Delhi District Court
Criminal Appeal No. 689/2013 Titled As ... vs . State Of on 30 November, 2013
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 106/1
Unique Identification No. 02404R0146702002
State
Versus
1) Hitender Singh @ Chhotu
S/o Sh. Laxman Singh
R/o F440, Ram Park Extension,
Loni, Ghaziabad, U.P.
2) Hari @ Jagdish @ Tittoo
S/o Sh. Mahipal Singh
R/o D11, Mange Ram Park,
Pooth Kalan, Sultanpuri, Delhi.
3) Vinod Singh @ Binnu
S/o late Sh. Kunwar Singh Negi
R/o E1424, Ram Park Extension,
Loni, Ghaziabd, U.P.
4) Harkesh @ Rakesh Rawat
S/o Sh. Dhyan Singh Rawat
R/o B1114, Avantika,
Sector1, Rohini, Delhi.
5) Harish Chander
S/o Sh. Chintamani
R/o A316, South Gamdi,
Gali No.5, P.O.Maujpur,
Shahdara, Delhi.
6) Deepak
S/o Sh. Mool Chand
R/o 2076, Katra Gokul Shah,
Sita Ram Bazaar, Delhi.
SC No. 106/1 1
7) Ajay
S/o Bijender Singh
R/o VillageRoath,
Sonipat, Haryana.
...................... (since discharged)
8) Jasbir @ Jaisu
S/o Sh. Mahender Singh
R/o Village Gummand,
PS Gannaur,
District Sonipat, Haryana
..... (since proclaimed offender)
FIR No. 408/2002
PS - Mangolpuri
U/s. 392/394/397/411/120B/34 IPC
& u/s. 25 & 27/54/59 Arms Act
Date of institution of the case: 06/08/2002
Arguments heard on: 08/11/2013
Date of reservation of order:08/11/2013
Date of Decision: 28/11/2013
JUDGMENT
This case was registered on the statement of one Kamta Prasad u/s. 392/394/397/34 of IPC on 07/06/2002. Prior to that, DD No. 21 was recorded at PS Mangolpuri on 07/06/2002, at 12.10 p.m. day on receipt of information from one Sambhav Khanna that there was firing at Kothi No. H4/5/6, near Suvidha Kunj and that police be sent. Copy of this DD was handed over to SI R. Shriniwasan, who alongwith Ct Rajesh Kumar left for the spot, for taking necessary action.
Another DD No. 22 was also recorded at 12.45 p.m. day to the effect that doctor Sanjay Saxena of Jaipur Golden Hospital had informed that one Sudan Singh, aged about 30 years, who works in Trend Setter Company A23,24, Phase IInd, Industrial Area, Mangolpuri, had been shot near Auto Fuel, behind Ordinance Depot road no. 43 and he had been admitted in Jaipur Golden hospital by one Manish and SC No. 106/1 2 that IO be sent. Copy of this DD was sent to SI R. Shriniwasan through Constable Raja Ram.
During investigation, rough site plan of the place of occurrence was prepared. Finger print report was obtained. MLC of injured Sudhan Singh was collected. Clothes of injured were seized by preparing a memo, which were handed over by the doctor of Jaipur golden hospital. One purse and driving licence of injured Sudhan Singh were also seized by preparing a memo. Maruti Van No. DLIV4473, which was found at the spot, was seized in this case. Broken pieces of glass, which were found scattered at the spot, were lifted and seized by preparing a memo. Blood sample was lifted from the door towards driver side Maruti van No. DLIV4473 and was seized by preparing a memo. Blood stains, which were lying on the road towards driver side of Maruti Van No. DLIV4473, were also lifted and seized in this case. Earth control was lifted and seized in this case. Blood was also found scattered on driver seat, which was lifted and seized in this case. Nine lead pieces, out of which, six were big and three were small, were also lifted from Maruti Van No. DLIV4473 and were seized by preparing a memo. Two empty shells were also lifted from the spot, which were sized in this case. Photographs of the Maruti van were taken and placed on record.
On 12/06/2002, accused Hitender Singh @ Chhotu was arrested in this case u/s. 392/394/397/120B/411/34 of IPC and u/s. 25/27 of Arms Act. His personal search was conducted. He also made disclosure statement. One pistol loaded with two live cartridges was recovered from the possession of accused Hitender @ Chhotu. It was seized by preparing a memo. Its sketch was prepared. He also pointed out the place i.e. his house, where he had kept the looted/robbed money and got recovered four bundles of Rs. 500/ each, 15 bundles of Rs. 100/ each and one bundle of Rs. 50/. Pointing out cum recovery memo was prepared in this respect. Accused Hitender Singh Rawat also pointed out the place of occurrence. Pointing out memo was prepared in this respect.
SC No. 106/1 3
On the same day, accused Harish Chander was also arrested in this case on the pointing out/identification of accused Hitender Singh Rawat u/s. 411 of IPC. Memo was prepared in this respect. His personal search was conducted. He also made disclosure statement. He also produced two receipts, out of which, one was of Allahabad bank vide which he had deposited Rs. One lac in his account and another was of Standard Chartered bank vide which he had deposited Rs. 40,000/ in his account. The same were seized in this case by preparing a memo and were placed on record. On 14/06/2002, accused Harish Chander got recovered Rs. One lac as part of the robbed amount from Allahabad Bank, Parliament Street,which were deposited by him in his account of Allahabad Bank. Seizure cum recovery memo was prepared in this regard. He also got recovered Rs. 40,000/ as part of the robbed amount from Standard Chartered Bank, Parliament Street, which he deposited in his account. Same were seized by preparing a seizure cum recovery memo. Cheque book of Allahabad Bank and Standard Chartered bank were also seized in this case. Statement of account and relevant papers of account of accused Harish Chander in Allahabad Bank were collected and were seized in this case.
Accused Vinod Negi was arrested in this case on the pointing out/identification of accused Hitender Singh Rawat u/s 411 of IPC. Separate memo was also prepared in this regard. His personal search was conducted. He also made disclosure statement. He also pointed out the place, where he had kept the robbed/looted money, and got recovered Rs. 35,000/. Pointing out cum recovery memo was prepared in this respect. He also produced one receipt of Oriental bank of commerce vide which he had deposited Rs. 10,000/ in his account and the same were given to him by accused Hitender @ Chhotu after committing offence. The same was seized. Passbook of the said bank was also seized. On 14/06/2002, accused Vinod Negi also got recovered Rs. 10,000/ as part of the robbed amount from Oriental Bank of Commerce, Loni, Ghaziabad, which were deposited by him in his account of Oriental Bank of commerce. Seizure cum recovery memo was prepared in SC No. 106/1 4 this regard. Statement of account of accused Vinod Negi of Oriental Bank of Commerce was also collected and placed on record.
On 16/06/2002, accused Hari @ Jagdish was arrested in this case u/s. 392/394/397/120B/411/34 of IPC and u/s. 25/27 of Arms Act. His personal search was conducted. He also made disclosure statement. On the same day, accused Hari @ Jagdish @ Tittoo pointed out the place i.e. first floor of his house,where he had kept the robbed amount and got recovered Rs. 2,60,000/. Pointing out cum recovery memo was prepared in this regard. On 18/06/2002, he also got recovered Rs. 10,000/ as part of the robbed amount, which were kept by him on the ground floor of his residential house. The same were seized by preparing a pointing out cum recovery memo.
Accused Harkesh @ Rawat was arrested in this case on 13/08/2002 u/s. 392/394/397/120B/411/34 of IPC and u/s. 25/27 of Arms Act. His personal search was conducted. He also made disclosure statement and pointed out the place of occurrence. He also got recovered Rs. 6500/ as part of the robbed amount from his residential house, which were given to him by accused Hari @ Jagdish after committing the offence. The same were seized by preparing a pointing out cum recovery memo.
On 16/06/2002, accused Hitender Rawat @ Chhotu also got recovered Rs. 25,000/ from his office B.R. Cable, which were seized in this case by preparing a pointing out cum recovery memo.
During investigation, both accused Hitender Rawat @ chhotu and Hari @ Jagdish were put to TIP but they refused to join the TIP proceedings. Sanction u/s. 39 of Arms Act was also obtained against accused Hitender Singh @ Chhotu.
On completion of investigation, chargesheet was filed against Hitender Singh @ Chhotu, Hari @ Jagdish, Vinod Singh @ Binnu, Harkesh @ Rakesh Rawat and Harish Chander u/s. 392/394/397/411/120B/34 of IPC and u/s. 25/27 of Arms Act on 06/08/2002. It was committed to the Court of Session on 24/09/2002 and was SC No. 106/1 5 received on 30/09/2002.
On 09/12/2002, supplementary chargesheet was filed against coaccused Ajay, Deepak and Jasbir @ Jaisu, who have been declared proclaimed offenders and supplementary chargesheet was committed to the Court of then ld. ASJ for 13/12/2002.
On 07/05/2003, charge u/s. 397 of IPC was framed against accused Hitender Singh @ Chhotu to which he pleaded not guilty and claimed trial. Separate charge u/s. 120B of IPC and u/s. 394 read with Section 120B of IPC was also framed against accused Hitender Singh @ Chhotu and Hari @ Jagdish, to which, they pleaded not guilty and claimed trial. Separate charge u/s. 25/54/59 of Arms Act was also framed against accused Hitender Singh @ Chhotu to which he pleaded not guilty and claimed trial. Separate charge u/s. 411 of IPC was framed against each accused Harkesh @ Rakesh Rawat, Vinod Singh @ Binnu, Hitender Singh @ Chhotu, Harish Chander and Hari Singh @ Jagdish to which they pleaded not guilty and claimed trial.
