Delhi District Court
State vs (1) Mukesh @ Matka, on 21 July, 2008
IN THE COURT OF SMT. PRATIBHA RANI,
ADDL. SESSIONS JUDGE, TIS HAZARI COURTS,
DELHI
SC No.30/07
State Vs (1) Mukesh @ Matka,
S/o Sh. Dharam Singh,
R/o B-431, Pandav Nagar,
Shadipur Depot, Delhi.
(2) Raj Kumar,
S/o Sh. Sohan Singh,
R/o 5/6, Double Storey
Quarter, Tank Road,
Karol Bagh, New Delhi.
(3) Rajinder @ Raju,
S/o Sh. Bhanwar Lal,
R/o A-368, Pandav Nagar,
Shadipur Depot, Delhi.
(4) Rajesh Kumar,
S/o Sh. Paras Ram,
R/o A-340, Pandav Nagar,
Shadipur Depot, Delhi.
FIR No.145/04
U/s 392/394/397/411 IPC
PS : Rajinder Nagar
Date of Institution : 10.8.04
Arguments heard on : 19.7.08
Order pronounced on : 19.7.08
***
JUDGMENT
The case FIR no.145/04 was registered on the basis of endorsement of DD No.16-A. The case of the prosecution is that on 14.6.2004 at 11.12 am, information was received from HC 1 Suresh No.1310/PCR that at Rajindera Park, Shankar Road near Fire Station, a person has been stabbed and his bag has been snatched which was endorsed to SI Vishal who alongwith Ct. Ranvir left for the spot. After reaching the spot, SI Vishal made endorsement that he found that the injured had already been removed to hospital. After leaving Ct. Sanjeev to guard the spot, he reached RML Hospital and obtained the MLC of injured Sanjay Kumar on which the Doctor declared the patient unfit for statement and he was found admitted with alleged history of assault with some sharp object. Case under Sec.324 IPC was registered on the basis of this endorsement. At that time, no eye witness could be found, hence blood samples were lifted from the spot and it was also got photographed. Subsequently one person namely Raja Ram Shyam Rao Ghosle, resident of Karol Bagh claimed himself to be an eye witness and informed the IO that four boys aged about 20-25 years had caused injuries to that person and snatched his bag and that he chased them but they managed to escape. At the instance of eye witness, IO prepared the site plan and during investigation, at the instance of eye witness, accused Raj Kumar and Rajinder were apprehended and the robbed mobile and the bag were recovered at their instance. Subsequently accused Rajesh Kumar was also arrested on the basis of secret information and at the instance Rajesh, robbed 2 machine was recovered. Accused Mukesh @ Matka remained untraced at that time hence chargesheet was filed against accused Raj Kumar, Rajinder and Rajesh. Subsequently accused Mukesh was also arrested and supplementary chargesheet was filed against him on 13.10.2004 and thereafter after complying the requirement of Sec.207 CrPC, case was committed to the Court of Sessions.
2. After hearing on the point of charge, accused Mukesh @ Matka was charged for the offence punishable under Sec.397 read with Sec.392 IPC and under Sec.25/54/59 Arms Act, accused Rajesh, Rajinder and Raj Kumar were also charged for the offence punishable under Sec.392 read with Sec.394/34 IPC and also for the offence punishable under Sec.411 IPC. All the accused persons pleaded not guilty to the above charges and claimed trial.
3. Prosecution has examined 12 witnesses in all in support of its case. Accused persons have also been examined under Sec.313 CrPC in which they denied the case of the prosecution. Accused persons have stated that they have been lifted from their house/shop by the police on the pretext of making some inquiry and falsely implicated in this case and that nothing was recovered from them. Accused Rajesh has produced Sh. Goverdhan Dass as DW-1 in his defence. 3
4. I have heard Sh. S.C. Sharma, ld. Addl. PP for the State and ld. Counsels for the accused persons and carefully gone through the record.
