Delhi District Court
State vs (1) Prem @ Luti S/O Shyam Lal on 2 March, 2009
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IN THE COURT OF SHRI DILBAGH SINGH: ADDL. SESSIONS JUDGE-01(E):
KARKARDOOMA COURTS: DELHI.
Sessions Case No.15/08
Date of institution: 3.3.2008
Date on which reserve for order: 20.02.2009
Date of delivery of order: 24.02.2009
State V/s (1) Prem @ Luti S/o Shyam Lal
R/o J-32, Laxmi Nagar, Delhi.
(2)Pravin S/o Shyam Lal,
R/o J-32, Laxmi Nagar, Delhi.
(3)Ajay @ Dainal @ Daini S/o Om Parkash Dainiyal
R/o 10/360, Lalita Park, Laxmi Nagar, Delhi.
FIR No.861/07
PS Shakarpur
U/s 394/397/34 IPC & 25/54/59 Arms Act
JUDGMENT:-
1. Case of the prosecution as disclosed from the report under Section 173 Cr.P.C., is to the effect that on 22.11.2007, on receipt of DD NO.41A, HC Sunder Singh alongwith Const. Jitender reached at the spot i.e. Mother Dairy Road, near Baba Palace Banquet Hall, where he came to know that an incident of robbery had taken place with the bus staff and robbers and members of the bus staff were removed to LBS Hospital by PCR van. On this information, HC Sunder Singh alongwith Const. Jitender went to LBS Hospital where he collected the MLCs of the injured persons namely Rahul Singh, Prem @ Luti and Praveen. One Sripal had also met him in the hospital who gave his statement, the crux of which is being given infra.
2. PW Sri Pal stated as follows. On 22.11.2007, he was working as a conductor on bus bearing No.DL-1PB-3768 and bus was coming from ISBT to Mayur Vihar. That he was distributing the tickets to the passengers. That around 9.30 p.m., when the bus reached Mother Dairy Road, Laxmi Nagar, T point, three boys boarded the bus alongwith other passengers. That one boy out of the said three boys tried to snatch the cash from his hands. That when 2 he refused to hand over the cash, the other two boys took out a knife and put the same on his chest and abdomen and first boy snatched the cash which he was having in his left hand. That while two boys were threatening him at the point of knives, the first boy took out around Rs.2300/- from the pockets of his pant. That when the passengers tried to rescue him, those boys threatened them by swaying knives in the air that if anybody will try to interfere, he will be torn to pieces. That when the bus reached near the bus stand of Baba Palace, all the three boys alighted from the bus alongwith cash and started running. That they were apprehended by the passengers of the bus. That helper Rahul and others started beating those boys. That one of the boy out of those three boys, managed to escape. That the names of two boys, who were caught hold of by the passengers etc., were later on revealed as Prem @ Luti and and Pravin. That they had also disclosed the name of the third boy who escaped as Ajay Danial. That during the scuffle, Pravin gave a knife blow on the left hand of his helper Rahul. That someone gave a telephone call on
100. That PCR van arrived at the spot and removed him, Rahul and the assailants Pravin and Prem to LBS Hospital. That Pravin had thrown the knife on the road taking advantage of darkness.
3. On the above discussed statement (Ex.PW4/A) recorded by H.C. Sunder Singh, ruqqa (Ex.PW7/B) was prepared and FIR was got registered through Const. Jitender under Section 394/397/34IPC. H.C. Sunder Singh collected the MLCs of Rahul injured, Prem @ Luti and Praveen the accused persons and on cursory search, Rs.2255/-, were recovered from the right side pocket of pant of accused Prem. This amount was identified by Sripal @ Raju as the same which was robbed from him. SHO was also present who directed handing over of investigation to some other official. H.C. Sunder Singh had seized the currency notes.
4. Further investigation of the case was handed over to SI Bhanu 3 Pratap to whom H.C.Sunder Singh handed over the custody of robbed property, seizure memo and accused Prem. SI Bhanu Pratap arrested accused Prem, conducted his personal search, recorded the statement of H.C.Sunder Singh and Rahul. H.C.SUnder Singh conveyed him that accused Praveen was admitted in GTB Hospital and accordingly, he reached GTB Hospital where Const. Pankaj and accused Praveen met him. Accused Praveen had been discharged from emergency and was brought to the police booth of GTB Hospital. Accused Praveen was identified as one of the robbers. IO interrogated the accused Praveen, arrested him and conducted his personal search. He recorded the disclosure statement of accused Praveen who had also given the name of his third associate as Ajay @ Danial. That at the instance of accused Praveen, knife was recovered from a place by the side of a drain. I.O. prepared the sketch of the knife, took the knife into possession and sealed the same with the seal of BP and prepared the site plan.
5. On 3.1.2008, HC Sunder Singh had given the copy of a disclosure statement of accused Ajay Danial @ Danny , pertaining to FIR NO.2/2008 to S.I.Bhanu Partap. S.I. interrogated the accused and recorded his disclosure statement. Accused Ajay Danial led the police party to the spot around 9 a.m. where he was identified by complainant Sri Pal. I.O. collected the MLC of the injured persons, concluded the investigation and got the accused persons challaned.
6. Ld.M.M.after compliance of the provisions of Section 207 Cr.P.C.
Committed the case to the Ld. Sessions Court and ultimately the case was assigned to my Ld. Predecessor.
