Delhi District Court
State vs 1. Dinesh (A-1) on 15 July, 2020
IN THE COURT OF MR. DHARMESH SHARMA
DISTRICT & SESSIONS JUDGE : WEST DISTRICT
TIS HAZARI COURTS : DELHI
Sessions Case No. 56328/16
CNR No. DLWT01-000302-2013
State Versus 1. Dinesh (A-1)
S/o Sh. Govind Ram
R/o D-29, Punjabi Basti,
Nangloi, Delhi.
2. Ravi (A-2)
S/o Kallu
R/o WZ-461, Village Madipur,
Delhi
FIR No. 06/13
PS Nihal Vihar
U/s 393/394/398/34 IPC &
25/27/54/59 of Arms Act.
Date of Committal : 16.04.2013
Date of judgment : 15.07.2020
Appearances:
Sh. Atul Kumar Shrivastava, Addl. PP for the State/Prosecution.
Sh. Mohan Singh, Advocate for accused Dinesh ( A-1)
Sh. R.R. Jha, Legal Aid Counsel for accused Ravi (A-2)
JUDGMENT
1. Accused Dinesh S/o Govind (A-1) and accused Ravi S/o Kallu (A-2) have been arraigned for trial on the charge that on 08.01.2013 at about 3:00 p.m they entered House No. D-78, Kanwar Singh Nagar, Nangloi within the jurisdiction of PS Nihal Vihar, Delhi and in furtherance of their common intention attempted to commit robbery SC No. 56328/16 State v. Dinesh & Anr. Page 1 of 14 and in that process voluntarily caused hurt to the complainant Smt. Sunita while armed with deadly weapons i.e. country made pistols / katta and a knife.
2. Both the accused persons were accordingly charged conjointly for committing offences under Sections 393/394/398/34 IPC besides individually charged for being found in possession of country made pistol containing live cartridges and accused Dinesh (A-1) additionally charged for being found in possession of a knife under Sections 25/27/54/59 of the Arms Act.
3. Needless to state that both the accused persons pleaded not guilty to the charges and claimed trial.
FACTS
4. The case of the prosecution is that on 08.01.2013 ASI Ajaib Singh (PW-7) was entrusted DD No. 25 A who along with Ct. Virender (PW-6) reached the place of occurrence at D-78, Kanwar Singh Nagar, Nangloi, Delhi, where they found a crowd of people gathered at the spot that had apprehended two boys and statement of Smt. Sunita (PW-1) complainant was recorded which goes as under:-
"बययन ककयय कक मम पतय उपररकत पर कह पकरवयर रहतत हह और House Wife हह । आज कदनयनक 08/01/2013 कर मम अपनन घर अकनलत थत कक समय करतब 3 बजन कदन मम घर कय दरवयजय खटखटयनन कत आवयज आई जर मम नन जयकर घर कन दरवयजय खरलय जर घर कन बयहर कसकढयय मम दर लडकन खडनड थन कजनहयनन कहय कक भम जत करई Room खयलत हह जर मम नन कहय कक हमयरन यहयन करई Room खयलत नहतन हह जर वर वयकपस चलन गयन परनतत थरडत दन र बयद हत दरबयरय दरवयजय खटखटयनन कत आवयज आई तर मम नन सरचय कक मन रय लडकय आयय हरगय जर बयहर खन लनन गयय थय जर मम नन अवयज लगयई कक दरवयजय खत लय हतआ हह आ जयओ तर वहत दरनर लडकन अनदर आए और पत नन Room SC No. 56328/16 State v. Dinesh & Anr. Page 2 of 14 लन नन कत बयत कहत जर मम नन कह कदयय कक आपसन एक बयर कह कदयय कक मन रन यहयन पर करई Room खयलत नहतन हह तर इतनय कहतन हत उनमम सन एक छरटन कद कन लडकन नन मन रत कनपटत पर कटट टय लगय कदयय मत झन वर bedroom मम लन गए और वहयन पर दस ह रन लमबन कद कन मजबहत कयठत वयलन लडकन नन भत कटट टय कनकयल कर मत झन धमकयतन हतए कहय कक कचललयनन कक करकशश कत तर जयन सन मयर दम गन जर छरटन वयलन लडकन नन अपनत पहनत हतई पन नट कत जन ब सन सहतत रससत व डयड कटर टन प कनकयलत और दस ह रन लमबन वयलन लडकन कन कहत कक इसकन हयथ बयन धकर मत हन पर Tape कचपकय दन जर मम नन ममकय पयकर छरटन कद कन लडकन कर लयत मयरत कजससन वह कगर गयय और मम नन बचयव-2 कत आवयज लगयई कजससन घबरयकर दरनर लडकन मत झन छरडकर भयगनन लगन तर मन रन घर कन सयमनन खयलत पलयट मन ककट रकनट खन ल रहन बचचय मन सन मरकहत नन छरटन कद वयलन लडकन कर दमडकर पकड कलयय कजसकन पयस कटट टय थय व दस ह रन लडकन कर जर कक लमबन कद वयलय थय कर मन रन पडरसत कदनन श नन भयग कर कटट टन सकहत पकड कलयय कजसकन हयथ मन एक कयलय बह ग थय कजसमन चह क करनन पर एक पन चकश एक पलयस व एक रसरई चयकह थय कजसकय नयम व पतय बयद दकरययफत पक कदनन श ओकलयय S/o Sh. गरकवनद रयम R/o D-29, पन जयबत बसतत, नयन गलरई कदललत उमटर 35 सयल व रकव s/o Sh. कललह R/o WZ-461, मयदतपत र गयन व कदललत उमटर 35 सयल मयलत म हतआ जर इस पटरकयर उपररकत दरनय लडकय नन हथययर कन बल पर मन रन घर मन घत सकर लहटनन कत करकशश कत हह और मत झन व मरकहत कर चरट पहतनचयई हह इनकन कखलयफ कयनहनत कययरवयहत कत जयवन बययन सत न कलयय ठतक हह ।
