Delhi District Court
Criminal Appeal No. 689/2013 Titled As ... vs . State Of on 22 January, 2015
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI
SC No. 24A/1
Unique Identification No. 02404R0045562006
State
Versus
1. Mukesh @ Bholu
S/o Baljeet Singh
R/o V.P.O Barwala
Delhi.
2. Sandeep @ Dhillu
S/o Inder Singh
R/o V.P.O Jasor Khari
PS. Ballabh Garh
Distt. Jhajjar (HR)
3. Sanjay @ Bhura
S/o Anand Singh
R/o Hanuman Nagar
Near Sugar Mill,
Sonepat (HR)
(Since expired)
4. Dheeraj
S/o Sh. Partap Singh
R/o Village Rawali
District Sonipat, Haryana
(since discharged)
FIR No. 522/05
PS Paschim Vihar
U/s. 392/394/397/411/34 of IPC
& 25/27 Arms Act
Session Case No. 140/1 Page 1 of page 33
Date of institution of the case: 23/08/2005
Arguments heard on: 22/01/2015
Date of Decision: 22/01/2015
JUDGMENT
This case was registered on the statement of one Shiv Kumar on 17/06/2005 u/s 392/394/397/411/34 of IPC and u/s. 25/27 of Arms Act. Prior to that, DD No.33B was recorded at PS Paschim Vihar, at about 3.15 p.m. on receipt of information from W/Ct Reena regarding robbery of Rs. 20 lacs at B2 Block, Paschim Vihar DDA Market, Inderprastha Sehkari Bank Ltd. Copy of same was handed over to Ct Ved Parkash to further hand over the same to SI Tejpal for further necessary action, who alongwith Ct Dipender reached at the spot, where complainant met him, who got recorded his statement regarding the occurrence.
During the investigation, rough site plan of the place of occurrence was prepared and statement of witnesses were recorded. On 24/06/2005, accused Mukesh @ Bholu was arrested in case FIR no 542/05, u/s 353/186/307/411 of IPC and u/s 25/27 Arms Act PS Paschim Vihar by SI Prabhat Kumar and accused made disclosure statement about this case. Accordingly, he was also arrested in this case by the IO of this case . Accused Mukesh @ Bholu also pointed out the place of occurrence i.e. B2 DDA Market, Paschim Vihar and also got recovered Rs. 4.5 lacs i.e. total 9 packets of Rs. 50,000/ from Flat no. E1/178 Sector11, Rohini, Delhi and each packet was having slip of Syndicate bank with the stamp of R.K. Enterprises and signatures of complainant, which was made by the complainant at the time of withdrawal of money from Syndicate Bank on 17/06/2004. Recovered currency notes were sealed and seized by the IO and were deposited in the Malkhana.
Accused Mukesh @ Bholu also made disclosure statement regarding involvement of accused Surjeet @ Paul son of Rajender Singh R/o Village Beri Rohtak, Sanjay @ Bhura, Sandeep @ Dhillu and Dheeru in this case. Information was received that accused Sandeep @ Dhillu and Sanjay @ Bhura were arrested in Session Case No. 140/1 Page 2 of page 33 case FIR no. 102/05, 103/05 and 104/05, u/s 392/411/307 of IPC and u/s 25 Arms Act PS Surajpur Gautam Nagar (UP) on 24/06/2005 and they have also made disclosure of the present case. Production warrants of both the accused were got issued and on their appearance and after obtaining the permission of the Court , they both were arrested and were taken on police remand till 09/07/2005. Both the accused were kept in muffled face during the police custody. Both the accused persons also made disclosure statements, wherein they both disclosed that they had kept the looted money and weapon of offence i.e. pistol in the fields of Surajpur. During further investigation, both these accused also pointed out the place of occurrence. On 08/07/2005, both the accused persons got recovered Rs. 50,000/ and one pistol having four live cartridges, from near the wall of room of tubewell, in the fields of village Nalgarh, Surajpur (Greater Noida). Currency notes were also having slips of Syndicate Bank and stamp of R.K. Enterprises and signatures of complainant. Pistol alongwith four live cartridges alongwith currency notes were sealed and seized in this case. Recovered pistol along with form FSL were got deposited with Ballistic Division FSL Rohini. Accused Sandeep @ Dhillu refused to participate in the TIP proceedings. Accused Surjeet and Dheeraj could not be arrested.
On completion of investigation, chargesheet was filed against accused Mukesh @ Bholu, Sanjay Bhura and Sandeep Dhillu u/s. 392/394/397/411/34 of IPC and u/s. 25/27 of Arms Act on 23/08/2005. Case was committed to the Court of Session on 05/10/2005 and was received on 13/10/2005. On 11/12/2006, charge u/s. 120B read with section 392 of IPC was framed against all the accused persons, charge u/s 392/397 of IPC was framed against accused Sandeep @ Dhillu and Sanjay @ Bhura, charge u/s 411 of IPC was framed against accused Mukesh @ Bholu, charge u/s 411/34 was framed against accused Sandeep @ Dhillu and charge u/s u/s. 25/27/54/59 Arms Act was framed against accused Sandeep @ Dhillu and Sanjay @ Bhura, to which they pleaded not guilty and claimed trial. During the trial, accused Sanjay @ Bhura expired, so proceedings against him were abated.
Session Case No. 140/1 Page 3 of page 33 On 27/03/2008, supplementary chargesheet was filed against coaccused Dheeraj and it was committed to the Court of Session on 28/01/2011 and was received on 08/02/2011. Vide order dated 12/04/2012, accused Dheeraj was discharged in this case.
To prove its case, prosecution has examined PW1 to PW18 in all. On completion of the evidence of the prosecution, statements of both the accused persons were recorded u/s. 313 Cr. P.C., wherein they have denied the case of the prosecution and have claimed false implication.
In defence, DW1 Vinod has been examined on behalf of accused Mukesh @ Bholu.
I have heard learned APP for the State, respective Ld defence counsels for both the accused persons and have gone through the material placed on record with evidence adduced.
Finding qua offence u/s. 120B read with Section 392 of IPC against accused Mukesh @ Bholu and Sandeep @ Dhillu and finding qua offence u/s. 392/397 of IPC against accused Sandeep @ Dhillu:
PW3 Shiv Kumar Verma is complainant in this case. He has deposed that he is engaged in the business of chemical and medicines. The firm, namely, R.K. Enterprises deals in chemicals and the firm,namely, Pharma Marketer and Distributor deals in medicines. He has further deposed that on 17/06/2005, he went to Syndicate Bank, Nangloi,where he was having account of M/s R.K. Enterprises for withdrawing the amount. He had withdrawn about Rs. 14,85,000/ from the above bank and after counting the same, he put his stamp on the packets and also signed all the packets in the Manager's room. From there, he put the money in his briefcase and in a green cloth bag, with chain and took his briefcase and green bag in his car Belano bearing No. DL9CB1354 and came to Paschim Vihar in Indraprastha Sahkari Bank, at B block Market, Paschim Vihar. He had parked his car outside the building, where bank was situated on the first floor. He took his briefcase and green bag with him Session Case No. 140/1 Page 4 of page 33 and as soon as he climbed staircase for going to Indraprastha Bank and when he was about to take the turn in the stair case, he was covered from behind and was put towards the wall and his both bags were snatched. The boys were twothree in numbers and as soon as he tried to turn his head to see their faces, then immediately he was threatened by those persons and they had also put something on his neck and back and threatened him not to turn, otherwise he would be killed.
