. opposite side of accused persons. He met his father at about 11:30 AM at Prem Nagar railway crossing. 4 - 5 Police officials were accompanying his father at that time. Police had enquired him after reaching there. Police did not record his statement at that place. Police recorded his statement after apprehension of accused persons. Police did not record the statement of his family members in his presence. The distance between the place where the incident took place and the place where police met him is about 500600 Meters. He did not take the police to the place where the accused persons caught hold of him. At the place from where the accused person were apprehended, no other person was sitting with them. No public person was present at the place from where the accused persons were apprehended. Two currency notes each of Rs.100/ were recovered from both the accused persons at the time of their apprehension by police. There was no specific identification mark on those currency notes by which complainant had identified them as of his. He stated that except his statement, police had obtained his signature on two more documents. One of them was Arrest Memo and another was personal search memo. He was freed from the investigation on that day at about 01:30 PM.
PW3 Mr. Dinesh Kumar Pandey (father of complainant) stated that Rupesh Pandey and Sagar Pandey are his sons. On 22.11.2015 his (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 10 of pages 27 both sons had gone to Bheem Park, Prem Nagar to play cricket. At about 10:40 AM, his son Sagar came back to their house and informed that three boys had caught hold of his elder son Rupesh and dragged him towards bushes. Thereafter, he immediately rushed there and he found his son Rupesh at railway crossing, Prem Nagar and he informed that those three boys had robbed his mobile phone and a sum of Rs.500/ from him by showing knife. A sum of Rs.500/ was given to his son by his school authorities to purchase uniform. He had informed the police at 100 number from his mobile phone, whose number he could not tell. Police reached the spot. Thereafter, he along with his son Rupesh had accompanied the police officials in search of those three boys. When they reached at some distance from railway crossing, two boys were found sitting by the side of railway track and his son Rupesh had pointed out those two boys as the same boys amongst those three boys who had robbed him. Thereafter, those two boys namely Sunil and Satish (correctly identified) were apprehended by the police. IO recorded the statement of his son Rupesh. Both the accused persons disclosed the name of their third associate as Purshottam, who had run away from the spot after the incident. Police had arrested both the accused persons. In their personal search, two currency notes of Rs.100/ each were recovered from both the accused persons. On 23.11.2015, he had joined the investigation with the police. Accused Sunil led them to the house of their associate Purshottam at Gali No.1, Prem Nagar and in that house he had pointed out towards one boy as Purshottam, who was apprehended and he got recovered one black mobile phone from the beddings lying at first floor of his jhuggi. He had identified that mobile phone as of his son Rupesh. IO had put that mobile phone in a box and sealed the same with the seal and seized the same vide seizure memo Ex.PW1/J bearing his signature at point B. IO recorded his statement in this case. He correctly identified the mobile (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 11 of pages 27 phone as Ex.P1; two currency notes in the denomination of Rs.100/ recovered from accused Sunil as Ex.P2 (colly) and two currency notes in the denomination of Rs.100/ recovered from accused Satish as Ex.P3 (colly).
