Delhi District Court
State vs . Gulab @ Bablu S/O Tara Chand, on 7 January, 2010
1
IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI
SC No. 167/08
State Vs. Gulab @ Bablu S/o Tara Chand,
R/o B-85, T.C. Camp,
Raghubir Nagar, Delhi.
Gautam Chand S/o Ramesh Chand,
R/o Jhuggi Shyam Nagar, Delhi.
FIR No.730/07
PS Tilak Nagar
U/s 392/394/397/34 IPC
Date of Institution in Sessions Court: 07.02.2008
Date of transfer to this Court : 11.12.2008
Date of Judgment : 21.12.2009
JUDGEMENT:
1. In brief, the prosecution story is that on 09.11.2007, a DD No.5A was received at PS Tilak Nagar. That at Shyam Nagar, DESU Office, near garbage dump, one kabadi had been stabbed and blood was also oozing out. On the receipt of said information, the said DD No.5A was marked to SI Umesh Kumar, who reached the spot. 2 There, he came to know that injured had been removed by PCR Van to the hospital. At the spot, no eye witness could be found. Thereafter, an information was received from DDU Hospital that one injured had been admitted there. Thereafter, aforesaid SI Umesh Kumar reached at DDU Hospital and obtained the MLC of injured Harjender Singh, who was declared unfit for statement, at that time, on the basis of the information, contained in the MLC, an FIR U/s 324 IPC was got registered at PS Tilak Nagar.
2. Later on, the injured was declared fit for statement and his statement was recorded on 17.11.2007 as under:-
"Who stated that he was doing the work of kabadi and on 09.11.2007 in the morning at around 6:30 a.m, as usual, he was going on his bicycle for purchasing garbage via Hari Nagar. He reached Subhash Nagar turning and thereafter reached Shyam Nagar jhuggies. At that time, from the left cut, one dark complexioned person came, who was slighted bulky and stopped him and told him that he was having lot of garbage for sale and thereafter he took him to MCD garbage dump, where 3 one bus was also parked and he also pointed out that the garbage was lying near the said bus and the jhuggies.
3. Thereafter, when he started walking with him, the said person told him to park the bicycle there and to see the garbage. Thereafter, he parked his bicycle near the jhuggies, besides the wall of Metro and started walking with the said person and after he had walked for 100 yards and reached the place, where the bus was parked, another person, who was also slightly dark complexioned and who was having cut mark on his face was already standing there. Thereafter, the other person told the said person, who was a little bit taller that he had lot of garbage, but did he had so much money. At this, he stated that he should not worry about the money and he will bring the money, if required. At this, the taller one told him to show the money. On this point, there was an altercation between them. During the said period, the shorter person took out a button actuated knife from his shirt. Thereafter, the complainant became scared and the taller 4 one abused him and threatened him that whatever money he was having should be taken out by him, otherwise he would be killed".
"Thereafter, he took out the purse from his pocket, which was snatched by the shorter person, which contained Rs. 1,800/-
and some other documents, regarding the business of garbage and telephone numbers. At this point of time, he raised an alarm and then the taller person took the knife from the shorter one and assaulted him with it on his abdomen. However, the complainant took a turn towards the right side and consequently the knife pierced his left thigh. Thereafter, he ran for 3-4 paces and started raising an alarm and thereafter became unconscious.
It was also stated that he was removed by the police to the hospital and due to pain and suffering, he could not give his statement earlier, which was recorded on 17.11.2007. He also stated that he could identify both the assailants, if brought before him".5
4. Thereafter, on the said statement offences U/s 394/34 IPC were also added in the FIR and the investigation(s) were handed over to ASI Dilbagh Singh.
5. Both the accused persons were thereafter arrested, whose names were known as Gulab @ Bablu and Gautam Chand and from the accused Gulab @ Bablu one purse, which was snatched from the complainant Harjender Singh and Rs. 160/- and some other documents were also recovered, which were seized. Both the accused persons also made a disclosure statement, but the knife i.e. the weapon of offence, despite the best efforts of the I.O could not be recovered. The statement of the other witnesses were also recorded. The opinion on the MLC of the injured was obtained and the relevant samples were deposited in the malkhana. After completion of the investigation(s), a charge sheet U/s 394/397/34 IPC was filed in the court against both the accused persons.
6. Upon committal of the case to the court of sessions, a charge U/s 392/394/34 read with section 397 IPC was framed against both the accused persons vide order dt. 30.07.2007, to which both of them 6 pleaded not guilty and claimed trial.
