Delhi District Court
State vs Harbans Lal And Ors. on 19 February, 2013
Sessions Case No. 390/1/11 FIR No. 340/09 State Vs Harbans Lal and ors. Police Station Uttam Nagar Under Section 395/ 327/ 34 IPC Convicted under section 323/34 19.02.2013 Pre: Ld. APP for the state. Complainant Vidhyadhar Shukla, in person. Accused are on bail with counsel Sh. Rajbir Bansal. Arguments heard on the point of sentence. Vide separate order placed along side in the file, convict persons namely 1.Harbans Lal, 2. Narender Kumar, 3. Gulshan Kumar @ Rinku, 4. Nisar Ahmad and 5. Jitender @ Bunty are sentenced to pay a fine of Rs.1000/ each in default one month S.I. for the offence u/s 323/ 34 IPC. Accused persons are also directed to pay Rs.18,000/ each as compensation to the victim/ complainant. At this stage, accused Jitender has moved an application seeking time to deposit compensation amount. Heard. Time granted. Four accused persons have paid Rs.18,000/ each as compensation to the victim/ complainant Vidhyadhar Shukla. Fine Rs.1000/ each has also been deposited. Now, case be fixed for payment of compensation amount by accused Jitender on 23.02.2013. (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 1 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 390/1/11 FIR No. 340/09 State Vs Harbans Lal and ors. Police Station Uttam Nagar Under Section 395/ 327/ 34 IPC Convicted under section 323/34 ORDER ON THE POINT OF SENTENCE 19.02.2013 Pre: Ld. APP for the state. Complainant Vidhyadhar Shukla, in person. Accused are on bail with counsel Sh. Rajbir Bansal. ld. APP submits that offence of such types are increasing day by day. Ld. APP submits that accused persons have already been absolved for the offences u/s 395/327/ 34 IPC IPC. On these grounds ld. APP submits that convict deserve maximum punishment for the offence u/s 323/ 34 IPC. Contrary to it, ld. Counsel Sh. Rajbir Bansal for accused/ convict persons namely Harbans Lal and Gulshan Kumar submits that they are close relatives being father and son respectively. Ld. Counsel again submits that accused Harbans Lal is aged about 56 years old and he has young daughter too of marriageable age. Ld. Counsel further submits that accused Gulshan is aged about 30 years. He is married person and having one small child to look after. ld. Counsel further submits that they are the 2 sole bread earner in their family. ld. Counsel further submits that both these persons are fruit sellers. Ld. Counsel again submits that criminal antecedents of accused persons are clear. On these grounds ld. counsel for convict prays for taking lenient view at the time of awarding sentence. ld. Counsel Sh. Rajbir Bansal for accused/ convict Narender Kumar submits that he is aged about 36 years old. He is married person and having two small children to look after. He has old ailing parents to look after. ld. Counsel further submits that he is the sole bread earner in his family. ld. Counsel further submits that he is also fruit seller. Ld. Counsel again submits that criminal antecedents of accused are clear. On these grounds ld. counsel for convict prays for taking lenient view at the time of awarding sentence. ld. Counsel Sh. Rajbir Bansal for accused/ convict namely Nishar Ahamad again submits that he is aged about 46 years old. He is married person and having three small children to look after. ld. Counsel further submits that he is the sole bread earner in his family. ld. Counsel further submits that he is also fruit seller. Ld. Counsel again submits that criminal antecedents of accused are clear. On these grounds ld. counsel for convict prays for taking lenient view at the time of awarding sentence. ld. Counsel Sh. Rajbir Bansal for accused/ convict namely Jitender @ Bunty again submits that he is aged about 42 years old. He is married person and having two small children to look after. ld. Counsel further submits that he is the sole bread earner in his family. ld. Counsel further submits that he is also fruit seller. Ld. Counsel again submits that criminal 3 antecedents of accused are clear. Ld. Counsel for accused persons further submitted that earning of each accused persons is Rs.30,000/ to 35,000/ per month. On these grounds ld. counsel for convict prays for taking lenient view at the time of awarding sentence. I have heard the submissions of ld. counsel for the convict persons and ld. APP as well. Keeping in view of the facts and circumstances of the case and family background of convict persons I am of the view that ends of justice will be met if convict persons namely 