Delhi District Court
Fir No. 124/09; State vs . Anand @ Jat Etc. Page 1 Of 35 on 23 April, 2012
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 221/09
FIR No. 124/09
P.S. Adarsh Nagar
U/S: 392/394/397/307/34 IPC
STATE
Versus
(1) Anand @ Jat
s/o Vashu Dev
r/o vill. Bharatpur, Dharishal (Nepal)
Pre. Add: vegabond New Subzi Mandi,
Adarsh Nagar, Azadpur, Delhi
(2) Satish @ Madrasi
s/o Kumar
r/o jhuggi no. 279, Nehru Park,
Haiderpur, Delhi
(3) Parmod Mandal @ Dhukho Mandal
s/o Jiehho Mandal
r/o jhuggi no. AA302, Kela Godown,
Shalimar Bagh, Delhi
Permanent Add: vill. Ekchari,
PS Sanokhar, Distt. Bhagalpur, Bihar
J U D G M E N T
1. The Prosecution case, in brief, is that on 12062009 complainant Raju along with his driver Prem Chand had come to FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 1 of 35 New Subzi Mandi in Tata 1109 bearing no. RJ32G2187 which was loaded with onions and they were standing in front of Phad no. A264. At about 6:30 am when complainant and Prem Chand were standing in front of the truck, four boys came and one of those boys caught the neck of driver Prem Chand and other boys started beating them. One of the boys was in the age group of 11/12 and rest of the boys were in the age group of 2025 years. One of the boys took out a knife and asked Prem Chand and Raju to hand over whatever they had and when they opposed, accused inflicted a knife blow on the left foot of Prem Chand due to which he started bleeding. The other boy forcibly took out Rs. 3,000/ and a mobile phone bearing no. 9650272190 from the pocket of pant of driver Prem Chand and thereafter accused ran away from the spot. Someone informed the police and injured were shifted to BJRM hospital. DD no. 12A was registered and ASI Attar Singh along with Ct. Suresh reached at Phad no. A264, NS Mandi, Azadpur. After leaving the Ct. Suresh at the spot, ASI Attar Singh reached BJRM hospital and collected MLC of injured Prem Chand whereby he was declared unfit for statement. Statement of Raju was recorded and ASI Attar Singh prepared the rukka and got the FIR registered at the PS u/s 392/394/397/34 IPC. Further investigation was entrusted to FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 2 of 35 SI Madan Mohan who came at the spot along with Ct. Suresh. Crime team was called at the spot. On 15062009 a secret information was received to IO that accused wanted in this case were standing near Ingate of Azadpur Subzi Mandi. Raiding team was prepared and at the instance of secret informer, two accused namely Anand @ Jat and Satish @ Madrasi were apprehended. Accused gave disclosure statements that they along with Pramod Mandal and Ballu had committed the crime. At the instance of both accused, third accused namely Pramod Mandal @ Dukho Mandal was arrested from jhuggi no. AA203, Kela godown, Shalimar Bagh, Delhi. Accused Parmod Mandal also made disclosure statement. After completion of investigation, chargesheet was filed in the court u/s 392/394/397/307/34 IPC.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 392/394/307/34 IPC was framed against all the accused. Separate charge u/s 397 IPC was also framed against accused Anand @ Jat. All accused pleaded not guilty to the charges and claimed trial.
3. In order to prove its case, Prosecution examined 19 FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 3 of 35 witnesses. Statements of the accused were recorded u/s 313 Cr. P. C. wherein they denied all the allegations made against them. The accused did not opt to lead evidence in their defence.
4. I have heard Ld. Defence counsel and the Ld. APP for State and have perused the entire records.
5. In the present case, the accused Anand @ Jat, Satish, and Pramod Mandal @ Dukho Mandal have been charged for offence punishable u/s 392/394/307/34 IPC and the accused Anand @ Jat has also been charged u/s 397 IPC. Let us firstly discuss about the legal position under the aforesaid sections of IPC. Section 392 IPC specifies the punishment which can be inflicted in case of simple robbery. The arrest of the culprits in such cases is often delayed on account of the inherent difficulties which the Prosecution naturally faces in such cases. Section 394 IPC speaks of two distinct classes of personsthose who actually caused hurt and those who do not but are jointly concerned in the commission of the offence of robbery. The guilty act of one is imputed to all who are joint with him provided the act is done in committing the offence of robbery. In order that section 307 should be attracted, it is FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 4 of 35 necessary to establish that if the victim would have met his death, the offence would have been one under section 302. There must be some overt act combined with evidence of mens rea. The burden is always on the Prosecution to prove, first the actus reus i.e. the accused had done something which in point of law marked the commission of offence and secondly the mens rea i.e. in taking this step, he was inspired by the intention to go on to reach a definite objective which would constitute a specific offence. The accused must do an act with such a guilt intention and knowledge and in such circumstances that but for some intervening fact the act would have amounted to murder in the normal course of events. The intention or knowledge must be such as is necessary to constitute murder. Without this, there can be no attempt to murder. The section may apply even if no hurt is caused. The causing of hurt is merely an aggravating circumstance and it cannot, therefore, be reasonably argued that unless an injury sufficient in the ordinary course of nature to cause death is inflicted on the victim, the intention contemplated by this section cannot be presumed. All that is necessary to be established is that intention with which the act is done and if once that intention is established, the nature of the act will be immaterial.
FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 5 of 35
6. There must be some change in the act to produce a different reason and the extent to which the act done must be supposed to be varied to produce the hypothetical death referred to in section 307 is merely a question of degree. For instance, where persons, pursued by the police, turned round and fired but nobody was hit as the revolver misfired, the offence would be one under section 307. If a man fires off a fireman while police officer is attempting to arrest him, the natural conclusion is that he is attempting to shoot the police officer. If the defence is that he had merely the intention of frightening the police officer by firing in the air, then the burden of proving that fact is on the defence. It depends upon the facts and circumstances of each case whether the accused had the intention to cause death or knew in the circumstances that his act was going to cause death. The nature of the weapon used, the intention expressed by the accused at the time of the act, the motive for commission of the offence, the nature and size of the injuries, the parts of the body of the victim selected for causing the injuries and the severity of the blow are important factor that may be taken into consideration in coming to a finding whether in a particular case the accused can be convicted of an attempt of murder. In the case of Sarju Prasad Vs. State of Bihar FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 6 of 35 1975 (1) Crl. LJ 766, the Hon'ble Supreme Court observed as under: "Penal Code (1860), Ss. 307 and 324 - Accused causing injury to A in a vital region with a knife - Fact that no vital organ of A has been cut would not by itself be sufficient to take the act of accused out of the purview of S. 307 - But in order to bring the offence home to accused the prosecution must establish that his intention was one of the three kinds mentioned in S. 300 - State of mind of accused has to be deduced from surrounding circumstances and motive would be a relevant circumstance."
7. The Ld. defence counsel has argued that the accused were neither present at the spot nor committed any robbery. Even the accused never inflicted injury nor given beatings upon the injured persons but they sustained injury in a quarrel with the other truck drivers. The police team was not patrolling and did not visit the place of incident. The information of the secret informer was not reduced in writing and even no DD entry was made in this regard. Let us examine the evidence in this regard. PW1 Raju s/o Gyan Chand deposed that on 26062009 he had brought onions in his Tata 1109 bearing no. RJ32G2187 from District Sikar, Rajasthan. At about 4 am, they parked the truck near Phad no. A/264, New Subzi Mandi, Azadpur. Prem Chand was the driver of the truck. After parking the truck, he and Prem Chand were coming out. In the FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 7 of 35 meanwhile, at about 6:30 am, four boys came, one of them caught Prem Chand from his neck, the second boy started beating them, the third boy brought out a knife and asked them to give him whatever they had. When they opposed, the boy who was having the knife, inflicted knife blow on the left foot of Prem Chand. The fourth boy took out mobile phone and Rs. 3500/ from the pocket of Prem Chand. All the four boys then fled away. Prem Chand started bleeding. PW1 further deposed that while he was taking Prem Chand from the Phad, he fell down at some distance. Someone informed the police. The police van came and rushed them to the hospital. PW19 HC Jagat Narain also deposed that on 12062009, he along with staff reached near Shed no. 1718, ABlock, Azadpur, near the gate and shifted the two persons found with injuries to BJRM hospital and got them admitted them. One of the boys had also given him leg and fist blows on his chest. Police recorded his statement Ex. PW1/A. Prem Chand was referred to some other hospital. He was brought at the Chowki Adarsh Nagar. After making inquiry, he was allowed to go. After 23 days, he was called at Police Chowki Adarsh Nagar to identify the accused persons and he identified all the three accused at the Police Chowki (witness identified the accused in the court also). The witness also pointed FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 8 of 35 out that accused Anand @ Jat (correctly identified) had inflicted knife injury to Prem Chand; accused Satish (correctly identified) had caught Prem Chand from his neck and accused Pramod Mandal (correctly identified) had given them beatings.