7. Prosecution in support of its case has examined seven witnesses, PW1 is HC Nirmala, who has proved the copy of the FIR, as Ex.PW1/A and DD No.5A as Ex.PW2/B and the DD No. 8A by virtue of which information was received in the PS Tilak Nagar, regarding the admission of injured Harjender Singh in DDU Hospital as Ex.PW2/C, PW2 is Dr. Rajeev Tyagi, who has proved the MLC of injured Harjender Singh as Ex.PW2/A, PW3 is Harjender Singh, the complainant and the eye witness and the star witness of the prosecution, who has fully supported the prosecution case, PW4 is Dr. Parwinder, who has proved the radiology report, regarding the injured Harjender Singh, vide Ex.PW4/A and his opinion at point X on Ex.PW2/A, PW5 is HC Banwari Lal, who accompanied the ASI Dilbagh Singh at the time of the arrest of the accused persons on 19.11.2007, PW6 is ASI Dilbagh Singh, the initial I.O, who had arrested the accused persons and to whom the investigation was later on transferred by PW7 SI Umesh Kumar and who had filed the challan before the court, PW7 is SI Umesh Kumar, who carried out 7 the investigation in between till 17.11.2007 and handed over the same to ASI Dilbagh Singh.
8. Thereafter, statements of both the accused persons U/s 313 Cr. PC was separately recorded, in which the defence of both the accused persons was that they had been falsely implicated in this case. In fact on 19.11.2007, they had come to Rohini Court to attend their date in case FIR No.653/05 of PS Rajouri Garden in the court No.102, in the court of Sh. Sanjay Khanakwal, Ld. MM. When, they came out after attending their date from the said court, they were arrested by the police officials in this case and were falsely implicated. They were arrested by one police official Dilbagh, who was also I.O in the said case of Rajouri Garden. However, they did not lead any defence evidence.
9. I have heard the Ld. Amicus Ms. Bindiya Malhotra and ld. Addl. PP Sh. G.S. Guraya for the state and have perused the record.
10. The Ld. Amicus has argued that the accused persons had been falsely implicated in this case, when they came to attend their case at Rohini Courts on 19.11.2007, in case FIR No. 653/05, PS Rajouri 8 Garden in order to solve their case somehow. She has further argued in the present case, no judicial TIP was conducted, therefore, the identification of the accused persons by the complainant in the court for the first time on 16.07.2009 is not having any evidentiary value. She has further argued that no public person was joined in the investigation(s). Though, it has been admitted by PW3 that at the alleged place of occurrence, construction activities were going on, for which no plausible action has been given by the I.O. She has further argued that no recovery had been effected pursuant to the disclosure statements of the accused persons and the weapon of offence in this case had not been recovered. She has further argued that statement of the complainant was recorded very late by the I.O on 17.11.2007, whereas the alleged incident took place on 09.11.2007, and for said delay no plausible explanation had been furnished by the prosecution. Consequently, she has argued that the accused persons deserves to be acquitted.
11. On the other hand, it has been argued by the Ld. Addl. PP for the state that prosecution has been able to make out a case against 9 the accused persons beyond reasonable doubt, as the identity of the accused persons has been clearly established by the testimony of PW3 in the court. He has also argued that in view of the settled law, there was no need for conducting Judicial TIP, and the identification of the accused persons in the court was relevant and was admissible in evidence. He has further argued that non recovery of weapon of offence is not fatal to the case of the prosecution as per settled law. He has further argued that the incident took place in the early hours of 09.11.2007 and therefore, public persons were not freely available at that time. He has further argued that the delay in recording the statement of the complainant took place, as the injured was in state of shock and after he had recovered from the shock and gave a statement. Accused persons were promptly arrested in this case.
12. To make out the case U/s 394 IPC, the prosecution has to prove the following ingredients as under:-
1. Accused committed or attempted to commit robbery;
2. He and anyone else jointly concerned in committing or attempting to commit robbery caused hurt;10
3. Hurt was caused voluntarily.
13. I have gone through the rival contentions. PW3 Harjinder Singh, who is the star witness of the prosecution has deposed that he was a junk dealer by profession. On 09.11.2007, in the morning at about 6:00 a.m, he went for his routine to purchase junk on his cycle and when he reached near Subhash Nagar Jhuggi, a little ahead of Subhash Nagar mode, he had purchased some junk from 2-3 hotels, accused Gautam (whom he correctly identified in the court) met him near the left cut near Subhash Nagar Jhuggies and told him that there was a huge quantity of junk and he offered him to purchase the same. He accompanied him and said person took him on the back side of the garbage box near Ganga Ram Vatika. He parked his cycle near the metro wall and he went with accused Gautam. The other accused Gulab was also present there (whom he also correctly identified in the court) and he further stated that the names of the said persons were revealed to him, later on after their arrest.
