Delhi District Court
State vs . Mangal Sain @ Monu Etc. on 17 December, 2011
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IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT :
KARKARDOOMA COURTS : DELHI
FIR No. : 120/2008
PS : Gokalpuri, Delhi
U/s : 392/394/397/411/34 IPC
Unique Case ID : 02402R0494172008
In the matter of
State
Versus
1. Mangal Sain @ Monu S/o Sh. Arjun Singh
R/o: H.No. 277, Gali No. 3, Nai Pura
Loni Ghaziabad, U.P.
2. Monu,S/o Sh. Jai Prakash
R/o: H.No. 363, F-Block, Near Shiv Mandir
Jawahar Nagar, Loni Ghaziabad, U.P.
3. Tinku, S/o Sh. Dharam Pal
R/o H.No. 1363, Saraswati Vihar
Naipura, Loni Ghaziabad, U.P.
4. Krishan @ Changa S/o Sh. Prakash Chand
R/o H.No.B-102, Naipura, Loni Ghaziabad, U.P.
...ACCUSED
Session Case No. : 63/09
Date of Institution : 14.07.2008
Date of reserving judgment/order : 13.12.2011
Date of pronouncement : 14.12.2011
J U D G M E N T
FIR No. : 120/08 Page 1 of 34
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1. Accused Mangal Sain @ Monu, Monu, Tinku and Krishan @ Changa were sent up by police of PS: Gokalpuri, Delhi to stand trial for offence punishable under Section 392/394/397/411/34.
2. The prosecution case in brief is that on 14.05.2008, complainant Sh. Ripunjay Kumar Dubey alongwith his brother Sh. Krishna Chandra Dubey came to PS: Gokalpuri and got his statement recorded. In his statement, Sh. Ripunjay Kumar Dubey has stated that in the intervening night of 12/13.05.2008, he boarded the TSR from ISBT Kashmere Gate for going to his house. When the Auto Rickshaw, number: not known, reached at Bhajanpura, three more persons were made to sit in the TSR by TSR driver and at about 12.30 AM (night) when the auto reached at Loni Fly-over near Kanpur Delhi Goods Carrier Ltd. in front of tyre-puncture shop, two persons who were sitting besides him (complainant) put a rope on his neck and pressed his neck. Third person gave blow on his head with the some hard object and one person sitting besides the driver, attacked him with knife. He held the knife which resulted in injury on his left hand. Thereafter, they forcibly taken out the purse from his pocket containing Rs. 4,500/-, credit card, driving license and his mobile phone make Samsung Model No. E-250 having connection No. 9958394446. He tried to get down from the auto. They forcibly taken the TSR underneath the fly-over and pushed him out from the auto rickshaw in front of Maruti Showroom and thereafter, fled away from there with the auto. Thereafter, he went to his house and met his brother Sh. Krishna Chandra Dubey and FIR No. : 120/08 Page 2 of 34 -3- told him the entire incident. Thereafter, his brother made a telephonic call to the police which was recorded at PS Gokalpuri. On the basis of the same, FIR was registered. The site plan was prepared at the instance of the complainant. On 16.05.2008, TSR bearing No. DL1RK5343 was stopped in which four accused persons were sitting. Accused Monu S/o Sh. Jaiprakash was found in possession of gararidar knife, for which, separate FIR was registered. They confessed the crime. The TSR No. DL1RK5343 was seized. From the possession of accused Monu S/o Sh. Jaiprakash, one black colour purse and Rs. 500/- in cash were recovered. From the possession of accused Tinku, Rs. 600/- in cash were recovered. From the possession of accused Mangal Sain @ Monu Rs. 300/- in cash and one mobile phone make Samsung Model No. E-250 were recorded. From the possession of accused Krishan Kumar @ Changa, Rs. 400/- in cash were recovered. The above-cash recovered from accused persons were remaining money out of the robbed money. The TIP of accused persons was conducted. All the accused persons were identified by the complainant in the TIP except accused Krishan Kumar @ Changa.
3. After the completion of the investigation, all the above-named accused persons, were charge-sheeted for offences punishable 392/394/397/411/34 IPC.
4. Ld. Metropolitan Magistrate after supplying the necessary copies to the accused persons, committed the case to the court of sessions FIR No. : 120/08 Page 3 of 34 -4- vide order dated 29.07.2008.
5. My Ld. Predecessor, vide order dated 23.12.2008, after finding prima-facie offence, charged accused Mangal Sain @ Monu, Tinku, Monu and Krishan @ Changa separately for offence punishable under Section 411 IPC and also charged accused persons namely Mangal Sain @ Monu, Monu S/o Jai Prakash and Tinku for offence punishable U/s 392/34 IPC, 394/34 IPC, 397/34 IPC. Charges were framed, to which, accused persons pleaded not guilty and claimed trial.
6. The prosecution in support of their case examined as many as 13 witnesses.
7. The prosecution examined following material witnesses :
(i) PW-2 Sh. Ripunjay Kumar Dubey is the injured and complainant of this case. He proved his statement made to the police vide Ex.PW2/A. He proved the seizure memo of cash invoice of mobile phone make Samsung vide Ex.PW2/B and invoice as Ex.PW2/C. He stated that his thumb impression was obtained on the MLC Ex.PW2/CC. He admitted his signatures on the TIP proceeding of accused Krishan @ Changa at point A on Ex.PW2/D, on the TIP of accused Mangal Sain at point A on Ex.PW2/E, on the TIP of accused Monu which is Ex.PW2/F at point A and his signatures on the TIP of Tinku which is Ex.PW2/G at point A. He proved the superdarinama on which he received his FIR No. : 120/08 Page 4 of 34 -5- mobile phone make Samsung vide Ex.PW2/H. He produced the mobile phone make Samsung SGH-E250 which is Ex.PW2/Article-1 and purse which is Ex.PW2/Article-2.
