Delhi District Court
State vs Sanjay @ Sanju on 1 September, 2016
Sessions Case No. 21/15 FIR No. 819/14 State Vs Sanjay @ Sanju Police Station Sarojini Nagar Under Section 392/ 397/ 436/ 34 411 IPC and 25 Arms Act. Convicted 392/34 IPC / 411 IPC and 25 Arms Act. 01.09.2016 Pre: Ld. APP for the state. Convict produced from JC. Arguments on sentence heard. Vide separate detailed order placed along side in the file, convict Sanjay @ Sanju is sentenced to undergo 03 years R.I. and fine of Rs.500/- for the offence u/s 392/ 34 IPC and in default of payment of fine he shall further undergo for 15 days S.I.; to undergo 02 years R.I. for the offence u/s 411 IPC; and further to undergo 01 year R.I. and fine of Rs.300/- for the offence u/s 25 / 54/ 59 Arms Act and in default of payment of fine he shall further undergo for 07 days S.I. All the sentences shall run concurrently. Benefit of section 428 Cr. PC be given to the convict. Copy of this order and judgment be given to the convicts at free of cost forthwith. File be consigned to record room. (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 1 IN THE COURT OF SH. RAJ KAPOOR, ADDITIONAL SESSIONS JUDGE (03), PATIALA HOUSE COURT, NEW DELHI Sessions Case No. 21/15 FIR No. 819/14 State Vs Sanjay @ Sanju Police Station Sarojini Nagar Under Section 392/ 397/ 436/ 34 411 IPC and 25 Arms Act. Convicted 392/34 IPC / 411 IPC and 25 Arms Act. 01.09.2016 ORDER ON THE POINT OF SENTENCE Pre: Ld. APP for the state. Convict produced from JC. ld. APP submits that offence of such types are increasing day by day. Convict has been convicted only for the offences punishable u/s 392/34 IPC / 411 IPC and 25 / 54/ 59 Arms Act and he has been absolved from the offence u/s 397 and 436 IPC. Ld. APP further submits that accused has criminal antecedents since he is involved in number of cases of similar nature. On these grounds ld. APP submits that convict deserve maximum punishment. Contrary to it, convict submits that he is aged about 23 years old. He further submits that his mother and father has already expired leaving 2 behind a younger sister. He again submits that he is only one to look after her sister. He further submits that his sister is now living with his bua in Faridabad. He lives on footpath. On these grounds he submits that lenient view be taken at the time of awarding the sentence. Having given careful consideration to the submissions of ld. APP for the State and convict as well. Since, convict is very poor person and he has younger sister to feed therefore, I am of the view that ends of justice shall be met if convict Sanjay @ Sanju is sentenced to undergo 03 years R.I. and fine of Rs.500/- for the offence u/s 392/ 34 IPC and in default of payment of fine he shall further undergo for 15 days S.I.; to undergo 02 years R.I. for the offence u/s 411 IPC ; and further to undergo 01 year R.I. and fine of Rs.300/- for the offence u/s 25 / 54/ 59 Arms Act and in default of payment of fine he shall further undergo for 07 days S.I. Accordingly, convict Sanjay @ Sanju is sentenced to undergo 03 years R.I. and fine of Rs.500/- for the offence u/s 392/ 34 IPC and in default of payment of fine he shall further undergo for 15 days S.I.; to undergo 02 years R.I. for the offence u/s 411 IPC; and further to undergo 01 year R.I. and fine of Rs.300/- for the offence u/s 25 / 54/ 59 Arms Act and in default of payment of fine he shall further undergo for 07 days S.I. All the sentences shall run concurrently. Benefit of section 428 Cr. PC be given to the convict. Copy of this order and judgment be given to the convicts at free of cost forthwith. Orders accordingly. ANNOUNCED IN THE OPEN COURT ON THIS 