Delhi District Court
State vs . Monu on 20 May, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II(NORTH-WEST): ROHINI COURTS: DELHI
Session Case No. 1158/09
Unique Case ID No.: 024040260702009
State Vs. Monu
S/o Sh. Lakhan Lal
R/o Jhuggi No. N 86/87,
Railway Line Lawrence Road,
Delhi.
(Convicted)
FIR No.: 216/06
Police Station: Keshav Puram
Under Section: 457/380/392/397/34 IPC
Date of committal to sessions court: 29.10.2009
Date of which orders were reserved: 19.4.2011
Date of Judgment: 11.5.2011
JUDGMENT:
As per the allegations on 26.7.2009 at about 3:30 am the accused Monu along with his co-accused Kallu (not arrested) in furtherance of his common intention committed robbery of jewellery and Rs.40,000/- cash of Smt. Nishi Babuta by using a knife.
BRIEF FACTS/ CASE OF THE PROSECUTION:
The case of the prosecution is that on 26.7.2009 DD No. 16B was received at Police Station Keshav Puram pursuant to which HC Narender along with Ct. Gurjeet reached at House No. State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 1 10-C, MIG Flats, Ram Pura, Delhi where Smt. Nishi Babuta met them and gave her statement. Smt. Nishi Babuta informed the police that on 26.7.2009 at about 3:30 am she heard a noise when she saw that two persons aged about 25 years were inside the room and removed the jewellery and Rs.40,000/- cash. According to her, she saw that the jali near the kundi of the gate had been cut. On the basis of the statement made by Smt. Nishi Babuta initially an FIR under Section 457/380 IPC was registered.
On the same day the complainant made another statement stating that two gold necklace, four gold bangles, two gold chains, two lady's ring, one pair ear ring and one Mangalsutra were stolen and she suspected on the accused Monu (accused before the court) who is the son of her maid servant. She further informed the police that when she heard the noise she woke up and one thief forced her to remain silent. On 28.7.2009 accused Monu was arrested in this case on the identification of the complainant and during interrogation the accused Monu disclosed the name of other boy as Kallu who could not be arrested as his whereabouts were not known. On 2.8.2009 the complainant got recorded her supplementary statement wherein she stated that on the day of incident two persons entered her house and tied her with a chunni by applying criminal force and due to fear she could not tell the aforesaid facts to the police. After completion of investigations charge sheet was filed against the accused Monu under Section 457/380/392/397 IPC.State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 2
CHARGE:
This court has settled the charges under Sections 392/397/34 Indian Penal Code against the accused Monu to which he pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove its case the prosecution has examined only seven witnesses as under:
Complainant/ victim/ eye witness:
PW3 Smt. Nishi Babuta has deposed that on 26.07.2009 at about 3.00AM-3:15 AM (Night) while she was sleeping in the front/ drawing room, she heard a noise on which she woke up and found the two boys standing next to her. She recognized one boy as Monu the accused who was correctly identified by the witness in the court was the son of her maid servant Meera, who was residing in a Jhuggi along the railway line near Britannia. According to this witness, accused Monu came to her and put a knife on her stomach and threatened to kill her in case if she raised an alarm and the other boy who she could not recognized was sent to the other room by Monu. The witness has further deposed that Monu tied her mouth, hands and legs with her own chunnies which he removed from her almirah and thereafter the other boy removed her valuable articles i.e. cash to the tune of rupees 40-45 thousand which were kept in the almirah along with two gold sets, four gold karas, two gents gold rings, two ladies gold rings, one mangalsutra belonging to her two State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 3 married daughters who had kept the same with her when they had come for marriage and one gold chain belonging to her.
