Delhi District Court
Car 102 (Sc) Tilted As Ishwar Dass vs State Of Punjab, Wherein Benefit Of on 3 February, 2012
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 68/01/10
Unique Identification No. 02404R0166842010
State
Versus
1) Amit
Son of Mahender @ Chiku
R/o E171 and E402, MCD Colony,
Azadpur, Delhi.
2. Neeraj @ Don
Son of Rajpal
R/o Quarter No. 29/1, Jheel quarter,
Model TownIII, Delhi.
3. Shiv Kumar @ Shiva
Son of Rajender
R/o Quarter No. 38, MCD Flat,
Near Water Supply Rameshwar Nagar,
Mukundpur Road, PS Model Town,
Azadpur, Delhi.
FIR No. 113/10
PS -Mahendra Park
U/s. 384/34 of IPC
Date of Decision: 31/01/2012
Date of order on Sentence: 03/02/2012
ORDER ON SENTENCE
SC No. 68/01/10 1
03/02/2012
Present. Ld. APP for State.
Convict Amit from JC with counsel Sh. Rajeev Taneja.
Convict Shiva from J.C. with counsel Sh. R.K. Tarun with Sh. Goyal
Winkal.
Convict Neeraj from JC with counsel Sh. Yogender Singh
Chowdhary.
Heard on the point of sentence.
It is submitted that convict Shiva is aged about 21 years. He in
unmarried. He has two brothers, three sisters and one mother to support. He is
working on daily wages in the hospital. Learned defence counsel further submits
that it is the first offence of the convict. He is not a previous convict nor habitual
offender. Hence, benefit of probation be extended to the convict.
It is further submitted that convict Neeraj is aged about 21 years and
he is just married and has a family to support. He is working as safai karamchari
being daily wager in MCD. Learned defence counsel further submits that it is the
first offence of the convict. He is not a previous convict nor habitual offender.
Hence, benefit of probation be extended to the convict.
It is further submitted that convict Amit is aged about 21 years and he
is married and having one minor son of less than one year and has a family to
support. He is working as instructor in a gym. Learned defence counsel further
submits that it is the first offence of the convict. He is not a previous convict nor
habitual offender. Hence, benefit of probation be extended to the convict.
SC No. 68/01/10 2
In support of their contention Ld defence counsel has relied upon 1972
CAR 102 (SC) tilted as Ishwar Dass Vs State of Punjab, wherein benefit of
probation has been granted to the convicts under the Probation of Offender's Act.
Even if the accused has been convicted for an offence wherein minimum sentence
has been provided.
It has been held that "The question which arises for determination is
whether despite the fact that a minimum sentence of imprisonment for a term of
six months and a fine of rupees one thousand has been prescribed by the
legislature for a person found guilty of the offence under the Prevention of Food
Adulteration Act, the Court can resort to the Provisions of the Probation of
Offenders Act. In this respect we find that subsection (1) of section 4 of the
Probation of Offenders Act contains the words "notwithstanding anything
contained in law for the time being in force". The above non obstante clause
points to the conclusions that the provisions of section 4 of the Probation
Offenders Act would have overriding effect and shall prevail if the other
conditions prescribed are fulfilled. Those conditions are (1) the accused is found
guilty of having committed an offence not punishable with death or
imprisonment for life, (2) the court finding him guilty is of the opinion that
having regard to the offence and the character of the offender, it is expedient to
release him on probation of good conduct, and (3) the accused in such an event
enters into a bond with or without sureties to appear and receive sentence when
called upon during such period not exceeding three years as the Court may direct
and, in the meantime, to keep the peace and be of good behaviour. Subsection (1)
of section 6 of the above mentioned Act, as stated earlier, imposes a duty upon the
SC No. 68/01/10 3
court when it finds a person under 21 years of age, guilty of an offence punishable
with imprisonment other than imprisonment for life, not to sentence him to
imprisonment unless the court is satisfied that, having regard to the
circumstances of the case, including the nature of the offence and the character of
the offender, it would not be desirable to deal with him under section 3 and 4 of
the Act but to award a sentence of imprisonment to him. The underlying object of
the above provisions obviously is that an accused persons should be given a
chance of reformation, which he would lose in case he is incarcerated in prison
and associates with hardened criminals. So far as persons who are less then 21
years of age and concerned, special provisions have been enacted to prevent
their confinement in jail at young age with a view to obviate the possibility of
their being subjected to the pernicious influence of hardened criminals. It has
accordingly been enacted that in the case of person, who is less than 21 years of
age and is convicted for an offence not punishable with imprisonment for life
he shall not be sentenced to imprisonment unless there exist reasons which
justify such a course. Such reasons have to be recorded in writing.