5. PW2 is Sh. Sanjay Kumar Jaiswal, the injured/victim. H e has deposed that on 14.6.2004 it was Monday and at about 11.00 am he came out from PNB, Main road, New Rajinder Nagar and when he was crossing the road, two persons caught him by neck and shut his mouth and their one associate gave knife blow to him and another one took away his bag which he was carrying on his right shoulder, one Panasonic mobile and cash of Rs.5,000/- from his shirt pocket. His bag contained vaccum cleaner, computer ribbon and a duster. He tried to catch them but they managed to flee. He has further stated that all the four accused persons are the same who committed this robbery and identified accused Rajinder who first caught him and removed Rs.5,000/- from his pocket, accused Rajesh who caught him from the back and removed his Panasonic mobile, accused Raj Kumar who caught him from the neck and took away his bag and accused Mukesh who gave him the knife blow. He has further stated that due to the injuries he fell down on the road. Some public persons stopped there and after inquiring about the incident, informed PCR. He was removed to hospital by PCR. Local police also reached RML Hospital and recorded his 4 statement. He has further stated that on 13.7.2004 he identified accused Raj Kumar and Rajinder while they were boarding Government vehicle when they were brought from inside Tihar Jail and at that time accused persons threatened him. Again he was called to Tihar jail to identify some accused but he could not identify them before Magistrate as the accused persons have threatened to kill him if he identify them and then after about 5-6 days he identified those persons in the presence of IO when they came to the Court. He has further stated that he identified his bag, vaccum cleaner and the mobile before the Magistrate. He has further stated that accused Rajesh could not be identified by him during TIP on 4.8.2004 due to confusion as he pointed out him to be standing on the right side at number '7' but stated that on left side and when he was coming out he identified accused Rajesh again when he (accused) was being taken out from the proceedings. He has further stated that on 9.8.2004 he went to Rajinder Nagar and on coming to know that IO had gone to Tis Hazari Court where accused Matka was to be produced, he identified accused Matka @ Mukesh. He has further stated that he again came to the Court on 13.9.2004 where some accused were also produced and sent to Judicial Custody and he also returned home as by that time he had identified all the accused and his statement to that effect was recorded. He has identified 5 the TIP proceedings in respect of accused Rajesh Kumar as Ex.PW2/A and in respect of mobile phone as Ex.PW2/B bearing his signature at point A. As this witness did not fully support the case of prosecution he has been cross examined by the ld. Addl.PP and when the case of prosecution has been put in leading form to him, he has admitted the same to be correct. He has also identified black colour bag Ex.P1 containing job cards collectively exhibited as Ex.P2, black colour ribbon Ex.P3, small ribbon Ex.P4, mobile phone make Motorola as Ex.P5 and thereafter he again said that his phone was Panasonic and identified another Panasonic mobile phone as Ex.P6 and vaccum cleaner Ex.P7 to be the same which were robbed on the day of occurrence. During cross examination by ld. Defence counsel he has denied the suggestion that accused persons were shown to him prior to producing them for TIP. He has also stated that his statement was recorded by the police only once at the hospital wherein he mentioned only about accused Rajinder. He was confronted with statement Ex.PW2/DA2 where name of accused Rajinder was not mentioned. He has also denied the suggestion that he could not identify accused Rajesh during TIP and further in a statement Ex.PW2/DA3 to DA5 he has no where mentioned about any threat being given by the accused persons. Regarding Rs.5,000/- h e has stated that it was already with him. In cross 6 examination he has also admitted that accused persons were shown to him after 10-15 days of the occurrence. He has also stated that he identified accused Rajinder during TIP and denied the suggestion that he did not identify the accused Rajinder in TIP proceedings.
