Delhi District Court
State vs Ravinder Kumar on 30 August, 2017
FIR No. : 492/13
State v. Ravinder Kumar
P.S: Najafgarh
IN THE COURT OF SH. R.L MEENA:
ADDL. SESSIONS JUDGE (SOUTHWEST)02,
DWARKA COURTS:DELHI
Sessions Case No. 19/17
FIR No. 492/13
Police Station : Najafgarh
In the matter of:
State
VERSUS
Ravinder Kumar
S/o. Sh. Khushehwar Paswan,
R/o. House no. 107, Main Thansa Road,
near Indra Service Station,
Shyam Enclave, Najafgarh, Delhi
.......... Accused
Date of Institution : 24.02.2014
Date of Reserving judgment : 24.08.2017
Date of pronouncement : 30.08.2017
For State : Ms. Satwinder Kaur, Addl Public Prosecutor.
For Defence : Sh. Pramod Kumar, DLSA Advocate.
Page no. 1..........of 33
FIR No. : 492/13
State v. Ravinder Kumar
P.S: Najafgarh
30.08.2017
J U D G M E N T
1.Ravinder Kumar, age 23 years, has been committed for trial by Sh. Sudhir Kumar Sirohi, Metropolitan Magistrate, Dwarka Courts, New Delhi and so he stands charged with the commission of offences punishable under Sections 452/393/ 394/397/34 of The Indian Penal Code & u/s 27/54/59 Arms Act that he on 12.12.2013 at about 8.00 p.m, at the shop of Sonu Telecom, Gali no.3, BlockC, Prem Nagar, 28 foota road, Najafgarh along with his associate (not arrested) in furtherance of their common intention entered in the said shop of Rizwan @ Sonu armed with country made pistol, fired two shots and attempted to rob the cash while attempting to commit robbery, accused persons voluntarily caused hurt on the person of Rizwan by using deadly weapon i.e. country made pistol.
2. The circumstances leading to the committal of the case, and subsequently the charge against the accused, as per the record of the case, are that on 12.12.2013 while constable Ravi Kant Page no. 2..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh PW5 was on duty, he received an information at about 8.45 p.m to the effect that "on 28 foota road, Paprawat near Mothers Pride School, three boys on two motorcycles have injured my brother by firing and that one motorcycle was lying at the spot". The said information was recorded at Sl. No. 84B of DD register Ex PW 5/A and copy of the same was marked to ASI Onkar Singh. On receipt of the said information, Constable Sanjeet (PW1) along with ASI Onkar (PW11) reached at the spot and they found one motorcycle bearing registration no. DL4SAJ2499 parked in front of a shop of complainant. Inside the shop, there were two empty cartridges lying on the floor and there were firing marks on the wall of the shop. They also came to know that the victim was admitted in Life Line Hospital at Chhawla Stand Najafgarh. Meanwhile, the beat staff Ct. Pankaj had reached the spot. Constable Sanjeet and ASI Onkar left the spot leaving Constable Pankaj at the spot and reached at Life Line Hospital, where complainant Rizwan was admitted. The complainant was fit for statement Page no. 3..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh and ASI had recorded his statement. IO prepared the injury sheet and injured was taken to RTRM Hospital, Jaffarpur Kalan for medical examination of the victim where he was admitted vide MLC No.6749/13. Thereafter, the complainant was discharged and was taken to the spot. Complainant Rizwan stated to ASI Onkar Singh that on 12.12.2013, at about 8.00 p.m, he along with his friend Rohit were present in his shop and his friend Rohit was repairing a computer. At the same time, two boys came inside shop by covering their face with handkerchief. One of them asked the complainant to hand over the cash. At this, he asked them "kaisa cash". Both the offenders, in order to terrorize him, fired two shots upon him, but he escaped. In view of the said firing, complainant tried to open the cash box in order to show handing over the said cash to the accused persons. Complainant, seeing the occasion, grappled with both the offenders and they started beating him. One of the offender, in order to remove his associate from the hands of complainant, had caused head injury while using the Page no. 4..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh Butt of the revolver. It is further stated in the police report that on the statement of complainant, SI Onkar Singh through Constable Sanjeet got registered the first information report (FIR) No. 492/13 and thereafter embarked upon the investigation and during the investigation, Rizwan and Rohit, who saw the assailants were examined and with the aid of crime team, chance prints of the offender were lifted from the spot and the motorcycle used in the commission of offence was seized which was stolen in case FIR bearing no. 96/2011 P.S: BHD Nagar. Accused Ravinder after his arrest, disclosed his involvement in the offence that were committed against Complainant Rizwan, therefore, accused was arrested in the present case and after investigation, it was concluded that accused Ravinder along with his associate namely Hannu (not arrested) committed offences punishable u/s 452/393/394/397/ 34 of The Indian Penal Code & u/s 27/54/59 Arms Act and subsequently, on 10.02.2014, a police report under section 173 of the Code of Criminal Procedure, 1973 (Cr.P.C.) was put up Page no. 5..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh before the Metropolitan Magistrate with a view to put the accused on trial.