According to section 18 of the Probation of Offenders Act, the
aforesaid Act shall not affect the provisions of subsection (2) of section 5 of the
Prevention of Corruption Act 1954 (Act 2 of 1947). The last mentioned
provisions namely, subsection (2) of section 5 of the Prevention of Corruption
Act, prescribes, in the absence of special reasons, a minimum sentence of
imprisonment for a term of not less than one year for those convicted under
section 5 of that Act. If the object of the legislature was that the provisions of the
Probation of Offenders Act should not apply to all cases where a minimum
SC No. 68/01/10 4
sentence of imprisonment is prescribed by the statute, there was no reason to
specify subsection (2) of section 5 of the Prevention of Corruption Act in section
18 of the Probation of Offenders Act. The fact that out of the various offences for
which the minimum sentence is prescribed, only the offence under subsection
(2) of section 5 of the Prevention of Corruption Act has been mentioned in
section 18 of the Probation of Offenders Act and not the other offences for which
the minimum sentence is prescribed, shows that in case of such other offences the
provisions of Probation of Offenders Act can be invoked."
Ld counsel further relied upon 2002 CAR 217 (SC) tilted as Mani
Singh Vs State , wherein benefit of probation was extending to the convict evein
in Arms Act u/s 4 of Probation of Offender's Act.
Ld counsel has further relied upon 1981 CAR 1 (SC) titled as Ved
Parkash Vs State of Haryana, wherein again in a case of using fire arm benefit
of probation was given.
Ld counsel has further relied upon 1991(1) CC cases 135 titled as
Sohan Singh Vs State of Punjab, wherein again benefit of Probation was given
in case where minimum sentence was provided u/s 39 of Arms Act.
Ld counsel has further relied upon AIR 1981 NOC 21 titled as
Joginder Singh Vs State of Punjab, wherein it has been held that there is no bar
to extend the benefit of probation either u/s 360 of Cr.PC or under the provisions
of Proabtion of Offender's Act.
Ld counsel has further relied upon 2001 CAR 396 titled as
Commandent 20th Battilion ITB police Vs Sanjay Banjola, wherein it has been
SC No. 68/01/10 5
held that the provisions of Probation of Offenders Act empowers the court to
release on probation in all suitable cases.
On the other hand, learned Addl. PP submits that accused have been
convicted for offence U/s. 384/34 of IPC and accused Amit has been convicted u/s
25 of Arms Act, hence they be punished accordingly.
I have considered the submissions of learned defence counsel for the
convicts and ld. APP for the State alongwith age, antecedents and character of the
convicts and further gravity and nature of offence.
In the present case, all the three convicts are aged about 21 years.
They have not been convicted with any offence punishable for death or
imprisonment for life and as the offence u/s 384 of IPC is punishable with
imprisonment for the term of three years or with fine or with both and offence u/s
27 of Arms Act is punishable with imprisonment for a term which shall not be
less then seven years but which may extend to three years and shall also be liable
with fine, so, in my view, all the three convicts are fulfilling the conditions to
release them on Probation for good conduct.
Accordingly, all the three convicts are admitted on Probation of good
conduct subject to the report of Proabtion Officer, on furnishing a PB of Rs.
10,000/ with one surety in the like amount for two years. In case of default they
will produce themselves before the court to receive the sentence, in this case.
