Delhi District Court
Fir No. 479/99, Ps-Sarita Vihar State vs . Rajesh & Ors. Page No. 1 Of 15 on 18 September, 2018
IN THE COURT OF MS. SHIVANI CHAUHAN
METROPOLITAN MAGISTRATE-05:SOUTH EAST DISTRICT
SAKET COURTS: NEW DELHI
STATE
VS
RAJESH & ORS.
FIR No. : 479/1999
U/s. 394/34 IPC
PS : Sarita Vihar
A. New Case No. : 85805/2016
B. Date of Institution : 03.01.2000
C. Date of Commission of Offence : 16.11.1999
D. Name of the complainant : Virender Sharma
E. Name of the Accused : (1) Rajesh Kumar
S/o Sh. Gopal Singh
R/o 12/190, Kalyanpuri,
New Delhi
(2) Budh Prakash
S/o Sh. Chokkhe Lal,
R/o 12/46, Kalyanpuri,
New Delhi
(3) Anil Kumar
S/o Sh. Jai Pal
R/o 18/319, Kalyanpuri,
New Delhi
FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 1 of 15
(4) Jaipal(Since deceased)
S/o Lachman Singh
(proceedings
against accused
Jaipal Singh
stood abated
vide order
dated 27.01.2011)
F. Offences charged : U/s 394/34 IPC
G. Plea of the Accused : Pleaded not guilty
H. Order reserved on : Not reserved
I. Final order : Convicted.
J. Date of such order : 18.09.2018
JUDGMENT
Brief Facts :-
1. The present case is the result of FIR No. 479/99 and the charge sheet filed by police thereupon. On 16.11.1999 at about 09:45 AM at Noida Mod, Sarita Vihar, New Delhi within the jurisdiction of PS Sarita Vihar, they all in furtherance of common intention committed robbery by wrongfully restraining Virender Sharma and robbing Rs.19,000/- from him. Case was registered accordingly and upon completion of investigation chargesheet was filed against accused Rajesh, Budh Prakash, Anil and Jai Pal.
2. The accused were supplied with the copy of challan and FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 2 of 15 documents in compliance of section 207 Cr.P.C and thereafter, the matter was listed for arguments on charge.
3. Prima facie an offence punishable U/s 394/34 IPC was found to made out against the accused persons by the Ld. Predecessor Court vide Order dated 10.03.2000. Accordingly, Charge was framed and explained to all four accused to which they pleaded not guilty and claimed trial.
4. During the pendency of trial, accused Jaipal had expired and proceedings against him stood abated vide order dated 27.01.2011.
5. To bring home the guilt of accused, prosecution examined five witnesses. Vide separate statement recorded U/s 294 Cr.P.C r/w S. 313(1)(a) Cr.P.C, the accused admitted the genuineness of copy of DD No. 4A dated 16.11.1999 PS Sarita Vihar which is Ex.A1. Thereafter, PE was closed and matter was listed for examination of accused U/s 313 CrPC.
6. In their statements recorded u/s 313 Cr.PC, all three accused persons denied the prosecution case and pleaded innocence. They stated that Police has falsely implicated them.
FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 3 of 15 Accused produced one independent witness in their defence. Thereafter, DE was closed and matter was listed for final arguments.
7. I have heard arguments on behalf of the State and Ld. Defence Counsel as well as gone through case file very carefully.
8. The argument of Ld. APP is that there is enough evidence on record to prove the case against the accused persons. Ld. Defence counsel on the other hand has argued that the accused persons have been wrongly associated with the offence in question and as such the accused persons are entitled to acquittal in the present case. The defence of the accused persons is that there is no independent witness to the recovery. Relevant Law:-
9. It is settled proposition of criminal law that prosecution is supposed to prove its case on judicial file beyond reasonable doubts by leading reliable, cogent and convincing evidence. Further, it is a settled proposition of criminal law that in order to prove its case on judicial file, prosecution is supposed to stand on its own legs and it cannot derive any benefit whatsoever from the FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 4 of 15 weaknesses, if any, in the defence of the accused. Further, it is a settled proposition of criminal law that burden of proof of the version of the prosecution in a criminal trial throughout the trial is on the prosecution and it never shifts to the accused. Also it is a settled proposition of criminal law that the accused is entitled to the benefit of every reasonable doubt in the prosecution story and such doubt entitles the accused to acquittal. Law relating to requirement of independent witness
10. Further Sec. 100 Clause 4 & 5 CrPC talk about requirement of independent witnesses only when search is made on the person of the accused or at some place from where the incriminating articles is recovered and not when corroboration of happening of event in which accused is alleged to be involved is concerned. Regarding the non-joining of independent witnesses it has been stated in judgment titled as Appabhai v. State of Gujarat, 1988 Supp 241 : AIR 1988 SC 696 that "11...... Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 5 of 15 themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One can not ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused. This has also been relied upon in judgment titled as Kathi Bharat Vasjur v. State of Gujarat in AIR 2012 SC 2163 (Para 22).
