Delhi District Court
Fir No. 47/10; State vs . Narender @ Lathiya Etc. Page 1 Of 44 on 28 February, 2013
IN THE COURT OF SH. YASHWANT KUMAR : ADDL. SESSIONS
JUDGE03:NW:ROHINI:DELHI
SESSIONS CASE NO. 30/10
FIR No. 47/10
P.S. Ashok Vihar
U/S: 392/397/34 IPC &
27/54/59 Arms Act
STATE
Versus
(1) NARENDER @ LATHIYA
s/o Sh. Ghasiram
r/o E223, JJ Colony,
Indra Puri, Delhi
(2) MOHD. SHAKIL
s/o Sh. Mohd. Salamuddin
r/o 272, DDA Flat,
Ranjeet Nagar, Delhi
(3) JOGINDER @ TIGER
s/o Sh. Manjeet
r/o D342, JJ Colony,
Indra Puri, Delhi
(4) MANOJ
s/o Sh. Mahender Singh
r/o D544, JJ Colony,
Indra Puri, Delhi
FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 1 of 44
Date of Institution: 16072010
Date of arguments: 19022013
Date of judgement: 25022013
JUDGMENT
1. The case of the Prosecution, in brief, is that on 26022010, on receipt of DD no. 24A, ASI Bhagat Singh along with Ct. Nihal Singh reached at the spot at Ring Road, Shalimar Bagh red light, in front of All Heavens Restaurant and found one motorcycle bearing no. DL4SBH5187 make Pulsar and one Hyundai i10 car bearing no. DL8CS8112. Complainant Vijay Shankar also met the police and gave his statement to the police. In his statement, complainant disclosed that he works in Kwality Alloys, Shop no. 307, M. G. House, WPIA and his duty was to deposit money in bank and to collect cash. On 26022010, his employer Sh. Purshottam asked him to collect money from Sadar Bazar and he reached Sadar Bazar Metal Alloys where he was asked to collect money from Khari Baoli. Thereafter, complainant reached Katra Neel and collected Rs. 20,000/ from there and put in the briefcase. Complainant also put his own amount of Rs. 9500/ in the briefcase. He boarded the bus no. 127 from Fatehpuri and at about 3:10 pm, he got down from the bus at All Heavens WPIA red light. One FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 2 of 44 motorcycle with two riders wearing helmets came there and one of them said to complainant to walk carefully and abused complainant. The person sitting on front seat asked the pillion rider to snatch the briefcase of complainant and upon which the person sitting behind snatched the briefcase of complainant. When complainant resisted, one another motorcycle came there upon which two persons were sitting and they showed pistol to complainant and asked him to keep mum. When the motorcycle riders tried to flee, one of the motorcycle collied with one car bearing no. DL8CS8112 and both the motorcycle riders fell down on the road. One of the boys fired from the pistol which hit the rear glass of car. Both boys ran away on foot after leaving their motorcycle bearing no. DL4SBH5187 make Pulsar. The other motorcycle riders also ran from there on their motorcycle. All the boys were of the age of 25/30 years. On this complaint, ASI Bhagat Singh got the FIR registered through Ct. Nihal Singh. Crime Team was called at the spot and spot was got photographed. Motorcycle no. DL4SBH5187 lying at the spot was taken into possession. Lead was also taken out from the seat of i10 car no. DL8CS8112 and it was taken into possession. On 10052010, ASI Rakesh Kumar from Special Cell, North gave information vide DD no. 40B that accused Joginder @ Tiger, Manoj, FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 3 of 44 Narender @ Lathia, and Mohd. Shakil were arrested in case FIR no. 25/10 u/s 25 Arms Act and 411 IPC, PS Special Cell and they had given disclosure regarding case FIR no. 47/10. In pursuance to issuance of production warrant, all four accused were arrested in this case on 20052010 with permission of the court. On 29052010, complainant Vijay Shankar identified all four accused in TIP proceedings. The sealed packet stated to be containing country made pistol and live cartridge were taken into possession from Special Cell. During interrogation, section 27/54/59 Arms Act was added in the FIR. After completion of investigation, chargesheet was filed u/s 392/397/34 IPC and 27/54/59 Arms Act.
2. After compliance of Section 207 Cr.P.C., the case was committed to Sessions Court. Charge under Section 392/34 IPC was framed against all accused and additional charge u/s 397 IPC and 27/54/59 Arms Act was also framed against accused Manoj to which all accused pleaded not guilty and claimed trial.
3. In order to prove its case, Prosecution has examined 20 witnesses. Statements of accused were recorded u/s 313 Cr.P.C. therein they denied all the allegations made against them. All accused opted to lead defence evidence and examined Bhrighu Nath Singh, Ranjit, Imran Beg, and Ravi as DW1 to PW4. FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 4 of 44
4. I have heard Ld. Amicus Curiae and Ld. APP for State and have perused the entire records.
5. Ld. Amicus Curiae for accused argued that the accused persons have been falsely implicated in this case. The motorcycle number in the complaint has been corrected which shows manipulation by the investigating agency. After 2½ months of the incident, the accused were apprehended and on the basis of disclosure statements, they have been booked in this case. No public witness was joined during investigation. PW2 is the hostile witness. Identification of the accused persons in TIP has no meaning if the accused persons had already been shown to the witness at the PS. The police has not fairly investigated the matter and there are major contradictions in the testimonies of PWs. In support of his arguments, Ld. Amicus Curiae relied upon the judgements reported in the case of Jafar Malik Vs. State (NCT of Delhi), 160 (2009) DLT 224; Shaikh Umar Ahmed Shaikh Vs. State of Maharashtra, AIR 1998 SC 1922; Ravindra alias Ravi Bansi Gohar Vs. State of Maharashtra and others, AIR 1998 SC 3031; Subash and Shiv Shankar Vs. State of UP, AIR 1987 SC 1222; and Wakil Singh and others Vs State of Bihar, AIR 1981 SC 1392.
6. Ld. APP for State argued that it has been proved on FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 5 of 44 record by the Prosecution through its witnesses that the accused persons committed robbery and the accused Manoj used the country made pistol and fired it and the bullet hit the i10 car which has also been proved by PW2. So far as hostile witness is concerned, the testimony of hostile witness though not admitted by the Prosecution, cannot be discarded in totality. The accused cannot take benefit of faulty investigation, if any. The accused persons can even be convicted on the sole testimony of a witness if that testimony is trustworthy and reliable and corroborates with the other evidence. Even otherwise, the PW4 has also identified all the accused persons in the court and TIP. Therefore, the prosecution has proved the case beyond reasonable doubt by way of oral testimony of PWs coupled with forensic evidence. The Ld. APP for State, in support of his arguments, relied upon the judgements reported in the case of Paramjeet Singh @ Pamma Vs. State of Uttarakhanda, AIR 2011 SC 200; Dhanaj Singh alias Shera and others Vs. State of Punjab, AIR 2004 SC 1920 and Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J. 2653(1).