On 28/10/2003, again, supplementary chargesheet was filed against accused Deepak after his arrest as proclaimed offender. It was committed to the Court of Session on 18/12/2003 and was received on 22/12/2003. On 27/01/2004, charge u/s. 120B of IPC and u/s. 394 read with Section 120B of IPC was framed against accused Deepak to which, he pleaded not guilty and claimed trial. To prove its case, prosecution has examined PW1 to PW31 in all. Statements of all the accused persons were recorded u/s. 313 Cr.P.C., wherein they have denied the case of the prosecution and have claimed that they are innocent and have been falsely implicated in this case. In defence, accused Vinod Negi has examined DW1 Matbar Singh Rawat. Accused Hitender Rawat, Vinod Singh Negi, Harish Chander have examined themselves as DW2, DW3 and DW4 respectively u/s. 315 Cr.P.C. Accused Deepak has also examined DW1 Mool Chand and DW2 Vikram Singh in his defence. DW3 Laxman Singh was examined as DW3 on behalf of accused Hitender Rawat. SC No. 106/1 6
I have heard learned APP for the State, learned defence counsel for the accused persons and have gone through the material placed on record with evidence adduced.
Finding qua offences u/s. 120B of IPC and u/s. 394 read with Section 120B of IPC against accused Hitender Singh @ Chhotu and Hari @ Jagdish and offence u/s. 397 of IPC against accused Hitender Singh @ Chhotu and offence u/s. 120B IPC and u/s. 394 read with Section 120B of IPC against accused Deepak :
According to the complaint of Kamta Prasad, on 07/06/2002, he had gone in Maruti Van No. DLIV4473 to obtain cash from UTI Bank, ND Block, Pitam Pura, Delhi. Driver was one Saudan Singh. Accounts Assistant Jitender Singh and cashier cum accountant Vikas Suneja were also with him. One guard Shiv Prasad was also sitting in the van. They obtained the cash of Rs. 17.25 lacs, which was kept in red colour rexin bag and black colour rexin bag of RS. 13.25 lacs and RS. 4.50 lacs respectively.
Kamta Prasad further told to the police that while they reached on road towards Anukampa Banquet, someone made fire from behind and one Maruti car overtook their van. Two boys came down from the car. One boy remained seated on the driver seat of the car. Out of those two boys, one pointed out a pistol on the driver of the van and also made fire on the driver. Another boy picked up both the bags and they fled away. Firstly, they all reached at the factory, from where, Saudan Singh was taken to Jaipur Golden Hospital.
So, in all, there were five persons in the van and two boys robbed the cash kept in two bags and one boy remained seated in the Maruti car, which stopped the way of the Maruti van.
Complainant Kamta Prasad has been examined as PW3. He has deposed the same facts as of his complaint. He has deviated from certain facts as told to the police and as deposed before the Court. In his statement, given to the police, PW3 told that one boy had made fire on the driver of the Maruti van and another boy had SC No. 106/1 7 taken the bags, whereas before the Court, he has deposed that the person, who was holding revolver, took away two bags containing 17.75 lacs. To the police, he told that firstly, they had reached in the factory, from where, Saudan Singh was taken to Jaipur Golden Hospital, whereas before the Court, PW3 has stated that Saudan Singh was sent to the factory in a TSR and they remained at the spot. Sanjeev Aggarwal, PA of owner of factory came at the spot and Saudan Singh was removed to Jaipur Golden Hospital. PW3 has not identified any of the accused in this case as robbers, either, who had made fire on the driver of the van or the other boy, who had picked up both the bags containing currency notes or the third person, who was sitting on the driver seat of the Maruti car.
PW4 Jitender Singh Rana has also deposed the same facts regarding the incident and withdrawal of cash from the bank. According to him, driver and guard were sent to the factory, from where, they were sent to Jaipur Golden Hospital. PW4 has also not been able to identify any of the accused as the same, who had pointed out the revolver and made fire or as the same, who had picked up the currency note bags or as the same person, who was sitting on the driver seat of the Maruti car.
PW4 has been cross examined by learned APP as he has not supported the case of the prosecution regarding identity of accused Hari @ Jagdish as the same, who had snatched the bags, having currency notes and accused Hitender Singh @ Chhotu, who had made fire on the driver of the Maruti van, but even then, he has not supported the case of the prosecution in any manner. In further cross examination conducted by learned APP, PW4 has denied that on 25/06/2002, he had visited Tis Hazari Court and had identified accused Hitender Singh @ Chhotu as the same person, who had made fire on the driver.
PW5 Vikas Suneja has also deposed the same facts as of both these witnesses about the withdrawal and about the incident of robbery, but on the point of identity of accused persons, he has not supported the case of the prosecution, so, he has been cross examined by learned APP, wherein he has denied that accused Hari @ SC No. 106/1 8 Jagdish had snatched the bags containing cash amount and accused Hitender Singh @ Chhotu had made fired on the driver of the Maruti van. He has also denied that one person was sitting on the driver seat of the Maruti car and after taking cash, both the accused fled away from the spot.
PW6 Saudan Singh has also deposed the same facts as of PW3 Kamta Prasad, PW4 Jitender Singh Rana and PW5 Vikas Suneja regarding withdrawal of cash amount and also about the incident of robbery. He has stated that two persons came out from the Maruti van and fired on him, due to which, he sustained injuries on his right hand and back. One person took both the bags and ran away from the spot in Maruti car. He was taken to the factory, from where, he was removed to Jaipur Golden Hospital. Again, this witness has also not been able to identify any of the accused as the same, who had pointed out the revolver and made fire or as the same, who had picked up the currency note bags or as the same person, who was sitting on the driver seat of the Maruti car.
As PW6 Saudan Singh has also not supported the case of the prosecution regarding identity of the accused persons, so, he has been cross examined by learned APP, wherein he has denied that accused Hari @ Jagdish and Hitender are the same, who had come in the Maruti car and accused Hitender made fire and accused Hari @ Jagdish took away both the bags, having currency notes.
PW9 Shiv Pratap has also deposed the same facts regarding withdrawal of cash and robbery of the cash amount from the Maruti van, but has not supported the case of the prosecution regarding identity of the accused persons as the same, who had committed robbery. He has been cross examined by learned APP on this aspect, but again, he has not supported the case of the prosecution regarding the fact that accused Hari @ Jagdish alongwith accused Hitender Singh @ Chhotu had committed robbery of cash amount.
According to PW24 Ms. Raj Rani Mitra, the then learned Metropolitan Magistrate, accused Hari @ Jagdish refused to join the TIP proceedings, so, his SC No. 106/1 9 statement was recorded and the TIP proceedings are Ex. PW24/A. According to PW25 Ms. Sarita Birbal, the then learned Metropolitan Magistrate, accused Hitender Singh @ Chhotu refused to join the TIP proceedings, which are Ex. PW25/C. All the witnesses i.e. PW3 Kamta Prasad, PW4 Jitender Singh Rana, PW5 Vikas Suneja, PW6 Saudan Singh and PW9 Shiv Pratap have not identified accused Hitender Singh @ Chhotu and Hari @ Jagdish as the same, who had committed robbery on the point of revolver.
According to the deposition of PW28 SI R. Sriniwasan, after the arrest, accused Deepak pointed out the place of occurrence. He also got recovered one Maruti car, which was seized vide memo Ex. PW28/R and also made disclosure statement. His personal search was conducted vide memo Ex. PW28/O and his arrest memo was prepared Ex. PW28/M. Learned defence counsel has contended that after the arrest of accused Deepak as PO, he was not put to join TIP in any manner. It is further contended that according to the documents placed on record, the seizure memo of Maruti car has been signed by ASI Jai Singh and Constable Suresh as witnesses. It is further contended that Constable Suresh has not been examined in this case and ASI Jai Singh, who has been examined as PW23, has not deposed about the arrest of accused Deepak and recovery of Maruti car bearing registration No. DL2CJ713 on the pointing of accused Deepak.
It is further contended that this car was not shown to the witnesses during investigation for the purposes of identification and also during their examination before the Court as the same, in which, assailants had come and robbed them. It is further contended that even IO did not make any efforts to trace out as to whom this car was belonging or whether on the day of incident i.e. 07/06/2002, it was in possession of the accused persons i.e. accused Hitender Singh @ Chhotu, Hari @ Jagdish and Deepak, so, neither accused Deepak has been identified by the witnesses SC No. 106/1 10 as the same, who was sitting on the driver seat of the Maruti car at the time of robbery nor the recovered car has been connected and identified as the same, in which, these accused persons had reached at the place of occurrence and committed robbery and thereafter fled away from there in the same Maruti car.
Regarding the incident, DD No. 21 was recorded on 07/06/2002, at about 12.10 p.m. day, according to which, there was firing at Kothi No. H4/5/6, near Suvidha Kunj and that police be sent. This DD was recorded by PW2 Constable Ved Prakash. He has proved the same as Ex. PW2/A. DD No. 22 was recorded at about 12.45 p.m. day about admission of one Saudan Singh, who sustained gun shot injury near Auto Fuel pump, behind Ordinance Depot, road no. 43 and was got admitted by one Mahesh. This DD has been proved by PW2 Constable Ved Prakash as Ex. PW2/B. Nothing came out from his cross examination to disbelieve his testimony.
The DDs were sent to SI R. Sriniwasan, who has been examined as PW28. According to PW28, on 07/06/2002, on receipt of DD No. 21A, he alongwith Constable Rajesh reached at the spot and found one Maruti Van No. DLIV4473 at the spot. He found skid marks and overtaking marks of another vehicle. Back glass of Maruti van was found broken and the front wind screen was found cracked. There was blood on the driver seat and on the road towards driver side. In the meantime, he received DD No. 22 through Constable Raja Ram, hence, he left Constable Rajesh at the spot and he alongwith constable Raja Ram reached at Jaipur Golden Hospital. He collected MLC of injured Saudan Singh, who was unfit for statement. He received one sealed parcel with the seal of JGH from the doctor containing clothes of injured. It was seized vide memo Ex. PW28/A. Another sealed parcel was received from the doctor containing one leather purse of dark brown colour, one driving licence, Rs. 54/ and some documents, which was seized vide memo Ex. PW28/B. PW28 has further deposed that he met with one Kamta Prasad, eye witness to the incident, and recorded his statement Ex. PW3/A and made rukka Ex. SC No. 106/1 11 PW28/C and handed over the same to constable Raja Ram for registration of the FIR. Thereafter, he reached at the spot. Crime team also came there and inspected the spot. Photographs were taken. Meanwhile, Constable Raja Ram also came there and handed over to him copy of FIR and rukka.
