Delhi District Court
State vs . 1. Allauddin S/O Afruddin on 25 May, 2011
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 1117/2009
Unique Case ID: 02404R0075512008
State Vs. 1. Allauddin S/o Afruddin
R/o Jhuggi No. N17A/93,
Pathar Wala Bagh, JJ Colony
Delhi.
2. Kuldeep Singh @ Kalli
S/o Wazir Singh,
R/o Jhuggi No. N17/86,
Pathar Wala Bagh,
Wazirpur, JJ Colony, Delhi.
3. Mahender @ Dharmender
S/o Ram Partap
R/o H. No. H155, JJ Colony,
Wazir Pur, Delhi.
4. Tinku @ Danish
S/o Yunus Khan
R/o Jhuggi No. N17A/113,
Pathar Wala Bagh,
Wazirpur JJ Colony, Delhi.
FIR No. : 452/2008
Under Section : 392/397/411/34 Indian penal
Code.
Police Station : Ashok Vihar.
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 1 of 65
Date of committal to Sessions Court : 30.01.2009
Judgment reserved on : 16.05.2011
Judgment pronounced on : 16.05.2011
JUDGMENT
Brief Facts: The case of prosecution in brief is that on 29.10.2008 at about 1:30 PM at ground of Jhalkari Bai School (Sarvoday School), Wazirpur, JJ Colony, the present accused namely Allauddin, Kuldeep Singh @ Kulli, Mahender @ Dharmender and Tinku @ Danish all in furtherance of their common intention committed robbery of Rs. 150/ from the pocket of Ramesh, Rs. 500/ from the pocket of Rakesh and one mobile phone belonging to Rakesh, Rs. 60/ from the pocket of Hira and Rs.30/ from the pocket of Mukesh, by voluntarily putting Ramesh, Rakesh, Mukesh and Hira in fear of instant hurt on their person and thereby committed the offence punishable under Section 392/34 Indian Penal Code. It is further alleged that the while committing the aforesaid robbery, the accused Kuldeep Singh @ Kulli used the deadly weapon i.e. Dagger and the accused Mahender @ Dharmender used knife and thereby they both have committed the offence punishable under Section 397 Indian Penal Code. Further, the accused Tinku @ Danish was found in possession of a mobile phone bearing IEMI No. 354523002063520 belonging to Rakesh and Rs.80/ belonging to Ramesh, Rakesh, Hira Lal and Mukesh. State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 2 of 65 Further, accused Allauddin was found in possession of Rs.100/ belonging to Ramesh, Rakesh, Hira and Mukesh. It is further alleged that the accused Kuldeep Singh @ Kulli was found in possession of Rs.210/ belonging to Rakesh, Ramesh, Hira and Mukesh. Case of prosecution in brief: The case of prosecution is that on 29.10.2008 on the receipt of DD No. 19 regarding robbery opposite Gauri Shanker Mandir JJ Colony, Wazirpur, ASI Dev Raj alongwith Ct. Surender and Ct. Sheesh Ram went to the spot where they came to know that incident had taken place inside the school, where they found four labours namely Ramesh, Rakesh, Heera Lal and Mukesh. ASI Dev Raj recorded the statement of Ramesh who stated that he was employed as labour on daily wages and was doing the work of plaster at Jhalkari Bai School, Wazirpur JJ colony and was residing in the said school alongwith his coworker. Complainant Ramesh further told ASI Dev Raj that when he was present inside the school along with his other brothers, four boys came inside the school, two of whom were having knives, out of whom one of them put the knife on his stomach and threatened him to hand over all the belongings and cash to them and thereafter removed Rs.150/ from his pocket, Rs. 500/ and a mobile from his brother Rakesh and in the meanwhile his third brother namely Heera who was sleeping inside the room heard the commotion and came out to enquire but the said boys also State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 3 of 65 removed money on the point of knife from the pocket of Heera, who was having 5060 rupees and thereafter those boys run away from the spot after which they (complainant) made a call on 100 Number.
On the basis of the above statement of victim Ramesh, present FIR was registered. Out of the four accused, three accused namely Allauddin, Kuldeep and Tinku were arrested on the same day from the Tikona Park at the instance of the victims. Thereafter, on a secret information, the fourth accused Mahender @ Dharmender was also arrested. After completing the investigations, the challan was filed before the court.
CHARGE:
Ld. predecessor of this court settled charges under Section 392/34 Indian Penal Code against all four accused namely Allauddin, Kuldeep Singh @ Kulli, Mahender @ Dharmender and Tinku @ Danish. Charge under Section 397 Indian Penal Code was also settled against the accused Kuldeep Singh and Mahender @ Dharmender. Further, charge under Section 411 Indian Penal Code was settled against the accused Tinku @ Danish, Allauddin and Kuldeep Singh @ Kulli. All the accused persons have pleaded not guilty and claimed trial.
EVIDENCE:
In order to prove the onus upon it, the prosecution has examined as many as eight witnesses.
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 4 of 65 Public Witnesses:
PW3 Ramesh has deposed that on the date of the incident which is approximately 1 ½ 2 years ago, he was employed as a labour on daily wages and was doing the work of plaster which was going on in a school at Wazirpur JJ colony and was residing in the said school along with his other coworkers. According to him, in that year on the next day to Deepawali he was having food along with his brother Rakesh at about 1 - 1:30 PM (Noon), when four boys came inside the school by jumping over the school boundary wall, two of whom were having knifes and one of the boys kept the knife on his (witness) stomach and threatened them to hand over all their belongings and cash to them. According to the witness, he told those boys that they (witness) are poor persons and have no money. He has further deposed that he was having Rs. 150/ in his pocket which was removed by one of the boys; his brother Rakesh was having Rs. 500/ which was also taken by these persons and in the meanwhile his third brother Hira who was sleeping inside the room heard the commotion and came out to inquire; he was having 5060 rupees in his pocket which was also removed by these boys and thereafter these boys went away form the spot. According to the witness, he made a PCR call at 100 number and told entire incident to the police who recorded his statement which is Ex.PW 3/A bearing his thumb impressions at point A. The witness has further State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 5 of 65 deposed that one of those boys was having a cut mark on the side of his head who snatched the mobile from his brother Rakesh. The witness has pointed out the accused Allauddin by putting his hand as the boy who had snatched the mobile and money from him and his brother. This court has also observed that the accused has an old cut mark on the left side of his temple. The witness has also identified the accused Tinku in the court by pointing out towards him as the boy who has having a knife and has put on his stomach. He has also pointed out towards the accused Dharmender in the court as the boy who was also having a knife and was standing on one side and threatening him and his brothers not to raise any alarm. He has further identified the accused Kuldeep in the court by pointing out towards him as the boy who was standing on one side and threatening them not to raise an alarm. According to the witness, he also shown to the police where the incident took place and on his instance the site plan Ex.PW3/B was prepared. On the same day he joined investigation and went with the police officials to search for the accused persons and there is a ground having a large number of bushes near the school where he was staying and he along with his brother Rakesh went in search of the accused along with police officers and they found two of these boys i.e. Aalluddin and Tinku @ Dinesh, sitting there. State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 6 of 65 According to the witness, he pointed out towards them as the same boys who had committed the incident and at his instance they were apprehended by the police and in their formal search, a knife was recovered from the possession of Tinku. The witness has further pointed out towards the accused Tinku as the person from whom mobile was recovered. According to him, one iron rod was recovered from the accused Aalluddin and the IO prepared the sketch of the dagger vide EX PW 3/C. He identified his thumb impression at document Ex.PW3/D at point A. The mobile was also taken into possession by the IO vide memo Ex.PW3/E bears his thumb impressions at point A. According to him the rod was seized by the police vide memo Ex.PW3/F bears his thumb impressions at point A. He further deposed that some amount was got recovered by one of the accused whose name he does not remember now but he has identified his thumb impression on the memo Ex.PW3/G at point A. The witness has further deposed that Rs 180/ were also recovered from one of the accused which was taken into possession by the IO vide memo Ex.PW3/H bearing his thumb impressions at point A. He does not remember about recoveries of other amount however he has identified his thumb impression on memos Ex.PW3/I at point A and memo Ex.PW3/J to Ex.PW3/M at point A. According to him he is illiterate and has come from District State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 7 of 65 Tikamgarh, MP and that is why he does not remember the amount of recoveries except Rs 180/ and Rs 210/. he has identified all the four accused in the court who were arrested by the police vide memos Ex.PW3/N to Ex.PW3/U which bears his thumb impressions at point A. The witness has also identified the case property in the court i.e. iron rod Ex. P1; knife/dagger Ex.P2; mobile phone as belonging to his brother Ex. P3 and Rs. 180/, Rs 210/ and Rs 100/ as recovered form accused persons which is Ex.P4 (collectively).