According to her, the accused Monu himself removed her ear rings, chain, nose pin, two karas and two rings which she was wearing and while removing the same, he had used so much forced upon her that she started bleeding from nose from where he had removed the nose pin and the ring from hand which was very tight. The witness has further deposed that the whole episode lasted till around 5 AM. She deposed that her grandson Ishaan Makkar aged about 8 years was also sleeping with her on that day on the dewan of the same room but he did not come to know of the incident till such time she called out to him to free her hands and legs after these boys went away. The witness has further deposed that she is having three daughters, who are all married and her husband works in Nainital and on the said date only she and her grandson were at home and after the incident she immediately called up her husband and her son in-law who called the police. She has identified her statement Ex.PW3/A bearing her signatures at point A. According to her, when the police came at the spot she shown them the place where incident took place and the site plan was prepared at her instance which is Ex.PW3/B. She has also stated that she provided to the police the list of articles which had been stolen from her house and informed the investigating officer about the address of Meera, her maid servant who is also the mother of Monu and it was on her identification that the accused Monu was arrested vide memo State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 4 Ex.PW3/C bearing her signature at point A and personally searched in her presence vide memo Ex.PW3/D bearing her signature at point A. According to the witness, the crime team had also come to the spot and tried to lift the finger prints in her presence, but nothing has been recovered till date. She has correctly identified the accused Monu in the court.
During her cross examination by the accused, the witness PW3 has denied the suggestion that she has falsely implicated Monu on suspicion or that Monu had never entered her house as alleged by her nor he had committed any robbery. According to the witness, nothing has been recovered from the possession of Monu. Witness is unable to tell if the finger prints of Monu were found at the spot. She has denied the suggestion that at the time of incident there was total darkness in the room where she was sleeping and she could not identify the intruders and that she has falsely implicated Monu only on suspicion. She deposed that the knife which Monu had put on her was the knife commonly used by Subzi walas. She has admitted that in her first statement which is Ex.PW3/A, she did not name the accused Monu. She further deposed that she did not know his name initially but she knew him by face and she had told the police that one of the boys who entered in her house was the son of her maid servant. She denied that she had not made and such statement to the Police. The witness was confronted with the statement Ex.PW3/A where this fact of identification of accused Monu is not mentioned in her first statement but I may observe that it finds State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 5 a mention in her supplementary statement recorded on the same day. Witness is unable to tell if she had not mentioned this fact to the investigating officer regarding her jewelery having being removed by Monu after he tied her with her chunny. The witness was confronted with her statement Ex.PW3/A where this fact is not recorded. According to the witness, they have one drawing room and two bed rooms in their house and her grandson was sleeping in the drawing room on the dewan. She has denied the suggestion that her grandson was not present in the same room and states that she had mentioned this fact to the investigating officer. The witness was confronted with her statement Ex.PW3/DX1 wherein this fact is not so recorded. The witness has denied the suggestion that she had not given the list of stolen articles to the police. According to her, she had told the police about it. The witness was confronted with her statement Ex.PW3/DX1, PW3/DX2 and PW3/DX3 which shows that for the first time the details of the articles were provided to the IO only on 02/08/2009. She has denied the suggestion that she has falsely implicated the accused Monu.
PW5 Master Ishaan Makkar (aged 8 years) is the grandson of the complainant Smt. Nishi Babuta. He has been examined on oath after this court was satisfied that he understand the sanctity of oath. He has deposed that one year back (from the date of his deposition) he along with his younger brother Parth Makkar had gone to the house of his maternal grandmother Smt. Nishi R/o 10-C, MIG Flats, Rampura, Delhi. According to him, State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 6 on that day they slept in the house of their maternal grandmother and during the night at about 4:00 am his maternal grandmother called him on which he woke up and reached in another room where his maternal grandmother was sleeping and found that she was tied with Chunni on the bed of his Nani's room. He has testified that he opened her hands and neck/ mouth and later police made inquiries from him. The witness has not been cross- examined by the accused.
Police witnesses:
PW1 HC Ram Kishan has deposed that on 26.7.2009 he was posted as Duty Officer at Police Station Keshav Puram and was on duty from 9.00/AM to 5.00 PM and on that day Ct. Gurjeet Singh No. 1031/NW brought rukka sent by HC Narender. He made the endorsement on the same and registered the FIR bearing No. 216/2009 U/s 457/380/34 IPC, the copy of which is Ex.PW1/A and the endorsement on rukka is Ex.PW1/B bearing his signatures at point A. According to witness, the investigations of the case was handed over to HC Narender Singh.
