Delhi District Court
State vs Sunny on 11 August, 2010
IN THE COURT OF SH. TARUN YOGESH : MM(3)N : DELHI.
STATE Vs SUNNY
FIR NO.133/08
PS : Sadar Bazar.
U/s : 379/382/411 IPC.
JUDGMENT
1. Sr. no. of the case : 103/02
2. Date of Commission : 29.05.08.
of Offence
3. Name of the complainant : Gulam Nabi S/o Ali Husain, R/o H.No. K-
1417, Chote Lal Goram, Netaji Ka Makan, Motia
Khan, Sadar Bazar, Delhi
4. Name of the accused : Sunny S/o Pikesh R/o H.No. 10993, Gali
Pipalwali, Motia Khan, Sadar Bazar, Delhi.
5. Offence complained of : U/s 379/382/411 IPC.
6. Plea of accused : Pleaded not guilty.
7. Final order : Convicted u/s 382 and 411 IPC
8. Date of such order : 11.08.10.
BRIEF REASONS FOR SUCH DECISION :
1. Accused Sunny is facing trial for offence under Section 379/382/411 IPC upon allegation that on 29.05.08 at about 2:30 pm at Idgah Road, Near Bakra Mandi Gate, Tea Stall, Delhi within the jurisdiction of PS Sadar Bazar, he removed Rs. 1000/- from the pant of complainant Gulam Nabi after having made preparation for causing hurt in order to commit theft of the cash amount and after committing theft tried to run away but was caught and Rs. 1000/- being stolen cash amount belonging to Gulam Nabi was recovered from his possession and thereby committed the above said offences.
2. FIR was registered at PS Subzi Mandi on 29.05.08 at 15:40 hrs upon DD No. 22A, and after usual investigation carried out by the police, charge sheet/challan u/s 173(2) Cr.PC was filed in the court on 25.07.08. Cognizance of the offence was taken on the same day and after compliance of Section 207 Cr. PC, formal charge was duly framed under Section 379/382/411 IPC against the accused on 05.08.08 to which the accused pleaded not guilty and claimed trial.
3. Prosecution case in brief is that on 29.05.08, HC Jagdish Chander along with Ct. Rajinder was on patrolling duty and at about 2:30 pm near Idgah Road, Bakra Mandi they heard alarm "PAKRO PAKRO" and saw accused Sunny coming towards them. Accused was apprehended and from his left hand one thousand rupees in the denomination of Rs. 100/- each and from his right hand a blade was recovered. The stolen money and blade were seized and statement of complainant Gulam Nabi was recorded which is Ex PW 2/B. Since, offence u/s 382 IPC was found to have been committed by accused, so, the recovered money and blade were kept and pulanda was prepared which was sealed with seal of JC. Tehrir was prepared and sent to PS for registration of FIR. After registration of FIR, HC Jagdish Chander prepared the site plan and recorded statements u/s 161 Cr. PC. As the stolen money had been recovered from accused, so, offence u/s 411 IPC was added and after conclusion of investigation, charge sheet u/s 173 (2) Cr. PC for offences u/s 379/382/411 IPC was prepared and filed in the court and accused was sent for trial.
4. To substantiate its allegations against the accused and prove his guilt for the offence u/s 379/382/411 IPC, prosecution has summoned and examined six witnesses:
5. PW 1 HC Jagat Singh has deposed that on 29.05.05 he was posted as D.O at PS Sadar Bazar from 9 am to 5 pm and at about 3:40 pm Ct. Rajinder brought rukka sent by HC Jagdish, upon which he registered case u/s 382 IPC. Computer copy of FIR bearing his signature at point A has been proved as Ex PW 1/A and in his cross examination by defence counsel he has denied the suggestion to have not received any rukka.
