Delhi District Court
State vs 1.Jaiveer on 3 June, 2014
IN THE COURT OF SH. RAJ KAPOOR, ASJ-03, COURT NO. 3, ANNEXE
BUILDING, PATIALA HOUSE COURT S, NEW DELHI
Sessions Case No. 15/ 14
FIR No. 80/13
State Vs 1.Jaiveer
2.Vijay Kumar
Police Station Mandir Marg
Under Section 392/ 34 IPC and 411 IPC
03.06.2014
Pre: Ld. APP for the state.
Convict Jaiveer and Vijay Kumar are in JC.
Arguments heard on the point of sentence. Convict persons
namely Jaiveer and Vijay Kumar are sentenced to undergo for the period
as already undergone by them during the course of trial and to pay a fine of
Rs.200/- each for the offence u/s 392/34 IPC and 411 IPC collectively, in
default of payment of fine they shall undergo 5 days S.I. Copy of this order
and judgment be given to the convict at free of cost forthwith. File be
consigned to RR.
(RAJ KAPOOR)
ASJ-03/PHC/NDD/NEW DELHI
1
IN THE COURT OF SH. RAJ KAPOOR, ASJ-03, COURT NO. 3, ANNEXE
BUILDING, PATIALA HOUSE COURT S, NEW DELHI
Sessions Case No. 15/ 14
FIR No. 80/13
State Vs 1.Jaiveer
2.Vijay Kumar
Police Station Mandir Marg
Under Section 392/ 34 IPC and 411 IPC
03.06.2014
ORDER ON THE POINT OF SENTENCE
Pre: Ld. APP for the state.
Convict Jaiveer and Vijay Kumar are in JC.
ld. APP submits that offence of such types are increasing day by
day. Ld. APP further submits that accused persons have already been
acquitted for the offences u/s 397 IPC. Ld. APP submits that accused
persons have only been convicted for the offence punishable u/s 392/34
IPC and 411 IPC for the recovery of one mobile phone and Rs.300/. On
these grounds ld. APP submits that convict persons do not deserve for any
leniency hence maximum punishment be awarded to the convict.
Contrary to it, convict Vijay submits accused is a very poor person.
He has old aged fathermother and one young sister to look after. He is the
only member in his family to look after them. He submits that he is in JC
for about 13 months. He has no previous criminal antecedents. On these
2
grounds he submits that he be released for the period as already
undergone by him during the course of trial.
Convict Jaiveer submits accused is a very poor person. He has old
parents and one young sister to look after. He is the only member in his
family to look after them. He submits that he is in JC for about 13
months. He has no previous criminal antecedents. On these grounds he
submits that he be released for the period as already undergone by him
during the course of trial.
I have heard the submissions of convict and ld. APP as well.
Since, convict persons Jaiveer and Vijay Kumar remained in JC for about
13 months therefore, to my view the ends of justice will be met if convict
persons namely Jaiveer and Vijay Kumar are sentenced to undergo for
the period as already undergone by them during the course of trial and to
pay a fine of Rs.200/ each for the offence u/s 392/34 IPC and 411 IPC
collectively, in default of payment of fine they shall undergo 5 days S.I.
Accordingly, convict persons namely Jaiveer and Vijay
Kumar are sentenced to undergo for the period as already
undergone by them during the course of trial and to pay a
fine of Rs.200/ each for the offence u/s 392/34 IPC and
411 IPC collectively, in default of payment of fine they
shall undergo 5 days S.I.
Copy of this order and judgment be given to the convict at
free of cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 03.06.2014
(RAJ KAPOOR)
ASJ-03/PHC/NDD/NEW DELHI
3
IN THE COURT OF SH. RAJ KAPOOR, ASJ-03, COURT NO. 3, ANNEXE
BUILDING, PATIALA HOUSE COURT S, NEW DELHI
Sessions Case No. 15/ 14
Assigned to Sessions. 10.08.2013
Arguments heard on 17.05.2014
Date of order. 22.05.2014
FIR No. 80/13
State Vs 1.Jaiveer s/o Balbeer r/o Vegabond,
Bangla Sahib , Gurudwara, New
Delhi.
