Delhi District Court
State vs . 1. Khem Chand, S/O Bansi Lal, R/O ... on 29 January, 2013
IN THE COURT OF SH. RAMESH KUMAR - II,
ADDITIONAL SESSIONS JUDGE - 0I : North East / KARKARDOOMA
COURTS: DELHI.
Case ID Number. 02402R0066312010
Sessions Case No. 21/2010
Assigned to Sessions. 18.05.2010
Arguments heard on 21.01.2013
Date of Judgment 29.01.2013
FIR No. 04/2010
State Vs. 1. Khem Chand, s/o Bansi Lal, R/o Village
Ranap Bagh, Ward No.5, PS, Loni,
Distt. Ghaziabad, U.P.
2. Wasim S/o Rafiq R/o Aman Vihar,
Near Talab Khadda, Loni, Ghaziabad,
U.P.
3. Nadeem @ Kallu S/o Nazir Ali R/o
Village Behta, Phool Wali Gali,
Hajipur, Loni, Ghaziabad, U.P.
Police Station Gokalpuri
Under Section 392/397/412/34 IPC
JUDGEMENT
1. Vide this judgment I shall dispose off the present case in which Station House Officer of Police Station Gokalpuri had filed a challan vide FIR No.04/2010 dated 04.01.2010, u/s 392/397/411/412/34 IPC for the prosecution of accused persons namely Khem Chand, Wasim, Nadeem @ Kallu, Rakesh, Vikki, Pawan, Shabir, Shahid and Ayub in the court of Ld. MM and Ld. Metropolitan Magistrate after compliance of section 207 Cr. P.C. committed this case for trial before this court. SC No.21/2010
State v. Khem Chand and others 1/24 Accused persons namely Rakesh, Vikki, Pawan, Shabir, Shahid and Ayub since were not arrested in the present case.
2. Facts of the prosecution case are that on 04.01.2010 a DD No.29A Ex.PW6/A was recorded at police station Gokalpuri regarding robbery of TATA407, bearing registration No.UP07J8757 and same DD was assigned to ASI Dev Raj. On receipt of DD No.29A ASI Dev Raj along with Ct. Rakesh reached at HP Petrol Pump, Near Loni Flyover, Gokalpuri, Delhi where complainant Rajbir met them. ASI Dev Raj had recorded his statement Ex.PW2/A and made endorsement upon the same Ex.PW21/A and got registered FIR for the offence u/s 392/397/34 IPC through Ct. Rakesh from police station. During the the course of investigation, accused persons were arrested for the offences u/s 392/397/34 IPC. CHARGES:
3. On the basis of material available on record ld. predecessor of this court had framed charges, vide order dated 05.07.2009 against accused Wasim for offences punishable u/s 392/397/412/34 IPC, charge for the offence punishable u/s 392/397/34 IPC against accused Khem Chand and charge for the offence punishable u/s 412 IPC against accused Nadeem @ Kallu to which accused persons did not plead guilty and claimed trial.
PROSECUTION WITNESSES:
4. In order to prove its case prosecution has examined 21 witnesses namely PW1 Chander Singh, PW2, Rajbir PW3 Ct. Vikram Singh, PW4 ASI Shankar Lal, SC No.21/2010 State v. Khem Chand and others 2/24 PW5 Ct. Rohtash, PW6 Ct. Rakesh, PW7 Vikram, PW8 Ct. Subhash Chand, PW9 Ct. Deepak, PW10 Sh. Chameli Shah, PW11 Taj Mohammad, PW12 Ct. Pramod Kumar, PW13 Ct. Devender, PW14 Retired S.I. Manohar Lal Dhyani, PW15 S.I. Pramod Anand, PW16 HC Ashok Pal Singh, PW17 S.I. Somil Sharma, PW18 HC Kanchhid Singh, PW19 Ct. Gurucharan Singh, PW20 Sh. Rinku Raghav and PW21 ASI Dev Raj.
