Delhi District Court
Manoj @ Puchi vs State on 8 August, 2014
1
IN THE COURT OF SH. SANJEEV JAIN:ADDL. SESSIONS
JUDGE /SPECIAL JUDGE: CBI03
(PC ACT) SOUTH DISTRICT: SAKET COURTS:NEW DELHI
Criminal Appeal no.12/2014
Manoj @ Puchi
s/o Sh. Rambir Singh
r/o Harizan Basti
Gangdass Mohalla
Aya Nagar, New Delhi
.........Appellant
Vs.
State ......... Respondent
AND
Criminal Appeal no.13/2014
1. Vivek @ Yogesh
s/o Sh. Gyan Chand
r/o H.No.262, Harijan Basti
Aya Nagar, New Delhi
2. Sandeep
s/o Sh. Jaswant
r/o H.No.99, PhaseIV
Aya Nagar, New Delhi ........Appellants
Vs.
State ......Respondent
2
Date of filing of appeal no.12/2014 : 06.06.2014
Date of filing of appeal no.13/2014 : 31.05.2014
Arguments heard in both appeals on: 01.08.2014
Date of order : 08.08.2014
08.08.2014
Appeals U/S 374 (3) of Code of Criminal Procedure against the
impugned judgment dated 01.05.2014 and order on sentence dated
08.05.2014 by the court of Ms. Purva Sareen, Ld. Metropolitan
Magistrate, South, Saket Courts, New Delhi
Presence: Sh. R.K Gujjar, Ld. Addl.PP for the State.
Sh. Udai Raj Singh, Advocate for appellants Sandeep
and Vivek.
Sh. Rajesh Khari, Advocate for appellant Manoj @
Puchi.
JUDGMENT
1 Criminal appeal no.12/14 titled as Manoj @ Puchi Vs. State and criminal no.13/2014 titled as Vivek @ Yogesh & ors Vs. State are preferred against the common judgment dated 01.05.2014 and order on sentence dated 08.05.2014 passed by the court of Ld. M.M and therefore, I propose to decide both the appeals by common judgment.
2 The brief facts of the prosecution case are that on 25.03.2013, complainant Pradeep Kumar was waiting for a bus at 3 IFFCO Chowk at main road, N.H8 to go to Okhla , PhaseI. At about 9.10 AM, four persons (accused) came at IFFCO Chowk in dark grey colour swift dezire car. Swift dezire car was stopped and one of the person from the car offered lift to the complainant to Okhla, phaseI. Complainant took the lift in the said car. Car was taken by the said four person towards Club drive road and it was stopped at a secluded place. At about 9.45 AM, all the four persons and the complainant came out of the car. The driver of the said car caught hold the complainant from the back side and pushed him inside the car. Driver of the car further asked his three friends to take out the knives and other three persons also over powered the complainant. The driver took his black colour purse containing Rs. 2800/, photocopies of voter card & PAN card and mobile phone. All the four persons asked him to stand with his back towards the car and after threatening the complainant they ran away in the car. Complainant noted number of car as 3136. On the complaint of Sh. Pardeep Kumar, FIR no.68/2013 was registered in PSFatehpur Beri u/s 392/34 Indian Penal code (in short "IPC") . After registration of FIR, the matter was investigated. All the four accused were arrested. One accused was a Juvenile who was produced before Juvenile Justice Board. Applications were filed by IO for Test Identification Parade (in short "TIP") of accused persons but all the accused 4 refused to participate in TIP on the ground that they had already been shown to the complainant. On the disclosure of accused Manoj @ Puchi, mobile phone of the complainant was recovered. 3 After completion of investigation chargesheet was filed. As per trial court record, after hearing the Ld. PP and Ld. Defence counsels, charge was framed by Ld. Trial Court against accused Manoj @ Puchi, Vivek @ Yogesh and Sandeep u/s 392 r.w. Section 34 IPC. Charge u/s 411 IPC was also framed by Ld. Trial Court against accused Manoj @ Puchi.
