Delhi District Court
State vs . Ashok Kumar And Other on 20 July, 2011
IN THE COURT OF SH. SAMAR VISHAL, METROPOLITAN MAGISTRATE05,
SOUTHEAST DISTRICT, NEW DELHI
STATE VS. Ashok Kumar and other
FIR NO: 317/10
P. S. Pul Prahlad Pur
U/s 392/34 IPC
JUDGMENT
Sl. No. of the case and : 992/2 (22.1.2011)
Date of its institution : 22.1.2011
Name of the complainant : Raghunath
Date of Commission of offence : 25.12.2010
Name of the accused : 1. Ashok Kumar
2. Binoi Chaku @ Anna
Offence complained of : Section 392/34 IPC
Plea of accused : Not guilty
Case reserved for orders : 07.07.2011
Final Order : CONVICTED
Date of judgment : 20.07.2011
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. This is the trial of the accused persons namely Ashok Kumar and Binoi Chaku upon the police report filed by P.S. Ambedkar Nagar u/s 392/34 IPC.
State Vs. Ashok Kumar and other Page 1/22 FIR no.317/10
2. The prosecution story is that on 25.12.2010, the complainant Raghunath was a conductor in RTV bus bearing no. DL 1VA 3512. Satish Kumar was the driver of the bus. Both the accused persons were also present in the bus. When the bus crossed the railway flyover accused Ashok Kumar took a knife and threatened the complainant to stop the bus. The driver stopped the bus. The passengers alighted from the bus and later on, both the accused persons showing the knife, robbed them of Rs.200/ and a mobile of the driver Satish and intimidated them to give Rs.2,000/ per month as "Hafta" to ply the bus on that route . With these allegations the criminal law was set into motion by the complainant by registering the present FIR.
3. After completing the formalities, the investigation was carried out by PS Pul Prahaladpur in pursuance of which the chargesheet u/s 392/411/34 IPC was filed. The charge was framed against the accused persons u/ s 392/34 IPC to which they pleaded not guilty and claimed trial.
4. Thereafter, in order to prove its case, the prosecution has examined six witnesses.
5. PW 1 is the complainant Raghunath himself. He deposed that at the time of incident i.e on 25.12.2010 he was working as conductor in RTV bus bearing no. DL 1VA 3512 plying from Badarpur to Nehru Place. On that day at about 8/8.15 pm in the night State Vs. Ashok Kumar and other Page 2/22 FIR no.317/10 when the bus was going to Nehru Place, there were 20/30 persons in the bus. When the bus crossed fly over one person put a knife at his back and threatened to stop the RTV bus. The RTV bus was stopped and fares of the passengers were returned and they were dropped from the bus. The person who put knife was identified as accused Ashok. The coaccused Binoi Chaku held the driver and robbed his mobile phone. Ashok took out Rs.200/ from his pocket. Binoi Chaku had also beaten the driver Satish and asked him to take the vehicle further and also demanded Rs.2,000/ per month as Hafta and told him and said that robbed amount i.e Rs.200/ was one of its installment. This witness proved his statement as Ex.PW1/A. Later on, he saw the police near Hero Honda Show Room, MB Road where the bus was stopped and on raising alarm, the accused persons were apprehended. The dagger(knife) was seized vide memo Ex.PW1/C. Site plan was prepared at his instance. The mobile phone of the driver was recovered from the possession of accused Binoi Chaku immediately after the commission of robbery. The currency notes were also seized and both the accused persons were arrested at their instance and in their presence. He identified the case property in the Court. However, in his cross examination he has refused to identify the accused persons.
6. The next witness is PW 2 Satish Kumar, driver of the RTV bus on that day. He State Vs. Ashok Kumar and other Page 3/22 FIR no.317/10 deposed about the incident on the same lines as deposed by PW 1 Raghunath. But on some material points, prominently upon the identity of the accused persons, when he has not supported the prosecution case he was declared hostile and was cross examined by Ld. Public Prosecutor.
