Delhi District Court
Criminal Appeal No. 689/2013 Titled As ... vs . State Of on 21 January, 2015
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 27/1
Unique Identification No. 02404R0354122011
State
Versus
1. Ravi
S/o Sh. Vikram Singh
R/o Mandi Gnora,
Mohalla Subhash Nagar,
District J.P. Nagar, U.P.
2. Raju @ Sajjaul
S/o Sh. Allaudin
R/o VPO Gohawar,
PS Noorpur,
District Bijnour , U.P.
3. Tahir
S/o Sh. Mahendi Hassan
R/o Mandi Gnora,
Mohalla Subhash Nagar,
District J.P. Nagar, U.P.
(since proclaimed offender)
FIR No. 138/11
PSSouth Rohini
U/s. 328/365/394/411/34 IPC
Date of institution of the case: 28/11/2011
Arguments heard on: 16/01/2015
Date of reservation of order: 16/01/2015
Date of Decision: 21/01/2015
JUDGMENT
This case was registered on the statement of one Virender Jain on Session Case No. 27/1 Page 1 of pages 21 08/06/2011, u/s. 365 of IPC. Prior to that, on 07/06/2011, complainant Virender Jain gave a written complaint to SHO, PS South Rohini, regarding missing of his driver Ajeet Singh along with his vehicle No. DL8CN9117, Hundai I10, which was marked to SI Surender for taking necessary action.
On 08/06/2011, complainant Virernder Jain came to PS and got recorded his statement to SI Surender. On his statement, rukka was prepared and case was got registered u/s. 365 of IPC of IPC. Further investigation was handed over to SI Surender.
During investigation, site plan was prepared on the pointing of complainant. On 08/06/2011, victim Ajeet Singh was recovered, who was medically examined. On 16/06/2011, information regarding recovery of i10 car bearing registration no. DL8CL9117 and arrest of accused persons at Sector49, Noida, U.P. was received at PS South Rohini vide DD no. 58B, which was entrusted to ASI Surender. Accordingly, he recorded statement of victim Ajeet, wherein he disclosed about the incident occurred with him on 07/06/2011 and as to how he became unconscious after consuming ladoos, which was given to him as "Prasad" by two persons and when he regained his consciousness on 08/06/2011 at 4.30 p.m., he found himself lying in the bushes at Village Singhola, Delhi near GT road. He also found his Titan writ watch, mobile phone of spice, having no. 9810815763, golden ring of 6 gms., purse having Rs. 1,200/, PAN card and driving license missing.
During further investigation, on 17/06/2011, IO ASI Surender reached at PS Noida, Sector49, U.P. and brought the case property i.e. i10 car to PS South Rohini after seizing it through seizure memo and deposited the same in the malkhana. Copy of FIR no. 137/11 of PS Noida, Sector49 was placed on record. On 20/06/11, case property i.e. i10 car was released to Mange Ram on superdari. Thereafter, production warrants were got issued against all the three accused persons. On 26/07/2011, the investigation was again taken up by SI Surender. On 30/08/2011, accused Tahir, Raju @ Sajjaul and Ravi were formally arrested in this case at Rohini Session Case No. 27/1 Page 2 of pages 21 Courts. Their disclosure statements were recorded. They were sent to J.C. On 05/09/2011, IO moved an application before Ld. Link MM for conducting TIP, which was fixed for 08/09/2011. On 08/09/2011, TIP of accused persons was conducted at Tihar Jail, wherein victim Ajeet failed to identify any of the accused persons. Copies of TIP proceedings were obtained. On 10/09/11, IO moved for PC remand of the accused persons and one day PC remand was granted,during which, all the three accused persons pointed out the place of occurrence. Pointing out memo and sketch were prepared by the IO in this respect.
On 11/09/2011, victim Ajeet came to PS and identified all the three accused persons in the PS, while they were on PC remand. He further disclosed that he had recognized the accused persons during TIP proceedings, but due to fear, he pretended to be not identified them. Accordingly, his supplementary statement was recorded in this regard. Statement of witnesses were recorded. Section 328 of IPC was added after consultation with senior officers.
On completion of investigation, chargesheet was filed against all the three accused persons u/s. 328/365/394/411/34 of IPC on 28/11/2011. Case was committed to the Court of Session on 12/12/2011 and was received on 22/12/2011. On 15/03/2012, charge u/s. 328/34 of IPC, u/s. 365/34 of IPC and u/s. 394/34 of IPC was framed against all the three accused persons and separate charge u/s. 411 of IPC was framed against accused Raju @ Sajjaul, to which, they pleaded not guilty and claimed trial.
During trial, on 05/10/2013, accused Tahir was declared proclaimed offender.
