Delhi District Court
State vs . (1) Rajesh Kumar on 28 February, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE-II (NW): ROHINI COURTS: DELHI
Sessions Case No. 1116/09
Unique Case ID No. 02404R1286732005
State Vs. (1) Rajesh Kumar
S/o Nanha Ram
R/o Village Shivanamal
District Jind, Tehsil Safidaun,
Haryana
(Convicted)
(2) Somvir
S/o Bharat Singh
R/o House No. 192,
Village Mundka, Delhi
(Convicted)
(3) Neeraj
S/o Sh. Shyam Lal
R/o House No. 322,
Bhairon Mandir Wali Gali,
Mundka, Delhi
(Convicted)
FIR No.: 422/05
Police Station: Nangloi
Under Section: 307/186/353/411/34 IPC &
25,27/54/59 Arms Act
Date of committal to sessions court: 18.8.2005
Date on which orders were reserved: 15.2.2011
Date of decision: 19.2.2011
St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 1
JUDGMENT:
1. As per the allegations on 3.5.2005 at about 10:45 am at main Rohtak Road, near PVC Road, Service Road, Tikri Kalan all the accused persons namely Rajesh, Somvir and Neeraj were coming in Maruti Car No. DL-5C-2577 and in furtherance of their common intention voluntarily obstructed the police officials/ public servants in discharge of their public functions and used criminal force on the police party in the execution of their duty as public servants to deter such public servant from exercising their duty or in consequence of anything done or attempted to be done by such person in the lawful discharge of the duties. It is further alleged that the accused persons hit the police officer with the Maruti Car with such intention or knowledge that under such circumstances if by that act they caused death they all would be guilty of murder. It is further alleged that in furtherance of their common intention the accused fired on the police party comprising of SI Satish Kumar, HC Devender Singh, Ct. Lalit and Om Prakash with such intention that by that act if they caused the death of said persons, they would all be guilty of murder.
BRIEF FACTS OF THE CASE:
2. The case of the prosecution is that on 3.5.2005 SI Satish along with his staff were patrolling in the area and when they reached at Azad Hind Gram, Tikri a secret information was received that three boys would be coming from Bahadurgarh side in a stolen Maruti Car bearing no. DL-5C-2577 with arms and ammunition. At about 10:45 am a Maruti Car came from wrong the side on service road on which St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 2 SI Satish gave signal to stop the car and Ct. Om Prakash put the barricades. The driver stopped the car and tried to run away along with his two associates on which Ct. Lalit apprehended the accused Neeraj and the accused Rajesh was apprehended by HC Devender Singh whose names they came to know later on. The accused Somvir who was sitting next to the driver seat, fired upon the police party while running away and was overpowered by SI Satish Kumar who snatched the desi katta from his hand. On personal search of the accused Rajesh one buttondar knife was recovered from the right pocket of his pant. On thorough interrogation the accused disclosed that the said car was stolen from the area of Paschim Vihar on the intervening night of 2/3.5.2005 and on verification from Police Station Paschim Vihar, it was learnt that a case FIR No. 358/05 under Section 379 IPC has been registered at Police Station Paschim Vihar. Thereafter the FIR was got registered and the accused persons were arrested and charge sheeted.
CHARGE:
3. Initially charges under Section 307/34 Indian Penal Code was settled against the accused persons to which they have pleaded not guilty and claimed trial. Further, the charges were amended and the Ld. Predecessor of this court has settled the charges under Section 186/ 353/ 307/ 34 Indian Penal Code to which they have pleaded not guilty and claimed trial. Charges under Section 25,27/54/59 of Arms Act were settled against the accused Somvir to which he pleaded not guilty and has claimed trial. Further, charges under Section 25/54/59 St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 3 of Arms Act were settled against the accused Rajesh to which he has pleaded not guilty and claimed trial.
EVIDENCE
4. In order to prove its case the prosecution has examined as many as sixteen witnesses.
5. PW1 Ct. Mukesh has deposed that on 07.06.2005 he was posted at Police Station Nangloi and on that day MHC(M) handed over to him pullandas for depositing the same in FSL office Rohini vide RC No.189/21/05. According to him, after depositing the same in the FSL, Rohini he obtained the receipt on RC which he handed over to MHC(M). He has proved that the pullandas were not tampered by anyone during the time they remained in his possession and his statement in this regard was recorded by the investigating officer. The witness has not been cross-examined by the accused persons.
6. PW2 ASI Raj Bala is a formal witness being the Duty Officer who has deposed that on 03.05.2005 she was posted as ASI at Police Station Nangloi and was working as Duty Officer from 9AM till 5 PM. According to her, on that day at about 12:50 PM she received a rukka brought by Ct. Om Parkash which was sent by SI Satish on the basis of which she recorded the present FIR bearing No. 422/05 under Section 307/186/353/411/34 IPC and 25/27 Arms Act, copy of which is Ex.PW2/A. She has further deposed that after registration of the FIR she handed over copy of FIR and original rukka to Ct. Om Parkash for handing over the same to SI Hari Kishan. The witness has St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 4 further proved her endorsement on the rukka which is Ex.PW2/B and the DD entry in this regard which is Ex.PW2/C. In her cross examination by Ld. Defence counsel the witness has deposed that it took about one hour in completing all proceedings and Ct. Om Parkash left the police station at around 1:50 PM.
7. PW3 HC Balwan Singh has deposed that on 03.052007, he was posted as DD Writer at Police Post Tikri Border, Police Station Nangloi and on that day at about 9.30AM he recorded DD No.4 regarding the departure of SI Satish Kumar, HC Devender, Ct. Lalit and Ct. Om Prakash. He has also proved the DD No.4 copy of which is Ex.PW3/A.
