Delhi District Court
State vs . Prakash Etc. on 6 May, 2014
S/V Prakash etc.
IN THE COURT OF SH. AMIT BANSAL, ADDITIONAL SESSION JUDGE04
(NORTHWEST DISTRICT) ROHINI COURTS, DELHI
IN THE MATTER OF :
S.C. No. 74/01
FIR No. 215/08
U/S 395/397/452/412/120B/34 IPC
P.S. Saraswati Vihar
State Vs. Prakash etc.
STATE VERSUS 1. Prakash S/O Sh.Kanwal Lal
R/O Village Kasim Pur,PS Dado,
Distt. Aligarh, UP.
2. Sher Singh S/O Sh. Banke Lal,
R/O Village Kasim Pur,PS Dado,
Distt. Aligarh, UP.
3. Ram Khiladi S/O Sh. Jagdish,
R/O Village Gulab Pur, P S Puli,
Distt. Aligarh, UP.
4. Mehtab S/O Sh. Tej Pal,
R/O Village Kasim Pur,PS Dado,
Distt. Aligarh, UP.(declared Juvenile
by JJB on 28.05.12.)
5. Chotte Lal S/O Sh. Meelal,
R/O Village Bil Ram, P S Dolana,
Distt. Kashi Ram Nagar ( discharged
FIR No. 215/08 P.S. Saraswati Vihar page 1 of 33
S/V Prakash etc.
vide order dated 17.12.08)
6. Raj Kumar S/O Sh. Muni Lal
R/O Village Bil Ram, PS Dolana,
Distt. Kashi Ram Nagar, UP.
( discharged vide order dated
17.12.08)
7. Surender @ Sheelu S/O Sh Ram
Diya ( discharged vide order dated
01.12.10)
8. Banwari Thekedar S/O Sh. Gabur
Singh R/O Village Nangla Babool , P S
Dado , Distt. Alirgarh, U P.
( Proclaimed Offender vide order
dated 14.05.09)
Date of receipt of file in this Court: 24.01.2014
Date when arguments were heard: 23.04.2014
Date of judgment : 06.05.2014
JUDGMENT
1. The accused persons have been charge sheeted by P S Keshav Puram for commission of an offences U/S 395/397/452/412/120B/34 IPC.
2. Story of the prosecution in brief coming out from the testimony of PW1 Rahul Baid ( complainant ) is that on 28.04.08 he FIR No. 215/08 P.S. Saraswati Vihar page 2 of 33 S/V Prakash etc. alongwith his mother Smt. Kaushalya Devi ( PW8) were present in their house at C18, Second floor, Maharana Partap Enclave, Pitam Pura, Delhi and at about 1.15 p.m. the door bell of their house rang. At that time PW1 and PW8 were present in a room in the said house, PW8 opened the door and after opening it started shouting. PW1 came out of the room and saw that four persons had entered their house out of whom one was in muffled face having a knife. Out of the remaining three persons, two persons were having knife and one was having country made pistol (katta). The person who was in muffled face caught hold of PW 8 and one other person threatened that in case an alarm was raised, they will be killed. The said persons thereafter inquired about the cash in the house, started roaming here and there in the house and after sometime they tied both PW 1 and PW 8 with separate saris and locked them up in the bathroom. After sometime PW 1 and PW 8 felt that those persons had left and thereafter PW 1 came out from the bathroom through a ventilator and opened the door of the bathroom from which PW 8 came out. Upon checking it was found that all the almirahs in the house were opened and the goods were lying scattered here and there. PW 1 informed the police, the police reached at the spot and the statement of PW 1 was recorded by the police. The police searched the house and one knife allegedly used in the commission of the case crime was recovered from one of the room. The two saris used to tie PW 1 and PW 8 were also seized by the police FIR No. 215/08 P.S. Saraswati Vihar page 3 of 33 S/V Prakash etc. from the house. On the basis of the statement of PW 1 (Ex.PW1/A), the case FIR was registered and the site plan was prepared at the instance of PW 1. PW 1 visited the police station on the next day i.e. 29.04.2008 and handed over the list of entire robbed articles (Ex.PW1/F) to the police. The pointing out memos of the place of occurrence was prepared at the instance of the accused persons. Accused Mehtab (since juvenile) made a disclosure statement (Ex.PW4/C) and he lead the police to his house at H.No.524, Sharda Enclave where he got recovered five silver coins from a suitcase in a room. From the formal search of the accused Ram Khiladi after his arrest, one mobile phone make Nokia 6610, one gold coin and Rs. 7000/ were recovered. From the formal search of accused Sher Singh after his arrest, two gold ginnies which were kept in a small plastic box and cash amount of Rs. 7000/ were recovered. The said gold coin, gold ginnies and the mobile phone Nokia 6610 were the robbed case property of the present case. Accused Prakash led the police team to his house at H.No.C336, Aman Vihar, Sultan Puri,Delhi and got recovered one wrist watch make 'Citizen' and two silver coins from a cloth bag which was kept in a shelf in his house. The said wrist watch and two silver coins are also the case property of the present case. After completion of the investigation, charge sheet was filed against the accused persons.
3. Copy of charge sheet was supplied to the accused persons and after complying with the provision of Sec. 207 Cr.P.C., the case was FIR No. 215/08 P.S. Saraswati Vihar page 4 of 33 S/V Prakash etc. committed to the Court of Sessions as the offences u/s 395/397/412 IPC are exclusively triable by the Sessions Court.