6. PW4 Sh. Raja Ram Shyam Rao Bhosle has been examined as an eye witness. He has stated that at the time of occurrence he was residing in Delhi and running a office of business of gold jewellery. On 16.6.2004 when he was coming from Raghubir Nagar via Shankar Road and alighted from the bus, he was going on foot on Shankar Road. When he reached near Fire Station at about 10.50 or 11.00 am he saw 2-4 persons beating one person and those persons appeared to be accused persons present in the Court but he could not say the same with certainty. Those four boys stabbed with knife also and he (PW4) went away. He has stated that he had seen the occurrence from a distance of 40-50 ft. After about two hours he returned to the spot. Police was present there and he told them that he had witnessed the occurrence and he could identify the persons involved in the occurrence. PW4 has further stated that on 22.6.2004 while he was passing through the same road he saw that two boys out of the four boys involved in the occurrence were present near Tikona park, Rajinder Nagar and at some 7 distance he also met SI Vishal alongwith Constable to whom he gave the information and also pointed out those two boys standing there. Their names might be Raj Kumar and Rajinder but he cannot identify them due to lapse of time. Both the accused persons were interrogated and his signatures were also obtained on those proceedings. They also disclosed about their other two associates. Thereafter he was also called at Tihar jail but he could not identify those persons. As this witness did not fully support the case of prosecution he was also cross examined by ld. Addl. PP to extract some support to the case of prosecution and when suggested by ld. Addl. PP, he agreed to the suggestion that he later on realised that some wrong has been done and that he was carrying gold jewellery also so he again reached the spot and told about the occurrence to the police. He has further admitted as correct that on seeing accused Raj Kumar and Rajinder he tried to make a call to the police and when he was trying to make a call, he met SI Vishan an d Constable who organised a raiding party and apprehended accused Raj Kumar and Rajinder. He has also admitted that during TIP he could not identify accused persons but identified before the IO. He has also admitted it to be correct that after the incident he firstly hesitated and thereafter he tried to chase the boys involved and he also raised alarm. During cross examination by ld. Defence 8 counsel he has admitted that from the spot he went to his office and did not make any call to the police. He has stated that when he raised alarm, 20-25 persons gathered at the spot. He could not tell the bus number, route number in which he reached the spot or whether it was a DTC bus or a blue line bus. He has denied the suggestion that he is a planted witness.
7. PW5 Ms. Archna Sinha, MM has proved the TIP proceedings in respect of accused Rajinder and Raj Kumar which are Ex.PW4/A and B and Ex.PW4/C and D respectively conducted on the applications Ex.PW4/E and F moved by the IO and during the TIP proceedings, these two accused persons refused to take part in TIP as they have been shown to the witnesses. Accused Rajesh has not been identified during TIP proceedings conducted on 21.8.2004. He has also proved the TIP proceedings in respect of accused Matka @ Mukesh as Ex.PW4/G who also refused to take part in TIP.
8. PW-10 Sh. S.K. Gautam, Metropolitan Magistrate has conducted the TIP in respect of the recovered mobile and proved the application for conducting TIP as Ex.PW10/A, TIP proceedings as Ex.PW2/B and certificate issued by him regarding correctness of the TIP proceedings as Ex.PW10/B.
9. PW1 HC Ballu Ram Meena has deposed that on 14.6.2004 while he as working as Duty Officer, on the basis of 9 rukka sent by SI Vishal through Ct. Sanjeev Kumar, he recorded FIR No.145/04 under Section 324 IPC and thereafter handed over the rukka and copy of FIR to Ct. Sanjeev with further direction to give the same to SI Vishal. He has proved the copy of FIR as Ex.PW1/A.
10. PW6 HC Ballu Ram (he has also been examined as PW1 on 28.8.2006) when appeared in the Court on 12.3.2007 has stated that on 19.7.2004 when he was on bus checking duty with SI Vishal and Ct. Ranvir at T-point Shankar Road, at about 8.00 pm one maruti car, the number of which he did not remember, came and one boy on the driving seat was apprehended on seeing his suspicious activities. His name was revealed as Mukesh. He was interrogated and his disclosure statement was recorded wherein he admitted his involvement in this occurrence and also got recovered one knife from his house vide recovery memo Ex.PW6/A. As this witness did not support the case of prosecution, he was declared hostile. When this witness appeared on 23.11.2007 he has proved the relevant entries in the malkhana register No.19 as Ex.PW6/F (collectively). He has also identified the knife Ex.P1 to be the same which was got recovered by accused Mukesh @ Matka.
