Delhi District Court
Ashwini @ Sonu vs State on 27 November, 2009
1 IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER), ROHINI : DELHI FIR no.294/99 PS: Saraswati Vihar U/s: 392/397/34 IPC Date of Institution: 26.7.2003 Date of Decision : 27.11.2009 1. Ashwini @ Sonu, S/o Om Parkash, R/o Village Kondli, Sonepat, Haryana. 2. Rajiv, S/o Sukhbir Singh, R/o Vill & PS Kalan, Sonepat, Haryana. 3. Harminder, S/o Raj Singh, R/o Vill. & PO Thana Kalan, Distt. Sonepat, Haryana. 4. Sajjan, S/o Same Singh, R/o V.P.O. Farmana, Distt. Sonepat, Haryana. (Declared as P.O. vide order dated 12.12.2008). .... Accused Versus State. 2 JUDGMENT
Sushil Aggarwal was doing the chemical business at shop no.2831/212, Tri Nagar, Delhi. He was residing at F-304, Rashmi Apartments, Pitampura, Delhi. He was having account in Bank of Punjab, Sector-8, Rohini. Babu Lal was one of his employee. Sunil Agarwal is his brother. Sushil Aggarwal on 26.4.1999 at about 10/10.15 am along with Babu Lal Sharma went to Bank of Punjab, Sector-8, Rohini, Delhi for withdrawal of Rs.9.55 lakhs on a two wheeler scooter bearing no. DL-8SG-0572. He had withdrawn Rs.9.55 Lakhs from the bank at about 11 am. He had given Rs.65,000/- to Naresh Jain with whom he was having business dealings. He kept Rs.8 lakhs in a yellow colour plastic bag and given to Babu Lal Sharma. He kept balance amount of Rs.90,000/- in a canvas bag and hanged it on the handle of the scooter. The entire money was in the currency notes of denomination of Rs.50/-, Rs.100/- and Rs.500/-. They left the bank on the scooter being driven by the Sushil Aggarwal. They reached infront of Primary School, Outer Ring Road, Sector-8, Rohini and crossed half of the road and they stopped the scooter as one truck was coming from opposite side. In the meantime, one white Maruti car bearing no.DL 3 1CD 1652 came from the right side and from the said car two boys came out and two boys were sitting inside the car. Said two boys after putting kattas on the person of Sushil Aggarwal and Babu Lal Sharma snatched both the bags containing Rs.8,90,000/-. Thereafter they run away towards the Peeragarhi Chowk. Sushil Aggarwal got perplexed and also became frightened due to the fear. Sushil Aggarwal along with Babu Lal came back to his house but did not disclose the said facts in his family as the mother was not well. He called his brother Sunil Aggarwal thereafter the matter was reported to the police.
2. SI Manoj Kumar along with Ct. Ram Pal on 26.4.2009, after receipt of DD no.25 went ot F-304, Rashmi Apartments, Pitampura where he recorded the statement of Sushil Aggarwal (hereinafter referred to as "the complainant"). SI Manoj Kumar prepared the rukka and sent Ct. Ram Pal for registration of the case and on the basis of rukka, FIR bearing no.294/99 u/s 392/34 IPC was got registered at 9.10 pm. SI Manoj Kumar along with complainant and Babu Lal reached at the place of occurrence and prepared the site plan. SI Manoj Kumar searched for the persons who robbed Rs.8,90,000/- but they could not be traced. DD no.11 was also received regarding escaping of 4-5 4 persons after parking a Maruti car bearing no.DL 1CD 1652 in abandoned condition at C-Block Market, Saraswati Vihar. SI Manoj Kumar also reached there. Crime Team was called.
3. Ct. Ram Pal after registration of the case reached at Outer Ring Road i.e place of occurrence and handed over the rukka and copy of FIR to SI Manoj Kumar. Thereafter SI Manoj Kumar along with Ct. Ram Pal, complainant and Babu Lal came back to the PP Shakti Vihar. The car bearing no.DL 1CD 1652 was also seized. SI Manoj Kumar prepared the portraits of the suspects at the instance of complainant and Babu Lal.
4. Rajiv was arrested on 19.6.1999 by SI Jaidev, Operation Cell, North West District u/s 41.1 Cr.P.C. During interrogation, Rajiv disclosed about his involvement and participation in the offence registered vide FIR no.294/99 u/s 392/34 IPC. The said information was given to SI Manoj Kumar on 20.6.1999 who along with Ct. Mahender visited the Office of Operation Cell, North West District and collected the relevant papers. Rajiv was arrested. The accused Rajiv refused to participate in the TIP. The police remand was granted by the concerned court of Metropolitan Magistrate. The accused Rajiv on 25.6.1999 was 5 taken for further interrogation by SI Manoj Kumar along with Ct. Ram Pal and Ct. Subhash. Accused Rajiv got recovered the country made pistol stated to be used in the commission of offence from a park situated between A-B Blocks of Saraswati Vihar. The accused Rajiv also led the police party to the place of occurrence and the place where he parked the car bearing no.DL 1CD 1652. The pointing out memos were prepared. The country made pistol along with one live cartridge was seized by the SI Manoj Kumar.
5. Ashwini and Harminder Singh were arrested by HC Kuldeep Singh and HC Ramesh Kumar Operation Cell, North West District on 27.6.1999 vide FIRs no. 435/99 and 436/99 u/s 25 Arms Act, 1959 and their respective disclosure statements were recorded. Ashwini and Harminder Singh disclosed about their participation and involvement in the offence, subject matter of FIR no 294/99 u/s 392/34 IPC. SI Manoj Kumar went to the Office of Operation Cell and collected the relevant documents from ASI Satyavir who conducted further investigation of FIR no.435/99.
