Delhi District Court
State vs 1. Rinku @ Sonu on 15 December, 2007
-: 1 :-
IN THE COURT OF SHRI V.P. VAISH: ADDL. SESSIONS JUDGE
ROHINI: DELHI
IN RE Sessions case No. 410/06
FIR No. 825/02
PS: Nangloi
U/s: 459/380/511/34 IPC
Date of hearing arguments: 06.12.2007
State Versus 1. Rinku @ Sonu
S/o Prakash,
R/o J-1437, Mangolpuri,
New Delhi
2. Santosh @ Disco,
S/o Chote Lal,
R/o J-764, Mangolpuri,
New Delhi
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JUDGEMENT
Accused Rinku @ Sonu son of Prakash and accused Santosh @ Disco have been sent to face trial by the SHO PS Nangloi.
2. The case of prosecution is that on 26.09.2002 at about 11.10 p.m. an information was received from wireless operator that in the first gali of Nihal Vihar, some bad elements had come, said information was recorded vide DD No.27. On receipt of said DD ASI Sher Singh alongwith Ct. Pratap Singh reached at spot where it was revealed that injured was removed to Sanjay Gandhi Memorial Hospital by PCR van. Said ASI Sher Singh reached at SGM hospital where injured Mahavir Singh was found present in an injured condition and statement of Shri -: 2 :- Mahavir Singh was recorded. The complainant, Mahavir Singh in his statement has stated that he is residing at house No. RZB-70, Nihal Vihar, Nangloi, Delhi, on the ground floor he used to tie buffaloes as he is running dairy. On 26.09.2002 at about 10.30 p.m. he had closed the door of his house and went on the upper floor for sleeping, at about 10.45 p.m. he heard some voice, he got down for checking and saw that three persons had entered in his house after managing to open the kundi and they were looking here and there with intention to commit theft. He enquired form the said persons as to what they were doing, on this one of the said persons took out sword from his back side and other two persons took out iron rod and all the three persons attacked on him with intention to kill. The person who was having sword attacked with the said sword on his head and again attacked on his stomach, he caught hold of said sword and cried for help. After hearing cries his brother Devi Singh, Mahihpal and neighbourers came there. Two persons ran away due to darkness. One person who was having sword was apprehended with the help of the persons, whose name and address was revealed as Rinku @ Sonu son of Prakash resident of J- 1437, Mangolpuri, Delhi. Rinku had received some injuries in apprehending him. He had received injuries on his head and hands. He and Rinku, both were taken to SGM Hospital by PCR Van. Rinku @ Sonu and his associates entered in his house after breaking the kundi with intention to commit theft.
3. ASI Sher Singh made endorsement on the said statement of Mahavir Singh and sent rukka to police station through Ct. Pratap Singh. On the basis of said complaint FIR for the offence under Section -: 3 :- 459/380/511/34 IPC was registered. Investigation was conducted by said ASI Sher Singh. During investigation said ASI inspected the spot and prepared site plan. He recorded statement of witnesses. Accused Rinku @ Sony and Santosh @ Disco were arrested. The particulars of third person could be traced and he could not be arrested. After completion of investigation charge sheet for the offence under Section 459/380/511/34 IPC was prepared and filed before concerned Metropolitan Magistrate, Delhi.
4. After complying with provisions of Section 207 Cr.P.C. the case was committed to Ld. District & Sessions Judge, Delhi vide order dated 23.10.2003.
5. After hearing arguments on charge my Ld predecessor found a prima facie case to try both the accused persons for the offence under Section 459/34 IPC, 380/34 IPC read with Section 511/34 IPC and a charge under Section 459/34 IPC, 380/34 IPC read with Section 511/34 IPC was framed against the accused persons on 07.12.2004 Accused persons pleaded not guilty to the charge and claimed trial.