7. Let us firstly discuss the legal position u/s 392/397/34 IPC. Section 392 IPC specifies the punishment which can be inflicted in case of simple robbery. The arrest of the culprits in such FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 6 of 44 cases is often delayed on account of the inherent difficulties which the Prosecution naturally faces in such cases. The provisions of section 397 IPC do not create any new substantive offence as such but merely serve as complementary to sections 392 and 395 IPC by regulating the punishment already provided for dacoity by fixing a minimum term of imprisonment when the dacoity committed was found attendant upon certain aggravating circumstances viz., use of a deadly weapon, or causing of grievous hurt or attempting to cause death or grievous hurt. For that reason, no doubt the provision postulates only the individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in section 34.
8. Let us further examine the evidence led in this case as to whether the accused persons had committed the offence as charged or whether they have been falsely implicated. PW4 Vijay Shankar Mishra deposed in his examination in chief that he works with Kwality Alloys, 307, MG House, WPI and his duty is to collect cash from the bank and the market. On 26.02.2010, his owner Purshottam sent him to Sadar Bazar at Metal Alloys for collection of money and from there, he was sent to Katra Neel, Khari Baoli to collect the money. PW4 collected Rs. 20,000/ from Katra Neel and FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 7 of 44 put them in a briefcase along with his personal money amounting to Rs. 95009600/. PW4 boarded a private at route No. 127 from Fateh Puri and at about 3.10 pm, he got down from the bus at All Heavens red light. A motorcycle, on which two boys were sitting, came from behind and started abusing PW4. The boy who was driving the bike, told the pillion rider to snatch briefcase from PW4. The pillion rider then tried to snatch bag from PW4. In the meanwhile, two boys came on another motorcycle and the boy who was sitting on the pillion seat of the said motorcycle showed him a pistol and PW4 got frightened. The boy who was sitting on the pillion seat of the first motorcycle, snatched the briefcase from PW4. After snatching his briefcase, that boy said "Chalo" and the motorcyclist drove away the motorcycle. The second motorcycle on which the pillion rider had shown him the pistol, however stopped. Both the motorcycle riders got down and tried to start the motorcycle and also shown the pistol to the public to keep them away. After starting the motorcycle while they were trying to run away, an i10 car came in front of their motorcycle. The pillion rider fired from his pistol which hit the rear glass of the car and entered inside. Thereafter, the motorcycle of black colour fell down and both the motorcycle riders fled away from the spot leaving behind the motorcycle. PW4 could FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 8 of 44 not recollect the number of motorcycle and i10 car. PW4 could not note down the number of the motorcycle on which the other two boys who snatched the briefcase from him, had fled away. Police came at the spot and recorded statement of PW1 vide Exbt. PW4/A. Police had recovered something from the car which was kept in a matchbox and the same was kept in a cloth pullanda. The car and the motorcycle were seized at the spot. Crime team also came at the spot. PW4 identified all the four accused persons correctly. PW4 pointed out towards accused Narender as the person who was driving the motorcycle and accused Joginder as the person who was sitting on the pillion seat of the motorcycle driven by the accused Narender and had snatched the briefcase from him. PW4 also identified accused Mohd. Shakeel as the person who was driving the second motorcycle and accused Manoj as the person who was sitting on the pillion seat of the motorcycle driven by accused Mohd. Shakeel. PW4 further deposed that accused Manoj had shown him the pistol and had fired the bullet which hit the i10 car and accused Joginder had snatched the briefcase from him. In the last week of May 2010, PW4 was called at Tihar Jail for TIP of accused. After a week or ten days thereafter, PW4 saw accused Manoj, Narender and Mohd. Shakeel at PS Ashok Vihar and FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 9 of 44 identified them.
9. During crossexamination conducted by Ld. APP for State, PW4 deposed that when he got down from the bus, two boys who came on the motorcycle told him "Dekh Kar Chal." PW4 deposed that while the riders of the second motorcycle No. DL4S BH5187 make Pulsar Black tried to run away from the red light, it collided against car No. DL8CS8112 due to which, both the motorcycle riders fell down. The photographs of the spot were taken and IO prepared the site plan on the pointing out of PW4. PW4 further deposed in his crossexamination by Ld. APP for State that a led piece was recovered from the driver seat of the car and the pullanda was sealed with the seal of SB. PW4 deposed that seizure memo of the motorcycle and sealed pullanda Exbt. PW4/B and Exbt. PW4/C bear his signatures at point A respectively. He further deposed that he had forgotten some of the facts because of lapse of time. PW4 identified the deformed led piece as Exbt. P1 and motorcycle bearing no. DL6SV7401 as Ex. P2.
10. During crossexamination by Ld. defence counsel, PW4 deposed that he collected Rs. 20,000/ from Khari Baoli and thereafter boarded bus no. 127 from Fatehpuri for Wazirpur. PW4 further deposed that he carried the briefcase provided by the FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 10 of 44 company for collection purposes. PW4 stated to the police about the fact that Pradeep of Sadar Bazar told him to collect Rs. 20,000/ from Khari Baoli. PW4 denied the suggestion that he had visited Sector6, Rohini on 06052010 at Special Cell Office or that he was shown accused persons there. PW4 further denied that police also disclosed the names of accused persons at Special Cell, Sector6. PW4 also denied that no such incident of robbery happened with him or that nobody snatched bag from him. PW4 further denied the suggestion that he got prepared false case for misappropriating the amount of Rs. 20,000/ belonging to his employer. PW4 denied that he concocted the story of snatching and to make it look true he showed that Rs. 9,500/ belonging to him was also taken away in that incident. PW4 also denied that he identified the accused persons at the instance of police during TIP as he was pressurised by police and under the pressure and instance of police, he falsely stated that bag was snatched by accused Joginder @ Tiger. He also denied that he was tutored by the police prior to making statement in the court. It was further denied by PW4 that he had signed several blank papers in PS Ashok Vihar and Ex. PW4/A is one of them. PW4 deposed in his crossexamination that traffic moves at a very snail pace on the road at Shalimar Bagh crossing FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 11 of 44 upto the red light turning towards Wazirpur Industrial Area. He volunteered that there was no traffic jam at the time of incident. PW4 denied the suggestion that a very large crowd gathered after the incident at the spot. PW4 deposed that a large crowd gathered when the police came.