PW1 ASI Santosh had recorded FIR of this case. He has proved the copy of FIR as Ex. PW1/A and his endorsement as Ex. PW1/B. He has also produced original FIR register before the court. He also made DD entry No. 19 regarding recording of FIR, copy of which is Ex. PW1/C. PW1 has not been cross examined in any manner.
PW28 SI R. Sriniwasan has further deposed that thereafter, he lifted 15 pieces of broken glasses, which were lying at the spot. These were sealed in a pullanda with the seal of RSS and were seized vide memo Ex. PW15/D. Blood was also lifted from the window towards the driver seat with the help of cotton. The same was sealed in a pullanda with the seal of RSS and was seized vide memo Ex. PW15/A. Blood stained pieces of road were also lifted and sealed in a pullanda with the seal of RSS and were seized vide memo Ex. PW15/B. Earth control was also lifted and sealed in a pullanda with the seal of RSS and was seized vide memo Ex. PW15/C. Blood sample from the driver seat was also lifted by cutting the piece of the driver seat. It was sealed in a pullanda with the seal of RSS and was seized vide memo Ex. PW28/D. 9 lead pieces from inside the car were also lifted. These were sealed in a pullanda with the seal of RSS and were seized vide memo Ex. PW15/F. Two empty cartridges were found at the spot. These were sealed in a pullanda with the seal of RSS and were seized vide memo Ex. PW15/G. Maruti van No. DL IV4473 was seized vide memo Ex. PW15/E. He prepared site plan at the instance of PW5 Vikas Suneja Ex. PW28/E and recorded statements of Vikas Suneja, Jitender Singh, Shiv Parshad and other police officials. Thereafter, he searched for the accused persons, but they could not be found. Case property was deposited in the malkhana.
SC No. 106/1 12
PW7 Rakesh had taken the photographs of the place of occurrence, which are Ex. PW7/1 to 9 and negatives are Ex. PW7/10 to 18.
PW10 Atin Gupta has been examined from UTI Bank. He has stated that according to the record of 06/06/2002, five cheques were presented in their bank by PW3 Kamta Prasad and two were presented by PW5 Vikas Suneja on behalf of Trend Setter International for a total sum of Rs. 17.75 lacs, which are Ex. PW10/1 to 5. He had mentioned the details of currency notes on the back of one cheque and Rs. 13.25 lacs were given to PW3 Kamta Prasad. Photocopies of two cheques, which were presented by Vikas Suneja are Ex.PW10/6 and 7 and a sum of Rs. 4.50 lacs was given to PW5 Vikas Suneja and details of currency notes were mentioned on the back of the cheque.
According to PW21 Constable Raja Ram, he took rukka to PS and got registered the case. Thereafter, he handed over the copy of FIR and rukka to PW28 SI R. Sriniwasan. He had also handed over DD No. 22 to the IO near ordinance depot.
MLC of Saudan Singh has been proved by PW22 Shashi Bhushan. He has identified the writing and signatures of Dr. Sanjay Saxena. MLC is Ex. PW22/A. In view of above as all the witnesses examined by the prosecution have not been able to identify the accused persons as the same, who had committed robbery in a car, which was later on recovered in this case, stated to be used by the accused persons, while committing robbery, which has neither been shown nor has been identified by the witnesses, so, offences u/s. 397 and 394 read with Section 120B of IPC have not been proved beyond reasonable doubts. No evidence has been brought on record that all the three accused Hitender Singh @ Chhotu, Hari @ Jagdish and Deepak entered into a criminal conspiracy to commit robbery on the point of pistol. Accordingly, all these three accused persons are acquitted for offences u/s. 120B of IPC, u/s. 397 read with Section 120B of IPC and u/s. 394 read with Section 120B of IPC.
SC No. 106/1 13 Finding qua offence u/s. 411 of IPC against accused Hitender Singh @ Chhotu and offence u/s. 25 of Arms Act against accused Hitender Singh @ Chhotu:
According to PW28 SI R. Sriniwasan, on 12/06/2002, he alongwith Inspector K.G. Tyagi, SI Mukesh, ASI Jai Singh, ASI Shivraj, HC Narender, HC Shiv Kumar and other police officials was busy in search of the accused persons and when they were present near Dost Police Chowki, at that time, he received secret information that one Hitender Singh Rawat @ Chhotu, who alongwith his associates had committed robbery, was residing at F440, Ram Park Extension, Loni, U.P. and on raid, he could be apprehended. He conveyed the information to the SHO and after verifying, the SHO directed him to take necessary action. Thereafter, he alongwith all the abovesaid members of the team and secret informer reached at Loni, U.P., where three different teams were constituted and informer was sent to verify the facts. Team of PW28 was consisting of himself, Inspector K.G. Tyagi, SI Mukesh, ASI Jai Singh, ASI Shivraj and constable Narender Dabas. The informer, after verifying the information, informed that accused Hitender Singh @ Chhotu was standing outside his house. Thereafter, on the pointing of secret informer, they apprehended accused Hitender Singh @ Chhotu. On his search, one pistol, made in China, was recovered from the left dub of his wearing pant and on checking, two live cartridges were recovered from the magazine. He prepared sketch of the pistol and live cartridges Ex. PW23/A. He sealed the same in a pullanda with the seal of RSS and seized the same vide memo Ex. PW23/B. FSL form was filled up. Thereafter, accused Hitender Singh @ Chhotu was interrogated and was arrested vide memo Ex. PW23/D. His personal search was conducted vide memo Ex. PW23/E. He also made disclosure statement Ex. PW23/C. PW28 has identified the pistol as the same, which were recovered from accused Hitender Singh @ Chhotu as Ex. PW23/4 and cartridges as Ex.PW23/5 and Ex. PW23/6. Both the cartridges were live, when these were recovered from the possession of accused Hitender Singh @ Chhotu.
PW23 ASI Jai Singh and PW27 HC Narender have deposed the same SC No. 106/1 14 facts being members of the raiding party regarding arrest of accused Hitender Singh @ Chhotu and recovery of pistol alongwith two live cartridges from his possession.
Learned defence counsel has contended that according to PW23 ASI Jai Singh, the raiding party had gone to Ram Park Colony Extension, Ghaziabad, and they had three vehicles and after the apprehension of accused Hitender Singh @ Chhotu, Chinese pistol was recovered from his left side dub of pant and on checking, two live cartridges were found in it, whereas according to PW27 HC Narender, the raiding party alongwith secret informer reached at Ram Park Extension, Ghaziabad, in a gypsy and in one private vehicle. It is further contended that PW27 HC Narender has not been able to disclose as to whom the private vehicle was belonging and who was driving the same. It is further contended that local police was not contacted nor informed and no one from local police was taken, while raiding the house of accused Hitender Singh @ Chhotu.
It is further contended that parents of accused Hitender Singh @ Chhotu were present at the house at that time, according to cross of PW27 HC Narender, but they were not made witness to the recovery of pistol and live cartridges from the possession of accused Hitender Singh @ Chhotu. It is further contended that according to cross of PW28 SI R. Sriniwasan, they had left PS Mangol Puri for investigation in three vehicles, out of which, two were private cars and one was government gypsy. The private cars were arranged by the SHO. So, this witness has also not been able to disclose about the private cars and it is doubtful whether police party had gone to arrest accused Hitender Singh @ Chhotu in one gypsy and two private cars or in one gypsy and one private car as witnesses have contradicted each other in this respect, so, they cannot be relied upon.
It is further contended that according to cross of PW27 HC Narender, secret informer was in private vehicle, whereas according to PW28 SI R. Sriniwasan, secret informer accompanied them in government gypsy. So, it raises doubt on the depositions of the witnesses as to whether any such raiding party was organized or SC No. 106/1 15 not. It is further contended that according to cross of PW28 SI R. Sriniwasan, only father of accused Hitender Singh @ Chhotu was present in the house, whereas according to PW27 HC Narender, parents of accused Hitender Singh @ Chhotu were present, so, both have contradicted each other in this respect.
It is further contended that according to cross of PW27 HC Narender, house of accused Hitender Singh @ Chhotu was two side open, whereas according to cross of PW28 SI R. Sriniwasan, house of accused Hitender Singh @ Chhotu was three side open. It is further contended that there were shops surrounding the house of accused Hitender Singh @ Chhotu, but no one was called to join the proceedings. It is further contended that according to cross of PW27 HC Narender, seal after use regarding sealing the pullanda of pistol and cartridges, was handed over to him and he returned the same to the IO after depositing the case property in the malkhana, whereas according to cross of PW28 SI R. Sriniwasan, seal after use was handed over to PW27 HC Narender Dabas, who returned the same on the next day. It is further contended that according to cross of PW27 HC Narender, sea after use was handed over to constable Suresh Kumar, so, it is not known whether the seal after use was handed over to Constable Suresh Kumar or to PW27 HC Narender, hence, witnesses cannot be relied upon regarding arrest of accused Hitender Singh @ Chhotu and recovery of pistol and two live cartridges from his possession.
PW31 Sh. Puneet Puri, Senior Scientific Officer, Ballistics, FSL Rohini, Delhi, had examined the pistol and both the cartridges. According to his opinion, the pistol mark F1 was firearm and cartridges mark A1 and A2 were found ammunition as defined under Arms Act. His report in this respect is Ex. PW31/A. This witness has not been cross examined by learned defence counsel in any manner.
