Delhi District Court
State vs . 1. Dinesh Kumar @ Dinu on 14 July, 2010
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGE (NW)-II: ROHINI COURTS: DELHI
Sessions Case No. 116/06
Unique Case ID : 02404R0011682006
FIR No. 1062/04
PS Punjabi Bagh
U/s 392/397/411/34 IPC
& 25/27/54/Arms Act.
State Vs. 1. Dinesh Kumar @ Dinu
S/o Udeybir Singh
R/o Village & P.O. Budhpur,
Distt. Baghpat, U. P.
2. Rajeev Kumar
S/o Ompal Singh
R/o Village & P.O. Budhpur,
Distt. Baghpat, U. P.
3. Sandeep Kumar
S/o Chainpal Singh
R/o Village & P.O. Budhpur,
Distt. Baghpat, U. P.
4. Praveen Kumar
S/o Chanderbir
R/o Village & P.O. Budhpur,
Distt. Baghpat, U. P.
Date of Committal to Sessions Court: 3.3.2005
Judgment Reserved on: 7.6.2010
Judgment Pronounced on : 1.7.2010
JUDGMENT
CASE OF PROSECUTION:
The case of the prosecution is that on 5.12.2004 at Shop No. 23, NWA Club Road, Punjabi Bagh, accused Dinesh @ Dinnu alongwith other co-accused namely Sandeep, Rajeev and Praveen SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 1 of 1 committed theft of 23 mobile phones, several dummy phones and about Rs.80,000 to 90,000/- belonging to the shop 'Mobile India', gold chain belonging to the Sanjeev Kumar and Navneet Kaur and also purse of Sanjeev Kumar. They also extended threats to Sanjeev Kumar and his assistant Navneet Kaur with pistols and also restrained them by pushing them inside the cabin and tied them with the ropes to facilitate the commission of robbery and thereafter escaped from the spot. Thereafter, on 18.12.2004 accused Dinesh Kumar was found in possession of one mobile phone make Nokia along with charger, booklet and the cardboard box which had been allegedly stolen on 5.12.2004 from the said shop. It is further alleged that on 10.12.2004 the accused Dinesh Kumar sold one mobile phone model 6610 with IMEI No. 315350404912887 belonging to one Gaurav Kakkar and was stolen from the shop of complainant Sanjeev on 5.12.2004 to one Neeraj Sachdeva @ Sunny and Pramod Kumar from a shop in MCD Market Karol Bagh. It is further alleged that on 25.12.2004 accused Dinesh Kumar got recovered five mobile phones make Nokia from his house at Village Budhpur, Distt. Baghpat U.P., which were stolen from the aforesaid shop on 5.12.2004.
The above information was passed on to the police and DD No. 12A was recorded and the first investigating officer namely Lakhan Singh alongwith Ct. Ram Niwas reached at the spot and recorded the statement of complainant Sanjay Kumar and prepared the rukka and the FIR in the present case was registered and thereafter further investigation was handed over to Inspector Jarnail Singh who thereafter inspected the spot and prepared the site plan and also called the crime team which also inspected the spot and chance prints were lifted. Inspector Jarnail Singh also seized the two handkerchiefs and four pieces of rope.
SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 2 of 2On 18.12.2004 accused Dinesh Kumar and the co-accused Rajeev were arrested from Madipur crossing in the present case and mobile phones were recovered from them and one loaded country made pistol of .12 bore was also recovered from the possession of accused Rajeev which was seized by the police and their disclosure statements were also recorded pursuant to which they led the police party to Karol Bagh, Gaffar Market at Shop No. 140, MCD Market and identified Neeraj Sachdeva to be the person to whom the mobile phones were sold by the accused. The accused also pointed out the place of occurrence to the police.
On 22.12.2004 the co-accused Sandeep and Praveen were arrested from the Gate of ISBT Kashmere Gate. Their personal search was conducted and their disclosure statements were recorded and at the instance of accused Sandeep one desi katta with one live cartridge was got recovered which was taken into possession by the police. It is alleged that the co-accused Parveen led the police party at Shakarpur railway crossing near safeda tree and got recovered one desi katta in a polythene bag by digging out the same from the earth which was taken into possession by the police. The investigating officer prepared the site plan of the place of recovery of desi katta from accused Parveen and Sandeep and also the pointing out memos of place of occurrence.
Thereafter, on 23.12.2006 accused Sandeep and Parveen took the police party at sugarcane field at village Budhpur, Distt., Baghpat, U.P. and taken out a bag containing nineteen dummy phones, one booklet of Nokia 3105 alongwith other documents which were taken into custody by the police. It is further alleged that on 25.12.2004 accused Dinesh Kumar made a supplementary disclosure statement and at his instance five mobile phones were recovered from his house at village Budhpur, Distt. Baghpat. On 18.3.2005 the complainant Sanjeev Malhotra told the investigating officer that wife of accused SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 3 of 3 Dinesh Kumar extended threats to Navneet Kaur pursuant to which DD No. 12A was also recorded. The Test Identification Parade (TIP) proceedings of the accused persons were also conducted wherein Sandeep was duly identified whereas the other accused refused to participate in the same. The case property recovered from the accused persons was deposited in the Malkhana and the weapons recovered during investigation were sent to the FSL for examination and also the sanction under Section 39 of Arms Act was obtained.
CHARGE:
On the basis of the aforesaid allegations, Ld. Predecessor of this court framed charges under Section 392/411 r/w Sec. 414 IPC against the accused Dinesh Kumar @ Dinu; charge under Section 392/411 IPC and under Section 25 Arms Act, against the accused Rajeev; charge under Section 392 IPC and under Section 25 Arms Act against the accused Sandeep Kumar; and charge under Section 392/397/34 IPC and under Section 25 r/w Section 27/54/59 Arms Act, against the accused Praveen. All the accused persons pleaded not guilty and claimed trial.
EVIDENCE:
The prosecution in oder to discharge the onus has examined as many as twenty witnesses.
Public / Eye Witnesses:
PW1 Parmod Kumar has deposed that he was employed in mobile Shop No. 140, MCD Market Karol Bagh, under the name of M/s Balaji Communications and the owner is Neeraj Sachdeva. He has further stated that it was the month of April or May 2004, which date he does not remember when at about 4-5 pm he alongwith his employer SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 4 of 4 Neeraj Sachdeva were present in the shop, and accused Dinesh came to the shop to sell his mobile phone of Nokia on which Neeraj told Dinesh the price of that mobile to be Rs.4000/- / Rs.3500/-. He further deposed that they obtained the copy of driving license of accused Dinesh for identity. PW1 has proved on record the receipt (sale letter) is Ex.P1, copy of driving license is Ex.P2, the receipt book is Ex.P3 and the relevant original receipt no. 335 is Ex.P4, and correctly identified the same in the court.