01.09.2016 (RAJ KAPOOR) ADDITIONAL SESSIONS JUDGE-03 PATIALA HOUSE COURTS NEW DELHI 3 FIR no.819/14 State V. Sanjay @ Sanju PS Sarojini Nagar 23.08.2016 Pre: Ld. APP for the State. Accused is in JC. File perused, vide separate detailed judgment placed along side in the file, I convict accused Sanjay @ Sanju for the offences punishable u/s 392/34 IPC for committing robbery of Rs.8,000/-, one pair of gold ear tops, one gold mangalsutra and two mobile phones; I again convict the accused for the offence 411 IPC for the recovery of Zen Phone of PW2 Raj Bahadur; and I further convict the accused u/s 25 Arms Act for having found in possession of knife. I absolve accused Sanjay @ Sanju for the offences punishable u/s 397 and 436 IPC. Now, case be fixed for order on sentence on 01.09.2016. (RAJ KAPOOR) ASJ-03/PHC/NDD/NEW DELHI 4 IN THE COURT OF SH. RAJ KAPOOR, ASJ-03, COURT NO. 3, ANNEXE BUILDING, PATIALA HOUSE COURT S, NEW DELHI Sessions Case No. 21/15 Assigned to Sessions. 09.04.2015 Arguments heard on 09.08.2016 Date of order 23.08.2016 FIR No. 819/14 State Vs Sanjay @ Sanju s/o Vijay Sharma r/o Vegabond, Sarojini Nagar, New Delhi. Police Station Sarojini Nagar Under Section 392/ 397/ 436/ 34 411 IPC and 25 Arms Act. JUDGEMENT
1. Briefly facts of the case are that on 20.12.2014 at about 05:00 a.m. at Jhuggies near House no. G-142, Sarojini Nagar, Delhi accused along with other two unknown associates (still not arrested) in furtherance of their common intention committed robbery of Rs.8,000/-, one pair of gold ear tops, one gold mangalsutra and two mobile phones belonging to the complainant Raj Bahadur and in committing said robbery accused caused fear of instant death or instant hurt by showing a deadly weapon i.e. knife to the complainant.
2. On the aforesaid date, time and place accused was found in possession of a mobile phone make Zen Black Colour, which he received or retained knowing or having reasons to believe the stolen property of Raj 5 Bahadur.
3. Further, on 20.12.2014 at about 04:00 a.m. at House no. G-130, Sarojini Nagar, Delhi accused along with other co-accused persons (not arrested) committed mischief by fire intending to cause or knowing it to be likely that he would thereby cause the destruction of a building i.e. H. No. G-130, Sarojini Nagar, Delhi, which was ordinarily used as a human dwelling house or for the custody of the property.
4. This case was committed to the Sessions Court and received on 09.04.2016 for trial as it pertains to the heinous crime committed under sections 392/ 397/ 436/ 34 and 411 IPC and 25 Arms Act which is exclusively triable by court of Sessions. Ld. Predecessor of the court framed a charge for the offences punishable u/s 392/ 397/ 436/ 34 and 411 IPC and 25 Arms Act, to which accused did not plead guilty and claimed trial.
5. Thereafter, prosecution has examined 14 witnesses namely PW1 Retd. / SI Jeet Singh; PW2 Raj Bahadur, PW3 SI Pradeep Rawat ; PW4 Ct. Amarpal, PW5 HC Manoj Malik, PW6 SI Padeep Rawat, PW7 Sh. Elan Govan, PW8 SI Anoop Kumar Singh, PW9 Dinesh Kumar, LDC, Home General Deptt., PW10 Brij Kishore, PW11 Rahul Kumar, PW12 Ct. Jaiveer Singh, PW13 SI Vinod Kumar and PW14 HC Manoj Kumar. 6
6. PW1 Retd. SI Jeet Singh appeared in the witness box and deposed that on 20.12.2014 he was working as duty officer in PS - Sarojini Nagar from 12 midnight (19/20.12.2014) to 08:00 AM and upon receipt of rukka sent by SI Vinod Kumar through Ct. Amar Pal had registered FIR No. 819/14 which is Ex.PW1/A after making entry on original rukka Ex.PW1/B. The certificate under Section 65 B of the Indian Evidence Act is Ex.PW1/C. He has also recorded DD No. 6B dated 20.12.2014 which is Ex.PW1/D.
