Delhi District Court
State vs . on 30 March, 2012
1
IN THE COURT OF SMT. BIMLA KUMARI
ADDL. SESSIONS JUDGE-02 (NORTH):DELHI.
S.C. No. 122/11
Case I.D. No.02401R0921922007
State
Vs.
(i) Vikram @ Ganja
Son of Shish Ram
R/o Gali No.1, Balbir Ka Makan,
Khajuri, Bhajanpura,
Delhi.
(ii) Sameer @ Sonu
Son of Shakeel
R/o Gali No.1, Khajuri Khas
Delhi
(iii)Raj Kumar
son of Rajbir Singh
F.251, Khajuri Khas
Delhi.
(iv)Ashok
Son of Raj Kumar
F.1, E-60, H. No.255, Sunder Nagari
Delhi.
(v)Salim
son of late Sahib Chand
R/oE.327 Huts Sayyed Peer
Laxmi Nagar
Delhi.
FIR No.: 158/07
PS: Civil Lines
U/S 392/395/397/412 IPC
Sessions Case No. 160/11 Page 1/28
2
Date of Institution: 05.05.11
Date of reserving Judgment: 16.03.12 and 28.03.12
Date of pronouncement: 30.03.12
JUDGMENT
In the present case, charge has been framed against accused Vikram @ Ganja, Sameer @ Sonu, Raj Kumar and Ashok Kumar in respect of offence U/S 395 read with Section 34 IPC by Ld. Predecessor on 22.4.08. The allegation against the accused is that on 26.6.07 at about 3.15 AM, at outer ring road, near CNG Pump, Chandgiram Akhara, Delhi, they all in furtherance of their common intention with co-accused Amit @ Bouncer(Juvenile) committed dacoity of 28 bags of plastic raw material (plastic dana), which was loaded in Tempo No.DL-1LH-4864, driven by Jahangir Ali. 2 A separate charge has also been framed against accused Vikram @ Ganja in respect of offence U/S 397 IPC by Ld. Predecessor on same day. The allegation against the accused is that on 26.6.07 at about 3.15 AM at outer ring road, near CNG Pump, Chandgiram Akhara, Delhi, he used knife while committing dacoity, alongwith co-accused persons namely Sameer @ Sonu, Raj Kumar and Ashok Kumar and Amit @ Bouncer(Juvenile) of 28 bags, filled with plastic raw material(plastic dana)loaded in Tempo No.DL-1LH-4864 driven by complainant Jahangir Ali.
Sessions Case No. 160/11 Page 2/28 33 A separate charge has also been framed against accused Saleem @ Khan in respect of offence U/s 412 IPC. The allegation is that on 1.7.07 at H.No.E-3/27, Andhsar Colony, Laxmi Nagar, Delhi, he dishonestly retained 28 bags, filled with plastic raw material(plastic dana) knowing or having reason to believe that the [possession of] same have been transferred by the commission of dacoity.
4 All accused pleaded not guilty to the said charge and claimed trial.
5 To prove its case prosecution has examined 14 witnesses. They are W/ASI Suresh Rani(PW-1), HC Dalip Singh(PW-2), Jahangir Ali(PW-3), Neeraj Jain(PW-4), Anil Kumar(PW-5), Ct. Ramesh Kumar(PW-6), SI Manish Kumar(PW-7), Inspector Raj Kumar(PW-8), HC Onkar Nath(PW-9), HC Gajraj(PW-10), Lal Chand(PW-11), HC Jeewan Bhatt(PW-12), Ashutosh Kumar(PW-13) and SI Krishan Chand(PW-14) 6 Statements of all accused U/S 313 Cr.P.C have been recorded, wherein they have denied the allegations of prosecution. They have stated that they are innocent. They have been falsely implicated in the present case.
7 Accused Sameer preferred to lead defence evidence in his statement U/S 313 Cr.PC. But, he did not examine any witness despite Sessions Case No. 160/11 Page 3/28 4 opportunity given.