7. On 14.3.2008, charge was framed against the accused persons under Section 392/394/397/34 of IPC, to which accused persons pleaded not guilty and claimed trial.
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8. In support of its case, prosecution has examined PW-1 Rahul Singh, PW-2 Const. Jitender Singh, PW-3 H.C.Raj Pal, PW-4 Sripal @ Raju, PW-5 H.C.Ashok, PW-6 Const. Pankaj, PW-7 H.C.Sunder Singh and PW-8 SI Bhanu Pratap.
9. PW-1 Rahul Singh has testified that he was helper on bus No.DL-
1PB-3768 on route No.301 from ISBT Kashmere Gate fo Mayur Vihar-III. He further testified that on 22.11.2007, at about 9 or 9.30 p.m., when their bus reached near Laxmi Nagar, three boys boarded their bus from the rear gate. That three boys snatched the money from the conductor and got down on the next stand of School Block. That when the passengers tried to apprehend those boys, they threatened them with knives. That those three boys were accosted by the passengers when they were crossing the road. That the passengers and public gave beatings to them. That someone telephoned the police on 100 number. That police came. That he was given knife blow on his right index finger. That police had taken him to the hospital. That the amount which was snatched from the conductor was approximately Rs.2300/-. That a sum of Rs.2255/- was recovered from one of the accused who was apprehended by the passengers and public. That the amount recovered from the accused was converted into a sealed parcel.
10. This witness had not identified the accused persons and was declared hostile on the point of identification and some other material aspects. During cross examination, this witness vacillated and testified in favour of the prosecution except identifying of the accused persons. (Objection raised at page 3rd of the testimony dated 7.7.2008, was not pressed. I deem it pertinent to mention that it was not pressed for the reason that it was not tenable at all).
11. PW-2 Const. Jitender Singh and PW-7 H.C. Sunder Singh have testified about the manner in which the investigation took place. They have testified that on 22.11.2007, on receipt of DD NO.41 A, they reached the place 5 of occurrence at Mother Dairy Road Near Baba Banquet Hall, where they came to know that an incident of robbery had taken place and PCR had taken the injured persons to LBS Hospital; accordingly, they reached LBS Hospital and collected the MLCs of injured persons; statement of Sri Pal was recorded vide Ex.PW1/A; cursory search of accused Prem was conducted and Rs.2255/- were recovered from the right side pocket of his pant; accused Prem was arrested vide arrest memo Ex.PW2/A, his personal search was conducted vide memo Ex.PW2/A, money recovered from the accused Prem was seized vide seizure memo Ex.PW2/C and disclosure statement of accused Prem was recorded vide Ex.PW2/D. That ruqqa Ex.PW7/B was recorded on the basis of which case was got registered and custody of case property, seizure memo and accused Prem was handed over to SI Bhanu Pratap.
12. PW-3 H.C. Rajpal has testified that on 2.1.2008, he was on patrolling duty alongwith Const. Bhupinder and around 4 p.m., when they reached near construction site of Metro Construction side near Akshardham Flyover, one person came running and passed from their side and started going at a fast speed. That on suspicion, they chased him and overpowered him beneath flyover. That on search, a buttondar knife was recovered from left dub of his pant. That information regarding his arrest was given to duty officer of P.S.Shakarpur and H.C.Sunder Singh reached at the spot to whom the custody of the accused alongwith the knife was handed over. That H.C.Sunder Singh recorded his statement, sealed the knife in a parcel with the seal of S.S., seized the same, ruqqa was prepared and a case was registered under Arms Act. That accused was arrested whose name was later on revealed as Ajay Danial @ Danny.
13. PW-4 Sri Pal has testified about the manner in which the incident had taken place. He has proved his statement Ex.PW4/A recorded by the police. 6 He has identified accused Prem who had snatched his cash as well as accused Praveen and Ajay as the culprits who had put knives on his abdomen and chest. He has also testified that sketch of the knife Ex.PW4/B and seizure memo Ex.PW4/C of the same were prepared in his presence. He has identified the knife as Ex.P2 as the same, which was recovered from accused Praveen. He has also identified the currency notes Ex.P1 as the same which were looted from his possession and recovered from accused Praveen.
14. PW-5 H.C. Ashok Kumar, has testified that on 22.11.2007 he was working as duty officer and on that day on receipt of ruqqa from H.C.Sunder Singh through Ct. Jitender, he recorded FIR of this case and proved the computer generated copy of the same as Ewx.PW5/A.
15. PW-6 Const. Pankaj has testified that on 22.11.2007, he was summoned by Duty Officer to reach LBS Hospital where two accused persons were present. Accordingly, he reached LBS Hospital where H.C.Sunder Singh handed over the custody of accused Parveen @ Sanju, whom he took to GTB Hospital and got him admitted there. He testified that accused Praveen @ Sanju was arrested in this case vide memo Ex.PW6/A and his personal search was conducted vide memo Ex.PW6/B. He also proved the sketch of the knife Ex.PW4/B and its seizure memo Ex.PW4/C.
16. PW-8 SI Bhanu Partap, part IO of the case has testified about the manner in which the investigation was conducted by him.
