Delhi District Court
Sc No. 57834/16 , Fir No. 369/11 Ps. ... vs . Vijay @ Vinay @ Bable & Ors Page No. 1 on 30 November, 2016
IN THE COURT OF DR. ARCHANA SINHA
ADDL. SESSIONS JUDGE02, NORTH
ROHINI COURTS, DELHI
STATE CASE No..........................................57834/16
FIR No. 369/11
PS Prashant Vihar
U/S: 397/395/411 IPC
State
Versus
1) Vijay @ Vinay @ Bable S/o Sh. Ramesh Chand Gupta,
R/o Village Pooth Kalan Gram Sabha Kachi Colony, Delhi.
2) Raju S/o Ram Parsad
R/o Village Ujhani, P.O. Ujhani Distt. Badayun, U.P.
3) Pushpa W/o Ram Niwas
R/o VPO Ujhani, Distt. Badayun, U.P.
4) Poonam W/o Monu
R/o Village Pooth Kalan Gram Sabha Kachi Colony, Delhi.
5) Pooja W/o Vijay @ Vinay @ Bable
R/o Village Pooth Kalan Gram Sabha Kachi Colony, Delhi.
Date of institution: 26.11.2011
Judgment reserved on: 29.11.2016
Judgment delivered on: 30.11.2016
ORDER/JUDGMENT:
1) Vijay @ Vinay @ Bable S/o Sh. Ramesh Chand Gupta Convicted U/s 395 r/w 397/412 IPC
2) Raju S/o Ram Parsad Convicted U/s 395 r/w 397/412 IPC
3) Pushpa W/o Ram Niwas Convicted U/s 395/34 & 412 IPC
4) Poonam W/o Monu Convicted U/s 395/34 & 412 IPC
5) Pooja W/o Vijay @ Vinay @ Bable Convicted U/s 395/34 & 412 IPC
J U D G M E N T
1.Brief resume of the facts of the prosecution case is that one Smt. Poonam SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 1 Ahuja, the complainant got recorded her statement on the allegations that on 09.08.2011 at about 12.15 PM, at E28, Prashant Vihar, Delhi, when her husband Sh. Sanjay Ahuja left the house for his work and her two maid servants Smt. Pushpa and Ms. Poonam were present in the house, one boy of the age of about 2526 years ( accused Vijay, whose name and relation with her maid servant Pushpa as his motherinlaw, came to know, later on) entered with knife in her room and threatened with dire consequences, thereupon another boy ( accused Raju, whose name and relation with her maid servant Pushpa, came to know, later on) entered and both had tied her hands, legs and mouth with two strings and one cloth and ransacked her house and looted/committed robbery of Rs. 4 lacs cash, jewellery etc., including 10 bangles of gold, on the point of knife and on asking help both of her maid servants namely Pushpa & Poonam did not come to her rescue as they along with one Pooja (another daughter of Pushpa), were conniving and having the common intentions with both the accused Vijay & Raju, for commission of such act.
2. On such complaint, the investigation was entrusted to one SI Manoj Kumar, who along with Ct. Om Prakash inspected the place of occurrence, recorded the statements of witnesses, prepared site plan and an FIR No. 369/2011 was registered with PS Prashant Vihar, u/s 395/397/411 IPC. During investigation accused Vijay was arrested on 10082011 and on his disclosure and pointing out cash of Rs. 50,000/ and some jewellary was recovered and at his instance on receiving information, on 11082011, the other accused person Pushpa, Poonam and Raju were got arrested from Bas Terminal SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 2 Anand Vihar, Delhi and at their disclosure and pointing out an amount of Rs. 50,000/ with Jewellary, amount of Rs. 65,000/ and Jewellary and an amount Rs. 50,000/ with Jewellary and another amount of Rs. 89,620/ and Jewellary were recovered from Pooja, Poonam, Raju & Pushpa respectively, in consonance of their disclosure statements and pointing out.
During the course of investigation, the recovered case property was duly identified in TIP by the complainant and the accused persons Vijay and Raju have refused to participate in TIP for their identification. On completion of investigation, final report/charge sheet under section 173 Criminal Procedure Code ( hereinafter referred as Code) was submitted in the court for trial.
After compliance of the provisions of section 207 of the Code, the case was committed to the court of Sessions against all the accused five persons for the offences punishable under section 395/397/411 IPC.
3. Vide order dated 16012012, the Predecessor Court of Sh. Rajnish Bhatnagar, framed charges against all the accused persons for the offences under section 395, 397/411 IPC, to which they have pleaded not guilty and claimed trial.
Thereafter, vide order dated 13122014, the Predecessor Court of Sh. Rajnish Bhatnagar, amended the charges against all the accused persons for the offences under section 395, 397/412 IPC, to which they have pleaded not guilty and claimed trial. Hence the trial has commenced.