To prove its case, prosecution has examined, PW1 to PW18 in all. On completion of the evidence of prosecution, statements of both the accused persons have been recorded u/s. 313 Cr.P.C., wherein they have denied the case of the prosecution and have claimed false implication.
I have heard learned APP for the State, learned respective Amicus Curiae Session Case No. 27/1 Page 3 of pages 21 for accused Ravi and Raju @ Sajjaul and have gone through the material placed on record with evidence adduced.
Finding qua offences u/s. 328/34 IPC, u/s. 365/34 IPC and u/s. 394/34 IPC against accused Ravi and Raju @ Sajjaul:
Complainant Virender Jain has been examined as PW3. He has deposed that he is doing business. On 07/06/2011, at about 1.00 p.m., his family members had gone in his i10 car bearing registration no. DL8CN9117 with his driver Ajeet for shopping at Ring Road Mall, near Kali Mata Mandir, Sector3, Rohini. At about 1.15 p.m., the car was parked by his driver in the parking of said mall and his family members went inside the mall for shopping. At about 3.30 p.m., when his family members came back in the parking, the driver and the car were not found in the parking. His wife called on the mobile phone of driver Ajeet bearing no. 9810815763, which was received by someone, who told that phone was being charged and the driver was taking lunch. After about 10/15 minutes, his wife again called on the mobile phone of driver and the same was found to be not reachable. His wife informed about the said fact of missing of driver with car to him.
PW3 has further deposed that on 07/06/2011, he lodged complaint with the police to this effect, which is Ex. PW3/A. Thereafter on 08/06/2011, his statement was recorded by the police, which is Ex. PW1/B. The police prepared site plan on his pointing out, which is Ex. PW3/B. PW4 Smt. Sarika Jain is wife of complainant PW3 Virender Jain. She has deposed that on 07/06/2011, at about 1.00 p.m., she along with her sister in law had gone in her i10 car No. DL8CN9117 with her driver Ajit for shopping at Ring Road Mall, near Kali Mata Mandir, Sector3, Rohini. At about 1.15 p.m., the car was parked by the driver in the parking of said mall and she along with her sister in law went inside the mall for shopping. At about 3.30 p.m., when they came back in the parking, driver along with car was not found present there. Thereafter, she called on the mobile phone of the driver, having no. 9810815763, which was received by Session Case No. 27/1 Page 4 of pages 21 someone, who told that the phone was being charged and driver was taking lunch. After about 10/15 minutes, she again called on the mobile phone of the driver, but the same was not reachable. She informed about the fact of missing of her driver with the car to her husband.
PW4 has further deposed that on 07/06/2011, her husband lodged complaint with PS to this effect, which is Ex. PW3/A. On 08/06/2011, statement of her husband was recorded by the police, which is Ex. PW1/B. Police had prepared site plan on the pointing of her husband Ex. PW3/B. Victim/driver Ajeet singh has been examined as PW6. He has deposed that he is working as a driver. On 07/06/2011, he was working as driver with Sh. Mange Ram Jain, R/o M1/36, Ballabh Vihar Apartments, Sector13, Rohini, Delhi. On that day, at about 1.30 p.m., he took PW4 Smt. Sarika Jain, daughter in law of sh. Mange Ram Jain and Smt. Raj Jain, sister in law of Sarika Jain, to Ring Road Mall, near Kali Mata Mandir, Sector3, Rohini, in i10 car number DL8CN9117. He parked the said car in service lane near Kali Mata Mandir after dropping them at Ring Road Mall. He remained inside the car.
PW6 has further deposed that at about 2.00 p.m., two persons came to him and started talking with him. It was Tuesday and after about 10 minutes, one other boy came from Mandir side, who offered him one bundi loadoo to eat and to other persons present in the said parking. After about 15 minutes, he became unconscious inside the car. This witness has identified all the three accused persons present in the Court.
PW6 has further deposed that on 08/06/2011, at about 4.50 p.m., he regained his consciousness and found himself in the bushes near Village Singhola and his condition was very bad as he was having multiple injuries on his legs and arms and other parts of the body. He managed to reach at G.T. Karnal road, where his nephew met me, while he was searching him. He took him to Raja Harishchander hospital, where he was medically examined and thereafter was discharged. His gold Session Case No. 27/1 Page 5 of pages 21 ring of about 6 gms., Titan wrist watch, his purse containing driving licence, PAN card, Rs. 1,200/ and his mobile phone make Spice were found missing. He was called by the police at PS Rohini Sector3, Delhi, where his statement was recorded.
PW6 has further deposed that he identified the accused persons in the PS. He was taken to Tihar Jail for the identification of the accused persons, but he did not identify them as out of fear, he became 'hopeless'. His statement was recorded by the police.
PW6 has identified the car as Ex. C1 and its photographs as Ex. C2 and Ex. C3.
