Delhi District Court
State vs . Adhir Etc. on 11 December, 2018
IN THE COURT OF MS. CHETNA SINGH:ACMM-02
(CENTRAL) TIS HAZARI COURTS, DELHI
STATE Vs. ADHIR ETC.
FIR No. 64/10
New Case No. 300177/16
U/s : 392/34 IPC
P.S. : Gulabi Bagh
Date of Institution : 24.09.2010
Date on which case reserved for Judgment : 11.12.2018
Date of judgment : 11.12.2018
JUDGMENT
1.FIR No. of the case : 64/2010
2.Date of the Commission : 30.07.2010
of the offence
3.Name of the accused : (1) Adhir
S/o Sh. Hari Om,
R/o H. No. 10685, Gali No. 8, Andha
Mugal, Pratap Nagar, Delhi.
FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 1 / 15
(2) Arjun
S/o Sh. Vinod Kumar,
R/o H. No. 10682, Gali No.9, Andha
Mugal, Pratap Nagar, Delhi.
4.Offence complained of : 392/34 IPC
5.Plea of accused : Pleaded not guilty
6.Final order : Convicted u/s 392/34 IPC.
BRIEF FACTS
1. The story of the prosecution is that on 30.07.2010 at 2.45 PM at road no. 40, near metro pillar no. 110, Pratap Nagar, Delhi within the jurisdiction of PS Gulabi Bagh, accused persons alongwith co-accused (juvenile) in furtherance of their common intention committed theft of Rs.10,000/- and by committing theft accused persons wrongfully restrained the complainant by pressing his neck and putting handkerchief over his mouth and thereby committed offences punishable u/s 392/34 IPC. The matter was investigated and chargesheet was filed in the Court on 29.09.2010.
FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 2 / 152. On the basis of the chargesheet, charge of offence U/s 392/34 IPC was framed against accused persons namely Adhir and Arjun and the charge was duly explained to them in vernacular to which they pleaded not guilty and claimed trial on 28.01.2011. Thus, the matter was put to trial.
APPRECIATION OF EVIDENCE
3. In order to prove the above said allegations against the accused, the prosecution examined 6 witnesses in total.
4. PW-1 Ct. Rajesh Kumar deposed that on 30.07.2010, he was posted as constable in PS Gulabi Bagh and on receipt of DD No. 15A by HC Raj Pal, he alongwith him went to road no.40 near metro pillar no. 110, where Israr met them and informed that he is selling plastic articles and after taking Rs.10,000/- from his shop, he was going to Azad Market via road no.40 and crossing the said road on foot and in the meantime, three persons namely Adhir, Arjun and Golu residents of Shansi Mohalla came to him and accused Arjun had held his neck and tied the same and put a handkerchief (rumal) on his face and Golu had caught hold his hand and accused Adhir had taken out Rs.10,000/- from his pocket forcibly and ran away towards Shansi Mohalla. Complainant Israr had also informed that due to the said incident, he became slightly unconscious and after 20 minutes, he got regained his consciousness and thereafter, he made call at 100 number. Thereafter they alongwith complainant went towards Shanshi Mohalla in search of accused persons. When they reached near Metro pillar no.117, two persons were FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 3 / 15 standing there and had hidden themselves. At the instance of complainant, the said persons were apprehended by them. The complainant had identified them as the persons who had robbed him and they disclosed their names as Arjun, and Adhir (both correctly identified by witness in the court) and on formal search of accused Arjun, four currency notes of Rs.500/- recovered and on formal search of accused Adhir, 5 currency notes of Rs.500/- recovered. Accused Adhir and Arjun told that remaining amount was with Golu. The said currency notes were kept in separate envelopes and sealed with the seal of RP and seal after use was handed over to him. The sealed envelopes were seized vide seizure memo Ex.PW1/A and Ex.PW1/B, both bearing his signatures at point A. IO had recorded the statement of complainant Israr and prepared rukka. He got the FIR registered. He alongwith juvenile officer SI Sahib Singh reached at the spot at request of IO. The apprehension memo of both accused persons were prepared which is Ex.PW1/C and Ex.PW1/D, their personal search were conducted vide memo Ex.PW1/E and ex.PW1/F, their disclosure statements were recorded vide memo Ex.PW1/G and Ex.PW1/H, all bearing his signatures at point A. The pointing out memo was prepared at the instance of accused persons which is Ex.PW1/I, bearing his signature at point A. Accused persons were medically examined and were produced before the JJB. IO recorded his statement. MHCM produced the case property which is Ex.P1 (colly).