8. PW4 SI Satish has deposed that on 03.05.2005, he was posted as Sub Inspector at Police Post Tikri Border of Police Station Nangloi and on that day he along with HC Devender, Ct. Lalit and Ct. Om Prakash were on the patrolling duty vide DD No.4 and were present at Azad Hind Gram, Tikri. According to him, at about 10.10AM he received a secret information that three boys would came from the Bahadur Garh side in a stolen maruti car bearing no. DL-5C-2577 and they would also be carrying illegal arms and are likely to go from the wrong side through service road as there was checking on the main road and if raided they could be apprehended. The witness has further deposed that he passed on this information to his staff and prepared raiding party and made a nakabandi at PVC road and asked three to four public persons to join the raiding party but none agreed and went away without giving their names and addresses. However, they started vehicle checking after putting the barricades. According to St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 5 him, at about 10.45AM a maruti car came on the service road from the wrong side and he gave signals to stop the car and Ct. Om Prakash put barricades on which the driver of the car stopped the car and tried to run away along with his two associates. He has further deposed that Ct. Lalit apprehended the driver of the car Neeraj Kumar whose name came to know after inquiry and the person who was sitting next to the driver fired upon the police party while running but he apprehended the said person whose name was later on revealed as Somvir Singh and a desi katta was recovered from his hand. The witness has testified that the person who was sitting on the back seat was apprehended by HC Devender Singh whose name he came to know after inquiry was Rajesh Kumar from whose personal search one buttondar knife was recovered from the right side pocket of his pant. According to the witness, he checked the desi katta recovered from the possession of the accused Somvir and one used cartridge was found from inside the katta, one live cartridge of .315 bore was recovered from his right pocket of his pant and on the bottom of the cartridge 8mmKF was found engraved and he prepared the sketch of the desi katta, empty cartridge and live cartridge. He has deposed that the length of the barrel of the desi katta was 15cm, length of the body was 5cm, butt was of 7cm and total length was 26cms and the sketch of desi katta is Ex.PW4/A. According to the witness, he thereafter filled the FSL form after which the desi katta and cartridges were put up into a pulanda and duly sealed with the seal of SK. He thereafter seized the same vide memo Ex.PW4/B and also prepared the sketch of the knife which was recovered from the possession of accused Rajesh and the St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 6 total length of the knife was 24, the length of the blade was 11cms, length of the handle was 13cms which sketch is Ex.PW4/C. He has further testified that the knife was put up into a pulanda sealed with the seal of SK and seized vide memo which is Ex.PW4/D which seal after use was handed over to Ct. Om Prakash. According to PW4, he made inquiries from the accused about the car but they were not able to give any satisfactory reply nor produce any documentary proof regarding the ownership of the car and on detailed interrogation accused disclosed that they had stolen this car bearing no. DL-5C-
2577 from the area of Paschim Vihar on the intervening night of 2/3.5.05. The witness has deposed that on inquiry from the Duty Officer of Police Station Paschim Vihar he came to know that in this regard a case FIR No.358/05, under Section 379 IPC had been registered and therefore, the car was seized under Section 102 Code of Criminal Procedure vide memo Ex.PW4/E. He has proved having prepared the rukka which is Ex.PW4/F which he handed over to Ct. Om Prakash for getting an FIR register. According to the witness, further investigations of this case were handed over to SI Hari Kishan who came at the spot along with Ct. Om Prakash to whom he handed over the three accused, case property and all the investigation papers. PW4 has further deposed that SI Hari Kishan prepared the site plan at his instance and put the FIR numbers on the documents prepared by him and interrogated the accused after which the accused were arrested. He has testified that accused Somvir was wearing a wrist watch and disclosed that he along with his associates Rajesh and Kapil had snatched the same in the intervening night of 2/3.5.2005 on St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 7 Chandpur Road, Majra Dabas and therefore, the said wrist watch also put up into a pulanda and sealed with the seal of HK and on inquiry it was revealed that in this regard a case FIR No.128/05, Police Station Kanjhawala had already been registered. According to PW4, from the casual search of the accused Rajesh one mobile phone of the make of Nokia 3310 was recovered who disclosed that he along with his associates namely Somvir and Kapil had snatched the same in the intervening night of 2/3.5.05 from Chandpur Road, Majra Dabas and hence, the said mobile was also put in a pulanda and sealed with the seal of HK and on inquiry it was revealed that in this regard a case FIR No.128/05 has been registered in Police Station Kanjhawala. The witness has proved the disclosure statements of all the accused. The disclosure of accused Somvir is Ex.PW4/G, disclosure of accused Rajesh is Ex.PW4/H and disclosure of accused Neeraj is Ex.PW4/J wherein they have disclosed their involvements in many other cases. He has testified that the personal search o the accused persons were conducted and the personal search memo of accused Somvir is Ex.PW4/K, personal search of accused Rajesh is Ex.PW4/L and personal search of accused Neeraj is Ex.PW4/M. According to him, the accused thereafter took them at Bahadurgarh on the border and pointed out the place of accident in the case of Police Station Bahadurgarh Haryana and the accused Rajesh and Somvir also pointed out the place at Chandpur Majra Dabas road near Govt. Sr. Sec. School and pointed out the place where they had committed robbery in the intervening night of 2/3.5.2005 and thereafter also pointed out the place of occurrence of case of Police Station Nangloi. He has further St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 8 deposed that thereafter accused Rajesh, Somvir and Neeraj also pointed out the place of occurrence of case FIR No.358/05 of Police Station Paschim Vihar form where they had stolen the Maruti car recovered from their possession. According to PW4, after completing the investigations the accused were sent to the police lock-up and the case properties were deposited in the Malkahan by SI Harikishan. He has correctly identified the accused Somvir and Neeraj in the court whereas the identity of the accused Rajesh was not disputed. He has also identified the case property i.e. one desi katta Ex.P-1, two empty cartridges which are Ex.P-2 & P-3 recovered from the accused Somvir; buttondar knife which was recovered from the possession of accused Rajesh which is Ex.P-4. He has also correctly identified the car from the photographs placed on the judicial record of case FIR No.358/05 Police Station Paschim Vihar, photocopy of the said photographs of the car is Ex.PW4/N. The said witness has not been cross-examined by the counsel for the accused.
9. PW5 Sh. Rajender Kumar Gupta has deposed that he is the registered owner of Maruti 800 CC car bearing registration no. DL- 5C-2577 of white color, model 1991. According to him, on 02.05.2005 he had parked his car outside his house in the night at about 9 PM and next day in the morning he found his car missing on which he searched for his car which could not found and he thereafter lodged an FIR No.358/05 in Police Station Paschim Vihar, copy of which FIR is Ex.PW5/A. He has further deposed that police prepared a site plan at his instance and he came to know that his car had been recovered by the police of Police Station Nangloi. According to him, St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 9 he had identified his car in Police Station which he later on took on superdari by the order of Ld. Metropolitan Magistrate. He has identified the car from the photocopy of photographs present on the judicial file which photographs are already Ex.PW4/N (collectively). He has also not been cross-examined by the counsel for the accused.
