Delhi District Court
State vs . Kapil @ Dhanni & Khurshid 1 Of 21 on 21 October, 2013
In the Court of Sh. Vimal Kumar Yadav, Additional
Sessions JudgeII, South District, Saket Court, Delhi.
Session Case No. 19/13/11
In the matter of :
State
Versus
1. Kapil @ Dhanni
S/o. Sh. Ram Kishan
R/o. House No. 41,
Village Dera Gaon,
New Delhi
2. Khurshid
S/o. Sh. Khuda Baksh
R/o. House No. D90,
near Idgah, Ambedkar Nagar
Colony, Mehrauli, New Delhi.
FIR No. : 191/2011.
Police Station : Mehrauli.
Under section. : 392/397/411/34 IPC.
Date of assignment : 13.12.2011
Reserved for order on : 07.10.2013
Date of decision : 14.10.2013
State Vs. Kapil @ Dhanni & Khurshid 1 of 21
JUDGMENT
1. The inconvenience associated with the barter economy particularly the inflexibility and sluggishness and lack of portability became instrumental, inter alia, for the invention of money / currency which made trade a whole lot easier. The invention of currency, due to his flexibility and portability sees and things was booked up all over the world. The inconvenience and the changes in the economy gave rise, over a period of time, to a parallel or black economy. The advent of such an economy has created new avenues in the job market / occupations of the said parallel economy. Those who indulge in creation of such a wealth needed persons to transport and manage that money. Thus, apart from other occupations, to prominent occupations emerged i.e. those who came forward to shoulder the responsibility of transferring the money from one place to another safely and securely. The other segment of the society seeing the vulnerability of such a money also came into existence and they were the persons who robbed / stole that unaccounted money in the fervent hope, being correct to some extent that they would not be brought to book.
State Vs. Kapil @ Dhanni & Khurshid 2 of 21 However, human mind is very ingenious and therefore, ways and means have been devised by both sides of the occupation in their respective interest.
2. The instant case also involve transfer of money, may not be strictly the kind of money referred above but was hard cash for which a person was consciously employed against consideration. Through one such movement, the victim Ramesh Kumar was waylaid and robbed by the accuseds herein while he was carrying sum of Rs.17,65,000/ with him as carrier and his own Rs.40,000/ on a motorcycle bearing registration No. DL3SAJ824 near M.B. Road, Chattarpur at about 6.45 P.M. The victim was put under the threat of a knife and that is how the money i.e. Rs.40,000/ was snatched away from Ramesh Kumar. It was revealed to him later in that the amount of Rs.17,65,000/ which he was carrying in the dickey of the motorcycle was also taken away. The matter was reported to the local police and FIR of the present has been registered.
3. Investigations resulted into the apprehension of the State Vs. Kapil @ Dhanni & Khurshid 3 of 21 accused as Kapil @ Dhanni and Khurshid on the basis of secret information. The information with regard to their involvement turned out to be correct in as much as they got recovered the robbed amount from a park where it was kept by them in a bag underneath stones. However, at the time of their apprehension they were found in possession of the other lot of the robbed amount i.e. Rs.40,000/. After further necessary investigations in the matter, the charge sheet was filed against both of them, copies of which were provided to them in compliance of section 207 Cr.P.C.
4. As the allegations constituting an offence under section 397 IPC, which was exclusively triable by the Court of Sessions, was also there, as such, the matter was committed to the Court of Sessions. Based upon the material placed on record, charge was framed against both the accused under section 392 read with section 34, IPC, 397/411 IPC and separate charge under section 411 IPC has also been framed against the accused Kapil @ Dhanni.
State Vs. Kapil @ Dhanni & Khurshid 4 of 21
5. In order to drive home its case, prosecution has examined 6 witnesses and thereafter the evidence was closed. The accused persons were confronted with the incriminating evidence coming against them and their version of the things were recorded in their respective statements under section 313 Cr.P.C., in which the accused persons have claimed that they have been falsely implicated in the present case. However, they did not opt to lead evidence in their defence.
6. Arguments were raised by Ld. Counsel for accused persons and by Ld. Additional Public Prosecutor for State, which I have considered and perused the record as well.
7. In order to substantiate a case under section 397 IPC, which may be either theft or extortion prosecution has to establish the following facts :
(a) if 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;
State Vs. Kapil @ Dhanni & Khurshid 5 of 21
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c);
(e) voluntarily caused 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;
(f) and doing so, a deadly weapon has been used.
8. In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c) the offender voluntarily caused 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 is made to State of State Vs. Kapil @ Dhanni & Khurshid 6 of 21 Maharashtra v. Joseph Mingel Koli, (1972) 2 Crimes 228 (Bom).
