Delhi District Court
State vs . Devender Kumar & Anr. on 18 January, 2012
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Devender Kumar & Anr.
FIR No. 423/01
U/s. 392/34 IPC.
PS Shalimar Bagh, Delhi.
JUDGMENT
a) The sl. no. of the case : 1091/2.
b) The Unique ID No. of the case : 02401R0188542001.
c) The date of commission of the : 25/06/2001.
offence
d) The date of institution of case : 23/08/2001.
e) The name of the complainant : Sh. Banwari Lal.
f) The name & address of accused : 1. Devender Kumar S/o.
Sh. Gyasi Ram, R/o A15, Shyam Colony, Budh Vihar, PhaseII, Delhi.
2. Brijesh Kumar S/o.
Sh. Bhagi Ram, R/o A28, Shyam Colony, Budh Vihar, PhaseII, Delhi.
g) The offence complained of : U/s. 392/34 IPC. h) The plea of the accused : pleaded not guilty. i) The date of reserving the order : 09/01/2012. FIR No. 423/01 PS Shalimar Bagh 1 j) The final order : Convicted. k) The date of such order : 18/01/2012. THE BRIEF REASONS FOR THE JUDGMENT :
1. The prosecution case, in brief, is that on 25/06/2001, at about 2:30 pm, near Gol Chakkar, JUBlock, Pitam Pura before Nahar Pul, Delhi, accused Devender Kumar and Brijesh Kumar in furtherance of their common intention robbed the complainant Sh. Banwari Lal of his briefcase containing some documents and cash of Rs. 3,900/ after causing hurt to him by throwing 'chilly powder' in his eyes. The accused persons were apprehended immediately after the robbery and robbed articles were recovered from their possession. Accused persons were arrested and after investigation, challan was filed by the police.
2. Complete set of copies were supplied to the accused persons and after hearing arguments, charge was framed against the accused persons for trial of offence U/s. 392/34 IPC to which they pleaded not guilty and claimed trial. FIR No. 423/01 PS Shalimar Bagh 2
3. In support of its case, the prosecution examined PW.1 P.S. Grover, who deposed about the working of accused Devender under his supervision. PW.2 is Sohanvir, eye witness to the incident, who has proved seizure of briefcase containing cash of Rs. 3,900/, one cheque book and some documents vide memo Ex. PW2/A, seizure of scooter of accused persons vide memo Ex. PW2/B, seizure of pant (trouser) of accused Brijesh Kumar vide memo Ex. PW2/C, arrest of accused Devender Kumar and Brijesh Kumar vide memos Ex. PW2/D, personal search of accused persons vide memos Ex. PW2/E and Ex. PW2/F and disclosure statements of accused persons vide memos Ex. PW2/G and Ex. PW2/H. PW.3 is Dr. Parshant Datta, who had medically examined complainant Banwari Lal and prepared the MLC Ex. PW3/A. PW.4 is constable Bijender, who had joined the investigation alongwith IO SI Yashvir Singh, got the case registered at PS and also identified the case property in court vide Ex. P1 to Ex. P7. PW.5 is complainant Banwari Lal, who has proved his statement Ex. PW5/A given to police and also identified the case property in court. PW.6 is retired HC Suraj Bhan, Duty Officer, who has proved the copy of FIR vide Ex. PW6/A. There is no witness as PW.7 in this case. PW.8 is HC Ashok Kumar, who alongwith Ct. Mange Ram FIR No. 423/01 PS Shalimar Bagh 3 apprehended the accused persons and made a call at police station and has proved pointing out memo regarding place of occurrence vide Ex. PW8/A. PW.9 is Constable Mange Ram. PW.10 is IO SI Yashvir Singh, who had investigated the case and has proved rukka Ex. PW10/A, site plan Ex. PW10/B, other memos on record, identified the case property in court vide Ex. P1 to Ex. P10 and after completion of investigation, prepared the challan.
4. The statement of accused persons was recorded U/s. 313 CrPC, wherein they pleaded innocence and false implication in this case. However, they did not wish to lead evidence in support of their defence.
5. I have heard final arguments from Ld. APP for State, Ld. defence counsel for accused persons and also gone through the evidence and documents on record carefully.
