Delhi District Court
State vs . 1. Sukar Ali @ Billi on 29 September, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION
JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI
Session Case No. 926/08
Unique Case ID No. 02404R0263342008
State Vs. 1. Sukar Ali @ Billi
S/o Sh. Khurshid Ali
R/o Jhuggi No. 213,
H- 4 Block, Shah Alam
Bandh, Jahangir Puri, Delhi
(Convicted)
2. Salauddin @ Chuha
S/o Sh. Sahabuddin
R/o Jhuggi No. 226,
H-4 Block, Jahangir Puri,
Delhi.
(Convicted)
FIR No.: 561/2007
Under Section: 394/397/34 Indian Penal Code
Police Station: AdarshNagar
Date of committal to Sessions court: 11.4.2008
Date on which orders are Reserved: 21.9.2010
Date on which judgment announced: 25.9.2010
JUDGMENT:
As per the allegations, both the accused Sukar Ali @ Billi and Salauddin along with their co-accused Sheikh Sahadat committed robbery of Rs.11,000/- and NOKIA phone no.
St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 19719812715 from the complainant Devender Kumar. It is further alleged that both the accused persons along with their co-accused Sheikh Sahadat caused injuries on the person of Devender Kumar and used a knife for commission of offence.
BRIEF FACTS:
Case of the prosecution:
The case of the prosecution is that on 22.12.2007, on receipt of DD No. 19A Sub Inspector Om Prakash of police station Adarsh Nagar and Constable Rajinder reached the spot i.e. Hanuman Road, Adarsh Nagar where they came to know that the injured had already been shifted to BJRM Hospital in PCR van. Thereafter both the police officials reached BJRM Hospital where they found one Davinder Kumar admitted there. Sub Inspector Om Prakash recorded the statement of injured Davinder Kumar who informed the police that at about 7 pm he along with his helper Nilesh Kumar were sitting in the cabin of their truck bearing no. HR-38D-5428 after loading the same near Hanuman Mandir. Suddenly two persons entered the cabin from driver's door and one person entered from the other door and another person was standing outside the truck. One of the persons who boarded the truck from driver's side was carrying a knife and the person armed with knife demanded money from them on which refused to do so. On this the person who was having a knife, stabbed him in his right leg on the portion lower to knee and snatched Rs.11,000/- (in the St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 2 denomination of Rs.1000 x 10 notes and Rs.100 x 10 notes) which he had collected as charges for goods which he had unloaded at Narela Mandi. Devender Kumar further informed the police that one of the said boys snatched his mobile phone make NOKIA bearing no. 9719812715. On the basis of the aforesaid statement of the injured Devender Kumar the present FIR was got registered.
Thereafter on 4.1.2008 ASI Dalbir Singh received a secret information that one of the accused wanted in the present FIR is present near Peer Mazar and hiding himself behind the trucks. Pursuant to the same he along with HC Suraj Bhan and Constable Harminder reached there and apprehended the accused Shukar Ali who was arrested. On 2.2.2008 accused Salaudin @ Chuha was produced in the court on production warrant who was also arrested in the present case. Further, on 22.2.2008 an information was received that accused Sheikh Sahadat (juvenile) has been arrested by Special Staff vide DD No. 66 who made disclosure about the present case after which he was also arrested in the present case. The Test Identification Parade of all the accused persons was got conducted wherein the complainant/ injured Devender Kumar correctly identified all the accused persons. Thereafter charge sheet has been field against all the accused persons however, during the trial the accused Sheikh Sahadat was declared to be a juvenile and therefore, the proceedings against Sheikh Sahadat was transferred before the Juvenile Justice Board.St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 3
CHARGE:
The Ld. Predecessor of this court has settled the charges under Sections 392/ 394/ 397/34 Indian Penal Code against the accused persons to which they have pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined as 14 witnesses:
Public witness/ victim/ complainant:
The victim/ complainant Devender Kumar has been examined as PW2 who has deposed that on 22.12.2007 at about 7 pm he was standing after loading his truck bearing registration no. HR-38D-5428 near Hanuman Mandir Road, Adarsh Nagar and his helper Nilesh Kumar was also present with him. According to the witness, when they were sitting inside the cabin of truck, suddenly two persons entered the cabin from driver's door and one persons entered from the other door and another person was standing outside the truck. He has further deposed that one of the persons who boarded the truck from driver's side was carrying a knife and demanded money from them but he did not pay any money on which the person armed with knife stabbed in his right leg on the portion lower to knee with the knife and snatched Rs.11,000/- ( in the denomination of Rs.1000 x 10 notes and Rs.100 x 10 notes) which he had collected as charged for goods which he had unloaded St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 4 at Narela Mandi and one of them snatched his mobile phone make NOKIA bearing no. 9719812715. He has further deposed that thereafter he called up 100 number from nearby STD/PCO pursuant to which police arrived at the spot and took him to BJRM Hospital where his statement Ex.PW2/A was recorded. The witness has also deposed that after treatment he was brought to the spot of occurrence where at this instance the site plan Ex.PW2/B was prepared. According to PW2, two months after the incident he was taken to Tihar Jail for TIP of accused persons and during TIP he identified the accused Sukar Ali which TIP proceedings are Ex.PW2/C. He has further deposed that at the time of his medical examination his blood stained clothes were seized by the doctor. He has also identified the accused Sallaudin as the person who was armed with knife.
