Delhi District Court
State vs . on 13 April, 2010
IN THE COURT OF SHRI S.K. SARVARIA
ADDITIONAL SESSION JUDGE01 SOUTH
PATIALA HOUSE COURTS/New Delhi
Session Case No. 43/08
State
Vs.
(1) Barkat Ali S/o Mohd. Ali
R/o LII/43, Madangir, New Delhi
(Already convicted vide judgment dated 26/10/09)
(2) Vikram S/o Sh. Ram Charan
R/o OII/293, Madangir, New Delhi
(3) Rakesh S/o Sh. Shiv Charan
R/o GII/270271, Madangir, New Delhi
(Already convicted vide judgment dated 26/10/09)
(4) Raju @ Rajju Sharma S/o Sh. Amit Chand Sharma
R/o D233, Dakshin Puri, New Delhi.
(Already convicted vide judgment dated 26/10/09)
SC No. 43/08 Page1/13
(5) Raj Kumar S/o sh. Kaliappa
R/o HIst/226, Madangir, New Delhi
(Already convicted vide judgment dated 26/10/09)
FIR NO. : 868/06
Police Station : Ambedkar Nagar
Under Section : 399/402 IPC & 25/54/59 Indian
Arms Act
Date of Institution of the Suit : 30/03/2007
Date on which order was reserved : 13/04/2010
Date of Judgment : 13/04/2010
JUDGMENT
The SHO of Police Station, Ambedkar Nagar has filed challan against the accused persons in the court of Ld. Metropolitan Magistrate, New Delhi for the trial of the accused persons for the offences under Sections 399/402 IPC & 25/54/59 Indian Arms Act. After supplying the copies to the accused persons and compliance of provisions of the Section 207 CrPC the Ld. Metropolitan Magistrate committed the case to the court of Sessions under Section 209 CrPC for trial of the accused persons.
Accused Vikram was declared proclaimed offender on 06/07/09. The other accused persons faced trial and were convicted by judgment dated 26/10/09 and were sentenced by order dated 31.10.09. SC No. 43/08 Page2/13 Subsequently accused Vikram was arrested by police and supplementary challan was filed against him.
BRIEF FACTS The prosecution case, in brief, is that SI Dinesh Chander, Incharge police post received secret information that 45 persons would assemble behind Local Shopping Centre in the jungle of Madangir for making preparation of dacoity and illicit arms recovered from them. On this information, SI Dinesh Chander intimated about his information to SHO police station, Ambedkar Nagar to dorect him to immediately take action in the matter thereafter SI Dinesh Chandar along with HC Vijender Singh, Ct. Sunil, Ct. Raj Kumar and Ct. Devender went behind Local Shopping Centre int eh jungle where 56 passersby were asked to join the raiding party but they did not join it and left by giving one pretext or the other. Thereafter, SI Dinesh Chander along with police officials present with him went inside the jungle and as per the previous plan of the police party the HC Vijender Singh who was made a shadow witness was sent to hear the conversation before 5 young persons sitting in the jungle. The said HC Vijender Singh gave signal by moving his hand on his head after which the raiding party went inside the jungle and surrounded the 5 young persons sitting in the jungle. These 5 person were over powered by the raiding party and on inquiry their names were found to be Bakrat Ali S/o Mohd. Ali, Raj Kumar SC No. 43/08 Page3/13 S/o Kaliappa, Vikram S/o Ram Charan, Raj @ Rajju S/o Amit Chand Sharma and Rakesh S/o Shiv Charan. It was also found that the Barkat Ali is the gang leader and they were planning to commit dacoity on the petrol pump at Virat Road at about 10 pm in the night. On personal search of accused Barkat Ali one country made pistol and two live cartiridges were recovered and in the pistol also there was one live cartridge, from the personal search of accused Raj Kumar @ Raju one country made pistol and two live cartridge were recovered, from the personal search of accused Vikram one buttondar knife was recovered, from the personal search of accused Rakesh one bag containing one torch, one screw driver ad one rope measuring 7 mtrs. was recovered. Thereafter, the rukka was prepared and sent ot the police station, on the basis of which the FIR NO. 868/06 was registered against the accused persons and investigation thereafter were handed over to SI Nirbhay Kumar who arrested the accused persons and took their personal searches, prepared site plan, recorded statement of witnesses under Section 161 CrPC, sent the case property to FSL and after completion of investigation, challaned the accused persons.