6. ASI Naresh Chand posted at AATS, North West District along with HC Mohd. Yasin and HC Om Parkash arrested the Sajjan Kumar 6 on 5.7.99 at about 8.30 pm from Village Sahipur, Shalimar Bagh vide FIR no.492/99 u/s 25 Arms Act, 1959, investigation of which was conducted by HC Rishi Kesh. The disclosure statement of Sajjan Kumar was also recorded in FIR no.492/99 wherein he disclosed his involvement and participation in the commission of offence registered vide FIR no. 294/99 u/ 392/34 IPC. SI Manoj Kumar was informed about the involvement of Sajjan Kumar. SI Manoj Kumar collected relevant papers from HC Rishi Kesh. The further investigation was assigned to SI Anil Kumar for the period w.e.f. 7.7.1991 to 15.7.1991 as SI Manoj Kumar remained on medical leave. SI Anil Kumar on 8.7.1999 arrested Ashwini, Harminder and Sajjan as they were produced in the concerned court of Metropolitan Magistrate in pursuance of production warrants. The TIP of accused Ashwini, Harminder and Sajjan were conducted at Tihar Jail but they refused to participate in the TIP proceedings despite warning. The police remand was granted. Accused Ashwini, Harminder and Sajjan pointed out the place of incident as well as the place where they left the Maruti car bearing no.DL 1CD 1652 in abandoned condition. The pointing out memos were prepared. The accused Harminder was taken to village Thana Kalan for the recovery of part robbed amount but 7 the recovery could not be effected. Further investigation was again assigned to SI Manoj Kumar. On 11.8.99. complainant Sushil Aggarwal and Babu Lal Sharma identified all the four accused in Tis Hazari Courts Complex. The country made pistol (katta) was recovered at the instance of Rajiv was sent to CFSL, Malvia Nagar. SI Manoj Kumar conducted necessary formalities of the investigation. All the accused after completion of investigation were charge sheeted for the offences punishable u/s 392/397/34 IPC and sent to the court of concerned Metropolitan Magistrate.
7. All the accused were supplied with the copies of charge sheet along with annexed documents in compliance of Section 207 Cr.P.C. Vide committal order dated 17.7.2003 passed by the Metropolitan Magistrate, the case was committed to the court of Sessions and thereafter assigned to this court for trial in accordance with law.
8. Vide order dated 3.9.2003 charge for the offence punishable u/s 392/397/34 IPC was framed against all the accused. The accused Rajiv was also charged for the offence punishable u/s 25 Arms Act, 1959. The accused pleaded not guilty and claimed trial. The accused Sajjan during the course of trial did not appear and accordingly vide order dated 8 12.12.2008 was declared as P.O. (Proclaimed Offender).
9. The prosecution examined N.K. Sharma, Finger Print Expert as PW-1; Sunil Kumar Aggarwal as PW-2; Mukesh Kumar as PW-3; Naresh Arya as PW-4; HC/ ASI Jamil Ahmed as PW-5; SI Jai Dev as PW-6; Ct. Ravinder Kumar as PW-7; HC Satish Kumar as PW-8; Ct. Ram Pal as PW-9; SI Satbir Singh as PW-10; Ct. Mahender as PW-11; Ct. Subhash as PW-12; Babu Lal as PW-13; Ram Mehar as PW-14; ASI Naresh Chand as PW-15; HC Rishikesh as PW-16; HC Bhagwat Saroop as PW17; HC Ramesh Kumar as PW-18; Shri P.D. Gupta Ex. Metropolitan Magistrate as PW-19; HC Attar Singh as PW-19; Sushil Aggarwal as PW-20; SI Anil Kumar as PW-21; SI Manoj Kumar as PW-22; K.C. Varshney, Senior Scientific Officer (Ballistics), FSL, Rohini as PW-23.
PW-20 Sushil Aggarwal was the complainant who went to Bank of Punjab on 26.4.1999 along with PW-13 Babu Lal. PW-2 Sunil Aggarwal informed the police about the incident. PW-4 Naresh Arya was the owner of car bearing no.DL 1CD 1652 stated to be stolen in Rohtak. PW-5 HC Jamil Ahmed recorded FIR bearing no. 294/99 u/s 392/34 IPC on the basis of rukka sent by SI Manoj Kumar. PW-17 HC Bhagwat Saroop and Ct. Ashok went to C-Block, Saraswati Vihar after receipt of 9 DD no.11 where they found the car bearing no.DL 1CD 1652 in abandoned condition. PW-6 SI Jaidev arrested the accused Rajiv u/s 41.1 Cr.P.C. on 19.6.2009 and recorded his disclosure statement. PW11 Ct. Mahender along with SI Manoj Kumar went to Operation Cell on 20.6.99 and was a witness of arrest of accused Rajiv. PW-8 Ct. Satish Kumar and PW-9 Ct. Ram Pal on 25.6.99 participated in the investigation along with SI Manoj Kumar when accused Rajiv pointed out the place of occurrence and place of parking of the car bearing no.DL 1CD 1652 and also effected the recovery of country made pistol along with one live cartridge. PW-10 SI Satyavir and PW-18 HC Ramesh Kumar arrested the accused Ashwini and Harminder vide FIR no. 435/99 and 436/99 u/s 25 Arms Act, 1959 on 27.6.99 and recorded their disclosure statements. PW-15 ASI Naresh Chand on 5.7.99 arrested the accused Sajjan vide FIR no.492/99 u/s 25 Arms Act, 1959. PW-16 HC Rishi Kesh conducted further investigation of accused Sajjan vide FIR bearing no.492/99; PW-21 SI Anil Kumar along with PW-12 Ct. Subhash and PW-19 Ct. Attar Singh obtained the police remand of accused Sajjan, Harminder and Ashwini, arrested them and prepared the pointing out memos at the instance of accused Harminder, Ashwini 10 and SAjjan; PW-21 also taken the accused Harminder to village Thana Kalan for the recovery of part robbed amount and prepared the pointing out memo in the presence of PW-12 and PW-14 Ram Mehar. PW-3 Mukesh Kumar was relative of accused Rajiv. PW-19 Shri P.D. Gupta, then Metropolitan Magistrate conducted TIP proceedings in respect of all the accused. PW-23 K.C. Varshney examined the country made pistol recovered at the instance of accused Rajiv. PW-22 SI Manoj Kumar being Investigating Officer conducted the investigation.