10. PW6 SI Hari Kishan is the investigating officer who has deposed on 03.052005, he was posted as Sub Inspector at Police Station Nangloi and on that day Ct. Om Prakash handed over to him the copy of FIR and the rukka of the present case and further investigation of this case were handed over to him. According to him, he along with Ct. Om Prakash reached the spot i.e. Tikri Border, Main Rohtak Road near PVC Road where he met SI Satish along with staff and three accused Somvir, Rajesh and Neeraj. He has further deposed that SI Satish handed over to him all the three accused, case property and all the investigation papers after which he prepared the site plan at the instance of SI Satish which site plan is Ex.PW6/A and put the FIR numbers on the documents prepared by SI Satish. The witness has further deposed that he interrogated the accused and arrested them and the accused Somvir was wearing a wrist watch which he disclosed that he along with his associates Rajesh and Kapil had snatched during the intervening night of 2/3.5.2005 on the Chandpur Road, Majra Dabas after which the same was also put up into a pulanda and sealed with the seal of HK. He has testified that on inquiry it was revealed that in this regard a case FIR No.128/05, Police Station Kanjhawala has been registered. According to him, from the casual search of accused Rajesh one mobile phone of the make of Nokia 3310 was recovered St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 10 and accused disclosed that he along with his associates namely Somvir and Kapil had snatched the same on the intervening night of 2/3.5.05 from Chandpur Road, Majra Dabas, after which the said mobile phone was put up in a pulanda and sealed with the seal of HK and on inquiry it was revealed that in this regard a case FIR No.128/05 has been registered in Police Station Kanjhawala. He has proved the arrest, personal search memos and disclosure statements of the accused persons i.e. the arrest memo of accused Neeraj which is Ex.PW6/B, arrest memo of accused Somvir which is Ex.PW6/C, arrest memo of accused Rajesh which is Ex.PW6/D, disclosure of the accused Somvir which is Ex.PW4/G, disclosure of accused Rajesh which is Ex.PW4/H, disclosure of accused Neeraj which is Ex.PW4/J, personal search memo of accused Somvir which is Ex.PW4/K, personal search of accused Rajesh which is Ex.PW4/L and personal search memo of accused Neeraj which is Ex.PW4/M. The witness has further deposed that thereafter the accused took them to Bahadurgarh on the border and pointed out the place of accident in a case of Police Station Bahadurgarh Haryana and thereafter accused Rajesh and Somvir also pointed out the place at Chandpur Majra Dabas Road near Govt. Sr. Sec. School and pointed out the place where they had committed robbery during the intervening night of 2/3.5.2005. PW6 has also deposed that thereafter accused also pointed out the place of occurrence of case of Police Station Nangloi and thereafter accused Rajesh, Somvir and Neeraj also pointed out the place of occurrence of case FIR No. 358/05 of Police Station Paschim St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 11 Vihar from where they had stolen the maruti car recovered from their possession and after completing the investigation the accused were sent to police lock-up and the case properties were deposited in the Malkahana by him. The witness has also deposed that he had recorded the statements of witnesses and informed the concerned investigating officer and handed over to them the copies of documents prepared by him. According to him, on 07.06.2005 the pullandas were sent to FSL through Constable Mukesh and after depositing the same he had deposited the receipt with the MHC(M) and recorded their statements and on 01.7.2005 Sh. Jagjeet Singh Deswal, ACP had filed a complaint under Section 195 Code of Criminal Procedure and subsequently on 14.7.2005 he had issued some corrections in the same which complaint under Section 195 Code of Criminal Procedure which is Ex.PW6/E and correction in the complaint is Ex.PW6/F. He has proved that after completing the investigation, the challan was prepared and filed in the court and later on FSL result Ex.PX was collected and on 24.07.2006 Sh. H.G.S. Dhariwal, Addl. DCP (West) had accorded sanction under Section 39 of Arms Act which is Ex.PY and the same was filed in the court. He has correctly identified the accused Somvir and Neeraj in the court and the accused Rajesh was exempted through his counsel on the date of examination of the witness and his identity was not disputed. The witness has identified the car from the photographs placed on the judicial record of case FIR No.358/05 Police Station Paschim Vihar, photocopy of the photographs of the car which is Ex.PW4/N. PW6 has also not been examined by the counsel for the accused despite an opportunity in this St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 12 regard.
11. PW7 Sh. Jagjeet Singh Deshwal has deposed that on 01.07.05 he was working as ACP Sub Division Punjabi Bagh, West New Delhi and on that day the documents of this case including FIR, seizure memo and other documents were submitted before him by the investigating officer. He has further deposed that he had perused the same and after being satisfied with the material placed before him, he had lodged complaint under Section 195 Code of Criminal Procedure which is Ex.PW7/A to prosecute accused Sombir, Neeraj and Rajesh. According to the witness, in the aforesaid complaint due to typing mistake some words left in the said complaint in the sentence between from and Rajesh Kumar as marked A i.e. "Sombir and one knife was recovered from" and therefore, he had filed another complaint duly corrected which is Ex.PW6/F. The said witness has not been cross- examined by the accused.
12. PW8 Sh. C.J. Suri, MLO North-East Zone, Transport Authority, Loni has brought the original record of vehicle No. DL-5C- 2577 and as per record the aforesaid vehicle is registered in the name of Sh. R.K. Gupta, S/o Sh. Ram Kumar Gupta, R/O A-1, 292, Paschim Vihar, Delhi, copy of particulars of which vehicle is Ex.PW8/A. He has testified that the said vehicle was transferred in the name of Sh. R.K. Gupta on 09.02.2004 and prior to this the said vehicle was registered in the name of one Mrs T.D. Sarna, W/o Sh. Subhash, R/o 24F, Pocket 4, Mayur Vihar, Phase-I, Delhi. He has proved the copy of RC in the name of previous owner Ms T.D. Sarna which is Ex.PW8/B and the copy of RC in the name of Sh. R.K. Gupta which St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 13 is Ex.PW8/C. PW8 has not been cross-examined by the accused.