During his cross examination by Ld. defence counsels, the witness PW3 has deposed that the contents of the documents which he had signed were not read over and explained to him by the police. According to him he had not seen the accused persons before except the day of the incident. He does not remember if the IO had put any mark of identification on the notes recovered from the accused persons. He has denied the suggestion that the notes shown to him are not the same as recovered from the accused persons. According to the witness, the mobile phone shown to him in the court was belonging to his brother but he could not produce any document showing the ownership of the mobile phone Ex.P3. He has denied the suggestion that the mobile phone Ex.P3 is not of his brother and has been planted upon the accused. According to him, the accused persons were arrested at his instance by the IO and they were not known to him prior to this incident. He has denied the suggestion State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 8 of 65 that accused persons has been falsely implicated in this case by the police. He has admitted that the IO did not ask any public person to join the investigation in his presence.
PW4 Rakesh has deposed that on 29.10.2008 he along with Ramesh were present in JJ Colony school and was doing POP work in the school when Hira Lal and Mukesh also came there. He has deposed that at the time of this incident, they were sitting in the school when four persons came there out of whom two boys were having knife, one was having an iron rod and one was without any weapons. According to the witness, the persons who was without any weapon snatched his mobile and the person who was having an iron rod took out Rs 500/ from his left pocket of his pant. He further deposed that one of the boy who was having knife put the knife on his back towards right side and Rs 60/ were snatched from Heera; Rs 30/ were snatched from Mukesh and Rs 150/ were snatched from Ramesh and thereafter all the four accused persons ran away from the spot (correctly identified by the witness in the court). According to the witness, Ramesh made a call on 100 number and police came to the spot and recorded his statement and the present case was got registered. The witness has pointed out towards accused Kuldeep as the boy who was having knife. He has identified the accused Tinku as the boy who snatched the mobile. According to him, the accused Aalluddin was having iron rod. The witness has State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 9 of 65 deposed that the police thereafter prepared the memos which are Ex.PW3/C, Ex.3/D, Ex.3/E, Ex.3/F, Ex.3/G/ Ex.3/H and Ex.3/I all bearing his signatures at point B. The witness has further deposed that the accused were arrested in this case by the police vide memo Ex.PW3/N to Ex.PW3/Q and personally searched vide memo Ex.PW3/R to Ex.PW3/R3/U bearing his signatures at point B. According to the witness, he is illiterate and he can only sign, he is therefore unable to tell the contents of these documents but according to him he had signed the same at point B. The witness has further deposed that three persons were arrested by the police and another person was also arrested later on and he had identified them. The witness has identified the case property i.e. knife, rod, mobile, Rs 210/, Rs 180/ and Rs 100/ which are exhibited as P1 to P4.
In his cross examination by Ld. defence counsels, PW4 Rakesh has deposed that Ramesh had called on 100 number in his presence as the mobile was with Ramesh. He has deposed that the contents of the documents which he had signed were not read over and explained to him by the police. According to the witness, he had not seen the accused persons before the day of his examination in the court, except the day of the incident. Witness does not remember if the IO put any mark of identification on the notes recovered from the accused persons. He has denied the suggestion that the notes shown to him in the court are not the same as recovered from the State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 10 of 65 accused persons. According to him, the mobile phone shown to him in the court belonged to his brother but he is unable to produce any document showing the ownership of the mobile phone Ex.P3. He has denied the suggestion that mobile phone Ex.P3 is not of his brother and has been planted upon the accused. He has deposed that the accused persons were arrested at his instance by the investigating officer. The accused persons were not known to him prior to this incident. He has denied the suggestion that accused persons has been falsely implicated in this case by the police. According to him, the investigating officer did not ask any public person to join the investigation in his presence.
PW5 Hira Lal has deposed that on 29/10/08 he along with Rakesh, Ramesh and Mukesh had come to do the work of plaster in the school near Gauri Shankar Mandir, J.J. Colony, Wazirpur, Delhi. According to him, about 1:001:30 PM they were sitting in the school premises, when all the four accused persons (correctly identified) came there and two of these persons were having knives in their hands; one was having iron rod in his hand. According to the witness, the person who was without any weapon took out Rs. 60/ from his pocket of shirt and he also snatched the mobile from the hand of Rakesh; Rs. 500/ were taken out from the pocket of Rakesh by the person holding iron rod. The witness does not remember the amount which was taken out from the pocket of his State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 11 of 65 brother Ramesh. He has further deposed that Rs. 30/ were taken out from the pocket of Mukesh, and thereafter they ran away from the spot. The witness has deposed that Ramesh made the phone to the Police and Police came to the spot and recorded his statement. The witness has identified all the accused persons in the court today who according to him were arrested by the Police. The witness has further deposed that due to lapse of about two years, he does not remember as to which accused was having what weapon but he can identify them by face and all the accused persons are the same persons who snatched out money and mobile etc. on the point of knifes and iron rods. The witness has identified the case property i.e. knife, rod, mobile, Rs 210/, Rs 180/ and Rs 100/ which are exhibited as P1 to P4.
In his cross examination by Ld. defence counsels, the witness PW5 has deposed that the said school is surrounded with other houses. He has deposed that police did not ask any persons from those houses or any person in the school premises to join the proceeding. According to the witness, Ramesh made the telephonic call after about 1015 minutes after the accused persons ran away. The witness has deposed that Ramesh was having another mobile 1200 from which he made call to the police and as the said mobile was old one therefore it was not snatched by the accused persons. He deposed that they did not raise alarm and only made the call to the State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 12 of 65 police. Witness has denied the suggestion that accused persons having falsely implicated in this case. According to him, the contents of the documents which he had signed were not read over and explained to him by the police. He does not remember if the investigating officer put any mark of identification on the notes recovered from the accused persons. He has denied the suggestion that the notes shown to him in the court are not the same as recovered from the accused persons. According to the witness, the mobile phone shown to him in the court was belonging to his brother Rakesh. He further deposed that he cannot produce any document showing the ownership of the mobile phone Ex.P3. He has denied the suggestion that the mobile phone Ex.P3 is not of his brother and has been planted upon the accused. He deposed that the accused persons were arrested at his instance by the investigating officer and that the accused persons were not known to him prior to this incident. He has denied the suggestion that the accused persons have been falsely implicated in this case by the police. According to him the investigating officer did not ask any public person to join the investigation in his presence.
Medical Evidence: PW1 Dr. Awadhesh has deposed that on 29.10.2008, he medically examined the accused Tinku @ Danish, Allauddin and Kuldeep @ Kulli vide MLCs Ex.PW1/A, Ex.PW1/B and Ex.PW1/C State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 13 of 65 all bearing his signatures at point A. The witness has not been cross examined on behalf of the accused despite opportunity in this regard.
Police / official witnesses: PW1 HC Suman Prasad has deposed that on 29.10.2008 he was posted at Duty Officer and on that day on receipt of rukka from Ct. Surender which was sent by ASI Dev Raj, he registered the present FIR copy of which is Ex.PW1/A bearing his signatures at point A. He also made endorsement on the rukka which is Ex.PW1/B bearing his signatures at point A. The witness has not been cross examined on behalf of the accused despite opportunity in this regard.
PW2 L/HC Vijay Laxmi has deposed that on 29.10.2008 she was posted at Police Post Wazirpur, JJ Colony as DD Writer and on that day she recorded the DD No. 19 whose attested copy of is Ex.PW2/A bearing her signatures at point A. The witness has not been cross examined on behalf of the accused despite opportunity in this regard.
