Delhi District Court
State vs . (1) Raju S/O. Ram Pal, R/O. H.No.329, on 31 August, 2012
1
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI
SC No.36/08.
FIR No.41/08.
PSSWAROOP NAGAR.
U/s.392/397/411//34 IPC & 25/27 ARMS ACT.
STATE VS. (1) RAJU S/O. RAM PAL, R/O. H.NO.329,
GALI NO.2, KHADDA COLONY, SWAROOP
NAGAR, DELHI.
(2) PARDEEP @ PUNIA S/O. SUKH CHAIN
SINGH, R/O.H.NO.772, JBLOCK, GALI NO.2,
KHADDA COLONY, SWAROOP NAGAR, DELHI.
Date of Institution in this Court : 30.05.2008
Date of Arguments: 21.08.2012
Date of Judgment : 28.08.2012
JUDGMENT:
1. The present case has been registered on the statement of Gurmeet Singh, who stated to the police that on 26.02.2008 at 2 about 11.30pm, after parking TSR bearing number DL1RK4796 at the house of the owner of TSR, he was going to his house and when he reached at gali no.1½ , two person surrounded him. One person shown him knife and asked him to hand over whatever he has, otherwise, he will give knife blow to him and taken out mobile phone from his neck while second person took out his purse containing his driving license and Rs.450/. Thereafter, both the persons ran away. He chased them by shouting. In the meanwhile, one police official Ct. Anand, who was coming from opposite side apprehended those two persons. He came to know name of those two person as Raju and Pardeep. From the possession of accused Raju one knife and mobile phone, whereas from the possession of accused Pardeep his purse containing robbed articles recovered.
2. A call was made to the PCR on 100 number and PCR officials on the wireless informed to the of PSSwaroop Nagar and 3 accordingly a DD No.20A was recorded in the PS, which was marked to SI Ravinder Singh and SI Ravinder Singh reached at the spot and recorded the statement of Gurmeet Singh. He prepared the rukka and on the basis of which present case FIR No.41/08 was recorded in the PS Swaroop Nagar. He also prepared the site plan. He also prepared the sketch of knife recovered from accused Raju and seized the same and also seized the mobile phone as well as Rs.450/, which were robbed from the complainant Gurmeet Singh was arrested both the accused persons. After completion of the investigations, he filed the chargesheet u/s. 392/397/411/34 IPC and 25/27 Arms Act and accused persons were put to trial.
3. After compliance of the provisions of Section 207 Code of Criminal Procedure, Ld. MM committed the case to the Court of Sessions as offence under Section 397 IPC was exclusively triable by the court of Sessions. Thereafter, it was assigned to this court. 4
4. Vide order dated 28.04.2009, charge under Section 392/34 IPC have been framed against both the accused persons and also charge u/s. 397 IPC and under Section 25/27 Arms Act against accused Raju were framed, to which they pleaded not guilty and claimed trial.
5. In order to prove its case, the prosecution examined as many as seven witnesses. PW1 is HC Kewal Krishan is the duty officer, he recorded the FIR of the present case. PW2 is Anil Yadav, UDC from Home Department, GNCT of Delhi proved the notification issued by Delhi Administration declaring buttandar knife as Arm, PW3 is Ct. Anand Singh had apprehended the accused persons at the spot after hearing the noise of the complainant Gurmeet Singh, PW4 Gurmeet Singh is the complainant himself, PW5 Ct. Bijender reached at the spot with the IO and took participation in the investigations, in his presence accused persons were arrested and 5 robbed articles and knife were seized. PW6 HC Yashveer Singh is the MHC(M). PW7 SI Ravinder Singh is the IO of the case.
6. Besides this prosecution has also proved the statement of complainant i.e. PW4 Gurmeet Singh Ex.PW4/A, Rukka Ex.PW7/A, FIR Ex.PW1/A, site plan Ex.PW7/B, DD No.20A as Ex.PW7/A, sketch of knife as Ex.PW3/A, seizure memo of knife Ex.PW3/B, seizure memo of Driving license and Rs.450/, which were robbed from the PW4 Gurmeet Singh as Ex.PW3/D, seizure memo of mobile phone robbed from accused Raju Ex.PW3/C. Arrest memo of accused Raju Ex.PW3/E and that of accused Pardeep Ex.PW3/G and personal search memo of accused Raju as Ex.PW3/F and that of accused Pardeep Ex.PW3/H.