CHARGE AND PLEA OF ACCUSED PERSONS Charge under Section 399/402 IPC was found made out against all the five accused persons and was framed as such. In addition, the SC No. 43/08 Page4/13 separate charge under Section 25 Arms Act was framed against accused Rakesh, Barkat Ali, Vikram and Raju.
PROSECUTION EVIDENCE In support of its case, prosecution has examined eight witnesses in all.
PW1 is Ct. Devender Singh who stated that on 30.1.06 he was posted at Police Stationambedkar Nagar at about 5.30 pm. On that day, SI Dinesh Chander received information that 56 persons would assemble behind local Shopping Complex, Madangir. A raiding party consisting of himself, Ct. Raj Kumar, Ct. sunil, Ct. Naresh, Ct. Devender and HC Vijender was organised and they immediately left for the spot along with secret information. investigating officer directed to HC Vijender to hear the conversation of the persons assembled inside the jungle. After some time, he gave signal to the raiding party and they all raided the spot and apprehended five accused persons. On inquiry, their names were found as Barkat Ali, Raju @ Rajju, Raj Kumar, Vikram and Rakesh present in the court. He also stated that from the personal search of accused Raju Sharma a buttondar knife was recovered. Desi katta and cartridges were recovered from other accused persons. IO prepared the sketch of knife recovered from accused Raju Sharma vide memo Ex.PW. PW1/A. Knife was kept in pullanda and sealed with the seal of DCS and seized vide SC No. 43/08 Page5/13 memo Ex.PW. PW1/B. The other arms recovered from other accused were also seized after preparing seketches. IO prepared rukka and sent it to police station for registration of FIR through Ct. Naresh. After registration of the FIR the investigation was marked to SI Nirbhay Kumar. investigating officer came to the spot and arrested all the accused personsl. Personal search of accused Raj Kumar was conducted vide memo Ex.PW1/C. This witness also identified the knife recovered from accused Raju Sharma as Ex.PWP3.
PW2 ASI Dalip Singh is duty officer who proved the copy of the FIR Ex.PW 2/A. PW3 is Ct. Raj Kumar who corroborated with the statement of PW. In addition, he stated that investigating officer took the search of accused Vikram and found a buttondar knife from his possession. IO prepared the sketch of knife recovered from accused vide memo Ex.PW 3/A. The knife was kept in pullanda sealed with the seal of DCS and was seized vide memo Ex.PW 3/B. This witness identified the buttondar knife recovered from accused Vikran as Ex.P1.
PW4 is Ct. Naresh Kumar who corroborated with the statement of PW1 and PW2 but this witness was only partly examined in chief, his further examination was deferred as case property has not been received from FSL, so thereafter, this witness was not recalled for further SC No. 43/08 Page6/13 examination and crossexamination despite opportunity.
PW5 is HC Vijender who corroborated with the statement of PW1 and PW2. In addition, he also stated that he apprehended accused Rakesh then present in the court and a bag was found in his hand. He opened the bag and found a torch, petchkas and rope inside it. IO seized the same vide memo Ex.PW 5/A. He identified the petchkas, oe torch and one rassi (rope) recovered from accused Rakesh as Ex.P1 (collectively).
PW6 is Ct. Jagmohan who recorded DD NO. 21 as per the information of SI Dinesh Chander ad has proved the copy of the same as Ex.PW6/A. PW7 is Ct. Sunil Kumar who corroborated with the statement of PW1,PW3 and PW5. He also stated that from the personal search of accused Raj Kumar desi katta and two live cartridges were found and IO prepared the sketch of the desi katta and cartridges vide memo Ex.PW 7/A, kept it in a pullanda, sealed it with the seal of BCS and seized it vide memo Ex.PW 7/B. The personal search of accused Raj Kumar was conducted vide memo Ex.PW 7/C. This witness identified one desi katta, one live cartridge and one fire cartridge alive. The katta and cartridges were recovered from accused Raj Kumar. The desi katta is identified by him Ex.PW 7/1 and cartridges Ex.PW 7/P2 and Ex.PW 7/P3.