This witness was not cross-examined by accused persons despite opportunity being given.
FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 4 / 155. PW-2 ASI Laxman Singh deposed that on 30.07.2010, he was posted as HC at PS Gulabi Bagh as Duty officer from 4.00 PM to 12.00 AM and received a rukka from Ct. Rajesh at about 5.05 PM. On the basis of rukka, he registered the FIR and handed over the same alongwith copy of FIR which is Ex.PW2/A bearing his signature at point A to Ct. Rajesh for further course of action He also made endorsement on rukka from point A1 to A2, Ex.PW2/B. He also issued certificate u/s 65-B of Indian Evidence Act was also registered in DD No. 17-A dated 30.07.2010. Attested copy of same is Ex.PW2/D. DD No.15A was written by Duty officer Hac Bhim Singh regarding PCR Call. Attested copy of same is Ex.PW2/E. This witness was cross-examined by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
6. PW3 Sh. Israr deposed that in the year 2010 at about 2.30 PM, he was going towards Azad Market and in the meanwhile three accused persons came from front side, one of the accused held his neck from front side and another accused took Rs.10,000/- from right side pocket of his trouser. He got unconscious and he saw accused persons prior to the incident as he used to sell plastic goods in the said area. He called call at 100 number. Police came and he informed all incident to police. Police recorded his statement which is Ex.PW3/A, bearing his thumb impression at point. He also showed the place of incident to police. Two accused persons apprehended near Metro pillar and some money was recovered from accused persons and seized the same.
This witness was cross-examined by Ld. Legal Aid Counsel.
FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 5 / 15However, his cross-examination is not repeated herein for the sake of brevity.
7. PW-4 ASI Ram Kumar deposed that on 30.07.2010, he was posted as MHCM with PS Gulabi Bagh. On that day, IO deposited two envelopes sealed with the seal of RP and copy of seizure memo with the Malkhana. He entered the same in register no.19 at serial no. 723 (OSR). Copy of the same is Ex.PW4/A. This witness was not cross-examined by accused persons despite opportunity being given.
8. PW5 SI Raj Pal deposed that on 30.07.2010, he was posted as HC with PS Gulabi Bagh. On that day, he received DD No.15A regarding robbery at pillar no.110, road no.40, Pratap Nagar, Delhi and he alongwith Ct. Rajesh went to spot and met with complainant, who told him that he had been robbed by three persons namely Adhir, Arjun and Rohit Kumar @ Golu whom he knows earlier. The accused persons ran towards pillar no.117 and they can be apprehended. Thereafter they went near pillar no.117 and they apprehended accused Arjun and Adhir (both accused persons correctly identified by the witness in the court). He recorded the statement of complainant. He prepared rukka vide memo Ex.PW5/A, bearing his signature at point A and handed over the same to Ct. Rajesh for registration of FIR. SI Saheb Singh came to spot. He searched accused Adhir and found Rs.2500/- and he seized the same. He handed over both the accused persons, case property and complainant to JWO. JWO apprehended the JCLs and prepared apprehension memos. JWO prepared site plan. JWO recorded disclosure FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 6 / 15 statements of both the JCLs.