The witness has been cross-examined by the Ld. Addl. PP for the State on the point of identification of the accused Sallaudin and Sheikh Sahadat wherein he has admitted that he had come to Rohini Courts and identified the accused Sallaudin but has denied that later he again came to Rohini Courts and identified Sheikh Sahadat who was appearing in some proceedings. The witness is unable to tell if he had stated to the investigating officer that accused Sallaudin had snatched the mobile phone from him and has deposed that all the three accused entered the cabin of his truck and he does not distinctly remember the role of each of them. He is unable to tell if he had stated to the investigating officer that St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 5 accused Sheikh Sahadat had stabbed him with a knife.
In his cross-examination the witness has deposed that he had parked his truck on the road about 10 feet wife and half of the body of the truck was on the road. According to him, there was a street light little ahead and commuters were present on the road and other vehicles were also moving on the road. He has admitted that only one person can enter the cabin at one time from the door but has denied that door on the driver side cabin of the truck could not be opened. He has pointed out towards accused Sallaudin and stated that he was the first who entered the cabin from the driver's side, after which accused Sheick Sahadat entered from the same door and last of all accused Sukar Ali entered from the conductor's door. According to PW2 he raised alarm but none came to their help and the accused Salladuin had stabbed him with the knife on which Nilesh had stopped him. PW2 has further deposed that he had identified the accused Sallaudin in Rohini Court Complex on 29.2.2008 when he was called by Ct. Dalbir. He has admitted that he was 15 years old when he got issued the driving license which was not seized by the police and according to him, the driving license misplaced during the occurrence and could not be found subsequently.
PW8 Ravinder Kumar is the registered owner of truck no. HR-38-5428 on which the victim PW2 Devender Kumar was working as Driver. He has deposed that on 22.12.2007 Devender Kumar was the Driver and Nilesh was the Conductor on the aforesaid truck and on that day his driver had loaded cardboard St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 6 boxes from Adarsh Nagar. According to the witness, at about 7:45 to 8:00 pm he received a telephone call from Nilkesh who informed him that two boys had snatched money of Rs.11,000/- and mobile phone from the driver and the driver Devender Kumar had sustained injuries.
Medical witnesses:
PW12 Dr. Seema has deposed that that on 22.12.2007 she was posted as Chief Medical Officer in BJRM Hospital and on that day one patient Devender Kumar was brought to the hospital by the PCR and the patient was examined by Dr. Amit under her supervision. According to the witness, Dr. Amit prepared the ME No. 101597 dated 22.12.2007 according to which there is CLW 2 cm on anterior aspect of right leg. She has proved the ME which is Ex.PW12/A. Police/ official witnesses:
PW1 HC Suresh is a formal witness being the Duty Officer who has deposed that on 22.12.2007 at about 9:30 am he received a rukka through Ct. Rajinder which was sent by SI Om Prakash on the basis of which the present FIR No. 561/07 was recorded in the computer, copy of which FIR is Ex.PW1/A. He has proved his endorsement on the rukka which is Ex.PW1/B and has deposed that after registration of FIR computerized copy of the FIR along with the original rukka was sent to SI Om Prakash through Ct. Bijender.St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 7
PW2 Ct. Rajinder Kumar has deposed that on 22.12.2007 on receipt of DD No. 19A he accompanied the investigating officer SI Om Prakash to Hanuman Road, Adarsh Nagar where they came to know that the injured had been shifted to hospital after which they went to BJRM Hospital and collected the MLC of the injured/ complainant Devender Kumar. He has further deposed that the complainant Devender was declared fit to make a statement by the doctor after which the investigating officer recorded the statement of Devender Kumar and prepared the rukka and he was sent to police station along with the original rukka and got the FIR registered. He has also deposed that after getting the FIR registered he returned to the spot along with original rukka and copy of the FIR which he handed over to the investigating officer.