However, he was declared partly hostile on the point of identification of accused persons and their respective position at the time of Crime.
(ii) PW-6 Sh. Krishana Chandra Dubey is the brother of the complainant.
8. The prosecution also examined following formal witnesses :
(i) PW-1 Sh. Irfan who was the owner of the TSR. He, however, turned hostile towards the prosecution case. He proved the superdarinama on which the vehicle was released vide Ex.PW1/A, special power of attorney vde Ex.PW1/B. He produced the TSR which is Ex.PW1/Article-1 and the photographs of the same which are Ex.PW1/C and Ex.PW1/D.
(ii) PW-3 ASI Om Prakash was the duty officer who on the receipt of rukka, recorded FIR No. 122/08, U/s 25 of Arms Act and proved the copy of the same as Ex.PW3/A and after lodging the FIR, he handed over the copy of FIR and original rukka to H.C Onkar for investigation.
(iii) PW-4 H.C Onkar Singh, on the receipt of copy of FIR No. 122/08 U/s 25 of Arms Act and original rukka, alongwith Ct.
Virender reached at the spot at Gokalpuri Nala Road near FIR No. : 120/08 Page 5 of 34 -6- Gas Godown where S.I Vir Singh met him who handed over accused Monu to him. He also received sealed parcel containing knife alongwith seizure memos and sketch memo. He arrested accused Monu in case FIR No. 122/08 and conducted his personal search.
(iv) PW-5 SI Lite Oraon was the duty officer who on the receipt of rukka, registered the FIR of this case under Section 392/34 IPC and proved the computerized copy of the same as Ex.PW5/A. He also proved his endorsement on rukka which is Ex.PW5/B. After registration of the FIR, he handed over the copy of FIR and original rukka to Ct. Arvind to hand over the same to S.I Bir Singh.
(v) PW-10 Dr. Hompriya Issar proved the MLC of complainant Ripunjay Kumar Dubey vide Ex.PW2/CC which was prepared by Dr. Vijay Kumar. PW-10 also proved the opinion given by Dr. Vijay regarding nature of injury on the MLC as simple.
(vi) PW-11 H.C Arvind Kumar Chillar is the witness of seizure of cash invoice of mobile phone Samsung E-250 Ex.PW2/C produced by the complainant which was seized vide memo Ex.PW2/B.
(vii) PW-12 Sh. Devender Kumar Garg, Ld. Metropolitan Magistrate who conducted the TIP of accused Krishan @ Changa, Mangal Sain @ Monu, Monu and Tinku, on the FIR No. : 120/08 Page 6 of 34 -7- application Ex.12/A. PW-12 Sh. Devender Kumar Garg conducted the TIP proceedings of accused Mangal Sain @ Monu vide Ex.PW2/E, wherein, PW Sh. Ripunjay Kumar Dubey had correctly identified accused Mangal Sain. PW-12 also conducted the TIP proceedings of accused Monu S/o Sh. Jai Prakash vide Ex.PW2/F, wherein, PW Sh. Ripunjay Kumar Dubey had correctly identified accused Monu. PW-12 also conducted the TIP proceedings of accused Tinku vide Ex.PW2/G, wherein, PW Sh. Ripunjay Kumar Dubey had correctly identified accused Tinku. PW-12 also conducted the TIP proceedings of accused Krishan @ Changa vide Ex.PW2/D,wherein, complainant Sh. Ripunjay Kumar Dubey could not identify accused Krishan @ Changa. PW-12 also annexed his certificates of correctness with the above-said TIP proceedings. He supplied the copy of the TIP proceedings to the IO on his application Ex.PW12/B.
9. The prosecution also examined following witnesses of arrest and investigation :
(i) PW-7 ASI Ramvir Signh is the initial IO who recorded the statement of complainant Ripunjay Kumar Dubey Ex.PW2/A at PS Nand Nagri. He also handed over the copy of the statement of the complainant to the SHO of PS Gokalpuri.
(ii) PW-8 H.C Anil Kumar is the witness of arrest of accused persons and recovery effected from them. He proved the FIR No. : 120/08 Page 7 of 34 -8- seizure memo of items recovered from the possession of accused persons namely Mangal Sain, Monu, Krishan and Tinku vide Ex.PW8/A, Ex.PW8/B, Ex.PW8/C and Ex.PW8/D respectively. He also proved the seizure memo of TSR vide Ex.PW8/E. He also proved the arrest memos of accused persons namely Monu, Krishan @ changa, Tinku and Mangal Sain vide Ex.PW8/F, Ex.PW8/G, Ex.PW8/H and Ex.PW8/I respectively and also proved their personal search memos vide Ex.PW8/J, Ex.PW8/K, Ex.PW8/L, Ex.PW8/M respectively. He also proved their disclosure statements vide Ex.PW8/N, Ex.PW8/O, Ex.PW8/P and PW8/Q respectively.
He also proved the pointing out memo of place of occurrence vide Ex.PW8/R. He identified the photographs of mobile phone as Ex.PW8/P1 and PW8/2 and photograph of purse recovered from accused Monu as Ex.PW8/P3.