11. PW-7 HC Suresh Chand was posted at PCR and on receipt of call at 11.05 am, he flashed the same to 10 Communication which was further forwarded to the concerned Police Station.
12. PW-8 Ct. Vijender was with IO when on the basis of secret information, accused Rajesh was arrested on 22.7.2004 at 8.45 pm from Inderpuri and on the basis of disclosure made by him one white machine alongwith some wires were recovered from his house vide memo Ex.PW8/D and he also pointed out the house of accused Mukesh but it was found locked.
13. PW-12 Sh. Jaswant Singh, Record Clerk, RML Hospital has proved the MLC of injured Sanjay Kumar as Ex.PW12/A and stated that Dr. Sanjay Kujur, who prepared the MLC Ex.PW12/A, has left the services of the hospital and he identified the signature of Dr. Sanjay Kujur on the MLC at point- B.
14. PW-11 SI Ashok Kumar, Incharge Crime Team reached the spot i.e. Rajindera Park, Shankar road, Rajinder Nagar on the request of IO and inspected the site and prepared the detailed report which is Ex.PW11/A. He also lifted three blood samples and three samples of earth control and handed over the same to IO.
15. PW3 Ct. Pramod Singh was with the IO SI Vishal on 22.6.2004.
16. PW-9 SI Vishal Khanwalkar is the IO of this case. He 11 has stated that on 14.6.2004 on receipt of copy of DD no.16-A Ex.PW9/A regarding this occurrence, he reached the spot i.e. in front of Fire Station, Rajinder Park, Shankar Road where he came to know that injured had already been removed to the hospital. He left Ct. Sanjeev at the spot and reached RML Hospital and collected the MLC of injured Sanjay Kumar on which the injured was opined as 'unfit for statement'. Thereafter he came back to the spot and as no eye witness was available at the spot, on the basis of MLC, he made his endorsement Ex.PW9/B on the copy of the said DD and handed over the same to Ct. Sanjeev who got registered the case in the PS vide FIR No.145/04 Ex.PW1/A. PW-9 SI Vishal has further stated that one Raja Ram came to the spot who claimed himself to be an eye witness, he recorded the statement of Raja Ram and on his pointing out, prepared the site plan Ex.PW9/C. He also lifted the blood sample and kept in pullanda and seized vide memo Ex.PW9/D and also made efforts to trace out the accused persons. He has further stated that on 22.6.2004 when he alongwith Ct. Pramod was on patrolling duty in the area, eye witness Raja Ram met them in the market Bada Bazar at about 4.00 pm and told that two persons involved in this occurrence were present near Tikona Park, Rajinder Nagar and he alongwith Ct. Pramod and eye witness reached Tikona Park, Ganga Ram 12 Road where accused Rajinder and Raj Kumar were arrested and interrogated. He prepared their arrest memos Ex.PW3/C and PW3/D and their personal search memos Ex.PW3/E and F. Both the accused persons also made disclosure statements which are Ex.PW3/A and B. PW-9 SI Vishal has further stated that during interrogation, accused Rajinder disclosed that the robbed mobile was with him and he got recovered one mobile Make- Panasonic (silver grey colour) from his house which was kept on the fridge. The said mobile was taken into possession vide memo Ex.PW3/G. As per disclosure statement, accused Raj Kumar also got recovered a black colour bag from his which was kept under the bed. The said bag was found containing job cards, one packet containing eight small packets and one another packet was also there. All these articles were kept in the same bag and a pullanda was prepared which was sealed and seized vide memo Ex.PW3/H. He has further stated that the accused persons were directed to keep their faces muffled. Both the accused persons also pointed out the place of occurrence vide pointing out memos Ex.PW9/E and F.