PW3 Navneet Kaur has deposed that about two years earlier in December, 05 she was working in Mobile India, Punjabi Bagh, New Delhi as a Sales Executive and one Sanjeev Kumar was also present when at about 3:30 pm, a customer came and asked her the price of Nokia 1100 handset. She told him the price, but in the meantime another person followed the first person and soon one more person came. According to PW3 one of those boys stood by her side and took out a gun and directed her to get up and go inside the showroom on which she raised an alarm and went to her senior Sanjeev Kumar alongwith the person who had pointing a gun at her and one of them stayed in the front portion of the shop. She has further deposed that two persons who had followed her inside the show room tied her and Sanjeev Kumar with a rope and also tied their mouths with handkerchiefs. According to PW3 the accused persons also removed all the belongings of her as well as Sanjeev Kumar including her gold chain and mobile and gold chain, purse of Sanjeev Kumar. She has further deposed that after the accused persons left the shop, they opened the bondings of each other and noticed that all handsets and cash had been looted away and thereafter Sanjeev Kumar called the police and police came and seized the ropes, handkerchiefs etc. vide memo Ex.PW3/A. She has stated that she cannot identify any of the SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 5 of 5 accused persons and cannot say if the person whom she had identified during TIP proceedings Ex.PW3/B, is present in the court. She has identified one handkerchief Ex.P1 and four pieces of Nylon ropes Ex.P2 to P5. Ld. APP with the permission of the court also cross examined this witness as she was resiling from her previous statement with regards to the identity of the accused persons, but even then this witness has not identified any of the accused persons before the court. The witness has however admitted the TIP proceedings Ex.PW3/B. PW4 Gaurav Kakkar has deposed that he had purchased one Nokia 6610 mobile from New Era Communications, Sant Nagar, Rani Bagh, Delhi but during its usage he faced certain problems with the same and went to the Nokia Priority Showroom i.e. Mobile India, Club Road, Punjabi Bagh, New Delhi, on 4.12.2004 for rectification of the said problem. According to this witness he was asked to come on next day alongwith the cash memo and on 5.12.2004 the next day when he went to that shop he came to know that there had been robbery in the shop in the previous night and his handset alongwith several others had been stolen. He has proved having handed over his cash memo Ex.PW4/A to Sanjeev Kumar the owner of the showroom.
PW5 Neeraj Sachdeva has deposed that on 10.12.2004 he was working at Shop No. 140, MCD Market Karol Bagh and his colleague Pramod Kumar was also present there. According to PW5 one person came to them to sell his phone Nokia 6610 for which he offered him Rs.4500/-, to which that person agreed and thereafter photocopy of driving license of Dinesh Kumar was obtained as identity proof. Thereafter his colleague Pramod Kumar filled up the receipt no. 335 which was signed by the Dinesh and Rs.4500 were handed over to him. Thereafter PW 5 handed over the original receipt book to SI Jarnail Singh who sealed the same and taken into possession vide SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 6 of 6 memo Ex.PW5/A. This witness has also correctly identified the receipt no. 335 as Ex. P4 and the copy of driving license as Ex. P5. According to PW5 the said mobile phone was further sold by them to a customer whose record they do not have.
PW10 Sanjeev Kumar is the owner of the shop where the robbery was committed. He has deposed that on 5.12.04 at about 3.30pm he alongwith Ms. Navneet Kaur were present at the shop. According to PW10 Sanjeev Kumar, one person entered the shop followed by two others on which Navneet Kaur raised an alarm and on hearing the same he rushed out from his cabin and saw three persons inside the shop and a forth person outside the shop. He has deposed that all three persons were armed with country made firearms and were carrying bags and the ropes. According to him two of those persons took him and Navneet Kaur inside the cabin and threatened them and asked them about the location of cash and also tied him and Navneet Kaur with ropes. He has specifically pointed out towards the accused Rajeev and Praveen as the persons who had pushed him and Navneet Kaur in the cabin and also stated that accused Rajeev had handed over his firearms to accused Praveen and accused Praveen had pointed both the firearms at him and Navneet Kaur and when Rajeev tied them with ropes. This witness also identified accused Sandeep as the third person who had intruded in the shop and was transferring the mobile phones in the bag brought by them. The witness also identified the accused Dinesh as the person who was standing outside the shop and guarded his co-accused so that no other person could enter the shop. According to this PW accused Sandeep asked the accused who were inside the cabin if they had found any cash and then the accused persons had filled up their bags with the mobile phones and while leaving the spot they snatched his gold chain SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 7 of 7 and purse which contained a gold locket of Mata Vaishno Devi, pan card, credit cards and some cash and also snatched one gold chain of Navneet Kaur. According to the witness while the accused had left the shop they tied handkerchiefs on his face and face of Navneet Kaur. According to the witness the accused lifted Navneet Kaur and made her sit on the photocopying machine and he was thrown behind the computer table. He further deposed that somehow they managed to untie each other and then made a call at 100 number and police came. On checking the stock, he found about 50 hand sets of mobiles phones of Nokia of various models were missing, about 40 to 50 dummy hand sets were also missing, cash amount to Rs.90,000/- which was kept in drawer had also been taken away by the accused.
According to PW10 his statement Ex.PW10/A was recorded by the police and also seized the ropes and handkerchief vide memo Ex.PW3/A. PW10 also handed over the list of mobile phones with detailed model number to the IO and the IO seized the same vide memo Ex.PW10/C. He also handed over to the IO the bills / original bills of mobile phones and the IO seized the same vide Ex.PW10/D and Ex.PW10/E, respectively.
The witness also correctly identified the case property i.e. ropes Ex.P2 to P5; handkerchiefs Ex.P5 and P6; handsets Ex.P7 to P11, P12 and P13; dummy handsets Ex.X1 to X19; user guide of Nokia 3105 Ex.P20; cheque Ex.X21; settlement slip printed by credit machine bearing the name of Mobile India dated 2.12.04 Ex.X22, slip issued by Bank of India reflecting the receipt of amount of Rs.66,000/- deposited by Mobile India Ex.X23; the firearm Ex.F1 and F2.
In his cross examination PW10 has again reiterated that he is running shop namely Mobile India at 23, NWA, Club Road, Punjabi Bagh West, Delhi and also submits that he has an agency of Nokia SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 8 of 8 company for repair and sale of mobile phones. He has admitted that he did not handover any policy document to show that he has been granted any agency by Nokia. According to this witness his shop was insured with New India Company but he did not pursue the insurance. He has further admitted that he did not maintain any duty roster of his employees. He has stated that his father used to remain at the shop till 12.00 noon and not for entire day. He also admitted that one other girl by the name of Anu also worked at his shop during the period of occurrence. This witness has stated that he cannot recollect whether the ropes untied first were that of Navneet Kaur. He has stated that they did not raise any alarm by coming outside the shop and states that only he made a call to the police. He further stated that the incident lasted for about 15 to 20 minutes. In his cross examination the witness has stated that he sustained signs of chain being snatched from his neck which he had shown to the IO but was not medically examined as the injuries were minor. He is however unable to tell if Navneet Kaur had also received any injuries but admits that she was also not medically examined. He admits that he did not furnish to the IO any invoice for purchase of gold chain and the gold locket of Mata Vaishno Devi which was inside his purse which was removed by the accused persons. In his further cross examination PW10 also stated that he does not know who had called the police team at the spot. He remained at the police station for about two hours and only police team and Navneet Kaur was with him when he went to the police station.