1.Harbans Lal, 2. Narender Kumar, 3. Gulshan Kumar @ Rinku, 4. Nisar Ahmad and 5. Jitender @ Bunty are sentenced to pay a fine of Rs.1000/ each in default one month SI for the offence u/s 323/ 34 IPC. Accused persons are also directed to pay Rs.18,000/ each as compensation to the victim/ complainant. Accordingly, convict persons namely 1.Harbans Lal, 2. Narender Kumar, 3. Gulshan Kumar @ Rinku, 4. Nisar Ahmad and 5. Jitender @ Bunty are sentenced to pay a fine of Rs.1000/ each in default one month SI for the offence u/s 323/ 34 IPC. Accused persons are also directed to pay Rs.18,000/ each as compensation to the victim/ complainant. ANNOUNCED IN THE OPEN COURT ON THIS 19.02.2013 (RAJ KAPOOR) ASJ2/ West Tis Hazari Courts, Delhi 4 IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI. Sessions Case No. 390/1/11 Assigned to Sessions. 14.01.2011 Arguments heard on 09.01.2013 Date of order 13.02.2013 FIR No. 340/09 State Vs 1. Harbans Lal s/o Choudhary Ram r/o WZ D 436 Santgarh, near Tilak Nagar, Delhi 2. Narender Kumar s/o Topan Dass r/o T300, Prem Nagar, near Jain Sansthan Uttam Nagar, Delhi. 3. Gulshan Kumar @ Rinku s/o Harbans Lal r/o WZ D 436 Santgarh, near Tilak Nagar, Delhi 4. Nisar Ahmad s/o Ismail Ahmad r/o H. No. 57/1, JJ Colony, Camp no.2, Nangloi, Delhi. 5. Jitender @ Bunty s/o Ved Prakash r/o F62, Om Vihar, Uttam Nagar, Delhi. Police Station Uttam Nagar Under Section 395/ 327/ 34 IPC Convicted under section 323/34 JUDGEMENT
1. Briefly facts of the case are that as per version of PW1 Vidhya Dhar Shukla, victim that he used to sell fruits on Rehri at Pankha Road, Uttam Nagar. He purchased 280 cartons of Mango from Hanuman 5 and also purchased 125 Cartons of Mango from Azadpur Mandi on cash, on 01.07.2008 and 03.07.2008 respectively. He kept total 405 cartons of Mango in the godown situated at A1, J.J. Colony, Hastal, near Gurdwara, Delhi. This godown belongs to PW5 Wasim Khan.
2. On 05.07.2008 when PW1 Vidhya Dhar Shukla went to Azadpur Mandi, accused persons came at the godown of PW5 Wasim Khan and stated him that mango cartons which were kept inside in the godown of Wasim Khan, belong to them and these do not belong to Vidhyadhar Shukla. PW5 Wasim Khan stated that the mango cartons have been kept by Vidhyadhar Shukla and same belongs to Vidhya Dhar Shukla. On this accused persons asked PW5 Wasim Khan to call Vidhyadhar Shukla. Hence, PW5 Wasim Khan went near red light Uttam Nagar to call Vidhyadhar Shukla who used to put his Fruit Rehari there but he was not there. PW5 Wasim Khan waited for Vidhya Dhar Shukla to come and he also telephonically called PW1 Vidhya Dhar Shukla to come there. PW1 Vidhya Dhar Shukla boarded one TSR from Azadpur Mandi and got down at Pankha Road where PW5 Wasim Khan met him. Thereafter PW1 Vidhya Dhar Shukla along with PW2 Bengali Babu, PW3 Sri Chand, PW4 Anil Shukla and PW5 Wasim Khan went to the godown situated 6 at A1, J.J. Colony, Hastal. As soon as PW1 Vidhyadhar Shukla reached at the turning point, accused persons exhorted and threatened and uttered that they would see as to who comes there. Then, PW1 Vidhya Dhar Shukla stated that he has purchased the mango cartons from Hanuman and from Azadpur Mandi by paying an amount of Rs.86,800/ for the same.
3. On hearing this, accused persons became annoyed and gave merciless beatings to PW1 Vidhyadhar Shukla, snatched the key of the godown and at that time an amount of Rs.32,000/ was taken out from the left hand pocket of the pant of PW1 Vidhyadhar Shukla including some change and other documents and had also taken mobile number 9891205219 (Nokia) which belongs to Vidhyadhar Shukla from the right side pocket of his pant. Accused persons opened the godown, got loaded 405 cartons of mangoes in Tata 407 tempo no. DL1LD 8128 which was driven by PW8 Subhash Chand. Thereafter PW8 Subhash Chand drove the aforesaid tempo, brought the fruit carats to Fruit Mandi Keshopur and fruits carats were got unloaded on the side of the road. PW8 Subhash Chand received an amount of Rs.400/ against fare, from accused persons.
4. Having received merciless beatings, PW1 Vidhya Dhar Shukla 7 became unconscious, who was removed to his room by Anil, Wasim, Sri Chand, Johny etc. Due the said beatings, PW1 Vidhya Dhar Shukla was feeling difficulty in taking breathing, he applied Iodex and remained at his room. On the third day, he was taken to one private hospital situated at Uttam Nagar East. After discharge from the hospital, PW1 Vidhya Dhar Shukla went to PS Uttam Nagar, but no action was initiated by the police officials.
