Delhi District Court
State vs . on 1 August, 2012
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.125/10
(Unique No. 02403R0126972010)
FIR No.543/09
PS: Vasant Kunj
U/S: 392/397/327/379/411/34 IPC.
State
Vs.
Jagmender @ Sonu
S/o Sh. Ajit Singh
R/o Jhuggi No.388,
Kusum Pur Pahari,
Vasant Vihar, New Delhi.
Date of initial institution : 02.03.2010
Date of institution in this court : 26.10.2010
Date of reserving Order : 18.07.2012
Date of Pronouncement : 01.08.2012
JUDGMENT
1. The state machinery came into motion on receipt of an information on 25.11.2009 at 12:04 a.m that on Kusumpur Pahari some money and mobile have been snatched by showing knife. This information was reduced into writing by DD No.2 A dated 24.11.2009 and ASI Ramesh Kumar was directed to visit the spot. ASI Ramesh Kumar visited the spot S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 1 /17 where he met the complainant Raj Kumar, however, complainant being disturbed by the incident, did not make any statement and requested that he will make the statement on the next day. Next day, he came to the PS and made a statement to the effect that on 24.11.2009 at about 11:15 p.m when he was returning to his house on his cycle and had reached near Kusumpur Pahari at A-Block, Balmiki Mandir, three boys in the age group of 25-30 years, came in front of his cycle and felled his cycle. Two boys gave fist blows to him and the third, who had a knife like object in his hand, was also standing there. Due to fist blow the complainant fell down. When the assailants had escaped, the complainant noticed that his mobile phone make Nokia-1650 having No. 9871543887 with an IMEI No. 355744021665652 and Rs. 1500/- cash was missing from his pocket. He stated that he can identify the accused persons. He did not sustain any visible injury and hence refused for his medical examination. On this statement, rukka was prepared and the FIR No. 534/09 was registered under Section 327/379/34 IPC. Call detail records of the Mobile phone No. 9871543887 were obtained from which it transpired that the Mobile connection was in the name of Rakesh Kumar. On meeting Rakesh S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 2 /17 Kumar, he stated that he had given the photocopy of Election Identity Card and two photos to one Jagmender for the purpose of securing job. Thereafter, at the instance of Rakesh Kumar, Jagmender was nabbed and on his search, robbed Mobile phone with the same IMEI number and Sim card of Mobile connection No. 9717757926 was seized. He disclosed the name of Ashok and Raju to be his accomplices but they could not be apprehended despite efforts.
2. After completion of investigation, charge-sheet under Section 327/379/392/397/411 IPC was filed against the accused. Since the offence under Section 397 IPC is exclusively triable by the court of Sessions, the case was committed to this court for trial.
3. Vide order dated 20.04.2011, charge under Section 392/397 IPC was framed against the accused, to which he pleaded not guilty and claimed trial.
4. In order to prove its case, prosecution has examined nine witnesses. These witnesses can be divided into two categories i.e. public witnesses and police witnesses. 4A Public Witnesses: In this category PW-1 Raj Kumar, S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 3 /17 PW-2 Vinod Kumar, PW-5 Vishal Gaurav, PW-7 Sh. S.P.S. Laler, Ld. M.M and PW-8 Rakesh, can be placed.
4.B. PW-1 Raj Kumar is the complainant, who deposed about the incident on the lines noted above. He proved his complaint as Ex.PW1/A. He also stated that he had handed over the receipt of purchase of the Mobile phone which was seized vide seizure memo as Ex.PW1/B and the receipt was exhibited as Ex. PW1/C1. He further stated that on 24.12.2009, he identified the accused Jagmender during TIP proceedings at Tihar Jail. He also identified the accused present in the court. He also identified his Mobile phone and the same is Ex. P-1. In his cross-examination, he stated that although it was dark at the spot at the time of the incident, however, some light was coming from the neighbouring houses at the distance of about 10 paces. He stated that after the incident, he left the spot and reached his home but again came back to the spot after about fifteen minutes and police met him there. He also stated that out of fear, he could not make the statement on the day of incident but he made his statement to the police on the next day. He denied the suggestion that due to darkness, he could not properly identify S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 4 /17 the person, who had snatched his Mobile phone. He also denied the suggestion that accused was shown to him in the PS or that he identified the accused in the court at the instance of the IO.
