Delhi District Court
State vs Shahjad on 29 March, 2011
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IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS
ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI
S.C. No. 48/11
FIR No. 819/04
P.S. Ashok Vihar
U/s 392/397/34 IPC
& 25/54/59 Arms Act
State Versus Shahjad
S/o Mohd. Tayap
R/o Jhuggie No. N17B/194,
Patharwala Bagh, JJ Colony,
Wazirpur, Delhi.
Date of Receipt : 08.03.2011
Date of arguments : 28.03.2011
Date of Decision : 29.03.2011
JUDGMENT :
1. The accused Shahjad has been chargesheeted by Police Station Ashok Vihar for commission of offences under Sections 392/397/34 IPC and 25/54/59 Arms Act.
2. Case of the prosecution, briefly stated is that on 18.11.2004, Smt. Shashi along with her daughter Ms. Shalu were going to Kanhiya Nagar Market on foot. When they reached on the bridge of Haryana Canal at about 3.15 pm, they noticed that three boys were already sitting there. They all started FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 1 of 8 2 abusing them and also tried to snatch the chain of Smt. Shashi. On this, Smt. Shashi and Shalu turned around and started running, but three boys surrounded them. One of them pointed out a knife on the stomach of Smt. Shashi and other boy threatened her daughter with the knife and third one removed the chain and ear rings of Smt. Shashi. Thereafter, they ran away. Smt. Shashi and Shalu chased them, police also arrived and one accused Shahjad was apprehended. Other two succeeded in fleeing. From the possession of accused Shahjad, one knife was recovered. Later on, other two accused persons were also arrested. After completion of the investigation, chargesheet against the accused persons was filed.
3. Learned Metropolitan Magistrate after complying with the provisions of Section 207 Cr.P.C, committed the case to the court of Sessions as the offence punishable u/s 397 IPC is exclusively triable by the Sessions Court.
4. All the three accused were charges by my learned Predecessor for the offences punishable U/s 392 read with Section 34 IPC. Accused Shahjad was also charged for the offences punishable u/s 397 IPC and 25/27 of Arms Act. The charges were read over and explained to the accused, to which they pleaded not guilty and claimed trial. Thereafter, the case was fixed for prosecution evidence.
5. During trial, accused Shahjad absented himself and was declared proclaimed FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 2 of 8 3 offender on 24.02.2010 by my learned Predecessor. Trial continued against the other two accused namely Sonu and Channa Swami.
6. After the trial, accused Sonu and Channa Swami were acquitted by my learned Predecessor vide judgment dated 03.04.2010.
7. Later on, accused Shahjad was apprehended and the file was called from the record room and perused.
8. As six witnesses had already been examined in the presence of accused Shahjad, when he was appearing before the court and even PW7 was examined in chief before he absented himself and thereafter, he was arrested, only PW7 was recalled for crossexamination. After cross examination of PW7, prosecution evidence was closed.
9. Statement of the accused was recorded u/s 313 Cr.P.C, wherein he pleaded innocence and denied the entire evidence. He stated that he is innocent and has been falsely implicated in this case after obtaining his signatures on blank papers. Nothing was recovered from his possession. He was lifted from his house and thereafter, falsely implicated in this case. He did not wish to lead evidence in his defence and thereafter, case was fixed for final arguments.
FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 3 of 8 4
10. I have heard ld. Addl. PP for the State, Ms. Sadhana Bhatia, ld. Amicus curie for the accused and perused the record.
11. Ld. Addl. PP submitted that victims in this case were examined as PW5 and PW6 and both of them have fully supported the prosecution case. They stated that on 18.11.2004, they were going on foot for marketing and when they reached on the bridge of Haryana canal, they found accused persons sitting there. They tried to snatch the chain, on which the victims turned around, but the accused persons surrounded them, pointed a knife to them and snatched the chain and ear rings from PW5. Accused Shahjad had been correctly identified by both of the witnesses and according to them, accused Shahjad was apprehended by the police at the spot. From the possession of accused Shahjad, a knife was recovered and the witnesses identified the knife also, which was proved as Ex. P1, which was pointed towards them.
12. Ld. Addl. PP submitted that the fact that accused Shahjad was apprehended on the spot, is also supported by the IO PW7, who stated that he along with Ct. Madan Lal was patrolling in the area, when they saw three persons running and they were chased by a lady and a girl and one of them was apprehended. PW7 also identified accused Shahjad as the person, who was apprehended on the spot. Ld. Addl. PP submitted that witness PW5 has also stated that it was accused Shahjad, who pointed the knife at her. FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 4 of 8 5 Ld. Addl. PP submitted that keeping in view the testimonies of PW5 and PW6, wherein both have not only fully supported each other, but also supported and proved the prosecution case, which was corroborated by the IO examined as PW7. It is clear that prosecution has proved and established that accused Shahjad with his other accused robbed PW5 of a chain and ear ring and while robbing her, he also used a knife. Ld. Addl. PP submitted that as prosecution has discharged its onus, accused be held guilty and convicted.
13. Ms. Sadhana Bhatia, ld. Amicus curie submitted that in this case, trial against the other two accused persons i.e. Channaswamy and Sonu continued in the absence of the present accused and all the witnesses except IO had been examined, crossexamined and discharged. Examinationinchief of PW7 was also completed in the presence of accused Shahjad. That court after hearing the arguments and appreciating the evidence, held that PW5 and PW6 are not reliable and acquitted other two accused. Ld. Counsel further submitted that evidence still remains the same and as one of the court had already held that witnesses are not reliable, benefit of the same be given to Shahjad and he be acquitted.