5. With the assistance of one social worker Nirmala Sharma, PW1 Vidhya Dhar Shukla was asked to medically examined at DDU Hospital. PW1 Vidhya Dhar Shukla made a call at 100 number and then only he was examined at DDU Hospital. Later on PW1 Vidhya Dhar Shukla filed a complaint case against accused persons which is Ex.PW1/A. The copy of the complaint addressed to SHO, PS Uttam Nagar is Ex.PW1/B. Subsequent to the order received from the court under section 156(3) Cr.P C, present case FIR No.340/09 vide Ex.PW7/B was registered against the accused persons.
6. Accordingly, accused persons were arrested and booked for the offence u/s 395 IPC. After completion of the investigation the challan was prepared and filed to the court. This case was committed to this Court and received on 14.01.2011 for trial as it 8 pertains to the heinous crime committed under section 395/ 34 IPC which is exclusively triable by court of Sessions. Ld. predecessor of this court framed the charge for the offences punishable u/s 395/327/ 34 IPC against accused persons vide order dated 29.01.2011.
7. To prove and substantiate its case the prosecution has examined witnesses namely PW1 Vidhyadhar Shukla, victim; PW2 Bangali Babu - eye witness; PW3 Sri Chand - another eye witness; PW4 Anil Shukla - another eye witness to the incident; PW5 Wasim Khan
- eye witness as well as owner of godown; PW6 W/HC Urshula - formal witness being DD writer; PW7 SI Amit - formal witness being duty officer; PW8 Subhash Chand - driver of the tempo through which mango cartons were taken away by the accused persons; PW9 Dr. V K Budhwar, Orthopaedic Surgeon; and PW10 Insp. Sube Singh Rao - IO of the case.
8. The most material witness in this case is PW1 Vidhyadhar Shukla being victim for the sake of brevity and convenience let his statement be reproduced verbatim which is as under: "I used to sell fruits on Rehri at Pankha Road, Uttam Nagar. I purchased 280 cartons of mango from one person namely Hanuman, who also used to sell fruit on 9 his Rehri and I purchased 125 cartons of mango from Azadpur Mandi by cash. I purchased these fruits on 1 and 3 July, 2008. I kept total 405 cartons of mango at the godown of Bhasin situated at A1 Hastal.
On 5.7.2008, I had gone to Azadpur Mandi, I was telephoned by Wasim and stated that some persons had come from Keshopur Mandi and they were asking for the mango carton kept at the godown. I boarded one TSR from Azadpur Mandi and got down at Pankha Road, where Wasim met me and he stated that 4045 persons were sitting at the godown and asking me to be present there. Thereafter, I alongwith other fruit seller namely Bangali Babu, Anil Shukla, Sri Chand and Wasim went at the godown Hastal. The moment we reached at the turning, persons stated that they would see as to who comes there but by that time I had reached near the godown and I saw Bansilal his son Rinku, Nissar, Narender and Bunti were present outside the godown. There were other 3035 persons near the godown. These persons mentioned above asked me about the mangoes and I stated that I purchased the mango carton from Hanuman and from Azadpur Mandi and I had paid an amount of Rs. 86800/ for the mango carton which I purchased from the Hanuman and thereafter all these persons started beating me. They gave me beating mercilessly and they had snatched the keys of the godown. I became unconscious due to the said beatings. At that time when I was being given beatings by the accused persons, they had taken out an amount of Rs. 32000/ which were kept in my left hand pocket of my pant and some change and other documents. These persons has also taken my mobile of NOKIA No. 9891205219 from my right side pocket of my pant. Thereafter, these persons opened the godown, loaded 405 cartons of mangoes in a Tata vehicle709 and had taken my 405 cartons of mangoes. I was unconscious at that time and I was told by the other persons later on that these accused persons had taken my mangoes cartons in Tata vehicles.