PW11 SI Surender has deposed that on 07/06/2011, he was posted at PS South Rohini. On that day, on receipt of local complaint Ex. PW3/A in the PS, he was entrusted for the inquiry of the said complaint by the SHO. He tried to contact on the mobile number mentioned in the complaint, which was of the driver of the car of the complainant.
PW11 has further deposed that on 08/06/2011, PW3 Virender Jain came in the PS and got recorded his statement Ex. PW1/B, on which, he made his endorsement and got the case registered vide FIR Ex. PW1/A. He made efforts to search the accused persons and the driver of the said car and the driver was traced on 08/06/2011 in the evening. He got him medically examined from SRHC hospital. He also prepared site plan Ex. PW3/B at the instance of complainant Virender Jain. Thereafter, he proceeded for leave and the file was handed over to the MHC(R).
PW1 SI Zamil Ahmed has deposed that on 08/06/2011, he was posted at PS Rohini and was working as duty officer from 8.00 a.m. to 4.00 p.m. At about 1.50 a.m., PW11 SI Surender produced a rukka, on the basis of which, he got the formal FIR recorded on the computer through computer operator. Copy of FIR is Ex. PW1/A. He also made his endorsement at point X on the rukka Ex. PW1/B and the FIR and the rukka were given to Ct Sukhbir to handover the same to SI Surender, who was entrusted with the investigation of the case. This witness has produced Session Case No. 27/1 Page 6 of pages 21 original FIR register before the Court.
It is contended by learned defence counsel/Ld. Amicus Curiae that case was registered on the statement of one Virender Jain on 08/06/2011, at about 1.50 p.m. According to SI Surender, who got registered the case, complaint was received on 07/06/2011, whereas statement of Virender Jain was recorded on 08/06/2011 Ex. PW1/B. He made efforts to search the accused persons and driver of the said car and driver was traced on 08/06/2011, who got him medically examined from SRHC hospital, but even then, statement of driver was not recorded on 08/06/2011. The medical examination was got conducted of the driver on 08/06/2011, at about 9.05 p.m. vide Ex. PW16/A. It is further contended that alleged history was given of physical assault, whereas according to PW6 victim Ajeet, while he was waiting in the parking of the service lane near Kali Mata Mandir, he was given bundi ladoo as "prasad" and after eating the same, he became unconscious, so, PW6 Ajeet has not given any history of physical assault and even his statement was recorded u/s. 161 Cr.P.C. on 17/06/2011. Delay in recording the statement of this witness is not explained by the police officials in any manner.
It is further contended that even in the said statement, victim Ajeet had told that he did not remember as to how, he sustained injuries, so, the history of physical assault could not be given in any manner. It is further contended that according to MLC Ex. PW16/A, there was no history of loss of consciousness, vomiting, seizures, ENT bleeding etc. and only abrasions over both knees, right elbow and forearms were found present, which is contradictory to the deposition of victim Ajeet about the manner, in which, incident had taken place.
It is further contended that according to PW6 Ajeet, on 08/06/2011, at about 4.50 p.m., he regained his consciousness and found himself in the bushes near Village Singhola and his condition was very bad as he was having multiple injuries on his legs and arms and other parts of the body. He managed to reach at G.T. Karnal road, where his nephew met me, while he was searching him. He took him to Session Case No. 27/1 Page 7 of pages 21 Raja Harishchander hospital, where he was medically examined and thereafter was discharged. It is further contended that this nephew is not a witness to the case of the prosecution nor at any time, he was examined by the IO. It is further contended that it also seems to be strange and improbable that nephew of victim was searching him near Village Singhola or GT Karnal road, without any information and how nephew of Ajeet got any clue that Ajeet could be in the area of G.T. Karnal road. It is further contended that PW6 Ajeet has admitted in the cross examination that he was not having any mobile phone nor he has stated that after regaining his consciousness, he had informed his nephew or to the police. It is further contended that according to PW6 Ajeet, he was got medically examined from SRHC hospital by his nephew, whereas according to MLC Ex. PW16/A, he was taken there by SI Surender, so, this part of the deposition of PW6 victim Ajeet also seems to be false. Even PW11 SI Surender has failed to explain as to how he reached at Village Singhola and find out Ajeet without any clue or information.
It is further contended that all the accused persons were formally arrested in this case on 30/08/2011 on the basis of their earlier arrest made by U.P. Police with the recovery of one Santro car and i10 car, which was involved in this case and after 30/08/2011,on 08/09/2011, all the three accused i.e. Tahir, Raju @ Sajjaul and Ravi joined the TIP proceedings, but none of them could be identified by victim Ajeet as one of the accused involved in the incident. It is further contended that in the examinationinchief, PW6 Ajeet has identified all the three accused persons after seeing their faces and has also deposed that he had identified the accused persons in the PS. He was also taken to Tihar Jail for identification, but he did not identify them due to fear as he became hopeless. It is further contended that purpose of TIP during investigation is to identify the accused persons only and are required to be identified before the Court also during the evidence. It is further contended that factum of fear did not disclose by victim Ajeet after joining the TIP proceedings either to Ld. MM or to the IO anywhere nor any such statement of the witness has been recorded.
