Delhi District Court
State vs . 1) Rajeev on 2 January, 2014
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST) : ROHINI
COURTS: DELHI
Sessions Case No. 116/2013
Unique Case ID: 02404R0366182011
State Vs. 1) Rajeev
S/o Sh. Ram Prakash
R/o Jhuggi No. 36B/93,
Opposite K-901, Jahangir Puri,
Delhi - 110033
(Convicted)
2) Jitender @ Jeetu
S/o Late Sh. Charan Singh
R/o Jhuggi No. 104, K Block,
Lakkhi Park, Jahangir Puri,
Delhi - 110033
(Convicted)
FIR No. : 294/2011
Police Station : Jahangir Puri
Under Section : 394/411/34 Indian Penal Code.
Date of committal to Sessions Court : 17.03.2012
Date on which orders were reserved : 19.12.2013
Date on which judgment pronounced : 02.01.2014
JUDGMENT
BRIEF FACTS:
(1)The case of the prosecution is that on 21.09.2011 at about 2:30 PM at open Road in front of Office of Devender Yadav, K Block, Jahangirpuri, the accused Rajeev and Jitender @ Jeetu, in furtherance of their common intention, caught hold of the complainant Amar @ Bangali and victim Yogender and robbed the complainant of his Rs.500/-. It is alleged that while committing the robbery the accused persons also used criminal force upon the victims, physically assaulted them and inflicted injuries on the person of the complainant by using blade (deadly weapon). It is also alleged that the the robbed amount of Rs.500/- was recovered from the possession of the accused Rajeev.
CASE OF PROSECUTION IN BRIEF:
(2)The case of the prosecution in brief is that on 21.09.2011 on receipt of DD No. 70B, ASI Layeek Ahmed along with Constable Shripal reached at the spot i.e. K-40, Jahangir Puri, Delhi where he met the victim Amar @ Bangali who alleged that a robbery was committed upon him and Yogender by Rajeev and Jitender @ Jeetu on the point of a blade. The complainant Amar @ Bangali produced the accused Rajeev and Rs.500/- before ASI Layeek Ahmed and alleged that the said amount was recovered from the possession of Rajeev while the co-accused Jitender @ Jeetu who inflicted the injuries upon him by using a blade, had fled from the spot. Thereafter, ASI Layeek Ahmed recorded the statement of complainant Amar @ Bangali on the basis of which a rukka was prepared and the FIR was got registered. ASI Layeek Ahmed thereafter arrested the accused Rajeev, took the recovered amount into possession and prepared the site plan at the instance of the complainant. Thereafter, during investigations, the co-accused Jitender @ Jeetu was also arrested and after completing the investigations, the charge sheet was filed in the court.
CHARGE:
(3)Charges under Section 392/394/397/34 Indian Penal Code were settled against both the accused namely Rajeev and Jitender @ Jeetu. Further, charge under Section 411 Indian Penal Code was also settled against the accused Rajeev. Both the accused have pleaded not guilty and claimed trial.
EVIDENCE:
(4)In order to prove its case the prosecution has examined as many as Nine witnesses as under :
Public Witnesses:
(5)PW1 Amar @ Bangali is one of eye-witnesses of the incident and has deposed that he was working at the cart / Rehri of chowmein as a laborer and residing on rent in the house of Bijender at K-40, Jahangir Puri, Delhi. He has deposed that on 21.09.2011 his owner gave him Rs.500/- as he wanted to go to his native place at Gwalior, Madhya Pradesh. He has further deposed that he alongwith Yogender were coming from Mangal Bazaar Chowk, towards A-Block side, when they reached near the office of Devender Yadav, two boys came there and caught hold him and Yogender and tried to snatch their money. He has further deposed that Yogender, his friend, is a handicapped and his one hand is cut. He has further deposed that they (two boys) pushed Yogender while he tried to escape when one of the boys inflicted blade blow on his left cheek whereas the other boy removed his Rs.500/- and ran away. He has further deposed that he raised alarm and on hearing his screaming, public persons gathered there. He has further deposed that his owner Bijender also reached there.
He has further deposed that the person who snatched his money was apprehended at the spot and person who gave him blade blow escaped from the spot. He has further deposed that police reached at the spot and recorded his statement which is Ex.PW1/A. He has further deposed that police recovered his Rs.500/- from the possession of that boy who disclosed his name as Rajeev and disclosed the name of his co-accused as Jeetu before the police.
(6)He has correctly identified the accused Rajeev in the Court and confirmed that he is the person who was apprehended at the spot with his money of Rs.500/- and he is the person who removed his money from his pocket. He has further correctly identified the accused Jeetu in the Court and confirmed that he is the person who inflicted blade blow on his cheek and inflicted injury while committing the robbery and he is the person who ran away from the spot after inflicting injury on his person. He has deposed that the robbed amount of Rs.500/- was in the denomination of five notes of Rs.100/- each which currency notes are collectively Ex.P1 and identified by the witness. He has further deposed that once he was called at Rohini Jail and there he identified the accused Jitender before the Magistrate. He has further identified his thumb impression on the TIP proceedings of accused Jeetu at point A. He has further deposed that his owner Bijender called the police at 100 number and thereafter he was taken to BJRM Hospital where he was medically treated.
(7)In his cross-examination by Ld. Defence Counsel for both accused, he has deposed that both the accused came from the front side. He has further deposed that he used take liquor occasionally but whenever he takes liquor, he remains in his senses and has voluntarily explained that he does not take the overdose and consumes only half of the quarter bottle whenever he consumes liquor. He has further deposed that the chowmein Rehri / Cart opens daily from 2:00 PM till 9:00 PM. He has further deposed that the Chowmein Rehri / Cart parked in front of Cycle Shop, near temple, Bhalaswa Village and the distance between K-Block and the place of Rehri / Cart is about less than one kilometer. He has further deposed that it takes about ten minutes to reach there on foot. He has further deposed that he and Bijender used to remain on the Rehri / Cart. He has voluntarily explained that Bijender is handicapped from one of his leg.
(8)He has further deposed that he used to consume liquor in the night hour at his residence. He has further deposed that he takes liquor alone. He has denied the suggestion that at the time of incident, he was under the influence of liquor or that he lost his control after consuming liquor and became out of control. He has further deposed that Bijender used to pay Rs.100/- per day and was working there since 15-20 days of the incident. He has further deposed that Bijender brought him from his (witness) native place as he (Bijender) was having problem in his leg. He has further deposed that Bijender was known to him since long back as he (Bijender) belonged to his native place.