(iii) PW-9 H.C Rohtash Kumar is also the witness of arrest of accused persons and recovery effected at their instance.
(iv) PW-13 S.I Bir Singh is the subsequent IO who in addition to other memos proved his endorsement on the statement of the complainant vide Ex.PW13/A, site plan vide Ex.PW13/B and letter sent to DCP office to collect the call details of mobile of complainant vide Ex.PW13/C. He arrested the accused persons and seized the items recovered from the accused persons.
FIR No. : 120/08 Page 8 of 34 -9-10. After the conclusion of the prosecution evidence, statement of accused persons were recorded U/s 313 Cr.P.C, wherein, they denied the prosecution evidence and claimed innocence. They choses not to lead evidence in their defence.
11. I have heard Sh. Virender Singh, Ld. Addl.P.P for the State, Sh. Roshan Lal, Advocate for accused Krishan @ Changa and Sh. Abdul Sattar Ld. Legal Aid Counsel for accused Mangal Sain @ Monu, Monu S/o Sh. Jaiprakash & Tinku. I have also gone through the record.
12. PW-2 Sh. Ripunjay Kumar Dubey testified that on 12.5.2008, he was coming from Kashmere Gate ISBT to his house in TSR. When he started from ISBT the TSR was not having any other passenger other than him. He stated that between 12:00 mid night to 1:00 am, when the TSR reached at Bhajanpura, TSR driver made three more passengers to sit in the TSR. When the TSR reached near Loni Flyover, he asked the driver to take the TSR on the road on the side of Flyover but the driver had driven the TSR on the flyover of Loni despite his objection. He stated that the accused Mangal Sain who was sitting besides him held his neck and pushed him down inside the TSR. Two other boys namely Tinku and Krishan @ Changa were sitting on the side . They all put one rope on his neck and put him down. One boy, who was sitting besides him, but he could not see him as he was bent down, tried to stab him with knife but he held his knife which resulted in scratch on his palm. The person who was sitting besides the driver on the front seat hit him FIR No. : 120/08 Page 9 of 34 -10- with some hard object on his head. In the meantime, they had taken out his purse from his back pocket of pant, mobile phone from his front pocket of pant. His purse contained his driving licence, Debit Card of SBI, Debit Card of Standard Chartered Bank, Rs.4500/- in cash. His one shirt and pant which were kept in polythene was also taken by the accused. He stated that on account of the injuries on his head, he felt darkness in his eyes and he was himself interested in jumping from the TSR to save himself but the accused persons pushed him out of the TSR. They fled away with the TSR. He further stated that after about 10 minutes, he could gather the strength to get-up. He kept some cloth on his head as the same was bleeding on account of injury. Thereafter he reached at the house of his brother with whom he was living at that time. Thereafter his brother came alongwith him to the place of occurrence. One PCR vehicle was parked underneath Loni Flyover. His brother told them about the incident and thereafter he was taken by his brother to GTB Hospital. Thereafter local police also came at the hospital. Thereafter police recorded his statement Ex.PW-2/A. He further stated that thereafter, he told the description of the boys who had committed the offence to the police. The boy who was sitting beside him on right side was having six finger in his one hand. He cannot tell the description of the boy who was driving the TSR as he has seen him from his back. The police prepared site plan at his instance. He had given the cash invoice of mobile phone make Samsung to the police which was seized by FIR No. : 120/08 Page 10 of 34 -11- them vide memo Ex.PW-2/B and invoice is Ex.PW-2/C. Thereafter, he was called at Tis Hazari for the identification of the culprits. He identified his mobile phone make Samsung and the purse of brown colour and had also taken cash on superdari under the orders of the court. He could not produce the cash as he had spent the same.
13. PW-2 Sh. Ripunjay Kumar Dubey was partly declared hostile by Ld. Addl. P.P for the State. However, on being cross-examined, he admitted that he had identified accused Monu in the TIP proceeding conducted in Tihar Jail before Ld. M.M. He had also given supplementary statement to the IO regarding identification of accused persons on 22.05.2008. He admitted that accused Mangal Sain was sitting on his left side in the TSR at the time of incident and who with the help of accused Krishan who was sitting on the right side, pulled his neck with the rope and bent him. He also admitted that accused was sitting n the left side of the driver seat who attack upon him with a knife was Monu and he identified accused Monu when Ld. Addl. P.P pointed towards accused Monu. He also admitted that name of the driver of the TSR was Tinku who got seated the other accused person in the TSR and he started the music system on loud voice at the time of incident.
14. PW-6 Sh. Krishna Chandra Dubey testified that on the intervening night of 12/13.06.2008, his brother Ripunjay Kr. Dubey reached at his residence at about 1:30 am (mid night). He was very much injured and was bleeding from head and hands. He was also FIR No. : 120/08 Page 11 of 34 -12- having dust on his whole body (mitti me sana hua tha). He was about to collapse when he knocked the door at the third floor and he opened for him to enter into the house. He narrated the incident took place with him. He immediately got down with him and he called on his another brother Mr. Dhananjay. They three went to the place of incident and in the meantime, he called on to the police over number 100. They were in Maruti Car. They then rushed to GTB Hospital, Delhi. Ripunjay was hospitalized and treated. The police came there and took the statements.