7. Statement of both the accused persons u/s. 313 Cr.P.C. were recorded. In his statement accused Pardeep denied all the incriminating evidence put to him and stated that he was lifted from 6 his residence and falsely implicated in this case. Accused Raju also denied all the incriminating evidence put to him and stated that he was unloading the goods of his brother Ram Krishan from tempo as his brother was shifting his residence from Budh Vihar to Swaroop Nagar and at about 1pm, after unloading the goods, he came out from the residence to have smoking and at that time police officials came and apprehended him and falsely implicated in this case.
8. Arguments were heard from the ld. Addl. PP for the State and ld. Defence counsel for the accused persons.
9. The case of the prosecution is that both accused persons have robbed PW4/complainant Gurmeet Singh and his mobile phone and purse while running, hence, prime witness of the prosecution case is PW4/complainant Gurmeet Singh.
PW4 Gurmeet Singh had testified in his testimony that on 26.02.2008 at about 11.30pm, he was coming to his house after 7 parking three wheeler to his owner's house, which he used to take on rent basis. And he was passing through gali no.1½, both the accused persons stopped him in a vacant plot where accused Raju asked him to hand over him whatever he has including his mobile phone, he snatched his mobile phone with stripe, which complainant was wearing in his neck and accused Pardeep brought out his purse containing Rs.450/ and at that time accused Raju was having knife in his hand and he abused him. Both the accused persons after taking his purse and mobile phone ran towards Kushak Road side and complainant went to his house. He knocked the door of his house and after taking mobile phone of his son made a call to the police on 100 number. After sometime, police came there and he accompanied the police and while he was going towards the place of incident, accused persons were seen coming. He told to the police about the accused persons who were coming back through the same 8 gali. He identified both the accused persons, police apprehended them and beaten them and took their search. One knife was recovered from the pocket of accused Raju and his purse was recovered in general search of accused Pardeep. Thereafter, police took them to the PS and their statement recorded and thereafter they again came at the spot with the police. He and his wife made search of mobile phone, which was snatched by the accused persons and the said mobile phone found lying in the bushes at the place where same was snatched by the accused persons. Police prepared the sketch of knife Ex.PW3/A and took the same in possession vide memo Ex.PW3/B. Police also took in possession his purse containing Rs.450/ and DL Ex.PW3/D and took into possession his mobile phone Ex.PW3/C and arrested both the accused persons. PW4 further stated that he took his mobile phone, purse and Rs. 450/ on superdari vide supurdginama Ex.PW4/B. He further stated 9 that since his Driving License was expired and he got renewed the said DL from the Transport Authority on 22.4.2010 and his earlier DL was taken by the Transport Authority. He proved the photocopy of earlier DL as Ex.P1. He further stated that his mobile phone was stolen, he tried to lodge the complaint with the police, but police refused to register the same. He further stated that he had spent Rs.450/, which I had taken on superdari from the court.
In his cross examination, he stated that the distance between house of his TSR Owner and the spot is about one km and distance between the spot and his house is about 500600 steps. He did not raise alarm at the time of incident as nobody was present there. After reaching his house he narrated all the incident to his family members and he made a call to the PCR on 100 number. He further stated that he had no told that there were three assailants, who robbed him, he only narrated the incident. PCR officials reached 10 there within 510 minutes and local police officials reached at about 11.45 pm. There were two local police officials. He had seen the accused persons from 17 steps away from them.
10. PW3 Ct. Anand Singh in his testimony has deposed that on 26.02.2008, he was on petrolling duty and at about 11.30pm when he reached near gali no.1½ , Khadda Colony, I heard noise of 'pakro pakro' 'chor chor', thereafter he saw two persons were running and one person was chasing and on suspicion he apprehended those two persons, whose names they came to know as Raju and Pardeep. He identified both the accused persons correctly as Raju and Pardeep. He further stated that, he came to know the name of the person who was chasing as Gurmeet Singh. He took search of accused Raju in which one Tata Indicom mobile was found and one knife was recovered from his right pocket of pant. He also took general search of accused Pardeep and also one purse was 11 recovered, which was containing Rs.450/ cash and one driving license. In the meanwhile, he received a message on his wireless set to the fact that, "chakoo dikhakar mobile or paise cheen liye". SI Ravinder Singh alongwith Ct. Vijender reached at the spot. He apprehended both the accused persons and recovered mobile phone and purse. IO prepared the sketch of knife Ex.PW3/A. He told the total length and width of the knife and its handle. He further stated that IO seized the knife Ex.PW3/B and took into possession mobile Phone Ex.PW3/C and Purse and DL Ex.PW3/D (collectively). All these memos were signed by him. IO had arrested both the accused persons vide memo Ex.PW3/E and Ex.PW3/F. In his cross examination he stated that he left the PS at about 11pm. But he did not himself make any DD Entry and same was done by the DO in routine manner. There was tubelight from where the accused persons were apprehended. He denied the 12 suggestion that he did not heard the noise of pakropakrochorchor. He stated that they remained present at the spot till 3/3.30 am, no public persons were present, when they were doing the investigation.