4. To establish the guilt of the accused persons, the prosecution has examined SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 3 as many as 12 Prosecution witnesses viz.,
a) Complainant PW1 Smt. Poonam Ahuja, the complaint was the material key witness of the prosecution to prove the allegations levied against the accused persons and she has exhibited her complaint Ex. PW1/A, Site plan Ex. PW1/B, List Ex. PW1/C of alleged looted articles, Seizure memo Ex. PW1/D of two strings & cloth, Consent Ex. PW1/E for her medical examination, TIP proceedings Ex. PW1/F of the case property, Superdarinama, affidavit & Indemnity bond Ex. PW1/G to J for release of case property along with photographs of jewellary and sealed parcel of the jewellary Ex. PW1/L1 to PW1/L23 and photographs of currency notes Ex. PW1/M Colly;
b) Medical Witness PW6 Dr. Kuldeep Singh was a medical witness who has conducted the medical examination of complainant Smt. Poonam Ahuja. This witness has exhibited the MLC Ex. PW6/A and has given opinion Ex. PW6/B on the injuries of Smt. Poonam Ahuja.
c) Witnesses of Investigation Whereas witnesses PW2 Ct. Rajbir, PW3 HC Ram Kumar & PW4 SI Anil Kumar were from Mobile Crime Team and were the witnesses of investigation, on the spot who reached the spot, took photographs of the occurrence and listed the finger prints & PW4 exhibited his report Ex. PW4/A. PW5 Ct. Om Prakash, PW7 Ct. Neelam Meena, PW9 HC Roshan Lal, PW10 Ct. Naveen Kumar, PW11 Ct. Geeta & PW12 SI Manoj Kumar, were the witnesses of investigation and had come to the witness box to prove their role played by SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 4 them during the course of investigation.
PW8 ASI Rani Jassal was a formal witness produced to prove the registration of FIR on the basis of Rukka produced by SI Manoj Kumar brought by Ct. Om Prakash.
5. On the evidence of the prosecution being closed, the statements of the accused persons namely Vijay @ Vinay @ Bable, Raju, Puspa, Poonam, & Pooja were recorded in terms of section 313 of the Code through which they denied all the incriminating/material evidence put to them and they pleaded their innocence and false implications, however, they did not examine any witness in defence.
6. During the course of arguments, Ld. Addl. PP for the State has submitted that there exists enough evidence against all the accused persons particularly that of the testimony of Ms. Poonam Ahuja, PW1, the complainant who has wholly supported the prosecution case and even her testimony remained unimpeached on the test of crossexamination and that the prosecution has successfully proved its case beyond reasonable doubt against all the accused persons for the offences they were charged.
Hence, it is prayed that the accused persons may be convicted accordingly.
7. On the contrary, Ld. Counsel for the accused persons has submitted that there are material discrepancies, contradictions, improvements and exaggerations in the testimony of PW1, the complainant, who was the star witness of the SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 5 prosecution and such discrepancies, contradictions, improvements and exaggerations are fatal to the Prosecution case which create doubts in the Prosecution story and due to these doubts, the accused persons are entitled for the benefit of doubt.
It is, therefore, prayed that the accused persons may be acquitted of the alleged charges by giving them a benefit of doubt, in the interest of justice. It is also submitted on behalf of accused persons that due to some money transaction of her maid Pushpa, the complainant, her employer falsely implicated her & her relative in this robbery.
8. On having heard the rival submissions of Ld. Counsel for the accused persons and Ld. Addl. PP for the State and on having perused the records meticulously in the light of such submissions, it is observed that it is not disputed that accused Pushpa was the maid servant of Smt. Poonam Ahuja, the complainant, on the date of occurrence and accused persons namely Poonam and Pooja, the two daughters of accused Pushpa used to accompany frequently or occasionally with accused Pushpa during her working as maid in the house of the complainant, Smt. Poonam Ahuja.
Also that accused Vijay was husband of accused Pooja, the daughter of accused Pushpa, the maid of the complainant, Smt. Poonam Ahuja. It is also not in dispute that at the time of occurrence accused Pushpa along with her daughter accused Poonam were working as maid in the house of Smt. Poonam Ahuja, the complainant.
SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 69. Before proceeding further, to appreciate the evidence on record, as per the settled legal propositions, the prosecution, for establishing the offences alleged under sections 395/397/411 IPC, against the accused persons Vijay @ Vinay @ Bable, Raju, Puspa, Poonam & Pooja, facing trial before this court, has to prove the following ingredients:
For offence under section 395 IPC
i) that the robbery was committed voluntarily causing hurt by accused persons, acting conjointly and
ii) that the above acts were done during the commission of robbery or dacoity.
For the offence under section 397 IPC
i) that such accused persons were five or more in number & used a deadly weapon at the time of committing robbery, caused or attempted to cause grievous hurt to the person robbed.
ii) that the above acts were done during the commission of robbery or dacoity.
And for the offence under section 412 IPC
i) that the property in question is stolen/robbed one
ii) that the accused persons received or retained such property dishonestly, knowing or having reasons to believe that the property retained or received have been transferred by the commission of dacoity/robbery.