6. PW 2 Ct. Rajinder has deposed that on 29.05.08, he was posted at PS Sadar Bazar and at about 2:30 pm he along with HC Jagdish reached Idgah Road, Bakra Mandi Gate where the heard the noise of "chor chor". They overpowered accused Sunny with the help of complainant and recovered Rs. 1000/- in the denomination of Rs. 100/- each from his left hand and a surgical blade from his right hand. HC Jagdish prepared the pulanda by keeping it in match box and sealing it with the seal of JC. PW has proved the recovery of currency notes and surgical blade as Ex PW 2/A bearing his signature as point A and the statement of complainant recorded by HC Jagdish as Ex PW 2/B, upon which rukka was prepared which he took to PS for registration of FIR. He has also proved the site plan prepared by IO at the instance of complainant as Ex PW 2/C bearing his signature at point A and the arrest and personal search memo of accused as Ex PW2/D and Ex PW 2/E respectively. PW 2 has also identified case property ie. Rs.1025 taken out of pulanda bearing the seal of JC as Ex P1, which he claimed to have been recovered from the possession of accused and has been discharged without being cross examined by the accused.
7. PW 3 Gulam Nabi, complainant has deposed that in the year 2008 at about 2:30 pm when he was coming at tea stall to take tea and was paying the tea Vendor, then accused Sunny, duly identified by him before the court came behind and took out Rs. 1000/- in the denomination of Rs 100/- each from the right pocket of his pant and when he tried to retrieve his money, then accused Sunny showed him blade and threatened him and tried to run away. He chased the accused and raised alarm upon which police coming from opposite side overpowered the accused with his help and recovered the currency notes and blades form possession of accused Sunny. Complainant has proved his statement recorded by police as Ex PW 2/B bearing his signature at point A and site plan was prepared at his instance as Ex PW 2/C bearing h is signature at point B. He has proved the recovery memo of currency notes and blade as Ex PW 2/A bearing his signature at point B and the arrest and personal search memo of accused as Ex PW 2/D and Ex PW 2/E respectively bearing his signature at point B. Complainant has identified the stolen money amounting to Rs. 1000/- in the denomination of Rs. 100/- each as Ex P1 and has been discharged without being cross examined by accused.
8. PW 4 HC Jagdish Chander IO of the case has deposed similarly that on 29.05.08 he was posted at PS Sadar Bazar and along with Ct. Rajinder was on patrolling duty when they heard the alarm "pakro pakro" and saw the accused whom the overpowered with the help of complainant and recovered Rs. 1000/- ion the denomination of Rs. 100/- each from his left hand and surgical blade from his right hand. The blade was kept in a match box and pulanda was prepared with the help of a cloth and sealed with the seal of BSC. IO has proved recovery of currency notes and surgical blade as Ex PW 2/A bearing his signature at point C and has proved the complaint and rukka as Ex PW 2/B and Ex PW 4/A signed by him at point A. He has proved the site plan prepared at the instance of complainant as Ex PW 2/C bearing his signature at point C and the arrest memo and personal search memo of accused Sunny as Ex PW 2/D and Ex PW 2/E bearing his signature at point C. PW 4 has identified the currency notes i/e Rs. 1025/- and pulanda of surgical blade bearing court seal as Ex P1 and in his cross examination by LAC has stated that the collective DD entry regarding patrolling was made by D.O in the morning after briefing and that he had arrested accused at about 4:30 pm. PW 4 admitted that he had not sealed the currency notes alleged to have been recovered from the possession of accused and also admitted that the spot was crowded place and public persons were present though claimed that the public persons refused to join the investigation. He also admiotted that eh case property produced before the court amounting to Rs. 1025/- and denied the suggestions that he was deposing falsely.
9. After closure of prosecution evidence, statement of accused Sunny was recorded without oath u/s 313(1)(b) Cr. PC on 04.08.10 and accused denied the allegations against him as incorrect and claimed that he had not committed any theft as alleged by prosecution. He also claimed that the recovered money i.e 1025/- belonged to him and that police officials have falsely deposed against him to falsely implicate him in the present case. Accused claimed that he was innocent and have been falsely implicated by police though he declined to lead any evidence in defence.
