Delhi District Court
State vs . : Santosh Mishra @ Aslam on 17 July, 2020
FIR No.69/2017 Page No. 1 of 13
IN THE COURT OF DR.JAGMINDER SINGH:
CHIEF METROPOLITAN MAGISTRATE - (WEST)
TIS HAZARI COURTS: DELHI
State Vs. : Santosh Mishra @ Aslam
FIR No : 69/2017
U/s : 392/411/34 IPC
P.S. : Kirti Nagar
JUDGEMENT
1. ID No. of the Case : 2670/2017
2. Date of commission of offence : 03.03.2017
3. Date of institution of the case : 22.04.2017
4. Name of the complainant : Sh. Avdhesh Kumar
5. Name of accused persons, parentage & : 1) Santosh Mishra @ Aslam
address S/o Sh.Shiv Prasad
R/o H. No.9/35, Ramesh Nagar,
Delhi.
6. Offence complained off : u/s 392/411/34 IPC
7. Plea of the accused : Pleaded not guilty
8. Date on which order was reserved : not reserved
9. Final order : Convicted : 392 IPC.
Acquitted : 411 IPC.
10. Date of final order : 17.07.2020
Brief statement of reasons for decision :
1. In the present case charges against the accused are that on State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 2 of 13 03.03.2017 at about 09:00 pm at main Rama Road near Bhagat Singh Park, Kirti Nagar, New Delhi, Pahariwala Park, Mansarovar Garden, New Delhi, accused along with other coaccused (since JCL) in furtherance of their common intention committed robbery of purse containing Rs.4,120/, Aadhar Card, Attendance Card & Mobile Phone (Chineese Kachora) from the possession of complainant. Additional charge was also framed against him that on 03.03.2017 he was found in possession of aforesaid stolen property i.e. purse black colour make Armani with two notes of Rs.2000/, one note of Rs.100/, one note of Rs.20/ and one Aadhar Card belonging to complainant as per seizure memo Ex.PW1/C which he retained knowingly or having reasons to believe the same to be stolen property. The case was registered at the complaint of complainant Sh. Avdhesh Kumar. After completion of investigation, chargesheet was filed against the accused Santosh Mishra @ Aslam for the offences punishable u/s 392/411/34 IPC.
2. Accused was summoned. Copy of chargesheet was supplied to him. On the basis of primafacie evidence, charges were framed against the accused for the offences punishable under Sections 392 and 411 IPC to which he pleaded not guilty and claimed trial.
3. In order to substantiate the charges, prosecution has filed list of 06 witnesses and examined 03 witnesses.
4. PW1 Sh. Avdhesh Kumar stated that on 03.03.2017, in the night at State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 3 of 13 about 09:00 pm after completing his work, he was going towards the bus stand, when he reached at Bhagat Singh Park corner, two persons came in front of him and one of them pushed him and the other person hit him with something on his neck, due to which he fell down. One accused person took cash amount of Rs.4,120/, Aadhar card and one attendance card. Other accused person also took away his mobile phone make Chinese Kachoara. He shouted for help and two police officials came for his help and police officials were able to apprehend one of the accused persons who had committed said robbery with him. The person who had taken away his mobile phone had fled away from the spot. The person who was apprehended was identified as the accused Santosh. His Aadhar card, cash of Rs.4120/ and his purse was recovered from the accused Santosh. Police officials recorded his statement Ex.PW1/A. Police officials prepared site plan at his instance Ex.PW1/B. His purse having cash and Aadhar card was also seized vide seizure memo Ex.PW1/C. Police had arrested accused Santosh Mishra @ Aslam vide arrest memo Ex.PW1/D. He identified the case property during evidence i.e. one black colour purse, his Aadhar card and cash amount of Rs.4,120 with two notes of Rs.2000/, one note of Rs.100/ and one note of Rs.20/ as Ex.P1 (Colly).
