Delhi District Court
Kumar vs Delhi Administration Air 1925 Sc 905 And ... on 18 August, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC No. : 194/1/09
State
Versus
1. Shajad Hassan Jaidi
S/o Yaqub Haider Hassan Jaidi
R/o A699, Camp No.2
Nangloi, Delhi.
2. Firoj Khan
S/o Phool Kumar
R/o D1/103, Shani Bazar
Prem Nagar, 3rd Kirari Nangloi,
Delhi.
3. Nawal Kumar
S/o Rajman
R/o Khasara No.154, Gali No.15
Budh Bazar Road, Suleman Nagar
Kirari Nangloi, Delhi.
Case arising out of :
FIR No. : 266/09
U/s :397/34 IPC
P.S. : Uttam Nagar
Date of FIR : 29.08.2009
Date of Institution : 13.11.2009
Date of Final Arguments : 10.08.2010
Judgment reserved on : 10.08.2010
Date of judgment : 13.08.2010
SC No. 194/1/09 Page 1of 19
JUDGMENT
1. The prosecution alleged the charge sheet against the accused are that on 28/29.08.2009 at 3.30 am at H.No. 6A, Gali No.4, Gupta Enclave, Vikas Nagar, New Delhi within the jurisdiction of Police Station, Uttam Nagar you all in furtherance of your common intention committed robbery or dacoity by using deadly weapon like knife etc and caused fear with attempt to cause death or grievous hurt to the complainant Rakhi W/o Mukesh Kumar and her family members and thereby committed an offence punishable under section 397/34 IPC.
2. The prosecution story as deposed by PW7 Rakhi Singh in her deposition is that on 28.08.2009 she had gone to sleep in her house. Her nephew Abhishek had come at about 1.30 am on 29.08.2009. Her husband Mukesh did not lock the house but only bolted it. Her nephew had his dinner and they all finally slept at about 2.30 am on 29.07.2009. Her husband and nephew were sleeping in separate rooms and she alongwith her neice Pushplata was sleeping in different room some thief entered her room and switched on the light. She asked as to who he was and on saying that the thief closed her mouth with his hand and put a knife on her neck. They have told her that she should hand over whatever articles she had. They also made to take out the whatever worn by niece Pushplata. He also asked her to take out the whatever she had and in compliance, she handed over one gold ear ring, one gold ring, one gold chain. He also asked her the keys of the locker and she told him that the keys are in the almirah, SC No. 194/1/09 Page 2of 19 thereafter all the four thieves told that her husband will get up and they ran away from the house. She raised hue and cry " Chor Chor" on getting out, she saw that the room in which her husband was sleeping was bolted from outside. She opened the room and checked and saw Rs.10,000/ kept in the pant pocket and two mobile phones were stolen from the room of her husband, She also found that Rs.4,500/ one watch and ring of her husband were also found stolen. Police was informed. Witness identified the three accused persons present in the court to be among the robbers who had come to her house. Police recorded her statement ExPW7/A. Police had inspected the house and she does not remember whether the police has prepared the site plan at the her instance. In her cross examination, out of the four persons who were entered in her house two of the said persons had shown her knife and had also threatened her. The statements of her family members were not recorded by the police.
PW10 Retd. SI Om Prakash, on receipt of DD No.9A ExPE6/c on dated 29.08.2009. He alongwith Ct. Gaurav reached at spot at House No.6A, Gali no.4, Gupta Enclave, Vikas Nagar where he met one Rakhi and recorded her statement ExPW7/A and prepared a rukka and the same was handed over to the Ct. Gaurav who got the present case registered vide ExPW6/A. He prepared the site plan at the pointing out of Rakhi. All the accused persons were apprehended by Special Staff, West District and their disclosure statement Ex.PW8/C, D and E were recorded. Two mobile phones, chain and ring, TV etc recovered by the special staff and same were seized vide seizure memo ExPW5/A to D. A kalandra was prepared vide SC No. 194/1/09 Page 3of 19 Ex.PW8/A. He also got TIP of all the accused conducted and all the three accused persons refused the TIP. He also recorded statements of witness. He had formally arrested all the accused persons at Tihar Jail vide memo Ex.PW10/B, C and D. The result of the investigation was put up before the SHO and challan was prepared and same was filed.