10. To establish, the offences alleged against the accused persons, the prosecution case is basically and heavily relying on the sole testimony of Smt. Poonam Ahuja, the complainant/victim/injured/eye witness of the prosecution.
11. In a criminal trial, the ocular evidence of an eye witness is always the best evidence but it is a settled norm that the testimony of the eye witness is required to be analyzed carefully to test the reliability, credibility and truthfulness of the witness.
SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 7It is also a settled principle of law as settled in the case titled as State of Rajasthan Vs. Smt. Kalki & Anr., AIR 1981 SC 1390 , wherein it is observed that, "In the depositions of (eye) witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like.
Material discrepancies are those which are not normal, and not expected of a normal person."
Thus, minor infirmities and discrepancies are bound to occur in the normal course yet there is no reason to reject their testimonies, if it is corroborated and supported with the other evidence connected with the offence.
12. In the present case, the entire case of the prosecution revolves around the testimony of the complainant/victim Smt. Poonam Ahuja, examined as PW1, who has supported the case of the prosecution not only on the identity of the accused persons and about the manner of occurrence but also on the aspects of recovery of the robbed items i.e. currency amount and the jewellary etc.
13. On appreciation of evidence of PW1, the star witness of the prosecution, it is observed that this witness has given the detailed account of occurrence at the relevant date, time and place.
A relevant extracts from the testimony of PW1 is extracted below:
'Around 12.1512.30 p.m., one person came inside the room who was having a knife in his hand ( witness has correctly the accused who was having a knife in his hand namely Vijay). On seeing the knife in the hand SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 8 of accused Vijay I got scared and could not raise alarm due to fear. In meantime, I called accused Pushpa but I heard the nose of falling of bucket in the bathroom and as my bathroom was having two doors so Pushpa left the bathroom from the second door which opened towards other bedroom. Accused Vijay threatened me to kill with knife if I raise alarm. Accused Vijay pushed me on the bed and he caught me form my legs. In the mean while one more boy came inside my room ( the witness has correctly identified accused Raju) and threatened me and pressed my face with both hand. Accused Raju or Vijay one of them said that take out a big knife only then she would tell about the valuables. Hearing this I told them that they can take whatever they want but they should not stab me. Accused Raju tied my face with a blue colour cloth and at that time accused Vijay was holding my legs and hands. After they both the accused tied my hands and legs with a string (Naada). They both abused me and as far as I remember accused Vijay slapped me very hard number of times on my head which caused severe pain to me .
Accused persons had removed my bangles while they were trying my hands which I came to know later on. My purse was lying on the part of the Almirah and I told them to take the keys of Almirah from my purse. I could speak with difficulty due to my mouth being tied. At this stage, I do not remember which of the two opened the Almirah but they opened my Almirah and removed my jewellary and cash from Almirah.
In between accused persons used to abuse me and given me beatings. Thereafter, accused persons opened the bed of both the rooms.
Then they both took me inside the bathroom and again tried to tie me in the bathroom so that I could not escape. Accused Vijay threatened me to keep quiet and he slapped very hard on number of times. Thereafter, they closed both the doors of the bathroom. They also took my mobile make Samsung M369 with them and left the house.
I had called my maid Pushpa several times but she did not turn up when the accused Vijay and Raju were beating me and robbing. I suspect both my maids namely Pushpa and Poonam to be in connivance with Vijay and Raju.
On some of times Pushpa used to come for work at my home with her daughters Poonam and Pooja present in the court today. On the day of incident, Pushpa, Pooja, Poonam, Vijay and Raj Kumar were sitting in SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 9 the park. The park is visible from my house. I called Pushpa inside my house for work. Poonam came to my house for work and when I enquired from Poonam why Pushpa is not coming inside, she said that she would come within two three minutes. After some time, Pushpa came inside the house and started talking with Poonam in the kitchen. Thereafter, this incident happened'.
14. PW1 has categorically deposed in her testimony that on 09082011, when her husband has left for his office and she was alone in her house with Smt. Pushpa, her maid and her daughter Ms. Poonam, who were working in her house and Ms. Poonam had gone outside the house, after leaving the latches of the main door opened (for providing clear access/entry in the house by other accused) and that on asking, her maid Smt. Pushpa informed her that her daughter, Ms. Poonam had gone out of house for toilet.
Also that at about 12:15 PM to 12:30PM, one person (Vijay) entered into the room, having knife in his hand, she called her maid Pushpa ( for help) but she (she did not come for her rescue) left the bathroom from the second door and accused Vijay threatened her with knife, caught hold her legs and in the meantime another boy (Raju) came inside and threatened her and that due to fear she informed about her valuables, they tied her with stings and covered her mouth with cloth and looted her house, thereby removed her jewellary and cash etc. She also informed that on the day of incident, she saw Pushpa ( her maid), Pooja & Poonam ( the daughters of the maid), Vijay ( soninlaw of her maid Pushpa & husband of Pooja) & Raj Kumar ( Raju, a relation of Pushpa) sitting in the park , that was visible from her house, then she called Pushpa, her maid but SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 10 Poonam, her daughter came for work and informed that Pushpa, (her mother) would come within 23 minutes and after some time Pushpa came and started talking with Poonam in the kitchen and thereafter this incident happened.
