Delhi District Court
State vs Accused on 25 February, 2012
IN THE COURT OF DR. T.R. NAVAL:ADDITIONAL
SESSIONS JUDGE-02:EAST DISTRICT:KARKARDOOMA
COURTS: DELHI
SC NO.28/08 Date of Institution :19.11.2008
FIR No.496/06 Date of Argument :02.02.2012
PS Krishna Nagar Date of Order :25.02.2012
U/S 392/397/34 IPC & 25 Arms Act
State Versus Accused
1 Rizwan @ Bhura
S/o Islam
R/o Rashid Gate
Loni, District Ghaziabad, UP.
2 Asif
S/o Raseed
R/o Dabur Colony,
Alvi Nagar, Loni,
Distict Ghaziabad, UP.
3 Dhillu Phurkan
S/o Babu Qureshi
R/o Rashid Ali Gate,
Loni, District Ghaziabad, UP.
JUDGMENT
The facts in brief of the prosecution case are that on 03.11.2006 at about 11:45 A.M. complainant Sh. Sanjay Mahajan was waiting for bus at bus stop Jagat Puri. A three wheeler bearing No.DL1RJ 1594 which was having three passengers and a driver stopped there. On inquiry he replied that he wanted to go Welcome Metro Station. He sat with the three passengers. When they arrived at SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 1/43 Himgiri Auto Mobiles, Kanti Nagar, one of the passenger pointed a katta on him and asked to handover whatever he was having in the bag. He was scared and on opening his briefcase he handed over Rs.30,000/- consisting of 10 currency notes of Rs.500/- and remaining currency notes of Rs.100/-. These currency notes were in a khaki colour envelop which was also having State Bank of India cheque No.366667 of Nagrota Surya Branch. The amount was given to second passenger who was about 5 feet 6 inch in height, gora colour with strong body. The third passenger was normal gehuan colour of 5 feet 3 inch in height. After receiving the money they pushed him out of the three wheeler. He raised alarm. HC Sompal who was coming from behind and public persons chased the three wheeler. At some distance, they apprehended a person and that person had pointed out katta on him. His name was revealed as Rizwan @ Bhura. Remaining offenders escaped after leaving the three wheeler. On search katta was recovered from his possession. Some of the public persons beat accused Rizwan. The police was informed. Statement of complainant was recorded in which he also stated that he was able to identify remaining offenders. The case vide FIR No.496/06 at PS Krishna Nagar was registered. IO prepared sketch of the katta and cartridge and seized it after converting it into a pullinda. TSR was also seized.
SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 2/43Accused Rizwan was formerly arrested. His arrest memo and personal search memo were prepared. Accused Rizwan @ Bhura was interrogated. He made a disclosure statement and he also pointed out the place of occurrence and pointing out memo was prepared. On the basis of disclosure statement, accused Asif was arrested. Part of the robbed amount, i.e. Rs.4,000/- was recovered from his possession on 04.11.2006. He was arrested. His arrest memo and personal search memo were prepared. He was also interrogated and he made a disclosure statement. Rs. 4,000/- (Rupees four thousand only) consisting of 100 rupees currency notes were seized vide seizure memo. Accused also pointed out the place of occurrence to the police and pointing out memo was prepared. An application for conducting of TIP proceeding of accused Asif was filed by the IO, date 08.12.2006 was fixed for holding TIP in Central Jail, Delhi. TIP proceedings were conducted. The complainant could not identify accused Asif correctly. Remaining accused could not be traced. After preparation of site plan, recording of statements of witnesses and after completion of investigation police filed the charge sheet against accused Rizwan @ Bhura and Asif before the Ld. Metropolitan Magistrate for their trial for the offences punishable U/s 392/397/34 IPC & 25 Arms Act.
SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 3/432. On appearance Ld. M.M. supplied copies of charge sheet to the accused and committed this case to the court of sessions and the case was assigned to this court. Accused Dhillu Phurkan surrendered in the court on 03.04.2007. He was arrested and interrogated. His disclosure statement was recorded and a cheque was recovered. After completion of investigation, a supplementary charge sheet against accused Dhillu Phurkan was filed and that was also assigned to this court. My Ld. Predecessor vide order dated 28.01.2008 consolidated both the case.
3. My Ld. Predecessor vide her order dated 04.02.2008 opined that a prima facie case for framing of charge against accused Rizwan @ Bhura for the offences punishable u/s 392/397/34 IPC and u/s 25 Arms Act, case u/s 392/411 IPC against accused Asif and case u/s 392/34 IPC against accused Dhillu Phurkan were made out. Accordingly, separate charges for the said offences were framed and read over to them in vernacular language. All the three accused pleaded not guilty and claimed trial.
4. The prosecution, in order to prove its case, examined HC Dharambir as PW1; Sh. Sanjay Mahajan as PW2; HC Om Pal Singh as PW3; HC Sohan Pal as PW4; Smt. Raj Rani Mitra, ADJ, as PW5; SI Pawan Kumar as PW6; Sunil Kumar Tyagi as PW7; HC Vijender as PW8; SI Rajeev Kumar SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 4/43 as PW9; Sh. Raj Kapoor, POLC as PW10, and Dr. O.P. Mishra Dy. Commissioner of Police, East District as PW11.
5. After closing of prosecution evidence statements of all the three accused were recorded u/s 313 Cr. P.C. All the material and incriminating evidence on judicial record was put to them. Accused persons either denied or expressed their ignorance about the evidence of the prosecution. Accused Rizwan @ Bhura pleaded that he was picked up from his residence on 03.11.2006 at 3 p.m. and he was falsely implicated in this case. Accused Asif pleaded that he was apprehended after arresting him from his house. Accused Dhillu Phurkan pleaded that he had surrendered before the court as police was harassing him and he was falsely implicated in the present case.
