Delhi District Court
State vs . Ashok Kumar & Ors. on 26 March, 2012
1
IN THE COURT OF SHRI SURINDER S. RATHI:ASJ:02:
CENTRAL: ROOM NO.32:TIS HAZARI COURTS :DELHI
ID NO:02401R03494820008
SC NO: 114/2009
FIR NO: 446/2007
PS KAROL BAGH
STATE vs. ASHOK KUMAR & ORS.
U/s 395/397/34
511/398 IPC
25 Arms ACT
JUDGMENT
1 Sl. No. of the Case 114/09 2 Date of Committal to Sessions 21.04.2011 3 Received by this court on transfer 29.04.2011 4 Name of the complainant Shekh Mashkoor Ali 5 Date of commission of offence 04/12/07 6 Name and Parentage of accused 1.ASHOK KUMAR SOLANKI, S/o Sh.CHANDRABHAN, R/o VILLAGE BAACHMAI,P.S.AMAPUR, TEHSIL KASGIRI DISTT. ETAH (U.P.) 2.SUNIL S/o SHRI VIJAY SINGH, R/o VILLAGE LAKSHIMPUR, PS AMANPUR, TEHSIL SAHWAR , DISTT. ETAH (U.P.), 3.SIKANDER S/oSH.AFZALNOOR, R/o 3583, KATRA DINA BEG, LAL KUWAN, HAUZ QUAZI, DELHI6, 4.FIROZE S/o WATUL AHMED, R/o HOUSE NO. 151, STREET NO.2, OLD MUSTAFABAD, GOKULPURI, DELHI 5. MD. IQBAL, S/o MOHD. IRFAN R/o F BLOCK, GALI NO. 8, MADANWALI GALI, GANGA VIHAR, GOKULPURI, DELHI. (DECLARED PROCLAIMED OFFENDER VIDE ORDER DATED 18.2.2012) 7 Offence complained of U/s 395/397/511/398/34 IPC 25 Arms Act 8 Offence charged 395/397/511/34 IPC against all accused and accused Ashok Kumar Solanki also charged U/s 398 IPC &25 Arms Act 9 Plea of guilt Pleaded not guilty
Page 1/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 2 10 Final order Accused Ashok Kumar Solanki stands convicted U/s 392/398 r/w 511 IPC apart from U/s 25 of Arms Act.
Other accused namely Sikander, Sunil and Feroze stand acquitted.
11 Date on which order reserved 20.03.2012 12 Date on which order announced 24.03.2012 BRIEF REASONS FOR DECISION
1. Case of the prosecution as per the charge sheet is that on 04.12.07 at 12:40 PM DD No. 16 A Ex. PW 7/A was received at PS Karol Bagh to the effect that a thief has been caught with a pistol at Gali No.20, Regur Pura, Karol Bagh. It was assigned to ASI Mahender. SI Rajesh Shah was also sent to the spot. At the spot SI Rajesh Shah met complainant Sheikh Maskoor Ali who gave his statement Ex. PW1/A to the effect that he does the job of jewelery manufacturing at 3782/20 , Regar Pura , Karol Bagh. On 04.12.07 at 12:15 PM (noon) he was present at his second floor shop with two workers namely Anwar and Guddu @ Irfan when four persons came into his shop and asked him to show Gold Jewelery. As per Ex. PW1/A one of the four persons suddenly bolted the door of the shop from inside and the other person took out country made pistol and pointed it towards complainant while stating that he should be given all the gold jewelery or else he will shoot . Complainant gathered courage and caught hold of the hand of the person pointing katta towards him . His two workers Anwar and Irfan tried to catch hold of other three persons but three of them ran away after opening the door. The man Page 2/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 3 with katta was overpowered by complainant and his two workers, he disclosed his name as Ashok Kumar Solanki. Accused Ashok Solanki was also found carrying five live cartridges in his pocket. He was handed over to police along with loaded arm and ammunitions On the basis of the statement of the complainant, FIR Ex. PW 5/A was registered U/s 393 IPC & 27 Arms Act apart from endorsement Ex. PW 5/B as per rukka Ex. PW 7/A with PS Karol Bagh. The country made pistol Ex P1 and cartridges Ex. P2 to P7 were seized vide memo Ex.PW 1/C and their sketch being Ex. PW1/D . Site plan was prepared Ex.PW 7/B . Accused Ashok Kumar was arrested vide memo Ex.PW 1/D and personal search Ex. PW 1/E . He gave disclosure statement Ex. PW 7/C & Ex. PW 7/D wherein he disclosed the particulars of his accomplices as Sunil , Firoze, Sikander and Iqbal. Sanction of Arms Act is Ex. PW 7/L , Forensic Report is Ex.PW 7/K .