PW3 has further deposed that he became bit unconscious and thereafter, he went to the bank and police arrived there. Police recorded his statement at the PS Ex.PW3/A. Later on, police took him to Syndicate Bank premises. Police also took his mobile and left him from there at about 11.30 pm. He cannot identify those boys, who had snatched his bags because he could not see their faces. He did not see the accused persons even after that. He cannot tell anything about this incident. A sum of Rs. 4,50,000/ and Rs. 50,000/ were recovered later on and this fact was told to him by the SHO, who got the currency notes photographed and also got his signatures on them. As the notes were stamped with the bank seal and were bearing his signatures, so, he was able to identify the same. Those notes were signed by him at Syndicate Bank at the time of receiving the same. The currency notes were in the denomination of Rs. 500, Rs. 100/ and Rs. 50/, but the notes seen by him at the police station were of only Rs. 500/ denomination. The witness has identified the photocopies of the currency notes collectively as Ex.P1, which were also signed by the SHO and were released to him on superdari. He has also identified the original slips as Ex.P2 to P10 before the Court. The witness has also identified Ex. PW6/1 i.e. slip dated 17/09/2005 and also his signatures on the same at point A. PW3 has further deposed that at the time, when his statement Ex. PW3/A was recorded by the police, police had also prepared site plan of the place of occurrence at his instance. When he had counted the cash after withdrawing the same from Syndicate Bank, he put his seal impression of R.K. Enterprises and also put his signatures on each bundle, so, the notes may not be counted at the time of their Session Case No. 140/1 Page 5 of page 33 further depositing at Indraprastha Sehkari Bank, Paschim Vihar. His supplementary statement was also recorded by the police to this effect on the same day. On 11/07/2005, as per the directions of the Court, he had received Rs. 4.50 lacs from PS Paschim Vihar. On 17/09/2005, he had received Rs. 50,000/from PS Paschim Vihar as per the order of the Court.
Since PW3 has not supported the case of the prosecution regarding identity of the accused persons, so, he has been cross examined by Ld. APP, wherein he has admitted that in his complaint Ex. PW3/A, he had stated that he can identify the three boys, who had robbed his bag and briefcase containing money at the point of pistols, if shown to him. Except this, PW3 has not supported the case of the prosecution in any manner regarding the identity of accused persons despite being cross examined by Ld. APP.
During trial, accused Sandeep @ Dhillu, who was earlier proclaimed offender, was arrested. Accordingly, PW3 Shiv Kumar Verma was again called and was again examined, wherein he has deposed that he is doing the business of chemical and medicine trading and is running his office from 409, Sant nagar, East of Kailash, New Delhi. He is dealing with Syndicate Bank, Nangloi and Indraprastha Sehkari Bank, B2 market, Paschim Vihar, Delhi.
PW3 has further deposed that on 17/06/2005, at 11.30 a.m., he went to Syndicate Bank, Nangloi, where he had withdrawn cash amount of Rs. 15 lacs and then had come to Indraprastha Sehkari Bank at Paschim Vihar in his car No. DL9CB1354 along with the said cash. The said Indraprastha Bank is situated at the first floor in the market. He was going to the first floor from the upstairs and when he had climbed 57 stairs, in the meantime, two boys came from his backside and put gun on his back and taken away his briefcase and bag from his hands, which were containing cash amount of Rs. 15 lacs. The cash amount was in the denomination of Rs. 500/, Rs. 100/ and Rs. 50/. At that time, he was asked to face towards the wall and was threatened that if he will try to see them by turning his head towards them, Session Case No. 140/1 Page 6 of page 33 then they will kill him. There were some documents, cheque book of his firm etc. in the said briefcase and bag including his DL.
PW3 has further deposed that thereafter, he went to the room of the Manager of the Bank and made a call at 100 number, at which, police came there. From Indraprastha Sehkari Bank, he was taken to Syndicate Bank, Nangloi by the police and there police made inquiries from the Manager of Syndicate bank about withdrawal of money by him from there. Thereafter, they reached at PS Paschim Vihar, where his statement Ex. PW3/A was recorded. He also pointed out the place of occurrence to the police, on which, site plan Ex. PW17/B was prepared by the police.
PW3 has further deposed that he put his signatures in the Syndicate Bank along with stamp of his firm on the currency note packets obtained by him from Syndicate Bank in the premises of the bank itself for the convenience in depositing the same in Indraprastha Sehkari Bank.
PW3 has further deposed that after about one week of the incident, he was told by the police that Rs. 4,50,000/ were recovered from one accused and thereafter, he was told by the police after about 1520 days that Rs. 50,000/ were recovered from another accused. He obtained the same on superdari by the order of the Court. At the time of handing over the currency notes to him on superdari, the slips found affixed on the currency note packets were separated and were seized by the police, which are Ex. P1 to P9 and are bearing his signatures and stamp of his firm at point B on each.
PW3 has further deposed that he does not remember the date, but he was called by the police to join the TIP of one of the accused at Tihar Jail. Accordingly, he reached there and met with IO. He went inside the jail to identify one of the accused i.e. Sandeep, but he could not identify him during the TIP proceedings as he had not seen the accused at the time of incident. The witness has further deposed that so far as he remembers, he was asked to identify one of the accused only and he Session Case No. 140/1 Page 7 of page 33 might be accused Sanjay.
PW3 has further deposed that he never identified the accused persons outside the court at any time during investigation of this case. Even he cannot identify the accused persons now as he had not see them at the time of incident. However, he had seen accused Mukesh @ Bholu in the Court, while appearing as accused in this case, but he cannot identify him as one of the accused involved in the incident.
PW3 has further deposed that on 17/06/2005, on his pointing out, IO had prepared the site plan of the place of incident. On 11/07/2005, by the order of the Court, he obtained Rs. 4,50,000/ on superdari from PS Paschim Vihar. The photocopies of said currency notes were kept by the police officials after duly attesting the same. The said nine bundles of currency notes were having slips of Syndicate Bank and all the slips were bearing stamp of R.K. Enterprises dated 17/06 and were also bearing his signatures at point B on each. The same are Ex. P2 to P10. The witness has identified the stamp and signatures on the said slips, which he had put after withdrawing the said amount from Syndicate Bank, Nangloi for the convenience of the Indraprastha Sehkari Bank, where he had to deposit the said amount. The said slips were pasted by the IO on three plain papers and he also signed the same at point X on each. He also signed the said slips on 11/07/2005 at point A each.