13. PW9 WASI Nirmala has deposed that on 03.05.2005 he was posted at Police Station Paschim Vihar as Duty Officer from 9 AM to 5 PM and on that day at about 9:50 AM one R.K. Gupta had come to the Police Station and gave his statement to him. She has further deposed that on the basis of his statement she recorded FIR No.358/05 photocopy of which is Ex.PW9/A which she handed over to SI Manoj Kumar for investigation.
14. PW10 ASI Dev Singh has deposed in his statement that on 18.05.2005 he was working as MHC(M) at Police Station Paschim Vihar and on that day SI Manoj Kumar had deposited one Maruti Car No. DL5C-2577 through Ct. Ramesh Kumar, which he deposited vide entry No.3233. The witness has further deposed that on 26.05.2005 the said maruti car was released on Superdari by the order of Sh. A.K. Sisodia, Ld. Metropolitan Magistrate to Sh. R.K. Gupta, copy of the entry is Ex.PW10/A.
15. PW11 Ct. Ramesh Kumar has deposed that on 18.05.2005 he was posted at Police Station Paschim Vihar and on that day on the instructions of investigating officer he went to Police Station Nangloi and took the maruti car from Malkhana bearing No. DL-5C-2577 which was involved in case FIR No.358/05, under Section 379 IPC and brought the same to Police Station Paschim Vihar vide RC No. 153/21. The witness has identified the car through the photographs which are Ex.PW4/M and Ex.PW4/N.
16. PW12 ASI K.N. Shukla has deposed that on 03.05.2005 he was posted at Police Station Kanjhawala as Duty Officer from 4 PM St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 14 to 8 AM and on that day on receipt of rukka brought by Ct. Ranbir which was sent by SI B.D. Pandey at about 12:45 AM (midnight), he recorded the FIR No.128/05, photocopy of which is Ex.PW12/A. According to him, he handed over the copy of FIR and original rukka to Ct. Ranveer for investigation.
17. PW13 HC Virender has deposed that on 03.05.2005 he was posted at Police Station Nangloi as MHC(M) and on that day SI Hari Krishan had deposited one sealed parcel containing knife with the seal of SK, one sealed parcel with the same seal containing one katta and two cartridges along with FSL form and he received the same vide entry No.5555 of register No.19. According to him, on the same day he also received one Maruti car No. DL-5C-2577 from SI Hari Krishan involved in case FIR No.358/05 of Police Station Paschim Vihar vide same entry of the register No. 19 and on 18.05.05 he released the said maruti car to Ct. Ramesh Kumar of Police Station Paschim Vihar vide RC No.153/21. The witness has further deposed that on the same day SI Hari Kishan had deposited another sealed parcel containing mobile phone duly sealed with the seal of HK involved in case FIR No.128/05 of Police Station Kanjahawala and he received the same with the same serial number of register No. 19 which mobile phone was sent to Police Station Kanjahawala through Ct. Ranvir vide RC No.184/21 on 31.05.05. According to the witness, he also received another parcel containing wrist watch duly sealed with the seal of HK from SI Hari Krishan vide same entry of register No.19 which parcel was handed over to Ct. Ranbir of Police Station Kanjahawala on 31.05.05. He has further deposed that he had St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 15 received Jama Talashi of accused persons vide the same entry and on 07.06.005 he sent the exhibits of this case to FSL Rohini through Ct. Mukesh duly sealed with the seal of SK vide RC No.189/21 vide same entry. He has placed on record the photocopy of the entries which is Ex.PW13/A (running into five pages), copy of RC which is Ex.PW13/B (running into two pages). He has proved that no tampering was done while the case property remained in his possession.
18. PW14 Ct. Ranvir Singh has deposed that on 31.05.2005 he was posted at Police Station Kanjhawala and on that day on the instructions of investigating officer he went to Police Station Nangloi and took the sealed parcel containing mobile phone duly sealed with the seal of HK and another sealed parcel containing wrist watch with the same seal which were involved in case FIR No.128/05 of Police Station Kanjhawala. He has further deposed that he took the same to Police Station Kanjahawala and handed over to MHC(M). He has further deposed that no tampering was done while aforesaid parcels remained in his possession.
19. PW15 HC Om Parkash has deposed that on 03.05.2005 he was posted at Police Post Tikri Border, Police Station Nangloi and on that day he along with SI Satish Kumar, Ct. Lalit Kumar and HC Devender were on patrolling duty in the area of Azad Hind Gram. According to him, at about 10:10 AM one secret informer informed SI Satish Kumar that one Maruti car bearing No. DL-5C-2577 would come from Bahadurgarh side in which three boys are having arms and ammunitions which would come from wrong side via service road and St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 16 could be apprehended if raided. He has further deposed that on this information SI Satish Kumar formed a raiding party and nakabandi was constituted at PVC market road and at about 10:45 AM one Maruti car came on wrong side via service road from Haryana side and it was having the same number as given by the secret informer. The witness has further deposed that SI Satish Kumar made the signal to stop it and he fixed the barricade on the road after which the driver of the car stopped the car and three persons came out of the car and started running in different directions on which they chased them. He has testified that the accused who were driving the car was apprehended by Ct. Lalit whose name was known as Neeraj; the accused sitting on the front seat near driver seat had fired on the raiding party and was apprehended by SI Satish Kumar whose name was known as Sombir and one desi katta was recovered from his hand, another cartridge was recovered from right side pocket of his pant. The witness has further deposed that the accused Rajesh was apprehended by HC Devender and one knife was recovered from accused Rajesh after which the investigating officer prepared the sketch of katta as well as two cartridges which is Ex.PW4/A. PW15 HC Om Prakash has deposed that the katta was wrapped in a cloth and sealed with the seal of SK and sealed parcel was taken into possession vide seizure memo which is Ex.PW4/B and thereafter the investigating officer prepared the sketch of knife which is Ex.PW4/C and the knife was also sealed with the seal of SK. He has further deposed that the sealed parcel containing knife was also taken into possession by the investigating officer which is Ex.PW4/D after St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 17 which the aforesaid Maruti car was also seized vide memo which is Ex.PW4/E. According to the witness, the investigating officer prepared the rukka and the present case was got registered through him and he had brought the copy of FIR and original rukka and same were handed over to SI Hari Krishan who came to the spot with him. The witness has further deposed that further investigation of this case was handed over to SI Hari Kishan who arrested the accused persons namely Neeraj, Somvir and Rajesh vide memos Ex.PW6/B to Ex.PW6/D and personally searched vide memos Ex.PW4/K to Ex.PW4/M. According to PW15, the seal after use was handed over to him and the accused persons could not give any satisfactory answer regarding ownership of Maruti Car and on interrogation they had disclosed that they had stolen the said Maruti Car from Paschim Vihar. The witness has further deposed that on verification they came to know that a case FIR No.358/05 under Section 379 PC was already registered regarding theft of the said maruti car. The witness has correctly identified the case property i.e. one desi katta which is Ex.P-1 and two cartridges recovered from accused Somvir which are Ex.P2 & Ex.P-3; one buttondar knife which was recovered from accused Rajesh which is Ex.P-4. He has also identified the car through the photographs which is Ex.P-5. The said witness has also not been cross-examined by the accused.