5. PW1 Chander Singh. This witness is the registered owner of white colour Alto Car bearing registration No. HR30G0409 used in commission of crime and he had got released the aforesaid vehicle on Superdari. This witness has proved supurdginama for the amount of Rs.2,00,000/ Ex.PW1/C. This witness has also proved copy of notice received from police station Gokalpuri to produce his car and its driver vide Ex.PW1/A and reply of aforesaid notice vide Ex.PW1/B. Alto car is Ex.P1.
6. In his cross examination by ld. defence counsel, this witness has deposed that it was not told to him by Vikram Singh that to whom his aforesaid car had been delivered.
7. PW2, Rajbir. This witness is the complainant. At his instance present case was registered. This witness had refused to identify the accused persons present in the court and he has been declared hostile ld. APP for the State. In his cross examination he had denied suggestions put by ld. APP for the State. This witness had denied that accused Wasim present in the court was arrested by the I.O. in his SC No.21/2010 State v. Khem Chand and others 3/24 presence and that accused Wasim had driven Santro Car used in the crime. This witness had denied the suggestion that he can identify the robbers if same be produced before him. Further this witness had denied that accused Khem Chand @ Gulu and Wasim had been apprehended in his presence or that both the accused persons had disclosed before him that they can recover robbed case property. This witness had further denied it has come into his notice that after few days recovery of goods was effected from the possession of accused at police station. This witness had denied that accused Nadeem @ Kallu present in the court was arrested in this case in his presence and that he had identified him before police. This witness further denied that accused Nadeem had forced on point of countrymade pistol to took him towards Bhopura with vehicle TATA407 and that accused Nadeem had given him beating. This witness had denied to the suggestion that he can identify the case property which was recovered by police if same be shown to him and his statement Ex.PW2/D.
8. PW3 Ct. Vikram Singh. This is the witness of recovery at the instance of accused Wasim but this witness could not identify the accused Wasim in the court. This witness has been cross examined by ld. APP for the State on the identification of accused Wasim. In his cross examination, this witness neither admits nor denies that accused Wasim is present in court or not. This witness remained mum when accused Wasim, present in court was pointed by ld. APP for the State.
9. In his cross examination by Sh. Mukesh Sharma, ld. counsel for accused Nadeem, this witness admits that disclosure statement of accused Wasim was not recorded SC No.21/2010 State v. Khem Chand and others 4/24 in his presence and he is not the witness of seizure memo of case property. This witness denied to the suggestion that he had not joined the investigation of this case and that he had not gone to village Kumhera, Murad Nagar, U.P. and that no recovery was effected in his presence.
10.PW4 ASI Shankar Lal. This witness is a formal witness being duty officer. This witness has proved copy of FIR vide Ex.PW4/B which was recorded on the basis of rukka Ex.PW4/A presented through Ct. Rakesh.
11.PW5 Ct. Rohtash. This witness has proved seizure memo Ex.PW5/A of TATA Temp. No.UP07J8757 which was seized by I.O. in his presence.
12.PW6 Ct. Rakesh. This witness accompanied ASI Devraj to the spot on receipt of DD No.29A. In his presence, I.O. had recorded statement of complainant Rajbir vide Ex.PW2/A. This witness had taken rukka to police station for registration of FIR and got FIR registered.
13.PW7 Vikram. This witness has deposed that he is friend of Chander Singh and on 03.01.2010 he had taken Alto Car No. HR30G0409 from him who is resident of village Omroli, Haryana. This witness has further deposed that his brother Giani, sister, mother and himself had taken aforesaid car to Loni as they had to see their injured Mausi in Village Bagrana, Loni, Ghaziabad, U.P. This witness has further deposed that accused Khem Chand @ Gullu present in court is his cousin brother. This witness has identified car vide Ex.P1.
SC No.21/2010
State v. Khem Chand and others 5/24
14.PW8 Ct. Subhash Chand. This witness had joined investigation of this case with I.O./ASI Dev Raj on 10.01.2010 and accused Wasim led them here and there in search of coaccused persons but in vain on that day and next day, I.O. again made efforts to trace the coaccused persons as well as to collect incriminating evidence at the instance of accused Wasim but no clue come forward.