7. PW 3 HC Arvind and PW 6 Ct. Sunil Malik were the witnesses of prosecution who were present at Hero Honda Showroom where the complainant raised the alarm for help and in consequence of which the accused persons were apprehended. There testimonies are of similar nature . HC Arvind deposed that on 25.12.2010 he was on patrolling duty alongwith Ct. Sunil Malik near Hero Honda Show Room at MB Road at about 8.30 pm. At that time one RTV bearing no. DL 1VA 3512 stopped before him and he heard the noise like "ChorChorPakdo" after hearing which, he alongwith Ct. Sunil entered in the aforesaid RTV where he apprehended one Ashok Kumar who was possessing the knife. He deposed that in the RTV, there were four persons, the driver, conductor and both the accused persons. With the assistance of the driver and the conductor both the accused persons were apprehended whom he identified in the Court. He has also identified the complainant Raghunath Thakur in the Court and deposed that complainant Raghunath and driver Satish narrated the incident regarding the manner in which they were robbed. He deposed that the complainant State Vs. Ashok Kumar and other Page 4/22 FIR no.317/10 told him that the accused persons were demanding hafta of Rs.2,000/ per month. They robbed mobile and Rs.200/ from their pocket. He deposed that one of the accused Ashok was holding a knife. The knife was identified by him in the Court. He transmitted the information to the PS. After 15 minutes ASI Naresh Kumar reached the spot alongwith Ct. Satbir. The custody of the accused persons were handed over to them alongwith the case property. The case was registered against the accused persons. He further proved his involvement in the investigation of the case. On the same lines PW6 Ct Sunil Malik has deposed.
8. Next witness is PW 4 ASI Naresh Kumar who is the investigating officer of this case. He deposed that on 25.12.2010 on receiving DD no.20 A he along with Ct. Satvir reached at spot i.e MB Road near Hero Honda Showroom where Ct. Suraj Malik and HC Arvind handed to him accused Ashok and Binoi Chaku along dagger, money and mobile phone which was recovered from the possession of accused persons and stated to him that dagger and currency notes of Rs.200/ were recovered from the possession of accused Ashok Kumar and mobile phone was recovered from the possession of accused Binoi Chaku. Thereafter, he prepared the sketch of knife, same is Ex.PW1/B which bears his signatures at point C. Total length of the dagger was found 29 cm and length of the blade was found 19 cm, width of the blade was 4 cm and State Vs. Ashok Kumar and other Page 5/22 FIR no.317/10 on the handle of the dagger four circles were engraved and chocolate coloured plastic strips were attached. Blade of the dagger was made up of steel and handle was golden colour. Thereafter dagger was seized with the seal of NS vide memo Ex.PW1/C which bears his signatures at point C. Seal after use was handed over to Ct. Satvir and recovered mobile and currency notes of Rs.200/ in the denomination of two currency notes of Rs.100/ each were seized vide memo Ex.PW1/D and Ex.PW1/E. Both the memos bears his signatures at point C. He recorded the statement of Raghunath Thakur, Ex.PW1/A which bears his attestation at point B and prepared rukka,Ex.PW4/A which bears his signatures at point A and got this case registered through Ct. Satvir. After registration of the case investigation of the case was assigned to him. During the course of investigation, he prepared site plan on the instance of complainant, Ex.PW4/B which bears his signatures at point A and arrested the accused Binoi Chaku and Ashok Kumar vide memo Ex.PW1/G and H which bears his signatures at point C respectively and their personal search was carried out vide memo Ex.PW1/I and Ex.PW1/J which bears his signatures at point D. During the course of investigation he recorded the statement of witnesses. He identified both the accused persons present in the Court that day as they both were arrested by him on the instance and identification of complainant Raghunath and another victim Satish with State Vs. Ashok Kumar and other Page 6/22 FIR no.317/10 the allegation that they had committed robbery from the complainant and victim Satish of mobile phone and currency notes of Rs.200/. (Both the accused persons were correctly identified by this witness in the Court).
9. PW 5 is Ct. Satbir Singh who went to the spot alongwith ASI Naresh Kumar on receiving of DD no. 20A on the date of incident i.e 25.12.2010. He deposed that when he went to the spot where Ct. Suraj Malik and HC Arvind handed over the accused persons to ASI Naresh Kumar, investigating officer alongwith the case property i.e mobile, dagor and money. He proved that how he was involved in the investigation. He corroborated that the dagger was seized vide memo Ex.PW1/C which bears his signatures at point A and the seal after use was handed over to him.
10. This is the overall evidence of the prosecution. Two witnesses who are the victims of the alleged offence. Two police witnesses who apprehended the accused persons and other two related to the investigation of this case.