10. The prosecution proved the Finger Print Report as ExPW1/A; copy of FIR bearing no.294/99 u/s 392/34 IPC as ExPW 5/A; disclosure statement of accused Rajiv recorded by PW-6 SI Jai Dev as ExPW6/A; statement of SI Jaidev recorded by SI Manoj Kumar as ExPW6/DX1; Kalandra u/s 41.1 Cr.P.C. in respect of accused Rajiv as ExPW 6/DX2; pointing out memo of place of occurrence prepared at the instance of accused Rajiv as ExPW8/A; pointing out memo of place of parking of car bearing no.DL 1CD 1652 prepared at the instance of accused Rajiv as ExPW8/C; seizure memo of country made pistol recovered at the instance of accused Rajiv as ExPW8/C and its sketch as ExPW8/D; disclosure statement of accused Ashwini recorded by PW-10 SI Satyabir 11 Singh as ExPW10/A; pointing out memos of the place of occurrence prepared at the instance of accused Ashwini, Harminder and Sajjan as ExPW12/A to ExPW12/C; pointing out memos of place of parking of car bearing no.DL 1CD 1652 prepared at the instance of accused Ashwini, Harminder and Sajjan as ExPW12/D to ExPW12/F; pointing out memo prepared at the instance of accused Harminder at village Thana Kalan as ExPW 12/G; the disclosure statement of accused Sajjan recorded by PW-16 HC Rishi Kesh as ExPW15/A; DD no.10 as ExPW17/A and DD no.11 as ExPW 17/B; disclosure statement of accused Harminder recorded by PW-18 HC Ramesh Kumar as ExPW18/A; TIP conducted by PW-19 Shri P.D. Gupta, then Metropolitan Magistrate in respect of all accused as ExPW19/A to ExPW19/H; complaint made by Sushil Aggarwal as ExPW20/A; arrest memos of accused Sajjan, Ashwini and Harminder as ExPW21/A to ExPW21/C respectively; rukka as ExPW22/A; site plan as ExPW22/B; seizure memo of car bearing no.DL 1CD 1652 as ExPW22/C; portrait of the suspects prepared by SI Manoj Kumar at the instance of PW-20 Sushil Aggarwal and PW-13 Babu Lal as ExPW 22/D and ExPW22/E; arrest memo of accused Rajiv as ExPW22/F; FSL report as ExPW22/G. PWs also identified the car 12 bearing no.DL 1CD 1652 as ExP1; country made pistol along with live cartridge recovered at the instance of accused Rajiv as ExP2 and ExP3. The prosecution evidence was closed vide order dated 11.7.2007.
11. The respective statement of all accused was recorded u/s 313 Cr.P.C. All the accused pleaded innocence and denied the incriminating evidence against them. The accused Ashwini stated that he was arrested on 227.4.99 from his native village in presence of Panchayat of his village. Accused Rajiv stated that he was arrested on 28.4.99 along with accused Harminder from his native village in presence of Panchayat. He further stated that he had been kept illegally confined at Crime Branch, Sonepat and thereafter handed over to Delhi Police Crime Cell and kept for ten days in their illegal confinement. Accused Sajjan Kumar ( since declared as P.O.) stated that he is an agriculturist by profession at his native village Farmana, District Sonepat, Haryana. He was arrested on 28.4.99 by the police party. The accused Ashwini, Rajiv and Sajjan preferred to lead defence evidence. DW-1 Sukbir Singh, DW-2 Raj Singh and DW-3 D.S. Rawat were examined as defence witnesses. The accused Rajiv and Ashwini vide order dated 14.1.2009 stated that they did not want to lead defence evidence. the 13 defence evidence was closed vide order dated 14.1.2009.
12. Shri Atul Kumar Gupta, CPP for the State, Shri R.P. Tyagi, Advocate for accused Harminder; Shri S.S. Sangwan, Advocate for accused Ashwini and Rajiv heard. Record perused.
13. In the criminal jurisprudence, every person accused of an offence is always presumed to be innocent. The burden lies upon the prosecution to establish guilt of an accused beyond reasonable doubt and to prove all the ingredients of the offence with which the accused is charged. The decision of the House of Lords in Woolmington V Director of Public Prosecution, (1935) AC 462, is the leading pronouncement. Their Lordships pointed out that it is not for the prisoner to establish his innocence but for the prosecution to establish his guilt. But while the prosecution must establish the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt, as to his guilt; he is not bound to satisfy the court of his innocence, for there is already the presumption of innocence.
