Delhi District Court
State vs . Nitin @ Sunny on 10 February, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 90/2013
Unique Case ID: 02404R0273122012
State Vs. Nitin @ Sunny
S/o Sh. Jagdish
R/o 33/6, Pushp Vihar,
Sector1, Saket
(Convicted)
FIR No. : 283/2012
Police Station : Mangol Puri
Under Section : 397/382/411/34 Indian Penal Code
Date of Institution in Sessions Court : 22.04.2013
Date when judgment reserved : 03.02.2014
Date when judgment pronounced : 04.02.2014
JUDGMENT
BRIEF FACTS:
(1) The case of the prosecution in brief is that on 4.8.2012 at about 8.35 AM at KL Block, Main Road, Mangolpuri, near Shiv Mandir, Delhi, the accused Nitin @ Sunny along with his associate Sandeep @ Pona (already discharged) in furtherance of a common intention, committed a robbery of gold chain from the neck of Smt. Meena Devi and while doing so the accused Nitin @ Sunny used a deadly weapon i.e. knife.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.1 of 49 CASE OF THE PROSECUTION IN BRIEF:
(2) The case of prosecution in brief is that on 04.08.2012 on receipt of DD No. 11 PP, ASI Adish Kumar along with HC Suresh reached the spot at KL Block, Main Road, near Shiv Mandir, where they met complainant Kapil along with his mother Meena Devi who informed that while they were coming on foot from D block to S Block for catching a bus when two boys came on a Bajaj Motorcycle Pulsor of black color and the boy sitting on the pillion seat snatched the chain of Meena Devi by using force (jhabta marke chain chin liya) and when he (Kapil) tried to stop those boys, the boy who was sitting on the pillion seat wiped out a knife like object on which he got scared and thereafter both the boys ran away on the motorcycle and thereafter he made a call on 100 number.
(3) ASI Adish Kumar recorded the statement of complainant, prepared a rukka and got the FIR registered. During investigations, the accused were arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(4) Charge under Sections 392/397/34 Indian Penal Code was settled against the accused Nitin @ Sunny to which he pleaded not guilty and claimed trial.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.2 of 49 EVIDENCE:
(5) In order to prove its case the prosecution has examined as many as Eleven Witnesses as under :
Public Witness:
(6) PW8 Kapil has deposed that he is residing at the given address along with his family comprising of his mother, himself, his wife and two children. He has deposed that the name of his mother is Meena Devi who is aged around 55 years. According to the witness, on 01.08.2012 his mother had gone to visit his mama at D666, Mangolpuri and on 03.08.2012 he had gone to pick her up and on 04.08.2012 he was returning at about 8:35 is when they reached near LK block, Shiv Mandir, Mangolpuri on foot and reached near S block, two boys on one pulsor motorcycle of black color came from the back towards his right side and stopped in front of them. According to the witness, they (assailants) snatched the chain of his mother and when he tried to stop them, the boy who was sitting on the pillion seat wearing a black pant picked up his shirt and put out a knife. The witness has deposed that on seeing the same he ducked, the said boys than ran away on their bike and he chased them on foot raising an alarm of chorchor.
He has deposed that he made a call to the police on 100 number and after the police officials came on a gypsy, he told them about the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.3 of 49 incident. According to the witness both the boys were around 2530 years of age. He has deposed that when the chain of his mother was snatched, the boy sitting on the pillion seat wearing a black pant had put his one leg down and snatched the chain of his mother "ek tang niche rakh kar mere mother ki chain par japata mara". The witness has further deposed that he gave his statement to the police which is Ex.PW8/A bearing his signatures at point A. He has deposed that the IO also prepared the site plan on his pointing out. According to him the boy who was driving the motorcycle was wearing a helmet and the boy who was sitting on the pillion seat was not wearing a helmet. He has deposed that he could only see the face of the boy who was sitting on the pillion seat as he was not wearing a helmet but he could not identify the person who was driving the motorcycle as he was wearing helmet. He has deposed that he could identify the person who had snatched the chain of his mother. Witness has correctly identified the accused Nitin @ Sunny in the court. Witness has deposed that he had also gone to the Tihar Jail for TIP proceedings but could not identify the person as he was wearing helmet at the time of incident. The TIP proceedings of accused Sandeep who has already been discharged are collectively Ex.PW 8/B and Ex.PW 8/C. State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.4 of 49 (7) The witness has deposed that on 05.08.2012 when he was going to his house and he passed through the church at Mangolpuri, he saw this accused Nitin who was standing near a bike and was talking to somebody. He has deposed that he immediately went to one side towards the machi market and made a call to the police station which number he had got from the police station initially on the date of the incident. According to the witness, after about five minutes one police official came and he pointed out the accused Nitin to him. "Maine ishare si usko batya ki yahi banda hai". He has deposed that when a casual search of Nitin was conducted in his presence, a gold chain was recovered from his pocket and he identified the same as belonging to his mother. He has further deposed that the accused Nitin was thereafter arrested vide memo Ex.PW8/D, his personal search was also conducted vide memo Ex.PW8/E and his disclosure statement was also recorded vide memo EX PW 8/F. The witness has deposed that he site plan prepared by the IO on 04.08.2012 is Ex.PW8/G. He has deposed that the chain was converted into a pullanda with the help of a cloth and thereafter sealed the same and thereafter seized the same vide seizure memo Ex.PW8/H. The witness has identified the chain from the photographs Ex.PW8/I1 to Ex.PW8/I4 which chain is Ex.P1. State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.5 of 49 (8) In leading questions put to the witness by Ld. APP for the State, the witness has admitted that the motorcycle make Passion was also seized bearing No. DL7SW2478 vide memo Ex.PW8/J, the accused pointed out the place of incident vide memo Ex.PW8/K and the IO prepared the site plan of the spot from where the accused was apprehended vide memo Ex.PW8/L. (9) In his crossexamination by Ld. Defence Counsel, the witness ha deposed that he went outside from the house of his mama at about 8:15 AM. He has deposed that the distance of the spot of incident was hardly 10 minutes walking from the house of his mama and has voluntarily explained that when he started from his mama's house, they first went to the stop of the gramin sewa but they could not find any vehicle, after waiting for 10 minutes, when there was no conveyance, he told his mother that they could walk down to S Block stop of gramin sewa and perhaps they could find some vehicle, on the way incident took place. According to the witness, his mother remains sick and he was holding her hand and walking down the road virtually on the side of the road because there were vehicles on both the sides. He has deposed that there were large number of public persons near the Shiv Mandir where the incident took place and has voluntarily explained that the incident took place it was all of a sudden and the public persons State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.6 of 49 gathered after he raised an alarm. He has deposed that when the police came, no public persons volunteered as an eye witness to the incident and has voluntarily explained that Most of them was passerbyes. The witness has deposed that he had made a 100 number call from his mobile and the police came within 10 minutes and his statement was recorded first and it was only thereafter that they went in search of the accused. He has deposed that his mother was also with them in the police vehicle when they went in search of the accused. He has further deposed that the statement of his mother was recorded later in the police station after the search. According to him, after they could not locate the accused on search, they were then taken to the police station, the police did not prepared any sketch from him and has voluntarily explained that they asked him the description of the accused. Witness has deposed