11. After recording the evidence of this witness, the prosecution evidence was closed. The accused persons were examined under the provision of section 313 Cr.P.C. and all the incriminating evidences were put to them to which they replied that the evidences are false. They had not led defence evidence.
12. I have heard the Ld. APP for State and legal aid counsel for accused and State Vs. Ashok Kumar and other Page 7/22 FIR no.317/10 perused the records of the case.
13. It is argued by the Ld. APP for State that the case has been proved against the accused persons and they should be convicted.
14. On the other hand, it has been argued by counsel for defence that the accused persons have been falsely implicated due to the reason that there was a competition between the buses in which the accused persons were driver and conductor and one in which the complainant Raghunath and Satish were conductor and driver. It is also argued by defence counsel that complainant has not supported the prosecution story and the conductor of the bus has also not supported the prosecutions case and the rest are police witnesses whose evidence cannot be considered in the absence of independent corroboration. It is also argued that the evidence as a whole does not warrant the conviction of the accused persons and therefore, they should be acquitted.
15. Having dealt with the submissions advanced by both the sides, I proceed to adjudicate upon the most important question involved in the present case: whether the accused persons are guilty of the offence with which they are charged or not.
16. The prosecution case is that on 25.12.2010, both the accused persons robbed the complainant, who was conductor along driver of the bus with a mobile State Vs. Ashok Kumar and other Page 8/22 FIR no.317/10 phone, Rs.200/ and intimidated them to give Rs.2,000/ per month as "Hafta" for plying their bus on that route.
17. In order to prove this case, the first witness of the prosecution was the complainant himself i.e Raghunath. He deposed in the Court on the same lines as that of his complaint. He also proved his initial complainant given to the police Ex.PW1/A in examination in chief. The complaint Ex.PW1/A clearly narrates about the incident as mentioned aforesaid. This witness deposed about the manner in which the robbery was committed by the accused persons as discussed in his testimony referred above. This witness has identified the accused persons in his examination in chief. He has correctly deposed about the date, time and manner of the incident and therefore, it can be said that the testimony given by this witness PW 1 completely corroborates his complaint Ex.PW1/A on which the criminal law was set into motion.
18. However, later on, when he was cross examined, he has not identified the accused persons, to the chagrin of the prosecution, as those who committed the offence on the date of incident and this is one of the main defence taken by the accused persons. It was the argument of defence counsel that the witness Raghunath has failed to identify the accused persons in his cross examination which is sufficient to create a doubt in the prosecution story whose benefit the accused persons deserves.
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19. On the other hand, in order to bring home the guilt against the accused persons, the prosecution has relied upon the evidence of all the witnesses including the witness PW1 submitting that although PW 1 Raghunath has failed to identify the accused persons in his cross examination, he has very much identified the accused persons in his examination in chief and that is sufficient to rely upon his testimony as to the identification of the accused persons.
20. I have gone through the testimony of this witness PW1. This witness has fully corroborated the prosecution's case. He identified the accused persons in his examination in chief. The only dent he created in the prosecution case is during his cross examination when he refused to identify the accused persons. Therefore, the only dent in his testimony against the accused persons is regarding their identity of that too in cross examination. Otherwise, his testimony is intact regarding the incident, the manner in which it is committed, the date, time and other things of material relevance. What is the affect of the witness not identifying the accused persons in his cross examination and as to his efforts to wriggle out of his statement of examination in chief regarding the identity of the accused persons. I am of the view that the examination in chief was conducted on 21.2.2011. The cross examination was deferred at the request of the defence counsel and later on cross examination was done on State Vs. Ashok Kumar and other Page 10/22 FIR no.317/10 5.4.2011 i.e approximately more than one and a half months after recording of examination in chief. It is no doubt that this witness has blown hot and cold on the identity of the accused persons but it cannot be ruled out that he might have been won over or might have succumbed to the threats. This witness has not denied the identity of the accused persons in examination in chief and therefore the state represented by Ld. Public Prosecutor therefore, was not having any opportunity to cross examine this witness on the point of identity. The testimony of such kind of witnesses does not even come into the category of hostile witnesses and in view of the judgment titled as "Khujji @ Surendra Tiwari Vs. The State of Madhya Pradesh 1991 AIR Supreme Court 1853, 1991 SCR (3) 1" the testimony of this witness can be relied upon to fix the identity of the accused persons as well as the manner in which the offence was committed. Non identification of the accused persons by this witness in his cross examination is of no value, once he identified them in his examination in chief and the cross examination instead of being conducted on the same day had to be deferred at the request of defence counsel. Therefore, the overall reading of the testimony of PW 1 Raghunath who was the conductor of the bus and was also the victim of the offence, clearly proves the incident alleged to have occurred in the present case.