2.Vijay Kumar s/o Ashok Kumar r/o
Vegaond, Gole Market, Bangla
Sahib Gurudwara, New Delhi.
Police Station Mandir Marg
Under Section 392/ 34 IPC and 397/ 411 IPC
JUDGEMENT
1. Briefly facts of the case are that on 12.05.2013 complainant Sohan Mehto was driving his TSR/ three wheeler bearing no. DL-1H-2511 and at about 03:30 PM when he reached near Shankar Road, Dhaula Kuan Road he stopped the TSR about 100 meters away from Shankar Road turn for attending natural call. The TSR was parked on the left side of the road. Sohan Mehto was filling up water to go to the toilet. In the meanwhile accused persons along with one associate came to Sohan Mehto and robbed him by showing knife and snatched his mobile phone and Rs.300/- and while accused persons were in the process of running away when accused Vijay was caught hold of by Sohan Mehto at the spot and other 4 two persons managed to escape from the spot. The robbed mobile phone was recovered from accused Vijay. Complainant Sohan Mehto raised hue and cry and policemen namely PW2 Ct. Arun Mathur and Ct. Narender, who were present nearby of the place, reached to Sohan Mehto and accused Vijay was handed over to him. In the meantime PW5 ASI Vijay also arrived at the spot to whom accused Vijay was handed over. Thereafter, police went inside the jungles and they apprehended accused Jaiveer too and Rs. 300/- were recovered from him, which were robbed by the accused persons.
2. This case was committed to this Court and received on 10.08.2013 for trial as it pertains to the heinous crime committed under sections 392/ 34 IPC 397 and 411 IPC. which is exclusively triable by court of Sessions. Ld. predecessor of this court framed a charge for the offences punishable u/s 392/ 34 IPC 397 and 411 IPC vide order dated 10.10.2013 to which accused persons did not plead guilty and claimed trial.
3.Thereafter, prosecution has examined 05 witnesses namely PW1 SI Kallu Khan - duty officer; PW2 Ct. Arun Mathur; PW3 R K Singh - Nodal Officer; PW4 Sohan Mehto - complainant; and PW5 ASI Vijay Kumar.
4. PW1 SI Kallu Khan was working as duty officer on 12.05.2013 and he recorded the FIR No. 80/13, PS - Mandir Marg on the rukka brought by 5 Ct. Arun and sent by ASI Vijay Kumar at about 05:00 PM. He got exhibited the copy of the FIR as Ex.PW1/A. He has also made his endorsement on the rukka vide Ex.PW1/B. The copy of the FIR and rukka were handed over to Ct. Arun by ASI Vijay Kumar. This witness has been cross-examined. No contrary evidence has come on record.
5.On careful perusal of testimonies of PW2 Ct. Arun Mathur and PW5 ASI Vijay Kumar it has come on record that on 12.05.2013 Ct. Arun and Ct. Narender were at patrolling duty at Ridge Road and they saw a tempo parked on the left side of the road and on checking the tempo it was found to be empty. Both the constables heard noise from the side of boundary wall and when they climbed the boundary wall they saw that three persons assaulting and robbing one person. On seeing the police accused started to run away, however, accused Vijay was apprehended at the spot and mobile phone was recovered from him. In the meanwhile, PW5 ASI Vijay also arrived at the spot and both accused Vijay and the complainant was handed over to the IO ASI Vijay Kumar. Accused Jaiveer was also apprehended from inside the jungle and the robbed amount of Rs. 300/- was also recovered from accused Jaiveer. The copy of rukka prepared by the IO ASI Vijay was handed over to Ct. Arun for registration of the case. Both these witnesses PW2 and PW5 have correctly identified both the accused persons and the recovered case property. The material documents have also been exhibited i.e. statement of complainant as 6 Ex.PW4/A, mobile was taken into possession vide seizure memo Ex.PW2/A, Rs.300/- was taken into possession vide seizure memo Ex.PW2/B and arrest and personal search memos as Ex.PW2/C and Ex.PW2/C1 and Ex.PW2/D and Ex.PW2/D1. Disclosure statements were also recorded vide Ex.PW2/E and Ex.PW2/F.