(9)He has further deposed that he had never come to the Court previously and he was not involved in any case either as accused or as complainant or witness. He has further deposed that he was working with the person running a chowmein stall where he was doing the work of cleaning utensils. He has further deposed that on the date of incident he and his friend Yogender were on foot while they were going to Mangal Bazar. According to him there was nobody on the road at the time of incident and has voluntarily explained that when he raised alarm, 4-5 persons gathered on the road and came to his assistance. He has deposed that public persons had caught of accused Rajiv and thereafter Bijender, his employer, made a call to 100 number from his (Bijender) own mobile. According to the witness, the house of Bijender was just 4-5 houses away from the spot of incident. He has deposed that police reached at the spot within 10-15 minutes of the making of the call. According to the witness, there were 4-5 persons of the public who had gathered on hearing their shouts and alarm when public persons chased accused Rajeev and caught him a little ahead of the house of Bijender. He has deposed that accused Rajeev must have run for about 100 meters when he was apprehended by the public persons. He has deposed that he did not run because he was injured and his shirt and clothes became blood stained and has explained that the police did not seized the same. He has further deposed that when the police came to the spot the persons who had caught Rajeev were present on the spot but he was not aware if the police had made any enquiries from the public persons who were present at the spot and has voluntarily explained that he had become unconscious due to the injury after 10-15 minutes of the accident and has further voluntarily explained that he was unconscious when he was taken to the hospital but he retained his consciousness after some time. According to the witness he could not tell the name of public persons who helped in apprehending the accused. Witness has denied the suggestion that no incident of snatching had been taken place or that the incident had been created and concocted at the instance of police officials. He has further denied that no currency notes of Rs.500/- i.e. Rs.100/- each were snatched from him. He has further denied the suggestion that while returning from the market there was a dispute with the public persons in which he was given a beating and received injuries or that a false case of robbery was got registered against the accused. He has admitted that he is an occasional drinker and on the date of incident he was coming back from Liquor Vend / Theka. He has denied the suggestion that he had consumed liquor while sitting in the Theka / Liquor Vend or that he had consumed the liquor before going to liquor vend but they did not purchase anything from the liquor vend as they already consumed liquor. He has denied the suggestion that there was no incident of snatching as alleged by him or that he was in a state of heavy intoxication due to which reason public persons had given him a beating as he was creating a nuisance on the road. The witness has denied the suggestion that the accused have been falsely implicated by him in connivance of the police or that he identified the accused persons on the asking of the police officials. He has further denied the suggestion that he could not identify the accused persons being in a state of intoxication and has voluntarily explained that he had seen the accused persons before he became unconscious. He has denied the suggestion that accused Jitender had not inflicted any blade injury on his face or that the said injury was received when he fell down on the road being in a state of intoxication. He has further denied the suggestion that he was shown the photographs of accused Jitender by the police on the basis of which he identified him in the Jail or that he was deposing falsely at the instance of police officials.
(10)PW6 Yogender Singh is one of eye-witness to the incident and has deposed that on 21.09.2011 at about 2:30 PM he alongwith Amar Singh were returning from Mangal Bazar situated at C-Block, Jahangir Puri and were going to the house of his brother Bijender Kumar Rathore at house No. K-40. He has further deposed that when they took a turn from the side of Ram Lila Ground and reached by the side of wall of MLA Devender Yadav, both the accused persons namely Rajeev and Jeetu came from backside and they snatched Rs.500/- from the front pocket of the shirt of Amar Singh and thereafter one of the accused had inflicted blade injury on left side of the face of Amar Singh. He has identified the accused Rajeev and Jeetu in the Court. According to the witness, he took Amar Singh to the house of his brother Bijender Kumar Rathore situated nearby the place of incident. He has deposed that Amar Singh immediately ran towards the house of his brother and on seeing Amar Singh in an injured condition his brother Bijender came out and he apprehended one of the accused Rajeev but accused Jeetu managed to flee. He has deposed that thereafter his brother Bijender made a call at 100 number and PCR came at the spot and accused Rajeev was handed over in the custody of PCR and Amar Singh was shifted to BJRM Hospital. He has further deposed that when police took the search of accused Rajeev, Rs.500/- were recovered from his possession which were snatched from the pocket of Amar Singh and the said Rs.500/- were taken into possession by the police after converting the same into pullanda and seized by the police vide memo Ex.PW6/A. According to the witness, the accused Rajeev was arrested by the police vide memo Ex.PW6/B, his personal search was conducted vide memo Ex.PW6/C and his disclosure statement was recorded vide Ex.PW6/D. He has further deposed that he was also interrogated by the police and his statement was also recorded. He has shown his inability to identify the currency notes of Rs.500/- as there was no specific mark of identification on the same.
(11)In leading questions put to the witness by the Ld. Additional Public Prosecutor, the witness has has admitted that there is no specific identification of the currency notes and that is why he was unable to identify the same. (12)In his cross-examination by Ld. Defence Counsel, he has deposed that they were on foot while they were going to Mangal Bazaar at the time of incident. He has further deposed that he was an original resident of Gwalior and he had come to visit his brother. According to the witness, there were not many people on the road at the time of incident and has voluntarily explained that large number of persons collected when they raised alarm after the incident. He has deposed that his friend made made a call to 100 number from his own mobile and the police reached there after about 15-20 minutes. According to the witness, there were 4-5 persons of the public who had gathered on hearing their shouts and alarm, public persons chased accused Rajeev and caught him along with his (witness) friend. He has deposed that when the police came to the spot, the person who had caught accused Rajeev were also present at the spot. He has further deposed that police did not make any enquiry from those public persons who were present at the spot. He is unable to tell the name of public person who helped his friend to apprehend the accused. He has deposed that his friend was into sale of Chowmein in K-Block, Jahangir Puri. According to the witness, he used to put a rehri and had no permission from the MCD. He has denied the suggestion that his friend put that rehri of chowmein in connivance of beat officer or that no incident of snatching had been taken place or that the incident had been created and concocted at the instance of police officials. He has further denied the suggestion that no currency notes of Rs.500/- i.e. 5 notes of Rs.100/- each were snatched from Amar Singh in his presence. According to the witness, he had not consumed any alcohol on the day of incident and has voluntarily explained that only Amar Singh had consumed liquor on that day. He has denied that Amar Singh was in a state of heavy intoxication and was not even in a position to walk properly as a result of which he was creating a nuisance on the road which was objecting to by the public persons. He has further denied that while returning from the market there was a dispute with the public persons in which Amar Singh was given a beating and received injuries or that a false case of robbery was got registered against the accused.
