Delhi District Court
State vs 1. Avinash on 17 December, 2011
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IN THE COURT OF SMT SARITA BIRBAL :
ADDL. SESSIONS JUDGE: KKD COURTS : DELHI.
S.C. No: 18/2008
State Versus 1. Avinash
son of Shri Sher Singh
r/o 28/125, Kasturba Nagar,
Delhi
2. Sanjay Khan
son of Salaudden
r/o 28/145, Kasturba Nagar,
Delhi.
(declared Proclaimed Offender
vide order dated 03.07.2010)
FIR No: 405/2007
Under Sections:
394/397/411/34 IPC
P.S.: Vivek Vihar
Date of institution of charge sheet 04.01.2008
before the ld MM.
Date of allocation to this Court: 14.02.2008.
Date on which the judgment has been reserved: 18.11.2011.
Date on which the judgment has been delivered: 09.12.2011.
JUDGMENT
1. Briefly stated, the allegations made by the prosecution against the accused persons as revealed from the report under section 173 of Cr.P.C. are as follows : -
(a) On 07.11.2007 on receipt of DD No. 27 A at PS Vivek Vihar regarding stabbing and robbery of cash, SI Maman Khan alongwith Constable Shahji reached SC No.: 18/2008 page 1 of 12 :2: the spot i.e. in front of Oswal Bhawan but no one was found there. Thereafter, he went to 119, Govind Khand, Delhi where he came to know that an injured has been removed to Dr Hedgwar Hospital by PCR van.
(b) The said police party then reached Dr. Hedgwar Hospital where they met the complainant Kailash Singh who made his statement to the police stating that on 07.11.2007 when he was coming back to his house and reached near Oswal Bhawan Phase II, Vivek Vihar, at about 7.30 p.m., two persons (accused persons) caught hold him from back side and asked him to give whatever the complainant had.
On resistance to the same, one boy aged about 19-20 years caused knife injury on his (complainant's) left palm and other boy aged about 17-18 years took out his old diary containing Rs. 800/- from his front left side pocket of shirt and also mobile phone from his pant pocket. After committing the offence, both the accused persons fled away from the spot. He (complainant) tried to inform the police from a nearby STD booth but he was not allowed and then after reaching his house, he informed the police at 100 number. PCR van reached his house and he was taken to Dr. Hedgwar Hospital by PCR van.
(c) On the basis of the said statement, FIR No. 405/2007, under sections 394/34 IPC was got registered at PS Vivek Vihar.
(d) It is also case of the prosecution that during investigation, on 08.11.2007 on receipt of secret information, both accused persons namely Sanjay Khan and Avinash were arrested. On search of accused Sanjay Khan from right side pocket of his pants, mobile phone of complainant and from right side dub of his pants one vegetables cutting knife, the weapon of offence were recovered. Accused Avinash got recovered diary with cash of Rs. 200/- (2 notes of Rs. 100/- each) and 2-3 visiting cards of complainant from his house lying beneath the mattresses on the bed.
SC No.: 18/2008 page 2 of 12
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Proceedings of Test Identification Parade of accused persons and also case property i.e. recovered mobile were conducted.
(e) After completion of investigations of the case, the accused persons were chargesheeted under Sections 394/397/411/34 IPC.
2. Since the offence under section 397 IPC in this case was exclusively triable by the Court of Sessions, learned M.M. committed this case to the court of Sessions and on allocation, it was assigned to this court.
3. Vide order dated 07.06.2008, my learned predecessor framed a charge under section 392/394 read with section 397/34 against all the accused persons. Further charge under section 411 IPC was framed against accused persons Sanjay Khan and Avinash. Charge under section 27/25/54/59 Arms Act was framed against accused Sanjay Khan. Accused persons pleaded not guilty to the said charges and claimed trial.
4. During Court proceedings, accused Sanjay Khan stopped appearing in the court i.e. with effect from 11.01.2010 and was declared proclaimed offender vide order dated 03.07.2010.