PW3 has further deposed that on 17/09/2005, he again went to PS and obtained Rs. 50,000/ from the malkhana as per the order of the Court, on superdari. The photostate copies of said currency notes were kept by the police officials. The slip, which was affixed on the said bundle, was also separated by the police officials and the same was pasted on the plain paper, which is Ex. PW6/1. PW3 has identified the said slip along with his stamp and signatures at point A as the same, which he had put at the time, when he had withdrawn the said amount from Syndicate Bank for the convenience of bank officials of Indraprastha Bank, where he had to deposit the said amount.
Session Case No. 140/1 Page 8 of page 33 PW3 has also identified the photostate copies of currency notes as the copies of the currency notes, which he had taken on superdari and the original of the same were robbed from his possession on 17/06/2005 from outside Indraprastha Sehkari Bank, Paschim Vihar, as Ex. PW6/2 to 251 before the Court, where are in the denomination of Rs. 500/ each.
Since PW3 has not supported the case of the prosecution in any manner regarding the identity of accused Sandeep @ Dhillu, so, he has been cross examined by learned APP, wherein he has admitted that whatever he had stated, same was written by the police officials in his statement Ex. PW3/A. He has further admitted that he had stated to the IO in his statement that he can identify the said boys, who had committed robbery of his cash of Rs. 15 lacs. He has also admitted that most of the currency notes robbed from his possession were in the denomination of Rs. 500/, whereas some were in the denomination of Rs. 100/ i.e. only 34 packets, amounting to Rs. Two lacs, out of Rs. 15 lacs.
PW3 has further deposed in the cross examination conducted by Ld. APP that he does not remember whether he joined the investigation of this case on 02/08/2005 and IO recorded his supplementary statement Mark Ex. PW3/X. He has admitted that on 02/08/2005, he had gone to Tihar Complex as he was called there by the IO telephonically. The witness has voluntarily stated that there he joined the TIP proceedings and twice, he was asked to identify the accused persons, but he could not identify any of the accused during the TIP proceedings because he had not seen any of the accused at the time of incident. He has denied the suggestion that he had not joined the judicial TIP proceedings on that day as the accused had refused to join the same.
During further cross examination by Ld. APP, PW3 has denied the suggestion that he had stated to the IO in his statement Mark PW3/X that when the accused namely Sandeep @ Dhillu and Sanjay @ Bhura came outside the Court in the custody of Haryana Police, he had seen them and identified them as the same, Session Case No. 140/1 Page 9 of page 33 who had committed robbery of Rs. 15 lacs with him along with their other associates. He has further denied that accused Sandeep @ Dhillu, who was pointed out to him by ld. APP, was identified by him outside the Court of Tihar Jail after the TIP proceedings, while he was present with Haryana Police.
PW1 is Sh M.P. Gupta, Chief Manager, Syndicate Bank, Nangloi. He has deposed that he is still posted at Syndicate Bank Nangloi as Chief Manager. On 21/08/2005, he was also posted at the same bank as Chief Manager. PW3 Shiv Kumar Verma is having his accounts in their bank. His firm is having number of accounts in their branch. PW1 has also produced the statement of M/s Chemsol Traders and M/s Reliable Overseas.
He has further deposed that on 17/06/2005, PW3 Shiv Kumar Verma had withdrawn around Rs. 14,80,000/ from the accounts of aforementioned companies. This witness has identified the account statement of these two companies as Ex. PW1/A and Ex.PW1/B respectively. He has further deposed that PW3 Shiv Kumar Verma had withdrawn the amount of Rs. 14,80,000/ through three bearer cheques and he had appended his signatures on the back side of the cheques as per their record. PW1 has produced all these cheques before the Court and has identified the signatures of the complainant on the same.
PW17 SI Tej Pal has deposed that on 17/06/2005, he was posted as SI at PS Paschim Vihar and on that day, he was on day emergency duty. On that day, on receipt of DD no.33B, he alongwith PW5 Ct Dipender reached at the spot i.e. Inderprastha Sahkari Bank situated at B2, DDA market, Paschim Vihar, Delhi, where one Shiv Kumar i.e. PW3 met them, who got recorded his statement to him regarding the occurrence of robbery, which is Ex.PW3/A, on which Shiv Kumar Sharma had signed at point A and it was attested by him at point B. He prepared rukka on this statement, which is Ex.PW17/A and handed over the same to PW5 Ct Dipender and sent him for registration of the case. After registration of the case, PW5 Ct Dipender reached at the spot and handed over to him copy of FIR and rukka.
Session Case No. 140/1 Page 10 of page 33 PW15 has further deposed that thereafter, he prepared site plan of the place of occurrence at the instance of complainant, which is Ex.PW17/B. Thereafter, he made inquiries from the staff of Inderprastha Bank and also from the staff of Syndicate bank from Nangloi and recorded supplementary statement of Shiv Kumar Verma and thereafter they came back to PS, where he recorded the statement of Ct Dipender.
PW10 HC Rajbir Singh has proved the copy of FIR as Ex. PW10/A, which was recorded by him on 17/06/2005, while he was posted as duty officer at PS Paschim Vihar, on receipt of rukka at about 5.15 p.m. through PW5 Ct Dipender. After registration of FIR, copy of FIR and original rukka were handed over to PW5 Ct Dipender to further hand over the same to PW15 SI Tejpal for further investigation. He also made kayami DD no. 15A and has proved his endorsement on the rukka as Ex. PW10/B. The witness has also produced original FIR register before the Court.
PW5 ASI Dipender Singh has deposed the same facts as of PW15 SI Tejpal regarding reaching at the spot and registration of FIR.
It is further contended that neither in his statement Ex.PW3/A complainant had told to the police about the identity of the accused persons nor later on he has been able to identify the accused persons before the Court as the same, who had committed robbery. It is further contended that according to the cross examination of PW3 Shiv Kumar Verma, conducted by Ld APP, he has voluntarily stated that he had joined the TIP proceedings and twice he was asked to identify the accused persons but he could not be able to identify any accused during TIP proceedings because he has not seen accused at the time of robbery. It is further contended that in this respect also complainant has deposed falsely because according to the TIP proceedings, accused Sanjay @ Bhura and Sandeep @ Dhillu, both have refused to join the TIP proceedings , so there was no occasion for the complainant to join the TIP proceedings.
Session Case No. 140/1 Page 11 of page 33 In view of above as PW3 Shiv Kumar Verma has not been able to identify the accused persons as the same, who had committed robbery, so, prosecution has not been able to prove offence u/s. 120B read with Section 392 of IPC against accused Mukesh @ Bholu and Sandeep @ Dhillu beyond reasonable doubts, for which, they both are acquitted.
The prosecution has also not been able to prove offence u/s. 392/397 of IPC against accused Sandeep @ Dhillu beyond reasonable doubts, for which, he is acquitted.
