Delhi District Court
Pankaj vs State on 5 December, 2016
IN THE COURT OF SH. JAGDISH KUMAR,
ADDITIONAL SESSIONS JUDGE -02(WEST) , DELHI.
Criminal Appeal No. 22/4/2014
FIR No. : 07/11
New No.54260/2016
Pankaj
S/o Sh. Mahesh
R/o RZF- 79, Nihal Vihar
New Delhi ............ Appellant
Versus
State
Govt. of NCT of Delhi
..........Respondent
Date of Filing : 25.08.2014
Date of Institution : 26.08.2014
Date of Arguments : 03.12.2016
Date of Judgment : 05.12.2016
JUDGMENT:
1. This judgment shall dispose of the present appeal being arisen from the judgment dated 24.07.2014 and sentence dated 01.08.2014 (herein after called the impugned judgment and order) being passed by the Ld. Trial Court in FIR No.07/11, PS Mianwali Nagar, Delhi. In the impugned judgment and order the Ld. Trial Court had convicted the appellant and sentenced him accordingly for the offence under Section 392/394/34 IPC.
2. The brief facts of the case are that on 16.01.2011, at about 9:00 at GH-9, DDA Market, Paschim Vihar, Delhi. The appellant along with his co accused namely Ajay in furtherance of their common intention had robbed the complainant Jeet Ram. The appellant and the co accused had enquired C.A. No.22/4/2014 Pankaj Vs State Page 1 of 8 from the complainant and stand closely along with complainant on the pretext to ask the way to Jawala Heri market Paschim Vihar, Delhi. The complainant had told the way to Jawala Heri Market, Paschim Vihar, Delhi. Thereafter, both the accused persons started their motorcycles meanwhile the complainant searched his mobile phone in his pocket which was missing, he raised the alarm / noise. After hearing the noise a person namely Yashpal, who was passing from there in the Santro Car bearing No. DL-4CAG-5069, hit the accused persons and accused were caught handed on the spot. Accused persons injured the said Yaspal. The mobile phone was recovered from the possession of accused Pankaj. Accused Ajay ran away from the spot and was apprehended later on.
3. After completion of charge sheet, the investigating agency had filed the charge-sheet. Charge was framed against the appellant and co accused. They have pleaded not guilty and claimed trial. After completion of prosecution evidence the statement of accused persons were recorded under Section 313 Cr. PC and both the accused were convicted and sentenced vide impugned judgment and order. Hence, the present appeal filed.
4. I have heard the Ld. Counsel for the appellant and Ld. Addl. PP for State. I have given my thoughtful consideration to the submissions being made by Ld. Counsels. I also perused the record.
5. The prosecution has examined 12 witnesses to prove the charge against the appellant/accused persons.
6. Before adverting to the facts and evidence of present case I would like to mention here the ingredients of sections of IPC for which appellant has been convicted. The appellant has been convicted U/s 392/394 r/w Section 34 of IPC. The section 392 IPC provides punishment for robbery but the robbery has been defined u/s 390 of C.A. No.22/4/2014 Pankaj Vs State Page 2 of 8 IPC.
7. The ingredients of robbery are a) if in order to the committing of theft ; or
b) in committing the theft; or
c) in carrying away or attempting to carry away property obtained by theft;
d) the offender for that end i.e. any of the ends contemplated by (a) to
(c);
e) voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint or fear of instant death or of instant hurt or instant wrongful restraint.
8. The robbery is punishable u/s 392 IPC and while committing robbery the voluntarily hurt is caused then offence is punishable U/s 394 IPC. But in robbery the ingredient of theft must have been completed. The theft became robbery when the robber in order to carry away that property voluntary putting a person into fear of death, hurt or wrongful restrain or fear of instant death or of instant hurt or instant wrongful restrain then it is punishable u/s 392 IPC. The robbery became punishable U/s 394 IPC while a person in committing or in attempting to commit robbery voluntarily causes hurt.
9. Now turn to the facts of the present case. The PW1 have categorically deposed on the same lines as has been asserted by the prosecution. The witness deposed that on 16.01.2011, at about 9-9:15 Am when he reached DDA Market, Paschim Vihar the accused persons (correctly identified by the witness) came on the motorcycle and stopped the motorcycle near him on the pretext to ask about the way to Jawalaheri market, Paschim Vihar, Delhi. The PW1 Jeet Ram C.A. No.22/4/2014 Pankaj Vs State Page 3 of 8 told them the way of Jwala Heri but on the next movement he became suspicious and checked his right pocket and found his mobile phone is missing. He raised alarm and a person plying a santro car followed the motorcycle and managed to intercept the accused persons. The accused persons fell on the ground along with motorcycle. Meanwhile, the complainant Jeet Ram (PW1) reached over there.
10. The witness further deposed that one of the accused attacked on Yashpal with some pointed weapon and caused injury upon him and thereafter run away from the spot. Meanwhile two witnesses namely Sanjeev Dua and Rajan Lamba overpowered the accused, apprehended at spot, whose name later on revealed as Pankaj (the appellant).
11. This witness has exhibited document PW1/A i.e. his complaint. The disclosure statement of accused Pankaj as Ex. PW1/B. The seizure memo of the mobile phone Ex. PW1/C. The recovery memo of motorcycle Ex. PW1/D. The photographs Ex. PW1/G. This witness has categorically stand by his statement Ex. PW1/A. The Ld. Counsel for appellant has argued that this witness has not cross examined hence his examination in chief should not be considered.