15.PW9 Ct. Deepak. This is the witness of arrest of accused Nadeem. This witness has proved disclosure statement of accused Nadeem @ Kallu vide Ex.PW9/B. This witness has also proved copy of Kalandara u/s 41.1 Cr.P.C. Ex.PW9/B which was prepared by S.I. Pramod against accused Nadeem.
16.In his cross examination by ld. legal aid counsel, this witness has deposed that he had apprehended accused Nadeem. This witness denied to the suggestion that accused Nadeem was not apprehended and arrested in his presence or that he had not made any disclosure statement.
17.PW10 Sh. Chameli Shah. This witness has deposed that he had not seen accused persons namely Khem Chand, Nadeem and Wasim present in court at any point of time along with police officials and police officials had not recovered anything from the roof of his son Mohd. Ayub at the instance of accused persons. This is witness has been got declared hostile by ld. APP for the State. In his cross examination by ld. APP for the State, this witness had denied to the suggestion that Delhi Police officials had come the house of his son Ayub or that they had recovered 202 cartons containing soaps etc. at the instance of accused Wasim SC No.21/2010 State v. Khem Chand and others 6/24 present in court. His statement Ex.PW10/A has been confronted by ld. APP for the State.
18.PW11 Taj Mohammad. This witness has been got declared hostile by ld. APP for the State. In his cross examination by ld. APP for the State, this witness denied to the suggestion that accused Wasim present in court was along with Delhi Police Officials or that accused Wasim had pointed out room of Ayyub in his presence as well as presence of Chameli Shah or that approximately 202 cartons containing product of Hindustan Liver Ltd. had been recovered from the room of Ayyub. His statement Ex.PW11/A has been confronted by ld. APP for the State.
19.PW12 Ct. Pramod Kumar. This is the witness of recovery of case property. This witness has proved seizure memo Ex.PW10/B i.e. 202 cartons containing cosmetic product of Hindustan Liver Ltd. Company which recovered at the instance of accused Wasim. This witness has correctly identified the 202 cartons containing cosmetic product vide Ex. P1 to Ex. P202.
20.In his cross examination by ld. counsel for accused Wasim, this witness denied to the suggestion that PWs Chameli Shah and Taj Mohammad had not joined the investigation of this case on 09.01.2010. This witness has further deposed that I.O. had not put any marks of identification on recovered carton in his presence.
21.PW13 Ct. Devender. This witness is also the witness of recovery at the instance of accused Wasim.
SC No.21/2010
State v. Khem Chand and others 7/24
22.PW14 Retired S.I. Manohar Lal Dhyani. This witness has deposed that on
08.10.2010, he had mechanically inspected Mini Truck/tempo TATA407 bearing registration No.UP07J8757 and Maruti Alto Car No. HR30G0409 at the request of I.O./ASI Dev Raj. This witness has proved his report vide Ex.PW14/A and Ex.PW14/B respectively.
23.PW15 S.I. Pramod Anand. This witness has deposed that on 27.01.2010, he was posted as S.I. in Special Staff, NE District, Delhi and on that day, at about 12:30pm, secret informer met him and disclosed about the arrival of one group of robbers at Balbir Nagar, Loni Road, Shahdara, Delhi. He also disclosed that they would rob truck and tempos with goods in Delhi. This witness had recorded aforesaid information at serial no.5 of DD of special staff. Copy of the same is Ex.PW15/A. In pursuance of aforesaid information, this witness along with HC Ashok, HC Upender, HC Azad, Cts. Deepak, Gurucharan, Sandeep and Pradeep reached at a Pulia, near wine shop at Balbir Nagar, Loni Road, Shahdara, Delhi and at about 01:40pm, this witness along with other team members overpowered one accused whose name came into notice as Nadeem @ Kallu, present in court (correctly identified) and his four other associates who had come in a white Toyota Innova car bearing reg. no. UP17T0150 were also apprehended on the pointing out of secret informer.
24.This witness had interrogated aforesaid five robbers one by one. Accused Nadeem @ Kallu made disclosure statement Ex.PW9/A disclosing his involvement in the SC No.21/2010 State v. Khem Chand and others 8/24 present case. Other four accused persons have no concerns with the present case. Thereafter, this witness had arrested two associates of accused Nadeem @ Kallu who have also no concerns with the present case.