14. He further deposed that both the accused persons pointed out towards some jute sheets and told junk was lying underneath sheets. 11 Thereafter, he went to check the junk under the jute sheets, at that time accused persons caught hold of him and directed him to take out the money, which he was having at that time. When, he objected, both the accused persons told him to hand over the money otherwise they would kill him. The accused Gautam was having knife in his hand and he pointed out it on his neck. Thereafter, both the accused persons grappled with him and when he tried to save him, accused Gulab took the knife from accused Gautam and attacked him and he turned the side, he was stabbed on his thigh. They also took away his purse, containing Rs. 1800/- cash and some other papers. He fell down and became unconscious and thereafter he was taken to hospital. Police also recorded his statement.
15. He further deposed that on 19.11.2007, when he was not in a position to walk properly, he joined the investigation(s) of this case with the police and accompanied police to the spot. Both the accused persons were arrested by the police, at his instance, when they were sitting near Goodluck Park, Subhash Nagar and he identified them. A purse containing Rs. 160/- and papers belonging to him were also 12 recovered from the possession of accused Gulab. He also identified the cycle and the purse and the documents contained therein and one telephone directory as Ex.P2.
16. Regarding the identity of the accused persons, PW3 Harjinder Singh has categorically identified both the accused persons in the court, as the persons, who had robbed him on 09.11.2007 and the accused Gulab as the person, who had stabbed him while committing the robbery. Nothing has come out on the identification part of the accused persons in the cross-examination of PW3. Regarding the arguments of the Ld. Defence counsel, that in the present case, no Judicial TIP proceedings were conducted and the identification of the accused persons in the court for the first time by PW3 was having no evidentiary value. The said arguments of the Ld. Defence counsel are without any substance in view of the judgment AIR 2003 SC 2669 in the case titled Malkhan Singh and Ors. Vs. State of Madhya Pradesh, in which it was held as under:-
" The principal submission urged before the courts below as also before us is whether the conviction of the appellant can be 13 sustained on the basis of the identification of the appellants by the prosecutrix in court without holding a test identification parade in the course of investigation. While the appellants contend that the identification in court not preceded by a test identification parade is of no evidentiary value, the prosecution contends that the substantive evidence is the evidence of identification on court and, therefore, the value to be attached to such identification must depend on facts and circumstances of each case. No general rule could be laid that such identification in the court is of no value".
" It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are 14 strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure, which obliges the investigating agency to hold, or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration".
17. In view of the said judgment, which is squarely applicable of the facts and circumstances of the present case. The failure to hold test identification parade in the present case does not affect the case of the prosecution, as the substantiative evidence is the evidence of identification by the witness in the court. The weight to be attached to 15 such identification is a matter for the court to see. As discussed above, nothing has come out in the cross-examination of PW3, which could show that there was any doubt regarding the identity of the accused persons, or that they had not committed the offence in question. Rather no question was put in this regard in the cross- examination of PW3, which could throw any doubt on the identity of the accused persons. In these circumstances, the identity of the accused stand established, in view of the categorically deposition of PW3.
18. The testimony of PW3, regarding the nature of injuries sustained by him, is also corroborated by the medical evidence as per the MLC Ex.PW2/A a CIW incised wound, measuring 4x2 cm was found on his left thigh posterior side and as per the opinion given by the doctor, the injury was simple from surgical side as per clinical and radiological evidence and the kind of weapon used was sharp. This medical evidence also corroborates the testimony of PW3, even otherwise nothing has come out in the cross-examination of PW2, who had firstly examined the injured on 09.11.2007 and prepared the 16 MLC of injured Harjinder Singh. Similarly, the nature of injury has been proved by Dr. Parvinder, PW4, who was working as Senior Resident Surgery on 09.11.2007 and nothing has come out in his cross-examination also, which could help the case of accused persons. Consequently, the medical evidence also corroborates the testimony of PW3, that the injury on his left thigh was caused by sharp edged weapon, which a knife is.