Session Case No. 27/1 Page 8 of pages 21 It is further contended that according to cross of PW6 Ajeet, he and complainant had gone to Noida PS, where the said car was found. There were about 15 prisoners type persons sitting in the said PS. The IO had asked him to identify the accused persons at Noida and he had identified the accused persons, which shows that accused persons were shown to the witness after the alleged recovery of cars from their possession. It is further contended that this fact was not told by the witness to Delhi Police at any time. It is further contended that even PW6 Ajeet had not disclosed to the Ld. MM during the TIP proceedings that accused persons were shown to him in the PS at Noida. So, the identification of accused persons before the Court is based on the fact that accused persons were shown by U.P. Police in the PS of Noida after the recovery of the alleged cars from the possession of accused persons, which cannot be relied upon.
It is further contended that PW6 Ajeet has admitted that he did not go to the police for recording his statement till 16/06/2011 at his own and no explanation has been given in this respect as to why immediately, his statement was not recorded on 08/06/2011 or thereafter his statement was not recorded because he was only a witness to the incident and complainant Virender Jain was the witness to the circumstances only. It is further contended that PW6 Ajeet has stated in the cross examination that he had told to the Ld. MM during TIP that due to his hopelessness, he was no in a position to identify the accused persons, but this fact has also not come in the TIP proceedings of all the accused persons in any manner, so, this is an excuse fabricated by victim Ajeet Singh later on to cover up his misdeeds and has failed to explain and corroborate with the case of the prosecution, particularly with the deposition of PW11 SI Surender, IO of the case.
On the other hand, Ld APP has contended that according to cross of PW11 SI Surender, he met with driver Ajeet for the first time in Narela in the evening of 08/06/2011/. Nephew of driver met him at Narela. He could not talk to the driver at that time as he was not well and was under shock and the driver did not Session Case No. 27/1 Page 9 of pages 21 give any statement. He had talked with the nephew, who told that they were also searching the driver. Statement of injured was not recorded, so, there is no contradiction about the depositions of PW6 Ajeet and PW11 SI Surender.
Learned defence counsel/Amicus Curiae has contended that even then, PW6 Ajeet has not been able to depose that on 08/06/2011, SI Surender had also met him and accompanied him to Narela and got him medically examined from SRHC hospital, rather he has deposed about his nephew only. So, still the contradiction is material and raises doubts about the same as to how the nephew of PW6 Ajeet reached there, while searching him without any clue, and so SI Surender, which shows that something has been concealed, which could have thrown light in the circumstances of the case.
It is further contended that there is no evidence brought on record to support offence u/s. 328 of IPC. There is no FSL report of the viscera of victim Ajeet nor PW6 Ajeet can be relied upon regarding identification of accused persons as the same, who had given him ladoo, which caused unconsciousness and thereafter, he alongwith the car was taken away and his belongings were also removed.
It is further contended that call details of mobile no. 9810815763 were not obtained, otherwise from the call details, it could have been revealed as to whether PW6 Ajeet was having mobile phone or he was present at Kali Mata Mandir with the car or whether he had made a call to his nephew later on to call him or not and this material evidence is missing.
In view of the above, PW6 Ajeet is not inspiring any confidence. The contradictions as pointed out by Ld Amicus Curiae and Ld Defence Counsel are material and rendering the witness unreliable. PW6 cannot be relied upon regarding the identity of the accused persons as the same, who had committed robbery with him. He has even failed to identify the accused persons during TIP. Moreover, accused persons were shown to him in PS at Noida UP, on which basis he identified the accused persons before the Court but even then he failed to point Session Case No. 27/1 Page 10 of pages 21 out the role of each and every accused. More so, the circumstances, in which PW6 Ajeet was found and was medically examined seems to be doubtful, so they cannot be relied upon in any manner.
Accordingly, prosecution has not been able to prove the offence u/s 328/34, 365/34 and 394/34 of IPC beyond reasonable doubts, for which accused both Ravi and Raju @ Sajjaul are acquitted.
Findings qua offence u/s. 411 of IPC against accused Raju @ Sajjaul:
PW13 Inspector Randhir Singh has deposed that on 10/06/2011, he was posted as Incharge SOG, Noida District Gautam Budh nagar, UP. On that day, when he was present at his office, he received information from secret informer that one interstate gang of vehicle robbers, who is involved in various incidents of robbery of various vehicles of Delhi, Noida and Ghaziabad, would go towards Delhi to sell the robbed cars, after passing through the village Bassai and the crossing of sector 7172, Noida and if raid is conducted, they could be apprehended.
