Delhi District Court
Kumar vs Delhi Administration Air 1925 Sc 905 And ... on 10 May, 2010
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE( WEST-04) , DELHI.
SC NO. 150/1/09
State
Versus
1- Heera Lal S/o Parkash Chand,
R/o H. No. 3748, Kucha Motar Khan,
Kashmiri Gate, Delhi.
2- Bachan S/o Balle,
R/o H.No. 26, C-17,
Gali Khajoori Khas, Shahdara,
Delhi.
3- Parveen S/o Hazari Lal,
R/o 3740, Kucha Motor Khan
Kas Kashmiri Gate,
Delhi.
4- Farooq S/o Nasiruddin,
R/o House No. 65, Madrasi Colony,
Mori Gate, Delhi.
(i)Case arising out of FIR No. 107/2008
U/S: 392/397/34 IPC
P.S. Subzi Mandi
(ii) Date of FIR 23.04.2008
(iii) Date of Institution 15.07.2008
(iv) Date of Final Arguments 10/05/10
(v) Judgment reserved on 10.05.2010 at 2 pm.
(iv) Date of judgment 10.05.2010 at 4 pm.
JUDGMENT
In brief the accused persons Heera Lal, Bachan, Parveen and Farooq are facing charges for the offence punishable u/ 392/397 read with section 34 IPC with allegation that on 8.4.2008 at about 10 pm at road near Petrol Pump, Hemilton Road, Rajender Market, Tis Hazari, S.C. No. 150/1/09 Page1/11 Delhi within the jurisdiction of P.S. Subzi Mandi, Delhi they all in furtherance or their common intention committed robbery of 9 bags containing goods at the point of knife from the possession of Mohd. Shakeel.
Brief facts as alleged by the prosecution in view of the deposition of PW11 ASI Sunder Singh are that on 08/04/2008 at about 10.26 pm received DD No.40 through PCR that 4/5 boys committing a robbery by showing a knife to some Rickshaw puller. On receipt of the said information through a DD No.40 HC Jagdish along with Ct. Rambir reached at Mori Gate T-point near petrol pump. Hamilton road where met to the Mohammad Shakeel, Rahul Kumar and Vinod Kumar who were doing the job of labour by pulling the Thela/trolley. ASI Sunder Singh interrogated them and thereafter recorded the statement of Mohammad Shakeel vide Ex Pw1/A who told that five gunny bag was being looted by the accused persons. The complainant also told him that there are 21 bags and the remaining balance is only 12 bags in the trolley as such found in the ambiguities in the total bags this fact has also been verified by him and after being due satisfaction made endorsement on 23/04/2008 vide Ex Pw11/A and handed over the rukka to the duty officer and got registered the FIR Ex Pw2/A. Thereafter the Site Plan Ex Pw11/B was prepared on the instance of the complainant. On 24/04/2008 ASI Sunder Singh received a secret information that Heera Lal BC of PS Kashmere Gate is confined himself pertaining to himself adjoining to the petrol pump and also having the information that the accused Heera Lal used to commit a robbery by the cutting the ropes of the rickshaw. Thereafter ASI Sunder Singh and Ct. Ramesh constituted a raiding party and went to the side of Petrol pump adjoining to the petrol pump at the instance of the informer. The accused Heera Lal was nabbed at the adjoining wall of the petrol pump. From the formal search of the accused Heera Lal a cutter like knife was recovered from the pocket of the pant. The said weapon was seized against the seizure S.C. No. 150/1/09 Page2/11 memo Ex Pw11/C. The accused Heera Lal was also interrogated and also recorded the disclosure statement Ex Pw10/C and he made a disclosure statement regarding the committing of the said robbery. The accused Heera Lal also disclosed the name of the said associates Bachan, Parveen, Dalchand and Farukh. The accused Heera Lal was arrested in the case against the arrest memo Ex Pw10/A. His personal search was also conducted vide memo Pw10/B. The accused Heera Lal also disclosed in his disclosure statement that he is also having communication with other accused through mobile phones. On the basis of the disclosure statement of the accused Heera Lal on 27/04/2008 he apprehended the accused Bachan from Ticona park Mori Gate at about 10PM in the night vide arrest memo Ex Pw9/A and the personal search memo Ex Pw9/B also prepared. The disclosure statement is Ex Pw9/B was also recorded. From the formal search of the accused Bachan a cutter like knife was also recovered. The seizure memo of to this effect was also prepared vide Ex PW9/C. The accused Bachan also disclosed about the occurrence in his disclosure statement and he also confessed that he committed a robbery in collusion with the other associates namely Heeralal, Parveen Dalchand and Farukh. He also disclosed that to sold the looted goods containing in the five gunny bag to one Julfikar son of Mirajuddin for consideration amount of Rs.25000/-.