PW6 HC Shish Ram has deposed that on 29.10.2008 he was posted at police station Ashok Vihar, PP JJ Colony, Wazirpur and on that day he joined investigation alongwith ASI Dev Raj after a call / information was received vide DD No. 19 regarding robbery at opposite Gauri Shankar Mandir at JJ Colony Wazirpur, to the effect that after showing the pistol to the labourers money had been State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 14 of 65 snatched. According to him, on receipt of this information they went yo the spot and came to know that the incident had taken place inside the school, where they found four labourers namely Ramesh, Rakesh, Hira Lal and Mukesh who told them that four boys came from the gate of the school. According to the witness, Ramesh told them that he and Rakesh were sitting inside the boundary wall of school and were taking rest where as they were doing some construction work and that one boy was carrying a rod and two were having knives and one of empty handed. According to the witness, Ramesh informed him that the person who was not carrying anything removed the Chinese mobile from the pocket of Rakesh while the others threatened him and that on hearing their cries, their other colleague i.e. Hira Lal and Mukesh also came there on which the person who was carrying the rod removed Rs.500/ from the pocket of Rakesh, Rs.150/ from the pocket of Ramesh, Rs.60/ from the pocket of Hira Lal and Rs. 30/ from Mukesh and after threatening them they left the spot. Witness has deposed that, Ramesh further told them that after these persons went out of the gate, they made 100 call. Thereafter, the investigating officer recorded the statement of Ramesh and after making an endorsement on the same handed over the same to the Ct. Surender for taking the same to police station for registration of FIR and in the meanwhile, he (witness) and ASI Dev Raj alongwith those boys including the complainant went into the search of accused State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 15 of 65 persons inside the boundary wall of the school. According to the witness, after Ct. Surender came back alongwith the copy of FIR and original rukka, he (witness) alongwith ASI Dev Raj, Ct. Surender and complainant Ramesh and Rakesh started searching for the accused and went towards JIII block, Wazirpur. The witness has further deposed that the victim had told them that one of those persons was having a cut mark on his face, since he knew that there was one person who was rafayian of the area and he suspected him as the same boy. The witness has deposed that, he was the beat constable of the area and knew the house of said boy and therefore they all went to E Block Pathar Wala Bagh where they could not found anybody and in the meantime a secret informer informed him that four five boys had gathered at Tikona Park at JJ Colony and had gone there for consuming liquor. On the pointing out of secret informer, they went to Tikona Park where they found three boys and they apprehended all three of them out of them one was Tinku @ Danish who had a cut mark on his face and whom he (witness) previously knew as rafayian of the area whereas the other two boys disclosed their names as Allauddin and Kuldeep. According to the witness, the complainant and victim were also with them who immediately identified the boys as the same boys who came inside the boundary wall of the school and robbed them. The witness has deposed that on interrogation the said boys also disclosed that there State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 16 of 65 was fourth boy who had gone to fetch liquor and their personal search was conducted. From the search of Tinku one mobile phone was recovered from right side of his pant and Rs.180/ from the pocket of his shirt was also recovered; from the search of Kuldeep, Rs.210/ were recovered from the left side pocket of his pant and he was also hiding a dagger inside the pant on the back side. Witness has further deposed that on search of Allauddin, Rs.100/ was recovered from the pocket of shirt and he also got recovered a rod from the bushes near the place they were sitting. The investigating officer immediately prepared the seizure memos of the aforesaid articles, all the accused were arrested and the khaka of dagger was prepared and the knife, mobile, rod and currency notes were converted into pullands. The khaka of dagger is Ex.PW3/C bearing his signatures at point C; seizure memo of dagger is Ex.PW3/D bearing his signature at point C; the seizure memo of mobile phone is Ex.PW3/E bearing his signature at point C; seizure memo of rod is Ex.PW3/F bearing his signature at point C; seizure memo of currency notes i.e. Rs.210/, Rs.180/ and Rs.100/, are Ex.PW3/G to Ex.PW3/I, bearing his signature at point C. According to the witness, after the preparation of the pulland and sealing the same, the investigating officer handed over the seal to him (witness). He has proved the arrest memo of Kuldeep Ex.PW3/N bearing his State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 17 of 65 signature at point C; arrest memo of Tinku Ex.PW3/O bearing his signature at point C; arrest memo of Allauddin Ex.PW3/P bearing his signature at point C; personal search memo of Kuldeep Ex.PW3/U bearing his signature at point C; personal search memo of Tinku Ex.PW3/S bearing his signature at point C; personal search memo of Allauddin Ex.PW3/T bearing his signature at pointC. The witness has deposed that thereafter, all the accused persons made statements to the IO admitting their involvement in the present case and disclosure statement of accused Allauddin is Ex.PW3/J, Tinku is Ex.PW3/K and Kuldeep is Ex.PW3/M, all are bearing his signatures at point B. Witness has deposed that thereafter the accused persons were taken to the BJRM hospital where they were medically examined and thereafter were brought to the police station. According to this witness, on 4.11.2008, he again joined the investigation of this case alongwith ASI Dev Raj and they went to the school where the incident had taken place and took the complainant / victim Ramesh and Rakesh and further went to the house of accused Mahender but he was not found at the house. He has deposed that in the meantime the informer informed them that Mahender is sitting at Bus Stand No. 115, JJ Colony, Wazirpur and on receipt of this information they started for the place as told by the informer. According to him, on the way, the IO asked the public persons to join the investigation but none agreed and left the place without State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 18 of 65 disclosing their name and address. He has deposed that when they reached at bus stand no. 115, he identified the accused Mahender as he was the BC of the area and he was apprehended. According to the witness, on the personal search of accused Mahender nothing was recovered and the memo in this regard was prepared which is Ex.PW3/R bearing his signature at pint C and thereafter accused Mahender was arrested vide memo Ex.PW3/Q bearing his signature at pint C and his disclosure statement was recorded which is Ex.PW3/L bearing his signatures at point B. The witness has identified the accused in the court. He has also identified the case property i.e. iron rod Ex.P1; knife Ex.P2; mobile phone Ex.P3 and currency notes of Rs.180/, Rs.210/ and Rs.100/ Ex.P4 (collectively).
During his cross examination by Ld. defence counsels, the witness has deposed that the investigating officer had told him at 1:50 PM to proceed for the spot and that IO had gone on his own motorcycle and he had gone on his own motorcycle and reached at the spot within five minutes. According to him the school is surrounded by the residential area and there was no public witness present on the spot except the complainant / victims. They remained at the spot for about 45 minutes and directly went to the house of Tinku from the spot on foot which was at a distance of 150/200 meters and when Tinku was not found at his house, they searched State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 19 of 65 him at various blocks of the locality. According to the witness, they searched him in JIII block, E Block and Patthar Wala Bagh. They had searched him in the streets of those blocks on foot. He has deposed that the park in which the accused was found is surrounded by densely populated area and that there were many public persons present in the park when the accused were apprehended. According to him the investigating officer made the writing work while sitting under the hut in the park itself. He does not remember to which family member of the accused persons was informed by the IO about their arrest. He also does not know by which medium the IO informed the family members of the accused persons. He has denied the suggestion that the accused persons were not arrested and interrogated in his presence. He does not remember which type of clothes the accused were wearing at the time of arrest. He has denied the suggestion that nothing was recovered from the possession of the accused persons. They remained in the park till 10.30 PM and that the disclosure of the accused is running into one page each and are bearing the signatures of Rakesh, Ct. Surender and himself and thumb impression of Ramesh. According to the witness, they took the accused persons to the hospital in a auto rickshaw and thereafter reached at police station at about 11:30 PM and that the distance between the park and the hospital is about 8 Kms. He has denied the suggestion that the accused persons were falsely implicated in this State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 20 of 65 case after lifting them from their respective houses or that nothing was recovered from the accused persons.
PW7 HC Surender has deposed that on 29.10.2008 he was posted at police station Ashok Vihar, PP JJ Colony, Wazirpur and on that day he joined investigation alongwith ASI Dev Raj after a call / information was received vide DD No. 19 regarding robbery at opposite Gauri Shankar Mandir at JJ Colony Wazirpur, to the effect that after showing the pistol to the labourers money had been snatched. According to him on receipt of this information they went at the spot and came to know that the incident had taken place inside the school, where they found four labourers namely Ramesh, Rakesh, Hira Lal and Mukesh who told them that four boys came from the gate of the school. He deposed that Ramesh told them that he and Rakesh were sitting inside the boundary wall of school and were taking rest where as they were doing some construction work. Witness has deposed that Ramesh also told them that one boy was carrying a road and two were having knives and one of empty handed. He was also informed by Ramesh that the person who was not carrying anything removed the Chinese mobile from the pocket of Rakesh while the others threatened him and on hearing their cries, their other colleague i.e. Hira Lal and Mukesh also came there on which the person who was carrying the rod removed Rs.500/ from the pocket of Rakesh, Rs.150/ from the pocket of Ramesh, Rs.60/ State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 21 of 65 from the pocket of Hira Lal and Rs. 30/ from Mukesh and after threatening them they left the spot. Witness has further deposed that he was further told that after those persons went out of the gate, they (complainant) made 100 call. Thereafter, the investigating officer recorded the statement of Ramesh and after making an endorsement on the same handed over the same to me for taking the same to police station for registration of FIR and he left the spot. After recording the FIR, he came back at the spot alongwith the copy of FIR and original rukka and handed over the same to the ASI Dev Raj and thereafter he, along with investigating officer and Ct. Sish Ram and complainant Ramesh and Rakesh started searching for the accused and went towards JIII block, Wazirpur. The rukka is Ex.PW7/A. The witness has further deposed that the victim had told them that one of those persons was having a cut mark on his face and since Ct. Sish Ram was the beat constable of the area he suspected the involvement of a boy who was the rafayian of the area and thereafter they all went to E Block Pathar Wala Bagh where they could not find anybody. According to this witness, in the meantime a secret informer informed them that four five boys had gathered at Tikona Park at JJ Colony and had gone there for consuming liquor. The witness has deposed that on the pointing out of secret informer they went to Tikona park where they found three boys and they apprehended all three of them out of them one was Tinku @ Danish State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 22 of 65 who had a cut mark on his face. The witness has deposed that the other two boys disclosed their names as Allauddin and Kuldeep. He has deposed that the complainant and victim were also with them who immediately identified the boys as the same boys who came inside the boundary wall of the school and robbed them. According to the witness, on interrogation the said boys also disclosed that there was fourth boy who had gone to fetch liquor and their personal search was conducted. He has deposed that from the search of Tinku one mobile phone was recovered from right side of his pant and Rs. 180/ from the pocket of his shirt was also recovered; from the search of Kuldeep, Rs.210/ were recovered from the left side pocket of his pant and he was also hiding a dagger inside the pant on the back side. According to him, on search of Allauddin, Rs.100/ was recovered from the pocket of shirt and he also got recovered a rod from the bushes near the place they were sitting. Thereafter, the investigating officer immediately prepared the seizure memos of the aforesaid articles; all accused were arrested and the khaka of dagger was prepared by the IO; knife, mobile, rod and currency notes were converted into pullands. The khaka of dagger is Ex.PW3/C bearing his signatures at point D; seizure memo of dagger is Ex.PW3/D bearing his signature at point D, seizure memo of mobile phone is Ex.PW3/E bearing his signature at point D; seizure memo of rod is Ex.PW3/F bearing his signature at point D; seizure memo of State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 23 of 65 currency notes i.e. Rs.210/, Rs.180/ and Rs.100/, are Ex.PW3/G to Ex.PW3/I, bearing his signature at point D. According to the witness, after the preparation of the pullanda and sealing the same the investigating officer handed over the seal to Ct. Sish Ram. The arrest memo of Kuldeep is Ex.PW3/N bearing his signature at point D; arrest memo of Tinku is Ex.PW3/O bearing his signature at point D; arrest memo of Allauddin is Ex.PW3/P bearing his signature at point D; personal search memo of Kuldeep is Ex.PW3/U bearing his signature at point D; personal search memo of Tinku is Ex.PW3/S bearing his signature at point D; personal search memo of Allauddin is Ex.PW3/T bearing his signature at point D. Thereafter, all the accused persons made statements to the IO admitting their involvement in the present case; disclosure statement of accused Allauddin is Ex.PW3/J bearing his signatures at point C, Tinku is Ex.PW3/K bearing signatures at point C and Kuldeep is Ex.PW3/M bearing signatures at point C. Thereafter, the accused persons were taken to the BJRM hospital where they were medically examined and thereafter were brought to the police station. The witness has correctly identified all the accused in the court. He has also identified the case property Ex.P1 to Ex.P4.