PW8 ASI Nirakar Sharma was posted in Special Staff who received the secret information that the robbers who were involved in commission of robbery on the intervening night of 28/29.08.2009 had come near Lokesh cinema near bus stand, Nangloi for distribution of robbed articles. He made DD entry regarding the said information. He alongwith SI Charan Singh, SI Manoj, ASI Virpal, ASI Balwinder, HC Ved Prakash, HC Shashi Kant, HC Parmod Kumar, Ct. Pawan Kumar, Ct. Shashi, Ct. Suresh and secret informer constituted a raiding party and left in two private vehicles. They reached Nangloi Chowk at about 6:00 PM and requested some public persons to join the investigation but none was willing to join. At about 06:30 PM, they put a barricade near the Lokesh Cinema and all the accused persons were seen coming at about 7:00 PM from Lokesh Cinema side. They were pointed out by the secret informer and apprehended. Accused Sehzad and Nawal were found in possession of mobile phone each which was subsequently found to be connected with FIR No. 271/09, police station Uttam Nagar. He also recorded the disclosure statement of the accused and he was subsequently connected with this case. ASI Nirakar Sharma had prepared a Kalandra under section 41.1D Cr.P.C. against all the accused persons vide ExPW8/A. He made a disclosure statement of all the accused persons vide Ex.PW8/C to PW8/E. All the said disclosure SC No. 194/1/09 Page 4of 19 statements are written by him. He has also seized the case property vide ExPW5/A to PW5/D and the said seizures memos are prepared and signed by him. DD No.10 dated 03.09.09 is ExPW8/F and DDNo.11 is ExPW8/G none of the case property was recovered was connected to the present case. All the accused persons had refused their TIP proceedings.
3. After the completion of investigation of this case and charge under section 397/34 IPC has been framed against the accused persons for which they pleaded not guilty and claimed trial.
4. The prosecution in all examined 11 witnesses to prove the charges against the accused persons, including PW7 Rakhi Singh, PW4 Mukesh Kumar, PW9 Pushplata Singh. PW4 Mukesh Kumar in his deposition stated that he alongwith his family was sleeping in his house on 28.08.09. None of his jewelery articles or money has been recovered. He had not seen any offender. PW7 Rakhi Singh in her deposition identified three accused persons present in the court to be among the robbers who had come to her house. Police recorded her statement vide Ex.PW7/A out of which fourth accused persons had also threatened her. In her cross examination there was darkness in the house because the lights were switched off. She has not seen any of the accused persons at the spot. She could not identify them.
PW9 Pushplata is stated that she saw four persons present in the room. Out of which one person put a knife on her stomach and other person also put a knife on her Chachi Rakhi and they ordered them to take out all the jewellery. The said persons after getting removed all jewelery from her person and her Mangalsutra was SC No. 194/1/09 Page 5of 19 snatched by one of them, and her chachi and her brother who were in the other room got up and chased those persons but none of them could be apprehended and in her examination. PW9 statement made apart from three examine witness. PW1 HC Krishan Kumar, he had prepared the challan. No other investigation was done by him. PW2 SI Gulshan Kumar incharge of the crime team inspected the scene of crime with some police officials and took the photograph and chance print got developed. PW3 HC Devender Kumar took photograph of the chance print developed at the spot. The photograph of the chance print were sent to Director Bureau photo section vide film no. 57 300 and film no. 58 and pose no. 3735 total six poses. The report Ex.PW2/A bears his sign at point B. PW5 Shashi along with ASI Nirakar, Charan Singh, SI Manoj, ASI Blavinder and othe staff were present near Lokesh Cinema Bus Stand at the time of apprehension of the accused persons on 03.11.2009. The accused persons got arrested as well as got recovered the case property of some other case. PW6 Om Prakash. Duty Officer took a DD No.9A vide Ex.PW6/C. Copy of FIR is Ex6/A and endorsement is Ex6/B. Again on 04.09.09 He has recorded DD No.22A. The copy of the same is ExPW6/D. PW10 SI Om Prakash recorded her statement ExPW7/A and made endorsement ExPW10/A prepared a rukka and the same was handed over the Ct. Garurav who got the present case registered vide FIR is ExPW6/A. He arrested the accused persons and prepared seizure memo of two mobile phones, chain and ring , TV etc are ExPW5A to D. He also moved an application for TIP of the accused persons. He also recorded statement of witnesses. He had formally arrested all the accused SC No. 194/1/09 Page 6of 19 persons at Tihar Jail vide memo ExPW10/B/C and D. PW11 Mahender Virat, MM Dawarka Courts, Delhi proved the judicial TIP of the accused persons who refused to join despite warning given to them that the refusal to join TIP will draw negative inference.
After completion of the investigation, charge under section 397/34 IPC has been framed against the accused persons for which they pleaded not guilty and claimed trial.
5. After completion of the prosecution evidence, statement of the accused persons recorded under section 313 Cr.P.C., they denied the same as false and incorrect with the submission that they are innocent and falsely implicated in this case.