9. Prosecution has heavily relied upon the testimony of the victim, and the police officials who had apprehended the accused persons and got the robbed money recovered. It is asserted on behalf of the prosecution that the testimony of these witnesses coupled with the recovery and the accused persons having been correctly identified by the victim Ramesh Kumar assigning their respective roles also, is sufficient to nail them down with the offence.
10. Counsel for the accused persons on the other hand has broadly argued on the following aspects that the case, as set up by the prosecution, is highly improbable, the recovery is doubtful. The time gaps qua entrustment of money, alleged incident, are unusual and unnatural which raise a question mark about the truthfulness of the prosecution's case and that the source of money has not been looked into by the prosecution, coupled with the fact that there is no evidence as State Vs. Kapil @ Dhanni & Khurshid 7 of 21 to where so called delivery of money was to be given by Ramesh Kumar on behalf of Raju Chauhan and for that matter, it was to be given to someone or not. It is elaborated further that it is highly improbable qua Raju Chauhan that a person who is able to generate lacs of rupees and is a property dealer involved in construction of hotel would not be having any office.
11. The other important aspect, which has been highlighted on behalf of the accused persons is the fact that in the initial report the amount of Rs.17,65,000/ was not mentioned which again highly improbable and unusual. The absence of the independent public witness at the time of recovery of alleged robbed amount of Rs.17,65,000/ that too from a public park underneath the stones pile is again highly improbable and do the appeal the reasons and logic. It is thus assorted that the accused persons have implicated in this case and the recovery has been attributed to them while planting the amount and the knife thereupon.
12. The contention raised by counsel for the accused State Vs. Kapil @ Dhanni & Khurshid 8 of 21 however revoke around the outskirts of the main case and do not touch the core of the main case. There may be circumstances which appear improbable but then the possibility of their being in existence cannot be ruled out unless disproved. No effort has been made by the accused persons to dislodge the prosecution's case. A person may work from his residence and may not have an office and this alone can't make the whole evidence. Thus, by no having an office does not mean that one cannot work.
13. Not mentioning the amount of Rs. 17,65,000/ in the initial report may appear unused, but then is not improbable in view of the explanation given by the victim that he was so frightened that he could not notice as to what was happening around him. He had completely surrendered before the accused persons when he was accosted and was put under the threat of knife. He has clarified the aforesaid mental situation in the concluding lines of his testimony that he had become so perplexed that he sat on the footpath having his face downward surrendering before the accused persons totally and by saying that do State Vs. Kapil @ Dhanni & Khurshid 9 of 21 whatever they wanted to, thus resigning to his faith. Additionally, in case the complainant wanted to lodge a complaint and the police wanted to remove this situation, it was very easy for both of them as initially the complaint could have been substituted with another complaint inasmuch as the victim had almost immediately gone back to the police station to report about the amount of Rs.17,65,000/ being also taken away by the robbers. Therefore, the truthfulness of the victim cannot be doubted.
14. Similarly, the source of money was also not within the domain of the police to look into. It was for the Income Tax authority to inquire about it. It was not the issue to be looked into. Presuming that the money was ill gotten and was not accounted for, still it does not give any right to anyone except the competent authority in this context to inquire into or seize the amount. Accused persons cannot be permitted to take law in their own hands even if money was tainted and it does not in any manner mitigates their fully.
15. Absence of the independent public witness is the other ground which has been vehementally argued on behalf of the accused persons but then this in itself is not enough. Testimony of State Vs. Kapil @ Dhanni & Khurshid 10 of 21 the police witnesses is equally important and can be relied upon, subject to the condition that it does not suffer from any flaw. Trustworthiness and reliability are the test which has to be undergone by the testimony of any witness be it a public witness or a police witness. In this context reference can be made to judgment in Govindaraju @ Govinda v. State by Sriramapuram P.S. & Anr., 2012 III AD (SC) 453 = AIR 2012 SC 1292, where Hon'ble Supreme Court held : "This Court in the case of Girja Prasad (AIR 2007 SC 3106) while particularly referring to the evidence of a police officer, said that it is not the law that Police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption applies as much in favour of a police officer as any other person. There is also no rule of law which lays down that no conviction can be recorded on the testimony of a police officer even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. If such a presumption is raised against the police officers without exception, it will be an attitude which could neither do credit to the magistracy nor good to the public, it can only bring down the prestige of the police administration. Whether, the evidence of the police officer, after careful scrutiny, inspires confidence and is found State Vs. Kapil @ Dhanni & Khurshid 11 of 21 to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality does not in any way affect the creditworthiness of the prosecution case. The courts have also expressed in view that no infirmity attaches to the testimony of the police officers merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. Such reliable and trustworthy statement can form the basis of conviction". Reference can also be made to the judgments in Aher Raja Khima v. State of Saurashtra, AIR 1956 SC 217. The Hon'ble Supreme Court in State of Gujrat v. Ragunath Vamanrao Baxi, 1985 AIR 1092, has also observed that : "For that matter it would be wrong to reject the evidence of police officers either on the mere ground that they are interested in the success of the prosecution. The court may be justified in looking with suspicion upon the evidence of officers who have been demonstrated to have displayed excess of zeal in the conduct and success of the prosecution. But to reject the evidence of all official witnesses as the High Court has done in the present case, is going far too far. We think that it is extremely unfair to a witness to reject his evidence by merely giving him a label".