(13)PW7 Bijender has deposed that in the year 2011 he was running a rehri of Chowmein in J-Block, Bhalsawa Village, Jahangir Puri, Delhi. He has further deposed that Amar Singh was working as servant with him and was resident of Gwalior, M.P. According to the witness, he (Amar) was employed with him since 15 to 20 days prior to the date of incident. He has deposed that on 21.09.2011 he handed over Rs.500/- to Amar Singh as he (Amar) wanted to go Gwalior, at that time he was accompanying his brother Yogender. He has further deposed that it was around 2.00 - 2.30 PM. According to the witness, thereafter Amar Singh and Yogender went to Mangal Bazar reason known to them. He has further deposed that at about 3.00 - 3.30 PM Amar Singh and Yogender came to his residence and Amar Singh was having injury on his left cheek. He has further deposed that thereafter he made a call at 100 number and thereafter Amar Singh was shifted to the BJRM Hospital by the PCR van. He has further deposed that he and Yogender accompanied him (Amar) to BJRM Hospital. He has deposed that police officials who were on patrolling on motorcycle apprehended the accused Rajeev from the jhuggies of K- Block Jahangir Puri vide memo already Ex.PW6/B and his (Rajeev) personal search was carried out vide memo Ex.PW6/C. According to the witness, from the possession of accused Rajeev Rs.500/- which were in the denomination of Rs.100 each were recovered which were taken into possession by the police vide memo after converting the same into pullanda vide memo Ex.PW6/A. He has shown his inability to identify the currency notes of Rs.500/- as there was no specific mark of identification on the said currency notes.
(14)In his cross-examination by Ld. Additional Public Prosecutor, witness has deposed that he had not stated to the police in his statement Ex.PW7/PX-1 that when he heard the noise of some screams of "pakro-pakro", he came out from his house and he noticed that accused Rajeev was apprehended by the public persons who had snatched Rs.500/- from the pocket of Amar Singh and he also made alarm "pakro- pakro" and accused was apprehended at the spot and from his possession Rs.500/- were recovered. Witness was confronted with statement Ex.PW7/PX-1 from point A to A where it is so mentioned.
(15)He has denied that accused Rajeev was apprehended at the spot and from the pocket of his shirt Rs.500/- were recovered or that Amar was apprehended by accused Rajeev and his associate and while snatching Rs.500/- from his pocket, accused Rajeev gave injury on his left cheek or that accused Rajeev was apprehended at the spot. He has further denied the suggestion that he is intentionally concealing from those facts and qua these facts he was deposing falsely.
Medical Evidence:
(16)PW5 Dr. R. S. Mishra has deposed on behalf of Dr. Rahul, SR Surgery and Dr. Suhail, JR and being conversant with their handwriting and signatures, has identified the same on the MLC of the patient. He has deposed that on 29.09.2011 Dr. Suhail medically examined the patient Amar Singh @ Bengali with alleged history of physical assault vide MLC No. 31714 Ex.PW5/A bearing signature of Dr. Suhail at point A after which patient was referred to SR Surgery where Dr. Rahul, SR Surgery, examined the said patient and his observations are bracketed X to X1 bearing his signature at point B. The witness has deposed that according to MLC, X-Ray which was advised by Dr. Rahul, SR Surgery, was not got done by the patient, therefore, the final opinion could not be given by Dr. Rahul which observations are encircled X2 to X3 bearing the signatures of Dr. Rahul at point C. (17)In his cross-examination by Ld. Defence Counsel, he has accepted that he had not examined the patient personally and deposing only on the basis of the official records.
Police / Official Witnesses:
(18)PW2 HC Ram Kumar is a formal witness being Duty Officer. He has deposed that on 21.09.2011 he was posted at PS Jahangir Puri and working as Duty Officer from 4:00 PM to 12 midnight. He has further deposed that on that day Constable Shripal handed over him a rukka, sent by ASI Laique Ahmed upon which he got registered the FIR No. 294/11 under Section 394/34 through computer operator. He has further deposed that after registration of FIR, the copy of FIR was handed over to Constable Shripal.
The copy of FIR is Ex.PW2/1 (Original seen and returned). He has further deposed that he also made endorsement on the rukka which is Ex.PW2/2 bearing his signature at point A. (19)PW3 HC Jagbir is also a formal witness being MHC (M) who has been examined by way of affidavit which is Ex.PW3/1 (as per provisions of Section 296 Cr.P.C.) wherein he has proved that he had received one sealed pulanda sealed with the seal of S.K. Containing Rs.500/- i.e. 5 notes of denomination of Rs.100/- each from ASI Laique Ahmed. He has further proved that on receipt of that pullanda, he had made an entry in Register No. 19 as mud no. 3524/11.
