Delhi District Court
State vs . Surender @ Bunty on 2 January, 2013
IN THE COURT OF SH. GAGANDEEP SINGH
METROPOLITAN MAGISTRATE, DELHI
FIR NO: 234/2011
U/S: 392/394/411 IPC
P.S: TIMAR PUR
STATE VS. SURENDER @ BUNTY
:JUDGMENT:
Sl. No. of the case 222/01
Date of commission of offence 25.10.2011
Name of the complainant Sh Radhay Shyam
S/o Sh Avdesh Rai
R/o Village Murtjapur
PS Jandaha,
Distt. Vaishali Bihar.
Name, parentage and address Surender @ Bunty
of the accused. S/o Sh Tej Pal
R/o Jhuggi No. 1879,
Sanjay Basti,
Timar Pur, Delhi.
Offence complained off U/s 392/394/411 IPC.
STATE VS. SURENDER @ BANTY 1/21
FIR NO. 234/2011
Plea of accused Pleaded not guilty
Final order Convicted
Date of order 02.01.2013
Date of final arguments heard 02.01.2013
BRIEF FACTS AND REASONS FOR DECISION :
1. The facts in brief are that on 25.10.2011 at about 04:30 pm in between of MS flats No 212 to 125 on staircase Timar Pur, within the jurisdiction of Police Station Timar Pur,b the accused had voluntarily assaulted the complainant Radhay Shyam while committing robbery of his mobile phone. Thereafter on 03.11.2011 the accused was arrested and he got recovered the aforesaid mobile phone belonging to complainant Radhay Shyam which was dishonestly received or retained. Thereafter the accused Surender @ Bunty was chargesheeted U/s 392/411 of IPC.
2. That after completion of investigation the challan against the accused was filed on 24.12.2011 and accused was summoned. The charge u/s 392/394/411 IPC was framed against the accused on 17.01.2012 to which he pleaded not guilty and claimed trial.
STATE VS. SURENDER @ BANTY 2/21 FIR NO. 234/2011
3. The prosecution was able to examine 11 witnesses for proving their case.
4. The PW1 Ct. Desh Raj deposed that on 25.10.2011 at about 4.30 pm vide DD No. 28A information was received that H. No. 121, Multi Storey Building that one person has been stabbed and his mobile was taken from him. Thereafter he alongwith ASI Jagdish went to the spot. On reaching there they found out that the injured person was taken to the hospital by PCR persons and no eye witness was found present at the spot. IO went towards the Trauma Center there the injured was admitted and he was left at the spot. At about 6.00 pm IO ASI Jagdish came back at the spot. He prepared the rukka and handed over the same to him to get case registered at the PS Timar Pur. IO recorded his statement.
5. The PW2 Radhay Shyam is the complainant/victim in the present case. He deposed that on 25.10.2011 he was working as labourer for the construction work at M S Flats No. 121 and 125 in Timar Pur and was watering the walls. On that day at about 4.30 pm when he was doing his work at the aforesaid address the accused caught hold of him. He showed him the knife and pierced him with the knife on the back side and told him to give him all the money. He forcefully took away the mobile phone from pant right pocket and after that he ran away from the spot. He told about this incident to his fellow labourers, out of which Surender called the police. After some time police reached at the spot and took him to the hospital. IO recorded STATE VS. SURENDER @ BANTY 3/21 FIR NO. 234/2011 his complaint at the hospital and the same is Ex. PW2/A. IO prepared the site plan at his instance. The mobile phone which was taken by the accused was of two SIMs out of which one was of Vodafone company number 7549012788 and other phone number was of Airtel Company. He identified the mobile phone in the court Ex P1.
6. The PW3 Dalel deposed that he works as a Baildar for Chandervir Singh at Timar Pur with other labourers. He had given Radhay Shyam who works with him one SIM number. This SIM number belonged to his another friend namely Salim on whose ID this number was issued. IO recorded his statement.
7. The PW4 Ct. Kamal Kant deposed that on 03.11.2011 he was on patrolling duty alongwith ASI Jagdish in the area of New Market Timar Pur. At about 07:00 pm, a secret information was received by the IO that the accused in the present case can be apprehended alongwith the mobile phone near his jhuggi. Thereupon IO requested 4/5 public person to join the public person but none agreed. Thereafter he alongwith IO left for the jhuggi of accused at Sanjay Basti Timar Pur. Thereupon they entered in side the jhuggi there the accused was present and he was apprehended. The accused was interrogated and he disclosed that he has hidden the mobile phone beneath the taat in the jhuggi. The mobile phone was thereafter recovered from the place disclosed. The accused was thereafter arrested. The disclosure statement of accused is Ex PW 4/A. The seizure memo of mobile phone is Ex PW 4/B. The arrest STATE VS. SURENDER @ BANTY 4/21 FIR NO. 234/2011 memo and personal search memo are Ex PW 4/C and Ex PW 4/D. His statement was recorded by the IO.