6. To prove the offence U/s. 392/34 IPC against the accused, the prosecution has to prove that accused Devender Kumar and Brijesh Kumar in furtherance of FIR No. 423/01 PS Shalimar Bagh 4 their common intention robbed the complainant Sh. Banwari Lal of his briefcase containing some documents and cash of Rs. 3,900/ after causing hurt to him by throwing 'chilly powder' in his eyes.
7. The prosecution has examined ten witnesses in total. Regarding the incident, the prosecution has examined PW.5 complainant Banwari Lal, who has deposed that he was dealing in stamp papers at Sub Registrar Office, Pitam Pura and purchased the same from Tis Hazari Courts and given them to the advocates etc., at Sub Registrar Office and on 25/06/2001, at about 2:15 pm, when, he alongwith PW2 Sohanvir, reached at District Park on scooter No. DL5755, Bajaj Chetak, 96 Model, driven by Sohanvir and he was the pillion rider, having Rs. 2.50 lacs lying in the dicky of said scooter, one silver colour briefcase of VIP containing one cheque book of Canara Bank, cash of Rs. 3,900/ and some other documents. He deposed that two boys came on a scooter and the boy sitting as pillion rider on the scooter threw chilli powder in his eyes and snatched briefcase from him. He further deposed that he threw his spectacles and chased the accused persons. He deposed that after crossing the canal they raised alarm and the scooter of the accused persons hit FIR No. 423/01 PS Shalimar Bagh 5 against one motorcycle of two police officials who were coming from their opposite direction. He further deposed that one accused was having the bag snatched from him and police had taken the same from the accused and he went to PS alongwith the police from where he was taken to the hospital as he was feeling pain. He further deposed that he had seen the boys before one day from the incident and know the accused persons and could identify them if shown to him but did not know the name of one accused. Witness has identified accused Brijesh Kumar in the court who snatched his bag. He deposed that he did not know the name of one accused present in the court but he was working with an advocate and he could not say definitely whether he was also with the other boy who snatched his bag. He deposed that police recorded his statement Ex. PW5/A. He further deposed that the briefcase containing documents and money was seized by the police vide seizure memo Ex. PW2/A and the scooter was seized vide memo Ex. PW2/B. He further deposed that he did not know what other things were done by the police. This witness was declared hostile by the prosecution. In his cross examination by Ld. APP, PW5 stated that he did not remember whether the colour of the scooter of accused persons was blue. He deposed that when he resisted the FIR No. 423/01 PS Shalimar Bagh 6 accused from snatching his bag, the accused gave leg blow to him. He deposed that the face of accused Brijesh was muffled with white rumal (handkerchief) and the driver of the scooter was wearing the helmet whose face was also muffled with rumal (handkerchief). He deposed that only two persons were sitting on the scooter. He further deposed that the name of the other accused was Devender, who was the munshi (clerk) of advocate P.S. Grover. He deposed that minor injuries were sustained by him after falling down from the scooter due to hitting his scooter with the scooter of accused persons and Sohanvir, who was conscious at the spot, sustained minor injuries on his legs as scratches. He deposed that he could not tell that the scooter number of accused was DL8SE2240. The case property i.e. briefcase containing cash of Rs. 3,900/, one cheque book and some documents, has been identified by PW5 vide Ex. P1 to Ex. P6, however he could not identified the pant (trouser) of accused seized by the police. PW5 also identified the scooter of accused persons after seeing the photographs Ex. P8 to Ex. P10 of the same. He denied the suggestion that the personal search of accused persons were conducted in his presence. He voluntarily stated that the police had got recovered the packet of chilli powder from one of the FIR No. 423/01 PS Shalimar Bagh 7 accused. He denied the suggestion that his statement was endorsed by the IO at the spot and sent constable to PS for registration of case. He stated that all the writing work was done at the spot. He denied the suggestion that he was not taken to PS by the police but was removed to hospital. He deposed that due to lapse of time he was not able to recollect his memory and not deposing properly. He deposed that both the accused persons Brijesh and Devender were sent to the hospital by the police for their medical examination.