21. The law regarding the injured witness/ witness who is the victim of the State Vs. Ashok Kumar and other Page 11/22 FIR no.317/10 offence is well settled that it stands on a higher footing. For appreciating the evidence of the injured witnesses the Court has to bear in mind that the presence of such witnesses at the time and place of the occurrence cannot be doubted. They do not have any reason to omit the real culprits and implicate falsely the accused persons. The evidence of the injured witnesses is of great value to the prosecution and it cannot be doubted merely on some supposed natural conduct of a person during the incident or after the incident because it is difficult to imagine how a witness would act or react to a particular incident. His action depends upon number of imponderable aspects. If there is any exaggeration in their evidence, then the exaggeration is to be discarded and not their entire evidence. While appreciating their evidence the Court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. The discrepancies may be due to normal errors of perception or observation or due to lapse of memory or due to faulty or stereotype investigation. It should be remembered that there is a tendency amongst the truthful witnesses also to back up a good case by false or exaggerated version. In this type of situation the best course for the Court would be to discard exaggerated version or falsehood but not to discard entire version. Further, when a doubt arises in respect of certain facts stated by such witness, the proper course is to ignore that fact only unless it goes into the root of State Vs. Ashok Kumar and other Page 12/22 FIR no.317/10 the matter so as to demolish the entire prosecution story.
22. Now in the light of the above law it is clear that the testimony of the injured witness of the offence stands on a higher footing unless and until impeached by some clinching evidence. I have perused the examination in chief of the complainant and his complainant PW1/A and I find that the same are quite consistent, truthful and creditworthy. The complainant has deposed about the date of incident correctly and the manner in which the incident occurred. The incident occurred between 8 and 9 pm in the night. The FIR was promptly registered at about 11 pm on the same day on the complaint of PW 1 Raghunath upon which he admitted his signatures, he also admitted his complaint Ex.PW1/A and his signatures at point A during his examination in chief. It is true that First Information Report is not substantive evidence but the fact remains that immediately after the incident and before there was any extraneous information PW 1 narrated the whole incident to the police witnesses who deposed accordingly and also registered a case. The First Information Report and his initial complaint Ex.PW1/A is a detailed document and it is not possible to believe that the investigating officer imagined those details and prepared the document Ex.PW1/A. The detailed narration about the incident in the First Information Report goes to show that the subsequent attempt of PW 1 to disown the document in cross examination on the ground that he State Vs. Ashok Kumar and other Page 13/22 FIR no.317/10 was made to sign on blank papers, while admitting his signature thereon is a shift for reasons best known to him. Therefore, it is very difficult to imagine that the incident alleged by the complainant is a result of some fertile thinking on the part of the police officers to implicate the accused persons falsely in this case. It is no doubt that the witness has blown hot and cold about the incident despite completely supporting the prosecution in examination in chief, his evidence in cross examination came in adverse fashion. The reason seems to be that more than one month has elapsed since the recording of his examination in chief and something might have transpired which made him shift his evidence. There is no doubt that this witness has made a clear attempt to wriggle out of what he has stated in his examination in chief. On all considerations his testimony proves the charge upon the accused persons.