6. In support of their defence accused examined Sh. Islam neighbour of accused Asif as DW1.
7. After closing of prosecution evidence, I have heard arguments of Ld. Addl. Public Prosecutor for the State and Ld. Counsels for all the accused and perused file.
8. It has been argued on behalf of defence counsels that prosecution has miserably failed to prove its case. The Investigating Officer did not obtain signature of accused on disclosure statement. The Investigating Officer has concocted a story for recovery of alleged robbed amount from Loni Ghaziabad. The site plan prepared by SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 5/43 the IO is hit by provisions of Section 162 of Code of Criminal Procedure, here in after referred to as the Code. Besides, the site plan is vague as TSR has not been shown therein. The prosecution has failed to prove that the alleged Katta was infact comes in the category of arms and the alleged cartridge comes in the category of ammunition. The disclosure statement of the accused persons are not admissible in evidence as no recovery was made consequent upon the alleged disclosure statements. The pointing out memo are not admissible in evidence as the place of incident was already in the knowledge of police. The complainant has failed to explain as to how the alleged cheque, allegedly recovered from the possession of Dhillu Phurkan came in his possession. The complainant was not medically examined despite of the fact that there was allegation against the accused that complainant was pushed out of the running TSR. The material prosecution witnesses have made material improvements in their statements. Besides, there are contradictions in their testimonies on material points. The report regarding arms and ammunition are not admissible in evidence as they have not been proved in accordance with law. It has also been argued that prosecution could not proved its case beyond reasonable shadow of doubt and therefore, all the three accused are entitled for getting the benefit of doubt.
SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 6/43Ld. Defence Counsel prayed for acquittal of all the accused persons.
9. On the other hand Ld. Additional P.P. for the State argued that prosecution has successfully proved its case against all the three accused persons. Accused Rizwan @ Bhura was apprehended at the spot alongwith Katta and the cartridge. Accused Asif was arrested at the pointing out and disclosure of accused Rizwan @ Bhura. All the three accused were identified by the complainant in the court and non identification of Asif by complainant in the TIP proceeding will not provide any benefit to accused.
Findings
10. It would be appropriate to reproduce Sections 34, 390, 392 and 397 of IPC and Section 25 Arms Act. These run as under:
"Section 34. Acts done by several persons in furtherance of common intention - When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."
"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 SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 7/43 hurt, or of instant wrongful 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.
"Section 392 - Punishment for robbery. Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years."
Section 397 - Robbery or dacoity, with attempt to cause death or grievous hurt.-- If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, so attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Arms Act-
25. Punishment for certain offences.- (1) Whoever-
(a) manufactures, sells, transfers, converts, repairs, tests or proves, or exposes or offers for sale or transfer, or has in his possession for sale, transfer, conversion, repair, test or proof, any arms or ammunition in contravention of section5; or*** shall be punishable with imprisonment for a term which shall not be less than [one year] but which may extend to three years and shall also be liable to fine."
Let us now scrutinize the evidence on record. Material evidence on record
11. PW2 inter alia deposed that he was running a paper bag industry in District Kangra and used to purchase SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 8/43 papers from Delhi. On 03/11/2006 he had gone to Madan Lal Gupta at Radhey Shyam Park, Delhi and after making some payment to him he came on foot at Jagat Puri Bus stop and started waiting for bus at about 11:45 AM while he was waiting for bus, one TSR came and stop near him and its driver asked him ("Kaha Chalna Hai") where he wanted to go? He replied, "Metro Station Welcome". In the said TSR two persons were sitting behind the driver seat and one person was seating with driver on driver seat. The driver told him that he will take Rs. 10/-. ("10/- rupaiya lagenge") When the TSR hardly had gone 100-200 meters approximately, one person seating behind the driver seat, took out one ("katta") pistol and put on his temple and told him to hand over whatever he was having ("jo kuch bhi tumharey pas hai nikal ke de do"). He was scared and he took out one envelope containing Rs. 30,000/- in the denomination of Rs. 500/- and Rs. 100/- currency note and one signed blank cheque of SBI out of his briefcase and handed over the said packet to the person who put katta on his temple. That person handed over the said packet to another person seating with him on the same seat. This incident took place in the running TSR thereafter the driver of the TSR slow down the speed of TSR and pushed him out of the TSR. He raised alarm and public person gathered there. He was chasing the TSR on foot and while chasing SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 9/43 he was raising alarm. In the meantime one police official came on Motor Cycle and heard his noise. He tried to stop him but he did not stop. After some time the said police official came alongwith one person and that person was the same who put katta on his temple and robbed him. The said police official told him that other two persons run away after leaving the TSR. He made a call on number 100. PCR and local police from PS Krishna Nagar came there. The said person was present in the court as Rizwan. Thereafter, search of Rizwan was taken by the police and a katta was recovered. Said Katta was checked and it was found loaded with one cartridge. His statement Ex. PW2/1 was recorded by police. Thereafter police prepared sketch of Katta Ex. PW2/2. Katta and cartridge were sealed in the pullinda and were taken into possession by police vide memo Ex.PW2/A which was signed by him at point A. TSR was also taken into possession vide seizure memo Ex. PW2/4. Accused Rizwan was arrested vide memo Ex. PW2/5 and his personal search was conducted vide memo Ex. PW2/6. He signed all these memos at point A. PW2 identified the pistol/katta as Ex. P1, test fired cartridge as Ex. P2, cheque Ex. P3 and 40 currency notes collectively, as Ex. P4.