During the period of Probation, all the convicts keep peace and be of good
behaviour.
Cost of proceedings to the tune of Rs.2500/ each is imposed in
default each of the convict shall further undergo six months SI.
SC No. 68/01/10 6
PB and SB for a sum of Rs.10,000/ on behalf of convict Amit filed.
Accepted till 15/02/2012. cost of proceeding also deposited by convict Amit.
PB and SB for a sum of Rs.10,000/ on behalf of convict Shiva filed.
Accepted till 15/02/2012. cost of proceeding also deposited by convict Shiva.
PB and SB for a sum of Rs.10,000/ on behalf of convict Neeraj filed.
Accepted till 15/02/2012. cost of proceeding also deposited by convict Neeraj
Convict all three be released.
Announced in Open Court on (Virender Kumar Goyal)
rd
dated 3 of February, 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
SC No. 68/01/10 7
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 68/01/10
Unique Identification No. 02404R0166842010
State
Versus
1) Amit
Son of Mahender @ Chiku
R/o E171 and E402, MCD Colony,
Azadpur, Delhi.
2. Neeraj @ Don
Son of Rajpal
R/o Quarter No. 29/1, Jheel quarter,
Model TownIII, Delhi.
3. Shiv Kumar @ Shiva
Son of Rajender
R/o Quarter No. 38, MCD Flat,
Near Water Supply Rameshwar Nagar,
Mukundpur Road, PS Model Town,
Azadpur, Delhi.
FIR No. 113/10
PS -Mahendra Park
U/s. 392/393/397/411/34 IPC
Date of institution of the case: 17/07/2010
Arguments heard on: 13/01/2012
Date of reservation of order: 13/01/2012
Date of Decision: 31/01/2012
SC No. 68/01/10 8
JUDGMENT
This case was registered on the statement of one Mohd. Dabir U/s. 392/393/397/411/34 of IPC.
During investigation, copy of DD entry was collected. Rough site plan was prepared. Sketch of the knife recovered from accused Amit was prepared. Same was sealed and seized by preparing a memo. Robbed mobile phone was recovered from accused Neeraj.
Accused Amit, Neeraj, Shiv Kumar @ Shiva were arrested in this case. Their personal searches were conducted. Their disclosure statements were also recorded and on completion of investigation, chargesheet was filed U/s. 392/393/397/411/34 of IPC.
Case was committed to the Court of Session on 09/09/2010 and was received on 16/09/2010.
On 22/09/2010, charge U/s. 392/34 of IPC was framed against all the accused persons, to which, they pleaded not guilty and claimed trial. Charge against accused Amit was also framed U/s. 392 read with Section 397 of IPC, to which, he pleaded not guilty and claimed trial. Charge U/s. 25/27 of Arms Act was also framed against accused Amit, to which, he pleaded not guilty and claimed trial.
To prove its case, prosecution has examined PW1 to PW9 in all. On completion of evidence of the prosecution, statements of all the three accused persons were recorded U/s. 313 Cr.P.C. They have denied the case of the prosecution and have stated that they have been falsely implicated in this SC No. 68/01/10 9 case.
In defence, DW1 HC Om Prakash and DW2 Mahender, father of accused Amit, have been examined. DW3 Geeta has been examined for accused Neeraj.
I have heard Ld. Addl. PP for State, learned respective counsels for accused persons and have gone through the material placed on record with evidence adduced.
Admittedly, prosecution has not been able to examine complainant Mohd. Dabir despite opportunities given as he was not traceable. Another witness is PW4 Mehshad. He has stated that on 23/05/2010, when he was selling fruits at his rehri on Service Road, some distance ahead of Bank Complex, Azadpur Mandi, Delhi, at about 8.30 p.m., three boys had robbed one mobile phone from a boy, who got down from a bus, at the point of knife. Thereafter, all the three accused persons came to his rehri and stabbed the knife, having torch in it, in the watermelon, which he was selling on his rehri. While threatening him, they asked him to handover whatever he was having with him. He raised alarm by saying "chorchor, Pakdopakdo", at which, the boy, whose mobile phone was robbed, also came there. Police officials also came there and all these three boys were apprehended, who are accused persons present in the Court.