The Supreme Court of India in State of UP V Krishna Gopal, AIR 1987 SC 2154 recognized that a person has a profound right not to 14 be convicted of an offence which is not established by the evidential standard of proof beyond reasonable doubt. Though this standard is a higher standard, there is no absolute standard. What degree of probability amounts to proof is an exercise particular to each case. Doubts must be actual and substantial doubts as to the guilt of the accused arising from the evidence or lack of it, as opposed to mere apprehensions. A reasonable doubt is not a imaginary, trivial or a merely possible doubt; but a fair doubt based upon common sense and reason. It must grow out of the evidence in the case.
14. Section 390 IPC deals with robbery. It provides that in all robbery there is either theft or extortion. Theft is robbery if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or instant hurt, or of instant wrongful restraint. Section 392 IPC provides punishment for robbery. Section 397 IPC deals with robbery or dacoity with attempts to cause death or grievous hurt. It provides that at the time of committing robbery, the offender uses any deadly weapon or causes grievous hurt to any 15 person, or attempts to cause death or grievous hurt to any person shall liable to be punished for imprisonment which shall not be less than seven years.
15. Section 397 IPC attracts if, at the time of committing robbery or dacoity, the offender uses a deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person. A deadly weapon must have been used at the time of committing robbery or dacoity, and not before its commission. The word 'uses' in should be given a wider meaning, and should not be confined merely to cutting, stabbing or shooting, as the case may be, but also to carrying the weapon for the purpose of overwhelming the victims of dacoity. If a dacoit is armed with a deadly weapon, then undoubtedly, he inspires the victim with the feeling of fear and his power of resistance is, to a great extent, paralysed. Section 397 IPC does not create any offence but merely regulate the punishment already provided for robbery and dacoity. This section fixes a minimum term of imprisonment between the commission of robbery and dacoity has been attended with certain aggravating circumstances, viz., (1) the use of a deadly weapon, or (2) the causing of grievous hurt, or (3) attempting to cause death or grievous 16 hurt. Section 34 of the Code has no application in the construction of section 397 IPC. The expression 'the offender' does not include persons who participated in the commission of robbery or dacoity but do not use deadly weapon. The apex Court in Ashfaq V. State AIR 2004 SC1253 held that what is essential to satisfy the words ' uses' for the purposes of Section 397 IPC is the robbery being committed by an offender who was armed with deadly weapon which was within the vision of victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be. It was also observed in Vinod Kumar and ors. V State, 2007 (2) JCC 1011, that it is not necessary in order to attract Section 397 IPC, the deadly weapon is to be used in the sense that by use of it the person has to be injured. The use of weapon is also there when the weapon is brandished and a person is robbed/ looted under the fear of his life caused by weapon.
16. The CPP for the State argued that all the accused have robbed Rs.8,90,000/- from PW-20 Sushil Aggarwal and PW-13 Babu Lal and subsequently were arrested; the prosecution has led the sufficient evidence to establish the guilt of all accused in accordance with law, as 17 such, they be punished accordingly.
Shri R.P. Tyagi, advocate for accused Harminder argued that accused Harminder was not having any deadly weapon and as per the prosecution he was sitting in the car as such no offence u/s 397 IPC is made out against accused Harminder; there are material contradictions in the testimonies of PW-20 Sushil Aggarwal and PW-13 Babu Lal; the alleged incident took place at Ring Road near Police Post and it is not believable for a person to commit crime near the Police Post; the PW20 Sushil Aggarwal did not mention the registration number of the car in deposition before the court while he mentioned the number of the car in statement u/s 161 Cr.P.C. which is a material contradiction; the PW-20 Sushil Aggarwal identified the accused in the court for the first time and he has not mentioned in his deposition that two persons were sitting in the car; no document is proved by the prosecution to show that the PW20 Sushil Aggarwal has actually withdrawn Rs.8,90,000/- from the Bank on the date of alleged incident; as per the prosecution, PW-20 had given Rs.60,000/- to one Naresh Jain but he was not produced as a witness which is a material lacuna in the prosecution case; there was considerable delay in lodging the FIR which has not been explained and 18 the FIR was lodged after due deliberation which is fatal to the case of the prosecution; the PW-20 deposed that two boys had committed the alleged offence and there is no reference of the car in his deposition and further car ExP1 was not produced during the testimony of PW-20 Sushil Aggarwal and PW-13 Babu Lal.
Shri S.S. Saghwan, Advocate for accused Ashwini and Rajiv argued that there are material contradictions in the respective testimonies of PWs examined by the prosecution and he relied upon the cross examination of PW-2 Sunil Kumar, PW-13 Babu Lal and PW20 Sushil Aggarwal; FIR was lodged after a considerable delay of 8 hours which is fatal to the case of prosecution; no document is produced by the prosecution regarding the withdrawal of Rs.8,90,000/- by the PW-20 and it was a the case of self embazzlement; PW-7 has wrongly mentioned the registration of car as 1612 while it was 1652 as per the prosecution.