17. Statement of accused persons were recorded under Section 313 Cr.P.C.without oath in order to give an opportunity to them to explain the circumstances appearing in evidence against them. Accused persons denied the case of the prosecution in its entirety. Accused Prem Luti and Praveen have submitted that they have been falsely implicated in this case by the SHO by calling them from their houses. Accused Prem @ Luti has submitted that Praveen is his real brother who had lodged a complaint against police official 7 Subash. That police was asking them to retrace their steps from the complaint which was not done by them. That for this reason, he and his brother were falsely implicated. That they do not have any written proof of complaint. That they were lifted from the house on the pretext that SHO was calling them and were falsely implicated in this case. Accused persons opted not to lead any defence evidence. Accused Ajay @ Danial also denied the case of the prosecution in its entirety and submitted he has been falsely implicated in this case.
18. Arguments were heard at the bar. Ld. Defence Counsel has submitted that prosecution has failed to establish its case beyond the shadow of reasonable doubt and accused persons have been falsely implicated in this case. He has also filed written arguments. The crux of the written arguments is that PW-1 has not supported the case of the prosecution and has not identified the accused persons as the perpetrators of crime. It is also submitted that nothing has come out from the testimony of PW1 in favour of prosecution as he has not identified the case property. That he has also testified that nothing was recovered in his presence. It is submitted that case property was shown by the police to him in the P.S. as per his version whereas as per case of prosecution, it was sealed at the hospital. It is also submitted that in view of admission of darkness at the time of incident, accused persons cannot be connected with the commission of the offence. In para 4 it is submitted that PW-4 has testified in a sterio type manner and has failed to disclose the correct amount snatched by the accused persons. That he deposed in examination in chief that a sum of Rs.2800/- / 2900/- were recovered, whereas per seizure memo only a sum of Rs.2255/- has been recovered and both the versions read in juxta position create a doubt in the case of the prosecution. Case of the prosecution has also been assailed on the ground that no proof with respect to plying of the bus has been placed on 8 record. Case of the prosecution has also been assailed on the premise that owner and driver of the bus have not been examined as witnesses. It has also been submitted that according to PW4 35 to 40 persons had gathered at the place of incident and despite this no public person was joined in the investigation. That testimony of PW4 is not credit worthy as he has not testified in consonance with the case of the prosecution to the effect that site plan was prepared in his presence. It has been so argued on the ground that PW4 has testified that he never visited to the place of occurrence after the incident. Case of the prosecution has also been assailed on the ground that testimony of PW4 cannot be believed for the reason that he has himself testified that there was lot of commotion in the public and it was not possible to ascertain the complete picture of events.
19. With respect to accused Ajay @ Danial it has been argued that he has not been properly connected with the commission of offence as he was not put to judicial test identification parade. That Ajay @ Danial was not known to PW4 and his judicial TIP was a must. In para 5 of the written arguments mention about some contradictions in the testimonies of formal witnesses has been made. It has been submitted that as per police witnesses, the persons gathered at the place of occurrence were only two to four whereas according to the eye witnesses 35 to 40 persons had gathered. It has also been submitted that PW2 stated that they left GTB Hospital at about 3.30 a.m. on motorcycles whereas PW6 stated that IO SI Bhanu Pratap reached around 3.15 a.m., alongwith complainant and reached the spot around 4.45 a.m. It has also been submitted that PW8 on the other hand, who is the IO of the case , has testified about leaving of GTB Hospital around 4.30 a.m. In para 6 of the written arguments, it is submitted that recovery being from an open place is not a recovery which can be said to be the recovery in real sense and chances of false implication are there. That accused Ajay has been acquitted 9 in the case of the Arms Act. Reliance has been placed on Rahis Ahmed V/s State (Delhi Admn.) reported in 1998 (1) C.C Cases 72 (DHC), Jagat Pal and Ors. vs State of U.P., reported in 2005 (1) CC Cases 24 (Allahabad) and Ram Swaroop and Ors vs State of Rajasthan, reported in 2004 (3) Criminal Court Cases 359 (SC).
20. Case of the prosecution has also been assailed on the ground that no light pole has been shown in the site plan which goes to show that writing work was done in the P.S. It has also been submitted that signatures of the complainant should have been there on the site plan and this raises doubt.
21. Ld. Public Prosecutor on the other hand had refuted the arguments advanced and has submitted that prosecution has established its case. He has argued that the contradictions pointed out are immaterial. That involvement of Ajay @ Danial stands established independently from the versions of independent witnesses as well from the availaibility of Section 27 of Indian Evidence Act. He has submitted that from the narration of facts it is revealed that accused persons are the persons with criminal background.
22. I have carefully perused the records of the case and considered the submissions. I am not in consonance with the submissions made by Ld. Defence Counsel. Firstly, I deem it expedient to mention the legal position with regard to hostile witnesses. Time and again it has been held that testimony of hostile witness cannot be ipso facto discarded in toto. It is well settled that portion of the testimony of hostile witness which inspires confidence can be used. It is also well settled that testimony of hostile witness finding corroboration from other sources can be believed either in favour of the prosecution or the defence as the case may be. In Criminal Appeal No.458/2008 decided on 1.9.2008, this position was reiterated. Reference to Hanumappa Hanamar vs State of Karnataka, 1997 (10) SCC 197, was made. Reference to Satpal Vs Delhi Administration was also made. Views expressed 10 by Hon'ble Supreme Court in Bhagwan Singh vs State of Haryana (3 Judge Bench) were also referred, wherein it was held that testimony of a hostile witness does not get effaced completely and there is no legal bar to base a conviction upon the testimony of a hostile witness if corroborated by other reliable evidence. Khuji vs State of Gujarat 1991 Cr.L.J. 2653, is another facet of the testimony of a hostile witness and it has been held by the Hon'ble Supreme Court that testimony of a witness who has supported the case of the prosecution in examination in chief and has resiled from his version at a later date in cross examination, can be made the basis of conviction.