15. It is observed that PW1 has categorically and clearly deposed about the roles played by each of the accused persons during commission of robbery, positioning them, as per their plan, by all five accused persons, placed at their positions, in or near the spot of occurrence.
Further, this witness, PW1 remained unshattered and unrebutted despite a detailed and lengthy crossexamination conducted by the counsels of the five accused persons on the material points particularly on the counts of the manner of occurrence and about placing of each of the accused persons at a particular position playing their roles at a particular point of time, at the time of preparation & commission of the offence.
16. It is specifically observed that the witness has given the account of occurrence in a chronological manner of the entry/exit of accused persons and their conduct and activities at a particular point of time and on that count this witness stood firm on the test of her crossexamination.
17. She has very clearly deposed that prior to the incident , just before some time, all five had a meeting in the park, Ms. Poonam ( accusedA1) entered first in the house at about 12 Noon, Smt. Pushpa ( accusedA2) entered after A1, Ms. Poonam left opening door ( to provide access), Vijay (accusedA3) entered SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 11 inside the room with knife at about 12:15 12:30PM, threatened her with knife to kill, if alarm raised, pushed her, caught hold of her legs thereafter, Raju ( accusedA4) entered inside the room, both thr eatened her, she gave information about her valuables, they tied her hands and legs and covered her mouth, they removed bangles from her hands, taken out keys from her purse , looted jewellary, cash etc., Pooja ( AccusedA5) kept awaiting in park and managed three vehicles for the escape of all the accused persons with valuables after robbery.
Her versions as PW1 not only stood unshattered on the test of cross examination but was absolutely corroborative with her statement/complaint Ex. PW1/A, given to the police, on these counts.
18. Her version regarding the manner of occurrence, beatings given to her at the hands of accused Vijay and Raju during the occurrence was also corroborative and supported with the medical evidence i.e. MLC Ex. PW6/A, wherein the injuries recorded were res ipsa locuitor ( things speak itself) to state the story of occurrence exactly on the same lines as were recorded in her version as PW1 and in her complaint Ex. PW1/A, to prove the prosecution case.
Thus, the ocular version of PW1, was not only corroborative to her previous version given in her complaint Ex. PW1/A, to get support of the documentary evidence Ex. PW1/A but also got strengthened with the medical evidence and the witness also stood true on the test of crossexamination, that could not show any contradiction or discrepancies on the count of reproducing the occurrence/incident happened with her and thus, the facts stated by her get established, in view of the SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 12 law settled in the case titled as Mohinder Singh Vs. State of Punjab, 2006 AIR ( SC) 1639, wherein it was observed by the Hon'ble Apex Court that, 'the ocular version of the witness found support from the medical evidence and the crossexamination of the witness could no show any contradiction or discrepancy' .
that established the facts stated by the witness about occurrence to prove the manner in which the robbery was committed by all 5 accused persons as such medical evidence i.e. MLC details the injuries that match exactly to the version of PW1.
19. Further, it is observed that during the crossexamination of PW1, her testimony was 'confronted' with her statement Ex. PW1/A only on one count that she had not recorded the incident of meeting of all five accused persons in the park prior to the incident that she saw all of them having a meeting in the park.
This discrepancy in the two versions of PW1 and of her complaint Ex. PW1/A, appears to be normal demeanor of a human being, who was the victim of the circumstances and had suffered not only the physical assault but a monetary loss of her assets with emotional loss of her jewellary collected since years having sweet memories attached, coupled with a shock and surprise of ditching and eroding trust and the dirty planing of her maid servant with his kids and kinds, who was instrumental for commission of such robbery that was a horror dream of her life.
At that time giving an account of the occurrence, and not narrating the SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 13 connecting incident of a prior meeting of all five accused persons in the park, is a normal behaviour of victim under shock & not disclosing such facts does not make her version untrustworthy on the count of stating of the facts about robbery to the police persons regarding the prior meeting of accused persons in the park, when she was vomiting out the chronological account of facts of occurrence to the police.
20. Such issues of such kind of discrepancies/contradictions were dealt with in the case titled as State of Rajasthan v. Smt. Kalki & Anr., AIR 1981 SC 1390 , wherein it was observed that, "In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person."
21. Thus, the contradiction regarding nondisclosing of the incident of prior meeting of the accused persons in the park in Ex. PW1/A and recording such facts in her depositions as PW1, appear to be due to normal errors of memory and due to mental disposition of shock and horror at the time of the occurrence as she was the victim and was also the complainant of the occurrence.