During cross examination he stated that on 22.11.2015, it was Sunday and his both sons had left the house for playing cricket at about 10.20 AM. His son namely Sagar Pandey had informed him about the incident at about 10.40 AM. Police had reached after his arrival. Police met him later on at Railway Phatak near Sat Guru Ram Singh Marg Metro Station. 34 police officials reached at the spot after about 2030 minutes of his reaching there. His statement was not recorded by police at that time, however, it was recorded by IO on the next day. Statement of his son Rupesh Pandey was recorded by IO in his presence at the spot. By the time, statement of his son Rupesh Pandey was recorded by police, only one accused namely Sunil was apprehended. Second accused namely Satish was apprehended later on but not in his presence. On the day of incident, he had not signed any document, however, on 23.11.2015 i.e. next date, he had signed some written papers. Police did not take either his or his son to the place where the alleged incident had taken place, however, they accompanied the police to the place from where two accused persons namely Sunil and Satish were arrested. No public person was present near the place i.e. near railway line, from where accused Sunil and Satish were apprehended. He could not tell as to whether police officials got signed some written papers from his son namely Rupesh Pandey on the day of arrest of accused persons. He also could not tell the time when he alongwith the IO and accused Sunil reached at the house of accused Purushotam, he however stated that, it was morning time. Only some ladies were present at the house of accused Purushotam when he was apprehended from there. Police had (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 12 of pages 27 not recorded the statement of any of the ladies present in the house of accused Purushotam in his presence. No person from the neighbourhood had reached at the house of accused Purushotam at the time of his arrest. No paper work was done at the house of accused Purushotam, when he was apprehended, in his presence. He was not able to recognize accused Purushotam as he had never seen him before but police wale ne kaha yahi Purushotam hai aur maine police walo ko kaha main accused Purushotam to nahi pehchanta. Accused persons in the matter were not known to him prior to the date of incident. His son Rupesh was not with him when accused Purushotam was apprehended from his house. PW4 W/HC Indu Bala (the then Duty Officer at PS Patel Nagar) stated that on 22.11.2015 at about 03:10 PM, she had received a rukka through Constable Hansraj which was sent and prepared by SI Prahlad Singh. On the basis of the rukka, she had got registered the FIR through computer operator. She proved on record the copy of the FIR; her endorsement made on rukka and certificate u/s 65B of Indian Evidence as Ex.PW4/A, Ex.PW4/B and Ex.PW4/C respectively.
PW5 SI Prahlad (IO of the case) stated that on 22.11.2015 at about 11.30 AM, on receipt of DD No.11A Ex.PW1/A, he along with Ct. Hansraj reached the spot i.e. near Prem Nagar Railway Crossing where the caller Dinesh Chand Pandey and his son Rupesh Pandey met them. They had informed them three boys had robbed Rupesh Pandey of his mobile phone and money and those boys were roaming near the railway line. They searched for those boys and two boys i.e. accused Satish and Sunil (correctly identified) were found sitting near the railway lines. Rupesh had pointed out those two boys amongst those three boys who had robbed him. Upon interrogation, those boys revealed their names and Satish @Yahi and Sunil @Suraj. They both were interrogated and they revealed the name of their third associate as Purushottam @Pathak, who (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 13 of pages 27 had run away from the spot with mobile phone of Rupesh. Thereafter, he had recorded the statement of Rupesh Ex.PW2/A and Rupesh signed the same at point A and he attested the same at point B. He had prepared the rukka Ex.PW5/A bearing his signature at point A and handed over the same to Ct. Hansraj for registration of the FIR. After registration of the FIR, Ct. Hansraj reached the spot and handed over the original rukka and copy of the FIR to him. He had interrogated and arrested both the accused persons vide arrest memos Ex.PW1/A and Ex.PW1/B both bearing his signature at point X. He had also conducted the personal search of both the accused persons vide memos Ex.PW1/C and Ex.PW1/D, both bearing his signature at point X. In the personal search of both the accused persons, a sum of Rs.200/ each were recovered, which they had stated as robbed amount out of Rs.500/. He had also recorded the disclosure statement of both the accused persons Ex.PW1/E and Ex.PW1/F both bearing his signature at point X. He had also seized the currency notes recovered from the accused persons vide seizure memos Ex.PW1/G and Ex.PW1/H, both bearing his signature at point X. He had also mentioned the serial number of currency notes in the seizure memos. He had also prepared the site plan of place of occurrence at the instance of complainant Ex.PW1/DA bearing his signature at point A. They tried to search for the third accused person but he could not be traced. The accused persons were got medically examined in Lady Harding Hospital and thereafter, they reached police station. Accused persons were lodged in lockup. He had deposited the case property with MHC(M) in malkhana. He had recorded the supplementary statement of complainant and statement of