In his cross-examination the witness has deposed that he recorded his departure entry vide DD No. 19A and no investigation was carried out by the investigating officer in his presence.
PW4 Ct. Ashok Kumar has deposed that on 22.2.2008 information was received from Special Staff North West District vide DD No. 33A that the accused Sheikh Sahadat @ Raju had been arrested by the Special Staff who made a disclosure statement pertaining to this case. According to him, thereafter he along with investigating officer went to the office of Special Staff where HC Ashok Kumar handed over one copy of the disclosure statement and photocopy of Kalandra and DD entry. PW4 has deposed that accused Sheikh Sahadat was also produced before the investigating officer who on interrogation disclosed that about 2 months back he St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 8 along with his associate Sukar Ali @ Billi, Sallaudin and Rafiqul had looted one truck driver and snatched a sum of Rs.11,000/- and one mobile phone and also caused him injured. The said disclosure statement of accused Sheikh Sahadat is Ex.PW4/A after which the accused was arrested vide memo Ex.PW4/B. PW5 Ct. Harminder Singh has deposed that on 4.1.2008 he joined investigations with ASI Dalbir Singh and HC Suraj Bhan and were present at Shah Alam Dam Jahangir Puri when a secret informer met the investigating officer and informed that an accused of the occurrence dated 22.12.2007 was present in the area of Peer Baba and was hiding behind the trucks and can be apprehended. He has deposed that they all reached Peer Baba and on the pointing out of the informer, apprehended the accused Sukar Ali who made a disclosure statement which is Ex.PW5/A after which the personal search of accused Sukar Ali was conducted vide memo Ex.PW5/B and was arrested vide memo Ex.PW5/C. According to the witness, the accused Sukar ali disclosed that Rs.1,100/- came to his share from the robbery from which he had purchased clothes for himself and his children pursuant to which he led the police party to his house i.e. Jhuggi No. H4/213, Shah Alam Dam and got recovered the pant and shirt and dress of a child. PW5 has testified that the said clothes were kept in a pullanda and sealed with the seal of DS and seized vide memo Ex.PW5/D after which the accused also pointed out the place of occurrence vide memo Ex.PW5/E. St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 9 In his cross-examination the witness has deposed that he was instructed by ASI Dalbir Singh to join the investigations. He has deposed that they were at Shah Alam Dam but he is unable to tell the exact location where the secret information met them. According to him, secret informer remained with them about about half an hour and some truck drivers or conductors might have been present but he did not ask any of them to join investigations. He has further deposed that accused was standing behind a truck and was alone and could not see them after which all the police officials apprehended the accused simultaneously. He does not remember the conveyance used after apprehending the accused and also if the Jhuggi of the accused was locked or opened.
PW6 SI Om Prakash has deposed that on 22.12.2007 he received DD No. 19 after which he alongwith Ct. Rajinder reached the spot and came to know that the injured had already been shifted to BJRM Hospital in PCR van. According to him, thereafter they reached BJRM Hospital and he obtained the ME of injured Devender Kumar and recorded his statement after which he made endorsement on the same which is Ex.PW6/A. The witness has further deposed that he prepared the rukka which was sent to police station through Ct. Rajinder for registration of the case and in the meantime the injured Devender was discharged from the hospital and accompanied him at the spot. PW6 has testified that he inspected the spot and prepared the sough site plan Ex.PW2/B at the instance of Devender Singh. He has proved having recorded the St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 10 statement of helper Niliesh Kumar and Ct. Rajender who had returned to the spot after getting the case registered and handed over to him the original rukka and copy of FIR. According to PW6 he searched for the accused persons but could not succeed.