Expert Evidence:
PW17 K. C. Varshney, Asstt. Director, FSL, has deposed that on 17.1.2005, three sealed parcels were received in the laboratory containing country made pistol of .12 bore and one cartridge of .12 bore which were marked Ex.F1 and A1 and another country made SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 9 of 9 pistol of .12 bore and one cartridge of .12 bore marked as F2 and A2 and another country made pistol of .315 inch bore which was marked as Ex.P3. According to the expert witness on examination of the aforesaid exhibits he gave his detailed report Ex.PW17/A and opined that the country made pistol Ex.F1 to Ex.F3 were in working condition and test fire was conducted successfully and the cartridges marked A1 and A2 were also test fired through pistol Ex.F1 and Ex.F2. He further opined that the pistol Ex.F1 to Ex.F3 were fire arms and cartridges A1 and A2 were ammunition as defined in the Arms Act.
Police / Official Witnesses:
PW2 ASI Sabbir Hussain was the duty officer on 5.12.2004 and has deposed regarding having received the rukka at 5.25pm through Ct. Ram Niwas sent by ASI Jarnail Singh on the basis of which FIR No. 1062/04 which is Ex.PW2/A was registered by him.
PW2 also made his endorsement on the rukka and the same is Ex.PW2/B. PW6 Ms. Barkha Gupta, MM, has carried out the TIP of accused Sandeep and Parveen on 4.1.2005. The TIP proceedings of accused Sandeep Kumar is Ex.P3/B. According to PW6 accused Sandeep was identified by Navneet Kaur. The certificate of correctness of the TIP proceedings is Ex.PW3/C. Further, on 4.1.2005 PW5 has conducted the TIP of accused Parveen Ex.PW6/A but the accused refused to join the TIP respite warning. The certificate of correctness of the proceedings is Ex.PW6/B and the copy of proceedings were supplied to the IO vide his application Ex.PW6/C. PW7 Ms. Archana Sinha, MM, has deposed that on 19.12.2004 an application Ex.PW7/A was assigned to her for SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 10 of 10 conducting the TIP of accused Dinesh and Rajeev and the TIP was fixed for 21.12.2004. On 21.12.2004 the TIP proceedings of accused Dinesh and Rajeev were conducted but both the accused had refused to participate in TIP. The said proceedings are Ex.PW7/B, Ex.PW7/C and the order for supplying the copy to the IO is Ex.PW7/D. PW8 HC Jaivir Singh has deposed that on 5.12.2004 he was posted as photographer with the Crime Team (West) and reached at the spot of occurrence alongwith the crime team lifted 12 chance prints and also took photographs of those chance prints and sent to the Finder Prints Bureau, Malviya Nagar. This witness in his cross examination has stated that he does not remember the date when the photographs were sent for examination. He has further deposed that the Incharge Crime Team received the wireless message at about 4.30 pm and left office immediately for the spot and reached at the spot within 15 minutes in vehicle Tata 407 bearing no. DL-1LE 3698. According to PW8 prints Q1 to Q9 were lifted from the glass pane of showcase an Q10 to Q11 from the mobile phone cartoon and Q12 from the other showcase. He further deposed that the crime team left the office at about 6 pm. PW9 HC Vijay Pathania has deposed that he was the member of crime team and visited the spot and lifted the 12 chance prints from the spot which were got photographed by Ct. Jaivir. He has proved his report Ex.PW9/A which was prepared by him at the spot. According to the PW9 the wireless message was received by Incharge Crime Team at about 3.30 to 4pm and reached at the spot at about 4.45 pm. He further stated that the crime team remained at the spot for about 1 ½ hours.
PW11 Ct. Davinder Singh has deposed that on 17.1.2005, he collected the FSL form and three sealed parcels from the MHC(M) SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 11 of 11 and deposited the same in FSL Rohini vide RC No. 6/21/05 and during the period the parcels remained with him nothing was tempered.
PW12 HC Suresh Chander, has deposed that on 5.12.04 he was posted as MHC(M) at PS Punjabi Bagh when SI Jarnail Singh had deposited two sealed parcels with the seal of JS. Again, on 18.12.2004, SI Jarnail Singh had also deposited one receipt book and one sealed parcel alongwith sample seal and one mobile phone which was not sealed in the Malkhana. Thereafter, on 22.12.2004, SI Jarnail Singh had also deposited two sealed parcels alongwith sample seal. On 23.12.04 SI Jarnail Singh had deposited one sealed parcel of dummy phone duly sealed. Thereafter on 25.12.2004, five mobile phones dully sealed with the seal of JS were also deposited in the Malkhana by SI Jarnail Singh. PW12 further deposed that on 17.1.05 vide RC No. 6/21 three parcels of dessi katta were sent in FSL Rohini through Ct. Davinder which was entered by him in the register no. 19 vide Ex.PW12/A (Colly.) and photocopy of register no. 21 is Ex.PW12/B. PW13 HC Raj Singh, has deposed that on 5.12.2004, he was working as DO and at about 3.55pm on receipt of information via wireless operator, he recorded the DD No. 12A copy of which is Ex.PW13/A. PW14 Inspt. Ishwar Singh has deposed on 18.12.2004 he had joined the investigating team of the present case with other police officials. According to this witness an information was received that two young boys possessing new stolen mobile phones are likely to visit the area of Paschim Vihar market for selling the same and will come from Madipur crossing. Thereafter the police party took their respective position and on pointing of the secret informer apprehended those two persons who were carrying polythene bags containing one new mobile phone each and on interrogation their names were revealed SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 12 of 12 as Rajeev and Dinesh. That accused Rajeev was apprehended by Ct. Ramesh and SI Jarnail Singh and accused Dinesh was apprehended by PW14 himself and Ct. Devender. On search of accused Rajeev one country made loaded revolver of .12 bore with live cartridge was recovered and were taken into possession and sealed with the seal of JA and seized vide Ex. PW14/A; the sketch of katta is Ex.PW14/B; the mobile phones were seized vide memos Ex.PW14/C and Ex.PW10/D. Statement of accused Dinesh @ Dinu was recovered vide Ex.PW14/E and of Rajeev vide memo Ex.PW14/F. According to PW14 the accused persons Dinesh and Rajeev were arrested vide memos Ex.PW14/G and Ex.PW14/H and their personal search was conducted vide memos Ex.PW14/I and Ex.PW14/J respectively. According the PW14 accused Dinesh led the police party to shop no. 140 and pointing out memo Ex.PW14/K was prepared and the receipt book alongwith photocopy of driving license were seized vide memo Ex.PW5/A. Also, a separate pointing out memos at the instance of both the accused were prepared vide Ex.PW14/L and Ex.PW14/M. According to PW14 on 22.12.2004 he again joined the investigation of this case as the IO had received an information that the remaining two accused of this case are visiting Delhi from U.P. and cane be apprehended and the police party reached at IN gate of ISBT Kashmere Gate and on pointing of the informer apprehended the accused Praveen and Sandeep and after interrogation they were arrested vide memos Ex.PW14/N and Ex.PW14/O and their personal search was conducted vide memos Ex.PW14/P and Ex.PW14/Q and their disclosure statements were recorded vide memos Ex.PW14/R & Ex.PW14/S respectively. According to this witness accused Sandeep also got recovered a loaded country made pistol and its cartridge was taken out and sketch were prepared vide memo Ex.PW14/T and seized vide memo Ex.PW14/U. SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 13 of 13 PW14 further deposed that accused Praveen also got recovered a country made pistol (unloaded) which was measured and its sketch was prepared vide memo Ex.PW14/V and was seized vide memo Ex.PW14/W and the pointing out memos of the place of occurrence were prepared at the instance of Praveen and Sandeep which are Ex.PW14/X and Ex.PW14/Y. That both accused Praveen and Sandeep also got recovered the raxine bag of black colour containing 19 dummy mobile phones with stickers of Mobile India Shop and some documents, which were seized by the IO vide memo Ex.PW14/Z. PW14 has identified the accused persons and the case property correctly in the court.