4.C. PW-2 Vinod Kumar is the Shopkeeper, who had sold the Sim Card No. 9717757926. He stated that on 26.07.2009, Jagmender (accused) came to his shop for purchasing the Sim Card with ID proof of one Rakesh Kumar R/o A-35, Kusum Pur Pahari. Jagmender told that Rakesh was his brother and being unwell, he cannot come. He stated that at the repeated request of the accused, he filled up the application form and handed over it to him for getting signatures of his brother. After sometime, Jagmender came back with the signatures of Rakesh on the application form, on which he handed over the Airtel Sim Card No. 9717757926 to Jagmender.
4.D. PW-5 Vishal Gaurav is Nodal Officer of Airtel, who proved the Customer Application Form of Mobile Phone No. 9717757926 in the name of Rakesh Kumar S/o Tehar Singh R/o A-35, Kusumpur Pahari. The Customer Application Form is Ex. PW5/B. Alongwith the Customer Application Form, there is a copy of voter I-card of Rakesh. He also proved the S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 5 /17 call detail records of the said mobile for the period 27.11.09 to 19.12.09 as Ex. PW5/D1 to D12. The Certificate under Section 65-B of Indian Evidence Act is Ex. PW5/E.
4.E. PW-7 Sh. S.P.S. Laler, Ld. Metropolitan Magistrate, proved the recording of the TIP proceedings of accused as Ex. PW7/C on 24.12.2009 in which the witness Raj Kumar had identified the accused.
4.F PW-8 Rakesh is the person in whose name, the Sim Card of Phone No.9717757926 was sold. He deposed that in 2009, he had given a copy of his Election Identity Card and two photos to accused Jagmender for the purpose of securing a job. However, there was no vacancy but the accused did not return his documents. He further stated that in the year 2009, one police official came to his house and asked about his Election Identity Card and asked from him whether he had purchased any Sim card using the said Identity card or not.
4.G Police Witnesses: In this category, four witnesses can be placed, namely, PW-3 ASI Ram Kumar, PW-4 Ct. Sanjay, PW- 6 HC Sudhir Singh and PW-9 ASI Ramesh Kumar.
4.H PW-3 ASI Ram Kumar is the Duty Officer, who proved S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 6 /17 the recording of DD No.2A on 25.11.2009 at 12:04 a.m. He proved the said DD as Ex.PW3/A.
4.I PW-6 is HC Sudhir Singh, who proved recording of FIR No. 453/09 on receipt of rukka. The FIR was proved as Ex. PW6/A.
4.J PW-4 Ct. Sanjay deposed that on 22.12.2009, he joined the investigation of the present case with ASI Ramesh Kumar and both reached at A-35, Kusumpur Pahari, at the residence of Rakesh, who told that he had given a copy of his Election Identity Card to one Jagmender for the purpose of a job. Thereafter, Rakesh left them at the house of Jagmender and pointed out towards the accused Jagmender. Jagmender was nabbed. On his search, Jagmender was found to be carrying robbed Mobile phone make Nokia-1650. ASI Ramesh Kumar apprehended him and the Mobile phone was seized vide seizure memo as Ex.PW4/A. His disclosure statement was recorded as Ex.PW4/B wherein he disclosed that he alongwith two associates, namely, Ashok and Raju had snatched the said Mobile phone at the point of knife at Balmiki Mandir, Kusumpur Pahari, A-Block. The Sim Card of the said Mobile phone was broken and thrown by him on Kusumpur Pahari. S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 7 /17 Accused was arrested vide arrest memo Ex. PW4/C and his personal search memo was proved as Ex. PW4/D. The witness identified the accused Jagmender in the court. Pointing out memo of the place of occurrence was proved as Ex. PW4/E. In his cross-examination, he stated that statement of Rakesh was recorded at his house where his father and mother were also present. He stated that the distance between the house of Rakesh and Jagmender is about 300 meters. He denied the suggestion that Jagmender had told him that he had purchased the Mobile phone and he could lead them to the person from whom he had purchased the Mobile.