PW8 is SI Nirbhay Kumar who stated that on 30.11.2006 SC No. 43/08 Page7/13 investigation of the case was marked to him after registration of the case. During investigation of the case he arrested accused persons and their personal searches were conducted by him vide memo Ex.PW1/C, Ex. PW3/C, Ex.PW4/C, Ex.PW5/C and Ex. PW7/C. He proved the site plan prepared at the instance of SI Dinesh Chander as Ex.PW8/A. The FSL report is proved by him as Ex.PX.
PLEA AND DEFENCE OF ACCUSED In the statement under Section 313 Cr.PC, accused Vikram has either denied or has feigned his ignorance about the incriminating evidence emerging from prosecution evidence put to them. He has stated that it is a false case against him and witnesses have deposed falsely and are interested witnesses. He stated that he was innocent. He did not lead any evidence in defence.
ARGUMENTS AND FINDINGS Ld. Additional Public Prosecutor for the State has argued that the prosecution witnesses have supported the prosecution case by their corroborated version. They have proved the charges against accused persons, so all the accused persons are liable to be convicted for the charges.
Ld. Counsel for accused persons has argued that the first SC No. 43/08 Page8/13 investigating officer SI Dinesh Chander was not examined by the prosecution. There was no light at the spot as per statement of PW3 in the cross examination then how writing work was done at the spot, is not explained. It is argued that the second investigating officer PW8 has not shown boundary wall in the site plan Ex.PW8/A. It is also argued that only SI Dinesh Chander had arm in his possession and other police officials of raiding party did not have any arm except danda, so it is not worth believing in that they had raided the spot and arrested accused persons who were alleged to have been in possession of the deadly arms. It is also argued that the PW4 did not turn up for further examination in chief and cross examination and there are other contradictions in the statement of witnesses, so accused persons are entitled to be acquitted.
I have heard the Ld. Addl. PP for the State and Ld. Counsel for accused persons and has gone through the record of the case carefully.
In this case, certain facts need to be detailed first before appreciating the evidence. Accused Vikram was earlier declared proclaimed offender on 06.07.2009 and the evidence recorded in the case would obviously be treated against accused Vikram under Section 299 Cr.PC. PW3 has proved that buttandar knife was recovered from the possession of the accused Vikram vide memo Ex.PW3/B. He also proved the sketch of the said buttandar knife as Ex.PW3/A. Therefore, charge SC No. 43/08 Page9/13 under Section 25 of Indian Arms Act is proved by the prosecution against accused Vikram.
As regards, the offences under Section 399/402 IPC there is complete corroboration between the statement of PW1 Ct. Davender, PW3 Ct. Raj Kumar and PW5 HC Vijender Singh as to the date, time and place of the alleged two offences and assembly of the accused persons behind Local Shopping Centre in the jungle in Madangir and the arrest of accused persons by the raiding party under the leadership of SI Dinesh Chander.
PW4 was only examined in chief and his further examination in chief was deferred as the case property had not been received by 13.07.2007 from FSL and this witness was not produced and due to this reason accused persons were deprived of cross examination of PW4 so examination in chief of PW4 cannot be read in evidence and is liable to be discarded. But this factor does not help the accused persons much to discredit prosecution case as on particular number of witnesses is required to prove a particular fact in the light of Section 134 of Indian Evidence Act.
As regards, the arguments on behalf of Ld. Counsel for accused persons that boundary wall was not shown in the site plan. The leagal position is that the discrepancy in the site plan does not affect the prosecution case. In Surinder Singh Vs. State of UP, AIR 2003 SC 3811, 2003(10) SCC 26 it was held :
SC No. 43/08 Page10/13
"Merely because name of PW2 did not appear at the site plan that does not render his presence at the place of occurrence improbable. As was held in Girish Yadav and others Vs. State of Madhya Pradesh (JT 1996(3) SC 615), the site plan is prepared on hearsay and is not to be read as evidence. Even, otherwise, explanation has been given as to why the position from where PW2 claimed to have been seen the occurrence was not noted in the site plan. The High Court has noticed this factor and in our view rightly."
In Anil Vs. State of Haryana 2007(3) RCR (Criminal) 222(SC), 2007(3) RAJ 291, 2007(7) Cr. LJ 4294 (SC), it was held :
"The site plan showed the material particulars. The place where the complainant was being assaulted has clearly been stated in the First Information Report as also in his deposition by Rajpal. Almesh admittedly was inside the house.
