Delhi District Court
State vs . on 18 October, 2014
IN THE COURT OF MS. SAVITA RAO, ADDITIONAL SESSIONS
JUDGE02, CENTRAL, DELHI
FIR No.: 15/2010
PS: NDLS
U/s: 395/397/412/34 IPC & 25 of Arms Act
S.C. No.: 56/13
Case ID No. :02401R0580502010
In the matter of:
State
Vs.
1. Sanjay Thapa S/o Jeet Bahadur
R/o Village Arkecot, PO Barua
Distt. Sangja, Nepal & Vegabond, Delhi
2. Deepak S/o Ram Parvesh
R/o C106, Gali no. 10, Khajuri, Delhi
3. Irfan S/o Abdul Rehman
R/o Village Bharatcol, PO Rasona
P.S. Paranpur, Distt. Katihar, Bihar
4. Rafitulla @ Salman
S/o Barakatullah
R/o Village Badari, P.S. Utharola
Distt. Balrampur, U.P.
Date of Institution : 21.12.2011
Date of Assignment to This Court : 03.04.2013
Arguments Heard : 10.09.2014, 9.10.2014
S.C. No.: 56/2013 1/12
& 15.10.2014
Date of Judgment : 18.10.2014
JUDGEMENT
Case Of Prosecution:
1. On 28.1.2010 on receipt of DD no. 4A at Hazrat Nizamuddin Railway Station , ASI Kushal Pal alongwith Ct. Zile Singh reached at the office of Deputy Superintendent, DRP where complainant Sukhdeep met him and gave his statement with respect to commission of robbery of their articles at the point of knives in coach no. D1 of Himalyan Queen Train. On the basis of said complaint, FIR u/s 392/34 IPC was registered at P.S. NDRS and during the investigation of the case, all the accused persons were arrested and robbed articles as well as knives used in commission of crime were recovered from their possession. Their disclosure statements were recorded, section 392 was converted into section 395 IPC and after completion of investigation, instant charge sheet u/s 395/397/412 IPC was filed in the court.
2. Since the offence u/s 397 of IPC is exclusively triable by the court of sessions, therefore, after supply of the documents, Ld. MM committed the case to court of sessions.
Charge Against The Accused:
3. Charge u/s 392/411/34 IPC was framed against all the accused persons. Further charge u/s 25 of Arms Act was also framed against accused Irfan and Rafiqullah. With respect to offence u/s 397 IPC, S.C. No.: 56/2013 2/12 initially charge was framed only against accused Rafitullah and Irfan but subsequently, additional charge u/s 397 IPC was also framed against accused Sanjay and Deepak, to which they pleaded not guilty and claimed trial.
Witnesses Examined:
4. In support of its case, prosecution has examined 12 witnesses in all.
5. PW1 is Sukhdeep Singh, PW2 is Mrs. Ranjeet Kaur , PW3 is Mrs. Baljeet Kaur, PW5 is Smt. Manjeet Kaur, PW6 is Simran Kaur, PW8 is Raman Mehta and PW10 is Pawan Kumar, who all were traveling in Himalyan Queen Train on the date of incident and narrated about the incident of robbery which had taken place with them.
6. PW4 is ASI Rajesh Tyagi and PW9 is H.C. Ram Kumar who were with the IO during apprehension and arrest of accused persons and proved the memos prepared in their presence.
7. PW7 is ASI Kushal Pal who recorded statement of complainant and after preparing rukka, sent the same to police station for registration of FIR.
8. PW11 is Ct. Jile Singh who was posted as Hazrat Nizamuddin Police Station on the date of incident and in his presence statement of complainant was recorded by the IO.
9. PW12 is SI Anuj Notiyal who conducted the investigation of the case and after completion of investigation, filed the challan in the S.C. No.: 56/2013 3/12 court.
10. Statements of all the accused persons u/s 313 Cr.P.C. was recorded wherein they denied the case of prosecution and stated that they are innocent and have been falsely implicated in this case.
11. I have heard Ld. APP for the state as well as Ld. Legal Aid counsel for defence Ms. Chitra Mal Arora and have perused the record.
