Delhi District Court
State vs Raju S/O Ram Singh, on 8 September, 2011
IN THE COURT OF MS. SANTOSH SNEHI MANN
ADDITIONAL SESSIONS JUDGE, (CENTRAL)
TIS HAZARI COURTS, DELHI
SC No. : 24/2010
FIR No. : 50/2010
U/s : 395/397 IPC
PS : ODRS
State Versus Raju S/o Ram Singh,
R/o House no. 375, Gali No. 3,
Durga Puri Chowk, Shahdara, Delhi.
Date of filing of Charge Sheet : 01.07.2010
Date of taking up matter for the first time : 01.07.2010
Date of conclusion of arguments : 08.09.2011
Date of Judgment : 08.09.2011
Sh. Rajiv Mohan, Ld. Addl. PP for the State.
Sh. B. C Jain, Advocate, Amicus Curie for the accused.
JUDGMENT:
Accused faced trial for the offences under section 395 and 397 of the Indian Penal Code (hereinafter referred as IPC) on the allegations that on 22.02.2010 at about 7.00 pm in "Kafiat Express" train on the way from Old Delhi Railway Station to Ghaziabad, he alongwith his four associates (all absconding) and FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 1 of 16 one of whom was armed with knife, robbed the passengers.
2. Brief facts:
On 22.02.2010 complainant Mohd. Shakir S/o Mehndi Hasan had boarded the general compartment of Khifayat Express train from platform no. 10 of Old Delhi Railway Station for going to Etawah. There were many other passengers in the compartment. Five persons including accused started extorting money from the passengers for occupying seats. Those who resisted or objected were physically assaulted. Complainant was also robbed of Rs. 10,000/. Accused was allegedly collecting money from the passengers and was passing over to his associates. When the train slowed down before Ghaziabad station, four offenders jumped out of the train and fled away whereas accused was apprehended by the complainant with the help of copassenger Rakesh Pandey and was handed over to the police. FIR was initially registered on the complaint of Mohd. Shakir at GRP Ghaziabad, which was later on transferred to police station Old Delhi Railway Station as the incident fell in the jurisdiction of Delhi. None of the four associates of the accused could be arrested during investigation.
FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 2 of 16
3. After completion of the investigation chargesheet was filed in the Court of Metropolitan Magistrate on 24.05.2010, who took cognizance and supplied copies to the accused. Since offences in the chargesheet were exclusively triable by the Court of Sessions, the case was committed by the Metropolitan Magistrate to the Sessions Judge after compliance of section 207 of the Code of Criminal Procedure (hereinafter referred as Cr. P. C) and it was received on assignment on 01.07.2010.
4. On the basis of material on record, prima facie offences under sections 395 and 397 IPC were found to be made out against the accused. Charge was framed accordingly to which accused pleaded not guilty and claimed trial.
5. Prosecution examined 8 witnesses in all:
PW3 SI Hare Ram Singh Yadav was posted as Senior SubInspector at GRP Ghaziabad on 24.02.2010 and at about 2.45 pm he was present at the police station when one Mohd. Shakir Hussain came to the police station and handed over a written complaint (Ex. PW2/A) alongwith the accused. According to this witness he made endorsement on the complaint at point P to P1 and FIR was registered on the basis of this complaint vide Ex. PW3/A. On the same day he recorded the DD entry, FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 3 of 16 statement of the complainant, statement of the accused vide proceedings Ex. PW3/B. According to this witness, the incident fell in the jurisdictional limits of Delhi and he submitted the report. He identified the accused in the Court as the same person who was produced before him by the complainant Mohd. Shakir Hussain.
PW5 Bhanu Prakash Sharma is the Stenographer from the Court of Additional Chief Judicial Magistrate, Ghaziabad, U. P and filed a sealed envelope containing statement of the complainant recorded under section 164 Cr. P.C. PW6 WASI Rama Saroha was working as a duty officer at PS Old Delhi Railway Station on 20.04.2010 when she received the handwritten complaint (Ex. PW2/A) from SHO Inspector Bharat Singh and registered the FIR (Ex. PW6/A). She handed over the original complaint after making endorsement on it at point Q to Q1 alongwith the copy of FIR to SI Rajender Dabas for investigation.