12. PW4 deposed that on 03/11/2006 he was posted as HC at PS Khajuri Khas. On that day after his deposition SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 10/43 in the court he was going to PS. At about 12:00 Noon he was going towards Shahdara side from Karkari turn. He saw that one person was crying that he had been robbed ("mujhey lut lia") and was chasing the TSR. He also chased TSR and four person started running. He chased one boy while he was on motor cycle and he apprehended that boy that is, Rizwan present in the court. Public also gathered there and give beating to him. Complainant Sanjay Mahajan came there and told him that he had robbed Rs. 30,000/- at the instance of katta with his four fellow accused. Someone informed police at 100. Police of PS. Krishna Nagar also arrived there. Accused was searched and one country made pistol of 315 bore and one live cartridge, taken out from the katta, were recovered. Sketch of katta as well as cartridge Ex. PW2/2 was prepared. Those were kept in parcel (pullinda) and sealed with the seal of PK and took into possession vide memo Ex. PW2/3. SI Pawan Kumar recorded statement of complainant Sh. Sanjay Mahajan and TSR was taken into possession vide memo Ex. PW2/4. He signed memo at point A2. He also identified the pistol as Ex. P1, test fired cartridge as Ex. P2 in the court.
13. PW3 deposed that on 03/11/2006 he was posted as constable in police post old Seelam Pur Krishna Nagar. On that day he was petrolling and while petrolling via SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 11/43 Himgiri Automobiles Road No. 57, Krishna Nagar, Constable Bijender and S.I. Pawan Kumar met him. They had apprehended one accused namely Rizwan @ bhura present in the court. S.I. Pawan Kumar prepared rukka and took the same to P.S. Krisna Nagar where he got the case registered. He collected FIR and Rukka from duty officer and handed over to S.I. Pawan Kumar. Accused Rizwan was arrested and his arrest memo and personal search memo was prepared. On 04/11/2006 he again joined the investigation with S.I. Pawan Kumar. On that day accused Asif present in the court was arrested on the pointing of Rizwan @ bhura. Accused Asif was interrogated vide his disclosure statement Ex. PW3/A. His arrest memo Ex. PW3/B and personal search memo Ex. PW3/C were prepared. On further interrogation accused Asif made a disclosure statement Ex. PW3/D. He signed all the memo at point A. He got recovered Rs. 4000/-, the part robbed amount which was taken into possession after sealing with seal of PK vide memo Ex. PW3/E. Accused Asif and accused Rizwan pointed out the place of incident while pointing out memo Ex. PW3/F and PW3/G, respectively. Accused Rizwan was also interrogated and he also made a disclosure statement Ex. PW3/H. He signed all the documents at point A. PW3 identified the 40 currency notes of Rs. 100/- denomination collectively as Ex. P4 in SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 12/43 the court.
14. PW5 deposed that on 08/12/2006 she was working as duty Metropolitian Magistrate at Tihar Jail. An application for TIP was moved by HC Karam Singh of P.S. Krishna Nagar for conducting TIP of accused Asif. She conducted proceedings Ex. PW5/A of accused Asif on the same day which were signed by him at points A and B. The certificate of correctness of proceedings Ex. PW5/B was also signed by her at point A. On application Ex. PW5/C of I.O. she supplied copy of TIP.
15. On perusal of Ex. PW5/A I find that in TIP proceedings of accused Asif, it has been mentioned by Ld. Metropolitian Magistrate that witness Sh. Sanjay Mahajan wrongly identified a person Mukesh as accused Asif. Thus, the complainant PW2 could not correctly identified the accused Asif in TIP proceeding held on 08/12/2006, i.e., after one month from the date of occurrence.
16. PW6 inter alia deposed that on 03/11/2006 he was posted as Incharge Police Post Seelam Pur, P.S. Krishna Nagar. On that day on receipt of DD No. 15 he alongwith constable Bijender went in front of Himgiri Automobiles, Kanti Nagar. HC Sompal from P.S. Khureji alongwith complainant Sanjay Mahajan were present at the spot and they had produced accused Rizwan @ bhura. He had taken formal search of accused and one loaded Katta was SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 13/43 recovered from the left side of the paint worn by him. He prepared sketch of katta on a plain paper and measured the same. Sketch of katta and cartridge Ex. PW2/2 were prepared. The total length of katta came out as 19 cm, barrel 8.2 cm, body 9 cm and butt 8 cm. Pullinda of katta and cartridge was prepared and it was sealed with seal of PK and those were seized vide memo Ex. PW2/3. Thereafter, he recored statement Ex. PW2/1 of Sanjay Mahajan and rukka was sent through constable Om Pal for registration of FIR. TSR No. DL1RJ1594 was seized vide memo Ex. PW2/4. He prepared site plan Ex. PW6/B at the instance of complainant and it was sent by him at point X. He interogated Rizwan and recorded his disclosure statement Ex. PW6/C. His arrest memo Ex. PW2/5 and personal search memo Ex. PW2/6 were prepared and he deposited the case property in the mal khana of PS Krishna Nagar and accused was sent to lockup. On 04/11/2006 accused was produced before Ld. Metropolitian Magistrate and his two days police custody remand was taken. Accused took them that is he, HC Vinod and Constable Bijender to Dabur Colony, Loni. At the instance of accused Rizwan accused Asif was apprehended. He was interrogated and his disclosure statement Ex. PW3/A was recorded. Accused Asif produced Rs. 4000/- from the pocket of paint which he was wearing. That amount was SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 14/43 sealed with seal of PK and it was seized vide memo Ex. PW3/E. Arrest memo Ex. PW3/B and personal search memo Ex. PW3/C of accused Asif were prepared. Both the accused persons pointed out the spot and pointing out memo Ex. PW3/F and PW3/G were prepared. On further interrogation, they made supplementary disclosure statement Ex. PW3/H and PW3/D. PW6 identified the accused persons correctly and also identified TSR as Ex. P5 katta as Ex. P1, cartridge as Ex. P2 and 40 currency notes as Ex. P4 collectively in the court.