23. In the present case, I am of the considered view that testimony of PW1 can be used against the accused persons as the same stands corroborated from other sources. Testimony of PW1, cannot be ignored as so contended by Ld. Defence Counsel for the simple reason that it finds corroboration from other sources. Merely because this witness has not identified the accused persons as the perpetrators of the crime, it cannot be said that this witness has deposed falsely in entirety. Moreover, the maxim falsus in uno falsus in omnibus is not a rule of universal application and it has been held time and again that the portion which is reliable can be used either by the prosecution or by the defence. Reliance in this regard is placed on Jakki @ Selva Ray vs State reported in 2007 Cr.L.Ja. 1671. So the legal argument of Ld. Counsel is disallowed in view of the above reason and testimony of PW1 will be tested on the above discussed legal position.
24. The essential ingredients of the offences u/s 392/394/397 IPC are being given herein below. Ingredients required u/s 392 IPC:-
(1)Accused committed theft as defined in Section 378 or extortion as defined in Section 383 and in the process. (2)Accused caused or attempted to cause to some persons -
(i) death, hurt or wrongful restraint;11
(ii)fear of death or of instant hurt or of instant wrongful restraint; (3)accused did either act -
(a) in committing such theft, or extortion or
(b) in order to commit theft, or extortion or
(c)in carrying away or attempting to carry away the property obtained by such theft or extortion (4)Accused acted voluntarily.
Ingredients of Section 394:-
(1)Accused committed or attempted to commit robbery ; (2)He and anyone else jointly concerned in committing or attempting to commit robbery caused hurt;
(3)Hurt was caused voluntarily.
Ingredients of offence u/s 397:-
(1)Accused committed robbery or dacoity; (2)While committing such robbery or dacoity, the accused -
(a)used a deadly weapon;
(b) caused grievous hurt to any person;
(c)attempted to cause death or grievous hurt to any person .
25. I am of the considered view that ingredients of offences u/s 392 stand brought on record by the prosecution by way of testimony of PW4 Shri Sri Pal @ Raju against the accused persons which finds corroboration from other sources.
26. There is no hitch in recording a finding about the establishment of ingredients of Section 392 on the part of the prosecution. PW4 has categorically testified in his testimony to the effect that on 12.11.2007, he was working as a conductor in bus No.DL-1PB-3768 plying on route No.301-A. That at about 9.30 p.m., when they reached at T point Laxmi Nagar, 3 /4 boys boarded the bus alongwith other passengers. He has further testified that one 12 boy put knife at his abdomen and other boy snatched the cash from him. That knives were put on his chest and abdomen in order to facilitate snatching. That knives were also shown to the passengers. That all the three boys got down from the bus at school block bus stand. That helper Rahul and other passengers also got down from the bus and two boys were apprehended whereas one managed to escape. That names of those two boys were revealed as Prem and Praveen.
27. From the above deposition, when it is read in juxta position with the fact that accused Ajay, Praveen and Prem @ Luti were identified by this witness as the same persons, in the dock , ingredients of Section 392 IPC can be said to have been brought on record beyond shadow of every reasonable doubt, as wrongful restraint is definitely there. Attempt to cause hurt is definitely there in the act of commission of robbery in the bus itself.
28. PW-4 has proved his statement Ex.PW4/A. From the above statement, there is no hitch in giving a finding about establishment of ingredients of Section 392 IPC, as PW Sri Pal @ Raju was robbed of his cash at the point of knives. Common intention on the part of the accused persons can be inferred from the very act of boarding of the bus together, acting together in the act of snatching and getting down from the bus. Common intention is also clearly inferable form the act of trying to escape by the accused persons coupled with the success of one in this regard.
29. I am also of the considered view that accused Ajay @ Danial has also been connected with the commission of the offence and the mere fact that he escaped from the spot is of no help to him. The reason for saying so is that PW4 has assigned categorical role to him of extortion. This witness has testified that the name of the third boy came to be known as Ajay and he was later on apprehended by the police. This witness also testified that he can identify all the three accused persons present before the court. I deem it expedient to quote the portion of the testimony concerning identification as the same is very important.
"Witness pointed towards accused Prem and stated that he had snatched his cash and correctly identified 13 (should have been identifies). Witness pointed out towards accused Praveen and Ajay and stated that they have put the knives on his abdomen and chest (Witness correctly identified the accused persons)."
30. The above version brings on record about the involvement of the accused Ajay in the commission of the offence. The above version also establishes the authorship of the crime by all the accused persons of the case. It can be safely culled from various pronouncements of Hon'ble Supreme Court that question as to whether accused has been properly identified in the dock and has been connected with the commission of offence is a question of fact, in every case and in some cases dock identification alone has been made the basis of conviction. 2003 Cr.L.J. 3535 and (2004) 2 SCC 694, titled as Malkhan singh & Other vs State of M.P. and Simon & Ors. vs State of Karnataka respectively are the opposite reliances.
31. Not only this PW4 during cross examination testified about his having seen the accused Ajay. In cross examination this witness was asked by the defence concerning seeing of the accused. This witness stated as follows:
"I had not seen accused Ajay prior to this incident. Thereafter I had seen him during investigation. Police had brought this accused before me for identification. I had not been to jail for identification".