(20)In his cross-examination by Ld. Defence Counsel, he has denied the suggestion that the entry in register no. 19 was ante dated and ante timed. (21)PW4 Woman Constable Aruna is also a formal witness being D. D. Writer who has been examined by way of affidavit which is Ex.PW4/1 (as per provisions of Section 296 Cr.P.C.) wherein he has proved that on 21.09.2011 she had lodged DD No. 70-B on receipt of PCR Call regarding one boy had been injured with blade and she informed ASI Laik Ahmed by phone on his mobile phone and copy of the DD entry was sent to ASI Laik Ahmad through Constable Shripal for taking further necessary action. (22)In her cross-examination by Ld. Defence Counsel, she has denied the suggestion that the said DD entry was recorded ante dated and ante-timed. (23)PW8 Constable Shripal has deposed that on 21.09.2011 he was posted at PS Jahangir Puri as constable and on that day at about 3 PM he was on emergency duty. He has further deposed that on receipt of DD No. 70B, he alongwith ASI Layak Ahmed reached at K-40, K-Block, Jahangir Puri near the office of MLA Devender Yadav where they found crowd of large number of persons. According to him, there they met Amar @ Bengali who informed them about the snatching incident which had taken place with him and one of the assailants had been apprehended by public persons. He has deposed that the said boy was handed over to them by Yogender and on interrogation the name of that boy was revealed as Rajeev resident of K-Block Jhuggie and his search revealed five currency notes of Rs.100/- each from the pocket of his shirt which the Investigating Officer seized vide Ex.PW6/A. He has further deposed that ASI Layak Ahmed recorded the statement of Amar and converted the same into a tehrir which was handed over to him (witness) with the directions to take the same to the Police Station Jahangirpuri. He has further deposed that he took the same to the PS Jahangirpuri for getting the case registered and after getting the case registered, he returned back to the spot alongwith copy of the FIR and original rukka which he handed over to ASI Layak Ahmed who then arrested the accused Rajeev vide memo Ex.PW6/B conducted his personal search vide Ex.PW6/C and recorded his disclosure statement vide memo Ex.PW6/D. He has further deposed that Investigating Officer also prepared the site plan vide Ex.PW8/A and recorded the statement of Yogender. According to him, the information regarding arrest of Rajeev was given to the mother of accused in the jhuggie cluster after which they were taken to the police station and then to BJRM Hospital where Amar was medically examined. He has identified the accused Rajeev as well as the currency notes in the court. (24)In his cross-examination by Ld. Defence Counsel, he has deposed that they had received information at 3 PM. According to him, at that time, he was in the beat area i.e. C-Block near police booth. He has deposed that he had left the police station at about 10-10:30 AM. He has further deposed that he was on beat duty on that day and was patrolling along with HC Peera Ram and SI Sandeep Kumar. He has admitted that HC Peera Ram and SI Sandeep did not go with him to the spot of the incident and has voluntarily explained that he had received a call from the police station to join SI Layak Ahmed at the spot of the incident. He has deposed that he had received that message from his mobile phone. According to him, he had started from the spot on foot and he met SI Layak Ahmed on the way. He has deposed that after receiving the call he reached the spot within 7-8 minutes. He is unable to tell whether Amar Singh was in a state of intoxication or if Amar Singh was fully conscious when they reached there. He has admitted that the statement of victim Amar Singh was recorded before he (victim) was taken to the hospital and that there was not much bleeding requiring immediate attention and therefore his statement was recorded first and he (victim) was shifted to the hospital later. He has denied that Amar Singh was known to him through Yogender who was unauthorizedly running a thela of chowmein or that Amar Singh was committing nuisance on the road under the state of intoxication which was objected to by public persons. He has further denied that the police persons had informed them that Amar Singh sustained injuries after falling on the road in a state of intoxication. According to him, he had seen Yogender and Bijender at the spot when he reached there but he could not tell the names of other public persons who had gathered. He has denied that Yogender and Bijender were both known to him prior to the incident and that is why he was giving their names. He has further denied that the accused had been falsely implicated in connivance with Amar Singh and Yogender or that he was deposing falsely on the tutoring of the senior officers.
(25)PW9 ASI Layeek Ahmed was the investigating officer (IO) of this case and has proved that on 21.09.2011 he was posted at PS Jahangir Puri. He has further deposed that on that day at about 3.00 PM he received DD No.70B copy of which is already Ex.PW4/A. According to him, thereafter on receiving of the same he alongwith Constable Shripal reached at K-40, Jahangir Puri, Delhi where injured Amar, Yogender and Bijender met him there. He has further deposed that Amar was having an injury mark on his left cheek. He has deposed that some 4-5 public persons were also present at the spot. He has also identified the accused Rajeev in the court as the same person who was in the custody of those public persons. According to him, thereafter he recorded the statement of Amar @ Bangali vide Ex.PW1/A and made his endorsement vide Ex.PW9/A and got the FIR registered through Constable Shri Pal. He has further deposed that thereafter injured Amar was sent to BJRM Hospital by the PCR. According to him, thereafter Constable Shripal came at the spot and handed over him the copy of FIR and Original rukka after which he he prepared the site plan at the instance of Yogender and Bijender vide Ex.PW8/A. He has further deposed that when initially he alongwith Constable Shripal reached at the spot, the injured Amar Singh @ Bengali handed over him Rs.500/- which were in the denomination of Rs.100 each, while making his (Amar) statement that accused Rajeev along with his other associate snatched Rs.500/- from his (Amar) front pocket of shirt while causing the injury by blade. He has further deposed that he converted those five currency notes of Rs.100/- each into a pullanda and sealed with the seal of SK and were taken into possession vide memo Ex.PW6/A. He has further deposed that thereafter accused Rajeev was arrested vide memo Ex.PW6/B, his personal search was carried out vide memo Ex.PW6/C, accused made his disclosure statement, the same is Ex.PW6/D. He has further deposed that thereafter he recorded statement of Constable Shripal, Yogender and Bijender and thereafter he alongwith Constable Shripal, accused Rajeev returned to the Police Station and the case property was deposited in the Malkhana. According to the witness, during the time of investigation accused Rajeev was produced before the Ld. MM and was sent to Judicial Custody. He has further deposed that during investigation on 06.12.2011 accused Jitender, who was wanted in the present case, was arrested from the jhuggies of Jahangir Puri vide memo Ex.PW9/B. He has further deposed that during that time Constable Anil was also in the investigation with him. He has further deposed that personal search of accused Jitender was carried out vide memo Ex.PW9/C. According to him, the disclosure statement of accused Jitender was recorded vide Ex.PW9/D and at that time accused pointed out the place of incident vide Ex.PW9/E. (26)He has further deposed that on 22.12.2011 accused Jitender was tendered for Judicial TIP in Tihar Jail and as per the TIP proceedings accused Jitender was correctly identified by injured Amar Singh before the concerned Magistrate in Tihar Jail Complex. According to him, initially the TIP of accused Jitender was not conducted as he was found to be admitted in Tihar Jail due to some problem that is why the TIP of accused Jitender was got conducted on 22.12.2011 vide Ex.PW1/B. He has further deposed that the seal 'SK' which he had used while sealing the currency notes, was of SI Shailender Kumar whom he had called at the spot by making a telephone call as he had misplaced his own seal and he did not get prepared his new seal. On the specific court question he deposed that he has not got recorded any NCR in respect of the misplaced / lost seal. He has deposed that during the investigation he recorded statement of witnesses and filed the charge sheet in the court after collecting the previous details of accused Rajeev which are Ex.PW9/E. He has identified the case property i.e. five currency notes of Rs.100 each Ex.P1 (collectively).