During his cross examination by Ld. defence counsel, the witness has deposed that he left the spot alongwith the rukka at State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 24 of 65 3.50PM. HE went to police station on his own motorcycle and came back alongwith the rukka and copy of FIR at about 4:30 PM. According to him, the investigating officer had told him at 1:50 PM to proceed for the spot and (IO) had gone on his own motorcycle whereas he had gone on his own motorcycle and Ct. Sish Ram had gone on his own motorcycle and reached at the spot within ten minutes. According to him, the school is surrounded by the residential area and that there were public persons present on the spot alongwith the complainant / victims and remained at the spot till 3:50 PM. The witness has deposed that the investigating officer had not inquired from the public persons present at the spot and when he reached the spot after getting the FIR registered the IO was still present their with Ct. Sish Ram. The witness has further deposed that they directly went to the JJ Colony, J Block, Patharwala Bagh, and searched for all the accused persons. According to him, first of all they had gone to the house of Danish, then they left for the Pathar Wala Bagh and then to the J Block and then E block on foot. They left their motorcycles in the school and had gone for the search on foot. He deposed that the secret information was given to them at 5.45 PM in J block and that the distance between the Tikona Park and the spot where they received the secret information is 100/125 meters. They reached in the tikona park within 10 minutes which is about 100 meters in length. Witness has further deposed that the park State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 25 of 65 in which the accused was found is surrounded by densely populated area and there were many public persons present in the park when the accused were apprehended and that the IO made the writing work while sitting under the hut in the park itself. Witness does not remember to which family member of the accused persons was informed by the IO about their arrest. He also does not know by which medium the IO informed the family members of the accused persons. He has denied the suggestion that the accused persons were not arrested and interrogated in his presence. According to him they remained in the park till 10.30 PM and took the accused persons to the hospital in a auto rickshaw and thereafter reached at police station at about 12:00 (night). Witness has denied the suggestion that the accused persons were falsely implicated in this case after lifting them from their respective houses or that nothing was recovered from the accused persons.
PW8 ASI Dev Raj has deposed that on 29.10.2008 he was posted at police station Ashok Vihar, PP JJ Colony, Wazirpur and on that day he joined the investigation of this case after a call / information was received vide DD No. 19 regarding robbery at opposite Gauri Shankar Mandir at JJ Colony Wazirpur, to the effect that after showing the pistol to the labourers money had been snatched. According to him on receipt of this information he alongwith Ct Surender and Ct. Sheesh Ram went at the spot where State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 26 of 65 they came to know that the incident had taken place inside the school, where they found four labourers namely Ramesh, Rakesh, Hira Lal and Mukesh who told them that four boys came from the gate of the school. According to him, Ramesh told them that he and Rakesh were sitting inside the boundary wall of school and were taking rest where as they were doing some construction work. Ramesh also also told them that one boy was carrying a rod and two were having knives and one of empty handed. According to the witness, Ramesh further informed them that the person who was not carrying anything removed the Chinese mobile from the pocket of Rakesh while the others threatened him and on hearing their cries, their other colleague i.e. Hira Lal and Mukesh also came there on which the person who was carrying the rod removed Rs.500/ from the pocket of Rakesh, Rs.150/ from the pocket of Ramesh, Rs.60/ from the pocket of Hira Lal and Rs. 30/ from Mukesh and after threatening them they left the spot. Witness has also deposed that Ramesh has informed them that after these persons went out of the gate, they made 100 call. Thereafter, IO recorded the statement of Ramesh and after making an endorsement on the same handed over the same to the Ct. Surender for taking the same to PS for registration of FIR. In the meanwhile I alongwith Ct. Sish Ram and complainant / victim went into the search of accused persons inside the boundary wall of the school and after Ct. Surender came back State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 27 of 65 alongwith the copy of FIR and original rukka, they alongwith the complainant Ramesh and Rakesh started searching for the accused and went towards JIII block, Wazirpur. According to him, Ramesh also informed him that one of those persons was having a cut mark on his face and since Ct. Sish Ram was the beat constable of the area therefore he suspected one boy and as he knew the house of said boy and therefore they all went to E Block Pathar Wala Bagh where they could not found anybody. In the meantime a secret informer informed them that four five boys had gathered at Tikona Park at JJ Colony and had gone there for consuming liquor. According to the witness, on the pointing out of secret informer they went to Tikona park where they found three boys and they apprehended all three of them out of them one was Tinku @ Danish who had a cut mark on his face and whom Ct. Sish Ram previously knew as rafayian of the area. He deposed that the other two boys disclosed their names as Allauddin and Kuldeep. According to the witness, the complainant and victim were also with them who immediately identified the boys as the same boys who came inside the boundary wall of the school and robbed them and on interrogation the said boys also disclosed that there was fourth boy who had gone to fetch liquor and their personal search was conducted. He deposed that from the search of Tinku one mobile phone was recovered from right side of his pant and Rs.180/ from the pocket of his shirt was also recovered; from State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 28 of 65 the search of Kuldeep, Rs.210/ were recovered from the left side pocket of his pant and he was also hiding a dagger inside the pant on the back side; on search of Allauddin, Rs.100/ was recovered from the pocket of shirt and he also got recovered a rod from the bushes near the place they were sitting. The witness has deposed that he immediately prepared the seizure memos of the aforesaid articles and the accused were arrested and the khaka of dagger was prepared by the him. The knife, mobile, rod and currency notes were converted into pullands, khaka of dagger is Ex.PW3/C bearing his signatures at point X; seizure memo of dagger Ex.PW3/D bearing his signature at point X; seizure memo of mobile phone Ex.PW3/E bearing his signature at point X; seizure memo of rod is Ex.PW3/F bearing his signature at point X; seizure memo of currency notes i.e. Rs.210/, Rs.180/ and Rs.100/, are Ex.PW3/G to Ex.PW3/I, bearing his signature at point X and after preparation of the pullanda and sealing the same the he handed over the seal to Ct. Sheesh Ram. The arrest memo of Kuldeep is Ex.PW3/N bearing his signature at point X; arrest memo of Tinku is Ex.PW3/O bearing his signature at point X; arrest memo of Allauddin is Ex.PW3/P bearing his signature at point X; personal search memo of Kuldeep is Ex.PW3/U bearing his signature at point X; personal search memo of Tinku is Ex.PW3/S bearing his signature at point X; personal search memo of Allauddin State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 29 of 65 is Ex.PW3/T bearing his signature at pointX. Thereafter, all the accused persons made statements admitting their involvement in the present case; disclosure statement of accused Allauddin is Ex.PW3/J, Tinku is Ex.PW3/K and Kuldeep is Ex.PW3/M, all are bearing his signatures at point X. Thereafter the accused persons were taken to the BJRM hospital where they were medically examined and thereafter were brought to the police station. According to the witness, on 4.11.2008, he again joined the investigation of this case alongwith Ct. Shish Ram and they went to the school where the incident had taken place and took the complainant / victim Ramesh and Rakesh and further went to the house of accused Mahender but he was not found at the house. In the meantime the informer informed them that Mahender is sitting at Bus Stand No. 115, JJ Colony, Wazirpur and on receipt of this information they started for the place as told by the informer. On the way, he asked the public persons to join the investigation but none agreed and left the place without disclosing their name and address. When they reached at bus stand no. 115, Ct. Sish Ram identified the accused Mahender as he was the BC of the area and he was apprehended. According to him, on the personal search of accused Mahender nothing was recovered and the memo in this regard was prepared which is Ex.PW3/R bearing his signature at point X and thereafter accused Mahender was arrested vide memo Ex.PW3/Q State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 30 of 65 bearing his signature at pint X and his disclosure statement was recorded which is Ex.PW3/L bearing his signatures at point X. He has identified the accused persons in the court. He has also identified the case property in the court.