32. When this deposition in cross examination is read with the version of the prosecution put forth in the report u/s 173 Cr. P.C. particularly supplementary statement of PW Sri Pal dated 3.1.2008, involvement of the accused Ajay gets confirmed and no doubt is left in one's mind about the involvement of the accused. Had it been otherwise , Ld. Defence Counsel would have dared to ask from PW as to at which place this witness has seen accused Ajay. It is well settled that inferences are to be drawn from the facts and circumstances of each case and one single fact is sufficient to draw an another inference. Name of accused Ajay @ Danial was revealed by PW Sri Pal in his statement dated 22.11.2007 (Ex.PW4/A) and this fact connects the accused with the commission of the offence and rules out the possibility of false implication.
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33. Not only this, PW-8 SI Bhanu Pratap, corroborates the version of PW4 in this regard. PW8 has categorically testified that on 3.1.2008, accused Ajay @ Danial had led the police party to the spot around 9 a.m. He has further testified that at that time Sri Pal complainant of this case had stepped down from the bus in front of Baba Banquet Hall and identified the accused Ajay @ Danial as one of the assailants. This version of PW-8 has gone unchallenged and uncontroverted in cross examination. It was not suggested to this witness that accused Ajay @ Danial had not led the police party to the spot around 9 a.m. and complainant Sri Pal had not identified him in front of Baba Banquet Hall. From the above mentioned unchallenged testimony of PW-8 coupled with testimony of PW4, connection of accused Ajay stands established.
34. This fact can be said to have been proved by another angle as well and the same is that in the disclosure statement Ex.PW-8/A, name of accused Ajay @ Danial stands categorically mentioned. Same is the situation in disclosure statement Ex.PW2/D. These disclosure statements were made on the date of incident by accused Parveen and Prem @ Lutti. Accused Ajay @ Danial was connected with the case in pursuance of the disclosure statements, as well, and chances of false implication can be said to be ruled out from this angle as well and this aspect lends additional support to my conclusion. I deem it pertinent to mention that testimony of PW-8 SI Bhanu Pratap is the clinching factor whereas other factors are of corroborative nature concerning connection of the accused Ajay @ Danial with the commission of the offence.
35. The other clinching factor is the testimony of PW4 who had the opportunity of seeing the accused Ajay for a considerable period. I am saying the period as considerable for the reason that it has come in the testimony of PW4 that accused persons had boarded the bus from the rear window and had come to him. He has also testified that he had refused to hand over his cash. He has also testified that knives were shown to the other passengers 15 also. He has also testified that he had seen helper Rahul and other passengers getting down in apprehending the boys. He has also testified that one boy had managed to run away. The inference which comes out from the above facts is that, that this witness had sufficient opportunity of seeing the accused Ajay. This witness was having no reasons to falsely implicate accused Ajay as this witness has testified that he was not knowing accused Ajay prior to this incident. Moreover, this witness has not been shaken in his cross examination concerning identification of accused Ajay. It is well settled that if the version put forth in examination in chief goes unchallenged, it can be said to have been accepted. This witness has given the natural explanation concerning the incident and has testified that bus was not so crowded that one cannot pass through rear side to front side. He has also testified that he was delivering tickets while standing at conductor seat. This witness has denied the suggestion that due to darkness it was not possible to identify the persons. This witness has volunteered that there was light in the bus due to which identification was possible. This witness denied the suggestion that he was not in a position to identify the accused persons on account of darkness and these aspects of the testimony go to establish about the role of the accused Ajay and his chances of false implication stand ruled out.
36. PW-7 H.C. Sunder Singh has also mentioned about leading of police party by the accused to the spot on 3.1.2008 and this aspect is another corroborating factor and cumulative effect of the above discussion inclines me to hold that accused Ajay has been connected with the commission of the offence. It requires mention that it is not the case of accused Ajay @ Danial that PW Sripal had identified him at the spot at the instance of police.
37. The evidence with respect to accused Prem @ Luti and Praveen is of very-2 high degree as they were apprehended from the spot and they were taken to the hospital. Perusal of Ex.P3 and Ex.P4 goes to show that accused 16 Praveen and Prem had sustained injuries on their heads and explanation given by the accused persons concerning their injuries, during their statement u/s 313 Cr.P.C. is an after thought as no suggestion was given to the prosecution witnesses concerning giving of injuries to the accused persons by the police officials. Therefore, it can be said that involvement of accused Prem @ Luti and Praveen stands established categorically by the prosecution and there are no two conclusions possible about the same.
38. PW1 Sh.Rahul Singh has supported PW4 fully except identification as far as incident is concerned and thus, prosecution case gets strengthened from the testimony of PW Rahul Singh also. This witness in examination in chief has fully supported the version of the prosecution concerning taking place of the incident of robbery in the bus at the questioned date, time and place. He has also supported the case of the prosecution concerning act of the accused persons of trying to flee away after the incident. He has also supported the case of the prosecution concerning recovery of Rs.2255/- from one of the accused persons. No doubt this witness testified about non identification of case property in examination in chief , but in cross examination PW1 has identified the case property. He has also supported the case of the prosecution concerning extending of threat by the accused persons to the passengers to the effect that if they will intervene they will be torn to pieces. This witness has also supported the case of the prosecution concerning giving of knife blow by accused Praveen on his right hand. He has also supported the case of the prosecution concerning the name of the other accused being Prem. An over all perusal of testimony of PW1 goes to give a categorical inference that except identification of the accused persons, he has fully supported the case of the prosecution and has provided corroboration to the case of the prosecution. This adds another feather in the credibility cap of PW4.