Ct. Hansraj. The next day, both the accused persons were taken out of the lockup and produced before the court of concerned Ld. MM. He had obtained one day's PC remand of accused Suraj @ Sunil and accused Satish was sent to J/C. During PC remand, accused Suraj @ (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 14 of pages 27 Sunil led them to the house of accused Purushottam in Gali No.1, Prem Nagar where Mr. Dinesh, the father of complainant also joined them. On the pointing out of accused Suraj @ Sunil, Purushottam was apprehended from his house. Purushottam got recovered one black mobile phone make Asha Nokia from the roof of his jhuggi. Upon inquiry the age of Purushottam was found as 17 years. He had prepared the apprehension memo of Purushottam Ex.PW5/A bearing his signature at point A. Mr. Dinesh had identified the mobile phone got recovered by Purushottam, as to be of his son. He had sealed the mobile with his seal of PSM and seized the same vide seizure memo Ex.PW1/J bearing his signature at point X. He had also prepared the site plan qua recovery of mobile phone Ex.PW5/B bearing his signature at point A. Purushottam was produced before JJB and was sent to Observation Home. Accused Suraj was produced before Ld. MM and sent to J/C. He came back to police station and had deposited the case property in malkhana. He had also recorded the statements of witnesses including Dinesh Kumar. After completion of investigation, he had prepared the charge sheet, which was filed in the court through ACP concerned. He correctly identified the mobile phone as Ex.P1; two currency notes in the denomination of Rs.100/ recovered from accused Sunil as Ex.P2 (colly) and two currency notes in the denomination of Rs.100/ recovered from accused Satish as Ex.P3 (colly).
During cross examination he stated that the caller had told the place in DD No.11A where the police had to reach. When they reached the spot, only Rupesh and his father Dinesh met them. Only Ct. Hansraj accompanied him to the spot. The complainant had pointed out the place inside the bushes where he was robbed at some distance of the place where they met complainant and his father. After 4045 minutes of their reaching the spot, they apprehended both the accused persons. Both the (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 15 of pages 27 accused persons were found sitting by the side of railway line when complainant had pointed out towards them. At that time no public person or railway employee was found present there to whom they could call to join the investigation. They had searched for the third associate after apprehension of both the accused persons. They had searched for the third associate in Prem Nagar side and Moti Nagar side of railway line within radius of 700 meters. At the time of their arrest, the accused persons had only told about Purushottam that he was resident of Prem Nagar. They did not disclose his complete address. After search for Purushottam, they came back to the place where the incident took place near Bheem Park and there he recorded the statement of complainant. He did not record the statement of father of complainant at that time, however, the father of complainant was present at the time of recording of statement of complainant. Except the denomination of currency notes, the complainant did not point out any particular identification mark of his robbed money. The rukka was sent for registration of the FIR at about 02:50 PM. Except recording of statement of complainant, no written document was prepared before sending the rukka. The disclosure statements of accused persons were recorded after registration of the FIR and after two & half hours when accused persons were interrogated before registration of the FIR. He had requested 45 public persons to join the investigation at the time of preparation of documents but none agreed. He had obtained the signatures of complainant only on the arrest memos of accused persons. He did not prepare any pointing out memo of the spot at the instance of accused persons, however, he had prepared the site plan. He had prepared the site plan of the place of occurrence after apprehension of accused persons. At the time of preparation of site plan of place of occurrence the complainant and his father were present there. He did not obtain the signature of complainant or his father on the site (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 16 of pages 27 plan. They had visited the house of Purushottam at about 06:30 PM at the pointing out of accused Sunil. The father of Purushottam was also found present there. He did not record the statement of father of Purushottam, however, he is the witness of apprehension memo Ex.PW5/A at point X. He had requested the neighbours of Purushottam to join the investigation but none agreed. He along with Ct. Hansraj also accompanied Purushottam to the roof of his house from where he got recovered the mobile phone. He had prepared the seizure memo of mobile phone at that place only. He had also obtained the signatures of Ct. Hansraj and Dinesh Kumar at that place.
7. After conclusion of Prosecution Evidence, statements of accused persons U/s 313 Cr.P.C were recorded wherein they claimed innocence while stating that nothing was recovered from their possession or at their instance. He stated the alleged robbed amount belonged to them and it was not the robbed amount as they did not do any sort of robbery as alleged. They did not make any disclosure statement. They did not opt to lead any evidence in their defence.
