Delhi District Court
State vs Naveen Singh on 17 May, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01-SOUTH
PATIALA HOUSE COURT-NEW DELHI
Sessions Case No : 231/2009
State Vs Naveen Singh
S/o Vinod Singh
R/o House No. 363, K Block,
Gali No.6, C,
Mahipal Pur, New Delhi
FIR No. : 575/08
PS : Vasant Kunj
Under Section : 380/34 IPC
ORDER ON SENTENCE:
By my judgment dated 10/05/2010, the accused/convict Naveen
was convicted under section 380/34 IPC vide order on the point of
sentence passed on 12.05.2010 the co-accused Vikas was sentenced to
undergo rigorous imprisonment for one year and five months under Section
380 IPC. In addition the said convict was directed to pay fine of Rs. 100/-.
In default of payment of fine, the convict shall undergo simple
imprisonment for ten days.
I have heard the learned Additional Public Prosecutor for the
State and has argued for deterrent punishment against the convict
Naveen. Keeping in view the serious nature of the crime committed by him.
Learned counsel for the accused Naveen has argued that
convict Naveen is not a previous convict so he should be granted benefit of
probation. In the alternative, it is argued that accused has remained in
judicial custody for about 17 days during investigation and trial of this case.
SC No.231/09 Page1/13
So he should be sentenced to the period of imprisonment already
undergone by him.
I have heard the learned Additional Public Prosecutor and
learned counsel for convict/accused.
Keeping in view the nature of the offence and circumstances of
the case and also the fact that co-accused is sentenced to imprisonment
for one year and five months. I am not inclined to grant the benefit of
probation under Section 360 CrPC or of Probation of Offenders Act to
convict Naveen. However, the case of convict Naveen can be treated on
some different footing in the sense that from accused Vikas one knife was
also recovered though charge under Section 25/27 Arms Act was not
proved against him on account of technical reason that the knife was not
covered under the notification of Govt of NCT of Delhi and another factor
is that co-accused was arrested at the spot unlike the convict Naveen who
was arrested on the next day. Therefore, keeping in view over all facts and
circumstances of the case, I sentence to convict Naveen to undergo
rigorous imprisonment for one year for the offence under Section 380/34
IPC. In addition, he is also directed to pay fine of Rs 500/-. In default of
payment of fine the convict/accused Naveen shall undergo Simple
Imprisonment for 50 days.
The period of detention already undergone by the
convict/accused Naveen during the investigation and trial of this case
shall be set off against the term of imprisonment imposed against the
convict by this order, as provided under section 428 Cr.P.C.
Judgment of conviction and order on sentence be sent to
server(www.delhidistrict courts. nic.in). Copy of judgment and order of
SC No.231/09 Page2/13
sentence be supplied to convict/accused free of cost.
File be consigned to record room.
Announced in the open court on
17th day of May, 2010
( SK SARVARIA)
Additional Sessions Judge-01/South
Patiala House Courts/New Delhi
SC No.231/09 Page3/13
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSIONS JUDGE-01/SOUTH
PATIALA HOUSE COURTS/NEW DELHI
SESSIONS CASE NO. 231/09
State Vs. 1. Vikas @ Vicky,
S/o Sh. Kamal Kanta Dube,
R/o Village- Rangpuri, Mahipal Pur,
New Delhi.
2. Naveen Singh,
S/o Sh. Vinod Singh,
R/o House No. 363, K Block, Gali
No. 6-C, Mahipal Pur, New Delhi.
FIR No. : 575/08
Police Station : Vasant Kunj
Under Section : 380/382/411/34 IPC 25/27/54/59 Arms
Act 392/397 IPC
Date of Institution
of the case : 12.03.2009
Date on which
order was reserved : 23.04.2010
Date of Decision : 10.05.2010
JUDGMENT
The SHO Police Station of Vasant Kunj has challaned the accused persons to face trial for the commission of offences punishable under Sections 380/382/411/34 IPC 397, 392 and also 25/27/54/59 Indian SC No.231/09 Page4/13 Arms Act. The learned Metropolitan Magistrate after compliance of provisions under Section 207 Cr.P.C by supplying the copies to the accused persons committed the case to the Court of Sessions for their trial.