PW7 Ct. Banwari Lal was working as duty officer at GRP Ghaziabad on 24.02.2010, who had recorded the FIR (Ex. PW3/A) on the basis of statement of one Mohd. Shakir Hussain. According to him Mohd. Shakir had produced the FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 4 of 16 accused and he identified the accused in the Court.
PW2 Mohd. Shakir Hussain is the complainant. PW4 SI Sanjay Singh of GRP Post Sahibabad, Ghaziabad, U. P was the investigating officer when the case was registered at police station GRP Ghaziabad and PW8 SI Rajender Dabas investigated the matter when the FIR was registered at PS Old Delhi Railway Station.
PW1 Ct. Vinod Kumar had joined the investigation with PW8 SI Rajender Dabas.
6. All the incriminating evidence on record was put to the accused. He denied the incriminating evidence against him and claimed to be innocent. He claimed that on the alleged date, time and place, he had gone to Old Delhi Railway Station to seeoff his relative at Kafiat Express train but before he could get down the train, it started moving. He claimed that complainant Mohd. Shakir Hussain (PW2) got a push from him due to rush and so he (PW2) got annoyed, had a heated argument with him and implicated him falsely in the case. He admitted that he was taken off the train by the complainant and was handed over to the police at Ghaziabad where written complaint was made by PW2. He admitted that later on he was handed over to the Delhi Police. However, he did not FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 5 of 16 wish to lead any evidence in defence.
7. I have heard Mr. Rajiv Mohan, Ld. Addl. PP for the State and Mr. B. C Jain, Advocate, Amicus Curie for the accused.
8. FIR was registered on the complaint of PW2 Mohd. Shakir Hussain who was robbed in the incident. As per his deposition in the Court, he had boarded Kafiat Express from platform no. 12 at Old Delhi Railway Station on 22.02.2010 at about 7.10 pm for going to Etawah. According to him he had boarded the general compartment and as soon as the train started moving, five persons armed with knives entered the compartment and started extorting money from the passengers for occupying the seats. One of the passengers who refused to give money was slapped. PW2 was robbed of Rs. 10,000/ and a copassenger Rakesh Pandey was also robbed of a mobile phone and money. PW2 deposed that when the train slowed down near Ghaziabad, four robbers managed to escape but he was able to catch one robber, with the help of copassenger Rakesh Pandey. The witness identified the said robber as the accused in the Court, whom he handed over to the police at Ghaziabad where his statement was recorded vide Ex. PW2/A. As told by this witness, accused was collecting money and giving to his associates who FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 6 of 16 were armed with knives and were threatening the passengers. Witness expressed his anguish stating that police has not made any effort to nab the four associates of the accused.
9. Statement of PW2 Mohd. Shakir Hussain has been corroborated by PW3 SI Hare Ram Singh Yadav and PW7 Ct. Banwari Lal, whose testimony as already been taken note of in the earlier part of the judgment. As deposed by them, PW3 was posted as Senior SubInspector at GRP Ghaziabad on 24.02.2010 and PW7 Ct. Banwari Lal was the duty Constable, when at about 2.45 pm, PW2 Mohd. Shakir Hussain came to the police station and handed over the accused to PW3. PW3 recorded the statement of PW2 vide Ex. PW2/A on the basis of which PW7 recorded FIR vide Ex. PW3/A and investigation was carried out by PW3 vide proceedings Ex. PW3/B which includes statement of complainant, statement of the accused and the DD entry.
10. As regards incident, the evidence on the record is the statement of PW2 who is the victim as well as the complainant. Ld. Amicus Curie argued that testimony of PW2 is not sufficient to hold the accused guilty of the charges because no weapon has been recovered from the possession of the accused, there is no allegation that accused used any weapon in the commission of FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 7 of 16 offence, there is no injury on the body of the complainant, there is no corroboration of testimony of PW2 and there is delay in recording of the FIR.
11. Law does not bar the Courts from recording the finding of guilt of an accused on the basis of the sole testimony of an eye witness who is also a victim of the crime, though corroboration through independent evidence should always be looked for.