PW4 Mehshad has further deposed that on search by the police, one mobile phone was recovered from the possession of accused Neeraj. One knife was recovered from the possession of accused Amit. Sketch of the knife was prepared Ex. PW4/A. It was sealed in a pullanda and was seized vide memo Ex. Pw4/B. Pullanda of the mobile was also prepared and it was taken into possession SC No. 68/01/10 10 vide memo Ex. PW4/C. PW4 has further deposed that accused Amit was arrested vide memo Ex. PW4/D. Accused Neeraj was arrested vide memo Ex. PW4/E and accused Shiv Kumar @ Shiva was arrested vide memo Ex. PW4/F. He also signed personal search memos of all the three accused persons Ex. PW4/G to Ex. PW4/I. PW4 has identified the knife as Ex. P1.
Learned defence counsel has contended that from the statement of PW4 Mehshad, it is clear that robbery was not committed by the accused persons in presence of PW4 Mehshad, which is evident from the fact that the boy, whose mobile phone was robbed, also came there and the witnesses have contradicted each other about the place of robbery of mobile phone. Learned defence counsel has further contended that neither prosecution has been able to prove the robbery of mobile phone from Mohd. Dabir as complainant has not been examined nor it is proved that it was a stolen property as in absence of the examination of complainant, it cannot be said that mobile phone was in the ownership of complainant Mohd. Dabir. Learned defence counsel has further contended that even it is evident from the statement of complainant Ex. PW9/A that the mobile phone was not robbed in presence of PW4 Mehshad as Mohd. Dabir has nowhere stated that Mehshad or one rehriwala was also there.
Learned defence counsel has further contended that PW4 Mehshad has stated that at the time of committing robbery, accused Amit had shown knife to him by stabbing the same in the watermelon and also demanded whatever he was having with him at that time, but he has been confronted with Ex. PW4/DA, where name of accused Amit is not mentioned. Learned defence counsel has further SC No. 68/01/10 11 contended that according to the case of the prosecution,accused persons were apprehended at the spot, hence, it seems to be unbelievable why the name of accused Amit is not appearing in the statement Ex. PW4/DA.
According to the case of the prosecution, PW5 HC Naresh Pal was on patrolling duty on that day with PW6 HC Jitender, PW7 Constable Satbir Singh and PW8 Constable Rajesh.
According to PW5 HC Naresh Pal, at about 8/8.30 p.m., while patrolling, when they reached in front of Bank Complex, Service Road, they heard the noise of "chorchor, pakdopakdo". On hearing the same, they became alert and reached near the Kharbuja rehri, where three boys, out of them, one was having knife, was apprehended by them with the help of public persons. In the meanwhile, one boy, whose name they came to know as Dabir told that they had robbed his mobile. On interrogation, all the three boys disclosed their names as Amit, Neeraj and Shiv Kumar @ Shiva. Accused Amit was having one open buttondar knife in his hand. From the formal search of accused Neeraj, one mobile phone was recovered. Knife was snatched by him from the hands of accused Amit. Thereafter, he informed at the PS regarding the occurrence on phone. SI Kanhaiya Lal reached at the spot and he handed over custody of accused persons, knife and mobile to SI Kanhaiya Lal, who prepared sketch of the knife Ex. PW4/A. PW5 HC Naresh Pal has further deposed that there was one torch in the handle of the knife. Knife was sealed in the pullanda with the seal of "KLM" and was seized vide memo Ex. PW4/B. Pullanda of the mobile phone recovered from accused Neeraj was also prepared and sealed with the seal of "KLM" and was SC No. 68/01/10 12 seized vide memo Ex. PW4/C. Statement of complainant was recorded, on which, ruqqa was prepared and case was got registered through PW6 HC Jitender. Rough site plan of the place of occurrence was prepared by SI Kanhaiya Lal. After registration of the case, PW6 HC Jitender also came back at the spot. All the three accused persons were arrested vide memos Ex. PW4/D to Ex. PW4/F and their personal searches were conducted vide memos Ex. PW4/G to Ex. PW4/I. PW5 HC Naresh Pal has also identified the knife as Ex. P1 and mobile phone as Ex. P2.