This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
PW2 SI Sat Pal has deposed that on 26.07.2009 he was posted at Incharge, Crime Team, North West District and on that day he received a call from Control Room, North West District, pursuant to which he went to the spot i.e. 10C, MIG Flats, Rampura, Delhi. He tried to lift finger prints but could not find any chance prints. He thereafter prepared his report which is State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 7 Ex.PW2/A bearing his signatures at point A and handed over the same to the IO/HC Narender. This witness has not been cross examined on behalf of the accused despite opportunity in this regard.
PW4 Ct. Sher Singh Rathi has deposed that he joined investigation of this case with HC Narender on 28/07/2009 and on that day he along with HC Narender went to MIG flats near SDM Office, Rampura where they met the complainant Nishi Babuta and her husband. They accompanied both of them to the railway line N-86 Jhuggi Lawrence Road, where they found accused Monu sitting near the railway line and on pointing of Nishi Babuta he was apprehended and brought him to the police station and interrogated him and produced him before the magistrate.
This witness (PW4) has been cross examined by Ld. Addl. PP with due permission of the court wherein the witness has deposed that the accused was arrested vide memo Ex.PW3/C bearing his signature at point C and his personal search was taken vide memo Ex.PW3/B bearing his signature at point B. He has admitted that after the accused was brought to the police station, he made a disclosure Ex.PW4/A bearing his signature at point A. The witness has correctly identified the accused Monu in the court.
During his cross examination by the accused, the witness PW4 has denied the suggestion that the complainant Nishi Babuta did not accompany them and the accused Monu had State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 8 been told that the complainant Nishi Babuta with whom his mother was working had called him and when the accused Monu went to the house of Nishi Babuta he was apprehended. He further denied the suggestion that the disclosure of the accused was forcibly and wrongfully recorded and he has been falsely implicated.
PW6 HC Narender has deposed that on 26.7.2009 he was posted at police station Keshav Puram and on that day on receipt of DD No. 16 which is Ex.PW6/A, he along with Ct. Gurjeet Singh reached at House No.10C, MIG Flats, Ram Pura, Delhi where Smt. Nishi Babuta met them and her statement was recorded vide Ex.PW3/A. He thereafter prepared the rukka Ex.PW6/B bearing his signatures at point A and got the FIR registered through Ct. Gurjeet Singh. According to the witness, he sent the message to crime team which came to the spot and inspected the spot. He prepared the site plan which is Ex.PW3/B bearing his signatures at point A and collected the Crime Team report which is Ex.PW2/A. He also made efforts to trace the accused who till then could not be traced. According to the witness, on the same day the supplementary statement of the complainant Nishi Babuta was recorded in which she has stated that two gold necklaces, four gold bangles, two gold chains, two ladies ring and one pair of ear rings and one mangalstura were also stolen and raised the suspicion against the accused Monu who was her maid servant. He has further deposed that, he joined the investigations with the complainant on 28.7.2009 and the State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 9 accused Monu (correctly identified by the witness) was arrested in this case from N-86, Railway Line Jhuggi at her instance while he was sitting on railway line who was interrogated and arrested in this case vide memo Ex.PW3/C bearing his signatures at point C and personally searched vide memo Ex.PW3/D bearing his signatures at point C and his disclosure statement was also recorded which is Ex.PW4/A bearing signatures of the witness at point B. According to the witness, on 2.8.2009 the supplementary statement of Smt. Nishi Babuta was also recorded who had disclosed that on the day of incident, two persons entered into her house and tied her with a Chunni by applying criminal force and due to fear she could not tell these facts in her statements recorded earlier. The witness has further deposed that he thereafter added Section 392 IPC in this case and further investigations were handed over to ASI H. Rehman.