that he was relieved from the Police Station at around 9:3010 PM and after 05.08.2012 i.e. after the arrest of the accused, he went to the PS on 23 occasions and has voluntarily explained that he was called on 23 occasions by the police to confirm if the person who was apprehended was the actual accused who had committed the incident. The witness has deposed that his statement was also recorded when he had gone to the police station and has voluntarily explained that his first statement was recorded on 04.08.2012 and thereafter once State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.7 of 49 more when he had gone to the police station. He has deposed that he had gone to the police station just in the initial one week of the incident. According to the witness he had not identified the other accused because he had not seen his face at the time of the incident as he was wearing a helmet and has voluntarily explained that how can he take the name of somebody whom he had not seen. The witness has deposed that he was never shown the photograph of Nitin and has voluntarily explained that he had pointed out Nitin to the police. (10) The witness has deposed that on 05.08.2012 it was at 5PM, after he was relieved from his daily duties and he saw the accused opposite the machi market and has voluntarily explained that and it was between 5:155:30 PM. He has deposed that large number of public persons were present at that time at the place where the accused was standing. He has deposed that after the accused was apprehended on his pointing out and interrogated and he disclosed his name as Nitin, IO did not join any public person. He has denied that there are large number of shops at the spot. According to him the IO did not ask any shopkeeper to join the investigations after apprehension of Nitin. He has deposed that the proceedings regarding the sealing and seizing of the chain took place at the spot and all documentations was done in the police station. He has deposed that he signed all the documents in the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.8 of 49 police station. He has further deposed that he has studied till class 8th and he can only read and write Hindi. Witness has denied the suggestion that he never pointed out the accused Nitin to the police as claimed by him. Witness has further denied the suggestion that the accused Nitin has been identified by him on the asking and tutoring of the police. Witness has also denied the suggestion that no chain was recovered from the possession of accused Nitin or that the said chain has been planted on him only to work out the present case. Witness has denied the suggestion that the accused Nitin was not present at the spot at the date of incident nor he had to do with the alleged incident of robbery. He has denied that the entire blame of the robbery incident has been diverted and shifted upon accused Nitin and the actual assailant has been let off by the police. He has further denied that Nitin was already in the illegal detention of the police and in order to legalize the detention, the blame was shifted on him with his connivance or that no incident had taken place or that no knife had been shown to him as alleged by him or that this entire story has been concocted in connivance with the police or that that he has deposed falsely. (11) PW9 Meena Devi is the complainant and as informed to the court by her son, she is suffering from various neurological problems and does not recollect many things. This information was State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.9 of 49 given to the court after the court observed from her mannerism that she was not very consistent. She has deposed that she is residing at the given address along with her family and she is a house wife. According to the witness, she had gone to visit her brother at Mangolpuri and stayed at his house for three days and her son had come to pick him up at around 78 AM. She has deposed that they were walking down from the house of her brother, two boys came on motorcycle from behind and snatched her gold chain which she was wearing and escaped. (Chain chin kar bhag gaye). According to the witness, her son Kapil raised an alarm "chor chor pakro pakro lekin bhag gaye" but these boys managed to escape and two boys were aged around age group of 2526 years but she could see the faces of both the persons. On court question, the witness has explained that both the boys were not wearing helmet. The witness has deposed that hereafter the police came to the spot and the boys could not be apprehended. The witness has deposed that her son went to the police station but she does not recollect whether she had also gone to the police station on that day or not. She has deposed that in the evening the police interrogated and also recorded her statement. According to the witness after 23 days she was called on way to the Mangolpuri Police Station where she could identify the boys.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.10 of 49 (12) On court question, the witness has explained that two boys had been apprehended by the police and she identified both of them after which those boys were then taken away by the police. She has stated that she did not go to jail to identify these boys. She has further deposed that she did not identify the chain which was snatched from her and has voluntarily explained that her son had identified the same and the said chain is now on superdari.
(13) In a leading questions put to the witness by Ld. APP for the State, the witness has denied that she told the police that when the accused snatched her chain and her son was about to chase him, he (said boy) pulled out a knife and showed the same to him. She has stated that she could identify the accused if shown to her. The witness has correctly identified the accused Nitin by pointing out towards him as the person who had snatched her chain from her neck. She has deposed that she could identify the chain from the photographs which she had taken on superdari. The photographs are Ex.PW8/I1 to Ex.PW8/I4. The chain showing in the photographs is Ex.P1. (14) In her cross examination by Ld. Defence Counsel, the witness has deposed that the incident in question had taken place on the rasta / road of Mangolpuri i.e. near Veer Bazar, Kala Mandir. According to the witness, she went to her brother's house on State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.11 of 49 28/29.07.2012 and on 1/2.08.2012 she was coming back to her home and the incident took place in the morning at about 78 AM. She has deposed that she never went in search of the accused with police officials. She has further deposed that her son Kapil had gone with the police officials in search of the accused after leaving her at home. She has stated that police never took her statement. On court question, the witness has explained that the police did interrogate her. (15) The witness has denied that she have identified the accused on the tutoring with the IO. Witness has denied the suggestion that the accused Nitin was not present at the spot at the date of incident nor she had to do with the alleged incident of robbery. Witness has denied the suggestion that the entire blame of the robbery incident has been diverted and shifted upon accused Nitin and the actual assailant has been let off by the police. Witness has further denied the suggestion that Nitin was already in the illegal detention of the police and in order to legalize the detention and the blame was shifted on him with her connivance. Witness has also denied the suggestion that no incident had taken place or that this entire story has been concocted in connivance with the police. Witness has also denied the suggestion that she is deposing falsely.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.12 of 49 Police / Official Witnesses:
(16) PW1 W/ASI Somna has tendered her examinationinchief by way of affidavit, which is Ex.PW1/1 wherein she has relied upon documents i.e. DD No. 17A dated 04.08.2012, copy of which is Ex.PW1/A, copy of FIR which is Ex.PW1/B and endorsement on rukka which is Ex.PW1/C. (17) In her crossexamination, the witness has denied that the FIR has been recorded antedatedly or that it has been ante timed at the instructions of the senior officers.
(18) PW2 HC Vijender Singh has tendered his examinationin chief by way of affidavit which is EX PW 2/1 bearing his signatures at point A and B. He has deposed that on 6.8.2012 as per the order of senor officers took 14 days Judicial Remand of the accused. He has not been cross examined on behalf of the accused despite opportunity in this regard.