4. The accused Sher Singh and Ram Khiladi are facing trial on the allegations of the prosecution that on 28.04.08 at about 1.15p.m. at nd H.No. C18, 2 Floor, Maharana Partap Enclave, Pitampura, Delhi, the accused Ram Khiladi was armed with and used deadly weapon i.e. country made pistol and accused Sher Singh alongwith Mehtab (since juvenile ) were armed with and used deadly weapon i.e. knife at the time of committing robbery and thereby committed an offence punishable U/s 397 IPC. The accused Prakash, Sher Singh and Ram Khiladi are further facing trial on the allegations of the prosecution that on or before 28.04.2008 they alongwith coaccused Mehtab (since juvenile) entered into criminal conspiracy to rob the complainant Sh. Rahul Baid and Smt. Kaushlya Devi and thereby they all committed an offence punishable U/s 120B IPC. Accused Prakash, Sher Singh and Ram Khiladi are further facing trial on the allegations of the prosecution that on 28.4.08 at about nd 1.15 p.m. at H.No.C18, 2 Floor, Maharana Pratap Enclave, Pitampura, Delhi they alongwith their coaccused Mehtab (since juvenile) in pursuance of the aforesaid criminal conspiracy, robbed the complainant Sh. Rahul Baid and Smt. Kaushlya Devi of a gold chain, two mobile phones, currency notes of Rs. 30,000/ and other articles mentioned in the list of robbed articles (EX.PW1/F) and thereby committed an offence FIR No. 215/08 P.S. Saraswati Vihar page 5 of 33 S/V Prakash etc. punishable U/s 392 r/w Sec. 120B IPC. The charge was framed against the accused persons on 17.12.08 by the Ld. Predecessor of this Court to which they pleaded not guilty and claimed trial. Thereafter the case was fixed for prosecution evidence.
5. As mentioned above, accused Mehtab was declared a juvenile in conflict with law on 28.05.2012 whereas the accused Chotte Lal and Raj Kumar were discharged in this case on 17.12.08. The accused Surender @ Sheelu was also discharged in this case on 1.12.2010.The accused Banwari Thekedar, against whom a supplementary charge sheet was filed, was declared a proclaimed offender vide order dt. 14.05.2009 by the Ld. MM, Rohini, Delhi.
6. The prosecution in order to bring home the guilt of the accused has examined total 20 witnesses in support of its case and thereafter the prosecution evidence was closed.
7. The statements of accused Prakash, Sher Singh and Ram Khiladi U/s 313 Cr.P.C. were recorded on 9.05.2013 in which they denied all the material incriminating circumstances appearing in the prosecution evidence against them and stated that they were innocent and were falsely implicated in this case after they were lifted from their house. They also stated that their signatures were obtained forcibly by the police on some blank papers and printed proformas which were later on converted into various memos against them. Accused Prakash preferred to lead FIR No. 215/08 P.S. Saraswati Vihar page 6 of 33 S/V Prakash etc. defence evidence whereas accused Sher Singh and Ram Khiladi did not prefer to lead any defence evidence in their respective statements U/s 313 Cr.P.C.
8. As discussed above, the accused Prakash preferred to lead defence evidence in his statement U/s 313 Cr.P.C., however, he has not led any defence evidence in support of his case and the defence evidence was closed vide order dt. 7.8.2013. It is thus evident that no accused has led any defence evidence in support of his case.
9. I have heard the final arguments of Ld. Addl. P.P.for State, of Ld.Defence Counsel and have perused the record including the written submissions.
10. The Ld. Addl. P.P. for State argued that testimony of PW 1 and PW 8 are convincing and corroborate each other and they are trustworthy witnesses. He argued that the accused persons were correctly identified by the witnesses in the Court and recovery of robbed articles has been effected from all the three accused persons facing trial in the case. He argued that the accused persons entered into a criminal conspiracy to rob the complainant (PW1 ) and his mother (PW8) and were also armed and used deadly weapon at the time of commission of the offence and thus have committed the offences U/s 392/397/120B IPC. He also argued that accused Sher Singh refused to participate in judicial TIP proceedings and the complainant (PW1) correctly identified the recovered robbed articles FIR No. 215/08 P.S. Saraswati Vihar page 7 of 33 S/V Prakash etc. during the judicial TIP proceedings of the case property. He argued that the prosecution has proved its case beyond reasonable doubt against the accused persons and prayed that all the three accused persons be convicted U/s 392/397/120B IPC.
11. Ld.Counsel for the accused persons have argued that the offence punishable U/s 397 IPC is not made out in this case in the absence of recovery of any country made pistol or knife from or at the instance of any of the accused person. They argued that the prosecution must produce convincing evidence that the knife used by the accused was a deadly weapon and for that purpose its design and method of use are very important. They argued that as the weapon which the accused persons are alleged to have used in the incident had not been recovered during investigation, therefore, Section 397 IPC would not be attracted in this case. They also referred to the following judgments:
1. The judgment of Hon'ble Delhi High Court in case titled as Gulab @ Bablu Vs.The State (NCT of Delhi) 2012(3) JCC 2213.
2. The judgment of Hon'ble Delhi High Court in case titled as Rakesh Kumar Vs. The State of NCT of Delhi 2005(1) JCC 334.
3. The judgment of Hon'ble Delhi High Court in case titled as Mohd. Gulal @ Fazal Karil Vs. State (Delhi)2010 (3) JCC 1724.
4. The judgment of Hon'ble Delhi High Court in case titled as Balik Ram Vs. The State 1983 CRI.L.J.1438.
FIR No. 215/08 P.S. Saraswati Vihar page 8 of 33
S/V Prakash etc.
5.The judgment of Hon'ble Delhi High Court in case titled as Ghanshyam @ Bablu Vs. State 2010(1) JCC240.