5. PW2 Ct. Vinod stated that on 03.03.2017, he along with HC Narender were on area patrolling duty. At about 09:00 pm at Rama Road, Bhagat State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 4 of 13 Singh Park, they saw that two persons had caught hold one person and were about to choke him, the said person was shouting for help "BachauBachau". Upon seeing them, the two persons who had caught hold that person tried to flee away from the spot, one of the said persons ran away towards the other side of the road and managed to flee away, the other person ran towards Bhagat Singh Park and was apprehended by them. Upon cursory inquiry, the name of the said person was revealed as Santosh @ Aslam. Upon cursory search, one black colour purse was recovered from right side wearing pants pocket of accused. The complainant Sh. Avdhesh was also present and immediately identified the said articles as his own. HC Narender telephonically informed the PS about the apprehension and recovery. ASI Tarsem Lal arrived at the spot, HC Narender handed over the accused, recovered purse and complainant to the ASI Tarsem Lal. Upon checking the said purse, two notes of Rs.2000/ each, one note of Rs.100/, one note of Rs.20/, some identity documents were recovered like Aadhar card and attendance card. IO seized the said purse vide seizure memo Ex.PW1/C and sealed the same with the seal of TL. Seal after use handed over to him. IO recorded the statement of the complainant Ex.PW1/A. IO prepared the Tehrir and got the FIR registered through him. He went to the PS and got the FIR registered and returned back to the spot along with copy of FIR and original Tehrir and handed over the same to IO. IO prepared site plan Ex.PW1/B at the State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 5 of 13 instance of the complainant. IO completed the documents by mentioned the FIR number. After due inquiry, accused was arrested and personally searched vide memos Ex.PW1/D & Ex.PW2/A. Thereafter, accused and the case property were sent back to PS, the case property was deposited in the Maalkhana and accused was sent for medical examination and thereafter locked up in the lock of the PS. He identified the accused in the Court.
6. PW3 ASI Tarsem Lal stated that on 03.03.2017, he received DD number 37A Ex.A4 regarding apprehension of one person while committing robbery. He went to the spot i.e. Shahid Bhagat Singh Park, Kirti Nagar, Rama Road. He further deposed the identical version as of PW2 Ct. Vinod. He further stated that he prepared the Tehrir Ex.PW3/A. He recorded disclosure of accused vide memo Ex.PW3/B. Thereafter, accused and case property were taken to PS and case property was deposited in the Maalkhana and accused was locked up in the lock up. On the next day, at the instance of the complainant, juvenile/JCL (who was with accused Santosh Mishra @ Aslam at the time of commission of offence) was apprehended in Kirti Nagar vide apprehension memo marked PW3/C. Version of JCL is marked PW3/D. He recorded statement of witnesses and completed the investigation by collecting the CDR. CDR along with CAF and identity document are marked PW3/E Colly. After completion of investigation and recording statement of witnesses, he filed the chargesheet before the court. He State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 6 of 13 identified the accused in the Court. Case property is Ex.P1 Colly. Three photographs of the case property are Ex.P2 Colly.
7. No other witness examined by the prosecution. Accused admitted the documents i.e. copy of FIR Ex.A1, Certificate u/s 65B of Indian Evidence Act Ex.A2, Endorsement on Rukka Ex.A3, DD No.37A Ex.A4 & DD No.69B Ex.A5 u/s 294 Cr.P.C. vide separate statement. Thereafter, PE was closed and the statement of the accused was recorded under Section 313 Cr.P.C. in which he denied the allegations levelled against him and stated that he is falsely implicated in this case. He opted for defence evidence. Thereafter, matter was fixed for defence evidence. However, it is submitted by accused on 16.11.2019 that he does not wish to lead defence evidence, therefore, matter was fixed for final arguments.
8. Final arguments heard. Ld. APP for the State argued that case of the prosecution is proved beyond reasonable doubt against the accused. Accused had committed robbery with the complainant on a public road along with his accomplice i.e. JCL. Accused was apprehended at the spot and case property was recovered from him. All the witnesses had given corroborative statement. Accused is liable to be convicted for the offences alleged against him.