20. PW16 HC Surender Singh has deposed that on 31.05.2005 Ct. Ranbir Singh had deposited one sealed parcel containing mobile phone and another parcel containing wrist watch duly sealed with the St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 18 seal of HK which were recovered in case FIR No.422/05 Police Station Nangloi. According to him, HC Dilbagh Singh the then MHC(M) received the same vide RC No.184/21 vide serial No.1229 of register No.19 and on 04.06.2005 both the case properties were released on Superdari by the order of Sh. M.K. Gupta, Ld. MM, Tis Hazari Courts, Delhi. He has placed on record the copy of relevant entry which is Ex.PW16/A. He has also not been cross-examined by the accused.
Statement of the accused/ defence evidence:
21. After completion of prosecution evidence the statements of the accused persons were recorded under Section 313 Code of Criminal Procedure wherein all the incriminating evidence was put to them which they have denied. The accused Somvir has stated that he is innocent and has been falsely implicated in the present case. According to him, he has nothing to do with this case and on the date of alleged incident he had met with an accident at Bahagurgarh and also received first aid treatment.
22. The accused Neeraj has similarly stated that he is innocent and has been falsely implicated in the present case. He has denied having made any disclosure statement to the police.
23. Similarly the accused Rajesh has stated that he is innocent and has been falsely implicated in the present case. He has also denied having made any disclosure statement to the police.
24. The accused Neeraj and Rajesh have chosen not to examine any witness in their defence. However, the accused Somvir has St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 19 preferred to lead defence evidence but it is evident from the record that despite an opportunity in this regard, has failed to examine any witness in his defence.
FINDINGS:
25. After considering the material on record, the testimonies of the various witnesses and the arguments advanced on behalf of the accused, my findings are as under:
26. Firstly in so far as the identity of the accused Rajesh, Somvir and Neeraj are concerned, they have been duly identified by SI Satish Kumar (PW4) and HC Om Prakash (PW15) as the boys who had been apprehended on 3.5.2005 at main Rohtak Road, near PVC Service Road, Tikri Kalan while accused Neeraj was driving the stolen Maruti Car bearing No. DL-5C-2577, accused Somvir was sitting near the driver and the accused Rajesh has been identified as the boy sitting on the back seat of the car whose identity was otherwise not disputed during trial.
27. Secondly it has been proved that SI Satish Kumar (PW4) who was on patrolling duly along with HC Devender, Ct. Lalit and Ct. Om Prakash had received a secret information that three boys would came in a stolen Maruti car bearing no. DL-5C-2577 along with illegal arms from Bahadurgrah side from wrong side and could be apprehended on which a Nakabandi was constituted by SI Satish Kumar (PW4) who asked three to four public persons to join them but they went away. It is further proved that without wasting further time they put the barricades and at about 10:45 AM a maruti car came on the service St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 20 road from the wrong side on which SI Satish Kumar (PW4) signal the car to stop and Ct. Om Prakash put the barricades in front of the car. The driver of the car namely Neeraj stopped the car and thereafter he along with his two other associates namely Somvir sitting next to him and Rajesh sitting on the back seat, tried to escape,
28. Thirdly it is proved that Ct. Lalit apprehended the driver of the vehicle whose name they came to know later was Neeraj. It is also proved that the person who was sitting near the driver fired upon the police party while running away and he was apprehended by SI Satish Kumar (PW4) whose name was later on revealed as Somvir and a desi katta was recovered from his possession. It has been further proved that the boy who was sitting on the back seat of the car was apprehended by HC Devender Singh whose name was revealed as Rajesh from whose possession a buttondar knife was recovered from the right pocket of his pant. It is also proved that the desi katta was checked and one used cartridge was found inside the katta and one live cartridge of .315 bore was found inside it and on the bottom of cartridge 8mmKF was found engraved. The sketch of the katta which is Ex.PW4/A, its sealing and seizure has been duly proved by SI Satish Kumar (PW4). Further, the sketch of the knife recovered from the possession of accused Rajesh, which is Ex.PW4/C which was prepared by SI Satish Kumar along with its sealing and seizure has been proved by SI Satish Kumar (PW4). Both the weapons were duly measured which measurements have also been proved by SI Satish (PW4) and HC Om Prakash (PW15).
St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 2129. Fourthly it is further proved that the accused Somvir was wearing a wrist watch and on interrogation he disclosed that he along with his associates Rajesh and Kapil who had snatched the said wrist watch on the intervening night of 2/3.5.2005 on the Chandpur Road, Majra Dabas in respect of which an FIR bearing No.128/05, Police Station Kanjhawla had already been registered. It is also proved from the evidence on record from the casual search of accused Rajesh one mobile phone of make Nokia 3310 was recovered and it was disclosed by the accused Rajesh and he along with his associates namely Somvir and Kapil had snatched the some on the intervening night of 2/3.5.2005 from Chandpur Road, Majra Dabas in respect of which FIR bearing No.128/05, Police Station Kanjhawla had already been registered. The pointing out in respect of the robbery incident which took place at Chandpur Road, Majra Dabas has been duly proved by the investigating officer on the pointing out of the accused.
30. Fifthly Sh. Jagjeet Singh Deshwal, Addl. DCP who has been examined as PW7, has duly proved the complaint under Section 195 Code of Criminal Procedure against the accused which is Ex.PW7/A to which there is no rebuttal.