11. It is argued by ld. Substitute Addl. PP for the State that from the testimonies of PW4 Gurmeet Singh, it is proved that, he was robbed of purse and mobile phone by the accused persons on the point of knife and his testimony is duly corroborated by the other PWs, hence, both the accused persons are liable to be convicted u/s. 392/34 IPC. ld. Addl. PP for the State has further argued that accused Raju has used knife while committing robbery, hence, he is liable to be convicted for offence punishable u/s. 397 IPC as well as under Section 27 Arms Act.
12. It is argued ld. Counsel for both the accused persons argued that there are number of contradictions in the statement of 13 PW3 Ct. Anand Singh and PW4 Gurmeet Singh, hence, same cannot be relied upon. ld. Counsel further submitted that in the FIR, it is mentioned that, as per FIR, accused persons were apprehended while they were running after robbing the mobile phone and purse from PW4 Gurmeet Singh, whereas PW4 Gurmeet Singh in his testimony has deposed that after incident, he went to his house, thereafter, made a call to the police. Police including PCR came and thereafter while he was coming back at the spot alongwith police, he found accused persons coming and thereafter, accused persons were apprehended. Hence, the testimony of PW4 is self contradictory and cannot be believed. ld. Counsel for the accused persons further contended that as per DD No.20A, which is the first DD regarding the incident, there were three persons after robbing the complainant, whereas only two persons have been made as accused persons and further DD shows that till that time accused 14 persons were not apprehended, as in the said DD it is mentioned that accused persons have running away after robbing him. Ld. Counsel for the accused persons further contended that PW3 Ct. Anand Singh has stated that mobile phone was recovered from the possession of accused Raju, whereas PW4 Gurmeet Singh has stated that mobile phone was lying in the bushes at the place it was snatched by the accused persons. Hence, there are inherent contradictions in the statement of PWs, therefore, same cannot be believed and accused persons are entitled to be given benefit of doubt.
13. I have considered rival arguments and gone through the testimonies of both the witnesses. On appreciation of the testimony of PW4, I found that, till the extent of happening of incident , there is no contradiction in his statement given to the police Ex.PW4/A and in his testimony recorded in the court. He has categorically deposed 15 that on 26.02.2006, when after parking TSR at his owner's house, he was coming back accused Raju and Pardeep stopped him. At that time, accused Raju had knife in his hand and he took out his mobile, phone from his neck and accused Pardeep took out his purse containing DL and Rs.450/. Nothing has come out in the cross examination, which could dent his testimony. He has correctly identified both the accused persons in the court by pointing towards them. He has also taken the robbed articles on superdari from court, which is proved from the supurdginama Ex.PW4/B. There are some contradictions in his testimony from his statement Ex.PW4/A with regard later part of his testimony i.e. regarding apprehension of accused persons as pointed out by ld. Defence counsel. PW4 had testified that after robbery, he went to his house and from there he made a call to the police from his son's mobile phone and thereafter with police when he was coming back 16 to the place of incident, he saw accused persons and thereafter accused persons were apprehended, whereas in his statement Ex.PW4/A recorded by the IO, PW7 SI Ravinder Singh, he had stated that, after robbery by the accused persons he was chasing them and at that time, Ct. Anand Singh was coming and Ct. Anand Singh apprehended both the accused persons. Further there is also contradictions regarding the recovery of mobile phone as PW4 had stated that mobile phone was found from the bushes by his wife, whereas in his statement Ex.PW4/A, he has stated that mobile phone was recovered from the possession of accused Raju. In my view, though these contradictions are there, but same are not very material. What is material is that whether accused persons have committed robbery with complainant PW4 Gurmeet Singh or not. It appears that IO has twisted the real story, which was told by PW4 to give the credit to PW3 that accused persons were apprehended by 17 PW3 Ct. Anand. From the scrutiny of testimony of PW4, it is evident that incident has happened as stated in his testimony by PW4, which is also corroborated by the DD No.20A, where it is mentioned that at 11.30pm, information