12. The incident took place in a moving train on the way from Old Delhi Railway Station to Etawah. Testimony of PW2 is very specific on the fact that on 22.02.2010 he had boarded the general compartment of Kafiat Express from platform no. 12 of Old Delhi Railway Station. Ld. Amicus Curie argued that since travelling ticket was not given by PW2 to the police, his testimony cannot be believed. There is no force in this argument because it was the duty of the investigating police officer to seize the railway travelling ticket from PW2 during investigation. Due to lapses of the IO in conducting investigation, oral testimony of PW2 about this fact cannot be thrown away, when nothing has come in his crossexamination to create any doubt about his testimony on this fact. Moreover, accused in his statement under section 313 Cr. P. C has admitted that PW2 had boarded the general boggey of FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 8 of 16 Kafiat Express at platform no. 12 of Old Delhi Railway Station on 22.02.2010 at 7.10 pm, leaving no doubt that PW2 was traveling in the above stated train on above stated date and time.
13. PW2 has very categorically deposed about the incident specifying the role of the accused. According to him 5 people including the accused had boarded the train from Old Delhi Railway Station and as soon as the train started moving, accused and his four associates started extorting money from the passengers for occupying the seats in the train. He gave details of the incident stating that when one of the passengers refused to give money he was slapped and robbed. PW2 was robbed of Rs. 10,000/ and a copassenger Rakesh Pandey was robbed of his mobile and money.
14. Ld. Amicus Curie had argued that since neither any weapon nor any looted property has been recovered from the possession of the accused, benefit should go to the accused. I do not find any merit in this argument because incident is of extortion which was committed by five persons, some amongst them were armed with knives, to put the passengers/victims in fear of instant hurt or instant wrongful restraint or instant death. The manner in which the money and mobile phone of the passengers were FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 9 of 16 extorted and number of offenders involved in the incident, makes the offence graver which falls in the category of offence of "dacoity".
15. When five persons are involved in extortion and loot wherein each one is performing a particular role, then each one of them would be responsible for the acts of others which are essential to constitute the offence, except when an act of the member of a group is "exclusive" and "complete" in its own way. It has specifically came in the testimony of PW2 that accused was collecting money from the passengers and was giving to his associates. He has stated that no knife was recovered from the possession of the accused. This explains the role of the accused without any doubt that while his four associates were holding out threats to the passengers to shell out money, accused was busy in collecting the loot which he passed on to his associates. Therefore, keeping in view the specific role of the accused in the incident, gravity of allegations against him would not be diluted on the ground that neither any knife nor any looted property was recovered from his possession.
16. According to PW2, while four associates managed to run away by jumping out of the train which had slowed down near FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 10 of 16 Ghaziabad, he apprehended the accused with help of co passenger Rakesh Pandey and handed over him to the Ghaziabad police.
17. It is not disputed by the defence that accused was apprehended in the train by PW2 with the help of other passengers and was handed over to the police. Defence has contested the circumstances deposed by PW2 about apprehension of the accused. Suggestion was given to PW2 in the crossexamination that accused was already known to him and he falsely implicated the accused at the instance of his brother. This plea totally falls flat in view of the statement of the accused recorded under section 313 Cr. P. C wherein he stated that due to rush in the train PW2 got pushed by him which made him (PW2) angry, who argued with him, gave him beatings and then handed over him to the police.
18. As already discussed above, it is not disputed by the defence that accused was caught in the train and was handed over to the police. PW2 has categorically deposed about the incident of dacoity in the train involving the accused and the circumstances in which he apprehend the accused with the help of a co passenger. Nothing has come in the crossexamination of PW2 to FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 11 of 16 demolish his version not only about the incident but also about the role of the accused in the incident. Therefore, testimony of PW2 is sufficient to establish role and involvement of the accused in the incident of dacoity on the alleged date, time and place.
19. As regards delay in recording the FIR, the incident is dated 22.02.2010 but the FIR was registered at PS Old Delhi Railway Station on 20.04.2010 i.e after two months. The evidence on record reveals that prior to recording of FIR at PS Old Delhi Railway Station, it was registered at PS GRP Ghaziabad on 24.02.2010 on the basis of the written complaint of PW2 (Ex. PW2/A). It has come in the crossexamination of PW2 that he had apprehended the accused when the train had reached at the outer signal of the Ghaziabad railway station immediately after the incident. The train did not have the stoppage at Ghaziabad railway station and when it reached at its first stoppage at Aligarh, PW2 tried to search GRP staff but did not find any police. After Aligarh, the train stopped at Etawah, where PW2 handed over the accused to GRP Etawah. According to PW2, GRP Etawah told him to hand over the accused to GRP Ghaziabad as incident had occurred in that jurisdiction. Witness has narrated that in these circumstances he returned to GRP Ghaziabad and handed over FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 12 of 16 the accused to GRP Ghaziabad where his statement was recorded. This version of PW2 is corroborated by the investigation proceedings recorded by PW3 vide Ex. PW3/B and explains sufficiently the circumstances in which the FIR was registered at PS GRP Ghaziabad on 24.02.2010 vide Ex. PW3/A.