31. Sixthly PW8 Sh. C.J. Suri, MLO, North-East Zone, Transport Authority, Loni has duly proved that the vehicle in question i.e. Maruti car bearing no. DL-2C-2577 is registered in the name of Sh. R.K. Gupta S/o Sh. Ram Kumar Gupta. He has placed on record the copy of the RC of the vehicle in the name of Sh. R.K. Gupta which is Ex.PW8/C. His testimony finds a corroboration from the testimony St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 22 of PW5 Rajender Kumar Gupta who has proved that he was the owner of the stolen vehicle i.e. Maruti 800 cc Car bearing no. DL-5C-2577. It is this car which was found in possession of the accused persons while accused Neeraj was driving the same, accused Somvir was sitting next to the driver on the front seat and the accused Rajesh was sitting on the back seat of the car.
32. Seventhly the sanction under Section 39 of Arms Act has not been disputed which is Ex.PY and the FSL result which is Ex.PX has also not been disputed. It is evident from the FSL result (Ballistic report) Ex.PX that the country made pistol .315 bore and 8mm/ .315 cartridge are firearm/ ammunition as defined under the Arms Act. It has further been proved from the Ballistic Report that the individual characteristics of firing pin marks present on evidence fire cartridge case and the test fire cartridge case were found to be identical under microscopic comparison and it is therefore concluded that the empty cartridge recovered from the katta had been fired from the country made pistol of .315 bore marked exhibit EC1 by the Senior Scientific Assistant (Ballistic) which was recovered from the possession of the accused Somvir which evidence has gone unrebutted. Further a judicial notice is taken of the Gazette Notification dated 17.2.1979 bearing No.F.13/203/78-Home (C) providing that any any person found in possession of a knife open or close with any of the mechanical device with a blade of 7.62 or more in length and 1.72 cms or more in breadth, in public places should be regulated. The knife so recovered from the accused Rajesh is clearly beyond the prescribed notified limits.
St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 2333. Eighthly the various witnesses of the prosecution have duly proved the investigation proceedings regarding the apprehension, arrest, recording of disclosure statement and seizure memo etc. on which aspect there is no rebuttal.
34. Ninthly the Ld. counsel appearing on behalf of the accused has argued that no public witness has been joined at the time of conducting the proceedings at the spot and therefore, the entire case of the prosecution is required to be thrown out on this ground alone. In this regard I may mention that it has come on record that a secret information had been received by the police party while they were at the spot and attempts had been made by SI Satish Kumar (PW4) to join the public persons who refused to join and went away without disclosing their names and addresses. No doubt the case of the prosecution cannot be thrown out only on this account, the testimonies of the witnesses are, however required to be scrutinized with due care under the given circumstances.
35. Tenthly it is argued that there was no common intention and all the accused cannot be held liable jointly there being no common intention of doing criminal act. In this regard, I may mention that Section 34 has been enacted on the principal of joint liability in the doing of a criminal act. The section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 if such criminal act is done in furtherance of common intention of the persons St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 24 who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of minds of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be if pre-arranged or on the spur of the moment, but it must necessarily be before the commission of the crime. The true concept of the Section is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. As observed in Ashok Kumar Vs. State of Punjab reported in AIR 1997 (1) SCC 746 the existence of a common intention amongst the participants in a crime is the essential elements for application of this section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say "the common intentions of all"
nor does it say "an intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in section 34, when an accused is convicted under section 302 read with section 34, in law it means that St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 25 the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Chinta Pulla Reddy Vs. State of A.P. reported in 1993 Supp (3) SCC 134. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying section 34, it is not necessary to show some over act on the part of the accused. The above position was highlighted in Girija Shankar Vs. State of U.P., reported in 2004(3) SCC 793.
36. Applying the settled principles of law to the facts of the present case it is evident that it is only the accused Somvir who had fired at the police party while fleeing away from the spot after the accused Neeraj, the driver of the car, had stopped the vehicle. There was no overt act on the part of either Neeraj or Rajesh showing the existence of a common intention to cause death. This being so, I hereby hold that the provisions of Section 34 Indian Penal Code cannot be invoked as against all the accused in so far as the act of firing upon the police party and it is only the accused Somvir who is guilty of the same.
37. Eleventhly Ld. counsel appearing on behalf of the accused has vehemently argued that at the time of arrest and apprehension of the accused Somvir he was injured having met with an accident at Bahadurgarh Road and therefore, under these circumstances, the case of the prosecution that he had fired at the police party is doubtful. I St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 26 have considered the submissions made before me. I may observe that there is nothing on record to show that the accused Somvir was incapacitated or had suffered injures on both his hands making it impossible for him to fire at the police party. Rather, the FSL report is very categorical and shows that the empty cartridge recovered from the katta was fired by the country made pistol recovered from the possession of accused Somvir.
38. Lastly the case of the prosecution is that the accused persons had on 2.5.2005 at about 8:00 pm committed robbery at Chandpur Road, Majra Dabas, Delhi from one HC Ishwar Singh who was coming back on his motorcycle bearing no. DL-4SAG-5685. The accused who at that time were in a white colour Maruti Car bearing no. DL-8CC-0989 came from the opposite side and stopped his motorcycle to inquire from him as to where the road would lead and when he stopped his motorcycle the accused came out of the car out of which the accused Kapil (in FIR No.128/05, PS Kanjhawla) was the boy who was having a pistol in his hand and Somvir was the boy who gave beatings to him (HC Ishwar Singh) and took his mobile and purse whereas accused Rajesh was the boy who was standing near the car. After committing this incident the said car bearing no. DL-8CC- 0989 was found abandoned in an accidental condition. In respect of the aforesaid incident case bearing FIR No.128/05, Police Station Kanjhawla was registered. Thereafter on the intervening night of 2/3.5.2005 a theft of Maruti Car bearing no. DL-5C-2577 was committed from the area of Paschim Vihar which vehicle was belonging to one Rajender Kumar Gupta in respect of which FIR St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 27 No.358/05 Police Station Paschim Vihar was registered. On 3.5.2005 the accused Somvir, Rajesh Kumar and Neeraj were found in possession of this stolen vehicle at about 10:45am while they were stopped by the police party when they were coming from Bahadurgarh side on the wrong side of the road as there was secret information with the police and on being so stopped they obstructed the public servants from public duty. Ld. counsel appearing on behalf of the accused has argued that the sequence of evidence as borne out from the record from various FIRs including the FIR of Police Station Bahadurgarh regarding the accident where one of the boy sitting along with the accused in the car had expired, would show that the entire story as put forth by the prosecution has been concocted by the investigating agency. I have considered his submissions and I find no merit in the same. The sequence of events as made out as aforesaid appear to be natural and probable. Initially the accused were in vehicle bearing no. DL-48CC-0989 which they abandoned in an accidental condition. Thereafter on the intervening night the theft of another Maruti Car bearing No. DL-5C-2577 was committed which car was recovered on the next day when the accused were in possession of the same. Ld. counsel appearing on behalf of the accused has also argued that in so far as the FIR No.128/05 Police Station Kanjhawla is concerned the complainant in the same is a Head Constable with the Delhi Police and the entire story has been concocted at his instance. I have considered his submissions and I find no merits in the same since it is borne out from the record that HC Ishwar Singh was coming back on his motorcycle after finishing his duty and in the incident he himself St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 28 had sustained certain injuries after which he made a PCR call and was taken to hospital, which fact has been duly proved by the prosecution in case FIR No.128/05 Police Station Kanjhawla. Under the given circumstances, there is no reason to doubt the veracity and credibility of the victim HC Ishwar Singh more so on account of the recovery of the stolen articles from the possession of the accused persons after they were apprehended.