(27)In his cross-examination by Ld. Defence Counsel, he has deposed that he was already on a call when he received the information about the present case, but he cannot tell its details. He has denied the suggestion that he cannot give the details of the earlier call because he was throughout available in the police station and the present case was planted on the accused on the asking of the senior officers. He has deposed that when he received the call, he was at C Block Jahangir Puri and Constable Shripal was not with him. He again deposed that Constable Shripal was with him when he was attending to the earlier call. He has further deposed that they were both on his private scooter at that time. He has further deposed that they reached the spot of incident within 5-7 minutes. He has further deposed that there were 5-7 public persons present there but he cannot tell their names and address though he had interrogated them. He has further deposed that the accused Rajeev had been apprehended by Bijender and has admitted that Amar Pal was in a state of intoxication. He has denied the suggestion that Yogender was also in a state of intoxication. He has further denied the suggestion that it was Rajeev who had made a call as Amar Singh was creating a nuisance in a state of intoxication. Throughout Amar Singh was conscious. He has deposed that he recorded his (Amar) statement before he was taken to the hospital. He has admitted that the injury of Amar Singh was not very serious requiring immediate medical attention and that is why he recorded his (Amar) statement first before he was shifted to the hospital. He has further deposed that he reached the spot first and then the PCR Van reached there. He admitted that he did not seize any clothes of Amar Singh. He has denied the suggestion that the clothes of Amar Singh were never seized because there was no requirement there being no evidence on the same in the form of blood stains.
(28)On the specific court question that if there were blood stains why did not seize the shirt, he answered that it was his lapse and fault. He has denied the suggestion that there was no lapse and he had deliberately not seized the shirt because it was not required in the investigations. He has deposed that he was not aware of background of Rajeev previously. He has further deposed that he was also not aware of the identity of the other boy who ran away from the spot. He has further deposed that he did not get any sketch of the boy, who had run away from the spot, prepared at the instance of the victim. According to him, he also did not put the photographs and dossiers of other criminals of the area to the victim for ascertaining the identity of the accused who had run away. He has deposed that he did not put any definite identification marks on the currency notes allegedly got recovered from the accused Rajeev. He has admitted that those currency notes were easily available being an item of common use and circulation. He has denied that the said currency notes have been planted upon the accused. He has admitted that SI Shailender Kumar did not participate in the investigation. According to him, he did not mention that fact of calling SI Shailender Kumar to the spot alongwith his seal in the case diaries. He has deposed that he had made a telephone call to him (SI Shailender Kumar) at his level but did not lodge any DD in the police station to that effect. He has further deposed that he did not prepare any memo of taking the seal from Shailender Kumar and handing over the same to Constable Shripal after use. He has denied the suggestion that after the arrest of accused Jitender, he was shown to Amar Singh in the police station. He has denied that before Amar Singh went to the Jail to identify Jitender, he was shown the photographs of Jitender to ensure that he would be identified or that Bijender and Amar Singh were previously known to him as they were putting an illegal stall of Chowmein in the area or that the entire incident had been created only to implicate the accused Rajiv and Jitender which had been done on the asking of the senior officers.
STATEMENT OF THE ACCUSED & DEFENCE EVIDENCE:
(29)After completion of prosecution evidence the statement of the accused were recorded under Section 313 Cr.P.C. wherein all the incriminating evidence was put to them which they have denied. They have stated that they are innocent and have been falsely implicated by the police after lifting them from their respective houses.
(30)In their defence, the accused have examined DW1 Rinku has deposed that he was resident of N-36/B-86, Lakkhi Park, Jahangir Puri, Delhi since last 15 years.
He has further deposed that accused Rajeev and Jitender @ Jeetu were his neighbour. He has further deposed that both of them (i.e. accused persons) used to consume alcohol and also used to misbehave everyone in family and being fed up of their acts, family members of both the accused persons got them implicated in this false case (dono khate-peete thay aur ghar-walon ke saat maar pitai karte they, isliye dono ke ghar walon ne unhe iss jhoonthe case me band karwa diya). (31)In his cross-examination by Ld. Additional Public Prosecutor, he has deposed that he was putting a weekly bazaar. He has further deposed the he was not related to the accused persons in any manner. He has further deposed that he was known to the accused for the last 15 years. He has further deposed that the accused had been working with him (witness) and also they were his neighbour, therefore he knew them. He has further deposed that he was having extremely good family relations with the accused persons. He has further deposed that he was aware of everything which happens in the house of accused persons. He has further deposed that he was not a habitual alcoholic. He has further deposed that normally when the accused persons used to drink he normally got up and went away. He has admitted that whatever transpired thereafter he was not aware. He has denied the suggestion that being a part of the same friends circle who used to eat and drink together, he had come to the court to depose on behalf of accused persons only to save them from penal consequences. He has further denied the suggestion that he was deposing falsely.
FINDINGS:
(32)I have heard the arguments advanced before me by the Ld. Addl. PP for the State and the Ld. Defence Counsel. I have also gone through the written memorandum of arguments filed by the parties and the evidence on record. My findings are as under.
Ocular Evidence:
(33)Ocular evidence/ eye witness count is the best evidence in any case but it is settled law that the testimonies of the eye witnesses are required to be carefully analyzed to test the reliability, credibility and truthfulness of the witness.
Though minor infirmities and discrepancies are bound to occur in the normal course yet in a case where the various eye witnesses corroborates each other on material aspect connected with the offence, there is no reason to reject their testimonies. (34)In the present case the entire case of the prosecution is based upon the eye witness account given by the Amar @ Bangali (PW1), Yogender Singh (PW6) and Bijender (PW8) who have corroborated each other on the material particulars i.e. on the fact that the accused Rajiv was apprehended red handed at the spot of incident itself and the stolen Rs.500/- were recovered from his possession. (35)Here, I may observe that since the prosecution is placing its heavy reliance on the testimonies of Amar @ Bangali (PW1), Yogender Singh (PW6) and Bijender (PW8) hence it is necessary for this Court to first determine whether what they have deposed is reliable and truthful. It is settled law that in a case where the testimony of a witness is found to be reliable, the conviction can be based even on the sole testimony of such a truthful and trustworthy witness. The Hon'ble Apex Court has time and again determined the parameters on the basis of which the credibility/ truthfulness of a witness can be ascertained. In the case of Bankey Lal vs. State of UP reported in AIR 1971 SC 2233 it was observed by the Hon'ble Apex Court that in a case where prosecution witnesses are proved to have deposed truly in all respects then their evidence is required to be scrutinized with care. Further, in the case of Kacheru Singh Vs. State of UP reported in AIR 1956 SC 546 it was observed by the Hon'ble Apex Court whether the witness should be or should not be believed is required to be determined by the Trial Court (Courts of Act). It is therefore evident that Eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness- box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (Ref.:
Krishnan Vs. State reported in AIR 2003 SC 2978).
(36)It is a matter of common knowledge that ordinarily witnesses are either not inclined to depose or their evidence is not found to be credible by Courts for manifold reasons and one of the reasons is that they do not have courage to depose against habitual criminal apprehending threats to their life. A rustic or an illiterate witness may not be able to withstand the test of cross- examination which may be sometime because he is a bucolic person and is not able to understand the question put to him by the skillful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When such a person is faced with an astute lawyer, there is bound to be imbalance and, hence minor discrepancies have to be ignored. Instances are not uncommon where a witness is not inclined to depose because in the prevailing social structure he wants to remain indifferent. (Ref. Krishna Mochi Vs. State of Bihar reported in AIR 2002 SC 1965).