In his cross examination by Ld. defence counsel, the witness PW6 has deposed that he received information regarding the incident at about 9:30 AM at police station and started for the spot after five minutes of the same but he did not make any departure entry. According to him, he along with Ct. Gurjeet started for the spot on his private motorcycle and reached the spot within five-six minutes and found only one or two public persons there. Witness has further deposed that the spot is a residential area. He recorded the statement of complainant after five minutes of his reaching there. He made inquires from the neighbours of complainant but he is unable to tell the names and addresses of State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 10 the said neighbours. He has denied the suggestion he is unable to tell the names and addresses of the said neighbours as he did not make any inquires from them. The witness has further deposed that the crime team came to the spot at about 12:30 PM and at that time, there were three officials in the crime team. They remained at the spot for about half an hour. According to the witness, on 26.07.2009 the complainant did not mention the name or description of the accused but he did not send the complainant for his medical examination. He remained at the spot for about four hours. He did not serve any legal notice to the public persons who were asked to join the investigations by him. He returned to police station at about 2 PM. He is unable to tell whether he made the arrival entry after reaching the police station. According to the witness, on 28.07.2009 he did not give any notice to the complainant to join her in the investigations of the present case. He deposed that the complainant met him near Rampura, SDM office from where they all went to the jhuggi of accused on foot, which is near the railway line. The witness has deposed that public persons were present there at the railway line. He asked the public persons to join the investigations but none agreed. Witness is unable to tell the names and addresses of those public persons who refused to join the investigations, but he did not give any notice to them. According to the witness, the accused was apprehended suddenly and all the documentation work will done at the spot while standing at the spot in the light coming from the jhuggies. He has deposed that the information of arrest of accused was given to the mother of accused but her State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 11 signature was not obtained by him on the arrest memo. He has also deposed that the accused was brought to the police station on foot and the arrival entry was made at police station mentioning the facts of the arrest and disclosure of accused Monu, but he is unable to tell the said DD number. Witness has admitted that no recovery was effected from the accused Monu and that the the said DD was not attached with the charge sheet. He further admits that the specimen of finger prints of accused Monu was not taken by him in the present case. Witness has denied the suggestion that he did not record the statement of the complainant or that he has falsely implicated the accused at the instance of the complainant. He has further denied the suggestion that the accused was not apprehended by him nor he disclosed about the said incident. He further denied that the accused was lifted from his house and falsely implicated in the present case or that all the writing work was done while sitting at the police station.
PW7 ASI Hafizur-Rehman has deposed that on 09.08.2009 he was posted at police station Keshav Puram and on that day further investigations of this case was handed over to him and he received the case file from HC Narender. He thereafter made efforts to trace the co-accused Kallu but he could not be apprehended despite his best efforts. He thereafter recorded the statement of Ishaan Makkar, the grand son of complainant Nishi Babuta under Section 161 Code of Criminal Procedure on 14.09.2009. He prepared the charge sheet on 24.09.2009 in this case.
State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 12During his cross examination by Ld. defence counsel, the witness PW7 has deposed that there is a over writing on the statement of Ishaan Makkar U/S 161 Cr. P.C at point A and at point B, the statement is mark PX1. He has denied the suggestion that he did not join the investigations of this case or that his name has been cited as a witness in this case by the previous IO HC Narender of his own. He has further denied the suggestion that he did not conduct investigations or that he has deposed falsely.
Statement of the accused/ defence evidence:
After completion of prosecution evidence, statement of the accused was recorded under Section 313 Code of Criminal Procedure wherein all incriminating evidence was put to him which he has denied. He has stated that he is innocent and has been falsely implicated in the present case and nothing was recovered from him or at his instance. He has denied having made any disclosure statement to the police. However, the accused has preferred not to examine any witness in his defence.