PW15 SI Lakhan Singh, has deposed that on 5.12.2004 on the receipt of DD No. 12A i.e. Ex.PW13/A, he alongwith Ct. Ram Niwas reached at the spot and met complainant Sanjeev Kumar who lodged the complaint Ex.PW10/A. PW15 also made endorsement Ex.PW15/A on the complaint and got the case registered and thereafter the investigation was handed over to SI Jarnail Singh.
PW16 HC Ram Niwas has stated that on 5.12.05 he was on emergency duty and on receipt of a call, he accompanied SI Lakhan Singh to the spot where they met complainant Sanjeev Kumar who lodged the complainant in the present case. He thereafter went to the PS and got the case registered and again back to the spot alongwith the copy of FIR and original rukka and handed over the same to the SI Jarnail Singh and thereafter left the spot.
PW18 Ct. Ramesh Chand has deposed that on 18.12.2004 he joined the investigation alognwith SI Jarnail Singh and were prsent at Madipur crossing alongwith SI Ishwar Singh and Ct. Davinder pursuant to the secret information and thereafter two accused persons came and were apprehended on the pointing out of the secret informer.
SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 14 of 14According to PW18 accused Rajeev was apprehended by him and accused Dinesh was apprehended by SI Ishwar Singh. According to this witness on 25.12.04 accused Dinesh also got recovered five mobile phones which were seized by the IO vide memo Ex.PW18/A. This witness has corroborated the testimony of PW14 Inspt. Ishwar Singh.
PW19 R. S. Yadav has deposed that on 16.5.2005 he was posted as Addl. Deputy Commissioner of Police-I, West District and after perusing the necessary statements and the ballistic report of FSL, had granted Sanction vide Ex.PW19/A to prosecute accused Rajeev, Sandeep, Praveen u/s 39 Arms Act.
PW20 Inspt. Jarnail Singh is the investigating officer in this case. He has deposed that on 5.12.04 when he was posted as SI in PS Punjabi Bagh he came to know that a robbery had been committed at 23, North West Avenue Road, Punjabi Bagh in the shop of Nokia Mobile Phone, when he reached the spot, he met SI Lakhan Singh. According to the IO PW10 the Crime Team was already present at the spot and after sometime Ct. Ram Niwas reached at the spot and handed over to the IO the copy of FIR and original rukka. Thereafter he inspected the spot and prepared the rough site plan Ex.PW10/DB on the pointing out of Navneet Kaur. Pieces of rope and handkerchiefs were also taken into possession vide memo Ex.PW3/A and collected the report of crime team. Thereafter he recorded the statement of witnesses and on returning back to the PS deposited the case property in the Malkhana. IO also seized the list of mobile phones vide memo Ex.PW10/C and the bills vide memo Ex.PW10/D. On 18.12.04 on receipt of secret information accused Rajeev and Dinesh were apprehended from Madipur Crossing by a police team, their personal search was conducted and a loaded country made pistol was recovered from the possession of accused Rajeev sketch of which is Ex.PW14/B SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 15 of 15 and the cartridge and the pistol were taken into possession vide memo Ex.PW14/A, the mobile phones recovered from accused Rajeev were seized vide memo Ex.PW14/C and for accused Dinesh vide memo Ex.PW14/D. The personal search memo of accused Rajeev is Ex.PW14/F, his disclosure statement is Ex.PW14/J and he was arrested vide memo Ex.PW14/H. Disclosure statement of accused Dinesh is Ex.PW14/E, his personal search memo is Ex.PW14/I and he was arrested vide memo Ex.PW14/G. According to the investigating officer i.e. PW20 photocopy of receipt book Ex.P1 and driving license of accused Dinesh Ex.P2 was seized vide memo Ex.PW5/A. Pointing out memo of the shop was prepared vide memo Ex.PW14/K. Pointing out memo of the place of occurrence prepared at the instance of the accused Dinesh and Rajeev are Ex.PW14/L and Ex.PW14/M. Thereafter on 21.12.2004 the accused Dinesh and Rajeev were produced before Ld. MM for TIP but both of them refused to participate in the same.