25.This witness had prepared Kalandara u/s 41.1(D)/102 Cr.P.C. against seven accused persons including accused Nadeem @ Kallu. Copy of the same is Ex.PW9/B which bears his signature at point X. On completion of Kalandara proceeding this witness along with seven accused persons and staff reached in his office and accused persons were put into the lockup of P.S. Shahdara in muffled faces. This witness had made DD entry at serial no.25A at P.S. Shahdara. Copy of the same is Ex.PW15/B.
26.This witness has further deposed that on next day, i.e. 28.01.2010, at about 10:40am, he had passed on information through phone to D.O. of P.S. Gokalpuri, Delhi, about the arrest of accused Nadeem @ Kallu and his involvement in the present case, which was recorded there. This witness had produced aforesaid accused persons before concerned court. This witness has further deposed that ASI Dev Raj had come in his office and he had delivered him copy of Kalandara and copy of disclosure statement of accused Nadeem @ Kallu and copies of other relevant documents.
27.In his cross examination by ld. legal aid counsel for accused Nadeem @ Kallu, this witness has deposed that I.O. had recorded his statement in the present case and he had received information at about 12:00noon in our office. This witness had SC No.21/2010 State v. Khem Chand and others 9/24 denied to the suggestion that he had not interrogated accused Nadeem @ Kallu at the place of arrest or that he had recorded disclosure statement of accused Nadeem @ Kallu of his own in his office. This witness further denied to the suggestion that accused Nadeem has been falsely implicated in the present case.
28.PW16 HC Ashok Pal Singh. This is also the member of team who had recovered 13 carton containing cosmetic articles and soaps at the instance of accused Nadeem.
29.PW17 S.I. Somil Sharma. This witness has proved disclosure statement of accused Nadeem vide Ex.PW17/A and pointed out memo Ex.PW17/B which prepared at the instance of accused Nadeem.
30.This witness has deposed that on 24.02.2010 in pursuance of disclosure statement accused Nadeem led them at his house in village Hazipur Behta, Loni, Ghaziabad, U.P. and pointed out some carton of Hindustan Lever Limited containing cosmetic articles and soaps lying in the corner of his room at ground floor and I.O. had checked the same and found 13 cartons in number and I.O. had seized aforesaid robbed articles vide seizure memo Ex.PW16/A.
31.This witness has correctly identified aforesaid articles with carton vide Ex.P203 to Ex.P215 which had been recovered at the instance of accused Nadeem.
32.In his cross examination by ld. legal aid counsel, this witness has deposed that on SC No.21/2010 State v. Khem Chand and others 10/24 22.02.2010, disclosure statement of accused Nadeem @ Kallu was recorded in his presence in the court complex but he does not remember the time.
33.PW18 HC Kanchhid Singh. This witness has produced register No.05 (maal register) pertaining to entry of present case and original DD entry No.41. This witness has deposed that on 06.01.2010, S.I. Om Prakash Verma had deposited one TATA407 Tempo registration no.UP7J8757 in the malkhana vide DD No.41, dated 06.01.2010 as aforesaid vehicle had been found abandoned in the area of his police station. This witness has proved copy of aforesaid DD vide Ex.PW18/A and copy of entry vide Ex.PW18/B.
34.PW19 Ct. Gurucharan Singh. This witness has deposed that on 27.01.2010 at about 1:40 p.m. at Balbir Nagar, Loni Road, Near Sharab Ka Theka, Shahdara, Delhi, five dacoits had been overpowered by their raiding team comprising of himself, S.I. Pramod Anand, HC Azad, HC Ashok, Ct. Deepak and Ct. Pradeep. They had been chargsheeted u/s 41.1 (D) r/w 102 Cr.P.C. and name of dacoits came into notice as Nadeem @ Kallu, Radhey Shyam, Praveen etc. This witness has proved the disclosure statement of accused Nadeem vide Ex.PW9/A.