(19) PW3 L/Ct. Suman has tendered his examinationinchief by way of affidavit, which is Ex.PW3/1 wherein she has relied upon documents i.e. DD No. 20 PP dated 05.08.2012, copy of which is Ex.PW3/A. She has added inadvertently in his affidavit, the DD No. 20 PP has been mentioned as DD No. 19 PP and it may be read as DD No. 20 PP. This court has observed that the entry at serial No. 20 State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.13 of 49 appears to has been over written. The word 19 has been made into 20 and in order to justify the same serial No. 19 has made to be inserted later on the previous page which is with the different ink. The page in which the entry No. 19 has been made is in a torn condition.
(20) In her cross examination by Ld. Defence Counsel, the witness has deposed that the telephone operatus on his desk does not have the identification facility. She has deposed that she did not note down the telephone number of the caller as the caller did not give her the telephone number. Witness has denied the suggestion that the DD regarding the call has been fabricated on the directions of the senior officers and it is for this reason, there is an overwriting on the serial No. 20.
(21) PW4 HC Parhlad has tendered his examinationinchief by way of affidavit, which is Ex.PW4/1 wherein he has relied upon the documents i.e. DD No. 11 PP dated 04.08.2012, copy of which is Ex.PW4/A. He has not been cross examined on behalf of the accused despite opportunity in this regard.
(22) PW5 HC Suresh Kumar has tendered his examinationin chief by way of affidavit which is Ex.PW5/1 bearing his signatures at point A and B. State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.14 of 49 (23) In his cross examination by Ld. Defence Counsel, the witness has deposed that there were 57 public persons when he reached the spot along with ASI Adish. He has deposed that there were no other police officials present and the statement of the complainant is in the handwriting of ASI Adish. He has deposed that it took about 1520 minutes to ASI Adish to write down the statement of the complainant and he left the spot at about 9:45 AM. He has deposed that he reached the police station at about 10 AM and after getting the FIR registered he reached back the spot at 10:45 AM. According to the witness they searched for the accused at S block chowk, Mangolpuri, BBlock Mangolpuri along with the complainant. He has further deposed that the complainant had informed that he can identify the accused. He has deposed that in his presence IO did not get any sketch of the accused prepared. Witness has denied the suggestion that he has deposed falsely. (24) PW7 HC Kirpal Singh has tendered his examinationin chief by way of affidavit, which is Ex.PW7/1 wherein he has relied upon documents i.e. copy of FIR No. 102/12 which is Ex.PW7/A and endorsement on rukka which is Ex.PW7/B. He has not been cross examined on behalf of the accused despite opportunity in this regard. (25) PW6 HC Mahavir has also tendered his examinationin chief by way of affidavit, which is Ex.PW6/1 wherein he has he relied State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.15 of 49 upon documents i.e. entry in register No. 19 vide mud No. 6179/12, copy of which is Ex.PW6/A, entry in register No. 21 vide entry No. 69/21/12, copy of which is Ex.PW6/B. (26) In his cross examination by Ld. Defence Counsel, the witness has denied that the entries in the register No. 19 has been fabricated at the instance of senior officers.
(27) PW10 ASI Adish Kumar has deposed that on 04.08.2012 he was posted at PP SGM Hospital, police station Mangolpuri and on that day on receipt of DD No. 11 PP Ex.PW4/A he along with HC Suresh reached the spot i.e. KL Block, Main road, near Shiv Mandir where they met complainant Kapil along with his mother Meena Devi who informed that while they were coming on foot from D Block to S Block for catching a bus when at about 8:25 is two boys came on a bajaj motorcycle Pulsor of black color, the boy sitting on the pillion seat snatched the chain of Meena Devi by use of force ( jhabta marke chain chin liya). The witness has deposed that Kapil informed him that when he tried to stop these boys, the boy who was sitting on the pillion seat picked up his shirt and wiped out a knife like object on which he scared and thereafter both the boys ran away on the motorcycle and thereafter he made a call on 100 number. The witness has deposed that he recorded his statement vide Ex.PW6/A on which he made his State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.16 of 49 endorsement vide Ex.PW10/A and converted the same into tehrir and handed over the same to HC Suresh and directed him to take the same to the Police Station for getting the case registered. According to the witness he then prepared the site plan at the instance of Kapil which is Ex.PW8/G and after some time HC Suresh returned to the spot and handed over to him the copy of the FIR and original tehrir after which he along with HC Suresh and Kapil went in search of the accused while his mother Meena Devi remained at the spot but they could not locate the accused persons and returned to the spot where he recorded the statements of the victims and reviled them and then they all went to the police chowki where he recorded the statement of the HC Suresh and relieved him.
(28) The witness has deposed that on 05.08.2012 at around 3:15 PM he received a call from the duty officer and on receipt of the same he along with Ct. Manoj went in front of church opposite machi market where they met Kapil. He has deposed that on the pointing out of Kapil they apprehended one boy who was standing in front of church near the motorcycle bearing No. DL7SW2478 make Passion and on interrogation, the said boy disclosed his name as Nitin @ Sunny. According to the witness, on his (accused's) casual search, a broken gold chain was recovered from his right side pocket and Kapil State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.17 of 49 immediately identified it as belonging to his mother. The witness has deposed that he converted the chain into pullanda with the help of white cloth and sealed the same with the seal of AK and handed over the seal to Ct. Manoj and seized the said chain vide memo Ex.PW8/H. The witness has deposed that he made inquiries about the motorcycle but he did not give any satisfactory reply to the same. According to the witness, when he made inquiries from 100 number Automax he came to know that it was a stolen motorcycle and the said motorcycle was seized U/s 102 Cr. P.C. vide memo Ex.PW8/J. The witness has deposed that he then interrogated the accused at length and arrested him vide memo Ex.PW8/D his personal search was also conducted vide memo Ex.PW8/E and his disclosure statement was also recorded vide memo Ex.PW8/F. The witness has further deposed that the accused also pointed out the place of incident after which he prepared the pointing out memo vide Ex.PW8/K and thereafter he prepared the site plan of the spot from where the accused was apprehended vide memo Ex.PW8/L. The witness has deposed that the accused was then got medically examined from SGM hospital and thereafter he was put in the lockup. He has deposed that on the next day he was produced before the Illaka Magistrate and he was sent to Judicial Custody. The witness has correctly identified the accused Nitin and also the chain from the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.18 of 49 photographs Ex.PW8/I1 to Ex.PW8/I4 which chain is Ex.P1. (29) In his crossexamination, the witness has deposed that he got the information from 100 number. He has further deposed that he went to the spot on motorcycle and HC Suresh was with him. He has deposed that he spot of occurrence is not a populated area. According to the witness he recorded the statement of Meena, mother of the complainant at the spot. He has deposed that the pulsor motorcycle which was allegedly used by the accused persons could not be recovered. He has further deposed that the alleged motorcycle belongs to the other accused namely Sandeep who has already been discharged. According to the witness no knife like weapon was recovered from the accused. He has deposed that for arresting the accused persons he along with Ct. Manoj reached at near U block church. The witness has further deposed that he did not include any person in the investigations and other proceedings at the spot while arresting the accused. He has deposed that he had asked the complainant to show the bill of the alleged stolen chain but he could not show the same. According to the witness the complainant had stated that he can correctly identified the accused persons but he did not get prepared the sketch of the accused persons. He has deposed that he did not show in the personal search memo of the accused regarding the alleged stolen chain. He has State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.19 of 49 deposed that he had prepared the personal search memo at the spot. He has further deposed that the information regarding arrest of the accused was given to his wife. According to him he had informed to the SHO regarding the arrest of the accused Nitin after reaching the police station. The witness has deposed that he recorded three statements of Kapil, one was the main and two supplementary statements. He had arrested the accused Nitin at around 5:30 PM on 05.08.2012. He has deposed that he along with complainant went in search of the accused on 04.08.2012 at around 12 noon they searched the accused in the area of B block and S block.