12. Complainant as PW1 narrated the facts of the instant case that on 27.1.2010 when he alongwith his family was traveling from Kalka to Delhi in Himalyan Queen Train and they were sitting in coach no. D1, the train reached New Delhi Railway Station at about 2 a.m. in the night where many passengers deboarded from train but the complainant and his family members and relatives remained sitting in coach no. D1 as they had to deboard at Hazrat Nizamuddin Station. When the train statred to leave New Delhi Railway Station, four persons boarded in the coach from the front gate, all of whom were having knives in their hands and they downed the shutter in between coach no. D1 & D2. One of them put a knife on stomach of PW1 and forcibly took out his gold kada which he was wearing in his right hand as well as a Titan make Watch which he was wearing in left hand. They also took out his mobile phone make Noka, his purse containing driving license, Credit Card, PAN Card and cash amount of Rs. 8000/. Those persons also robbed five gold rings and one pair of bali from the purse of his wife as well as gold chain and one pair of ear rings from the neck and ears of his sister and sister in law S.C. No.: 56/2013 4/12 namely Manjeet Kaur and Baljeet Kaur. His niece was also robbed of her ear rings as well as ear rings of his Bua were robbed by those persons on the point of knives and the complainant and his family members were threatened that if they would not hand over the aforesaid articles, they would be killed. Thereafter chain of the train was pulled and the robbers ran away with the robbed articles . Complainant alongwith others deboarded at Hazrat Nizamuddin Railway Station where he approached RPF officials. Police from New Delhi Railway Station was called and the complaint was recorded by the police . On 1.2.2010, PW1 went to P.S. NDRS to inquire regarding the case where he was told to accompany the police team to Shivaji Bridge. He alongwith police officials went towards Shivaji Bridge and from there they went to Tilak Bridge where four persons were found sitting on the wall and he identified one of them as the assailant . Police officials apprehended all the four persons who disclosed their names as Sanjay Thapa, Deepak, Irfan and Rafitulla @ Salman and PW1 identified all of them to be the robbers who looted him and his family members/relatives on the date of incident. This witness also identified all the accused persons present in the court as the robbers who had robbed them on the date of incident. According to PW1, all the accused persons used knives at the time of commission of robbery/dacoity. Search of accused persons was conducted in presence of PW1 and his mobile phone was recovered from the possession of accused Rafitullah. His credit card and two golden rings of his wife were S.C. No.: 56/2013 5/12 recovered from the possession of accused Sanjay Thapa, his golden Kada was recovered from accused Irfan , whereas one pair of ear rings and chain of his sister was recovered from possession of accused Deepak and one knife each were also recovered from accused Irfan and Rafitullah @ Salman. Some of the family members/relatives of complainant PW1 were also examined in the matter as PW2, PW3, PW5 and PW6 and all of them corroborated the statement of PW1 on the relevant points regarding the boarding of 4/5 persons in their coach and the commission of robbery at the point of knives which were in hands of all the assailants. The accused persons were also identified by the witnesses in court. Besides the family members/relatives of complainant, two of the other passengers who were in the train were also examined as PW8 and PW10. PW8 also corroborated the statement of other public witnesses by deposing that as soon as train started from New Delhi Railway Station, four boys entered into the coach who were carrying knives having large blade and started looting the passengers on the point of knives which they were carrying. PW8 was also robbed of his wallet containing cash of Rs. 1800/, his railway ticket and some other documents. It was also deposed by PW8 that after looting the passengers, robbers pulled the chain of train due to which train stopped and all the robbers fled away. This witness further identified all the accused persons except accused Rafitullah and clarified that he had seen three persons whereas one of them was pulling shutter down between compartments and therefore he did not see his face, that is S.C. No.: 56/2013 6/12 why he was unable to identify the fourth accused in the court.
13. PW10 who was another passenger in the same coach also stated about deboarding of most of the passengers at New Delhi Railway Station when four persons entered into the coach who were armed with pistols and knives and started robbing the passengers. He was also robbed of his mobile phone make Samsung , his gold ring, his purse containing Rs. 4000/, his ATM card as well his election identity card. They also searched his bag and took out Rs. 10,000/ from the bag. He also stated about robbery of other persons present in the coach and according to him when the train came near the bridge, they pulled down the emergency chain of the train and all the assailants fled away from the train. When the train reached at Hazrat Nizamuddin Railway Station complaint was made to the police about robbery. This witness however identified only accused Sanjay Thapa and was not able to identify the other accused persons which inability to identify according to him was due to lapse of time. He also stated that he did not identify accused on the asking of police. According to him, he was shown 5/7 photographs from the booklet and police had shown him photographs before recording of his statement before Ld. MM but he only identified accused Sanjay Thapa who was actually involved in the incident. Accused Sanjay Thapal according to him had shown him knife whereas his other associates had robbed him. It was submitted by Ld. counsel for defence that PW10 has referred about presence of only four passengers in the coach though all the other S.C. No.: 56/2013 7/12 passengers had stated about the presence of family/relatives of PW1 consisting of 9 members as well as presence of some more passengers. However it may be noted that the other passenger examined as PW8, besides PW2, PW3, PW5 and PW6 also stated about presence of at least 12/15 passengers left in the said coach who was also able to identify three of the accused persons and merely because one out of six public witnesses did not give the correct count of presence of passengers in the coach, itself cannot be considered a reason sufficient to doubt the credibility of deposition of other witnesses or the case of prosecution in toto. The memory of this witness otherwise seems to be not very good since he was not even able to identify three of the accused persons. The other public witnesses specifically gave the details of entire sequence of events as well as about identification of accused persons correctly. So much so that one of the witnesses i.e. PW5 stated even the words spoken by accused persons while threatening them i.e. Jo Kuch Bhi Hai , Hamare Hawale Kar Do and turned out to be very natural witness while stating that apart from their family members, 6/7 other persons were also present at the time of incident .