4 In order to prove its case prosecution examined PW1 Sh. Pradeep Kumar (complainant); PW2 Sh. Rakesh to prove sale of mobile phone to complainant; PW3 HC Subh Ram who recorded the statement of complainant Ex.PW1/A and prepared the rukka Ex.PW3/A; PW4 Ct. Murari Lal who proved the arrest of accused Sandeep and Vivek @ Yogesh as Ex.PW4/ A and Ex.PW4/B; PW5 ASI Ashwini Kumar who proved the seizure of car no.DL2 CAN3136 u/s 103 DP Act; PW6 HC Rajneesh who proved FIR Ex.PW6/A; PW7 Ct. Satbir Singh, PW8 Ct. Sudesh , PW9 SI Jasveer Singh and PW10 Mohd. Sultan (Asstt. Ahlmad) from Juvenile Justice BoardII, Delhi.
5 In their statement u/s 313 Cr.PC, accused persons denied the incriminating evidence and pleaded their innocence. No 5 defence evidence was led by accused Vivek @ Yogesh and Sandeep. Accused Manoj @ Puchi led defence evidence to prove that he himself surrendered in police station on 13.05.2013. 6 In appeal no.12/2014 on behalf of accused Manoj @ Puchi, the impugned judgment and order on sentence has been challenged mainly on the ground that the testimony of PW1 Pradeep Kumar, PW2 Rakesh, PW8 Sudesh and PW9 SI Jasveer Singh was wholly unreliable and suffers from contradictions and improvements. It is further alleged that Ld. Trial court did not consider the contradictions and improvements in the testimony of main witnesses and no explanation has been given to ignore said contradictions. In grounds of appeal, appellant Manoj @ Puchi has also disputed the registration of FIR, recovery of mobile phone, genuineness of bill of mobile phone Ex.PW1/A and alleged that he has been falsely implicated by complainant only to avoid the payment of taxi fair and the punishment from his employer for being late in the office. In grounds of appeal stress has been given on discrepancies in the colour of the recovered mobile phone and absence of public witnesses. It is alleged that Ld. MM has not properly appreciated the evidence of the witnesses. 7 In grounds of appeal no.13/2014 filed by appellant Vivek @ Yogesh and Sandeep almost similar grounds have been 6 taken. Additionally, it is stated that both the appellants are below the age of 20 years and first time offender and therefore they were required to be released on probation of good conduct. It is also alleged in appeal no.13/2014 that articles snatched from the complainant were not recovered; description of appellants in respect of their colour, height etc. were not mentioned in complaint and their identity at the stage of trial was doubtful. It is also stated that Ld. Trial court has failed to appreciate the contradictions and improvements in the testimony of material witnesses. 8 I have heard the ld. Addl.PP for State and Ld. Defence counsels for all three appellants and carefully gone through the trial court record. I have carefully considered the respective submissions. 9 During the course of arguments, Ld. Defence counsel for all three appellants conceded to the conviction u/s 392 r/w 34 IPC passed by the Ld. Trial Court but prayed for grant of probation to the appellants. It was submitted by Ld. Defence counsels that accused Manoj @ Puchi was arrested on 13.05.2013 and remained in JC till 16.05.2014 and therefore, he was in JC for slightly more than one year. It was submitted that accused Manoj @ Puchi was born on 25.06.1993 and studied up to 10th Standard. On behalf of appellant Vivek @ Yogesh, it was stated that he remained in custody from 03.04.2013 to 04.06.2013 i.e for about two months and his date 7 of birth is 17.08.1994. On behalf of appellant Sandeep, it was stated that he remained in custody from 03.04.2013 to 05.06.2013 i.e for a period of about two months and his date of birth is 20.11.1992. On behalf of appellant Vivek @ Yogesh and Sandeep, it is submitted that except this case, there is no criminal involvement of these two appellants. Therefore, Ld. Defence counsel submitted that keeping in view their tender age they may be released on probation. 10 Ld. Addl. PP for the State submitted that it has been established by prosecution that appellants committed the offence of robbery u/s 397 r.w section 34 IPC in a preplanned and calculated manner. They committed offence like professional criminals. Ld. Addl.PP opposed the prayer for grant of probation and defended the sentence awarded by Ld. Trial Court.