(30) Witness has denied the suggestion that no chain was recovered from the possession of accused Nitin or that the said chain has been planted on him only to work out the present case. Witness has further denied the suggestion that the accused Nitin was not present at the spot at the date of incident nor he had anything to do with the alleged incident of robbery or that the entire blame of the robbery incident has been diverted and shifted upon accused Nitin and the actual assailant has been let off by them. Witness has denied the suggestion that Nitin was already in the illegal detention of the police and in order to legalize the detention, the blame was shifted on him or that no incident had taken place or that no knife had been shown to the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.20 of 49 complainant as alleged by the complainant or that this entire story has been concocted in connivance with him. Witness has denied the suggestion that all documentation were done while sitting in the police station or that accused did not make any disclosure statement or that the same has been recorded by him of his own. He has further denied that he have not prepared any site plan or that he have falsely implicated the accused in the present case or that he is deposing falsely.
(31) PW11 ASI Surender Singh has deposed that on 17.09.2012 he was posted at police station Mangolpuri and on that day the investigations of the present case were handed over to him. He has deposed that on 06.10.2012 the accused Sandeep @ Bona had surrendered before the court of Ld. MM and he moved the application before the concerned Illaka magistrate and after the grant of permission from Ld. MM, interrogated him and formally arrested him. The witness has deposed that he (accused) was put in a muffled face and got remanded to Judicial custody as his judicial TIP was to be conducted. He has deposed that he then moved an application before Ld. MM for conducting the TIP of accused Sandeep which applications is Ex.PW11/A. The witness has deposed that the accused Sandeep wanted to participated in the TIP which was fixed for 16.10.2012 but since the witness Kapil did not turn up since the proceedings could not State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.21 of 49 be concluded which report of Ld. MM is Ex.PW8/C. He has deposed that thereafter he again moved the application before the Ld. MM seeking the coercive process against the witness and for fixing the another date for TIP which application is Ex.PW11/B pursuant to which the Ld. MM fixed the TIP for 19.10.2012 and on 19.10.2010 the complainant Kapil went to central Jail Tihar where he was not able to identify the accused Sandeep in the Judicial TIP vide Ex.PW8/D. The witness has deposed that he had moved applications for obtaining the copies of the TIP which applications are Ex.PW11/C and Ex.PW11/D. According to him since the complainant was not able to identify the accused Sandeep, he was got discharged from the case. He has deposed that he prepared the charge sheet after completing the investigations and filed the same before the Ld. MM. He has further deposed that since the Ld. MM had directed the provisions of section 397 IPC, he prepared the supplementary statement and filed the same in the court. (32) In his cross examination, the witness has deposed that he did not make any inquiries from the authority with regard to the accused Sandeep owing any motorcycle make Pulsor in which the alleged offence stated to have given effect and has voluntarily explained that he made inquiries from Sandeep and he told him that he did not have any Pulsor motorcycle. He has admitted that no weapon of offence State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.22 of 49 was got recovered from any of the accused. Witness has denied the suggestion that he did not carry out any free investigations or that the same has been led by his senior officers or that he has deposed falsely. STATEMENT OF THE ACCUSED & DEFENCE EVIDENCE:
(33) After completion of prosecution evidence the statement of the accused was recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to him which he has denied. According to him he is innocent and has been falsely implicated. He has stated that Sandeep (coaccused already discharged) is a local criminal of Sultanpuri area and he is the one who had committed the incident.
Accused has stated that he was having some old cases of Sultanpuri against him and the local police in order to workout the present case shifted the liability of Sandeep on him after leaving Sandeep. According to the accused he was forcibly lifted from near the dispensary at Mangolpuri when he came to meet his bua after which he was handed over to the IO of the present case who then showed him to the public witnesses and told them to identify him as the assailant. He has stated that both the victims have identified him on the asking of the IO of the case.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.23 of 49 FINDINGS:
(34) I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. My findings are as under.
Promptness in Registration of FIR:
(35) The case of the prosecution is that on 4.8.2012 in the morning at around 8.35 AM, the complainant Kapil a resident of Mubarakpur, Nangloi along with his mother Smt. Meena Devi, aged about 55 years, was returning home from the house of his uncle / mama and when they reached near D666, Mangolpuri, Shiv Mandir, to boys came on a motorcycle from behind and stopped in front of them next to his mother after which the pillion rider got down and snatched the chain which his mother Meena Devi was wearing and when complainant Kapil resisted the said boy wiped out a knife like amount by lifting his shirt and thereafter both the assailants fled away on their motorcycle whose number they could not see.
(36) As soon as the incident took place, Kapil made a call at 100 number which call has been duly proved by PW4 HC Parhlad who was posted as DD Writer PP SGM Hospital and at about 8.44 AM on receipt of information from Duty Officer Police Station Mangolpuri he lodged State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.24 of 49 the DD No. 11 PP which information was forwarded to ASI Adhish Kujur who reached at the spot of incident where he met the complainant Kapil. The FIR had been registered thereafter by W/ASI Somna (PW1) who had proved that she had received the rukka from HC Suresh at about 10:00 AM on the basis of which the present FIR was registered. (37) In view of the above, I hold that prompt registration of FIR at 10:00 AM on 4.8.2012 has been proved by the prosecution. It is settled law that the promptness in lodging report justifies the inference in the circumstance of the case that the report was not a concocted story. Where soon after occurrence FIR is lodged, it is difficult to believe that false story was cooked up (Ref.: Bhag Singh Vs. State of Punjab reported in 1971 Cr LJ 903).
(38) In the present case FIR has been registered promptly and the facts stated therein cannot be doubted. There is nothing to show that the victims were previously known to the assailants. The complainant had seen the assailants at the time of incident and was in a position to identify them a fact which he has even mentioned in his first statement to the police, which fact finds incorporated in the FIR and hence cannot be doubted. In this background I hold that the prosecution has been able to prove the prompt registration of FIR leaving a little scope for manipulation and fabrications.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.25 of 49 Ocular Evidence, Allegations under Section 392 IPC (39) Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness. Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborate each other on material aspect connected with the offence, there is no reason to reject their testimonies.