17. PW-9 SI Vishal has further stated that on 22.7.2004 he also apprehended accused Rajesh Kumar, present in the Court today, from near the gole chambery on the basis of the secret information. Accused Rajesh was arrested vide arrest memo 13 Ex.PW8/A and his personal search was conducted vide memo Ex.PW8/B. Accused Rajesh was also interrogated and he made disclosure statement Ex.PW8/C and got recovered one machine (computer cleaning machine) from his house. Some other articles were also with the said machine which were kept in the pullanda and sealed and thereafter taken into possession vide memo Ex.PW8/D. Accused Rajesh was also directed to keep his face muffled.
18. PW-9 SI Vishal has stated that on 19.8.2004 he alongwith HC Mool Chand, HC Balu Ram and Ct. Randhir was on vehicle checking duty at Shankar Road near T-Point. One person came in a Maruti Car, which was not having any number plate and on seeing the police checking, he started running after coming out from the car. On suspicion, he was apprehended and interrogated in which he disclosed that the said maruti car was stolen by him from the area of Karol Bagh. The thumb of one hand of that person was cut and as the person involved in this occurrence was described with the same description, he further interrogated him and on inquiry he disclosed his name Mukesh, and he also disclosed about his involvement in this occurrence. That person also disclosed that he had caused injury to the victim in this case with a knife. PW-9 has further stated that accused Mukesh was arrested vide arrest memo Ex.PW6/D and his 14 personal search was conducted vide memo Ex.PW6/E. Accused Mukesh was also interrogated and he made disclosure statement Ex.PW9/G and in pursuance to that disclosure statement, accused led the police party to House no.68, TC Camp, Pandav Nagar, Patel Nagar. Efforts were made to join the public persons including landlady of the accused known as 'Chachi' but none agreed. The accused led the police party to the first floor and picked up the key from a 'Aala' type place above the door and opened the lock of his room and produced one buttondar knife which was kept under a mattress. This witness has further deposed that he prepared the sketch Ex.PW6/B of the knife and kept the same in pullanda and sealed with the seal of VK and seized vide memo Ex.PW6/A. Seal after use was handed over to HC Mool Chand. This witness has identified one black colour bag, job cards, one ribbon of black colour, one packet of small ribbons as Ex.P1 to P4. He has also identified one mobile make Panasonic as Ex.P6 and the knife as Ex.P1.
19. On behalf of State, Sh. S.C. Sharma, ld. Addl. PP has contended that all the four accused persons have been identified in the Court by the victim as well as the eye witness i.e. PW-4 Sh. Raja Ram Shyam Rao Bhosle to be the same like the persons who committed the robbery and caused injuries to Sanjay. It has been further contended that one buttondar knife has been 15 recovered from the possession of accused Mukesh and the robbed articles including the mobile phone of the injured i.e. PW-2 Sh. Sanjay Kumar Jaiswal has been recovered from the remaining accused persons, hence evidence on record is sufficient to base the conviction of the accused persons for the offences they have been charged.