According to PW13 Sh. R.S. Yadav, Additional DCP, West District, in the year 2002, he was working as Additional DCP, NorthWest district and file of this case was put up before him alongwith the relevant papers. After going through the file and after satisfying himself, he accorded sanction u/s. 39 of Arms Act to SC No. 106/1 16 prosecute accused Hitender Singh @ Chhotu. The sanction is Ex. PW13/A and bears his signatures.
Learned defence counsel has further contended that sanction cannot be relied upon as weapon of offence was not produced before PW13 and was not seen by him at the time of according sanction, so, merely on the papers, it could not be to his satisfaction that any such weapon was physically recovered from the possession of accused Hitender Singh @ Chhotu. It is further contended that even according to cross of PW13 Sh. R. S. Yadav, IO had not appeared in person, rather file was produced through S.O., so, it seems that PW13 was not briefed well in any manner and he accorded sanction in routine manner without going through the file and satisfying himself. Learned defence counsel has further contended that no plausible reason has been given by PW13 as to why weapon of offence has not been produced before him, while obtaining sanction u/s. 39 of Arms Act.
According to PW28 SI R. Sriniwasan, after the recovery of pistol and cartridges from the possession of accused Hitender Singh @ Chhotu, in furtherance of his disclosure statement, accused Hitender Singh @ Chhotu got recovered Rs. 3.55 lacs, kept in a polythene from a diwan of his house. There were four bundles of Rs. 500/ denomination, 15 bundles of Rs. 100/ denomination and one bundle was of Rs. 50/ denomination and some of the bundles were having slip of UTI Bank, which were sealed in a pullanda with the seal of RSS and were seized vide memo Ex.
PW23/F. PW23 ASI Jai Singh has also deposed the same facts regarding recovery of Rs. 3.55 lacs on the pointing of accused Hitender Singh @ Chhotu from his possession and PW27 HC Narender has also deposed the same facts regarding the recovery of currency notes of Rs. 3.55 lacs from the possession of accused Hitender Singh @ Chhotu.
Learned defence counsel has contended that numbers of the recovered currency notes have not been mentioned in the seizure memo, so, identity of these SC No. 106/1 17 currency notes is not proved beyond reasonable doubts as the same,which were robbed from the complainant on 07/06/2002.
According to PW10, the cash was withdrawn by PW3 Kamta Prasad and PW5 Vikas Suneja. The photocopies of the cheques are Ex. PW10/1 to 5 and Ex. PW10/6 to 7. Cheque of Rs. 2.25 lacs was issued by one Prem Lata, proprietor of Dinesh Enterprises and cheque of Rs. 4 lacs was issued for Trendsetters, signed by one Sudhan Singh, authorized signatory. Cheque of Rs. 3 lacs was also issued for Trendsetters International by Sudhan Singh as authorized signatory. Cheque of Rs. 25,000/ was issued for Computer Embroidery Works , signed by one person being proprietor. Cheque of Rs. 4 lacs was issued for Knockout, signed by Saudan Singh as authorized signatory. Cheque of Rs. 2,25,000/was issued for Rahul Enterprises, signed by one person being proprietor and cheque of Rs. 2Lacs was issued For Chayan Enterprises, signed by one person being proprietor. The payments of all these cheques were received by PW3 Kamta Prasad and PW5 Vikas Suneja.
PW23 ASI Jai Singh has identified the currency notes recovered from the possession of accused Hitender Singh @ Chhotu i.e. 4 packets of Rs. 500/ denomination, 15 packets of Rs. 100/ and one packet of Rs. 50/ denomination. At that time, 15 packets of Rs. 100/ were found bearing the slip of UTI Bank Ltd., Plot No. 6, LSC, DP Block Pitam Pura, Delhi34 dated 06/06/2002. One packet of Rs. 50/ denomination was bearing the slip of UTI Bank Ltd., Plot No. 6, LSC, DP Block Pitam Pura, Delhi34 dated 05/06/2002.
Learned defence counsel has further contended that according to the deposition of PW23 ASI Jai Singh, currency notes of Rs. 3.55 lacs were found in a polythene bag, which allegedly were recovered from accused Hitender Singh @ Chhotu and at the time of identifying the currency notes, polythene was exhibited as Ex. PW23/10. It was of white colour, having Khurana Fashion printed in red ink on one side and Khurana Fashion with blue ink on other side bearing address B484, Main Market Avantika, Sector1, Rohini, Delhi110085 and these certain words, SC No. 106/1 18 which were printed on the polythene, are not found mentioned in the seizure memo Ex. PW23/F, so, it seems that case property has been tampered with, hence, witnesses cannot be relied upon regarding the recovery of Rs. 3.55 lacs from the possession of accused Hitender Singh @ Chhotu.
According to PW28 SI R. Sriniwasan, on 16/06/2002, accused Hitender led the police party to his office at A23, Sector2, Avantika, Rohini, and from his office, from a drawer, he took out a polythene containing Rs. 25,000/, out of which, two packets were of Rs. 100/ denomination and one packet was in the denomination of Rs. 50/ which were sealed with the seal of RSS and were seized vide memo Ex. PW16/A. Seizure memo Ex. PW16/A is witnessed by Constable Satya Prakash, who has been examined as PW16. He has stated that same facts as of PW28 SI R. Sriniwasan regarding recovery of Rs. 25,000/ on the pointing of accused Hitender Singh @ Chhotu from A823, Sector2, Rohini, Delhi, office of B.R. Cables, but he had mentioned the date of this recovery as 07/06/2002, whereas according to PW28 SI R. Sriniwasan, this recovery of Rs. 25,000/ was effected on 16/06/2002. PW16 has also identified the currency notes before the Court, but the date has not been clarified by him in any manner nor he was declared hostile in this respect and was cross examined by learned APP.
According to cross of PW16 Constable Satya Prakash and PW28 SI R. Sriniwasan, when they reached at the office of B.R. Cables, one employee of accused was found present and on seeing the police, he left.
Learned defence counsel has further contended that prosecution has not been able to bring of record any evidence that B.R. Cables was belonging to accused Hitender Singh @ Chhotu and the person, who was present there, was employee of accused Hitender Singh @Chhotu. It is further contended that according to seizure memo Ex. PW16/A, name of some other constable was written as witness, which has been deleted by overwriting the name of Constable Satya Prakash as a witness to the recovery. It is further contended that there is no public witness to the recovery. It is SC No. 106/1 19 further contended that according to cross of PW28 SI R. Sriniwasan, office was double storey and was rented one, but no investigation has been done in this respect as to who was the landlord and whether it was given on rent to B.R. Cables by the landlord, which was under the ownership of accused Hitender Singh @ Chhotu, as alleged. It is further contended that no document has been seized in this respect that such cable office was being run by accused Hitender Singh @ Chhotu.
In defence, DW3 Laxman Singh has been examined on behalf of accused Hitender Singh Rawat @ Chhotu. He is father of accused Hitender Singh Rawat @ Chhotu. He has stated that on 12/06/2002, he was present at his house throughout the day. On that day, no police official of PS Mangolpuri visited his house. His son Hitender was not present at his house as he was already in police custody of PS Keshav Puram. In the intervening night of 09/10.06.2002, he received telephonic information from the servant of his son Hitender from B.R. Cable Network, A Block, Avantika Sector1, Rohini, as his son was partner in the said cable network and at that time, Praveen Kohli had informed that 78 police officials of PS Keshav Puram had come at the office of B.R. Cable network in Versa van and had forcibly taken accused Hitender with them to PS Keshav Puram. He also made a call on 100 number to this effect. On 12/06/2002, police did not bring his son accused Hitender to his house in custody nor anything was ever recovered from his house.
Accused Hitender Rawat has also examined himself u/s. 315 Cr.P.C. as DW2. He has stated that on 09/06/02, he was present at BR cable network, Avantika Sector1, Rohini. At about 5 pm, some police officials from PS Keshav Puram came to his office and he was illegally lifted from his office in a Versa car. When they reached at Avantika Enclave, 100 number call was made by his employee Praveen Kr Kohli, but he was taken to PS Keshav Puram. A wireless message was received from PS Mangolpuri and he was taken to PS Mangolpuri and was kept there for 23 days and during that period, he was forced to sign 1520 blank papers. Nothing was recovered from his possession or on his pointing.
SC No. 106/1 20
To corroborate the deposition, said Praveen Kumar Kohli has not been examined as defence witness nor 100 number call detail has been called in defence to prove that such call was made. The currency notes, which were recovered from the possession of accused Hitender Singh Rawat @ Chottu, were having bank slip of UTI Bank, which does not seem to be possible, to be planted by the police on him. No complaint has been given at any time to the senior police officers or to the Court that he was lifted from his office and has been falsely implicated in this case. The witnesses have also not been cross examined on this aspect in any manner nor it is suggested to the witnesses, rather the deposition of DW2 accused Hitender Rawat itself contradict the contentions of learned defence counsel about the ownership of B.R. Cable office, so, the contentions of learned defence counsel that ownership of B.R. Cable office and tenancy have not been investigated and proved are not tenable in any manner because DW2 has himself admitted that B.R. Cable Network was belonging to him.