PW13 has further deposed that on receipt of this information, at about 7.15 pm, he organized a raiding party consisting of SI Vivek Tyagi, PW17 CT Yogender, Ct Jitender and Ct Arun Kumar, CT Narender Singh, CT Zahir Hussain, Ct Julfkar and Ct Vikas Rana and they left the office in a government vehicle Bolero bearing no. UP81 AH0445. Secret informer had also accompanied them at that time. On the way, he asked some public persons to join the raiding party, after briefing them about the contents of secret information, but none agreed and they left without disclosing their names and addresses. Thereafter, when they reached at the crossing of Kendriya Vihar, Sector5051, at that time, PW18 SI Sriniwas Yadav and Ct Anees Ahmed, while patrolling, met them on a motorcycle and they were joined in the raiding party.
PW13 has further deposed that thereafter, they reached at the crossing of Sector 7172, near service cut and started checking the vehicles. After some time, one Santro car followed by one i10 car, came from the side of village Bassai and on Session Case No. 27/1 Page 11 of pages 21 seeing those cars, secret informer pointed out towards them, which were being carried to Delhi by the robbers. Thereafter, secret informer had left from there. At about 8.00 pm, they proceeded their vehicle towards the divider and when they reached near those cars, they warned the occupants of those cars, at which, the person, who was sitting on the driver seat of the santro car, got down from the car and started running and while running, he stuck against the divider and fell down, at which, he was apprehended by SI Vivek Tyagi with the help of Ct Vikas and Ct Arun, who disclosed his name as Tahir son of Mehendi Hassan (since P.O.).
PW13 has further deposed that the person, who was sitting beside the driver seat, was apprehended by him with the help of other police staff. On asking, he disclosed his name as Ravi son of Vikram Singh. The person, who was driving the i10 car, was apprehended by the other members of the raiding party and he disclosed his name as Raju @ Sahjul, son of Allauddin.
PW13 has further deposed that at that time, Santro car was having fake number plate of UP23B5681 and the accused had disclosed the real number of said santro car as DL7CC3099 and accused persons told that Santro car was stolen by them and their one more associate Ravi @ Pradeep from the area of Nizamuddin, Delhi on 23/05/11. Regarding the i10 car, having number plate DL8CN9117, accused Tahir (since PO) and Ravi had told that the same was stolen by them alongwith their associate Fahid and Ravi @ Pradeep on 07/06/2011 from parking of a mall, in the area of south Rohini, from ring road, after feeding the driver of the said i10 car with some sweets and the driver of the said i10 car was thrown in an unconscious condition at Karnal road.
PW13 has further deposed that all the three accused persons were interrogated by him and they disclosed that their three associates, who were having three stolen motorcycles, were waiting for them near sector 72, near the bushes and trees, with whom they had to go to Delhi to sell the vehicles. At this, they proceeded towards sector 72, Sarkhabad mandir and while turning to left, when they Session Case No. 27/1 Page 12 of pages 21 reached near bushes at the vacant land, three persons were sitting on three motorcycles and when they tried to apprehend those boys, they tried to run away, after leaving their motorcycles. Immediately the person, who was sitting on pulsar motorcycle, was apprehended and he disclosed his name as Guddu and the person, who was apprehended, was sitting on pulsar motorcycle and the persons, who were sitting on Hero Honda CD Deluxe and Passion motorcycle, managed to run away and their names were disclosed as Ravi @ Pradeep and Farid. After arrest of the accused persons, inquiries were made from the concerned PS of the area from where the vehicles were robbed and stolen and they came to know that the i10 car was robbed from the area of South Rohini, regarding which a complaint was lodged vide FIR no. 138/11 u/s 365/394 of IPC, PS South Rohini. Both the cars and three motorcycles were taken into possession by him by preparing the seizure memo. At the time of recovery of the vehicles from the possession of the accused persons, the public persons were asked to join the proceedings but none agreed and left without disclosing their names and addresses.
PW13 has further deposed that all the accused persons were arrested by him and the accused persons along with aforesaid vehicles were brought at the PS. A case u/s 379/365/394/411/412/420 of IPC and 41.2 Cr. P.C. was registered against the accused persons. Informations regarding the arrest of accused persons were given to the concerned PS at Delhi.
PW13 has further deposed that at the time of recovery of Santro car and i10 car, he prepared seizure memo of both the vehicles including the motorcycle, which later on recovered at the instance of accused persons. The said seizure memo is Ex. PW18/A. PW13 has also identified the photographs of i10 car as Ex. C2 and Ex. C3. PW17 Ct Yogender has deposed the same facts as of PW13 Inspector Randhir Singh.
