Delhi District Court
State vs Dharam Raj @ Pappu on 19 January, 2013
Sessions Case No. 449/1/12
FIR No. 731/2001
State Vs Dharam Raj @ Pappu
(he was declared PO vide
order dated 25.03.2010
and again arrested on
20.01.2012)
Police Station Paschim Vihar
Under Section 399, 402, 174A IPC and
25/54/59 Arms Act.
Convicted u/s 174A IPC.
19.01.2013
Pre: Ld. APP for the state.
Ld. counsel Sh. Rakesh Kumar for convict.
Arguments on sentence heard. Vide separate order placed
along side in the file, convict is sentenced to undergo one year RI for
the offence u/s 174A IPC and to pay a fine of Rs.5000/ in default
further three months further RI. Benefit of section 428 Cr. PC be
given to the convict. Copy of this order and judgment be given to the
convict at free of cost forthwith. File be consigned to record room.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
1
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 449/1/12
FIR No. 731/2001
State Vs Dharam Raj @ Pappu
(he was declared PO vide
order dated 25.03.2010
and again arrested on
20.01.2012)
Police Station Paschim Vihar
Under Section 399, 402, 174A IPC and
25/54/59 Arms Act.
Convicted u/s 174A IPC.
ORDER ON THE POINT OF SENTENCE
19.01.2013
Pre: Ld. APP for the state.
Ld. counsel Sh. Rakesh Kumar for convict.
ld. APP submits that offence of such types are increasing day
by day. He again argues and submits that accused has already been
acquitted for the offence 399, 402 IPC and 25/54/59 Arms Act.
Accused has only been convicted for the offence punishable u/s 174A
IPC. On these grounds ld. APP submits that convict does not deserve
for any leniency.
Contrary to it, ld. Counsel for convict submits that convict has
old parents to look after, who are suffering with old age ailments. Ld.
counsel further argued and submitted that here is no other member in
the family of convict to look after his family. Ld. counsel again submits
that no previous criminal antecedents have borne on record in respect
of convict. Ld. counsel again submits that accused is languishing in
jail for more than about one year. On these grounds ld. counsel for
2
convict prays for release of convict on probation of good conduct
taking lenient view at the time of awarding the sentence.
I have heard the submissions of ld. counsel for the convict and
ld. APP as well. Keeping in view of the facts and circumstances of the
case to my view ends of justice will be met if convict is sentenced to
undergo one year RI for the offence u/s 174A IPC and to pay a fine of
Rs.5000/ in default further three months further RI. Benefit of section
428 Cr. PC be given to the convict.
Accordingly, convict is sentenced to undergo one
year RI for the offence u/s 174A IPC and to pay a
fine of Rs.5000/ in default further three months
further RI.
Benefit of section 428 Cr. PC be given to the convict.
Copy of this order and judgment be given to the
convict at free of cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 19.01.2013
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
3
731/01
PS Paschim Vihar
20.12.2012
Pre: Ld. APP for the state.
Accused is in JC.
File perused.
Vide separate judgment announced in the open court and placed
along side in the file, I convict accused Dharam Raj @ pappu for the
offence punishable u/s 174A IPC; and acquit him for the offence u/s
399/402 / 34 IPC for the reasons as discussed in the preceding paras.
Now, case be fixed for order on sentence for 11.01.2013.
(RAJ KAPOOR)
ASJ02/West Distt.
Tis Hazari Courts, Delhi
4
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 449/1/12
Assigned to Sessions. 01.03.2002
Arguments heard on 19.12.2012
Date of order. 20.12.2012
FIR No. 731/2001
State Vs 1. Dharam Raj @ Pappu s/o Vasu
Devi Raj, R/o B3/593, Raghubir
Nagar, Delhi and also at 108,
Shyam Nagar, Subhash Nagar
Crossing Delhi.