In his cross examination by Ld. Defence counsel for accused Devender, PW5 stated that he is illiterate and can only write his name. He admitted that he did not know the contents of memos and statement, however, the police had read over him the contents of his statement including memos and thereafter he signed the same at PS after his medical examination. He stated that the incident had occurred at a distance of one and half kilometer from the Registrar Office. He admitted that both the accused persons were in muffled face and wearing helmet due to which he could not identify them. He further stated that because the chilli powder was thrown in his eyes so he could not see anything. He stated that for the first time he had seen accused FIR No. 423/01 PS Shalimar Bagh 8 Devender in PS. He stated that the accused persons were apprehended at a distance of 34 kilometer from the place where they had thrown chilli powder in his eyes; voluntarily stated they chased the accused persons. He further stated that the accused persons were apprehended by the police at the spot and some public persons were also gathered there.
In his cross examination by Ld. Defence counsel for accused Brijesh Kumar, PW5 denied the suggestion that at the time of incident Rs. 3,900/ were not lying in the briefcase. He stated that due to muffled face he could not see the face of accused persons. He denied the suggestion that all the proceedings were conducted by him at the instance of police or he was deposing falsely.
Further, the prosecution has examined PW2 Sohanvir, who was hostile to the prosecution case. He has deposed that he was working with PW5 Banwari Lal in Pitam Pura and they brought stamp papers from Tis Hazari Courts for advocates and other people in Pitam Pura, Sub Registrar Office and in return they paid them. He deposed that he did not remember the FIR No. 423/01 PS Shalimar Bagh 9 date and month but the incident had happened five months ago when he alongwith PW5 Banwari Lal started from Pitam Pura and Banwari Lal was having a briefcase containing cash of Rs. 3,900/ and some other papers and they were on two wheeler scooter No. DL9S5755B. He deposed that he was driving the said scooter and PW5 Banwari Lal was sitting as pillion rider and at about 34:00 pm when they reached at attached gol chakra, Pitam Pura, Shalimar Bagh, one scooter came from behind on which two persons were sitting and both were wearing helmet and the scooter was perhaps blue or green colour. He further deposed that the said persons threw chillies in the eyes of Banwari Lal and snatched the bag and ran away. He deposed that he chased the accused persons but fell down and people gathered there and he did not know what happened thereafter and he did not know anything further about the case. This witness was also declared hostile by the prosecution.
In his cross examination by Ld. APP, PW2 deposed that the incident had occurred on 25/06/2011 and they reached in the office of Sub Registrar, Pitam Pura, at 10:15 am. He stated that they were given challan vouchers and Rs. 2.50 lacs for purchasing the stamp papers. He further stated that they FIR No. 423/01 PS Shalimar Bagh 10 started from the office of Sub Registrar, Pitam Pura at about 4:00 pm and Rs. 2.50 lacs were lying in the dicky of scooter, or silver colour briefcase of VIP. He further stated that two police officials on red and white motorcycle came when they crossed the canal bridge of CABlock, Shalimar Bagh, after their falling down. He further stated that he could not say whether the police officials brought their motorcycle before the scooter of accused persons and they also struck their scooter behind the scooter of accused persons. He deposed that 1520 persons were gathered at the spot and he remained lying on the road for about 10 minutes and Banwari Lal fell down behind him. He stated that he could not say whether the accused persons fell down and were beaten by the public persons. He stated that he knew P.S. Grover but he did not know whether accused Devender Kumar worked with him as Munshi (clerk) and he recognized him by face. He stated that none of the boys who worked with P.S. Grover was present in the court. He further stated that he was working with PW5 Banwari Lal for the last 56 months prior to the incident. He deposed that the boy who snatched the briefcase had muffled his face with rumal (handkerchief) and it might be possible that his name was Brijesh Kumar. He stated that he could not say that the person who was FIR No. 423/01 PS Shalimar Bagh 11 driving the scooter was the Munshi of advocate P.S. Grover and he recognized him. He deposed that the briefcase was found at the spot. He admitted that the chillies were not thrown in his eyes. He stated that he could not say if the briefcase was recovered from the possession of accused Brijesh Kumar. He stated that the police from police station reached at the spot and inquired from him and Banwari Lal and also recorded the statement of Banwari Lal. He stated that he could not say