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39. Arguments advanced by Ld. Defence Counsel are not tenable in view of the above going discussion. The submissions concerning PW-1, get discarded in view of the above discussion. Non identification by PW-1 of the case property has also been dealt with and it stands observed that PW-1 identified the case property in cross examination, so this argument is of no help. The argument that PW4 has deposed that case property was shown to him in the P.S. is of no help as the same is not a material contradiction. It has come in evidence that proceedings were conducted in the police booth.
40. Arguments concerning there being dark is of no help as PW4 has categorically made clear that in the bus there was light and there was no problem of identification. PW1 was not asked about there being no light in the bus. It is common knowledge that there will be sufficient light in the bus, when it is plying on a route. I am of the considered view that PW1 has deposed falsely with respect to darkness viz-a-viz identification in order to help the accused persons, may be out of fear as so suggested by the prosecution or for other reasons best known to PW1. In view of categorical testimony of PW4 concerning identification, this argument is of no help.
41. Submissions in para No.4 in written arguments are of no help as on perusal I have not found that PW4 has testified in a sterio type manner. No doubt there is difference in the amount robbed as in the statement Ex.PW4/A, robbed sum was specified as around Rs. 3,000/- and in testimony amount has been stated to be Rs. 2800/-/2900/- and in fact a sum of Rs. 2255/- has been shown to have been recovered from the accused Prem @ Luti. However, in my considered view the differences in amount are of no help to the accused persons as the intrinsic facts required for proving robbery stand proved. The intrinsic fact required to be proved was that PW4 was robbed of some amount and this fact has been established beyond the shadow of reasonable doubt. So, arguments in this regard are disallowed. Further submission in this para 18 concerning non collecting of proof of plying of the bus on the route is of no help as the same was not material qua the ingredients of section 392. The arguments concerning non citing of the driver and owner of the bus as witnesses is of no help as from the testimony of PW4 and other witnesses so examined by the prosecution, the offence under section 392 IPC stand proved by the prosecution beyond the shadow of reasonable doubt. It does not require mention that Indian Evidence Act requires the testimony of only one credit worthy witness on which conviction can be based. Nothing prevented the accused persons to examine the driver and the owner. No need to mention that this argument has been advanced only for the sake of advancing of the argument. Argument concerning non-joining of public witnesses in view of the testimony of PW4 concerning gathering of 35 to 40 persons is of no help as no explanation was sought from HC Sunder Singh in this regard. Moreover, HC Sunder Singh had reached the spot after the removal of injured and this argument has to be seen in the light of this aspect as well. Once it is so done the argument looses its sting. Argument concerning testification of PW4 regarding non-signing of papers at the place of occurrence is of no help as, as per the case of the prosecution statement of PW4 was recorded in the hospital. Arguments concerning PW4 giving the sequence as LBS Hospital to GTB Hospital, GTB Hospital to PS and PS to Home is of no help as PW4 in my considered view forgot to mention about his visit to the place of occurrence. Had the attention of this witness been drawn towards this fact, this witness would have testified about this aspect as well. I am saying so for the reason that in cross-examination this witness testified about identification by him of accused Ajay. Moreover, assuming for the sake of argument that this witness was not in fact taken by the police to the spot at the time of preparation of site plan, the same can be said to be an irregularity at the maximum of which no benefit can be given to the accused persons. It is well 19 settled that interest of justice cannot be sacrificed at the altar of faulty investigation and the court has to separate the grain from the chaff in the quest of search of truth. Similar is the fate of some discrepancies on account of presence of owner in the PS, showing of case property in the PS, taking of the accused persons to PS, hospital etc. The reason for discarding these arguments is that PW4 has categorically proved the material ingredients and the discrepancies are concerning the post event incidents pictures queue depositions about which was not possible. Case of the prosecution has to be viewed from an over all angle and not in a scattered and tottering manner. I take this opportunity to repeat that PW4 has stood true on the touch stone of cross examination and he has given cogent, cohesive and believable version of the incident. I also observe at the cost of repetition that PW4 has stood the test of cross examination.
42. Argument concerning non conduct of identification proceeding in the jail is of no help as I have already discussed in detail this aspect. It is well settled by now that identification of the accused during investigation stage in test identification parade is not substantive evidence and substantive evidence is the identification of the accused in the dock. Moreover, the inference as to whether an accused has been identified properly by the eye witness or not is a question of fact in each and every case and the court has to see as to whether the witness was having sufficient opportunities to identify the accused. I have no hitch in my mind to observe that the witness PW4 was having sufficient opportunities to identify the accused. I have already discussed about this aspect and my discussion negatives the argument put forth by Ld. Defence Counsel. Submissions in para No.5 are of no help as according to the admitted case of defence these witnesses are formal in nature and contradictions/discrepancies pointed out are of no consequence.