17. PW8 corroborated statement of SI Pawan Kumar and deposed on the same line. PW1 HC Dharam Vir proved copy of FIR as Ex. PW1/1 and endorsement on the Rukka as Ex. PW1/2. PW7, registered owner of TSR deposed that he obtained TSR No. DL1RJ1594,Ex. P5 on superdari from the court of Ld. Metropolitan Magistrate.
18. PW9 deposed that on 28/02/2007 he was posted as incharge police post East Old Seelam Pur, PS Krishna Nagar and he was entrusted further investigation of the case at the instruction of SHO. On 03/04/2007 he was informed by the Naib court concerned regarding surrender of accused Dillu Furkan in the court of Ld. Metropolitan Magistrate. He alongwith a constable arrived in the court and formally arrested accused Dillu Furkan vide memo Ex. PW8/A and conducted his personal search vide memo Ex.
SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 15/43PW8/B. These memo were signed by him at point B. Dillu Furkan was in muffled face and he also instructed him to remain in muffled face. He interrogated him and recorded his disclosure statement Ex. PW8/C. He moved an application for conducting his TIP and it was marked to concerned link MM for the next day i.e 04/04/2007. Accused was sent to JC. The TIP of accused, as fixed by Ld. Link Metropolitan Magistrate was conducted on 13/04/2007. The further investigation for the purpose of TIP was carried out by ASI Bhagwat Singh who informed that accused refused to participate in TIP. He took accused on police custody remand and accused got recovered one cheque of complainant from his house and that was seized vide memo of Ex. PW8/D. He identified the accused in the court correctly.
19. PW10 deposed that on 13/04/2007 he was posted as Metropolitan Magistrate at Karkardooma courts and he had conducted judicial TIP of Dillu Furkan at Central Jail, Tihar. Accused was identified by Jail Superintendent and he refused to participate in TIP proceedings inspite of his warnings that adverse inference could be drawn against him. TIP proceedings were proved as Ex. PW10/A.
20. PW11 deposed that on 10/02/2009 he was posted as additional Dy. Commissioner of police East District. On that day, investigating officer S.I. Rajeev SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 16/43 Kumar produced case file of FIR No. 496/06 for obtaining sanction under section 39 Arms Act alongwith Ballistic Technical Report. He perused the case file as well as Ballistic Report and all relevant record and applied his mind and accorded sanction against accused Rizwan @ bure S/o Islam u/sec 39 of the Arms Act. He proved the sanction as Ex. PW11/A.
21. I have scrutinized and analyzed the evidence on record. I noticed embellishments and contradictions in the testimonies of prosecution witnesses on following points.
Embellishments
22. PW2 in his statement Ex.PW2/1, mentioned that on 03.11.2006 at about 11:45 a.m. he arrived at bus stop Jagat Puri by a rickshaw and started waiting for a bus. As PW2, he deposed that after making some payment to Madan Lal Gupta, he come on foot to Jagat Puri bus stop and started waiting for bus. In Ex.PW2/1, he mentioned that a three wheeler bearing No.DL1R J 1594, who was occupied by three persons in the rear seat and a person was driving it arrived there. As PW2, he deposed that in the TSR, two persons were sitting behind the driver seat and one person was sitting with driver on driver seat. In Ex.PW2/1 he mentioned that as soon as he arrived at Kanti Nagar Himgiri Automobiles, one of the person sitting in the SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 17/43 three wheeler pointed a katta on him. As PW2, he deposed that when he hardly gone approximately 100-200 meters one person sitting at driver seat took out one pistol and put on his temple. In Ex.PW2/1 he mentioned that he handed over the robbed amount to the other person sitting in the three wheeler. As PW2, he deposed that he handed over the packet to the person who put katta on his temple and thereafter he handed over the said packet to other person. In Ex.PW2/1 he mentioned that soon after taking the money from him, they alighted him by pushing and then he raised alarm. HC Sompal and public person starting chasing them. As PW2, he deposed that the incident took place in the running TSR. Thereafter, the driver of the TSR slow down the speed of the TSR and pushed him. He raised alarm and public person collected there. In the meantime one SUMO car driven by one Sardar came and he stopped his SUMO in front of said TSR but the driver of the TSR took turn in the gali. In Ex.PW2/1 he mentioned that at some distance they apprehended that person who pointed out katta on him and his name was later on revealed as Rizwan @ Bhura. As PW2, he deposed that in the meantime one police official came in the motorcycle and he heard his noise. He tried to stop him but he did not stop. After sometime the said police official came alongwith one person and that person was the same SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 18/43 who put katta on his temple and robbed him. The said police official told him that remaining two persons run away after leaving the TSR.
Contradictions
23. Contradictions in the testimonies of prosecution witnesses on the following points were noticed:
Arrest of accused Rizwan
24. PW1 in his cross-examination deposed that after some time of occurrence said police official came alongwith one person and that person was the same, who put katta on his temple and robbed him. PW4 deposed that he saw one person crying by saying as "Muzhe Lut Lia" and he was chasing the TSR. He also chased the TSR. TSR moved first towards Krishna Nagar and then it came towards Karkardooma courts and he continued chasing the TSR and four persons started running, leaving the TSR while in starting position, he chased one boy while he was on Motor Cycle and apprehended that boy who was present in the court as Rizwan.
Search of Rizwan
25. PW4 HC Sompal deposed that nothing was recovered in his presence during the personal search of SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 19/43 accused Rizwan. PW6 deposed that HC Sompal and complainant Sanjay Mahajan produced accused Rizwan @ Bhura before him. He has taken formal search of accused and one loaded Katta was recovered from the left side of the paint worn by him. PW2 Sh. Sanjay Mahajan on this aspect stated in his cross-examination that Katta was recovered from accused Rizwan, when his search was conducted at the P.S.