BRIEF FACTS Brief facts of prosecution case are that on 28.11.2008 on receipt of DD No. 6 B ASI Rai Singh alongwith HC Surender went to the place of incident at Kamal Pradhan Wali gali, Village Rangpuri where they met Jaipal Sharma who produced accused Vikas @ Vicky in injured condition alongwith grey colour plastic T.V. Speaker and one iron dagger (chhura). Jaipal Sharma gave statement to ASI Rai Singh stating that the way to his house room opened on 28.11.08 at night about 12:30 am. When he came back to the house from his duty and after taking dinner he slept. At about 4:30 am in the morning he heard noise of bolting the door. He tried to open the door but it did not open. Then he made a telephone call and called his brother and told him that somebody bolted the door from outside. His brother Amit came and opened the door. They saw the door of the other room was open and light was on. The articles were lying scattered and in the said room the set top box lying on T.V., remote were found missing. Then other family members woke up and started making search. In the mean time a boy with a T.V. speaker was seen. Noise was raised and he was surrounded by people. By seeing himself in difficulty he took out dagger (chhura) from his clothes and threatened if anybody dare to move towards him he would kill him. Thereafter he was caught by surrounded people and information was given to police station. On inquiry regarding the other stolen articles he stated his friend who used to do business of SC No.231/09 Page5/13 vegetable ran away with those articles. Thereafter one deggar (chhura) and one side T. V.'s speaker were seized in a pullanda for taking into possession. The rukka was sent to the police station or registration of the case, at the instance of the complainant the site plan was prepared by the IO. Disclosure statement of Vikas @ Vicky was recorded. The accused persons were arrested. The statement of witnesses were recorded and challan referred above was prepared.
CHARGE AND PLEA OF ACCUSED PERSONS Prima facie case for the offences under sections 392/34 IPC was made out against both the accused persons and in addition against accused Vikas prima facie case for offence 397 IPC 25/27 Indian Arms Act was made out. Accordingly, charges were framed on 30.03.2009 to which accused persons pleaded not guilty and claimed trail.
PROSECUTION EVIDENCE In support of its case, the prosecution has examined six witnesses in all.
PW 1 is Constable Vipin Kumar who stated that on 28.11.08 he handed over DD No. 6B to ASI Rai Singh. Copy of DD No. 6A is proved by him as Ex. PW1/A. He also stated that he alongwith ASI Rai Singh went to the spot, in the house of Jaipal Sharma village Rangpuri. Jaipal met them and he produced one boy Vikas @ Vicky and speaker of television and churra. He made his statement. IO handed over it to him for registration of FIR. He took the rukka to police station and got the case registered. After SC No.231/09 Page6/13 registration of the case he came back to the spot and handed over original rukka and copy of FIR to IO.
PW 2 is Jai Pal Sharma the complainant who stated that on 28.11.08 at about 4:30 am he was sleeping in his house at second floor. The son of his younger brother woke for going to toilet but he noticed that the room of the door was bolted from outside he also woke up and found that all the rooms on the second floor were bolted from outside. He immediately made a call to his younger brother who was sleeping on the ground floor. He came and opened the door. They saw that door of one room was open and all the articles were lying scattered. The stereo, speaker and set up box of television were missing. The T. V. was found wrapped in a cloth, after sometime at about 5 am accused Vikas present then in the court came again in his house and tried to to take television wrapped in the clothe. At that time with the help of family members he apprehended him. When they tried to apprehend him he took out a knife and threatened them. They informed the police. Accused Vikas was apprehended at the spot. His statement was recorded as Ex. PW2/A. One knife was recovered from his possession. IO prepared sketch of the knife which is Ex. PW 2/B. Accused was arrested vide memo Ex. PW 2/C. Disclosure statement of accused Vikas is Ex. PW2/E. Accused Naveen then present in the court was arrested from his room where accused Vikas and Vicky were residing together. Arrest memo of accused Naveen is proved as Ex. PW2/F and his search memo as Ex. PW 2/G. Disclosure statement is proved as Ex. PW2/H. The seizure memo of knife is proved as Ex. PW2/I. Television's speaker was seized vide memo Ex. PW2/j which accused Vikas was carrying. The set top box was seized vide memo Ex.