We, therefore, do not see any reason to through out the prosecution case only on the ground that in the site plan the investigating officer had failed to pinpoint SC No. 43/08 Page11/13 the place where the witnesses were standing at the time of occurrence."
Therefore, the fact that boundary wall is not shown in site plan has no adverse effect on prosecution case. The other arguments on behalf of Ld. Counsel for accused Vikram that the writing work was not done at the time of arrest of accused persons which is stated by PW3 in the cross examination is not in itself important fact to discredit prosecution case particularly when the torch was recovered from one of the accused persons Rakesh and the IO has not specifically asked that it was not possible for him to do the writing work in the dark on that day. As regards, non examination of first IO, due to this reason alone the prosecution case cannot be discarded since three material witnesses PW1, PW3 and PW5 have by corroborated version proved the prosecution case as to charges under Sections 399/402 IPC. The nonexamination of the IO does not affect the prosecution case adversely when the defence has not been prejudiced by it and when no contradiction has been taken by the defence from the eyewitnesses visavis their statements in court and the statements made by them before the IO during investigation of the case {See Hari Singh & Ors. Vs. State of Bihar (1999) Cr. LJ 3921 (Pat) (DB); Bahadur Nayak Vs. State of Bihar (2000) Cr. LJ 2466 (SC)}. SC No. 43/08 Page12/13
The minor contradictions between the statements of eye witnesses as pointed out by Ld. Counsel for accused Vikram are not sufficient to create any dent in the prosecution case to create any reasonable doubt in its case. Further the co accused persons have already been found guilty for the offences under Sections 399/402 IPC by my judgment dated 26/10/09 and are already sentenced by subsequent order dated 31/10/09.
RESULT OF THE CASE In view of the above, I hold that the prosecution has been able to prove its case against accused Vikram for the charges under Sections 399/402 IPC. Thereafter, accused Vikram is convicted under Sections 399/402 IPC and under Section 25 Indian Arms Act, 1959. Let he be heard on the question of sentence.
Announced in the open court on 13/04/2010 ( S.K. SARVARIA ) Additional Sessions Judge01/South Patiala House Court/New Delhi SC No. 43/08 Page13/13 IN THE COURT OF SHRI S.K. SARVARIA ADDITIONAL SESSION JUDGE01 SOUTH PATIALA HOUSE COURTS/New Delhi Session Case No. 43/08 State Versus Vikram S/o Ram Charan R/o. OII/293, Madangir,New Delhi FIR NO. 868/06 Police Station Ambedkar Nagar Under Section 399/402 IPC ORDER ON POINT OF SENTENCE Vide my judgment dated 26/10/09 convict/accused Vikram was convicted for the offences charged under Section 399/ 402 IPC. He is also convicted for the offence under Section 25 Indian Arms Act.
Learned Additional Public Prosecutor has argued for deterrent punishment to the convict/accused Vikram in view of the nature of the charge proved against convict/accused.
Learned Counsel for the accused/convict Vikram states that he is sole bread earner of his family and has already remained in custody for more than 11 months so lenient view be taken against him.
Keeping in view over all facts and circumstances and the SC No. 43/08 Page14/13 submissions, I sentence the convict Vikram under Section 399/402 IPC and 25 of Indiam Arms Act to undergo Rigorous Imprisonment for 11 months each. In addition he shall also pay fine of 100/ each for each offence. In default of payment of fine, convict Vikram shall undergo Simple Imprisonment for 10 days each offence.
The sentence of imprisonment awarded to the convict/accused Vikram for substantive sentences of imprisonment for offences under Sections 399/402 IPC and 25 of Indian Arms Act shall run concurrently.
The period of detention already undergone by the convict/accused Vikram during investigation and trial of this case shall be set off against his term of imprisonment imposed against him by this order, as provided u/s 428 Cr.P.C. The order be sent to server (www.delhidistrictcourts.nic.in).
Copy of judgment and copy of order on sentence be supplied to the accused/convict Vikram free of cost. File be consigned to record room.
Announced in the open court on 13.04.2010 (S.K.Sarvaria) Additional Sessions Judge01/South Patiala House Court/New Delhi SC No. 43/08 Page15/13 SC No. 43/08 Page16/13