8. The PW5 Kanta Yadav is the record clerk from STC hospital. She proved the MLC bearing No. 141445 of injured Radhay Shyam prepared by Dr. Kamal. The MLC is Ex PW 5/A.
9. The PW6 HC Pankaj is the duty officer. He deposed that on 25.10.2011 he received a rukka and on the basis of which he registered FIR, which is Ex PW 6/A.
10.The PW7 Kanta Yadav is the record clerk from STC hospital. She proved the MLC bearing No. 141445 of patient Shayam prepared by Dr. Hem Prakash. The MLC is Ex PW 7/A.
11.The PW8 ASI Jagdish Singh is the investigating Officer. He deposed that on 25.10.2011 on receipt of DD 28 A regarding use of knife. At this he alongwith Ct. Desh Raj went to the spot i.e M. S. Flats, Flats no. 121 and 125, Timar Pur, Delhi. On reaching there, they came to know that the PCR person had already taken the injured to the hospital. There was no eye witnesses at the spot. Ct. Desh Raj remained at the spot and he went to the Trauma Center. At the trauma center he met with injured Radhay Shyam and took in to possession his MLC. The injured was fit for statement and he recorded his statement and prepared rukka on it. The same is Ex PW 8/A. Thereafter he alongwith injured came back at the spot. He handed over the same STATE VS. SURENDER @ BANTY 5/21 FIR NO. 234/2011 to Ct. Desh Raj for registration of FIR. Meanwhile he prepared the site plan at the instance of injured/complainant, the same is Ex PW 8/B. Thereafter he further investigated regarding the case and recorded statements of complainant's companions. The criminal dossiers of habitual criminals were shown to the complainant and he identified the accused. Thereafter they raided the house of accused Surender @ Bunti where he has found to be absconding. Thereafter on 03.11.2011 the secret information was received that accused is present in his jhuggi. Thereafter he alongwith Ct Kamal Kant went to the jhuggi of accused from, where he was arrested. The disclosure statement of accused Surender @ Banti is Ex PW 4/A. The pointing out memo of accused Surender is Ex PW 8/C. The seizure memo of the recovery of mobile phone is Ex PW 4/. The accused was arrested vide memo Ex PW 4/C. The personal search Ex PW 4/D. On 04.11.2011, the accused produced before the Ld Link MM for TIP proceedings. Thereafter the TIP proceeding was got conducted by Ld. Link MM. The result on the MLC of complainant was taken which came out to be grevious. Thereafter challan and prepared and sent to the court through proper channel.
12.The PW9 Ms Aparna Swami Ld. MM deposed that on 04.11.2011 an application for TIP of accused Surender @ Bunty was marked to her by Ld Link MM. The accused was produced by the IO ASI Jagdish Singh in muffled face. The accused refused to take part in the TIP despite the warning being given to him that his refusal may result in adverse inference drawn against him. The TIP proceedings STATE VS. SURENDER @ BANTY 6/21 FIR NO. 234/2011 conducted by her are Ex PW 9/A. The request for TIP proceedings and the order for the same is Ex PW 9/B through which the application was marked to her.
13.The PW10 (inadvertently numbered as PW11) Manish Kumar deposed that on 08.02.2011 he sold one mobile phone G5D18 to one person namely Radhay Shyam of Murtjapur Jidaha vide bill No. 654 for Rs 1600/. The bill No 654 is Ex PW 11/A.
14.The PW11 Surender deposed that on 25.10.2011 he had gone outside from the site for bringing eatables things. He returned back at about 05:00 pm, he noticed that the fellow worker namely Radhay Shyam was found lying in injured condition on the stairs out side the site. Thereafter he called the police by dialing from number 9873994384. After 1015 minutes the police officials reached at the spot. They took the injured at the hospital. He was interrogated as to whether he had seen the assailant to which he started that he have not seen. His statement was recorded.
15.That on 06.09.2012 the prosecution evidence was closed, as all the material witnesses in the list of prosecution witnesses had already been examined. Thereafter on 29.09.2012 the statement of the accused was recorded u/s 313 Cr.PC and he denied all the allegations levelled against him. He preferred not to lead defence evidence.