19. Regarding the next argument of the Ld. Defence counsel, that the weapon of offence in the present case had not been recovered, therefore, the same is fatal to the case of the prosecution. The said argument of Ld. Defence counsel is without any substance, as it is settled law that non recovery of weapon of offence, is not fatal to the case of the prosecution, if the same is otherwise established by the cogent and consistent evidence on the record. As discussed herein above, the testimony of PW3 is duly corroborated by the medical evidence, that the injury sustained by PW3 had been caused by a sharp edged weapon. Therefore, the none recovery of knife/weapon of offence is not fatal to the prosecution case. In any case, accused 17 persons in this case were arrested on 19.11.2007 and the incident is dated 09.11.2007, consequently, the accused persons had almost 10 days at their disposal to dispose off the weapon of offence.
20. Regarding the defence of the accused persons that no public witness was joined in the investigation(s), and the accused persons were falsely implicated in this case, when they came to attend their date at Rohini Courts in case FIR No. 653/05, PS Rajouri Garden on 19.11.2007 in the court of concerned MM.
21. From the perusal of the arrest memos of the accused persons, it is revealed that the accused persons were arrested at 4:15 p.m on 19.11.2007, and judicial notice can be taken of this fact that public persons are most reluctant to join any investigation these days, due to various assorted reasons, therefore, merely because no independent public witness was joined in the investigation(s), does not mean ipsofacto that the accused persons had been falsely implicated in this case. In any case, the complainant PW3 had been made a witness on the arrest memos of both the accused persons and both the accused persons, have not lead any evidence in their defence, 18 despite the fact that an opportunity was accorded to them to lead defence evidence, at the time of recording their statements U/s 313 Cr. PC. Therefore, the defence of the accused persons, that they had been falsely implicated in this case, when they came to attend their case at Rohini Courts in case FIR No. 653/05, PS Rajouri Garden on 19.11.2007 in the court of Sh. Sanjay Khanakwal, Ld. MM remains unsubstantiated.
22. Regarding the recovery of purse from the accused Gulab which has been proved vide seizure memo Ex.PW3/E, the complainant PW3 has categorically identified the said purse as belonging to him, containing Rs. 160/- at the time of said recovery from the accused Gulab and which also contained one diary and another papers including the paper on which he had scribbled telephone numbers. The fact that the same diary and telephone numbers contained in the purse of the accused were recovered from the accused Gulab has not been sufficiently explained by the accused, as that onus was upon the said accused to explain under what circumstances, he was found in the possession of the purse and the other documents belonging to the 19 complainant PW3 Harjinder Singh. Merely because no public person had not been joined in the recovery of said purse, does not diluted the case of the prosecution, as for the reasons discussed above. The public persons these days are most reluctant to join any investigation, therefore, no fault can be found in non joining of the public persons in this case.
23. Regarding the next argument of the Ld. Defence counsel that the incident in question took place on 09.11.2007, whereas the statement of the complainant was recorded on 17.11.2007, which shows that the I.O had concocted a false story against the accused persons and had roped in the accused persons in order to solve his case somehow.
24.I have considered the said contention. I.O, PW7 SI Umesh Kumar in his deposition has proved one application Ex.PW7/A, which he wrote to CMO, DDU Hospital for recording the statement of the complainant on 09.11.2007. However, on the said application, dt. 09.11.2007, some doctor had opined not fit for statement. Thereafter, PW7 has deposed in his statement recorded in the 20 court that on 10.11.2007 and 14.11.2007, he had visited the hospital for recording the statement of Harjinder Singh, but he was not fit for statement, but no documentary evidence has been proved by the prosecution in this regard, that IO had indeed visited the hospital on 10.11.2007 & 14.11.2007. Be that as it may, even then it is settled law that a fault on the part of the investigating officer is not to effect the prosecution case, as it is not the fault of the complainant that the I.O had not recorded his statement at the earliest, and merely because I.O had committed some omissions/commissions in this case would not mean that the entire case of the prosecution is false. It is settled law that the case of the prosecution is to be seen dehors such omissions and commissions.
25. It has been held in judgment Paras Yadav Vs. State of Bihar AIR 1999 SC 644 that:
"It is true that there is negligence on the part of investigating Officer. On occasions, such negligence or omission may give rise to reasonable 21 doubt which would obviously go in favour of the accused. But, in the present case, the evidence of prosecution witnesses clearly establishes beyond reasonable doubt that the deceased was conscious and he was removed to the hospital by bus. All the witnesses deposed that the deceased was in a fit state of health to make the statements on the date of incident. He expired only after more than 24 hours. No justifiable reason is pointed out to disbelieve the evidence of number of witnesses who rushed to the scene of offence at Ghogha Chowk. Their evidence does not suffer from any infirmity which would render the dying declarations as doubtful or unworthy of the evidence. In such a situation, the lapse on the part of the Investigating officer should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence. Hence, the prosecution evidence is required to be examined de hors such omissions to find out whether the said evidence is reliable or not. For this purpose, it would be worthwhile to quote the following observations of this court from the case of Ram Bihari Yadav Vs. State of Bihar and Others, 22 1998(2)RCR(Crl.)403: J.T.1998(3) SC 290:
"In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice".