Finding qua offence u/s. 411 of IPC against accused Mukesh @ Bholu:
PW9 ASI Kamal Singh has deposed that on 24/06/2005, he was posted as Head Constable at PS - Paschim Vihar and on that day, while he alongwith PW7 Constable Pradeep was performing their duty at BG - 6, Paschim Vihar Picket. At that time, SI Ranbir Singh from PS - Tilak Nagar alongwith HC Rajbir Singh and HC Surajbir of Special Staff came to them and disclosed that they had received secret information that one Scorpio Car No. DL3CN2681 had gone towards Raghubir Nagar, driver of which might be involved in the incident of bank robbery, which took place last week in the area of Paschim Vihar. On receipt of this information, he alongwith PW7 Constable Pradeep also accompanied ASI Ranbir Singh, HC Surajbir and HC Rajbir. When they were going towards Raghubir Nagar, one Scorpio Car No. DL3CN2681 was seen coming from the side of Raghubir Nagar with a slow speed. On seeing the same, ASI Raghubir Singh made the car to stop by stopping his scooter in front of the said car, at which, the driver of the car got down from the car and fired towards them and ran away towards BG - 6 Block, Paschim Vihar, at which, he was chased and immediately, SI Ranbir Singh made him to fall by putting his leg and snatched the pistol from his right hand. The pistol was of 9mm, which was checked and one live cartridge was recovered from its chamber and three more live cartridges were recovered from its magazine. Two empty cartridge cases of 9mm Session Case No. 140/1 Page 12 of page 33 were also lying on the road. SI Ranbir Singh informed about the incident to PS- Paschim Vihar, at which, SI Prabhat Kumar came from there, who carried out the proceedings regarding the pistol and got registered the case vide FIR No. 542/05 u/s 307/386/353 IPC and 25/27 Arms Act.
PW9 has further deposed that on inquiry, they came to know the name of the said person as Mukesh @ Bholu, S/o Baljeet Singh, R/o Village Barwala. Accused Mukesh @ Bholu was arrested by SI Prabhat Kumar in case FIR No. 542/05. He also made disclosure statement regarding the offence of the present case. After the arrest, accused Mukesh @ Bholu was brought to PS-Paschim Vihar, where SI Prabhat Kumar handed over the copy of disclosure statement of the accused to SI Tej Pal Singh, who was the IO of the concerned case. He i.e. PW9 signed the papers regarding arrest of accused Mukesh @ Bholu in case FIR No. 542/05. Arrest memo of accused Mukesh @ Bholu is Ex. PW9/A and his disclosure statement is Ex. PW9/B. PW15 SI Prabhat Kumar has deposed that on 24/06/2005, he was posted as SI at PS Paschim Vihar. On that day, he arrested accused Mukesh @ Bholu in case FIR No. 542/05, u/2. 186/353/307/311 of IPC and u/s. 25/27 of Arms Act of PS Paschim Vihar. At that time, accused Mukesh @ Bholu made disclosure statement about the present case, copy of which is Ex. PW9/B. One country made pistol of 9 mm along with four live cartridges was recovered from the possession of accused and two empty cartridges were also recovered from the spot. After arrest, accused Mukesh @ Bholu was brought at PS Paschim Vihar. He gave information regarding arrest of accused Mukesh @ Bholu to PW17 SI Tej Pal, who had formally arrested the accused in this case. At that time, he also handed over the photocopies of arrest memo, disclosure statement and other relevant documents to SI Tejpal Singh.
PW17 SI Tejpal has further deposed that thereafter, he made efforts to find out the suspects and on 24/06/05, PW15 SI Prabhat Kumar met him at the PS, who told him that he had arrested one accused namely Mukesh @ Bholu in case FIR no.
Session Case No. 140/1 Page 13 of page 33 542/05, PS Paschim Vihar, in which he made disclosure statement about the
occurrence of this case. At that time, PW15 SI Prabhat Kumar handed over to him copy of disclosure statement of accused. Accused Mukesh @ Bholu was handed over in his custody by PW15 SI Prabhat Kumar. Photocopies of disclosure statement, arrest memos, copy of FIR etc were handed to him by PW15 SI Prabhat Kumar, which are Ex.PW9/B and Ex.PW9/A and copy of FIR alongwith other documents are collectively Ex.PW17/C. PW17 has further deposed that thereafter, he interrogated accused Mukesh @ Bholu in the present case and he was formally arrested by him vide memo Ex.PW9/F in presence of PW9 ASI Kamal Singh. Accused Mukesh @ Bholu also got recorded his disclosure statement, which is Ex.PW9/C in presence of PW9 ASI Kamal Singh.
PW17 has further deposed that thereafter, PW7 Ct Pradeep and PW9 HCt Kamal had also joined investigation with him and after joining them, they along with accused Mukesh @ Bholu reached at the spot i.e. Inderprastha Sehkari Bank. Accused Mukesh @ Bholu pointed out the place of occurrence i.e. stairs of Inderprastha Bank B2, DDA Market. Thereafter, accused Mukesh @ Bholu also pointed out Syndicate bank, from where, complainant had withdrawn the money and where accused Mukesh @ Bholu was having his bank account. He prepared pointing out memo regarding the aforesaid places, which is Ex. PW9/D. PW17 has further deposed that thereafter, he alongwith Staff and accused Mukesh @ Bholu reached at E1/178, Sector11 Rohini, in a private car, to effect the recovery from there at the instance of accused Mukesh @ Bholu. After reaching there, he asked some public persons from neighbouring area to join the investigation, but none of them agreed due to night hours and left from there. Thereafter, accused Mukesh @ Bholu lifted one key from chajja of that flat and opened the gate of the flat and after opening the flat, he produced one polythene from beneath a cot lying in a room of that flat. The said polythene contained Rs. 4,50,000/, which were 9 Session Case No. 140/1 Page 14 of page 33 packets of Rs. 50,000/ and were of Rs. 500 denomination. On each packet, slip of syndicate bank was found affixed and these packets were bearing stamp of R.K Enterprises and signatures of complainant Shiv Kumar Verma, on each packet. At that time, he kept the recovered packets of notes in plastic dibba and sealed the same with the help of tape and it was sealed with the seal of "TP" and was seized vide memo PW9/E. Seal after use was handed over to PW9 Ct Kamal. Thereafter, they came back to the PS and accused Mukesh @ Bholu was put in lockup. He recorded statements of PW9 Hct Kamal and PW7 Ct Pradeep in the early morning of 25/06/2005. Thereafter, accused Mukesh @ Bholu was sent to JC.
PW9 ASI Kamal and PW7 Ct Pradeep have further deposed the same facts regarding arrest of accused Mukesh @ Bholu in this case, recording of his disclosure statement and recovery of Rs. 4,50,000/.
PW17 SI Tejpal, PW9 ASI Kamal and PW7 Ct Pradeep have identified the photocopies of currency notes of Rs. 4,50,000/, originals of which were got recovered by accused Mukesh @ Bholu, before the Court as Ex. PW6/2 to Ex. PW6/251. They have also identified the nine slips of syndicate bank, having stamps of R.K. Enterprises on each with signatures of one Shiv Kumar Verma as the same, which were found affixed on the nine currency notes packets of Rs. 50,000/ each, which were in the denomination of Rs. 500/ each, at the time of recovery, as Ex. P2 to Ex. P10.