7. PW2 Raj Bhadur was engaged in the business of ironing clothes near House No.G-145 and when he was sleeping in his jhuggi on 20.12.2014 at about 05:00 AM along with his family, he heard some noises and saw accused Sanjay @ Sanju standing besides his bed whereas his associates (not arrested) was standing at the door of his jhuggi. He further deposed that accused Sanjay was taking out his personal articles from his purse and Raj Bhadur woke up due to the noise. Thereafter, accused Sanjay handed the belongings to his associates, who were standing at the gate of the jhuggi. Thereafter, Raj Bahadur raised hue and cry upon which his associates ran away. Raj Bahadur had tried to apprehend accused but accused took out a knife and put it on the person of Raj Bahadur and threatened him. Thereafter, PW2 Raj Bahadur managed to apprehend accused Sanjay after a scuffle with him. Accused had also beaten Raj Bahadur with hands and legs and gave him fist blows. He further testified that accused had robbed from him Rs.8000/-, Gold Ear Tops, One gold mangalsutra and two mobile phones make Zen phone and 7 Carbon phone. Since, the police personnel were stationed near the market gate after hearing the noises they approached towards Raj Bahadur and accused. Thereafter, on carrying out personal search of accused, he was found in possession of Zen phone which belonged to Raj Bahadur and one knife. However, two associates of accused managed to run away.
8. This witness (PW2) further deposed that police recorded Raj Bahadur's statement Ex.PW2/A signed by him at point A. Raj Bahadur had also shown the place of occurrence to the police on which the site plan was prepared. The sketch of the knife was also prepared Ex.PW2/B. The knife was taken into possession vide seizure memo Ex.PW2/C. The phone was taken into possession vide seizure memo Ex.PW2/D. PW2 Raj Bahadur had identified accused correctly. Accused was arrested and personally searched vide arrest and personal search memos Ex.PW2/E and Ex.PW6/F both signed by Raj Bahadur at point A. Thereafter, accused was interrogated. He had also identified the knife which was recovered from his possession being the same used by accused against Raj Bahadur as Ex.P1. He had also identified one Zen phone as Ex.P2 belonging to him and robbed by accused.
9. PW3 SI Pradeep Rawat appeared in the witness box being 2nd IO of the case. He deposed that on 28.12.2014 he was Posted in PS - Sarojini Nagar and received the case file for further investigation on the transfer of IO SI Vinod on the instructions of the SHO. He had searched 8 for co-accused but none could be found. Thereafter, he prepared the charge-sheet and filed it in the court.
10. On 20.12.2014 PW4 Ct. Amarpal was posted in PS Sarojini Nagar and was on emergency duty on that day and had received DD No. 6-B. He along with SI Vinod Kumar had reached near House No. G-141, Near Babu Market where he met the complainant Raj Bahadur, who had produced accused Sanjay @ Sanju along with one mobile phone and one buttondar knife (aluminum) to the IO. He was a witness to the recording of statement of Raj Bahardur preparation of rukka and he had got the present FIR registered. He was a witness to the preparation of sketch of knife Ex.PW2/B and seizure vide Ex.PW2/C. The zen phone was also seized in his presence by the IO vide Ex.PW2/D. He was also a witness to the arrest of accused and personal search vide Ex.PW2/D and Ex.PW2/E. Thereafter, he was also a witness to the recording of disclosure statement of accused vide Ex.PW4/A. In his presence IO has also prepared the site plan Ex.PW4/B. He had identified him in the court correctly. He had also identified the knife as Ex.P-1 and the zen mobile phone as Ex.P-2.
11. PW5 HC Manoj Kumar was posted as MHCR in PS Sarojini Nagar and had produced in the court previous involvement details of accused vide Ex.PW5/A running into 07 pages which shows that 28 cases are pending against accused. The report of SCRB is also enclosed along with the same.