15. PW-7 ASI Ramvir Singh testified that on 13.05.08, he was posted as ASI at PS Nand Nagri, Delhi. On that day, Ripunjai Kumar Dubey along with his brother Krishan Chand came to PS Nand Nagri and met him and he made him a statement regarding robbery of his purse containing Rs.4500/-, credit card, driving licence and mobile phone by the accused persons. He recorded his statement Ex. PW-2/A. Thereafter, he alongwith him and his brother reached at the spot at flyover, Gokal Puri in front of Delhi Kanpur Transport and he came to know that the spot does not fall within the jurisdiction of PS Nand Nagri. Hence he alongwith the complainant Ripunjai Kumar Dubey and his brother went to PS Gokal Puri in whose jurisdiction the incident had taken place. Thereafter, he alongwith SHO of PS Gokal Puri and complainant and his brother and other police staff reached at the spot. SHO inspected the spot. He handed over the copy of the statement of the complainant to the SHO. SI Vir Singh also reached at the spot FIR No. : 120/08 Page 12 of 34 -13- and the investigation was handed over to him by the SHO and thereafter he left the spot.
16. PW-13 S.I Bir Singh testified that on 14.05.2008, he was posted as S.I at PS Gokalpuri, Delhi. On that day, statement of complainant Sh. Rupanjay Kumar Dubey was marked to him by the SHO of PS Gokalpuri, Delhi. He endorsed the same and thereafter, he handed over the same to the Duty officer for the registration of the FIR U/s 392/34 IPC. Complainant also met him in the PS. He made inquiries from him. ASI Rambir who recorded the statement of the complainant also met him in the PS. He also made inquiries from him. After registration of the FIR, he received the copy of FIR and rukka from Duty officer. Thereafter, he alongwith the complainant and ASI Rambir came at the spot and he prepared site plan Ex.PW13/B at the instance of the complainant. Thereafter, they searched the accused persons, on that day but they could not be traced out. He collected the MLC of injured/complainant from GTB Hospital and placed the same on record.
17. PW-10 Dr. Hompriya Issar stated that he had come to depose regarding the opinion given by Dr.Vijay Kumar on the MLC Ex.PW2/CC.
18. PW-5 S.I Lite Oraon testified that on 14.05.2008, he received rukka and registered the FIR of this case U/s 392/34 IPC.
19. Ld. Defence Counsel has submitted that there are inconsistencies in the testimonies of the witnesses in respect of the time of the FIR No. : 120/08 Page 13 of 34 -14- incident and in the manner, in which, the FIR was registered and there is unexplained delay in registration of the FIR.
20. The FIR of this case was registered on 14.05.2008, at about 2.30 AM, whereas, the date of incident is intervening night of 12.05.2008 and 13.05.2008. PW-2 Sh. Ripunjay Kumar Dubey testified that local police came at the hospital and recorded his statement. PW-6 Sh. Krishna Chandra Dubey also stated that police came at the hospital and recorded the statement. Whereas, PW-7 ASI Ramvir stated that on 13.05.2008, complainant and his brother had come to the police station where, he had recorded their statements.
21. In this case, the complainant Ripunjay Kumar Dubey was admitted in the hospital and his MLC was prepared on 13.05.2008, at about 12.13 AM. The statement of Ripunjay Kumar Dubey made to the police also states that it was the incident of yesterday. The statement has been duly signed by him. PW-2 Sh. Ripunjay Kumar Dubey and PW-6 Sh. Krishna Chandra Dubey are the educated witnesses. PW-6 Sh. Krishna Chandra Dubey himself is an advocate. Therefore, they would know that how the FIR was registered. However, in the same statement, it is mentioned that the PCR call was made which was registered at PS: Gokalpuri. Therefore, it appears that despite the fact that the incident had taken place on the intervening night of 12/13.05.2008 and injured was also admitted in the hospital. The FIR was not registered by the police which had received the information i.e police of PS Nand FIR No. : 120/08 Page 14 of 34 -15- Nagari. The statement makes reference regarding the information received at PS Gokalpuri but that information is not placed on record. The witness/complainant claims that his statement was recorded at the hospital which is contrary to the police version.
22. Now the question arises whether the witnesses can be believed regarding the incident or whether the delay is fatal. In this case, admittedly, the injured was admitted in the hospital on the same day itself and he had given the complaint against the unknown persons. Had there been any after-thought or any manipulation in the statement, the person would have been named as assailants or robber. Therefore, it appears that although, there is discrepancy in the manner, in which, the statement was recorded by the police whether police had recorded the statement at the hospital, as normally happens after the injured is in the hospital and MLC is made or whether witness had himself gone to the police station and got his statement recorded, yet it only appears that there is callousness on the part of the police in not recording his statement in time. It does not, in any manner, bring down the credibility of the statement of the witness regarding the incident nor the delay which is explained as the MLC was prepared after the incident which corroborates the version of the witness. The statement was recorded by some other police station and later on, police station having jurisdiction got the FIR registered which also explains the delay.