6. In support of its case, prosecution has examined as many as six witnesses PW-2 Mahavir Singh is the complainant. He has deposed in terms of his complaint and has proved his complaint as Ex.pw-2/A. He has deposed that the sword vide which he was attacked by the assailant was left at the spot and was handed over to the police, which was seized vide memo Ex.Pw-2/B. Personal search memo of accused was -: 4 :- prepared which is Ex.Pw-2/C and accused was arrested vide memo Ex.Pw-2/D. Said boy was interrogated and he made disclosure statement which is Ex.Pw-2/E. Iron rod was also recovered by the police. Accused Rinku is the same person who had caused injuries on his person with sword and he was apprehended by him at the spot. Accused Santosh was arrested by the police later on and he had given blow with iron rod on his head. He has proved the sword as Ex.P-1 with which accused Rinku had attacked on him. In cross examination he has stated that he has studied upto 7th class. There is bulb outside the room, three is one entry gate as well as one gate of the room. One of the persons of locality telephoned to police at number 100 at about 11 p.m. First of all PCR officials came there and later on police officials from police station came. His statement was recorded by the police at 2.30 / 3 a.m. He had gone through his statement recorded by the police before signing the same. Statement of police official was recorded by the IO in his presence but he could not tell his name. He had signed on 3-4 documents. He was taken to hospital at about 11.30 p.m. by Bhagwan Singh and returned from hospital at about 3.00 a.m. He returned from hospital at about 2.30 / 3.00 a.m. alongwith chowki incharge and accused Rinku. There was blood on the sword when seized by the police and blood had also fallen down on the ground. He could not tell if IO had seized blood stained earth from the spot. IO prepared site plan and he signed on the same, site plan is Ex.Pw-2/DA does not bear his signatures. He denied that accused Rinku did not participate in the occurrence or that none of the accused persons entered in his house.
-: 5 :-7. PW-1 HC Dinesh Kumar is the duty officer. He has deposed that on the intervening night of 26/27.09.2002 he received a rukka sent by ASI Sher Singh through Ct. Pratap Singh, on the basis of said rukka he recorded FIR No. 825/02. He has proved the rukka as Ex.Pw-1/A and carbon copy of FIR as Ex.Pw-1/B. After recording FIR, he made endorsement on the rukka which is Ex.Pw-1/C.
8. PW-3 SI Bhagwan Singh has deposed that on 27.09.2007 he moved an application for one day PC remand of accused Rinku, one day PC remand was granted. Thereafter he handed over the accused Rinku to ASI Sher Singh IO .
9. No question was put in cross examination on behalf of accused to PW-1 and Pw-3, therefore, cross examination was closed as nil, opportunity given.
10. PW-4 Dr. Sweety Bansal has deposed that on 27.09.2002 injured Mahavir Singh was brought by PCR officials, she medically examined him and found the injuries which are mentioned on the MLC. She has proved the MLC of injured Mahavir Singh as Ex.Pw-4/A. She opined that injuries were minor caused by sharp edged weapon vide endorsement mark A on the MLC. She has also deposed that on the same night she examined Sonu @ Rinku and prepared MLC which is Ex.Pw-4/B. In cross examination she has stated that injured Mahavir Singh did not disclose the name of assailants, injured appeared before her in the night of 26/27.09.2002. He was discharged after giving treatment.