20. On behalf of accused persons, it has been contended that initially the case was registered under Sec.324 IPC and at that time no incident of robbery was incorporated in the FIR. It has been further contended that presence of the alleged eye witness i.e. PW-4 Sh. Raja Ram Shyam Rao Bhosle at that time of incident is highly doubtful and his conduct throughout the investigation is sufficient to establish that he is a planted witness just for the purpose to seek the conviction of the accused persons. Ld. Defence counsel has further contended that accused Rajesh could not be identified by the victim as well as the alleged eye witness i.e. PW-4 Sh. Raja Ram Shyam Rao Bhosle during TIP conducted at Tihar Jail and it has come in the statement of the victim as well as the eye witness that they had been shown the remaining three accused persons by the police and it was only due to this reason that the other accused persons refused to take part in TIP as they have been shown to the injured i.e. PW-2 Sh. Sanjay Kumar Jaiswal as well as the 16 alleged eye witness i.e. PW-4 Sh. Raja Ram Shyam Rao Bhosle and they were justified in doing so. It has been further contended that even while making statement before the Court, PW-4 Sh. Raja Ram Shyam Rao Bhosle was not certain abut the identity of the accused persons to be the same who were involved in this occurrence. Ld. Defence counsel has contended that in the given circumstances, when the identity of none of the accused persons has been proved and presence of eye witness i.e. PW-4 Sh. Raja Ram Shyam Rao Bhosle at the time of occurrence, at the time when accused Rajinder and Raj Kumar were arrested by the police and recovery effected is sufficient to disbelieve their testimony and acquit the accused persons.
21. I have considered the rival contentions and carefully gone through the testimony of the injured i.e. PW-2 Sh. Sanjay Kumar Jaiswal and eye witness i.e. PW-4 Sh. Raja Ram Shyam Rao Bhosle. First of all, so far as FIR is concerned, it was registered only under Sec.324 IPC and not for commission of robbery using deadly weapons. Further when the IO visited the hospital, PW-2 Sh. Sanjay Kumar Jaiswal, the injured was unfit for statement and IO could not find any eye witness at the spot or at the hospital. In the circumstances, statement of PW-4 Sh. Raja Ram Shyam Rao Bhosle, the eye witness, which was recorded at a later stage, becomes very important to find out how 17 far this witness cane be relied upon to prove the prosecution case.
22. First of all, PW-4 Sh. Raja Ram Shyam Rao Bhosle has stated that he saw 2-4 persons giving beating to another person from a distance of 50/60 feet, it is nowhere the case of the victim PW-2 Sh. Sanjay Kumar Jaiswal that he was given beating by the offenders before committing the robbery. Further as per PW-4 Sh. Raja Ram Shyam Rao Bhosle, he returned to spot after about two hours and found the police present there but rukka does not find mention of presence of PW-4 at that time. During his cross examination by ld. Addl. PP for the State, he has admitted all the suggestions given by ld. Addl. PP that he chased the offenders and raised alarm and subsequently he went to the shop apprehending injury to himself and then realising that he has committed a wrong, he again returned to the spot and informed the police about the occurrence or that subsequently on 22.6.2004 at his instance, accused Rajinder and Raj Kumar were apprehended after he informed SI Vishal and Ct. Pramod about their presence at Tikona Park or that he could not identify the accused persons as they were staring at him during TIP. During his cross examination by the accused persons, PW-4 Sh. Raja Ram Shyam Rao Bhosle has stated that from the spot, he went to his office and did not make any telephonic call to the police. He 18 has further stated that 20/25 persons gathered at the spot but again took a 'U' turn by deposing that he did not raise any alarm on seeing the accused persons running. He even could not tell the bus route number, whether it was DTC bus or blue line bus via which he came to the spot and why he preferred not to inform the Police Control Room by dialing '100' though as per him, he has been residing in Delhi since 1995 and carrying on business of Goldsmith at Bedon Pura, Karol Bagh. PW-2 Sh. Sanjay Kumar Jaiswal who took part in TIP of accused Rajesh also could not identify him before Magistrate and it has also come in his statement that other accused persons were shown to him by the police, hence his identification of the accused persons before the Court is of no evidenciary value. Even the injured PW-2 Sh. Sanjay Kumar Jaiswal did not talk about the presence of PW-4 Sh. Raja Ram Shyam Rao Bhosle at the time of occurrence to be the person who tried to help him either medically by taking him to some hospital or otherwise making any effort to attract the attention of other passers-by to catch the offenders or chased himself. In the circumstances, I am of the opinion that so far as charge for the offence punishable under Sec.392/394/397 IPC is concerned, it does not stand proved against any of the accused persons beyond reasonable doubt.