I was taken to my aforesaid room by Anil , Wasim, Sri Chand, Jony etc. I was feeling difficulties in taking breathing, I applied iodex and remained at the room. Thereafter, on the third day I was taken to one private hospital situated near Uttam Nagar East, where I was given and thereafter I was discharged from the hospital. Thereafter I went to the police station but police officials did not initiate any action. Thereafter I went to Nirmala 10 Sharma a Social Worker of Jagriti Mahila of Rajouri Garden, I again went to the PS but even this time my FIR was not lodged by the police officials. Nirmala Sharma asked me to go to Government Hospital, DDU Hospital then I went there. I met with the police officials posted at DDU Hospital, stated the facts to them but they did not get me medically examined at DDU Hospital, I made call at 100 numbers 89 times. Police officials came there but no action was initiated. I was examined by the doctor and I was given a medical prescription slip and I purchased the medicine from outside. I came back to my residence and finally moved a complaint case before the hon'ble court through my advocate. I have seen the copy of the complaint dt. 03.10.2008 placed on judicial file, the same is Ex.PW1/A which bears my signature at point A. I had seen the complaint addressed to police station Uttam Nagar which was received at PS vide Ex.PW1/B bears my signature at point A. After I had moved the complaint case, the present case was got registered, by the order of the Hon'ble court. I have seen my statement which was recorded by the police official same is Ex.Pw1/C which bears my signature at point A. I had shown the godown where the occurrence had taken place. I had also given the photocopy of my medical treatment at the private hospital, bills etc. I identify four accused persons present before the court namely Bunti, Rinku, Nissar and Narender. I can identify accused Bansi if shown to me. ( Identity of accused Bansi is not disputed by the Ld. Counsel.
XXX by Sh. Rajbir Bansal , Counsel for accused persons.
It is wrong to suggest that Hanuman and Anil Shukla are my relatives. I purchased fruits from Azadpur Mandi and not from Keshopur Mandi. It is wrong to suggest that I purchased fruits from Keshopur Mandi and even as on date today, I have to pay some due amounts towards the accused persons who are the whole seller at the Keshopur Mandi. I run a fruit rehri at the Uttam Nagar red light point, apart from me there are other fruits vendors at the same points namely Hanuman Shukla, Anil Shukla, Sri Chand and Bangali Babu. Wasim did not put his rehri at that point he put the same on some other place. Normally I used to sell fruits of costing Rs. 4000/ to 5000/ per day . It is correct that all the other Rehri fruit vendor namely Hanuman Shukla, Anil Shukla, Sri Chand, Bangali Babu and Wasim purchased the fruits from Keshopur Mandi and also from Azadpur Mandi. I have filed the 11 receipt for the purchase of 125 mangoes carton from the Azadpur Mandi. I do not know the name of the Adti ( fruit whole seller) of the Azadpur Mandi, through whom, I purchased the 125 cartons of Mangoes. I have not filed any receipt bill or cash memo regarding the purchase of 280 cartons of mangoes from Hanuman Shukla on record. Hanuman Shukla used to run the fruit Rehri at Uttam Nagar, red light point but now his whereabouts are not known to me. It is wrong to suggest that Hanuman alongwith me Anil Shukla , Wasim etc run a racket in a proper modus opradai by purchasing the fruit sale in whole sale and creating the bad debts towards the Ardti and ran away. On 5.7.2008, I was at Azadpur Mandi at around 1.30 pm at the time of occurrence and Wasim who is the godown owner and who also runs the Rehri rang me about the incident. At that time Wasim told me that there are 40 to 45 Adtis are at my godown and were asking for the mangoes purchased by me is to be claimed from Hanuman. I cannot say as to from whom Hanuman purchased those mangoes cartons. It is wrong to suggest that Hanuman purchased the said mangoes cartons from the accused persons. It took about 1 ½ hours to me to come from Azadpur Mandi to Pankha Road, I or none of my aforesaid other fruit seller including Wasim (who is the godown owner), did not make any call to the police after reaching at Pankha Road. The accused persons took the keys of the godown from me after giving beatings me. After the beatings I became unconscious. I did not make any call from the godown when the accused persons snatched the key of godown from me. Anil informed the police at 100 number, but no information was given by Wasim to police. I do not know if police officials came at the godown. There were no visible external injury but I received internal injuries on my person. I did not call any doctor after reaching at my room. However I had taken first aid of my own family members. After three days, I got the treatment from the doctor, however, I do not know the name of the doctor. It is wrong to suggest that there were no beatings or injuries to me caused by the accused persons and I malafidely prepared all the medical documents. I lodged the complaint with the Police Station Rajouri Garden, however, I do not remember the date. I had given a written complaint in P.S. Uttam Nagar but I do not remember the date. I visited the Uttam Nagar Police Station . It is wrong to suggest that accused persons asked from me that Hanuman had taken mangoes cartons from them. Volt. They did ask nothing and started beating me. I never visited Keshopur Mandi. I know the accused persons by name and by faces as they used to come at Uttam Nagar for collection purposes. I do not know if these accused persons used to come at Uttam Nagar to 12 take amount from Hanuman Singh. I did not take any receipt from