-: 6 :-11. PW-5 Ct. Pratap Singh is the person who remained associated with IO during investigation. He has deposed that he handed over copy of DD No.27 to ASI Sher Singh, he alongwith ASI Sher Singh reached at house No. RZB-70, Nihal Vihar where they came to know that injured had been taken to SGM Hospital by PCR. ASI Sher Singh left him at the spot and went to SGM Hospital. Thereafter ASI Sher Singh returned at the spot alongwith Rinku and Mahavir. On pointing out of Mahavir a sword was found lying in the corner of room in the said house. IO prepared rukka and handed over the same to him, he took the same to police station and got the case registered. He came back to spot and handed over original rukka and copy of FIR to ASI Sher Singh. Accused Rinku was arrested and his personal search was prepared vide memo Ex.Pw-2/C. The sword which was recovered at the instance of Mahavir was seized vide memo Ex.Pw-2/D and said sword is Ex.P-1. Accused Rinku was interrogated and he made disclosure statement. Thereafter accused Rinku took them to J-Block, Mangolpuri and at his instance accused Santosh was apprehended. Accused Santosh was arrested and his personal search was conducted. In cross examination he stated that DD No.27 was received by him at 11 p.m. at police post and he immediately left for delivering the same to ASI Sher Singh at 50 foota road. He alongwith ASI Sher Singh reached at spot on his scooter. Finally he left the spot with IO at about 3.45 a.m. ASI Sher Singh left for hospital from the spot at about 11.35 p.m. and returned at spot around 1 a.m. IO came back to spot alongwith accused Rinku and Mahavir. He took rukka from the spot at 1.25 a.m. and returned back alongwith copy of FIR and rukka at 3.30 a.m. He denied that no proceedings were conducted as stated by him or that all the proceedings -: 7 :- were conducted at police station. He also denied that accused Rinku did not make any disclosure statement in his presence or his signatures were obtained on blank papers or that he had not participated in the any crime. He also denied that accused Santosh was falsely implicated in this case.
12. PW-6 ASI Sher Singh is the investigating officer. He has deposed in terms of statement of PW-5. He has deposed that he recorded statement of injured Mahavir which is Ex.Pw-2/A and prepared rukka which is Ex.Pw1/A. He prepared site plan Ex.Pw-2/DA. The complainant Mahavir pointed out sword lying in the corner of the room in his house, which was seized vide memo Ex.Pw-2/B. Accused Rinku was arrested after he was brought from the hospital to the spot. On 27.09.2002 accused Santosh Kumar was arrested with the help of accused Rinku. Sword Ex.P-1 is the same which was seized by him. In cross examination he stated that when he alongwith Ct. Pratap Singh reached at spot, public persons were already present there and they told him that injured had been taken to hospital. In the hospital he requested Doctor for recording statement of victim and at that time complainant was admitted in the emergency ward. He had not recorded statement of any public persons on the spot since nobody was ready for the same. He had not shown the projection, gallery, name and number of the house in the site plan. He had not verified the owner ship of house in question. He alongwith Ct. Pratap Singh and accused Rinku went to house of accused Santosh in TSR and remained there for about 15-20 minutes. He had not recorded statement of any inmates or neighbourer at that time. He denied that accused persons have been falsely -: 8 :- implicated in this case or that no incident had taken place or that no sword was recovered.
13. Thereafter prosecution evidence was closed by Ld. Addl PP on 10.01.2005. Statement of both the accused persons under Section 313 Cr.P.C. was recorded and incriminating evidence was put to them. Accused persons denied the same and stated that they are innocent and they have been falsely implicated in this case. Accused persons did not choose to lead any defence evidence.
14. I have heard Shri N.S. Kadyan, Ld. Addl. PP for the State and Shri Ashok Kumar Arya Advocate for both the accused persons. I have also carefully gone through material on record.
15. Ld. Addl PP submitted that the complainant Shri Mahavir Singh has appeared as PW-2 and he has supported the case of prosecution. He has deposed that accused persons entered in the house to commit theft or to cause injury on his person, he raised alarm and tried to apprehend them and succeeded in apprehending one person and the other person ran away. He has proved his complaint as Ex.Pw-2/A. He has also deposed that sword by which he was attacked was left at the spot and the same was seized by the police vide memo Ex.Pw-2/B. Accused Rinku was arrested vide memo Ex.Pw-2/D and his personal search was conducted vide memo Ex.Pw-2/C. He has also proved the sword as Ex.P-1 with which accused Rinku attacked on him and caused injury.
-: 9 :-16. Ld. Addl PP further submitted that accused Santosh managed to escape from the spot and he was apprehended lateron. PW-2 Mahavir Singh has deposed that accused Santosh gave rod blow on his head and caused injuries to him. Ld. Addl PP also urged that PW-5 Ct. Pratap Singh and PW-6 ASI Sher Singh reached at the spot on receipt of DD No.27 and accused Rinku was arrested from the spot.