2. On 10.12.07 accused Sunil was arrested from Laxmi Nagar vide memo Ex. PW 6/H, his personal search Ex.PW 6/J and he gave disclosure statement Ex.PW 6/C. He refused to participate TIP proceedings Ex.PW 7/I, application Ex. PW 7/F. On 10.12.07 itself accused Sikander was arrested from Laxmi Nagar vide memo Ex. PW 6/F, his personal search Ex. PW 6/I and he gave disclosure statement Ex. PW 6/B . He was identified by PW4 Mohsin vide TIP proceedings Ex. PW 7/J, application Ex. PW 7/F and copy supplied to IO vide memo Ex. PW 9/A . On 10.12.07 itself accused Firoze @ Sunny @ Page 3/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 4 Patrkar was arrested from Laxmi Nagar vide memo Ex.PW 6/E, his personal search Ex. PW 6/A and he gave disclosure statement Ex. PW 6/D . He refused to participate TIP proceedings Ex. PW 7/H, application Ex. PW 7/F. On 10.12.07 alone accused Mohd. Iqbal was also arrested from Laxmi Nagar vide memo Ex.PW 6/G and his disclosure statement Ex.PW 6/A . He refused to participate TIP proceedings Ex. PW 7/G, application Ex. PW 7/F. Telephone call details are Ex.PW 2/A & Ex PW 3/A.
3. After completion of investigation charge sheet U/s 395 & 397 IPC and 25 Arms Act was filed and after it was committed to Sessions, accused persons were charged for commission of offence punishable U/s 395/511/34 IPC apart from U/s 397 /34 IPC by Ld. Predecessor on 7.8.2009. Accused Ashok Solanki was also charged U/s 25 Arms Act & 398 IPC .
4. To prove its case prosecution examined 11 witnesses in all. It was followed by recording of Section 313 Cr.P.C. statement of accused . Accused did not lead any evidence in his defence.
5. I have heard arguments of Ld. Addl. PP Sh. V.K.Negi for State and Ld. Counsel Sh. Abishek Sabharwal advocate for accused Ashok Kumar and accused Sunil as well as Ld. Counsel Sh. Saleem Malik advocate for accused Sikander and Firoze. I have also carefully perused the entire case file.
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6. At the onset it would be appropriate to have glance at the gist of deposition made by PWs.
7. PW1 Sheikh Maskoor Ali is complainant who supported the entire prosecution case apart from identifying accused Ashok, accused Sikander , Firoze and Sunil and arm and ammunitions as the persons who tried to rob him at gun point on 4.12.2007.
8. PW2 is Ajay Kumar from Airtel who gave details of phone no. 9871121635 .
9. PW3 is M.N. Vijyan from Tata Tele Services who gave details of phone no. 9212479017.
10.PW4 is Mohd. Mohsin is a neighbour of first floor, who identified accused Ashok apart from adding that complainant Sh. Maskoor and his employees apprehended accused Ashok. He also heard noise of chorchor on 04.12.07 at 12:15 PM when he saw three persons running down to the stairs.
11. PW5 is Chander Mohan, duty officer who recorded FIR .
12. PW6 Jagdale is witness to the arrest of accused Sikander , Sunil and Firoze from Laxmi Nagar on 10.12.07 and he identified the accused .
13. PW7 is SI Naresh who gave details the steps taken by police officials and identified the accused .
14.PW8 is Ct. Rajkumar who accompanied IO to the spot after receipt of DD .
15.PW9 is Shri Siddarh Shamra Ld. MM who conducted TIP of accused Sikander, Firoze and Sunil.
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16.PW10 DCP Ms. I.B.Rani accorded sanction U/s 39 of Arms Act against accused Ashok.