PW2 Shri Dev Darshan is the registered owner of Mahindra Scorpio No. DL3CA A 6669. He has produced the registration certificate of the above mentioned vehicle and copy of same is Ex.PW2/A. The above Mahindra Scorpio vehicle was stolen on 16/06/2005 and he got registered an FIR no. 450/05 in the PS Sector20, Noida Gautam Budh Nagar. PW1 has also produced the carbon copy of said FIR and photocopy of same is Ex.PW2/B. The vehicle was traced out by the police after about 10 days and he has taken this vehicle on Superdari from Delhi Court.
Session Case No. 140/1 Page 15 of page 33 Finding qua offence u/s. 411/34 of IPC against accused Sandeep @ Dhillu and finding qua offence u/s. 25/27/54/59 Arms Act against accused Sandeep @ Dhillu:
In this respect, PW18 Inspector Sudesh Gupta has deposed that on 24/06/2005, he was posted as SI/SHO PS Surajpur, Greater Noida and on that day, he arrested accused Sandeep @ Dhillu and Sanjay @ Bhura in case FIR no. 102/05, PSSurajpur. He also recorded their disclosure statements. Disclosure statement of accused Sandeep @ Dhillu was recorded by him regarding the robbery committed by him along with his associates in the area of PS Paschim Vihar, Delhi. He also recorded the disclosure statement of accused Sanjay @ Bhura (since expired), who also disclosed regarding the robbery committed by him alongwith his associates in the area of PS Paschim Vihar. Copy of disclosure statement of both the accused persons recorded by him is Ex.PW18/A. He also intimated to the concerned IO of PS Paschim Vihar regarding the disclosure statement made by the accused persons.
PW18 has further deposed that on 27/06/2005, he joined the investigation of this case and handed over the copy of FIR already Ex.PW17/D and also copy of disclosure statement Ex.PW18/A to the IO. IO recorded his statement in this regard.
PW17 SI Tejpal has further deposed that on 27/06/2005, he came to know that another accused Sandeep @ Dhillu and Sanjay had been arrested in case FIR no. 102/05, 103/05 and 104/05, u/s 392/411/307 of IPC of PS Surajpur and under section 25 of Arms Act on 24/06/2005 and that they had made disclosure statements about the commission of the present case.
PW17 has further deposed that thereafter, on the same day, he went to PS Surajpur, where SO SI Sudesh Gupta i.e. PW18 met him and he collected the certified photocopies of the relevant documents i.e. FIR and interrogation of the accused persons, which are Ex.PW17/D collectively. At that time, he recorded statement of SI Sudesh Gupta.
PW17 has further deposed that thereafter, he reached at Tis Hazari Courts, Session Case No. 140/1 Page 16 of page 33 where he moved an application before the concerned court for issuing production warrants of accused Sandeep @ Dhillu and Sanjay @ Bhura, copy of which is Ex. PW17/E, but on that day, both the accused persons could not be produced before the court by the UP police. On 30/06/05, he again moved application before Ld MM for issuing production warrant of both the accused, which was fixed for 06/07/2005, copy of which is Ex.PW17/F. He also made request in his application to produce the accused persons in muffled face from the jail.
PW17 has further deposed that on 06/07/05, both the accused persons were produced by UP police in muffled face. At that time, he moved an application for interrogation and formal arrest of both the accused persons,which was allowed by Ld MM. Copy of said application is Ex.PW17/G. Accordingly, he interrogated and formally arrested both accused Sandeep @ Dhillu and accused Sanjay Bhura (since expired) vide arrest memos Ex.PW4/D and Ex.PW4/C respectively. He also recorded disclosure statements of accused Sandeep @ Dhillu and Sanjay @ Bhura (since expired), which are Ex. PW4/A and Ex.PW4/B respectively. Thereafter, he moved an application before Ld MM for seeking five days PC remand of both the accused, copy of which is Ex.PW17/H. On his said application, Ld MM granted three days PC Remand of both the accused. PW4 Ct Surender had also accompanied him to the Court and joined proceedings regarding arrest of these accused persons at that time. Both the accused persons had appeared before the Court in muffled faces and during their PC remand, they were also kept in muffled face. Thereafter, they alongwith accused persons reached at the PS after medical examination of both the accused persons. Both the accused persons were put up in lock up. He recorded statement of PW4 Ct Surender in this regard.
PW17 has further deposed that on the next day, after taking out both the accused from the lock up, efforts were made to find out remaining two accused persons namely Surjeet and Dheeraj at their native villages i.e. Beri and Revli in Harayna, but they could not be found, hence, they came back at the PS, where both Session Case No. 140/1 Page 17 of page 33 the accused were put in lock up.
PW17 has further deposed that on the next day, both the accused were again taken out from the lock up and they were again thoroughly interrogated by him, at which, they got recorded their disclosure statements to him. Supplementary disclosure statement of accused Sandeep is Ex. PW4/E and of accused Sanjay @ Bhura is Ex. PW4/F. At that time, PW4 Ct Surender and PW8 Ct Rajesh had also joined investigation with him, in whose custody, both the accused were kept. Thereafter, both the accused led them to Village Nalgarha in Greater Noida and after reaching there, they took them towards near a tubewell in the fields and got recovered one pistol from the heap of bricks and one packet of Rs. 50,000/, which were 100 notes of Rs. 500/ denomination. The packet was also having the slip of Syndicate bank and stamp of R.K. Enterprises and signatures of Shiv Kumar Verma.
PW17 has further deposed that pistol was checked and four live cartridges were recovered from its magazine. He prepared sketch of the pistol and four live cartridges Ex. PW4/J. On the pistol "automatic pistol made in United Germani" were found engraved. The length of the pistol was 21.5 c.m. and height was 11 c.m. It was 9mm pistol. Cartridges were also of 9mm and words "KF" were found engraved on the bottom of each cartridge. This recovered pistol and live cartridges were put in a plastic dibba and packed with the tape and were sealed with the seal of "TP" and were seized vide memo Ex. PW8/A. He put the recovered Rs. 50,000/ packet in a plastic dibba and sealed the same with the seal of "TP" and it was taken into possession vide memo Ex.PW4/K. Seal after use was handed over to PW4 Ct Surender. Prior to effecting recovery, he asked 45 persons to join the proceedings but none agreed to join and went away without disclosing their names and addresses. After that, they came back at the PS, where the case property was deposited in the malkhana. After medical examination, both the accused were put in lock up and he recorded statements of PW4 Ct Surender and PW8 Ct Rajesh in this regard. During PC remand, both the accused were kept in muffled face.
Session Case No. 140/1 Page 18 of page 33 PW4 Ct Surender and PW8 ASI Rajesh have deposed the same facts as of PW17 SI Tejpal regarding arrest of accused Sandeep @ Dhillu and Sanjay @ Bhura (since expired) and recovery of Rs. 50,000/ got effected by both the accused along with pistol, live cartridges and empty cartridges.