According to the PW20 on 22.12.2004 he again received secret information about the two remaining accused persons and alongwith a police party reached at the ISBT Kashmere Gate and apprehended the accused Sandeep and Praveen and they were formally arrested in this case. It is further deposed that accused Sandeep was personally searched vide memo Ex.PW14/Q, his disclosure statement was recorded vide memo Ex.PW14/S and he was arrested vide memo Ex.PW14/O. The disclosure statement of accused Praveen was prepared vide memo Ex.PW14/R, and he was personally searched vide memo Ex.PW14/P and thereafter he was arrested vide memo Ex.PW14/N. According to the witness accused Sandeep disclosed that most of the mobile phones were dummy which he had concealed in the SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 16 of 16 agricultural fields on the way to his village Budhpur and the weapon of offence have been concealed near the railway crossing of cement siding, Shakurpur. Later they got recovered the a country made pistol sketch of which was prepared vide memo Ex.PW14/T and the same were seized vide Ex.PW14/U. Similarly accused Praveen led them to the Eucalyptus tree and dug out a polythene bag which contained a country made pistol. A sketch was prepared, the same is Ex. PW14/V which bears his signature at point C. It was kept in a cloth pullinda and sealed with the seal of JS and seized vide memo Ex. PW14/W bearing his signature at point A. Both the accused persons Praveen and Sandeep pointed out the place of occurrence i.e. Shop no. 23, NWA, Punjabi Bagh, New Delhi. Pointing out memo by accused Praveen is Ex. PW14/X and by accused Sandeep is Ex. PW14/Y. According to the IO both the accused persons were got medically examined and put up in the lock up and case property was deposited in the malkhana. On 23.12.2004 the same Investigation Team was reconstituted and accused persons led them towards village Budpur. A few kilometers short of village Bhudpur, accused persons pointed out towards of Sugercane field in the right side of the road and stated that the Dummy mobile phones had been concealed in the abovesaid field. Both the accused persons i.e. Sandeep and Praveen thereafter pointed out a bag which was concealed under the foliage of sugercanes in the fields and produced the same. On checking, it was found to contained 19 dummy mobile phones and several documents pertaining to the shop of Mobile India, North West Avenue, Punjabi Bagh. The bag with its contents was kept in a cloth pullanda and sealed with the seal of JS and seized vide memo Ex. PW14/Z. Thereafter, they returned to Delhi and produced the accused persons in the Court of Ld. MM, Tis Hazari Courts, Delhi and sought judicial custody and SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 17 of 17 made a request for TIP. On 25.12.2004 when the IO took the accused Dinesh and Rajeev in police custody, the accused Dinesh made a further disclosure statement that some mobile phones had been concealed by him in the Kothra of Wheat straw in his village Bhudpur which disclosure was recorded in the morning hours which disclosure statement is Ex.PW20/B. Accused Dinesh @ Dinu then led them to his village Bhudpur, district-Bagpat and got recovered five mobile phones from the room of his house which contained Wheat straw the same were seized after keeping the same in a cloth pullanda sealed with the seal of JS. Pointing out memo and recovery memo was jointly prepared and the same is Ex.PW18/A, bearing his signature at point B. Both the abovesaid accused persons were put to TIP on 05.01.2005. Accused Sandeep was identified by PW Navneet Kaur, where as the accused Naveen refused to join the TIP.
PW20 has further deposed that when he had taken the PC remand of accused Dinesh and Rajeev, complainant Sanjeev and Navneet Kaur visited him by chance to inquire about the progress in investigation and finding the abovesaid accused persons in the police station, both of them identified the abovesaid accused persons. On 05.01.2005 when he had taken police remand of accused Sandeep and Praveen again Sanjeev and Navneet Kaur happened to visit the police station and identified the accused persons.
According to the investigating officer, PW20 when had taken police remand of accused Sandeep and Praveen on 5.10.2005, Sanjeev and Navneet Kaur happened to visit the police station and identified the accused persons. He also recorded the statements of various witnesses at various stages and date. On 17.01.2005 he sent the exhibits to FSL, Delhi for analysis. On 18.03.2005 he received a telephone call from complainant Sanjeev Malhotra from his mobile phone bearing number 9899899400 that one Surekha wife of Accused SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 18 of 18 Dinesh had visited the house of witness Navneet Kaur and threatened her that she should not identify accused Dinesh in the Court. On this he called up Navneet Kaur, who was at her house and reveled to him that Surekha W/O accused Dinesh had come to her house and extended a threat. Navneet Kaur was weeping and seemed to be scared. He counselled Navneet Kaur on the phone itself and assured that she will not be harassed further. He then called up the house of accused Dinesh in village Bhudpur, the call was attended by his sister Sonia, who told him that Surekha had gone to Delhi. He got recorded DD No.12A, dated 18.03.2005 to this effect. Copy of the DD entry is marked as Mark A. He can identify the case property if shown to him.
The witness had correctly identified the case property i.e rope Ex.P-2 to Ex.P-5, two handkerchief Ex.P-1 and Ex.P-6, five handsets of mobile phones of make Nokia Ex.P7 to P-11, One mobile phone of make Nokia 2112 along with charger and a booklet Ex.P-13, one mobile phone Nokia 2112 alongwith charger and a booklet Ex.P12, 19 dummy handsets of Nokia Ex.X-1 to X-19, a user guide book Ex.X-20, A cheque in the name of Mobile India dated 02.12.2004 Ex.X-22, slip issued by Bank of India reflecting receipt of amount of Rs. 66,000/- deposited by Mobile India Shop is Ex.X-23, a country made firearm Ex. F1, test fired cartridge Ex. C1, another country made firearm Ex. F2, one white and purple colour polythene Ex. B-1, one country made pistol Ex. F3 and a test fire cartridge Ex.C2, receipt book bearing name M/S Sahai Communication Ex.P-4, and photocopy of DL of Dinesh attached with the receipt is Ex.P-5. He had also brought the relevant DD register containing DD no. 12A, dated 18.03.2005, police station, Punjabi Bagh. Photocopy of the same is Ex.PW20/C. He had recorded the statement of the witnesses and also recorded disclosure statement of accused Sandeep Kumar Ex.PW20/D bearing SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 19 of 19 his signature at point A. PW20-Inspector Jarnail Singh has deposed in his cross examination that he was posted in PS Punjabi Bagh from Sept. 2004 to January 2006. He remained posted in the West District from the year 2002 to 17.12.2007. He received information on wireless, as well as, on his mobile phone regarding the commission of offence. He does not remember the exact time when he received the information. He had reached at the spot prior to reaching of the official, who was carrying the rukka to the PS for registration of FIR. He reached at the spot before 7.00 pm, but does not remember the exact time. At the time of the information pertaining to the occurrence he was on Petrolling duty in the area of PS Punjabi Bagh. He has deposed that he does not remember about the exact location of his presence but he could not rush immediately at the spot as he was busy in some other case, as well as, he was not directed to take over the investigation of the case at that time. According to PW20 the Site plan Ex. PW10/DB was prepared in the presence of PW Navneet Kaur and it was visible to her when it was being prepared. Navneet Kaur had verified the site plan to be correct as she was noticing the same when he was drawing it. According to the IO, on 18.12.2004 they left the police station and were near the petrol pump when they met the secret informer at 2.00 pm. From the Petrol pump they started for Madipur. They did not return to the PS for making any departure entry as they had already made an entry of departure for an investigation. They reached at Madipur crossing in about 10-15 minutes by foot. At the Madipur crossing he and informer alongwith a Ct. were present on the right hand side of the road i.e. towards Punjabi Bagh and the remaining police officials were present at the left hand side road. In the cross examination the IO has also stated that the accused persons reached about 15 minutes after they had reached the crossing. He has admitted that prior to 18.12.2004 at 2.00 SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 20 of 20 pm they had no information about the where abouts of accused Dinesh. The IO has admitted that the card board boxes from which the mobile phones were recovered were not sent for finger print examination but has denied the suggestions that the card board boxes were not sent for finger print examination as the recoveries were not effected from accused Dinesh. He has further stated that the mobile phone which the accused Dinesh had allegedly sold to Neeraj Sachdeva could not be recovered as the record of the buyer was not maintained by Neeraj Sachdeva. He has denied the suggestion that Dinesh did not make any disclosure statement regarding sale of phone to Neeraj Sachdeva.