6.Further, perusal of the testimony of PW2 Ct. Arun Mathur it appears that his cross-examination was got deferred by the legal aid counsel but this witness could not be cross-examined. However, at any point of time either at the time of recording of statement u/s 313 Cr. PC or at the time of argument, ld. Legal aid counsel did not take any objection with regard to the testimony of PW2.
7. Further, perusal of the testimony of PW5 ASI Vijay it has come on record that he carried out the investigations in the present case comprising of arrest of accused persons, seizure of case property and rerecording of the disclosure statements of accused persons. PW5 ASI Vijay has also collected past criminal records and it was found that accused Jaiveer was having one criminal record and other accused Vijay was having two previous criminal records details are Ex.PW5/B and Ex,PW5/C. He has also recorded the statement of Sohan Mehto and put his endorsement on the statement Ex.PW5/A. He has also identified the case property and both the accused in the court. He has got exhibited 7 the mobile phone as Ex.P1 and Rs.300/- as Ex.P2 collectively.
8. PW3 R.K.Singh has got the summoned record exhibited vide ExPW3/A and the call record and cell ID chart was Ex.PW3/C and Ex.PW3/D in respect of mobile number 9871241434 registered in the name of the complainant. This witness has been cross-examined. No contrary evidence has come on record.
9. PW4 Sohan Mehto - complainant is the most material witness in this case being victim. For the sake of brevity and convenience let his testimony be re-produced verbatim which is as under:-
"On 12.05.2013 at about 03:30 PM I was driving my three wheeler TSR bearing no. DL-1LH-2511. I was present on Dhaula Kuan Road. I stopped to go to the toilet near Shankar Road turnabout road and 100 meters away from it. I parked my TSR on the left side of the road and I fill up water to go to the toilet. Three persons approached me and they showed me the knife and snatched away my mobile phone and Rs. 300/-. All the three persons were in the process of running away when accused Vijay present in the court was apprehended by me and at that time two persons managed to ran away. My snatched mobile phone was recovered from accused Vijay. I raised hue and cry and two police man who happened to be near by came to me. I handed over the custody of accused Vijay to them. Thereafter the police men again went inside the jungles and they apprehended the other accused Jaiveer present before this court. Rs. 300/- which were robbed from me was recovered from accused Jaiveer. Police recorded my statement Ex.PW4/A signed by me at point A. The mobile phone was taken into possession vide seizure memo Ex.PW2/A signed by me at point B. Rs. 300/- were also taken into possession vide seizure memo Ex.PW2/B signed by me at point B. The accused persons were arrested vide their arrest and personsl search memo Ex.PW2/C, Ex. PW2/C1, Ex.PW2/D and Ex.PW2/D1 signed by me at point B. The disclosure statement was recorded Ex.PW2/E and 8 Ex.PW/F signed by me at point B. The site plan was prepared by the IO Ex.PW4/B signed by me at point A. Accused Jaiveer had shown me the knife at the time of the commiting theft and the knife was a vegetable cutting knife. IO recorded my statement. I can identify the case property if shown to me.
At this stage, case property is produced in the court. A mobile phone is shown to the witness and the witness identifies the mobile phone to be same which was recovered from accused Vijay. Same is already Ex. P1. Rs. 300/- in the denomination of Rs. 100/- each is also shown to the witness and the witness identified Rs. 300/- belonging to him and recovered from Jaiveer. Same is Ex.P2 [collectively]."