Learned defence counsel has contended that PW5 HC Naresh Pal, PW6 HC Jitender, PW7 Satbir Singh and PW8 Constable Rajesh have contradicted each other, which raises doubt about their depositions as to actually they had apprehended the accused persons at the spot, as deposed by them. Learned defence counsel has further contended that PW5 HC Naresh Pal has admitted that seizure memo of knife Ex. PW4/B is not bearing his signatures and no explanation has been given as to why it was not signed by him. Learned defence counsel has further contended that if accused Amit was having open knife in his hand, then it could not have been possible for PW5 HC Naresh Pal to snatch the knife barehanded from accused Amit. Learned defence counsel has further contended that no bus ticket was seized from the possession of the accused persons, which itself demolishes the case of the prosecution that accused persons came down from the bus due to traffic jam and committed robbery.
Learned defence counsel has further contended that PW5 HC Naresh Pal and PW6 HC Jitender have contradicted each other on some facts. PW5 HC Naresh Pal has stated that they were not having wireless set with them, whereas PW6 HC Jitender has stated that PW5 HC Naresh Pal was having wireless set, but SC No. 68/01/10 13 he informed at the PS from his mobile phone. Learned defence counsel has further contended that PW5 HC Naresh Pal has stated that writing work was done, while sitting on the divider between the service road and main road under the streetlight, whereas PW6 HC Jitender has stated that writing work was done, while sitting on footpath under the streetlight.
Learned defence counsel has further contended that PW7 Constable Satbir Singh has stated that PW5 HC Naresh Pal was having wireless set. Learned defence counsel has further contended that none of the witness has been able to disclose in the cross examination as to whom the seal was given after use, which shows that there was possibility of tampering with the case property.
Learned defence counsel has further contended that PW8 Constable Rajesh has not supported the case of the prosecution and has been cross examined by learned Addl. PP and has further contradicted about the place, where writing work was done. In the cross examination, PW8 Constable Rajesh has stated that all the writing work was done under the streetlight, while sitting on the stools.
PW9 is SI Kanhaiya lal. He reached at the spot on receipt of copy of DD No. 29A, which was recorded by PW1 HC Suresh Chand on 23/05/2010, on receipt of information from HC Naresh Kumar regarding arrest of three robbers at Bank complex, Azadpur Mandi, copy of which is Ex. PW1/A. It was also handed over to PW9 SI Kanhaiya Lal.
PW9 SI Kanhaiya Lal has further stated that at the spot, he recorded statement of complainant Ex. PW9/A, on which, he made ruqqa Ex. PW9/B and also prepared sketch of the knife Ex. PW4/A. Knife was sealed in a pullanda with the seal of "KLM" and seized the same vide memo Ex. PW4/B. He also prepared SC No. 68/01/10 14 pullanda of the recovered mobile, which was sealed with the seal of "KLM" and was taken into possession vide memo Ex. PW4/C. He also prepared rough site plan of the place Ex. PW9/C. Accused persons were arrested and their personal searches were conducted. They also made disclosure statements. PW9 SI Kanhaiya Lal has also identified the knife as Ex. P1 and mobile phone as Ex. P2.