5. It is the case of the prosecution that one Mohit S/o Sh. Rajender (PW-5) handed over a country made pistol / katta with a live cartridge to PW-7 ASI Ajaib Singh which was allegedly recovered from the possession of accused Ravi (A-2) which was seized vide Seizure Memo Ex. PW 5/A and its sketch was prepared which is Ex. PW 5/B and a black colour bag which was found in possession of accused Dinesh (A-1) was searched from which a kitchen knife, one plass/plier, one screw driver, one tape, rope / nada along with desi katta, which katta was seized vide memo Ex. PW-4/C and the sketch of the katta and kitchen knife are Ex. PW-4/B and Ex.PW-4/D respectively; and the Bag is Ex. PW 4/P-1, Screw Driver Ex. PW 4/P-2 and the Plass Ex. PW 4/P-3 and the rope with which the complainant had been tied up along with doctor tape were seized vide Memo Ex. PW 1/C. Both SC No. 56328/16 State v. Dinesh & Anr. Page 3 of 14 accused persons were interrogated and their disclosure statements were written, which are Ex.PW-1/I and Ex.PW-1/H respectively. The statements of the eye witnesses PW-5 Mohit and Dinesh (PW-4 ) were recorded under Section 161 Cr.P.C. Further, accused Dinesh was arrested vide arrest memo Ex. PW 4/D and accused Ravi was arrested vide arrest memo Ex. PW 4/C and their jamatalashi proceedings were conducted which are Ex. PW 1/F and Ex. PW 1/G respectively.
6. Needless to state that sealing of the case property was done and FSL form was prepared, and later on opinion of the ballistic expert was obtained with regard to desi kattas/country made pistols recovered from the possession of the accused persons and sanction for prosecution u/s 39 of the Arms Act was obtained. On completion of investigation, the final police report was filed.
PROSECUTION EVIDENCE
7. In order to prove the prosecution case, the following witnesses were examined.
PW-1 was Smt. Sunita who supported the case of the prosecution and her testimony was corroborated by so called independent witnesses PW-4 Dinesh Kumar and PW-5 Mohit. I shall dwell into their evidence later on in this judgment.
8. The remaining witnesses were police witnesses.
PW-2 was SI Jai Prakash who testified that he was posted as Duty Officer at PS Nihal Vihar, Delhi and on 08.01.2013 at about 6:50 p.m received a rukka from PW-6 Ct. Virender sent by PW-7 ASI SC No. 56328/16 State v. Dinesh & Anr. Page 4 of 14 Ajaib Singh and on the basis of which he made his endorsement on the rukka Ex. PW 2/B and recorded FIR on the Computer Ex. PW 2/A and issued Certificate u/s 65B of the Evidence Act Ex. PW 2/C. PW-3 was HC Ram Mahesh, MHC(M) posted at PS Nihal Vihar, Delhi. He deposed that on 08.01.2013 he received three sealed parcels along with one doctor tape, cotton rope, one screw driver and plass/plper from the IO sealed with the seal of 'CL' which were taken into custody by him in the Malkhana vide entry no. 657/2013. He further deposed that on 12.02.2013 two sealed parcel were sent to FSL and report was received on 17.05.2013. He proved extract of the entry in the register which documents Ex. PW 3/A to Ex. PW 3/C. PW-6 was Ct. Virender. He testified that he reached the spot along with ASI Ajaib Singh on receiving DD No. 25A and likewise PW-7 ASI Ajaib Singh testified about the manner in which the accused persons had been apprehended by the public persons and his investigation at the spot.