17. Ld. Counsel for the accused persons contended that complainant Mahavir Singh while appearing as PW-2 has disclosed the date, month and year of the incident as 27th day of the month 10th of year 2000. According to case of prosecution the alleged incident is dated 26.09.2002 but the complainant has given a different date, month and year. Same makes the testimony of Mahavir Singh unbelievable.
18. The other submission of Ld counsel for the accused persons is that there is no corroboration to the statement of complainant Shri Mahavir Singh. Ld defence counsel pointed out that PW-2 Mahavir Singh has deposed that his brothers Devi Ram and Khusi Ram also reached at the spot and police also reached there. But the prosecution has failed to examine Mr. Devi Ram and Khusi Ram.
19. Ld. defence counsel also urged that no weapon of offence was recovered from the accused persons. He pointed out that sword was recovered at the instance of the complainant and not at the instance of any of the accused. He also pointed out that in case the complainant Mahavir Singh had received injuries, blood must have fallen on the ground but no blood was seized by the IO .
-: 10 :-20. The next submission of Ld defence counsel is that site plan Ex.Pw-2/DA is not signed by PW-2 Mahavir Singh. He also submitted that IO has no mentioned the house number on the site plan. He has also not shown the place wherefrom sword was recovered. He further submitted that neither ownership of house No. RZ-B/70, Nihal Vihar, Nangloi nor the person who was in occupation of the said house at the time of incident has been proved.
21. The last submission of Ld counsel for the accused persons is that offence under Section 459 IPC is not made out. He referred to the statement of PW-2 Mahavir Singh who has deposed that accused persons had entered after opening the gate of his house, he was inside the house and the accused persons gave beating to him. The testimony of Mahavir Singh (PW-2) shows that accused persons had entered in the house and gave beating to Mahavir Singh after entering in the house and not 'whilst' entering or committing house tress pass. In support of his submission he has relied upon Judgment in case titled as Rohtas Vs. The State reported as 1987 (1) Crimes 576.
22. I have carefully considered the submissions made by Ld. Addl PP for the State and Ld counsel for the accused persons. According to case of prosecution, case was registered on the complaint of Mahavir Singh, the complainant stated that on 26.09.2002 at about 10.30 p.m. he had closed the door of his house and went upstairs for sleeping. According to complaint Ex.Pw-2/A incident is dated 26.09.2002 at about 10.45 p.m. The complainant Mahavir Singh has been examined as PW-2 -: 11 :- and has disclosed the date of incident as 27th day of the month, it was 10th month of 2000. Ld. Addl PP rightly pointed out that witness was illiterate and statement of PW-2 Mahavir Singh was recorded on 17.01.2005 i.e. after expiry of about three years and the witness could not disclose the correct date of incident. Moreover, one important aspect which cannot be lost sight of and which is relevant and great significance is that accused Rinku was apprehended at the spot.
23. The complainant, Shri Mahavir Singh in his complaint Ex.Pw- 2/A stated that accused Rinku was apprehended at the spot and was handed over to the police. Mahavir Singh has appeared as PW-2 and has deposed that he apprehended accused Rinku at the spot, police officials reached at the spot and accused Rinku was arrested by the police. Arrest memo of accused Rinku was prepared which is Ex.Pw- 2/D and his personal search was conducted vide memo Ex.Pw-2/C. Arrest memo and personal search memos of accused Rinku are dated 27.09.2002. The same goes to show that incident was dated 26.09.2002 as mentioned in the complaint.
24. As regards other submission of Ld counsel for the accused persons that there is no corroboration to the statement of the complainant Mahavir Singh, it may be mentioned that incident occurred at about 10.45 p.m. on 26.09.2002. It has not come on record that any other person had witnessed the incident. So far as Mr. Devi Ram and Khusi Ram, brothers of the complainant are concerned, it may be mentioned that the complainant Mahavir Singh has deposed that when he raised alarm, his brothers Devi Ram and Khusi Ram also reached at -: 12 :- the spot. He has not deposed that they were present when the accused persons entered in the house or that injuries were caused to Mahavir Singh. Hence they are not material witnesses.