Learned defence counsel has further contended that PW9 SI Kanhaiya Lal has contradicted with PW5 HC Naresh Pal, PW6 HC Jitender, PW7 Constable Satbir Singh and PW8 Constable Rajesh regarding the fact as to how PW6 HC Jitender had gone to PS to get registered the case. PW5 HC Naresh Pal has stated that PW6 HC Jitender might have gone to PS on his bike and he might have come back on his bike. The bike was standing on the police booth in the bank complex, whereas PW6 HC Jitender has stated that he went on two wheeler scooter of PW9 SI Kanhaiya Lal for registration of the case. PW7 Constable Satbir Singh has stated that PW6 HC Jitender had gone to PS for registration of FIR on his two wheeler scooter and also came back on the same two wheeler scooter. He does not remember the number and colour of the same. However, it was Bajaj Chetak and was belonging to SI Kanhaiya Lal. PW8 Constable Rajesh has stated that PW6 HC Jitender had left the spot with ruqqa at around 10.15 p.m. on some private vehicle and came back at the spot alongwith FIR at around 11 p.m. on the same vehicle, on which, he had gone to the PS. PW9 SI Kanhaiya Lal has stated that PW6 Constable Jitender might have gone to PS by bus and might have come back at the spot at about 11.30 p.m. by bus.
Learned defence counsel has further contended that other witnesses have stated that their statements were recorded at the spot, whereas PW9 SI SC No. 68/01/10 15 Kanhaiya Lal has stated that he had recorded statements of witnesses at about 3.30 a.m. in the night, in the PS and has further stated that all the writing work was done at the spot under the streetlight, while sitting on the footpath, so, the witnesses cannot be relied upon in any manner regarding the proceedings conducted by the police officials and also the same raises doubt on their testimonies about the apprehension of accused persons with knife and recovery of mobile phone from their possession.
PW1 HC Suresh Chand has deposed that on receipt of ruqqa at about 10.25 p.m. from PW6 Constable Jitender, he recorded FIR of this case, copy of which is Ex. PW1/B. He also made his endorsement on the ruqqa Ex. PW1/C. He also recorded DD No.30A regarding registration of FIR, which is Ex. PW1/D. PW1 has also produced original FIR register and original DD register.
I have considered the submissions of learned defence counsels. PW6 HC Jitender has stated that he reached at the PS at about 10.25 p.m. and after getting registered the case, he came back at the spot at about 11.25 p.m. where he handed over copy of FIR and ruqqa to PW9 SI kanhaiya Lal. PW1 HC Suresh Chand has not been cross examined about the time of arrival of PW6 HC Jitender, so, both PW1 HC Suresh Chand and PW6 HC Jitender have corroborated each other regarding the fact that at about 10.25 p.m., PW6 HC Jitender reached at the PS and got registered the case.
PW2 Constable Sanjay has stated that on 23/05/2010, he was posted at PS Mahendra Park as DD Writer from 4.00 p.m. to 12.00 a.m. night. On that day, he made departure entry of police party at about 6.38 p.m. for evening patrolling duty vide DD No. 37B, copy of which is Ex. PW2/A. He has also produced SC No. 68/01/10 16 original DD register. PW2 has also not been cross examined on any material aspect, which also proves that PW5 HC Naresh Pal alongwith Pw6 HC Jitender, PW7 Constable Satbir Singh and PW8 Constable Rajesh on evening patrolling duty in the area of Subzi Mandi, Azadpur, Delhi.
PW3 HC Vijay Singh has further corroborated by deposing that on 23/05/2010, while he was working as MHC(M) at PS Mahendra Park, one sealed pullanda sealed with the seal of "KLM" containing one buttondar knife and another pullanda sealed with the seal of "KLM" containing mobile phone were handed over to him by PW9 SI Kanhaiya Lal, which he deposited in the malkhana vide entry No. 177/10, copy of which is Ex. PW3/A. PW3 has also produced original register No. 19 before the Court.