11 I have gone through the testimony of prosecution witnesses. PW1 Pardeep Kumar has supported the prosecution case almost on all material facts. He stood the test of cross examination. If testimony of PW1 is read as a whole, it creates a ring of truth. Apart from very minor contradictions or improvements, the testimony of PW1 appears to be credible, reliable and trustworthy. He supported the prosecution case in respect the incidence, identity of accused persons and the identification of case property. The defence of accused Manoj @ Puchi was that complainant falsely 8 implicated him as complainant refused to pay the fair which was asked by them. This defence indicates that accused Manoj @ Puchi atleast conceded his presence with complainant which corroborates the story of the complainant. There is no arguments that complainant has any acquaintance or enemity with any of the accused. In these circumstances, I do not find any reason that why complainant will falsely implicate the accused persons by sparing actual culprits. In my opinion, defence of false implication is after thought and improbable. Testimony of complainant proves the prosecution case on material facts and finds corroboration from the testimony of other witnesses. After going through the testimony of witnesses and documents proved on record, I have no doubt in my mind that prosecution has successfully proved essential ingredients of offence u/s 392 IPC r.w. Section 34 IPC beyond any shadow of reasonable doubt. Offence of robbery as defined u/s 390 IPC is aggravated form of theft or extortion. Once the accused is convicted for the offence of robbery as defined u/s 390 IPC, he cannot be convicted for the lesser offence of theft u/s 379 IPC or for retaining same stolen property u/s 411 IPC. After going through the entire evidence, in my opinion, there is no infirmity in conviction of appellants/accused persons u/s 392 r.w. Section 34 IPC. However, the conviction of accused Manoj @ Puchi is not sustainable u/s 411 9 IPC. Vide order dated 08.05.2014 , ld. Trial Court sentenced accused Vivek @ Yogesh, Sandeep and Manoj @ Puchi to undergo RI for three years and to pay fine of Rs.5000/each for the offence u/s 392 r.w. Section 34 IPC. In default of payment of fine, each accused was directed to under SI for two months. Accused Manoj @ Puchi was further sentenced to undergo RI for the period of six months for the offence u/s 411 IPC.
12 Ld. Addl. PP defended the sentence awarded by Ld. Trial Court on the ground of gravity of offence. Ld. Defence counsels requested for probation for accused Vivek @ Yogesh and Sandeep u/s 6 Probation of Offender Act, 1958 on the ground of their tender age. Ld. Defence counsel for accused Manoj @ Puchi requested for a lenient view on the ground that appellant Manoj @ Puchi had already undergone imprisonment for about one year. 13 Careful perusal of order dated 08.05.2014 passed by Ld. Trial Court does not indicate; the thinking process behind the sentence; consideration of incriminating and mitigating circumstances; the reasons for declining the probation and object and reason behind the sentence .
14 The complex question of determination of nature and quantum of sentence comes before the Court after the conviction of an accused. The decision of punishment depends on various 10 relevant factors relating to the nature of offence, the manner of its commission and the gravity of the same. The horizontal and vertical competing interest between society and individual, the victim and accused and the aspiration of "object to be sought" and the limitations of law require accurate analysis and harmonization of remedial, reformative and preventive steps.