(37)Applying the settled principles of law to the facts of the present case and coming first to the testimony of complainant Amar @ Bangali (PW1). He is the person from whom sum of Rs.500/- had been snatched on which he along with Yogender and Bijender had apprehended the accused Rajeev and the stolen amount was recovered from his possession after which he was handed over to the local police. He has identified both the accused Rajeev and Jitender in the court. The relevant portion of his testimony is reproduced as under:
"On 21.09.2011, my owner gave me Rs.500/-, as I wanted to go to my native place at Gwalior Madhya Pradesh. I along with Yogender were coming from Mangal Bazaar Chowk, towards A-Block side. When we reached near the office of Devender Yadav, two boys came there and caught hold of me and Yogender and tried to snatch our money. Yogender, my friend, is a handicapped and his one hand is cut. They pushed Yogender, I tried to escape myself. One of the boy inflicted blade blow on my left chick, whereas the other boy removed my 500 rupees and ran away. I raised alarm. On hearing my screaming, public persons gathered there. My owner Bijender also reached there. The person who snatched my money was apprehended at the spot and person, who gave me blade blow, escaped from the spot. Police reached the spot. Police recorded my statement, which is now Ex.PW1/A, bearing my thumb impression at point A. Police recovered my Rs.500/- from the possession of that boy, who disclosed his name as Rajeev and he disclosed the name of his co-accused as Jeetu, before the police.
At this stage, witness points out towards accused Rajeev, correctly identified, and told that he is the person, who was apprehended at the spot with my money of Rs.500/- and he is the person, who removed my money from my pocket. Witness has correctly identified the accused.
At this stage, witness further points out towards accused Jeetu and identified him as the person, who inflicted blade blow on his cheek and inflicted injury to him, while committing the robbery. Witness correctly identified the accused Jeetu, today present in the court and they both caught hold us. He further states that this boy ran away from the spot, after inflicting injury on my person. My said Rs.500/- were in the denomination of five notes of Rs.100/-. I can identify the case property if shown to me."
(38)In his cross-examination the witness Amar @ Bangali has admitted that he had consumed alcohol but has explained that whenever he consumes liquor he remains in his senses. He has denied that at the time of incident, he was under the influence of liquor and lost his control and became out of control. (39)Coming next to the testimony of Yogender Singh (PW6) who was with Amar @ Bangali and is also an eye witness to the incident. The relevant portion of his testimony is reproduced as under:
"On 21.09.2011 at about 2:30 PM I along with Amar Singh were returning from Mangal Bazar situated at C Block, Jahangirpuri and were going to the house of my brother Bijender Kumar Rathore at house No. K-40. When we took a turn from the side of Ram Lila Ground and reached by the side of wall of MLA Devender Yadav, both the accused persons namely Rajeev and Jeetu, both present in the court today(correctly identified) came from back side and they snatched Rs.500/- from the front pocket of his shirt of Amar Singh and thereafter one of the accused had inflict blade injury on left side of the face of Amar Singh. Thereafter I took Amar Singh to the house of my brother namely Bijender Kumar Rathore. The house of my brother was situated nearby the place of incident. Amar Singh immediate ran towards the house of my brother and on seeing Amar Singh in injured condition my brother Bijender came out and he apprehended one of the accused namely Rajeev and accused Jeetu managed to flee. Thereafter my brother Bijender gave a call at 100 number. PCR Came at the spot and accused Rajeev was handed over in the custody of PCR and Amar Singh was shifted to BJRM Hospital. When police took the search of accused Rajeev from his possession Rs.500/- were recovered which were snatched from the pocket of Amar Singh which were taken into possession by the police after converting the same into pullanda and seized the same vide memo Ex.PW6/A, accused Rajeev was arrested by the police vide memo Ex.PW6/B, his personal search was conducted vide memo Ex.PW6/C, accused Rajeev made his disclosure statement vide Ex.PW6/D. Above said documents bears my signatures at point A. I was also interrogated by the police and my statement was also recorded. "
(40)In his cross examination the witness Yogender Singh has explained that after he and his brother raised an alarm, 4 to 5 public persons also gathered and chased the accused persons when Rajeev was apprehended by them and from his possession a sum of Rs.500/- was recovered. A specific suggestion was put to Yogender Singh with regard to the consumption of alcohol and he has denied having consumed alcohol with Amar.
(41)Witness Bijender (PW8) has proved that on 21.9.2011 at around 2:00 / 2:30 PM he had handed over Rs.500/- to Amar Singh as he wanted to go Gwalior along with his brother Yogender and thereafter they went to Mangal Bazar. He has proved that, thereafter at about 3:00 /3:30 PM, Amar and Yogender came to his house and Amar was having injury on his left cheek after which he made a call at 100 number and Amar was shifted to BJRM hospital by PCR Van.
(42)It is writ large that in so far as the actual incident is concerned, Bijender has not supported the prosecution version. He has in his cross examination stated that he came out of his house and noticed that accused Rajeev was apprehended by the public persons.
(43)However, in so far as both the victims /eye witnesses Amar @ Bangali and Bijender are concerned, they have corroborated each other on the material aspects which aspect of apprehension and arrest of the accused Rajevv after a short chase also finds independent corroboration from the testimonies of police witnesses i.e. Ct. Shripal (PW8) and ASI Layeek Ahmed (PW9). The apprehension, arrest, personal search and disclosure of the accused Rajeev has been duly proved by these witnesses which the defence has not been able to successfully controvert. All these witnesses have also proved that on 22.12.2011, the accused Jitender had tendered himself for Judicial TIP before the Ld. Magistrate at Tihar Jail Complex wherein the victim Amar Singh had identified him vide proceedings Ex.PW1/B. (44)However, from the evidence which has come on record, in so far as the allegation and aspect regarding the use of dangerous weapon is concerned, the same has not been proved and established from the testimonies of any of the witnesses or from the MLC of the injured Amar. However, the injures received by Amar Singh who was shifted to BJRM hospital, have been proved by Dr. R. S. Mishra (PW5) vide MLC Ex.PW5/A but no opinion has been given as the injured had been advised for X-Ray which was not done and hence prima facie on the basis of the MLC, the injuries received were 'Simple' in nature. No blade has been recovered nor from the nature of injuries, it can be conclusively concluded that the same was caused by a blade. Rather, from the evidence on record, it is borne out that even the victim Amar @ Bangali was intoxicated at the time of the incident and the possibility of this injury being received on account of fall on road after a scuffle with the accused, cannot be ruled out.