In his cross-examination the witness has deposed that he did not obtain the signatures of the complainant on the site plan. He has further deposed that the rukka was prepared at the hospital and he was already on investigation of some other case when he got the call for the present case. According to him, he reached the spot at about 8:15 pm and no police officials was present at the spot when he reached there.
PW7 HC Pratap has deposed that on the night intervening 21-22.2.2008 he was working as Duty Officer from 1 am to 9 pm at police station Adarsh Nagar and on that day at about 3:00 am HC Ashok Kumar gave information on telephone that one accused namely Sheikh Sahadat who was wanted in case FIR No. 561/07 has been arrested. He has testified that he accordingly recorded the said information in the rojnamcha vide DD no. 33A and copy of the same was given to the investigating officer ASI Dalbir Singh. He has proved the DD No. 33A copy of which is Ex.PW7/A. PW9 HC Suraj Bhan has deposed that on 4.1.08 he was posted as Head Constable at police station Adarsh Nagar and on that day he remained in the investigation of this case along with investigating officer ASI Dalbir and Ct. Harminder. According to St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 11 him, at about 10.00 pm when they were present at Shah Alam Bandh, Jahangirpuri at H-4 Block, the investigating officer received the secret information that the accused Sukar Ali who was involved in the incident of robbery of 22.12.07 in a truck, was present near jhuggis of Jahangirpuri, Shah Alam Bandh pursuant to which they at the spot at Peer Baba Road. PW9 has deposed that on the way the investigating officer asked 3-4 public persons to join the raiding party but none agreed and went away without telling their names and addresses after which at around 10.25 pm at the instance of secret informer they apprehended accused Shukar Ali @ Billi who was interrogated and arrested vide arrest memo already Ex.PW5/C and his personal search was conducted vide memo already Ex.PW5/B who made disclosure statement already Ex.PW5/A. The witness has further deposed that the accused Sukar Ali disclosed that Rs.1100/- came to his share from the robbed amount and out of that amount, he had purchased one pant/shirt for him for Rs.250/- and clothes for his children for Rs.200/-. He has further deposed that accused thereafter took them to his house and produced the clothes which were put up into a pullanda and sealed with the seal of DS and seized vide memo Ex.PW5/D. The witness has also proved that the accused pointed out the place of occurrence, i.e. Hanuman Road, Adarsh Nagar, Delhi, vide pointing out memo Ex.PW5/E. The witness has identified the accused Sukar Ali in the court as well as the clothes which are collectively Ex.P1.
St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 12In his cross-examination the witness has deposed that on 4.1.08, he was on beat duty and all the three were on foot. According to him, the secret informer met the investigating officer at about 10:00 pm. He is unable to tell the name of such persons whom the investigating officer had asked to join the investigations and also whether the investigating officer had initiated any action against the persons or not who refused to join the investigation. The witness has also deposed that the disclosure statement of accused Shukar Ali was recorded after his apprehension at the place of apprehension and at about 12.00 midnight they left the place of arrest and went to police station. He has admitted that the shirt and pant are used clothes and has stated that he does not remember as to from exact place the shirt and pant were recovered.