8. The testimony of PW1 was not in complete consonance with his previous statement, therefore, the Ld. APP for the State was allowed to crossexamine PW1, thereby, PW1 deposed that from BJRM hospital, he came at the spot with ASI Attar Singh and had shown the place of occurrence and also the place where driver Prem Chand had fallen and his blood was lying. Due to infliction of knife, the leg of Prem Chand had to be amputated. The knife was inflicted on the left thigh of driver Prem Chand and not on the left foot. PW1, during crossexamination, denied the suggestion that accused Satish and Pramod were not present at the spot or that had not committed robbery. PW1 further denied the suggestion that he or Prem Chand had not received any injury. PW1 deposed in his crossexamination that police officials reached at the spot after half an hour of his call. He got injury of fist and blows by the accused persons. All the blood stained clothes of driver Prem chand were taken into possession by the police at the hospital. PW1 remained FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 9 of 35 at the hospital for about half an hour and thereafter he went to Police Chowki along with police officials. PW1 denied the suggestion that police had asked him to identify the accused persons in the police chowki as well as in the Court or in the jail or that he was threatened by the police that if he did not identify them in the police chowki or in the court, he would be implicated falsely. PW1 also denied the suggestion that accused Anand had not inflicted knife injury to driver or that he was not involved in the incident and beatings.
9. PW2 Prem Chand deposed that he is working as driver on Tata 1109 bearing no. RJ32G2187. In the month of June 2009, he had brought the truck loaded with onions from Kuchawan City, Rajasthan with Raju, son of the truck driver. They reached New Subzi Mandi, Azadpur at about 4 am and he parked the truck at Phad no. 264. After parking the vehicle, they got down and were standing in front of the truck. At about 6:30 am, four boys including the three accused present in court (correctly identified by the witness) came. Accused Pramod caught him from his neck and other boys tried to snatch money from him. When he protested, accused Anand inflicted a knife blow on his left thigh due to which FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 10 of 35 he started bleeding. The fourth boy who was aged about 1011 years forcibly took out Rs. 3000 and a mobile phone make Nokia from the pocket of his pant. Accused Satish caught his hand. Raju was also given beatings by the accused and thereafter, all the four boys fled away from the spot. Due to the injuries, he started bleeding and became unconscious. During treatment, his leg had to be amputated because the main vein which supplies blood had got cut with the knife and could not be repaired by operation. He handed over treatment papers to the IO after his discharge. PW2 correctly identified the pant Ex. P2 produced from Malkhana in sealed parcel with the seal of FSL.
10. The testimony of PW2 was not in complete consonance with his previous statement, therefore, the Ld. APP for the State was allowed to crossexamine PW2. PW2 deposed that date of incident is 12062009. The boy who was having knife told them to hand over whatever they had. PW2 had forgotten some of the facts due to lapse of time. It is correct that accused persons had tried to kill him. During crossexamination, PW2 deposed that he became unconscious after receiving stab injuries. PW2 denied the suggestion that he was shown the photographs of the accused FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 11 of 35 persons by the IO. PW2 further denied the suggestion that accused Pramod had not caught him from his neck or that accused Satish had not caught his hand at the time of robbery. PW2 also denied the suggestion that he is deposing falsely or that accused persons were not present at the time of incident or that he identified them at the instance of IO. PW2 also deposed that his pant and Tshirt were taken into possession by the police. PW2 regained consciousness at the hospital and he remained in the hospital for about 1 or 1¼ months. His statement was recorded by the police at hospital on the next day from his admission in the hospital. PW2 had given the physical description of the assailants to the police in his statement. PW2 further denied the suggestion that accused persons had not committed any robbery with him. PW2 denied the suggestion that none of the accused persons had inflicted knife injury to him or that he saw the accused persons for the first time in the court. PW2 also denied the suggestion that he sustained injury in a quarrel with other truck drivers or that accused persons were falsely implicated later on.
11. PW3 Constable Manoj deposed that on 12.06.2009, he was posted in Mobile Crime Team, North West District as FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 12 of 35 photographer. On that day, he along with SI Devender went to New Subzi Mandi, Azad Pur at Phad No. A325 where a Canter having Rajasthan number was standing. On the directions of the IO, he took photographs Exbt. PW3/A to Exbt. PW3/F of the spot and handed over to the IO. He brought the negatives of the photographs which are Exbt. PW3/G to PW3/L. The testimony of PW3 was not in complete consonance with his previous statement, therefore, the Ld. APP for the State was allowed to crossexamine PW3. PW3 deposed that the number of the vehicle was Tata 1109 bearing No. RJ32G2187. There was blood on the front side of the truck and there was blood of injured Prem Chand on the Phad number. PW3 denied the suggestion that no blood sample was picked up or sealed from the spot or that he had not visited the spot. PW3 further denied the suggestion that blood was planted by ASI Attar Singh on the truck and he was directed by ASI to photograph the same.