43. Arguments in para No.6 concerning recovery of knife at the instance 20 of accused Parveen being suspectible is of no help. First reason for saying so is that even if this recovery aspect of button acquated knife is excluded from consideration, still accused stands connected with the commission of offences under section 392 IPC. So, for this simple reason arguments have to be rejected. I deem it pertinent to mention that in view of peculiar facts of the case arguments of Ld. Defence Counsel are not tenable on facts as well. The reason for saying so is that PW4 in his statement Ex.PW4/A testified that Praveen had threw away the knife at the spot at some dark place (last lines of Ex.PW4/A). Statement of this witness was recorded at 11:20 pm on 22.11.2007. Recovery of the knife at the instance of accused has taken place prior to morning of 23.11.2007. Incident took place at about 9:30 pm and this fact makes the case as a particular one. The time gap between the recovery and commission of offence is very less and there were no chances of planting of knife on the accused Praveen. Argument in para No.7 that accused Ajay @ Danie has been acquitted in case FIR No. 2/08, under section 25 of the Arms Act by Ld. ACMM, KKD Courts, is of no help as the result of this case is not dependent upon the result of case FIR No. 2/08. Arguments in para No.8 already stand adverted to.
44. Argument in para No.11 concerning non showing of pole light in the site plan is not tenable for the reason that the same is inconsequential.
45. The judgments placed reliance upon by Ld.Defence Counsel are of no help to the accused. 'Rahis Ahmed' has been relied with respect to accused Ajay Denial. I deem it pertinent to mention that Ld. Defence Counsel has not gone through the facts of the case very carefully as had he done so, then he would not have relied upon this judgment. The fact of this case and of 'Rahis Ahmed' case are different. In Rahis Ahmed case as is evident from para No.3 complainant Baldev Raj Sharma had not lent any helping hand to the investigating officer on the identification aspect. In the present case on the 21 other hand PW4 has given clear support to the version of PW8 concerning identification. So, the judgment becomes distinguishable. Reliance on 2005(1) CC case 24 (Allahbad) is of no help as no help has been taken concerning injuries of the complainant in the present case, in the arrival of the conclusion. It is not the case of the prosecution that PW4 had sustained injuries and for that reason his evidence should be believed. Similarly the reliance on Ram Swaroop case is of no help for the reason that there are no two views possible in the present case as already discussed. There can be no doubt about the propositions of law laid down in the above mentioned case and with due deference I state that facts of the case are clearly distinguishable. In view of the above going discussion arguments are disallowed. In the end, I would like to place on record that the objections taken by Ld. Defence Counsel in cross examination dated 07.7.2008, prior to lunch, at page 4 were not pressed. I observe that questions asked were not beyond the scope of cross examination.
46. Coming to Section 394 and 397 IPC. Although prosecution has brought on record evidence by virtue of which accused persons can be connected with commission of offences u/s 394 and 397 IPC, to the extent of 99%. However, in criminal jurisprudence it has to be 100%. The reason for saying that 1% of evidence is missing as required under Section 394 and 397 is that PW1 has failed to identify the accused persons. He has testified that outside the bus there was darkness. Hence it cannot be said with 100% certainty that accused persons had caused grievous injury to PW1. PW1 in his testimony does not describe the authourship of injury sustained by him and he simply states:-
"I was given knife blow on my right index finger".
47. In cross examination he stated that he had not stated to the police that the name of the person who had escaped was Ajay. He stated that he 22 cannot admit or deny the suggestion that accused Parveen had given him a knife blow. The above testimony raises doubt to some extent concerning causing of hurt to PW1 and for this reason I deem it expedient to award the benefit of doubt to accused persons qua section 394 IPC despite the fact that pW4 has fully supported the case of the prosecution. The reason which has weighed with me in this regard is that pW4 had not chased the accused and it was PW1 Rahul and others who had chased the accused.
48. As I have given the benefit of doubt to the accused persons under Section 394 IPC, I deem it expedient to award the benefit of doubt to the accused persons under Section 397 IPC as well. The factor which has weighed with me in this regard is that knife has not been recovered from accused Ajay @ Danial and PW4 has testified that Rahul helper and other passengers had got down from the bus and had apprehended the accused. Another reason is that recovery of knife from accused Parveen had not taken place then and there I.e. at the time when accused Parveen was apprehended by PW Rahul and other passengers, as per the case of prosecution put forth in the report u/s 173 Cr.P.C. whereas PW4 in his cross examination has stated that knife and cash were recovered then and ther ei.e. at the time of apprehension of accused Parveen and Prem Lutti at the spot. (11th line of examination in chief of PW4 dated 15.7.2008). No doubt, police officials on the other hand has testified that recovery of knife took place at a later stage i.e. after medical examination of Parveen at LBS Hospital. But, in view of this two views with respect to time of recovery of knife have come on record, one at the time of apprehension by the public and the other at the time when accused Parveen was taken again to the spot in pursuance of his disclosure statement. This aspect coupled with delayed apprehension of accused has inclined me to award the benefit of doubt to the accused persons under Section 397 IPC. When these aspects were put to Ld. Public Prosecutor, he had also no option but to concede although tacitly that prosecution has not been in a position to establish its case under Section 394 and 397 IPC beyond the shadow of reasonable doubt. Accordingly, accused persons namely Ajay and Parveen are acquitted of the offence under Section 397 IPC. It does not require mention that Prem @ Luti was not charge under Section 397 IPC.
49. The net result is that accused persons are held guilty for the offences punishable under Section 392/34 IPC and are accordingly convicted u/s 23 392/34 IPC. Let they be heard on the point of sentence.
Announced in the Open Court (DILBAGH SINGH)
On this 24th day of February, 2009 Additional Sessions Judge-01(E):
Karkardooma Courts, Delhi.