(45)In view of the above, I hereby hold that in so far as the charge under Section 397 Indian Penal Code against the accused persons is concerned, the prosecution has not been able to prove and establish the same. However, in so far as the charges under Section 392 & 394 Indian Penal Code are concerned, I hereby hold that the prosecution has been able to prove and substantiate the charge under Section 392 read with 394 Indian Penal Code against both the accused namely Rajeev and Jitender @ Jeet. Further, since the accused Rajeev had been identified as the same persons who had committed robbery upon the complainant/ victims, hence technically the provisions of Section 411 Indian Penal Code are not separately made out as the ingredients of Section 411 Indian Penal Code are covered within the offence of Robbery as defined under Section 390 Indian Penal Code.
Apprehension / Arrest of the Accused and their Defence :
(46)In so far as the accused Rajeev is concerned, he was apprehended at the spot of incident by the victims and handed over to the police along with the recovered stolen amount Rs.500/- which fact stands corroborated from the testimonies Amar @ Bangali (PW1), Yogender (PW6), Ct. Shri Pal (PW8) and ASI Layeek Ahmed (PW9). (47)In so far as the accused Jitender @ Jeetu is concerned, he was apprehended from the jhuggies of Jahangirpuri on a secret information on 6.12.2011 which aspect has not been disputed by the accused. Rather, on the contrary the accused have led evidence in defence and examined one Rinku as DW1 who has stated that on account of the fact that both the accused were habitual alcoholic hence their family members and neighbours being fed up by their habits, have got them (accused) arrested in the present case, which however does not seem likely as there is no reason why public witnesses Amar, Yogender and Bijender who are known to the family of the accused would falsely implicate them (accused), they being neither related to them nor there is any history of animosity between them. Rather, the fact that both the accused were habitual alcoholics and it is this fact which rather lends credence to the prosecution version that the accused Rajeev and Jitender had committed the incident of snatching of Rs.500/- from Amar near the liquor vend and caused injuries to him during the incident.
(48)This linkage between alcoholism and crime has also been acknowledged world wide. Areas around the liquor vends have been identified as spots high on criminal activities such as snatching/ robberies/ quarrels/ molestations/ eve-teasing etc. involving habitual and compulsive alcoholics. The victims may be persons who visit these vends (as has happened in the present case) or those who are residing in the vicinity or are innocent passer-byes and it is for this reason that the Local Police is on an alert around these areas. It is neither for the Government nor for the Courts of Law to indulge into Moral Policing but since the question involved relates to life, liberty, safety and security of individuals on account of abuse of Rights guaranteed by the Constitution by a section in the society and it is the Government who has been entrusted with a duty to make informed decisions instead of the individuals, it is therefore the Government who is required to take all decisions necessary to bring about prohibition of beverages, drinks and drugs which are harmful by making suitable policies. The state is obligated, when the health, safety and security of the citizens is on the line, to pass laws and regulations that protect them. In India contrary to the Constitutional Mandate (Article 47 of Constitution of India) providing that the endeavor of the State is to bring about prohibition of the consumption, only four States i.e. Gujarat, Manipur, Mizoram and Nagaland as well as Union Territory of Lakshadweep prohibit manufacture, sale and consumption of alcohol, whereas all other Indian states permit manufacture, sale and consumption of alcohol. Gujarat has a Sumptry Law in force that prescribes the sale, purchase and consumption of alcoholic drinks, which legislation has been in force since May 1, 1960 when the Bombay State dissolved into Maharastra and Gujarat and it is the only state in India that has the death penalty for those found guilty of making and selling spurious liquor which causes death [Bombay Prohibition (Gujarat Amendment) Bill, 2009]. This direct relationship between alcoholism and crime has also been acknowledged by a large number of political parties, recently as also in the past, when in the year 1996 the Haryana Vikas Party (headed by Bansi Lal) after being elected to the Legislative Assembly made it illegal to buy, sell, consume or produce alcohol in the state of Haryana and imposed a total prohibition in the entire State (which ban had to be unfortunately lifted later on account of political compulsions).
(49)Undoubedtly, the Alcohol Industry is an Enormous Global industry providing employment to thousands and large revenue to the Government and any Prohibition / Ban to alcohol (either partial or total) would adversely affect major source of funding for public services and tax revenues. However, this cannot happen at the cost of Public Health, Security, Safety and Morality. With a large number of Liquor Vends mushrooming all over the City of Delhi, it is necessary and so am I hopeful that the GNCT of Delhi and the Administration would take a serious note of this alarming situation concerning the health, safety and security issues and perhaps to revisit the existing governmental policies in this regard. (50)A copy of this order be placed before the Principal Secretary (Home), GNCT of Delhi; Principal Secretary (Health), GNCT of Delhi and Principal Secretary (Social Welfare, Women and Child Development), GNCT of Delhi, hoping that the Administration/ Government take a note of the observations made by this Court in the above paragraphs (48 & 49) while making informed decisions on the relevant issues highlighted herein above.
FINAL CONCLUSIONS:
(51)In the case of Sharad Birdhichand Sarda -vs- State of Maharastra, reported in AIR 1984 SC 1622, the Apex Court has laid down the tests which are pre-requisites before conviction should be recorded, which are as under:
1.The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established;
2.The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3.The circumstances should be of 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.
(52)Applying the above principles of law to the present case it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the Investigating Officers. The identity of the accused Rajeev and Jitender @ Jeetu stands established. It stands established that on 21.09.2011 when the victims Amar @ Bangali and Yogender were passing through the Road in front of Office of Devender Yadav, K Block, Jahangirpuri, the accused Rajeev and Jitender @ Jeetu came there and caught hold of the complainant Amar @ Bangali and victim Yogender and robbed Rs.500/- from the possession of Amar @ Bangali. It stands established that while committing the robbery, the accused persons also used criminal force upon the victims and physically assaulted them resulting into simply injuries on the person of Amar @ Bangali. It stands established that the accused Rajeev was apprehended by the victims at the spot of incident itself and the robbed amount of Rs.500/- was recovered from his possession and thereafter he was handed over to the police. It stands established that the co-accused Jitender @ Jeetu was apprehended after few days from the Jahangirpuri jhuggies.