17. The prosecution in support of its case examined 23 witnesses while the defence has examined three witnesses. The evidence led by the prosecution can be divided into following events :--
i. On 26.4.99 when PW-20 Sushil Aggarwal and 19 PW-13 Babu Lal had withdrawn Rs.9,55,000/- from Bank of Punjab, Sector-8, Rohini and robbing of Rs.8,90,000/- from PW-20 Sushil Aggarwal and PW-13 Babu Lal.
ii. Lodging of FIR bearing no.294/99 u/s 392/34 IPC ExPW 5/A at 9.10 pm on 26.4.99.
iii. Seizure of car bearing no.DL 1CD 1652, owned by PW-4 Naresh Arya and lyings in abandoned condition at C-Block Market, Saraswati Vihar by PW-17 HC Bhagwat Saroop and PW-7 Ct. Ravinder after receipt of DD no.11 ExPW17/B and subsequent seizure by PW-22 Investigating Officer SI Manoj Kumar vide seizure memo ExPW22/C. iv.Arrest of accused Rajiv on 16.9.2009 by PW-6 SI Jaidev, Special Operation Cell, North West District, Saraswati Vihar u/s 41.1 Cr.P.C. vide Kalandra ExPW6/DX2 and recording of disclosure statement ExPW6/A wherein the accused Rajiv disclosed about his involvement and participation in the commission of present offence subject matter of FIR bearing no. 294/99. v. Arrest of accused Rajiv on 20.6.99 by PW-22 SI Manoj Kumar vide arrest memo ExPW22/F and subsequent investigation conducted on 25.6.99 by PW-22 SI Manoj Kumar along with PW-9 Ct. Ram Pal and PW-8 Ct. Subhash; recovery of one country made pistol ExP2 along with live cartridge ExP3.
vi.Arrest of accused Ashwini on 26.6.99 by HC Kuldeep Singh and subsequent investigation by PW-10 SI Satyabir Singh and recording the disclosure statement ExPW 10/A of accused Ashwini wherein the accused Ashwini disclosed about his involvement and participation in the commission of offence subject matter of FIR no.294/99.20
vii.Arrest of accused Harminder by PW-18 HC Ramesh Kumar vide FIR no.436/99 u/s 25 Arms Act and recording of disclosure statement ExPW18/A wherein accused Harminder disclosed about his involvement and participation in commission of offence subject matter of FIR no.294/99.
viii.Arrest of accused Sajjan (since P.O.) by PW-15 ASI Naresh Chand vide FIR bearing no. 492/99 u/s 25 Arms Act and the investigation by PW-6 HC Rishi Kant and recording of disclosure statement of accused Sajjan ExPW15/A wherein he disclosed about his involvement and participation in the commission of offence subject matter of FIR no.294/99.
ix.The arrest of the accused Ashwini, Harminder and Sajjan by PW-21 SI Anil Kumar vide arrest memos ExPW 21/A to ExPW21/C; interrogation of accused Ashwini, Harminder and Sajjan by PW-21 SI Anil Kumar along with PW-12 Ct. Subhash and PW-19 Ct. Attar Singh and pointing out of the place of occurrence vide memos ExPW12/A to ExPW12/C and place of parking of the car as ExPW12/D to ExPW12/F. x. The refusal of all the accused to participate in the Test Identification Parade for which the proceedings ExPW19/A to ExPW19/H were recorded.
18. The prosecution alleged that on 26.4.99 at about 10.15 am, PW20 Sushil Aggarwal along with PW-13 Babu Lal had gone to Bank of Punjab Ltd. situated at Sector-8, Rohini to withdraw Rs.9,55,000/- on two wheeler scooter bearing no. DL 8SG 0572 and had withdrawn 21 Rs.9,55,000/- out of which Rs.65,000/- were given to one Naresh Jain who was also present in the bank. The prosecution further alleged that the PW-20 Sushil Kumar has divided the balance amount of Rs.8,90,000/- in two parts and kept Rs.8,00,000/- in a polythene bag while Rs.90,000/- in a brown colour canvas bag. The prosecution alleged that PW-20 Sushil Aggarwal was driving the scooter and PW-13 Babu Lal was sitting on the pillion seat and when they reached near Police Picket,Outer Ring Road, Sector-8 Rohini then one white colour Maruti car bearing no.DL 1CD 1652 came from back side out of which two boys got down and snatched Rs.8,90,000/- from the possession of PW-20 and PW-13, after putting country made pistol on their persons and two boys remained inside the car and thereafter they run away towards Peeragarhi Chowk. All the four said boys were arrested subsequently.
19. The prosecution to prove its case has examined the complainant i.e Sushil Aggarwal as PW-20 who supported the case of the prosecution. PW-20 deposed that on 26.4.99 at about 10.15 am he along with PW-13 went to Bank of Punjab situated at Sector-8, Rohini to withdraw the money on two wheeler scooter and had withdrawn 22 Rs.9,55,000/- out of which Rs.64000/- were given to one Naresh Jain who was already present there. PW-20 Sushil Aggarwal further deposed that Rs.8,00,000/- were kept in a polythene bag and Rs.90,000/- were kept in a canvas bag and when they were going to Outer Ring Road and when they crossed two Red Lights and stopped scooter then one Maruti car came, out of which two persons came out and snatched/robbed Rs.8,90,000/- kept in two bags after putting the country made pistol/katta on their head. The PW-20 deposed that accused Rajiv put country made pistol on his parietal region and the accused Ashwini put country made pistol on the head of Babu Lal. He further deposed that accused Ashwini snatched the bag containing Rs.8,00,000/- from the Babu Lal.