Hanuman when I purchased mangoes carton from him or paid amount to him. The accused persons took the 405 cartons of mangoes from godown in Tata 709, however, I do not remember the registration number of that vehicle. It is was Nokia 8600 mobile which snatched by the accused persons. I took the treatment from DDU Hospital but I purchased the medicine from outside, however, I cannot say as to which ailment was treated as the same was written in English. I filed the complaint case before the Hon'ble court after two months from the date of occurrence. During this period I tried my level best but no action was initiated by the police officials when left with no option I filed the complaint case. It is wrong to suggest that accused persons did not give beatings to me or that they did not snatched an amount of Rs. 32000/ and my NOKIA mobile phone. It is wrong to suggest that I use to run a racket with the help of Hanuman and other person. I cannot tell regarding the income of accused persons. It is wrong to suggest that I have falsely implicated the accused persons or that they had not taken 405 mangoes cartons from the godown or that I am deposing falsely. "
Having perused his testimony it has been revealed that he / PW1 has correctly identified all the accused persons who were standing in the dock and deposed that accused persons came at Godwon of Wasim, situated at A1, Hastal near Gurdawara, Delhi. The present case was registered on filing of a complaint case. I have also perused the crossexamination very carefully. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
9. PW2 Bangali Babu, eye witness of the incident came to the witness box and deposed that he used to put one fruit rehri at Pankha 13 Road. Other persons also used to put their fruit Rehri. He further stated that Hanuman brought mangoes cartons at Uttam Nagar and Vidhyadhar Shukla purchased those mango cartons from him. He further stated that he alongwith Anil, Sri Chand, Puppy and Vidhyadhar Shukla went to the godown sitatued in a J.J. Colony adjacent to Kali Basti, Uttam Nagar. Wasim owner of the godown met them at the godown. Many other persons were also present there. This witness categorically stated that accused persons asked Vidhydhar Shukla as to how the stolen mangoes cartons are with him. On this Vidhyadhar Shukla stated that he had purchased those mangoes cartons from Hanuman. These accused persons gave beating to Vidhydhar Shukla and they had taken the mangoes carton from the godown of Wasim in a vehicle ( Tempo type). This witness further stated that they had taken Vidhyadhar Shukla to the house of Vidhyadhar Shukla. He further stated that accused persons had also taken some amount and one mobile phone from Vidhyadhar Shukla. He identified all the accused persons. This witness has been crossexamined at length. I have perused the same. In the crossexamination it has come on record that They reached at the godown just to settle the dispute between the accused and Vidhyadhar Shukla. He could not have any talk with the accused persons as they all started beating to Vidhyadhar 14 Shukla. When they reached at the godown, it was found closed at that time but it was got opened through Wasim. He did not try to call to the police. He admitted that even as on today he has to pay the amount to the accused persons.
10.PW3 Sri Chand, another eye witness in this case came to the witness box and stated that he is illiterate. It was the season of Mango. Vidhyadhar Shukla had kept his mango cartons in the godown of Wasim situated at Sunni Bazar near J.J. Colony, just in front of P.S. One person in the market gave information that some persons are taking the mangos cartons of Vidhyadhar from the godown of Wasim. He alongwith Bangali, Anil went at the godown of Wasim and Vidhyadhar Shukla also reached there. All the accused persons whose name are Bansi, Rinku, Bunti, Narender and Nissar gave beatings to Vidhyadhar Shukla. They gave beatings mercilessly to Vidhydhar Shukla and they asked to leave the spot otherwise they would also be given beatings by them. After breaking open the lock of the godown accused persons had taken the mango cartons. He correctly identified four accused persons and Identity of the 5th accused is not disputed by Ld. Defence Counsel. This witness has been crossexamined at length. I have perused the same. I found some contradictions which 15 are attributable due to the long duration of time and memory of a human being.
11.PW4 Sh. Anil Shukla and PW5 Sh. Wasim Khan have also deposed more or less on similar lines as deposed by PW1, PW2 and PW3. Both these witnesses have also correctly identified the accused persons as culprits who gave beatings to Vidhyadhar and had taken away 405 mango cartons in a tempo.
12.PW6 W/HC Urshula deposed that on 05.07.2008, she was posted at PS Uttam Nagar. On that day she recorded DD No.38A at about 04:03 PM on the basis of information given by wireless operator of the PS regarding quarrel at JJ Colony, ABlock, Near Gurudwara. She brought original register containing the said DD entry. True copy of the same is Ex.PW1/A. After recording the aforesaid DD, she had given the copy of DD to ASI Jagpal for his further necessary action. This witness has not been crossexamined.
13.PW7 SI Amit came to the witness box and stated that on 02.11.2009, he was posted at PS Uttam Nagar, as duty officer. On that day, at about 12:10 AM, he recorded aforesaid FIR on the basis of tehrir produced by Insp. Sube Singh. He brought original FIR 16 register containing the said FIR. Photocopy of the same is Ex.PW7/A. After recording the FIR, he gave copy of FIR and original tehrir to the IO after making endorsement on the same vide Ex.PW7/B which bears my signature at point A. This witness has also not been crossexamined.