14. It was also the contention of Ld. counsel for defence that the description regarding identity of accused persons as well as the looted articles were not given by the witnesses in their statements to the police. In the complaint itself, it was specifically narrated how many jewelery articles were robbed by the robbers and from whom. Even the weight of S.C. No.: 56/2013 8/12 the jewelery articles had been given by the complainant. The same description was given by the public witnesses regarding the articles robbed off in their deposition before the court . With respect to identification of the accused persons, though it was admitted by the public witnesses that apart from age and identification mark of one of the accused persons, they did not give the other description. However, it is relevant to mention here that none of the accused persons were known to any of the public witnesses as per the evidence brought on record nor they were having inimical terms with each other so as to falsely implicate the accused persons and in these circumstances, defence has failed to point out any reason for the public witnesses to falsely identify the accused persons, if they were actually not involved in the crime. All the public witnesses had been robbed at the point of knives and they have given entire sequence of events as well as have specified regarding the role and identity of accused persons in the commission of offence. So much so that PW5 stated that she could never forget the faces of accused present in the court throughout her life and denied that accused persons were identified at the asking of police.
15. Ld. counsel for defence also tried to point out some minor contradictions in the statements of witnesses, like PW1 initially had stated that on 1.2.2010 he went to police station to inquire about his case but subsequently stated that he was called by the IO. However, perusal of complete statement of PW1 makes it clear that the abovesaid S.C. No.: 56/2013 9/12 contradiction emerged in his statement due to some confusion since he again sought to clarify that on 1.2.2010 he had gone to police station on his own and was not called by the IO at police station and from there he accompanied the police party subsequent to which accused persons were apprehended. The robbed articles which were subsequently recovered from the respective possession of accused were also duly identified by public witnesses. It was further the submission of Ld. counsel for defence that even the police officials were not able to give details with respect to the recovery from the accused persons. As argued, PW4 was not aware if IO took any photograph of recovered jewelery articles at the spot; he did not remember which accused was interrogated first as well as was not able to tell the height of bushes from where the knives were recovered. However, it may be noted that PW4 who was part of investigating team otherwise has specifically stated about apprehension of accused persons, their interrogation by IO and recovery of robbed articles as well as knives at the instance of two of the accused persons. It is not expected from the police officials to measure the height of bushes from where the knives were recovered nor they were required to remember each and every minute details which were not relevant for the purpose of investigation. Testimony of public witnesses regarding the commission of offence coupled with the testimony of police officials on the point of investigation have remained consistent, cogent and do not suffer from major contradictions except for the natural variations which do not go to the root S.C. No.: 56/2013 10/12 of the case of prosecution. Reliance is placed upon Criminal Appeal No. 1432/2010, dated 16.5.2013 titlted as Suraj Kumar Thakur etc. Vs. State wherein while referring to Krishna Mochi Vs. State of Bihar 2002 6 SCC 81, it was observed " even if some minor contradiction or improvement has taken place during the examination of witnesses that does not affect the sub stratum of the case, same is not fatal to the case of prosecution. In fact, there are catena of decisions to the effect that human memory fades away with lapse of time and some minor inconsistencies and discrepancies are bound to be there".
16. Reliance is also placed upon Sidhan Vs. State of Kerala 1986, Cr.L.J. 470 wherein it was observed that " Minor discrepancies regarding minute details of the incident including the sequence of events and overt acts are possible even in the versions of truthful witnesses. In fact, such discrepancies are inevitable. Such minor discrepancies only add to the truthfulness of their evidence. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole" .
17. In view of the discussion made herein above, I have no hesitation to conclude that prosecution has been able to prove its case against all the accused persons beyond shadow of doubt u/s 392/34 IPC. S.C. No.: 56/2013 11/12 Accordingly, they all are convicted for the offence u/s 392/34 IPC.
18. Since it is stated by the prosecution witnesses that all the accused persons were carrying knives and as specifically stated, the victims/witnesses were robbed at the point of knives, which is considered a deadly weapon within the meaning of section 397 IPC as was held in State of Maharashtra Vs. Vinayak Tukaram Utekar (1997) 2 Crimes 615 (Bom.). Accordingly, case u/s 397 IPC also stands proved against all the accused persons and they all are convicted for the offence u/s 397 IPC.
19. Recovery of robbed articles belonging to complainant and other public witnesses was also affected from the possession of all the accused persons separately which they had been retaining knowing or having reasons to believe the same to be stolen property. Accordingly, they are further convicted for the offence u/s 411 IPC.
20. Since accused Irfan and Rafituallah at the time of their apprehension were also found in possession of knives without any license or permit in violation of gazette notification, they are convicted for the offence u/s 25 of Arms Act as well.
21. Let the accused persons be heard on point of sentence.
(SAVITA RAO) Additional Sessions Judge02 (Central) Tis Hazari Courts, Delhi Announced in the open court today i.e. on 18.10.2014 S.C. No.: 56/2013 12/12