23. So far as charge for the offence punishable under 19 Sec.411 IPC against accused Raj Kumar, Rajinder and Rajesh Kumar is concerned, the accused Raj Kumar was found in possession of one black bag containing 56 job cards, one black colour packet containing refills, a polythene containing eight small blue colour packets of Smart New Arrival Range of Refills and these articles were recovered in the presence of PW-8 Ct. Vijender and PW-9 SI Vishal. Accused Raj Kumar had failed to explain how he came into possession of above said articles.
24. Accused Rajinder was found in possession of one silver grey colour mobile phone make Panasonic which has been identified by the victim PW-2 Sh. Sanjay Kumar Jaiswal during TIP before Sh. S.K. Gautam, MM (PW-10) and this recovery was effected in the presence of PW-3 Ct. Pramod and PW-9 SI Vishal. Accused Rajinder has also failed to explain how he came into possession of the said mobile phone which did not belong to him.
25. So far as accused Rajesh Kumar is concerned, he was found in possession of white machine (computer cleaning machine), black wire, three plastic pipes and plastic brush which he got recovered from his house which were kept in a room in the iron bed and this recovery was effected on 22.7.2004 in the presence of PW-8 Ct. Vijender and PW-9 SI Vishal. The machine and other articles were also identified by the victim 20 PW-2 Sh. Sanjay Kumar Jaiswal to be the same machine which belong to him. It is nowhere the case of accused Rajesh Kumar he also carries on the business identical to that of the victim. He has also failed to explain his possession or any proof of ownership of the above said machine and other articles.
26. As these three accused persons i.e. accused Raj Kumar, Rajinder and Rajesh have failed to explain about their possession of the above said articles which the victim Sanjay Kumar Jaiswal has identified to be belonging to him and robbed on the day of incident, in the circumstances, the only inference that can be drawn against them is that either they are thieves or receiver of stolen property. Merely because no independent witness was found at the time of recovery of above articles i.e. one black bag containing 56 job cards, one black colour packet containing refills, a polythene containing eight small blue colour packets of Smart New Arrival Range of Refills from accused Raj Kumar, one silver grey colour mobile phone make Panasonic from accused Rajinder and white machine (computer cleaning machine), black wire, three plastic pipes and plastic brush from accused Rajesh Kumar, is no ground to disbelieve the testimony of PW-3 Ct. Pramod, PW-8 Ct. Vijender and PW-9 SI Vishal as these articles could not have been planted by the police on the accused persons and the victim Sh. Sanjay Kumar Jaiswal was 21 also not having any enmity against any of the accused persons so as to wrongly identify the articles which did not belong to him to falsely implicate the accused persons. The statement of PW-3 Ct. Pramod, PW-8 Ct. Vijender and PW-9 SI Vishal is sufficient to prove the recovery of one black bag containing 56 job cards, one black colour packet containing refills, a polythene containing eight small blue colour packets of Smart New Arrival Range of Refills from accused Raj Kumar, one silver grey colour mobile phone make Panasonic from accused Rajinder and white machine (computer cleaning machine), black wire, three plastic pipes and plastic brush from accused Rajesh Kumar, hence accused Raj Kumar, Rajinder and Rajesh Kumar are held guilty for the offence punishable under Sec. 411 IPC.
27. So far as accused Mukesh @ Matka is concerned, he was arrested on 20.8.2004 and prior to that recovery of the robbed articles except the cash had already been effected. From accused Mukesh, one buttondar knife was recovered by the police. Although there is no medical opinion on record that the knife recovered from accused Mukesh was used to cause injuries to the victim nor I find that this knife was produced before the doctor to seek his opinion whether the injuries received by PW-2 Sh. Sanjay Kumar Jaiswal were caused with this knife but taking into consideration that he has also been charged for the offence 22 punishable under Sec.25 Arms Act for being found in illegal and unlawful possession of one buttondar knife, recovery of which stands proved from the statement of PW-6 HC Ballu Ram and PW-9 SI Vishal, accused Mukesh @ Matka is held guilty for the offence punishable under Sec.25 Arms Act.