All these witnesses i.e. PW17 SI Tejpal, PW4 Ct Surender and PW8 ASI Rajesh have identified the photocopies of 100 currency notes of Rs. 500/ denomination as the copies of those currency notes, which were got recovered by accused Sandeep @ Dhillu and Sanjay @ Bhura (since expired), before the court as Ex. PW8/1 to 100 collectively. They have further identified the slip of Syndicate bank bearing the seal of R.K. Enterprises, which was affixed on the bundle of currency notes of Rs. 50,000/ got recovered by accused Sandeep and Sanjay as Ex. PW6/1. They have further identified pistol as Ex. P11, live cartridges as Ex. P12 and P13 and empty cartridges as Ex.P14 and Ex. P15 got recovered by accused Sandeep @ Dhillu and Sanjay @ Bhura (since expired). They have further deposed that all the four cartridges were live at the time of recovery.
PW17 SI Tejpal has further deposed that on the next day, both the accused were produced before the concerned Court and at that time, he moved application before the ld. MM to conduct the TIP of both the accused persons, which was fixed for 02/08/2005, but on that day, both the accused refused to join the TIP proceedings before the Ld. MM in Tihar Jail. His application for TIP proceedings is Ex. PW17/I. He also obtained the copy of TIP proceedings vide application Ex. PW17/J. After refusal of TIP proceedings, complainant Shiv Kumar Verma i.e. PW3, who was with him, had identified both the accused and at that time, he recorded supplementary statement of complainant to this effect. Accused Sandeep @ Dhillu was formally arrested by him in this case.
PW17 has further deposed that on 28/07/2005, he got sent the exhibits of the case to FSL Rohini through Ct Anand vide RC. No. 52/21/05 and recorded the statements of MHC(M) and Ct Anand to this effect.
Session Case No. 140/1 Page 19 of page 33 PW6 ASI Dev Singh has deposed that on 24/06/2005, he was posted at PS Paschim Vihar as MHC(M). On that day, PW17 SI Tej Pal got deposited with him one sealed pullanda sealed with the seal of "TP" containing nine packets. Each packet was containing Rs. 50,000/ as per seizure memo. He deposited the same vide entry no.3303.
He has further deposed that on 08/07/05, PW17 SI Tej Pal Singh also got deposited with him one sealed pullanda sealed with the seal of "TP" containing one pistol and four cartridges, which he deposited in malkhana vide entry no. 3331. At the same time, PW17 SI Tej Pal also got deposited with him one sealed pullanda, sealed with the seal of "TP" containing one packet of Rs. 50,000/, which he deposited in the malkhana against entry no. 3331.
PW6 has further deposed that on 28/07/05, vide RC no. 52/21/05, one pullanda of pistol and four cartridges were handed over to Ct Anand to be deposited at FSL Rohini, who accordingly deposited the same and handed over the copy of receipt to him.
PW6 has further deposed that on 09/01/07, one sealed pullanda sealed with the seal of FSL alongwith FSL result and one sample seal were handed over to him by Ct Ashok Kumar and he deposited the same in the malkhana and report of the FSL was handed over to IO. He also made entries regarding the sending of pullandas to FSL, Rohini and again deposited the same in the malkhana, after receipt from FSL.
PW6 ASI Dev Singh has also produced the original register no.19 and RC register no.21 in proof of entries made by him and has proved the copies of entries made by him in register no.19 as Ex.PW6/A collectively. He has also proved copies of the entries made in RC no.52/21/05 as Ex.PW6/B, which also contains the receipt on the back side.
PW11 HC Anand Kumar has deposed that on 28/07/2005, he was posted as HC at PS Paschim Vihar and on that day, as per directions of IO PW17 SI Tej Pal, Session Case No. 140/1 Page 20 of page 33 he took one sealed plastic box sealed with the seal of "TP" containing one 9 mm pistol and 4 live cartridges alongwith FSL form from MHC(M) vide RC no. 52/21/05 to be deposited at FSL, Rohini Delhi and on the same day, he deposited the same at FSL Rohini. He also obtained the receipt of the same from FSL and handed over the same to MHC(M). Till the pullandas remained with him, same was not tampered with by him.
PW13 Sh. Puneet Puri, Senior Scientific Officer (Ballistics), FSL Rohini, Delhi, has deposed that on 28/07/05, one sealed parcel sealed with the seal of "TP" of this case was received in FSL and the same was marked to him for examination. The seals on the parcel were intact and as per the specimen seal, provided with the FSL form. On opening the parcel, one improvised pistol of 9 mm caliber and four 9 mm cartridges were taken out and were marked as exhibits F1 and A1 to A4 respectively by him. On examination, he found that the pistol mark Ex. F1 was in working order. Test fire was conducted successfully by using the cartridges marked Ex. A1 and A2. The pistol marked Ex. F1 was a firearm and the cartridges mark Ex. A1 to A4 were ammunition, as defined in Arms Act 1959. The exhibits were resealed with the seal of PP FSL DELHI. His detailed report in this regard is Ex.PW13/A. PW14 SI Ramesh Thakur has deposed that on 23/05/2006, he was posted at PS Paschim Vihar and on that day, he was entrusted with the case file of this case for further investigation. During the course of investigation, when it remained with him, he collected the FSL result and on the basis of the same, he moved appropriate application before the DCP concerned for obtaining permission u/s. 39 of Arms Act and after obtaining the same, he prepared supplementary chargesheet and filed the same in the court concerned.
During trial, learned defence counsel for accused Sandeep @ Dhillu has admitted report u/s. 39 of Arms Act.
It is contended that information of robbery was recorded vide DD no. 33 Session Case No. 140/1 Page 21 of page 33 dated 17/06/2005 at PS Prashant Vihar at about 3.15 pm day, according to which some persons robbed Rs. 20 lacs from B2 Block, Prashant Vihar, DDA Market, Inderprastha Sehkari bani Ltd. Copy of DD was sent to SI Tejpal through Ct Ved Parkash. It is further contended that statement of complainant was recorded by SI Tej Pal as per rukka Ex.PW17/A at Inderprastha Sehkari Bank and he got registered the case u/s 392/34 of IPC. It is further contended that in the said statement Ex.PW3/A, complainant had no where given the details of the robbed currency notes and denomination rather he told to the IO that Rs. 15 lacs were withdrawn in cash from Syndicate bank, Nangloi and were to be deposited in the Inderprastha Sehkari Ltd bank. It is further contended that even at that time, complainant had not told to the IO that while he had obtained the currency notes from Syndicate bank. He had stamped the packets of the currency notes with the seal of RK Enterprises. It is further contended that this stamp was never seized from the complainant PW3 Shiv Kumar Sharma, in this case to prove that at the time of withdrawing the cash, PW3 was having stamp of RK Enterprises and the same was to be in currency notes and was signed by the complainant. It is further contended that according to the examination in chief of PW3 Shiv Kumar Verma, he has signed the currency notes packets at Syndicate bank at the time of receiving the notes and these were in the denomination of Rs. 500, 100 and 50/.