Minor contradictions do not effect the credibility of the prosecution case.
11. It was held in the judgment titled as Ravi Kapoor V. State of Rajasthan, 2012 VIII AD (S.C) 73 that "Minor variations are bound to occur in the statements of the witnesses when their statements are recorded after a considerable lapse from the date FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 6 of 15 of occurrence".
Overall context of the case is to be seen.
12. It also the settled law laid down in Sardul Singh Vs. State of Haryana AIR 2002 SC 3462 that courts have a duty to undertake a complete and comprehensive appreciation of all the vital features of the case and entire evidence with reference to broad and reasonable probabilities of the case in their attempt to find out proof beyond reasonable doubt.
Ingredients to be proved.
13. Section 390 IPC provides as under:
(i) Theft is 'robbery', if:
(a) in order to the committing of the theft, or
(b) in committing the theft or
(c) in carrying away or
(d) in attempting to carry away property obtained by theft;
(ii) the offender, for that and voluntarily causes FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 7 of 15 or attempts to cause to any person;
(iii) (i) Death.
or
(ii) Hurt
or
(iii) wrongful restraint
or
(iv) fear of instant death
or
hurt
or
wrongful restraint, is guilty of offence u/s 390 IPC. Ingredients:-
Firstly the use of violence must be for one of the four ends.
Viz (i) It must be in order to commit the theft
or
(ii) in committing the theft
or
FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 8 of 15
(iii) in carrying away stolen property
or
(iv) in attempting to carry away stolen
property. If force is used for any other purpose it will not convert that act into robbery.
Aggravated forms of robbery:-
If hurt is caused the punishment is imprisonment for life or 10 years and fine Section 394 IPC. Discussion on merits :
14. Prosecution examined PW-4 Amar Singh to prove that he had given Rs.19,000/- to Victim Virender on the date of the alleged incident. PW-4 deposed that in the year 1999 he was working at Industrial Carbon India as a foreman. Virender Sharma was working as security guard with him and used to deposit his salary with him. On 16.11.1999, he had returned the deposited amount of Rs.19,000/- to Virender. In the evening of 16.11.1999, he became aware that Virender had been robbed off the said amount. Despite opportunity, none of the accused conducted the cross examination of this witness. Thus, no contradiction could be FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 9 of 15 brought about in the testimony of this witness. In these circumstances, it is held that prosecution has successfully proved that Amar Singh had given Rs.19,000/- to Virender Sharma on the date of incident and that Virender Sharma had Rs.19,000/- in his possession on the date and time of the alleged incident.
15. To prove the incident of Robbery, Prosecution examined the victim and complainant/ victim Virender Sharma as PW-2. He deposed that on 16.11.1999 while he was working as security guard in DSIDC. At about 09:00 AM he took the amount of Rs.19,000/- and proceeded towards his house. When he boarded bus no. 405, three passengers also came along. Bus was stopped at bus stand where one Tata Sumo bearing no. HR-10C-1298 was already parked. The victim deposed that the accused snatched his money when he boarded the bus and got down to the Tata Sumo which was already parked there. Accused Budh Prakash had asked him to put his hands up. Thereafter, Tata Sumo with all the accused went towards Ashram side. In the meanwhile, a Police Van came at the spot and he FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 10 of 15 informed about the incident to the Police. He along with PCR van went towards Ashram side i.e., the direction in which Tata Sumo had run away. The incharge of the PCR van had informed the Control Room on wireless about the incident. When they reached at Ashram Chowk, accused persons had already been apprehended by Police along with Tata Sumo. The search of the accused persons was conducted and Rs.19,000/- were recovered from accused Rajesh. PW-2 was cross examined by Ld. Defence counsel. The witness withstood the test of cross examination and remained consistent throughout his deposition. The defence counsel could not extract any material contradiction despite extensive cross examination. During cross examination, the witness affirmed that he used to deposit his salary with Amar Singh and thus corroborated the testimony of PW-4 on this aspect and reinforced the case of the prosecution.