20. The prosecution to support and corroborate the testimony of PW-20 Sushil Aggarwal examined Babu Lal as PW-13 who also supported the case of the prosecution. PW-13 Babu Lal deposed that on 26.4.99 he along with PW-20 Sushil Aggarwal went to Bank of Punjab situated at Sector-8 Rohini from Laxmi Apartment on a two wheeler scooter and withdrawn Rs.9,56,000/-, out of which Rs.65000/- was given to Naresh Jain. PW-13 further deposed that thereafter they divided the balance amount in two parts and kept in two different bags. 23 It is reflected from the testimony of PW-13 that when they reached near the red light , Outer Ring Road just before the Madhuban Chowk then one car bearing no.DL 1CD 1652 came from the back side out of which two boys get down and snatched two bags containing Rs.8,90,000/-. PW-13 further deposed that accused Ashwini put the Katta on him while accused Rajiv put katta on PW-20 Sushil Aggarwal. The respective testimony of PW-13 and PW-20 proved that on 26.4.99 both of them had gone to Bank of Punjab , Sector-8, Rohini from Laxmi Apartment i.e the residence of PW-20 Sushil Aggarwal on two wheeler scooter and withdrawn Rs.9,55,000/- out of which Rs.65,000/- were given to one Naresh Jain and the balance amount was kept in two bags and when PW-13 and PW-20 reached near Red Light, Outer Ring Road then accused Ashwini and Rajiv after getting down from car bearing no.DL 1CD 1652 put katta on the person of PW-13 and PW-20 and snatched Rs.8,90,000/-. It is also reflected from the testimony of PW-13 and PW- 20 that accused Harminder was sitting at the back side of the car while accused Sajjan was sitting on the driver seat of Maruti car. Both PWs identified all accused who had participated in the commission of offence.
21. The respective counsel for the accused argued that the 24 prosecution has not collected any evidence regarding the withdrawal of Rs.9,55,000/- by the PW-20 from Bank of Punjab Ltd., Sector-8, Rohini and out of which, Rs.65,000/- were given to the Naresh Jain. The prosecution has not examined Naresh Jain as witness and has not led evidence regarding the withdrawal of Rs.9,55,000/- from the Bank of Punjab on 26.4.99. It may be a lapse on the part of the prosecution but not enough to cause serious prejudice to the prosecution's case. What is reflecting from the respective testimony of PW13 and PW-20 is that they withdrawn the money from the Bank of Punjab out of which some part was given to Naresh Jain and the remaining was robbed by all the accused. The respective counsel for the accused also argued that there are material contradictions in the respective testimony of PW-13 and PW-20. PW-13 deposed that a sum of Rs.9,56,000/- was withdrawn from the bank out of which Rs.65,000/- was given to Naresh Jain while PW-20 deposed that they had withdrawn Rs.9,55,000/- out of which Rs.64,000/- was given to Naresh Jain. These are the minor contradictions in the respective testimonies of PW-13 and PW-20 which again do not dent the case of the prosecution.
22. There bound to be discrepancies in the ocular account of 25 different witnesses and in their narration when they speak on detail. The contradictions as pointed out by the defence counsel are not material contradictions to cause prejudice to the case of the prosecution seriously. It was held in the case Leela Ram (D) through Duli Chand V State of Haryana, AIR 1999 SC 3717 (1) as under :--
[B]ut the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye-witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence.
23. The prosecution also examined PW-17 HC Bhagwat Saroop and PW-6 Ct. Ravinder who went to C-Block market, Saraswati Vihar after receipt of DD no.11 ExPW17/B regarding the parking of a car bearing no.DL 1CD 1652 in abandoned condition. The said car was found to be belonged to PW-4 Naresh Arya who identified the said car 26 as ExP1. The defence counsel for the accused Ashwini and Rajiv also argued that the case vide FIR no. 158/99 u/s 379 IPC was registered at PS Civil Line, Rohtak in respect of car bearing no.DL 1CD 1652 and in that case accused Ashwini, Harminder and Rajiv have already been acquitted vide judgment dated 25.3.2009 passed by Shri Chander Hans, Judicial Magistrate 1st Class. The mere acquittal of accused Ashwini, Harminder and Rajiv does not affect the case of the prosecution. The testimony of PW-13 clearly proved that all the accused had come in car bearing no.DL 1CD 1652 which was seized vide seizure memo ExPW22/C by PW-22 SI Manoj Kumar and is identified by PW-4 Naresh Arya. Shri Saghwan, defence counsel for accused Ashwini and Rajiv also argued that the PW-7 has mentioned the registration no. of the car as 1612 while as per the prosecution the car number is 1652. It is again a minor discrepancy in the testimony of PWs which does not affect the case of the prosecution. PW-20 Sushil Aggarwal also did not mention the registration number of the car but the PW-13 Babu Lal deposed about the registration number of the car as DL 1CD 1652 used in the commission of offence.
24. The respective defence counsels have argued that there is 27 considerable delay in the registration of the FIR and the FIR was registered after due deliberation only to conceal the self embazzlement of the said amount made by PW-20 Sushil Aggawal.
25. FIR is an information given to police which sets criminal law in motion. Setting criminal law into motion means requiring investigating agency to take steps towards investigation, make some efforts for investigating the crime. FIR need not be an encyclopaedic of evidence. By itself, it cannot be the basis to decide the culpability of the accused. But the receipt and recording of FIR is not a condition precedent to the setting in motion a criminal investigation. There is no mathematical formula by which an inference may be drawn either way merely on account of delay in lodging of the FIR. A host of circumstances like the condition of the first informant, the nature of injuries sustained, the number of victims, the efforts made to provide medical aid to them, the distance of the hospital and the police station, etc. have to be taken into consideration. Prompt lodging of FIR is a significant circumstance in support of the prosecution case. The fact that the first information report was given almost immediately, rules out any possibility of deliberation to falsely implicate any person. Prompt and early reporting of the 28 occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. But delay in lodging FIR does not make the prosecution story improbable when such delay is properly explained. But when the delay is not properly explained, it renders the case against the accused unreliable and the accused is entitled to be acquitted. Moreover, mere delay in lodging FIR by itself is not sufficient to reject he evidence of eye-witnesses unless there are indications of false implication or circumstances which would manifest that they could not have witnessed the incident.