6. I have heard the contentions of Ld. APP as well as counsel for the accused persons and carefully gone through the material placed on record.
Ld. APP for state submitted that the complainant PW7 Rakhi Singh identified all the three accused persons who committed the crime. The testimony of the prosecution witnesses are trustworthy, believable and corroborative. The prosecution witnesses identified all the accused persons in the court and accused persons refused to join in the TIP proceedings. The adverse inference will be drawn against the accused persons. Apart from it, the accused persons in their confessions admitted their guilt. The conduct of the accused to run away from the spot also draw adverse inference. The antecedents of the accused persons pointed the needle of suspicion towards the accused persons. Even in statement under section 313 Cr.P.C., there is SC No. 194/1/09 Page 7of 19 no specific plea of the allegations except simple denial. Therefore, all the accused persons are liable to be convicted as per the charges framed.
7. Ld. Counsel for the accused persons submitted that prosecution have fail to prove its case against the accused persons. PW9 Pushplata in her deposition against the accused persons have assigned any specific role to individual accused persons for committal of the offence punishable under section 397/34 IPC. The robbery or dacoity with attempt to cause death or grievous hurt to any person, it is essential to satisfy the word "Use s" for the purpose of section 397 IPC is the robbery being committed by an offender who was armed with a deadly weapon which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and it further shows to have been actually used cutting, stabbing, shooting, as the case may be, but none of the witness have assign any specific role. Merely, the description of bamboo sticks or lathis is not enough to make the weapons lethal or deadly or any armed. When there is no evidence that at the time of committing robbery the accused used any deadly weapon or caused any grievous hurt or made any attempt to cause death or grievous hurt to any person, he cannot be convicted under section 397. Nothing have been found from those accused persons. Nothing incriminating have been stated to prove the common intention, no such recovery in view of the the disclosure statement of accused persons. Under these circumstances accused persons are liable to be acquitted from the charges under section 397 IPC.
8. Having heard the submissions of Ld. APP for state and SC No. 194/1/09 Page 8of 19 counsel for the accused persons and carefully gone though the material placed on record. The accused persons are facing charges for the offence under section 397/34 IPC.
9. The robbery is defined under section 390 IPC, "The ft is " robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
10. The offence of robbery is punishable U/s 392 IPC. When fear is used to enable any person to carry away booty, it amounts to robbery, theft is robbery when in committing theft or in order that theft by committing or in carrying away the booty force is used. Similarly robbery involve extortion hence person cannot be convicted both for the extortion and for robbery which is a special aggrievated from the extortion. The dacoity consisting of five or more persons conjointly commit or attempt to commit a robbery or where the whole number of persons conjointly committing or attempting to commit a robbery and person present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "da coity" .
11. So far as, in respect of the charge u/s 397 IPC, it is essential to satisfy the word " uses" for the purpose of section 391 IPC, robbery being committed by an offender who was armed with a deadly weapon which was then in the vision of the victim shown as to create a terror in the mind of victim and in that it should be further shown, have been SC No. 194/1/09 Page 9of 19 used for cutting, stabbing, shooting as the case may be. In Phool Kumar Vs Delhi Administration AIR 1925 SC 905 and Jung Singh Vs State of Rajasthan 1984 Crl. J. 1135, in these two cases it was held that "u se of deadly weapon by one offender at the time of committing robbery does not attract section397 for imposition of any minimum punishment for another offender who did not use such weapon and when the accused is charged U/s 395 read with 397 IPC for committing dacoity with attempt to cause grevious hurt, he cannot be convicted u/s 397 IPC only because one revolver had been recovered from the accused. This is no proof that he used the revolver while committing dacoity was charge u/s 397 will not attract. The provision postulates on only individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably neglects the use of the contradictive or vacarious liability engrafted in section 34 IPC.
In case titled Sh. Shravan Dashratha Vs State of Maharashtra 1998 Crl. J. 1196 Bombay. The Bombay High Court has held that liability u/s 397 IPC he individually and not contradictive and this would become crystal clear and analysis of the section 397 IPC, it is only when a person while committing dacoity or attempting to commit dacoity uses any deadly weapon or caused grievous hurt or attempts to cause death or grievous hurt to any person then that person will be guilty of section 397 IPC. When there is no evidence at the time of committing robbery the accused used any deadly weapon or caused any grievous hurt or made any attempt to cause death or grievous to any person who cannot be convicted u/s 397 IPC. The SC No. 194/1/09 Page 10of 19 prosecution case is that it is the coaccused who inflicted the major injuries to the victim by committing high way robbery. Even though the accused participated in the case of robbery he did not commit any offence u/s 397 IPC and committing the offence U/s 392 and 394 IPC.