STATE VS. SURENDER @ BANTY 7/21 FIR NO. 234/2011
16.I have heard the Ld. APP for the State, Sh Hari Kishan Ld. counsel for accused and gone through the record.
17.The charge which has been framed against both the accused is that of committing robbery of mobile phone from complainant Radhay Shyam by causing hurt. That for proving their case against the accused Surender @ Bunty, the prosecution was required to prove the following ingredients of the offence punishable u/s 392/394 of IPC :
(i) theft of movable property
(ii) in order to committing of the theft or carrying away the property obtained by theft
(iii) voluntarily causes or attempts to cause death, hurt or wrongful restrained or fear thereto
18. The star witness in the present case is the complainant/victim PW2 Radhay Shyam who has been examined as PW2. On basis of his complaint the present FIR has been registered. He was working a labourer at the spot on the day of incident. He has deposed on the lines of his earlier statement Ex PW2/A. He was extensively cross examined by Ld counsel for the accused. He withstood the test of cross examination as no worthwhile contradiction has been brought about nor his credibility has been impeached. He categorically described the manner of incident and the manner in which he was taken to the hospital. He also identified the case property i.e stolen mobile in the court which was subsequently recovered from the STATE VS. SURENDER @ BANTY 8/21 FIR NO. 234/2011 accused. He also duly identified the accused in the court. He also deposed that he was injured by the accused while he took away his mobile.
19. It was argued by the Ld counsel for the accused that the version of PW2 can not be believed as no public persons gathered at the spot despite it being a crowed area. He further argued that in the cross examination PW2 stated that he did not make any hue and cry at the time of incident which makes his conduct to be suspicious. The arguments raised by Ld counsel for the accused can not be believed as PW2 was working as labourer at Govt flats. The area where the incident occurred is not a crowed market or village area where people frequently would pass through. It is government residential area where during the office hours the majority of people are not present. The second argument regarding no noise being raised by PW2 was also a natural conduct of individual who is shown the knife for robbery. It is not possible for a victim to raise the voice at the time when the robbery is being committed as the prime objective of the victim would be to save his life. Therefore in these circumstances the conduct of PW2 is not raising the voice was natural and does not effect his credibility.
20. The testimony of PW2 is also duly corroborated by PW12 who is the fellow worker. The PW12 noticed PW2 to be lying in the injured condition on the stairs immediately after the incident and took him to hospital. The PW12 was never cross examined by the accused.
STATE VS. SURENDER @ BANTY 9/21 FIR NO. 234/2011 Similarly the MLC of PW2 Ex PW 7/A also corroborate his version regarding the incident. The nature of injury, place of injury and weapon described in it corroborated the theory of prosecution regarding the manner in which the incident occurred. The testimony of injured witness has to be give due importance as his presence at the spot is not doubtful and it is unlikely for him to implicate someone else. The Judgment of Hon'ble Supreme Court in State of UP Vs Naresh 2011 AD (SC) 20 is relevant and the relevant extract is reproduced here under : "The evidence of an injured witness must be given due weightage being a stamped witness, thus his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded as special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.
STATE VS. SURENDER @ BANTY 10/21 FIR NO. 234/2011 Thus........................................"
21. It was argued by the Ld counsel for the accused that the prosecution has failed to produce the contractor who had employed PW2 which leaves a gap in the story of the prosecution. The prosecution in the present case examined one witness namely PW3 who deposed that he was working as Beldar for the contractor and he had given the mobile number to the complainant PW2. No question was put to him in his cross examination as to his work place and he not being the Beldar. Therefore the argument of the Ld counsel does not survive that PW2 was never employed as worker at the spot.
22. The other piece of incriminating evidence against the accused is recovery of stolen mobile in pursuance of his disclosure statement. The material witnesses regarding the recovery are PW8 and PW4. It was argued by the Ld counsel for the accused that both of them are police officials and hence the recovery of stolen mobile from the possession of accused can not be believed. The issue of non examination of independent witness and reliance upon the testimonies of police witnesses was considered by Hon'ble Supreme Court in NCT of Delhi Vs Sunil 2001 (1) SCC 652. The Hon'ble Supreme Court observed that the testimonies of police officials can not be treated as tainted and unreliable and on the other hand the burden is upon the accused to show that the evidence of police officials is either unreliable or unsafe to be acted upon. Thus in the present case the testimonies of recovery witnesses being the police STATE VS. SURENDER @ BANTY 11/21 FIR NO. 234/2011 officials has to be judged on the above noted principles. Their credibility has to be judged as normal witnesses. Their cross examination in the present case by the accused has not resulted in denting their credibility as to the recovery of stolen mobile from the spot disclosed by the accused in their disclosure statement.