PW10 Ct. Suresh is a formal witness who has deposed that on 4.1.08 he was posted as DD writer in police station Mahendra Park from 5.00 pm to 1.00 am and on that day he recorded DD No.84B regarding the departure of ASI Dalbir Singh along with HC Suraj Bhan and Ct. Harminder in the investigation of the present case. He has proved the said DD copy of which is Ex.PW10/A. PW11 HC Sushil has deposed that on the intervening night of 21-22.2.08 he along with HC Ashok Kumar, HC Raj Pal and Ct. Satyawan had apprehended the accused/juvenile Sheikh Shahdat, from near Kushal Cinema Jahangirpuri along with the other accused. According to the witness, juvenile Sheikh Shahdat St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 13 was arrested by HC Ashok Kumar in DD No. 16 U/s 41.1 (d) Cr.P.C. Special Staff, North West who made the disclosure statement about the present case, copy of which disclosure statement is Ex.PW11/A. PW13 HC Ashok Kumar on the intervening night of 21/22.2.2008 he was posted as Head Constable in Special Staff and on that day he along with HC Sushil, HC Raj Pal and Ct. Satyavan had apprehended the accused/ Juvenile Sheikh Shahadat from near Kushal Cinema Jahangir Puri along with other accused. He has proved that he had arrested Sheikh Shahadar in DD No. 16 U/s 41.1
(d) Code of Criminal Procedure who made disclosure statement of the present case, copy of which disclosure statement is Ex.PW11/A. PW14 ASI Dalbir Singh is the investigating officer of the present case who has deposed that on 24.12.2007 investigation of this case was handed over to him. According to him, on 04.01.2008 he alongwith HC Suraj Bhan, Ct. Harminder were present at Shah Alam Bandh where he received a secret information that one of the accused wanted in this case is present near Peer Mazar and hiding himself behind the trucks. He has deposed that he asked 4/5 public persons to join the raiding party but none agreed and went away without telling their names and addresses after which at about 10.25 pm they reached at Peer Baba Mazar and apprehend the accused Shukar Ali @ Billi who was interrogated and arrested vide memo Ex.PW5/C, personally searched vide St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 14 memo Ex.PW5/D and disclosure statement of accused was recorded vide Ex.PW5/A. The witness has testified that accused disclosed that Rs.1100/- came to his share from the occurrence of robbery and from that money he had purchased pant-shirt for Rs.250/- and clothes of his children for Rs.200/- and remaining amount he had spent. According to the witness, in pursuance to the disclosure statement the accused took them to his jhuggi at H Block, Jahangirpuri, Delhi and got recovered pant and shirt which put into a pulanda and sealed with the seal of DS and seized vide memo Ex.PW5/D after which the accused pointed out the place of occurrence vide pointing out memo Ex.PW5/E. The investigating officer has further deposed that the accused was kept in muffled face and he moved an application for the Test Identification Parade of the accused, which application is Ex.PW14/A and on 11.01.2008 Test Identification Parade of the accused Sukar Ali was got conducted where Devender Kumar had correctly identified the accused.
The witness PW14 has also deposed that on 02.02.2008 accused Salauddin @ Chooha was produced in the court on production warrant who was interrogated and arrested vide memo Ex.PW14/B and his personal search was conducted vide memo Ex.PW14/C after which the disclosure statement of the accused was recorded vide Ex.PW14/D. He has also proved his application for conducting Test Identification Parade of accused Salauddin which is Ex.PW14/E and has deposed that on 18.2.2008 Test St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 15 Identification Parade of Salauddin was got conducted where he refused to participate. According to him, he collected the copy of the same vide his application Ex.PW14/F. PW14 has further deposed that on 22.02.2008 he received an information that accused Sheikh Shahadat (juvenile) has been arrested by special staff vide DD No.66 who made a disclosure statement about the present case and thereafter he formally arrested the accused Sheikh Shahadat and moved an application for judicial Test Identification Parade. The witness has proved his application for Test Identification Parade which is Ex.PW14/H and on 11.3.2008 Test Identification Parade of Sheikh Shahadat was got conducted wherein he refused to participate. According to the witness, he collected the copy of the same vide his application Ex.PW14/J and the Test Identification Parade of accused Sahadat is Ex.PW14/K. He has testified that after completion of investigations he prepared the challan and filed in the court. The witness has correctly identified the accused persons in the court as well as the case property i.e. the clothes got recovered by the accused Sukar Ali which are collectively Ex. P1.
In his cross-examination the witness has deposed that he had not seized the Driving Licence of Devender nor the age proof of Devender nor the truck. According to him, he had not carried out any investigation in the truck which is alleged to be the place of offence. He has further deposed that he had not given any notice in writing to the public persons who refused to join the investigation nor he reduced the secret information into the writing nor it was St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 16 sent to his senior officers. He has admitted that he had not mentioned the place of recovery in the seizure memo.
Statement of the accused/ defence evidence:
After completion of prosecution evidence the statement of the accused persons were recorded under Section 313 Code of Criminal Procedure where all incriminating evidence was put to the accused persons which they have denied. The accused Sukar Ali has stated that he is innocent and has no other case against him and has been falsely implicated in this case. According to him, he is working as Kabari and has no concern with any criminal activity. He has also stated that he did not make any disclosure statement and the shirt and pant so recovered belong to him which he purchased from his own money and the same has been wrongly seized. The accused Sallaudin has stated that he is innocent and has been falsely implicated in the present case and was already in judicial custody in another case. He has further stated that he is a packer by profession and having a young sister and parents.