12. PW4 Ct. Suresh Dahiya deposed that on 12.06.2009, he was posted at PS Adarsh Nagar and on that day at about 7.00 am on receipt of DD No. 12A, he along with ASI Attar Singh reached at A/264, New Subzi Mandi, Azad Pur where they came to know that the injured had been rushed to BJRM Hospital by the PCR van. FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 13 of 35 After deputing him at the spot, ASI Attar Singh went to BJRM Hospital. After registration of the FIR, he along with SI Madan Mohan came at the spot. ASI Attar Singh handed over some documents and pullandas to SI Madan Mohan. SI Devender and Constable Manoj from the Crime Team were present at the spot. PW4 further deposed that he along with SI Madan Mohan then went to BJRM Hospital where the doctor informed that injured Prem Chand was referred to RML Hospital. Thereafter, they went to RML Hospital where the injured Prem Chand was declared unfit for statement by the doctor. PW4 in his crossexamination deposed that he had seen the Tata 1109 Canter standing at the spot. The public persons present at the spot had told them that the injured had already been removed to BJRM Hospital. He received the Rukka at 10.00 am. PW4 denied the suggestion that he did not join the investigation of the case or that he gave no statement to the IO. ASI Attar Singh handed over five pullandas to SI Madan Mohan. PW7 HC Ved Prakash deposed that on 15.06.2009, he was posted as HC at PS Adarsh Nagar and on that day, he along with SI Madan Mohan, HC Surender and Constable Satbir were on patrolling duty in the area of PS Adarsh Nagar. At about 10.00 am, when they reached the gate of Azad Pur Mandi, SI Madan Mohan received a FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 14 of 35 secret information that two boys who were standing there, were involved in the incident of robbery along with their associates. PW9 ASI Pushpa received a rukka through Ct. Suresh sent by ASI Attar Singh, on the basis of which, she recorded the FIR no. 124/09 which is Ex. PW9/A (OSR).
13. PW16 Dr. J P Palyia, Casualty Medical Officer, BJRM Hospital, Delhi deposed that he has seen MLC of injured Raju who was examined by him vide MLC Ex. PW16/A. The patient Raju disclosed regarding chest pain as well as pain over face at the time of his examination. There was contusion over lower lip towards right side. Raju was also having mild tenderness over anterior chest wall and was advised chest Xray and referred to SR surgery for opinion. As per the xray report, he was having simple injury as opined by Dr. Neerja, SR Surgery, who left the service and he was acquainted with handwriting and signature of Dr. Neerja. PW16 further deposed that he has also seen MLC of injured Prem Chand prepared by Dr. Vijay (JR) who has left the service from the hospital. He was working as CMO on 12062009 when the aforesaid MLC was prepared by Dr. Vijay. Prem Chand came with alleged history of physical assault with sharp object injury and his BP and radial FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 15 of 35 pulse were not recordable. Femoral artery was palpable. Prem Chand was having injury of 4 cms x 1 cm over left thigh posteriorly. He was given treatment and thereafter referred to SR Surgery for further management. In the Department of Surgery, he was examined by Dr. Neerja vide surgical note at point X on MLC Ex. PW16/B. Dr. Neerja was of the opinion that Prem Chand had penetrating injury in left thigh with injury to left femoral artery. Prem Chand was referred to Higher centre for further management. Dr. Neerja and Dr. Vijay have left the service of the hospital. PW16 was acquainted with the handwriting and signature of both the doctors. He identified the signature of Dr. Vijay at point A and of Dr. Neerja at point B on MLC Ex. PW16/B. PW17 Dr. Suresh Minz, SR (General Surgery), RML Hospital, Delhi deposed that Prem Chand was referred from BJRM hospital for further management and treatment in RML hospital. The discharge slip of patient Prem Chand was prepared in their Unit. On 03092009, he gave opinion on the discharge report of Prem Chand that as per the record, Prem Chand/PW2 was having grievous injury. PW17 proved his opinion as Ex. PW17/A. PW1 Dr. V. K Jha, Medical Officer, BJRM Hospital deposed that on 27072009, he was posted at BJRM Hospital as Medical Officer and on that day, an application was moved by the FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 16 of 35 police of PS Adarsh Nagar in reference to MLC no. 2995/09 dated 12062009 of Prem Chand for giving opinion. The IO produced two sealed parcels, one sealed with the seal of MS BJRM, Jahangirpuri Delhi and other sealed with the seal of MM. Packet no. 1 contained full pant and packet no. 2 contained knife. He prepared sketch of the knife which is Ex. PW1/A. After examining, he opined that the injuries mentioned in the said MLC could have been caused by the weapon of offence examined or similar such weapon. The opinion is Ex. PW1/B. The cut mark on the full pant is consistent with the type of weapon of offence examined. After examination, the aforesaid packets were resealed with the seal of mortuary.