8 I have heard the arguments from ld. Amicus Curiae for accused Vikram, Raj Kumar and Ashok and ld. Counsels for accused Saleem and Sameer alias Sonu and Ld. Addl. P.P for State. 9 Ld. Amicus Curiae for accused Vikram, Raj Kumar and Ashok has prayed for acquittal of accused by submitting that no recovery has been affected from the possession of accused. PW3 Jahangir Ali has not supported the prosecution story. Accused were arrested in case FIR No.161/07, P.S Civil Line, wherein they made the disclosure statement, on the basis of which they have been arrested in the present case. All the accused have been acquitted in case FIR No.161/07, PS Civil Line. The knife allegedly used by accused Vikram has been recovered. Disclosure statements of accused have not been recorded in the present case. Accused are innocent. They have been falsely implicated in the present case. 10 Ld. Counsel for accused Saleem has also prayed for acquittal of accused by submitting that recovery of case property from the possession of accused Saleem is doubtful. No proof of ownership or tenancy of the premises from which the case property has been recovered is placed on record. Auto driver was not made a witness to the recovery. Case property was not sealed by I.O. MHC(M) is not examined by prosecution. No public witness was joined by the I.O at the time of recovery of case property.
Sessions Case No. 160/11 Page 4/28 511 Ld. Counsel for accused Sameer did not submit arguments despite opportunity.
12 On the other hand, Ld. Addl. P.P has submitted that prosecution has proved its case beyond reasonable doubt against accused as all the material witnesses have supported the prosecution story.
13 First of all, I am dealing with Section 395 read with Section 34 IPC in respect of which all accused except accused Saleem have been charged with.
14 In the present case, out of 14 witnesses, PW3 Jahangir Ali is the star witness of this case, being the complainant. He has deposed that he has been running a Vikram Tempo No.DL-1LC-4864. On 25.6.07, after loading 28 bags of plastic raw material(plastic dana)from 1665 Industrial Area, Narela, he left for Okhla Phase-I, for unloading the said raw material there. Each bag was containing about 35 kgs of plastic dana. When, he reached near Bye Pass, Majnu Ka Tila Red Light at about 9:00 PM, one tyre of tempo got punctured. He [PW-3] replaced the tyre with stepney. He again started the tempo and when he reached near Chandgi Akhara, near CNG Petrol Pump outer road, at about 12 midnight, one of the tyre got punctured again. He [PW3] took the tempo by the side of road. He was not having any means to go ahead. So, he slept in the tempo. At about 3 AM one person came to him and asked for a screw driver. He (PW3) told him that he was Sessions Case No. 160/11 Page 5/28 6 not having screw driver. He (that person) went away. After about 15 minutes, one boy caught him by legs, the other by hair and the third one put a knife on his neck. Thereafter, they all looted all the 28 bags, containing plastic dana and kept the same in a RTV No. 1408 He called the police at 100 number. Police came there. His statement Ex.PW3/A was recorded by the police.
15 He [PW3] has identified four accused by deposing that accused Vikram had put knife on his neck, accused Sameer caught him by hair, accused Ashok caught him by his legs and accused Raj Kumar was the driver of RTV, in which he looted bags were taken away. There was one more person aged about 16-17 years, with them, but he is not present in the court. He [the person not present in court] had thrown stone at him, at the instance of the accused persons. 16 He has further deposed that after about 3-4 days of the incident, he had gone to Tihar Jail with IO for identification of accused persons and he had correctly identified them there. 17 In cross-examination by ld. Addl. P.P for State, PW3 has deposed that statement dated 3.7.07 was recorded by the IO U/S 161 Cr.PC after the identification of the accused persons by him in Tihar Jail. He came to know that the accused persons had refused to participate in TIP. Thereafter, he was called by the ld. M.M, alongwith IO, to finalise TIP proceedings. When he reached Dodi of Sessions Case No. 160/11 Page 6/28 7 the Tihar Jail Complex, he identified the five accused persons, who were present there. Their names were known as Vikram @ Ganja, Sameer @ Sonu, Raj Kumar, Ashok Kumar, Amit @ Bouncer and same were told by him to the IO. He [PW-3] had also told that the said accused persons, after looting the said bags containing plastic dana and after putting the same in RTV No.DL-IVA-1402, ran away from the spot. The statement dated 26.6.07 was recorded by the I.O. U/S 161 Cr.PC. I.O had called the crime team at the spot. Photographs were taken there. Chance prints were also lifted and at his instance, site plan was prepared. He [PW-3] has deposed that the said facts could not be deposed by him in examination-in-chief as he is an illiterate person and due to lapse of time, he forgot the same. He[PW3] has identified case property through photograph Mark X1.