26. My attention goes to cases reported as Ramesh v. State of Himachal Pradesh, 2004(4) Crimes 60, wherein the the HP High Court observed:
"15. There are minor contradictions in the statements of the prosecution witnesses but because of errors in individual perceptions and observations such contradictions are bound to occur. Secondly with the passage of time lapse of memory can also lead to minor contradictions and discrepancies in the statements of the witnesses. Human tendency to back up good cases by exaggerated version can be yet another reason for contradictions and discrepancies in the evidence of the witnesses. Therefore, while appreciating the evidence the Courts are not to attach undue importance to minor contradictions and discrepancies in the version given by the witnesses and not to disbelieve such statements as a whole because of such minor discrepancies/contradictions unless they go to the root of the case. The Court may ignore exaggerated part of the testimony and may act upon the part which may be otherwise reliable and trustworthy." (Emphasis supplied)
27. In case of Leela Ram (Dead) through Duli Chand SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 20/43 v. State of Haryana, (SC) 1999(4) R.C.R.(Criminal) 588 the Apex Court Observed:
9. Be it noted that the High Court is within its jurisdiction being the first appellate court to re-appraise the evidence, but the discrepancies found in the ocular account of two witnesses unless they are so vital, cannot affect the credibility of the evidence of the witnesses. There is bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety.
Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. In this context, reference may be made to the decision of this Court in the State of U.P. v. M.K. Anthony, 1985(1) RCR(Crl.) 88 :
AIR 1985 SC 48. In paragraph 10 of the report, its Court observed :
"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the Court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 21/43 of the matter would not ordinarily permit rejection of the evidence as a whole. If the Court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate Court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial Court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trival details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals." (Emphasis supplied)
28. In case of Appabhai and another v. State of Gujarat, AIR 1988 SC 696, the Apex Court observed:
"The Court while appreciating the evidence must not attach undue importance to minor discrepancies. The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy." (Emphasis supplied)
29. It has to be seen if minor contradictions and the SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 22/43 points discussed here in above have created any doubt about the genuineness of the occurrence under adjudication. After carefully scrutinizing the evidence available on record, and in view of the principles of law laid down in Ramesh v. State of Himachal Pradesh, (supra), Leela Ram (Dead) through Duli Chand v. State of Haryana, (supra), and Appabhai and another v. State of Gujarat, (supra), I am of the view that neither the points raised by Ld. Defence Counsels nor the minor discrepancies in the testimonies of the prosecution witnesses could create any dent in the prosecution case particularly when all the material witnesses deposed consistently. Their testimonies have been supported by the police witnesses.
30. It has been argued on behalf of ld. defence counsel that investigating officer has failed to join any public witness either at the time of arrest of accused Rizwan or at the time of conducting his personal search or at the time of arrest of accused Asif from Loni, Ghaziabad or at the time of recovery of alleged robbed amount from his possession or cheque from possession of accused Dhillu Phurkan, or at the time of preparation of site plan, besides, the investigating officer has failed to comply the provisions of search and seizure as provided under section 100 of the code.
31. Ld. Defence Counsel relied on a case Ratan Lal SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 23/43 V. State, 1987 (2) Crimes 29 wherein the Delhi High Court held that search and seizure u/s 43 of Narcotics Drugs and Physoctic Act 1985 must take place before a public witness and failure to involve such witness could render the proceeding invalid.
32. On the other hand, it has been argued on behalf of Additional Public Prosecutor that Investigating Officer made efforts to join the public witnesses and due to the reluctance of the witnesses, they could not be joined. He further argued that testimony of police witnesses is also reliable.
33. In support of his arguments he relied on a case Izzazul v. State, (Delhi), 2007(4) R.C.R.(Criminal) 315, Delhi High Court observed:
7. The other ground taken by the Counsel for the appellant is that no public witness was associated by the police at the time of recoveries from the accused persons and the evidence against the accused persons in respect of recoveries was only of the police officials and therefore, the recoveries could not be believed. In Tahir v. State (Delhi), AIR 1996 SC 3079 Supreme Court held that no infirmity attaches to the testimony of the police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be based on the evidence of police officials, if found reliable, unless corroborated by some independent evidence. The Rule of prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 24/43 officials, after careful scrutiny, inspires confidence and is found trustworthy and reliable, the conviction can be based on the testimony of the police officials. 8. The police officials cannot be presumed less or more credible than any other normal public witness. The credibility of each witness is tested in cross-examination. Public witnesses who are related to the victims are normally treated as interested witnesses but it has been time and again held by Courts that relative witnesses could be credible and trustworthy. Similarly, police officials can also be credible and trustworthy as any other witness. The police officials do not suffer from any disability to give evidence and mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. The cross-
examination of the police witnesses in this case shows that they were trustworthy witnesses and nothing incredible could be pointed out from their cross-examination."
(Emphasis supplied)
34. My attention goes to a case reported as Appabhai and another v. State of Gujarat, (supra), wherein the Apex Court observed:
"Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 25/43 the accused. The Court however must bear in mind that witnesses to a serious crime may not react in a normal manner. Nor do they react uniformly. The horror stricken witnesses at a dastardly crime or an act of egregious nature may react differently. Their course of conduct may not be of ordinary type in the normal circumstances. The Court, therefore, cannot reject their evidence merely because they have behaved or reacted in an unusual manner." (Emphasis supplied)
35. I have considered the effect of non joining of public witnesses by the IO. In view of the observation of the Apex Court in Appabhai and another v. State of Gujarat, (supra), and Delhi High Court in Izzazul v. State, (supra), reproduced here in above and further that prosecution witnesses corroborated testimonies of each other, I am of the view that non joining of public witnesses by the IO is not fatal to the prosecution case. Therefore, the principles of law laid down in case Ratan Lal v. State, (supra), will not provide any benefit to the accused. Moreover, no ill-will or hostility or enmity has been shown or alleged against any of the prosecution witnesses. Therefore, I am of the view that their testimonies are reliable, trustworthy and creditworthy.