6. The judgment of Hon'ble Delhi High Court in case titled Sonu @ Kapil Vs. The State (NCT of Delhi) [Delhi]2010 (1) JCC 3.
7. The judgment of Hon'ble Delhi High Court in case titled as Sonu @ Chhotu Vs. The State of NCT of Delhi 2013(1) Crimes 336 (Del.).
12. As discussed above, the prosecution in support of its case has examined total 20 witnesses.
PW 1 Mr. Rahul Baid is the star witness for the prosecution being the victim and the complainant of the case. The statement of PW 1 as recorded by the police on 28.4.2008 i.e. the date of incident on which the case FIR was registered has been proved as Ex.PW1/A bearing the signatures of PW 1 at point A. PW 1 interalia deposed that the police searched his house and one knife was recovered from one of the room. The sketch of the knife has been proved as Ex.PW1/B bearing signatures of PW 1 at point A. The two saris which were used to tie PW 1 and PW 8 were also seized by the police vide a pullanda whose seizure memo has been proved as Ex.PW1/C bearing signatures of PW 1 at point A. The seizure memo of abovesaid knife has been proved as Ex.PW1/D bearing the signatures of PW 1 at point A. PW 1 deposed that on his pointing out, FIR No. 215/08 P.S. Saraswati Vihar page 9 of 33 S/V Prakash etc. the site plan was prepared which has been proved as Ex.PW1/E. PW 1 deposed that on the next day i.e. on 29.4.2008 he went to the PS and handed over the list of the entire robbed articles to the police which has been proved as Ex.PW1/F bearing his signatures at point A. PW 1 further deposed that on 13.5.2008, the police brought the accused Prakash and on his pointing out the place of occurrence memo was prepared which has been proved as Ex.PW1/G bearing his signatures at point A and that the accused Prakash also disclosed about the involvement of accused Mehtab, Ram Khiladi, Sher Singh and Sheelu in the present case. He deposed that on 20.05.2008 accused Sher Singh and Ram Khiladi were brought to his house by the police and at their instance pointing out memo was prepared which is Ex.PW1/H bearing his signatures at point A. PW 1 also correctly identified the accused Prakash, Ram Khiladi and Sher Singh as the persons who entered their house on the day of incident and robbed them and correctly identified them before the Court. He deposed that on 20.6.2008 the accused Mehtab (since juvenile) was brought to his house by the police, he identified the said accused as the person who along with other persons entered their house on the day of incident and robbed them and deposed that on the pointing out of Mehtab the place of occurrence was prepared which has been proved as Ex.PW1/J bearing signatures of PW 1 at point A. He deposed that on 26.7.2008 he came to the Rohini Court for identification of the case property before the Ld. MM FIR No. 215/08 P.S. Saraswati Vihar page 10 of 33 S/V Prakash etc. where he identified one mobile phone make Nokia 6610, two gold coins (ginnies) and one wrist watch and his supplementary statements were also recorded by the IO. He deposed that on 5.5.2009 he was called at Rohini Court to identify the remaining case properties i.e. 7 silver coins and one gold coin and he identified them which were robbed on 28.4.2008 from his house. The TIP proceedings of the case properties has been proved as Ex.PW1/K. The above said knife which was left by the accused persons at the spot after commission of the offence has been proved as Ex.P1. The above said two saris used to tie PW 1 and PW 8 have been proved as Ex.P2 and Ex.P3. Mobile phone Nokia 6610 which was identified by the PW 1 during TIP proceedings on 26.7.2008 and which was earlier robbed by the accused persons on the date of incident has been proved as Ex.P4. The two gold coins engraved 1890 and 1912 which were robbed on the date of incident and were correctly identified by PW 1 during TIP proceedings on 26.7.2008 have been collectively proved as Ex.P5. The wrist watch make 'Citizen' as robbed on the date of incident and correctly identified by the PW 1 in TIP proceedings on 26.7.08 has been proved as Ex.P6. The two silver coins which were robbed on the date of incident and correctly identified by the PW 1 in TIP proceedings on 5.5.09 have collectively been proved as Ex.P7. The five silver coins which were robbed on the date of incident and correctly identified by the PW 1 in TIP proceedings on 5.5.09 have collectively FIR No. 215/08 P.S. Saraswati Vihar page 11 of 33 S/V Prakash etc. been proved as Ex.P8. The gold coin which was robbed on the date of incident and correctly identified by the PW 1 in TIP proceedings on 5.5.09 have collectively been proved as Ex.P9.
PW 2 Constable Lokesh Kumar deposed that on 28.4.2008 he upon receiving the DD no.42B alongwith IO ASI Om Prakash (PW7) nd reached at C18,2 Floor, Maharana Pratap Enclave, Pitampura, Delhi where they found PW 1 and PW 8 and they saw that the household articles were scattered and one knife was found lying in the room. He deposed that PW 1 told them that the accused persons had left the knife after commission of offence. He deposed that IO took the knife, same was measured, total length of knife was 30 cm. ,blade 17.5 cm., handle 12.5cm., and the width of the blade was 2.5 cm. He interalia deposed that IO prepared rukka on the basis of the statement of the complainant and handed over to him for registration of the case, he went to PS, got the case registered, came back at the spot with the copy of FIR and original rukka and the same were handed over to the IO. PW 2 deposed that the abovesaid knife was a kitchen knife. The said knife has been proved as Ex.P1 and the above said saris have been proved as Ex.P2 and P3. In cross examination, PW 2 interalia admitted that the recovered knife was easily available in the market and every household.