10. Final arguments have been addressed by Ld. APP for the State and Ld. LAC Sh. R. L Saini representing the accused today in the pre lunch session and judgment has been reserved to be pronounced at 4 pm.
11. I have meticulously perused the case file and heard carefully the submissions made by the Ld. APP for the state as well as the Ld. LAC Sh. R. L Saini. Having considered the same and keeping in mind the material available on the judicial file besides being cognizant of the cardinal principles of criminal jurisprudence, i.e prosecution is supposed to prove its case on judicial file beyond reasonable doubt by leading reliable, cogent and convincing evidence. Further that prosecution is supposed to stand on its own legs and cannot derive benefits whatsoever from the weakness, if any, in the defence of accused. Further that the burden of proof of the version of prosecution in criminal trial, throughout trial is upon the prosecution and it never shifts to the accused who is entitled to the benefit of every reasonable doubt in the prosecution story and any such doubt entitles him to acquittal, I proceed to appreciate the evidence led by the prosecution during trial for deciding the present case.
12. Section 378 IPC defines the offence of theft as dishonestly moving any movable property out of the possession of the person without his consent and punishment is provided u/s 379 IPC. Similarly Section 382 IPC lays down as under:
Section 382 IPC - Theft after preparation made for causing death, hurt or restraint in order to the committing of the theft.- Whoever commits theft, having made preparation for causing death, or hurt, or restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the committing of such theft, or in order to the effecting of his escape after the committing of such theft, or in order to the retaining of property taken by such theft, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
13. In the present case at hand, prosecution has proved complaint of PW 3, complainant Gulam Nabi as Ex PW 2/B. The arrest memo and personal search memo of accused have been proved as Ex PW 2/D and Ex PW 2/E respectively and the recovery memo of Rs. 1000/- in denomination of Rs. 100/- each as Ex PW 2/A. The accused has been apprehended red handed at spot by complainant and Pws Ct. Rajinder Singh and HC Jagdish Chander and the stolen money has been recovered from him at the spot. Though there is a minor discrepancy regarding the stolen money which has been shown to witnesses PW 4 and PW 2 as Rs. 1025/-, however, the same has been explained by Ld. APP for the state as including the stolen money of Rs. 1000/- in the denomination of Rs. 100/- each and Rs. 25/- recovered from accused during his personal search.
14. Since, accused Sunny has been apprehended by complainant and Pws Ct. Rajinder and HC Jagdish Chander at the spot and the stolen money has been recovered from him and further he had used the blade to threaten the complainant in order to effect h is escape, so, in the present case at hand prosecution has proved its case against accused Sunny beyond reasonable doubt. Accordingly, accused Sunny is convicted u/s 382 IPC for having committed theft of Rs. 1000/- after having made preparation to cause hurt in order to escape and he is also convicted of the offence u/s 411 IPC as the stolen money has been recovered from him.
15. Arguments on sentence heard. Ld. APP for the state submits that accused be punished with maximum imprisonment provided u/s 382 IPC. Ld. LAC on the other hand submits that accused has remained in custody for almost 2 years and prays for sentencing the period already undergone in custody during trial.
16. Considering that accused has remained in custody in this case since, 29.05.08 to 12.02.09 and again after being rearrested and remanded to JC on 02.12.09 till date, I am of the view that any further sentence of imprisonment is not required and would have negative impact upon the accused who has given the undertaking to reform himself and not to commit any offence in future. Accordingly, accused Sunny is sentenced for the period already undergone in custody from 29.05.08 to 12.02.09 and again from 02.12.09 till today for each of the offence u/s 382 IPC and 411 IPC giving him the benefit u/s 428 Cr. PC. He directed to be released forthwith from custody in this case. Copy of the judgment and order on sentence provided to the accused free of cost u/s 363 Cr.PC. File be consigned to Record Room.
Announced in the open (TARUN YOGESH) Court today i.e. 11.08.10. MM(3)/North Distt.