In his cross examination by Ld. defence counsel, the witness has deposed that they left the police post immediately at 1:50 PM. He had gone on his own motorcycle and Ct. Surender and Ct. Sish Ram also gone on their own motorcycles and reached at the spot within five minutes. He deposed that the school is surrounded by the residential area and there was no public witness present on the spot except the complainant / victims. He does not remember for what time they remained at the spot. They searched the accused many places i.e. Ashoka Park, JIII, and after that they went to the house of Tinku. According to him, they had first gone to Ashoka Park then they moved to JIII block and then they had gone to the house of accused Tinku @ Danish on foot. They received the information in J III block near the park. According to him, the house of the accused Tinku is situated in Pattharwala Bagh and not in JIII Block. He has deposed that he received the information at about 5.45 PM and that the distance between the Tikona Park and the spot where they received the information is 200/250 meters. He had not informed any PCR to reach in the Tikona Park to arrest the accused persons. According to him the park in which the accused was found is State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 31 of 65 surrounded by densely populated area. They reached at the park at about 6 PM and that there were many public persons present in the park when the accused were apprehended. According to him he asked 34 persons to join the investigation but none agreed and left the place. He did not give any notice in writing to any of them. He deposed that he made the writing work while sitting under the hut in the park itself. The witness has further deposed that after the arrest of accused, their family members were duly informed. He informed the family members of the accused in person by going to their houses. According to him he had gone to the house of accused persons after 10:30 PM. He deposed that Ramesh and Rakesh had gone to the school after 10:30 PM from Tikona Park. He does not know when he reached the police post and states that he had never gone to the police station. They all had left the motorcycle in the school. He had gone to bring the motorcycle after 10:30 PM after sending the accused for medical. He is unable to tell when Ct. Surender and Ct. Sish Ram had taken their motorcycles from the spot. According to him, the sketch of the knife was prepared by him after registration of the FIR. He does not remember which type of clothes the accused were wearing at the time of arrest. He has denied the suggestion that nothing was recovered from the possession of the accused persons. They remained in the park till 10.30 PM. The disclosure of the accused is running into one page each and are bearing the signatures of Rakesh, State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 32 of 65 Ct. Surender and Ct. Sish Ram and himself and thumb impression of Ramesh. He has deposed that Ct. Sish Ram and Ct. Surender had taken the accused persons to the hospital in a auto rickshaw. He has denied the suggestion that the accused persons were falsely implicated in this case after lifting them from their respective houses or that nothing was recovered from the accused persons. Statement of Accused and Defence Evidence:
After concluding the evidence of prosecution, statement of the accused were recorded under Section 313 Cr. PC in which all incriminating material which has come on record during trial was put to them but the accused have denied the same.
Accused Tinku has stated that he has been falsely implicated in this case by the police officials of police station Ashok Vihar to solve the present case after lifting him from his residence. According to him, nothing was recovered from him or at his instance and the the case property has been planted upon him.
Similarly, the accused Mahender has stated that he has been falsely implicated in this case by the police after lifting him from his resident. He has further stated that he is a labour by profession and belongs to a poor family. According to him, nothing was recovered from him or at his instance and the the case property has been planted upon him.
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 33 of 65
The accused Allaudding has also stated that he has been falsely implicated in this case by the police officials of police station Ashok Vihar to solve the present case. He stated that he is a labour by profession and belongs to a poor family. He has further stated that he was lifted by the police from his residence and falsely implicated in this case. According to him, nothing was recovered from him or at his instance and the the case property has been planted upon him.
The accused Kuldeep Singh has stated that he has been falsely implicated in this case by the police after lifting him from his residence while he was sitting in Mata Ki Chowki. He has stated that he is a labour by profession and belongs to a poor family. He has further stated that the police demanded money from him or else to implicate in this case and because he could not meet their demand due to which reason they have falsely implicated him in this case. According to him, nothing was recovered from him or at his instance and the the case property has been planted upon him. He has examined his mother in his defence as DW1.
DW1 Smt. Ramesh Kaur has deposed she is the mother of accused Kuldeep. According to him, about two years back, one day after Diwali festival her son Kuldeep was standing in front of her house when four five police officials came there and took his son to the police post by saying that they will leave him after some State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 34 of 65 interrogation. She has deposed that she also went to police post and asked the reason to which the police officials did not give any reason. The witness has further deposed that they demanded money in order to leave him. She deposed that she was not having money therefore she could not give him money. According to witness, her son Kuldeep has been falsely implicated in this case.
During her cross examination, the witness has deposed that she does not remember the date when police officials came to her house and took her son. She is illiterate. She deposed that the police officials came to her house at about 67 PM. She deposed that they immediately took her son to the police post. He is unable to tell as to by what means the police officials came to her house. She chased the police officials. She deposed that her son was taken by them on foot but she does not know the name of those police officials who were in police uniform. According to the witness, large number of public persons collected when police came and took his son but none of them came with her to the police post. She has denied the suggestion that the police officials as stated by her did not come to her house or that did not take her son to the police post that is why no public persons gathered there, went to the police post along with her. She is unable to give the name of the police official to whom she met and who demanded money from her. She did not meet incharge, police post nor she made any complaint to the higher authorities of State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 35 of 65 the police against the erring police officials. She has denied the suggestion that no such incident has taken place therefore she did not make any complaint to the higher authorities either orally or in writing regarding demand of money and lifting of her son. She further did not see the badge or name plate of the police officials who came to her house. According to her, none of public persons of the area saw the badge or the name plate of the police officials. She is unable to tell the facts of this case. According to the witness, her son used to take liquor and sometime he takes liquor with his friends. She has denied the suggestion that being mother of accused Kuldeep, she has deposed falsely regarding taking of her son and demand of money by the police officials.
FINDINGS:
I have gone through the testimony of various witnesses and other material placed on record. I have also gone through the written synopsis of arguments filed on behalf of the accused and duly considered the same.
Identity of the Accused:
The present FIR has been registered on the complaint of Ramesh who has been examined before this court as PW3 who has in his testimony supported the version given by him to the police which statement is Ex.PW3/A bearing his thumb impression at point A. He State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 36 of 65 has identified the accused persons Allauddin, Tinku @ Danish, Mahender @ Dharmender and Kuldeep in the court as the persons who had robbed them on the point of arms. The testimonies of PW3 Ramesh finds due corroboration from the statement of PW4 Rakesh, who was also present at the time of incident and has identified the accused Allauddin, Tinku @ Danish, Mahender @ Dharmender and Kuldeep in the court. The testimonies of PW3 and PW4 also find due corroboration from the testimony of PW5 Hira who has also identified all the four accused in the court as the persons who had committed robbery upon them on the point of knives and iron rod. In fact, the victim Ramesh had at the time of the incident itself described one of the assailants as a boy having cut mark on his face who was to be Allauddin and as observed by the court he has a distinctive cut mark on his face. Nothing much has come out of the cross examination of these witnesses. It is evident from the record that none of the accused were known to the victims prior to the incident and there is no reason them to falsely implicate the accused. Therefore, under these circumstances, I hereby hold that the identity of all the four accused namely Allauddin, Tinku @ Danish, Mahender @ Dharmender and Kuldeep stand established. Case of the prosecution and allegations against the accused:
The case of the prosecution is that on 29.10.2008, all the four accused before this court namely, Allauddin, Tinku @ Danish, State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 37 of 65 Mahender @ Dharmender and Kuldeep, had entered the JJ Colony School where some labourers were staying and some repair work was going on inside the School and all the four boys who were armed with knives and iron rod entered into the school and committed robbery upon the victims, all of whom were the labourers and were present in the school complex and snatched their money and mobile on the point of knives and iron rod. In this regard, the testimony of the complainant Ramesh who has been examined as PW3 is reproduced as under:
"...... In that year on the next day to Deepawali I and my brother Rakesh were having our food at about 1
- 1:30 PM(Noon). Four boys came inside the school by jumping over the school boundary wall. Two of these boys were having knifes and one of the boys kept the knife on my stomach and threatened us to hand over all our belongings and cash to them. I told them that we are poor persons and from where I can give them money. I was having Rs 150/ in my pocket which was removed by one of the boys. My brother Rakesh was having Rs 500/ which was also taken by these persons. In the meanwhile my third brother Hira who was sleeping inside the room heard the commotion and came out to inquire. He State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 38 of 65 was 5060 rupees in his pocket which was also removed by these boys. Thereafter these boys went away form the spot. I made a PCR call at 100 number. When the police came to the spot I told them entire incident and they recorded my statement which is EX PW 3/A bearing my thumb impressions at point A. One of these boys was having a cut mark on the side of his head. At this stage the witness has gestured towards the side of his temple/head and pointed out the place where he states there was a old cut mark. The witness states that the said boy was the one who snatched the mobile from his brother Rakesh. I can identify the said boys but I do not know their names.