whether the police took him alongwith Banwari Lal at golchakkar. He deposed that the police had seized the briefcase containing Rs. 3900/, one cheque book of Canara Bank, challan voucher books and stamps of Banwari Lal and some other documents vide memo Ex. PW2/A bears his signature at point A. He stated that the scooter of the accused, bearing No. DL8SF2240 might have been seized by the police. He stated the he could not say whether the pant (trouser) of accused Brijesh Kumar, was seized by the police. He stated that no injuries were sustained by him on his head or in his eyes. He stated that he could not say whether the accused persons were arrested in his presence. He stated that he could not say whether the pant (trouser) FIR No. 423/01 PS Shalimar Bagh 12 containing chilly powder of accused Brijesh Kumar was seized by the police, put up in a pullanda and was sealed with the seal of YS. PW2 admitted that arrest memo Ex. PW2/C, personal search memo Ex. PW2/E and disclosure statement Ex. PW2G of accused Brijesh Kumar and arrest memo Ex. PW2/D, personal search memo Ex. PW2/F and disclosure statement Ex. PW2/H of accused Devender Kumar, bear his signatures at point A. PW2 stated that he could not say if accused Devender Kumar was driving the scooter or accused Brijesh Kumar, who snatched the briefcase, was apprehended by the police at the spot. He denied the suggestion that he was deposing falsely and not identifying the accused persons as both the accused persons were working with advocate P.S. Grover where he was also working with Banwari Lal.
In his cross examination by Ld. Defence counsel, PW2 stated that the police reached at the spot after 1015 minutes. He further stated that he did not know English but knows Hindi and he had signed the papers without reading.
FIR No. 423/01 PS Shalimar Bagh 13
8. To prove the police proceedings, the prosecution has examined PW10 IO SI Yashvir Singh. PW10 deposed that on 25/06/2001, on receipt of DD No. 25 A, he alongwith PW4 constable Bijender reached in front of the gate of CA Block, Shalimar Bagh, near Tpoint where they met with constable Mange Ram and constable Ashok Kumar alongwith two accused persons namely Devender Kumar and Brijesh Kumar and complainant Banwari Lal with some other persons and both the accused persons were handed over to him. He deposed that one scooter make Bajaj Chetak was also found at the spot and black paper was found pasted at the number plate of the scooter and upon checking the number of the scooter was revealed as DL8SF2240. He further deposed one silver colour briefcase make VIP Odyssey was handed over to him by complainant Banwari Lal on which "Banwari Lal Sub Resigtrar Compound Pitampura" was written. He further deposed that the statement of complainant Banwari Lal was recorded and rukka Ex. PW10/A was prepared and the case was got registered through constable Vijender. He deposed that both the accused persons were handed over to constable Mange Ram and constable Ashok Kumar, who left the spot and he alongwith complainant Banwari Lal and one person Sohanvir reached at the place of FIR No. 423/01 PS Shalimar Bagh 14 incident i.e. near round about J & JUBlock, near Canal, Pitam Pura, Delhi and prepared the site plan Ex. PW10/B at the instance of complainant and in the meantime constable Vijender reached at the spot i.e. at CABlock and handed over to him copy of FIR and original rukka. He further deposed that both the accused persons and complainant were sent to BJRM hospital for their medical examination alongwith constable Vijender, constable Mange Ram and constable Ashok Kumar. He further deposed that no eye witness was found at the spot. He further deposed that after medical examination both the accused persons and the complainant were brought at the spot and after interrogation both the accused persons were arrested and their disclosure statements were also recorded. He further deposed that red chilly powder was recovered from the right pocket of accused Brijesh Kumar from his wearing trouser. He further deposed that the trouser of the accused alongwith red chilly powder were kept in a cloth pullanda and was sealed with the seal of YVS and were taken into police possession vide seizure memo Ex. PW2/C and the briefcase containing Rs. 3,900/, one cheque book, one packet of challan vouchers, one stamp with impression of Banwari Lal and some other papers were also sealed with the seal of YVS and were taken into police FIR No. 423/01 PS Shalimar Bagh 15 possession vide seizure memo Ex. PW2/A. He deposed that the seal after use was handed over to constable Mange Ram and the case property was deposited in malkhana and the statement of witnesses was recorded. He further deposed that pointing out memo Ex. PW8/A was prepared at the instance of accused persons and the photographs Ex. P8 to Ex. P10 of the scooter of accused persons were placed on record and after completion of investigation, the challan was prepared. The case property was identified by PW10 vide Ex. P1 to Ex. P10.