11. PW2 Priya Ranjan deposed that on 26.02.2010 at about 2.45 pm, he got his i10 car bearing No. DL8C8112 serviced from Hyundai Service Station near All Heavens at Ring Road and after the service of the car, when he reached Ring Road, a black colour Pulsar motorcycle on which two unknown persons were sitting struck on the right side of his car on the gate behind the driver seat and thereafter both the motorcyclists fell down. Thereafter, PW2 also heard a loud sound. PW2 became perplexed and got down from the car. Those boys who had fallen down immediately fled away from the spot after leaving their motorcycle. Public gathered at the spot. Someone from the public told PW2 that there was a hole on the rear glass of his car and suspected that someone had fired bullet on the car. On opening the gate of the car, PW2 noticed a hole on the back side of the head rest of the driver seat. PW2 immediately gave a call at 100 number and after 2025 minutes, police came at the spot. Media people also reached the spot. The FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 12 of 44 car of PW2 was taken to Hyundai Service Station and on search of the car, a led piece was recovered after cutting the cover of the driver seat. PW2 also went to the police station and lodged the FIR and thereafter, he was allowed to leave with his car. During cross examination conducted by Ld. APP for State, PW2 deposed that complete number of his car is DL8CS8112. PW2 identified the deformed lead piece as Ex. P1 which was recovered from his car.
12. PW3 Gaurav Singh Thakur deposed that he is doing a private job. On 25082009, he had gone to Balaji Hospital, Paschim Vihar as his mother was under treatment there. He parked his motorcycle make Pulsar of black colour bearing registration no. DL6SV7401 outside Emergency Ward at around 9:30 /10 pm. PW3 came outside Emergency Ward after two hours and found the motorcycle missing from there. PW3 identified his motorcycle in PS Ashok Vihar in the month of March 2010 after its recovery by the police and he got released the motorcycle in April 2010. PW9 Ms. Vandana, MM proved the application for TIP as Ex. PW9/A and TIP proceedings Ex. PW9/B qua accused Mohd. Shakil wherein witness Vijay Shankar correctly identified the accused Mohd. Shakil. PW9 further proved the TIP proceedings Ex. PW9/C in which witness Vijay Shankar identified accused Narender. PW9 further proved the FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 13 of 44 TIP proceedings Ex. PW9/D in which witness Vijay Shankar correctly identified the accused Manoj. PW9 also proved the TIP proceedings Ex. PW9/E wherein accused Joginder @ Tiger was correctly identified by witness Vijay Shankar. PW9 also proved the application Ex. PW9/F for supply of copy to the IO.
13. PW1 SI Devender Kumar, Duty Ofifcer proved the FIR as Ex. PW1/A. PW5 Ct. Nihal Singh deposed that on 26022010, he was posted at PS Ashok Vihar and on that day, at about 3:50 pm Duty Officer handed over DD no. 24A and 25A to him and he handed over the same to ASI Bhagat Singh. He along with ASI Bhagat Singh reached at Ring Road, near All Heavens Restaurant where they found black colour Pulsar motorcycle bearing no. DL4S BH5187 and car no. DL8CS8112. ASI Bhagat Singh recorded statement of complainant Vijay Shankar and prepared rukka and got the FIR registered through PW5. After registration of FIR, PW5 returned back to the spot and handed over copy of FIR and rukka to SI Satyaprakash who had reached at the spot. The motorcycle was seized vide memo Ex. PW4/B. On the search of car, a bullet led was recovered from the front seat of the car. The led was kept in a matchbox and converted in a cloth pullanda and sealed with the seal of SP and thereafter sealed pullanda was seized vide memo Ex. FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 14 of 44 PW4/C. Both the memos bear signatures of PW5 at point B. Case property was deposited in Malkhana. Statement of PW5 was recorded by the IO at the PS. PW5 identified the deformed led piece as Ex. P1 which was recovered from the car. During cross examination conducted by Ld. Defence counsel, PW5 deposed that he reached at the spot at about 4 pm and statement of complainant Vijay Shankar was recorded in his presence. PW5 denied the suggestion that he did not return back at the spot from the PS. He also denied that he signed the memos in the PS later on or that entire writing work was done while sitting in the PS. PW5 further denied the suggestion that he had not joined the investigation as deposed or that he was deposing falsely.
14. PW14 SI Bhagat Singh narrated almost the same facts as stated by PW5 and recorded statement of complainant Vijay Shankar vide Ex. PW4/A and prepared the rukka on the same vide Ex. PW14/A. SI Satya Prakash reached the spot and conducted further investigation. During crossexamination, PW14 deposed that he received DD no. 24A and 25A at the gate of PS Ashok Vihar. They reached All Heavens Restaurant at about 4 pm. PW14 denied the suggestion that he had not visited the spot or that he had not conducted the investigation fairly and properly. PW14 also denied FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 15 of 44 that he had not recorded the statement of complainant or that the same was manipulated later on. PW8 HC Shamsher Singh, Duty Officer, proved DD no. 24A as Ex. PW8/A. After recording the DD, it was marked to ASI Bhagat Singh for further investigation. He further deposed that on 26022010 at around 3:46 pm, message was received from District Control Room regarding the motorcycle bearing no. DL8S5187 lying at the spot and the boys had run away on other motorcycle. He recorded the said information vide DD no. 25A as Ex. PW8/B.