PW 3 SI Braham Prakash was working as a Duty Officer at PS Saraswati Vihar on 28.4.2008 between 5 p.m. to 1 a.m. and deposed that FIR No. 215/08 P.S. Saraswati Vihar page 12 of 33 S/V Prakash etc. on that day PW 2 brought a rukka sent by PW 7 on the basis of which the computerized FIR of the present case was registered. Copy of FIR has been proved as Ex.PW3/A and the endorsement on the rukka as made by PW 3 has been proved as Ex.PW3/B. PW 3 deposed that the further investigation was handed over to Inspector Ajay Kumar (PW 19).
PW 4 HC Narender Singh deposed that on 20.06.08 the accused Mehtab ( since juvenile)was taken out from lock up of P S Saraswati Vihar, he led them to Maharana Partap Enclave, Pitam Pura, Delhi and pointed out the place of occurrence and on his pointing out the memo of place of occurrence i.e. EX PW 1/J was prepared. He deposed that on 21.06.08 he again joined the investigation of this case with other police officials where accused Mehtab ( since juvenile) led the police party in the area of P S Dolna, Distt Kashi Rao Nagar, U P where he led them to the house of accused Chottey Lal who was arrested and his disclosure was recorded vide EX PW 4/A and thereafter accused Chottey Lal led them to the house of Raj Kumar who was also arrested and his statement was recorded vide EX PW 4/D. It is pertinent to note that accused Chottey Lal and Raj Kumar have already been discharged in this case vide order dated 17.12.08. PW4 further deposed that on 22.06.08 he again joined the investigation with IO Inspector Ajay Kumar ( PW19) and accused Mehtab ( since juvenile) made his fresh disclosure statement proved as EX PW 4/C. He deposed that thereafter he alongwith FIR No. 215/08 P.S. Saraswati Vihar page 13 of 33 S/V Prakash etc. PW19 and accused Mehtab ( since juvenile) went to Prem NagarIII, where Mehtab led them to house No. 524, Sharda Enclave, where he got recovered five sliver coins from a suitcase in a room which were kept in a pullanda sealed with seal of AK and was taken into possession vide memo EX PW 4/D. The said recovered five silver coins have been proved as EX P8 ( collectively).
PW5 HC Sushil Kumar is a witness regarding the arrest and disclosure statement of accused Mehtab ( since juvenile). The disclosure statement of Mehtab and his arrest memo have been proved as EX PW 5/A and EX PW 5/B respectively.
PW6 Ct. Dharmender deposed to the effect that on 20.05.08 , while in police custody the accused Ram Khiladi and Sher Singh pointed out the place of occurrence upon which the memo of place of occurrence i.e. EX PW 1/H was prepared.
PW7 SI Om Prakash has deposed that on 28.04.08 he upon receiving No. 42 B dated 28.04.08 ( EX PW 7/A) reached the spot of occurrence with PW2 Ct. Lokesh where PW1 and PW8 met them and there was a huge gathering of public persons also. The rukka prepared by PW7 has been proved as EX PW 7/B which was handed over to PW2 for registration of FIR. PW2 went to the PS, got the case FIR registered and came back at the spot with IO Inspector Ajay Kumar ( PW19) who was entrusted further investigation of the case and at the spot PW7 FIR No. 215/08 P.S. Saraswati Vihar page 14 of 33 S/V Prakash etc. handed over the case property, sketch and seizure memos to PW19. He has deposed on the lines of PW2. The knife which was recovered at the spot and the two saris which were used to tie PW1 and PW8 which were found lying in the bathroom at the place of occurrence have been proved as EX P1, EX P2 and EX P3 respectively.
PW8 Smt. Kaushalya alongwith PW1 is one of the victim of the case. She has deposed on the lines of testimony of PW1. She has also identified the case property correctly in the court on the lines of testimony of PW1.
PW9 Ct. Narender Kumar deposed to the effect that on 20.05.08 the accused Ram Khiladi and Sher Singh, while in police custody, led them to H.No. C18, Maharana Partap Enclave, at second floor and pointed out the said house from where they had committed robbery and the pointing out memo in this regard as prepared by PW19 has been proved as EX PW 1/H. PW10 HC Santosh Yadav has deposed to the effect that on 10.05.08 he was posted as Duty Officer at P S Saraswati Vihar and at about 12.10 p.m. he received a telephone call from SI Sharad Kohli ( PW11) from Special Cell regarding arrest of Sher Singh, Ram Khiladi and Prakash U/S 41.1 (d) CrPC vide DD No. 6 dated 10.05.08 who were wanted in the present case. PW10 recorded DD No.21 A dated 10.05.08 in this regard and attested copy of the same has been FIR No. 215/08 P.S. Saraswati Vihar page 15 of 33 S/V Prakash etc. proved as EX PW 10/A. PW11 SI Sharad Kohli is a material witness for the prosecution who deposed to the effect that on 09.05.08 he received a secret information, which was reduced into writing vide DD No.17 ( EX PW 11/A), about accused Ram Khiladi and Sher Singh who had committed robbery in the present case and thereafter the police raiding party at about 7.05 p.m. arrested the said two accused persons near the gate of Jhilwala Park near M2K Cinema Hall, Rani Bagh, Delhi. He deposed that from the formal search of the accused Ram Khiladi one mobile phone make NOKIA 6610, one gold coin and cash amount of Rs.7,000/ were recovered and from the formal search of accused Sher Singh two gold ginnies kept in a small plastic box ( dibbi) and cash amount of Rs.7,000/ were recovered. The recovered cash and gold coin from accused Ram Khiladi were taken into possession vide memo EX PW 11/B. The recovered cash amount and gold ginnies from accused Sher Singh were taken into possession vide memo EX PW 11/C. The arrest memos of accused Ram Khiladi and accused Sher Singh have been proved as EX PW 11/D and EX PW 11/E respectively and their personal search memos have been proved as EX PW 11/F and EX PW 11/G respectively. The disclosure statement of accused Ram Khiladi and that of accused Sher Singh have been proved as EX PW 11/H and EX PW 11/J respectively. He further FIR No. 215/08 P.S. Saraswati Vihar page 16 of 33 S/V Prakash etc. deposed that on 10.05.08 at about 7.45 a.m. he also got a secret information regarding accused Parkash having committed the case offence and he reduced the said information into writing vide DD No.3 ( EX PW 11/K) and thereafter a raiding party was prepared which arrested the accused Prakash at about 9.20 a.m. PW11 deposed that upon formal search of accused Prakash nothing objectionable was found. The arrest memo, personal search memo and disclosure statement qua accused Prakash have been proved as EX PW 11/L, PW11/M and PW 11/N respectively. He also identified the case property in the court i.e. NOKIA 6610 as EX P4, gold coin as EX P9 and the plastic dibbi with two gold ginnies as EX P5 ( collectively).