22. On appreciation of the testimony of PW1, it is observed that the witness was true, honest and truthful in her version and was sufficient to establish the facts regarding the manner of occurrence, it had taken place.
SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 14Further, in this case the prosecution has heavily relied on the sole testimony of PW1, the complainant and it is observed that 'the quality' of her depositions is such that it is sufficient to establish the necessary facts, that inspires confidence even without need further corroboration for proving occurrence at the relevant date, time and place.
23. It is a settled principles of law that it is not the quantity of evidence but the quality that matters in proving certain facts in a criminal trial.
24. Further, PW12 SI Manoj Kumar is produced by the prosecution to prove the investigation & the facts regarding apprehension of the accused persons and the recovery of the robbed items effected from their possession, in consonance of their disclosure & at their pointing out & instances from their cloth from the different places/in occupation of them.
As per the brief extracts of his testimonies, it is observed that this witness has deposed that after recording of the statement Ex. PW1/A of the complainant on 09082011, the day of incidence, the FIR No. 369/2011 Ex. PW8/B was registered in PS Prashant Vihar and the complainant produced the list of robbed items Ex. PW1/C. Further that on 10082011, on the basis of secret information, he along with Ct. Naveen and W/Ct. Komal apprehended accused Vijay from Pathar Market, Mangolpuri, Delhi, vide pointing out memo Ex. PW12/C1, he pointed out the place at which he robbed and in consonance of his disclosure statement Ex. PW10/D, SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 15 recovery of cash amount of Rs. 50,000/ and a part of the jewellary items was effected from his possession vide seizure memo Ex. PW10/A. Also that at his instance, on the intervening night of 10 & 11 August, 2011, PW2 constituted a team of nine members including 1 Inspector, 1 SubInspector, 1 Head Constable, 4 Constables and 2 Lady Constables and they apprehended accused Pushpa, Poonam, Pooja & Raju from Anand Vihar Bus Terminal at about 1 PM and they disclosed about commission of the robbery vide their disclosure statements Ex. PW7/C1 to C3 & Ex. PW10/X1 and in consonance of such disclosure, the recovery of robbed items was effected from each of the four accused persons from their person and also at their instance from the different places, occupied by the accused persons Pushpa, Poonam, Pooja & Raju, as they pointed out, vide recovery memos Ex. PW7/B1, B2, B3 & Ex. PW7/A respectively.
This witness PW2/IO was put under extensive crossexamination but except of the minor discrepancies, this witness stood firm on his testimony almost on all material points regarding apprehension of accused, disclosures, pointing out & recovery effected from the accused person and the testimony of this witness was also corroborated by another members of the team of investigation on such points, examined as PW5,PW7, PW10 & PW11.
25. It is observed that the testimony of PW12 is corroborated with the testimony of Ct. Naveen, PW10 on the facts that the accused Vijay was apprehended at the instance of secret informer and made disclosure statement Ex. PW10/D that he along with other four accused persons namely Pushpa, Poonam, Pooja & Raju, SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 16 robbed the house of Ms. Poonam Ahuja and in consonance of his disclosure statement and at his instance, the part of the robbed items were recovered vide seizure memo Ex. PW10/A.
26. Further, on appreciation of evidence of the investigating team, it is observed that the testimony of PW12 was further corroborated with the testimony of W/Ct. Neelam Meena, PW7, HC Roshan LAL, PW9, Ct. Naveen, PW10 & Ct. Geeta, PW11, regarding the facts that accused Pushpa, Poonam, Pooja & Raju were apprehended from the Anand Vihar Bus Terminal and they had disclosed that they along with accused Vijay fetched a plan of committing robbery in the house of the complainant Ms. Poonam Ahuja, where Smt. Pushpa ( the mother of Poonam, Pooja and motherinlaw of Vijay) was working as maid servant and she told them that her owners are very rich and in their house, there is plenty of cash, valuables & jewellary and in the absence of the male members, when the complainant remains alone in the house, after her husband leaves for office, when the robbery could be committed.
They also disclosed that they planned in advance, as to how each of the five persons would play their roles in coordination to each other and that for final execution, they will meet at the park, in front of the house of the complainant and after committing the robbery, they all will meet at that place and then will share their booty of the robbed items and cash. Also that they met in the park, for meeting, in front of the house of the complainant and they ran away in a TSR.
SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 17The disclosure statements of accused Pushpa, Poonam, Pooja & Raju were exhibited PW7/C1 to C3 & PW10/X1 respectively and in consonance of their disclosure statements and at their instances, the robbed items, detailed in their respective seizure memos PW10/X4, PW7B/2, PW7B/3, PW10/X3 were recovered.
27. Further, for the recovered robbed articles, that were already in the list of robbed articles Ex. PW1/C, the Test Identification Prade was conducted by PW12 and the complainant PW1 duly identified her robbed items & such items were exhibited as Ex. PW1/L1 to PW1/L23 and for cash, the copies of the currency notes were exhibited Ex. P1/M (Colly.), in the court.