4.K PW-9 ASI Ramesh Kumar is the IO, who stated that on the intervening night of 24/25.11.2009, he received a DD No. 2A regarding quarrel and snatching of money and mobile. He reached the spot alongwith PSI Ravi Babu. Complainant met him but he did not give any statement and the complainant stated that he will give his statement in the PS. On 25.11.2009, complainant came in the PS and the statement of the complainant was recorded which is Ex. PW1/A. On the basis of the complaint, rukka was prepared which is Ex. PW9/A and thereafter FIR was registered. Complainant S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 8 /17 handed over the receipt regarding purchase of Mobile Phone which was seized vide seizure memo as Ex. PW1/B and the receipt is Ex. PW1/C1. He proved the site-plan of the spot as Ex.PW9/B and stated that the Mobile phone of the complainant was put on surveillance. On 22.12.2009, he came to know from the Nodal Officer of the service provider that the Mobile phone was used by Rakesh Kumar. He alongwith Ct. Sanjay met Rakesh, who told that he never used this Mobile phone nor he owns the same. Rakesh told that he had given the photocopy of his Election Identity Card alongwith two photos to Jagmender for the purpose of securing a job. Rakesh led them to the Jhuggi of Jagmender and on being pointed out by Rakesh, Jagmender was nabbed. At the time, he was carrying one Mobile phone in his hand. On checking, Nokia-1650 Mobile Phone with IMEI number mentioned on the receipt was found to be the same. Mobile phone was seized vide seizure memo Ex. PW4/A. Accused was arrested vide arrest memo Ex. PW4/C. His disclosure statement was recorded as Ex. PW4/B. Accused pointed out the place of occurrence which is Ex. PW4/E. Search of the other accused persons made but they could not be found. He proved the receiving of the TIP proceedings of the accused as S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 9 /17 Ex.PW9/D. He identified the accused in the court and the Mobile phone. In his cross-examination, he stated that when he reached the spot, PCR van had already gone from the spot. The complainant alone was found there. The complainant stated that after the incident, he had left the spot but again came back to the spot. He stated that no source of light was shown by him in the site-plan Ex. PW9/B but the spot was surrounded by houses. He stated that he had inquired from the passers-by but he was informed that they had no knowledge about the incident. He denied the suggestion that he did not go to Methali Enterprises, the shop which had sold the Mobile phone. He stated that he had not got conducted the TIP of the Mobile Nokia phone before any Magistrate since the IMEI number of the recovered Mobile was tallying with the receipt of the Mobile phone.
5. All the circumstances appearing against the accused were put to him in his examination u/s 313 Cr P.C. He however, did not deny the recovery of mobile phone from him but he said that he had purchased the said mobile phone from one person Raju. But interestingly no defence evidence was produced by the accused in support of this claim. S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 10 /17
6. Ld. Counsel for the accused has argued that there is no recovery of any knife like weapon and hence the offence u/s 397 IPC is not made out against the accused. Further, it was argued that in the cross examination of the complainant, he stated that there was darkness at the spot and hence the identification of the accused by him becomes doubtful. Regarding, recovery of phone from the accused, it has been stated that the mobile was purchased by the accused from Raju. It has been vehementally argued that at the most offence u/s 411 IPC is made out against the accused.
7. On the other hand, Ld. Addl. PP has argued that the accused was identified by the complainant during TIP as well as in the Court. The accused had used force in robbing mobile phone from the complainant. The mobile phone was recovered from the possession of the accused. As such, conviction u/s 392 IPC has been prayed by the Ld. Addl. PP.
8. I have heard both the sides and have perused the records of this case carefully. As noted above, the accused was charged u/s 392/397 IPC for robbing the complainant of his mobile phone on the point of knife like object. It is the own case of the prosecution that the said knife like object S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 11 /17 could not be recovered. It is only the use of a deadly weapon which aggravates the offence of robbery and makes the same punishable u/s 397 IPC. But when the said weapon is not recovered, it cannot be said whether the said weapon was deadly or not. In the absence of recovery of knife, allegedly used by the accused at the time of commission of the offence, it cannot be presumed that the 'knife' used was a deadly weapon and in such circumstances, charge u/s 397 IPC cannot be established.
9. Now, let us examine the evidence on record to see if charge u/s 392 IPC can be established? Section 392 IPC prescribes punishment for robbery. 'Robbery' is defined u/s 390 IPC as under:
Section 390: Robbery. - In all robbery there is either theft or extortion.
When theft is robbery. - Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 12 /17 restraint.
When extortion is robbery. - Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted.
10. The essential ingredients of 'robbery' are as follows:
1. Accused committed theft;
2. Accused voluntarily caused or attempted to cause.
(i) death, hurt or wrongful restraint.
(ii) Fear of instant death, hurt or wrongful restraint.