5. In support of this case, prosecution has examined eight witnesses in all as PW 1 - Shri Kailash Singh (the complainant/injured); PW 2 - Constable Shahji T.A.; PW 3 - Head Constable Satyaveer Singh; PW 4 - Head Constable Shiv Om; PW 5 - Dr Sushma Kumari, CMO,Dr Hedgwawr Arogya Sansthan, Karkardooma, Delhi; PW 6 - Retired SI Maman Khan; PW 7 - Head Constable Shiv Kumar and PW 8 - Shri Sanjeev Kumar, learned Metropolitan Magistrate.
6. Out of these examined witnesses, PW 1 - Kailash Singh is the complainant while the remaining witnesses are the doctor who examined the complainant and the police officials who were involved in the investigation of this case.
SC No.: 18/2008 page 3 of 12
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7. PW 1 - Kailash Singh deposed that on 07.11.2007 at about 6.30 p.m. on the day of dhanteras he had gone to Chhota Bazar to enquire about some gift packets and was returning back to his house. When he reached near Oswal Bhawan, two persons caught hold of him from his back side. He moved back and asked those two boys as to what is the matter. At that time one boy aged about 19-20 years caused stab injuries by a knife on his hand. This witness (PW 1) pointed out towards accused Sanjay Khan and stated that he caused stab injuries on his hand. This witness further deposed that other accused present in the court (namely accused Avinash) took out his mobile phone and diary containing Rs. 800/- from his pockets. Thus, this witness (PW 1) identified both the accused persons in the court. He (complainant) raised alarm on which both the accused persons ran away from the spot. He further stated that he went to the nearby STD shop to inform the police at 100 number but he did not allow and then he (PW 1) went to his house and informed the police at 100 number, PCR van came and he was removed to Hedgwar hospital. He further stated that local police also came and recorded his statement Ex. PW 1/A. On 26.11.2007 he (PW 1) joined the investigation of this case and went to Tihar Jail where he came to know that both the accused persons have refused to join the Test Identification Parade. This witness also stated that he identified his mobile phone before the learned Metropolitan Magistrate. This witness identified his mobile phone Ex. P 1 and other articles belonging to him i.e. his diary and some visiting cards as Ex. P 2. During cross examination he denied the suggestion that he (complainant) and accused persons were friends and on the day of incident, a quarrel took place between them, he fell down on the ground and sustained injuries. Statement of this witness was got recorded on 24.01.2009.
8. PW 2- Constable Shahji T.A. joined the investigation of this case with SC No.: 18/2008 page 4 of 12 :5: ASI Mamam Khan and got recorded the FIR of this case from the duty officer. This witness further stated that in the hospital his blood stained handkerchief was seized vide memo Ex. PW 2/A.
9. PW 3 - Head Constable Satyaveer Singh and PW 7 - Head Constable Shiv Kumar joined the investigation of this case on 08.11.2007 with SI Maman Khan and are witnesses to the arrest of accused persons and also recovery of case property i.e. mobile Ex. P 1, knife Ex. P 3 from the possession of accused Sanjay Khan and further recovery of some visiting cards, old diary, Rs. 200/- Ex. P 3 at the instance of accused Avinash from his house.
10. PW 4 - Head Constable Shiv Om, duty officer, proved the copy of FIR Ex. PW 4/A recorded by him on receipt of ruqqa.
11. PW 5 - Dr Sushma Kumari, CMO, Dr. Hedgwar Arogya Sansthan, medically examined Kailash, the injured/complainant (PW 1) of this case and proved his MLC Ex. PW 5/A.
12. PW 6 - SI Maman Khan is the Investigating Officer of the case. This witness reached the spot on receipt of DD No. 27-A and then to hospital from where he collected the MLC of complainant, recorded the statement of complainant (Ex.PW1/A) on which he put his endorsement Ex. PW 6/A and sent the same for getting the case registered. He prepared site plan Ex. PW 6/B and seized the blood stained handkerchief of complainant used by him to stop the bleeding vide memo Ex. PW 6/C. This witness arrested the accused persons on 08.11.2007 in pursuance to the secret information and recovery was effected from the accused persons. This witness also stated that he applied for the Test Identification Parade of accused persons. He stated on 26.11.2007 both the accused persons refused to participate in test identification parade. This witness further identified the case property in the court.