PW-8 was Ct Anil. He was another Constable from the PS Nihal Vihar who reached the spot and joined IO ASI Ajaib Singh and deposed that desi kattas were recovered from the possession of both the accused persons.
PW-9 was SI Sugreev. He reached the spot after receiving copy of FIR and meet ASI Ajaib Singh besides Ct. Anil at the spot. He deposed that he made inquiries from the complainant Smt. Sunita and recorded the statement of the public witnesses, namely Mohit and Dinesh under Section 161 Cr.P.C. PW-9 deposed about further investigation in the matter.
SC No. 56328/16 State v. Dinesh & Anr. Page 5 of 14PW-10 was Dr. N. P. Waghmare, Assistant Director, FSL Rohini, Delhi. He deposed that on 12.02.2013 four sealed parcels were received by him along with specimen seal. He deposed about the examining the country made pistols 8 mm/.315" bore and found that the same were in working conditions and he proved his report Ex. PW 10/A upon which I shall delve upon this judgment later on in this judgment.
Lastly, Sh. Devender Arya, DCP North East, Delhi was examined as PW-10 (but it should be read as PW-11) who deposed that he accorded sanction for prosecution u/s 39 of the Arms Act against the accused persons Ravi and Dinesh which order is Ex. PW 10/A and Ex. PW 10/B respectively.
STATEMENT OF ACCUSED PERSONS
9. On the close of the prosecution evidence, both the accused persons were separately examined as per Section 313 Cr.PC and on putting the incriminating evidence they denied their involvement in the crime alleged against them. Both the accused persons submitted that they have been falsely implicated in the present case while the real culprits were allowed to go scotfree. Both the accused persons also stated that their signatures were taken on the blank papers and they were innocent. Both the accused persons chose not to lead any evidence in their defence.
DECISION
10. I have given my thoughtful consideration to the submissions made by Ld. Addl. PP for the State and Ld. Counsel for the accused persons. I have also perused the relevant record of the SC No. 56328/16 State v. Dinesh & Anr. Page 6 of 14 case including the case law cited.
11. At the outset, the testimony of PW-1 Sunita, who was the main witness for the prosecution, is completely in harmony with the contents of her complaint to the police Ex.PW-1/A. PW-1 Sunita categorically deposed that on 08.01.2013 at 3.00 p.m. two accused knocked at her door and asked if there was any vacant room available on rent; and that on her reply that there was none they initially left but after 10 minutes there was further knocks at the main door of her house/flat and thinking that her son had arrived who was playing outside, she casually shouted "बन टय अनदर आजय दरवयजय खत लय हह " but to her shock she found that the two accused who had barged inside her house holding kattas. PW-1 Sunita in her testimony categorically identified the accused Ravi (A-2), having short height as the one who put a country made pistol/kata on her temple and threatened her to handover all the cash and jewellery in the house. In her cross- examination, she further stated that accused Ravi(A-2) had closed her mouth with the other hand.
12. In the same vain, PW-1 Sunita further deposed that both the accused persons took her in the bedroom and one of the accused was holding her and while the other was trying to take out the doctor's tape and a rope, she hit the one with short height, identified as Ravi (A-2) with her leg on which accused Ravi A-2 fell down and she raised alarm. She also categorically testified the other accused identified as Dinesh (A-1) was the one holding her hands and on accused Ravi (A-2) SC No. 56328/16 State v. Dinesh & Anr. Page 7 of 14 falling and on her raising alarm, he i.e., accused Dinesh (A-1) threatened her that if she raised alarm, he would kill her. who was also having a katta/pistol in his hand. She testified that as she raised alarm, both the accused persons ran outside; and that some boys who were playing in the park in front of her house heard her alarm and accused Ravi (A-2) was apprehended by a boy Mohit while the other accused Dinesh (A-1) was apprehended by another man from the neighborhood, namely Dinesh.
