Delhi District Court
App Has Placed Reliance Upon The ... vs . State on 27 September, 2012
FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi IN THE COURT OF SH. NEERAJ GAUR, LD. METROPOLITAN MAGISTRATEIII/NORTH, DELHI FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi C/N. 2831/T U. ID No. 02401R0012791997 Date of Institution : 18.01.1997 Date of commission of offence : 18.12.1996 Name of the complainant : Sh. Ashok Jaggi S/o Sh. Yog Raj. Name and address of accused : (1) Rakesh Kumar s/o Sh. Devi Singh, R/o T87, Kabir Basti, Malka Ganj, Delhi. (2) Vijay Kumar S/o Sh. Hoshla Prasad, R/o 131, Kabir Basti, Malka Ganj, Delhi.(expired and proceedings abated vide order dt. 05.09.03) (3) Titoo s/o Sh. Nihal Singh, R/o T76, Kabir Basti, Delhi. (PO vide order dated 18.08.2010) Offence complaint off : U/S 392 /411/34 IPC U. ID NO. 02401R0012791997 Page No. 1 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi Plea of guilt : Pleaded not guilty Final Order : Convicted u/s 392 IPC and acquitted u/s 411 IPC. Date of reserve for order : 27.09.2012 Date for announcing the order : 27.09.2012 J U D G M E N T:
Brief facts and pre trial proceedings:
1. The case of the prosecution, as disclosed in the chargesheet is that on 18.12.1996 at about 09.55 pm accused Rakesh Kumar along with coaccused Vijay Kumar (since expired) and Titoo (since declared PO) in furtherance of their common intention, committed robbery of the leather bag black colour containing Rs. 350/, one diary, booklet of Life Insurance Corporation and other documents belonging to complainant Ashok Jaggi from his possession at Goyanka Road, Roshanara Road, Subzi Mandi and the bag along with contents was recovered from the possession of accused Rakesh. During investigation, FIR was U. ID NO. 02401R0012791997 Page No. 2 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi registered, accused persons were arrested and personally searched.
After completion of the investigation, accused persons were sent up for trial u/s 394/411 IPC.
2. Copies were supplied to the accused persons and after necessary compliances charge for the offences punishable u/s 394 / 411 IPC were framed against all the accused persons. All the accused persons pleaded not guilty and claimed trial.
During trial, accused Vijay Kumar expired and proceedings against him stood abated vide order dated 05.09.2003. Accused Titoo also absconded and was declared PO vide order dated 18.08.2010.
Trial
3. To prove the charges, prosecution examined seven witnesses in total whose depositions are being discussed in brief as follows :
(i). PW1 Ashok Jaggi s/o Sh. Yog Raj deposed that on 18.12.1996 at about 09.30 pm, he was standing at the bus stand U. ID NO. 02401R0012791997 Page No. 3 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi Baraf Khana for going to Gulabi Bagh. He deposed that one boy was also standing there and asked him where he (PW1) would go? On this, he replied him for Gulabi Bagh. On this , that person asked him to hire a cycle rickshaw and told him that he was also going to Shastri Nagar. After that, they hired one rickshaw and one person also sat on the rickshaw. He further deposed that when they reached Roshanara Road, one person came and rickshaw was stopped. He further deposed that he was thrown out of the rickshaw by the person who was sitting in the rickshaw. All the three accused persons started beating him. The rickshaw puller along with rickshaw went away. He further deposed that they snatched his black coloured leather bag containing Rs. 350/ and one diary of LIC booklet and some other documents. On this, he raised an alarm and meanwhile PCR staff came there. With the help of PCR officials, accused Rakesh U. ID NO. 02401R0012791997 Page No. 4 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi Kumar was apprehended. From his possession, his stolen bag was recovered. At PS, his statement Ex.PW1/A was recorded. FIR was registered and his black coloured bag containing Rs. 350/ in which three currency notes were of 100/ denomination and one currency note of RS. 50/ denomination along with LIC diary or some other documents and booklet were taken into possession vide seizure memo Ex.PW1/B. He stated that accused Titoo and Vijay were also arrested and their personal search was conducted vide memo Ex.PW1/C to Ex.PW1/E. The disclosure statement of accused Rakesh is marked as Ex.PW1/F. He proved the site plan as Ex.PW1/G. He got released his articles on superdari vide superdarinama Ex.PW1/H and indemnity bond Ex.PW1/J. He correctly identified the case property. Bag is marked as Ex.P1, diary as Ex.P2, booklet of LIC as Ex.P3 and the other documents as Ex.P4 (colly.). The currency notes of Rs. 350/ had been spent U. ID NO. 02401R0012791997 Page No. 5 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi by him (PW1). He was crossexamined by the Ld. Defence counsel and reexamined by Ld. APP for the State which shall be discussed in detail in the following paragraphs.