23. The next witness is PW 2 who was the driver of the bus. He is the witness hostile to the prosecution. He was examined later on after the cross examination of PW 1 was recorded in which he also tried to save the culprits. Before discussing his testimony, let me discuss the law relating to the hostile witnesses. The first question that arises for consideration is whether the testimony of this witness can be considered on behalf of the prosecution in establishing the guilt of the accused persons for the simple reason that he was declared hostile and was cross examined by State Vs. Ashok Kumar and other Page 14/22 FIR no.317/10 Ld. Public Prosecutor. The answer lies in the judgment of Hon'ble Supreme Court of India titled as "Khujji @ Surendra Tiwari Vs. The State of Madhya Pradesh 1991 AIR Supreme Court 1853, 1991 SCR (3) 1" according to which an evidence of a witness declared hostile, is not wholly effaced from the record and that part of evidence which is otherwise acceptable can be acted upon. While relying upon the judgment in Bhagwan Singh Vs. State of Haryanba [1976] 2 SCR 921' Rabinder Kumar Dey Vs. State of Orissa, [1976] 4 SCC 233 and Syed Iqbal Vs. State of Karnataka [1980] 1 SCR 95, the Hon'ble Court held that "the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof". Therefore in view of the law discussed above, the testimony of PW 2 has to be considered which is establishing the factum of the incident regardless of his non identification of the accused persons. He has admitted that on the date of incident he was the driver of the RTV bus bearing no. DL 1VA 3512. He alongwith his conductor was coming from Badarpur and was going to Nehru Place. He admitted that his vehicle was stopped by threefour police personnels. He has admitted that the complainant Raghunath was State Vs. Ashok Kumar and other Page 15/22 FIR no.317/10 present with him on the date of incident. He has admitted signing some papers with the justification that they were blank. He has admitted that police had seized his phone. He has admitted that the sketch of the dagor Ex.PW1/B and the seizure memo of mobile phone recovered from the possession of accused Binoi Chaku bears his signatures at point A. Therefore, his testimony clearly proves his presence at the spot of incident. The meeting of the policeman there, his signing of documents which are various seizure memos showing his involvement in the investigation. In the last his non identification of the accused persons is therefore, not material in view of the aforesaid facts. In view of the aforesaid law, what can be culled out from his testimony is that on the date of incident he was the driver of the RTV bus bearing no. DL 1VA 3512 and PW 1 Raghunath was the conductor. At around 7.30/8 pm there was some quarrel in the bus. It is deposed that some police personnels met them at PS Pul Prahlad Pur. He stopped the vehicle there. The testimony which is against the prosecution is that he in his cross examination by Ld. Public Prosecutor has not identified the accused persons, he has not identified the case property nor the fact that he was robbed. He explained that police obtained his signatures on plain papers. The testimony of this witness proves the facts which as discussed above are parts of the whole set of facts forming the alleged offence of robbery.
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24. Rest of the witnesses are police witnesses. Two of them are those who were present at the place where the complainant PW 1 Raghunath and the driver Satish raised alarm for their help. They are HC Arvind and Ct. Sunil Malik. Their testimony is categorical to the fact that on 25.12.2010 the bus bearing no. DL 1VA 3512 stopped in front of them. From it noise was coming like "ChorChorPakdo". They entered into the bus and arrested the accused persons with the dagor and both the PW 1 and PW 2 narrated them how the offence has been committed with them. They also informed the police from where IO/ASI Naresh Kumar and Ct. Satbir came on the spot and arrested the accused persons and came to know about the incident from PW 1 and PW 2. During their examination, a question was asked u/s 165 of Indian Evidence Act about the fact that the conductor Satish has not identified the accused persons to which investigating officer submits that he has deposed falsely and answered that this criminal prosecution was launched on behalf of Satish and Raghunath. At their instance the accused persons were arrested and they have set the criminal law on motion. The testimony of all the four witnesses clearly shows that the accused persons were arrested on the spot. The mobile, currency notes and the dagor was seized from them in presence of the witnesses PW 1 and PW 2. There is no law that the police witnesses cannot be trusted or their testimony cannot be taken into State Vs. Ashok Kumar and other Page 17/22 FIR no.317/10 consideration while deciding a case as argued on behalf of defence. There is no law that the case should always be supported by the testimony of public witnesses. On the contrary in the present case PW1and PW2 are the witnesses from public. This view finds supports from the observations made by Supreme Court in P.P.Beeran Vs. State of Kerala 2001 (9) SCC 571, The Supreme Court observed that the testimony of the police officials cannot be rejected on the ground that police official was the sole witness of recovery of ganja and the public witness, who was examined , turned hostile. The Supreme Court observed that the conviction can be based on the sole testimony of a Sub Inspector if the other circumstances existed, shall corroborate the testimony. In Pradeep Narayan Madgaonkar and others vs. State of Maharashtra : (1995) 4 SCC 255 and it was it was held that the evidence of official (police) witnesses cannot be discarded merely on the ground that they belong to the police force and are either interested in the investigating or the prosecuting agency. But prudence dictates that their evidence needs to be subjected to strict scrutiny and as far as possible corroboration of their evidence in material particulars should be sought. Their desire to see the success of the case based on their investigation requires greater care to appreciate their testimony.