18 In cross-examination by ld. Amicus Curiae for accused Sameer, PW3 has deposed that he does not know as to what clothes were worn by accused sameer at the time of incident. At the time of identifying the accused persons in Tihar Jail by him, all were in un- muffled face. He has denied that accused Sameer was not present at the spot at the time of incident and has been falsely implicated in the case or that that he is deposing falsely.
19 In cross-examination by ld. Counsel for accused Saleem PW3 has deposed that no recovery of 28 robbed bags, containing Sessions Case No. 160/11 Page 7/28 8 plastic dana, was affected in his presence.
20 An opportunity to cross-examine this witness has been given to remaining accused persons but they did not avail of that opportunity.
21 After going through the testimony of PW3, I am of the considered view that there is no infirmity in his testimony. He has fully supported the prosecution case by deposing the role of each of accused. He has duly identified the accused Vikram, Sameer, Ashok and Raj Kumar.
22 In the present case, Ld. Addl. P.P has cross-examined PW3 on certain points, which were not deposed by him [PW-3] in his examination-in-chief. It is further worth noting that PW-3 has clarified that he could not depose those facts as he is an illiterate person and due to lapse of time he forgot to depose the facts. I am of the considered view that omission on the part of PW-3 to depose certain facts will not materially affect the prosecution case because testimony of PW3 remained intact so far as the offence of dacoity by the accused persons is concerned. It cannot be said in any manner that PW3 has not supported the prosecution story and turned hostile. It is worth noting that in cross-examination by ld. Counsel for accused nothing has come on record to dis-believe the testimony of PW3. Further, testimony of PW-3 cannot be disbelieved on the ground that knife, Sessions Case No. 160/11 Page 8/28 9 used by accused Vikram in the commission of dacoity, has not been recovered. I am of the considered view that if I.O of case has not conducted the investigation properly and has not taken any step for recovery of knife, then the true and reliable testimony of PW-3 cannot be brushed aside. It is worth noting that PW-3 has categorically deposed that accused Vikram put knife on his neck and looted 28 bags, which were loaded in the tempo.
23 Further, the testimony of PW-3 cannot be disbelieved even if he has deposed that I.O did not record the disclosure statement of accused Vikram, Sameer, Raj Kumar and Ashok. It is worth noting that disclosure statement of accused is not a substantive piece of evidence and that no recovery has been affected from accused Vikram, Sameer, Raj Kumar and Ashok. It is worth noting that it is not the case of prosecution that case property has been recovered from the possession of these accused. I am of the considered view that testimony of PW-3 has remained unshaken, so far as, the offence U/S 395 IPC is concerned. Further, the acquittal of accused in case FIR No. 161/07 U/S 399, 402 r/w Section 34 IPC P.S. Civil Lines, will not have any affect on this case. I am of the considered view that the present case will be decided on the basis of material and evidence on record of this case.
24 Further, the testimony of PW3 is corroborated with the testimony of PW4 Neeraj Jain. He [PW-4] is the owner of the Sessions Case No. 160/11 Page 9/28 10 company situated at D-1665, DSIDC, Narela Industrial Area, Delhi. He has deposed that on 25.6.07, 28 bags, containing 35 kg of PVC compound, were loaded in the tempo No.Dl-1LH-4864 vide Invoice No.44, Ex.PW4/B for delivering the same to KEI Industries Ltd, D-90, Okhla Industrial Area, Phase-1, New Delhi. He came to know that the said 28 bags were looted from the said tempo by some persons. Later on, he took the recovered PVC compound(dana)on superdari vide superdaginama Ex.PW4/A. The photographs of said bags are Mark X1 collectively.
25 An opportunity to cross-examine this witness has been given to ld. Counsel for accused Sameer, but he did not avail of that opportunity.
26 In cross-examination by ld. Counsel for accused Saleem, PW4 has deposed that number of vehicle, in which the goods were loaded, was mentioned in the invoice. The quality of PVC compound as produced by him is not easily available in the market. He identified the recovered PVC compounds bags in Civil Line police station. He has denied that he did not identify the case property in police station Civil Lines and he is deposing falsely. 27 An opportunity to cross-examine this witness has been given to ld. Counsel for remaining accused, but he did not avail of that opportunity.