(he was declared PO vide order
dated 25.03.2010 and again
arrested on 20.01.2012)
2. Yasin - expired (criminal
proceedings against him were
abated / dropped, vide order dated
12.09.2003)
3. Abbas (he was declared PO
vide order dated 26.04.2008)
4. Raj Kumar (he was declared
PO vide order dated 22.07.2008)
5. Mohan Lal (he was also
declared PO vide order dated
17.01.2009)
6. Moti Lal (he was also declared
PO vide order dated 07.02.2009)
Police Station Paschim Vihar
Under Section 399, 402, 174A IPC and 25/54/59
Arms Act.
Convicted u/s 174A IPC.
JUDGEMENT
1. Briefly facts of the case are that on 07.11.2001, one secret information was received by SI M.D. Mehta to the effect that two 5 accused persons namely Moti Lal and Mohan Lal and others are present at Abhishek Petrol Pump, Paschim Vihar, Delhi and they are planning to commit robbery/ dacoity. SI M.D. Mehta brought these facts in the knowledge of PW3 Insp. Hoshiyar Singh who directed to constitute a raiding party. Accordingly a raiding party consisting of PW3 Insp. Hoshiyar Singh, PW7 Ct. Ajay Kumar, Ct. Surender, Ct. Vijay and Ct. Ved Prakash was constituted and they departed from their office at about 5 PM and reached at GH4, Paschim Vihar, Outer Ring Road at about 5:30 PM. Ct. Surender was deputed as shadow witness by SI M.D. Mehta to hear the conversation of accused persons at Main gate no.3, GH4, Paschim Vihar, Delhi and to give signal after hearing the conversation. At about 5:52 PM, Ct. Surender gave pre determined signal and thereafter accused Dharam Raj @ Pappu along with his five accused persons namely Raj Kumar, Moti Lal, Mohan Lal, Abbas (all POs) and Yashin (now expired) were apprehended. SI M.D. Mehta prepared tehrir and gave the same to Ct. Surender for getting the case registered, accordingly the present case FIR No.731/01, which is Ex.PW4/A was registered against the accused persons.
2. After registration of the case, the investigation was given to PW6 SI Joginder who reached at the spot where SI M.D. Mehta, Insp. 6 Hoshiyar Singh and other police staff met him and accused along with his coaccused were produced before the said IO SI Jitender Tiwari. Accused Dharam Raj @ Pappu was arrested. IO prepared his arrest memo and personal search memo vide Ex.PW7/F and Ex.PW2/H.
3. During the course of trial, accused Dharam Raj @ Pappu had disappeared from the proceedings of law and best efforts were made to procure his attendance by issuing NBWs and 82/83 Cr.PC. Hence, on 24.02.2010, PW14 HC Balkishan executed process under section 82/83 Cr.P.C. at his residence i.e. B3/593, Raghubir Nagar vide his report Ex.PW1/A, B, C and D and thereafter he was declared PO, vide court order dated 25.03.2010.
4. Thereafter, on 20.01.2012, PW11 Insp. Mahender Singh along with HC Sanjay Singh, Ct. Jasbir and Ct. Rajesh on having received secret information, apprehended him from the gate of Guru Gobind Singh Hospital. Accused Dharam Raj @ Pappu was again arrested vide arrest memo and personal search memo vide Ex.PW10/A and B. PW11 SI Mahender Singh prepared Kalanadra under section 41.1 (c) Cr.P.C. against accused vide Ex.PW11/A 7
5. The coaccused persons namely accused 1.Yasin was expired during the course of trial and criminal proceedings against him were abated / dropped, vide order dated 12.09.2003. accused 2.Abbas was declared PO vide order dated 26.04.2008; accused 3.Raj Kumar was declared PO vide order dated 22.07.2008; accused
4.Mohan Lal was also declared PO vide order dated 17.01.2009; and 5.Moti Lal was also declared PO vide order dated 07.02.2009.
6. Consequent upon committal of the case to the Court of Sessions, charge for the offence u/s 399/402/34 IPC was framed against all the accused persons except accused Yasin (since expired) and charge for the offence u/s 25 Arms Act was framed against Moti Lal for having buttondar knife, against Raj Kumar for having buttondar knife. A separate charge for the offence u/s 174A IPC was also framed against accused Dharam Raj @ Pappu vide order dated 24.02.2012. Accused persons did not plead guilty and claimed trial.