28. As per the legal propositions of law of evidence, the disclosure statements of all the five accused persons disclosing the manner of occurrence, fetching of the plan and about their specific role played by each of the accused persons, during commission of the robbery, are admissible in evidence u/s 27 of Indian Evidence Act, as in consonance of such disclosure statements of the accused and at the pointing out of all such accused persons, the recovery of the robbed items had been effected and the robbed items so recorded were duly identified by the complainant/the owner of such property/valuables.
29. The facts stated by these accused persons in their disclosure statements were corroborative with the testimony of PW1, the complainant, who has narrated a bitabit chronology of events occurred on 09082011, stating clearly the roles of each of the accused persons played in commission of the robbery by all of SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 18 them, in furtherance of their common intentions, with premediation of of mind, even just prior to execution of their plan of robbery prove the mens rea i.e. state of mind of the accused.
30. Further, it is duly proved by the prosecution that the accused Vijay & Raju were the active participants of committing robbery physically by entering with knife in the dwelling house of the complainant on the bee hours of the day to prove the elements of actus rea on their part, whereas, the other accused Poonam has played the role of providing an access/entry of these two accused persons Vijay and Raju in the house of the complainant as she left opened the door of the house on the pretext of leaving for the toilet, accused Smt. Pushpa, the maid servant intentionally did not close the latches of the door, to aid & allow the accused Vijay and Raju 'easy' entry in the house & also despite being present in the bathroom of the portion of the house at the time of commission of robbery by accused Vijay and Raju, she did not come to rescue her employer, the complainant, despite she asked for such help, rather she left the house from another gate.
Thus, her abovenoted acts and omissions are covered within the ambit of actus rea on her part. The fifth accused Pooja was waiting outside the house in the park to arrange transport/two wheeler, to make the arrangement of running of all the accused persons with the robbed articles from such place of occurrence to their destination. Therefore, though she was not present in the place of occurrence at the time of robbery but her presence near the place of occurrence SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 19 has made her participation as 'accusedinwait' for the rescue/departure of the other accused persons who physically participated in the commission of the crime.
31. Ld. Counsel for the accused Pushpa has raised the contention that non helping /assigning her employer or leaving of the place of occurrence cannot be assumed to be her participation as she did so because of fear and saving of her life.
This contention for accused Pushpa appears to be strange when it is an admitted fact that she was mother in law of accused Vijay & accused Raju was residing with her in her house and he was of her native village.
Thus, the contention has no strength as there was no reason of fear of Smt. Pushpa, from her soninlaw Vijay & relative Raju.
32. Accused Vijay and Raju, when were asked to be identified in formal TIP by the complainant, they have refused to participate in such TIP vide TIP proceedings Ex. PW12/H & I & these facts lead to an adverse inference against them that in case of their participation in TIP by the complainant they would have been correctly identified by her.
Further, both these accused persons were duly identified by the complainant as PW1 in the court.
33. Other three accused persons namely Pushpa, Pooja and Poonam were already known to the complainant being accused Pushpa was the maid servant already working since months prior to the occurrence and she used to come SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 20 alongwith her daughters accused Poonam and Pooja for work occasionally & frequently in her house.
34. Accused Smt. Pushpa was admittedly the maid servants of the complainant and was assigned the work of cleaning, moping the floor and washing the utensils and was having a proper knowledge about the places of keeping of the valuables, jewellary items & cash and also had an easy & consensual access to come to her house as maid servant along with her daughters accused Poonam and Pooja.
35. Accused Raju was related to accused Pushpa and was residing in her house, as per the disclosure statements of accused persons duly proved on record & accused Vijay was the soninlaw of accused Pushpa and was husband of accused Pooja, the daughter of the accused Pushpa, the maid servant of the complainant.
Thus, as per the established facts on record, in the preponderance of all probabilities with moral certainty of the factum of their joining hands for the purpose of robbing the house of the employer of accused Pushpa was likely as well as most probable outcome, on the test of reasonable prudence.
36. Their presence in the park, in front of the house of the complainant, soon before the occurrence establishes the premediation of minds of all the accused persons to commit the robbery in furtherance of their common intentions, proves their common design for commission of the act of robbery by all five persons.
37. Also, their disclosure statements stating the story of joining their hands with SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 21 common object of robbing the house of the complainant and sharing the booty was duly corroborated with the recovery of robbed items, (duly identified by the complainant after recovery), in furtherance of their common intentions, in preplaned manner with concert premediation of mind, even just prior to commission of such robbery duly proves the commission of robbery by all the accused persons conjointly.