(53)There are two stages in the criminal prosecution. The first obviously is the commission of the crime and the second is the investigation conducted regarding the same. In case the investigation is faulty or has not been proved in evidence at trial, the question which arise is whether it would absolve the liability of the culprit who has committed the offence? The answer is obviously in negative, since any lapse on the part of the investigation does not negate the offence. I do not find any substance in the grounds raised by the Amicus Curiae for this accused. (54)The prosecution has proved the identity of the accused, the manner in which the offence has been committed, place of commission of the offence, the investigation including the documents prepared, postmortem report, etc. There is nothing which could shatter the veracity of the prosecution witnesses or falsify the claim of the prosecution. All the prosecution witnesses have materially supported the prosecution case and the testimonies of the prosecution witnesses do not suffer from any infirmity, inconsistency or contradiction and are consistent and corroborative. The evidence of the prosecution witnesses is natural and trustworthy and corroborated by medical evidence and the witness of the prosecution have been able to built up a continuous link.
(55)In view of my above discussions, the accused Rajeev and Jitender @ Jeetu are hereby held guilty for the offence under Section 392 read with 394 Indian Penal Code however they are acquitted of the charge under Section 397 Indian Penal Code. (56)Be listed for arguments on sentence at 2:00 PM.
Announced in the open Court (Dr. KAMINI LAU) Dated: 02.01.2014 ASJ (NW)-II: ROHINI
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS JUDGE-II (NORTH-WEST) : ROHINI COURTS: DELHI Sessions Case No. 116/2013 Unique Case ID: 02404R0366182011 State Vs. 1) Rajeev S/o Sh. Ram Prakash R/o Jhuggi No. 36B/93, Opposite K-901, Jahangir Puri, Delhi - 110033
2) Jitender @ Jeetu S/o Late Sh. Charan Singh R/o Jhuggi No. 104, K Block, Lakkhi Park, Jahangir Puri, Delhi - 110033 Date of conviction : 02.01.2014 Arguments heard on : 02.01.2014 Date of Sentence : 02.01.2014 APPEARANCE:
Present: Sh. Shiv Kumar, Addl. Public Prosecutor for the State. Convicts in Judicial Custody with Sh. Rajeev Kaul and Sh.Abhishek Kaushik, Advocate / Amicus Curiae.
ORDER ON SENTENCE:
(1)The case of the prosecution is that on 21.09.2011 at about 2:30 PM at open Road in front of Office of Devender Yadav, K Block, Jahangirpuri, the accused Rajeev and Jitender @ Jeetu, in furtherance of their common intention, caught hold of the complainant Amar @ Bangali and victim Yogender and robbed the complainant of his Rs.500/-. It is alleged that while committing the robbery the accused persons also used criminal force upon the victims, physically assaulted them and inflicted injuries on the person of the complainant by using blade (deadly weapon). It is also alleged that the the robbed amount of Rs.500/- was recovered from the possession of the accused Rajeev.
(2)However, on the basis of the testimonies of various witnesses examined by the prosecution and other material which has come on record, this Court vide a detailed Judgment dated 02.01.2014 has held that identify of the accused Rajeev and Jitender @ Jeetu stands established; that on 21.09.2011 when the victims Amar @ Bangali and Yogender were passing through the Road in front of Office of Devender Yadav, K Block, Jahangirpuri, the accused Rajeev and Jitender @ Jeetu came there and caught hold of the complainant Amar @ Bangali and victim Yogender and robbed Rs.500/- from the possession of Amar @ Bangali; that while committing the robbery, the accused persons also used criminal force upon the victims and physically assaulted them resulting into simply injuries on the person of Amar @ Bangali; that the accused Rajeev was apprehended by the victims at the spot of incident itself and the robbed amount of Rs.500/- was recovered from his possession after which he (accused Rajeev) was handed over to the police. The co-accused Jitender @ Jeetu was apprehended after few days from the Jahangirpuri jhuggies and in Judicial Test Identification Parade was identified as the assailant by the victim Amar @ Bangali. (3)In view of the above, the accused Rajeev and Jitender @ Jeetu have been held guilty for the offence under Section 392 read with 394 Indian Penal Code however they are acquitted of the charge under Section 397 Indian Penal Code. (4)I have heard arguments on the point of sentence. The convict Rajeev is stated to be a young boy of 30 years having a family comprising of father, mother, two brothers, one sister and wife. He is totally illiterate and was putting a rehri of Samosas. He has already remained in custody in this case for a period of two years three months eleven days.
(5)In so far as the convict Jitender @ Jeetu is concerned, he is stated to be a young boy of 32 years having a family comprising of widow mother, two elder sisters and two younger brothers. He has studied till class 5th and is labour by profession. He has already remained in custody in this case for a period of two years twenty six days.
(6)Ld. Amicus Curiae for the convicts have vehemently argued that the convicts are young boys having families dependent upon them. According to the Ld. Amicus Curiae, the convicts are the victims of circumstances and have already suffered. It is argued that any stern view would be prejudicial to the entire life of the convicts.
Ld. Addl. PP for the State on the other hand has argued that keeping in view the nature of offence, a strict punishment may be awarded to the convicts. (7)I have considered the rival contentions and keeping in view the fact that both the convicts are young boys and not previous convicts particularly Jitender who is a first time offender. The convict Rajeev was previously facing trial in FIR No. 768/05 under Section 324/34 IPC Police Station Jahangirpuri and has per information has been acquitted in the same. I hence hereby hold that any harsh view at this stage would be prejudicial to their future. Hence, a lenient view is taken against the convicts who are sentenced as follows :
(8)The convict Rajeev is hereby sentenced to Rigorous Imprisonment for a period of Two Years & Three Months (i.e. the period already undergone by him) and a fine to the tune of Rs.2,000/- for the offence under Section 392 read with 394 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 15 days.
(9)The convict Jitender @ Jeetu is hereby sentenced to Rigorous Imprisonment for a period of Two Years (i.e. the period already undergone by him) and a fine to the tune of Rs.2,000/-/- for the offence under Section 392 read with 394 Indian Penal Code. In default of payment of fine the convict shall further undergo Simple Imprisonment for a period of 15 days.
(10)Benefit of Section 428 Cr.P.C. shall be given to the convicts for the period already undergone by them during the trial, as per rules.
(11)The convicts have been informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 34-37, Lawyers Chamber Block, High Court of Delhi, New Delhi.
(12)Copy of the judgment and order on sentence be given to the convicts free of cost and another be attached along with their jail warrants. (13)File be consigned to Record Room.
Announced in the open Court (Dr. KAMINI LAU) Dated: 02.01.2014 ASJ (NW)-II: ROHINI