PW12 H C Harvinder has also deposed on the same lines in his examination in chief as PW11.
PW13 Ct. Suresh Chand deposed to the effect that on 28.04.2008 he was posted in Mobile Crime Team ( N/W District) and on that day he alongwith ASI Satpal visited the spot, tried to develop the chance print at the spot, found two chance prints on the steel plate of jewelery box and the same were developed and lifted by him. He deposed that photographer Ct. Mahender ( PW15) also took the photographs of the spot. PW13 prepared the Mobile Crime Team report regarding chance print which has been proved as EX PW 13/A bearing signatures of PW 13 at point A. He deposed that later on FIR No. 215/08 P.S. Saraswati Vihar page 17 of 33 S/V Prakash etc. the chance prints were sent to Finger Print Bureau , Malviya Nagar, New Delhi.
PW14 Ct. Ishwanti deposed that on 28.04.2008 she was posted at P S Saraswati Vihar and was working as DD writer with duty hours from 9 a.m. to 5 p.m. and on that day at about 3.17 p.m. she received a message from wireless operator through intercom regarding the theft at C18, Second floor, Maharana Partap Enclave, which was reduced into writing by her by DD No.42 B dated 28.04.08. She deposed that thereafter the said DD was sent to ASI Om Prakash ( PW7) through Ct. Devender for further action . The said D No.42 B dated 28.04.08 has been proved as EX PW 7/A. PW15 HC Mahender Singh was working in the Mobile Crime Team ( N/W District) as a photographer and on 28.04.08 took 11 photographs of the spot from different angles, however, deposed that only 7 photographs could be developed and he handed over the said 7 photographs to the IO. The said photographs have been proved as EX PW 15/A1 to EX PW 15/A7 and their negatives have been proved as EX PW 15/A8 to EX PW 15/A14.
PW16 Sh. S S Malhotra, Ld. ADJ has deposed to the effect that he conducted Judicial TIP proceedings of accused Sher Singh and Mehtab ( since juvenile) on 19.05.08, however, both of them, despite warning and caution to the effect that an adverse FIR No. 215/08 P.S. Saraswati Vihar page 18 of 33 S/V Prakash etc. inference shall be drawn against them during the trial, refused to take part in the TIP proceedings and their statements were recorded. The TIP proceedings with respect to accused Sher Singh have been proved as EX PW 16/A and the TIP proceedings with respect to accused Mehtab have been proved as EX PW 16/A1. PW16 on 26.07.08 also conducted the TIP of case property vide which the case property was correctly identified by the complainant Rahul. The TIP proceedings with respect to case property have been proved as EX PW 16/F. PW17 H C Narender Kumar was posted as MHC(M) in P S Saraswati Vihar and has deposed regarding the deposit and taking away of the case pullandas and the corresponding entries in register No.19. The different entries in register No. 19 have been proved as EX PW 17/A to EX PW 17/H and from EX PW 17/J to EX PW 17/L. PW17 deposed that as long as the exhibits remained in his possession, he did not tamper with the same and the same remained intact.
PW18 HC Ram Charan was also posted as MHC(M) at P S Saraswati Vihar and the entries made by him in register No.19 have been proved as EX PW 18/A to EX PW 18/D. He deposed to the effect that he handed over three parcels to the IO and received three parcels from the IO.
FIR No. 215/08 P.S. Saraswati Vihar page 19 of 33 S/V Prakash etc. PW19 Inspector Ajay Kumar is a material witness for the prosecution being the IO of the case. He deposed in detail regarding the investigation done by him in this case and has proved the arrest memo of accused Sher Singh, Ram Khiladi and Prakash as EX PW 20/A to EX PW 20/C respectively. The disclosure statements of accused Prakash, Sher Singh and Ram Khiladi have been proved as EX PW 20/D to EX PW 20/F respectively. He further deposed that the accused Prakash was interrogated by him and during his interrogation he made a disclosure statement which has been proved as EX PW 19/A. He deposed that on 13.05.08 he had taken out the accused Parkash from lock up and SI Ved Prakash ( PW20) alongwith Ct. Vijayan also joined the investigation. He deposed that accused Prakash led them to Shardha Vihar and Karan Vihar for search of his co accused persons but co accused could not be traced and thereafter he led them to his house i.e. H.No. C336, Aman Vihar, Sultan Puri, Delhi and got recovered one wrist watch make Citizen and two silver coins from a cloth bag which was kept in a shelf ( Duchhati), the said articles were kept in a cloth pullanda and were sealed with the seal of AK which was taken into possession vide seizure memo EX PW 20/G bearing his signatures at point B. He deposed that the seal after use was handed over to PW20 S I Ved Parkash. He further inter alia deposed that he interrogated the accused Mehtab ( since juvenile) FIR No. 215/08 P.S. Saraswati Vihar page 20 of 33 S/V Prakash etc. and during that course he made supplementary disclosure statement which has been proved as EX PW 4/C and led him and PW4 to his house i.e. H.No. 524, Shardha Enclave, Prem Nagar III, and got recovered five silver coins from a suitcase which were kept in a pullanda sealed with the seal of AK and was taken into possession vide seizure memo EX PW 4/D bearing his signatures at point B. He identified the accused Parkash, Sher Singh and Ram Khiladi as present in the court. He also identified the case property i.e. one wrist watch make Citizen ( EX P6) and two silver coins( EX P7 collectively) as got recovered by accused Parkash. He also identified the five silver coins ( EX P8 collectively) as got recovered by accused Mehtab ( since juvenile).