13. It stares on the face of the judicial record that the testimony of PW-1 Sunita has been corroborated in all material particulars by PW-4 Dinesh as also PW-5 Mohit. Briefly summorised, a conjoint reading of the testimonies of PW-4 Dinesh and PW-5 Mohit would show that they heard the noise of "बचयओ बचयओ चरर चरर" coming from the house of Sunita and they saw the two accused coming from inside the house of Sunita having katta/pistol in their hands and they ran in opposite directions in order to flee away but were apprehended, and that in the meanwhile somebody called the Police that arrived at the scene in about ten minutes and the two accused persons were handed over to the police after little thrashing, as reflected in their MLCs. On a holistic appreciation of the testimony of the aforesaid witnesses, it is clearly discernible that the incident happened in broad daylight and the public persons apprehended the two accused persons in a very natural and courageous manner. There is nothing in the cross-examination of either PW-1 Sunita or for that matter in the cross-examination of PW-4 Dinesh as also PW-5 Mohit that they any prior acquaintance or motive SC No. 56328/16 State v. Dinesh & Anr. Page 8 of 14 or grudge to falsely implicate the two accused persons in the commission of the crime.
14. In so far as the police investigation is concerned, it is in evidence that the two offenders were handed over to PW-7 SI Ajaib Singh, who had reached the spot along-with PW-6 Ct. Virender, and the proceedings were later joined by PW-8 Constable Anil. There was no delay in registration of the FIR Ex.PW-2/B either and kattas from the two accused persons, namely Dinesh (A-1) and Ravi (A-2) were seized vide memo Ex.PW-4/C and Ex.PW-5/A and the sketch plans of the desi kattas and one live cartridges recovered from the two accused persons separately were prepared at the spot, which are Ex.PW-4/B and Ex.PW-5/B respectively. It is also in the testimony of public witnesses, namely PW-4 Dinesh and PW-5 Mohit that on the search of bag in the possession of accused Dinesh (A-1), there were recovered certain items which is Ex.PW-4/P-1, screw driver Ex.PW-4/P-2, plass/plier Ex.PW-4/P-3 and kitchen knife Ex.PW-4/P-4 were recovered and the sketch of the kitchen knife was also prepared at the spot Ex.PW-4/D. There is no worthwhile challenge to the fact that seizure memos as well as sketch plans of desi kattas and the knife, which were prepared at the spot bear signatures of the accused persons as also that of the witnesses.
15. Sh. R.R. Jha, Ld. Counsel from DLSA (West) representing accused Ravi (A-2) pointed out that PW-1 Sunita in her cross- examination improved her version when she testified that the accused SC No. 56328/16 State v. Dinesh & Anr. Page 9 of 14 persons fled away when one lady neighbourer arrived on hearing her cries for help and further pointed out that the other lady was not examined by the Investigating Officer, and it was also canvassed that as per the prosecution case, many boys were allegedly playing in the area in front of the house but none of them were examined by the police either. The said blemishes, if any, inflict no significant crack in the prosecution case since it is well settled that "evidence is to be weighed and not to be counted". It cannot be over emphasized that while recording her complaint Ex.PW-1/A, PW-1 must have been under tremendous mental and psychological pain and anxiety, and perhaps omitted to mention that one lady neighbourer too had arrived on hearing her cries for help. Viewed from another angel, such improved version does not put any dent in her testimony as casting aside the embroidery of words and emotions exhibited by PW-1, her testimony is of "sterling quality" in all respect and corroborated by the testimonies of PW-4 Dinesh and PW-5 Mohit. Their version of the incident is credible and truthful so as to bring home that the two accused persons attempted to commit robbery. In my view, we are fortified by the decision of the Supreme Court in the case of Malkiat Singh v. State of Punjab, (1991) 4 SCC 341, wherein at page 351 it was observed as under:
"8.It is settled law that corroboration is not a rule of law, but one of caution as an assurance. The conviction could be made on the basis of the testimony of a solitary witness. The occasion for the presence at the time of occurrence, opportunity to witness the crime, the normal conduct of the witness after the incident, the nearness of the witness to the victim, his predisposition to- wards the accused, are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness. It is SC No. 56328/16 State v. Dinesh & Anr. Page 10 of 14 not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance.
16. Another plea was addressed by the ld defence Counsel that how could a household lady kn0w that accused persons were holding country-made pistol or katta, is noted only to be rejected since it is a matter of common sense and logic that accused persons were caught more or less at the spot as per the site plan Ex.PW-1/B and since the entire proceedings took place at the spot somebody must have revealed to her that firearms that were being carried by the accused persons were country-made pistol/kattas. At the cost of repetition, there is nothing in the cross-examination of the aforesaid witnesses that they had any ill motive or grudges to falsely implicate the accused persons in the present matter.