At this stage the witness has pointed out by putting his hand on the accused Allauddin as the boy who had snatched the mobile and money from him and his brother. COURT OBSERVATION the accused has an old cut mark on the left side of his temple.
The witness has also identified the accused Tinku by pointing out towards him as the State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 39 of 65 boy who has having a knife and had put it on his stomach. He has also pointed out towards the accused Dharmender as the boy who was also having a knife and was standing on one side and threatening him and his brothers not to raise any alarm. He has further identified the accused Kuldeep by pointing out towards him as the boy who was standing on one side and threatening them not to raise an alarm....."
Similarly, PW4 Rakesh the brother of complainant who was present at the spot of incident who is also one of the victims whose money was snatched, has also identified all the four accused and attributed the specific role to them. The relevant portion of his deposition is reproduced as under:
"........ On 29.10.2008 I was present in JJ colony school. I along with Ramesh were present in the said school and had come to do the POP work in the school. Hira Lal and Mukesh also came there. At the time of this incident we were sitting in the school. Four persons came there. Two boys were having State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 40 of 65 knife, one was having an iron rod and one was without any weapon. The persons who was without any weapon snatched my mobile and the person who was having iron rod took out Rs 500/ from my left pocket of my pant. One of the boy who was having knife put the knife on my back towards right side. Rs 60/ were snatched from Hira, Rs 30/ were snatched from Mukesh and Rs 150/ were snatched from Ramesh. Thereafter all the four accused persons who are present in the court today ran away from the spot. Ramesh made a call on 100 number. Police came to the spot. My statement was recorded by the police. The present case was got registered.
At this stage the witness has pointed out towards Kuldeep who was having knife.
Tinku snatched the mobile, remaining Aalluddin was having iron rod. ...."
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 41 of 65 Further, PW5 Hira Lal has also similarly deposed who was present at the spot along with Ramesh, Rakesh and Mukesh for doing the POP work in the school. The relevant portion of his testimony before the court is reproduced as under:
"...... On 29/10/08 I along with Rakesh, Ramesh and Mukesh had come to do the work of plaster in the school near Gauri Shankar Mandir, J.J. Colony, Wazirpur, Delhi. About 1:001:30 PM we were sitting in the school premises. All the four accused persons present in the court today came there. Two of these persons were having knifes in their hands. One was having iron rod in his hand.
The person who was without any weapon took out Rs. 60/ from my pocket of shirt and he also snatched the mobile from the hand of Rakesh.
Rs. 500/ were taken out from the pocket of Rakesh from the person holding iron rod. I do not remember the amount which was taken out from the pocket of my brother, Ramesh. Rs.
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 42 of 65 30/ were taken out from the pocket of Mukesh. Then, they ran away from the spot. Ramesh made the phone to the Police. Police came to the spot and recorded my statement. All the accused persons present in the court today who were arrested by the Police later.
Due to lapse of about two years, I do not remember as to which accused person was having what weapon but I can identify them by face and all the accused persons are the same persons who snatched out money and mobile etc. on the point of knifes and iron rods. ......."
I may mention in this regard that another eye witness and victim Mukesh who was also present at the spot and had been robbed by the accused on the point of knives was not traceable during trial and was hence dropped as a witness by the prosecution.
The testimonies of all the above witnesses show that they have corroborated each other on all material particulars i.e. State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 43 of 65 Firstly with regard to proving the identity of all the accused persons, Secondly they have proved that all the four accused namely Allauddin, Kuldeep Singh @ Kulli, Mahender @ Dharmender and Tinku @ Danish had come to the school at JJ Colony where all of the victims / witnesses namely Ramesh, Rakesh, Hira Lal and Mukesh were present on account of POP work going on all of them being labourers. Thirdly, they have proved that the accused were duly armed with knives and iron rod and had snatched their money and mobile phone. Fourthly, all the public witnesses have proved the arrest of three accused i.e. Allauddin, Tinku and Kuldeep on the same day within a few hours of the incident. Fifthly, it has been duly proved by the public witnesses / victims that since the police reached the spot, they joined the investigation with the police and went in search of the accused and when they reached the ground near the school having large bushes, they found two boys i.e. accused Tinku and Allauddin sitting there who on their pointing out were apprehended by the police when knife was recovered from the possession of the Tinku and other persons and soon thereafter the accused Kuldeep was also arrested from the same ground. PW3 Ramesh has proved his thumb impression on the arrest memos of the accused who were arrested at the spot and also on the seizure memos. Sixthly, the recovery of the iron rod from the possession of accused State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 44 of 65 Allauddin; a mobile phone along with knife was from the possession of accused Tinku has been duly proved by PW3 Ramesh whose testimony finds due corroboration from the testimony of PW4 Rakesh who was also present at the spot at the time of the arrest of those accused. Lastly, PW3 Ramesh and PW4 Rakesh have proved the recovery of iron rod vide memo Ex.PW3/F and Rs.100/ vide memo Ex.PW3/I from the possession of accused Allauddin; knife / daggar vide memo Ex.PW3/D, sketch of the knife vide memo Ex.PW3/C and Rs.210/ vide memo Ex.PW3/G from the possession of accused Kuldeep Singh @ Kulli; mobile phone vide Ex.PW3/E and Rs.180/ vide memo Ex.PW3/H from the possession of accused Tinku @ Danish. PW3 Ramesh and PW4 Rakesh have further proved the arrest memos, personal search memos and disclosure statements of the accused persons; the disclosure statement of accused Allauddin vide Ex.PW3/J, of Tinku @ Danish vide memo Es.PW3/K, of Dharmender @ Mahender vide memo Ex.PW3/L and of Kuldeep vide Ex.PW3/M. They have also proved the personal search memo of accused Dharmender @ Mahender vide memo Ex.PW3/R, of accused Tinku @ Danish Ex.PW3/S, of accused Allauddin vide Ex.PW3/T and of accused Kuldeep Singh vide Ex.PW3/U. They have also proved the apprehension and arrest of the accused Kuldeep Singh vide Ex.PW3/N, of accused Tinku @ Danish vide Ex.PW3/O, State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 45 of 65 of accused Allauddin vide Ex.PW3/P and of accused Dharmender @ Mahender vide Ex.PW3/Q. It is evident from the above that, all the victims who are very poor labourers have proved that they were doing the work of POP in the school at Wazirpur JJ colony and were also staying in the same school. According to PW3 Ramesh, on the day of incident he was having food along with his brother Rakesh, when four boys came inside the school. He has further proved that two of these boys were having knives and one of the boys kept the knife on his stomach and threatened them to hand over all their belongings and cash and thereafter one of the boys took Rs 150/ from his pocket and Rs 500/ from Rakesh. PW3 Ramesh has further proved that on hearing the commotion, his brother Hira who was sleeping inside the room also came out to inquire who was having Rs.5060 in his pocket which was also removed by these boys. The complainant Ramesh has also proved that one of these boys was having a cut mark on the side of his head who had snatched the mobile from his brother Rakesh whom he has identified as accused Allauddin. PW3 Ramesh has also identified the accused Tinku by pointing out towards him as the boy who had put the knife on his stomach and accused Dharmender as the boy who was having knife and was standing on one side and threatening them not to raise any alarm. He has further identified the accused Kuldeep by pointing out towards him as the boy who was State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 46 of 65 standing on one side and threatening them not to raise any commotion. The testimonies of PW3 Ramesh finds due corroboration from the testimonies of PW4 Rakesh and PW5 Hira. PW4 Rakesh has similarly deposed that the person who was having iron road had removed Rs.500/ from his pocket and the person who was having a knife put the same on his back and that Rs.60/ were snatched from Hira, Rs.30/ were snatched from Mukesh and Rs.150 were snatched from Ramesh, and thereafter all the boys ran away from the spot. PW4 Rakesh has pointed out towards the accused Aallauddin as the person who was having iron rod and the accused Kuldeep who was having a knife. The recovery of the knife from accused Kuldeep and iron rod from accused Allauddin has been effected soon after the incident when they were sitting in the nearby ground.
It is further evident that PW3 Ramesh has specifically deposed that one of the boys was having very distinctive old cut mark on left side of his temple, who had snatched the mobile from his brother Rakesh and it is thereafter he identified accused Allauddin by pointing out towards him as the accused who snatched the mobile from his brother and this court has also observed that accused Allauddin had a cut mark on the left temple thereby proving the version given by the witness is authentic and credible.