35.In his cross examination by ld. legal aid counsel, this witness denied to the suggestion that S.I. Pramod Anand had obtained signature of accused Nadeem on aforesaid disclosure statement at police station or that accused Nadeem had not made any disclosure statement.
SC No.21/2010
State v. Khem Chand and others 11/24
36.PW20 Sh. Rinku Raghav. This witness is the registered owner of tempo TATA 407, UP07J8757 which was robbed by someone in the area of Gokalpuri, Delhi and same had been recovered in the area of police station Baghpat, U.P. and he had got released the aforesaid vehicle on Superdari. This witness has proved supurdginama for the amount of Rs.2,00,000/ Ex.PW20/A. This witness has also proved photographs mark Y1 to Y4 of his tempo. This witness had delivered photostate documents of his tempo mark Z1 to Z19 to police which were seized vide seizure memo Ex.PW 20/B.
37.PW21 ASI Dev Raj is a material witness being I.O. of the present case. This witness has deposed that on 04.01.2010 at about 4:20 a.m. copy of DD No.29A, Ex.PW6/A was delivered to him by the duty officer which was in connection of robbery of TATA407, bearing registration No. UP07J8757. This witness along with Ct. Rakesh reached at HP Petrol Pump, Near Loni Flyover, Gokalpuri, Delhi where complainant Rajbir met them and this witness had recorded his statement Ex.PW2/A which bears his signature at point A. This witness had attested statement of complainant at point X. Thereafter, this witness had made endorsement Ex.PW21/A to get registered FIR for offence u/s 392/397 r/w 34 IPC and Ct. Rakesh was sent to Police Station from spot at about 5:30 a.m. for registration of FIR.
38.During the course of investigation, this witness has prepared site plan of place of occurrence Ex.PW21/B at the instance of complainant and it came into his notice that aforesaid vehicle was loaded with the products of Hindustan Lever Ltd. which SC No.21/2010 State v. Khem Chand and others 12/24 were also robbed by eight robbers and complainant had stated before him that he can identify them. In the meantime, Ct. Rakesh came at the spot and delivered rukka along with copy of FIR for investigation to him.
39.During the course of investigation, on 06.01.2010, this witness had received information that aforesaid vehicle was found abandoned in the area of P.S. Baghpat, U.P. and on the same day, he went there and brought back the aforesaid vehicle vide written request photocopy of which is Ex.PW21/C and it came into my his notice that no products of Hindustan Lever Ltd. were in the aforesaid vehicle. This witness has further deposed that as per statement of complainant one Alto car, No. HR30G0409 had been used by the robbers in the present case and he had made search of the same car and seized from the custody of its owner, namely, Chander Singh, vide seizure memo Ex.PW21/D.
40.During the course of investigation, on 07.01.2010, this witness had seized 19 photostate documents of tempo TATA 407, Mark Z1 to Z19, vide seizure memo Ex.PW20/B on being produced by vehicle owner Rinku Raghav. This witness had also seized 3 carbon copies, Mark XX1 to XX3 in respect of robbed articles, vide seizure memo Ex.PW20/B.
41.During the course of investigation, on 08.01.2010, accused Khem Chand and Wasim, present in court, correctly identified, were arrested from Flyover, Loni Gole Chakkar, Delhi at the instance of secret informer vide arrest memo Ex.PW2/B and personal search memo Ex.PW2/B1 (of accused Khem Chand), and SC No.21/2010 State v. Khem Chand and others 13/24 arrest memo Ex.PW2/C and personal search memo Ex.PW2/C1 (of accused Wasim). This witness had recorded disclosure statements Ex.PW20/E of accused Khem Chand and Ex.PW20/F of accused Wasim.
42.During the course of investigation, I.O. had prepared pointing out memo Ex.PW21/G at the instance of accused Wasim in respect of place of occurrence and in pursuance to his disclosure statement on 09.01.2010, accused Wasim had got recovered case property i.e. 202 cartons containing soaps, fair & lovely face cream and other cosmetic articles belongs to Hindustan Lever Ltd., from a room at Village Kumhera, Muradnagar, Distt. Ghaziabad, U.P. and this witness had seized the same vide seizure memo Ex.PW10/B.