PW20 SI Ved Parkash is the IO of the case. The arrest memos EX PW 20/A to EX PW 20/C and the disclosure statements EX PW 20/D to EX PW 20/F bear the signatures of PW20 at point A. He also identified the accused Parkash, Sher Singh and Ram Khiladi as present in the court. The seizure memo i.e. EX PW 20/G of the recovery of case property at the instance of accused Parkash bears signatures of PW20 at point A. He deposed that on 10.06.08, as per the directions of SHO , he had reached the court, where accused Mehtab ( since juvenile) had surrendered before the Ld. MM and he moved an application before Ld. MM seeking permission for FIR No. 215/08 P.S. Saraswati Vihar page 21 of 33 S/V Prakash etc. interrogation of Mehtab. The said application has been proved as EX PW 20/H. The personal search memo of the accused Mehtab ( since juvenile) conducted after his arrest has been proved as EX PW 20/I. The application moved by PW20 before the Ld. MM for TIP of accused Mehtab ( since juvenile) has been proved as EX PW 20/J and the application moved by PW20 before the Ld. MM for obtaining the copy of TIP proceedings has been proved as EX PW 20/K. The arrest memo and personal search memo of accused Chottey Lal ( since discharged) have been proved as EX PW 20/L and EX PW 20/M respectively. The arrest memo and personal search memo of accused Raj Kumar ( since discharged) have been proved as EX PW 20/N and EX PW 20/O respectively. He also identified the case property i.e. wrist watch make Citizen ( EX P6) and two silver coins ( EX P7 collectively) as got recovered by accused Parkash.
13. The case of the prosecution against the accused persons is that after entering into a conspiracy, on 28.04.2008 at about 1.15 p.m. at H. No. C18, second floor, Maharana Partap Enclave, Pitam Pura, Delhi, they in furtherance of their criminal conspiracy robbed PW1 and PW8 of the gold chain, two mobile phones, currency notes of Rs.30,000/, gold coins, one Citizen wrist watch , some silver coins etc. and at that time while committing robbery accused Sher Singh and Mehtab ( since juvenile ) were armed FIR No. 215/08 P.S. Saraswati Vihar page 22 of 33 S/V Prakash etc. and used deadly weapon i.e. the knife and accused Ram Khiladi was armed and used deadly weapon i.e. a country made pistol.
PW1 has deposed in his examination in chief that on 28.04.08 he along with his mother ( PW8) were present at their house at C18, Second floor, Maharana Partap Enclave, Pitam Pura, Delhi, at about 1.15 p.m. the door bell of their house rang and at that time he along with his mother were present in a room in the said house. He deposed that PW12 opened the door, immediately on opening the door she started shouting and as soon as he came out of the room he saw that four persons had entered their house, out of whom one was in a muffled face and was having a knife. He deposed that out of the remaining three persons, two persons were having a knife and one was having a country made pistol ( katta). He further deposed that the person in muffled face caught hold of PW8 and anther person threatened them that in case they raised an alarm they would be killed. He deposed that thereafter the said persons enquired about the cash in the house, stared roaming here and there in the house and after some time tied PW1 and PW8 and locked them in a bathroom . He deposed that after some time they felt that those persons had left and thereafter PW1 came out of the bathroom through a ventilator and opened the door of their bathroom from which PW8 came out. PW1 and PW8 checked their house, found that all the almirahs in the FIR No. 215/08 P.S. Saraswati Vihar page 23 of 33 S/V Prakash etc. house were open and the goods were lying scattered here and there. PW1 informed the police, the police reached at the spot and the statement of PW1 i.e. EX PW 1/A was recorded by the police upon which the case FIR ( EX PW 3/A) was registered. PW1 has deposed that he could identify those persons, if shown to him and upon search of their house one knife was recovered from one of the room which was seized vide memo EX PW 1/D. During his testimony, PW1 has correctly identified the accused Parkash, Ram Khiladi and Sher Singh as the persons who had entered their house on 28.04.2008 and robbed them. The pointing out memo of the place of occurrence at the instance of accused Parkash has been proved as EX PW 1/G and the pointing out memo of place of occurrence at the instance of accused Sher Singh and Ram Khiladi has been proved as EX PW 1/H. In crossexamination , PW1 has deposed that he knew accused Parkash as he had done white washing and painting in their house before the case incident in the year 2006. PW8, one of the victim of the case incident, who was also present with PW1 at the above said house at the time of robbery has corroborated the testimony of PW1 regarding the robbery by the accused persons at their