State Vs. Kapil @ Dhanni & Khurshid 12 of 21
16. In Tahir v. State (Delhi) (1996) 3 SCC 33, the Hon'ble Supreme Court has held : "Mr. D.D. Thakur, the learned senior counsel appearing for the appellant, submitted that PW 4 to PW 7 on whose evidence the conviction has been recorded were all police officials and in the absence of any independent witness to corroborate them, it was not safe to rely upon their testimony to sustain the conviction of the appellant. We cannot agreed. In our opinion no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent, evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the credit worthiness of the prosecution case".
State Vs. Kapil @ Dhanni & Khurshid 13 of 21
17. The core issue is as to whether the victim was robbed or not and if robbed then by whom the robbery was committed. The testimony of victim Ramesh Kumar is sufficient to show that he was robbed and was robbed by none other than the two accused persons. It has been categorically stated by him that he was waylaid by two persons while he was riding on his motorcycle bearing No. DL3SAJ824 on 13.04.2011 near TPoint, Qutub Minar Metro Station. He has categorically stated that the amount of Rs. 17,65,000/ was being carried by him in the dicky of his motorcycle and Rs.40,000/ was there in his pocket. He says that, apparently, on seeing the knife, he had completely surrendered himself to the assailants, one of whom had snatched Rs.40,000/ from his pocket. It is also stated that the description of those boys have been given by him in his complaint. The fate of the accused was sealed as he has identified both the accused persons in the court and has attributed their different roles as well. While identifying the accused Kapil, Ramesh Kumar has stated that it was Kapil who had shown knife to him, while accused Khursid had snatched the amount of Rs. 40,000/ from his pocket. Accused persons had refused to participate in Test Identification Parade proceedings and their identification by the victim leave no doubt about the involvement of the accused persons in the robbery. Whatever little doubt which State Vs. Kapil @ Dhanni & Khurshid 14 of 21 might have crept in the testimony about the robbed amount stands clarified in view of the statement made by Ramesh Kumar that he was not in a position to know at the time of being robbed that what all the accused persons were doing. He has, however, clearly stated that he was carrying Rs.17,65,000/ also with him. The recovery of the exact amount at the instance of accused persons substantiates and makes the testimony of Ramesh Kumar trustworthy.
18. It is not the case of the accused persons that any of the witnesses especially Ramesh Kumar, the one who was robbed and Raj Kumar, whose money it was, were having any grudge towards the accused persons or had any kind of dispute which might have persuaded them to falsely implicate the accused persons. No animosity or enmity between the independent witnesses/the victim and the accused persons lends credence to their testimony. The crossexamination conducted on behalf of the accused persons is unable to shake their testimony so far as the robbery of Rs. 17,65,000/ and Rs.40,000/ is concerned by the accused persons, recovery of which fortifies it further. In such circumstances, there cannot be any other outcome of the case except that the accused persons are liable to be held guilty for committing robbery.
State Vs. Kapil @ Dhanni & Khurshid 15 of 21
19. It is evident from the foregoing discussion that Kapil @ Dhanni and Khurshid, both in furtherance of their common intention robbed Ramesh Kumar of total sum of Rs.18,05,000/ i.e. Rs. 40,000/ (forty thousand) and Rs.17,65,000/ (seventeen lacs sixty five thousands) that too putting the victim Ramesh Kumar under the threat by flashing a knife. The victim has identified both the accused persons, assigned their respective roles and the recovery of the money and knife sealed the fate of the accused persons. It is, however, to be seen as to whether Kapil can be held responsible under Section 397 IPC or not, inasmuch as it was he, who had threatened the victim with the knife.