(ii). PW2 HC Shyam Lal deposed that on 19.12.1996, SI Ishwar Singh deposited one sealed pullanda. He made the entry in register No. 19 vide serial No. 2297 vide Ex.PW2/A.
(iii). PW3 SI Balkar Singh deposed that on the intervening night of 1819.12.1996, he was posted as HC at PCR van as InCharge of Oscar 32. On that day, after attending a call when he reached near Roshanara Bagh, Subzi Mandi, he saw 2 - 3 persons were committing "GuthamGutha" with one person. When the head light was flashed on them, 23 persons were trying to run away from the spot. He also saw one person who fell down in the road in the process of GuthamGutha, got up and started shouting "PakdoPakdo". On this, PW3 along with Ct. Shanshan Pal, U. ID NO. 02401R0012791997 Page No. 6 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi Gunman chased them and apprehended one person i.e. accused Rakesh Kumar along with one bag. The remaining two boys succeeded in escaping from there. The person who got up from the road, disclosed his name as Ashok Jaggi and informed him that Rakesh along with his associates had committed robbery and snatched his bag by beating him. PW3 flashed the information through PCR. Thereafter, accused Rakesh and complainant along with recovered bag were taken to PS Subzi Mandi and were handed over to the local police. PW3 further deposed that IO SI Ishwar Singh recorded the statement of Sh. Ashok Jaggi and got the case registered. The bag was taken into police custody vide seizure memo Ex.PW3/B. He identified the case properties in the Court which were exhibited as Ex.P1 to P4. He also correctly identified the accused in the Court.
(iv). PW4 HC Sahansar Pal deposed on the similar lines of U. ID NO. 02401R0012791997 Page No. 7 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi PW3 SI Balkar Singh. He accompanied the HC Balkar Singh. He deposed about incident and apprehending of the accused Rakesh and recovery of the bag from the possession of accused Rakesh. He also deposed about the seizure of the bag and proved the seizure memo as Ex.PW3/B. He correctly identified the accused Rakesh. The case property has been exhibited as Ex.P1 to P4.
(v). PW5 Inspector Ishwer Singh deposed that on 18.12.96, at about 11.00 pm, PCR staff HC Balkar Singh and Ct. Sahansar Pal along with complainant came to PS and handed over to him the accused Rakesh and one bag containing LIC diary, LIC Booklet, one balancesheet of M/s Asha Product and Rs. 350/ note. He deposed that he recorded the statement Ex.PW1/A of complainant Ashok Jaggi. He seized the bag, LIC Diary, LIC booklet, one balance sheet of M/s Asha Product and Rs. 350/ vide seizure U. ID NO. 02401R0012791997 Page No. 8 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi memo Ex.PW1/B. He prepared rukka Ex.PW5/A, handed over the same to Ct. Manoranjan for registration of FIR who, after having got the FIR registered, handed over the copy of FIR and original rukka to him. He further deposed that thereafter, he along with complainant, PCR staff and accused went to spot i.e. Goenka Road, Roshanara Park, Subzi Mandi where he prepared site plan Ex.PW1/G at the instance of complainant. He arrested and personally searched the accused vide personal search memo Ex.PW1/D. He recorded the disclosure statement Ex.PW1/F of accused . He further deposed that he along with accused and complainant went near Robin Cinema where at the instance of complainant, accused Vijay was arrested and his personal search was conducted vide memo Ex.PW1/8E. Thereafter, they went to Kamla Nehru Park where at the instance of complainant, accused Titoo was arrested and his personal search was conducted vide U. ID NO. 02401R0012791997 Page No. 9 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi memo Ex.PW1/C. Thereafter, all the accused persons were brought to the PS and case property was deposited with MHC(M). He identified the accused and case property in the Court.