Sessions Case No. 160/11 Page 10/28 1128 The testimony of PW4 cannot be disbelieved only on the ground that Ex.PW4/B does not bear the signature of PW-4 because the invoice has been signed by the authorised signatory of the company.
29 The testimony of PW3 is further corroborated with the testimony of PW11 Lal Chand. He [PW-11] has deposed that tempo no.Dl-1LH-4864 is registered in his name. He has purchased the tempo in the month of March, 2007. Since then, Jahangir was the driver on the said tempo. He was informed on 26.6.07 that some persons had looted the plastic dana from the said tempo. His tempo was taken into possession by the police. On 29.6.07 he took the said tempo on superdari after executing superdginama Ex.PW11/A. The tempo is Ex.PX-1.
30 In cross-examination by ld. Counsel for accused Raj Kumar, PW-11 has deposed that Jahangir Ali was the driver on the tempo on 25.6.07. On that day, Jahangir was having his mobile phone. On 26.6.07 Jahangir told him on the phone that some persons had looted the plastic raw materials, loaded in the tempo. He had seen the bilti, bills etc of the plastic raw materials in the PS on 27/28.6.07. 31 An opportunity to cross-examine this witness has been given to ld. Counsel for remaining accused but they did not avail of that opportunity.
Sessions Case No. 160/11 Page 11/28 1232 The testimony of PW3 that accused loaded the 28 bags in vehicle RTV is corroborated with the testimony of PW5 Anil Kumar. He [PW-5] has produced the vehicle RTV bearing No. Dl- 1VA-1402. He [PW-5]has identified the RTV vehicle as Ex.P1. 33 An opportunity to cross-examine this witness has also been given to ld. Counsel for accused, but they did not avail of that opportunity.
34 Thus, from the true and trustworthy testimony of PW-3, which is corroborated with the testimonies of PW4, PW-11 and PW-5, prosecution has successfully, proved that on 26.06.07 at about 3:15 AM, accused Vikram, Sameer, Raj Kumar and Ashok alongwith co-accused Amit [juvenile] committed dacoity of 28 bags of plastic raw material, which were loaded in a tempo No. DL1LH 4864, which was driven by PW-3. Thus, accused Vikram, Sameer, Raj Kumar and Ashok are convicted of offence U/S 395 IPC.
35 Now, I am dealing with Section 397 IPC in respect of which accused Vikram alias Ganja has been charged with. 36 In the present case, PW-3 Jahangir Ali, through his true and reliable testimony, which has been discussed in the earlier part of judgment, has categorically deposed that knife [deadly weapon] was used by accused Vikram by putting the same on his neck, while committing dacoity of 28 bags of plastic raw material. It is worth Sessions Case No. 160/11 Page 12/28 13 noting that for the purpose of Section 397 IPC, the actual use of knife and inflicting of injuries on the body of victim is not necessary. 37 In Ashfaq V. State [Govt. of NCT of Delhi], AIR 2004 SC 1253, it has been observed by Hon'ble Supreme Court that "what is essential to satisfy the word 'uses' for the purposes of Section 397 IPC is 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 a terror in the mind of victim and not that it should be further shown to have been actually used for cutting, stabbing, shooting, as the case may be.
38 Thus, I am of the considered view that prosecution has also successfully proved its case against accused Vikram alias Ganja in respect of offence U/S 395 r/w Section 397 IPC. Accordingly, accused Vikram alias Ganja is convicted in respect of offence U/S 395 r/w Section 397 IPC.