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12. PW7 Sh. Elan Govan was working as Inspector in ITBP and on 20.12.2014, at about 4:00 am, he along with his family members was sleeping in his government accommodation quarters bearing No. G-130. He heard some noises from the back gate of his house since it was located on the ground floor, as a result of which he woke up. He saw smoke inside the house and saw one person standing behind the gate. He had also observed some polythene burning at the window. He raised alarm and shouted that some one had put up fire inside his house and also saw three persons running away in the gali from the gate of the back side, he had also raised alarm that thieves have entered the house. After about 10-15 minutes he heard voices from the neighborhood and also went out side and heard that theft has been committed in jhuggis in house no. G-142. This witness has also deposed that he had also seen that the persons from the neighborhood had caught hold of accused and he had also identified accused as the same person who has entered his house. It was later on revealed to him that theft of some jeweleries and mobiles had been committed. He also deposed that upon apprehension of accused, accused was saying that public persons had committed mistake by catching him. This witness has been got declared hostile by ld. APP on some material points.
13. PW8 SI Anoop Kumar Singh on 20.12.2014 was the In-charge and finger print expert of mobile crime team of south district and on that day, 10 he had gone to the place of occurrence at the jhuggies near flat G-142, Sarojini Nagar and flat G-130 Sarojini Nagar and inspected the place of occurrence between 12:15 to 12:45 PM. He had given his report bearing no. 1599/14 in his handwriting which is Ex. PW8/A. He was also accompanied by photographer Ct. Jaibir who had photographed the spot.
14. PW9 Sh. Dinesh Kumar was working as LDC in the accounts General Deptt. and had brought the original gazette notification dt.17.02.1979 pertaining to the possession of various types of knives in the Union Territory of Delhi which is Ex.PW9/A [OSR].
15. PW10 Brij Kishore came before the court and deposed that on 20.12.2014 at about 04:50 AM he was sleeping in his jhuggi and had a shop at the patri/ footpath opposite shop No. 34, Sarojini Nagar Market he heard loud voices of Chor Chor as a result of which he woke up and when he came outside his jhuggi, he saw Raj Bahadur running after one person. He also ran with Raj Bahadur and apprehended accused, accused had also grappled with them and tried to flee away but accused was apprehended at the spot. He further deposed that Raj Bahadur had told him that there were two other persons also with accused but they managed to escape. Raj Bahadur told him that the said person had committed theft inside his jhuggi. He had also deposed that when other neighborhood persons gathered at that time accused started threatening them that accused would set fire their jhuggies. He further testified that the 11 occupant of house no. G-130 i.e., Elan Govan also arrived and told that accused and his associates had also set fire to some polythene bags kept at the window at the back side entry and also informed that accused had also tried to set fire to his house. This witness identified accused correctly
16. PW11 Rahul Kumar came before the court and deposed that on 20.12.2014 at about 04:50 a.m. he was sleeping near the Jhuggi G- 142. and had heard loud voices of Chor Chor and when he woke up and when came outside his jhuggi, he also saw Raj Bahadur running after one person and Rahul Kumar also ran with Raj Bahadur and Brij Kishor and all of them apprehended accused. He had also corroborated the statement of PW7 Elan Govan and PW 10 Brij Kishore. He had also deposed that when accused was apprehended and other neighbourers also gathered and at that time accused started threatening PW7 and PW10 and PW11 that they do not know 'who accused was' and that accused would set fire their jhuggies. PW11 Rahul had also deposed that PW7 Elan told him that accused along with his associates had also set fire to some polythene bags kept at the window at the back side entry and also informed that he had tried to set fire the house of PW7 Elan along with his associates.
17. PW12 Ct. Jaiveer Singh appeared in the witness box and deposed that on 20.12.2014 he was working as a photographer in mobile crime team, South District and upon receipt of a call from control room he along with the mobile crime team comprising of SI Anoop Kumar, Finger 12 Print Expert had gone to Moti Lal Nehru Camp, near public toilets, Gali No.