In his cross examination by Ld. Defence counsel for accused Brijesh, PW10 stated that he reached at the spot at about 2:50 pm, where he met with constable Mange Ram alongwith both the accused persons and the complainant Banwari Lal and his friend Sohanvir and some other public persons. He stated that he took complainant Banwari Lal and Sohanvir from the spot where the accused persons were arrested. He denied the suggestion that accused Brijesh Kumar was arrested from his house on the next date and not from the spot. He further stated that the site plan did not contain the signatures of complainant but the same was prepared at his instance. He FIR No. 423/01 PS Shalimar Bagh 16 stated that the red chilly powder was recovered from the right side pocket of accused Brijesh Kumar. He voluntarily stated that complainant Banwari Lal produced before him the briefcase robbed by the accused persons. He denied the suggestion that the briefcase was not recovered from the possession of accused persons and no chilli powder was recovered from the possession of accused Brijesh Kumar. He further denied the suggestion that all the proceedings were done by him at PS and all the witnesses were called at PS. He stated that the statement of complainant Banwari Lal and Sohanvir was recorded by him. He denied the suggestion that he was deposing falsely or that he has falsely implicated accused Brijesh.
In his cross examination by Ld. Defence counsel for accused Devender, PW10 stated that the distance between the police and the spot where the accused persons were apprehended was hardly 800 meter. He further stated that signature of any public person could not be obtained at any documents at the spot. He stated that the black paper pasted on the number plate of the scooter of accused persons were not seized by him and no helmet was seized as the same was not found with the accused persons. He denied FIR No. 423/01 PS Shalimar Bagh 17 the suggestion that rukka Ex. PW10/A was written by him on his own. He stated that he did not exactly remember, but so far as, he remembered the handkerchief by which the accused persons muffled their face was seized by him in the jamatalashi of accused persons. He admitted that in the personal search memo of accused Devender the handkerchief was not recovered. Voluntarily stated that handkerchief of accused Brijesh was seized in his personal search. He stated that the disclosure statements of both the accused persons were recorded separately and their signatures were obtained on their disclosure statements respectively. He denied the suggestion that accused Devender has been falsely implicated and no recovery was affected his possession and his disclosure statement was not recorded and all the proceedings were done while sitting at PS and he was deposing falsely.
The testimony of PW10 SI Yashvir Singh has been corroborated by PW4 Constable Bijender and PW8 Constable Ashok Kumar. PW4 had joined the investigation alongwith PW10/IO SI Yashvir Singh and deposed about the investigation conducted by the IO in this case. The testimony of PW8 is material regarding the apprehension of the accused persons immediately after FIR No. 423/01 PS Shalimar Bagh 18 the commission of offence. PW8 has deposed that on 25/06/2001 he alongwith PW9 Constable Mange Ram was on patrolling duty on Omni Motorcycle and at about 2:30 pm when they were coming from CA Block, a noise of public persons had been heard by them who were coming from Nahar side and two persons on a scooter whose number plate was covered by a black paper were coming from that side and public persons were chasing them. He deposed that one of the scooterist was in muffled face and when the said persons came near speed breaker PW9 constable Mange Ram obstructed them by his motorcycle due to which both the accused persons fell down from their scooter and public persons were also reached there. He further deposed that complainant PW5 Banwari Lal also came there and constable Mange Ram informed to the police station upon which PW10/IO SI Yashvir Singh alongwith PW4 constable Bijender came at the spot. He further deposed that the statement Ex. PW5/A of complainant Banwari Lal was recorded by IO SI Yashvir Singh who also seized the briefcase, being snatched by the accused persons from complainant Banwari Lal and cash of Rs. 3,900/ was also seized vide Ex. PW2/A. He further deposed that the scooter No. DL8SF2240 of the accused persons was also seized vide memo Ex. PW2/B. FIR No. 423/01 PS Shalimar Bagh 19 He further deposed that one pant (trouser) containing chilli powder was also seized by the IO vide memo Ex. PW2/C. He deposed that both the accused persons had made the disclosure statements Ex. PW2/G and Ex. PW2/H regarding robbery from the complainant Banwari Lal by throwing red chilli powder in his eyes. He further deposed that the accused persons also pointed out the place from where they had committed robbery vide memo Ex. PW8/A. He further deposed that IO prepared a tehrir and got the case registered through PW4 constable Bijender who, after registration of case, handed over the copy of FIR and original rukka to the IO. He further deposed that both the accused persons were arrested vide memos Ex. PW2/C and Ex. PW2/D by the IO and their personal search was got conducted vide memos Ex. PW2/E and Ex. PW2/F and his statement was also recorded by the IO. PW8 had correctly identified the case property in court i.e. one sealed cloth pullanda with the court seal containing one black pant (trouser) containing one packet of red chilli powder, one briefcase containing some papers, stamp of Banwari Lal and cash of Rs. 3,900/ vide Ex. P1 and Ex. P2.