7. To prove and substantiate its case the prosecution has examined witnesses namely:
8. PW1 Ct. Rajesh Kumar - he accompanied the I.O. On 07.11.2001. He deposed that on 07.11.2001 he accomapnied SI Jitender Tiwari 8 and Ct. Surinder to GH Pole Paschim Vihar near Gate no.3 where Insp. Hoshiyar Singh along with police staff and six accused persons were present. He stated that SI M D Mehta handed over four parcels sealed along with certain documents to SI Jitender Tiwari. Accused persons were interrogated and their disclosure statements were recorded. He has also deposed that on 08.11.2001 accused persons pointed out various places in pursuance of their disclosure statements. This witness has been crossexamined by defence counsel.
9. PW4 HC Umesh Chand is a formal witness being Duty Officer. He got exhibited the carbon copy of present FIR as Ex.PW4/A.
10.PW2 Ct. Surender (again examined as PW9), PW3 Insp. Hoshiyar Singh, PW5 HC Ved Parkash, PW6 SI Jitender Tiwari, PW7Ct. Ajay Kumar and PW8 Ct. Vijay have deposed more or less on similar lines as they all were the members of raiding party constituted on 07.11.2001. On perusal of their testimonies it has come on record that on 07.11.2001 one secret informer informed SI M.D. Mehta that two accused persons namely Moti Lal and Mohan Lal and others are present at Abshishek Petrol Pump, Paschim Vihar, Delhi who are involved in robbery and dacoity cases. They can be arrested if a raid 9 is conducted. Thus, SI M.D. Mehta brought these facts into the knowledge of Insp. Hoshiar Singh who directed him to constitute a raiding party to apprehend accused persons. On this, one raiding party consisting of Ct. Ajay, SI M.D. Mehta, Ct. Vijay, Ct. Ajay, Ct. Ved Parkash and secret informer was constituted. Thereafter they left office in two Tata Sumo vehicles at about 5 PM. They reached at GH4, Paschim Vihar, Outer Ring Road at about 05:45 PM, where SI M.D. Mehta requested 5/6 public persons to join the raiding party but they did not join. SI M.D. Mehta deputed PW9 Ct. Surender as shadow witness to hear the conversation of the accused persons from near Dustbin at the main gate no.3 of GH4, Paschim Vihar. He heard the conversation of the accused persons and that time they were planning to rob Abhishek Petrol Pump and to use weapons if there is any resistance. At about 05:52 PM, PW9 Ct. Surender pre determined signal. On having received the signal, all the police officials reached and overpowered six accused persons from near the Khatta (dustbin). PW7 Ct. Ajay Kumar apprehended one accused whose name on interrogation revealed as Raj Kumar. He conducted the search of accused Raj Kumar and from the right dub of the accused, one button actuated knife was recovered. He produced accused Raj Kumar and the recovered button actuated knife before SI M.D. Mehta. IO prepared sketch of the knife on a 10 white paper, measured it. IO kept the knife in a parcel and it was sealed with the seal of MD and it was taken into possession. Further, perusal of their testimonies it has come on record that accused Moti Lal was apprehended by SI M.D. Mehta and from the search of accused Moti Lal, one button actuated knife was recovered from him. PW8 Ct. Vijay apprehended accused Mohan Lal and one iron rod was recovered from him. He produced accused Mohan Lal alongwith the iron rod before the IO. I.O. prepared the sketch of the iron rod. Iron rod was kept in a parcel and it was sealed with the seal of MD and was taken into possession. Ct. Ved Parkash apprehended accused Abbas and one iron rod was recovered from accused Abbas. Accused Yasin (now expired) and Pappu @ Dharampal were also apprehended by PW9 Ct. Surender with the help of other police officials, at the spot but nothing was recovered from these accused persons. All these witnesses have correctly identified accused Dharampal @ Pappu. The case property as stated above were taken into possession by the IO, kept in separate parcel and duly sealed with the seal of MD. SI M.D. Mehta prepared tehrir and gave the same to PW9 Ct. Surender for getting the case registered. PW9 went to PS Paschim Vihar. After some