house on 28.04.2008 and has also correctly identified the accused Parkash, Sher Singh and Ram Khiladi in the court as the persons who had committed the robbery in their house on FIR No. 215/08 P.S. Saraswati Vihar page 24 of 33 S/V Prakash etc. 28.04.2008. It is also evident from the testimony of PW16 that the accused Sher Singh refused to join the TIP proceedings despite warning and caution that an adverse inference shall be drawn against him during the trial. The said TIP proceedings qua accused Sher Singh have been proved as EX PW 16/A. PW11 SI Sharad Kohli has deposed regarding the arrest, search of accused persons and recovery of case properties from them. PW11 has deposed that the formal search of accused Sher Singh was taken by him and from the left pocket of his pant two gold ginnies which were kept in a small plastic box ( dibbi) and a cash amount of Rs. 7,000/ from the right pocket of his pant were recovered. The seizure memo in this regard has been proved as EX PW 11/C. The said gold ginnies ( coins), on one of which 1890 and on the other 1912 was engraved, have been proved by PW1 and PW8 as EX P 5 ( collectively) and have also been correctly identified by PW1 during TIP proceedings. Similarly, PW11 has deposed that from the formal search of accused Ram Khiladi as taken by him, one mobile phone make NOKIA 6610 was recovered from the right pocket of his wearing pants and from the left pocket one gold coin and Rs.7,000/ were recovered. The seizure memo in this regard has been proved as EX PW 11/B. The said mobile phone make NOKIA 6610 was identified by PW1 during TIP proceedings on 26.07.2008 and has been proved FIR No. 215/08 P.S. Saraswati Vihar page 25 of 33 S/V Prakash etc. as by PW1 and PW8 as EX P4. The said gold coin was correctly identified by PW1 on 05.05.09 during TIP proceedings and has been proved by PW1 and PW8 as EX P9. PW 11 and PW12 have also correctly identified the above said case property. PW19 and PW 20 have deposed to the effect that on 13.05.08, accused Prakash took them to his house at C336, Aman Vihar. Sultan Puri, Delhi and got recovered one wrist watch make Citizen with white dial and metal chain and two silver coins from a cloth bag which was kept in a shelf ( Duchhati) and the same were seized vide memo proved as EX PW 20/G. PW19 and PW20 have correctly identified the said wrist watch as EX P6 and two silver coins as EX P7 ( collectively). PW1 and PW8 also correctly identified the said articles in the court and PW1 also correctly identified them in the TIP proceedings. PW4 and PW 19 have deposed to the effect that after his disclosure statement proved as EX PW 4/C, the accused Mehtab ( since juvenile ) led them to his house i.e. at H.No. 524, Shardha Enclave,Prem NagarIII and got recovered five silver coins from a suitcase which were seized vide seizure memo EX PW 4/D. PW4 and PW19 have correctly identified the said five silver coins as got recovered by accused Mehtab ( since juvenile) as EX P8 ( collectively). The said five silver coins were also correctly identified by PW1 in TIP proceedings and were also correctly identified by PW1 and PW8 in the court and have been proved as FIR No. 215/08 P.S. Saraswati Vihar page 26 of 33 S/V Prakash etc. EX P8 ( collectively).
The minor variations in the testimony of PW1, PW8 and other police witnesses as tried to be highlighted by the Ld. Defence counsel during arguments are only minor in nature and do not at all affect the truthfulness and credibility of testimony of material prosecution witnesses including PW1 and PW8. Further, the defence has failed to show any reason as to why PW1 and PW8 would try to falsely implicate the accused persons in the present case. Nothing substantial has appeared in the crossexamination of PW1 and PW8 to discredit their testimony. The testimonies of PW1 and PW8 in this regard seem to be natural, reliable and trustworthy. The identity of accused persons facing trial in the Court as perpetrators of case crime has also been established and proved beyond reasonable doubt by the prosecution witnesses. It is also pertinent to note that the accused persons have failed to or preferred not to lead any defence evidence in support of their defence. From the above said discussion and testimonies of prosecution witnesses, the prosecution has proved beyond reasonable doubt that accused persons i.e. Parkash, Ram Khiladi, Sher Singh and Mehtab ( since juvenile) in furtherance of their common intention on 28.04.2008 at about 1.15 p.m. at the above said residence of PW1 and PW8 committed robbery and were later on found in possession of the robbed articles, as mentioned above. In FIR No. 215/08 P.S. Saraswati Vihar page 27 of 33 S/V Prakash etc. these circumstances and testimony of the prosecution witnesses, the accused Prakash, Ram Khiladi and Sher Singh are liable to be convicted and are convicted U/S 392/34 IPC.