14. The Ld. Defence counsel has further argued that blood samples were neither lifted nor sealed from the spot, therefore, it is planted one. PW5 SI Devender Singh deposed that on 12062009 he along with other members of Crime Team including Ct. Manoj, photographer; Ct. Ram Kishan, Proficient; and driver HC Anand Prakash reached at shed no. A264 and A325326, Azadpur Subzi Mandi at the request of IO ASI Attar Singh. He inspected the spot where a canter bearing no. RJ32 G2187 was standing in front of the shed with blood on its front side and on the floor also. On his FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 17 of 35 directions, IO lifted blood sample from the floor with the help of cotton and kept the same in a plastic container which was kept in a cloth pullanda and sealed with the seal of ASR. Blood was also lifted from the front of the canter with the help of cotton and a pullanda was prepared which was sealed with the seal of ASR. Earth control was also lifted from the spot. Ct. Manoj took photographs of the spot. He prepared his report Ex. PW5/A. PW5 in his crossexamination deposed that plastic boxes were given by him. The blood was on the front portion of the canter below the windscreen. PW5 denied the suggestion that he did not inspect the spot or that no blood sample was lifted. PW5 further denied the suggestion that he had not given the plastic boxes. PW10 deposed that ASI Attar Singh handed over a sealed pullanda bearing the seal of MS BJRM Hospital and four separate sealed pullandas bearing the seal of ASR which contained the blood samples.
15. The Ld. Counsel for the accused has also argued that Raju did not make any statement to the police but the police obtained his signatures on the blank papers. PW1 in his examination in chief deposed that police recorded his statement Ex. PW1/A. IO came at the spot and prepared the site plan on the FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 18 of 35 pointing out of PW1. PW4 in his examination in chief deposed that at about 9.30 am ASI Attar Singh returned back at the spot along with complainant Raju and prepared a Rukka and sent him to the PS for registration of the FIR. SI Madan Mohan recorded the statements of Constable Manoj and SI Devender and also recorded the supplementary statement of Raju. PW10 SI Madan Mohan deposed that on 12.06.2009 he was posted at PS Adarsh Nagar. After registration of the FIR, the investigation of this case was entrusted to him. On receipt of the copy of the FIR and Rukka, he came at the spot at Phad No. A264, New Subzi Mandi Azadpur with Ct. Suresh. ASI Attar Singh and SI Bijender Singh, IC Crime Team and Ct. Manoj from Crime Team met him at the spot. Complainant Raju was also present at the spot. He inspected the spot and prepared the site plan Exbt. PW10/A on the pointing out of Raju.
16. The Ld. Counsel for the accused has argued that all the three accused persons have been lifted from their houses and they have been falsely implicated in this case. The Ld. Counsel for the accused has further contended that even no disclosure statement was given by the accused persons. The IO obtained the thumb impression of the accused on the blank papers and thereafter FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 19 of 35 converted them into disclosure statement. No recovery was effected from the accused and no details of recovered currency were recorded. Further, the currency notes were not identified. PW6 Ct. Satbir Singh deposed that on 15062009 he was posted at PS Adarsh Nagar and on that day, he along with SI Madan Mohan, HC Surender, and HC Ved Prakash reached at Ingate of NS Mandi, Azadpur at about 10 am. On the pointing out of informer, accused Anand @ Jat and accused Satish @ Madrasi (correctly identified by the witness) were arrested in this case vide arrest memos Ex. PW6/A and PW6/B respectively. The personal search was conducted vide personal search memos Ex. PW6/C and PW6/D. On interrogation, both accused gave disclosure statements Ex. PW6/E and PW6/F. Both the accused then led the police party to Shalimar Bagh jhuggis from where accused Pramod Mandal (correctly identified by the witness) was arrested vide arrest memo Ex. PW6/G and his personal search was conducted vide personal search memo Ex. PW6/H. He further deposed that on interrogation, accused Pramod Mandal gave disclosure statement Ex. PW6/I. All the three accused then led the police party at the spot of occurrence at in front of A264, New Subzi Mandi, Azadpur and pointed out the place of occurrence vide pointing out memo Ex. PW6/J. All the FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 20 of 35 three accused were then brought to the PS. The witness identified the knife Ex. P1 and five currency notes of Rs. 100 as Ex. P3 (colly). The testimony of PW6 was not in complete consonance with his previous statement, therefore, the Ld. APP for State was allowed to crossexamine PW6. PW6 deposed that after the arrest of accused Anand, he produced Rs. 500/ from the right pocket of his pant which comprised five notes of Rs. 100 stating that out of Rs. 800 which fell to his share after the incident, he had spent Rs. 300. PW6 further deposed that Rs. 500 were kept in a cloth pullanda and sealed with the seal of MM and seized vide memo Ex. PW6/K. PW6 also deposed that pursuant to his disclosure statement, accused Satish @ Madrasi took the police party to his house no. 279, Nehru Park, Haiderpur, Ground Floor where there was one room. PW6 further deposed that accused Satish @ Madrasi pointed out at his room and told that he had hidden the knife underneath a box in the room. PW6 also deposed that pointing out memo was prepared at the spot which is Ex. PW6/L. PW6 further deposed that accused Satish got recovered a buttondar knife which was lying under the iron box in his room. PW6 also deposed that knife was then kept in a cloth pullanda and sealed with the seal of MM and seized vide memo Ex. PW6/M. PW6 deposed that seal after use was handed FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 21 of 35 over to Ct. Rakesh Kumar.