3. In the light of the police report and the documents filed alongwith the same, the learned Metropolitan Magistrate having taken cognizance of the offences complied with the provisions of section 207 of Cr.P.C. and committed the case to the Court of Session.
4. On 17.11.2014, after hearing the Additional Public Prosecutor and the accused, the charge was framed against the accused for his having committed offences punishable under sections 452/393/ 394/34 IPC and u/s. 397 IPC. It is to be note here that additional charge u/s 27/54/59 Arms Act was also framed against the accused on 10.03.2016. The charge was read over and explained to the accused to which he did not plead guilty and claimed trial.
5. In support of its case, the prosecution got examined PW1 Constable Sanjeet, PW2 Constable Anil Kumar, PW3 HC Ajmer, PW4 HC Kishan, PW5 Constable Ravi Kant, PW6 SI Page no. 6..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh Surender Hooda, PW7 Rohit, PW8 Dr. Anurima, PW9 Rizwan, PW10 Constable Pawan and PW11 SI Onkar Singh. During the examination of the prosecution witnesses documents Ex. PW 1/A, Ex. PW 1/B, Ex. PW 1/C, Ex PW 2/A1 to A13, Ex PW 2/B1 to B13, Ex PW 3/A, Ex PW 4/A, Ex PW 5/A, Ex PW 8/A, Ex PW 9/A, Ex PW 10/A to Ex PW 10/D, Ex PW 11/A to Ex PW 11/C, Ex PW 11/PX and case property Ex P1 (colly) empty cartridges, Ex P2 (bike) were also tendered in evidence.
6. On 18.09.2015, the accused was examined under section 313 of Cr.P.C. and his statement was recorded. During his examination under section 313 of Cr.P.C. accused Ravinder denied the correctness of the incriminating circumstances appearing in the evidence against him and stated that he has been falsely implicated in the present case. The accused wish to lead evidence his his defence. He examined his mother in his defence as DW1.
7. I have heard Ms. Satwinder Kaur, learned Additional Public Prosecutor for the State and Sh. Pramod Kumar, DLSA Page no. 7..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh Advocate for the accused and have gone through the record of the case carefully.
8. Having drawn my attention on the testimonies of PW1 Constable Sanjeet, PW2 Constable Anil Kumar, PW3 HC Ajmer, PW4 HC Kishan, PW5 Constable Ravi Kant, PW6 SI Surender Hooda, PW7 Rohit, PW8 Dr. Anurima, PW9 Rizwan, PW10 Constable Pawan and PW11 SI Onkar Singh, documents Ex. PW 1/A, Ex. PW 1/B, Ex. PW 1/C, Ex PW 2/A1 to A13, Ex PW 2/B1 to B13, Ex PW 3/A, Ex PW 4/A, Ex PW 5/A, Ex PW 8/A, Ex PW 9/A, Ex PW 10/A to Ex PW 10/D, Ex PW 11/A to Ex PW 11/C, Ex PW 11/PX and case property Ex P1 and Ex P2, it is submitted by learned Additional Public Prosecutor that from the evidence led by the prosecution it has been proved that on 12.12.2013, at about 8 p.m, accused Ravinder along with his associates (not arrested) armed with pistol committed house trespass in the shop of complainant PW9 and thereafter in an attempt to commit robbery against PW9Rizwan, caused hurt to him. It is further submitted that Page no. 8..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh the present accused and his associate in order to terrorize the complainant (PW9) fired two bullets upon him but he escaped and the said bullet hit upon the wall of shop and two empty cartridges were recovered from the spot. It is further submitted that the present accused and his associate, after attempting to commit the abovesaid offences, fled away from the spot leaving their motorcycle outside the shop of the complainant. It is further submitted by Learned Addl P.P for the State that from the evidence led on behalf of the Prosecution, it has also been proved that the motorcycle used in the crime was also recovered from outside the shop of the complainant. It is further submitted that the said motorcycle was stolen by accused Ravinder and his associate from the area of PS BHD Nagar and a criminal case bearing FIR no. 96/2011 u/s. 379 IPC was registered against the present accused. It is further submitted that the present accused has also been identified by the complainant (PW9) and his friend Rohit (PW7) during the trial of the case. It is further submitted by Learned APP for the State that since Page no. 9..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh the Prosecution has succeeded in proving this case beyond reasonable doubt, therefore, accused be convicted for offence punishable u/s. 452/393/394/397/34 of The Indian Penal Code and u/s. 27/54/59 of Arms Act.