39 Now, I am taking up Section 412 IPC, in respect of which accused Saleem has been charged with.
40 PW14 SI Kishan Chand has deposed that on 1.7.07 accused Vikram, Sameer, Ashok Kumar, Raj Kumar and Amit(juvenile)were arrested in case FIR No.161/07, u/s 399/402/34 IPC by ASI Mahavir Singh of P.S Civil Lines. During investigation, accused persons made disclosure statements about their involvement in the present case. He Sessions Case No. 160/11 Page 13/28 14 (PW4)received the copies of their disclosure statements and arrested the accused in this case vide memo Ex.PW12/A, Ex.PW12-X, Ex.PW- 12/Y and Ex.PW12/Z respectively. On the same day, accused Saleem, present in court, was arrested at the instance of accused Vikram. He prepared the arrest memo Ex.PW12/E and conducted his personal search vide memo Ex.PW12/F. During investigation accused Saleem made a disclosure statement Ex. PW12/D and got recovered four bags of plastic dana. He seized the bag vide memo Ex.PW12/G. All the accused were produced before the court and one day police remand of accused Saleem was obtained. During interrogation accused Saleem made another disclosure statement Ex.PW14/A and got recovered 24 bags of plastic dana from H.No.E-3/27. He [PW-14] seized the same vide memo Ex.PW7/A. 41 In cross-examination by ld. Counsel for accused Saleem, PW14 has deposed that accused Saleem was arrested from Meena Bazar, when he was standing in a park. He interrogated accused Saleem in the park. The house of the accused Saleem was situated at about 10 to 15 km from the park. They had gone there by auto. He asked the auto driver to join recovery proceedings but he refused for the same. No legal notice was given to him. The door of the house of accused Saleem was closed but it was not bolted. There were two rooms on the ground floor. Four kattas were lying inside Sessions Case No. 160/11 Page 14/28 15 the first room. The wife of the accused was present at the house. He did not make request to her to become a witness in the case. He affixed the particulars of the case on each of the katta. He did not take the documents in respect of ownership of the house. The persons standing in the gali were asked to join the proceedings but none agreed. He [PW-14] did not affix his seal on the said kattas. Till the recovery was affected, the auto driver remained in the auto, which was parked in the gali. He has denied that no recovery was affected from accused Saleem. No TIP of case property was done. 42 In cross-examination by ld. Counsel for accused Sameer, PW14 has deposed that he was informed by ASI Mahavir Singh in police station Civil Lines that the accused persons have been arrested in case FIR No.161/07, P.S Civil Lines. He has denied that accused Sameer was never taken to the spot or that no recovery was affected from him or that no disclosure statement was obtained by him from I.O of case FIR No.161/07, PS Civil Lines. He has denied that accused Sameer was lifted from his house at Bhajan Pura and was implicated in both the cases falsely.
43 In cross-examination by ld. Amicus Curiae for accused Vikram, Raj Kumar and Ashok Kumar, PW14 has deposed that he received the copies of disclosure statements of all accused persons, who were arrested in case FIR No.161/07. He had arrested the Sessions Case No. 160/11 Page 15/28 16 accused persons on the night of 1.7.07. He moved an application for TIP of accused persons but all the accused refused to participate in the TIP proceedings.
44 It is worth noting that the testimony of PW14 is corroborated with the testimony of PW7 SI Manish Kumar. He [PW7] has categorically deposed that accused Saleem got recovered 24 bags containing plastic dana from the first floor of premises No.E-3/27, Ansar Colony, Laxmi Nagar, Delhi and seized vide memo Ex.PW7/A. 45 In cross-examination by ld. Counsel for accused Saleem, PW7 has deposed that public persons were asked by the I.O to join the proceedings before the recovery of the case property. The premises E-3/27, Laxmi Nagar is two storey building, which is situated in the middle of the gali. The neighbours were asked to join the proceedings but none of them agreed. Some persons were available in the room but he cannot tell the name of those persons and cannot tell whether they were owners or the tenants. He has denied that he did not join the investigation or that nothing was recovered from the house of accused.
46 An opportunity to cross-examine this witness has been given to ld. Counsel for other accused but they did not avail of that opportunity.
Sessions Case No. 160/11 Page 16/28 1747 The testimony of PW-14 is further corroborated with the testimony of PW-8 Inspector Raj Kumar. He [PW-8] has deposed that on 01.07.07 he alongwith I.O. ASI Kishan Chand [Pw-14], SI Manish [PW-7] and accused Saleem, present in court, reached E-3/27, Amar Colony, Laxmi Nagar. Accused pointed out one room at first floor and after opening the door, he got recovered 24 bags containing plastic dana, which were taken into possession vide seizure memo Ex. PW7/A. PW-8 has identified the bags, shown in photo Mark X. 48 An opportunity to cross-examine this witness has been given to ld. Counsel for accused but they did not avail of that opportunity.