SC No.: 18/2008 page 5 of 12
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13. PW 8 - Shri Sanjeev Kumar, Learned Metropolitan Magistrate, stated that on 26.11.2007 he went to Tihar Jail for conducting test identification parade of accused persons. He stated that both the accused persons refused to participate in test identification parade. He further deposed that on 14.12.2007 he conducted test identification parade of mobile phone. He proved test identification parade proceedings as Ex.PW8/A to Ex.PW8/P.
14. In the statement recorded under section 313 CrPC the accused - Avinash denied the case of the prosecution submitting that he has been falsely implicated in this case and that no such crime was ever committed by them. He further submitted that nothing was recovered from his possession or at his instance. Accused did lead any evidence in his defence.
15. I have heard Ld. Addl PP for the State and Shri S.C. Garg, Advocate for accused.
16. Learned Addl PP submitted that prosecution has proved its case beyond reasonable doubt and there is no material contradiction in the statements of prosecution witnesses. He relied upon the statement of complainant coupled with recovery of diary, Rs. 200/- and some visiting cards of the complainant at the instance of accused Avinash from his house.
17. During arguments, learned counsel for the accused contended that evidence which has come on record shows that the accused has been falsely implicated in this case and no crime was committed by him. It is also contended that injured (PW 1) has identified the accused first time in the court and thus identification of the accused first time in the court by this witness can not be believed. He also submitted that blood stained shirt of the injured was not seized by the IO during investigation and this creates a doubt about the prosecution case. It is also SC No.: 18/2008 page 6 of 12 :7: contended by ld counsel for the accused that no recovery was effected either from the possession or at the instance of accused Avinash. He submitted that non joining of public witnesses at the time of the alleged recovery at the instance of accused Avinash casts a serious doubt about the prosecution case.
18. I have given my consideration to the submissions made on behalf of the parties.
19. The case of accused persons is that they did not cause any injury to the complainant (PW 1) and the prosecution made this false case against them. It is relevant to note that during cross examination of complainant (PW 1) except a bald suggestion (which was denied by the witness) that the accused persons and complainant were friends and some dispute arose between them on the day of alleged incident and the complainant (PW 1) sustained injuries on his hand due to falling on the ground, there is nothing on record to substantiate this contention of accused. The accused did not raise any such plea in the statement recorded u/s. 313 CrPC. Thus, this plea of the accused persons can not be accepted. Further, it is seen that test identification parade of the accused was scheduled for 26.11.2007. However, the accused persons did not participate in the TIP without assigning any reason. It was not the case of the accused persons that they refused to participate in test identification parade proceedings as complainant was known to them. No reason has been assigned by accused Avinash to learned Metropolitan Magistrate for not participating in test identification parade or even before this court during evidence of learned MM. In his statement recorded under section 313 CrPC also accused has not assigned any reason for not participating in test identification parade. Since the accused himself refused to participate in the TIP, he cannot now raise a grudge that he was first time identified in the court. Reference in this regard can be made to the judgment of SC No.: 18/2008 page 7 of 12 :8: Hon'ble Supreme Court in case of Suraj Pal V. State of Haryana [(1995) 2 SCC 4], wherein Hon'ble Supreme court observed that substantive evidence identifying witness is his evidence made in the court and if the accused in exercise of his own volition declined to submit for test parade without any reasonable cause, he did so on his own risk for which he can not be heard to say that in the absence of test parade, dock identification was not proper and should not be accepted, if it was otherwise found to be reliable. [See also Daya Singh V. State of Haryana (AIR 2001 SC 1188)]. Thus, this plea on the part of accused is also not believable.
20. The case of the prosecution qua accused Avinash is based on the statement of the complainant (PW 1), recovery of diary of complainant containing some visiting cards and Rs. 200/- and refusal of this accused to participate in test identification parade. The complainant (PW 1) deposed that he had suffered injuries on his hand on the date of incident. Dr Sushma Kumari (PW 5), CMO, Dr Hedgwar Hospital, who examined the complainant (PW 1) and proved his MLC as Ex. PW 5/A. The MLC Ex. PW 5/A records that the complainant suffered following injuries:
L/E-Clean incised wound of 3 cm x 0.5 cm over Lt wrist dorsul surface
21. The complainant stated that accused Sanjay Khan stabbed him at the time of incident. The incident had occurred at about 7.30 p.m. and MLC was prepared at 9.15 p.m. on the same date. There is no cross examination of this doctor (PW 5) who medically examined the injured Kailash Singh (PW 1). The complainant identified the accused persons including accused Avinash in the Court. The accused has not been able to show any reason for implicating him by the complainant. The statement of the complainant is supported by his medical record, the contents of ruqqa/FIR.