3. He did either act for the end.
(i) to commit theft.
(ii) While committing theft.
(iii) In carrying away or in the attempt to carry away property obtained by theft.
S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 13 /17
11. In Venu vs. St. of Karnataka 2008 Cr LJ 1634, it was held by the Hon'ble Supreme Court that the provision defines robbery which is theft or extortion when caused with violence of death, hurt or wrongful restraint. When there is no theft committed, then as a natural corollary there cannot be robbery. Robbery is only an aggravated form of offence of theft or extortion. Aggravation is in the use of violence of death, hurt or restraint. Violence must be in course of theft and not subsequently. It is not necessary that violence actually should be committed but even attempt to commit it is enough. ......... There can be no case of robbery which does not fall within the definition either of theft or of extortion; but in a practice it will perpetually be a matter of doubt whether a particular act of robbery was a theft or an extortion. A large proportion of robberies will be half theft, half extortion.
12. The complainant has deposed as PW-1 that on 24.11.2009 at about 11.30 pm when he was going to his house and reached at A Block Balmiki Mandir, Kusum Pur Pahari, Vasant Kunj, at that time, three boys came in front of his cycle and gave him fist blows and felled him. One of the boys tried S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 14 /17 to cause him injury with knife like weapon and he became perplexed and found his mobile Nokia 1650 and cash Rs. 1500/- taken away by them. Only the accused was apprehended with the aid of IMEI number of the mobile phone of the complainant which was being used by the accused. The other two accomplices of the accused could not be apprehended. The mobile phone of the complainant bearing IMEI number 355744021665652 was recovered from the accused. The complainant had proved his ownership of the said mobile by the original cash memo Ex. PW-1/C-1 dt. 12.9.2008. The Call Detail Records of mobile number 97177 57926 for the period 27.11.2009 to 19.12.2009 were duly proved by PW-5 Vishal Gaurav, Nodal Officer, Bharti Airtel Ltd. as Ex. PW-5/D-1 to D-12. According to these details, mobile no. 97177 57926 started to use the mobile phone bearing IMEI Number 355744021665652 from 1.12.2009 at 19:46:36 onwards. He also proved the ownership of mobile connection no. 9717757926 in the name of one Rakesh Kumar S/o. Tehar Singh, R/o A-35 Kusumpur Pahari, New Delhi as Ex. PW-5/B. PW-2 Vinod Kumar, a mobile connection seller deposed that he had sold the mobile connection no. 9717757926 to the accused in the name of S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 15 /17 Rakesh Kumar whom the complainant had stated to be his brother, on the basis of Election ID Card photocopy and a photograph of Rakesh Kumar. PW-8 Rakesh deposed that he had given his photographs and copy of his election ID card to the accused Jagmender for purpose of securing a job. The accused has not disputed the recovery of the mobile phone from him. However, the explanation of the possession of the said mobile phone given by him is that he had purchased it from one Raju. The said Raju was not produced by him in his defence. As such, the defence raised by the accused does not inspire confidence. The complainant had also identified his mobile phone in the Court. The accused was duly identified by the complainant in the TIP proceedings conducted by PW-7 Sh. SPS Laler, Ld. Metropolitan Magistrate on 24.12.2009. The accused was also identified by the complainant in Court.
13. The complainant has deposed that on 24.11.2009 at about 11:30 p.m., three boys suddenly came in front of his cycle and gave him fist blows and felled him down. They took away his mobile phone and cash of Rs.1500/- without his consent. Illustration (a) appended to Section 390 IPC reads as S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 16 /17 under:-
"A holds Z down and fraudulently takes Z's money and jewels from Z's clothes without Z's consent. Here A has committed theft, and in order to the committing of that theft, he has voluntarily caused wrongful restraint to Z. A has, therefore, committed robbery."
14. The facts in hand are more or less like illustration (a) above. Three boys had stopped the cycle of the complainant. The complainant was felled down by the accused and his accomplices, his mobile phone and money was taken. The mobile phone was recovered from the accused. All the ingredients of Section 392 IPC are, therefore, fulfilled. The accused is, therefore, convicted for the offence under Section 392 IPC.
Announced in the open Court. (Rajeev Bansal)
Dated:01.08.2012 ASJ-3/South District
Saket Courts, New Delhi
S.C. No.125/10 FIR No.543/09 State vs. Jagmender @ Sonu 17 /17