SC No.231/09 Page7/13PW2/K which was recovered from the house of accused Naveen. The witness identified both the accused persons then present in the court. Ex. P1 is stated by witness to be the same knife which accused Vikas was carrying Ex. P2 is the television speaker. Ex. P3 is the set top box. Ex. P4 is the remote control which were recovered vide memo Ex. PW 2/K as stolen property at the instance of accused Naveen. Purse was recovered in the personal search of accused Naveen which is Ex. P5. He signed on the recovery memo Ex. PW 2/K, sketch of the knife Ex. PW2/B. Arrest memos of accused are Ex. PW2/C and 2/F and their personal search memos Ex. PW 2/D and 2/G and disclosure statements Ex. PW2/E and 2/H. PW 3 is Women Head Constable Anita who stated that on 28.11.08 she was posted as HC in police station Vasant Kunj. She proved the copy of FIR Ex. PW3/A and her endorsement as Ex. PW5/B. PW4 is Constable Kamlesh Kumar who stated that on 28.11.08 at about 5:30 am an information was received regarding the theft of mobile he lodged information vide DD No. 6B copy of which is Ex. PW1/A. PW5 is Vinod Kumar son of Sh. Khajan Singh who stated that about more than one year ago he was present at his house along with his children. Two persons entered in the house during night time and they locked doors from outside. His nephew woke up to go to toilet. They made noises and initially both those persons who entered their house escaped but they again returned along with an auto in order to take the goods of the house. They were able to catch one of them who was armed with a knife while other one escaped with boxes of television, CD etc along with a towel. One brass jug was also taken away. He identified accused SC No.231/09 Page8/13 Vikas @ Vicky and stated that he is the person who was caught with knife. Witness also points towards accused Naveen by stating that he was with accused Vikas and escaped with goods. In his presence television boxes, jug,CD etc were recovered from the room of the accused Vikas. He signed on the recovery memo of knife Ex. PW 2/I and recovery memo of speaker Ex. PW 2/J at point B as a witness. He stated that Ex P1 is the knife recovered vide memo Ex. PW 2/I and Ex. P2 is the speaker recovered vide memo Ex. PW 2/J. PW6 is ASI Rai Singh who stated that on 28/11/08 he was posted at police station Vasant Kunj. When he received DD No 6B and reached at village Rangpuri along with HC Surender where complainant Jaipal Sharma produced accused Vikas along with a speaker and knife and gave statement Ex. PW 2/A. He sealed the knife with the seal of RS and prepared the rukka and got the FIR lodged through Ct Vipin who gave him the copy of FIR with original rukka after registration of case. He also prepared site plan Ex. PW 6/B. Seizure memos of knife and speaker prepared by him are Ex. PW 2/I and J. Accused was arrested vide arrest memo Ex. PW 2/L and at his instance other accused Naveen was also arrested vide memo Ex. PW 2/F. Their personal search memos Ex. PW 2/D and 2/G while their disclosure statements recorded by him are Ex. PW 2/E and 2/H. Sketch of the knife prepared by him is proved as Ex. PW 2/B. The witness stated that at the instance of accused Naveen one set up box with remote was recovered from the vegetable godown vide memo Ex. PW 2/K. He also collected the invoice of television from the complainant which is Ex. PW 6/C. He can identify the articles seized by him.
The witness stated that Ex. P1 is the knife recovered vide memo SC No.231/09 Page9/13 Ex. PW 2/1 and Ex. P2 is the speaker recovered vide memo Ex. PW 2/J. Ex. P3 is the set up box and Ex. P4 is the remote control which were recovered vide memo Ex. PW 2/K. Both the accused namely Vikas and Naveen then present in the court were identified by the witness. Both the accused were also medically examined vide MLCs Ex. PW 6/D and 6/E . After completion of investigation charge sheet was filed through SHO.
PLEA AND DEFENCE OF ACCUSED PERSONS In the statements under section 313 CrPC the accused persons have either denied the incriminating evidence emerging from prosecution case and put to them or have expressed their ignorance about the same. Accused Vikas stated that he is innocent and has been falsely implicated in this case. Complainant could not find out the main culprit and when he was coming towards his house finding alone him on the way the complainant falsely implicated him. The accused Naveen stated that he was innocent and has been falsely implicated in this case. At the time of incident he was working with M/s. Kiss Export, Udyog Vihar, Gurgaon and his father who is running a vegetable shop at street no. 12, K Block Mahipal pur. He used to help him in his business when he used to be free from his duty hours. On 28.11.08 was a friday, he along with other vegetable vendors went to Okhla Mandi at 4;30 am to purchase vegetable for the retailes of his father. When he returned alongwith other vegetable vendors , he came to know four of his brothers were taken by police of police station Vasant Kunj and his uncle Saroj Singh took him to police station and he was arrested there and number of blank papers were also forcibly got signed from him. He is SC No.231/09 Page10/13 innocent person and he has noting to do with the case. Since the complainant is residing adjacent to his shop they are nursing some enmity with his father and family members. They also want their vegetable shop should be removed from the gali where they are also residing for that they have falsely implicated him in this case.
ARGUMENTS AND FINDINGS I have heard the learned Additional Public Prosecutor the learned counsel for accused Vikas @Vicky, learned counsel for accused Naveen and have gone through the written arguments filed separately on behalf of the accused persons, the record of the case and the relevant provisions of law.