The section 390 IPC contemplates that the accused should have, from the very start, the intention to deprive the complainant of the property, and should for that purpose either hurt him or place him under wrongful restraint. The definition of "rob bery" requires that either death or hurt or wrongful confinement is caused or it must be actually found that the victims were put in fear of instant death, instant hurt or instant wrongful confinement. In the absence of these findings and merely because the articles were removed from the persons of the victims when the accused were armed with lathis, does not by itself make out a case of robbery.
Where no force or show of force is found to have been used in the committing of theft, etc. the offence of robbery cannot be said to have been committed. If theft is already committed and violence is used to help an offender to escape, theft is not robbery. When two views are possible that violence was used either to help in removal of stolen article or to enable an offender to escape after commission of theft, the view favourably to the accused should be accepted.
12. Accidental infliction of the injury by the thief will not convert offence into robbery that come under the definition of theft. The accused abandoned the property obtained by theft and through stones at his pursuer but determined him from continuing pursuit. It was held that the accused was guilty of theft and not for robbery. It is SC No. 194/1/09 Page 11of 19 not sufficient that any transaction of committing theft, hurt etc. has been caused. If hurt etc. is caused at the time of commission of theft but for an object other than the one referred in this section theft would not amount to robbery. There is no rule of thumb that after the lapse of a long period the witnesses would in no case be able to identify the robbers they had seen in the course of robbery. The court has to be extremely cautious in appraising such evidence and the decision in each case must turn on its own special facts. Where the occular witnesses had ample opportunity to notice and mark the special features of the miscreants and they had given some particulars of identify of the culprits in their statements to the police and they were not cross examined on this point visavis their police statements, the identity of the appellants as the robbers was established beyond reasonable doubt.
13. Let we analyse the provision of 383 IPC which defines extortion as "who ever put a person in fear of injury, to that person or to any other person and thereby dishonestly induce the person to put in fear to deliver any person any property or valuable security or anything assigned or held, it may be confronted into valuable security, commits extortion" . The same is also further explained through the illustrations under the facts of the circumstances of the present case. The threat or menace must be of such in nature an extent as to unstable the mind of the person on whom, it operates and takes away from his act. The element of free and voluntary action which alone constituted consent. The injury contemplated must be one which the accused had himself inflicted or caused to be inflicted. There must be intention to SC No. 194/1/09 Page 12of 19 wrongful loss to the person who is extorted. Mere falsely taking of the property from another does not come under the definition. It must be shown that the person was induced to apart with the property to put in fear of injury as observed in 1970 Criminal Journal 647.
In most of cases such nature, the accused is an unknown person and the only evidence which may connect him with the crime is the evidence of identification in a test identification parade and in some cases the arise of culprit is being delayed for which prosecution face its consequences. The complainant in her deposition identified the accused persons in the court and the accused persons refused to join for the judicial TIP. The refusal of the accused persons to join the TIP proceedings draws adverse inference can be drawn against the accused for attracting the charge under section 397 IPC. The accused persons have to use deadly weapon and there must be unimpeachable and occular evidence against the accused persons to attract the charges under section 397 IPC. The deposition made by the complainant PW 7 Rakhi Singh is only for the identification of the accused persons and the refusal of the accused persons to participate in the TIP proceedings. There is no undue delay in moving the application for conducting the judicial TIP of the accused persons. The accused persons were arrested on 07.09.2009 and they were put forward before the Ld. Magistrate for joining the TIP proceedings on 10.09.2009 or 08.09.2009. The accused persons appeared in muffled face. The accused persons refused to participate in the TIP on the pretext that their photographs were taken by the investigating officer. But there is no suggestions made in the cross examination of the prosecution SC No. 194/1/09 Page 13of 19 witnesses that the photographs of the accused persons have ever been shown to the complainant and other prosecution witnesses. Therefore, adverse inference can be drawn against the accused persons.
PW7 Rakhi in her cross examination categorically stated that three accused persons present in the court today to be among the robbers who had come to her house and two of the accused persons were shown knives and also threatened her. It is denied in the cross examination that she has not seen the accused persons at the spot and no such incident has taken place. The accused persons committed dacoity that there was no light in the house. However, when they entered into the house they switch on the light. All the three accused persons in their house have been seen by PW7 Rakhi. As a result of which, the witnesses were able to identify the miscreants/accused persons.