It is further contended that Sh M.P. Gupta, Chief Manager Nangloi has deposed about the withdrawal of the cash by the complainant and has stated that on 21/08/2005, he was posted at Syndicate Bank as Chief Manager. He has produced the statement of account of M/s Chemsol Traders and M/s Reliable Overseas. On 17/06/2005, complainant Shiv Kumar Verma has withdrawn Rs. 14,80,000/ from the account of the aforesaid company and the statements are Ex.PW1/A and Ex.PW1/B. He has also produced three cheques, vide which amount was withdrawn. It is further contended that there is contradiction about the amount withdrawn from the bank as to whether it was 20 lacs as appearing in DD entry or Session Case No. 140/1 Page 22 of page 33 Rs. 14, 80,000/ or Rs. 14,85,000/ was withdrawn. It is further contended that currency notes denomination was not disclosed by PW3 Shiv Kumar to the IO in the statement given to police Ex.PW3/A but later on it was told that these were in denomination of 500, 100 and 50.
It is further contended that the fact of putting the stamp of R.K. Enterprises on the currency notes packets is an after thought and PW3 has been confronted with this fact when he was cross examined, wherein he has admitted that this fact was not told by him to the police in his statement Ex.PW3/A, so there was every possibility of planting the currency notes packets upon the accused persons to solve this case.
It is further contended that disclosure statement of accused Mukesh @ Bholu was recorded on 24/06/2005 and thereafter according to the case of prosecution he got recovered the currency notes packets, so the complainant could have been called to join the investigation but he has not been joined by the IO nor IO has given any explanation as to why the complainant was not called to join the investigation. It is further contended that according to DW1 Vinod, father of accused Mukesh @ Bholu i.e. Baljeet Singh had asked for Rs. 5 lacs from him as he was in need of the same in reference to accused Mukesh @ Bholu. He arranged the money and handed over the same. At that time accused Mukesh @ Bholi was in police custody. Thereafter, he had made inquiries from the father of accused Mukesh @ Bholu, who said that "ulta Kaam ho gaya". It is further contended that from the deposition of DW1 Vinod, it is clear that no recovery was effected rather on some pretext money was asked from accused Mukesh @ Bholu, which was given to the police and the same were planted upon him and other accused persons.
The witnesses to the recovery of the said currency notes packets from the flat, at the instance of accused Mukesh @ Bholu are PW7 Ct Pradeep, PW9 ASI Kamal Singh and PW17 SI Tej Pal. It is contended that according to the deposition of PW7 Ct Pradeep , accused Mukesh @ Bholu took them to the flat of his friend Session Case No. 140/1 Page 23 of page 33 Monu i.e. flat no. E1/178, Sector11, Rohini, Delhi and after reaching there, accused Mukesh @ Bholu lifted the key of that flat from the chajja and then, after opening the same, he got recovered one polythene containing nine packets of currency notes of Rs. 500/ denomination, which were found having written Syndicate bank slip and stamp of RK Enterprises. It is further contended that ownership of said flat has not been verified in any manner. No public witness was called at the time of making recovery. Even this witness has not been able to depose as to whether the said flat was at ground floor, first floor, second floor or third floor, which shows that police party had not gone anywhere to effect the recovery rather the currency notes , which were called from DW1 Vinod were planted upon the accused as the case property.
It is further contended that similarly PW9 Kamal Singh has not been able to depose any detail about their visit at the said flat from where alleged recovery was effected. No public witness were called to join the investigation nor complainant was called. Ownership of said flat was also not verified. Even this witness has also not been able to disclose about the make of the lock or whether the said lock and key was seized in this case.
It is further contended that TIP of case property was not got done from the complainant through the Court to identify the same and it was was required because even if the currency notes packets were having the seal of syndicate bank but at that time PW3 Complainant had not told to the police in his statement Ex.PW3./A that he had put the stamp of RK Enterprises on the said stamp of Syndicate bank and had signed the same rather by the order of the Court, the case property was released to the complainant and at that time, he had identified the currency notes packets having seal of RK Enterprises signed by him and he had again signed the same slips on that day, while obtaining the original currency notes packets, so this identification of the currency notes is no identification.
Witnesses of recovery of currency notes packets as allegedly recovered Session Case No. 140/1 Page 24 of page 33 from accused Sandeep @ Dhillu and Sanjay @ Bhura (already expired) are Ex.PW4 and PW8. It is further contended that according to PW4 Ct Surender both accused led them to village Nalgarha, Greater Noida, UP and from the fields near the tubewell from a room, which was constructed with bricks they got recovered one pistol, four live cartridges and Rs. 50,000/ after removing the bricks of the said room. It is further contended that there is no public witness to the recovery as alleged. It is further contended that police party had reached at Noida at about
2.002.30 pm and the police party had gone in a private vehicle but PW4 has not been able to depose about the details of the said vehicle.
It is further contended that it has not been inquiry or verified as to whom the said tubewell room and agricultural filed were belonging. It is further contended that according to PW4, tubewell room was found locked but it is not stated as to by whom the lock was opened and what happened to the lock and key and said tubewell room. It is further contended that again it has not been verified as to how the accused persons were related to the said tubewell room or whether they were haaving any control over the said room to conceal the case property there. It is further contended that according to PW8 ASI Rajesh both accused led them near the tubewell in the fiels of village Nalgarha and from the bricks comprising the walls of a nearby of that tubewell, they took out one pistol which contains four live cartridges and Rs. 50,000/ which was one packet of Rs. 500/ denomination having the slip of Syndicate Bank and stamp of RK Enterprises .
On the other hand, Ld. APP has contended that there is a presumption u/s. 114 of Indian Evidence Act, which has not been rebutted in any manner. It is further contended that accused Mukesh @ Bholu did not claim ownership of currency notes, allegedly recovered by the police from his possession, at the time of releasing the same on superdari to the complainant or before that. It is further contended that complainant Shiv Kumar Verma has identified the stamp of R.K. Enterprises and his signatures on the currency note packets, which he had put at the time of receiving the Session Case No. 140/1 Page 25 of page 33 same from the Syndicate Bank. It is further contended that contradictions pointed out by learned defence counsel are minor in nature and are not affecting the depositions of the witnesses to the extent that no such recovery was effected. It is further contended that DW1 Vinod did not come in picture before the stage of defence, which is an afterthought. It is further contended that police officials were not having any enmity to falsely implicate the accused persons in this case.
From the deposition of PW13 Sh. Puneet Puri from FSL, the prosecution has been able to prove that the pistol mark F1 was found in working order and test fire was conducted successfully by using the cartridges A1 to A2. The pistol marked Ex. F1 was a firearm and the cartridges mark Ex. A1 to A4 were ammunition, as defined in Arms Act 1959.