14.PW8 Sh. Subhash Chand is also the material witness in this case being tempo driver. He came to the witness box on 16.11.2011 and deposed that 2 years ago, he was performing the driver duty. He was the registered owner of TATA Tempo No. DL 1LD 8128 and he used to drive his own tempo. He stated that he got disposed of the said tempo in scrap due to vehicle being more than 15 years old. He deposed that he was sleeping at his house and someone from the Mandi who was sent by fruits wholesaler, came there and asked him to take tempo to the road side at J.J. Colony, Hastsal Road, Uttam Nagar, near Gurudwara as fruits were lying there. He drove the tempo to this place and the labour loaded 110 carates of fruits from that place in his TATA tempo and brought the fruit carates to fruit Mandi Kesho Pur and the fruit carates got unloaded on the side of the road. He received an amount of Rs.400/ against fare. This witness has been crossexamined at length. No contrary evidence has come on record which may go to the root of this case. 17
15.PW9 Dr. V.K. Budhwar, Orthopaedic Surgeon, Dr. Budhwar Nursing Home, Uttam Nagar, Delhi appeared in the witness box and deposed that on 07.07.2008, one patient namely Vidhya Dhar Shukla, aged 32 years, came at the Nursing Home with chest injuries. He prescribed the medicines. He got exhibited the medical record vide Ex.PW9/A. He further stated that on 14.07.2008, patient Vidhya Dhar Shukla again came at the nursing home for follow up for his chest injuries. He prescribed the medicines vide medical record which is Ex.PW9/B. This witness has been cross examined by defence counsel. In the crossexamination it has come on record that chest injuries were not visible and the same were Gum injuries i.e. pulmonary contusion.
16.PW10 Insp. Sube Singh Rao, is the material witness being IO of this case. For the sake of brevity and convenience let his statement be also reproduced verbatim which is as under: " On the intervening night of 01.11.2009, I was posted at PS Uttam Nagar complainant Vidhya Dhar Shukla came at the PS and I recorded his statement which is Ex.PW1/C which bears signatures of Vidhya Dhar at point A and duly attested by me at point B. I made my endorsement on the same, addressed to the duty officer for getting the case registered and accordingly present case was registered at PS Uttam Nagar, at the direction of Ld. MM under section 156(3) Cr.P.C. After registration of the case, the investigation was assigned to me.
18 On 17.11.2009, I examined witnesses under section161 Cr.P.C. I prepared site plan at the instance of complainant Vidhya Dhar Shukla, of the place of occurrence i.e. godown/house near Gurudwara, J.J. Colony, Hastal, vide Ex.PW10/A which bears my signatures at point A. I also examined one person namely Subhash under section 161 Cr.P.C. accused persons were ordered to be released on anticipatory bail in the event of their arrest. I formally arrested accused Gulshan, Nisar, Harbans and Narender. I prepared their arrest memo ,vide Ex.PW10/B to E and later on they were released on bail on furnishing personal bond and bail bond. Complainant produced the photocopy of his medical documents including the photocopy of the receipt of having purchased fruits. After completion of investigation, challan was prepared and accused Jitender @ Bunty was shown at column no.12 of the chargesheet. I identify all the accused persons, present before the court. XXX by Sh. Rajbir Bansal, Ld. Counsel for all the accused.
Complainant gave me photocopy of two receipts without name. I have placed the same in the file. However, the same was not filed in the chargesheet. I do not remember whether there was any mention of name of any Adhati/wholesaler on the said receipts. I did not visit to the Okhla Mandi, Keshopur Mandi, Azadpur Mandi for the investigation of the said two receipts. I did not make any investigation from any of the Adhti/wholesaler of any of the Mandi. I had investigated about Hanuman Shukhla about his residence and the working place. I had investigated from the other witnesses in the case who told me that Hanuman Shukhla is from Bihar and thereafter no whereabouts of Hanuman Shukhla were known. The complainant told me that he had purchased the rest of the mangoes from Azadpur Mandi but the complainant did not produce any receipt or bill of the said mangoes. I did not go to Azadpur Mandi in order to investigate regarding the purchase of 280 mango cartons. I had investigated the complainant about the bill or receipt of the mobile but the complainant could not produce me the bill or receipt of the said mobile. The complainant did not disclose me about the IMEI no. of the said mobile or the shop from where the complainant had purchased the said mobile. The complainant also did not produce during the investigation any receipt of the godown for keeping the mango cartons in the godown. On 28.11.2009, I had visited the godown owner Mr. Wasim at his godown for the investigation. During the investigation, I had not taken any bill, receipt or any other document related to keeping the 405 mango cartons of the complainant from the godown owner Wasim. During the investigation, no register, ledger or any other 19 documentary evidence was not shown by the godown owner Wasim to me for the incoming and outgoing of the fruits in his godown. On 28.11.2009, I had visited the spot i.e. godown in J.J. Colony, ABlock, however, I do not remember the house no. or Gali no. of the said godown. On the west side of the godown there is MCD old School. However, I do not remember the name of that school and there is Aabadi in the East side of the godown. There is DDA park on the north side of the godown and there is Aabadi on the South side of the godown. It is wrong to suggest that I had not prepared the site plan Ex.PW10/A while sitting in the PS. I had enquired about the incident from the people of the nearby locality of the godown, however, I do not remember the names and addresses of those people. I had visited the Kesho Pur Mandi about the investigation of the present case. However, I do not remember the names and the shop no. of the Aadhtis/wholesalers of Keshopur Mandi. I have not made any witness from any of the Mandis namely Azadpur and Kehsopur. During the investigation, I had investigated the driver Subhash of the Tata 407 but I had not collected the copies of RC and driving license of the said Tata 407. I had taken the statements of Subhash in the PS. However, I do not remember the date. There is no recovery in the present case regarding any of the articles as alleged by the complainant in the present case. It is wrong to suggest that there is no case made out against all the accused persons and the accused persons are being falsely implicated at the instance of complainant or that I am deposing falsely in order to falsely implicate all the accused."