FINDINGS:
I have heard the arguments advanced before me and considered the written memorandum of arguments filed on behalf of the accused persons.
Firstly the victim PW2 Devender Kumar has correctly identified both the accused Sukar Ali and Sallaudin in the Test Identification Parade as well as in the court, which proceedings in St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 17 respect of Sukar Ali are Ex.PW2/C. Secondly the victim Devender Kumar PW2 has correctly identified the accused Sukar Ali in the court as the person who had entered the cabin of his truck and the accused Sallaudin as the person who was carrying a knife and had threatened him and also snatched his mobile but he does not say that Sallaudin used this knife.
Thirdly the victim Devender Kumar PW2 has proved that he called up the police and participated in the investigations and the site plan of the spot was prepared at his instance. He has identified his signatures on the various documents prepared during the investigations.
Fourthly all the other witnesses of the police i.e. PW1 HC Suresh, PW3 Ct. Rajinder Kumar, PW4 Ct. Ashok Kumar, PW5 Ct. Harminder Singh, PW6 SI Om Prakash, PW7 HC Pratap Singh, PW9 HC Suraj Bhan, PW10 Ct. Suresh, PW11 HC Sushil, PW13 HC Ashok Kumar and PW14 ASI Dalbir Singh have proved the proceedings conducted by them and have corroborated each other on material particulars and there are no material contradictions.
Fifthly the owner of the truck PW8 Ravinder Kumar has proved that the victim Devender Kumar was the driver on his truck on the date of the incident.
Sixthly the role attributed to both the accused has been specifically explained by the victim Devender Kumar PW2. He has proved that it was the accused Sukar Ali who had entered his cabin St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 18 and Sallaudin was the accused who had shown him a knife and snatched his mobile. Though the witness says that Sallauddin was armed with a knife yet he does not say that Sallaudin used this knife to commit robbery. The case of the prosecution is that the accused Sheikh Sahadat (juvenile) had inflicted knife blow on him and it is also evident from the record that no knife has been recovered from the accused Sallaudin.
Lastly Ld. Counsel appearing on behalf of the accused persons has tried to demolish the Test Identification Parade proceedings conducted by the Ld. Metropolitan Magistrate in respect of the accused Sukar Ali and has submitted that the Test Identification Parade are defective and does not show that Sukar ali has been correctly identified as the accused was standing at serial no. 10 from the left and at 2nd from the right and the Ld. Metropolitan Magistrate had also mentioned that the accused had changed his jacket with the under trial prisoner namely Sunil who is standing at serial no. 10 which could not have been the position. The argument raised by the Ld. Counsel is devoid of merit in view of the fact that in the Test Identification Proceedings the Ld. Metropolitan Magistrate has categorically observed that the witness has correctly identified the accused Sukar Ali. Whether the accused was standing at serial number 10 or at any other serial number would be of no consequence. Once the Ld. Metropolitan Magistrate who is himself aware of the identity of the accused Sukar Ali who was identified by the Superintendent Jail while being produced for Test Identification Parade and he has thereafter observed that the St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 19 accused was correctly identified, there could have been no mistake. Apart from the aforesaid, both the accused have been clearly identified by the victim in the court which strengthens the case of the prosecution.
This being so, I hereby hold that the prosecution has been able to prove and substantiate the allegations made against the accused persons. Both the accused Sukar Ali and Sallaudin are held guilty of the offence under Section 392 Indian Penal Code and are accordingly convicted.
Case be listed for arguments on sentence on 29.9.2010.
Announced in the open court (Dr. KAMINI LAU)
Dated: 25.9.2010 ASJ-II(NW): ROHINI
St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 20
25.9.2010
Present: Addl. PP for the State.
Both the accused Sukar Ali and Sallaudin in JC with Amicus Curiae Ms. Sindhu Sakarwal advocate. Vide my separate detailed order dictated and announced in the open court, both the accused Sukar Ali and Sallaudin are held guilty of the offence under Section 392 Indian Penal Code and accordingly convicted.