On 03/05/2008, ASI Sunder Singh he nabbed the accused Parveen on the information by a secret informer from near Mori Gate park. The accused Parveen also interrogated and made a disclosure statement Pw8/B he also disclosed the said committing of the crime one knife like cutter and mobile phone was also recovered from his possession. The seizure memo of the cutter type knife is Ex Pw8/C also disclosed to sold the five gunny bag to Julfikar. He also disclosed that two gunny bags were taken by Parveen and Dalchand.
On 6.5.2008, IO ASI Sunder Singh, moved the application for conducting the TIP of accused Hira Lal, Bachan and Praveen, however S.C. No. 150/1/09 Page3/11 accused persons refused to join the TIP proceeding. Further investigation of the case was transferred to ASI Ram Niwas , who recorded statement of witnesses and submitted the chargesheet against the accused persons. The accused Farooq was arrested vide memo PW12/A. ASI Ram Niwas subsequently recorded the disclosure statement of accused Farukh vide Ex. PW12/B and also obtained the call details of the mobile phone of accused Farukh which allegedly he was using at the time of commission of offence. As per the list of the call details the accused was found near the site of incident. The call detailed were obtained from the computer marked A .and the cell ID record is mark B. He have also obtained the customer application form of mobile No. 9210086326. The mobile phone is in the name of Smt. Jale Khan. Smt. Jale Khan is the mother in law of accused Farukh and her statement was also recorded. ASI Ram Niwas have also recorded the statement of Ct. Pradeep Kumar. ASI Ram Niwas have also filed the supplementary charge sheet against the accused Farukh. After completion of investigation charge sheet was filed before the court.
After completion of committal proceeding, a prima facie case against the accused persons is made out, as such charge for offence u/s 392/397/34 IPC was framed against all the accused persons, to which they pleaded not guilty and contested the case.
In order to substantiate its case, prosecution in all examined PW1 Mohd. Shakiel who is the complainant in the present case and deposed that on 8.4.2008 he was bringing his thaila which was filled with dry fruits bags at Tilak Bazar Khari Bawli. It was 8 pm and when reached near Petrol Pump four persons came at his thaila they cut rope of thaila and they started beating him and started going with his articles lying in the thaila. A knife was put on his neck by one of them. They took away the bags containing Chawara, Badam etc. The assailant also threatened him to hurt with knife in case he would raise alarm. Police had come S.C. No. 150/1/09 Page4/11 there and made enquirers from complainant. He was not joined by the police to identify any person nor he identify anybody who were involved in the said crime and the accused persons present in court today were not identified.
PW1 Mohd. Shakiel was declared hostile and cross examined by Ld. APP, in his cross examination it is he admitted that his statement was recorded by the police vide Ex. PW1/A which bears his thumb impression at point A. He denied that the accused persons present in court were involved in the incident or that he is deliberately not identifying them as he have won over by the accused persons. He further denied that accused persons were identified by him when they were arrested by the police and he had given a statement to the police when he had identified the accused persons. He further denied that his statement was recorded by the police on 9.6.2008 and he also failed to identify accused persons Hira, Bachan and Parveen. The entire evidence has been read over to the PW1 Mohd. Shakiel to which he denied having being made.
PW3 Suresh Kumar who deposed that he was doing business of trading of dry fruits in Khari Bawli for the last 25 years. On 8.4.2008 at about 8.30 pm he had got purchased some dry fruits articles which was loaded in a Thaila for taking to transport company there were 15 packets which were being carried by Mohd. Shakeel Paledar for taking to Khanna Market for transportation. He came to know from the transporter that the good were not received by him and on his inquiry from Shakeel and Chuttan it came to know that 8 gunny bags containing dry fruits like Badam , Kishmish were looted away by some persons. he had no bill of the same. The looted dry fruits of about Rs. 75000/- value and report was lodged at PS Subzi Mandi.
PW4 Vinod Kumar also declared hostile by prosecution as he does not know anything about th is case. He was also confronted with the statement Ex. PW4/A. It is also denied that he is deposing falsely S.C. No. 150/1/09 Page5/11 as won over by the accused persons.
PW5 Hazari Lal who was having the Tata Mobile Phone connection No. 9250983977 and deposed that sometimes his son Parveen accused used the said mobile in h is absence . Police had taken that phone from his house and had seized it and he does not know anything else.