17.PW 11 HC Ram Khiladi, MHCM proved the relevant entry of Register No.19 as Ex.PW11/A & B vide which katta and cartridges were deposited and later on sent to FSL.
18. During trial of this case , accused Iqbal absented from the proceedings and he was declared Proclaimed Offender vide order dated 18.2.2012.
19.While opening his submissions, it is argued by Ld. Addl. PP for State that prosecution has proved its case in so far as complainant PW Sheikh Maskoor Ali had identified all the five accused persons while stating that they all tried to rob him at gun point in his shop on 4.12.2007 when one of them i.e. Ashok was caught red handed.
20. As far as case of accused Ashok is concerned, prosecution case is primarily based on deposition of PW1 Sheikh Maskoor Ali and PW4 Mohd.Mohsin. Two employees of PW1 namely Anwar and Irfan @ Guddu were not examined by the prosecution apparently as they could not be traced. Accused Ashok is deposed to be the person who entered the shop of PW1 along with three other accomplices on 4.12.2007 at 12.15 noon at Karol Bagh. One of the accomplices bolted the door of the shop from inside while accused Ashok is deposed to have taken out the country made pistol. While aiming it at PW1, he threatened to kill the complainant in case he is not Page 6/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 7 handed over all the gold jewelery. At that juncture PW1 daringly took Ashok by surprise by catching hold of his hand with which the katta was being pointed. Two employees of PW1 tried to catch the accomplices but they fled by opening the door. Ashok was found carrying five additional live cartridges other than one loaded in the katta . Accused Ashok along with arms and ammunition was handed over to the police.
21.It is argued by Ld. defence counsel that as per deposition of complainant PW1 Sheikh Maskoor Ali , his statement was recorded by the IO at the PS whereas according to IO PW7 SI Naresh , statement of complainant was recorded at the spot as Ex.PW1/A before the ruqqa was sent. I do not read much into this plea as deposition of complainant was recorded after about 3 years. Complainant is a layman who had his first brush with criminal law. It is evident from the record that after the accused was arrested in this case , PW1 accompanied him to the police station with PW4 Mohsin where they were asked about the incident again. This explains the above minor aberrations. This aberration is too minuscule to dislodge the otherwise overwhelming evidence available on record against accused Ashok. Similar is an averment qua sealing of the exhibits at PS in cross examination of PW1 . It has come in the deposition that the arm and ammunition seized from accused Ashok was handed over by him to police at the spot. PW1 also talks of packing of these articles there.
22.Another plea taken is that PW4 Mohsin could not have identified accused Page 7/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 8 nd Ashok in so far as Mohsin was not present at the 2 floor shop but was on the first floor. This plea is flawed as it is case of the prosecution that PW4 Mohsin reached shop of PW1 complainant on hearing the commotion and this explains that he had seen accused Ashok at the spot.
23.Another plea taken is that even tough proceedings of arrest and seizure were carried out at the spot , no public person from the vicinity was joined in the proceedings. Record reveals that seizure memo of Katta Ex.P1 and cartridges Ex.P2 to P7 , Ex.PW1/C was witnessed by as many as 4 persons out of which three are public persons including PW1 complainant. Seizure memo which is witnessed by four persons, can not be accused of non joining of public persons. Even otherwise it is a settled legal proposition that no specific number of the witness is required to prove a fact as envisage in Section 134 Evidence Act.
24.Section 134 of Evidence Act runs as under:
134.Number of witnesses No particular number of witnesses shall in any case be required for the proof of any fact.
25.In another case titled as "Chacko Vs. State of Kerala", AIR 2004 SC 2688 Hon'ble Supreme Court held that:
" Section 134 of the Indian Evidence Act prescribes that no particular number of witnesses shall in any case be required for the proof of any fact and this section recognises the golden rule that what is required is only the quality of evidence and not the quantity. Even a solitary testimony of a witness without suffering from any of the Page 8/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 9 infirmities, as indicated above , is enough to prove the case of the prosecution for the purpose of mulcting or fastening criminal liability upon a person accused of an offence.
Conviction can be based on testimony of single witness if he is wholly reliable. Provision of Section 134 clearly states that no particular number of witnesses is required to establish the case. If the evidence is unblemished and beyond all possible criticism, then an evidence of single witness conviction can be maintained. However, corroboration may be necessary when he is only partially reliable."