38. As per the settled legal propositions of law, in the case titled as Sharad Birdhichand Sarda Vs. State of Maharastra, cited as AIR 1984 SC 1622, the Hon'ble Apex Court has laid down the tests of certain pre−requisites before recording conviction in a criminal trial, which are as under:
i). The circumstances from which the conclusion of guilt is to be drawn 'must or should' and not 'may be' fully established.
ii). The facts so established should be consistent only with the hypothesis of the guilt of the accused persons & these established facts should not lead or be explainable on any other hypothesis except that the accused are guilty;
iii). The circumstances should be of conclusive nature and tendency;
iv). They should exclude every possible hypothesis except the one to be proved; and
v). There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
39. The above settled principles of law when applied to the facts of instant case, it is observed that the prosecution is able to establish the facts beyond reasonable SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 22 doubts that the testimonies of the victim/complainant Smt. Poonam Ahuja and of the witnesses participated in the investigation with the supporting documentary evidence came on record that;
i) Five accused persons namely Vijay, Pushpa, Poonam, Pooja & Raju joined their hands and had premediation of their minds for commission of the robbery of the valuables in the house of Smt. Poonam Ahuja, the complainant, who was employer of Smt. Pushpa;
ii) On a scheduled place, time and date, they fixed a meeting in a park to set the point to point programme and placing of them to accomplish their mission of robbery in the house of Smt. Poonam Ahuja, the complainant;
iii) All five accused persons have set their positions as per schedule with zero defect plan and all have acted according to such plan;
iv) All five accused persons have succeeded in commission of robbery, as per their scheduled plan;
v) All have left from the place of occurrence for their destinations for sharing & disposal of the valuables robbed by them.
vi) All have shared their booty and knowingly retained the robbed articles with them with dishonest intentions of their disposal as per their whims;
But unfortunately for them, police played smarter than them as before they could dispose of their 'booty', they all (the accused persons) were apprehended and the robbed articles were recovered from their possession, at their instance.
40. Through the testimony of PW1 Smt. Poonam Ahuja, the occurrence of commission of robbery by five persons, namely Vijay, Pushpa, Poonam, Pooja & Raju, in furtherance of their common intentions, on 09082011 at about 12:15 PM, at her house No. E28, Prashant Vihar, Delhi, was proved.
SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 23Her testimony was qualitatively without any dent as she stood firm on the test of crossexamination and she had only minor contradiction of certain facts which she could not bring before the police at the time of recording of her complaint Ex. PW1/A. It is observed that these facts were relating to the factum of removing of her bangles by accused Vijay, when she was tied by him, during occurrence, regarding certain facts of searching of her bed at the time of loot by the two accused persons Vijay and Raju and regarding the facts of the presence of all the five persons in the park, in front of her house, just prior to the incident.
41. These facts were such facts which could be treated as 'omissions' due to normal error of observations, lack of memory & due to mental disposition such as shock and horror at the time of occurrence, she was undergoing during the occurrence and these omissions from her memory at the time of recording of complaint are expected to be from a normal human being particularly a woman who was a household lady and was alone at the time of occurrence.
42. It is a settled propositions of law as settled in case titled as State of Rajasthan v. Smt. Kalki & Anr., AIR 1981 SC 1390 , that normal discrepancies occurring due to human errors of memory or due to shock and horror of the occurrence do not corrode the credibility of a witness and it was observed that, 'In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person.' SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 24
43. Further, regarding the variation in the statement of the witness, in case titled as Sunil Kumar Sambhudayal Gupta Vs. State of Maharashtra, Criminal Appeal No. 891/2004 , the Hon'ble Apex Court observed that, 'Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier'.
44. The truthfulness of the version of this witness can be inferred from her account given in the complaint regarding the occurrence in absolutely similar manner as was of in her testimony.
Also, she stood firm on the test of crossexamination and on the material facts regarding the manner the occurrence had taken place and the role played by each of the accused persons, without any rebuttal on such material facts, thereby establishing that with intention to rob the complainant house, all the accused persons joined together and committed the robbery of valuables, cash and jewellary.
45. Her ocular version as PW1 was corroborated with the medical evidence of Dr. Kuldeep Singh, PW6, who exhibited the MLC No. 7525/11 Ex. PW6/A and the details of the injures i.e. bruises, abrasions & tenderness on different parts of the body mentioned in MLC were exactly tallying with the story of occurrence as detailed by her regarding the activities of accused Vijay and Raju, who tied her with two strings & covered her face with cloth.
SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 25In case titled as Mohinder Singh Vs. State of Punjab, 2006 AIR ( SC) 1639, it is observed by the Hon'ble Apex Court, 'the ocular version of the witness found support from the medical evidence and the crossexamination of the witness could no show any contradiction or discrepancy''.
Thus, the medical evidence proves the truthfulness of the testimony of PW1.
46. The contrary defence of the accused persons that Smt. Pushpa, her maid and her relatives were falsely implicated due to some money transactions and for the reasons of the accused persons failed to return such money, neither being proved by the accused persons nor any details were ever proposed or suggested for any such amount of money/transactions between the complainant and accused Smt. Pushpa.