On perusal of his testimony it reveals that on the intervening night of 01.11.2009, he was posted at PS Uttam Nagar complainant Vidhya Dhar Shukla came at the PS and he recorded his statement and endorsed the same and addressed to the duty officer for getting the case registered. Accordingly present case was registered at PS Uttam Nagar, at the direction of Ld. MM under section 156(3) Cr.P.C. After registration of the case, the investigation was assigned to him. On 17.11.2009, he examined witnesses under section161 20 Cr.P.C. and prepared site plan at the instance of complainant Vidhya Dhar Shukla, of the place of occurrence i.e. godown/house near Gurudwara, J.J. Colony, Hastal, vide Ex.PW10/A. He also examined one person namely Subhash under section 161 Cr.P.C. accused persons were ordered to be released on anticipatory bail in the event of their arrest. He formally arrested accused Gulshan, Nisar, Harbans and Narender. He prepared their arrest memo ,vide Ex.PW10/B to E and later on they were released on bail on furnishing personal bond and bail bond. Complainant produced the photocopy of his medical documents including the photocopy of the receipt of having purchased fruits. After completion of investigation, challan was prepared and accused Jitender @ Bunty was shown at column no.12 of the chargesheet. He identified all the accused persons. This witness has been crossexamined at length. I have perused the same. I found some contradictions which are attributable due to the long duration of time and memory of a human being.
17.After recording the statements of prosecution witnesses, statements of accused persons u/s 313 Cr. P. C. were recorded in which they denied all the allegations and stated that they have been falsely implicated in this case. However, they did not lead any defence 21 evidence. Accused persons pleaded that They are fruit wholesalers and the complainant along with other persons used to buy fruits from them and some amount was outstanding. Complainant and other persons used to create bad debts and were in collusion with the fruit sellers at Uttam Nagar, have cheated them.
18.Thereafter, case was fixed for final arguments. Ld. counsel for accused persons argued and submitted that there are major contradictions in the depositions of all the prosecution witnesses including Pw1 and PW8. ld. Counsel further argued and submitted that there are wide variations in the application filed u/s 156 (3) Cr.PC, FIR and in the depositions of prosecution witnesses. On the strength of contradictions and variations ld. counsel for accused persons argued and submitted that accused persons are innocent and they have been falsely implicated in this case. Case property has been planted upon them. He further submitted that accused persons are entitled for acquittal by giving them benefit of doubt.
19.Contrary to it, ld. APP argued and submitted that there is sufficient evidence on record to hold the accused persons guilty for the alleged offences as it has come on record in the depositions of all material witnesses i.e. PW1 Vidhyadhar Shukla, victim; PW2 Bangali Babu, 22 PW3 Sri Chand, PW4 Anil Shukla and PW5 Wasim Khan that accused persons came at the godown, gave beatings to PW1 and forcefully taken away 405 mango cartons in a tempo, as supported by PW8 too. On these grounds ld. APP submitted that accused persons be convicted.
20.Before reaching at any conclusion let the relevant sections be reproduced verbatim which are as under:
327. Voluntarily causing hurt to extort property, or to constrain to an illegal act.Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or from any person interested in the sufferer, any property or valuable security, or of constraining the sufferer or any person interested in such sufferer to do anything Which is illegal or which may facilitate the commission of an offence, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
391. Dacoity.When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
395. Punishment for dacoity.Whoever commits dacoity shall be punished with 2[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. Sec.34 IPC: "When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
Careful perusal of the section 34 IPC reveals the following important ingredients :
i. That there must be a criminal act.
ii. The act must have been done by several persons in furtherance of their common intention."