26. Further it has been held in judgment Ram Bihari Yadav Vs. State of Bihar AIR 1998 that:
"Before parting with this case we consider it appropriate to observe that though the prosecution has to prove the case against the accused in the manner stated by it and that any act or omission on the part of the prosecution giving rise to any reasonable doubt would go in favour of the accused, yet in a case like the present one where the record shows that investigating officers created a mess by brining on record Ex. 5/4 and GD entry 517 and have exhibited remiss and/or deliberately omitted to do 23 what they ought to have done to bail out the appellant who was a member of the police force or for any extraneous reason, the interest of justice demands that such acts or omissions of the officers of the prosecution should not be taken in favour of the accused, for that would amount to giving premium for the wrongs of the prosecution designedly committed to favour the appellant. In such cases, the story of the prosecution will have to be examined de hors such omissions and contaminated conduct of the officials otherwise the mischief which was deliberately done would be perpetuated and justice would be denied to the complainant party and this would obviously shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice."
27. It has also been held in judgment AIR 1988 SC 1998 State of U.P Vs. Anil Singh that:
"Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is rejected either for 24 want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases, the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to reject that prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a good case by false or exaggerated version. The privy Council had an occasion to observe 25 this. In Bankim Chander Vs. Matangini, 24 C.W.N 626 PC, the Privy Council had this to say:
"That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly untrue, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence".
"In Abdul Gani Vs. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this court deprecated the tendency of courts to take an easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort to disengage the truth from falsehood and to sift the grain from the chaff.
Further in Para 15 it has been held that:
"It is necessary to remember that a 26 Judge does not preside over a criminal trial merely to see that no innocent man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the Judge has to perform".
28. In view of the law, laid down above, the said omissions/commissions on the part of the I.O, not to record the statement of the complainant at the earliest is not fatal to the case of the prosecution. As dehors, said omissions on the part of the I.O, it has to be seen, whether the case of the prosecution was still plausible and trustworthy. It appears that after the incident, the accused had got scared by the incident of robbery and stabbing, therefore, he may not have been in a fit condition to make a statement, due to the fear of the accused persons.
29. The version of PW3 is also corroborated by DD No.7A, whereby an information was received at PS Tilak Nagar through PCR, that one kabari had been stabbed and blood was oozing out. Similarly, DD No.8A Ex.PW2/C is also on the same subject, which 27 was received at PS Tilak Nagar, regarding the admission of one injured Harjinder Singh in DDU Hospital with stab injury and in the MLC Ex.PW2/C, the patient had himself told the doctor, who prepared the MLC that he was stabbed by knife. These documents, which were prepared at the earliest opportunity immediately after the incident, clearly proves the version of PW3 and also corroborates his version to the fullest.
30. From the deposition of PW3, the identity of the accused persons, the manner in which they had committed the offence in question and the place, where they had committed the same stood clearly established and there remains no doubt about the same.
31. In view of the aforesaid discussion, the prosecution has been able to prove beyond any doubt that the accused persons committed robbery upon the complainant PW3 Harjinder Singh by putting him in fear of instant hurt or death and thereby induced him to deliver to them the purse, containing Rs. 1800/-, which he was carrying at that time and some papers, which was in his possession, and it has also been proved beyond any reasonable 28 doubt that both the accused persons committed the said act of robbery jointly while acting in concert. Therefore, both the accused persons are liable for the vicarious act of each other by the principal of agency. It has also been proved by the prosecution that the accused persons while committing the robbery of the purse of the complainant, containing Rs. 1800/- and some other papers had also caused hurt upon his left thigh by a knife and the said injury was caused on his body/left thigh voluntarily i.e to say that the said injury was not caused accidently or by mistake or without any intention to commit said injury. Consequently, the both accused persons stand convicted U/s 394 IPC.