In view of above, the contentions of learned defence counsel are not tenable in any manner. The witnesses have corroborated each other regarding the arrest of the accused and also about the recovery of pistol from the possession of accused Hitender Singh @ Chhotu alongwith two live cartridges and recovery of Rs. 3.55 lacs, out of which, some packets were having slip of UTI Bank and accused Hitender Singh @ Chhotu also got recovered Rs. 25,000/ from his office. Office of B.R. Cables was belonging to accused Hitender Singh @ Chhotu. Accused has not claimed the ownership of recovered currency notes from his possession. One defence witness has been examined regarding the arrest of accused from some other place instead of the place, as deposed by the witnesses, who is not inspiring any confidence, hence, cannot be relied upon. There is no explanation about the UTI Bank slips on the currency notes recovered at the instance of accused, from the side of accused. Merely that certain details of currency notes have not been mentioned in the seizure memo and witnesses have contradicted on certain aspects, which are not SC No. 106/1 21 material nor these contentions goes to the root to the extent that no such currency notes were recovered from the possession of accused Hitender Singh @ Chhotu. It does not seem to be probable that such huge amount of currency notes could have been planted upon the accused. Accordingly, prosecution has been able to prove offences u/s. 25 of Arms Act and u/s. 411 of IPC against accused Hitender Singh @ Chhotu beyond reasonable doubts, for which, he is held guilty and convicted for the same.
Finding qua offence u/s. 411 of IPC against accused Harish Chander:
According to PW28 SI R. Sriniwasan, after recovery of Rs. 3.55 lacs on the pointing of accused Hitender Singh @ Chhotu from his possession, accused Hitender Singh @ Chhotu led the police party to the shop of accused Harish Chander and on his pointing out vide memo Ex. PW28/F, accused Harish Chander was arrested vide memo Ex. PW23/G and his personal search was conducted vide memo Ex. PW23/H. His disclosure statement was recorded Ex. PW23/I, wherein he disclosed that he had deposited Rs. One lac in Allahabad Bank, Connaught place and Rs. 40,000/ in Standard Chartered Bank, Connaught place. He had produced the receipts of deposits, which were seized vide memo Ex. PW23/J. The receipts are Ex. PW23/I and Ex. PW23/2. Accused Harish Chander had also produced the cheque books of Allahabad Bank and Standar Chartered Bank, Connaught Place.
PW23 ASI Jai Singh and PW27 HC Narender have deposed the same facts as of PW28 SI R. Sriniwasan regarding seizure of receipt of Allahabad Bank and Standard Chartered Bank.
According to PW14 Parvesh Kumar Jaiswal, Manager, Allahabad Bank, Connaught Place Branch, on 14/06/2002, he was present in his office. Police officials of PS Mangol Puri contacted him and gave application regarding handing over of relevant documents of account No. 125816 of accused Harish Chander. He handed over the account opening form, which was opened by accused Harish Chander. He has also produced the original account opening form of accused Harish SC No. 106/1 22 Chander, photocopy of which is Ex. PW14/A. He also handed over the statement of account and pay in slip to the police officials, photocopies of which are Ex. PW14/B and Ex. PW14/C. PW14 has further deposed that as per pay in slip, Rs. One lac were deposited by accused Harish Chander on 10/06/2002 in cash and statement of account is Ex. PW14/D. PW14 has also proved the cheque book of cheque number 563221 to 563240 being issued from his bank to the person, who was holding account no. 125816 and has proved the same as Ex. PW14/E. According to PW28 SI R. Sriniwasan, on 14/06/2002, accused Harish Chander and Vinod, who were on police custody, led the police party to Allahabad Bank, Parliament Street for the recovery of Rs. One lac, which were deposited by accused Harish Chander in his account. In the presence of Bank Manager, accused Harish Chander had withdrawn Rs. One lac from his account through cheque, which were in the denomination of Rs. 1000/ each. The said amount was sealed in a pullanda with the seal of RSS and was seized vide memo Ex. PW18/A. Thereafter, PW28 served notice u/s. 91 of Cr.P.C. to Bank Manager and seized certain documents vide memo Ex. PW11/E. Thereafter, they reached at Standard Chartered Bank, Parliament Street, where accused Harish Chander had withdrawn Rs. 40,000/ through cheque from his account in presence of Bank Manager. These currency notes were also sealed in a pullanda with the seal of RSS and were seized vide memo Ex. PW18/B. PW17 Rajiv Khanna, Manager Sales and Services, Standard Chartered Bank, has produced the summoned record with regard to accused Harish Chander, who was having Saving Bank Account bearing No. 52210074392. PW17 has proved the account opening form of accused Harish Chander as Ex. PW17/A. Statements of account from February 2001 to December 2004 are Ex. PW17/B1 to Ex. PW17/B43.
Learned defence counsel has contended that to explain about the amount SC No. 106/1 23 of Rs. One lac and Rs. 40,000/, accused Harish Chander has been examined as defence witness on oath u/s. 315 Cr.P.C. DW4 has stated that he was working in Standard Chartered Bank, Connaught Place, New Delhi as a peon. He was appointed on 09/04/90 and his date of VRS was 30/04/99. At the time of retirement, he received Rs. 6,21,805/, copy of same is mark X. He purchased a shop at Ram Park Ext, Loni Ghaziabad and opened a shop of cosmetics and garments. Three workers were employed by him. The per day income of that shop was 2022 thousand. He also use to invest the money in sale and purchase of plots. He also made two FDRs dated 17/04/2002 of Rs. 47,000/ and dated 25/04/2002 of Rs. 2,64,307/ with Standard Chartered Bank. He is also receiving pension of Rs. 491/ pm. Statement of bank account showing the balance of Rs. 13,862 as on 03.06.2002 is mark X3. He has another account in Allahabad Bank at 17, Parliament Street, New Delhi and he also used to deposit money in this account from the income of his shop and profit of property dealing.
DW4 has further deposed that during the PC Remand, police obtained his signatures forcibly on some cheques and had withdrawn Rs. 40,000/ from Standard Chartered Bank and Rs. 1 lac from Allahabad bank. He was illegally lifted from his shop on 10/06/2002 at about 5.30 pm by 34 police officials, who came in civil dress. Nothing was recovered from his possession or at his instance. In PS MangolPuri, his signatures were obtained forcibly on some blank papers and he was remanded to JC on 14/06/02. He is innocent and has been falsely implicated in this case.
DW4 has also produced the original FDRs, which were earlier marked as X1 and X2, which were exhibited as Ex.DW4/A and were Ex.DW4/B. He has also produced the statements of account Mark X, which was exhibited as DW4/C and statement of accounts of month May and June 2002 mark X3, which was exhibited as Ex.DW4/D. In the cross examination, DW4 has denied that on 12/06/2002, he was apprehended by the police at the instance of accused Hitender. He has admitted that SC No. 106/1 24 he was apprehended from his shop but not at the instance of accused Hitender. He has further denied that he had made any disclosure statement and that accused Hitender @ Chhotu had handed over to him two bundles of Rs. 500/denomination and four bundles of Rs. 100/ denomination on 08/06/02 and at that time, accused Hitender told him that he had committed robbery of huge amount of cash in Delhi and requested him to keep the said amount with him. DW4 has also denied that he had handed over the receipts of deposit of Rs. 1 lac and Rs. 40,000/ of both the banks to police, rather his brother had brought the said receipts to PS Mangolpuri, which he had further handed over to the police. DW4 has further denied that he had voluntarily withdrawn Rs. One lac and Rs. 40,000/ through Cheque, rather he was forced by the police to withdraw the said amount.
The robbery was committed on 07/06/2002. Accused Harish Chander deposited Rs. One lac in cash in Allahabad Bank on10/06/2002 and deposited Rs. 40,000/ in Standard Chartered Bank. Both these facts have not been disputed in any manner. While deposing as DW4, accused Harish Chander has not claimed that both the amounts of Rs. One lac and Rs. 40,000/ were belonging to him and no account has been given to the extent that he had earned the same in any manner from the business. Account of Allahabd Bank was opened in the year 1997 and according to the statement of account of Allahabad Bank, from 01/01/95 to 30/09/2002, entries have been started from 01/09/97. Accused Harish Chander never deposited cash amount of more than Rs. 10,000/ at any time and balance also remains the same under Rs. 10,000/ or 11,000/ or Rs. 12,000/. Only once, cheque of Rs. 50,000/ was deposited and thereafter, this cash of Rs. One lac was deposited on 10/06/2002, so, accused has failed to explain the source of amount of Rs. One lac in cash, which he had deposited in his account on 10/06/2002. Similarly, Standard Chartered Bank account is having the entries of pension i.e. Rs. 491/ and in 2001, once accused has deposited Rs. 50,000/, so again, accused has failed to explain the source of Rs. 40,000/ deposited in cash on 10/06/2002 in the account of Standard Chartered Bank SC No. 106/1 25 and even thereafter, there is no entry in the Standard Chartered Bank account later on except the pension of Rs. 491/ till 31/12/2004.
In view of above, accused Harish Chander has also not claimed that the money was belonging to him, which he had deposited in Allahabad Bank i.e. Rs. One lac and Rs. 40,000/ in Standard Chartered Bank. Accused Harish Chander has not been able to substantiate the source of money, which he had deposited in both the bank accounts. He has also not been able to produce any regular source of income, out of which, said money could have been saved, as deposited in both the bank accounts. According to the case of the prosecution, money was given to accused Harish Chander by accused Hitender Rawat, so, accused Harish Chander received the stolen property, hence, prosecution has also been able to prove offence u/s. 411 of IPC against accused Harish Chander beyond reasonable doubts, for which, he is held guilty and convicted for the same.