In his cross examination by Ld. Defence counsel for accused Brijesh, PW8 stated that their departure from PS was at about 9:15 am and FIR No. 423/01 PS Shalimar Bagh 20 constable Mange Ram was driving the motorcycle and the distance between canal/nahar from CABlock was about 100 meter and the said nahar could be seen from CABlock. He stated that it took two minutes to reach the canal/nahar from CABlock. He further replied that the complainant was behind the accused persons. He further stated that when they reached at the spot, PW5/complainant Banwari Lal and PW2 Sohanvir also reached there while chasing the accused persons and no one except them was chasing the accused persons. He replied that he did not remember the time when the IO reached at the spot. He stated that the call at PS for the IO was made by constable Mange Ram and when the IO reached at the spot they handed over the accused persons to him. He replied that the briefcase, snatched from the complainant Banwari Lal, was recovered from from the possession of accused Brijesh. He denied the suggestion that the briefcase was not recovered from the possession of accused Brijesh. He further denied the suggestion that he was deposing falsely and that accused Brijesh was not apprehended from the spot and nothings was recovered from his possession. FIR No. 423/01 PS Shalimar Bagh 21
In his cross examination by Ld. Defence counsel for accused Devender Kumar, PW8 stated that he alongwith PW9 constable Mange Ram came from PS at about 9:15 am on the same motorcycle and the entry was made by them in the log book of the motorcycle and they had worn the helmets. He stated that their motorcycle was not damaged. He denied the suggestion that there was no collision between their motorcycle and the scooter of accused persons and that is why there was no damage on the motorcycle. He stated that there was only shop of STD at the spot and public persons were gathered there. He denied that he did not know whether the accused persons were beaten by the public persons. He stated that he did not remember the time when the complainant Banwari Lal was sent to the hospital for medical examination, however he was sent prior to preparing the rukka on the same day. He further stated that PW9 constable Mange Ram took the complainant to BJRM Hospital and he remained at the spot. He denied that he did not remember whether constable Mange Ram had brought the complainant back at the spot or at PS. He stated that he remained at the spot for about one and half hours. He further stated that constable Mange Ram and complainant reached at the spot. He further stated that the chilli FIR No. 423/01 PS Shalimar Bagh 22 powder was not collected by the IO from the place of occurrence. He stated that black paper pasted on the number plate of the scooter of accused pers was not seized by the IO after removing the same. He further stated complainant Banwari Lal had given the briefcase to the IO and the seizure memos of the case property were prepared after coming from the hospital at about 3:00pm. He further stated that the disclosure statement of accused persons was separately recorded and their signatures were also separately obtained on the same. He stated that he was not aware if any of the accused was wearing helmet. He stated that the IO had not seized the cloth worn by the accused persons to muffle their face. He denied the suggestion that neither Banwari Lal nor Sohanvir stated to the police that accused Devender was involved in the offence. He further denied the suggestion that accused Devender was not present at the spot. He further denied the suggestion that all the proceedings were carried out at PS or both the accused persons were falsely implicated in the present case and they had not made any disclosure statement. He denied the suggestion that he was not present at the spot. FIR No. 423/01 PS Shalimar Bagh 23
The prosecution has also examined PW9 Constable Mange Ram, who was on duty alongwith PW8 constable Ashok Kumar and had joined the investigation alongwith PW10/IO SI Yashvir Singh and PW4 constable Bijender. He deposed that he was suffering from some disease due to accident and was under treatment since March 2007 in Sunder Lal Jain Hospital, that is why he could not recollect his memory and could not depose anything in respect of the present case. This witness had produced the documents related to his treatment in the court.