23. Now coming to the arrest of the accused persons, recovery FIR No. : 120/08 Page 15 of 34 -16- effected from them and their identification. PW-13 IO/SI Bir singh testified that on 16.5.2008, he received secret information from informer that the accused who are involved in this case and committed the robbery, would come at Loni from the side of ganda nala in a TSR. He formed raiding party consisting of H.C Rohtash, H.C Anil, Ct. Virender. Thereafter, they made their departure entry and collected the arms from Malkhana and reached at the spot i.e Gas Godown near Ganda Nala, Gokalpuri and make nakabandi there. Secret informer was also with them. He asked public persons to join the raiding party but none agreed. He further stated that at about 4.20 PM, one TSR bearing registration No. DL1RK5343 came there. At the instance of secret informer, they stopped the TSR and found there were four persons inside the TSR. They apprehended all the four accused persons. He interrogated them and their names were came to know as Monu, Mangal Sain @ Monu, Kishan @ Channa and Tinku. Tinku was driving the TSR and one of them was sitting with accused Tinku and remaining two were sitting on the back seat of the TSR. On taking the formal search of accused Monu, one buttondar knife was recovered from his right side pocket of pant. He prepared the sketch of the same and seized the same. He arrested all the four accused persons namely Monu, Mangal Sain @ Monu, Krishna @ Changa and Tinku and conducted their personal search. Their disclosure statements were also recorded and all the accused persons confessed their guilt. He further stated that from the formal FIR No. : 120/08 Page 16 of 34 -17- search of accused Monu, one purse of black colour containing Rs. 500/- (currency notes of Rs.100/- each) was recovered. He seized the same vide memo Ex.PW8/B. From the formal search of accused Mangal Sain, one mobile phone make Samsung Model No. E-250, Black Colour and Rs.300/- (currency notes of Rs.100/- each) were recovered and same were seized. From the formal search of accused Krishan Kumar @ Changa, Rs.400/- (03 currency notes of Rs.100/- (each) and 02 currency notes of Rs.50/- each) were recovered. He seized the same. From formal search of accused Tinku, Rs.600/- (currency notes of Rs.100/- (each) were recovered. He seized the same. He stated that all the accused persons disclosed that the said recovered amount was robbed money which comes in their share.
24. PW-13 IO/S.I Bir Singh was corroborated by PW-8 H.C Anil Kumar and PW-9 H.C Rohtash regarding the receipt of secret information, arrest of accused persons, recovery of currency notes effected from the accused persons, recovery of one mobile phone make Samsung Model from accused Mangal Sain and recovery of buttondar knife from accused Monu.
25. Ld. Defence Counsel has submitted that accused persons have been falsely implicated in this case and the recovery has been planted upon them. He further submitted that there are inconsistencies in the statements of recovery witnesses.
26. PW-8 H.C Anil Kumar in his cross-examination has stated that they FIR No. : 120/08 Page 17 of 34 -18- left the police station at about 2.00 PM for patrolling. He stated that the secret information was received at Ganda Nala Near Gas Godown. IO Vir Singh organized raiding party on the road near Gas Godown. TSR came there from the side of Loni Chowk. This road is a busy road. IO did not call any public person from the gas godown. He stated that he cannot tell the denomination of the currency notes recovered from the accused persons. IO had sealed the case property in different parcels at about 6:00 pm. The secret informer had left the spot after pointing towards the accused persons at about 6:30 pm. IO had prepared the site plan of the place of recovery at his own at about 8:00 pm. They left the spot at about 10:00 pm.
27. PW-9 H.C Rohtash in his cross-examination has stated that S.I Bir Singh received secret information in his presence. S.I Bir Singh constituted the raiding party at about 3.55 PM at ganda nala. All were in uniform. They remained at the spot for about 2-2½. He stated that county-made pistol was recovered from the possession of accused Mangal Sain and again said knife. He stated that accused Krishan was driving the TSR. He stated that he cannot tell the denomination of currency notes of Rs.300/- recovered from accused Mangal Sain. He stated that leather purse was recovered from accused Monu. He stated that he was having arm but he does not know about the others. He does not remember whether IO prepared the site plan of the spot or not.
28. PW-13 IO/S.I Bir Singh in his cross-examination has stated that FIR No. : 120/08 Page 18 of 34 -19- secret informer met them at the PS at about 3.45 PM on 16.05.2008. He also recorded the information of informer in DD at 3.50 PM. Raiding party was constituted at PS at about 4 PM. They all were in uniform and having the arms. Accused Krishan @ Changa was sitting on left side of driver i.e accused Tinku, on the same seat. He stated that no public person was joined in the investigation despite his request. He took the search of accused Monu firstly and search of other accused persons were conducted subsequently. They remained at the spot for about 4 hours and left the spot at about 9 PM.
29. There are some inconsistencies in the testimonies of recovery witnesses with respect to the fact that as to where the secret information was received and where the raiding party was constituted and also with respect to the period spent at the spot in the proceedings. IO stated that accused Krishan @ Changa was sitting on left side of driver i.e accused Tinku, on the same seat, whereas PW Rohtash has stated that accused Krishan @ Changa was driving the TSR. These inconsistencies are minor in nature and they can safely be ignored and even, otherwise, same does not got into the root of the matter. It is also now well settled that non-joining of public witnesses does not bring down the credibility of police witnesses. It is common knowledge that public witnesses do not come forward to become witness. The recovery witnesses are consistent on material points and have corroborated each other.
FIR No. : 120/08 Page 19 of 34 -20-30. As regards the recovery of currency notes. Since, the currency notes are easily available and there was no specific identification mark on the currency notes which were robbed. Therefore, it cannot be said that the currency notes which were recovered from the possession of accused persons were the same which were robbed from the complainant.
31. However, as regards the mobile phone recovered from accused Mangal Sain and purse recovered from accused Monu. Same have been identified by the complainant in his testimony and it is not disputed that the same belongs to the complainant and the same is stolen property. Therefore, offence punishable U/s 411 IPC stands proved against accused Mangal Sain @ Monu and Monu S/o Sh.Jaiprakash.