17. PW6 in his crossexamination deposed that sketch of the knife was prepared in his presence which is Ex. PW6/D1. The accused were taken to Shalimar Bagh jhuggis on foot. Accused Pramod was arrested at 12:10 pm. Mother of Satish was present at his house which was a jhuggi. The iron box was lying and knife was recovered after lifting the iron box. IO was having the seal with him for sealing the knife. All the three accused were present at the time of recovery of knife at the instance of accused Satish. PW6 denied the suggestion that no recovery was effected from the accused in his presence. PW6 also denied the suggestion that accused persons gave no disclosure statement. PW7 denied the suggestion that accused Satish did not give any disclosure statement. PW7 further denied the suggestion that accused Satish was later on lifted from his house or that he was made to sign blank papers which were later on converted into disclosure statement. PW7 denied the suggestion that accused Pramod Mandal did not give any disclosure statement or that IO obtained the thumb impression of accused Pramod Mandal on blank papers and later on converted the same into disclosure statement. Accused Satish @ Madrasi had got FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 22 of 35 prepared the pointing out memo of the place of incident i.e in front of A264, Azad Pur Subzi Mandi. Accused Pramod Mandal, after his arrest from his jhuggi, was straight away brought to the PS. PW7 denied the suggestion that accused Satish @ Madrasi was lifted from his jhuggi while he was sleeping or that the police team was not on patrolling when the accused were arrested. PW7 denied the suggestion that the money recovered from accused Anand @ Jat is not the robbed amount and the same belonged to him or that the same has been falsely planted upon him as recovery. PW7 further denied the suggestion that accused Anand @ Jat was lifted from his house at Jahangir Puri. PW10 deposed in his examination in chief that on search of accused Anand @ Jat, Rs. 500/ which were in the denomination of Rs. 100/ each, were recovered. They were kept in a pullanda which were sealed with the seal of MM. The sealed pullanda was seized vide memo Exbt. PW6/K. PW10 identified the case property i.e. knife Ex. P1; five currency notes as Exbt. P3 (collectively). PW10 denied the suggestion that nothing was recovered from accused Anand @ Jat or that all the proceedings had been conducted in the police station. PW10 also denied the suggestion that all the three accused were lifted from their respective houses and have been falsely implicated in the present FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 23 of 35 case. PW10 deposed that knife was kept beneath the trunk (box). The recovery memo of knife and sketch were signed by accused Satish and other police staff. The sketch of knife was prepared by him. After recovery of knife, they came in the PS and case property was deposited in the Malkhana at about 1 pm. Seal after use was handed over to Ct. Rakesh and he returned the seal after 2--3 days. Case particulars were written by blue pen on the pullanda of knife. PW10 denied the suggestion that nothing was recovered at the instance of accused Satish @ Madrasi or that knife has been planted on the accused. PW13 identified the knife Ex. P1 recovered at the instance of accused Satish @ Madrasi.
18. PW15 HC Prahlad Singh deposed that on 12062009 he was posted as HC at PS Adarsh Nagar as MHCM in the Malkhana and on that day, SI Madan Mohan deposited four sealed pullandas with the seal of ASR, one sealed pullanda with the seal of BJRM hospital along with one sample seal vide Sl. no. 3958, photocopy of the same is Ex. PW15/A (OSR). On 15062009 SI Madan Mohan deposited one sealed pullanda with the seal of MM along with personal search of accused persons Anand and Satish @ Madrasi vide Sl. no. 3961, photocopy of same is Ex. PW15/B (OSR). On FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 24 of 35 28062009 one sealed pullanda was again deposited by SI Madan Mohan with the seal of MM vide Sl. no. 3976, photocopy of same is Ex. PW15/C (OSR). On 30072009 six sealed pullandas and one sample seal of BJRM hospital were sent to FSL Rohini through Ct. Surender Singh vide RC no. 95/21. Photocopy of same is Ex. PW15/D (OSR). On 28012010 six sealed envelopes with the seal of FSL Rohini along with FSL result were deposited by Ct. Dilraj in the Malkhana. The result was handed over to IO SI Madan Mohan. The Ld. APP for the State also tendered the FSL result dated 21012010 as Ex. PX and the report of the biology division as Ex. PY.