9. Per contra, having drawn my attention on the testimonies of PW1 Constable Sanjeet, PW2 Constable Anil Kumar, PW3 HC Ajmer, PW4 HC Kishan, PW5 Constable Ravi Kant, PW 6 SI Surender Hooda, PW7 Rohit, PW8 Dr. Anurima, PW9 Rizwan, PW10 Constable Pawan and PW11 SI Onkar Singh. It is submitted by counsel for the accused that accused has been falsely implicated in the present case and he is an innocent person. It is further submitted that as per DD entry no.84B, Ex.PW5/A, an information was received to the effect that "three boys on two motorcycles have injured my brother by firing and that one motorcycle was lying at the spot". It is further submitted that the said information is not consistent with the version of complainant. It is further submitted that the said informant appears to be brother of injured/complainant Rizwan, Page no. 10..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh but he has not been examined by the IO in this present case for the reason best known to him. It is further submitted that as per the version of complainant, present accused and his associates entered into his shop by covering their faces by handkerchief and tried to rob him. It is further submitted that complainant has not explained in his evidence as to how did he see the faces of the said persons, particularly when they were in muffled face, as per the version of the complainant. It is further submitted that the Prosecution witness PW7Rohit has not supported the case of Prosecution as he deposed before the court that he is not 100% sure about the identity of the assailants. In view of the aforesaid facts, it is submitted by the learned counsel for accused that since the prosecution has failed to prove the fact that accused Ravinder has committed any offence against PW9 Rizwan, therefore, he is entitled to be acquitted of the alleged offences.
10.I have given my thoughtful consideration to the submissions made on behalf of the parties.
Page no. 11..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh
11.Section 393 of the Indian Penal Code, which prescribes punishment for attempt to commit the robbery reads as follows: " 393. Attempt to commit robbery - Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
12. Section 394 of the Indian Penal Code, which prescribes punishment for voluntarily causing hurt in committing robbery, reads as follows:
394. Voluntarily causing hurt in committing robbery--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
13.Section 452 of the Indian Penal Code, which prescribe punishment for housetrespassing after preparation for hurt, assault or wrongly restrain, read as follows:
"452. Housetrespass after preparation for hurt, assault, or wrongful restraint.-- Whoever commits housetrespass, having made preparation for causing Page no. 12..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
14. Section 397 of the Indian Penal Code, which prescribes punishment for using deadly weapon at the time of committing of robbery reads as follows:
"397. Robbery, or dacoity, with attempt to cause death or grievous hurt.-- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
15. Section 27 of the Arms Act, 1959 which prescribes punishment for using fire arm reads as follows:
"27. Punishment for using arms, etc - (1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
(2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
Page no. 13..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh (3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death."
16. Before discussing the points which fall for determination, the relevant parts of the testimonies of the witnesses examined by the prosecution may be noticed.