STATEMENT OF ACCUSED AND DEFENCE EVIDENCE:
All the accused persons were examined U/S 313 of Cr. PC and all the incriminating material and evidence against them has been put to them and all of them had refused all the evidence put to them and submitted that they are innocent persons and have been falsely implicated in this case by the police in connivance with the complainant. The accused persons also led evidence in their defence and examined five witnesses.
DW1 Udai Vir Singh is the father of the accused Dinesh who has deposed that on 17.12.2004 at about 6:00 pm Delhi Police came at their house at village Budhpur and asked about his son Dinesh. According to him, on asking they told him that Dinesh had beaten their officer's son after which they took Dinesh with them to Delhi. He has deposed that one of the officer was Devender Singh which was apparent from his number plate.
In his cross-examination the witness has deposed that he had not made any complaint to the senior officers of the police nor to the court regarding lifting of his son. He has also admitted that he is having a telephone at his house and he did not made any call at 100 SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 21 of 21 number regarding lifting of his son.
DW2 Om Pal Singh is the father of accused Rajeev who has similarly deposed that on 17.12.2004 at about 5:00 am some persons in civil dress came at his house at village Budhpur and picked up his son Rajiv and did not disclose him anything. According to him, thereafter he came to PS Punjabi Bagh and found that his son was falsely implicated in the present case.
In his cross-examination the witness has deposed that he had not made any complaint to the senior officers of the police nor to the court regarding lifting of his son. He has also admitted that he is having a telephone at his house and he did not made any call at 100 number regarding lifting of his son.
DW3 Pradeep is the brother of accused Sandeep who has deposed that on 21/22.12.2004 at about 11 pm his brother Sandeep was lifted from his house by some police officials.
DW4 Chandveer is the father of accused Praveen who has similarly deposed that his son was lifted by the police on the intervening night of 21/22.12.2004 at about 11:30 pm. The accused persons have summoned the GD Register from PS Ramala, Baghpat, U.P. pursuant to which ASI Bir Singh has appeared and has been examined as DW5 who has deposed that as per the GD Register there is an entry regarding the arrival of Delhi Police officials of PS Punjabi Bagh at PS Ramla for making raid at village Budhpur and entry in this regard has been made at GD No. 40 dated 17.12.2004 at 9:30 pm, copy of which is Ex.DW5/A. According to the witness, there is one more entry dated 18.12.2004 regarding the arrival of Ct. Ganga Ram of PS Ramla from the raid with Delhi Police, after raiding at the residence of Devender S/o Udaivir Singh at village Budhpur. The entry in this regard is made at GD No.3 dated SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 22 of 22 18.12.2004 at 2:30 am, copy of which is Ex.DW5/B. FINDINGS:
I have considered the exhaustive written synopsis of arguments filed by the counsel for the accused persons and also the material placed on record. The prosecution has examined as many as twenty witnesses to discharge the onus upon it. The accused persons have also examined five witnesses in their defence.
Firstly, the allegations against all the accused are that of having committed theft / robbery of 23 mobile phones, several dummy phones an amount of Rs.80,000 to 90,000/-, on 5.12.2004 from Shop No. 23, NWA Club Road, Punjabi Bagh in the name of 'Mobile India' alongwith gold chain belonging to the Sanjeev Kumar and Navneet Kaur and also purse of Sanjeev Kumar. According to the prosecution the accused persons have also extended threats to Sanjeev Kumar and his assistant Navneet Kaur with pistols and also restrained them by pushing them inside the cabin and tied them with the ropes to facilitate the commission of robbery and thereafter escaped from the spot.
Secondly, in so far as the identity of the accused persons is concerned, it is evident that all the relevant witnesses including the complainant and employees of the shop who were present at the time of incident i.e. PW1 Pramod Kumar and PW3 Navneet Kaur, have turned hostile before the court on the point of identity of the accused persons. PW3 Navneet Kaur is the only witness who had identified the accused Sandeep during the TIP proceedings conducted by Ld. MM and which proceedings have been duly proved in accordance with law, however before the court PW3 Navneet Kaur has failed to identify the same accused Sandeep whom she had earlier identified in Test Identification Parade proceedings. Even though the said witness has not been able to identify the said accused in the court yet Sandeep has been duly SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 23 of 23 identified by PW10 Sanjeev Kumar. In so far as the other three accused namely Dinesh Kumar, Praveen and Rajeev, are concerned, they have refused to participate in the Test Identification Parade proceedings on the ground that they had already been shown to the witnesses by the police.
The investigating officer PW20 has proved the DD No. 12A dated 18.5.2005 regarding extending of threats to PW3 Navneet Kaur by one Surekha wife of Dinesh @ Denu which DD is Ex.PW20/C to which there is no rebuttal. This explaining the reasons for non- identifications of the accused by the Navneet Kaur a young employee.
Thirdly PW10 Sanjeev Kumar during his examination in the court has identified all the accused persons namely Dinesh Kumar @ Dinu, Rajeev, Sandeep and Parveen. He has specifically attributed the roles performed by each one of them. According to PW10 Sanjeev Kumar, the accused Rajeev was the person who had pushed him and the accused Praveen as the person who had pushed Ms. Navneet Kaur in the cabin. He has identified the accused Rajeev as the person who handed over his firearms to accused Praveen who in turn had pointed both the firearms at him and Navneet Kaur after which accused Rajeev tied them with ropes. PW10 has further identified the accused Sandeep in the court as the person who had intruded in the shop and was transferring the mobile phones in the bag brought by them. According to PW10, the accused Dinesh Kumar was standing outside the shop and was guarding his co-accused persons so that no other person could enter the shop. PW10 has testified that while leaving the spot, the accused had snatched his gold chain which he was wearing and his purse containing a gold locket of Mata Vaishno Devi, pan card, credit cards and some cash and they also snatched the gold chain of Navneet Kaur which she was wearing and thereafter, tied handkerchief SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 24 of 24 on their mouth while leaving.
Fourthly, PW5 Neeraj Sachdeva has duly identified the accused Dinesh as the boy who had sold Nokia 6610 having IMEI No. 351350404912887, which mobile had been stolen from the shop of PW10 Sanjeev Kumar after it was left at his shop for repairs by PW9 Gaurav Kakkar. PW4 Gaurav Kakkar has proved that on 7.11.2004 he had purchased one Nokia 6610 mobile from 'New Era Communication' and as there was some problem in its use, due to which reason he went to the shop 'Mobile India' at Club Road, Punjabi Bagh, which is a Nokia priority showroom, for getting the problem rectified on 4.12.2004 but he was asked by the showroom operator to come on the next day. PW4 has deposed that on 5.12.2004 when he again visited the said showroom in the evening and was told that there had been robbery in the shop on the previous night, when his handset alongwith several others handsets had been stolen.