19. The Ld. Counsel for accused argued that accused were unmuffled, therefore, the accused refused TIP on 27062009. Even, in police custody, the accused were not in muffled faces. PW10 deposed in his examination in chief that he filed an application Ex. PW10/B for TIP of accused and all the accused refused to take part in the TIP. PW11 Ms. Shunali Gupta, MM deposed that on 25.06.2009, she was posted as MM at Rohini Courts. On that day, an application for TIP of accused was marked to her by Link MM Sh. Neeraj Gaur. The TIP was fixed for FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 25 of 35 26.06.2009 with directions to Jail Superintendent to make necessary arrangements. The TIP could not be conducted on 26.06.2009. On 27.06.2009, accused persons were produced in court. The accused persons however refused to take part in TIP stating that they had been shown to the witnesses at the police station. PW11 exhibited the proceedings of Test Identification Parade as Exbt. PW11/A and certificate as Exbt. PW11/B. IO applied for the copy of the proceedings vide application Ex. PW11/C and carbon copy of the application of the IO for TIP is Exbt. PW11/D. In this context, a reliance can be placed upon the judgement reported as Kalam @ Abdul Kalam (Md.) Vs. State of Rajasthan 2008 IV AD (SC) 453, it was held that there is no provision in the court which obliges the investigating agency to hold or confers a right upon the accused to claim a TIP. TIP do not constitute substantive evidence. Therefore, failure to hold TIP would not make inadmissible the evidence of identification in the court. Further, it cannot be held that in the absence of test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless. Thus, identification of the accused at the trial stage did not precede by any test identification parade can be of no serious consequence and cannot adversely affect the veracity of the FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 26 of 35 evidence of the complainant.
20. The Ld. Counsel for the accused has further argued that there are material contradictions in the testimony of PWs which go to the root of the case and on this ground, the Prosecution case falls down. Whereas the Ld. APP for the State has argued that there is no contradictions in the testimony of PWs. The accused cannot get the benefit of the minor contradictions in the statement of PWs, if any. In this context, I would place a reliance upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. It was further held that minor omissions in police statement never considered to be fatal. In the present case, in my considered view, if minor contradictions in the testimony of PWs are there, it does not shake the basic version of Prosecution case. Therefore, undue importance to such minor contradictions cannot be given if the other materials and evidence are there on record to corroborate the testimony of the witnesses on behalf of the Prosecution. Although there are some contradictions in the testimony of PWs but these contradictions are minor and do not go to the root or core of this case.
FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 27 of 35
21. The Ld. Counsel for the accused has also argued that no appropriate steps were taken by the police to join independent or public witnesses, therefore, nonjoining of the public witnesses in the investigation is fatal to the Prosecution case. During cross examination, PW1 deposed that they were near the truck when the incident took place. About 150200 public persons gathered at the spot. On raising the noise by them, the accused persons showed knife. No one from the public persons gathered on the spot chased the accused persons. PW2 in his crossexamination deposed that at that time public persons were coming and going as it was a mandi place. No one came to rescue them and he also cried "bachao bachao" but none came for their help. PW3 deposed in his cross examination that public persons were standing far from the spot. During crossexamination, PW10 deposed that no public person agreed to become witness from near phad no. A264. None of the truck owners or drivers agreed to become witness in the present case on his request. PW10 requested several passersby to join the investigation but they refused. It is pertinent to mention here that the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers is absolutely untrustworthy or that it can never be acted upon. It has FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 28 of 35 been held in a catena of judgements by the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for not joining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194. Further, there is no principle of law that without corroboration by independent witnesses, testimonies of police officials cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as to the other person. Thus, it would not be a proper judicial approach to distrust and suspect the testimonies of police officials without good grounds. The statements made by the police officials as witnesses should be given same weight as statements made by other witnesses. In this context, a reliance can be placed upon the judgments reported as Karamjit Singh Vs. State (Delhi Administration), AIR 2003 SC 1311 and Ritesh Kumar Vs. State of Goa, 2006 Cri. LJ (NOC) 61 (Bom). FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 29 of 35
22. It has been proved by way of evidence and the testimony of PW1/ Raju, PW2/ Prem Chand that on 26062009, the accused Satish caught PW2/ Prem Chand from his neck and accused Pramod Mandal had given them beatings. The accused Anand @ Jat inflicted a knife blow on his left thigh due to which PW2 started bleeding and he became unconscious. Further, during treatment, the leg of PW2 was amputated since the main vein which supplies blood had got cut with the knife and could not be repaired by operation. Meaning thereby, the accused persons had tried to kill Prem Chand/ PW2. Moreover, PW2 remained in the hospital for about 1 or 1¼ months. Photographs of the spot were taken over. FIR has been proved by PW9. PW16 Dr. J. P. Palyia has proved the MLCs of injured Raju and Prem Chand. Raju was having simple injury. PW17 Dr. Suresh Minz proved his opinion that Prem Chand/ PW2 was having grievous injury. PW1 Dr. V. K. Jha also opined that injuries mentioned in the MLC could have been caused by the weapon of offence examined or similar such weapon. The cut mark on the full pant was also in consistent with the type of offence examined. PW5 SI Devencer Singh inspected the spot and upon his direction, IO lifted blood samples from the spot and vehicle. Earth control was also lifted from the spot. Police recorded the FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 30 of 35 statement of Raju/PW1/ complainant. Site plan also prepared on the pointing out of Raju. Accused were identified, arrest of the accused were made and disclosure statements were given by the accused persons upon which recovery of knife and currency notes were also made. FSL reports Ex. PX and PY have also been tendered on behalf of the Prosecution which has not been objected to by the accused persons meaning thereby PX and PY are unrebutted and are treated as proved in evidence on behalf of Prosecution.