26. As per the testimony of PW-20 Sushil Aggarwal, he went to Bank of Punjab Ltd. on 26.4.99 at about 10.15 am and withdrawn Rs.9,55,000/- and when he was coming back on two wheeler scooter then the accused Rajeev and Ashwini snatched two bags containing total of Rs.8,90,000/- while two other accused Harminder and Sajjan were sitting inside the car. PW-20 further deposed that he became perplexed and came to his house and at that time his mother was serious so he could not disclose the incident in family. PW-20 deposed that he informed his younger brother Sunil Aggarwal about the incident who immediately came to house and made telephonic call to the police. 29 PW-20 further deposed that thereafter he disclosed each and everything to the police. PW-13 who accompanied PW-20 on 26.4.99 also deposed that after the incident they went to the house of PW-20 and narrated the incident to the younger brother of PW-20 Sushil Aggarwal namely Sunil Aggarwal. The prosecution has also examined Sunil Aggarwal as PW-2 who deposed that on 26.4.99 at about 11/11.15 am , his elder brother PW-20 Sushil Aggarwal was bringing Rs.8,90,000/- from the Bank of Punjab, Rohini Branch on two wheeler scooter along with his employee i.e PW-13 Babu Lal and he was told that two boys on the gun point had robbed Rs.8,90,000/-. PW-2 further deposed that when he came to know this fact then he made telephonic call to the police and the police also came to his house and after making enquiry they were taken to Police Post Shakti Vihar. The complaint ExPW20/A perused. On complaint ExPW20/A, Investigating Officer SI Manoj Kumar made endorsement ExPW22/A and sent Ct. Ram Pal to the Police Station for the registration of the case. PW-22 mentioned the time and date of incident as 26.4.99 at 11.30 am and the place of incident as Outer Ring Road, Opposite Primary School, Pitampura, Delhi. As per the endorsement ExPW22/A it further reflects that the 30 Tehrir was sent on 26.4.99 at about 8.50 pm and FIR was registered by PW-5 HC Jamil Ahmed. There is delay in recording the FIR. The incident stated to be happened at 11.30 am while the FIR was registered at about 9.10 pm i.e after the expiry of eight hours. The prosecution has explained the delay in registration of FIR. PW-20 deposed that after the incident he got perplexed and he went to his house and at that time his mother was seriously ill and due to this reason, he called PW-2 Sunil Aggarwal his younger brother and thereafter the police was called and after making the inquiry, the FIR was registered. It is a matter of common knowledge that when an ordinary citizen like PW-20 has been robbed of Rs.8,90,000/- by four persons cannot have enough courage to go to the Police Station directly. PW-20 preferred to go to his house and have talk with his brother PW-2 Sunil Aggarwal. At that time, the mother of the PW-20 and PW-2 was seriously ill. If the said incident was brought to the knowledge of ailing mother then it would have caused problem to the ailing mother. The prosecution explained the delay in lodging the FIR. The delay in lodging the FIR is not fatal to the case of the prosecution.
27. The prosecution also examined the witnesses to arrest the 31 accused Rajiv, Ashwini and Harminder. The prosecution examined PW6 SI Jai Dev who arrested accused Rajiv vide Kalandra u/s 41.1 Cr.P.C. ExPW 6/DX2 on 19.6.99 and also recorded the disclosure statement ExPW6/A. The prosecution also examined IO SI Satyabir Singh who arrested the accused Ashwini vide FIR no.435/99 u/s 25 Arms Act and recorded the disclosure statement as ExPW10/A. The prosecution also examined PW-18 HC Ramesh Kumar who arrested accused Harminder vide FIR no.436/99 u/s 25 Arms Act and also recorded the disclosure statement ExPW18/A. The prosecution has also examined PW -21 SI Anil Kumar and Ct. Attar Singh as PW-19 who conducted the investigation on 12.7.99. The accused Ashwini, Harminder and Sajjan pointed out the place of occurrence vide pointing out memo ExPW12/A and they also pointed out the place of car parking as ExPW8/B. It is also proved by the prosecution that on search one pistol ExP1 and ExP2 along with one live cartridge ExP3 was recovered from the possession of accused Rajiv which was seized vide seizure memo ExPW8/A and the sketch of the weapon as ExPW8/D.
28. It is also argued that as per the prosecution, the accused Ashwini, Rajiv get down from the car bearing no.DL 1CD 1652 and 32 snatched Rs.8,90,000/- from PW-20 and PW13 but the accused Harminder has not participated in the commission of offence. PW-20 and PW-13 clearly deposed that the accused Harminder was sitting on the back seat of the Maruti car while accused Sajjan was sitting on the driver seat. All the accused were present at the scene of crime and they run away in the car bearing no.DL 1CD 1652 after committal the offence. It clearly reflects the common intention on the part of all the accused while committing the offence.
29. Section 34 IP Code recognises the principle of vicarious liability in criminal jurisprudence. It is a rule of evidence and does not create a substantive offence. To attract section 34, IP Code two postulates are indispensable: (1) The criminal act (consisting of series of acts) should have been done, not by one person, but more than one person. (2) doing of every such individual act cumulatively resulting in the commission of criminal offence should have been in furtherance of the common intention of all such person. It is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate 33 acts of similar or diverse. Common intention implies acting in concert. There is a pre-arranged plan which is proved either from conduct or from circumstances or from incriminating facts. The requirement of statute is sharing the common intention upon being present at the place of occurrence. Mere distancing himself from the scene cannot absolve the accused--though the same, however, depends upon the fact situation of the matter under consideration and no rule steadfast can be laid down therefor. Section 34 applies only if the accused persons share a common intention not where they share only similar intention. Therefore, mere presence together of two persons is not sufficient to hold that they share a common intention.