Fifthly, there is recovery of one mobile phone bearing ESN No. 04406159968 from the accused Dinesh @ Dinu which mobile phone was robbed from the shop/ showroom of Sanjeev Kumar. There is also a recovery of five mobile phones at the instance of accused Dinesh all of whom were stolen from the shop of PW10 which have been duly proved. The pointing out and the seizure memos have also been duly proved in accordance with law and the mobile phones so recovered were also produced in the court and duly identified by PW10 Sanjeev Kumar to be those which have been stolen from the showroom. The details of these mobile phones find a mention in the list provided by the complainant Sanjeev Kumar to the investigating officer which has been duly proved by him as Ex.PW10/C. Therefore, the recovery of the stolen property i.e. mobile phones from the accused Dinesh Kumar stand proved.
SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 25 of 25Sixthly, in so far as the accused Parveen is concerned, he has been duly identified by PW10 Sanjeev Kumar in the court. Further, there has been recovery of dummy phones at his instance. All these dummy phones are bearing stickers of the shop of PW10 and have been identified by the witness as those which were stolen from his shop. These dummy phones are always issued by the company and are not freely available in the market and hence there is no reason to doubt the recovery.
Seventhly, the prosecution has duly proved the recovery of one mobile phone bearing ESN No. 04406159911 from the possession of accused Rajeev which mobile was stolen from the shop of PW10 Sanjeev Kumar. The details of the said mobile phone including the ESN No. find a mention in the list provided by Sanjeev Kumar to the investigating officer which has been duly proved as Ex.PW10/C. Therefore, it is evident that the prosecution has proved the recovery of mobile phones having the same IMEI/ ESN numbers as those stolen from the shop of PW10 Sanjeev Kumar as mentioned by him in the list given to the investigating officer which list is Ex.PW10/C. The said mobile phones make NOKIA 2112 were seized vide memo ExPW14/C & Ex.PW14/D. Eighthly, pursuant to the arrest of accused Sandeep and Parveen dummy mobile phones which were robbed from the shop of PW10, have been recovered from them. The recovery of 19 dummy mobile phones has been proved by the various police witnesses which were seized vide memo Ex.PW14/Z. The accused Dinesh has also got recovered 5 mobile phones from the room of his house at village Bhudpur, District Baghpat, U.P. which memo is Ex.PW18/A. Ninethly, at the time of arrest the accused Sandeep and Rajeev got recovered one loaded country made pistol each and accused SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 26 of 26 Praveen also got recovered one country made pistol and recovery of the pistols have been duly proved by the witnesses of the prosecution whose seizure memos are Ex.PW14/U, PW14/A & Ex.PW14/W respectively and also vide the ballistic report Ex.PW17/A which has been duly proved by Sh. K. C. Varshney stating that the said weapons were fire arms as contemplated under the Arms Act. PW19 Addl. DCP has proved the sanction under Section 39 Arms Act.
Lastly, it is evident from the testimony of the investigating officer that the witness Ms. Navneet Kaur had been threatened by the wife of one of the accused and in this regard the investigating officer has placed on record the DD No. 12-A dated 18.3.2005. He has proved that one Surekha wife of accused Dinesh @ Dinu had gone to the house of the witness Navneet Kaur and asked her not to identify the accused Dinesh @ Dinu.
In view of the aforesaid discussions, I hereby hold the accused Dinesh Kumar @ Dina guilty of the offence under Section 392/ 411 Indian Penal Code and convict him accordingly.
Further, the accused Rajeev and Sandeep are hereby held guilty of the offence under Section 392/411 Indian Penal Code and Section 25/54/59 of Arms Act and convicted accordingly. Also, I hold the accused Parveen guilty of the offence under Section 392/397/411 Indian Penal Code and Section 25/54/59 of Arms Act and convicted them accordingly.
Be listed for arguments on the point of sentence on 7.7.2010.
Announced in the open court (Dr. KAMINI LAU) Dated: 1.7.2010 ASJ (NW)-II: ROHINI SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 27 of 27 IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II(NW): ROHINI COURTS: DELHI Sessions Case No. 116/06 Unique Case ID: 02404R011682006 State Vs. 1. Dinesh Kumar @ Dinu S/o Udeybir Singh R/o Village & P.O.Budhpur, Distt. Baghpat, U.P. 2. Rajeev Kumar S/o Ompal Singh R/o Village & P.O. Budhpur, Distt. Baghpat, U.P. 3. Sandeep Kumar S/o Chainpal Singh R/o Village & P.O. Budhpur, Distt. Baghpat, U.P. 4. Praveen Kumar S/o Chanderbir R/o Village & P.O. Budhpur, Distt. Baghpat, U.P. FIR No: 1062/04 Police Station: Punjabi Bagh Under Section: 392/397/411/34 IPC 25/27/54/59 Arms Act Date of Conviction: 1.7.2010 Arguments heard on: 7.7.2010 Date of Sentence: 14.7.2010 ORDER ON SENTENCE:
Vide my detailed judgment dated 1.7.2010, the accused Dinesh Kumar @ Dinu has been guilty of the offence under Section SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 28 of 28 392 and 411 Indian Penal Code; accused Rajeev has been held guilty of the offence under Section 392/ 411 Indian Penal Code and 25/54/59 of Arms Act; accused Sandeep has been held guilty of the offences under Section 392//411 Indian Penal Code and 25/54/59 Arms Act and accused Praveen has been held guilty of the offence under Section 392/397/411 Indian Penal Code and 25/54/59 Arms Act.
Heard arguments on the point of sentence. The convict Dinesh Kumar @ Dinu is a young boy of 31 years having a family comprising of his aged father, mother, one brother, two sisters, wife and twin daughters. The convict is highly qualified and is B. Com, MBA and DCA. He has four other involvements in cases of robbery, theft, Arms Act and Gunda Act in Uttar Pradesh and is in judicial custody w.e.f. 18.12.2004.
Convict Rajeev Kumar is aged about 27 years having a family comprising of father, mother, two brothers and two sisters. He has studied upto 12th class. He was involved in another case bearing FIR No. 575/06, under Section 323/341/506 IPC, PS Prashant Vihar in which he has now been acquitted. He is not involved in any other case. He is in judicial custody w.e.f. 19.12.2004.
Convict Sandeep is a young boy of 22 years having a family comprising of widow mother, one brother and 4 married sisters. He is not involved in any other case and is in judicial custody w.e.f. 23.12.2004.
Convict Parveen Kumar is aged about 27 years having a family comprising of father, mother, two brother and two sisters. He is 10th class pass and is not involved in any other case and is in judicial custody w.e.f. 23.12.2004.
Ld. Counsel appearing on behalf of the convicts submit that keeping in view the young age of the convicts, a lenient view be taken SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 29 of 29 against all of them whereas on the other hand the Ld. Addl. PP for the State has argued that keeping in view the acts of the convicts which adversely affects social order strict punishment be awarded to the convicts since any leniency to the convicts would be detrimental to the society.