8. I have carefully heard the rival submissions of Sh. Rajeev Mittal, Ld. Counsel for accused persons from DLSA and Sh. Ram Pyara, Ld. Addl. PP for the State. I have also perused the entire material placed before me.
9. It is the case of the prosecution that on 22.11.2015 at 10.40 AM accused persons alongwith their one associate namely Purshottam (juvenile) stopped the complainant and dragged him to the nearby bushes. Accused Purshottam (juvenile) caught hold of him and accused Satish @ Yahi took out a knife and kept it on his abdomen and from one of his hands, he took out his black Nokia Asha mobile phone and accused Sunil took out his wallet from jeans pocket containing a sum of Rs.500/(five currency notes in denomination of Rs.100/ each). Younger brother of (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 17 of pages 27 complainant informed his father, who made a call at 100 number and reached at the spot alongwith police. On being making search of accused persons in nearby areas, police caught hold of said two boys, out of which one boy was carrying knife type object in his hand, who had robbed his mobile phone and his name was revealed as Satish @ Yahi and other boy's name was revealed as Suraj @ Sunil, who took out Rs.500/ from his wearing pant. The third boy, who caught hold of him, had already flee away from there." Accused Sunil and Satish arrested in this case and they got recovered two currency notes of Rs.100/ each from their possession, which was the part of the robbed amount and than at the instance of accused Sunil @ Suraj, third person Purshottam (juvenile) was arrested on 23.11.2015 from his house and got recovered the mobile phone make Nokia Asha200, which he hide on the roof of his house. Per contra, as per defence put up on behalf of the accused persons, they are innocent and have been falsely implicated in this case. They claimed that nothing was recovered from their possession or at their instance. Further the alleged robbed amount belonged to them and it was not the robbed amount as they did not do any sort of robbery as alleged. They further claimed that they did not make any disclosure statement. The accused persons have, however, produced no documentary material or evidence in support of their claim of innocence and lifting and falsely implicating him in this case by the police.
10. According to Ld. Addl. PP for the State, the case of the prosecution is crystal clear. By way of consistent and corroborative evidence of PW2 Mr. Rupesh Pandey (the complainant) and PW3 Sh. Dinesh Kumar Pandey (father of complainant) alongwith the other witnesses, the prosecution has successfully proved that accused persons alongwith their one associate Purshohttam had robbed off the complainant off his money and mobile at the point of sharp object i.e. knife. The FIR is (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 18 of pages 27 instant and the identity of accused Sunil and Satish is well established on record by the complainant, who has correctly identified the accused Sunil and Satish as the person who alongwith their associate Purshottam (juvenile) had robbed the complainant at the point of sharp object. The currency note of Rs.200/ each, being the part stolen amount, got recovered at the instance of accused persons and further robbed off mobile phone of complainant was also produced and proved before the Court. On the other hand, accused persons have failed to bring anything on record towards their innocence. Thus, the accused persons are liable to suffer an order of conviction against them for the commission of offences charged.
Per contra, according to Defence counsel, the prosecution has been failed to bring the guilt of the accused persons beyond the shadow of reasonable doubt. First of all, there is no independent public witness of the incident despite of the fact that they could easily be available as the place of incident being a busy place i.e. bushes near the park, and admittedly, the day of alleged incident was Sunday and complainant alongwith his brother had gone to park for playing cricket and in these circumstances possibility of finding of public witness at the spot are on the higher side. Even otherwise, the prosecution has failed to examine the brother of complainant as a witness in this case as admittedly at the time of incident, he was present with the complainant. The testimonies of PW2 & PW3, who are the interested witnesses being complainant and his father, can not be safely relied upon. The factum of recovery of currency notes and mobile is also not free from doubt. As such, accused persons are entitled for an order of acquittal in their favour. The alleged recovery of four currency notes of Rs.100/ and mobile phone is planted one. No specific mark of identification or any other mark of identification have been shown to establish that it was the actual robbed amount or mobile phone, (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 19 of pages 27 particularly in the circumstances, when no where in his statement got recorded to the police, complainant has elaborated about it. The falsity of the case of prosecution is also reflected from the material contradictions appeared in the testimonies of complainant and his father recorded as PW2 & PW3. Further the weapon of offence used in the alleged crime was neither recovered not produced before the court in order to establish that any weapon was in the commission of crime.