32. Now coming to the identification of the accused persons. Accused persons had got their TIP conducted. Accused persons namely Mangal Sain, Monu and Tinku were identified by the complainant in the TIP proceedings. Whereas, accused Krishan @ Changa could not be identified. PW-2 Sh. Ripunjay Kumar Dubey was given the suggestion that the police official had shown him the accused persons at the police station, hence, he had identified them. However, PW-2 denied the same. When PW-2 Sh. Ripunjay Kumar Dubey had appeared in the court after 01 year and 09 months of the incident, he identified accused Tinku and Krishan @ Changa as they were sitting on the driver seat in the TSR. However, he failed to identify accused Monu in the court. However, after he was FIR No. : 120/08 Page 20 of 34 -21- pointed out by Ld. Addl. P.P for the State, he had identified accused Monu. Meaning thereby, PW-2 Sh. Ripunjay Kumar Dubey had identified all the accused persons except Krishan @ Changa in the TIP proceedings and when he was examined in the court, he identified all the accused persons except accused Monu and identified accused Krishan @ Changa.
33. Firstly, I shall take the case of accused Krishan @ Changa. The witness has stated that the boy who was sitting besides him on the right side was having six fingers in his one hand. However, in his initial statement, he has not stated that accused Krishna @ Changa was having six fingers in his hand. However, the IO had stated that the complainant failed to identify him but stated that Krishan @ Changa was having six fingers in his hand. Merely saying that person was having six fingers in his hand and not identifying him in the TIP and identifying him subsequently in the court during his examination, creates doubt in favour of the accused as many persons have six fingers and same is not rare which conclusively establishes that he is the same person. There can be more than one person who had six fingers in his hand. Therefore, I am of the opinion that accused Krishan @ Changa is entitled to be benefit of doubt.
34. Now coming to the identification of accused Monu. Accused Monu was duly identified by the complainant in the TIP proceedings which was conducted shorty after the occurrence. The complainant had not identified accused Monu in the court but when the FIR No. : 120/08 Page 21 of 34 -22- complainant was cross-examined by the Ld. Addl. P.P and Ld. Addl. P.P pointed out towards accused Monu, then the complainant identified Monu being the same person.
35. The TIP proceedings tests the memory of the witness at the initial time and the witness has correctly identified accused Monu. However, the substantive evidence is the identification of the accused in the Court. The witness stated that he cannot identify the driver of the TSR. However, later on, he identified accused Monu when he was pointed out by Ld. Addl. P.P being the same person. Since, there was a lapse of about two years and the memory of the witness may fade. However, as per the TIP proceedings conducted in respect of Monu and the fact that he identified accused Monu when he was pointed out by Ld. Addl. P.P for hte State, I am of the opinion that identity of accused Monu is fully established.
36. Therefore, the offence punishable U/s 392/34 IPC also is proved against accused Mangal Sain @ Monu, Monu S/o Sh. Jaiprakash and Tinku. Further, accused Mangal Sain @ Monu, Monu S/o Sh. Jaiprakash and Tinku had also formed common intention to cause injury on the person of the complainant Ripunjay Kumar Dubey, therefore, offence punishable U/s 394/34 IPC also proved against them.
37. As regards, offence punishable U/s 397 IPC, the complainant PW-2 Sh. Ripunjay Kumar Dubey states that the boy who was sitting besides the driver has stabbed him with knife. However, the FIR No. : 120/08 Page 22 of 34 -23- same could not be specifically found out as to who was the person who had used the knife. As per the prosecution version, it was accused Krishan @ Changa who was sitting besides the driver. However, he has not been properly identified. Therefore, offence punishable U/s 397 IPC is not made out against the accused persons.
38. Now coming to the defence of the accused persons. Accused Mangal Sain @ Monu in his statement U/s 313 Cr.P.C has stated that he was lifted by the police from 100 feet road, Loni No. 2 while he was going to purchase 'atta' from nearby flour mill on 13.05.2005 and he has been falsely implicated in this case. Nothing has been recovered from his possession and articles have been planted upon him. The complainant has identified him in TIP proceedings as police has already shown his face to the witness in the police station and he did not make any disclosure statement. He stated that he is innocent.
39. Accused Monu S/o Sh. Jaiprakash in his statement U/s 313 Cr.P.C has stated that he was lifted by the police when he was standing on the bus stand of Seelampur and was waiting for the bus. They made him to sit in gypsy and thereafter handed over him to Police officials of PS Gokalpuri and he has been falsely implicated in this case. Nothing has been recovered from his possession and articles have been planted upon him. The complainant has identified him in TIP proceedings as police has already shown my face to the witness in the Police Station. He did not make any disclosure FIR No. : 120/08 Page 23 of 34 -24- statement. He is innocent.
40. Accused Tinku in his statement U/s 313 Cr.P.C has similarly stated that he was lifted by the police when he was coming from Ghaziabad from the house of his sister. On the way, his motorcycle broke down at Loni Gol Chakkar. Police officials came there and implicated him in this case. Nothing has been recovered from his possession and articles have been planted upon him. The complainant has identified him in TIP proceedings as police has already shown his face to the witness in the Police Station. He did not make any disclosure statement. He is innocent.
41. However, none of the accused have lead any evidence in defence.
The defence is not substantiated. The witness was not previously known to the accused persons. He had no enmity with them. Therefore, in the face of evidence available on record regarding identification of accused persons namely Mangal Sain @ Monu, Monu and Tinku and their involvement in the occurrence, the defence of the accused persons does not hold ground and does not in any manner, improbablise the prosecution version.