17. To bring home the guilt of the accused, the prosecution has examined eleven witnesses. PW1 Constable Sanjeet during his examinationinchief deposed that on 12.12.2013, he was on emergency duty with ASI Onkar. DD No.84D was received by the ASI at 8.40 pm regarding firing and snatching of money at Paprawat Road near Mothers Pride School. On this information they went to the spot. At the spot they found one motorcycle bearing RC no. DL 4SAJ 2499 parked in front of a shop. The shop was lying opened. It was a shop for recharge of the mobile phones and some mobile phones were lying there. Inside the shop there were two empty cartridges lying on the floor and there were firing marks on the wall of the shop. On inquiry they came to know that the victim of the offence was admitted Page no. 14..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh in Life Line Hospital at Chhawla Stand Najafgarh. The beat staff Ct. Pankaj had reached the spot, in the meantime. Leaving him at the spot, he alongwith ASI went to Life Line Hospital and came to know that injured Rizwan was admitted there. The injured was fit for statement and ASI had recorded his statement. IO prepared the injury sheet and thereafter he removed the injured to the RTRM Hospital, Jaffarpur Kalan for medical examination of the victim where he was admitted vide MLC No.6749/13. Thereafter the victim was discharged from the hospital and he was taken by him to the spot. ASI Onkar was already there at the spot. He handed over the victim and the MLC to ASI Onkar. ASI lifted the empty cartridges and prepared the sketch of the same. I have seen the sketch of the cartridges. Same is bearing my signature at point A. Same is now Ex.PW1/A.
18. He further deposed that the empty cartridges were converted into cloth parcels and were sealed with the seal of OKS. The said cartridges were seized vide seizure memo Ex.PW1/B. The Page no. 15..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh motorcycle was also seized vide seizure memo Ex.PW1/C which was signed by him. He further deposed that IO prepared rukka at the spot and was handed over the same to him for registration of FIR. He identified the empty cartridges Ex.P1 and the motorcycle Ex.P2.
19.PW2 Constable Anil Kumar is the photographercumfinger print expert. He took 13 photographs of the scene of crime and also lifted six chance prints, negatives of which are Ex.PW2/A1 to A13 and the positives of the same are Ex.PW2/B1 to B13. He further deposed that at the spot two empty cartridges were also lying in the shop which were also photographed by him. He also photographed one bike, standing outside the shop. He also prepared the crime report, finger print expert/proficient at the spot and is Ex.PW2/C.
20.PW3 HC Ajmer and PW4 HC Kishan are the duty officers, who proved the FIR of the present case as Ex.PW3/A and other case FIR no. 96/11 u/s. 379 IPC, as Ex.PW4/A.
21.PW5Ct. Ravi Kant is the DD Writer who recorded DD no. 84 Page no. 16..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh B and proved the same as Ex.PW5/A.
22.PW6 is SI Surender Hooda deposed that on 12.12.2013, he was posted as Crime Team Incharge, South West District and on receiving communication from Control Room he along with his team members reached at the scene of incident i.e. House no.130, 28 Foota Road, Prem Nagar, Delhi and inspected the scene of crime and lifted six chance prints from there. Ct. Anil under his instructions had taken 13 photographs of the scene of crime. He prepared his report and handed over the same to the IO ASI Onkar Singh.
23. PW7 is Rohit who deposed that on 12.12.2013, he had come to the computer shop of Sonu at 28 Foota Road and when he was repairing his computer. At about 8:00 p.m, two boys came to the shop and closed the door from inside and fired at the wall towards his side. PW7 further deposed that at that time, Sonu was sitting at the counter and those two boys asked them to take out the cash and when Sonu did not hand over any cash to them, the other boy fired towards Sonu which did not hit him and Page no. 17..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh instead hit the wall. PW7 further deposed that Sonu caught hold of the hand of the said boy and grappled with each other. In the meantime, the other boy hit Sonu on his head with the Butt of the revolver and thereafter both those boys ran away from the shop leaving their motorcycle at the spot. Sonu also ran after them however, he remained inside the shop. PW7 further deposed that after about 15 minutes police reached the spot, conducted enquiry and seized two empty cartridges from the spot. The police had also collected the finger prints. PW7 further deposed that those boys had covered their mouth with some cloth. The witness identified the accused who fired at Sonu.