This witness was cross-examined by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
9. PW6 Inspector Saheb Singh deposed that on 30.07.2010, he was posted as SI/JWO with PS Gulabi Bagh. On that day, he was called on spot by HC Raj Pal and he alongwith Ct. Rajesh reached the spot i.e. pillar no.110, road no.40, Pratap Nagar, Delhi and met with complainant, HC Raj Pal and two JCLs. HC Raj Pal handed over him two JCLs and recovered case property. He prepared site plan which is Ex.PW6/A, bearing his signature at point A and apprehended both the JCLs. He also recorded versions of both JCLs which are now Ex.PW6/B and Ex.PW6/C, both bearing his signatures at point A respectively. He deposited the case property in the malkhana and JCLs were produced before JJB. In the JJB, he came to know that both the JCLs were major. Thereafter accused persons namely Adhir and Arjun (correctly identified in the court by the witness) were produced before Hon'ble Court and they were sent to JC by the court. On 16.08.2010, he apprehended JCL (co- accused) whose proceedings were conducted separated before Hon'ble JJB. He recorded statement of witnesses. After completing the investigation, he filed the chargesheet before Hon'ble Court qua accused Adhir and Arjun.
This witness was cross-examined by Ld. Legal Aid Counsel. However, his cross-examination is not repeated herein for the sake of brevity.
FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 7 / 1510. As all witnesses were examined by the Prosecution, prosecution evidence was ordered to be closed on 13.11.2018. Statement of the accused persons namely Adhir and Arjun U/s 313 Cr. PC was recorded on 26.11.2018 and as no defence evidence was lead, matter was listed for final arguments. Final arguments were heard on 11.12.2018.
11. I have heard the rival submissions and carefully perused the record.
REASONS FOR DECISION
12. Before appreciating the evidence as stated above in brief, it is necessary to state the essential ingredients of Section 392 IPC which are as follows:-
(1) Accused committed theft as defined in Section 378 IPC and in the process;
(2) Accused caused or attempted to cause to some persons:
(i) death, hurt or wrongful restraint;
(ii) fear of death or of instant hurt or instant wrongful
restraint.
(3) Accused did either act:
(i) In committing such theft or
(ii) In order to commit theft or
(iii) In carrying away or in attempting to carry away
FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 8 / 15
the property obtained by such theft.
13. Essential ingredients of Section 34 IPC are as follows:
(1) That there must be a criminal act;
(2) The act must have been done by several persons in
furtherance of their common intention;
14. It has been observed that Harish Chandra Vs. State of UP AIR 1976 SC 1430 that:
"Robbery: the offence of robbery is defined in Section 390 of IPC. The robbery is punishable u/s 392 of IPC. When force is used to enable another to carry away the booty, it amounts to robbery."
15. In the present matter, it is alleged by the prosecution that on 30.07.2010 at 2.45 PM at road no. 40, near metro pillar no. 110, Pratap Nagar, Delhi, both accused persons namely Adhir and Arjun alongwith another JCL namely Rohit @ Golu in furtherance of their common intention committed theft of Rs.10,000/- and by pressing the neck of the complainant and putting handkerchief over his mouth and thereby committed offences punishable u/s 392/34 IPC. In this regard, the prosecution has examined six witnesses in total including the complainant Sh. Israr, who has examined as PW3.
FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 9 / 1516. Complainant Israr stated that in the year 2010 at about 2.30 PM, he was going towards Azad Market and in the meanwhile, three accused persons came from the front side, one of the accused held his neck from front side and another accused took Rs.10,000/- from right side pocket of his trouser. He stated that for sometime, he got unconscious. However he saw the accused persons as prior to the incident as he used to seel plastic goods in the said area and by the time he regained his consciousness and accused persons had already run away from the spot. Thereafter, he called at 100 number and police officials came to the spot and he showed the place of the incident to the police officials. On the same day, search of the accused persons were carried out and two of the accused persons (Adhir and Arjun correctly identified by the witness) were apprehended near the metro pillar and some money also recovered from them. He also identified his signature on the seizure memos, search memos, arrest memos, personal search memos, disclosure memos of the accused persons, all bearing his thumb impression at point A and B respectively. Even though this witness was cross-examined by Ld. Legal Aid Counsel, however no material contradiction could be noted and he denied the suggestion that his thumb impressions were taken on the blank papers. He had further reiterated that he had seen the face of the accused persons during examination by LAC and maintained his stand that three accused persons had committed the incident with him.