PW18 SI Shri Niwas Yadav has deposed that on 10/06/2011, he was posted Session Case No. 27/1 Page 13 of pages 21 at PS Sector49 Noida and on that day, he along with Ct Anish Ahmad was on patrolling duty on motorcycle and was present at the chowk of Kendriya vihar and at that time, PW13 Inspector Randhir Singh along with secret informer and other police officials came there on a government vehicle and met them. Thereafter, this witness has deposed the same facts as of PW13 Inspector Randhir Singh.
PW10 HC Ombir Singh has proved the copy of FIR No. 118/11 of PS Noida Sector49 as Ex. PW10/A, which was recorded by him on 10/06/2011, at about 11.45 p.m., on the basis of tehrir produced before him by PW13 Inspector Randhir Singh. He has further deposed that crime serial number is 137 of which FIR number was wrongly mentioned as 120 instead of 118. He has also deposed that Inspector Randhir Singh with staff and the accused persons present in the court with stolen recovered vehicles i.e. i10 car bearing No. DL8CN9117 and other Santro car having number plate being No. UP 23B 5681, original number of which was revealed as DL7CC3099, came in the PS and got the case registered.
This witness has also identified the photographs of i10 cdar as Ex. C2 and Ex. C3.
On 16/06/2011, information was received at PS Rohini from Ct Anil of PS Sector 49, Noida regarding apprehension of accused and the stolen car involved in this case and DD no.58B was recorded in this regard by PW2 HC Ram Niwas, who has proved the copy of the same as Ex. PW2/A. He has also produced original DD register before the Court.
On the basis of this information, i10 car bearing No. DL8CN9117 was got transferred to PS South Rohini and was seized in this case. On 17/06/2011, it was deposited by ASI Surender with PW14 HC Virender, who was posted as MHC(M) at PS South Rohini on that day vide entry no. 3860/11. On 20/06/2011, it was released on superdari to Sh. Mange Ram Jain by the order of the court and entry was made in this respect against entry no. 3860/11. Copy of the relevant entry is Ex. PW14/A. PW14 has also produced original malkhana register before the court.
Session Case No. 27/1 Page 14 of pages 21 PW7 Sh. Mange Ram Jain has deposed that he is the registered owner of Car No. DL8CN9117 make i10, which was robbed in the present incident and the same was taken on superdari by him on 20/06/2011 vide superdari bond Ex. PW7/A. He has identified the said car as Ex. C1 and its photographs as Ex. C2 and Ex. C3 before the Court.
PW11 SI Surender has further deposed that he joined his duties on 18/07/2011 and on 30/08/2011, he formally arrested accused Sajaul @ raju, Ravi and Tahir vide arrest memos Ex. PW5/A to Ex. PW5/C in presence of PW5 Ct Sushil Kumar. They made disclosure statements Ex. PW5/D1 to D3 in presence of PW5 Ct Sushil Kumar.
PW11 has further deposed that thereafter he moved an application Ex. PW11/A before the concerned Court for the TIP of the accused persons, but the witness could not identify the accused persons in the TIP before the Link MM.
PW11 has further deposed that thereafter, he obtained one day PC remand of accused persons vide application Ex. PW11/B and during the said PC remand, all the accused persons pointed out the place of incident vide pointing out memo Ex. PW8/A in presence of PW8 Ct Pushpender and PW15 Ct Vishram Singh. He also prepared site plan Ex. PW8/B on the pointing out of the accused persons in presence of PW8 Ct Pushpender. He recorded the statements of the witnesses. Thereafter, he was transferred.
PW5 Ct Sunil Kumar has deposed the same facts as of PW11 SI Surender regarding the arrest of accused persons vide memos Ex. PW5/A to Ex. PW5/C and recording of their disclosure statements Ex. PW5/D1 to D3 on 30/08/2011.
PW8 Ct Pushpender has also deposed the same facts as of PW11 SI Surender regarding pointing out of the place of incident by the accused persons vide memo Ex. PW8/A and preparation of site plan of the pointing out place Ex. PW8/B by the IO on 10/09/2011.
PW15 Ct Vishram Singh has also deposed the same facts as of PW11 SI Session Case No. 27/1 Page 15 of pages 21 Surender regarding pointing out of place of incident by accused persons vide memo Ex.PW8/A, who thereafter were medically examined and were brought to PS South Rohini, where they were put in the lockup.
PW12 Sh. Sunil Gupta, the then Ld. MM, has deposed that on 05/09/2011, he was posted at District Court Rohini as MM and on that day, an application Ex P12/X moved by PW11 IO SI Surender before the concerned court for conducting TIP of accused Tahir, which was marked to him being Link MM by the said Court. He fixed the said application for 08/09/2011 at Tihar Jail for identification of the accused.