(40) In the present case the entire case of the prosecution is based upon the eye witness account given by the complainant Kapil (PW8) who had made the call at 100 number just after the incident and his mother / victim Meena Devi (PW9) whose gold chain was snatched by the assailants. Both Kapil and Meena Devi have not only identified the accused Nitin @ Sunny as the pillion rider who had snatched the gold chain of Meena Devi but have also identified the gold chain recovered from the possession of Nitin @ Sunny as the same which was robbed.
(41) However, since the prosecution is placing its heavy reliance on the testimonies of Kapil (PW8) and his mother Meena Devi (PW9) it is therefore necessary for this Court to first determine whether what State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.26 of 49 they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court. It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witnessbox; their State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.27 of 49 power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.: Krishnan Vs. State reported in AIR 2003 SC 2978). (42) It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful crossexaminer and at times under the stress of crossexamination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(43) Applying the settled principles of law to the facts of the present case, I may observe that the complainant Kapil (PW8) is aged 31 years. He has identified the accused Nitin in the court and has given State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.28 of 49 clear account of the incident and how it transpired. The relevant portion of his testimony is reproduced as under:
I am residing at the aforementioned address along with my family comprising of my mother, myself, my wife and two children. The name of my mother is Meena Devi who is aged around 55 years. On 01.08.2012 my mother had gone to visit my mama at D666, Mangolpuri and on 03.08.2012 I had gone to pick her up and on 04.08.2012 I was returning at about 8:35 AM when we reached near LK block, Shiv Mandir, Mangolpuri on foot and reached near S block, two boys on one pulsor motorcycle of black color came from the back towards my right side and stopped in front of us. They snatched the chain of my mother and when I tried to stop them, the boy who was sitting on the pillion seat wearing a black pant picked up his shirt and put out a knife. On seeing the same I ducked, the said boys than ran away on their bike and I chased them on foot raising an alarm chorchor. I made a call to the police on 100 number. After the police officials came on a gypsy, I told them about the incident. Both the boys were around 2530 years of age. When the chain of my mother was snatched, the boy sitting on the pillion seat wearing a black pant had put his one leg down and snatched the chain of my mother "ek tang niche rakh kar mere mother ki chain par japata mara". I gave my statement to the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.29 of 49 police which is EX PW 8/A bearing my signatures at point A. IO also prepared the site plan on my pointing out. The boy who was driving the motorcycle was wearing a helmet and the boy who was sitting on the pillion seat was not wearing a helmet. I could only see the face of the boy who was sitting on the pillion seat as he was not wearing a helmet but I could not identify the person who was driving the motorcycle as he was wearing helmet. I can identify the person who had snatched the chain of my mother.
At this stage, witness has correctly identified the accused Nitin @ Sunny who is present in the court today.
I had also gone to the Tihar Jail for TIP proceedings but could not identify the person as he was wearing helmet at the time of incident. At this stage two envelopes duly sealed with the seal of RR are produced and same are open and found to contain TIP proceedings, Both TIP are related to the accused Sandeep who has already been discharged. The same are collectively EX PW 8/B and EX PW 8/C. On 05.08.2012 when I was going to my house and I passed through the church at Mangolpuri, I saw this accused Nitin who was standing near a bike and was talking to somebody. I immediately went to one side towards the machi market and made a call to the police station which number I had got from the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.30 of 49 police station initially on the date of the incident. After about five minutes one police official came and I pointed out the accused Nitin to him.
"Maine ishare si usko batya ki yahi banda hai".
When a casual search of Nitin was conducted in my presence, a gold chain was recovered from his pocket and I identified the same as belonging to my mother. The accused Nitin was thereafter arrested vide memo EX PW 8/D bearing my signatures at point A. His personal search was also conducted vide memo EX PW 8/E bearing my signatures at point A. His disclosure statement was also recorded vide memo EX PW 8/F bearing my signatures at point A. The site plan prepared by the IO on 04.08.2012 is EX PW 8/G bearing my signatures at point A. The chain was converted into a pullanda with the help of a cloth and thereafter sealed the same and thereafter seized the same vide seizure memo EX PW 8/H bearing my signatures at point A. I can identify the case property i.e. chain from the photographs as the chain was released to my mother on superdari. The photographs are EX PW 8/I1 to EX PW 8/I4. The chain showing in the photographs is EX P1.
At this stage Ld. APP for the state, seeks permission to put leading questions to the witness regarding seizure memo of motorcycle, preparation of site plan and pointing out memo.
Heard, Permission granted.
It is correct that the motorcycle make State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.31 of 49 Passion was also seized bearing No. DL7SW2478 vide memo EX PW 8/J bearing my signatures at point A. It is correct that the accused pointed out the place of incident vide memo EX PW 8/K bearing my signatures at point A. It is correct that the IO also prepared the site plan of the spot from where the accused was apprehended vide memo EX PW 8/L bearing my signatures at point A. (44) Kapil has been cross examined at length by Ld. Defence Counsel and he stood by his version. He has stated that he had left the house of his mama at about 8:15 AM and the distance of the spot of incident was hardly 10 minutes walking from the house of his mama. He has explained that when he started from his mama's house, they first went to the stop of the Gramin Sewa but they could not find any vehicle and after waiting for 10 minutes, when there was no conveyance, he told his mother that they could walk down to S Block Stop of Gramin Sewa. He has stated that while he was walking down the road after holding the hand of her mother as she remains sick and also because there were vehicles on both the sides. He has further stated that there were large number of public persons near the Shiv Mandir where the incident took place but as soon as he raised an alarm none volunteered to become an eye witness to the incident as most of them was passerbyes. He has explained that when he made a 100 number call, the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.32 of 49 police came within 10 minutes and this almost is compatible with the information received in the Police Post pursuant to which the police officials came at the spot. He has explained that the police did not prepared any sketch of the assailants but has stated that they had asked him the description of the accused. He has further explained that after the arrest of the accused also he had gone to the Police Station on two to three occasions and also stated that he was called to the Police Station and has denied the suggestion that he has falsely implicated the accused.