9. I have carefully scrutinized the testimonies of prosecution witnesses. Whereas, PW2 Sohanvir is rather hostile to the prosecution case, the testimony of PW5 victim/complainant Banwari Lal gives the glimpse of dilemma faced by a victim who wants to depose the truth before the court but does not want to offend the accused either because he is won over by the accused or is threatened by him, and thus gives a mixed account of the incident. PW5 rendered a crisp and precise account of the events surrounding the offence committed against him and of the recovery of the robbed articles at the spot but wavered at the time of identification of the accused persons. FIR No. 423/01 PS Shalimar Bagh 24
Considering that the assailants were chased by the victims and they were apprehended near the spot and the robbed articles were recovered from the assailants, the non identification of the accused persons by PW2 and PW5 mirrors the clear inhibition for reasons best known to them but this inhibition does not avail the accused persons as the prosecution has proved its case against the accused persons through oral testimonies as well as case property produced in the court in the following manner:
1) The incident occurred at about 2:30 pm on 25/06/2001 and the rukka was sent at 3:15 pm on the same day by PW10/IO SI Yashvir Singh upon the statement of PW5/complainant Banwari Lal. The rukka Ex. PW5/A clearly mentions the presence of both the accused persons and both the victims i.e. PW2 Sohanvir and PW5 Banwari Lal at the spot. The accused persons were arrested at the spot at the instance and identification of PW5/complainant Banwari Lal.
2) The robbed articles as well as the trouser of accused Brijesh containing FIR No. 423/01 PS Shalimar Bagh 25 chilli powder were taken into possession by PW10/IO SI Yashvir Singh at the spot and the same were produced in the court as corpus delicti and were identified by the prosecution witnesses including PW5/complainant Banwari Lal. The seizure memos prepared by PW10/IO at the spot bear the signature of witnesses including PW5/complainant Banwari Lal and were affirmed by him.
3) Accused persons were chased by the victims immediately after commission of robbery and were intercepted by PW8 Constable Ashok Kumar and PW9 Constable Mange Ram. PW8 has deposed that constable Mange Ram obstructed the accused persons with his motorcycle and both the accused persons fell from their scooter, immediately upon which the accused persons were apprehended while in possession of the robbed cash and articles and chilli powder used for commission of robbery. PW8 constable Ashok Kumar also deposed about the presence of victim/complainant Banwari Lal who reached there while chasing the accused persons. PW8 also deposed about the arrival of PW10/IO SI Yashvir Singh at the spot and the investigation proceedings conducted by him at the spot. FIR No. 423/01 PS Shalimar Bagh 26
4) PW3 Dr. Prashant Dutta deposed about the injury sustained by victim Banwari Lal in his eyes. He deposed that he examined patient Banwari Lal on 25/06/2001 in BJRM Hospital and found that both of his eyes were red and watering was present.
10.Thus, the material witnesses PW3, PW4, PW5/complainant, PW8 and PW10/IO examined by the prosecution are corroborating each other on all the material aspects. There is no inconsistency or inherent contradiction in their statement. The evidence led by prosecution through its witnesses is completely reliable and sufficient to bring home the offence against the accused persons and does not require any further corroboration from any other independent public witness.
11.Hence, in view of the above observation and discussion and the evidence on record, in my opinion, the prosecution has successfully proved its case against the accused beyond all shadows of reasonable doubt that on 25/06/2001, at about 2:30 pm, near Gol Chakkar, JUBlock, Pitam Pura FIR No. 423/01 PS Shalimar Bagh 27 before Nahar Pul, Delhi, accused Devender Kumar and Brijesh Kumar in furtherance of their common intention robbed the complainant Sh. Banwari Lal of his briefcase containing some documents and cash of Rs. 3,900/ after causing hurt to him by throwing 'chilly powder' in his eyes. Therefore, I hereby hold the accused persons guilty of the offence U/s. 392/34 IPC and convict them accordingly. Order on sentence shall be announced after hearing the accused.