25. At this juncture it may be mentioned that IO ASI Sher Singh has deposed that he had not recorded the statement of any public witness at the spot since nobody was ready for the same. No suggestion was put to him that he had not requested any public person to join the investigation. It is a matter of common knowledge that public persons are reluctant to be a witness or to assist the investigation. Reasons are not far to seek. In this regard reliance can be placed on a Judgment in case titled as Ambika Prasad Vs. State reported as JT 2000 (1) SC 273 . In another case titled as Mohd. Anwar Vs. State reported as 1999 (10) AD 317 SC, it was held that there is no reason to disbelieve the statement of PW-1 that SI Pankaj Singh tried to record the statement of some persons who collected at the spot but none agreed to be a witness. For such a situation prosecution cannot be blamed.
26. Moreover, Mahavir Singh has been examined as PW-2 and he has been cross examined at length on behalf of the accused persons. Nothing incriminating could be elicited during his cross examination to shake his testimony. It is not the case of accused persons that the complainant was known to them. There is no enimity between the accused and complainant Mahavir Singh. There is no reason to disbelieve the sworn testimony of complainant Mahavir Singh.
-: 13 :-27. The other submission of Ld counsel for the accused persons that sword was recovered at the instance of the complainant and not from the possession of the accused. I am unable to accept the submission of Ld defence counsel. The complainant Mahavir Singh (PW-2) has deposed that accused Rinku was apprehended by him, police officials took him and accused Rinku to Sanjay Gandhi Memorial Hospital. He has also deposed that sword was left at the spot and same was seized by the police vide memo Ex.Pw-2/B. The accused persons have not put any question to Mahavir Singh that no sword was recovered from the spot or that accused was not having sword with him. Moreover, Investigating Officer ASI Sher Singh (PW-6) has deposed that on the day of incident complainant Mahavir Singh pointed out sword which was lying in corner of the room in his house, which was seized vide memo Ex.PW-2/B. No question was put in cross examination on behalf of accused persons that the sword was not recovered from the spot or that accused was not having sword.
28. As regards the submission of Ld counsel for the accused that ownership and occupation of house No. RZB-70, Nihal Vihar, Nangloi was not verified by the IO , it may be mentioned that ownership and occupation of complainant Mahavir Singh is immaterial. The occupation of Mahavir Singh is clear from the fact that he was present in the house on the day of incident and he apprehended accused Rinku at the spot. IO prepared site plan which is Ex.Pw-2/DA. Merely because the name of owner and number of house is not mentioned on the site plan, same does not mean that site plan does not relates the place of incident. In the site plan it is mentioned that place of incident has been shown at point -: 14 :- A. It is not the case of the accused persons that site plan Ex.Pw-2/DA is not of the place of incident. Simply because complainant Mahavir Singh has not signed on the site plan, same does not loose its value.
29. So far as non seizure of blood from the spot is concerned, it may be mentioned that Pw-5 Ct. Pratap Singh has deposed that he had not seen blood lying at the spot where the incident had taken place. ASI Sher Singh (PW-6) is the investigating officer and has not been cross examined on the point that there was any blood at the spot. Same shows that there was no blood at the spot. In any case non seizure of blood from the spot is not fatal. The same can be negligence on the part of the investigating officer.
30. It is settled principle of law that defective investigation cannot be made base of acquitting the accused. In this regard reliance can be placed on a Judgment in case titled as State of West Bengal Vs. Meer Mohd Omar and Ors reported as JT 2000 (9) SC 467.
31. Now I will deal with the offence under Section 459 IPC. The provisions of Section 459 IPC reads as under:-
"Grievous hurt caused whilst committing lurking house-tress pass or house-breaking - Whoever, whilst committing lurking house -trespass or house- breaking, causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, shall be punished with [imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine".-: 15 :-
32. The provisions of Section 459 IPC came up for judicial scrutiny in case titled as Rohtas Vs. The State reported as 1987 (1) Crimes 576. Our own Hon'ble High Court has observed that in order to attract provisions of Section 459 IPC, the causing of grievous hurt or attempt to cause death or grievous hurt must be done in the course of the commission of lurking trespass or house breaking. It is not sufficient that the grievous hurt was caused or the attempt made after the completion of lurking house trespass or house trespass. The offence of house breaking is complete when the entry into the house is effected, and grievous hurt caused 'whilst committing' the trespass.