15. PW15 SI Matadin deposed that on 26.02.2010, he was posted as Incharge Crime Team, N/W Distt., Pitampura, Delhi. On that day, on receipt of information through wireless from NorthWest Control Room regarding a robbery, PW15 along with his team reached at the spot i.e. in front of All Heavens Restaurant, Ring Road, Shalimar Bagh Red Light where IO ASI Bhagat Ram, SI Satya Prakash and other staff were found present. A black colour motorcycle make Bajaj Pulsar bearing No. DL4SBH5187 and one i10 car bearing no. DL8SC8112 were also found there. PW15 inspected both the said vehicles and observed that on the right side back windowpane of the said car, there was a bullet hole. PW15 also inspected the spot and the same was got photographed. After FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 16 of 44 inspection, PW15 prepared his report Ex.PW15/A and handed over the same to IO. Statement of PW15 was recorded by the IO. During crossexamination, PW15 deposed that he had not checked any traces of gun powder at the said windowpane. He volunteered that it can be observed by the Ballistic Expert. PW15 denied the suggestion that he had not visited the spot or that he had prepared the report in a mechanical manner as per the asking of IO. PW16 Ct. Parvinder deposed that on 26.02.2010, he was posted as Photographer in Mobile Crime Team, N/W Distt., Pitampura, Delhi. On that day, on receipt of information through wireless from North West Control Room regarding a robbery by SI Matadin, I/C Crime Team, he along with the team reached at the spot i.e. in front of All Heavens Restaurant, Ring Road, Shalimar Bagh Red Light., where IO ASI Bhagat Ram, SI Satya Prakash and other staff were found present. He inspected the black colour motorcycle make Bajaj Pulsar bearing No. DL4SBH5187 and one I10 car bearing no. DL8SC8112 found there. On instruction of the IO, PW16 took 12 photographs of the seen of occurrence and the aforesaid vehicle from different angles through Digital Camera vide Ex.PW16/A1 to A12. The bullet hole has been shown at pointX on Ex.PW16/A1. The CD Ex. PX of the said photographs was also prepared and FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 17 of 44 handed over to the IO. Statement of PW16 was recorded by the IO. During crossexamination, PW16 deposed that his statement was recorded by the IO and the same was read over and explained to him. PW16 denied the suggestion that he had not visited the spot as deposed by him or that he had not clicked the photograph at the spot.
16. PW20 Inspector Satya Prakash deposed that on 26022010, he was posted at PS Ashok Vihar and was present on the spot near red light, in front of All Heaven Restaurant, Ashok Vihar. He recorded statement of Crime team Incharge SI Matadin and other members of the team. SI Matadin handed over him the Crime Team report Ex. PW15/A. PW20 prepared the site plan Ex. PW20/A. Ct. Nihal handed over him the copy of FIR and original rukka and he wrote FIR number and other particulars on the site plan. PW20 took Pulsar motorcycle into police possession vide Ex. PW4/B wherein he wrote particulars of the motorcycle. PW20 converted the lead found on the seat of the i10 car into pullanda with the seal of SP and seized the same vide memo Ex. PW4/C. PW20 got verified about the motorcycle seized with the help of its engine number and it was found to be of original registration no. DL6SV7401 but the chassis number was tempered. Case property FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 18 of 44 was deposited in the Malkhana. PW20 recorded statements of police official witnesses. On 16032010, PW20 recorded statement of witnesses Gaurav Singh.
17. PW20 further deposed that on 10052010, an information was received in the PS from Special Cell, Northern Range, Sector6, Rohini, Delhi regarding arrest of accused persons involved in the present case. He collected copies of disclosure statement Ex. PW18/A to PW18/D of the accused persons and copy of FIR Ex. PW7/A. On 13052010, PW20 moved an application before concerned court for issuance of production warrant of accused persons and accused persons were produced in the court. With the permission of the court, the accused persons namely Joginder @ Tiger, Manoj, Mohd. Shakeel and Narinder @ Lathiya were interrogated and arrested vide memos Ex. PW12/A, PW12/B, PW20/B and PW20/C. Disclosure statements of accused were recorded vide Ex. PW20/D1 to PW20/D4. On an application moved by PW20, TIP of accused persons were conducted at Tihar Jail by Ld. MM on 29052010 and thereafter obtained copy of TIP proceedings. On 01072010, PW20 recorded statement of police officials of Special Cell. On 03072010, Ct. Suresh brought the case property in sealed condition from the O/o of Special Cell, Lodhi FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 19 of 44 Colony, New Delhi through RC and it was deposited in the Malkhana of PS. On 08072010, the case property was got deposited at FSL Rohini through Ct. Ram Pal for comparison and opinion. On the basis of material collected during the investigation, PW20 prepared the chargesheet and filed in the court through SHO/ACP concerned. The ballistic report was proved as Ex. PW20/E. PW20 identified the accused persons in the court.
18. During crossexamination conducted by Ld. Amicus Curiae, PW20 denied the suggestion that complainant was accompanying him in the court of Ld. MM when the accused person were produced in the court in pursuance of production warrants. He further denied that complainant had accompanied him to the office of Special Cell, Sector6, Rohini prior to their production in the court. PW20 deposed that he took the complainant at Tihar Jail for the purpose of TIP of accused persons. He denied the suggestion that he had shown the photographs to the complainant prior to conducting TIP of accused persons. He also denied that he had not conducted the investigation fairly and properly or that the accused persons have been falsely implicated in the present case. PW20 also denied the suggestion that all the proceedings were conducted while sitting in the PS or that the documents have been manipulated FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 20 of 44 to frame the accused persons.
19. PW7 ASI Pyara Singh deposed that on 06052010, he was posted as an ASI at PS Special Cell, Lodhi Colony and on that day, he was working as DO between 4 pm to 12 midnight. HC Ram Niwas brought a rukka sent by SI Bhushan Kumar on the basis of which, he recorded FIR no. 25/10 u/s 411 IPC and 25/54/59 Arms Act. He proved the FIR as Ex. PW7/A and handed over the copy of FIR and rukka in original to HC Ram Niwas. During cross examination, he denied the suggestion that there is overwriting at point X on Ex. PW7/A. He recorded Kayami in DD register regarding registration of FIR no. 25/10. He deposed that he did not bring the DD register as the same was not summoned for that day. PW7 denied the suggestion that he had not recorded FIR or that the same was ante date and ante time. PW13 SI Bhushan Azad deposed that on 6.5.2010, he was posted as SI at Special Cell, N.R. Sector6, Rohini and on that day, accused persons namely Narender @ Lathia, Mohd. Shakil, Joginder @ Tiger and Manoj Kumar (correctly identified) were arrested in case FIR No. 25/10 u/s. 25 Arms Act and 411 IPC of PS Special Cell. All the accused persons made their respective disclosure statement regarding commission of offence in the present case. The disclosure FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 21 of 44 statement of accused Narender @ Lathia, Mohd. Shakil, Joginder @ Tiger and Manoj Kumar Mark PW13/A to PW13/D were recorded which bear signatures of PW13 at point A. During cross examination by Ld. Amicus Curiae, PW13 denied the suggestion that accused persons were already in wrongful confinement at their office before 06052010 where they were shown to the public witnesses. PW13 further denied that signatures of accused were obtained on various blank papers which were later on converted into respective disclosure statements. PW13 also denied the suggestion that accused persons had not made any disclosure statement or that accused have been falsely implicated in untraced cases on the basis of their false and concocted disclosure statements.