23
1. "Stolen Property" has been defined u/s 410 IPC which makes it clear that - Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without {India}]. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
2. I have gone through the whole case file very carefully. Arguments of defence counsel were also heard. The arguments of ld. counsel for the accused persons that they are innocent and they have been falsely implicated in this case have no force in toto. Further, the argument of ld. defence counsel that there are so many contradictions in the testimonies of witnesses is also not tenable precisely for the reasons that it is a well settled principle of law which has been observed in 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' that: "When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
24
Again on the point of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
The observations made in the aforesaid two cases by the Hon'ble Supreme Court are exfacie indicative of the fact that a clear distinction be made between the major contradictions and minor contradictions when the contradictions are minor the truthfulness of the witness cannot be discredited in all and contrary to it when the contradictions are major these affect the root of the case and leave an impression of untruthfulness of the witnesses.
3. Again, I have gone through the whole case file very carefully. It has come on record that FIR was registered for the offence u/s 327/ 34 IPC against accused persons and they were arrested for the offences u/s 327 / 34 IPC, site plan has been prepared qua the offences u/s 327/ 34 IPC. However, chargesheet was filed for the offence u/s 395/ 34 IPC only. Thereafter, a charge for the offence u/s 395/327/ 34 IPC was framed against the accused persons. Now, to connect the role of accused persons with the ingredients of section 395/ 34 IPC the case requires very careful analysis. In the 25 case in hand it has come on record that the most material witnesses have stated in their testimonies that accused persons had come there and took away 405 mango cartons in a tempo after giving beatings to PW1 Vidhyadhar and if we examine this fact on record. No documents/ receipts with regard to purchase of 405 mangoes cartons have been got exhibited on record by which it can be established that in the godown there were 405 mango cartons. Besides, it is also strange to note here that there is no recovery of 405 cartons, mobile phone and cash amount, as alleged in the depositions of all the material witnesses. Rather it has come on record that accused persons were claiming that mangoes cartons belong to them. They are in the business of selling fruits etc. Moreover, in the crossexamination of PW1 it has come on record that he had purchased 280 cartons of mangoes from one Hanuman Shukla but this person has not been made witness in this case. Besides, it has also come in the testimony of of PW8 Subhash Chand, owner of Tata Tempo that with the help of labour 110 carats of fruits were loaded in his tempo from J J Colony, Hastsal Road near Gurduwara which were lying there and he unloaded the same in Keshopur mandi and he received Rs.400/ as fare. However, it has come on record that accused persons gave beatings to PW1 Vidhyadhar Shukla when he reached at godown. Testimony of 26 PW1 to this effect has been supported by PW2 Bangali Babu; PW3 Sri Chand; PW4 Anil Shukla; and PW5 Wasim Khan who were also present at the spot at that time. There is no MLC on record however, there is prescription slips on record vide Ex.PW9/A and PW9/B of victim but no injury has been mentioned in these slips vide deposition of PW9. PW2 in his testimony has admitted that he has to pay the amount of the accused persons. In the deposition of PW5 Wasim Khan, owner of godown it has come on record that they used to purchase fruits from accused persons. All these facts and circumstances compels to think otherwise that whether any dacoity took place on 05.07.2008. Moreover, deposition of PW1 Vidhyadhar Shukla with regard to the fact that an amount of Rs.32,000/ and a phone make NOKIA were snatched from him by accused persons, is neither corroborated by any of the material prosecution witnesses nor any circumstance has been brought on record to prove the factum of snatching of Rs.32,000/ and NOKIA phone. Therefore all these state of affairs indicates and falsifies the factum of having looted an amount of Rs.32,000/ and NOKIA Phone. All these contradictions goes to the root of this case being major contradictions. In light of these facts and circumstances of the case I am of the view that prosecution has failed to prove its case beyond reasonable doubt for the offences punishable u/s 395/ 327 27 IPC. Therefore, in view of the above discussion and judgment Jaskaran Singh Vs State' discussed (supra), I convict accused persons for the offences punishable u/s 323/ 34 IPC and absolve them for the offence u/s 395/ 327 IPC.
Accordingly, accused persons namely 1.Harbans Lal, 2. Narender Kumar, 3. Gulshan Kumar @ Rinku, 4. Nisar Ahmad and 5. Jitender @ Bunty are convicted for the offence u/s 323/ 34 IPC and they are absolved for the offences u/s 395/327 IPC.
ANNOUNCED IN THE OPEN
COURT ON THIS 13.02.2013
( RAJ KAPOOR)
ASJ02/ West/ THC/DELHI
28