Finding qua offence u/s. 411 of IPC against accused Vinod Negi:
According to PW28 SI R. Sriniwasan, after recovery of documents of Allahabad Bank and Standard Chartered Bank, accused Hitender led the police party to E1424, Ram Park, where at his instance, accused Vinod Negi was apprehended vide pointing out memo Ex. PW28/G. He was arrested vide memo Ex. PW23/K and his personal search was conducted vide memo Ex. PW23/L. He also made disclosure statement Ex. PW23/M. PW28 has further deposed that accused Vinod Negi disclosed that he had deposited Rs. 10,000/ in Oriental Bank of Commerce, Loni, Ghaziabad, and remaining Rs. 30,000/ were lying at his house, which he could get recovered from his house. Thereafter, he led the police party inside the room of his house and pointed out towards a Dewan, from where, he took out one polythene containing Rs 35,000/ and one receipt of Oriental Bank of Commerce. There were three bundles of Rs. 100/ denomination and one bundle of Rs. 50/ denomination. The money was kept in the same polythene and its pullanda was prepared, which was sealed with the SC No. 106/1 26 seal of RSS and was seized vide memo Ex. PW23/N. The receipt and passbook of Oriental Bank of Commerce were also seized vide memo Ex. PW23/M. The passbook is Ex. PW23/3 and receipt is Ex. PW20/D. Thereafter, they came back to Delhi and accused Hitender pointed out the place of occurrence vide pointing out memo Ex. PW28/H. Case property was deposited in the malkhana. Accused Hitender, Harish Chander and Vinod were produced before the Court and their PC remand was obtained. Thereafter, their medical examination was got conducted and they were locked up.
PW23 ASI Jai Singh has also deposed the same facts regarding recovery of receipt of Rs. 10,000/ of Oriental Bank of Commerce and Rs. 35,000/ from the possession of accused Vinod Negi. Nothing came out from the cross examination of PW23 to disbelieve his testimony. PW23 has also identified the currency notes of Rs. 35,000/ recovered from the possession of accused Vinod Negi. Three packets were having slips of UTI bank bearing some particulars with date 06/06/2002.
PW28 SI R. Sriniwasan has also identified these currency notes of Rs. 35,000/ before the Court as the same, which were recovered from the possession of accused Vinod Negi. Merely that IO has not made any initial on the packets of the currency notes or has not mentioned the serial number on the recovered currency notes in the seizure memo does not mean that currency notes were not recovered from the possession of accused Vinod Negi. The three packets of currency notes of Rs. 100/ denomination were having slips of UTI Bank dated 06/06/2002 and if the same has not been mentioned in the seizure memo, then it does not mean that the same has been planted against accused Vinod Negi by the police officials. Police officials were not having any reason to plant said currency notes upon accused Vinod Negi. Nothing has been suggested to the complainant and witnesses or to PW10 Atin Gupta, examined from UTI Bank, that later on, the bank slips were taken and currency note packets were fabricated and were planted upon the accused persons. Even otherwise, such bank slips could not be obtained by the police from the bank SC No. 106/1 27 officials, having date of 06/06/2002, whereas recovery was effected on 12/06/2002.
PW27 HC Narender has also deposed the same facts regarding recovery of slip of deposit of Rs. 10,000/ of Oriental Bank of Commerce and currency notes of Rs. 35,000/ from the possession of accused Vinod Negi. He has also identified these currency notes before the Court as the same, where were recovered from the possession of accused Vinod Negi.
PW20 Beni Ram Maurya, Senior Manager, Oriental Bank of Commerece, Loni, DistrictGhaziabad, has produced the summoned record. According to record, account No. 10157 is in the name of accused Vinod Singh Negi. Photocopy of account opening form is Ex. PW20/A. PW20 has also produced the ledger sheet, copy of which is Ex. PW20/B. As per record, on 08/06/2002, a sum of Rs. 10,000/ was deposited in account No. 10157 and the passbook of the said account is Ex. PW20/C. The pay in slip dated 06/06/2002 bears the signatures of cashier of bank and is Ex. PW20/D. Form No. 16 and photocopy of ration card were submitted by accused Vinod Negi at the time of opening of account, which are Ex. PW20/E and Ex. PW20/F. In the cross examination, PW20 has stated that he cannot say whether any slip was affixed of any type on the said currency notes, which were deposited in the bank on 08/06/2002. In my view, there is no procedure to mention as to whether the cash,which is being deposited in the bank account, is having bank slip or any other slip on the same or not, so, it could not be expected from the witness to tell ab out the same in 2005, whereas transaction had taken place in the year 2002 and at that time, he was not the concerned cashier, so, this cross examination is not helpful to the accused Vinod Negi in any manner.
In defence, accused Vinod Negi has examined DW1 Matbar Singh Rawat. He is neighbour of accused Vinod Negi. He is running a property dealer office in his house. On 12/06/2002, at about 6/7.00 p.m., he was sitting outside his office alongwith accused Vinod Singh Negi and other persons. Some persons came SC No. 106/1 28 there in civil dress, in a car, and asked about accused Vinod singh Negi and took him in the said car. When they protested, it was told that after inquiry, accused Vinod Negi will be released. Later on, he came to know that accused Vinod Negi was not released. Nothing was recovered from the accused or at his instance on that day.
In the cross examination, DW1 has stated that he does not know if after arrest of accused Vinod Negi, information regarding his arrest was given to his friend Virender, son of Bhagat Singh, R/o Ram Park Extension, Loni, Ghaziabad. According to his further cross examination, after about two months, he came to know that accused Vinod Negi was arrested in this case, but even then he did not make any complaint about the false implication of accused Vinod Negi.
Accused Vinod Negi has himself examined as defence witness u/s. 315 Cr.P.C. He has stated that on 10/06/02, in the evening time, between 67 pm, while he was coming back from his office and was standing near a shop, 12 boys came near to him and told that they wanted to talk to him and asked about his address. His house was situated nearby from that place. He came to his house with those persons as they wanted to talk to him. They started searching his house. He had asked them as to why they were taking search of his house, at which, they slapped him 23 times and took him to PS Mangolpuri.
During examination, DW3 has stated that on 12/06/2002, in the PS, his signatures were obtained on some papers and police made inquiry about the money. He told them that he was having some money about Rs.1012 thousand in his account. His father had expired one month before. On the next day, he was taken to Oriental Bank of Commerce, Loni, where he was having an account. After making inquiries from Manager, the police officials got signed one withdrawal slip from him and Rs.10,000/ were withdrawn from his account. Thereafter, again, he was brought back to PS Mangolpuri and police made inquiries about the remaining money. He told that some money was given by his father to purchase a motorcycle. His father had given him Rs. 25,000/, out of which, Rs. 15,000/ were spent on the SC No. 106/1 29 last rites of his father. Nothing was recovered from his possession or at his instance from his house.
Both testimonies of DW1 Matbar Singh Rawat and DW3 accused Vinod Negi are contradictory to each other. According to DW1, on 12/06/2002, about 67 p.m., accused Vinod Negi was sitting with him alongwith 23 other persons, whereas according to DW3, on 12/06/2002, at about 67.00 p.m., while he was coming back, two boys came and took search of his house and thereafter, he was taken to PS Mangol Puri. DW1 has not stated so. Even if we believe the facts as deposed by DW3 accused Vinod Negi himself, then at about 67 p.m, he was coming back from his office, whereas according to DW1 Matbar Singh Rawat, at about 67 p.m., accused Vinod Negi was sitting with him outside his office with some other persons, so, both are not inspiring any confidence and cannot be relied upon in any manner.
In the cross examination, DW3 accused Vinod Negi has admitted that on 14/06/2002, he had accompanied the police to Oriental Bank of Commerce, Loni, Ghaziabad, but has denied that he had voluntarily withdrawn Rs. 10,000/ from his bank account. The passbook is having only 45 entries ranging between Rs. 2000/ to Rs. 4000/ and on 08/06/2002, accused Vinod Negi had deposited Rs. 10,000/ in his account of Oriental Bank of Commerce. Accused Vinod Negi has not disclosed the source of Rs. 10,000/nor he has deposed before the Court as to in which office, he was working at that time and what he was earning and how suddenly he deposited Rs. 10,000/ in his bank account, whereas till that time, he had deposited in his account Rs. 2000/ to Rs. 4000/ only on 23 occasions. In the cross examination, while deposing as DW3, he has stated that he was working in a hotel, but no such detail has been given about the hotel and in his examination, accused Vinod Negi has not claimed that he had deposited Rs. 10,000/ from the amount, which his father had given him, although he has deposed before the Court that some money was given by his father for purchasing a motorcycle i.e. Rs. 25,000/, out of which, Rs. 15,000/ were spent on the last rites of his father and he has not deposed clearly as to whether SC No. 106/1 30 the remaining money, which was lying with him i.e. Rs. 10,000/ was deposited in the bank. However, beside this, there is no explanation about possession of currency notes of Rs.35,000/ i.e. three packets of Rs. 100/ denomination and one packet of Rs. 50/ denomination, having UTI bank slip dated 06/06/2002.
In view of above, accused Vinod Negi has also not clearly claimed the money as his own, which he had deposited in his Oriental Bank of Commerce account i.e. Rs. 10,000/ and Rs. 30,000/, recovered from his possession. Accused Vinod Negi has also not been able to explain about the source of money. The defence witness and accused Vinod Negi, who has examined himself u/s. 315 Cr.P.C., have contradicted each other, so, they cannot be relied upon regarding the place, time and the manner of arrest, as deposed by both the defence witnesses. The currency notes, which were recovered from the possession of accused were also having UTI Bank slips and possession of the same has not been explained by the accused, so, prosecution has also been able to prove offence u/s. 411 of IPC against accused Vinod Negi, for which, he is held guilty and convicted for the same. Finding qua offence u/s. 411 of IPC against accused Harkesh @ Rakesh Rawat:
According to PW28 SI R. Sriniwasan, on 13/08/2002, he alongwith Constable Narender i.e. PW27 was present near Jaipur Golden hospital, where secret informer met them, who informed that accused Harkesh, wanted in this case, was present in his house. On receipt of this information, he alongwith Ct Narender reached at Sector1, Avantika, Rohini, where secret informer pointed out accused Harkesh, who was standing in front of his house. He was arrested vide memo Ex. PW28/J and his personal search was conducted vide memo Ex. PW28/K. Accused Harkesh also made disclosure statement Ex. PW28/L and in furtherance of his disclosure statement got recovered Rs. 6500/ from a diwan lying in a room of his house. These were in the denomination of Rs. 100/. The said currency notes were kept in a polythene and sealed with the seal of RSS and were seized vide memo Ex. PW28/M. Thereafter, they came back to PS and case property was deposited in the SC No. 106/1 31 malkhana. Accused Harkesh was produced before the concerned Court and was remanded to J.C. PW27 HC Narender had joined the investigation on 13/08/2002 and has deposed the same facts regarding arrest and recovery of Rs. 6500/ from the possession of accused Harkesh @ Rakesh Rawat. Both PW27 and PW28 have identified these currency notes before the Court as the same, which accused Harkesh @ Rakesh Rawat had got recovered from his possession as part of the robbed amount.