23.The section 114 of Indian Evidence Act raises a presumption that when a person is found in possession of stolen goods soon after the theft is either thief or possessor of stolen articles. In the present case in hand, the PW4 and PW8 got recovered the stolen article i.e mobile on 03.11.2011 from the possession of accused. The theft/robbery in the present case took place on 25.10.2011. Therefore the period of about 08 days can not be termed as too long keeping in view the nature of the stolen articles as not to come within the presumption raised u/s 114 of Indian Evidence Act. The article in the present case was easily transportable and thus the presumption under section 114 of Indian Evidence Act has to be raised in the present case and the accused being responsible for the commission of robbery of stolen article. The said issue came up before Hon'ble Supreme Court in case titled Satnarain Sao v. State of Bihar, (SC) 1972 A.I.R. (SC) 1561 :
1973(1) SCR 207 : 1972 Cri.L.J. 1048 : 1972(3) S.C.C. 881 and it was observed as under : "Section 114 provides that the court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of STATE VS. SURENDER @ BANTY 12/21 FIR NO. 234/2011 natural events, human conduct and public and private business, in their relation to facts of the particular case. Illustration (a) is as follows : that a person who is possession of stolen property soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession. In Otto George Gfeller v. The King, AIR 1943 PC 211 the law as enunciated in Rex v. Abramvitch, (1914) 84 LJ KB 396 was accepted as representing the correct statement on the subject of the presumption to be drawn in such cases.
That was in the following terms. Upon the prosecution establishing that the accused were in possession of goods recently stolen they may in the absence of any explanation by the accused of the way in which the goods came into their possession which might reasonably be true find them guilty, but that if an explanation were given which the jury think might reasonably be true, and which is consistent with innocence although they were not convinced of its STATE VS. SURENDER @ BANTY 13/21 FIR NO. 234/2011 truth the prisoners were entitled to be acquitted inasmuch as the prosecution would have failed to discharge the duty cast upon it of satisfying the jury beyond reasonable doubt of the guilty of the accused."
24.The accused in the present matter has failed to give any explanation regarding the possession of stolen article being found in his possession while in his statement under section 313 CrPC. Thus the presumption under section 114 of Evidence Act would operate against him. He also failed to explain as how the witnesses were having enmity against him as was claimed by him in his statement as no suggestion was ever put to PW2.
25. The identity of the accused being the perpetrator of the crime has also been duly proved by the prosecution. The PW2 the complainant and victim the the present case duly identified the accused as the person responsible for the incident. His identification as can not be doubted as the incident occurred during day time at about 04:30 pm when there would have been sufficient natural light for identification. The accused in the present case also refused to participate in the TIP held by PW9 the Ld Link MM. He refused to join the proceedings on the ground that the complainant has already seen him in the PS. But no such question was ever put to PW2 or the PW8 the IO. Therefore the ground of refusal to join the TIP cannot be accepted and a adverse STATE VS. SURENDER @ BANTY 14/21 FIR NO. 234/2011 inference has to be drawn against the accused for his refusal. The accused thus also can not claim any benefit of doubt with respect to 1st time identification done by complainant in the court after the incident. Therefore in my opinion the identification of the accused has been duly proved by the prosecution.
26.In view of above said discussion, I am of considered view that the prosecution has been able to prove their case successfully beyond reasonable doubt against the accused Surender @ Bunty u/s 392/394 IPC. In view of the above said reasons, accused Surender @ Bunty is convicted for the offence punishable u/s 392/394 IPC. Arguments on sentence to be heard separately.
(Announced in the open court)
Dated: 02.01.2013 (GAGANDEEP SINGH)
MM01/NORTH
TIS HAZARI : DELHI
STATE VS. SURENDER @ BANTY 15/21
FIR NO. 234/2011
CC/FIR No. 234/2011
P.S. TIMAR PUR
STATE VS. SURENDER @ BUNTY
02.01.2013
Present: Ld. APP Sh Manan Munjal for the State.
Accused produced from JC with Ld counsel Sh Hari Kishan. Final arguments heard.
Vide separate judgment, dated of even date the accused has been convicted for the commission of offence punishable u/s 392/394 IPC.