In view of above, the contentions of learned defence counsels of both the accused persons are not tenable in any manner. The police officials were not having any enmity to falsely implicate the falsely implicate the accused persons in this case. The currency note packets recovered from the possession of accused persons in furtherance of their disclosure statements were having slips of Syndicate Bank and were having stamp of R.K. Enterprises with the signatures of complainant. Hence, in view of the same, the deposition of DW1 Vinod is not inspiring any confidence. Both the accused have not been able to explain about the possession of currency notes and accused Sandeep @ Dhillu has also not been able to explain about the possession of pistol and live cartridges, which were recovered on his pointing out in furtherance of his disclosure statement. Accordingly, both have also not claimed the ownership of the recovered currency notes or explained about the possession of the same.
In view of above, the contentions of learned APP are forceful. The witnesses have corroborated each other and are inspiring confidence regarding the recovery of the 9 currency notes packets from the possession of accused Mukesh @ Bholu and one packet from accused Sandeep @ Dhillu and also about the recovery of Session Case No. 140/1 Page 26 of page 33 pistol and live cartridges. Accordingly, accused Mukesh @ Bholu is convicted for the offence u/s. 411 of IPC and accused Sandeep @ Dhillu is also convicted for the offence u/s. 411 of IPC and u/s. 25 of Arms Act.
Announced in the open Court
Today on: 22nd of January, 2015 ( Virender Kumar Goyal)
Additional Sessions Judge,
Fast Track Court,
Rohini/Delhi
Session Case No. 140/1 Page 27 of page 33
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI
SC No. 24A/1
Unique Identification No. 02404R0045562006
State
Versus
1. Mukesh @ Bholu
S/o Baljeet Singh
R/o V.P.O Barwala
Delhi.
FIR No. 522/05
PS Paschim Vihar
U/s. 411 of IPC
Date of Decision: 22/01/2015
Date of order on sentence: 22/01/2015
ORDER ON SENTENCE
22/01/2015
Present: Ld APP for State.
Convict Mukesh @ Bholu in person with learned defence counsel Sh. S.P. Dhankar.
Heard on the point of sentence.
It is contended by learned defence counsel that convict Mukesh @ Bholu is aged about 38 years. He is married, having one daughter. He is also having aged mother to support. It is further contended that he is working privately and is earing Rs.12,000/ per month. It is further contended that he is not a previous convict nor habitual offender and has faced trial of this case since the year 2005. It is further contended that he remained in custody in this case from 24/06/2005 to 07/02/2006, Session Case No. 140/1 Page 28 of page 33 22/02/2006 to 08/08/2006, 24/08/2006 to 02/06/2007, 07/06/2007 to 25/07/2007 and 04/08/2007 to 16/11/2007, hence, a lenient view be taken.
On the other hand, learned APP has contended that considering the nature and gravity of the offence proved against convict Mukesh @ Bholu, appropriate sentence be awarded upon the convict alongwith compensation.
Offence u/s. 411 of IPC is punishable with imprisonment of either description for a term, which may extend to three years, or with fine, or with both.
I have considered the submissions made on behalf of the convict and also on behalf of State alongwith the age, character and antecedents of the convict. Considering the same, sentence of the period already undergone during trial is awarded upon the convict u/s. 411 of IPC.
On the point of compensation, Ld. Defence Counsel has contended that the considering the financial capacity of the convict, minimum compensation be imposed.
It has been held in Delhi Domestic Working Women's forum V. Union of India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.."
Session Case No. 140/1 Page 29 of page 33 In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services.
In view of above, on account of physical or mental harm, including pain, suffering and emotional distress and costs required for legal or expert assistance caused to complainant PW3 Shiv Kumar Verma, compensation to the tune of Rs, 25,000/ is also imposed upon the convict, payable to complainant PW3 Shiv Kumar Verma. In default of payment of compensation, the convict shall further undergo sentence of six months.
Benefit of Section 428 of Cr.P.C. be given to convict.
Fine and compensation not deposited.
Convict is remanded to J.C. to serve the sentence.
Announced in the open Court
Today on: 22nd of January, 2015 ( Virender Kumar Goyal)
Additional Sessions Judge,
Fast Track Court,
Rohini/Delhi
Session Case No. 140/1 Page 30 of page 33
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI
SC No. 24A/1
Unique Identification No. 02404R0045562006
State
Versus
1. Sandeep @ Dhillu
S/o Inder Singh
R/o V.P.O Jasor Khari
PS. Ballabh Garh
Distt. Jhajjar (HR)
FIR No. 522/05
PS Paschim Vihar
U/s. 411 of IPC
& U/s. 25 of Arms Act
Date of Decision: 22/01/2015
Date of order on sentence: 22/01/2015
ORDER ON SENTENCE
22/01/2015
Present: Ld APP for State.
Convict Sandeep @ Dhillu from J.C. with learned defence counsel. Heard on the point of sentence.
It is contended by learned defence counsel that convict Sandeep @ Dhillu is aged about 35 years. He is married, having two children. He is also having old aged mother to support. It is further contended that he was working as agriculturist and is earing Rs. 40,000/ per annum. It is further contended that he is also involved in some other case and is also previously convicted. It is further contended that he remained in custody in this case from 06/07/2005 to 11/04/2008, 29/04/2010 to 20/12/2010 and 27/02/2013 till date, hence, a lenient view be taken.
On the other hand, learned APP has contended that considering the nature Session Case No. 140/1 Page 31 of page 33 and gravity of the offence proved against convict Sandeep @ Dhillu, appropriate sentence be awarded upon the convict alongwith compensation.
Offence u/s. 411 of IPC is punishable with imprisonment of either description for a term, which may extend to three years, or with fine, or with both.
Offence u/s. 25 of Arms Act is punishable with imprisonment for a term, which shall not be less than three years, but which may extend to seven years and shall also be liable to fine.
I have considered the submissions made on behalf of the convict and also on behalf of State alongwith the age, character and antecedents of the convict. Considering the same, sentence of the period already undergone during trial is awarded upon the convict u/s. 411 of IPC.
Sentence of three years S.I. is also imposed u/s. 25 of Arms Act with fine of Rs. 1,000/. In default of payment of fine, he shall further undergo one month simple imprisonment.
On the point of compensation, Ld. Defence counsel has contended that the considering the financial capacity of the convict, minimum compensation be imposed.
It has been held in Delhi Domestic Working Women's forum V. Union of India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation.
Session Case No. 140/1 Page 32 of page 33 These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services.
In view of above, on account of physical or mental harm, including pain, suffering and emotional distress and costs required for legal or expert assistance caused to complainant PW3 Shiv Kumar Verma, compensation to the tune of Rs,25,000/ is also imposed upon the convict, payable to complainant PW3 Shiv Kumar Verma. In default of payment of compensation, the convict shall further undergo sentence of six months.
Benefit of Section 428 of Cr.P.C. be given to convict.
Fine and compensation not deposited.
Convict is remanded to J.C. to serve the sentence.
Announced in the open Court
Today on: 22nd of January, 2015 ( Virender Kumar Goyal)
Additional Sessions Judge,
Fast Track Court,
Rohini/Delhi
Session Case No. 140/1 Page 33 of page 33
Session Case No. 140/1 Page 34 of page 33