43.This witness has further deposed that accused Nadeem was arrested by special staff North East District vide kalandara proceedings Ex.PW9/B and he had made his disclosure statement Ex.PW9/A in connection of present case and same had been collected by this witness and this witness had recorded disclosure statement Ex.PW17/A.
44.During the course of investigation, on 22.02.2008 this witness had prepared pointing out memo of place of occurrence vide Ex.PW17/B at the instance of accused Nadeem and pursuance to his disclosure statement, accused Nadeem had got recovered 13 cartons containing products of Hindustan Lever Ltd. From his house and I.O. had seized the same vide seizure memo Ex.PW16/A. SC No.21/2010 State v. Khem Chand and others 14/24
45.During the course of investigation, this witness had collected mechanical inspection report Ex.PW14/A and Ex.PW14/B in respect of vehicle TATA407 and Alto Car and 202 cartons had been released on superdari with the company. This witness has correctly identified the case property in the court.
46.This witness has been cross examined at length by ld. defence counsel. In his cross examination by ld. defence counsel, this witness had denied that accused Khem Chand @ Gullu was produced by his father at P.S. in the morning on 08.01.2010 due to undue pressure of the police of P.S. Gokalpuri, or that later on he was falsely implicated in the present case.
STATEMENT OF ACCUSED PERSONS U/S 313 Cr.P.C.:
47.After prosecution evidence, statement of accused persons u/s 313 Cr.P.C. were recorded wherein all accused persons had denied all circumstances and evidence were put to them and claimed to be innocent and have been implicated falsely in the present case. Accused persons had not preferred to lead any D.E.
48.Thereafter, case was fixed for arguments.
ARGUMENTS:
49.Ld. APP for the State submits that there are charges u/s 392/397/412/34 IPC against accused Wasim, charge for the offence punishable u/s 392/397/34 IPC against accused Khem Chand and charge for the offence punishable u/s 412 IPC against accused Nadeem @ Kallu.SC No.21/2010
State v. Khem Chand and others 15/24
50.Ld. APP for the State further submits that present case had been registered on the complaint of Rajbir, victim of this case.
51.Ld. APP for the State further submits that recovery of robbed articles have been effected at the instance of accused Wasim and Nadeem. Ld. APP for the State further submits that officials witnesses have supported the case of prosecution.
Ld. APP for the State has prayed for maximum sentence to the accused persons.
52.On the other hand Sh. K.N. Sharma, ld. Legal Aid Counsel for accused Nadeem submits that PW2 Rajbir, complainant in his testimony has deposed that he had not seen the faces of accused persons and he has been got declared hostile by ld. APP for the State.
53.Ld. Legal Aid counsel further submits that no TIP in respect of accused persons had been conducted.
54.Ld. Legal Aid counsel further submits that PW7 Vikram had produced Alto Car in the court whereas complainant had stated that a Santro Car has been used in commission of crime.
55.Ld. Legal Aid counsel further submits that PW9 Ct. Deepak has deposed in his chief that accused Nadeem was arrested at 1:40 p.m. and in his cross examination he states that accused Nadeem was arrested at 3:30 p.m. whereas arrest memo SC No.21/2010 State v. Khem Chand and others 16/24 reflect time as 3:50 p.m.
56.Ld. Legal Aid counsel further submits that no public witness had joined the investigation.
57.Ld. Legal Aid counsel further submits that PWs Chameli Shah and Taj Mohammad are hostile witnesses.
58.Ld. Legal Aid counsel for accused Nadeem further submits that PW16 HC Ashok Pal Singh states date of production of accused Nadeem in the court as 24.02.2010 whereas PW17 S.I. Somil Sharma states that accused Nadeem was produced before court on 22.02.2010.
59.Ld. Legal Aid counsel for accused Nadeem further submits that PW17 S.I. Somil Sharma states that they had reached at the house of accused Nadeem by WagonR whereas PW16 states that they had reached at the house of accused Nadeem by Maruti Van.
60.Ld. counsel for accused Khem Chand submits that no recovery has been effected from accused Khem Chand. Complainant had not identified any of the accused persons. Superdar/owner of the vehicle TATA407 is hostile.