24. PW8 is Dr. Arunima, Medical Officer, Rao Tula Ram Hospital, Jaffarpur Kalan. She deposed that on 12.12.2013 at about 10.30 pm she examined one Rizwan @ Sonu S/o Aslam aged about 20 years, brought by Ct. Sanjit and found already sutured five wounds over scalp. Three over frontal region; Two of them were approximately 1.00 cm each in length, one Page no. 18..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh approximately 2.00 cm. One over occipital region left side and the other occipital region right side. Due to sutures the dimensions of these two injuries was not clearly visible. There was abrasion over the nose. She further deposed that in her opinion the nature of injury was simple blunt and proved the MLC as Ex.PW8/A.
25. PW9 is Rizwan @ Sonu who corroborated with the statement of PW7 Rohit regarding the incident. He also deposed that police had recorded his statement in the private hospital which is proved as Ex.PW9/A. He further deposed that in his presence, police had seized two empty cartridges and the motorcycle from the spot vide seizure memos Ex.PW1/B and Ex.PW1/C respectively. PW9 further deposed that on 17.12.2013 police visited his house and shown him certain photographs, out of which, he identified the photograph of accused and on the same day in the afternoon he visited the police station Najafgarh where he identified the accused. This witness has also identified the bike as Ex.P.2, empty cartridges collectively Ex.P.1 and Page no. 19..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh accused during the trial of the case.
26. PW10 is Constable Pankaj Sharma. He deposed that on 15.12.2013 he had joined the investigation of this case along with ASI Onkar Singh who received secret information that Ravinder Kumar, the boy involved in the present incident was present at bus stand Dhansa. Thereafter a raiding party was formed by the ASI Onkar Singh. This witness further deposed that public persons were asked to join the investigation but they refused and thereafter when they reached near the bus stand, the secret informer pointed out the accused Ravinder and thereafter he left. The accused was apprehended and arrested. The arrest memo was prepared by ASI Onkar Singh and personal search of accused was also conducted. This witness proved that arrest memo, personal search memo, disclosure statement and pointing out memo as Ex PW 10/A, Ex PW 10/B, Ex PW 10/C and Ex PW 10/D respectively.
27. PW11 is SI Onkar Singh. He corroborated with the statement of PW1 Constable Sanjeet with regard to the place of incident, Page no. 20..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh medical examination and statement of the injured and seizure of motorcycle and empty cartridges. PW11 proved the statement of Rizwan Ex PW 9/A and deposed that under the statement he made endorsement Ex PW 11/A. He also proved the site plan Ex PW 11/B. PW11 further corroborates with the statement of PW10 Constable Pankaj Sharma regarding arrest and disclosure statement of accused. This witness further deposed that on 16.12.2013, the accused was produced in the court of concerned M.M in muffled face and he moved an application for conducting TIP of accused which is proved as Ex.PW11/C. PW11 further deposed that the accused refused to participate in TIP and one day PC remand of the accused was obtained for the arrest of his associate but he could not be traced out.
28. PW11 further deposed that on 17.12.2013 Rizwan (complainant) came to the police station at about 2.00 pm, to inquire about the progress of the case and accused at that time was present in his room and Rizwan identified him and stated that he had fired at him during the incident. He recorded Page no. 21..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh statement of Rizwan under Section 161 Cr.P.C. to this effect and thereafter the accused was produced in the court and was sent to JC. This witness further deposed that later on he collected the photographs of the spot from the photographer and after completion of the investigation filed charged sheet in the court. This witness has also identified the cartridges Ex.P.1 and motorcycle make Honda Stunner Ex.P.2.
29. In his defence, accused produced his mother Smt. Devi Devi as DW1 in his defence who deposed that the accused Ravinder is her son and on 13th December about 2 years ago she and accused were present at their house. She further deposed that in the evening, five police officials came to their house and took the accused to the police station and when she inquired, police officials assured her that nothing untoward would happen to her son and they would drop him back. She further deposed that she waited for 23 hours but when the accused did not return home, she went to P.S BHD Nagar and then to P.S Najafgarh but could not locate him and on the next day she came to know that Page no. 22..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh her son had been arrested in the present case. She further deposed that on 12th December about two years ago, he had taken her son to RTRM hospital at Jaffarpur as he had sustained injuries on his foot. She also produced the Casualty Card mark DX1.
30.In the light of the charge framed against the accused and the arguments advanced before the court, the first point for determination is: whether on 12.12.2013 at about 8.00 pm, offence punishable under section 394 IPC was committed against PW9Rizwan.