42. Accordingly as per the above-discussion, I am of the opinion that the prosecution has succeeded in proving offence punishable U/s 394/34 IPC and U/s 392/34 IPC against accused Mangal Sain @ Monu, Monu S/o Jai Prakash and Tinku beyond reasonable doubt. The prosecution has also succeeded in proving offence punishable U/s 411 IPC against accused Mangal Sain @ Monu and Monu S/o FIR No. : 120/08 Page 24 of 34 -25- Jai Prakash beyond reasonable doubt. Accused persons are accordingly convicted for the said offences.
43. Accused Krishan @ Changa is entitled to benefit of doubt. Accused Krishan @ Changa is acquitted from the charges against him. His Bail bond stands cancelled. Surety discharged.
44. Let the accused Mangal Sain @ Monu, Monu S/o Jai Prakash and Tinku be heard on quantum of sentence.
Announced in the open court today i.e on 14.12.2011 GURDEEP SINGH ASJ-04/NE/KKD/DELHI/14.12.2011 FIR No. : 120/08 Page 25 of 34 -26- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT KARKARDOOMA COURTS:DELHI State Vs. Mangal Sain @ Monu etc. FIR No. : 120/08 PS : Gokalpuri, Delhi U/s : 392/394/397/411/34 IPC ORDER ON SENTENCE 17.12.2011 Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Mangal Sain @ Monu produced in Judicial Custody. Sh. Abdul Sattar, Amicus Curiae, Advocate for convict. Arguments heard on sentence.
It is submitted that the convict Mangal Sain @ Monu is a young person, aged about 26 years. He is not a previous convict and has clean antecedent. It is further submitted that he is a married person and has three children namely Kunnu aged about 1 year, Daksh aged about 2 years and Khushi aged about 7 years. He also has old aged parents to support. It is further submitted that he is the sole bread earner of his family. Therefore, lenient view is prayed for.
On the other hand, Ld. Addl. P.P. submitted that the manner in which the offence has been committed is very grave and punishment should be given which is commensurate with the gravity of offence.
The Hon'ble Supreme Court in the recent judgment of "Akram Khan V/s. State of West Bengal" 2011 XII AD (S.C) 288, has relied upon the judgment of "Mulla and Another Vs. State of Uttar FIR No. : 120/08 Page 26 of 34 -27- Pradesh" (2010) 3 SCC 508, wherein, it was observed as under :-
It is settled legal position that the punishment must fit the crime. It is the duty of the court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime." In the present case, the convicts in order to commit the robbery had put rope on the neck of the complainant Ripunjay Kumar Dubey, pushed him down and caused him injuries and thereafter, after committing robbery, the complainant was pushed out of the running TSR. Therefore, no leniency can be shown to the convict.
The convict Mangal Sain @ Monu has been convicted for offences punishable under Section 394/34 IPC, U/s 392/34 IPC and U/s 411 IPC.
However, as per Section 71 of IPC, if the offence is made up of several offences, the offender shall not be punished with the punishment of more than one of such offences.
Section 392 IPC is the part of offence U/s 394 IPC. Therefore, the convict can only be punished for offence U/s 394 IPC.
The offence punishable U/s 394 IPC provides punishment of imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Keeping in view the facts and circumstances of the case and the manner in which the offence has been committed, I am of the opinion that the ends of justice would be met in sentencing the convict Mangal Sain @ Monu to undergo Rigorous Imprisonment for a period of 10 years and fine of Rs. 10,000/- for offence punishable U/s 394/34 IPC. In default of FIR No. : 120/08 Page 27 of 34 -28- payment of fine, he shall further undergo Simple Imprisonment for a period of one year.
As regards offence punishable U/s 411 IPC. Section 411 IPC provides punishment with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Accordingly, convict Mangal Sain @ Monu is further sentenced to undergo Rigorous Imprisonment for one year and fine of Rs. 2,000/- for offence punishable U/s 411 IPC. In default of payment of fine, he shall further undergo Simple Imprisonment for a period of one month.
The sentences shall run consecutively.
The benefit of Section 428 Cr.P.C be given to the convict. Copy of the judgment, order on sentence, charge, evidence, statement of accused, exhibited documents etc. duly attested by the reader of the Court be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal.
File be consigned to record room.
Announced in the open court today i.e. on 17.12.2011 GURDEEP SINGH ASJ-04/NE/KKD/DELHI/17.12.2011 FIR No. : 120/08 Page 28 of 34 -29- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT KARKARDOOMA COURTS:DELHI State Vs. Mangal Sain @ Monu etc. FIR No. : 120/08 PS : Gokalpuri, Delhi U/s : 392/394/397/411/34 IPC ORDER ON SENTENCE 17.12.2011 Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Monu S/o Sh.Jai Prakash produced in Judicial Custody. Sh. Abdul Sattar, Amicus Curiae, Advocate for convict. Arguments heard on sentence.
It is submitted that convict Monu is a young person, aged about 23 years. He is not a previous convict and has clean antecedent. It is further submitted that he is a married person and has one minor child aged about one month. He has old aged parents, wife and minor child to support. It is further submitted that he is the sole bread earner of his family. Therefore, lenient view is prayed for.
On the other hand, Ld. Addl. P.P. submitted that the manner in which the offence has been committed is very grave and punishment should be given which is commensurate with the gravity of offence.