Put up for arguments on the point of sentence on 04.01.2013.
(GAGANDEEP SINGH)
MM01/NORTH DELHI
02.01.2013
STATE VS. SURENDER @ BANTY 16/21
FIR NO. 234/2011
CC/FIR No. 234/2011
P.S. TIMAR PUR
STATE VS. SURENDER @ BUNTY
04.01.2013
Present: Ld. APP Sh Manan Munjal for the State.
Convict produced from JC with Ld counsel Sh Hari Kishan. Part arguments on the point of sentence heard. Let the previous criminal involvement report of the convict Surender @ Bunty be called from SHO concerned for 07.01.2013 at 02:00 pm. (GAGANDEEP SINGH) MM01/NORTH DELHI 04.01.2013 STATE VS. SURENDER @ BANTY 17/21 FIR NO. 234/2011 IN THE COURT OF SH. GAGANDEEP SINGH METROPOLITAN MAGISTRATE, DELHI FIR NO: 234/2011 U/S: 392/394IPC P.S: TIMAR PUR STATE VS. SURENDER @ BUNTY 07.01.2013 ORDER ON SENTENCE Present: Ld. APP for the State.
Convict Surender @ Bunty from JC with Ld Counsel Sh Hari Kishan.
Vide separate judgment, convict Surender @ Bunty has been convicted for the commission of offence punishable u/s 394/394 IPC.
Arguments on the point of sentence heard.
Record perused.
STATE VS. SURENDER @ BANTY 18/21 FIR NO. 234/2011 Ld. APP has argued that accused is liable to be given punishment for having been found guilty for the offence u/s 392/ 394 IPC.
Ld. APP has argued that he is liable to be given maximum punishment for having been found guilty for the offence u/s 392/394 IPC. It has also been argued by the Ld APP that the convict is habitual offender having many cases pending against them pertaining to theft etc. The list of the cases is already on record filed by SHO Concerned.
On the other hand the Ld Counsel for the convict submits that the convict deserves one chance for reformation. The convict has the family obligations. It is also submitted that the Ld. counsel for the convict that after the registration of the present case no other criminal involvement of the convicts has been reported. It is also submitted that the convict is in JC since 04.11.2011 and he may be released on the period of imprisonment already undergone.
I have heard the parties and gone through the record.
The list of previous involvement of convict Surender @ Bunty is perused. The convict is facing trial in two more cases apart from the present case. The manner in which the STATE VS. SURENDER @ BANTY 19/21 FIR NO. 234/2011 offence has been committed by the convict is broad day light by using a weapon against a poor labourer shows his utter disregard for the law. In view of the abovesaid reason, no lenient view can be taken against him and he deserves a deterrent punishment in the present case.
In view of the abovesaid reasons, convict Surender @ Bunty is sentenced to rigorous imprisonment for the period of three years for the offence u/sec 392 IPC. The convicts is sentenced to pay Rs 2,000/ as fine for the offence u/sec 392 IPC. IDSI 10 days.
The convict Surender @ Bunty is also sentenced to rigorous imprisonment for the period of three years for the offence u/sec 394 IPC. The convicts is sentenced to pay Rs 2,000/each as fine for the offence u/sec 394 IPC. IDSI 10 days. Both the sentences shall run concurrently.
The convict may also be given benefit in terms of section 428 CrPC for the period already spent by him in the custody in the present case.
Ordered accordingly.
File be consigned to Record Room.
(Announced in the open court)
Dated: 07.01.2013 (GAGANDEEP SINGH)
MM:NORTH(01)
TIS HAZARI DELHI
STATE VS. SURENDER @ BANTY 20/21
FIR NO. 234/2011
CC/FIR No. 234/2011
P.S. TIMAR PUR
STATE VS. SURENDER @ BUNTY
07.01.2013
Present: Ld. APP Sh. Manan Munjal for the State.
Convict Surender @ Bunty produced from JC with Ld counsel Sh Hari Kishan.
Vide my separate detailed judgment dated 02.01.2013 convict Surender @ Bunty has already been convicted for the commission of offence punishable u/s 392/394 IPC.
The convict has been sentenced in terms of the separate order on sentence under section 392/394 IPC.
Fine not paid by the convict.
The custody warrant be prepared accordingly. File be consigned to record room.
(GAGANDEEP SINGH)
MM01/NORTH DELHI
07.01.2013
STATE VS. SURENDER @ BANTY 21/21
FIR NO. 234/2011