PW6 Manish Kumar Chugh Nodal Officer brought the relevant record of telephone NO. 9250983977 and 9211698665 which are subscribed by Tata Tele-services and proved the application of telephone NO. 9250983977 Ex. PW6/A and the proof of election I.D. Vide Ex. PW6/B. He further proved the application form of telephone NO. 9211698665 Ex. PW6/C along with proof of I.D Ex. PW6/C1 and of telephone no. 9211675971 Ex Pw6/D along with proof of I.D Ex Pw6/D1. He had also seen the form of telephone No.9210086326 Ex Pw6/E with I.D proof Ex Pw6/E1 and deposed that they belongs to their company. The details of the printout as per the printout mark X. The cell ID 4501 is of Mori Gate and 4511 is of Kashmere Gate/Lothian. The details brought by his are proved vide Ex Pw6/F. PW7 Sh. P.S. Malik, ADJ, Karkardooma Court, has deposed about conducting the TIP of accused Heera Lal, Bachan Singh and Parveen wherein accused persons refused to participate in the TIP and proved the document vide Ex. PW7/A to PW7/E to this effect.
PW8 Ct. Sidda Raju remained with the IO during the course of investigation. PW9 Ct. Rambir Singh also joined in the investigation along with SI Sunder Singh. PW10 Ct. Ramesh also proved the arrest of accused persons and remain joined in the investigation along with IO. PW11 ASI Sunder Singh being the IO of the case proved the investigation done in this case and also proved the documents prepared during the course of investigation as stated in the preceding para of the judgment.
After completion of prosecution evidence, statement of accused S.C. No. 150/1/09 Page6/11 u/s 313 Cr.P.C was recorded. All the incriminating evidence led by prosecution have been put to the accused persons. All the accused have denied the same as false and incorrect and stated that they have been falsely implicated in the present case. They did not lead any evidence in their defence.
I have heard argument of Ld. APP for State, Ld. Counsel for accused and also gone through the material on record.
Ld. APP for state submitted that all the material witnesses have proved the allegation against the accused persons and deposition made by prosecution witnesses are brought home the guilt of the accused as per charges framed against them, as such they are liable to be convicted.
On the other hand Ld. Defense counsel submitted that prosecution measurably failed to prove its case against the accused persons since PW1 Mohd. Shakiel has neither identified the accused persons nor stated anything against the accused persons despite having cross examined and confronted from his previous statement. PW3 Suresh Kumar has stated nothing against the accused persons. PW4 Vinod Kumar also declared hostile as not supported the case of the prosecution. PW6 Manish Chugh, Nodal Officer has proved the call detailed of the mobile phone as per conversation taken place from that mobile phone. The other witnesses are police witnesses and did not joined the investigation. Therefore, under these circumstances prosecution does not bring any ocular evidence to bring home the guilt of the accused persons. Therefore, accused persons are liable to be acquitted.
So far as, in respect of the charge u/s 397 IPC, it is essential to satisfy the word "uses" for the purpose of section 391 IPC, robbery being committed by an offender who was armed with a deadly weapon which was then in the vision of the victim shown as to create a terror in the mind of victim and in that it should be further shown, have been S.C. No. 150/1/09 Page7/11 used for cutting, stabbing, shooting as the case may be. In Phool Kumar Vs Delhi Administration AIR 1925 SC 905 and Jung Singh Vs State of Rajasthan 1984 Crl. J. 1135, in these two cases it was held that "use of deadly weapon by one offender at the time of committing robbery does not attract section-397 for imposition of any minimum punishment for another offender who did not use such weapon and when the accused is charged U/s 395 read with 397 IPC for committing dacoity with attempt to cause grievous hurt, he cannot be convicted u/s 397 IPC only because one revolver had been recovered from the accused. This is no proof that he used the revolver while committing dacoity was charge u/s 397 will not attract. The provision postulates on only individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably neglects the use of the contradictive or vicarious liability engrafted in section 34 IPC.
In case titled Sh. Shravan Dashratha Vs State of Maharashtra 1998 Crl. J. 1196 Bombay. The Bombay High Court has held that liability u/s 397 IPC he individually and not contradictive and this would become crystal clear and analysis of the section 397 IPC, it is only when a person while committing dacoity or attempting to commit dacoity uses any deadly weapon or caused grievous hurt or attempts to cause death or grievous hurt to any person then that person will be guilty of section 397 IPC. When there is no evidence at the time of committing robbery the accused used any deadly weapon or caused any grievous hurt or made any attempt to cause death or grievous to any person who cannot be convicted u/s 397 IPC. The prosecution case is that it is the co- accused who inflicted the major injuries to the victim by committing high way robbery. Even though the accused participated in the case of robbery he did not commit any offence u/s 397 IPC and committing the offence U/s 392 and 394 IPC.