FINAL CONCLUSION:
39. In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 29
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
40. Applying the settled principles of law to the facts and circumstances of the present case, the prosecution has been able to successfully proved the identity of the accused. It has been duly proved that all the three accused persons namely Rajesh, Neeraj and Somvir were found in possession of stolen vehicle bearing no. DL-5C- 2577 which vehicle was driven by accused Neeraj, accused Somvir was sitting near the driver and the accused Rajesh was sitting on the back seat of the car, which vehicle was reported to be stolen in FIR No.358/05, Police Station Paschim Vihar. It has also been proved that a wrist watch was recovered from the accused Sombir and a mobile phone recovered from the possession of accused Rajesh had been robbed on the intervening night of 2/3.5.2005 on Chandpur Road, Majra Dabas in respect of which a case FIR No.128/05 Police Station Kanjhawla has been registered (which wrist watch and mobile phone have been duly identified by the victim therein namely HC Ishwar Singh). The prosecution has also proved that that while trying to escape the accused Somvir had fired upon the police party. It is further established and proved that a .315 bore country made pistol and the empty cartridge was recovered from the same and as per the FSL report Ex.PX the individual characteristics of firing pin marks St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 30 present on evidence fire cartridge case and the test fire cartridge case were found to be identical under microscopic comparison and it is therefore concluded that the empty cartridge recovered from the katta had been fired from the country made pistol of .315 bore which are firearm/ ammunition as defined under the Arms Act. Further, the buttondar knife so recovered from the possession of the accused Rajesh which was in violation of the notification of the Delhi Government Gazette Notification dated 17.2.1979 bearing No.F.13/203/78-Home (C).
41. This being the background, I hereby hold the accused Rajesh, Somvir and Neeraj guilty of the offence under Section 186 Indian Penal Code read with Section 353/34 Indian Penal Code. However, the prosecution has not been able to successfully proved the existence of common intention. Therefore, since it is only the firing incident wherein the accused Somvir had fired upon the police party from a desi katta which stands proved, I therefore hold only the accused Somvir guilty of the offence under Section 307 Indian Penal Code but acquit the accused Rajesh and Neeraj of the same. Further, the accused Somvir is also held guilty of the offence under Section 25,27/54/59 of Arms Act for using the desi katta and accused Rajesh guilty of the offence under Section 25/54/59 of Arms Act. All the accused are convicted accordingly
42. Case be listed for arguments on sentence on 24.2.2011.
Announced in the open court (Dr. KAMINI LAU) Dated: 19.2.2011 ASJ-II(NW)/ROHINI St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 31 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NW): ROHINI COURTS: DELHI Sessions Case No. 1116/09 Unique Case ID No. 02404R1286732005 State Vs. (1) Rajesh Kumar S/o Nanha Ram R/o Village Shivanamal District Jind, Tehsil Safidaun, Haryana (2) Somvir S/o Bharat Singh R/o House No. 192, Village Mundka, Delhi (3) Neeraj S/o Sh. Shyam Lal R/o House No. 322, Bhairon Mandir Wali Gali, Mundka, Delhi FIR No.: 422/05 Police Station: Nangloi Under Section: 307/186/353/411/34 IPC & 25,27/54/59 Arms Act Date of conviction: 19.2.2011 Arguments heard on: 24.2.2011 Date of Sentence: 28.2.2011 APPEARANCE: Present: Addl. PP for the State.
All the three convicts in judicial custody with Sh. Birender Sangwan Advocate.
St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 32ORDER ON SENTENCE:
Vide my detailed judgment dated 19.2.2011, this court has held the accused Rajesh Kumar, Somvir and Neeraj guilty of the offence under Sections 186 read with Section 353/34 Indian Penal Code and convicted them accordingly. Further, the accused Somvir has been held guilty of the offence under Section 307 Indian Penal Code and Sections 25,27/54/59 of Arms Act and the accused Rajesh Kumar guilty of the offence under Sections 24/54/59 of Arms Act and accordingly convicted.
The case of the prosecution is that on 3.5.2005 SI Satish along with his staff were patrolling in the area and when they reached at Azad Hind Gram, Tikri a secret information was received that three boys would be coming from Bahadurgarh side in a stolen Maruti Car bearing no. DL-5C-2577 with arms and ammunition. At about 10:45am they noticed a Maruti Car coming from the wrong side on service road on which SI Satish gave signal to stop the car and Ct. Om Prakash put the barricades. The driver stopped the car and tried to run away along with his two associates on which Ct. Lalit apprehended the accused Neeraj and the accused Rajesh was apprehended by HC Devender Singh whose names they came to know later on. The accused Somvir who was sitting next to the driver seat, fired upon the police party while running away and was overpowered by SI Satish Kumar who snatched the desi katta from his hand. On personal search of the accused Rajesh one buttondar knife was recovered from the right pocket of his pant. On thorough interrogation the accused disclosed that the said car was stolen from the area of Paschim Vihar St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 33 on the intervening night of 2/3.5.2005 in respect of which a case FIR No.358/05 under Section 379 IPC had already been registered at Police Station Paschim Vihar. Further, the accused Sombir was found in possession of a wrist watch and the accused Rajesh Kumar was found in possession of a mobile phone which they disclosed had been robbed on the intervening night of 2/3.5.2005 from the area of Chandpur Road, Majra Dabas in respect of which a case FIR No.128/05, Police Station Kanjhawla had already been registered. On the basis of the testimonies of the various witnesses examined by the prosecution, this court has held the accused Rajesh Kumar, Somvir and Neeraj guilty of the offence under Sections 186 read with Section 353/34 Indian Penal Code and convicted them accordingly. The accused Somvir has also been held guilty of the offence under Section 307 Indian Penal Code and Section 25 r/w Secions 27/54/59 of the Arms Act and the accused Rajesh Kumar has been held guilty of the offence under Sections 24/54/59 of the Arms Act and accordingly convicted. The accused Rajesh and Neeraj have been acquitted of the offence under Section 307 Indian Penal Code.