PW3 has also not been cross examined by learned defence counsel in any manner, which also corroborate the fact that case property sealed with the seal of "KLM" was deposited on 23/05/2010 itself i.e. when it was recovered. So, in such circumstances, it cannot be said that no such proceedings were conducted at the spot. The contradictions, as pointed out by learned defence counsel, are minor in nature and they are bound to come due to lapse of time. All these PWs have corroborated each other regarding the knife taken from the hands of accused Amit by PW5 HC Naresh Pal and recovery of mobile phone from the possession of accused Neeraj. Merely that seizure memo of knife Ex. PW4/B is not bearing signatures of PW5 HC Naresh Pal does not mean that he was not present at the spot because he has signed the sketch of the knife Ex. PW4/A as a witness and also seizure memo of recovered mobile phone Ex.PW4/C. He has also signed as a witness to the disclosure statements of the accused persons and also personal SC No. 68/01/10 17 search memos of the accused persons. So, it seems that inadvertently PW5 HC Naresh Pal could not sign the seizure memo of knife Ex. PW4/B. It is also deposed by PW5 HC Naresh Pal in the cross examination that PW9 SI Kanhaiya Lal had brought his kit bag, when he reached at the spot, which also fortify the depositions of the witnesses regarding the fact that case property was sealed and seized at the spot.
All these PWs have corroborated each other regarding the time till when they remained present at the spot from 8.30 p.m. to 12.30 a.m. night. PW9 SI Kanhaiya Lal reached there at about 9.15 p.m. and PW9 SI Kanhaiya lal has also corroborated this fact by saying that he received copy of DD No. 29A at about 8.55 p.m. So, he reached at the spot at about 9.15 p.m. The contradictions regarding the fact as to how PW6 HC Jitender had gone to PS for getting registered the case, as to whether by bus or on two wheeler scooter or on bike, as deposed by the witnesses, is of no relevance as PW1 HC Suresh Chand has corroborated the fact that he registered the FIR of this case, when ruqqa was produced before him by PW6 HC Jitender and PW1 HC Suresh Chand has not been cross examined in any manner that no such ruqqa was received by him and recorded the FIR at the instance of the IO later on. Rather, PW1 HC Suresh Chand has been cross examined to the extent as to at what time PW6 HC Jitender has left the PS, to which, he replied that PW6 HC Jitender left the PS at about 11 p.m., which shows that PW6 HC Jitender had reached at the PS for registration of FIR and mode of conveyance is of no relevance and only on these minor contradictions, testimonies of the witnesses cannot be thrown to disbelieve them in any manner. So, the contentions of learned defence counsels are not forceful in SC No. 68/01/10 18 any manner.
All the PWs have corroborated each other that PW5 HC Naresh Pal had given information to PS from his mobile phone, which has been further corroborated by PW1 HC Suresh Chand, who has stated that HC Naresh Kumar had given him information about the arrest of robbers in the PS. Similarly, the contradiction about the manner, in which, the writing work was done at the spot, is also of not much relevance because writing work was done at the spot and it was done at footpath or on stool is of not much consequence to disbelieve the testimonies of the witnesses.
After the arrest of the accused persons, they were taken to BJRM hospital in a Maruti van type vehicle. The said vehicle was passing through there and it was stopped. Police officials PW5 HC Naresh Pal, PW6 HC Jitender, PW7 Constable Satbir Singh and PW8 Constable Rajesh had gone with the accused persons and PW9 SI Kanhaiya Lal left on his two wheeler scooter. They came back to PS from PS Shalimar Bagh at about 3.00 a.m. It has been corroborated by all the witnesses. PW9 SI Kanhaiya Lal has also stated in the cross examination that he left the spot for the PS in his two wheeler scooter, so, there is no doubt in the depositions of the witnesses regarding recovery of knife and mobile phone, arrest of the accused persons from the spot and the proceedings conducted at the spot. So, there is no ground to disbelieve the testimonies of witnesses.
Learned defence counsel has further contended that father of accused Amit had given a complaint against accused Shiva to the extent that his son could be falsely implicated in any criminal case at the instance of accused Shiva. In this respect, DW1 HC Om Prakash has been examined, who has produced DD register SC No. 68/01/10 19 containing DD No.14, according to which, on 06/05/2010, one Mahender had given one written complaint, which was further handed over to SI Rakesh Sehrawat for necessary action, photocopy of which is Ex. DW1/A. DW2 Mahender, father of accused Amit, has stated that Sunny and Shiva residing in the same vicinity, in which, they were residing, had threatened his son Amit that they will falsely implicate him in any criminal case. He had filed a written complaint in this respect in PS Model Town, copy of which is Ex. DW2/A. After about 15 or 20 days, police came to his house and lifted his son and falsely implicated him in this case.