The section 390 IPC contemplates that the accused should have, from the very start, the intention to deprive the complainant of the S.C. No. 150/1/09 Page8/11 property, and should for that purpose either hurt him or place him under wrongful restraint. The definition of "robbery" requires that either death or hurt or wrongful confinement is caused or it must be actually found that the victims were put in fear of instant death, instant hurt or instant wrongful confinement. In the absence of these findings and merely because the articles were removed from the persons of the victims when the accused were armed with lathis, does not by itself make out a case of robbery. Where no force or show of force is found to have been used in the committing of theft, etc. the offence of robbery cannot be said to have been committed. If theft is already committed and violence is used to help an offender to escape, theft is not robbery. When two views are possible that violence was used either to help in removal of stolen article or to enable an offender to escape after commission of theft, the view favourably to the accused should be accepted. Accidental infliction of the injury by the thief will not convert offence into robbery that come under the definition of theft. The accused abandoned the property obtained by theft and through stones at his pursuer but determined him from continuing pursuit. It was held that the accused was guilty of theft and not for robbery. It is not sufficient that any transaction of committing theft, hurt etc. has been caused. If hurt etc. is caused at the time of commission of theft but for an object other than the one referred in this section theft would not amount to robbery. There is no rule of thumb that after the lapse of a long period the witnesses would in no case be able to identify the robbers they had seen in the course of robbery. The court has to be extremely cautious in appraising such evidence and the decision in each case must turn on its own special facts. Where the ocular witnesses had ample opportunity to notice and mark the special features of the miscreants and they had given some particulars of identify of the culprits in their statements to the police and they were not cross examined on this point vis-a-vis their police statements, the S.C. No. 150/1/09 Page9/11 identity of the appellants as the robbers was established beyond reasonable doubt. Therefore, the ingredients of section 392/397 IPC failed to be attracted.
The PW1 Mohd. Shakiel i.e. complainant is totally hostile as did not support the case of the prosecution. He has also failed to identify the accused persons. PW1 Mohd. Shakeel has deposed in his deposition " that on 8.4.2008 he was bringing his thaila which was filled with dry fruits bags at Tilak Bazar Khari Bawli. It was 8 pm and when reached near Petrol Pump four persons came at his thaila they cut rope of thaila and they started beating him and started going with his articles lying in the thaila. A knife was put on his neck by one of them. They took away the bags containing Chawara, Badam etc. They had threatened him to assault with knife in case he would raise alarm. Police had come there and made enquirers from him. He was not joined by the police to identify any person nor he can identify anybody who were involved in the incident and the accused persons present in court today were not those persons."
The PW3 Suresh Kumar and PW4 Vinod KUmar are also declared hostile, as they are not supported the prosecution case. Both the witnesses also being confronted from their earlier statement u/s 161 Cr.P.C recorded during the course of investigation. But neither identified the accused nor said anything against them.
The other witnesses are the police witnesses who joined in the investigation for one reason or other and proved the document prepared during the course of the investigation. Document PW6/F is pertaining to the call details but this document has not proved that in what manner the conversation has been taken place between accused and complainant and same does not proved that the accused persons were making planing to commit a robbery. For the purpose of proving the call details the transcription copy of the conversation taken placed along with cassette recorder which should be corroborated by ocular S.C. No. 150/1/09 Page10/11 evidence i.e. deposition of the complainant. In the present case neither the complainant has stated anything against the accused persons nor any other public witness. Even though Ex. PW6/F also does not create any connection of the conspiracy among the accused persons to rob the complainant in any manner.
Hence, in view of aforesaid discussion and the fact that prosecution witnesses failed to establish the guilt of accused persons within the four corners of offence as alleged as their testimony do not inspire any confidence. The testimony of the star witnesses is unreliable, untrustworthy and unbelievable. Therefore, the prosecution is failed to prove its case against the accused persons beyond all reasonable doubt. Accordingly all the accused persons namely Heera Lal S/o Parkash Chand, Bachan S/o Balle, Parveen S/o Hazari Lal, and Farooq S/o Nasiruddin are hereby acquitted for the charges leveled against them. Their bail bonds cancelled. Their respective sureties are also stands discharged. Case property if, any be disposed of in accordance with law. File be consigned to Record Room.
ANNOUNCED IN THE OPEN COURT TODAY ON 10.05.2010 (SATINDER KUMAR GAUTAM) ADDITIONAL SESSIONS JUDGE(WEST-04) DELHI S.C. No. 150/1/09 Page11/11