has been received from PCR that 321, Gaddha Colony, near Swaroop Nagar Gurudwara and Masjid, three persons have snatched mobile phone, purse and Rs.450/. In my view, if his version recorded in his statement Ex.PW4/A or testimony of PW3 Ct. Anand Singh is to be believed then there was no occasion for PW4 Gurmeet Singh to make a call to the police. Moreover, in that eventuality in DD No.20A Ex.PW7/A it would not have been mentioned by the duty officer that, accused persons have run away after snatching mobile, purse, ring and Rs.450/, as then PW4 would have told that accused persons have been apprehended with the robbed articles.Further from the perusal of rukka it is evident that same was sent to PS at 1.30 AM on 27.02.2007. PW7SI 18 Ravinder singh has received DD at 11.38PM on 26/02/2007.If accuse had been apprehended at the spot by PW3 immediately after the incident there was no occassion for the IO to take two hour in preparing rukka . It strengthen the testimony of PW4 that accuse have not been apprehended immediately as mentioned in the statement of PW4 EX PW4/A or in the testimony of PW3. But merely on this ground that IO had not recorded the correct statement of PW4 regarding apprehension of accuse person Gurmeet Singh over which PW4 has no control, the testimony of PW4 cannot be thrown away. As stated above, he had identified both the accused persons as the persons, who have robbed him on the pointing of knife, which was shown to him by accused Raju. Both the accused persons have failed to point out that there was any previous enmity between PW4 and them, hence, he has no motive to falsely implicate them. PW4 appeared to be a quite natural and truthful 19 witness as even he had stated that after apprehending both the accused persons by the police, accused persons were given beatings by the police and after recovery of articles from accused persons, they were taken to the PS, where his statement was recorded.
14. The testimony of PW4 Gurmeet Singh is duly corroborated by testimony of police officials including PW7 SI Ravinder Singh and PW5 Ct. Bijender that, the robbed articles were seized by the IO/PW7 vide seizure memos Ex.PW3/C and Ex.PW3/D and knife was seized vide seizure memo Ex.PW3/B and both the accused persons have been arrested vide memos Ex.PW3/E and Ex.PW3/G.
15. The recovery of DL, Purse, mobile Phone and Rs.450/ from the accused Pradeep has also been proved from the testimony of PW6 HC Yashpal, who stated that these articles have been 20 deposited in the malkhana by PW7 SI Ravinder Singh on 27.02.2008 and he made entry of these robbed articles in register no.19 having serial number 6, which he proved as Ex.PW6/A.
16. As far as defence taken by the accused persons Raju and Pardeep, they were lifted from their respective residence. I do not find there is anything on record to prove the same. No complaint has been made by any of the relative of the accused persons, that they have been lifted from their houses. There is no reason for the police to falsely implicate the accused persons or PW4 Gurmeet Singh to identify them falsely. No evidence has been led by the accused persons to prove that they have been lifted from their houses, as claimed by them. Defence appeared to be afterthought.
17. Considering the aforesaid facts and circumstances, I held that prosecution has been able to prove beyond reasonable doubt that both the accused persons in furtherance of their common 21 intention have robbed mobile phone, purse containing driving license and Rs.450/ of PW4 Gurmeet Singh. Hence, I convict both the accused persons under Section 392/34 IPC.
18. Since from the testimony of PW4 it is also proved that accused Raju was having knife in his hand while committing robbery. Hence, same was visible to the PW4. I am agree with the contention of ld. Defence counsel that knife itself is not a deadly weapon, but it become deadly weapon, if it is used in commission of crime and if it creates terror in the mind of victim that, he may be stabbed or injured by the said weapon. PW4 had deposed that knife was in the hand of accused Raju at the time of committing robbery. It appears, that is the reason, PW4 had not protested when his articles were robbed. Therefore, I held that Accused Raju has used the knife while committing robbery. In this regard I rely upon Judgment of Asfaq v. State 2004 AIR SC 1253 wherein it was held that, "what is essential 22 to satisfy the word "uses" for the purpose of Section 397 IPC is the robbery being committed by an offence who was armed with a deadly weapon, which was within the vision of the victim so as to be capable of creating a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be".