(45) He has further stated that he could not identified the boy who was driving the motorcycle as he was wearing a helmet while the boy who was sitting on the pillion seat was not wearing a helmet and he could only see the face of the boy who was sitting on the pillion. Here this court has observed that in his statement to the police the witness did not state that the boy who was driving the motorcycle was wearing helmet and claimed that he could identify both the boys. Even witness Meena Devi does not state that the motorcycle rider was wearing the helmet. This explains the reasons why Sandeep (coaccused) had not been identified by the witness Kapil during Judicial TIP. In so far as the accused Nitin is concerned, there is no doubt as he has been apprehended at the instance of the complainant Kapil as he had seen State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.33 of 49 him in the area on the very next day on which he informed the police and led the Investigating Officer to the accused Nitin. (46) The next witnesses on whose testimony the prosecution has placed its reliance is the mother of complainant namely Smt. Meena Devi (PW9) who has corroborated the testimony of Kapil to the extent that on the date of incident she along with her son Kapil were returning home from the house of her brother when this incident had taken place. The relevant portion of her testimony is reproduced as under:
"I am residing at the aforementioned address along with my family and I am a house wife. I had gone to visit my brother at Mangolpuri. I stayed at his house for three days and my son had come to pick me up at around 78AM. We were walking down from the house of my brother, two boys came on motorcycle from behind and snatched my gold chain which I was wearing. "Chain chin kar bhag gaye". My son Kapil raised an alarm "chor chor pakro pakro lekin bhag gaye" but these boys managed to escape. The two boys were aged around the age group of 2526 years. I could see the faces of both the persons. On court question :
both the boys were not wearing helmet.
Thereafter the police came to the spot and the boys could not be apprehended. My son went to the PS. I do not recollect whether I had also gone to the PS on that day or not. In the evening the police interrogated and also recorded my State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.34 of 49 statement.
After 23 days I was called on way to the Mangolpuri PS where I could identify the two boys. Court observations: this court has observed that the witness is not consistent in her deposition and her son has informed that she is suffering from a nerological problem due to which reason she does not recollect many things.
On court question: two boys had been apprehended by the police and I identified both of them. Both these boys were then taken away by the police. I did not go to jail to identify these boys. I did not identify the chain which was snatched from me. Vol. My son had identified the same. Now I have taken back the said chain on superdari.
At this stage, Ld. APP for the state seeks permission to put leading questions to the witness as she is not giving the complete details.
Heard, Permission granted.
It is wrong to suggest that I told the police that when the accused snatched my chain and my son was about to chase him, he pulled out a knife and showed the same to him. I can identify the accused if shown to me.
At this stage, the witness has correctly identified the accused Nitin by pointing out towards him as the person who had snatched her chain from her neck. I can identify the chain from the photographs which I had taken on superdari. The photographs are already EX PW State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.35 of 49 8/I1 to EX PW 8/I4. The chain showing in the photographs is already EX P1.
(47) Witness Meena Devi has also been cross examined at length wherein she has explained that the incident had taken place approximately between 7 Am to 8 AM. She has denied that the accused Nitin has nothing to do with the alleged robbery or that she identified him on the asking of the Investigating Officer or that Nitin was in illegal detention of the police and has been falsely implicated in this case only to legalize his detention.
(48) Ld. Defence Counsel has vehemently argued that close perusal of the testimonies of both Kapil and Meena Devi shows that there are material contradictions firstly with regard to the identity of the person who was driving the motorcycle since on one hand Kapil claims that he was wearing helmet while Meena Devi states that both the assailants were sitting on the motorcycle with open faces. Ld. Counsel has also pointed out that on one hand eye witness Kapil claims that his mother had also accompanied him along with police officials in the police vehicle when they had gone in search of the accused persons whereas Meena Devi clarifies that on 4.8.2012 after the incident her son left her at home and she did go in search of the accused with the police. State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.36 of 49 (49) Addl. PP for the State submits that the discrepancies and contradictions as pointed above, are not material qua the present accused Nitin @ Sunny who has been specifically identified by the victims not only in the court but even the arrest of the accused Nitin is on the basis of the information given by Kapil who had seen him in the area on the very next day of the incident on which he informed the police and then led the Investigating Officer and got the accused Nitin arrested from whose possession the stolen gold chain was recovered. He further submits that the victim Meena Devi is a patient of neurological problems and hence the aspect as to whether one person was identified by her or two or whether she went to police station and on how many occasions and whether she accompanied the police for the search of the accused or not, would not be material. He in this regard has also placed his reliance on the case of "Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat" reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1).
(50) I have considered the rival contentions and also the case law cited by the Ld. Addl PP. I may observe that in so far as Meena Devi is concerned, this court has noticed that during her examination in the court she appears to be sick and was not giving answers consistently.
She is aged about 55 years of age and states that she is suffering from a State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.37 of 49 neurological problem due to which reason she does not recollect many tings. In so far as the material aspects on the incident i.e. assailants coming on motorcycle, snatching the gold chain, making of call at 100 number by her son Kapil and raising alarm "chor chor pakro pakro"
and thereafter police cames to the spot and registration of FIR, are concerned, both eye witnesses / victims namely Kapil and Meena Devi are very categorical. They both have identified the accused Nitin as the person who was sitting as pillion rider and has snatched the gold chain which Meena Devi was wearing. This aspect that after snatching the chain when Kapil tried to resist, the accused Nitin wiped out a knife like object, has not been corroborated by Meena Devi. There is an element of surprise and naturally the sudden snatching would have kept both the victims Kapil and Meena shocked and surprised when the incident had taken place and hence it is only natural that he could not have noted down the number of the motorcycle on which the assailants had come or what transpired thereafter. In so far as the Meena Devi is concerned, the fact that she is unable to tell whether she went with the police in search of the accused or not, makes no difference because none of the assailants could be apprehended on the said day. The contradictions so pointed out by the Ld. Defence Counsel are not material. State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.38 of 49 (51) Now coming to the arguments that the accused was falsely implicated and wrongly identified by the victims only to divert the blame on him. Here, I may note that a specific suggestion had been made to Kapil and he has stated that he has no inimical terms with the accused Nitin and there is no reason for him to falsely implicate him and I find merits in the same. I may observe that both Kapil and Meena Devi were not known to the accused Nitin prior to the incident and they had no personal interest in falsely implicating the accused Nitin having no enmity with him, particularly so when Kapil himself has not been able to identify the coaccused Sandeep and has very categorically explained in the court that he could not see the face of the person who was driving the motorcycle which was natural because the assailants came from behind and motorcycle came in front of victim Meena Devi.
In so far the accused Nitin is concerned, the complainant Kapil is very categorical when he states that the accused Nitin who was sitting in pillion seat put his one leg on the ground and snatched the gold chain from his mother Meena Devi and when he (Kapil) resisted, Nitin picked up his shirt and wiped out a knife like object on which he (Kapil) scared and thereafter both the boys ran away on the motorcycle after which he made a call at 100 number. There was sufficient opportunity for both Kapil and Meena Devi to have closely observed the boy sitting on the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.39 of 49 pillion seat as he was the one who put his one foot done and came in front of the victim while committing the snatching. The depositions / testimonies of both Kapil and Meena Devi on the face of it is credible and cannot be doubted and the events as they emerged are probable and truthful and under no circumstances can it be stated that Nitin has been falsely implicated by the victims as claimed by them. (52) In this background I hold that the prosecution has been able to prove the identify of the accused Nitin as the pillion rider who had committed the robbery of gold chain from Smt. Meena Devi. Apprehension / Arrest of the Accused and their Defence :
(53) It is writ large that on the very next day i.e. on 05.08.2012 while the complainant Kapil was in the area, it is he who saw the accused Nitin near the Church at Mangolpuri, who was standing near a bike and was talking to somebody, on which he immediately went towards the machi market and made a call to the police station and after about five minutes one police official came and he pointed out the accused Nitin to him and he was arrested and on his casual search, a gold chain was recovered from his pocket and he (Kapil) identified the same as belonging to his mother. In fact Kapil has proved the personal search of accused Nitin and the recovery of the gold chain photograph of which is Ex.P1. (chain is on superdari).