This is a case where a NOKIA Priority Showroom situated at Punjabi Bagh was looted in broad day light by the convicts on 5.12.2004 without any fear of law. They tied the hands, legs and mouth of the owner of the Showroom Sh. Sanjeev Kumar and his employee Ms. Navneet Kaur with ropes and handkerchief and threatened them with pistols, a deadly weapon and put them in fear of death after which they committed theft of 23 mobile phones, several dummy phones and about Rs.80,000/- to Rs.90,000/- cash belonging to the shop 'Mobile India', gold chain and purse of Sanjeev Kumar (owner of the shop) and gold chain of Navneet Kaur (employee of Sanjeev Kumar). It is only the identification of all the convicts by the owner of the Showroom Sh. Sanjeev Kumar that helped in pinning down all the four convicts in the court. The identification of the mobile phones and dummy mobiles by Sanjeev Kumar as those stolen from his Showroom which were recovered from the possession of the accused persons helped in further nailing the convicts.
The extent of desperation of the convicts is evident from the fact that after the incident while the investigations were pending the wife of the convict Dinesh Kumar @ Dinu namely Surekha went to the house of the witness Navneet Kaur and had threatened her not to identify the accused in respect of which DD No. 12-A dated 18.3.2005 was recorded. It is in this background that the quantum of sentence to be accorded to the convicts has to be decided.
The object of sentence is not only required to be reformative but it should also be punitive, preventive and deterrent. The hon'ble SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 30 of 30 Supreme Court has while considering the sentencing policy in the case of Siddarama and Ors. Vs. State of Karnataka reported in 2006 IV AD (Crl.) SC 78 has observed that:
"........law regulates social interests, arbitrates conflicting claims and demands. Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges. The contagion of lawlessness would undermine social order and lay it in ruins. Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social unconsciousness of society". Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the move for commission of the crime, the conduct of the accused, and all other attending circumstances are relevant SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 31 of 31 facts which would enter into the area of consideration......"
The Hon'ble Court has further observed that:
"...........The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion the the judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations culpability that are raised by the special facts of each case.
Judges in essence affirm that punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence. Sometimes the desirability of keeping him out of circulation and sometimes even the tragic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread......"
"......Proportion between crime and SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 32 of 32 punishment is a goal respected in principle, and in spite of errant notions, it remains a strong influence in the determination of sentences. The practice of punishing all serious crime with equal severity is now unknown in civilized societies, but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now for a single grave infraction drastic sentences are imposed. Anything less than a penalty of greatest severity for any serious crime is through then to be a measure of toleration that is unwarranted and unwise. But in fact, quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime, uniformly disproportionate punishment had some very undesirable practice consequences.."
Further in the case of Sevaka Perumal Etc. Vs. State of Tamil Nadu reported in AIR 1991 SC 1463 it has been held by the Hon'ble Supreme Court that:
"......Undue sympathy to impose inadequate sentence would do more harm to the justice SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 33 of 33 system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc...."
No leniency can be shown to persons who have no respect for life. Persons who do not hesitate to take the law into their hands for pure monetary considerations, as has happened in the present case, does not deserve any leniency. Any indulgence by the court, under these circumstances can be misplaced. The conduct of the convicts show that they are serious threats to the society and have no respect for law. What is most unfortunate is the fact that the convict Dinesh @ Dinu has fallen into the ways of crime having an excellent educational record. He is a Commerce Graduate and during his detention in judicial custody has obtained a degree in Masters of Business Administration and Diploma in Computer Applications. No leniency, however, can be shown to the persons who attempt to overreach the process of law. I therefore, award the following sentence to the convicts:
The convict Dinesh Kumar @ Dinu is sentenced to Rigorous Imprisonment for a period of 7 years for the offence under Section 392 Indian Penal Code. Further, he is sentenced to Rigorous Imprisonment for a period of 3 years for the offence under Section 411 Indian Penal Code. Both the sentences shall run concurrently.SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 34 of 34
The convict Rajeev is sentenced to Rigorous Imprisonment for a period of 7 years for the offence under Section 392 Indian Penal Code. Further, he is sentenced to Rigorous Imprisonment for a period of 3 years for the offence under Section 411 Indian Penal Code. He is also sentenced to Rigorous Imprisonment for a period of 5 years and fine to the tune of Rs.5,000/- for the offence under Section 25 Arms Act. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month. All the sentences shall run concurrently.
The convict Parveen is sentenced to Rigorous Imprisonment for a period of 10 years for the offence under Section 392 Indian Penal Code read with Section 397 Indian Penal Code.
Further, he is sentenced to Rigorous Imprisonment for a period of 3 years for the offence under Section 411 Indian Penal Code. He is also sentenced to Rigorous Imprisonment for a period of 5 years for the offence under Section 25 of the Arms Act and fine to the tune of Rs.5,000/- for the offence under Section 25 Arms Act. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one month.. All the sentences shall run concurrently.
The convict Sandeep is sentenced to Rigorous Imprisonment for a period of 7 years for the offence under Section 392 Indian Penal Code. Further, he is sentenced to Rigorous Imprisonment for a period of 3 years for the offence under Section 411 Indian Penal Code. He is also sentenced to Rigorous Imprisonment for a period of 5 years and fine to the tune of Rs.5,000/- for the offence under Section 25 Arms Act. In default of payment of fine the convict shall undergo Simple Imprisonment for a SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 35 of 35 period of one month. All the sentences shall run concurrently.
Benefit of Section 428 Cr.P.C. shall be given to all the convicts for the period already undergone by them during the trial.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order of sentence be given to all the convicts free of costs and another be attached with their jail warrants.
Before parting, it has become necessary for this court to observe that witnesses are eyes and ears of the criminal justice system and under no circumstances can any person be permitted to take law into its hands and over reach the witnesses. There is nothing on record to suggest that after the lodging of DD no.12-A dated 12.3.2005 any further steps had been taken to proceed against those who tried to over- reach the witness. It is highly unfortunate that the senior officers of the police station have not even bothered to make any inquiry, so as to proceed against those extending threats to witnesses. The major concern for this court is to ensure that people who take law in their hands and try to pollute the stream of justice by over-reaching the witnesses, are appropriately dealt with, least it may send wrong signals to others. This being so, it is necessary for this court to seek a report from the SHO Police Station Punjabi Bagh with regard to the steps taken at his level to ensure protection to the witness and to book the alleged intimidator. In this regard Ahlmad is directed to construct a separate file. The reply of the SHO Police Station Punjabi Bagh should SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 36 of 36 be filed before this court by 30.7.2010.
Vide a separate order the application filed by Sanjeev Kumar Malhotra for releasing the case property has been disposed off.
Main file be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 14.7.2010 ASJ (NW)-II: ROHINI
SC No. 116/06, State Vs. Dinesh Kumar Etc. Page 37 of 37