22. Learned defence counsel contended that the police did not seize the SC No.: 18/2008 page 8 of 12 :9: blood stained shirt of the injured. I am of the view that this argument is of no help to the case of the accused. Statement of PW 5 - Dr Sushma Kumari shows that complainant had suffered injuries as mentioned in the MLC Ex. PW 5/A. IO had also seized blood stained handkerchief which was stated to have been used by the complainant immediately after the incident to stop the bleeding. The said blood stained handkerchief was seized vide memo Ex. PW 6/C.
23. It is also contended that as per the case of the prosecution, complainant was taken to the hospital by PCR, but no official from PCR was examined. This contention of the learned counsel has also no merits, in view of the statement of complainant (PW 1) who categorically identified the accused Avinash during his evidence in the court as one of the offender and also MLC (Ex. PW 5/A) of PW 1. The complainant has deposed that he was taken to the hospital by PCR.
24. Learned Addl PP has relied upon the alleged recovery of old diary, Rs. 200/- and some visiting cards Ex. P 2 of the complainant (PW 1) from the house of accused Avinash. The complainant (PW 1) has identified the said diary and some visiting cards in the court, however, he refused to identify the currency notes of Rs. 200/- i.e. two notes of Rs. 100/- each stating that there was no specific mark of identification on his robbed money. Learned counsel for accused contended that case of the prosecution qua the recovery of diary and visiting cards is inconsistent. He pointed out that as per seizure memo Ex.PW3/D, while accused Avinash was in police custody on 08.11.2007, he got recovered diary, 2-3 visiting cards and Rs. 200/- from his residence which was lying concealingly beneath the mattresses of the bed. However, the disclosure statement of accused Avinash - Ex. PW 3/F records about the recovery of diary and Rs. 200/- from accused Avinash after his apprehension with co-accused Sanjay Khan and it is not mentioned in his disclosure SC No.: 18/2008 page 9 of 12 :10: statement that diary and cash were recovered from the residence of the accused Avinash. No public person was joined as a witness to the recovery proceedings despite the alleged recovery was effected from the residential area. Under these circumstances, I find force in the submission made by learned counsel that recovery of diary with visiting cards at the instance of accused Avinash has not been proved beyond reasonable doubt.
25. Next issue which arises for consideration is as to which offence has been committed by this accused. It is proved that at the time of incident, the complainant had suffered injury as mentioned in his MLC Ex. PW 5/A. There is column in the MLC relating to the nature of injuries i.e. whether the injuries were simple, grievous or dangerous. The MLC records that the injures were under observation but ultimately no evidence has come on record about the nature of injuries. Complainant /injured was discharged on the same day from the hospital after treatment. If the case of prosecution was that the injured had suffered grievous or dangerous injuries, it was required to establish the same. Under these circumstances, it must be held that nature of injuries suffered by the complainant (PW 1) were simple in nature.
26. It is also not the case of the prosecution that the accused Avinash had used the weapon of offence as PW 1 - Kailash Singh has clearly stated in his statement in the court that the accused Sanjay (who is now absconding and declared as proclaimed offender) caused stab injury on his hand by a knife. Since admittedly no deadly weapon was used by this accused at the time of the commission of offence, he can not be made liable for the commission of offence under section 397 IPC. In this regard reliance can be placed to the judgment reported as Dilwar Singh Vs. State of Delhi [2007 (4) Criminal Court Cases 001 (S.C.)], wherein Hon'ble Supreme Court SC No.: 18/2008 page 10 of 12 :11: observed as follows:
"The essential ingredients of Section 397 IPC are as follows:
1. Accused committed robbery.
2. While committing robbery or dacoity (i) accused used deadly weapon (ii) to cause grievous hurt to any person (iii) attempted to cause death or grievous hurt to any person.