PW12 has further deposed that accused was produced in Central Jail no. 4 by the Asstt. Superintendent and was identified by him as accused Tahir. Thereafter, the said Asstt. Superintendent was asked to leave the room and thereafter, he explained the meaning of TIP to said accused and he understood. The accused was directed to pick 8 or 10 undertrials of his age and physique for the purpose of TIP and he was given option to stand at any place of his choice in between the said undertrials. Thereafter, witness namely Ajeet was called to identify the accused, who failed to identify the accused. The witness was identified by IO SI Surender. He completed the proceedings Ex. PW12/A and his certificate regarding the proceedings is Ex. PW12/B. PW12 has further deposed that on the same date, he also conducted the TIP proceedings of accused Sajjaul @ Raju in the same manner and the witness Ajeet could not identify the said accused. His proceedings to that effect are Ex. PW12/C and his certificate in this respect is Ex. PW12/D. PW12 has further deposed that on the same date, he also conducted the TIP proceedings of accused Ravi in the same manner and the witness Ajeet could not identify the said accused. His proceedings to that effect are Ex. PW12/E and his certificate in this respect is Ex. PW12/F. PW12 has further deposed that IO moved an application for supply of the Session Case No. 27/1 Page 16 of pages 21 TIP proceedings Ex. PW12/G and received the copy of the same.
PW9 SI Ravi Kumar has deposed that on 30/10/11, the investigation of this case was entrusted to him and after going through the record, he prepared the draft challan and submitted the same to the SHO for further necessary action.
PW16 Dr. Ashutosh Gupta, Junior Specialist Orthopedics, Satyawadi Harishchand hospital, Narela, Delhi, has proved the MLC of victim Ajeet as Ex. PW16/A, who was produced by SI Surender of PS South Rohini on 08/06/11, at 9.05 p.m. with alleged history of physical assault and was examined by Dr. Imran. On examination, patient was found conscious and oriented, BP was 120/80 and pulse was 80 pm. Systemic examination revealed no abnormality but patient had abrasions present over both knees, right elbow and forearms. Bruises were present over the inner aspect of the right thigh. According to the witness, MLC Ex.PW16/A is in the handwriting of DR Imran and bears his signatures at point A as he has seen him, while writing and signing during the course of his officials duties. DR Imran has also given his opinion regarding nature of injuries as simple at point X. On behalf of accused Ravi, it is contended by learned Amicus Curiae that according to the cross of PW13 Inspector Randhir Singh, nothing was recovered from the possession of accused Ravi, which could connect him with the present case, so, no offence u/s. 411 of IPC is made out against accused Ravi.
It is pointed out by ld. APP that accused Ravi has not been charge for offence u/s. 411 of IPC in any manner because the Santro car in which accused Ravi was found sitting with the driver, was not involved in this case.
At the same time, another i10 car was recovered from the possession of accused Raju @ Sajjaul, who has been charged for offence u/s. 411 of PC and the same is involved in this case.
It is contended that there is no public witness to the recovery of car from the possession of accused Raju. It is further contended that there is no document to prove that the said police party of U.P. Police received secret information and formed Session Case No. 27/1 Page 17 of pages 21 a raiding party and left the PS concerned.
I have gone through the cross examination of PW13 Inspector Randhir Singh, PW17 Ct Yogender and PW18 SI Shri Niwas Yadav. Nothing came out from their cross examination to disbelieve their testimonies regarding the recovery of i10 car from the possession of accused Raju @ Sajjaul and Tahir. Accused Raju @ Sajjaul has not claimed the ownership of the car in any manner nor has been able to explain the possession of the same. The said car was transferred in this case and was released on superdari to the owner of the same i.e. Mange Ram, who has deposed these facts before the Court. According to PW14 HC Virender, MHC(M), i10 car bearing No. DL8CN9117 was deposited with him on 17/06/2011 by the IO and on 20/06/2011, he got it released to the superdar. He has also produced copy of register no. 19 Ex. PW14/A. In view of the above, the witnesses examined by prosecution are inspiring confidence and are corroborating with each other regarding the recovery of the stolen i10 car from the possession of accused Raju @ Sajjaul. Accused has not claimed any ownership over the i10 car or explained to the satisfaction of the Court about the possession of the same with him. The police officials of Noida police were not having any enmity against the accused to falsely implicate him nor the car could be planted upon him as stolen case property. The car was stolen on 07/06/11, whereas it was recovered from his possession on 10/06/2011 by the police officials of UP police at Noida. So offence u/s 411 of IPC is proved against accused Raju @ Sajjaul beyond reasonable doubts for which he is held guilty and convicted for the same.