23. In view of my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold all the accused namely Anand @ Jat, Satish @ Madrasi and Pramod Mandal @ Dhukho Mandal guilty and convict them u/s 394/307/34 IPC. Accused Anand @ Jat is also convicted for the offence u/s 397 IPC.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT ON 23042012 FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 31 of 35 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW : ROHINI : DELHI SESSIONS CASE NO. 221/09 FIR No. 124/09 P.S. Adarsh Nagar U/S: 392/394/397/307/34 IPC STATE Versus (1) Anand @ Jat s/o Vashu Dev r/o vill. Bharatpur, Dharishal (Nepal) Pre. Add: vegabond New Subzi Mandi, Adarsh Nagar, Azadpur, Delhi (2) Satish @ Madrasi s/o Kumar r/o jhuggi no. 279, Nehru Park, Haiderpur, Delhi (3) Parmod Mandal @ Dhukho Mandal s/o Jiehho Mandal r/o jhuggi no. AA302, Kela Godown, Shalimar Bagh, Delhi Permanent Add: vill. Ekchari, PS Sanokhar, Distt. Bhagalpur, Bihar Order on Sentence
1. Arguments have been heard from Ld. Defence counsel as also from Ld. APP for State. Ld. Defence counsel has argued FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 32 of 35 that convict Pramod Mandal is aged 26 years and having three daughters aged 8, 5 and 1½ years and also wife who are dependent on him. The convict Pramod has remained in J/C for about one year. The convict Anand @ Jat is aged 24 years having five years old daughter and wife to look them after. He is the sole bread earner of his family. Two criminal cases are already pending against him at PS Adarsh Nagar, New Delhi. He is in J/C since 15062009. Convict Satish is aged 22 years. His parents have already expired. He is in J/C for about 1½ years. There is no criminal case pending against the convict Pramod and Satish and even the convict Pramod and Satish have not been convicted in any criminal case except the present one. The Ld. Counsel for the convicts has further argued that keeping in view the age and conditions of the convicts, they may be given the benefit of probation taking lenient view. In support of his arguments, Ld. Counsel for convicts has relied upon the judgements reported as Raju Vs. State 2010 V AD (CRI.) (DHC) 395; Rajinder Singh Vs. State, Crl. Appeal no. 4 of 1994 decided on 01121996 (DHC); Bihari Lal Vs. The State, Crl. Appeal no. 200, 246, 247 of 1976(DHC); and Manoj Tyagi Vs. Gaurav @ Chotu and Anr., Crl. A. no. 37/2011 decided on 25052011 (DHC).
FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 33 of 35
2. The Ld. APP for the State has argued that all the convicts have been charged and convicted u/s 394/307/34 IPC and convict Anand @ Jat has also been convicted u/s 397 IPC therefore, mitigating circumstances are to be considered which depends case to case. In the present case, convict Anand @ Jat inflicted knife injury upon the leg of Prem Chand and impact of the injury inflicted by knife by the convict is that leg of Prem Chand injured was amputated. It is not the case where the persons quarrelled with each other but it is a case of robbery. Previous track record of the convicts may also be considered at the time of awarding sentence. Therefore, the convicts should be given appropriate sentences as per law.
3. I have perused the aforesaid judgements relied upon by the Ld. Counsel for the convicts which are not applicable to the facts and circumstances of the present case. The offence u/s 307 and 394 IPC are punishable with life imprisonment and as such benefit of probation under the provisions of section 4 or section 6 of Probation of Offenders Act cannot be extended to the convicts. The minimum term of imprisonment u/s 397 IPC is seven years. Accused Anand @ Jat committed the offence punishable u/s 397 IPC, there is no reason why he should be awarded a sentence less FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 34 of 35 than the minimum prescribed for the said offence. Nowadays, such crimes are being committed frequently which are required to be curbed, therefore, deterrent punishment is called for.
4. Considering the totality of facts and circumstances, all the convicts namely Anand @ Jat, Satish @ Madrasi and Parmod Mandal @ Dhukho Mandal are sentenced with five years Rigorous Imprisonment u/s 394/307/34 IPC along with a fine of Rs. 3,000/ each, in default of payment of which they shall undergo three months SI. Convict Anand @ Jat is further sentenced with seven years Rigorous Imprisonment u/s 397 IPC along with a fine of Rs. 5,000/ in default of payment of which he shall undergo six months SI. All the sentences shall run concurrently. Convicts shall get benefit of section 428 Cr. P. C. for the period during which they remained in custody during investigation/ trial. Copy of judgement and order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 23052012 FIR No. 124/09; State Vs. Anand @ Jat Etc. Page 35 of 35