3. "Offender" refers to only culprit who actually used deadly weapon.
When only one has used the deadly weapon , others can not be awarded the minimum punishment. It only envisages the individual liability and not any constructive liability. Section 397 IPC is attracted only against the particular accused who uses the deadly weapon or does any of the acts mentioned in the provision. But other accused are not vicariously liable under that Section for acts of co accused." (emphasis added).
27. In view of above, accused Avinash is liable to be acquitted for the charged offence u/s 397 IPC. The prosecution has also not been able to prove beyond reasonable doubt the recovery of diary, visiting cards and cash of Rs. 200/-
from the accused Avinash and he is also liable to be acquitted u/s 411 IPC.
28. The other Sections 392, 394 IPC are as follows : -
"Section 392 IPC - punishment for robbery -
whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
"Section 394 IPC - voluntarily causing hurt in committing robbery - if any person, in committing or in SC No.: 18/2008 page 11 of 12 :12: attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
29. As held above, the prosecution has not been able to establish the alleged recovery of diary, some visiting cards and Rs. 200/- as robbed articles from the possession of accused Avinash. However, the same would not absolve this accused for the offence of having participated in the commission of robbery in view of the statement of the complainant (PW 1). Thus, it is held that prosecution has been able to prove its case beyond reasonable doubt that the accused Avinash committed offence of robbery and he was jointly concerned in causing injury to the complainant in committing the offence of robbery punishable u/s 394 IPC.
30. In view of my above discussion accused Avinash is acquitted of the charge under section 397 & 411 IPC. However, he is convicted for having committing the offence under section 394 IPC. Offence under section 394 IPC is a major offence and inclusive of Section 392 IPC and thus, no separate conviction is necessary under section 392 IPC.
Announced in the open court on 09.12.2011.
(Sarita Birbal) ASJ: KKD Courts: Delhi.
SC No.: 18/2008 page 12 of 12
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IN THE COURT OF SMT SARITA BIRBAL :
ADDL. SESSIONS JUDGE: KKD COURTS : DELHI.
S.C. No: 18/2008
State Versus Avinash
son of Shri Sher Singh
r/o 28/125, Kasturba Nagar,
Delhi
FIR No: 405/2007
Under Section: 394 IPC
P.S.: Vivek Vihar
Order on Point of Sentence
1. The convict - Avinash has been convicted u/s. 394 IPC.
2. I have heard learned Addl. PP for the State; Sh. S.C. Garg, Advocate for the convict and also the convict on the point of sentence.
3. It is submitted by the convict that he is a poor labourer. It is also submitted that he is not a previous convict and he is not involved in any other criminal case. It is stated on behalf of convict that he is a young man and has to look after his family. It is prayed that a lenient view be taken while awarding sentence to him and he wants to lead a life of a good citizen.
4. On the other hand, learned Addl PP submitted that convict be sentenced with the punishment as prescribed under the law.
5. As per the report of the Ahalmad, convict remained in custody in this case for one month and sixteen days.
6. Convict is not the person who caused injuries to the complainant and he was not carrying any knife at the time of the incident. No involvement of convict in any SC No.: 18/2008 page 13 of 12 :14: other case is shown. As per the conviction slip filed by the prosecution alongwith chargesheet, the age of convict at the time of incident, was 18 years. Under these circumstances I am inclined to take lenient view against the convict to give him an opportunity to lead a life of a good citizen.
7. Considering the facts and circumstances of the case, convict - Avinash is sentenced to period already undergone by him in this case and also to pay a fine of Rs. 4,000/- (Rupees four thousand only) and in default of payment of fine simple imprisonment (SI) for two months for the offence punishable u/s 394 IPC.
8. Copy of the judgment and order on sentence be supplied to the convict, free of costs.
9. File be consigned to RR with the direction to take up the same for trial as and when the other accused - Sanjay Khan (PO) is arrested/traced out or produced before the court.
Announced in the open court on 17.12.2011.
(Sarita Birbal) ASJ: KKD Courts: Delhi.
SC No.: 18/2008 page 14 of 12