20. PW18 SI Rakesh Kumar deposed that on 06052010, he was assigned investigation of case FIR no. 25/10 u/s 25 Arms Act and 411 IPC, PS Special Cell. Accused Narender @ Lathiya, Joginder @ Tiger, Manoj Kumar and Mohd. Shakeel (correctly identified) were arrested by him and all the accused persons made disclosure statements Ex. PW18/A to PW18/D in that case qua their involvement in the present case and that they had snatched one briefcase from a person near Shalimar Bagh red light, in front of All Heaven Restaurant when that person got down from a bus and FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 22 of 44 while fleeing their Pulsar motorcycle had struck against one car and on which accused Manoj had fired from firearm. The disclosure statements Ex. PW18/A to PW18/D bear signatures of PW18 at point X. Statement of PW18 was recorded by the IO. During cross examination by Ld. Amicus Curiae, PW18 denied the suggestion that aforesaid disclosure statements of accused persons were recorded in their office. PW18 further denied that he had not recorded disclosure statements of accused persons or that accused persons had not given any disclosure statements. PW18 also denied that disclosure statement of accused persons were manipulated to frame them in the present case. PW18 further denied that accused persons were kept in wrongful confinement after removing them from their house and were forced to sign on various blank papers and form including the alleged disclosure statement. PW10 Ct. Devinder deposed on the similar facts as deposed by SI Satya Prakash. PW10 further deposed that motorcycle was stolen by the accused persons from the area of Paschim Vihar. The said bag was found containing Rs. 30,000/ cash. During crossexamination, Ld. Amicus Curiae denied the suggestion that accused persons were not produced in muffled faces as deposed or that complainant of this case was also FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 23 of 44 accompanying us on that day. He also denied that accused Manoj has not made any disclosure statement or that he had not joined the investigation on that day with the IO. PW12 HC Mohan Singh deposed that on 20052010, he was posted at PS Ashok Vihar and he joined the investigation of this case with IO SI Satya Prakash and they all came to Rohini Courts. The arrest memos of accused Joginder and Manoj were prepared vide Ex. PW12/A and PW12/B bearing his signature at point A.
21. PW6 SI Parmod Kumar deposed that on 03062010, he was posted as SI (PSI) in PS Ashok Vihar and on that day, he along with three constables namely Naveen, Satender, and Karan Singh went to court no. 102 of Ld. MM. The production warrant was already issued by the Court against the accused persons and accused Narender, Manoj and Shakeel (correctly identified) were produced in the court. One day PC remand was allowed by the court on the application of PW6 and all three accused were brought to PS. Complainant Vijay Shankar visited the PS to inquire about the case and he identified the accused persons in police custody. PW6 recorded his statement to this effect. On the same day, accused took the police team to the place of occurrence i.e. Ring Road, Shalimar Bagh red light, Tpoint, near All Heavens Restaurant FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 24 of 44 vide pointing out memo Ex. PW6/A was prepared at the instance of accused persons. Accused were brought to PS and put in the lock up. During crossexamination by Ld. Amicus Curiae, PW6 denied the suggestion that pointing out memo Ex. PW6/A was prepared in the PS and signatures of accused persons were obtained on various blank papers in the PS. PW6 sought PC remand of the accused for preparation of pointing out memo of place of occurrence. He further denied the suggestion that he had sought the PC remand just for showing the accused persons to the complainant and for clicking their photographs. PW17 Ct. Suresh Kumar deposed that on 03072010, he was posted at PS Ashok Vihar and on the instructions of IO, he went to Special Cell, Lodhi Colony and brought a sealed packet duly sealed with the seal of VRA FSL, Delhi vide RC no. 87/21/10 which was stated to be containing one country made pistol with one live cartridge. He handed over the said parcel to IO who seized the same vide memo Ex. PW17/A. The said parcel was not tempered in his custody. His statement was recorded by the IO in this regard. PW19 Ct. Ram Pal deposed that on 08072010, he was posted at PS Ashok Vihar and on that day on the instructions of IO SI Satya Prakash, he had collected two sealed parcels, one with the seal of VRA FSL Delhi and another with FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 25 of 44 the seal of SP from MHCM vide RC no. 48/21/10 and he deposited the same along with FSL form at FSL Rohini. He handed back the receiving copy of RC and receipt issued by FSL to MHCM. Till the parcels remained in his possession, it was not tempered with. During crossexamination, PW19 denied the suggestion that he had not deposited the aforesaid exhibits with FSL or that he was deposing falsely.
22. The court has the power to examine the accused u/s 313 Cr.P.C. In Raman Saikia Vs. State of Assam (1997) 2 Crimes 555 (Gau.), it was held that section 313 is an important section and salutary provision which should not be slurred over. In Pudhu Raja & Anr. Vs. State, Rep. by Inspector of Police, 2012 [4] JCC 2751, it was held that it is obligatory on the part of the accused while being examined u/s 313 Cr.P.C. to furnish some explanation with respect to the incriminating circumstances associated with him, and the Court must take note of such explanation even in a case of circumstantial evidence, in order to decide, as to whether or not, the chain of circumstances is complete. When the attention of the accused is drawn to circumstances that inculpate him in relation to the commission of the crime, and he fails to offer an appropriate explanation, or gives a false answer with respect to the same, the FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 26 of 44 said act may be counted as providing a missing link for completing the chain of circumstances. (The Transport Commissioner, AP, Hyderabad & Anr. Vs. S. Sardar Ali & Ors, AIR 1983 SC 1225; State of Maharashtra Vs. Suresh, 2000 (1) JCC (SC) 93: (2000) 1 SCC 471; and Musheer Khan Vs. State of Madhya Pradesh, 2010 (3) JCC 1648: (2010) 2 SCC 748). In the present case, the accused persons, in their statements u/s 313 Cr.P.C., have merely denied all the incriminating evidence. Whereas, the Prosecution has satisfactorily proved the case of robbery by all the accused persons and use of country made pistol by accused Manoj.