17. When the testimony of the complainant is compared with his original statement which is Ex.PW3/A, no material contradiction could be noted and the complainant consistently deposed as regards the sequence of events. It is not the defence of the accused persons that FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 10 / 15 complainant had some previous enmity with them and hence they were falsely implicated by the complainant in the present case. There is no reason why the complainant would unnecessary depose against the two accused persons and correctly identify them even though they were previously known to him.
18. Even otherwise the testimony of the complainant is further supported by the recovery of the case property i.e. currency notes from the two accused persons soon after the incident on the very same day. PW5 SI Raj Pal also deposed that he received DD No.15A regarding robbery at pillar no.110 which was duly proved by ASI Laxman Singh during the recording of his testimony. The proof of DD No.15A further supports the stand taken by the complainant that he made a call at 100 number as regards the alleged robbery with him.
19. The testimony of the complainant is further supported by the testimony of PW1 Sh. Rajesh Kumar and PW5 HC Raj Pal who went to the spot on the day of incident after receiving DD No. 15A where they met the complainant who disclosed the entire incident to them. All three witnesses deposed that the accused persons were apprehended by them at the instance of the complainant and the currency notes were recovered from them.
20. No material contradictions could be noted in the cross- examination of all the police officials and of the documents replied upon by the prosecution were proved by the police officials and by the FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 11 / 15 Investigating Officer (IO) who has been examined as PW6. Site plan which is Ex.PW6/A has been proved by the IO. The arrest of the accused persons and documents prepared thereafter have also been proved. There is no reason why the complainant would falsely implicate the accused persons in the present case. The complainant has consistently deposed as regards the incident of robbery. Hence, it has been proved that both accused persons in furtherance of their common intention with their co-accused/JCL committed robbery upon the complainant in furtherance of their common intention and hence offence u/s 392/34 stands proved against both accused persons namely Adhir and Arjun.
21. It is settled law that police witnesses are reliable witnesses even without independent corroboration. It has been observed by the Hon'ble Apex Court in the matter of "Karamjit Singh v. State" (AIR 2003 SC 1311) that :-
"The testimony of the police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be relied upon. The presumption that a person acts honestly applies as much in favour of police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds'.FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 12 / 15
22. The Apex Court reiterated the above position in precedent titled as Girija Prasad v. State of MP (AIR 2007 SC 3106) has held that:-
"It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of complainant or a police official but it is not the law that the police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence".
23. In case of Sharad Birdhi Chand Sharda Vs. State of Maharastra AIR 1984 SC 1622, the apex court had laid down the test FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 13 / 15 which are per-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;
(2) The circumstances concerned "must or should"
and not "may be" established;
(3) 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;
(4) The circumstances should be of conclusive nature and tendency;
(5) They should exclude every possible hypothesis except the one to be proved; and (6) There must be a chain of evidence so complete as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and must so that in all human probability the act must have been done by the accused.FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 14 / 15
24. As a cumulative effect of the above said discussion, it is clear that it has been adequately proved by the complainant as well as police witnesses that accused persons namely Adhir and Arjun in furtherance of their common intention with co-accused/JCL voluntarily caused hurt to complainant Sh. Israr and thus they are hereby held guilty for the offence punishable under Section 392/34 IPC. Hence, accused persons namely Adhir and Arjun are convicted for charges framed for the offence u/s 392/34 IPC.
25. Ordered accordingly.
Digitally signed CHETNA by CHETNA
SINGH
Announced in the open SINGH Date: 2018.12.14
16:52:03 +0000
Court on 11.12.2018
(Chetna Singh)
Addl. Chief Metropolitan Magistrate
Central/Tis Hazari Courts, Delhi/11.12.2018 FIR No. 64/10 State Vs Adhir etc. PS: Gulabi Bagh Page No. 15 / 15