The charge against to the accused persons is framed under section 392/34 IPC besides the separate charges against accused Vikas referred before Section 390 IPC defines the offence of robbery. In the present case the allegations are of theft and robbery.
Before theft can amount to robbery, the offender must have voluntarily caused, or attempted to cause, to any person, death/or hurt/or wrongful restraint/or fear of instant death/or fear of instant hurt/or fear of instant wrongful restraint. The second ingredient, necessary to constitute robber, is that the (accused's) act must be in order to the committing of the theft of, or carrying away, or attempting to carry away, the property obtained by theft. The third ingredient is that the offender must voluntarily attempt to cause, to any person, hurt for that end in view. {See K Muhammad v State 1974 Cr. LJ 204 ker.
SC No.231/09 Page11/13The evidence of public witnesses including the complainant on record as well as the evidence of recovery of case property are the most important aspects of the prosecution evidence in this case to know whether the said charge framed against the accused persons is established by the prosecution or it has been able to prove any minor offence than the offence to which the accused persons are charged with. PW2 Jaipal Shama has testified about commission of theft in his house. In the relevant part of the statement he has stated that the stereo, Speaker and setup box of television were missing. The television was found wrapped in a a clothe, after sometimes at about 5 AM accused Vikas then present in the court came again in his house and tried to take the television wrapped in the clothe. At that time, he with the help of other family members apprehended him. When they tried to apprehend him, he took out a knife and threatened them. He proved a statement recorded by police as ExPW 2/A. The other public witness PW5 Vinod Kumar in the relevant part of the statement has stated that they made noises and initially both those persons who entered their house escaped but they again returned along with an auto in order to take the goods of the house. They were able to catch one of them who was armed with a knife while the other one escaped with boxes of television, CD etc along with a towel. One brass jug was also taken away. PW5 identified accused Vikas as the person who was caught with knife. He also pointed out towards accused Naveen in the court by stating that he was with accused Vikas and escaped with the goods. He identified his signature on the recovery memo of knife ExPW 2/I and recovery memo of Speaker ExPW 2/J which documents were proved by PW2.
SC No.231/09 Page12/13A careful perusal of the testimonies of the two public witnesses PW2 and PW5 show that there is some variance in the testimonies of these two witnesses. Although both have stated that the accused persons after committing initial theft had escaped but according to PW2 to only accused Vikas returned to take with him the items identified for theft in the house before escaping while according to PW5 both accused came again. However, both the witnesses are corroborating each other as to the commission of theft by both accused persons and arrest of accused Vikas by them at the spot and thereafter handing over him to the police and also recovery of knife from him. What is important to note that accused Naveen was not arrested at the spot so there is no question of his committing robbery or threatening anybody in commission of the theft or in taking away the stolen articles. He, also is not alleged to have caused any kind of hurt to anybody or attempted to do so while committing the offence of theft. Therefore, the offence under section 392 IPC is not attracted against him.
As regards accused Vikas @Vicky he was arrested at the spot and a knife was also recovered from him. Although, PW2 Jai Pal Sharma has stated that this accused came again in his house and tried to take television wrapped in the clothes. When they tried to apprehend him he took a knife and threatened them. Therefore, according to PW2 Jaipal Shama this accused Vikas took out knife when they tried to apprehend him and not for the commission of offence of theft or taking away the stolen articles but in order to escape from the spot. Hence, the offence under section 392 IPC is also not attracted against accused Vikas @Vicky.
When the offence under section 392 IPC or its attempt is not attracted against accused Vikas the question of his being guilty for the SC No.231/09 Page13/13 offence under section 397 IPC does not arise.
The accused Vikas was arrested at the spot with the stolen article, i.e., television Speaker which was seized by police vide memo ExPW 2/J and the speaker was stolen from the house of the complainant. From the house of accused Naveen the set-top box and other article TV remote were seized wide memo ExPW 2/C, on the next day of commission of offence, i.e., on 28/11/2008. Therefore, the presumption under illustration (a) on account of recent possession of stolen articles of commission of theft arises against accused Naveen who is also identified by one of the public witnesses. Therefore, though the accused persons are charged with the offence under section 392/34 IPC but the prosecution has not been able to establish the said charge and instead has been able to prove the case under section 380/34 IPC against the accused persons.