20. The knife recovered, which was used to threaten, appears to be a kitchen knife. Whether such a knife can be brought into the definition of a deadly weapon or not, which is the requirement of Section 397 IPC. By showing the knife, Kapil can be said to have used the knife but then whether a kitchen knife can be a deadly weapon. It, however, depends upon the dexterity and deftness of the hand using it which may probably convert it into a deadly weapon but otherwise it may not be. A kitchen knife is not a dangerous or deadly weapon per se. In such circumstances, State Vs. Kapil @ Dhanni & Khurshid 16 of 21 whether Kapil is to be held responsible for the offence under Section 397 IPC is to be appreciated. In this context, reference can be made to the judgment in Akmat Ali vs. The State of Tripura, AIR 1957 Tripura 48 and that of Lad Khan's case [(1912) 13 CrLJ 182 ( PLR)] where a lathi and 20 cm long knife was not found to be a deadly weapon.
21. The antecedents of Kapil @ Dhanni are not tainted. Thus, he cannot be said to be a person, who can deftly handle a kitchen knife so as to make it a deadly weapon and, therefore, it can be held that the knife used in the offence does not strictly fall into the definition of a deadly weapon and that takes accused Kapil of the hook so far as the allegations under Section 397 IPC are concerned.
22. As a result, both the accused Kapil @ Dhanni and Khurshid are held guilty for the offence punishable under Section 392 read with Section 34 IPC and convicted thereon.
Announced in the open Court (VIMAL KUMAR YADAV) On 14 day of October, 2013 Additional Sessions JudgeII, th South District, Saket Courts, New Delhi.
State Vs. Kapil @ Dhanni & Khurshid 17 of 21 In the Court of Sh. Vimal Kumar Yadav, Additional Sessions JudgeII, South District, Saket Court, Delhi. Session Case No. 19/13/11 In the matter of :
State Versus
1. Kapil @ Dhanni S/o. Sh. Ram Kishan R/o. House No. 41, Village Dera Gaon, New Delhi
2. Khurshid S/o. Sh. Khuda Baksh R/o. House No. D90, near Idgah, Ambedkar Nagar Colony, Mehrauli, New Delhi.
FIR No. : 191/2011. Police Station : Mehrauli. Under section. : 392/34 IPC. ORDER ON SENTENCE
1. It has been contended on behalf of convicts that they are young men and first offenders, having clean State Vs. Kapil @ Dhanni & Khurshid 18 of 21 antecedents without any blemish. Family responsibilities are there upon them, therefore the reformative theory of the Sentencing would be appropriate in these circumstances as sending them to Jail would further give them option, circumstance and opportunity to go astray. With these contentions, Counsel for the convicts sought that they may be given the benefit of probation.
2. Ld. Additional Public Prosecutor on the other hand contended that in view of the ever increasing violent crimes, involving primarily young men and manner in which the offence was committed by the convicts, leaves no scope for the kind of indulgence sought for them. The convicts should be made to understand as to what they have done and what are the consequences of doing such an act, which cannot be justified on any parameter. It would act as detorent for them. With these contentions, Ld. Additional Public Prosecutor advocated a suitable punishment for the convicts.
3. Sentencing is the most ignored aspect of criminal State Vs. Kapil @ Dhanni & Khurshid 19 of 21 law. There is no set parameters and therefore the sentences bear individual stamp of the sentencer. No uniformity is then either and if varies from court to court. However, while considering an appropriate sentence for a convict, given in a set of facts and circumstances, a lot of factors come into play such as the age, gender, educational background, socio economic status of the convict and the role of the society etc. The sentence needs to be adequate and in consonance with the offence committed, it should neither be harsh nor should be light. Striking such a delicate balance is a very crucial for a judge in the role of a sentencer. The convicts are young men and seems to have gone wayward due to outside influence.
But the offence committed by them shows that they have scant regard for the social and legal norms and it also appears that they robbed the victims either out of their undue needs, which they were not able to fulfill otherewise or that they thought that they will be able to get away with easy money. They can't be believed as to so naive as not to understand the right and wrong, concept of which is there in every civilized person in the society. In either of the cases, the culpability does not get State Vs. Kapil @ Dhanni & Khurshid 20 of 21 mitigated. In such circumstances, the offence committed only reflects that the convicts are nonconformists. Such a non conformist behaviour cannot be approved by any standards, therefore, they need to be punished adequately for what they have done.
4. In view of the above discussion and considering the entire gamut and facts and circumstances, the convicts are sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a sum of Rs.5,000/ each as fine, in default of which they shall further undergo Simple Imprisonment of six months each. They shall be entitled to the benefit of section 428 Cr.P.C. Copy of the judgment and order on sentence be given to the convicts free of costs. After compliance, file be consigned to record room. Announced in the open Court (VIMAL KUMAR YADAV) On 21 day of October, 2013 Additional Sessions JudgeII, st South District, Saket Courts, New Delhi.
State Vs. Kapil @ Dhanni & Khurshid 21 of 21