49 It may be noted that in the present case, first of all, four bags were got recovered by accused Salim, after his arrest, in pursuance of his disclosure statement Ex. PW12/D. The four bags were seized vide seizure memo Ex. PW12/G. Thereafter, accused was produced before the court and one day police remand was obtained by PW-14. He [accused] was interrogated, during which he made disclosure statement Ex. PW14/F. In pursuance of that disclosure statement, the remaining 24 bags were got recovered by accused from his house. The bags were seized vide seizure memo Ex. PW7/A by PW-14. It is worth noting at the time of first recovery of four bags, PW-14 was accompanied by PW-12 HC Jeevan Bhatt alongwith other police officials. PW-12 has categorically deposed that on 01.07.07, Sessions Case No. 160/11 Page 17/28 18 accused, present in court, took them to his house at Amar Colony, Laxmi Nagar and got recovered four bags of plastic dana, which were seized vide memo Ex. PW12/G. Case property was deposited in malkhana. PW-12 has identified four bags, as Ex. P-1 to Ex. P-4 collectively.
50 An opportunity to cross-examine this witness has been given to ld. Counsel for accused Salim but they did not avail of that opportunity.
51 Now, a perusal of seizure memos Ex. PW12/G and Ex. PW7/A shows that on each bag, specific material was written, which shows that the bags were pertaining to company, of which PW-4 Neeraj Jain was the Director. It is further significant to note that seizure memo Ex. PW7/A is signed by both recovery witnesses i.e. PW-7 SI Manish Kumar and PW-8 Inspector Raj Kumar. Similarly, the seizure memo Ex. PW 12/G is also signed by recovery witnesses PW-12 HC Jeevan Bhatt. I am of the considered view that the true and trustworthy testimonies of recovery witnesses cannot be disbelieved on the ground that they are police officials.
52 In State of Assam V. Muhim Barkatali, AIR 1987 SC 98, it has been observed by Hon'ble Supreme Court that evidence of police official cannot be under estimated merely because he is a police officer.
Sessions Case No. 160/11 Page 18/28 1953 It is worth noting that recovery witness PW-7 SI Manish Kumar has deposed in his cross-examination by ld. counsel for accused Saleem that public persons were asked by I.O to join the proceedings before recovery of case property. He has further deposed that neighbourers were asked to join the proceedings but none agreed. Similarly, PW-14 has also deposed in his cross-examination by ld. counsel for accused Saleem that he asked the auto driver to join the recovery proceedings but he refused to join the same. He has further deposed that the persons, standing in gali, were asked to join the recovery proceedings but none agreed. In these circumstances, the recovery of case property cannot be disbelieved on the ground that no public witness or auto driver was joined by I.O at the time of recovery of case property. Further, it is the tendency of public not to come forward and depose in criminal case.
54 In State of A.P. V. S. Rayappa and Ors. [2006] 4 SCC 512, it has been observed by Hon'ble Supreme Court that " On the contrary, it has not almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are harassed a lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination."
Sessions Case No. 160/11 Page 19/28 2055 Further, the testimonies of recovery witnesses cannot be disbelieved on the ground that case property was not sealed by I.O. It is worth noting that PW-14 has deposed that he had affixed the particulars of case on each and every bag. The testimony of PW-14 cannot be disbelieved on the ground that the photograph Mark X-1 was not showing the particulars of case as in the photograph Ex. Mark X-1, the bags have been piled up.
56 Further, the testimonies of recovery witnesses cannot be disbelieved on the ground that TIP of case property was not conducted. It is worth noting that in the present case, the case property was easily identifiable as PW-4 Neeraj Jain has categorically deposed that the quality of PVC compound produced by them is not easily available in the market. Moreover, PW-4 has identified the 28 bags in P.S. Civil Lines. Therefore, he moved an application on 03.07.07 for release of those bags on superdari. In pursuance of that, Ld. MM called the report from SHO, who had replied that all the recovered bags were lying in the malkhana of PS. SHO has also submitted in reply that he had no objection in the release of case property to PW-4. Accordingly, the case property was released to PW-4 on his furnishing the Superdarinama Ex. PW4/A. 57 Further, the prosecution case cannot be disbelieved on the ground that MHC[M] was not examined by the prosecution. It is worth noting that PW-12 HC Jeevan Bhatt has deposed that case Sessions Case No. 160/11 Page 20/28 21 property was deposited in the malkhana after its recovery. It is further worth noting that PW-4 Neeraj Jain has taken the case property on superdari. He [PW-4], during his examination has, deposed that he can produce the case property, if required. But, Ld. counsel for accused never pressed for producing the case property by PW-4. Further, PW-4 has also deposed that he had identified the case property in P.S. Civil Lines. In these circumstances, I am of the considered view that non-examination of MHC[M] is not fatal to prosecution case. It is worth noting that it is the quality of evidence and not the quantity that counts in a case.