time, he along with Ct. Rajesh and SI Jitender Tiwari came at the spot. All the accused persons and the sealed case property was produced 11 before 2nd IO SI Jitender Tiwari by SI M.D. Mehta. IO interrogated all the accused persons and later on arrested them. IO prepared Arrest memo and personal search memo of the accused persons vide memo Ex.PW7/B, C, D, E, F and G, PW2/D, E, F, G, H and J. From the personal search of accused Moti Lal, one button actuated knife was recovered and IO prepared the sketch vide Ex.PW2/A. It was taken into possession vide seizure memo vide ex.PW2/C. The knife which was recovered from accused Moti Lal (now PO) was identified and exhibited as Ex.P1. Most of the material witnesses i.e. PW1 to PW6 who were examined before declaring him PO were being crossexamined by the counsel for the accused. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being. The other witnesses who were examined after his arrest u/s 41.1 (c) Cr. PC, have not been crossexamined by accused.
11.PW10 HC Sanjay and PW11 SI Mahender Singh came before the court and deposed that on 20.01.2012, they along with Ct. Jasbir and Ct. Rajesh went at bus stand 857, Raghubir Nagar. One secret informer met with the IO and informed that one accused Dharamraj @ Pappu, a proclaimed offender of PS Paschim Vihar, is standing in 12 front of Guru Gobind Singh Hospital. He can be arrested if a raid is conducted. Thereafter, they all the police officials along with secret informer went at Guru Gobind Singh Hospital and at the pointing out of secret informer, who was standing near the gate of hospital was apprehended and on interrogation his name revealed as Dharamraj @ Pappu. They identified accused. IO also verified from PS Paschim Vihar and it was revealed that accused was wanted as PO in the present case U/s 399/402 IPC and 25 Arms Act and he has been declared PO on 25.03.2010. IO arrested accused, prepared his arrest memo and personal search memo vide Ex.PW10/A and B, which bears my signatures at point A. Information regarding his arrest was given at PS Paschim Vihar. Accused was brought at PS Rajouri Garden and thereafter he was put behind the lockup. Both these witnesses have not been cross examined.
12.PW12 ASI Jai Parkash formal witness being duty officer at PS Rajouri Garden. He got exhibited the photocopy of DD no.48 as Ex.PW12/A. He was not crossexamined.
13.PW13 HC Narender Kumar came before the court and stated that on 20.01.2012 he received DD no. 48 A dated 20.01.2012 regarding 13 arrest of accused Dharam Raj @ Pappu (PO) by SI Mahender Singh of PS Rajouri Garden. He went at PS Rajouri Garden. He collected the documents i.e. photocopy of Kalandara U/s 41.1 (c) Cr.P.C. Photocopy of arrival and information regarding arrest memo and personal search memo. Accused was also kept at the lockup. He identified the accused. He recorded statement of SI Mahender and HC Sanjay Kumar. Accused was produced by SI Mahender Singh before the concerned court and from there he was sent to J/C. PW13 prepared supplementary chargesheet against accused Dharamraj @ Pappu and submitted the same before the court. This witness has not been crossexamined.
14.PW14 HC Ram Kishan appeared before the court and stated that on 24.02.2010 he was posted at PS Paschim Vihar, Delhi. On that day, he took process under section 82 Cr.P.C. against accused Pappu @ Dharam Raj S/o Vasu Dev Raj R/o B3/593, Raghubir Nagar. He reached at the aforesaid place but no person by the name of Pappu @ Dharam Raj was found there. A copy of process was affixed at the public place in the aforesaid locality and copy of process was affixed on the notice board of the court. He got exhibited the report in this regard as Ex.CW1/A. He further deposed that on 24.03.2010, he took the process under section 83 14 Cr.P.C. against the aforesaid accused but the accused was not found in the aforesaid locality and no movable or immovable property was found in the name of accused. He recorded statements of witnesses in this regard vide Ex.CW1/B and CW1/C and vide his report in this regard which is Ex.CW1/D. This witness has also not been crossexamined.