28. In view of the discussion, all the accused persons namely Mukesh @ Matka, Raj Kumar, Rajinder and Rajesh Kumar are acquitted of the charge punishable under Sec.392/394/397 IPC. The accused Mukesh @ Matka is held guilty for the offence punishable under Sec.25 Arms Act and accused Raj Kumar, Rajinder and Rajesh Kumar are held guilty for the offence punishable under Sec.411 IPC and convicted accordingly.
Announced in the open Court 19.7.2008 ( PRATIBHA RANI ) Addl. Sessions Judge/Delhi 23 IN THE COURT OF SMT. PRATIBHA RANI, ADDL. SESSIONS JUDGE, TIS HAZARI COURTS, DELHI SC No.30/07 State Vs (1) Mukesh @ Matka, S/o Sh. Dharam Singh, R/o B-431, Pandav Nagar, Shadipur Depot, Delhi.
(2) Raj Kumar, S/o Sh. Sohan Singh, R/o 5/6, Double Storey Quarter, Tank Road, Karol Bagh, New Delhi.
(3) Rajinder @ Raju, S/o Sh. Bhanwar Lal, R/o A-368, Pandav Nagar, Shadipur Depot, Delhi.
(4) Rajesh Kumar, S/o Sh. Paras Ram, R/o A-340, Pandav Nagar, Shadipur Depot, Delhi.
FIR No.145/04 U/s 392/394/397/411 IPC PS : Rajinder Nagar Arguments heard on : 21.7.08 Order pronounced on : 21.7.08 *** ORDER ON SENTENCE I have heard the convicts and their respective counsels on the point of sentence. Sh. S.C. Sharma, Addl. PP for the State has also made submissions.
24
2. On behalf of convict Mukesh, it has been submitted that apart from this case, he is involved in one another case and as per prosecution, only knife was recovered from his possession and no part of the case property was recovered from him, hence lenient view is prayed.
3. Sh. A.P. Singh, counsel for convict Raj Kumar has submitted that at the time of this occurrence he was newly wedded and thereafter got one daughter but his wife eloped with some other person and he is the only person to take car of his daughter aged about three years.
4. On behalf of convict Rajinder, his counsel Sh. Atul Kumar, Advocate has submitted that he is the first offender and in view of his young age, benefit of probation may be extended to him.
5. Sh. I.R. Singh, counsel for convict Rajesh has contended that this offender got married last year and just four days back, his wife has delivered a child and in the circumstances, he may be released on probation. He has relied upon Sanjay Vs. State 2004 (3) JCC 1536 in support of his contentions and prayed that benefit of probation may be extended in view of his conduct during trial and having no criminal antecedents.
6. I have considered the submissions made by Sh. I.R. 25 Singh, advocate of convict Rajesh. Taking into consideration the facts and circumstances of the case that convicts No.2 to 4 were found in possession of the property taken from the victim after causing injuries to him, I do not find it to be a fit case to release the convicts on probation.
6. So far as convict Mukesh is concerned, a knife was recovered from his possession at the time of his apprehension and arrest in this case, he is sentenced to undergo rigorous imprisonment for a period of six months for the offence punishable under Sec.25 Arms Act. Convicts Raj Kumar, Rajinder and Rajesh Kumar are sentenced to undergo rigorous imprisonment for a period of six months each for the offence punishable under Sec.411 IPC. The period of detention already undergone by the convicts during investigation/trial of the case, if any, shall be set off under Sec. 428 CrPC. Case property shall be returned to the rightful owner after the expiry of period of appeal, if any. File be consigned to Record Room. Announced in the open Court.
21.7.2008 ( PRATIBHA RANI ) Addl. Sessions Judge/Delhi 26