23. The accused Manoj examined Bhrighu Nath Singh as DW1 who stated that accused Manoj is known to him for the last 15 years as he is residing in his neighbourhood. DW1 even did not th th remember whether it was 6 or 7 May, 2010, he noticed that 56 persons in civil dress were holding accused Manoj Kumar and taking him away. Later, he came to know that accused Manoj has been implicated in a criminal case. It is strange that DW1 was present at the time of taking away of accused Manoj by 56 persons and he neither resisted them being the neighbour nor informed to any other neighbours about such untoward act seen by DW1. Moreover, he did not even complain about this incident to any police FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 27 of 44 authority except saying that he along with several other persons of locality and friend went to local PS Inderpuri. DW1, in his cross examination, admitted that he did not make any complaint to any police official of any rank till date. And even, he did not file any complaint before any court of law. During crossexamination, DW1 stated that accused Manoj treat and call DW1 as his elder brother and he also reciprocate as his real brother. Therefore, DW1 is not a summoned witness and has come to depose in the court upon the request of accused Manoj who requested him to depose in his favour. DW1 in his crossexamination, admitted that he has come to know about lodging of accused Manoj in the jail at the behest of police. DW1 also stated in his crossexamination that he want accused Manoj to be acquitted in this case and for this reason, he has deposed in the court.
24. Ranjit has been examined as DW2 by the accused Joginder who also stated that he know the accused Joginder since his childhood as his father is his friend. DW2 is running a grocery shop in the area of Inderpuri and accused Joginder is working as a property dealer in the area. During crossexamination, DW2 stated that accused Joginder treat and call him as Chacha and he also reciprocate him as his real nephew. He is also not a summoned FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 28 of 44 witness and has come to depose in the court upon the request of accused Joginder in his favour. DW2 also stated that on 06052010 at about 9:10 am, 78 persons in civil dress came to the house of accused Joginder and out of them two were having pistols with them. They took away accused Joginder and he was beaten up also. When the accused was not freed, mother of accused Joginder went to PS and made complaints against the police officials. Whereas, DW2 stated in his crossexamination that aforesaid way of taking Joginder was a serious ground but despite that, he did not make call at 100 number. DW2 stated that he knows the hierarchy of the police officials but admitted that he did not make any complaint to any police official of any rank till date and even he also did not file any complaint before any court of law. DW2 also admitted that he want Joginder to be acquitted in this case and for this reason, he has deposed in the court. DW3 Imran Beg examined on behalf of accused Shakil and DW4 Ravi examined on behalf of accused Narender. The testimony of DW3 and DW4 is almost on similar footings as the testimony of DW1 and DW2. By the aforesaid statements, it reveals that DW1 to DW4 are the interested witnesses who came to depose before the court at the instance of accused persons. Therefore, DW1 to DW4 have not FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 29 of 44 been able to rescue the case of the accused persons.
25. In view of the above testimony of police officials, the Ld. Amicus Curiae argued that the police has not done the investigation fairly and the investigation is defective. Whereas, Ld. APP for State argued that if there is a defective investigation, the accused persons cannot get the benefit of it. It is pertinent to mention here that even if the investigation is defective or faulty, the accused persons cannot be acquitted solely on account of defective or faulty investigation. In State of UP Vs. Hari Mohan and others., AIR 2001 SC 142, it was held that if the investigation is defective in nature, it cannot be made a basis for acquitting accused. In Dhanaj Singh alias Shera and others. Vs. State of Punjab, AIR 2004 SC 1920, the appellants had been convicted for offence punishable u/s 302 r/w section 34 IPC. It was held that accused cannot be acquitted solely on account of defective investigation. To do so, would tantamount to playing into the hands of investigating officer if investigation is designedly defective.
26. In the present case, the Ld. Amicus Curiae argued that there are contradictions in the testimonies of the police officials who conducted the investigation, therefore, their testimonies cannot be believed. Whereas, the Ld. APP for the State argued that the FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 30 of 44 contradictions in the testimonies of police official witnesses as well as the other witnesses are minor which do not go to the root of the case. I have also found that there are some contradictions in the testimony of the aforesaid PWs yet these contradictions are minor contradictions and do not go to the root or core of this case. In this context, a reliance is placed upon the judgement reported as State of UP Vs. Krishna Master & ors. 2010 Cri. L. J. 3889, it was held by the Hon'ble Supreme Court that minor discrepancies, not touching core of case, cannot be ground for rejection of evidence in entirety. Ld. Amicus Curiae argued that no public person was joined in the investigation, therefore, in the absence of public witnesses during investigation, the investigation conducted by the police cannot be believed as trustworthy. Whereas, the Ld. APP for the State argued that generally public persons do not come forward to join investigation in such criminal cases. I am of the view that as far as public witnesses joining the investigation are concerned, the public persons are reluctant to become witnesses of criminal trial. Therefore, law is not that testimony of police officers apart from the eyewitness is absolutely untrustworthy or that it can never be acted upon. It has been held in a catena of judgements of the Hon'ble Supreme Court and Hon'ble High Court of Delhi that merely because FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 31 of 44 public witnesses are not joined in a case, the Prosecution case cannot be thrown out. In such circumstances, no benefit can be given to the accused for nonjoining of independent public witnesses. In this context, a reliance can be had upon the judgements reported as State of UP Vs. Anil Singh AIR 1988 SC 1998; Ambika Prasad & Anr. Vs. State 2002 (2) Crimes 63 (SC); Dr. Krishna Pal & Anr. Vs. State of UP 1996 (7) SCC 194.
27. So far as the legal position u/s 34 IPC is concerned whether the accused persons had common intention and participated in the commission of the offence as charged in this case. In this context, I would place a reliance upon the judgement reported in the case of Jai Bhagwan Vs. State of Haryana, AIR 1999 SC 1083, it was held that to apply section 34, apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, section 34 cannot be invoked. In State of Orissa Vs. Arjun Das, AIR 1999 SC 3229, it was held that the FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 32 of 44 burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert. In Hari Om Vs. State of Uttar Pradesh, (1993) 1 Crimes 294 (SC), it was held that in order to bring a case under section 34 it is not necessary that there must be a prior conspiracy or premeditation, the common intention can be formed in the course of occurrence. In Ramashish Yadav Vs. State of Bihar, 1999 (8) SCC 555, it was held that it requires a prearranged plan and presupposes prior concert therefore there must be prior meeting of mind. It can also be developed at the spur of moment but there must be pre arrangement or premeditated concert. Therefore, in the present case, it has been proved on record by evidence that there was pre arrangement and premeditated concert of the accused persons and they had shared the common intention with each other for committing robbery since it was a planned robbery.