31.From the testimonies of PW9 Rizwan, PW7 Rohit, PW8 Dr. Arunima and the MLC report Ex. PW8/A it has been found that on 12.12.2013 at about 8.00 pm, two persons having entered in the shop of Rizwan (PW9) and caused injury upon the head of complainant. As per MLC report Ex PW 8/A, it is observed by Dr. Arunima (PW8) that on 12.12.2013 at about 10.30 p.m, PW9 Rizwan was examined and it was found that there were five wounds on the scalp of the said person. Further, it was also Page no. 23..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh observed that there was abrasion on the nose of complainant. The nature of said injuries were shown as simple blunt.
32.As already observed, a person renders himself liable under section 394 of the Indian Penal Code, if, in committing or in attempting to commit robbery, he or any other person jointly concerned in committing or attempting to commit such robbery, voluntarily causes hurt to some other person.
33.Thus, to punish a person under sections 394 of the Indian Penal Code it is sinequanon that the offence of robbery is committed or attempted to be committed. In this connection, section 390 of the Indian Penal Code, which defines robbery, reads as follows:
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. When extortion is robbery.--Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other Page no. 24..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
Explanation.--The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint.
34. From a reading of section 390 of the Indian Penal Code it can be discerned that in each case of robbery there is either theft or extortion or an attempt to commit theft or extortion.
35.In the present case, there is evidence of complainant (PW9) and his friend Rohit (PW7) on record to suggest that offender caused injuries to PW9 Rizwan in order to attempt to commit theft or extortion.
36. The second point of determination is: whether on 12.12.2013 at about 8.00 p.m, offence punishable u/s 452 of IPC was committed against (PW9) Rizwan at his property.
37. From a reading of Section 452 of IPC it can be said that offence punishable under the said Section it is committed if housetrespasser has prepared for causing hurt/assaulting or unlawful restrain or he put in any fear of hurt or assault or Page no. 25..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh wrongfully restrain.
38. In the present case, the testimony of PW9 Rizwan and PW7 Rohit shows that when they were in the shop then the offender came in the said shop and they, in order to attempt to commit the robbery caused head injury upon the complainant, as a result of which complainant was put in fear of hurt. The prosecution has successfully proved that the offence punishable u/s 452 of IPC was committed.
39. The third point of determination is: whether on 12.12.2013 at about 8.00 p.m, offence punishable u/s 397 IPC was committed against PW9Rizwan.
40. From the plain reading of 397 of the IPC, it is apparent that offence punishable under the said Section is committed if the offender used a deadly weapon or attempt to cause grievous hurt to any person while committing robbery or dacoity. In the present case, the testimonies of PW9 and PW7 reveals that offenders entered in the shop and asked the complainant to hand over the cash. Further, the offenders, in order to terrorize the Page no. 26..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh complainant, fired two shots upon the complainant, however, he escaped. It is further revealed that both the said offenders ran away from the spot when the complainant grappled with them. It is further revealed in evidence that two empty cartridges were also recovered from the spot and the same were identified by the complainant, during his evidence.
41. In view of the said evidence, it is to note here that neither the alleged pistol used in the crime has been recovered by the investigating officer nor any scientific analysis report is on record suggesting that the said empty cartridges were fired by the fire arm. In the absence of above said facts, it cannot be said that any deadly weapon was used by the offenders, therefore, offence u/s 397 IPC and Section 27 of the Arms Act cannot be attracted against the present accused.
42.The fourth and the most important point for determination is:
whether accused Ravinder was one of the offender, who committed offence punishable u/s. 393/394/452/34 IPC.
43.On perusal of testimonies of complainant(PW9) and his friend Page no. 27..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh Rohit (PW7) it is revealed that the two assailants entered in the shop of complainant and asked him to hand over the cash. It is also revealed from their testimonies that both the said persons in order to terrorize the complainant, fired two bullets upon the complainant, but he escaped. It further revealed from their testimonies that complainant grappled with the present accused. The associate of the present accused, in order to remove the present accused from the clutches of complainant, had hit the head of the complainant by butt of the pistol, as a result of which, complainant sustained injuries. It is also revealed that both the offenders came on motorcycle bearing DL4SAJ2499 (which was involved in a theft case in case FIR no. 96/2011 u/s. 379 IPC, PS: BHD Nagar) but they ran away from the spot after leaving the said motorcycle outside the shop of complainant. Both the complainant (PW9) and his friend Rohit (PW7) have also identified the present accused as one of the assailant, who committed the said crime with the complainant.