Rather, during the course of arguments, it was admitted by Smt. Pushpa that she was engaged just few months before the incident in the house of the complainant and question of any money transaction or advance or nonreturn of such advance by her, does not arise, if these facts are tested on the test of reasonable prudence that no employer shall give advance to a newly appointed maid nor such big robbery could be planted for such petty issue as raised in defence, nor any such facts were proved by the accused persons through any ocular or documentary evidence.
SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 26Also of such defence, the accused ought to produce the evidence of weight as was produced by the prosecution that produced such a heavy weight evidence of PW1 & of the recovery of different robbed items from different accused from different places on different dates, has been produced to establish the facts that all the five accused in furtherance of their common intentions committed robbery in the dwelling house of the complainant. Unfortunately, no such defence, could be proved through any such weight to defeat the facts so proved by the prosecution.
47. The investigating persons of the team of investigation examined as PW7, PW9, PW10 & PW11, in corroboration with the investigating officer PW12, who have duly proved that the accused persons were apprehended from different places and disclosed about the commission of the offence in furtherance of their common intentions and that in pursuance of such disclosures, the recovery of robbed items have been effected to make admissible their disclosures.
48. Thus, the prosecution has duly established the facts of commission of robbery by all the five accused persons at the relevant, date, time and place in the house of the complainant after having premediation of mind.
49. Therefore, it is observed that the facts & circumstances lead to one & only one hypothesis in preponderance of all probabilities with certainty that all the five accused persons committed robbery at the relevant, date, time and place and retained such robbed items knowing well that these are robbed items and there could be no other hypothesis to lead to any other conclusion except that of SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 27 commission of robbery by all the five accused person in furtherance of their common intentions, in the abovenoted facts and circumstances of the case.
50. On the basis of above facts and circumstances, duly established, the prosecution has successfully proved not only the identity of all accused persons, but their presence at or near the place of occurrence and also the manner in which the robbery have been committed by all conjointly and that during the investigation, all the accused persons were apprehended, arrested, made their disclosures, led the investigating team to the place of recovery and that the robbed items were recovered from the possession of all the accused persons at their instance.
51. Thus, through the ocular evidence of the prosecution witnesses with the supported and corroborated documentary evidence, the prosecution was able to prove the unbroken chain of evidence to lead to the conclusion that two of the five accused persons namely Vijay @ Vinay @ Bable & Raju have committed the robbery by using deadly weapon conjointly to attract punishment for the offences alleged against them under section 395/397 IPC and as they were found in possession of the robbed articles, they are also liable for the offence under section 412 IPC.
Also it is established that accused Pushpa, Poonam and Pooja, actively participated in commission of the robbery conjointly with accused Vijay & Raju by playing their assigned roles, as per the plan in furtherance of their common intentions to attract offence u/s 394 r/w 395/34 IPC and as they were found in SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 28 possession of the robbed items, recovered from their possession and at their instance, they each were also attracting the offences u/s 412 IPC.
On the contrary, no tangible evidence could come on record to suggest any other hypothesis except the one proved by the prosecution, nor any facts came on record to read the defence taken by the accused persons.
52. As the robbery has been committed on the bee hours of the day of 11082011 at 12:15PM in the house of Smt. Poonam Ahuja by the five accused persons, joined together with their common intentions of commission of such offence, at the point of knife, used by accused Vijay & Raju, keeping her under the threats of her life on the point of knife, and they looted the valuables including cash, jewellary and other items, the robbery comes and accused Pushap, Poonam & Pooja assisted them to commit robbery, thus, the robbery committed by 5 persons, comes within the ambit of dacoity as defined u/s 391 IPC as all the essential ingredients that,
a) at the time of committing robbery/dacoity, the offender used a deadly weapon, i.e. knife, attempted to cause hurt and threatened to kill the robbed person and voluntarily caused hurt during the commission of robbery.
b) all the accused persons were found in possession of the robbed items, which they retained dishonestly duly recovered from them and thereby committed an offence under section 412 IPC as all the ingredients of such offence against them have also been established on record by the prosecution.
53. In this background, of the abovenoted facts and circumstances, duly established on record by the prosecution beyond reasonable doubts, the accused persons namely Vijay & Raju, who used the knife and voluntarily caused injuries SC No. 57834/16 , FIR No. 369/11 PS. Prashant Vihar State Vs. Vijay @ Vinay @ Bable & Ors Page No. 29 to the complainant, on keeping her under the threats of her life at the point of knife, during commission of the robbery, are hereby held guilty and convicted for the offence u/s 395 r/w 397/412 IPC.
Whereas, accused persons namely Pushpa, Poonam & Pooja, who are jointly concerned with Vijay & Raju, the abovenoted accused, in committing such robbery by their acts & omissions, in furtherance of their common intentions and were also found in possession of the robbed items dishonestly & the same were recovered from them, are hereby held guilty & convicted for the offences u/s 394 r/w 395/34 & 412 IPC.
Announced in the open Court (Dr. Archana Sinha)
on this 30th day of November 2016 Addl. Sessions Judge02,North
Rohini Courts, Delhi
30.11.2016
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