The accused persons in statement under section 313 Cr.P.C. answered the relevant facts for finding of the truth with respect to the case of the prosecution. The object of recording of statement of the accused persons under section 313 Cr.P.C. is to put every incriminating evidence to the accused so as to provide such incriminating circumstances for the evidence of the prosecution at the same time also permitted them to put forward their own version or reason. The accused persons get fair chance to explain their conduct or the alternative or their alleged involvement in the alleged incident of the crime. The court may rely upon the portion in the consideration of the other evidence against the accused led by the prosecution. But such submissions should be considered in addition to the evidence SC No. 194/1/09 Page 14of 19 adduced by the prosecution. In the present case, in consonance of the deposition of the prosecution witnesses. The incriminating evidence led by the prosecution put to the accused for which they simply denied showing their innocence about not committing of the crime. Mere denial is no denial in the eye of law. There must be specific denial with the rebuttal of the deposition of the prosecution witnesses. The complainant PW7 Rakhi Singh and PW9 Pushplata Singh handed over all the wearing jewelery under the fear of instant injuries. It is not necessary for attracting the provision with the money and where the jewelery extorted from complainant must be recovered.
14. Therefore, the facts and the deposition made by the prosecution witnesses completed the chain of evidence to attract the ingredients of section 383 IPC which is punishable under section 384 IPC. Therefore, the deposition made by the prosecution witnesses are unimpeachable and credible to bring home the guilt of the accused persons for the offence under section 384 IPC. Hence, all the three accused persons namely Shajad Hassan, Firoz Khan and Nawal Kumar are hereby convicted for the offence punishable under section 384 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court ADDITIONAL SESSIONS JUDGE
today i.e. on 13.08.2010 (WEST04):DELHI
SC No. 194/1/09 Page 15of 19
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST04), DELHI
SC No. : 194/1/09
State
Versus
1. Shajad Hassan Jaidi
S/o Yaqub Haider Hassan Jaidi
R/o A699, Camp No.2
Nangloi, Delhi.
2. Firoj Khan
S/o Phool Kumar
R/o D1/103, Shani Bazar
Prem Nagar, 3rd Kirari Nangloi,
Delhi.
3. Nawal Kumar
S/o Rajman
R/o Khasara No.154, Gali No.15
Budh Bazar Road, Suleman Nagar
Kirari Nangloi, Delhi.
Case arising out of :
FIR No. : 266/09
U/s :384/34 IPC
P.S. : Uttam Nagar
ORDER ON SENTENCE:
Present: Additional Public Prosecutor for State.
All convicts/accused on bail with counsel.
The convicts/accused persons have been convicted for the offence SC No. 194/1/09 Page 16of 19 punishable under section 384 IPC, vide separate detailed judgment dated 13.08.2010 .
I have heard submission of Ld. APP for State and counsel for accused persons on the point of sentence and carefully gone through the material on record.
Ld. APP for state submitted that prosecution proved its case against all the accused beyond all reasonable doubts and the testimony of all the prosecution witnesses inspire confidence, they are trustworthy and reliable. All the accused have not given any defense evidence to disprove the allegations made against them. There are sufficient evidence against the accused persons to connect them with the crime itself. Therefore, they are liable to be convicted in accordance with law.
On the contrary, Ld. Counsel for accused persons submitted that they have clean antecedents, they have not been previously convicted and they are young boys. It is further contended that accused persons remained in J/C for a sufficient period of time. The offence under section 397 IPC has not been proved against them and convicted for offence u/s 384 IPC. Therefore, prayed to released all the accused persons for the period of imprisonment already undergone by them during investigation, inquiry and trial of this case.
In view of the submissions made by the Ld. APP for state and counsel for convicted and the provision of law, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of Callifornia (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in determining a just and appropriate punishment in the infinite variety of SC No. 194/1/09 Page 17of 19 circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. .......... In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of " order" should meet the challenges confronting the society. Friedman in his " Law in Changing Society" stated that, " State of criminal law continues to be as it should be decisive reflection of social consciousness of society".
SC No. 194/1/09 Page 18of 19 Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 "It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. Therefore to consider the contention raised by Ld. Counsel for convicts, the background of the present case as well as the period of already undergone and long the trial of the convicts they are sentenced to already undergone imprisonment and fine of Rs.10,000/ in default of three months simple imprisonment for the offence punishable under section 384/34 IPC. Fine amount paid by all the convicted.
I think the sentence awarded to all the convicted shall meet the end of justice. Copy of this order as well as of judgment be given each of the accused free of cost. File be consigned to Record Room.
Dictated & Announced (SATINDER KUMAR GAUTAM) in the open court today ADDITIONAL SESSIONS JUDGE i.e. on 18.08.2010 (WEST04):DELHI SC No. 194/1/09 Page 19of 19