14. Learned defence counsel further submitted that even otherwise, PW5 and PW6 had not supported the prosecution case at all. There are many contradictions in their testimonies and also in the story. PW5 in her FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 5 of 8 6 statement to the police stated that accused pointed the knife towards her stomach, whereas when she appeared in the witness box, she stated that knife was pointed towards her neck and not at her stomach. PW5 also stated that accused persons pointed the knife to her daughter PW6, but PW 6 is silent about this fact. PW5 stated that she had not given the approximate age of the accused persons, whereas in the statement Ex. PW 5/A, approximate age is mentioned. According to the story of the prosecution, immediately after the incident, they chased the accused persons and police apprehended Shahjad. PW7 also stated on the same lines, but PW5 and PW6 did not support this part of the story of the prosecution. According to them, after the incident PCR van brought the accused there and it was not PW7, who apprehended the accused and brought him there. Witness stated that accused Shahjad was not apprehended in her presence. Ld. Defence counsel submitted that keeping in view all these contradictions, benefit of the same be given to the accused and he be acquitted.
15. After hearing the arguments and going through the record, I found that no doubt, there are certain contradictions in the testimonies of PW5 and PW6 and story of the prosecution. According to the story, immediately after the incident, when the accused persons were fleeing and within the sight of PW 5 and PW6, accused Shehjad was apprehended by PW7 with the help of HC Madan Lal, but according to PW5 and PW6, accused was apprehended by PCR van official and that also not within their sight. According to them, FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 6 of 8 7 after some time of incident, accused was brought there in PCR van. There is also contradiction as to whether the knife was pointed on the stomach or on the neck or whether the age of the accused was given or not. In my opinion, so far as the contradiction, whether the accused was apprehended by PW7 or PCR is concerned, that is not material as for a layman, there is no difference between the police deputed at the the police station or PCR van. For a layman, police is police, whether from police station or from PCR.
16. So far as, the pointing the knife is concerned, PW5 in her statement to the police stated that knife was pointed on her stomach, whereas in the court she stated that it was pointed on her neck and she also stated that her daughter was threatened with knife, whereas PW6 does not say that she was also threatened with knife. In any case, PW5 as well as PW6, both stated that accused threatened PW5 with knife and it is immaterial that it was pointed towards neck or stomach and main issue is whether, the knife was used or not and on this point, both these witnesses are consistent. Therefore, in my opinion, this contradiction does not affect the merit of the case.
17. The arguments that whether the knife was shown to PW6 or not, does not make any difference in the offence and same is also not a major contradiction, which can demolish the entire case, particularly when, the witnesses were examined after a gap of five years from the incident. Human memory is bound to fade by passage of time and the minor contradictions FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 7 of 8 8 are bound to occur, which are natural and same had happened in this case also. On the basis of these minor contradictions, in my opinion, benefit cannot be given to the accused, particularly when, both the witnesses had identified the accused as main culprit and also identified the knife used by him in the commission of offence and they also explained the role played by each of accused.
18. In view of the above discussion, I am of the considered opinion that prosecution has fully established and proved that accused Shahjad along with his coaccused robbed PW5 of her gold chain and ear rings and in the commission of robbery, he also used a knife. I, therefore, hold the accused Shahjad guilty u/s 392/397 IPC and u/s 25/27 Arms Act.
Announced in open Court
on today i.e. 29.03.2011 (V.K. BANSAL)
ADDL. SESSION JUDGE : ROHINI : DELHI
FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 8 of 8
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IN THE COURT OF SH. V.K. BANSAL : SPECIAL JUDGE : NDPS ADDL. SESSIONS JUDGE : ROHINI COURTS : DELHI S.C. No. 48/11 FIR No. 819/04 P.S. Ashok Vihar U/s 392/397/34 IPC & 25/54/59 Arms Act State Versus Shahjad S/o Mohd. Tayap ORDER ON SENTENCE : 29.03.2011 Present : Ld. Addl. PP for the State.
Convict produced from J.C, with counsel Ms. Sadhana Bhatia, Adv. Arguments heard on the point of sentence. Record perused. Learned counsel for the convict submitted that convict is of young age and he remained in custody for about 14/15 months during trial. He is not a previous convict having no previous involvement. He is having old aged widow mother, two married sisters, one unmarried sister, one younger brother, wife and three minor children and he is the sole bread earner of the family. It is prayed that keeping in view all these facts, a lenient view may kindly be taken.
Ld. Addl.PP submitted that convict robbed an innocent lady of her gold chain and ear rings and he also used knife in the commission of robbery. He FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 9 of 8 10 further submitted that such type of incidents are increasing day by day in our society and as such same may be dealt with strictly and it is prayed that no leniency be shown and the severest punishment be awarded to him.
Keeping in view the above said submissions and the fact that convict is having family to support, I sentence convict Shahjad to three years rigorous imprisonment along with fine of Rs. 1,000/ (Rs. One thousand only) for the offence punishable u/s 392/34 IPC, in default of payment of fine, to further undergo R.I for one month.
Convict Shahjad is further sentenced to seven years rigorous imprisonment along with fine of Rs. 1,000/ (Rs. One thousand only) for the offence punishable u/s 397 IPC, in default of payment of fine, to further undergo R.I for one month.
Convict Shahjad is further sentenced to one year rigorous imprisonment along with fine of Rs. 1,000/ (Rs. One thousand only) for the offence punishable u/s 25/27 Arms Act, in default of payment of fine, to further undergo R.I for one month.
All the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C is given to him.
Case property be destroyed after the period for filing the appeal is over or no appeal is preferred. Copy of judgment and copy of order on sentence be given to the convict free of cost.
FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 10 of 8 11
File be consigned to Record Room.
(V.K. BANSAL) ADDL. SESSION JUDGE :
ROHINI : DELHI : 29.03.2011 FIR No. 819/04 : PS Ashok Vihar : State vs. Shahjad : Page 11 of 8