Announced in the open Court
Today on: 21st of January, 2015 ( Virender Kumar Goyal)
Additional Sessions Judge,
Fast Track Court,
Rohini/Delhi
Session Case No. 27/1 Page 18 of pages 21
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 27/1
Unique Identification No. 02404R0354122011
State
Versus
1. Raju @ Sajjaul
S/o Sh. Allaudin
R/o VPO Gohawar,
PS Noorpur,
District Bijnour , U.P.
FIR No. 138/11
PSSouth Rohini
U/s. 411 of IPC
Date of Decision: 21/01/2015
Date of order on Sentence: 21/01/2015.
21/01/2015
Present: Ld APP for State.
Convict Raju @ Sajjaul from J.C. with Amicus Curiae Sh Shubham Asri as Proxy of Ms. Sadhna Bhatia.
Heard on the point of sentence.
It is contended by learned Amicus Curiae that convict Raju @ Sajjaul is aged about 25 years. He is married, having two children. He is also having old parents to support. It is further contended that he is working as labourer and is earning Rs. 5,000/ per month. It is further contended that presently he is not involved in any another case and earlier has been discharged in two cases. It is further contended that he remained in custody in this case from 30/08/11 to 24/12/2011, hence, a lenient view be taken.
On the other hand, learned Substitute APP has contended that considering Session Case No. 27/1 Page 19 of pages 21 the nature and gravity of the offence proved against convict, appropriate sentence be awarded upon the convict alongwith compensation.
Offence u/s. 411 of IPC is punishable with imprisonment of either description for a term, which may extend to three years, or with fine, or with both.
I have considered the submissions made on behalf of the convict and also on behalf of State alongwith the age, character and antecedents of the convict. Considering the same, period already undergone by convict in JC during trial is imposed upon him u/s. 411 of IPC with fine of Rs. 2,000/. In default of payment of fine, the convict shall further undergo simple imprisonment for three months.
On the point of compensation, Ld. Amicus Curiae has contended that the considering the financial capacity of the convict, minimum compensation be imposed.
It has been held in Delhi Domestic Working Women's forum V. Union of India and ors. (1995) 1 SCC 14 that:
"Compensation payable by the offender was introduced in the Criminal Justice Act 1972 which gave the Courts powers to make an ancillary order for compensation in addition to the main penalty in cases where 'injury, loss, or damage' had resulted. The Criminal Justice Act 1982 made it possible for the first time to make a compensation order as the sole penalty. It also required that in cases where fines and compensation orders were given together, the payment of compensation should take priority over the fine. These developments signified a major shift in penology thinking, reflecting the growing importance attached to restitution and reparation over the more narrowly retributive aims of conventional punishment. The Criminal Justice Act 1982 furthered this shift. It required courts to consider the making of a compensation order in every case of death, injury, loss or damage and, where such an order was not given, imposed a duty on the court to give reasons for not doing so. It also extended the range of injuries eligible for compensation. These new requirements mean that if the court fails to make a compensation order, it must furnish reasons. Where reasons are given, the victim may apply for these to be subject to judicial review. The 1991 Criminal Justice Act contains a number of provisions which directly or indirectly encourage an even greater role for compensation.."
In judgment dated 03/05/2013 passed by the Hon'ble Supreme Court of India in Criminal Appeal No. 689/2013 titled as "Ankush Shivaji Gaikwad Vs. State of Session Case No. 27/1 Page 20 of pages 21 Maharashtra", it has been held that:
"Amongst others, the following provisions on restitution and compensation have been made:
12. Restitution shall be provided to reestablish the situation that existed prior to the violations of human rights or international humanitarian law. Restitution requires inter alia, restoration of liberty, family life, citizenship, return to one's place of residence, and restoration of employment or property.
13. Compensation shall be provided for any economically assessable damage resulting from violations of human rights or international humanitarian law, such as;
(a) Physical or mental harm, including pain, suffering and emotional distress;
(b) Lost opportunities including education;
(c) Material damages and loss of earnings, including loss of earning potential;
(d) Harm to reputation or dignity;
(e) Costs required for legal or expert assistance, medicines and medical services.
In view of above, on account of physical or mental harm, including pain, suffering and emotional distress, material damage and loss of earnings, including loss of earning potential caused to owner and his driver, compensation to the tune of Rs, 25,000/ is also imposed upon the convict, payable to owner and the driver. In default of payment of compensation, the convict shall further undergo sentence of six months.
Benefit of Section 428 of Cr.P.C. be given to convict.
Fine and compensation not deposited.
Convict is remanded to J.C. to serve the sentence.
Announced in the open Court
Today on: 21st of January, 2015 ( Virender Kumar Goyal)
Additional Sessions Judge,
Fast Track Court,
Rohini/Delhi
Session Case No. 27/1 Page 21 of pages 21