20. According to PW3 the incident fell in the limits of Delhi and he submitted his report to this effect accordingly. The connecting evidence in this regard is the testimony of PW8 SI Rajender Dabas who has deposed that on 09.03.2010 one Zero FIR (Ex. PW3/A) was received at PS Old Delhi Railway Station from GRP Ghaziabad which was assigned to him. He recorded the statement of complainant Mohd. Shakir Hussain on 11.03.2010 vide Ex. PW8/A and returned the FIR to GRP Ghaziabad.
21. In the above context testimony of PW4 SI Sanjay Singh is also relevant who was posted at GRP Ghaziabad on 17.03.2010. According to him, earlier this case was investigated by SI Hare Ram Singh Yadav (PW3) and was transferred to Old Delhi Railway Station. The investigation was again transferred to GRP Ghaziabad and was assigned to him. During investigation he lodged general diary vide Ex. PW4/A, moved an application under section 164 Cr. P. C for recording the statement of the accused FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 13 of 16 vide Ex. PW4/B, prepared general diary report vide Ex. PW4/C, took affidavit of the complainant as Ex. P1 and prepared another general diary vide Ex. PW4/D. During investigation, this witness believed that incident occurred in the jurisdiction of PS Old Delhi Railway Station and thus he lodged general diary to this effect on 23.03.2010 vide Ex. PW4/E and moved an application for transferring the matter to PS Old Delhi Railway Station vide Ex. PW4/F.
22. The next link evidence about registration of FIR at ODRS are statements of PW6 WASI Rama Saroha of PS ODRS, Delhi and PW8 SI Rajender Dabas of PS ODRS, Delhi. As already noted in the earlier part of the judgment, PW6 recorded FIR (Ex. PW6/A) at PS ODRS Delhi on 20.04.2010 on the basis of hand written application of PW2 (Ex. PW2/A) which was handed over to her by SHO Inspector Bharat Singh for registration of FIR. After registration of FIR the investigation was assigned to PW8 SI Rajender Dabas.
23. According to PW8, investigation was assigned to him after registration of FIR at PS ODRS on 20.04.2010. On 21.04.2010 he moved application (Ex. PW8/B) for issuance of production warrants for production of accused Raju from District FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 14 of 16 Jail Ghaziabad, who was produced and thereafter arrested in this case vide memo Ex. PW1/A. He interrogated the accused vide Ex. PW1/B, collected the record from GRP Ghaziabad and made efforts to trace the other offenders but failed.
24. Testimony of PW3 SI Hare Ram Singh Yadav, PW4 SI Sanjay Singh and PW8 SI Rajender Dabas though explains the delay in registration of FIR at ODRS Delhi but demonstrates the ordeal faced by the complainant PW2 Mohd. Shakir for registration of FIR and total apathy of the Delhi and U. P police which did not leave any occasion to dissuade and discourage PW 2, the victim of crime, who was made to shuttle between Ghaziabad and Delhi. The evidence on record sufficiently explains delay in registration of FIR at PS Old Delhi Railway Station.
25. The accused has been charged for the offences under sections 395 and 397 of IPC. Testimony of PW2 Mohd. Shakir Hussain is found cogent and trustworthy about the fact that accused was involved in committing dacoity alongwith his four associates. He is thus convicted for the offence under section 395 IPC. However, since as per evidence on record, accused was neither carrying the knife at the time of incident nor he used any weapon in the commission of offence, accused is acquitted of FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 15 of 16 the charge under section 397 IPC.
Announced in the open Court (Santosh Snehi Mann) th 08 September, 2011 Addl. Sessions Judge, (Central) Tis Hazari Courts, Delhi FIR No. 50/2010; PS ODRS; State V/s. Raju Page No. 16 of 16