11. In the instant case, both the accused persons Sunil @ Suraj and Satish @ Yahi have been charged U/s 392/411/34 IPC and accused Satish @ Yahi was also charged for the offence punishable U/s 397 IPC.
12. The offence of robbery as defined in Section 390 IPC is a special and aggravated form of either theft or extortion. Robbery means a felonious taking from the person of another or in his presence against his will, by violence or putting him in fear. The chief distinguishing element in robbery is the presence of imminent fear of violence. Section 391 IPC defines the offence of dacoity. The simple robbery is punishable U/s 392 IPC, whereas Section 393 IPC is a specific section for an attempt to commit robbery. The offence of voluntarily causing hurt of either description in committing or attempting to commit robbery is punishable U/s 394 IPC. Section 395 IPC prescribes the punishment for the offence of dacoity, whereas Section 396 IPC provides punishment for the offence of dacoity with murder. Section 397 IPC has been incorporated with intention to cover the case of a person who displays a deadly weapon to frighten his victim or their neighbours or who makes use of any deadly weapon for other simple purposes and its operation is not confined to cases where the weapon is used actually for causing injury or for attempting to cause an injury to another. The provision of Section 397 IPC does not create any new substantive offence but merely served as complementary to Section 392 & 395 IPC by regulating the punishment (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 20 of pages 27 already provided for robbery and dacoity. By fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances i.e. use of a deadly weapon or causing of a grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract Section 397 IPC and thereby inevitably negates the use of the principles of constructive or vicarious liability engraft in Sec. 34 IPC.
13. Sec.411 IPC prescribes punishment for receipt and retention of stolen property knowing of having reason to believe the same to be stolen property.
14. To bring home the guilt of the accused U/s 392 IPC the prosecution is required to prove:
(i). that the accused committed theft;
(ii). that he caused or attempted to cause to some
person (a) death, hurt or wrongful restraint; or
(b) fear of instant death, or of instant hurt, or of
instant wrongful restraint;
(iii). that he did as above (a) in committing such theft; or
(b) in order to commit such theft, or (c) in carrying
away, or attempting to carry away, the property
obtained by such theft;
(iv). that he acted as in (ii) voluntarily.
Or prove:
(i). that the accused committed extortion;
(ii). that he was, at the time of committing it, in the
presence of the person so put in fear;
(iii). that he committed it by putting that person or some
(State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 21 of pages 27
other person in fear of instant death, or of instant
hurt, or of instant wrongful restraint;
(iv). that he thereby induced the person so put in fear to
deliver up then and there the thing extorted.
and to prove its case U/s 397 IPC against the accused, it is necessary by the prosecution to establish:
(a). the commission of robbery or dacoity In the case of robbery a conviction under this section is equally good, whether the number of the accused be five or under;
(b). that the accused used a deadly weapon; or caused grievous hurt; or attempted to cause death or grievous hurt;
(c). that the above acts were done during the commission of robbery or dacoity.
In short, the prosecution is required to prove that the accused persons have robbed off the complainant of his belongings on the point of knife and subsequently, they were found in possession part of robbed money, mobile and the weapon of offence.
15. Now let us see, how far the prosecution has remained successful in proving its case against the accused Sunil @ Suraj and Satish @ Yahi U/s 392/397/ 411 IPC.
16. As regards to Section 392 IPC, in his statement, PW2 has clearly established that accused persons (present in court) are the same person, who on 22.11.2015 at 10.40 AM alongwith their one associate namely Purshottam (juvenile) had robbed his money and mobile from taking out the same from the pocket ofhis earing pant. The identities of accused persons Sunil and Satish are duly proved on record by PW2 & PW3. Although, PW2 & PW3 were duly cross examined by Ld. Counsel (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 22 of pages 27 for accused persons extensively but no dent could be created in the case of prosecution.