Testimony of this witness remains unchallenged. In his testimony it has clearly come on record that on 12.05.2013 at about 03:30 PM he was driving TSR/ three wheeler TSR bearing no. DL-1LH- 2511 and when he was present on Dhaula Kuan Road he stopped the TSR to go to the toilet near Shankar Road turn about road and 100 meters away from it. He parked the TSR on the left side of the road. He correctly identified that when he was filling water to go to the toilet three persons approached him showed the knife to him and snatched the mobile phone and Rs. 300/-. He further testified that when accused persons were in the process of running away, accused Vijay was apprehended by him. His snatched mobile phone was recovered from accused Vijay. He raised hue and cry and two police men who happened to be near by came there to whom he handed over the custody of accused Vijay to them. Thereafter the police men again went inside the jungles and they apprehended the other accused Jaiveer and Rs. 300/- which were robbed from PW4 was recovered from accused Jaiveer. Police recorded his statement vide 9 Ex.PW4/A. This witness has got exhibited the relevant documents i.e. seizure memo of mobile phone as Ex.PW2/A; Rs. 300/- were also taken into possession vide seizure memo Ex.PW2/B; The accused persons were arrested vide their arrest and personal search memo Ex.PW2/C, Ex. PW2/C1, Ex.PW2/D and Ex.PW2/D1. The disclosure statement was recorded vide Ex.PW2/E and Ex.PW2/F. He stated that all these memos bears his signature at point B. The site plan was prepared by the IO vide Ex.PW4/B. This witness categorically stated that accused Jaiveer had shown him the knife at the time of committing theft and the knife was a vegetable cutting knife. IO recorded his statement. This witness further identified case property i.e. mobile phone , which was recovered from accused Vijay as Ex. P1 and Rs. 300/- in the denomination of Rs. 100/- each is also shown to the witness and the witness identified Rs. 300/- belonging to him and recovered from Jaiveer vide Ex.P2 [collectively].
10. After recording the prosecution evidence, statements of accused persons u/s 313 Cr. PC were recorded. Accused persons pleaded that they are innocent and they have been falsely implicated in this case. They pleaded that they are innocent. They did not lead any defence evidence.
11. Final arguments were heard at length. During the course of arguments ld. counsel from legal aid for the accused persons argued that 10 accused persons are innocent and they have been falsely implicated in this case. He further argued and submitted that there are major contradictions in the depositions of prosecution witnesses. Ld. Counsel again submitted that case property has been planted upon the accused persons. No recovery was effected from them. No independent or public witness has been joined to support the prosecution case. All the contradictions creates a doubt in the prosecution story. On these grounds ld. Counsel for the accused persons submitted that accused persons be acquitted by giving them benefit of doubt.
12. Contrary to it, ld. APP argued and submitted that most material witness PW4 Sohan Mehto has correctly identified the accused persons. All the material documents have been proved on record. All police officials and complainant has correctly identified the case property as well as accused persons. Ld. APP again argued and submitted that accused persons are habitual in committing such type of offences as per testimony of PW5, IO of the case. He has got exhibited the past criminal records of the accused persons. On these grounds ld. APP submitted that accused persons be convicted since they are harmful to society.
13. Before reaching at any conclusion let the relevant sections be re- produced verbatim which are as under:-
"390. Robbery.--In all robbery there is either theft or extortion.11
When theft is robbery.
When theft is robbery.--Theft 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.
When extortion is robbery.
When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person, so put in fear then and there to deliver up the thing extorted.
Explanation.-The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
Illustrations
(a) A holds Z down, and fraudulently takes Z's money and jewels from Z's clothes, without Z's consent. Here A has committed theft, and, in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery.
(b) A meets Z on the high road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery.
(c) A meets Z and Z's child on the high road. A takes the child, and threatens to filing it down a precipice, unless Z delivers his purse. Z, in consequence, delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present.
A has therefore committed robbery on Z.
(d) A obtains property from Z by saying-"Your child is in the hands of my gang, and will be put to death 12 unless you send us ten thousand rupees". This is extortion, and punishable as such: but it is not robbery, unless Z is put in fear of the instant death of his child.
Section 392 IPC "Punishment for robbery - Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to find; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
397 IPC. Robbery, or dacoity, with attempt to cause death or grievous hurt--If, at the time of commuting robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years.
Sec.34 IPC:-
"When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Careful perusal of the section 34 IPC reveals the following important ingredients :
That there must be a criminal act.
The act must have been done by several persons in furtherance of their common intention.
Section 411 IPC "Dishonestly receiving stolen property - Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
14. "Stolen Property" - has been defined u/s 410 IPC which makes it clear that - Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been 13 criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without {India}]. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property. It has also been observed in 'Harish Chandra Vs State of UP - AIR 1976 SC 1430' that:-
"Robbery - The offence of robbery is defined in section 390 IPC. The robbery is punishable under section 392 IPC. When force is used to enable another to carry away the booty, it amounts to robbery."