4. Where he met the IO SI Rajeev and on his instructions he had taken 10 photographs of the spot which are Ex.PW12/A [1-10 colly].
18. PW13 SI Vinod Kumar deposed that on 20.12.2014 he was posted in PS S. Nagar on that day on receipt of DD No 6-B he along with Ct. Amarpal had gone to the place of occurrence Jhuggi near G-141, Sarojini Nagar where complainant Raj Bahadur met him. This witness further deposed that Raj Bhadur had already caught hold of accused and handed over him to SI Vinod. Raj Bahadur had also handed over him one buttondar knife and one mobile phone make Zen. Thereafter, he had recorded the statement of Raj Bahadur and prepared rukka vide Ex.PW10/A and got the present case registered through Ct. Amarpal. He had also prepared seizure memo of the recovered knife Ex.PW2/C and prepared seizure memo of the recovered mobile phone Ex.PW2/D. Site plan was also prepared by him at the instance of the complainant Ex.PW4/B. The sketch of the knife was also prepared Ex.PW2/B. This witness further deposed that he arrested accused vide arrest memo Ex.PW2/E and personally searched vide Ex.PW2/F. Thereafter, disclosure statement of accused was also recorded Ex.PW4/A. He also recorded the statement of witness and was transferred from the PS. He had identified accused correctly
19. PW14 HC Manoj Kumar is a formal witness being MHC(M). He 13 deposed that he was working as MHCM in PS Sarojini Nagar and had brought register no. 19 showing entries regarding seizure of mobile phone Zen and knife vide Ex.PW14/A.
20. After recording the prosecution evidence, statement of accused u/s 313 Cr. PC was recorded. Accused pleaded that he is innocent and he has been falsely implicated in this case. However, accused did not lead any defence evidence.
21. Final arguments were heard at length. During the course of arguments Ld. Legal Aid Counsel for the accused submitted that prosecution has failed to prove its case beyond reasonable doubt against the accused for the offences punishable under Section 392/ 397/ 411/ 436/ 34 IPC and 25/54/59 A. Act. He further submitted that there are a number of contradictions in the deposition of material witnesses. He further submitted that nothing has been recovered from the possession of the accused except the mobile phone. On these grounds he submitted that accused be acquitted.
22. Contrary to it, Ld. Additional PP for the State has opposed the contentions of Ld. Counsel for the accused and submitted that accused has committed robbery in the jhuggi of complainant PW2 Raj Bahadur along with his two unknown associates. He further submitted that accused has been apprehended red handed while he was committing robbery by 14 the complainant and by the neighborers of the complainant while his associates managed to flee away from the spot. He further submitted that accused had committed robbery of Rs. 8000/-, Gold Ear Tops, one gold mangalsutra and two mobile phones make 'Zen' phone and 'Carbon' phone. He further submitted that accused has criminal antecedents as there are number of cases numbering 28 pending against the accused. He further submitted that other than PW 2 Raj Bahadur, PW 7 Elan Govan, PW 10 Brij Kishore and PW11 Rahul Kumar have deposed against the accused and have corroborated each other's deposition. He further submitted that prosecution has proved its case beyond reasonable doubt against the accused and he is liable to be convicted.
23. Having heard the submissions of both the sides, I am of the view that so long as the contention of ld. Counsel for the accused that there are so many contradictions on record are concerned, these contradictions are minor type in nature, which are attributable due to the long duration of time and memory of a human being. However, in case of Jaskaran Singh Vs State 1997 SCC (Crl) 651 it was observed by Hon'ble Supreme Court in the following words:-
"When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
Giving support to the contentions of minor contradictions Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292:
(1997) 1 SCC 19 made the following observations which are very 15 relevant crucial and dominant in deciding the fate of the present case:-
"minor discrepancies in the evidence of the eye-witnesses are immaterial unless they demolished the basic case of the prosecution".