9. On the other hand Ld. Counsel for accused stated that accused has been falsely implicated in this case. There are several contradictions in the statement of complainant and his statement were recorded u/s 161 Cr.P.C. and State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 7 of 13 his crossexamination. Identification of the accused by the complainant is also doubtful as he could not tell that whether there was some light around the spot or not. The complainant was also not clear about presence of public persons at the spot. In statement u/s 313 Cr.P.C. in reply to the questions put to him, accused had clearly stated that he has been falsely implicated in this case. Prosecution is failed to prove the allegations against the accused beyond reasonable doubt. Therefore, the accused is liable to be acquitted in this case. Written arguments had also been filed on behalf of accused by Ld. Counsel.
10. I have considered the submissions made by both the parties and have perused the record. I have also gone through the written arguments filed by Ld. Counsel for accused. Charge has been framed against the accused in this case for the offences punishable u/s 392 IPC and for the offence u/s 411 IPC. Section 392 IPC describes punishment for robbery. Definition of robbery is given in Section 390 IPC which reads as under : "390. Robbery. - In all robbery there is either theft or extortion. When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 8 of 13 When extortion is robbery. - ..........................."
11. The definition of theft is given in Section 378 IPC. According to which whoever intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. Therefore, robbery is aggravated form of theft and Section 390 IPC prescribes the situation when theft becomes robbery. Section 392 IPC prescribes punishment for robbery.
12. Two eye witnesses have been examined by prosecution regarding the incident. PW1 is complainant himself. During his statement before the Court, PW1 had narrated the incident that on 03.03.2017 at about 09:00 PM when he was going towards the bus stand and reached at the spot, two person came in front of him. One of them pushed him and other one hit him with something on neck due to which he fell down. One person took out cash of Rs.4120/, Aadhar card and one attendance card from his possession and other one took away his mobile phone. Thereafter, he shouted for help and two police officials came there and apprehended one of the said accused persons. During evidence complainant had identified the accused Santosh Mishra @ Aslam correctly as the person who was apprehended by police officials at the spot.
13. PW2 Ct. Vinod corroborated the version of complainant and stated that he along with HC Narender while on patrolling duty at the time of incident State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 9 of 13 heard shouting for help "BachauBachau", and they went towards the spot where they found that two persons had caught hold the complainant. On seeing the police persons both accused persons ran away out of which one person i.e. accused was apprehended at the spot and one purse was recovered from his right side wearing pocket. The said purse was identified by complainant as his own and thereafter, they telephonically informed at the PS and IO/Tarsem Lal arrived at spot. PW2 had also correctly identified the accused during evidence. PW3/IO appeared as further chain of evidence and stated that on receiving information through DD No.37A i.e. Ex.A4, he went to spot where accused was found apprehended by HC Narender & Ct. Vinod. He seized the case property i.e. the black colour purse containing Rs.4120/, Aadhar Card and Attendance Card vide seizure memo Ex.PW1/C after sealing it with the seal of TL. He proved the statement of complainant Ex.PW1/A recorded by him and thereafter he arrested the accused vide memo Ex.PW1/D.
14. As per the IO, he prepared site plan, seizure memo and arrest memo at the spot in presence of complainant. Perusal of site plan Ex.PW1/B, seizure memo Ex.PW1/C and arrest memo Ex.PW1/D reveals that same are having name and signature of the complainant which corroborate the version of the IO. During crossexamination also all the witnesses had supported the prosecution case and nothing came out sufficient to discredit their testimony.
State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 10 of 13
15. Ld. Counsel for accused contended that there are various contradictions in crossexamination of the witnesses. Ld. Counsel pointed out that during crossexamination PW1/Complainant had stated that the accused persons caught hold of him from behind but same was not recorded in his statement Ex.PW1/A in which he had stated that accused persons came from front. Complainant stated that he was not aware about the light at the spot, therefore, he was not able to identify the accused. I have considered the contention of Ld. Counsel for accused. It is true that in statement Ex.PW1/A complainant had mentioned that at the time of incident accused persons suddenly came in front of him and pushed him and thereafter caught hold him. However, in his statement before the Court, he had stated that the accused persons caught hold him from behind. In crossexamination itself, the witness had clarified that accused persons came from front, however, he was pushed from behind. The combined reading of statement of PW1 before the Court as well Ex.PW1/A clarified that accused persons came from front and thereafter complainant was pushed and then was caught hold. During crossexamination the complainant had only clarified that he was pushed and caught hold from behind. The case property recovered from the accused at the spot i.e. Ex. P1 (Colly) was also correctly identified by the complainant at the spot as well as during evidence before the Court.