26.As regard accused Ashok neither there is any defence story nor any explanation by way of suggestion to PWs as to how and why he was arrested in this case. Although in his 313 Cr.P.C. statement , he admitted his presence at the spot but took a plea that he had gone there to purchase a mobile and was falsely implicated in this case. This plea is too little to late in so far as it was neither suggested to any if the PW nor was substantiated on record by way of positive evidence.
27.As regards accused Sikander , he is shown to have been arrested on 10.12.2007 from Laxmi Nagar along with other three coaccused . It is also shown that he was identified by PW4 Mohsin during regular TIP as one of the persons who had accompanied accused Ashok. However, interestingly PW4 Mohsin failed to identify him or any other accused except Ashok during deposition in the Court. Admittedly no incriminating material was recovered from Sikander. Once a PW has failed to identify the accused before the Court, identification in regular TIP looses its evidentiary value . It is important Page 9/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 10 to observe here that once PW1 complainant has not named the accused Sikander in the FIR, it was incumbent upon IO to get TIP of accused Sikander conducted from him as well. There is no explanation as to why only one witness i,e. PW4 Mohsin was produced for TIP or as to why PW1 complainant was not asked to identify the accused Sikander. An explanation to this omission lies in the prosecution version of the incident according to which accused Sikander is not shown to be amongst the four persons who nd visited the shop on the 2 floor. But if this plea is to be believed , then there was no occasion for PW4 Mohsin to see Sikander who was on ground floor. As per prosecution case , Mohsin was on the first floor and he only saw three nd accomplices of Ashok running down the stairs from 2 floor. Further more this explains that identification of accused Sikander by PW1 complainant in the Court is of no legal importance because as per prosecution story , PW1 had not seen Sikander at the spot. All this gather importance since as per PW4 the incident involved only four persons and not five as alleged in the charge sheet.
28.Another plea taken by the defence is that even though all the remaining four accused other than accused Ashok , are shown to have been arrested on 10.12.2007 i.e. after six days of the incident but as per PW1 the arrests were made after four days of the incident which coincides with 8.12.2007. This part of deposition of PW1 supports the defence argument qua all the accused other than accused Ashok that they were detained for two days before shown Page 10/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 11 arrested in this case on 10.12.2007. As per complainant, he accompanied the raid to arrest them but prosecution case denies it.
29.Another serious anomaly is that according to PW1 accused were arrested from Bhajanpura but as per seizure memo, accused have been shown arrested form Laxmi Nagar. The manner and the handwriting in which "Laxmi Nagar" has been added in arrest memos Ex.PW6/H, PW6/F, PW6/E and PW6/G shows that it has been added subsequently in a different pen.
30.Further more PW1 says that he had seen all the four accused other than Ashok at the PS four days after the incident. This squarely explains the refusal on the part of accused Feroze and Sunil to join test identification parade. As such the refusal of TIP by these accused can not lead to drawing of any adverse inference against them. In this backdrop their identification by PW1 in Court also looses its legal steam and is of no avail to prosecution.
31.Further more in their TIP Proceedings Ex.PW7/G, H and I , Ld. Magistrate has categorically observed that these accused were produced before him in unmuffled face. This fact in its own wisdom is sufficient to discard the entire prosecution against the accused Sunil and Feroze. Also admittedly no incriminating material was recovered from them.
32.As such I have no hesitation in conclusion that as far as accused Sikander , Sunil and Feroze are concerned, prosecution has miserably failed to prove its case against them. Hence, accused Sikander, Sunil and Feroze stand Page 11/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 12 acquitted of the charges. Their bail bonds and surety bonds shall be deemed canceled after expiry of period of six months U/s 437A Cr.P.C.