28. It has been proved on record by the Prosecution that PW4 complainant was sent by his owner to Sadar Bazar at Metal Alloys for collection of money and from there he was sent to Katra Neel, Khari Baoli where from he collected Rs. 20,000/ and put them in a briefcase along with his personal money amounting to Rs. FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 33 of 44 9,500 9,600/. PW4 boarded a private bus from Fatehpuri at 3:20 pm and at about 3.10 pm, he got down from the bus at All Heavens red light. The accused Manoj shown the pistol to PW4 and the other accused Joginder snatched the briefcase from him. After snatching the briefcase of complainant, when accused were fleeing from the spot, one motorcycle collided with i10 car and two accused fell down along with motorcycle. The accused Manoj fired from country made pistol and the bullet hit the rear glass of i10 car. Thereafter, they also fled away from the spot after leaving the motorcycle there. Police came at the spot and recorded statement of PW1 vide Ex. PW4/A. PW4 identified all the accused persons correctly. PW4 identified all the accused persons in the TIP conducted at Tihar Jail. PW4 identified the deformed lead piece as Ex. P1 and motorcycle bearing no. DL6SV7401 as Ex. P2. PW4 denied that he had visited sector6, Rohini on 06052010 at Special Cell office or that he was shown accused persons there. PW4 also denied that police also disclosed the names of accused persons at Special Cell, Sector6. It is reflected from the testimony of PW4 and the recorded available on file that all the accused persons after committing robbery and using the country made pistol by accused Manoj fled away from the spot. It is only after the accused were arrested in FIR no. 25/10 u/s FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 34 of 44 25/54/59 Arms Act and 411 IPC by Special Cell, Delhi, they disclosed for committing the offence in the present case. Therefore, police produced the accused persons with muffled faces from J/C and requested Sh. Satish Kumar, Ld. MM, Rohini Court, Delhi on 20052010 for interrogation/ arrest which was allowed. On the same day i.e. 20052010, other application was also moved by police which was also allowed by the said Ld. MM and date was fixed for TIP proceedings for 29052010. PW9 Ld. MM recorded and proved the TIP proceedings. During TIP, PW4 identified all the accused persons. In this regard, I would place a reliance upon the judgement reported in the case of Gulshan Vs. State through Govt. of NCT of Delhi, other Crl. Appeal nos. 1069/2006 and 425/2008 (2010 [1] JCC 562), it was held by the Hon'ble High Court of Delhi that identification in a court is substantive piece of evidence. TIP only corroborates that sworn testimony of witnesses in court.
29. PW2, owner of i10 car bearing no. DL8CS8112 also confirmed that on 26022010, when he was on his way near All Heavens at Ring Road, a black colour Pulsar motorcycle struck with his car and both the motorcyclist fell down and thereafter, they fled away from the spot after leaving their motorcycle. PW2 noticed a hole on the backside of the headrest of the driver seat. PW2 FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 35 of 44 immediately gave a call at 100 number and after 2025 minutes, police came at the spot. PW2 further confirmed that on search of car, a lead piece was recovered after cutting the cover of the driver seat. PW2 also identified the deformed lead piece as Ex. P1 which was recovered from his car. Ld. Amicus Curiae for the accused persons argued that PW2 is a hostile witness since he did not identify the accused persons. Further, PW2 is totally silent about the alleged robbery committed by the accused persons. The Ld. APP argued that PW2 is not the hostile witness, however, assuming it to be true but not admitted that PW2 is a hostile witness, yet the testimony of PW2 cannot be discarded in totality but it may be considered with other corroborative evidence. In this regard, I am of the considered view that the evidence of hostile witness should not be discarded in totality. In this context, a reliance can be had upon the judgement reported in the case of Khujji alias Surendra Tiwari Vs. State of MP, 1991 CRI.L.J 2653 (1), it was held that evidence of hostile witnesses cannot be treated as effaced or washed off the record altogether. Part of his evidence which is otherwise acceptable can be acted upon. In Paramjit Singh @ Pamma Vs. State of Uttarakhand, AIR 2011 SC 200, it was held that evidence of hostile witness need not be rejected en bloc but should be FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 36 of 44 considered with caution and court should look for corroboration.
30. Further, even if, only because one of the prosecution witness has not supported the case of the prosecution, it would not be sufficient to discard the trustworthy and reliable testimony of the victim. In taking this view, I am supported with the judgement reported in the case of Salim Khan Vs. State of NCT of Delhi, 2010 (1) JCC 704. Moreover, it is not the number of witnesses but the quality of evidence for determining if the accused is convicted or acquitted. In this regard, a reliance can be had upon the judgement reported in the case of State of Uttar Pradesh Vs. Kishan Pal, 2008 (8) JT 650: 2008 (11) SCALE 233, it was held that it is the quality of the evidence and not the quantity of evidence which is required to be judged by the court to place credence on the statement. In Raja Vs. State (1997) 2 Crimes 175 (Del.), it was held that it is wellknown principle of law that reliance can be based on the solitary statement of a witness if the court comes to a conclusion that the said statement is the true and correct version of the case of the Prosecution. In the present case, the testimony of PW4 has not only inspired the confidence but also trustworthy and corroborated with the testimonies of other PWs. In the case of Kartik Malhar Vs. State of Bihar 1996 (1) RCR (Crl.) 308, the FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 37 of 44 Hon'ble Supreme Court held that conviction can be based on the testimony of a single witness provided his credibility is not shaken and court finds him a truthful witness. It has been further held that Section 134 categorically lays down that no particular number of witnesses are required to prove a fact. The evidence has to be weighed and not counted.
31. PW3 identified his missing motorcycle in the PS Ashok Vihar after its recovery by police. PW5 identified the deformed lead piece as Ex P1 which was recovered from the car. During cross examination, PW5 stated that statement of complainant was recorded in his presence. PW14 also stated that he recorded the statement of PW4 / complainant vide Ex. PW4/A and prepared the rukka Ex. PW14/A. PW8 DO proved DD no. 24A as Ex. PW8/A and also DD no. 25A as Ex. PW8/B. PW15 SI Matadin, Incharge Crime Team, NW, Distt. Pitampura, Delhi also found in front of All Heavens Restaurant, Ring Road, red light, a black colour motorcycle make Bajaj Pulsar bearing no. DL4SBH5187 and one i10 car bearing no. DL8SC8112. PW15 inspected both the said vehicles and observed that on the right side back windowpane of the said car, there was a bullet hole. PW15 SI Matadin and PW16 photographer in the mobile crime team, NW District, Pitampura, Delhi also inspected the spot FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 38 of 44 and the same was got photographed through PW16 on the instruction of the IO. PW16 took 12 photographs of the scene of occurrence and the aforesaid vehicles from different angles through digital camera Ex. PW16/A1 to PW16/A12. A bullet hole was shown at point X on Ex. PW16/A1. The CD Ex PX of the said photographs was also prepared. PW7 proved the FIR no. 25/10 u/s 411 IPC and 25/54/59 Arms Act and also proved the FIR as Ex. PW7/A. He also proved Kayami DD register regarding registration of FIR no. 25/10. PW6 proved on record that on 03062010, accused took the police team to the place of occurrence i.e. Ring Road, Shalimar Bagh T point, near All Heavens Restaurant vide pointing out memo Ex. PW6/A which was prepared at the instance of accused persons.