FINDINGS:
I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. counsel appearing on behalf of the accused. I have also gone through the testimonies of the various witnesses examined by the prosecution and considered the written synopsis of arguments filed by the Ld. Amicus Curiae.State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 13
Identity of the accused:
In so far as the identity of the accused is concerned, he has been duly identified by the victim Smt. Nishi Babuta (PW3) the complainant in the present case who has been examined as PW3. She has correctly identified the complaint made by her to the police which is Ex.PW3/A bearing her signatures at point A and also identified the signatures on the arrest memo of the accused Monu who had been apprehended at her pointing out. Even in the court, she has correctly identified the accused Monu who according to her is the son of her maid servant. It has been vehemently argued by the Ld. counsel appearing on behalf of the accused that the accused Monu has been implicated in the present case by the investigating officer only on the basis of suspicion expressed by the complainant Smt. Nishi Babuta and it would evident from the first statement made by her to the police that she despite having known the identity of the accused, did not name him and has stated that the offence had been committed by unknown person. He submits that under these circumstances, since there is no other incriminating evidence against the accused the testimony of Smt. Nishi Babuta is liable to be discarded.
I have considered the submissions made by the Ld. Amicus Curiae appearing on behalf of the accused and I may observe that the complainant Nishi Babuta is a middle aged housewife aged about 56 years staying alone in the premises as State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 14 her husband is posted out of Delhi at Nanital. She has three daughters all of whom are married and residing separately. On the date of incident at night she was alone in her house along with her grandson (son of her daughter) Ishaan Makkar aged about eight years. The witness has explained that after the incident she scared and perplexed also because while removing the jewellery from her nose the accused had used so much of force that she had started bleeding from her nose and from the finger from where the accused removed the ring which was very tight. This incident had taken place at about 3:00 am to 5:00 am and on the very same day, the victim made a supplementary statement informing the police that she had suspicion on the son of her maid servant and also told the police that she could identify the boy who had removed her jewellery articles as she had seen his face. She has further explained that at the time of the incident she was not aware the name of the son of her maid servant Meera but only knew that the son of Meera (the present accused Monu) used to often come to her house that is why she could recollect his face. The explanation given by the witness is natural and reasonable. Any person under the given circumstances would have been extremely disturbed and perplexed as the complainant and not in a proper state to give the complete details. Naturally it was only when the victim was more relaxed that she gave her supplementary statement on the same day after few hours. Not having known the accused previously but having seen him only on a couple of occasions when he used to come to her house when his mother Meera was under the employment of the State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 15 complainant as a part time maid, it is only natural that the complainant who at the time of the incident was perplexed might not have recollected the identity at the initial stage when she was still in a state of shock. However, on the very next day she led the police party to the house of her maid servant and it was on her identification that the accused Monu was arrested. In the court the witness Smt. Nishi Babuta has identified the accused Monu as the boy who had put a knife and threatened to kill her in case if she raise an alarm and had tied her moth and hands with a Chunni which he removed from her almirah. She has also identified the accused Monu as the boy who had removed her earrings, chain, nose pin, two karas and two rings which she was wearing and had used so much of force that she started bleeding from her nose and from the hand while removing the rings which were very tight. This being the circumstances, there is no reason to disbelieve the witness Nishi Babuta in so far as the identity of the accused is concerned since a valid explanation is forthcoming for not disclosing the details in her first statement made to the police. The fact that the complainant immediately on the same day informed the police regarding her suspicion and the fact that she could identify the accused who had removed the jewellry articles, prove that the information give to the police was at the earliest possible opportunity and the testimony of Nishi Babuta is credible and authentic and I hereby hold that the identity of the accused Monu stands established.
State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 16Allegations against the accused:
The case of the prosecution is that the present accused Monu along with another boy committed armed robbery in the house of the complainant between 3:00 am to 5:00 am. In this regard Nishi Babuta (PW3) is the most important witness. She is the complainant who had been threatened by the accused Koney with a knife whom she had identified in the court. The relevant portion of her testimony is as under:
On 26.07.2009 at about 3.00AM-3:15 AM (Night) while I was sleeping in the front/drawing room. I heard a noise and woke up and found the two boys were standing next to me. I recognized one boy as Monu the accused present in the the court who was the son of my maid servant Meera, who is residing in a Jhuggi along the railway line near Britannia. Monu came to me and put a knife on my stomach and threatened to kill me in case if I raised an alarm and the other boy who I could not recognized was sent to the other room by Monu. Monu tied my mouth, hands and legs with my own chunnies which he removed from my almirah. Thereafter the other boy removed my valuable articles i.e. cash to the tune of 40-45 thousand Rupees which were kept in the almirah along with two gold sets, four gold karas, two gents gold rings, two ladies gold rings, State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 17 one mangalsutra belonging to my two married daughters who had kept the same with me when they had come for marriage and one gold chain belonging to me. Monu himself removed my ear rings, chain, nose pin, two karas and two rings which I was wearing. He had used so much forced upon me while removing these articles that I started bleeding from my nose from where he had removed my nose pin and the ring from my hand which was very tight. The whole episode lasted till around 5 AM. My grandson Ishant Makkar aged about 8 years was also sleeping with me on that day on the dewan of the same room but he did not come to know of the incident till such time I called out to him to free my hands and legs after these boys went away.