61.Ld. counsel for accused Khem Chand further submits that recovered car is Alto Car whereas complainant states that Santro Car was used in the commission of SC No.21/2010 State v. Khem Chand and others 17/24 crime.
62.Ld. counsel for accused Wasim submits that witness of recovery are hostile. On these grounds, ld. counsel for accused persons have prayed to acquit the accused persons from the charges.
PERUSAL OF RECORD:
63.Arguments heard. Record perused. On perusal of record it is revealed that present case was registered on the statement of complainant PW2 Rajbir Ex.PW2/A and accordingly, FIR Ex.PW4/B u/s 392/397/34 IPC was registered against accused persons.
64.On perusal of record, it is revealed that IO had inspected the place of occurrence and prepared site plan Ex.PW21/B at the instance of complainant.
65.On perusal of record, it is revealed that I.O. had seized one Alto Car No. HR30 G0409 vide seizure memo Ex.PW21/D.
66.On perusal of record, it is further revealed that I.O. had seized 19 photostate documents of tempo TATA 407, Mark Z1 to Z19 vide seizure memo Ex.PW20/B on being produced by vehicle owner Rinku Raghav.
SC No.21/2010
State v. Khem Chand and others 18/24
67.On perusal of record, it is further revealed that I.O. had arrested accused Khem Chand vide arrest memo Ex.PW2/B, his personal search was conducted vide personal search memo Ex.PW2/B1 and disclosure statement of accused Khem Chand was recorded vide Ex.PW20/E.
68.On perusal of record, it is further revealed that I.O. had arrested accused Wasim vide arrest memo Ex.PW2/C, his personal search was conducted vide personal search memo Ex.PW2/C1 and disclosure statement of accused Khem Chand was recorded vide Ex.PW20/F.
69.On perusal of record, it is further revealed that I.O. had prepared pointing out memo Ex.PW21/G at the instance of accused Wasim in respect of place of occurrence.
70.On perusal of record, it is further revealed that during the course of investigation, in pursuance to his disclosure statement on 09.01.2010, accused Wasim had got recovered case property i.e. 202 cartons containing soaps, fair & lovely face cream and other cosmetic articles belongs to Hindustan Lever Ltd., from a room at Village Kumhera, Muradnagar, Distt. Ghaziabad, U.P. and I.O. had seized the same vide seizure memo Ex.PW10/B.
71.On perusal of record, it is further revealed that accused Nadeem was arrested by special staff North East District vide kalandara proceedings Ex.PW9/B and he had made his disclosure statement Ex.PW9/A in connection of present case and same SC No.21/2010 State v. Khem Chand and others 19/24 had been collected by the I.O. I.O. had recorded disclosure statement Ex.PW17/A.
72.On perusal of record, it is further revealed that I.O. had prepared pointing out memo of place of occurrence vide Ex.PW17/B at the instance of accused Nadeem @ Kallu and pursuance to his disclosure statement, accused Nadeem had got recovered 13 cartons containing products of Hindustan Lever Ltd. From his house and I.O. had seized the same vide seizure memo Ex.PW16/A.
73.On perusal of record, it is further revealed that I.O. had collected mechanical inspection report Ex.PW14/A and Ex.PW14/B in respect of vehicle TATA407 and Alto Car and it is also revealed that 202 cartons had been released on superdari with the company.
74.On perusal, it is further revealed that accused persons in their statement u/s 313 Cr.P.C. has deposed that they are innocent and they have been falsely implicated in the present case.
75.Before reaching at the conclusion let the relevant sections be reproduced which are as under: Section 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 find; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
Ingredients of offence. The essential ingredients of the offence under sec. 392 are as follows:
SC No.21/2010
State v. Khem Chand and others 20/24
1) Accused committed theft as defined in sec. 378 in the process;
2) Accused caused or attempted to cause to some persons
i) death, hurt or wrongful restraint;
ii) fear of death or of instant hurt or instant wrongful restraint;
3) Accused did either act
a) in committing such theft, or
b) in order to commit theft, or
c) in carrying away or attempting to carry away the property obtained by such theft.