The observations made in the aforesaid two cases by the Hon'ble Supreme Court are ex facie indicative of the fact that a clear distinction be made between the major contradictions and minor contradictions when the contradictions are minor the truthfulness of the witness cannot be discredited in all and contrary to it when the contradictions are major these affect the root of the case and leave an impression of untruthfulness of the witnesses.
In judgment 'State of UP vs M K Anthony AIR 1985 SC 48: 1985 Cr. LJ 493' it has been observed that:
"Minor discrepancies not going to the root of the matter would not permit rejection of evidence. Every honest and truthful witness may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals"
In another case 'Faquira Vs State AIR 1976 SC 915: (1976) 1 SCC 661', it has also been observed that "Minor discrepancies guarantee that the witnesses are not tutored."
Besides, accused has failed to give any satisfactory explanation with regard to his innocence at the time of recording of his statement u/s 313 Cr. PC. Further more, he did not bring on record any defence witness to falsify the prosecution story.
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24. Before reaching at any conclusion let the relevant sections be re- produced verbatim which are as under:-
"390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery.
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.
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 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.
392 IPC.
Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years.
397 IPC.
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.
Section 411 IPC
"Dishonestly receiving stolen property -
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Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
436 IPC.
Mischief by fire or explosive substance with intent to destroy house, etc.--Whoever commits mischief by fire or any explosive substance, intending to cause, or knowing it to be likely that he will thereby cause, the destruction of any building which is ordinarily used as a place of worship or as a human dwelling or as a place for the custody of property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
It has also been observed in 'Harish Chandra Vs State of UP - AIR 1976 SC 1430' that :
"Robbery - The offence of robbery is defined in section 390 IPC. The robbery is punishable under section 392 IPC. When force is used to enable another to carry away the booty, it amounts to robbery."
It is the fundamental principle of law that in case of conviction of accused persons the prosecution is required to prove the guilt of accused beyond reasonable doubt. Hon'ble Supreme Court on this point has observed in a case titled as 'Vijayee Singh Vs State of UP AIR 1990 SC 1459' that:
'Reasonable doubt' is one which occurs to a prudent and reasonable man- The 'reasonable doubt' is one which occurs to a prudent and reasonable man. Section 3 while explaining the meaning of the words 'proof', disproved' and 'not proved' lays down the standard of proof, namely about the existence or non- existence of the circumstances from the point of view of a prudent man. The section is so worded as to provide for two conditions of mind, first, that in which a man feels absolutely certain of a fact, in other words, 'believe it to exist' and secondly in which, though he may not feel absolutely certain of a fact, he thinks it so 18 extremely probable that a prudent man would under the circumstances act on the assumption of its existence. The act while adopting the requirement of the prudent man as an appropriate concrete standard by which to measure proof at the same time contemplates of giving full effect to be given to circumstances or condition of probability or improbability. It is this degree of certainty to be arrived where the circumstances before a fact can be said to be proved. A fact is said to be disproved when the court believes that it does not exist or considers its non-existence so probable in the view of a prudent man the fact is not proved, i.e. neither proved nor disproved. It is this doubt which occurs to a reasonable man, has legal recognition in the field of criminal disputes. It is something different from moral conviction and it is also different from a suspicion. It is the result of a process of keen examination of the entire material on record by 'a prudent man'.
25. Having perused the case file very carefully and material available on record it has come on record in the deposition of PW2 Raj Bhadur that on 20.12.2014 at about 05:00 AM he saw accused Sanjay @ Sanju standing besides his bed whereas his associates (not arrested) were standing at the door of his jhuggi. Accused Sanjay was taking out personal articles from the purse of Raj Kumar, which further being handed over to his associates, who were standing at the gate of the jhuggi.