Case be listed for arguments on sentence on 29.9.2010.
(Dr. Kamini Lau) ASJ-II(NW)/ 25.9.2010 St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 21 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSION JUDGE-II (NORTH-WEST): ROHINI COURTS: DELHI Session Case No. 926/08 Unique Case ID No. 02404R0263342008 State Vs. 1. Sukar Ali @ Billi S/o Sh. Khurshid Ali R/o Jhuggi No. 213, H- 4 Block, Shah Alam Bandh, Jahangir Puri, Delhi
2. Salauddin @ Chuha S/o Sh. Sahabuddin R/o Jhuggi No. 226, H-4 Block, Jahangir Puri, Delhi.FIR No.: 561/2007
Under Section: 394/397/34 Indian Penal Code Police Station: AdarshNagar Date of Conviction: 25.9.2010 Arguments heard on: 29.9.2010 Date of sentence: 29.9.2010 APPEARANCE: Present: Sh. Taufiq Ahmed, Addl. PP for the State.
Both the convicts in judicial custody with Amucis Curiae Ms. Sindhu Sakarwal, Advocate.St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 22
ORDER ON SENTENCE:
Vide my separate detailed judgment both the accused persons i.e. Sukar Ali and Sallaudin have been held guilty of the offence under Section 392 Indian Penal Code.
The case of the prosecution is that the complainant/ victim Devender Kumar was a Driver on the truck bearing no. HR- 38D-5428 and one Nilesh was working as Conductor on the said truck. On 22.12.2007 when they were sitting in the cabin of their truck, both the convicts Sukar Ali and Sallaudin along with their co- accused Sheikh Sahadat (juvenile) committed robbery of Rs.11,000/- and NOKIA phone from the complainant Devender Kumar and caused injuries to him. The victim Devender Kumar appeared and deposed before this court on whose testimony both the accused persons have been held guilty of the offence under Section 392 Indian Penal Code.
I have heard arguments on the point of sentence. Ld. counsel appearing on behalf of the convicts has argued that the convict Sukar Ali is a young boy of 22 years having a family comprising of wife, two sons and two daughters. It is submitted that the convict Sukar Ali is totally illiterate and is a safai karamchari by profession and has remained in judicial custody for about 2 years and 4 days.
In so far as the convict Sallaudin is concerned, Ld. counsel has argued that he is a young boy of 24 years having a family comprising of father, 3 sisters and brother. It is submitted St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 23 that the convict Sallaudin is 4th class passed and is a labour by profession and has remained in judicial custody for about 2 years, 9 months and 28 days.
Ld. Counsel appearing on behalf of the convicts has argued that both the convicts are the sole bread earners of their respective families and request that a lenient view be taken against both the convicts.
On the other hand the Ld. Addl. PP for the state prayed for a strict view against both the convicts keeping in view the allegations involved. He has argued that the convict Sallaudin is involved in three other cases i.e. FIR No. 672/07, under Section 399/402 Indian Penal Code, police station Jahangir Puri; FIR No. 588/05, under Section 308/34 Indian Penal Code, police Station Adarsh Nagar and FIR No. 722/07, under Section 392/34 Indian Penal Code police station Jahangir Puri whereas the convict Sukar Ali is involved in one case under Arms Act.
I have considered the submissions made before me. I am informed that the convict Sukar Ali has been acquitted in the case under Arms Act and is not involved in any other case and also keeping in view his young age and the fact that the after the present case there is no other involvement of convict Sukar Ali, a lenient view is taken against him. The convict Sukar Ali is sentenced to Rigorous Imprisonment for the period of already undergone by him and fine to the tune of Rs.2,000/- for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 24 shall undergo Simple Imprisonment for a period of one week.
In so far as the convict Sallaudin is concerned, he is involved in as many as three other case of robbery, dacoity and attempt to murder. In view of his previous involvements I hereby sentenced the convict Sallaudin to Rigorous Imprisonment for a period of four years and fine to the tune of Rs.2,000/- for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one week.
Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them during the trial.
Both the convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 29.9.2010 ASJ (NW)-II: ROHINI
St. Vs. Sukar Ali, Etc. FIR No.561/07, PS Adarsh Nagar Page No. 25