17. Lastly, another plea was taken by Mr. Jha, ld. Legal Aid Counsel for accused Ravi (A-2) that PW-1 Sunita deposed that she had sustained injuries on her face/cheeks there was blood but the same was not collected from the spot and her MLC was not proved. The MLC of the complainant/PW-1 is on the record, which shows that she was examined in Sanjay Gandhi Memorial Hospital, Mangolpuri on 08.01.2013 at 5.15 p.m. and she had stated that there was pain around her neck but there was no injury mark. There was no suggestion by the defence in the cross-examination of PW-1 that she had not sustained any hurt at the hands of the accused persons.
18. Before putting the curtains finally down on the aspect of SC No. 56328/16 State v. Dinesh & Anr. Page 11 of 14 appreciation of oral and documentary evidence led on the record, it is pertinent to mention that there is no challenge to the testimony of PW- 10 Dr. N.P. Waghmare that the two country made pistols recovered from the accused persons were sent for ballistic examination and as per report Ex.PW-10/A, the country made pistol which were marked F-1 and F-2 along-with live cartridge A-1 and A-2 respectively were successfully 'test fired' and there is was no challenge to the expert opinion that they were fire arms within the meaning of the Arms Act.
19. Now coming to the offences committed by the accused persons, accused Dinesh (A-1) was found in possession of sharp edge knife and as per khaka of the knife Ex.PW-4/D it had a sharp edged blade of 20.9 cms, out of total length of 32.4 cms and the handle was about 11.5 cms. The width of the blade was not measured. As per Notification by Delhi Government No. F.13/203/78-Home(G) dated 17.02.1979, possession of a sharp edged object with a blade of 7.12 cms length and 1.72 cms of blade is prohibited for being defined as an 'Arm' within the meaning of Section 2 (c) of the Arms Act, 1959. Further, there is no iota of doubt that the country made pistols/katas recovered from accused persons were 'firearms' within the ambit of Section 2(1) (e) of the Arms Act. Section 5 prohibits possession of arm and firearm without any license and Section 7 of the Arms Act prohibits use of arm and firearm which are punishable under Section 25 and 27of the Arms Act ,which provides as under:-
"25. Punishment for certain offences--
(1A)Whoever acquires, has in his possession or carries any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term SC No. 56328/16 State v. Dinesh & Anr. Page 12 of 14 which shall not be less than five years, but which may extend to ten years and shall also be liable to fine.
27. Punishment for using arms, etc.--
(1) Whoever uses any arms or ammunition in contravention of section 5 shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. (2) Whoever uses any prohibited arms or prohibited ammunition in contravention of section 7 shall be punishable with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life and shall also be liable to fine.
(3) Whoever uses any prohibited arms or prohibited ammunition or does any act in contravention of section 7 and such use or act results in the death of any other person, shall be punishable with death."
20. With regard to the offence of robbery, the relevant provisions are defined as under:-
394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, 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.
397. 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.
398. Attempt to commit robbery or dacoity when armed with deadly weapon.--If, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years."SC No. 56328/16 State v. Dinesh & Anr. Page 13 of 14
21. The said penal provisions juxtaposed with the facts and circumstances established on record discussed hereinabove would show that the two accused persons were armed with deadly weapons and in the process of committing robbery, they voluntarily caused hurt i.e., bodily pain to the complainant-lady within the meaning of section 319 of the Indian Penal Code, which was obviously 'simple' in nature. The only mitigating circumstances is that accused Dinesh did not use the knife Ex. PW-4/P-4, which was kept in his bag. All said and done, the accused persons are without any iota of doubt liable to be convicted under Section 394 and Section 398 read with Section 34 of the IPC. Further, the two accused persons are also individually guilty of committing offence punishable under Sections 25 as well as 27 of the Arms Act for possession and use of country-made pistols/kattas during the commission of such robbery. Both the accused persons are accordingly held guilty and convicted. Let both the accused persons be heard on the point of sentence. Digitally signed by DHARMESH DHARMESH SHARMA SHARMA Date: 2020.07.17 16:21:20 +0530 Announced in the open Court (DHARMESH SHARMA) on 15th July, 2020 District & Sessions Judge (West) Tis Hazari Courts: Delhi SC No. 56328/16 State v. Dinesh & Anr. Page 14 of 14