Thereafter, PW2 Raj Bahadur raised hue and cry upon which his associates ran away. Raj Bahadur had tried to apprehend accused but accused Sanjay @ Sanju took out a knife and put it on the person of Raj Bahadur and threatened him. Thereafter, PW2 Raj Bahadur managed to apprehend accused Sanjay after a scuffle with him. In this process accused Sanjay @ Sanju gave beatings to Raj Bahadur with hands and legs and fist blows. PW2 further testified that accused had robbed from him Rs.8000/-, Gold Ear Tops, One gold mangalsutra and two mobile 19 phones make 'Zen' phone and 'Carbon' phone. He has also testified that since police personnels were stationed near the market gate therefore, on hearing noises they approached at the spot. Accused was apprehended. Thereafter, on carrying out personal search of accused, he was found in possession of 'Zen' phone which belonged to Raj Bahadur and one 'knife'. However, two associates of accused managed to run away. This witness (PW2 Raj Bahadur) further deposed that police recorded his statement vide Ex.PW2/A. Raj Bahadur had also shown the place of occurrence to the police on which the site plan was prepared. The sketch of the knife was also prepared Ex.PW2/B. The knife was taken into possession vide seizure memo Ex.PW2/C. The phone was taken into possession vide seizure memo Ex.PW2/D. PW2 Raj Bahadur had identified accused correctly. Accused was arrested and personally searched vide arrest and personal search memos Ex.PW2/E and Ex.PW6/F. This witnes has also identified the knife as Ex.P1 and 'Zen' phone as Ex.P2 belonging to him and robbed by accused. Testimony of this witness has also been fully corroborated by PW4 Ct. Amarpal PW7 Elan Govan; PW10 Brij Kishore; PW11 Rahul Kumar and PW13 SI Vinod Kumar. All these witnesses have categorically stated that early morning at around 04:50 a.m. or 5 a.m. accused was apprehended at the spot. They gathered at the spot on hearing noise 'chor-chor'. All these witnesses have also correctly identified the accused as culprit.
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26. In light of these facts and circumstances of the case and taking into consideration the observations made in the above referred judgments, I am of the view that prosecution has successfully proved its case beyond reasonable doubt against the accused Sanjay @ Sanju for the offences punishable u/s 392/ 34 / 411 IPC and 25 Arms Act precisely for the reasons that on 20.12.2014 at around 05:00 a.m. accused Sanjay @ Sanju committed offence of robbery in Jhuggi no. G-142, Sarojini Nagar by showing knife to the complainant PW2 Raj Bahadur. Only robbed 'Zen phone' of complainant PW2 Raj Bahadur could be recovered from the possession of accused Sanjay @ Sanju vide seizure memos Ex.PW2/D and knife was also recovered from him vide seizure memo of knife Ex.PW2/C and the same has been identified in the court as Ex.P-1 . Furthermore, accused was apprehended at the spot red handed but his associates had run away from the spot. Besides, accused Sanjay @ Sanju has also failed to give any satisfactory reply in the statement recorded u/s 313 Cr. PC.
27. However, prosecution has miserably failed to prove on record the offences punishable u/s 397 IPC that accused has used the weapon of offence while committing the robbery precisely for the reasons that there is no concrete proof on record for causing injury to PW2 Raj Bahadur. It is also very strange as to why PW2 has not been medically examined if he was beaten by the accused as alleged PW2 in his deposition. Again, prosecution has failed to prove its case for the offence u/s 436 IPC for 21 causing fire since there is no record that any one made a call to Fire Brigade while it is common sense if any house is burning a call to Fire Brigade must be made. I found no concrete evidence in this regard.
Accordingly, I convict accused Sanjay @ Sanju
for the offences punishable u/s 392/34 IPC for
committing robbery of Rs.8,000/-, one pair of gold ear tops, one gold mangalsutra and two mobile phones;
I again convict the accused for the offence 411 IPC for the recovery of Zen Phone of PW2 Raj Bahadur;
and I further convict the accused u/s 25 Arms Act for having found in possession of knife; and I absolve accused Sanjay @ Sanju for the offences punishable u/s 397 and 436 IPC in view of the observations made in the preceding paras.
ANNOUNCED IN THE OPEN COURT ON THIS 23.08.2016 (RAJ KAPOOR) ASJ-03/PHC/NDD/NEW DELHI 22