Therefore, I held that prosecution has also been able to prove that accused Raju has used the deadly weapon , therefore, I convict accused Raju u/s. 397 IPC.
19. As held above, accused Raju has been found in possession of knife Ex.P1 and as per sketch of knife Ex. PW3/A its total length is 38.1cm and its blade length is 17 cm. as per notification dated 17.02.1979 issued by Delhi Administration Ex.PW2/A, a knife which is buttandar knife with a sharp edge blade of 7.62cm or more in length comes is an Arm. Therefore it is prove 23 that accused was in possession of Arm in contravention of the provision of arms act and as stated above accused has used the said knife in commission of robbery. Since offence of using the Arm is more graver than being in possession, therefore, it would be appropriate to convict him only under Section 27 Arms Act. Hence, I convict him u/s. 27 Arms Act. Now to come up for order on sentence.
Announced in the open court (Sanjeev Kumar)
On 28.08.2012 Addl. Sessions Judge
Rohini Courts: Delhi.
24
IN THE COURT OF SH. SANJEEV KUMAR
ADDL. SESSIONS JUDGEI(OUTER): ROHINI COURTS: DELHI SC No.36/08.
FIR No.41/08.
PSSWAROOP NAGAR.
U/s.392/397/411//34 IPC & 25/27 ARMS ACT.
STATE VS. (1) RAJU S/O. RAM PAL, R/O. H.NO.329,
GALI NO.2, KHADDA COLONY, SWAROOP
NAGAR, DELHI.
(2) PARDEEP @ PUNIA S/O. SUKH CHAIN
SINGH, R/O.H.NO.772, JBLOCK, GALI NO.2,
KHADDA COLONY, SWAROOP NAGAR, DELHI.
ORDER ON SENTENCE
31.08.2012
Present: Shri S.C. Sroai, ld. Addl. PP for the State.
Convicts Raju and Pardeep are present, produced from JC. Shri Narender Mukhi, ld. Counsel for both the convicts.
1. It is submitted by ld. Counsel for convict Raju that he is aged about 40 years and unmarried and he further submits convict 25 Raju is looking after the wife and children of his elder brother, who has performed second marriage and left them. He is the only bread earner of his family.
2. It is further submitted by ld. Counsel that Convict Pardeep is an unmarried young boy of aged about 22 years, and he resides with his old aged parents, who are totally dependent upon him and he is the only bread earner of his family. He has no previous history of any involvement in any other criminal case so far. Therefore, a lenient view may kindly be taken against both the convicts.
3. On the other hand, ld. Addl. PP for the State submits that maximum punishment be awarded to the convicts, so that, a strong message go to the society that offenders will not go unpunished from the court of law.
4. There is no fix formula of sentencing and it is totally 26 depend on the facts and circumstances of each case. The object of sentencing is not only punish the offender for the offence committed by him, but also to give a message to the society that if any person(s) break the law, then he will be punished and also giving a sense of security to the general public at large.
5. It is known fact that offence of robberies are increasing in the society day by day. Robbers have no fear of law in their minds. Therefore, considering the facts and circumstances of this case and family position of the convicts and their previous record, I sentence convicts Raju and Pardeep for a period of three years Rigorous Imprisonment and a fine of Rs.2,000/ each, for offence punishable u/s. 392/34 IPC. In default of payment of fine they will undergo SI for three months.
6. I further sentenced convict Raju to undergo RI of Seven years for offence punishable u/s. 397 IPC with fine of Rs.2,000/, in 27 default of payment of fine SI for three months.
7. I further sentenced convict Raju to undergo RI of Five years for offence punishable u/s. 27 Arms Act with fine of Rs.2,000/, in default of payment of fine SI for three months.
8. All the sentences shall run concurrently. The benefit u/s. 428 Cr.P.C. will be given to the convicts. A copy of Judgment and that of order on sentence be supplied to the convicts free of cost today itself. File be consigned to record room.
Announced in the open court (Sanjeev Kumar)
On 31.08.2012 Addl. Sessions Judge
Rohini Courts: Delhi.