36. It has been argued on behalf of Ld. defense counsel that accused Rizwan was arrested from his house and he was not apprehended at the spot. As per testimonies of PW2, PW4 and PW6, Public battered him but no injuries on his body were caused. Had the Rizwan SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 26/43 sustained injuries in the beating by public, Investigation Officer would have got him medically examined and provided him medical treatment but there is no evidence on record that either he was medically examined or was provided medical treatment. This has created doubt about the genuineness of the present case. On the other hand it has been argued on behalf of Additional Public Prosecutor that he had sustained only superficial injuries so there was not necessity of his medical examination. I am convinced with the arguments of Additional Public Prosecutor on the aspect and it is held that medical examination of accused Rizwan @ Bhura for superficial injuries was not necessary.
37. It has been argued on behalf of Ld. defense counsel that prosecution has failed to establish as to how TSR came in possession of Rizwan @ Bhura or the accused persons as admittedly the TSR belonged to PW7 Sh. Sunil Kumar Tyagi. The answer of this query could be been given by PW7 but on perusal of statement of PW7 I find that none of the Ld. defense counsels put any question to him in cross-examination. Therefore, accused Rizwan @ Bhura cannot take advantage of non explanation of witness of this fact by Ld. defence counsels or the prosecution.
38. Having discussed the common arguments, I have scrutinized evidence on record in the light of principles of law laid down in above referred cases while SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 27/43 keeping in view the arguments of Ld. Additional Public Prosecutor for the State and Ld. defence counsels for the accused and I have formed my opinions and that are discussed herein below accused-wise:
Accused Rizwan @ Bhura:
39. The prosecution has successfully proved its case against accused Rizwan @ Bhura for the offence of commission of robbery and robbery with use of deadly weapon i.e. pistol (katta). The reasons which support my decision are firstly, that prosecution has proved that robbery had taken place on 03.11.2006 at 12:45 P.M. in front of Himgiri Automobile, Kanti Nagar, Road No.57, Delhi by accused Rizwan @ Bhura with three more offenders.
40. Secondly, the prosecution has proved that out of four, one assailant i.e. Rizwan @ Bhura was over powered by PW4 HC Sompal and soon after his detention he was identified by the complainant as an offender who put katta on his temple and robbed him.
41. Thirdly, the prosecution has proved that katta Ex.P1 & live cartridge Ex.P2 were recovered from his possession when his personal search was conducted after he was apprehended by PW4 HC Sompal. As per Ballistic Expert Report dated 31.05.2007 of CFSL, Chandigarh, Ex.P1 i.e. Katta and Ex.P2, i.e. cartridge come in the SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 28/43 category of arm and ammunitions, respectively. The possession thereof was illegal.
42. Fourthly, the prosecution has established that robbery of the belongings/articles of PW2 Sh. Sanjay Mahajan had taken place in which his amount of Rs. 30,000/- in cash and one cheque were robbed by accused Rizwan @ Bhura and his associate offenders.
43. Fifthly, testimonies of PWs including PW2 are reliable and trustworthy. Minor contradictions, usually bound to occur due to lapse of time or loss of memory etc. are liable to be ignored.
44. Sixthly, the statements of PW2 & PW4 have been supported and corroborated by other prosecution witnesses which has proved the prosecution case beyond any reasonable shadow of doubt against accused Rizwan @ Bhura.
45. Seventhly, no ill will or enmity either against complainant PW2 Sh. Sanjay Mahajan or against any other PWs has been alleged or proved by accused Rizwan @ Bhura. Therefore, there is no reason to doubt their testimonies which has proved that accused Rizwan @ Bhura not only committed robbery of the belongings of PW2 Sh. Sanjay Mahajan but also he used arm and ammunitions, Ex.P1 & Ex.P2 in committing robbery and those were recovered from his possession.
SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 29/4346. Lastly, non mentioning of FIR number on sketch of pistol, i.e. PW2/2 is not fatal to prosecution case. It might have occurred due to oversight by Investigating Officer. The arguments of Ld. Defence Counsel including those arguments which have been summarized in paragraph No.8 above do not provide any benefit to accused Rizwan @ Bhura.
47. In view of the discussion, reasons and evidence on record, particularly discussed here in above, it is held that prosecution has successfully established its case against accused Rizwan @ Bhura beyond any reasonable suspicion or shadow of doubt that he committed offence of robbery with use of deadly weapon i.e. pistol as defined and punishable under sections 390/392/397/34 IPC and he was also found in possession of illegal arms and ammunition as punishable u/s 25 of the Arms Act.
Accused Asif and Dhillu Phurkan:
48. My attention goes tos a case State of Madhya Pradesh v. Har Narayan, 1983 Crimes 916, wherein the important point which was emerged was that inconsistent evidence even though there is ring of truth therein, justifies the acquittal of the accused.
49. My attention also goes to a case a case Satbir Vs. State of Uttar Pradesh, 1982 SCC (Cri.) 132, wherein it SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 30/43 was held that when the prosecution has failed to bring the charge home to the appellant beyond reasonable doubt, he is entitled for acquittal.
50. My attention also goes to a case Mohd.
Jasimuddin Ahmed v. State of Assam, 1982 Cri.L.J. 1510 wherein it was held by Gauhati High Court that:
"It is the settled rule of circumstantial evidence that where circumstances are susceptible of two equally possible inferences, the court should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution. The rule of appreciation of circumstantial evidence is that the circumstances must be of a conclusive nature and tendency so as to be totally inconsistent with his innocence and are not explainable on any other hypothesis except the guilt of the accused."