12. Though this witness has not been cross examined but the appellant has not argued this plea before Ld. Trial Court. This plea has been taken first time in the appeal. It is not the case of the appellant that opportunity was not given to the appellant to cross examine this witness. The appellant has also not made any application before the Ld. Trial Court to re-summon this witness for cross examination. This witness was examined way back on 17.08.2012 and judgment was pronounced in the present case on 24.07.2014. So this plea of the C.A. No.22/4/2014 Pankaj Vs State Page 4 of 8 appellant is not acceptable at this stage.
13. The PW2 is Sanjeev Kumar Dua who has also corroborated the testimony of PW1 and the story as put forth by the prosecution. Though there are minor contradictions in his examination in chief but that contradictions is not of such degree which can be considered as damaging to the case of prosecution. The witness is specific regarding the incident. Though this witness has also not been cross examined but the appellant has not argued this plea before Ld. Trial Court. This plea has been taken first time in the appeal. It is not the case of the appellant that opportunity was not given to the appellant to cross examine this witness. The appellant has also not made any application before the Ld. Trial Court to re-summon this witness for cross examination. This witness was examined way back on 17.08.2012 and judgment was pronounced in the present case on 24.07.2014. So this plea of the appellant is not acceptable at this stage.
14. The PW 3 Yash Pal also deposed on the same lines as has been asserted by the prosecution and deposed by the PW1 and PW2. The Ld. Counsel for appellant has brought to my notice the deposition of PW3 as deposed "I noticed that two persons on a motorcycle had snatched something from a person who was shouting" and argued that this sentence itself proves that PW3 was not present at the site. I don't agree with the Ld. Counsel for appellant. The meaning of this sentenced can be inferred that a person was shouting whose something has been snatched by two persons who are on motorcycle. The word 'noticed' may be connected with the words 'shouting'.
15. The Ld. Counsel for appellant further argued that this witness has not collected any information about the details of phone which was C.A. No.22/4/2014 Pankaj Vs State Page 5 of 8 recovered from the accused. The mobile phone which was recovered from the accused was duly identified by the complainant at the spot. And it is not required for him (PW3) to get detail of the phone. This witness has seen the complainant being shouting and pointing towards the accused (who were on motorcycle ) that they have snatched his mobile phone. This witness has categorically deposed that when he intercepted the motorcycle of the accused persons and tried to apprehend both the accused they had tried to deter him by hitting some sharp object and he sustained minor injuries on his hand. This statement of PW6 is corroborated by the MLC Ex. PW11/A. The MLC is of dated 16.01.2011. The injury has been shown as simple. Nothing has come in his cross examination which diminishes the case of prosecution. This witness has fully supported the case of prosecution. The PW6 has also supported the case of prosecution and deposed on the same lines as has been asserted by the prosecution and nothing has come in his cross examination to diminish his examination in chief.
16. The appellant was apprehended at the spot. He was duly identified by the public witnesses. The public witnesses have no reason to implicate the appellant in a false case. There is no such evidence came on record which suggest to this Court that appellant has been implicated by the complainant or public witnesses or police with ill motive. The appellant was caught red handed with the assistance of public persons who have shown their activeness to nab the appellant. For that there are also been awarded certain prize by the Delhi Police.
17. The other police witnesses have also proved the case of prosecution. The PW11 also proved the MLC of Yashpal (PW3). So, all the evidences produced on record by the prosecution proves the guilt of C.A. No.22/4/2014 Pankaj Vs State Page 6 of 8 appellant.
18. The appellant has replied to the incriminating evidence being put to him in his statement U/s 313 Cr.PC that he has been falsely implicated in the present case but mere stating that he has been falsely implicated in the present case is having no explanation to the incriminating evidence while the evidence has duly been proved the guilt of the appellant.
19. It is argued by the Ld. Counsel for appellant that, if for the sake of arguments, it is presumed that the prosecution has proved its case then it also falls U/s 379 IPC only. I don't agree with the submission of Ld. Counsel for appellant. Because in the present case the appellant along with co-accused has committed the theft of mobile of PW1 and hurted one of the person namely Yashpal (PW3) while taking away the said mobile phone, being robbed from the complainant Jeet Ram. The transaction is the same that is of theft and while the appellant along with co-accused were taking away the stolen mobile phone were intercepted by the PW3 and the appellant along with co-accused had injured him (PW3).
20. So, in view of the discussion above, I find no infirmity, illegality or impropriety in the order of Ld. Trial Court. The present appeal stands dismissed.
21. The submission of the Ld. Counsel for appellant for reducing the sentence of the appellant to the extent he has already undergone in the prison during trial. Here, in the present case the co-accused has remained in JC for about 3 years while the Ld. Trial Court has awarded the sentence of 18 months of imprisonment to the appellant. The Ld. C.A. No.22/4/2014 Pankaj Vs State Page 7 of 8 Magistrate has already taken a very lenient view. So, I also do not found any ground to reduce the sentence of appellant. The accused be taken into custody to serve the sentence as awarded by the Ld. Trial Court. Copy of this order be supplied to the appellant free of cost.
22. Trial Court record be sent back along with copy of the order. Appeal file be consigned to record room after due compliance.
ANNOUNCED IN THE OPEN COURT ON THIS 05.12.2016 (JAGDISH KUMAR) ADDI. SESSIONS JUDGE-02 (WEST):DELHI C.A. No.22/4/2014 Pankaj Vs State Page 8 of 8