44. It is to be note here that the counsel for accused has not Page no. 28..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh disputed the incident which took place with the complainant but claimed that the present accused was not involved in commission of crime of the present case. Counsel for accused, in order to support his arguments has raised two contentions among which one is that a DD entry no. 84B was received in the PS to the effect that "three persons" came on motorcycle and caused injuries to his brother" whereas complainant and his friend (PW7) stated that two persons entered in the shop of complainant and they tried to rob and assault complainant. It is further submitted that the said informant seems to be brother of complainant but he was not examined by the Investigating Officer for the reasons best known to him. It is further submitted that in view of the aforesaid material contradictions accused cannot be convicted.
45. The said argument is strongly opposed by the Learned Addl. PP for the State by stating that since the said fact is not vital for the Prosecution as complainant has himself stated that two persons were involved in the commission of crime and the said Page no. 29..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh fact has also been corroborated by the friend of complainant (PW7). Hence, the nonexamination of the informant of the DD is not vital for the Prosecution case.
46. In the light of arguments of both the parties, I find that since the complainant (PW9) and his friend Rohit (PW7) have categorically deposed that two persons were involved in the commission of crime, therefore, the nonexamination of informant of DD is not fatal to the prosecution case.
47. The second point of arguments of learned counsel for accused is that complainant has stated in his complaint Ex.PW9/A that two persons entered in his shop by covering their faces with handkerchief but the said handkerchief were removed when he grappled with them as a result of which he had seen the faces of both the assailants. It is further stated that he has not stated the said manner by which he had seen the faces of assailants in his examinationinchief.
48. Per contra, Learned Addl. PP for the State has submitted that since complainant has clearly mentioned the said fact of Page no. 30..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh identification of accused in his complaint Ex PW 9/A, therefore, it was not necessary for complainant or prosecution to repeat the said facts in the examinationinchief of the complainant.
49.After having gone through the above said submissions of both the parties, I am of the view that since complainant has clearly mentioned the said facts in his complaint and explained as to how did he see the faces of the assailants, therefore, it was not essential for the complainant to repeat the said manner by which he had seen the faces of the accused persons. It is further to be note here that if the complainant would not have stated the said fact in his complaint Ex PW 9/A regarding identification of the accused persons, then version of the complainant would have been said to be suspicious or the same would be fatal to the case of Prosecution.
50. In the light of the aforesaid discussions, I am of the view that prosecution has been able to prove its case beyond reasonable doubt on the following grounds:
(i) Firstly, complainant (PW9) and his friend Rohit (PW7) Page no. 31..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh identified the accused during the trial of the case and they deposed that accused has committed the offences punishable u/s. 393/394/452 IPC.
(ii) It is claimed by the prosecution that both the assailants came on the motorcycle at the shop of complainant for commission of the crime and they ran away after commission of the crime leaving the motorcycle bearing no. DL4SAJ2499 on the spot. It is to be note here that prosecution has been successful to prove that the said motorcycle was recovered from outside the shop of the complainant. Prosecution has also brought on record that the said motorcycle was involved in the case bearing FIR no. 96/2011 Ex PW 4/A, wherein present accused is involved. The said facts itself suggest that present accused along with his associate came at the shop of complainant on the said motorcycle which was left by them after commission of the crime.
(iii) Further, accused has merely stated that he has been falsely implicated in the present case but no reason has been given for his false implication, particularly when complainant and his friend were unknown persons to him.
Page no. 32..........of 33 FIR No. : 492/13 State v. Ravinder Kumar P.S: Najafgarh
51. In view of the aforesaid facts and circumstances, the accused is held guilty of the offence punishable u/s. 393/394/452 IPC. Let the convict be heard on the point of sentence on 08.09.2017. ANNOUNCED IN THE OPEN COURT ON 30.08.2017 (R.L. Meena) ASJ02 (South West), Dwarka Courts, Delhi.
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