15. In the case in hand, it has clearly come on record in the depositions of PW4 Sohan Mehto that accused persons Jaiveer and and Vijay Kumar along with one other associate robbed him on 12.05.2013 at about 03:30 PM near Shankar Road turn. He correctly identified that when he was filling water to go to the toilet three persons approached him showed knife to him and snatched the mobile phone and Rs. 300/-. Accused Vijay was apprehended by him at the spot. His snatched mobile phone was recovered from accused Vijay. He raised hue and cry and two police men who happened to be nearby came there to whom he handed over the custody of accused Vijay to them. Thereafter the police men again went inside the jungles and they apprehended the other accused Jaiveer and Rs. 300/- which were robbed from PW4 was recovered from accused Jaiveer. Police recorded his statement vide 14 Ex.PW4/A. This witness categorically stated that accused Jaiveer had shown him the knife at the time of the committing theft. IO recorded his statement. This witness further identified case property i.e. mobile phone , which was recovered from accused Vijay as Ex. P1 and Rs. 300/- in the denomination of Rs. 100/- each is also shown to the witness and the witness identified Rs. 300/- belonging to him and recovered from Jaiveer vide Ex.P2 [collectively]. Testimony of PW4 Sohan Mehto has been duly corroborated by PW5 ASI Vijay Kumar and the exhibits i.e. seizure memo of mobile phone as Ex.PW2/A; Rs. 300/- were also taken into possession vide seizure memo Ex.PW2/B; The accused persons were arrested vide their arrest and personal search memo Ex.PW2/C, Ex. PW2/C1, Ex.PW2/D and Ex.PW2/D1. The disclosure statement was recorded vide Ex.PW2/E and Ex.PW2/F. All these exhibits have been duly endorsed by PW4 Sohan Mehto vide his signature at point 'B' respectively. The site plan was prepared by the IO vide Ex.PW4/B. Moreover, perusal of the testimony of PW5 ASI Vijay it has come on record that there are past criminal records of accused persons and it was found that accused Jaiveer was having one criminal record and other accused Vijay was having two previous criminal records details are Ex.PW5/B and Ex,PW5/C. Since, accused persons in furtherance of their common intention robbed the victim PW4 Sohan Mehto by showing vegetable cutting knife and they were apprehended at the spot with the case property, vide depositions of PW4 Sohan Mehto which is corroborated by 15 PW5 ASI Vijay Kumar and relevant documents as discussed above. Therefore, I do not find any force in the arguments of ld. Legal aid counsel that accused persons have been falsely implicated in this case and they are innocent. It has specifically come on record in the deposition of PW4 Sohan Mehto that knife used in the occurrence was a vegetable cutting knife. Hence, ingredients of section 397 IPC are not met out. Thus, prosecution has failed to prove its case for the offence u/s 397 IPC. Besides, no knife has been recovered in this case as a result of which no charge u/s 25/54/59 Arms Act has been made against the accused persons. Hence, the knife which was used in the occurrence does not attribute the definition of deadly weapon. The ingredients of sections 392/ 34 IPC and 411 IPC are met out in this case. In light of the above discussed facts and circumstances of the case and the observations made in judgment 'Harish Chandra Vs State of UP - AIR 1976 SC 1430', I am of the view that prosecution has successfully proved its case beyond reasonable doubt against the accused persons namely 1.Jaiveer and
2.Vijay Kumar for the offences u/s 392/ 34 IPC and 411 IPC. I absolve the accused persons for the offence u/s 397 IPC.
Accordingly, I convict accused persons namely Jaiveer and Vijay Kumar for the offences u/s 392/ 34 IPC and 411 IPC. Accused persons are absolved for the offence u/s 397 IPC.
ANNOUNCED IN THE OPEN COURT ON THIS 22.05.2014 (RAJ KAPOOR) ASJ-03/PHC/NDD/NEW DELHI 16 FIR no.80/13 Mandir Marg 22.05.2014 Pre: Ld. APP for the State.
Accused are in JC.
File perused.
Accused are convicted for the offence u/s 392/ 34 IPC and 411 IPC vide separate judgment announced in the open court today and placed along side in the file. Accused persons are absolved for the offence u/s 397 IPC.
Now, case be fixed for order on sentence for 03.06.2014.
(RAJ KAPOOR) ASJ-03/PHC/NDD/NEW DELHI 17