32. PW17 posted at PS Ashok Vihar and on the instructions of IO went to Special Cell, Lodhi Colony and brought a sealed packet duly sealed with the seal of VRA, FSL, Delhi vide RC no. 87/21/10 which was stated to be containing one country made pistol with one live cartridge. Seizure memo of the same was proved as Ex. PW17/A. PW19 also proved that he collected two sealed parcels one with the seal of VRA, FSL Delhi and another with the seal of SP from MHCM vide RC no. 48/21/10 and he deposited the same with FSL form at FSL Rohini. FSL report is per se admissible FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 39 of 44 in evidence u/s 293 Cr.P.C. which has been proved by PW20 as Ex. PW20/E. Perusal of FSL report reveals that two sealed parcels, with intact seals, tallied with the specimen seals were received in the FSL. Description of articles contained in the parcels showed one deformed bullet marked Ex. "EBI". One country made pistol . 315'' bore and one 8mm/.315'' cartridge case already marked Ex.
"F2" and "A2" in case FIR no. 25/10, PS Special Cell u/s 25 Arms Act and 411 IPC (FSL case no. 2010/F2018). The FSL gave the opinion that deformed bullet marked Ex. "EB1" corresponds to the bullet of .32'' cartridge and had been discharged through a standard .32'' caliber firearm and the exhibits "EB1" is a part of ammunition as defined in the Arms Act, 1959. The prosecution has proved on record that the pistol which is deadly weapon to bring charge u/s 397 IPC has not only been recovered but produced in the course of trial of this case. Further, for the purpose of conviction u/s 397 IPC, it is not necessary ingredient that the victim should have been inflicted with an injury. An attempt to cause injury would suffice. In taking this view, I am again supported with the judgement reported in the case of Gulshan Vs. State through Govt. of NCT of Delhi (Supra). Therefore, the prosecution has proved on record that the accused persons have committed robbery and the accused FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 40 of 44 Manoj while committing the robbery used country made pistol which is a deadly weapon. The aforesaid judgements relied upon by the Ld. Amicus Curiae are not applicable to the facts and circumstances of the present case.
33. In view of the my aforesaid discussion, I am of the considered opinion that Prosecution has been able to prove its case against the accused persons beyond reasonable doubt. I, therefore, hold all the accused namely Narender @ Lathiya, Mohd. Shakeel, Joginder @ Tiger and Manoj guilty and convict them u/s 392/34 IPC. Accused Manoj is also convicted for the offence u/s 397 IPC and u/s 27/54/59 Arms Act.
(YASHWANT KUMAR) ADDL. SESSIONS JUDGE:NW03:ROHINI:DELHI.
ANNOUNCED IN THE OPEN COURT on 25022013 FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 41 of 44 IN THE COURT OF SH. YASHWANT KUMAR: ADDL SESSIONS JUDGE03: NW :
ROHINI : DELHI SESSIONS CASE NO. 30/10 FIR No. 47/10 P.S. Ashok Vihar U/S: 392/397/34 IPC & 27/54/59 Arms Act STATE Versus (1) NARENDER @ LATHIYA s/o Sh. Ghasiram r/o E223, JJ Colony, Indra Puri, Delhi (2) MOHD. SHAKIL s/o Sh. Mohd. Salamuddin r/o 272, DDA Flat, Ranjeet Nagar, Delhi (3) JOGINDER @ TIGER s/o Sh. Manjeet r/o D342, JJ Colony, Indra Puri, Delhi (4) MANOJ s/o Sh. Mahender Singh r/o D544, JJ Colony, Indra Puri, Delhi FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 42 of 44 Order on Sentence
1. Arguments have been heard from Ld. Amicus Curiae as also from Ld. Sub. APP for State. Ld. Amicus Curiae has argued that convict Joginder @ Tiger is aged 32 years old and is a heart patient. He was working as property dealer. Copies of medical record also filed. He is having four minor children i.e. two daughters and two sons. His wife has recently been operated and copies of medical treatment has been filed.
There is no previous conviction against him. On behalf of convict Manoj, it has been argued that he is 40 years old. His wife has expired and haing one minor daughter. He is conductor by profession. He is the sole bread winner of his family. There is no previous conviction against him. On behalf of convict Shakil, it has been argued that he is 35 years old and having one minor child of three months. He was doing embroidery. He is first time offender. On behalf of convict Narender @ Lathiya, it has been argued that he is 39 years old and having two minor children. He is driver by profession. He is having clean antecedents. The convicts have already spent 1½ years in custody. Prayer has been made for taking a lenient view and to release the convicts on probation.
2. The Ld. APP for the State has argued that convicts be given maximum punishment as per law.
3. Nowadays, such crimes are being committed frequently which are required to be curbed, therefore, deterrent punishment is called for FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 43 of 44 therefore, no leniency is required to be taken in such matters. Considering the totality of facts and circumstances of the case, all convicts are sentenced with four years Rigorous Imprisonment u/s 392/34 IPC along with a fine of Rs. 5,000/ each, in default of payment of which they shall undergo six months SI. Convict Manoj is also sentenced with seven years Rigorous Imprisonment u/s 397 IPC with fine of Rs. 7,000/, in default of payment of which he shall undergo one year SI. Convict Manoj is further sentenced with three years Rigorous Imprisonment u/s 27/54/59 Arms Act with fine of Rs. 2,000/, in default of payment of which he shall undergo 2 months SI. All the sentences shall run concurrently. Convicts shall get benefit of section 428 Cr.P.C. for the period during which they remained in custody during investigation/ trial. Copy of judgement and order on sentence be given to the convicts free of cost. File be consigned to Record Room.
(YASHWANT KUMAR) ASJ/NW03/ROHINI/DELHI ANNOUNCED IN OPEN COURT ON 28022013 FIR No. 47/10; State Vs. Narender @ Lathiya Etc. Page 44 of 44