32. Further, it has been clearly proved by the detailed analysis of evidence, discussed above, that the accused Gulab had taken the knife from other accused Gautam and after taking the knife while committing the robbery and while taking away the purse of the complainant forcibly, containing Rs. 1800/- in cash, he attacked the complainant with a knife, with which he stabbed him on his left thigh. Therefore, the accused Gulab is also liable to be convicted 29 U/s 397 IPC, as he at the time of committing robbery had used the deadly weapon i.e the knife, as for attracting Section 397 IPC, it need not be proved that the said weapon should have been actually used for cutting, stabbing, shooting as the case may be (AIR 2004 SC 1253) and if the weapon with which the offender was armed was within the vision of the victim so as to create terror in the mind of the victim, that would be sufficient to satisfy the word 'uses' for the purposes of section 397 IPC. In any case, knife has been held as a deadly weapon in judgment 2004 Cr.LJ 936.
33. Net result of the aforesaid discussion is that the accused Gautam Chand stand convicted U/s 394 IPC, whereas the other accused Gulab @ Bablu stand convicted U/s 394 read with section 397 IPC.
Let, they be heard on the point of sentence on 24.12.2009 Announced in the open court (Sanjeev Aggarwal) on 21.12.2009. Addl. Sessions Judge Rohini Courts: Delhi.
30IN THE COURT OF SH. SANJEEV AGGARWAL LD. ADDL.
SESSIONS JUDGE: ROHINI COURTS: DELHI SC No. 167/08 State Vs. Gulab @ Bablu S/o Tara Chand, R/o B-85, T.C. Camp, Raghubir Nagar, Delhi.
Gautam Chand S/o Ramesh Chand, R/o Jhuggi Shyam Nagar, Delhi.
FIR No.730/07 PS Tilak Nagar U/s 394 r.w. Sec.397/34 IPC 7.1.2010 ORDER ON THE POINT OF SENTENCE:
Present:- Sh. Girish Giri, Ld. Substitute Addl. PP for the state.
Both the Convicts with Ld. Amicus Curiae Ms. Bindiya Malhotra.
It is submitted by the Ld. Addl. PP, that strict punishment should be awarded to aforesaid convicts, as they had robbed the complainant in the broad day light and had also snatched his money and had also caused serious injuries to him when he resisted, due to 31 which he remained confined to the hospital for almost one week, and therefore a message should go to the society at large, that these types of crimes do not pay.
On the other hand, it is submitted by ld. Amicus Curiae for the convict Ms. Bindiya Malhotra, that both the convicts are in judicial custody since 19.11.07 and the convict Gulab is aged around 37 years of age and he had one old and ailing mother to look-after and there is no other bread earner in the family. Regarding the convict Gautam Chand, it is submitted that he had old parents to look-after and his father was almost bed ridden and the convict was the only person who looked after his parents. Therefore, it is submitted that lenient view be taken against both the convicts.
I have considered the rival contentions of the Ld. Prosecutor and the Ld. Amicus Curiae Counsel for the convicts. In the present case, both the convicts in furtherance of their common intention had robbed the complainant in broad day light and they had also inflicted injuries on his body by knife, due to which he remained confined in the hospital for almost one week and they had also snatched money 32 and other belongings from him therefore, the convicts do not deserve any leniency, so that a message goes to the society at large that these types of crimes would not be allowed to go unpunished.
Consequently, I am of the considered opinion, that the interest of justice shall be met, if the convict Gautam Chand is sentenced to RI for five years, and I further sentence the convict to pay a fine of Rs. 1,000/-, U/s 394 IPC. In default of payment of fine, he shall undergo SI for 30 days. The benefit U/s 428 Cr. PC be also accorded to the convict Gautam Chand for the period already spent by him in judicial custody during the trial of this case.
Regarding the convict Gulab @ Babloo who had inflicted injuries on the body of the complainant by using knife and who has been convicted U/s 394 IPC r.w. Sec. 397 IPC, the said convict is sentenced to RI for 7 years, and I further sentence the convict to pay a fine of Rs. 1,000/-, U/s 394 r.w.Sec. 397 IPC. In default of payment of fine, he shall undergo SI for 30 days. The benefit U/s 428 Cr. PC be also accorded to the convict Gulab @ Babloo for the period already spent by him in judicial custody during the trial of this case.33
The Ld. Amicus Curiae Ms. Bindiya Malhotra is discharged from this case with the words of appreciation for the effort put by her during the trial.
Copy of the judgment and that of sentence be given to both the convicts free of cost. It is ordered accordingly. File be consigned to record room.
Announced in the open court (Sanjeev Aggarwal) On 7.1.2010. Addl. Sessions Judge Rohini Courts: Delhi.