Learned defence counsel has contended that according to cross of PW27 HC Narender, accused Harkesh @ Rakesh Rawat was removed to PS in a private car and the driver of the said car was not asked to join the proceedings. Again this witness has stated that private car was being driven by the police official. It was belonging to HC Shiv Kumar. Shiv Kumar had not joined the investigation, whereas according to PW28 SI R. Sriniwasan, private car was belonging to Constable Narender and he was driving the same. It is further contended that according to PW28, only two police officials had gone for the arrest of accused Harkesh @ Rakesh Rawat i.e. PW27 HC Narender and PW28 SI R. Sriniwasan, so, there could not be any third person driving the car nor it has been deposed so by any of the witness. It is further contended that according to cross of PW28 SI R. Sriniwasan, seizure memo of currency notes of Rs. 6500/ was prepared on 13/08/2002, whereas actually seizure memo Ex. PW28/M is bearing the date under the signatures of IO as 12/08/2002 and when it was asked from the witness, he has told that he put the date 12/08/2002 inadvertently. It is further contended that under such circumstances, the testimonies of witnesses are not inspiring any confidence. The currency notes, which were recovered from the possession of accused Harkesh @ Rakesh Rawat have not been identified by any of the witness nor these were having slip of UTI Bank.
The witnesses regarding the recovery of Rs. 6,500/ from the possession of accused Harkesh @ Rakesh Rawat are not inspiring confidence due to material SC No. 106/1 32 contradictions. These currency notes were not having any UTI Bank slip and the amount is so much meager that it could have been available with the accused. According to the case of the prosecution, the currency notes were recovered and seized on 13/08/2002, whereas seizure memo is bearing the date as 12/08/2002. Explanation of the IO in this respect is not inspiring any confidence, hence, prosecution has not been able to prove offence u/s. 411 of iPC against accused Harkesh @ Rakesh Rawat beyond reasonable doubts, for which, he is acquitted. Finding qua offence u/s. 411 of IPC against accused Hari @ Jagdish @ Tittoo:
According to PW28 SI R. Sriniwasan, on 16/06/2002, he received secret information about accused Hari, who was absconding, that he was present in front of his house No. D11, Mange Ram Park, Pooth Kalan, so, he alongwith staff and secret informer reached there and on the pointing of secret informer, accused Hari @ Jagdish was apprehended and was arrested vide memo Ex. PW19/A. His personal search was conducted vide memo Ex. PW19/B. Accused Hari @ Jagdish also made disclosure statement Ex. PW19/C and in furtherance of the his disclosure statement, he got recovered Rs. 2.60 lacs from a bed (diwan) of his house, out of which, 20 packets were of 100/ denomination and 12 packets were of Rs. 50/ denomination. The same were kept in a polythene and sealed with the seal of RSS and were seized vide memo Ex. PW19/D. Thereafter, accused Hari @ Jagdish pointed out the place of incident vide memo Ex. PW28/I. Thereafter, they came back to PS. Case property was deposited in the malkhana.
PW28 has further deposed that PC remand of accused Hari @ Jagdish was obtained and on 18/06/2002, accused Hari @ Jagdish led the police party to his house and from the ground floor, he got recovered Rs. 10,000/ from an iron tank, which were sealed in a parcel with the seal of RSS and were seized vide memo Ex. PW19/E. Thereafter, they came back to PS and case property was deposited in the malkhana. He was remanded to J.C. PW28 has identified the 20 packets of currency notes of Rs. 100/ SC No. 106/1 33 denomination as P3, P13 to P32 and 12 packets of Rs. 50/ denomination as Ex. P12/112 and also Rs. 10,000/, which were in the denomination of Rs. 100/ each as Ex. PW19/E1.
According to the cross examination of PW28, 7 packets of Rs. 100/, 1 packet of Rs. 100/ and 9 packets of currency notes of Rs. 50/ denomination were having slips of UTI Bank.
PW19 constable Dinesh, who had also joined the investigation with PW28 SI R. Sriniwasan, has also deposed the same facts regarding recovery of Rs. 2.60 lacs from the possession of accused Hari @ Jagdish on 16/06/2002 and has identified the currency notes before the Court. It was also noted at that time that the address on the slip of UTI Bank, which was affixed on the currency notes, was having Plot No. Plot No. 6, LSC, DP Block Pitam Pura, Delhi34.
According to cross of PW19, he had gone with the IO, who received secret information in a car, which has also been deposed by PW28 SI R. Sriniwasan that they came back to PS in a vehicle. Both have also corroborated that prior to 18/06/2002, accused Hari @ Jagdish had not disclosed that one packet of currency notes of Rs. 100/ denomination was also lying in the iron tank.
Learned defence counsel has contended that both the witnesses have contradicted each other regarding the sealing material and to from whom, seal was obtained and to whom, it was handed over after use. Learned defence counsel has further contended that white cloth bag, which was found containing currency notes seized in this case, when was produced before the court, was cotton stitched, whereas IO has stated that he had prepared the cloth pullanda a the time of seizure of currency notes, which is not believable.
All these contentions pointed out by learned defence counsel are minor in nature and are not affecting the depositions of the witnesses in any manner because some packets of currency notes recovered from the possession of accused Hari @ Jagdish were having UTI Bank slip with address, which could not be planted upon SC No. 106/1 34 accused Hari @ Jagdish in any manner and it does not seem to be possible to plant such a large quantity of currency notes upon the accused.
Rs. 2.60 lacs were got recovered by accused Hari @ Jagdish. He has not claimed that these currency notes were belonging to him. He has also not been able to show the source of these currency notes. The currency notes were having UTI Bank slip, which is not explained by the accused in any manner. The contradictions as pointed out by learned defence counsel are minor in nature and merely that details of the currency notes, as asked by the learned defence counsel in the cross examination were not mentioned in the seizure memo, does not mean that no such recovery was effected. Such a huge quantity of currency notes could not have been planted on the accused persons by the police. Accordingly, prosecution has also been able to prove offence u/s. 411 of IPC against accused Hari @ Jagdish beyond reasonable doubts, for which, he is held guilty and convicted for the same.
Announced in the open court (Virender Kumar Goyal)
today on 28th of November, 2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 106/1 35
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 106/1
Unique Identification No. 02404R0146702002
State
Versus
1) Hitender Singh @ Chhotu
S/o Sh. Laxman Singh
R/o F440, Ram Park Extension,
Loni, Ghaziabad, U.P.
FIR No. 408/2002
PS - Mangolpuri
U/s. 411 IPC & u/s. 25 of Arms Act
Date of Decision: 28/11/2013
Date of order on sentence: 30/11/2013
ORDER ON SENTENCE
30/11/2013
Present. Ld. APP for the State.
Convict Hitender Singh @ Chhotu from J.C. with counsel Sh. Kashmira Singh.
Heard on the point of sentence.
Learned defence counsel has contended that convict Hitender Singh @ Chhotu is aged about 37 years. He is married, having wife. He has old aged parents to lookafter. It is further contended that accused was working as cable operator and was earning Rs. 15,000/ per month. Learned defence counsel has further contended that he is not a previous convict but is involved in one case, which is pending trial at present. It is further contended that convict Hitender Singh @ Chhotu remained in custody from 12/06/2002 to 09/04/2004, 15/02/2008 to 05/02/2013, 25/02/2013 to 28/03/2013 and 15/04/2013 to till date i.e. 7 years, 3 months and 12 days. It is further contended that accused has faced trial of this case since SC No. 106/1 36 2002 and has appeared before the court regularly. It is further contended that a lenient view be taken.
On the other hand, ld. APP has contended that appropriate sentence be awarded as per the offences proved.
I have considered the submissions of ld. APP and learned defence counsel for the convict. The prosecution has been able to prove offences U/s. 411 of IPC and u/s. 25 of Arms Act against accused Hitender Singh @ Chhotu.
Offence U/s. 411 of IPC is punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Offence u/s. 25 of Arms Act in respect of possessing a pistol with live cartridges is punishable with imprisonment for a term which shall not be less than three years, but which may extend to seven years and shall also be liable to fine.
I have considered the submissions and age, character and antecedents of convict Hitender Singh @ Chhotu. Accordingly, sentence of three years simple imprisonment with fine of Rs. 5000/ is imposed upon the convict U/s. 411 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for six months.
Sentence of three years simple imprisonment with fine of Rs. 5000/ is imposed upon the convict U/s. 25 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for six months.
On the point of compensation, it is contended by learned defence counsel that according to the case of the prosecution, Rs. 17,75,000/ were robbed from the employees of the complainant and Rs. 3.55/ lacs were recovered from accused Hitender Singh @ chhotu, Rs. 2.60/ lacs were recovered from accused Hari @ Jagdish, Rs. 45,000/ were recovered from accused Vinod Negi and Rs. 1,40,000/ were recovered from accused Harish Chander, so, in all, Rs. 8,00,000/ were recovered from the possession of accused persons. It is further contended that according to the cross examination of PW4 Jitender Singh Rana, a sum of Rs. 8.50 lacs was given by the insurance company only on the ground that rest of the amount was recovered by the police, so, only Rs. 1,75,000/ could not be recovered, hence, compensation be awarded considering the family circumstances and earning capacity of the accused persons and the amount left behind.