(vi). PW6 Mohd. Yousuf is the Duty Officer who deposed that he received rukka through Ct. Manoranjan which was sent by SI Ishwer Singh, on the basis of which, he recorded the instant FIR Ex.PW6/A and made endorsement Ex.PW6/B on the rukka.
Statement of accused and defence
4. After concluding prosecution evidence, accused Rakesh Kumar has been examined u/s 313 CrPC on 18.08.2011. During statement u/s 313 CrPC, he stated that he was falsely implicated in the present case by the police. In fact, on 19.12.96, he had gone to Railway Station, Subzi Mandi to see off his elder brother and sister in law. He chose to lead evidence in his defence but on 27.09.2011 on the submission of Ld. Defence counsel made at Bar, DE was closed and matter was fixed for U. ID NO. 02401R0012791997 Page No. 10 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi final arguments.
Arguments and appreciation of evidence in the light of legal propositions:
5. Ld. Defence counsel argued that the identity of the accused Rakesh could not be proved on record. He argued that PW1 categorically stated in his crossexamination that "I cannot identify the accused persons since the incident took place in the night. There was no street light in the vicinity of the spot."
6 Ld. APP for the State argued that PW1 correctly identified the accused during his chief examination recorded on 22.02.02. PW1 took a U turn in his crossexamination recorded on 21.09.05. Ld. APP for the State argued that PW1 must have been won over by the accused. Ld. APP has placed reliance upon the Judgment titled as Khujji Vs. State of M.P. cited as AIR 1991 SC 1853. The ratio laid down in this case is that the entire statement of a hostile witness cannot be effaced because U. ID NO. 02401R0012791997 Page No. 11 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi he failed to lend a support to the prosecution case during cross examination, which was recorded after a considerable time. That portion of the statement which is otherwise acceptable can be relied and acted upon.
7. In my considered opinion there was a gap of about three years between the two statements of PW1. In his earlier statement, PW1 categorically identified the accused Rakesh. This statement seems to have been given voluntarily whereas the subsequent statement seems to be given under some external influence. Moreover, PW1 is not the sole witness for identity of the accused. As per the prosecution case, one of the three robbers was apprehended at the spot. PW3 SI Balkar Singh and PW4 HC Sahansar Pal who was posted in the PCR van saw a scuffle and alarm of 'pakro - pakro'. The boy apprehended at the spot was accused Rakesh who was correctly identified by PW3 and PW4 in the Court. Taking into account the initial statement of PW1 and the U. ID NO. 02401R0012791997 Page No. 12 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi statements of PW3 and PW4, I am of the view that the identity of the accused as one of the robber has been duly proved.
8. Ld. Defence counsel next argued that PW2 / MHC(M) admitted that the time of depositing the case property was not mentioned in the register No. 19. Ld. Defence counsel, however, failed to elaborate as to what could possibly be the consequence of not mentioning the time of depositing the case property. In my considered opinion, it could be only an irregularity which has not accrued any benefit in favour of accused.
9. Ld. Defence counsel has challenged the fairness of investigation while arguing that there were residential houses nearby but no such nearby resident was made a witness.