Similarly, DW3 Geeta, mother of accused Neeraj, has stated that on 22/05/2010 at about 8 or 8.15 p.m., four police officials came to her room, out of them, two were in civil dress and two were in uniform. Those police officials lifted his son and took him to PS Mahendra Park. She also accompanied them. They assured her to leave her son after making inquiries. Her husband also reached in the PS. Her son did not reach from the police station and he was falsely implicated in the present case.
According to the arrest memos of accused persons, they were arrested in this case from the spot on 23/05/2010 in between 11.40 to 11.55 p.m. Arrest memos were signed by many witnesses including PW4 Mehshad. Information of arrest of accused Amit was given to his father Mahender and arrest memo was also signed by his father Mahender. Arrest memo of accused Neeraj is also signed by one Deepak. Arrest memo of accused Shiv Kumar @ Shiva is also signed by Sunita. None of the witness has been cross examined to the effect that accused persons were lifted from their houses and have been falsely implicated in this case. SC No. 68/01/10 20
DW2 Mahender has not explained as to how his signatures are appearing on Ex. PW4/D i.e. arrest memo of accused Amit. Similarly, accused Neeraj and Shiv Kumar @ Shiva have not explained as to how the signatures of Deepak and Sunita are appearing on their arrest memos. Hence, in such circumstances, defence witnesses examined by accused Amit and Neeraj cannot be relied upon and it cannot be believed that they have been falsely implicated in this case.
In view of above discussion, as prosecution has not been able to examine complainant Mohd. Dabir and PW4 Mehshad is not inspiring any confidence to the extent that he is eye witness to the robbery and in absence of the deposition of complainant and further in absence of any corroboration, it is difficult to believe that robbery was committed by the accused persons in presence of PW4 Mehshad, so prosecution has not been able able to prove offence U/s. 392/34 of IPC against the accused persons, for which, they are acquitted.
Accordingly, prosecution has also not been able to prove offence U/s. 392 read with Section 397 of IPC against accused Amit, for which, he is acquitted.
Testimony of PW4 Mehsad inspire confidence regarding the fact that all the accused persons came to his rehri and stabbed the knife, having torch in it, on the watermelon, which he was selling at that time on his rehri and asked him to handover whatever he was having with him at that time. Testimony of PW4 Mehshad is unshaken and he can be relied upon in this respect. Merely that he did not mention the name of accused in his statement Ex. PW4/DA does not mean that he has deposed falsely before the Court. When his statement was recorded, till SC No. 68/01/10 21 that time, he might have not come to know about the names of accused persons, due to which, the names of accused persons are not appearing in his statement recorded by the police, so, the same is not a contradiction in any manner.
From the depositions of the police witnesses i.e. PW5 HC Naresh Pal, PW6 HC Jitender, PW7 Constable Satbir Singh and PW8 Constable Rajesh, which inspire confidence and they are reliable, prosecution has also been able to prove beyond reasonable doubts that one knife was recovered from the possession of accused Amit and one mobile phone was recovered from the possession of accused Neeraj, but prosecution has not been able to prove the ownership of the same, so, from the deposition of PW4 Mehshad, it is proved that accused persons intentionally put him in fear of an injury and thereby dishonestly induced him to deliver whatever he was having with him at that time. Accordingly, prosecution has been able to prove offence U/s. 384/34 of IPC against all the accused persons, for which, they are held guilty and convicted for the same.
As accused Amit, while committing the offence of extortion, also used knife, which has been proved beyond reasonable doubts that the knife was recovered from his possession and has been identified by the witnesses before the Court, prosecution has also been able to prove offence U/s. 27 of Arms Act beyond reasonable doubts, for which, accused Amit is held guilty and convicted for the same.
Announced in Open Court on (Virender Kumar Goyal)
dated 31st of January, 2012 Additional Sessions Judge
Fast Track Court /Rohini : Delhi
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