It is evident from the aforesaid that the complainant has attributed a specific role to the accused Monu as the boy who had threatened her with a knife while committing robbery and had tied her mouth, legs and hands with her own Chunni while the other boy removed the valuables i.e. cash to the tune of Rs.40 to Rs.45 thousand which she had kept in the almirah along with two gold sets, four gold karas, two gents gold rings, two lady;s gold rings, one Mangalsutra belonging to her married daughters who had kept the same with her when they had come for marriage State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 18 and a gold chain belonging to her. She has specifically deposed that the accused Monu himself removed her nose pin, two karas and two rings which she was wearing at that time. According to the witness, she has also given the list of the stolen articles to the police which were robbed from her house and the accused Monu had been apprehended on her pointing out. The testimony of PW3 Smt. Nishi Babuta on the aspect of role of accused is very clear and specific and there is no reason to doubt the same and I hereby hold that the prosecution has been successful in proving that the accused hat committed armed robbery at the house of the complainant on 26.7.2009.
Arguments of the accused:
Ld. counsel appearing on behalf of the accused has vehemently argued that there is no independent corroboration to the testimony of complainant Nishi Babuta (PW3) in as much as no chance prints could be found at the spot nor any recovery has been made from the accused Monu pursuant to his arrest. In this regard I may observe that merely because the chance prints have not been lifted will be no ground to disbelieve the complainant. Further, in so far as the aspect of the recovery of articles is concerned, two persons were involved in the incident of the robbery. The second accused is yet to be apprehended and therefore, it in itself will not be fatal to the case of the prosecution once the identity of the accused Monu stands established.
Ld. counsel has also argued that the arrest of the accused has been shown on 28.7.2009 i.e. after two days of the State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 19 incident. It is argued that once the complainant knew the house of the accused, why efforts were not made to apprehend the accused prior to 28.7.2009. It is further submitted that the accused was arrested near his Jhuggi only on 28.7.2009 but no public witnesses have been joined at the time of the arrest. Ld. counsel has further argued that the information regarding the arrest of the accused was never conveyed to the mother of the accused as alleged by the investigating officer since it would be evidence from the arrest memo that there were no signatures or thumb impressions obtained from the mother as token of being informed about the arrest of the accused which clearly point out towards the false implication of the accused. Ld. counsel has also pointed out that the details regarding the stolen articles was provided by the complainant to the investigating officer for the first time on 2.8.2009 despite the fact that the complainant was aware of the entire details even on the date of the incident. In this regard I may observe that in her first statement made to the police on the same date of incident i.e. 26.7.2009 a few hours after the incident the complainant Nishi Babuta had given the details of the stolen articles which are as under:
1. Two gold necklace
2. Four gold bangles
3. Two gold chains
4. Two ladies ring
5. One pair ear ring
6. One Mangalsutra State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 20 Therefore, under these circumstances, even if the list of the stolen articles was provided separately on 2.8.2009 it will not be fatal to the case of the prosecution, the complainant having already mentioned the same in her supplementary statement to the investigating officer a few hours after the incident.
It is also argued that despite the fact that the complainant has alleged that blood started coming out from her nose, no medical of the complainant has been placed on record to support her version. Even the investigating officer HC Narender (PW6) has admitted that he did not send the complainant for her medical examination. He has further pointed out that PW5 Master Ishaan also did not whisper even a single word that her grandmother had sustained injuries or that she was bleeding at that time.