SC No. 106/1 37
It has been held in Delhi Domestic Working Women's forum V. Union of India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services.
In view of above, on account of loss of money and business, a compensation of Rs. 1,25,000/ is imposed upon convict in favour of the complainant company. In default of SC No. 106/1 38 payment of compensation, convict shall undergo six months simple imprisonment.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the complainant company.
Both the substantive sentences of imprisonment shall run concurrently. Benefit of Section 428 of Cr.P.C. be given to the convict.
Fine and compensation not deposited.
Convict is remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 30th of November,2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 106/1 39
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 106/1
Unique Identification No. 02404R0146702002
State
Versus
Hari @ Jagdish @ Tittoo
S/o Sh. Mahipal Singh
R/o D11, Mange Ram Park,
Pooth Kalan, Sultanpuri, Delhi.
FIR No. 408/2002
PS - Mangolpuri
U/s. 411 IPC
Date of Decision: 28/11/2013
Date of order on sentence: 30/11/2013
ORDER ON SENTENCE
30/11/2013
Present. Ld. APP for the State.
Convict Hari @ Jagdish @ Tittoo in person with counsel Sh. Kashmira Singh.
Heard on the point of sentence.
Learned defence counsel has contended that convict Hari @ Jagdish @ Tittoo is aged about 38 years. He is married, having wife and two children, aged about 12 years and 14 years. He has mother to lookafter. His father already expired. It is further contended that accused is working as cable operator and is earning Rs. 1012,000/ per month. Learned defence counsel has further contended that he is not a previous convict and two cases are pending trial. It is further contended that convict Hari @ Jagdish @ Tittoo remained in custody from 16/06/2002 to 03/07/2004 i.e. 2 years and 17 days. It is further contended that a lenient view be taken.
SC No. 106/1 40
On the other hand, ld. APP has contended that appropriate sentence be awarded as per law.
I have considered the submissions of ld. APP and learned defence counsel for the convict. The prosecution has been able to prove offence U/s. 411 of IPC against accused Hari @ Jagdish @ Tittoo.
Offence U/s. 411 of IPC is punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
I have considered the submissions and age, character and antecedents of convict Hari @ Jagdish @ Tittoo. Accordingly, sentence of two years simple imprisonment with fine of Rs. 5000/ is imposed upon the convict U/s. 411 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for six months.
On the point of compensation, it is contended by learned defence counsel that according to the case of the prosecution, Rs. 17,75,000/ were robbed from the employees of the complainant and Rs. 3.55/ lacs were recovered from accused Hitender Singh @ chhotu, Rs. 2.60/ lacs were recovered from accused Hari @ Jagdish, Rs. 45,000/ were recovered from accused Vinod Negi and Rs. 1,40,000/ were recovered from accused Harish Chander, so, in all, Rs. 8,00,000/ were recovered from the possession of accused persons. It is further contended that according to the cross examination of PW4 Jitender Singh Rana, a sum of Rs. 8.50 lacs was given by the insurance company only on the ground that rest of the amount was recovered by the police, so, only Rs. 1,75,000/ could not be recovered, hence, compensation be awarded considering the family circumstances and earning capacity of the accused persons and the amount left behind.
It has been held in Delhi Domestic Working Women's forum V. Union of India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims SC No. 106/1 41 of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services.
In view of above submissions, considering the robbed amount, which could not be recovered, a compensation of Rs. One lac is imposed upon convict in favour of complainant company. In default of payment of compensation, convict shall undergo six months simple imprisonment.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the complainant company.
Fine and compensation not deposited.
Benefit of Section 428 Cr.P.C. be given to the convict.
Convict is remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 30th of November,2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 106/1 42
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 106/1
Unique Identification No. 02404R0146702002
State
Versus
Vinod Singh @ Binnu
S/o late Sh. Kunwar Singh Negi
R/o E1424, Ram Park Extension,
Loni, Ghaziabd, U.P.
FIR No. 408/2002
PS - Mangolpuri
U/s. 411 IPC
Date of Decision: 28/11/2013
Date of order on sentence: 30/11/2013
ORDER ON SENTENCE
30/11/2013
Present. Ld. APP for the State.
Convict Vinod Singh @ Binnu in person with counsel Sh. Kashmira Singh.
Heard on the point of sentence.
Learned defence counsel has contended that convict Vinod Singh @ Binnu is aged about 35 years. He is married, having wife and one minor child. It is further contended that accused is doing private job in a company and is earning Rs. 16,000/ per month. Learned defence counsel has further contended that he is not a previous convict nor habitual offender. It is further contended that convict Vinod Singh @ Binnu remained in custody from 12/06/2002 to 16/08/2002 i.e. 2 months and 4 days. It is further contended that a lenient view be taken.
On the other hand, ld. APP has contended that appropriate sentence be awarded as per rules.
SC No. 106/1 43
I have considered the submissions of ld. APP and learned defence counsel for the convict. The prosecution has been able to prove offence U/s. 411 of IPC against accused Vinod Singh @ Binnu.
Offence U/s. 411 of IPC is punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
I have considered the submissions and age, character and antecedents of convict Vinod Singh @ Binnu. Accordingly, sentence of two months simple imprisonment with fine of Rs. 5000/ is imposed upon the convict U/s. 411 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for 15 days.
On the point of compensation, it is contended by learned defence counsel that according to the case of the prosecution, Rs. 17,75,000/ were robbed from the employees of the complainant and Rs. 3.55/ lacs were recovered from accused Hitender Singh @ chhotu, Rs. 2.60/ lacs were recovered from accused Hari @ Jagdish, Rs. 45,000/ were recovered from accused Vinod Negi and Rs. 1,40,000/ were recovered from accused Harish Chander, so, in all, Rs. 8,00,000/ were recovered from the possession of accused persons. It is further contended that according to the cross examination of PW4 Jitender Singh Rana, a sum of Rs. 8.50 lacs was given by the insurance company only on the ground that rest of the amount was recovered by the police, so, only Rs. 1,75,000/ could not be recovered, hence, compensation be awarded considering the family circumstances and earning capacity of the accused persons and the amount left behind.
It has been held in Delhi Domestic Working Women's forum V. Union of India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or SC No. 106/1 44 damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services.
In view of above submissions, considering the robbed amount, which could not be recovered, a compensation of Rs. 50,000/ is imposed upon convict in favour of complainant company. In default of payment of compensation, convict shall undergo six months simple imprisonment.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the complainant company.
Fine and compensation not deposited.
Benefit of Section 428 Cr.P.C. be given to the convict.
Convict is remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 30th of November,2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 106/1 45
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 106/1
Unique Identification No. 02404R0146702002
State
Versus
Harish Chander
S/o Sh. Chintamani
R/o A316, South Gamdi,
Gali No.5, P.O.Maujpur,
Shahdara, Delhi.
FIR No. 408/2002
PS - Mangolpuri
U/s. 411 IPC
Date of Decision: 28/11/2013
Date of order on sentence: 30/11/2013
ORDER ON SENTENCE
30/11/2013
Present. Ld. APP for the State.
Convict Harish Chander in person with counsel Sh. Kashmira Singh. Heard on the point of sentence.
Learned defence counsel has contended that convict Harish Chander is aged about 42 years. He is married, having wife and two children. It is further contended that accused is doing private work and is earning Rs. 15,000/ per month. Learned defence counsel has further contended that he is not a previous convict nor habitual offender. It is further contended that convict Harish Chander remained in custody from 12/06/2002 to 28/06/2002 i.e. 16 days. It is further contended that a lenient view be taken.
On the other hand, ld. APP has contended that appropriate sentence be awarded as per law.
I have considered the submissions of ld. APP and learned defence counsel for SC No. 106/1 46 the convict. The prosecution has been able to prove offence U/s. 411 of IPC against accused Harish Chander.
Offence U/s. 411 of IPC is punishable with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
I have considered the submissions and age, character and antecedents of convict Harish Chander. Accordingly, sentence of 15 days simple imprisonment as already undergone with fine of Rs. 5000/ is imposed upon the convict U/s. 411 of IPC. In default of payment of fine, he shall further undergo simple imprisonment for six months.
On the point of compensation, it is contended by learned defence counsel that according to the case of the prosecution, Rs. 17,75,000/ were robbed from the employees of the complainant and Rs. 3.55/ lacs were recovered from accused Hitender Singh @ chhotu, Rs. 2.60/ lacs were recovered from accused Hari @ Jagdish, Rs. 45,000/ were recovered from accused Vinod Negi and Rs. 1,40,000/ were recovered from accused Harish Chander, so, in all, Rs. 8,00,000/ were recovered from the possession of accused persons. It is further contended that according to the cross examination of PW4 Jitender Singh Rana, a sum of Rs. 8.50 lacs was given by the insurance company only on the ground that rest of the amount was recovered by the police, so, only Rs. 1,75,000/ could not be recovered, hence, compensation be awarded considering the family circumstances and earning capacity of the accused persons and the amount left behind.
It has been held in Delhi Domestic Working Women's forum V. Union of India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give SC No. 106/1 47 reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services.
In view of above submissions, considering the robbed amount, which could not be recovered, a compensation of Rs. 75,000/ is imposed upon convict in favour of complainant company. In default of payment of compensation, convict shall undergo six months simple imprisonment.
Compensation, if deposited and no appeal is preferred within the period of limitation, then the same be released to the complainant company.
Fine and compensation not deposited.
Benefit of Section 428 Cr.P.C. be given to the convict.
Convict is remanded to serve the sentence.
Announced in the open court (Virender Kumar Goyal)
today on 30th of November,2013 Additional Sessions Judge
Fast Track Court, Rohini Courts,Delhi.
SC No. 106/1 48