On behalf of the accused persons various shortcomings in the prosecution case are pointed out like entries regarding departure and return is not made in the DD register by the police officials, requirement of section 157 CrPC is not complied with, there is no evidence regarding the arrival of PCR at the spot. It is also urged that there was a road nearby house in question and no independent witness was called from there in support of arrest of accused Vikas. But in the face of the fact that the offence in question was committed in night the possibility of public persons on the road is minimal. The shortcomings pointed out are also not of serious proportion. In the light of the strong piece of evidence produced by the prosecution like recovery of stolen articles from both accused persons and arrest of one of the accused Vikas at the spot, the shortcomings pointed out in the written arguments, in my view, are not sufficient to create SC No.231/09 Page14/13 any dent in the prosecution case. There are some other contradictions pointed out in the statement of PW2 and PW3 regarding the arrival time of police at the spot which is also insignificant. It is also argued that the DD writer has stated that at about 5:30 AM, information was received regarding theft of a mobile. 9818741165 and copy was sent to IO ASI Rai Singh so prosecution case is without any foundation. But this argument also does not hold any water for the simple reason that if information regarding stolen mobile is received and the copy of DD is given to ASI concerned, how can it make the prosecution case doubtful unless it is proved that one of the two public witnesses examined by the prosecution has given the said information. From the said DD ExPW 1/A also it cannot be inferred that it was with regard to the present case or some other matter.
As regards the question of charge under section 25/27 of the Indian Arms Act framed against accused Vikas. The recovery of knife Ex P1 by seizure memo ExPW 2/I from accused Vikas is proved and a sketch prepared by the investigating officer is also proved as ExPW 2/B. The question arises whether the possession of this type of knife is covered by the relevant Notification of NCT of Delhi? The copy of the notification dated 29/10/1980 issued by the Delhi Administration, Delhi is placed on record on behalf of the prosecution. The court can take judicial notice of it, but this notification does not cover the knife alleged to have recovered from accused Vikas as it is neither buttondar knife nor spring actuated knife. Therefore, accused Vikas could not be convicted for the offence under Section 25 of Indian Arms Act.
SC No.231/09 Page15/13RESULT OF THE CASE In view of the above discussion, both the accused persons though charged under Section 392/34 IPC are convicted under Section 380/34 IPC. The charges under Section 397 IPC and under Section 25/27 Arms Act against accused Vikas are not established, the said accused is acquitted of the said charges. Let the accused persons be heard on the point of sentence.
Announced in the open court on 10/05/2010 (S K SARVARIA ) Addl Sessions Judge-01/South Patiala House Court/New Delhi SC No.231/09 Page16/13 -1- IN THE COURT OF SHRI S.K. SARVARIA ADDITIONAL SESSIONS JUDGE-01/SOUTH PATIALA HOUSE COURT/NEW DELHI SESISONS CASE NO. 231/09 State Vs. Vikas @ Vicky S/o Sh. Kamal Kant Dubey R/o Vill. Rangpuri, Mahipal Pur, New Delhi FIR No. 575/08 Police Station Vasant Kunj Under Section 380/382/411/34 IPC 25/27/54/59 Arms Act 392/397 IPC Date of Judgment 10/05/2010 Date of order on sentence 12/05/2010 ORDER ON SENTENCE By my judgment dated 10.05.2010, both the accused persons (including accused Vikas) though were charged under Section 392/34 IPC were convicted under Section 380/34 IPC. The charges under Section 397 IPC and under Section 25/27 Arms Act against accused Vikas were not established, the said accused was acquitted of the said charges.
Ld. Addl PP has argued for deterrent punishment against convict SC No.231/09 Page17/13 -2- Vikas, keeping in view the serious nature of the crime committed by him.
Ld. Amicus Curie Sh. N K Nagar, Adv. for the convict Vikas @ Vicky has argued that he belongs to a poor family and has clean antecedents. He has further argued that accused is in custody since 28/11/08, so lenient view should be taken against him.
I have heard learned Additional Public Prosecutor and learned Amicus Curie for convict Vikas @ Vicky and have gone through the record of the case and the relevant provisions of law carefully.
In view of circumstances explained by Ld. Amicus Curie, accused Vikas is sentenced to undergo rigorous imprisonment for 1 year and 5 months under Section 380 IPC. In addition said convict/accused is directed to pay fine of Rs. 100/- . In default of payment of fine, the convict/accused shall undergo simple imprisonment for 10 days.
The period of detention already undergone by the convict/accused during investigation and trial of this case shall be set off against the term of imprisonment imposed against him by this order, as provided under Section 428 Cr.P.C. The judgment dated 10.05.2010 and this order on sentence be sent to server (www.delhidistrictcourts.nic.in).
Copy of judgment and order on sentence be supplied to convict/accused Vikas @ Vicky free of cost.
Announced in the
open court on 12/05/2010 ( S.K. SARVARIA )
Additional Sessions Judge-01
South/PHC/ND.
SC No.231/09 Page18/13