25. In the present case it was not the police which set the criminal law in motion . It was the complaianat PW1 on whose complaint the police acted. This is not a case where police witnesses have been introduced to bolster the case of the prosecution with a view to its success. I am therefore of the view that the evidence of the police witnesses two of whom apprehended the accused at the spot, is worthy of credence and can be acted upon.
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26. Therefore, in the ultimate analysis and on the basis of the appreciation of evidence discussed above, it can be concluded;
(a) Both the accused persons were present in the bus on the date of incident.
(b) They committed robbery with the help of the dagger whose seizure memo has been proved in the Court as PW1/B.
(c) The recovery of other case properties i.e mobile and Rs.200/ is also proved in the Court.
(d) The witness PW 1's examination in chief and the testimony of police witnesses PW 3 to PW 6 proves the arrest of the accused persons from the spot. Recovery and seizure of case property is proved . There is a prompt registration of FIR. The testimony of PW 2 proves that the bus in which the robbery took place existed and he was the driver of that bus. The police stopped it and he signed certain documents corroborating the other witnesses..
(e) In there explanation to the incriminating evidences put to them, when the accused persons were being examined under section 313 CrPC, they had admitted that they were present in the bus where the incident took place.
27. Therefore the overall evidence discussed above points out to one and only one conclusion that the accused persons have committed the offence as alleged against State Vs. Ashok Kumar and other Page 19/22 FIR no.317/10 them.
28. Now I come to the defences raised by counsel for accused persons.
29. The first argument is that the accused persons have been falsely implicated due to enmity as the bus in which the accused persons were driver and conductor also ply on the same route. This argument is not tenable for three reasons (a). No evidence has been lead to even show that the accused persons were employed on the bus which ply on the same route. (b). When the accused persons were examined u/s 313 Cr.PC, no such explanation was given by them. They simply explained that some dispute arose in the bus between the passengers and the conductor in which he intervened due to which he has been implicated in this case. (c) Enmity itself is a double edged sword. In State of U.P. v. Kishan Chand and others, 2005(1) RCR(Criminal) 276 : 2004(3) Apex Criminal 723 : [(2004)7 SCC 629], Hon'ble Supreme Court observed ,that it is wellsettled principle of law that animosity is a doubleedged sword. It cuts both sides. It could be a ground for false implication and it could also be a ground for assault.
30. The second defence was that both the witnesses have not identified the accused persons and PW 2 is completely hostile to the prosecution. Regarding this defence it is clear that PW 1 has identified the accused persons in the Court. The only place where he has not identified them is in his cross examination which was conducted after a long gap and as I have already discussed that it cannot be ruled out that the witnesses might have been won over. Regarding PW 2 as I have already discussed that the testimony of hostile witness is not wholly effaced of the record and it State Vs. Ashok Kumar and other Page 20/22 FIR no.317/10 can be used in prosecution evidence to the extent relevant facts in favour of prosecution can be culled out.
31. Now I come to the fact that what offence has been committed by the accused persons.
32. The accused persons are charged with offence u/s 392/34 IPC. Section 392 provides punishment for robbery as a rigorous imprisonment which may extend to 10 years and with fine if it is not committed on highways between sun set and sun rise.
33. Robbery is defined in section 390 IPC;
Robbery In all robbery there is either theft or extortion.
When theft is robbery 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, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
When extortion is robbery Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restrat to that person or to some other person, and, by so putting in fear, State Vs. Ashok Kumar and other Page 21/22 FIR no.317/10 induces the person so put in fear then and there to deliver up the thing extorted.
34. In the present case the proved allegations are that the accused persons beaten PW 1 and PW 2 on the strength of a dagger and asked them to deliver the money from his pocket. Mobile phone and Rs.200/ were robbed from them under fear of injury and therefore, the offence of extortion committed by the accused persons comes within the definition of robbery discussed above as the accused persons at the time of committing extortions in presence of PW1 and PW 2 put them in fear and extorted the mobile and money from them. The ingredients of offence u/s 390 IPC are therefore, fulfilled and there is no impediment in convicting the accused persons u/s 392/34 IPC as the offence is committed in furtherance of their common intention in robbing PW 1 and PW 2.
35. The ultimate result of this trial is that the accused persons are convicted for offence u/s 392/34 IPC.
Announced in the open court (Samar Vishal)
on 20 July, 2011
th
Metropolitan Magistrate05,
South East, New Delhi
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