16. As per the case of prosecution the incident was of the month of State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 11 of 13 March at the time of about 09:00 PM at a road. The accused was apprehended at the spot just after commission of offence. In such circumstances a person with normal eye sight can easily identify the accused from close with the help of the availability of the natural light during such time. Court finds that these discrepancies are minor in nature and are not sufficient to disbelieve the testimony of witnesses. In case Lal Bahadur and others Vs. State (NCT of Delhi) 2013 II AD(CRI.)(SC)575 Hon'ble Supreme Court of India had observed that minor discrepancies in the statements of witnesses would not go to the root of the case and shake the basic version of the witnesses.
17. Hence, it has been proved by the prosecution that on 03.03.2017 at about 09:00 PM, the accused along with another JCL committed theft of purse containing cash of Rs.4120/, one Aadhar Card and one Attendance Card of the complainant at the spot and while committing the said theft, accused persons assaulted the complainant and also wrongfully restrained him. Therefore, the offence committed by the accused comes under the definition of robbery punishable u/s 392 IPC.
18. The accused has also been charged for the offence punishable u/s 411 IPC. Section 411 IPC prescribes punishment for dishonestly receiving or retaining of stolen property. The property possession whereof has been transferred by robbery also comes under the purview of stolen property as per State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 12 of 13 Section 410 IPC. Regarding recovery of stolen property, it has been submitted by all the prosecution witnesses that the recovery has been effected from the accused at the spot and just after commission of the offence of robbery. There is no any interference of any third party/person in transferring of case property from complainant to accused. It is a settled law that a person cannot be held guilty simultaneously for the offences of stealing and retaining of the same case property. It has also been laid down in Halsbury's Law of England, III Edition, Vol. X, Page 811 that, "a person who is guilty of stealing goods as a principal in either the first or the second degree cannot be convicted of receiving then". In present case also the thief has been apprehended at the spot along with the goods stolen by him and has been held guilty for the relevant offence of stealing. Therefore, he cannot be held guilty separately for the offence punishable u/s 411 IPC.
19. First part of Section 392 IPC prescribes for punishment for the offence of robbery and second part of this Section prescribes for more punishment for the same offence if it has been committed on the highway between sunset and sunrise. As per the prosecution version, in the present case the offence of robbery was committed at about 09:00 PM. Date of commission of offence is 03.03.2017. Therefore, it is clear that the offence was committed after sunset but it is not the case of the prosecution that the offence was committed at highway. Neither in complaint nor in statement before the Court it is stated by complainant that the State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar FIR No.69/2017 Page No. 13 of 13 offence was committed with him at any highway. There is no any other evidence placed on record by the prosecution to show that the offence was committed at any highway. Hence, this case does not comes under the purview of second part of Section 392 IPC.
20. In view of the aforesaid discussion, accused stands acquitted for the offence punishable u/s 411 IPC. The prosecution had successfully established its case against the accused for the offence of robbery beyond reasonable doubt. Accordingly, accused Santosh Mishra @ Aslam S/o Sh. Shiv Prasad stands convicted for the offence punishable u/s 392 IPC in present case FIR No.69/2017, PS Kirti Nagar.
21. Let the convict be heard on the point of sentence.
Announced in open court
on 17.07.2020 (Dr. Jagminder Singh)
Chief Metropolitan Magistrate/West
Tis Hazari Courts, Delhi.
Note: This judgment contains Thirteen (13) pages and having my signature on each page.
(Dr. Jagminder Singh)
Chief Metropolitan Magistrate/ West
Delhi/17/07/2020
State vs. Santosh Mishra @ Aslam & Ors. PS:Kirti Nagar