15 In Giassudin Versus State of Andhra Pradesh, AIR 1977 SC 1932, it was held that...
"a proper sentences is the amalgam of many factors such as the nature of offence, the circumstances extenuating or aggravating of the offence, the prior criminal record (if any) of offender, the age of offender, the record of offender as to employment, the background of offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of offender, the prospects for rehabilitation of the offender, the possibility of return of offender to normal life in the community, the possibility of the treatment or training of offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and 11 the current community need, if any, for such a deterrent in respect to particular type of offence. These factors have to be taken into account by the court in deciding upon the appropriate sentence"
16 The incriminating circumstances against all three appellants are that in a very calculated manner they gave lift to the complainant, committed offence of robbery and ran away from the spot. The commission of such offences creates alarm and fear in the minds of the masses and makes the life difficult for the innocent people. Mitigating circumstances are that at the time of commission of offence accused Vivek @ Yogesh and Sandeep were aged about 20 years, whereas accused Manoj @ Puchi was aged about 21 years. As per trial court record, accused Manoj @ Puchi was involved in ten other cases pertaining to theft and robbery etc. which is an incriminating circumstances. The mitigating circumstances against accused Vivek @ Yogesh and Sandeep is that there is no previous criminal record against them. The other circumstances are that all the appellants belongs to the poor section of society and working as mechanics.
17 Keeping in view the mitigating and incriminating circumstances, a balance is required to be created between the interest of society at large and reformation and rehabilitation of 12 young appellants. At one end, three appellants requires opportunity to reform themselves and on the other hand strong message is required to be sent to the society so that it may prove as a deterrence to the similar offenders.
18 After careful consideration, in my opinion there are special reasons to decline probation to all three appellants. The offence u/s 392 IPC is punishable with imprisonment which may extend to 10 years. U/S 6 of Probation of Offender Act, a convict below the age of 21 years may be granted probation in such offences but the probation may be declined by the court if the court is satisfied having regard the circumstances of the case including the nature of the offence and character of offender that it would not be desirable to deal with him u/s 3 or 4 of the said act. The special reasons in this case is that all the three accused in preplanned manner gave lift to the complainant , took him to secluded place, threatened him by showing knife, snatched his purse and mobile phone and ran away from the spot. The manner of commission of offence is methodical and professional which creates general fear in the mind of public. Convicts involved in commission of such serious and pre planned offences are not required to be handled with kids gloves. In my opinion, the probation in the given facts and circumstances to the appellants will not serve the ends of justice. 13 Therefore, in view of above mentioned discussion and special reasons, the probation to the appellants is not desirable in the facts and circumstances of the case. At the same time, keeping in view the tender age of the convicts they also deserve some leniency in quantum of sentence.
19 Keeping in view the discussion, appeals are disposed of with following directions:
(i) Conviction of all the three appellants/convicts u/s 392 r.w. 34 IPC is maintained.
(ii)Conviction and order of sentence against Manoj @ Puchi u/s 411 IPC is set aside.
(iii)Order on sentence passed by Ld. MM is modified. Appellant/convict Manoj @ Puchi, Vivek @ Yogesh and Sandeep are sentenced to undergo RI for 2 years u/s 392/34 IPC and to pay fine of Rs.5000/each. In default of payment of fine respective convicts will further undergo SI for two months. Benefit of section 428 Cr.PC be given to respective convicts for the period of imprisonment already gone by them.
(iv) Mobile phone of complainant was recovered but his cash amount of Rs.2800/ could not be recovered during investigation. Out of the fine deposited by appellants/convicts, 14 compensation of Rs.3000/ be given by ld. Trial Court to complainant Sh. Pradeep Kumar in accordance with section 357 Cr.PC and remaining amount of fine will go to the State. Fine has already been deposited by all the three appellants in the Ld. Trial Court.
20 Personal bond and surety bond of appellants/convicts stand cancelled. They be taken into custody and be sent to jail to undergo the sentence. Accordingly, the warrants be prepared and be sent to Jail Suptd concerned.
21 Trial court record alongwith copy of judgment be sent to Ld. Trial Court/Ld. Successor court for compliance. Copy of judgment be also given to all the three appellants free of cost. One copy of judgment be sent to jail Suptd. concerned alongwith the warrants. File be consigned to record room.
22 Order accordingly.
Announced in the open court
on 08.08.2014 (Sanjeev Jain)
ASJ/Special Judge (PC Act)
(CBI3), South, Saket Courts,
New Delhi