Section 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."
Ingredients of offence. The essential ingredients of the offence under section 397 are as follows:
1) Accused committed robbery or dacoity;
2) While committing such robbery or dacoity the accused
a) used a deadly weapon;
b) caused grievous hurt to any person;
c) attempted to cause death or grievous hurt to any person.
Section 412 IPC:
Dishonestly receiving property stolen in the commission of a dacoity. Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, 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.
Sec.34 IPC "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."SC No.21/2010
State v. Khem Chand and others 21/24
76.It has 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."
77.Hon'ble High Court of Delhi in case titled as 'Syam Sunder and others Vs. State, CRL. A. 233/2008', wherein it has held that :
In order to prove the offence under Section 397 IPC the prosecution must establish:
i) commission of robbery or dacoity;
ii) that the accused used the deadly weapon; or caused grievous hurt; or attempted to cause death or grievous hurt and
iii) the above acts were done during the commission of robbery or dacoity.
78.Since present case has been registered on the complaint of complainant PW2 Rajbir, who is victim also but he had not identified the accused persons in the court as culprits who had robbed his vehicle TATA407 containing cosmetic goods of Hindustan Lever Ltd. Moreover, complainant deposed in his testimony that robbers had come in Santro car whereas I.O. had seized one Alto Car which is apparently a different car, and IO had also not furnished explanation to this effect which throw doubt upon the case of prosecution.
79.Further, PWs Chameli Shah and Taj Mohd. who had been examined as a witness of recovery of robbed articles from a room in village Kumhera but both witnesses SC No.21/2010 State v. Khem Chand and others 22/24 had also not supported the case of prosecution and they had declared hostile witnesses on the fact of recovery of robbed articles at the instance of accused Wasim.
80.Further complainant in his cross examination by APP for state had denied that accused Nadeem @ Kallu had forced on point of countrymade pistol to took him towards Bhopura with vehicle TATA407 and that accused Nadeem had given him beating. This witness had denied to the suggestion that he can identify the case property which was recovered by police if same be shown to him.
81.Since testimonies of complainant and other official witnesses are not corroborative and recovery of alleged robbed articles has also not been identified by the complainant. After considering submissions of ld. counsel for accused persons and APP for the State and perusal of record, at this stage, this court comes to the conclusion that since the prosecution has been failed to lead any evidence to show that accused persons had used the "deadly weapon" while committing robbery, thus, in view of this court, ingredients of offence under Section 397 IPC are not attracted in this case and that complainant had refused to identify the accused as assailants who had committed robbery. Hence, provision of section 392 IPC also not attracted. In reference to section 412 IPC, since it has come on record that witness of recovery have been declared hostile and recovery cannot be said to be proved successfully by prosecution. Hence, section 412 IPC also does not attract.
82.Considering the facts and circumstances of this case, this court comes to the SC No.21/2010 State v. Khem Chand and others 23/24 conclusion that prosecution has been failed to prove its charges u/s 392/397/412/34 IPC against accused Wasim, its charges u/s 392/397/34 IPC against accused Khem Chand and its charges u/s 412 IPC against accused Nadeem @ Kallu beyond reasonable doubt.
83.Hence, in the absence of sufficient evidence against the accused persons this court acquit accused Wasim from the charges u/s 392/397/412/34 IPC by giving him benefit of doubt, acquit accused Khem Chand from charges u/s 392/397/34 IPC and also acquit accused Nadeem from the charges u/s 412 IPC in absence of sufficient evidence by giving them benefit of doubt.
84.In terms of Section 437 (A) Cr. P.C. accused persons namely Khem Chand, Wasim and Nadeem @ Kallu are directed to execute bail bond in sum of Rs.25,000/ with one surety in the like amount for the period of six months. Order accordingly.
PRONOUNCED IN THE OPEN COURT ON THIS 29.01.2013.
(RAMESH KUMARII) ASJ01/ NORTH - EAST KARKARDOOMA COURTS, DELHI.
SC No.21/2010
State v. Khem Chand and others 24/24