15.After recording the statements of above witnesses statement of accused u/s 313 Cr. P. C. was recorded in which he denied all the allegations and stated that he has been falsely implicated in this case. However, he did not lead any defence evidence.
16.Thereafter, case was fixed for final arguments. Ld. counsel for the accused argued at length. During the course of arguments ld. counsel for accused argued and submitted that accused is innocent and he has been falsely implicated in this case. He further argued that accused has no concern with the case. All allegations are false and witnesses are interested witnesses being police officials. Ld. counsel for accused again argued and emphasized on the point that no witness from public has been joined in this case while it has categorically come on record that there were many public persons present. He again stated that there are so many major 15 contradictions in the statements of police officials. Ld. counsel further argued that accused is innocent and he has been falsely implicated in this case. On these grounds he prayed for acquittal of accused by giving him benefit of doubt.
17.Contrary to it, ld. APP argued and submitted that there is sufficient evidence on record to convict the accused. All the witnesses have correctly identified the accused as culprit. Case property has also been proved on record. On these grounds ld. APP submitted that accused be convicted.
18.Before reaching at any conclusion let the relevant sections i.e. 399 IPC and 402 IPC be produced verbatim which are as under:
Section 399 IPC "Making preparation to commit dacoity Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Section 402 IPC "Assembling for purpose of committing dacoity - whoever, at any time after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."
19.On careful perusal of relevant sections the following ingredients of respective sections must be proved on record:
Ingredients of Section 399 IPC
i) it is necessary to prove that the assembly of the 16 accused persons is for preparation of dacoity;
ii) it must be proved that the act for which preparation was being made was a dacoity; and
iii) it must be cogent evidence in support of the charge that the accused persons had assembled to commit dacoity.
Ingredients of Section 402 IPC
i) that there was an assembly of five or more persons;
ii) that the assembly was constituted for the purpose of committing dacoity; and
iii) that the accused persons were members of that assembly"
1. I have perused the case file and gone through the testimonies of all witnesses also very carefully. It has come on record that public persons were present there but no public witness join the raiding party. I .O. did not issue any notice to any of them. Besides, it has also come on record that police officials overpowered accused persons who were having knives and rods. So, it is difficult to believe that no struggle from the side of accused persons took place when police party reached there to apprehend them. Besides, I.O.
has not brought on record any concrete proof of conversation what the accused persons were doing, in the area of high technology.
Therefore, keeping in view of these major contradictions I am of the view that n o ingredients of section 399 and 402 IPC has been proved on record against the accused by the prosecution because it has been observed that no specific instance of attempting to commit any sort of offence either robbery or otherwise jointly has come on 17 record in the testimony of any of the witnesses, therefore, it raises a strong and sufficient doubt whether accused was present at the spot for committing any robbery/ offence. In Brijlal Mandal Vs State 1978 Cr. L J 877 (Pat) it has been observed that:
"it is necessary to prove that the assembly of the accused persons is for preparation of dacoity. Only because the accused persons were waiting in a waiting hall of a railway station, it cannot be held that they had assembled there for preparation to commit dacoity"
Again, in another case Madhusudan Vs State AIR 1958 Cal 25 :
1958 Cr L J 25 has been observed that :
"So some act amounting to preparation must be proved and it has further to be proved that the act for which preparation was being made was a dacoity."