I have considered the above submissions made and in so far as the first aspect is concerned, I may observe that once the complainant has accompanied the police party and identified the accused and the accused has been arrested at her instance, non joining of public witnesses will not be fatal to the case of the prosecution. Further, the incident stands proved and the testimony of PW3 Nishi Babuta finds due corroboration from the testimony of her grandson Ishaan Makkar (PW5) who has proved that he was present with her grandmother (nani) when the incident took place and it was he who had opened her hands. I may mention that Master Ishaan Makkar (PW5) is a small boy of eight to nine years and has specifically deposed that it was he who had opened the hands of her grandmother. There is no State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 21 reason to disbelieve the statement of the child to this effect. The fact that the hands of the complainant were tied and it was Master Ishaan Makkar who had opened the same stands established. In so far as the aspect of the victim not being taken to the hospital by the investigating officer and the injuries not being treated is concerned, I may observe that benefit of any lapse committed by the investigating officer during the investigations and for his failure to take the complainant to the hospital for treatment cannot go to the accused. In so far as the injuries on the finger of the complainant are concerned, naturally they would have been simple injuries as the upper layer of the skin that is epidermis would have pealed off when the ring was forcible removed causing abrasions and therefore, the possibility of the complainant not showing any visible signs of injury at the time of the incident, cannot be ruled out. It is also evident that the complainant has alleged that her nose pin was forcibly removed as a result of which she also started bleeding from the nose. I may observe that the complainant being already pricked for a long time the chances are that the bleeding from the said point would not have lasted much and the injury may not be very apparent to the investigating officer or told to him. The benefit of the failure of the investigating officer to diligently conduct the investigations and to ensure that the victim is provided medical treatment shall not go to the accused. I find no merits in the argument raised by the Ld. Defence Counsel.
State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 22FINAL FINDINGS:
In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 23
Applying the above principles of law to the present case it is evident that the prosecution has been able to prove and establish the identity of the accused Monu. It stands established that the accused Monu along with his other associate entered the house of the complainant Smt. Nishi Babuta (PW3) on 26.7.2009 at about 3:00 am/ 3:15 am. It also stands established that he put a knife on the stomach of the complainant/ victim and threatened to kill her in case if she raised an alarm after which he tied her legs, mouth and hands with her own Chunni while the other boy started removing the valuables from the almirah. It also stands established that the accused Monu forcibly removed her chain, nose pin, ear-rings, two karas and two rings which she was wearing at the time of the incident after which the accused Monu along with his accomplice ran away from the spot. It has also been proved that Ishaan Makkar (PW5) opened the hands of the complainant i.e. his grandmother after which police was called. It stands proved that the accused Monu was apprehend and arrested on the pointing out of the complainant, though no recovery has been effected till date.
There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. The prosecution has State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 24 proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and the witness of the prosecution have been able to built up a continuous link. The fact that the investigating officer has been most casual and unprofessional while conducting the investigations and till date has failed to apprehend the co-accused or effect any recovery, will not assist the accused Monu in any manner.
Therefore, in view of the my above discussion, I hereby hold the accused Monu guilty of the offence under Section 392 read with Section 397 Indian Penal Code and convict him accordingly.
Case be listed for arguments on sentence on 16.5.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 11.5.2011 ASJ-II(NW)/ ROHINI
State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 25
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II(NORTH-WEST): ROHINI COURTS: DELHI Session Case No. 1158/09 Unique Case ID No.: 024040260702009 State Vs. Monu S/o Sh. Lakhan Lal R/o Jhuggi No. N 86/87, Railway Line Lawrence Road, Delhi.
(Convicted)
FIR No.: 216/06
Police Station: Keshav Puram
Under Section: 457/380/392/397/34 IPC
Date of Conviction: 11.5.2011
Arguments heard on: 16.5.2011
Date of Sentence: 20.5.2011
APPEARANCE:
Present: Sh. Taufiq Ahmed, Additional Public Prosecutor for
the State.