51. My attention also goes to a case reported as Debiprasad Padhi and another v. State, 1982 Cri.L.J. 2214, wherein Orissa High Court held that:
"It has been settled principle of law relating to the appreciation of circumstantial evidence that the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of conclusive nature and tendency and should be such as to exclude every hypothesis but the one proposed to be proved. There must be a chain of evidence as far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such that within all human probability, the act must have been done by the accused and no one else. Circumstantial evidence must be such that it cannot be explained on any other reasonable SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 31/43 hypothesis except the guilt of the accused and it must be incompatible with his innocence."
52. My attention goes to a case reported as Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, wherein it was inter alia held by Apex court that:
"It is well settled that where on the evidence two possibilities are available or open, one which goes in favour of the prosecution and the other which benefits an accused, the accused is undoubtedly entitled to the benefit of doubt."
53. My attention goes to a case reported as Sanatan Naskar Vs. State of West Bengal, (2010) 8 SCC 249, wherein it was held by the Apex court that:
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(l) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade vs. State of Maharashtra where the observations were made: [SCC p.807, para 19: SCC (Cri) p. 1047] '19..... Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between "may be" and "must be" is long and divides vague conjectures from sure conclusions.' (emphasis in original) (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 32/43 they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."
54. Let us now scrutinize and evaluate the prosecution evidence in the light of rulings referred to here in above in order to see whether prosecution has proved its case against accused Asif & Dhillu Phurkan beyond any reasonable suspicion and doubt.
55. On analyzing the evidence on record, I come to the conclusion that the prosecution has failed to prove its case against accused Asif & Dhillu Phurkan beyond any suspicion and reasonable doubt. The reasons which support my decision are firstly, that none of the prosecution witnesses could connect accused Asif & Dhillu Phurkan to the alleged crime.
56. Secondly, PW2 has failed to identify accused Asif in TIP. Therefore, identification of accused Asif by PW2 before this court will leads to no conclusion as he failed to SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 33/43 identify him at the earliest opportunity in the TIP before the Ld. Metropolitan Magistrate.
57. Thirdly, although accused Dhillu Phurkan was identified by PW2 in the court but this identification in the court after a long time without further corroboration will not provide any benefit to the prosecution.
58. My findings in this regard finds support from a case Nibaran Borah v. State of Assam, (Gauhati), 2007(5) R.C.R.(Criminal) 359 : 2006 Cri.L.J. 4222, wherein Gauhati High Court Observed:
"13. In Kanta Prashad v. Delhi Administration (AIR 1958 SC 350) : (1958 Cri LJ 698) the Apex Court has made it clear that failure to hold a TIP does not make the evidence of identification, at the trial, inadmissible. However, the weight to be attached to such identification would be for the Court of fact to decide and that it is prudent to hold TIP with respect to witnesses, who did not know the accused before the occurrence. The relevant observations made in Kanta Prashad (supra) run as follow (para 5) :
"It would no doubt have been prudent to hold a test identification parade with respect to witnesses who did not know the accused before the occurrence, but failure to hold such a parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification would be a matter for the Courts of fact and it is not for this Court to re- assess the evidence unless exceptional grounds were established necessitating such a course."SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 34/43
59. In case of Izzazul v. State, (Delhi), (supra), Delhi High Court observed:
"One of the major circumstances, which supported the case of prosecution is the refusal of the accused persons to participate in TIP. It has come in evidence that the accused persons were produced before the Magistrate in muffled face and they were warned by the MM about the consequences of refusal of TIP but still they refused to participate in the TIP on the ground that they had been shown to the witness."
60. Fourthly, the descriptions of accused persons Asif & Dhillu Phurkan made by PW2 in his statement Ex.PW2/1 do not tally with the description mentioned in the conviction slip of accused Mohd. Asif and conviction slip of accused Dhillu Phurkan. In Ex.PW2/1, PW2 described the other offender as 5 ft. 6 inch in height well built body, fair colour and the description of third offender was described as 5 ft. 3 inch height, normal body, colour gehuan. In the conviction slips description of Mohd. Asif has been mentioned as 5 ft. and 4 inch in height normal body, colour black (sanwla), long face and description of Dhillu Phurkan has been mentioned as 5 ft. 8 inch height, medium built and fair complexion.
61. Fifthly, the alleged recovery of Rs.4,000/- from accused Asif is not sufficient to connect him with the alleged crime as in the cross examination, PW2 admitted SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 35/43 that like currency notes were available everywhere and there was no specific identity mark on currency notes Ex.P4.
62. Sixthly, recovery of blank cheque Ex.P3 is also not sufficient to connect the accused Dhillu Phurkan and convict him for the alleged offence as it is not convincing as to why the accused/a robber will keep blank cheque in his possession as encashment of that cheque may connect him to the crime. Besides, in disclosure statement Ex.PW8/C, accused Dhillu Phurkan disclosed to police on 03.04.2007 that cheque was lying with his friend at Loni. However, the alleged cheque Ex.P3 was handed over by him to police on 17.04.2007 by taking it from his room. Thus there is material contradiction between disclosure statement Ex.PW8/C and seizure memo Ex. PW8/D and it is not convincing that the alleged cheque Ex.P-3 was discovered consequent upon the disclosure statement Ex.PW8/C of accused Dhillu Phurkan.
63. Seventhly, the pointing out memos of accused Asif and Dhillu Phurkan will not provide any benefit to the prosecution as the place of occurrence was already in the knowledge of police at the time of preparation of pointing out memos.
64. Eighthly, the disclosure statement of accused SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 36/43 Asif Ex.PW3/D and Dhillu Phurkan Ex.PW8/C will not provide any benefit to the accused as nothing reliable was recovered consequent upon the disclosure statements.