It is further stands established from the testimony of PW8 ASI Dev Raj that pursuant to the disclosure statements of the three State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 47 of 65 accused, it was revealed that one Mahender was also involved in the offence with them on which they went in search of Mahender but did not find him at his house and it was thereafter on 4.11.2008 that on the basis of a secret information that the accused Mahender was apprehended from Bus Stand No. 115, JJ Colony, Wazirpur and Ct. Sish Ram identified accused Mahender as he was the BC (Bad Character) of the area, but nothing was recovered from his possession. The arrested memo of accused Mahender has been duly proved by the prosecution vide memo Ex.PW3/R. This being the background, I hereby hold that the role attributed to the accused stand duly proved and established.
Contradictions and Discrepancies:
Ld. DLSA Counsel appearing on behalf of the accused argued that no public witness has been joined neither at the time of arrest or while carrying out the investigations. He has also stated that the testimonies of the public witnesses are not credible as they are not consistent in their story and do not corroborate each other on material particulars. He has in this regard placed his reliance on the testimonies of PW3 Ramesh who has in his cross examination stated that the signed the documents but the contents were not read over to him and further that he was unable to produce any document showing the ownership of mobile ExP3. Ld. counsel has further pointed out that similarly PW4 Rakesh has also told the court that he is unable to State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 48 of 65 produce any document showing the ownership of the mobile Ex.P3. He has further relied upon the testimony of PW5 Hira who has stated that the person who was without weapon had taken Rs.60/ from his pocket and also snatched the mobile phone from the hand of Rakesh whereas the other witnesses have stated that it was the person who was having iron rod who had snatched the mobile phone. Ld. counsel has also argued that there is a material discrepancy in the testimonies of Ramesh (PW3) and Rakesh (PW4) in as much as the Ramesh (PW3) has only identified the accused Tinku and Mahender as the persons who were carrying knives in their hands whereas Rakesh (PW4) has deposed that it was the accused Kuldeep who was having knife in his hand. He submits that in view of the material discrepancies no reliance can be placed on the testimonies of either of the witness and before of the same is required to be given to the accused.
In this regard, I may observe that in the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43 it was held by the Supreme Court of India that: "In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 49 of 65 disposition such as shock and horror at the time of occurrence, and the like.........
.......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under : "It is wellestablished principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity." Applying the settled principles of law to the facts of the present case, it is evident that all the accused have been identified by the victims who are very poor persons being migrant labourers from Madhya Pradesh who have specifically come to the court to depose from Madhya Pradesh. The date of incident happened to be the day next to Deepawali and there being a holiday there is no question of anybody present inside the school where the labourers/ victims were State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 50 of 65 doing the POP work. The accused Allaudin, Kuldeep Singh and Tinku were apprehended and arrested after a few hours of the incident. The victims were not known to the accused previously and there is no history of animosity between the accused and the victims and hence, the question of false implication of the accused by the victims does not arise. I may mention that there certain discrepancies are bound to occur due to normal errors of observation, normal errors of memory due to lapse of time and also due to mental disposition such as shock and horror at the time of occurrence but this in itself will not be render the case of the prosecution improbable. Though in his examination his chief the witness Ramesh (PW3) has identified the accused Tinku as the person who have having knife and put the same on his stomach but it is evident from his testimony that he had wrongly identified Kuldeep as Tinku and when asked to point out the person from whom the knife was recovered, he pointed out towards the person whose name was known as Kuldeep and then point out to the accused Tinku as the person from whom the mobile phone was recovered. Therefore under these circumstances despite the fact the witnesses have correctly identified all the accused, yet one of them was unable to tell who was carrying that weapon and the possibility of their having got confused on account of the passage of time, cannot be ruled out. I find no reason to disbelieve the testimonies of these witnesses and I find no substance in the objection raised by the State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 51 of 65 Ld. defence counsel.
Further, in so far as the aspect of nonjoining of the public witness is concerned, it is evident that the arrest, personal search and seizure have been made on pointing out and in the presence of the victims who are themselves public witnesses. In fact, the accused Mahender is the Bad Character of the area and was previously known to one of the constable who had accompanied the investigating officer ASI Dev Raj. Therefore, under these circumstances, non joining of any independent public persons will not be fatal to the case of the prosecution.
FINAL CONCLUSION In the case of Sharad Birdhichand Sarda Vs. State of Maharastra, AIR 1984 SC 1622, the Apex Court has laid down the tests which are prerequisites before conviction should be recorded, which are as under:
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established.
The circumstances concerned 'must or should' and not 'may be' established;
2. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 52 of 65 explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
Applying the above principles of law to the facts of present case, it is evident that the investigation conducted including the documents prepared in the present case have been substantially proved by the police witnesses including the investigating officer. The identity of the accused persons has been established. The fact that victims Ramesh, Rakesh and Hira were present inside the school at JJ Colony where they were doing the work of POP, has been proved. It is further proved that on 29.10.2008 at about 1:30 PM the accused came inside the school by jumping the wall and two of them were carrying knives and one was carrying iron rod. It is further State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 53 of 65 proved that the accused Mahender was standing on one side and threatened the victims showing them the knife asking them not to raise any alarm. The fact of accused Allauddin having iron rod and threatening the victims has been established. Further, use of dagger by the accused Kuldeep Singh upon the victims, has also been established. It has been proved that the accused Allauddin, Kuldeep, Tinku and Mahender removed the mobile phone and cash amount from the victims. It is further proved that PCR call was made by the victims and the officials of local police immediately came to the spot and the victims accompanied them in search of the accused. The fact regarding the accused Tinku, Allauddin and Kuldeep were found consuming liquor inside the nearby park when they were arrested, has been duly proved. The recovery of iron rod Ex.P1 along with cash amount Rs.100/ from the possession of accused Allauddin, dagger Ex.P2 along with case amount of Rs.210/ from the possession of accused Kuldeep and one Chinese mobile phone Ex.P3 along with cash amount of Rs.180/ from the possession of accused Tinku @ Danish, has been proved by the prosecution in accordance with law, which articles had been identified by the victims at the place of recovery itself.
In view of the above, all the four accused namely Allauddin and Tinku @ Danish are held guilty for the offence under Section 392 Indian Penal Code and accordingly convicted. State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 54 of 65 The accused Kuldeep Singh @ Kulli and Mahender @ Dharmender have been held guilty of the offence under Section 392 read with Section 397 Indian Penal Code for which they are accordingly convicted.
Further, since the accused have been identified as the same persons who had committed robbery upon the complainant/ victims and hence, technically the provisions of Section 411 Indian Penal Code are not separately made out as the ingredients of Section 411 Indian Penal Code are covered within the offence of Robbery as defined under Section 390 Indian Penal Code.
Case be listed for arguments on sentence on 20.5.2011.
Announced in the open court (Dr. KAMINI LAU)
Dated: 16.05.2011 ASJ (NW)II: ROHINI
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 55 of 65
IN THE COURT OF Dr. KAMINI LAU: ADDL. SESSIONS
JUDGEII (NORTHWEST): ROHINI COURTS: DELHI.
Sessions Case No. 1117/2009 Unique Case ID: 02404R0075512008 State Vs. 1. Allauddin S/o Afruddin R/o Jhuggi No. N17A/93, Pathar Wala Bagh, JJ Colony Delhi.
2. Kuldeep Singh @ Kalli S/o Wazir Singh, R/o Jhuggi No. N17/86, Pathar Wala Bagh, Wazirpur, JJ Colony, Delhi.
3. Mahender @ Dharmender S/o Ram Partap R/o H. No. H155, JJ Colony, Wazir Pur, Delhi.
4. Tinku @ Danish S/o Yunus Khan R/o Jhuggi No. N17A/113, Pathar Wala Bagh, Wazirpur JJ Colony, Delhi.
FIR No. : 452/2008
Under Section : 392/397/411/34 Indian Penal Code. Police Station : Ashok Vihar State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 56 of 65 Date of Judgment: 16.5.2011 Arguments heard on: 20.5.2011 Date of sentence: 25.5.2011 APPEARANCE: Present: Sh. Taufiq Ahmed Addl. Public Prosecutor for the State.
All the convicts are in judicial custody with Sh. Umesh Gupta, Legal Counsel ORDER ON SENTENCE:
Vide my detailed judgment dated 16.5.2011, the accused Allauddin, Kuldeep Singh @ Kulli, Mahender @ Dharmender and Tinku @ Danish have been held guilty of the offence under Section 392 Indian Penal Code and accordingly convicted. Further, the accused Kuldeep Singh @ Kulli and Mahender @ Dharmender have been held guilty of the offence under Section 397 Indian Penal Code for which they have been accordingly convicted.