Convict Monu in judicial custody with Amicus Curiae Sh. Rajneesh Antil Advocate.
ORDER ON SENTENCE:
Vide my detailed judgment the accused Monu has been held guilty of the offence under Section 392 read with Section 397 Indian Penal Code and accordingly convicted.State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 26
The accused Monu is the son of the maid servant of the complainant Nishi Babuta and prior to the incident had visited her house with his mother on a couple of occasions. The case of the prosecution is that on 26.7.2009 the complainant Nishi Babuta was sleeping in her house when at about 3:00 am the accused Monu entered her house along with his co-accused Kallu (not yet arrested). After hearing some noise Smt. Nishi Babuta woke up and found that two boys were standing next to her. The accused Monu put a knife on her stomach and threatened to kill her in case if she raised an alarm after which he tied her legs, mouth and hands with her own Chunni while other boy removed her valuable articles i.e. cash tune to tune of Rupees 40 - 45 thousand along with two gold sets, four gold karas, two gents rings, two ladies gold rings, one mangalsutra belonging to her two married daughters and one gold chain belonging to her. The accused Monu forcibly removed her chain, nose pin, ear-rings, two karas and two rings which she was wearing at the time of the incident after which the accused Monu along with his accomplice ran away from the spot. Ishaan Makkar (PW5) opened the hands of the complainant i.e. his grandmother after which police was called. The accused Monu was thereafter arrested on the pointing out of the complainant/ victim. The victim/ complainant Smt. Nishi Babuta has appeared in the court and has identified the accused Monu as the boy who had put a knife on her stomach and threatened her to kill if she raised an alarm and tied her legs, hands and mouth with her own chunni and forcibly removed her chain, nose pin, ear-rings, two karas and two rings which she was State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 27 wearing at the time of the incident. On the basis of the testimonies of the various witnesses examined by the prosecution, this court has held the accused Monu guilty of the offence under Section 392 read with Section 397 Indian Penal Code and accordingly convicted.
I have heard the arguments advanced before me. The convict Monu is a young boy of 22 years having a family comprising of father, mother and four younger brothers. He is totally illiterate and is a labour by profession. The convict is not involved in any other case and has already remained in judicial custody for about four months and eleven days. Ld. counsel appearing on behalf of the convict has vehemently argued that the convict is a first time offender and is not involved in any other case. He submits that he is the only helping hand of his family and all his brothers are younger to him and any harsh view against the convict would spoil his entire future. He requests that a lenient view be taken against the convict.
The Ld. Addl. PP for the State on the other hand has prayed for a strict view against the convict keeping in view the allegations involved and the nature of offence.
I have considered the rival contentions. The convict is a young boy and is a first time offender. He is not involved in any other case and is the helping hand of his family. Keeping in view the above, a lenient view is taken against him. The minimum punishment prescribed for the offence under Section 397 Indian Penal Code is imprisonment not less than seven State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 28 years. Therefore, under these circumstances, I award the following sentences to the convict Monu:
The convict Monu is sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.2,000/- for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of fifteen days.
Benefit of Section 428 Code of Criminal Procedure shall be given to the convict for the period already undergone by him during the trial, as per rules.
The convict is informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convict free of costs and another be attached with his jail warrants.
It is evident from the record that no proceedings have been conducted by the investigating officer qua the accused Kallu. The Assistant Commissioner of Police, North-West District is directed to immediately ensure that further investigations are conducted qua the accused Kallu and appropriate proceedings are initiated to declare him a proclaimed offender in case if he is not traceable and to file a report of the State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 29 same before the Ld. Illika Magistrate. Copy of this order be sent to the Ld. ACMM concerned to place the same before the Ld. Illika Magistrate for information and appropriate action.
File be consigned to Record Room to be taken up on the arrest of accused Kallu (since absconding).
Announced in the open court (Dr. KAMINI LAU)
Dated: 20.5.2011 ASJ (NW)-II: ROHINI
State Vs. Monu, FIR No,. 216/09, PS Keshav Puram Page No. 30