30. In view of evidence led by the prosecution, it is proved beyond reasonable doubt that on 26.4.99 at about 11/11.30 am Outer Ring Road, near Primary School, Pitampura the accused Ashwini, Harminder and Rajiv along with accused Sajjan (since P.O.) robbed Rs.8,90,000/- from the possession of PW-20 Sushil Aggarwal and PW-13 Babu Lal and during the commission of offence accused Rajiv and Ashwini used a desi katta. Accordingly, the accused Rajiv and Ashwini are convicted for the offences punishable u/s 392/397/34 IPC and accused Harminder is 34 convicted for the offence punishable u/s 392/34 IPC. The accused Sajjan is already P.O. Announced in open court (Dr.Sudhir Kumar Jain) on 27.11.2009 ASJ-01 (Outer) Rohini, Delhi.
35IN THE COURT OF DR. SUDHIR KUMAR JAIN: ASJ-01 (OUTER), ROHINI : DELHI FIR no.294/99 PS: Saraswati Vihar U/s: 392/397/34 IPC Date of Institution: 26.7.2003 Date of Decision : 30.11.2009 State Versus
1. Ashwini @ Sonu, S/o Om Parkash, R/o Village Kondli, Sonepat, Haryana.
2. Rajiv, S/o Sukhbir Singh, R/o Vill & PS Kalan, Sonepat, Haryana.
3. Harminder, S/o Raj Singh, R/o Vill. & PO Thana Kalan, Distt. Sonepat, Haryana.
... Convicts ORDER ON SENTENCE Shri Atul Kumar Gupta, CPP for the State, Shri S.S. Saghwan, 36 Advocate for convicts Ashwini and Rajiv and Shri R.P. Tyagi, Advocate for convict Harminder heard on the quantam of sentence.
1. Shri R.P. Tyagi, advocate stated that the convict Harminder is aged about 28 years and got married in the year 2004 and out of the wedlock he is having two children out of which one is son who is aged about three years and one is daughter who is aged about two years. It is further stated that the accused Harminder is not a previous convict but one criminal case is pending against him. It is further stated that his father is also retired from the service and the mother has already expired. It is further stated that there is no any other person to look after his entire family including one unmarried sister. Shri S.S. Saghwan, advocate for convicts Ashwini and Rajiv stated that convict Ashwini is aged about 30 years and is married having two daughters. It is further stated that two cases are pending against him but he is not a previous convict. It is further stated that he has to look after his family comprising old aged father and sister; his mother has already expired about two years back. Shri Sagwan further stated that convict Rajiv is aged about 32 years and got married about 3 ½ years back. It is further stated that 37 he is having two children out of which son is aged about 2 years and daughter is aged about six months. It is further stated that convict Rajiv is the only earning member in his family comprising old aged parents. It is further stated that one case is pending against convict Rajiv and he is not a previous convict. It is further stated that he is a wrestler of national repute and his wife is also a hockey player. In these circumstances, the counsels for the convicts prayed for a lenient view.
2. Shri Atul Kumar Gupta, CPP for the State argued that all the convicts along with accused Sajjan (since P.O.) had robbed Rs.8,90,000/- from the possession of PW-20 Sushil Aggarwal and PW13 Babu Lal at Outer Ring Road, Pitampura and during the commission of offence, convict Ashwini and Rajiv used country made pistols i.e katta. It is further stated that the robbery was committed during the day time when PW-20 and PW-13 were coming back from the bank after withdrawal of the money. Shri Gupta further stated that crimes are increasing in the society and the mode and the manner in which the robbery was committed by all the convicts along with accused Sajjan reflects that they do no have any respect for law and order of the society. It is further stated by Shri Gupta that criminal cases are also pending 38 against the convicts, as such they be suitably punished.
3. All the convicts along with accused Sajjan (since P.O.) during day time at about 11.45 am committed the robbery of Rs.8,90,000/- from PW-20 Sushil Aggarwal and PW-13 Babu Lal. The convicts Ashwini and Rajiv used the country made pistols during the commission of offence by putting on the persons of PW-20 Sushil Aggarwal and PW- 13 Babu Lal. All the convicts have put PW-20 Sushil Aggarwal and PW- 13 Babu Lal in danger of their life. Now a days, it has become very difficult for a common man to live peacefully, even in their house. It is a pious duty of the court to award sufficient punishment to the offenders, once offence is proved in accordance with law so that the confidence of common man should not be shaken.
4. After considering all facts, convict Ashwini and Rajiv are sentenced to undergo RI for the period of eight years along with fine of Rs.10,000/- in default SI for six months each for the offences punishable u/s 392/397/34 IPC and convict Harminder is sentenced to undergo RI for the period of seven years along with fine of Rs.5,000/- in default SI for four months for the offence punishable u/s 392/34 IPC. The benefit u/s 428 Cr.P.C. be given to all convicts. The case property be 39 preserved as the accused Sajjan is P.O. A copy of judgment and order on sentence be supplied to each of the convicts free of cost forthwith. File be consigned to Record Room and be called as and when required or when accused Sajjan is produced before the court for trial.
Announced in open court (Dr.Sudhir Kumar Jain) on 30.11.2009 ASJ-01 (Outer) Rohini, Delhi.