16. PW-1 ASI Ram Prasad is one of the recovery witness. He deposed that on 16.11.1999 while he was posted at E-Eagle 19, PCR van at Ashram Chowk. At about 09:55 am, he had received one wireless message about the incident of snatching and FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 11 of 15 accused persons trying to abscond in Tata Sumo bearing no. HR- 10C-1298. He along with his staff was present at Ashram Chowk. and had got stopped the Tata Sumo no. HR 10C 1298 with the help of PCR. In the mean time Eagle 27 who gave information about the incident reached the spot and four person sitting in the tata sumo were apprehended. After some time IO also reached the spot. The names of accused were revealed as Rajesh, Anil, Budh Parkash and Jai Parkash. Upon search, Rs.19,000/- were recovered from the possession of accused Rajesh and the amount was seized vide memo Ex. PW1/A. PW-1 was cross examined by defence counsel. The witness remained firmed and consistent through out his testimony on all material aspects.
17. Accused in his defence examined one witness namely Anil Kumar as DW-1.
18. DW-1 has brought certified copy of criminal miscellaneous no. 4609 of 2016 in the matter of Rajesh Kumar and Ors. The witness did not depose about any independent fact. He only produced the certified copy of a Petition U/s 482 CrPC filed by the accused before Hon'ble High Court of Delhi. The said Writ FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 12 of 15 Petition was filed seeking Quashing of the instant FIR on the ground that parties had settled all their differences amicably. This subsequent occurrence/ settlement does not, in any manner disprove or rebut factum of commission of the offence which has otherwise been duly proved by the Prosecution beyond the pales of all reasonable doubts.
19. Thus, prosecution, through the testimony of PW-4, PW- 1 & PW-2 has successfully proved that Virender Sharma was possessed of Rs.19,000/- on the date of the alleged incident and the same was robbed by the accused in connivance with each other after restraining the victim. Prosecution has also been able to prove that accused were apprehended/ intercepted on their way and an amount of Rs.19,000/- was recovered from the possession of accused Rajesh in the presence of the victim and ASI Ram Prasad. All the four accused persons were apprehended from the spot. The defence of the accused is that no independent person was joined in investigation when several persons were available. The mere non joining of public person is not fatal to the case of the prosecution FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 13 of 15 especially when the allegations had been proved beyond the pales of reasonable doubt and the accused persons were intercepted soon after the commission of the offence and the stolen property was also recovered from their possession. There is no reason to disbelieve the testimony of prosecution witnesses who had withstood the test of cross-examination and have corroborated each other. There is no dispute with respect to the identity of any of the accused persons as they were apprehended soon after the incident.
20. In view of the aforesaid discussion, it is held that prosecution has been able to establish that victim Virender Sharma was having Rs.19,000/- on the date of the incident. The accused persons, with common intention had robbed the complainant of the said amount and had attempted to run away in Tata Sumo but were intercepted on their way. The said amount was recovered from the possession of accused Rajesh. In these circumstances, the prosecution has been able to establish all the allegations against the accused persons and prove the guilt of the accused persons beyond FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 14 of 15 pales of reasonable doubt. Accordingly, accused Rajesh, Anil and Budh Prakash is hereby convicted for offence U/s 394/34 IPC.
Now come up for arguments on the point of sentence. Copy of the Judgment be given to convicts free of cost against receipt. Digitally signed by SHIVANI SHIVANI CHAUHAN CHAUHAN Date:
Announced in the open 2018.09.24
15:41:48
Court on 18.09.2018. +0530
(SHIVANI CHAUHAN)
METROPOLITAN MAGISTRATE-05
SOUTH EAST DISTRICT
SAKET COURTS
NEW DELHI
FIR No. 479/99, PS-Sarita Vihar State vs. Rajesh & ors. Page no. 15 of 15