24
IN THE COURT OF SHRI DILBAGH SINGH: ADDL. SESSIONS JUDGE-01(E):
KARKARDOOMA COURTS: DELHI.
Sessions Case No.15/08
State V/s (1) Prem @ Luti S/o Shyam Lal
R/o J-32, Laxmi Nagar, Delhi.
(2)Pravin S/o Shyam Lal,
R/o J-32, Laxmi Nagar, Delhi.
(3)Ajay @ Dainal @ Daini S/o Om Parkash Dainiyal
R/o 10/360, Lalita Park, Laxmi Nagar, Delhi.
FIR No.861/07
PS Shakarpur
U/s 394/397/34 IPC & 25/54/59 Arms Act
ORDER ON THE POINT OF SENTENCE:-
1. I have heard the convicts and their counsel Sh. Mahesh Sharma on the point of sentence. Convict Prem @ Luti and Praveen have submitted that they are real brothers. That Prem @ Luti has submitted that he is 23 years of age and not a previous convict. That one case under Arms Act is going against him. That his father is no more and he has his mother to support.
That there is no other male member in the family. That he is of marriageable age. That custodial sentence shall ruin his family. Similarly, convict Praveen has submitted that he is 25 years of age and is of marriageable age. That no other case is pending against him and is not a previous convict. Convict Ajay @ Denial has submitted that he is 35 years of age and his two children, who are school going. That he has also a large family to support including his parents, family and two school going children. That there is no other bread earner of the family and convict has remained in J.C for a period of more than 1½ years.
2. Sh. Mahesh Kumar Sharm has submitted that convicts deserve leniency and has requested for their release on the period already undergone. He has also requested that in the alternative benefit of Probation of Offenders Act be given to them for the reason that they are in J.C. since their arrest. 25
3. Ld. Public Prosecutor on the other hand has requested for award of a very harsh sentence in view of the facts and circumstances of the case. He has submitted that robbery was committed in this case on the highway in a public transport bus between sunset and sunrise at 9.30 p.m. That convicts have been given the benefit of doubt due to doctrine of proof beyond reasonable doubt and they were definitely involved in the commission of the offence under section 394/397 IPC also. He has submitted that such type of convicts require stern handling. He has submitted that deterrent punishment be awarded in this case.
4. I have carefully perused the records of the case and considered the submissions. Before adverting further, I deem it expedient to say a little bit about legal aspects of sentencing.
5. Sentencing is a difficult task as the court has to decide the quantum of sentence on the basis of facts and circumstances of each case. The court has to balance the conflicting interests of the society on the one hand and that of the convict on the other hand. Hon'ble Supreme Court in 2008 (VII) SCC 17, has provided apposite guidelines in this regard. In this judgement reliance has been placed on Dhananjoy Chatterjee Alias Dhanna Vs. State of W.B., reported in 1994 (2) SCC 220. Reliance has also been placed on Shailesh Jasvantbhai and Another Vs. State of Gujarat and Others, reported in 2006 (2) SCC 359.
6. I am not burdening this order with the ratio decidendi of these cases and the same may be read as part of this para. Hon'ble Supreme Court has reiterated the principles of sentencing in 2008 VIII AD (S.C.) 581 titled as State of Madhya Pradesh Vs. Pappu @ Ajay and has referred State of Madhya Pradesh vs Ghanshyam Singh 2003 (8) SCC 13 and State of Barkare @ Dalap Singh 2005 (5) SCC 413. Reliance has also been placed on Dennis Councle MCGDautha v/s State of Callifornia, 402 US 183: 28 L.D.2d 711 and Sevaka Perumal etc. vs State of Tamil Nadu, AIR 1991 SC 1463.
7. I am not referring to the mandates of the above mentioned judgments 26 as well for the sake of brevity and the same may be read as part of this para. Suffice to say that crux of all the judgments mentioned above is that sentencing court has to make a delicate balance between the conflicting interests of the society and victim on the one hand and that of the convict on the other hand. No doubt, the balancing cannot be done in golden scales but an effort has to be made in this direction.
8. In the present case the facts require that much leniency cannot be shown. The reason for saying is that in present senario, commission of such like offences is on the rise, particularly in the metropolitan city of Delhi. The act of commission of robbery in the bus at the point of knives is a startling factor. Convicts dared to face the public and took the law into their hands for their illegal object of robbery. The offence committed by the convicts is punishable up to a period of 14 years. The fact that convicts threatened the passengers of the bus and created a situation of terror in the bus is an aggravating circumstance. However, a balance has to be maintained while awarding the sentence as no one is a born criminal and it is the circumstances which make a man criminal. Although it has not come on the record as to under what circumstances the convicts have become criminals, still it is a circumstance requiring consideration and is a mitigating circumstance. Submissions made by the convicts and their Counsel are also the mitigating circumstances, despite the fact that interest of the society is an aggravating circumstance.
9. Keeping in view the facts and circumstances of the case, I deem it expedient to sentence the convicts as follows:-
Convicts are sentenced to undergo RI for a period of 5 years each and a fine of Rs. 10,000/- each under section 392 IPC. In default of payment of fine, they shall undergo RI for a period of 9 months each. Convicts shall get benefit of set of. A copy of the judgment and order be supplied to the convicts 27 free of cost.
Announced in the Open Court (DILBAGH SINGH)
On this 2nd day of March, 2009 Additional Sessions Judge-01(E):
Karkardooma Courts, Delhi.