58 So far as, the question, as to whether the premises, from which the case property has been recovered, was owned or taken on rent by accused Saleem, is concerned, I am of the considered view that the question is not material one so far as the recovery of case property is concerned. Moreover, if there are certain lapses or omissions on the part of I.O, which do not go to the roots of case, I am of the considered view that accused cannot be acquitted on that ground. 59 In view of above discussion, I am of the considered view that prosecution has also proved its case against accused Saleem beyond reasonable doubt U/S 412 IPC. Accordingly, accused Saleem is convicted of offence U/S 412 IPC.
60 To conclude, accused Vikram alias Ganja, Sameer, Raj Kumar and Ashok are convicted of offence U/S 395 IPC. Accused Sessions Case No. 160/11 Page 21/28 22 Vikram stands convicted in respect of offence U/S 395 r/w Section 397 IPC. Accused Salim is convicted in respect of offence U/S 412 IPC.
Announced in open court today on (Smt. Bimla Kumari) on 30.03.12. Addl. Sessions Judge-02(North) Tis Hazari Court, Delhi.
Sessions Case No. 160/11 Page 22/28 23IN THE COURT OF SMT. BIMLA KUMARI ADDL. SESSIONS JUDGE-02 (NORTH):DELHI.
S.C. No. 122/11Case I.D. No.02401R0921922007 State Vs.
(i) Vikram @ Ganja Son of Shish Ram R/o Gali No.1, Balbir Ka Makan, Khajuri, Bhajanpura, Delhi.
(ii) Sameer @ Sonu Son of Shakeel R/o Gali No.1, Khajuri Khas Delhi
(iii)Raj Kumar son of Rajbir Singh F.251, Khajuri Khas Delhi.
(iv)Ashok Son of Raj Kumar F.1, E-60, H. No.255, Sunder Nagari Delhi.
(v)Salim son of late Sahib Chand R/oE.327 Huts Sayyed Peer Laxmi Nagar Delhi.
FIR No.: 158/07 PS: Civil Lines U/S 392/395/397/412 IPC Sessions Case No. 160/11 Page 23/28 24 Arguments heard: 31.03.12 Date of order: 03.04.12 ORDER ON SENTENCE In the present case, accused Vikram alias Ganja, Sameer, Raj Kumar and Ashok are convicted vide my separate judgment dated 30.03.12 in respect of offence U/S 395 IPC.
2 Accused Vikram alias Ganja has also been convicted in respect of offence U/S 395 r/w Section 397 IPC. 3 Accused Salim has been convicted in respect of offence U/S 412 IPC.
4 I have heard arguments on the point of sentence from ld. counsel for convict and Ld. Addl. PP.
5 Ld. counsels for convicts Vikram, Samir, Ashok, Raj Kumar and Salim have prayed for a lenient view. Ld. counsel for accused/convict Vikram has submitted that Vikram is 30 years old. He is married but not having any child. His father is a Tonga driver. His mother is a housewife and works in field. He has three brothers and one sister. All of them are married and living separately with their respective families. Four cases are pending against him at Ghaziabad. Two cases of theft are pending against him in Delhi. Three/four more cases were also pending against him but he has been acquitted in those cases.
Sessions Case No. 160/11 Page 24/28 256 Ld. counsel for accused/convict Samir has submitted that age of accused is 27 years. He is the only son of his parents. He is doing business of white washing. He is married. He has four children. Three daughters are aged 7 years, 5 years and 3 years respectively. One son is 8 years old. His father remains at home, on account of ill health. His mother is a domestic help. Four criminal cases are pending against him besides, the present one. He is not a previous convict. 7 Ld. counsel for accused Raj Kumar has submitted that he is 34 years. He is married and having two daughters, aged about 13 years and 9 years respectively. He is a driver by profession. He has one elder brother, who is married and living separately with his family. He has two sisters, who are already married. His parents are senior citizens and are not doing anything on account of old age. No other case is pending against him. He has already been acquitted, in one case of Giroh Bandi [U/S 399/402 IPC].