I have heard arguments on the point of sentence. Ld. counsel appearing on behalf of the convicts submits that all the convicts are young boys and have already remained in judicial custody for a considerable period of time. He has vehemently argued that any strict punishment would spoil the entire future of the young convicts and requests that a lenient view be taken against them. Ld. Addl. PP for the State has on the other hand, has argued that the convicts are St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 34 desperate criminals and has prayed for a strict punishment keeping in view the allegations involved.
The convict Rajesh Kumar is aged about 27 years and has a family comprising of aged widow mother and wife who is pregnant at present. He is 12th class pass and is an agriculturist by profession. He is also involved in three other cases i.e. FIR No.128/05 Police Station Kanjhawla and FIR No.358/2005 Police Station Paschim Vihar wherein he has also been convicted and another case under Section 302 IPC of Police Station Sonipat which is pending trial. He has remained in judicial custody for about 13 months.
The convict Somvir is a young boy of 23 years having a family comprising of parents and one brother. He is 10th class pass and prior to the incident he was working as Sweeper in Parliament House on daily wages. According to the Ld. counsel, the father of the convict is living separately from the convict. The convict is also involved in three other cases i.e. FIR No.122/06, under Section 392/395/402 IPC, Police Station Bahadurgarh (Haryana); FIR No.82/10, under Section 395 IPC and 25/54/59 of Arms Act, Police Station Kalka (Haryana); FIR No.152/10, under Section 25/54/59 of Arms Act, Police Station Kalka (Haryana) which are pending trial and other cases i.e. FIR No.128/05 Police Station Kanjhawla and FIR No.358/2005 Police Station Paschim Vihar wherein he has been convicted. He has remained in judicial custody for about 27 months.
St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 35The convict Neeraj is also aged 23 years and has a family comprising of widow mother, one brother and one sister who are younger to him. He is 9th class pass and is a Driver by profession. H is also involved in other cases i.e. FIR No.358/2005 Police Station Paschim Vihar wherein he has been convicted and in cases bearing FIR No. 140/10, under Section 399/402 IPC, Police Station Kalka (Haryana); FIR No. 139/10, under Section 457/380 IPC, Police Station Kalka (Haryana) and FIR No. 115/10, under Section 454/380 IPC, Police Station Kalka (Haryana). The convict has been discharged from two other cases i.e. FIR No.82/10, under Section 395 IPC & 24/54/59 of Arms Act and FIR No.121/05, under Section 457/380 IPC both of Police Station Kalka (Haryana). He has also remained in judicial custody for about 28 days.
I have considered the rival contentions. Law and order situation has been deteriorating in the country and has worsen in the recent past. Instances of young persons getting involved in criminal activities of robbing innocent persons by putting them under threat of death, are also on rise. Trigger friendly criminals unhesitatingly and indiscriminately use dangerous firearms on helpless victims who may or not offer any resistance thereby spreading terror in the society and adversely affecting social order and the faith of people in the system.
No leniency can be shown to persons who have no respect for law. Anyone who does not hesitate to take the law into his hands does not deserve any leniency and any indulgence by the court, under St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 36 these circumstances, can be misplaced. All the convicts are habitual criminals and are involved in a number of other cases. Undue sympathy, under these circumstances, to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of this court to award a sentence having regard to the nature of the offence and the manner in which it was executed or committed. (Ref: Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463).
Therefore, I award the following sentences to the convict Rajesh Kumar:
1. The convict Rajesh Kumar is sentenced to Rigorous Imprisonment for a period of three months for the offence under Section 186 Indian Penal Code.
2. Further, he is sentenced to Rigorous Imprisonment for a period of two years for the offence under Section 353 Indian Penal Code.
3. He is also sentenced to Rigorous Imprisonment for a period of Two Years and fine to the tune of Rs.5,000/- for the offence under Section 25/54/59 of Arms Act. In default of payment of fine the convict shall undergo Simple Imprisonment of one month.
All the sentences shall run concurrently.
St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 37In so far as the convict Somvir is concerned, I hereby award the followings sentences to him:
1. The convict Somvir is sentenced to Rigorous Imprisonment for a period of three months for the offence under Section 186 Indian Penal Code.
2. Further, the convict is sentenced to Rigorous Imprisonment for a period of Two Years for the offence under Section 353 Indian Penal Code.
3. He is also sentenced to Rigorous Imprisonment for a period of five years and fine to the tune of Rs.5,000/- for the offence under Section 307 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
4. He is also sentenced to Rigorous Imprisonment for a period of Five Years and fine to the tune of Rs.5,000/- for the offence under Section 27,25/54/59 of Arms Act. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.
All the sentences shall run concurrently.
In so far as the convict Neeraj is concerned, I hereby award the followings sentences to him:
1. The convict Neeraj is sentenced to Rigorous Imprisonment for a period of three months for the offence under Section 186 Indian Penal Code.St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 38
2. Further he is sentenced to Rigorous Imprisonment for a period of two years for the offence under Section 353 Indian Penal Code.
Both the sentences shall run concurrently.
Benefit of Section 428 Code of Criminal Procedure shall be given to all the convicts for the period already undergone by them during the trial, as per rules.
The sentences in the present case shall run concurrent to the sentences awarded to the convicts Rajesh and Somvir in FIR No.128/05, Police Station Kanjhawala and to the convicts Rajesh, Somvir and Neeraj in FIR No.358/05, Police Station Paschim Vihar.
All the convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the legal Aid cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 28.2.2011 ASJ-II(NW)/ ROHINI
St. Vs. Rajesh Etc., FIR No.422/05, PS Nangloi Page No. 39