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.40 of 49 (54) The case of the accused is that he had been illegally detained by the police and the entire blame has been diverted upon him.
There is no reason to doubt the testimony of Kapil. Complainant Kapil could not identify the coaccused Sandeep and has explained that he cannot identify just for the sake of it. He has explained that he could not see the face of the person who was driving the motorcycle who had his back towards them. In this background, it is not possible that Kapil could have falsely implicated the accused Nitin only on asking of police. Both he and Smt. Meena whose chain had been snatched had sufficient time to see the assailants who had pulled the chain as he had come before them and there is no reason to doubt their version. (55) Further, ASI Adish Kumar (PW10) has also confirmed that on 5.8.2012 on receipt of call from Kapil he along with Ct. Manoj had gone to the spot i.e. in front of Church opposite Machi Market where on pointing out of Kapil, the accused Niting was apprehended with motorcycle bearing No. DL7SW2478 make Passion and from the casual search of Nitin the stolen gold chain was recovered. (56) When the incriminating material was put to the accused Nitin under Section 313 Cr.PC he does not dispute his presence in the area and has simply stated that he has been falsely lifted from near the dispensary at Mangolpuri when he came to meet his bua after which he State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.41 of 49 was handed over to the Investigating Officer after which public persons / victims were asked by the police to identify him as the assailant. This defence so offered by the accused, on the face of it does not appear probable. He has admitted his presence in the area and also the fact that he was apprehended in the area. He also does not dispute his identification by the victims but only adds that he was identified by the victims on the asking of police which again does not appear probable in the given circumstances of the case. Accused Nitin is the best person who could have explained his false implication or his detention or why Kapil would have falsely implicated and identified him there being no history of animosity or dispute with him, which he is unable to do. I hereby hold that the prosecution has been able to successfully prove and establish the apprehension and arrest of the accused Nitin @ Sunny on the pointing out of the eye witness / victim / complainant Kapil.
Recovery of Stolen Chain for the Pocket of Nitin:
(57) After apprehension of Nitin his personal search revealed gold chain which was identified by the victim. I may observe that the date of incident was 4.8.2012 and it was on next date i.e. 5.8.2012 when Kapil noticed Nitin near Machi Market Mangolpuri standing near a motorcycle (which motorcycle was found stolen in respect of which State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.42 of 49 separate FIR bearing No. 102/12 Police Station Kotwali was registered and is not relevant to the present case).
(58) The recovered gold chain was taken on superdari by Meena Devi. Ld. Counsel has argued that the ownership of the said gold chain has not been produced and has not been taken into possession from the victim. Here, I may observe that it is not relevant that the said gold chain would have been purchased by the victim or not. It is a matter of common knowledge that gold is normally gifted to a women at the time of her marriage which may be a part of inheritance and not a fresh purchase. No question in this regard has been specifically put to Meena Devi in this regard and therefore the accused having failed to question the victim with regard to the ownership of said gold chain, he cannot, now at this stage, raise this issue of ownership. The fact is that the aspect of snatching of gold chain finding due mention on the first statement of complainant Kapil which is Ex.PW6/A on the basis of which the FIR was registered, there is no reason to doubt the snatching and the subsequent identification of the same on the very next day. (59) In view of the above, I hereby hold that in so far as the charge under Section 392 IPC is concerned, the prosecution has been able to prove and establish the same and therefore the accused Nitin @ Sunny is liable for the same.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.43 of 49 Charge under Section 397 IPC not proved:
(60) The case of the prosecution is that while committing the robbery of the gold chain upon the victim Meena Devi, the accused had used a knife / dangerous weapon. In this regard I may observe that no doubt in the first statement to the police on the basis of which FIR had been registered, the complainant Kapil had stated that the knife like object had been shown to him by the assailant but it is writ large from his narration that after the gold chain was snatched and Kapil tried to apprehend him, it was then that the accused allegedly took out a knife like object and showed him to felicitate his escape. No such knife has been recovered from the possession of the accused. In this regard, the testimony of Meena who is the actual victim from whose neck the chain was snatched is also relevant. She turned hostile on the point of the accused having shown a knife like object to them. She has denied the suggestion of Addl. PP that she did not tell the police that when the assailant snatched the chain and when her son Kapil resisted the assailant, he showed a knife to Kapil.
(61) That apart no evidence has been led by the prosecution to show that the knife like object which the accused alleged possessed at the time of incident and showed to the was a "deadly weapon". Section 397 IPC envisages that if at the time of robbery the offender uses any State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.44 of 49 deadly weapon, the imprisonment with with such offender shall be punished shall not be less than seven years. Thus. What is essential to satisfy the word "uses" for the purpose of this Section is that the robbery being committed by an offender, who was armed with a deadly weapon, which was within the vision of the victim, so as to be capable of creating terror in the mind of the victim. Knives are weapons available in various sizes and may just cause little hurt or may be the deadliest. They are not deadly weapons per se such as would ordinarily result to death by their use. What would make a knife deadly is its design or the manner of its use such as it calculated to or is likely to produce death. This it is a question of fact to be proved by the prosecution that the knife used by the offender was a deadly one.
(Ref.: Ramu @ Raju Vs. State, Crl. Appeal No. 874/2009 and Crl. Appeal No. 4/2010, decided on 3.12.2010 by Hon'ble Mr. Justice A.K. Pathak.).