33.However, as regard the accused Ashok Kumar Solanki, prosecution has proved this case beyond shadow of doubt. As such I have no hesitation in concluding that guilt of the accused qua commission of crime punishable U/s 392/398 r/w 511 IPC apart from U/s 25 of Arms Act can be inferred unerringly and every hypothesis compatible with innocence of the accused has been successfully repelled by the prosecution. As such accused Ashok Kumar Solanki stands convicted for commission of offence punishable U/s 392/398 r/w 511 IPC apart from U/s 25 of Arms Act. Accused Ashok Kumar Solanki be taken in to custody . He shall be heard separately on the point of sentence.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 24.3.2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 12/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 13 IN THE COURT OF SHRI SURINDER S. RATHI :ASJ02 CENTRAL:ROOM NO: 32: TIS HAZARI COURTS: DELHI SC NO: 114/2009 FIR NO: 446/2007 PS KAROL BAGH STATE vs. ASHOK KUMAR & ORS.
U/s 392/398 r/w 511 IPC apart from U/s 25 of Arms Act.
26.3.2012 ORDER ON SENTENCE
1. Vide separate judgment dated 24.3.2012 accused Ashok Kumar Solanki was found guilty of commission of offence punishable U/s 392/398 r/w 511 IPC apart from U/s 25 of Arms Act and he was convicted accordingly.
2. I have heard arguments of Ld. Addl. PP Sh. V.K. Negi for State and Ld. Counsel Sh. Abhishek Sabarwal advocate for convict in person on the point of sentence . I have also perused the entire file.
3. On the point of sentence it has been submitted by Ld.Addl. PP for State that convict does not deserve any leniency in so far as he dared to rob complainant at the gun point by putting him under threat and that too during day hours in busy commercial area Karol Bagh.
4. It is submitted by convict through his counsel that lenient view be taken in this case because he is a married man having two minor children aged 8 and 7 years and a wife to look after and that he is a farmer and a sole bread earner in the family. It is also submitted that he has clean antecedents and is not a previous convict nor has any involvement in any other criminal case.
Page 13/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 14 However, perusal of Parcha 12 verification form of convict shows that he has previous involvement in as many as 8 cases which include attempt to murder, kidnapping for ransom and UP Gunda Act matters.
5. In case titled Dhananjoy Chatterjee vs State, (1994)2 SCC 220 it has been observed by Hon'ble Supreme Court that "The measure of punishment in a given case must depend upon the atrocity of the crime, the conduct of the criminal and the defenceless and unprotected state of the victim. Imposition of appropriate punishment is manner in which the court responds to the society's cry for justice against criminals. Justice demands that courts should impose punishment befitting the crime so that the courts reflect public abhorrence of the crime. The courts must not only keep in view the rights of the criminal but also the rights of the victim of the crime and the society at large while considering imposition of appropriate punishment."
6. Although offence under Section 392 punishable with imprisonment up to 10 years and 398 IPC provides minimum sentence of 7 years but by virtue of Section 511 IPC only one half of the longest imprisonment provided can be awarded and fine becomes of optional. In this matter for an attempted robbery the maximum imposable sentence to the convict Ashok Kumar Solanki would be five years. He has remained in J/c w.e.f 4.12.2007 to 22.9.2008 .
7. It is evident from the record that accused dared to rob complainant in the nd broad day light by climbing to the 2 floor shop at the busiest commercial Page 14/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012 15 center of Delhi i.e. Karol Bagh. The audacity of the attempt was such that he entered the shop as a customer but soon took out and flashed a loaded katta and aimed on the head of the victim and asking him to give away all the gold jewelery. But for the dare devilry shown by the victim / complainant namely Shekh Mashkoor Ali in disarming the convict, he would have definitely succeeded in robbing the complainant / victim. Owing to the recent spurt of crime in Delhi in my considered view, such like criminals deserve to be dealt with sternly so that right message be sent to the society that wrongdoers and violators of law shall not be spared.
8. Considering totality of circumstances he is sentenced to undergo RI for a period of 5 years for commission of offence punishable U/s 392/398/511 IPC. As far as offence U/s 25 Arms Act is concerned, convict is sentenced to undergo RI for 3 years with a fine of Rs.25,000/ I/D to undergo SI for three months. Both the sentences shall run concurrently. As prayed, convict is accorded benefit of Section 428 Cr.P.C. Copy of judgment and order on sentence are being supplied to convict free of cost.
ANNOUNCED AND DICTATED IN OPEN COURT ON : 26/03/2012 (SURINDER S. RATHI) Addl. Sessions Judge02 Central : Delhi Page 15/15 of Judgment and order on sentence State Vs. Ashok Kumar & Ors. dt 26.3.2012