It has also been held in case Sukhlal Vs State of Madhya Pradesh 1998 Cr. L. J. 1366 (M) that:
"In order to bring home the offence under section 399 I. P. Code the prosecution has to establish that the act of the accused amounted to preparation and this preparation was to commit dacoity. In other words, the prosecution must show that there were persons who had conceived the design of committing the dacoity and they were preparing in prosecution of that design. So far as the offence under Section 402 I. P. Code is concerned, it may be mentioned that this section applies to mere assembling without proof of other preparation. Therefore, the offence under section 399 I.P. Code is preparation to commit dacoity, whereas the offence under section 402 I.P. Code is complete as soon as five or more persons assemble together for the purpose of committing dacoity. So, for an offence under section 402 mere assembling for any preparation is sufficient, whereas under section 399 for an offence under that section it must be proved that some additional steps were taken in the course of preparation to commit dacoity."18
1. Therefore, keeping in view of the above discussed observations I am of the view that prosecution has miserably failed to meet out the ingredients of section 399 IPC and 402 IPC as no specific instance of attempting to commit any sort of offence either robbery or otherwise jointly or conjointly has come on record against the accused therefore, it raises a strong and sufficient doubt whether accused was gathered at the spot for committing any robbery / offence or not. It has also been observed in the testimony of police officials that public person were present there and on the other hand he stated that no legal action was taken against them who refused to join raiding party due to shortage of time. Therefore, in light of the above discussed observations of Hon'ble Higher Courts, facts and circumstances of the case, I acquit accused Dharam Raj @ Pappu by giving him benefit of doubt for the offences u/s 399/402 IPC. No charge u/s 25/54/59 Arms Act has been framed against the accused relating to this case. So long as the offence u/s 174 A IPC is concerned, it spells out as under: "[174A - Nonappearance in response to a proclamation under section 82 of Act 2 of 1974 Whoever fails to appear at the specified place and the specified time as required by a proclamation published under subsection (1) of section 82 of the Code of Criminal Procedure, 1973 ( 2 of 1974) shall be punished with imprisonment for a term which may extend to three years or with fine or with both, and where a declaration has been made under sub section (4) of that section pronouncing him as a proclaimed offender, he shall be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine.]" 19
2. In this regard, vide deposition of PW14 HC Ram Kishan @ Kishore who stated that on 24.02.2010 he took process under section 82 Cr.P.C. against accused Pappu @ Dharam Raj S/o Vasu Dev Raj R/o B3/ 593, Raghubir Nagar. He reached at the aforesaid place but no person by the name of Pappu @ Dharam Raj was found there. A copy of process was affixed at the public place in the aforesaid locality and copy of process was affixed on the notice board of the court. He got exhibited the report in this regard as Ex.CW1/A. He further deposed that on 24.03.2010, he took the process under section 83 Cr.P.C. against the aforesaid accused but the accused was not found in the aforesaid locality and no movable or immovable property was found in the name of accused. He recorded statements of witnesses in this regard vide Ex.CW1/B and CW1/C and vide his report in this regard which is Ex.CW1/D. This witness has not been crossexamined. Accused Dharam Raj @ Pappu was declared PO vide order dated 25.03.2010. Thereafter, on 20.01.2012, PW11 Insp. Mahender Singh along with HC Sanjay Singh, Ct. Jasbir and Ct. Rajesh on having received secret information, apprehended him from the gate of Guru Gobind Singh Hospital. Accused Dharam Raj @ Pappu was again arrested vide arrest memo and personal search memo vide 20 Ex.PW10/A and B. PW11 SI Mahender Singh prepared Kalanadra under section 41.1 (c) Cr.P.C. against accused vide Ex.PW11/A. A question in this regard was also put in the statement recorded u/s 313 Cr. PC but accused could not give any satisfactory reply. Therefore, in view of the aforesaid discussion and facts and circumstances of the case, I am of the view that prosecution has successfully proved its case for the offence u/s 174A IPC. Hence, I convict accused for the offence u/s 174A IPC.
Accordingly, I convict accused Dharam Raj @ pappu for the offence punishable u/s 174A IPC; and acquit him for the offence u/s 399/402 / 34 IPC for the reasons as discussed in the preceding paras. ANNOUNCED IN THE OPEN COURT ON THIS 20.12.2012 (RAJ KAPOOR) ASJ02/West Distt.
Tis Hazari Courts, Delhi 21