As per the allegations on 29.10.2008 at about 1:30 pm at ground floor Jalkari Bai School (Sarvodaya School) Wazirpur, JJ Colony, Delhi all the accused namely Allauddin, Kuldeep Singh @ Kulli, Mahender @ Dharmender and Tinku @ Danish in furtherance of their common intention committed robbery of Rs. State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 57 of 65 150/ from the pocket of Ramesh; Rs.500/ from the pocket of Rakesh and one mobile phone belonging to Rakesh; Rs.60/ from the pocket of Hira and Rs.30/ from the pocket of Mukesh. It is also alleged that at the time of committing the robbery the accused Kuldeep Singh @ Kulli and Mahender @ Dharminder used deadly weapons like dagger and knife. The victims Ramesh, Rakesh and Hira Lal have appeared before the court and attributed specific role to them. They have identified all the accused as the boys who had committed robbery upon them. Further, the recovery of the robbed cash amount and mobile phone belonging to the victim Rakesh from the possession of the accused has been proved by the prosecution. On the basis of the testimonies of the various witnesses examined by the prosecution, this court has held the accused Allauddin, Kuldeep Singh @ Kulli, Mahender @ Dharmender and Tinku @ Danish guilty of the offence under Section 392 Indian Penal Code and accordingly convicted. Further, the accused Kuldeep Singh @ Kulli and Mahender @ Dharmender have been held guilty of the offence under Section 397 Indian Penal Code for which they have been accordingly convicted.
I have heard arguments on the point of sentence. The convict Allauddin is a young boy of 24 years having a family comprising of father, mother, wife and one son. He is totally State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 58 of 65 illiterate and is a labour by profession. The convict is also involved in three other cases i.e. FIR No. 16/11, Police Station Moti Nagar, under Section 379/411/34 IPC; FIR No. 28/11, Police Station Kamla Market, under Section 379/411/34 IPC and FIR No.41/11, Police Station Karol Bagh, under Sections 379/411 IPC. He has already remained in judicial custody in the present case for about five months and eleven days.
The convict Kuldeep is also a young boy of 24 years having a family comprising of father, mother wife, two sons and one daughter. He is 6th class pass and is a labour by profession. He is also involved in another case bearing FIR No.6/2011, under Sections 394/397/34 IPC, Police Station Ashok Vihar and has remained in judicial custody for about two months and seven days.
The convict Mahender @ Dharmender is aged about 28 years having a family comprising of aged widow mother, wife and two sons. He is 3rd class pass and is a labour by profession. In the present case he has already remained in judicial custody for about six months and eighteen days and is involved in many other cases details of which are as under:
1. FIR No. 561/97 dated 7.9.97 Police Station Ashok Vihar under Section 25/54/59 Arms Act.
2. FIR No. 239/96 dated 24.4.96 Police Station Shalimar Bagh State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 59 of 65 under Section 380 IPC.
3. FIR No. 361/96 dated 8.6.96 Police Station Shalimar Bagh under Section 454/380 IPC.
4. FIR No. 284/96 dated 12.5.96 Police Station Shalimar Bagh under Section 379 IPC.
5. FIR No. 292/96 dated 11.5.96 Police Station Shalimar Bagh under Section 454/380 IPC.
6. FIR No. 379/95 dated 5.7.95 Police Station Ashok Vihar under Section 379 IPC.
7. FIR No. 416/95 dated 23.7.95 Police Station Ashok Vihar under Section 379 IPC.
8. FIR No. 427/95 dated 30.7.95 Police Station Ashok Vihar under Section 379 IPC.
9. FIR No. 433/95 dated 1.8.95 Police Station Ashok Vihar under Section 379 IPC.
10. FIR No. 451/95 dated 9.8.95 Police Station Ashok Vihar under Section 379 IPC.
11. FIR No. 346/91 dated 1.10.91 Police Station Ashok Vihar under Section 379 /411 IPC.
12. FIR No. 160/98 dated 2.4.98 Police Station Ashok Vihar under Section 379 /411 IPC.
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 60 of 65
13. FIR No. 103/98 dated 3.3.98 Police Station Ashok Vihar under Section 324/34 IPC.
14. FIR No. 360/00 dated 30.6.00 Police Station Model Town under Section 379/411 IPC.
15. FIR No. 551/00 dated 20.6.00 Police Station Tilak Nagar under Section 379 IPC.
16. FIR No. 561/00 dated 23.6.00 Police Station Tilak Nagar under Section 379 IPC.
17. FIR No. 578/00 dated 27.6.00 Police Station Tilak Nagar under Section 379 /411 IPC.
18. FIR No. 580/00 dated 27.6.00 Police Station Tilak Nagar under Section 25/54/59 Arms Act.
19. FIR No. 818/02 dated 6.11.02 Police Station Saraswati Vihar under Section 25/54/59 Arms Act.
20. FIR No. 238/03 dated 26.4.03 Police Station Ashok Vihar under Section 25/54/59 Arms Act.
21. FIR No. 683/03 dated 27.10.03 Police Station Shalimar Bagh under Section 457/380 IPC.
22. FIR No. 700/03 dated 28.11.03 Police Station Ashok Vihar under Section 25 Arms Act.
23. FIR No. 238/04 dated 12.4.04 Police Station Model Town State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 61 of 65 under Section 379/411 IPC.
24. FIR No. 453/04 dated 12.4.04 Police Station Model Town under Section 399/402/337 IPC.
25. FIR No. 450/06 dated 7.6.06 Police Station Ashok Vihar under Section 25 Arms Act.
26. FIR No. 760/06 dated 7.6.06 Police Station Ashok Vihar under Section 25 Arms Act.
27. FIR No. 504/07 dated 21.7.07 Police Station Ashok Vihar under Section 25 Arms Act.
28. FIR No. 740/07 dated 28.11.07 Police Station Shalimar Bagh under Section 399/402/34 IPC & 25 Arms Act.
29. FIR No. 33/11 dated 23.6.00 Police Station Janakpuri under Section 399/402/34 IPC.
The convict Tinku @ Dinesh is a young boy of 27 years having a family comprising of aged widow mother, wife, one son and one daughter. He is 6th class pass and is doing the work of table locks. The convict is also involved in five other cases i.e. FIR No. 296/08 dated 16.8.08 Police Station Ashok Vihar under Section 324/34 IPC; FIR No. 872/08 dated 19.5.05, Police Station Ashok Vihar under Section 308/34 IPC; FIR No.338/05 dated 19.5.05, Police Station Ashok Vihar under Section 452/308/34 IPC; FIR No. State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 62 of 65 728/01 dated 22.11.01, Police Station Ashok Vihar under Section 323/452/34 IPC; FIR No. 154/00 dated 2.3.00, Police Station Ashok Vihar, under Section 323/341/34 IPC. He has remained in judicial custody in the present case for about three months and twenty days.
Ld. counsel appearing on behalf of the convicts has vehemently argued that all the convicts are young boys and are the helping hands of their respective families and any harsh view would be prejudicial to the convicts as well as their family members. He requests that a lenient view be taken against all the convicts. Ld. Addl. Public Prosecutor on the other hand has prayed that a strict punishment be awarded to the convicts keeping in view the allegations involved and the nature of offence.
I have considered the rival contentions. All the convicts are young boys and the convict Kuldeep is a first time offender and has no criminal case against him. The convicts Allauddin and Tinkoo @ Dinesh though involved in other cases but have not been convicted so far in any other case. Keeping in view the young age of the convicts and also in view of the fact that any harsh view would spoil their future, a lenient view is taken against all the convicts. However, the minimum punishment prescribed for the offence under Section 397 Indian Penal Code is imprisonment not less than seven years and therefore under these circumstances, I award the following sentences to the convict Allauddin:
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 63 of 65
The convict Allauddin is sentenced to Rigorous Imprisonment for a period of Four years and fine to the tune of Rs.500/ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one week.
In so far as the convict Tinku @ Danish is concerned, I award the following sentences to him:
The convict Tinku @ Danish is sentenced to Rigorous Imprisonment for a period of Four years and fine to the tune of Rs.500/ for the offence under Section 392 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one week.
In respect of the accused Kuldeep Singh @ Kalli, I award the following sentences to him:
The convict Kuldeep Singh is sentenced to Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.500/ for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one week.
Further, I award the following sentences to the convict Mahender @ Dharmender:
The convict Mahender @ Dharmender is sentenced to State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 64 of 65 Rigorous Imprisonment for a period of Seven years and fine to the tune of Rs.500/ for the offence under Section 392 read with Section 397 Indian Penal Code. In default of payment of fine the convict shall undergo Simple Imprisonment for a period of one week.
Benefit of Section 428 Code of Criminal Procedure shall be given to all the convicts for the period already undergone by them during the trial, as per rules.
The convicts are informed that they have a right to prefer an appeal against this judgment. They have been apprised that in case they cannot afford to engage an advocate, they can approach the Legal Aid Cell, functioning in Tihar Jail or write to the Secretary, Delhi High Court Legal Services Committee, 3437, Lawyers Chamber Block, High Court of Delhi, New Delhi.
Copy of the judgment and order on sentence be given to the convicts free of costs and another be attached with their jail warrants.
File be consigned to Record Room.
Announced in the open court (Dr. KAMINI LAU)
Dated: 25.5.2011 ASJ (NW)II: ROHINI
State Vs. Allauddin etc. FIR No. 452/08, PS Ashok Vihar Page 65 of 65