8 Ld. counsel for accused/convict Ashok has submitted that convict Ashok is 26 years. He was working as a waiter in a restaurant. He is married and is having three months old daughter. His elder brother is ill and remains on bed. His father is not alive. His mother and wife are household. No other case is pending against him. He is not a previous convict.
9 Ld. counsel for accused/convict Salim has submitted that he Sessions Case No. 160/11 Page 25/28 26 is 30 years old. He used to sell clothes on cycle. He is having three children. His daughter is 15 years old while sons are 13 years and 7 years old respectively. His parents have already expired. He has two elder brothers, who are living separately. He is not a previous convict. No other case is pending against him.
10 On the other hand, ld. Addl. P. P for State has prayed for imposition of maximum punishment upon the convict for the proved commission of offence.
11 Section 395 IPC is reproduced here for ready reference;
"Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
12 In the present case, all accused in furtherance of their common intention with co-accused Amit [Bouncer] have committed robbery of 28 bags of plastic raw material (plastic dana), which was loaded in Tempo No.DL-1LH-4864, driven by Jahangir Ali. Keeping in view the totality of facts and circumstances, convicts Samir, Raj Kumar and Ashok are sentenced to rigorous imprisonment for a period of five years and a fine of Rs. 5000/- each in respect of offence U/S 395 IPC. In default of payment of fine, defaulting convict will suffer simple imprisonment for a period of five months. 13 In case of convict Vikram alias Ganja Section 397 IPC has Sessions Case No. 160/11 Page 26/28 27 been held to be attracted. The same is reproduced here for ready reference:
"If, at the time of committing robbery or dacoity, the offender used any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."
14 It may be noted that Section 397 IPC does not provide any substantive sentence. It only provides that the imprisonment will not be less than seven years if the offender at the time of committing the robbery or dacoity uses a deadly weapon or causes grievous hurt to any person and attempts to cause death or grievous hurt to any person. 15 In Kalu alias Ram Kumar V. State of Madhya Pradesh, 1992, Crl. L. J, 2380 M.P, it has been observed that separate sentences under Section 395 and 397 IPC are not permissible. 16 In the present case, accused/convict Vikram alias Ganja has used knife by putting the same on the neck of PW-3 Jahangir Ali, while committing robbery of 28 bags of plastic dana. Hence, convict Vikram alias Ganja is sentenced to rigorous imprisonment for a period of seven years and fine of Rs. 5000/- in respect of offence U/S 395 r/w Section 397 IPC. In default of payment of fine, accused Vikram will suffer simple imprisonment for five months.
Sessions Case No. 160/11 Page 27/28 2817 In the present case accused/convict Salim has retained 28 bags of plastic dana knowingly or having reason to believe that the possession of bags have been transferred by the commission of dacoity. Accordingly, convict Salim is sentenced to rigorous imprisonment for a period of four years and a fine of Rs. 5000/-. In default of payment of fine, he will suffer simple imprisonment for a period of four months.
18 It is ordered that accused/convict will get the benefit of Section 428 CrPC.
19 As per record, accused/convict Vikram alias Ganja has been in JC from 11.07.07 to 09.07.09. Accused/convict Samir has been in JC from from 11.07.07 to 29.07.09 and from 30.03.12 till date. Accused/convict Raj Kumar has been in JC from from 01.07.07 to 20.08.09 and from 30.03.12 till date. Accused/convict Ashok has been in JC from 01.07.07 to 22.07.09 and from 30.03.12 till date. Accused/convict Salim has been in JC from 01.07.07 to 16.07.08 and from 30.03.12 to till date.
20 A copy of this order be given to the convicts free of costs.
21 File be consigned to Record Room.
Announced in the open court today
on 03.04.12 (Smt. Bimla Kumari)
Additional Sessions Judge-II(North)
Tis Hazari Courts, Delhi.
Sessions Case No. 160/11 Page 28/28