The Hon'ble Supreme Court in the recent judgment of "Akram Khan V/s. State of West Bengal" 2011 XII AD (S.C) 288, has relied upon the judgment of "Mulla and Another Vs. State of Uttar Pradesh" (2010) 3 SCC 508, wherein, it was observed as under :-
FIR No. : 120/08 Page 29 of 34 -30-It is settled legal position that the punishment must fit the crime. It is the duty of the court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime." In the present case, the convicts in order to commit the robbery had put rope on the neck of the complainant Ripunjay Kumar Dubey, pushed him down and caused him injuries and thereafter, after committing robbery, the complainant was pushed out of the running TSR. Therefore, no leniency can be shown to the convict.
The convict Monu has been convicted for offences punishable under Section 394/34 IPC, U/s 392/34 IPC and U/s 411 IPC.
However, as per Section 71 of IPC, if the offence is made up of several offences, the offender shall not be punished with the punishment of more than one of such offences.
Section 392 IPC is the part of offence U/s 394 IPC. Therefore, the convict can only be punished for offence U/s 394 IPC.
The offence punishable U/s 394 IPC provides punishment of imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Keeping in view the facts and circumstances of the case and the manner in which the offence has been committed, I am of the opinion that the ends of justice would be met in sentencing the convict Monu to undergo Rigorous Imprisonment for a period of 10 years and fine of Rs. 10,000/- for offence punishable U/s 394/34 IPC. In default of payment of fine, he shall further undergo Simple Imprisonment for a period of one FIR No. : 120/08 Page 30 of 34 -31- year.
As regards offence punishable U/s 411 IPC. Section 411 IPC provides punishment with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Accordingly, convict Monu is further sentenced to undergo Rigorous Imprisonment for one year and fine of Rs. 2,000/- for offence punishable U/s 411 IPC. In default of payment of fine, he shall further undergo Simple Imprisonment for a period of one month.
The sentences shall run consecutively.
The benefit of Section 428 Cr.P.C be given to the convict. Copy of the judgment, order on sentence, charge, evidence, statement of accused, exhibited documents etc. duly attested by the reader of the Court be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal.
File be consigned to record room.
Announced in the open court today i.e. on 17.12.2011 GURDEEP SINGH ASJ-04/NE/KKD/DELHI/17.12.2011 FIR No. : 120/08 Page 31 of 34 -32- IN THE COURT OF SH. GURDEEP SINGH ADDITIONAL SESSION JUDGE-04, NORTH-EAST DISTRICT KARKARDOOMA COURTS:DELHI State Vs. Mangal Sain @ Monu etc. FIR No. : 120/08 PS : Gokalpuri, Delhi U/s : 392/394/397/411/34 IPC ORDER ON SENTENCE 17.12.2011 Pr. : Sh. Virender Singh, Ld. Addl. P.P for State.
Convict Tinku produced in Judicial Custody.
Sh. Abdul Sattar, Amicus Curiae, Advocate for convict. Arguments heard on sentence.
It is submitted that the convict Tinku is a young person, aged about 23 years. He is not a previous convict and has clean antecedent. It is further submitted that he is unmarried person and has old aged parents, 02 brothers and 01 sister to support. It is further submitted that he is the sole bread earner of his family. Therefore, lenient view is prayed for.
On the other hand, Ld. Addl. P.P. submitted that the manner in which the offence has been committed is very grave and punishment should be given which is commensurate with the gravity of offence.
The Hon'ble Supreme Court in the recent judgment of "Akram Khan V/s. State of West Bengal" 2011 XII AD (S.C) 288, has relied upon the judgment of "Mulla and Another Vs. State of Uttar Pradesh" (2010) 3 SCC 508, wherein, it was observed as under :-
FIR No. : 120/08 Page 32 of 34 -33-"It is settled legal position that the punishment must fit the crime. It is the duty of the court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment. As a measure of social necessity and also as a means of deterring other potential offenders, the sentence should be appropriate befitting the crime."
In the present case, the convicts in order to commit the robbery had put rope on the neck of the complainant Ripunjay Kumar Dubey, pushed him down and caused him injuries and thereafter, after committing robbery, the complainant was pushed out of the running TSR. Therefore, no leniency can be shown to the convict.
The convict Tinku has been convicted for offences punishable under Section 394/34 IPC and U/s 392/34 IPC.
However, as per Section 71 of IPC, if the offence is made up of several offences, the offender shall not be punished with the punishment of more than one of such offences.
Section 392 IPC is the part of offence U/s 394 IPC. Therefore, the convict can only be punished for offence U/s 394 IPC.
The offence punishable U/s 394 IPC provides punishment of imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Keeping in view the facts and circumstances of the case and the manner in which the offence has been committed, I am of the opinion that the ends of justice would be met in sentencing the convict Tinku to undergo Rigorous Imprisonment for a period of 10 years and fine of Rs. 10,000/- for offence punishable U/s 394/34 IPC.
FIR No. : 120/08 Page 33 of 34 -34-In default of payment of fine, he shall further undergo Simple Imprisonment for a period of one year.
The benefit of Section 428 Cr.P.C be given to the convict. Copy of the judgment, order on sentence, charge, evidence, statement of accused, exhibited documents etc. duly attested by the reader of the Court be given to the convict, free of cost. The case property, if any, be destroyed after the expiry of the period of appeal. File be consigned to record room.
Announced in the open court today i.e. on 17.12.2011 GURDEEP SINGH ASJ-04/NE/KKD/DELHI/17.12.2011 FIR No. : 120/08 Page 34 of 34