PW--2 Mr. Rupesh Pandey has categorically deposed that on 22.11.2015 at 10.40 AM accused Sunil and Satish alongwith his one associate Purshottam (juvenile) stopped him, when he alongwith his younger brother was coming back to his home after playing cricket, and dragged him to the nearby bushes. Accused Purshottam (juvenile) caught hold of him and accused Satish @ Yahi took out a knife and kept it on his abdomen and from one of his hands, he took out his black Nokia Asha mobile phone and accused Sunil took out his wallet from jeans pocket containing a sum of Rs.500/(five currency notes in denomination of Rs.100/ each). Younger brother of complainant informed his father, who made a call at 100 number and reached at the spot alongwith police. On being making search of accused persons in nearby areas, police caught hold of said two boys, out of which one boy was carrying knife type object in his hand, who had robbed his mobile phone and his name was revealed as Satish @ Yahi and other boy's name was revealed as Suraj @ Sunil, who took out Rs.500/ from his wearing pant. The third boy, who caught hold of him, had already flee away from there.
PW3 Mr. Dinesh Kumar Pandey (father of complainant) has testified in his deposition that on 22.11.2015 his both sons Rupesh Pandey and Sagar Pandey had gone to Bheem Park, Prem Nagar to play cricket. At about 10:40 AM, his son Sagar came back to their house and informed that three boys had caught hold of his elder son Rupesh and dragged him towards bushes. Thereafter, he immediately rushed there and he found his son Rupesh at railway crossing, Prem Nagar and he informed that those three boys had robbed his mobile phone and a sum of Rs.500/ from him by showing knife. A sum of Rs.500/ was given to his son by his school authorities to purchase uniform. He had informed the (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 23 of pages 27 police at 100 number from his mobile phone. Police reached the spot. Thereafter, he along with his son Rupesh had accompanied the police officials in search of those three boys and when they reached at some distance from railway crossing, two boys were found sitting by the side of railway track and his son Rupesh had pointed out those two boys as the same boys amongst those three boys who had robbed him. Thereafter, those two boys namely Sunil and Satish (correctly identified) were apprehended by the police. IO recorded the statement of his son Rupesh. Both the accused persons disclosed the name of their third associate as Purshottam, who had ran away from the spot after the incident. Police had arrested both the accused persons. In their personal search two currency notes of Rs.100/ each were recovered from both the accused persons. On 23.11.2015, he had joined the investigation with the police. Accused Sunil led them to the house of their associate Purshottam at Gali No.1, Prem Nagar and in that house he had pointed out towards one boy as Purshottam, who was apprehended and he got recovered one black mobile phone from the beddings lying at first floor of his jhuggi. Mobile phone and four currency notes in the denomination of Rs.100/ (two notes each recovered from accused Sunil and Satish) are proved on record as Ex.P1, Ex.P2(colly) and Ex.P3(colly) respectively. The identify of accused persons Sunil and Satish have been proved on record by PW2 & PW3 while stating that accused persons namely Sunil and Satish were sitting near the railway track at a distance of about 200 Metres and on the pointing out of complainant, police apprehended both of them and arrested them vide arrest memos Ex.PW1/A and Ex.PW1/B. Those persons revealed their names and Sunil and Satish and told that one of their associate namely Purushottam had ran away. Making of call at 100 number has been duly proved on record by PW3 (father of complainant).
(State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 24 of pages 27
17. From the combined reading of the testimonies of PW--2, PW--3 and other witnesses, it is established that the accused Sunil and Satish were the persons, who had robbed off the complainant by forcibly taking his money and mobile phone out of the pocket of the wearing pant of complainant. The identity of the accused persons is established on record. Although there are certain contradictions in the statements of the witnesses but they are of trivial nature. As such, the prosecution has been able to prove its case U/s 392/34 IPC against the accused Sunil @ Suraj and Satish @ Yahi and therefore, they are liable to suffer an order of conviction against them therein.