10 The joining of independent public witnesses during investigation is a rule of prudence. However, it is not an absolute rule to join public witnesses in each and every case. The incident pertain to 09.30 pm of the winters season when ordinarily, public persons are not on road. U. ID NO. 02401R0012791997 Page No. 13
FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi Accused Rakesh was already apprehended by PW1 with the help of PW3 by the time the local police including PW5 arrived at the spot. At the spot, accused was only formally arrested and site plan was prepared. For these purposes, I find no necessity to join the nearby residents as a witness of proceedings. Moreover, PW1 was the victim of crime. There is nothing on record to suggest that PW1 was having any prior enmity with the accused. In my opinion, PW1 himself is an independent witness and no other witness was required.
11. Ld. Defence counsel highlighted that PW3 could not recollect the registration no. of the PCR van. PW4 could not tell the entry no. made in the PCR register. He argued that both these witnesses are planted witnesses. After going through the entire statement of PW3 and PW4, the aforementioned facts seems too feeble to provide any merit to the argument of Ld. Defence counsel.
12. Ld. Defence counsel further highlighted that as per PW3, all the U. ID NO. 02401R0012791997 Page No. 14 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi writing work was done at the PS whereas PW5 / IO deposed that the statements were recorded while sitting in the Transport Company. PW5 could not tell the name of such transport company nor he could tell the name of any employee of the Transport Company.
13. I have already discussed that a minimal amount of investigation was conducted at the spot. Even if some documents are prepared at the PS, it does not imply that the entire investigation is tainted. There is hardly any material on record to suggest that accused was falsely implicated by doing some unfair investigation. In these circumstances, I find no merits in this contention of the Ld. defence Counsel.
14. From the statement of PW1, it has been duly proved that he and one of the culprit shared cycle rickshaw. Another culprit sat on the rickshaw. When they reached Roshanara road, the third culprit, who was already there stopped the rickshaw. All three culprits started beating PW1. They snatched the leather bag containing Rs. 350/ and U. ID NO. 02401R0012791997 Page No. 15 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi certain other documents i.e. Ex.P1, P2 and P3. These facts clearly indicate that the three culprits shared common intention to commit the offence. It is also proved that accused Rakesh was one of those three persons and was apprehended at the spot. From his possession, the stolen bag was recovered at the spot.
15. As per Section 390 IPC, theft becomes robbery if in order to the committing of the theft or in committing the theft or in carrying away or attempting to carry away the property obtained by theft, the offender , for that end voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint etc. PW1 stated that the culprit started beating him and snatched his leather bag. It is duly proved that in order to commit theft, the accused persons, in furtherance of their common intention voluntarily caused hurt to PW1. The ingredients of Section 392 IPC r/w/s 34 IPC have been duly proved against accused Rakesh.
16. So far as charge u/s 411 IPC is concerned, the stolen bag was U. ID NO. 02401R0012791997 Page No. 16 FIR No. 665/96 S/v Rakesh Kumar & etc. U/s 392/411 IPC PS: Subzi Mandi recovered from the accused Rakesh immediately after the robbery was committed. To invoke Section 411 IPC, there should be a receipt or retention of a stolen property. A thief, who has been apprehended with the stolen property in the process of committing the theft cannot be considered as a 'receiver' or 'retainer' as contemplated in Section 411 IPC. In these circumstances, I am of the view that the charge u/s 411 IPC is not proved.
Conclusion
17. In view of the above discussion, the accused Rakesh is held guilty and convicted for the offence punishable u/s 392 IPC. He is held not guilty, hence, acquitted for the offence punishable u/s 411 IPC. Arguments on sentence shall be heard separately.
Announced in open court (Neeraj Gaur)
today i.e. 27.09.2012 Metropolitan MagistrateIII/N
Tis Hazari Courts, Delhi
U. ID NO. 02401R0012791997 Page No. 17