(62) In view of my above discussions, I hold that the use of dangerous weapon (knife) by the accused during the commission of robbery has not been proved and established and hence benefit of doubt is given to the accused Nitin @ Sunny and he is hereby acquitted of the charge under Section 397 IPC.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.45 of 49 FINAL CONCLUSION:
(63) In the case of Sharad Birdhichand Sarda vs State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
(64) Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.46 of 49 police witnesses including the Investigating Officers. The identity of the accused Nitin @ Sunny stands established and proved. It stands proved that 04.08.2012 the complainant Kapil along with his mother Meena Devi was returning home from the house of his mama at D666, Mangolpuri and at about 8:35 when they reached near LK block, Shiv Mandir, Mangolpuri on foot, the accused Nitin @ Sunny along with his associate came on a pulsor motorcycle of black color and stopped in front of them. It stands established that the accused Nitin @ Sunny was sitting as pillion seat while the coaccused was driving motorcycle. It stands established that the accused Nitin @ Sunny put his one leg on the ground and snatched the gold chain which Meena Devi was wearing at that time. It stands established that after committing the robbery the accused Nitin @ Sunny along with his associate fled from the spot in the motorcycle. It stands established that thereafter Kapil made a call to the police on 100 number and after some time police officials came to the spot and statement of Kapil was recorded on the basis of which FIR was registered. It stands established that thereafter on 05.08.2012 at the instance of complainant Kapil, the accused Nitin @ Sunny was apprehended and arrested in this case from near Machi Market, Mangolpuri and from his casual search the stolen gold chain was recovered which gold chain has been duly identified by the victims. State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.47 of 49 (65) However, it does not stands established that when Kapil tried to resist the assailants, the boy who had snatched the chain, picked up his shirt and took out a knife like object and showed him. (66) There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. I do not find any substance in the grounds raised by the Amicus Curiae for this accused.
(67) The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.48 of 49 is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(68) In view of my above discussions, the accused Nitin @ Sunny is hereby acquitted of the charge under Section 397 Indian Penal Code, however, he is held guilty for the offence under Section 392 Indian Penal Code and is accordingly convicted. (69) Be listed for arguments on sentence on 10.2.2014.
Announced in the open Court (Dr. KAMINI LAU)
Dated: 4.2.2014 ASJ (NW)II: ROHINI
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.49 of 49
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST) : ROHINI COURTS: DELHI
Sessions Case No. 90/2013
Unique Case ID: 02404R0273122012
State Vs. Nitin @ Sunny
S/o Sh. Jagdish
R/o 33/6, Pushp Vihar,
Sector1, Saket
(Convicted)
FIR No. : 283/2012
Police Station : Mangol Puri
Under Section : 397/382/411/34 Indian Penal Code
Date of conviction : 04.02.2014
Arguments heard on : 10.02.2014
Date of Sentence : 10.02.2014
APPEARANCE:
Present: Sh. Shiv Kumar, Addl. Public Prosecutor for the State.
Convict Nitin @ Sunny in Judicial Custody with Sh. Vinod Kumar, Amicus Curaie.
ORDER ON SENTENCE:
(1) The case of the prosecution in brief is that on 4.8.2012 at about 8.35 AM at KL Block, Main Road, Mangolpuri, near Shiv Mandir, Delhi, the accused Nitin @ Sunny along with his associate Sandeep @ Pona (already discharged) in furtherance of a common State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.50 of 49 intention, committed a robbery of gold chain from the neck of Smt. Meena Devi and while doing so the accused Nitin @ Sunny used a deadly weapon i.e. knife.
(2) However, on the basis of the testimonies of various witnesses examined by the prosecution and other material which has come on record, this Court vide a detailed Judgment dated 04.02.2014 has held that identify of the accused Nitin @ Sunny stands established and proved; that 04.08.2012 the complainant Kapil along with his mother Meena Devi was returning home from the house of his mama at D666, Mangolpuri and at about 8:35 when they reached near LK block, Shiv Mandir, Mangolpuri on foot, the accused Nitin @ Sunny along with his associate came on a pulsor motorcycle of black color and stopped in front of them; that the accused Nitin @ Sunny was sitting as pillion seat while the coaccused was driving motorcycle; that the accused Nitin @ Sunny put his one leg on the ground and snatched the gold chain which Meena Devi was wearing at that time; that after committing the robbery the accused Nitin @ Sunny along with his associate fled from the spot in the motorcycle; that thereafter Kapil made a call to the police on 100 number and after some time police officials came to the spot and statement of Kapil was recorded on the basis of which FIR was registered; that thereafter on 05.08.2012 at the instance of complainant State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.51 of 49 Kapil, the accused Nitin @ Sunny was apprehended and arrested in this case from near Machi Market, Mangolpuri and from his casual search the stolen gold chain was recovered which gold chain has been duly identified by the victims. However, it does not stands established that when Kapil tried to resist the assailants, the boy who had snatched the chain, picked up his shirt and took out a knife like object and showed him.
(3) In view of the above, the accused Nitin @ Sunny has been acquitted of the charge under Section 397 Indian Penal Code, however, he has been held guilty for the offence under Section 392 Indian Penal Code and is accordingly convicted.
(4) I have heard arguments on the point of sentence. The convict Nitin @ Sunny is stated to be a young boy of 25 years having a family comprising of widow mother, one sister, one brother, wife and one son.
He is 7th Class pass and a Driver by profession. He has already remained in custody in this case for a period of Five Months & Eighteen Days. Apart from this case, he is involved in following cases:
➢ FIR No. 1231/06, PS : Sultanpuri, U/S :25/54/59 Arms Act. ➢ FIR No. 131/07, PS : Prashant Vihar, U/S : 379/411 IPC. ➢ FIR No. 102/12, PS : Kotwali, U/S : 379/411 IPC.
➢ FIR No. 1589/06, PS : Sultanpuri, U/S : 25/54/59 A. Act. State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.52 of 49 ➢ FIR No. 85/07, PS : K. M. Pur, U/S : 379/411 IPC.
➢ FIR No.361/11, PS : Safdarjung Enclave, U/S : 17D/17F/51. ➢ FIR No. 444/06, PS : Mangolpuri, U/S : 356/379 IPC. ➢ FIR No. 454/06, PS : Mangolpuri, U/S : 356/379 IPC. ➢ FIR No. 507/06, PS : Mangolpuri, U/S : 356/379 IPC. (5) It is argued that the convict is a young boy having family dependent upon him. It is further argued that the convict is the victim of circumstances and has already suffered and any stern view would be prejudicial to his the entire life of the convict. Ld. Addl. PP for the State on the other hand has argued that keeping in view the nature of offence, a strict punishment may be awarded to the convict. (6) I have considered the rival contentions and keeping in view the fact that the convict is young boy, I hereby hold that any harsh view at this stage would be prejudicial to his future. Hence, a lenient view is taken against the convict Nitin @ Sunny who is sentenced as follows :
(7) The convict Nitin @ Sunny is hereby sentenced to Rigorous Imprisonment for a period of Four (04) Years and a fine to the tune of Rs.2,000/ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of Seven Days.
State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.53 of 49 (8) Benefit of Section 428 Cr.P.C. shall be given to the convict for the period already undergone by him during the trial, as per rules. (9) The convict has been informed that he has a right to prefer an appeal against this judgment. He has been apprised that in case he cannot afford to engage an advocate, he can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
(10) Copy of the judgment and order on sentence be given to the convict free of cost and another be attached along with his jail warrant.
(11) File be consigned to Record Room. Announced in the open Court (Dr. KAMINI LAU) Dated: 10.2.2014 ASJ (NW)II: ROHINI State Vs. Nitin @ Sunny, FIR 283/12, PS Mangolpuri Page No.54 of 49