14. As far as the charge U/S 397 IPC against the accused Sher Singh and Ram Khiladi is concerned, it is the case of the prosecution that at the time of committing the above said robbery the accused Ram Khiladi was armed with and used a country made pistol i.e. a deadly weapon whereas the accused Sher Singh was armed with and used a knife i.e. a deadly weapon. Section 397IPC is being reproduced below for ready reference:
"397. Robbery or dacoity, with attempt to cause death or grievous hurt If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
PW 1 and PW 8 have deposed in their testimony to the effect that four persons entered their house out of whom one person was having a country made pistol (katta) and the remaining three persons were having knife. It is also the case of the prosecution that when the police searched the house of PW 1 and PW 8 i.e. the spot of FIR No. 215/08 P.S. Saraswati Vihar page 28 of 33 S/V Prakash etc. incident, one knife was recovered from one of the room. The seizure memo of said knife has been proved as EX PW 1/D and the said knife has been proved as EX P1. PW 2 Const. Lokesh Kumar has deposed in his examination in chief that the said knife (EX P1) was a kitchen knife and admitted in his cross examination that the said recovered knife was easily available in the market and every household. PW 8 deposed in her cross examination that she did not know whether the knives like the knife EX P1 were available in every house for the purpose of cutting vegetables. PW 2 deposed that the complainant (PW1) told them that the accused persons had left the knife (EX P1) after commission of the offence and the total length of the knife was 30 cm., the blade was 17.5 cm., the handle was 12.5 cm. and the width of the blade was 2.5 cm. The sketch memo of the said knife has been proved as EX PW 1/B. It is thus an admitted fact that no deadly weapon i.e. any knife or country made pistol (katta) has been recovered from or at the instance of any accused in this case. As per the testimony of PW 2, the PW 1 told him that the accused persons had left the knife at the spot after commission of the offence. As discussed above, PW 2 also deposed that the said knife was a kitchen knife and that the recovered knife was easily available in the market and every household. The fact, however, remains that no country made pistol (katta) has been FIR No. 215/08 P.S. Saraswati Vihar page 29 of 33 S/V Prakash etc. recovered from or at the instance of the accused Ram Khiladi and further no knife has been recovered from or at the instance of accused Sher Singh. In the case titled as Gulab @ Bablu Vs. The State (N.C.T of Delhi) 2012 (3) JCC 2213, the Hon'ble Delhi High Court has held as under :
"6. From the evidence adduced by the prosecution it is clear that knife used in the commission of crime had not been recovered from the appellant. Dimension, shape and size of the knife has also not been given by the witnesses nor anyone of them has deposed that the same was a deadly one.
7.Section 397 IPC reads as under: ........................................................................
8. A perusal of the aforesaid provision makes it clear that if an offender at the time of committing robbery or dacoity, uses any deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt to any person the imprisonment with which such offender shall be punished shall not be less than seven years. This provision prescribes minimum sentence which shall be handed down to such an offender. In this case neither the victim has sustained grievous hurt nor there is an evidence that attempt was made to cause death or grievous hurt to the victim nor is there any evidence to show that the knife used at the time of committing robbery was a 'deadly weapon'. Simple injuries have been sustained by the victim on his thigh.
FIR No. 215/08 P.S. Saraswati Vihar page 30 of 33 S/V Prakash etc.
9. In Charan Singh Vs. The State, 1988 Crl.L.J.NOC 28 (Delhi), Single Judge has held as under: "At the time of committing dacoity one of the offenders caused injury by knife on the hand of the victim but the said knife was not recovered. In order to bring home a charge under S. 397, the prosecution must produced convincing evidence that the knife used by the accused was a deadly weapon. What would make knife deadly is its design or the method of its use such as is calculated to or is likely to produce death. It is, therefore, a question of fact to be proved by the prosecution that the knife used by the accused was a deadly weapon. In the absence of such an evidence and particularly, the non recovery of the weapon would certainly bring the case out of the ambit of S.397. The accused could be convicted under S.392."
10. In Samiuddin @ Chotu Vs. State of NCT of Delhi 175 (2010) Delhi Law Times 27, a Bench of coordinate jurisdiction has held that when a knife used in a commission of crime is not recovered the offence would not fall within the ambit of Section 397 IPC. In Rakesh Kumar vs. The State of NCT of Delhi 2005(1) JCC 334 and Sunil @ Munna vs. The State (Govt. of NCT), 2010 (1) JCC 388, it was observed that in the absence of recovery of the knife used by the appellant at the time of commission of robbery charge under S. 397 cannot be established.
11. In the present case indubitably the knife used for commission of crime was not recovered. Accordingly, FIR No. 215/08 P.S. Saraswati Vihar page 31 of 33 S/V Prakash etc. in my view, appellant could not have been sentenced under Section 397 IPC and the trial court has erred on this point.
12. For the foregoing reasons, while upholding the conviction of the appellant under Sec 394 IPC his conviction under Section 397 is set aside."
15. In the present case also, as discussed above, no katta or knife has been recovered from or at the instance of the accused Ram Khiladi and Sher Singh respectively. The prosecution has also not proved any hurt or grievous hurt having been caused to PW 1 or PW 8 at the time of commission of case robbery by the accused persons. The knife EX P1 as recovered from the spot could not be proved by the prosecution beyond reasonable doubt to be either a deadly weapon or even a weapon having been used by the accused persons or by which of the accused at the time of commission of the case robbery. Further, PW 2 has deposed that it was only a kitchen knife and was easily available in the market and every household. In facts and above said discussion, the prosecution has failed to prove beyond reasonable doubt that the accused Ram Khiladi was armed with and used a deadly weapon i.e. country made pistol (katta) and that the accused Sher Singh was armed with and used a deadly weapon i.e. knife at the time of committing the case robbery. The accused Sher Singh and Ram Khiladi are thus acquitted under Section 397 IPC. FIR No. 215/08 P.S. Saraswati Vihar page 32 of 33 S/V Prakash etc.
16. In view of the above said discussion accused Prakash, Sher Singh and Ram Khiladi are convicted under Section 392/34 IPC and the accused Sher Singh and Ram Khiladi are acquitted under Section 397 IPC.
17. As mentioned above, the accused Banwari Thekedar is a proclaimed offender in this case vide order dt. 14.05.2009, therefore the testimony of prosecution witnesses as recorded in this case be treated as under Section 299 Cr.P.C. against him and the file be taken up again as and when the said accused Banwari Thekedar is arrested in the present case.
18. Let the convict Prakash, Sher Singh and Ram Khiladi be heard on the quantum of sentence.
Announced in the open Court
on 6 day of May, 2014 (AMIT BANSAL)
th
Additional Sessions Judge04 ( N/W):
Rohini Courts: Delhi
FIR No. 215/08 P.S. Saraswati Vihar page 33 of 33