ANNOUNCED IN THE OPEN (VISHAL SINGH)
COURT ON 18/01/2012. Metropolitan Magistrate,
(Copies 1 + 1) Delhi.
FIR No. 423/01
PS Shalimar Bagh 28
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Devender Kumar & Anr.
FIR No. 423/01
U/s. 392/34 IPC.
PS Shalimar Bagh, Delhi.
ORDER ON SENTENCE
Present: Ld APP for the State.
Convict Devender Kumar on bail with counsel Ms. Minakshi. Convict Brijesh Kumar on bail with counsel Sh. Rakesh Kumar. Arguments on sentence heard. It is argued by the Ld. counsels for the defence that it is an old case of the year 2001 and convict persons are facing trial from the last more than 10 years. It is further stated that facing trial for such a long period is itself a punishment for the convict and hence he is entitled to benefit of probation for good conduct. It is further stated that the convicts are not the habitual offender and have not been previously convicted by any competent court of law. It is further stated that convicts are the only bread earners of their respective families, whereas convict Brijesh Kumar having wife, old aged parents, one sister of marriageable age and one brother who is suffering from Brain Tumour for the last three years to look after and convict Devender having two minor children and old aged parents to look after. It is prayed that a lenient view may be taken by the court towards the accused persons and they be released on probation of good conduct.
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On the other hand, it is stated by Ld. APP that the only fact that the case is of year 2001 does not entitle the convict persons for any lenient view. It is further stated by Ld. APP that both the convicts deserve maximum punishment.
Considering the planned manner in which the robbery has been committed by the accused persons after throwing chilli powder in the eyes of complainant Banwari Lal, I do not deem it a fit case for grant of probation. I hereby sentence the both accused/convicts for a period of three years RI for the offence U/s. 392 IPC and further to pay a fine of Rs. 10,000/ each i.d. to undergo six months simple imprisonment each. The sentence shall run concurrently and benefit of section 428 Cr.P.C is given to the convicts and any previous imprisonment suffered by them in this case shall be set off against the substantive period of imprisonment imposed on them. File be consigned to Record Room.
Copy of Judgment and order on sentence be provided to the convict free of cost.
ANNOUNCED IN THE OPEN
COURT ON 27/01/2012. (VISHAL SINGH)
Metropolitan Magistrate
(Copies 1 +1) Delhi.
FIR No. 423/01
PS Shalimar Bagh 30
State Vs. Devender Kumar & Anr.
FIR No. 423/01
U/s. 392/34 IPC.
PS Shalimar Bagh, Delhi.
27/01/2012
Present: Ld APP for the State.
Convicts Devender Kumar on bail with counsel Ms. Minakshi. Convict Brijesh Kumar on bail with counsel Sh. Rakesh Kumar. I have heard arguments on the point of sentence from the Ld. APP for State and the Ld. Counsel for accused. Vide separate order, both accused/convicts for a period of three years RI for the offence U/s. 392 IPC and further to pay a fine of Rs. 10,000/ each i.d. to undergo six months simple imprisonment each. The sentence shall run concurrently and benefit of section 428 Cr.P.C is given to the convicts and any previous imprisonment suffered by them in this case shall be set off against the substantive period of imprisonment imposed on them. Fine paid by the accused persons.
At this stage, accused/convicts submit that they intend to appeal against the sentence passed against them by this court and seek interim bail till the filing of appeal. Considering that the convicts persons were on bail during the trial, hence, they are admitted to bail U/s. 389 (3) CrPC subject to furnishing personal bond in the sum of Rs. 25,000/ each with one surety to the like amount. BB furnished and accepted.
File be consigned to Record Room.
BB of accused/convicts be put up on 27/02/2012 at 2:00 pm. (VISHAL SINGH) Date : 27/01/2012 Metropolitan Magistrate Delhi.
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