33. In the instant case according to the statement of PW-2 Shri Mahavir Singh accused had entered in the house after opening the gate of his house, he saw the accused persons in the gallery inside his house and the accused attacked with sword on him. The testimony of complainant Mahavir Singh goes to show that accused persons had already entered in the house and had not caused hurt or attempted to cause hurt 'whilst' committing lurking trespass or house breaking by night. Hence offence under Section 459 IPC is not made out as per law laid down in Rohtas's case (supra). The prosecution has also failed to prove that offence under Section 380/511 IPC is made out.
34. However, the accused Rinku is not absolved from the liability and the offence under Section 458 IPC is made out. The statement of Mahavir Singh clearly shows that accused persons committed lurking house trespass by night or house breaking by night having made -: 16 :- preparation for causing hurt. The same is clear from the fact that accused Rinku entered in the house, after opening the gate, at about 10.30 p.m. and he was having sword. It is true that charge under Section 458 IPC has not been framed but accused can be convicted.
35. Now coming to the charge against accused Santosh. The submission of Ld counsel for the accused that no charge is made out against accused Santosh holds water. The accused Santosh was not apprehended at the spot. He was not produced for Test Identification Parade. Said accused Santosh has been identified by the complainant Shri Mahavir Singh for the first time in the Court. It is settled law that such identification in the Court without any Test Identification Parade is week evidence. There is no other corroborative evidence against accused Santosh. In my view the prosecution has not been able to prove beyond all reasonable doubt that accused Santosh was among the other accused. Hence accused Santosh deserves to be acquitted.
36. As a result of above discussion prosecution has failed to prove its case beyond reasonable doubt against accused Santosh @ Disco. Benefit of doubt is given to accused Santosh and accused Santosh is acquitted. However, prosecution has successfully proved its case against accused Rinku @ Sonu for the offence under Section 458/34 IPC. Accordingly, accused Rinku @ Sonu is convicted for the offence under Section 458/34 IPC.
Announced in open Court (V.P. VAISH)
Dated 12 .12.2007 ADDL. SESSIONS JUDGE
ROHINI: DELHI
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IN THE COURT OF SHRI V.P. VAISH: ADDL. SESSIONS JUDGE ROHINI: DELHI IN RE Sessions case No. 410/06 FIR No. 825/02 PS: Nangloi U/s: 459/380/511/34 IPC State Versus Rinku @ Sonu S/o Prakash, R/o J-1437, Mangolpuri, New Delhi ORDER ON SENTENCE I have heard Shri Ashok Kumar Arya Advocate for the convict and Shri N.S. Kadyan, Ld. Addl PP for the State on the point of sentence. Ld counsel for the convict submits that convict is a poor person and has to support his wife and two minor children aged 3 years and 1 & ½ years. The convict is the sole bread earner in his family and there is no other person to look after the wife and two minor children of convict. It is also stated that convict is a first offender and a request for taking lenient view has been made on behalf of convict.
2. The convict has been convicted for the offence under Section 458 IPC. Keeping in view the facts and circumstances of the case, convict Rinku @ Sonu is sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs.5000/- (five thousand only). In default of payment of fine the convict shall further undergo rigorous imprisonment for three months. Benefit of Section 428 Cr.P.C. be given to convict.
-: 18 :- -: 2 :-3. Reader is directed to mention the period of detention during which convict remained in judicial custody in this case, on the warrants.
4. A copy of Judgment and order on sentence be given to convict. File be consigned to record room.
Announced in open Court (V.P. VAISH)
Dated: 15 .12.2007 ADDL. SESSIONS JUDGE
ROHINI: DELHI