18. Now let see as to whether the prosecution has also attained success in establishing its case U/s 397 IPC as well as U/s 411 IPC against the accused persons Sunil @ Suraj and Satish @ Yahi.
19. As regards Sec.397 IPC is concerned, in my considered opinion, the prosecution has been failed to establish that at the time of commission of robbery the accused Sunil @ Suraj and Satish @ Yahi had used the knife and as such the robbery was performed at the point of knife because the said weapon of offence has neither been recovered nor proved on record by the prosecution. Further the important ingredients to establish the charge U/s 397 IPC that at the time of commission of offence, the said object/weapon of offence was well within the view of the victim i.e. the complainant, which had created a fear in his mind, is also not established. Even otherwise, it has been noticed that in his testimony, the material witness of prosecution i.e. PW2 has not spoken in consonance to the case of prosecution as according to statement of Sh. Rupesh Pandey (the complainant), got recorded to the police, he stated that some knife type object was shown to him, whereas while appearing in the witness box as PW2, he stated that after taking him inside the bushes, one of those boys caught hold of him, one of other two boys took out a knife. Thus, the (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 25 of pages 27 prosecution has been failed to prove its case U/s 397 IPC beyond the shadow of reasonable doubt and as such the accused Sunil @ Suraj and Satish @ Yahi are entitled for an order of acquittal in their favour U/s 397 IPC.
20. Similarly, as regard to Section 411 IPC, the case of prosecution is also not established beyond the shadow of doubt as neither in his testimony or any where, the complainant has mentioned any specific identification mark of the currency notes or even their numbers to show that the four notes of Rs.100/, which were got recovered from the accused Sunil @ Suraj and Satish @ Yahi (two notes of Rs.100/ each) were the part of robbed money, as neither in his statement got recorded to the police nor in his testimony recorded in the court PW2 complainant has mentioned about any identification mark of currency notes or even their numbers to show that the said recovered notes were belonging to him. It was only after the recovery of currency notes, IO of the case has noted down the numbers of recovered currency notes. Further the recovery of currency notes and mobile are also not beyond the doubt as the factum of recovery has not got been witnessed by any independent public witness despite of the fact that they were easily available. As per the case of prosecution, accused Sunil and Satish were apprehended from near railway track and got recovered Rs.200/ each in the denomination of Rs.100/ and in such circumstances possibility of availability of public person there can not be ruled out and at no point of time, qua the accused persons, any public person has been joined in the investigation, particularly at the time of recovery of alleged robbed amount. It is also the case of prosecution that on 23.11.2015, accused Sunil led the police party to the house of their associate Purshottam and got him arrested and said Purshottam got recovered one black mobile phone from the beddings lying at first floor of his jhuggi. Admittedly, at the (State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 26 of pages 27 time of apprehension of Purshottam, some ladies were present there but no one of the said lady was joined in the investigation at the time of recovery of said mobile phone. This is significant, particularly in the circumstances, when IO has not joined any independent public witness at the time of recovery of currency note. Thus, the prosecution has also been failed to prove its case U/s 411 IPC beyond the shadow of reasonable doubt and as such the accused Sunil @ Suraj and Satish @ Yahi are also entitled for an order of acquittal in their favour U/s 411 IPC.
21. In view of aforesaid, accused Satish @ Yahi is hereby acquitted U/s 397 & 411 IPC and accused Sunil @ Suraj is also acquitted of the charge levelled against him U/s 411 IPC, however, accused Satish @ Yahi and Sunil @ Suraj are held guilty U/s 392/34 IPC and they are convicted therein under accordingly.
22. Now they be heard on the point of quantum of sentence on 16.05.2017.
(Announced in open Court (RAKESH KUMAR1)
on 11th May, 2017) Addl. Sessions Judge/Special
Judge (NDPS) (West)
Tis Hazari Courts, Delhi
(State Vs. Sunil @ Suraj & Anr.) (SC No.56530/2016) Page No. 27 of pages 27