65. Ninethly, the principles of law laid down in cases State of Madhya Pradesh v. Har Narayan, (supra), Satbir Vs. State of Uttar Pradesh, (supra), Mohd. Jasimuddin Ahmed v. State of Assam, (supra), Debiprasad Padhi and another v. State, (supra), Birdhichand Sarda v. State of Maharashtra, (supra), Sanatan Naskar Vs. State of West Bengal, (supra), Nibaran Borah v. State of Assam, (Gauhati), (supra), and Izzazul v. State, (Delhi), (supra), provide benefit to accused Asif and Dhillu Phurkan.
66. Lastly, relying on the principle that let hundred criminals may go unpunished but one innocent should not be punished, it would be just fair and appropriate if accused Asif & Dhillu Phurkan are given benefit of doubt as the prosecution has failed to connect all the chains of events/circumstance which could connect them to the alleged crime.
67. In view of the above reasons and discussion, it is held that prosecution has failed to prove its case against accused Asif & Dhillu Phurkan beyond suspicion and reasonable doubt that both or either of these committed an offence of robbery as defined and punishable u/s SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 37/43 390/392/34 IPC. The prosecution has further failed to prove that accused Asif was found in possession of stolen property i.e. Rs.4,000/- punishable u/s 411 IPC.
ORDER
68. Consequent upon the above reasons, discussion and conclusions, it is held that prosecution has proved its case against accused Rizwan @ Bhura for the offence of robbery with deadly weapon as defined under section 390 and punishable under section 392/397 IPC. Prosecution has also proved its case against accused Rizwan @ Bhura for the offence punishable u/s 25 of Arms Act. Resultantly, he is held guilty and convicted for the offences punishable under section 392/397 IPC and 25 Arms Act. He is on bail. He be taken into judicial custody.
69. Case properties i.e. Ex.P1 and Ex.P2 are confiscated to the state. These be preserved till final disposal of this case and may be disposed off thereafter as per rules.
70. It is further held that as prosecution has failed to prove its case against accused Asif & Dhillu Phurkan beyond any suspicion and reasonable doubt therefore, accused Asif & Dhillu Phurkan are entitled to get benefit of doubt and resultantly they are acquitted for the offences punishable under section 392/34 IPC. Accused Asif is also SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 38/43 acquitted for the offence punishable u/s 411 IPC.
71. However, Asif & Dhillu Phurkan are directed to furnish their personal bond for a sum of Rs.25,000/- with one surety of like amount as per provisions of Section 437 A of Cr.P.C. for a period of six months for ensuring their presence before the Appellate Court.
Announced in the open court on 25.02.2012 (DR. T.R. NAVAL) Additional Sessions Judge-02 East District:KKD Courts:Delhi SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 39/43 IN THE COURT OF DR. T.R. NAVAL, ADDITIONAL SESSIONS JUDGE-02, EAST DISTRICT,KARKARDOOMA COURTS, SHAHDARA, DELHI SC NO.28/08 FIR No.496/06 PS Krishna Nagar U/S 392/397 IPC & 25 Arms Act State Versus Rizwan @ Bhura & Ors.
ORDER ON SENTENCE 29.02.2012 Present: Sh. I.H. Siddiqui Addl. P.P. for the State.
Convict/accused Rizwan @ Bhura in J.C. Sh. R.S. Juneja Advocate for the accused/convict with wife of the convict.
I have heard arguments on the quantum of sentence. Ld. Defence Counsel filed some documents.
2. It has been argued on behalf of Ld. Defence Counsel that accused/convict is a young boy of 28 years of age; he is a married person having two children aged 5 year and 1 ½ year besides wife; his wife is suffering from Jaundice and T.B.; he does not have any previous criminal conviction; there is nobody to support the aforesaid family members; he is the SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 40/43 only bread earner in the family; and he is facing trial since 2006 in this case. It has been prayed that lenient view in sentence may be taken. He further prayed that convict/accused may be released on probation.
3. On the other hand it has been argued on behalf of Ld. Additional Public Prosecutor that an innocent person was robbed by the convict with the help of his associates and use of illegal arm i.e. pistol (katta). He submits that such types of incidents of robbery are increasing in the society and the convict deserves for harsh punishment. He also prayed for awarding of some compensation to the complainant. He further submitted that keeping in view the nature of case, accused/convict is not entitled for benefit of provisions of Probation of Offenders Act.
4. Keeping in view the submissions and all relevant factors of the present case, it would be just and proper if lenient view is taken in awarding sentence to the accused/convict. I am of the view that accused/convict is not entitled for getting the benefit of Probation of Offenders Act. Accordingly, Convict/accused Rizwan @ Bhura is sentenced to undergo Rigorous Imprisonment for the period of five SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 41/43 years and he is sentenced to pay a fine of Rs.5,000/- in default simple imprisonment for six months for the offence punishable under section 392 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of seven years and he is also sentenced to pay a fine of Rs.10,000/- in default simple imprisonment for 1 year for the offence punishable under section 397 IPC. He is further sentenced to undergo Rigorous Imprisonment for a period of one year and he is also sentenced to pay a fine of Rs. 1,000/- in default simple imprisonment for two months for the offence punishable under section 25 Arms Act.
5. Out of fine amount, a sum of Rs.10,000/- shall be payable to the complainant Sh. Sanjay Mahajan as compensation U/s 357 Cr.PC after expiry of period of appeal.
6. All these sentences will run concurrently.
7. It is further ordered that if convict/accused Rizwan @ Bhura has undergone any period in judicial custody, that period will be set off against the sentence as provided U/s 428 Cr. P.C.
8. The convict/accused Rizwan @ Bhura be SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 42/43 sent to imprisonment to serve the sentence.
9. A copy each of judgment and order on sentence is supplied to convict/accused Rizwan @ Bhura free of cost.
File be consigned to Record Room.
Announced in the open court on 29.02.2012 (DR. T.R. NAVAL) Additional Sessions Judge-02 East District:KKD Courts:Delhi SC No.28/08 State Vs. Rizwan @ Bhura & Ors. Page 43/43