Delhi District Court
State vs 1. Ram Babu Sahni on 25 April, 2009
IN THE COURT OF SH. RAKESH KUMAR,
LD. ASJ04 (NORTH): DELHI
SC No. 14/08
FIR No. 297/05
Police Station : Civil Lines
u/Sec.: 395/307/120B IPC
State Versus 1. Ram Babu Sahni
S/o Lt. Ram Avtar Sahni
R/o Village Siddap Kalan,
P.O. Jai Nagar, PS Ladnia,
Distt. Madhubani, Bihar.
2. Ranjit Sahni
S/o Kapil Sahni
R/o Village Siddap Kalan,
P.O. Jai Nagar, PS Ladnia,
Distt. Madhubani, Bihar.
3. Mahesh Mandal
S/o Nothni Mandal
R/o Village Siddap Kalan,
P.O. Jai Nagar, PS Ladnia,
Distt. Madhubani, Bihar.
4. Dukhi Thakur
S/o Jagdev Thakur
R/o Village Siddap Kalan,
P.O. Jai Nagar, PS Ladnia,
Distt. Madhubani, Bihar.
5. Shiv Kumar
S/o Prabhu Yadav
R/o Village Siddap Kalan,
P.O. Jai Nagar, PS Ladnia,
Distt. Madhubani, Bihar.
State Vs. Ram Babu etc. Page No. 1 of pages 36
: J U D G M E N T :
1. All the accused persons were charged with and have faced trial for having committed an offence in furtherance to their common intention punishable u/Sec. 307/395/120B IPC.
2. FACTUAL MATRIX: On 20.09.2005 a DD no.14A was received in PS Civil Lines. The duty officer handed over the same to SI Pratap Singh, who after receiving the same had gone to H.N. 27, first floor, Alipur Road along with HC Ishwar Singh. There they came to know that the injured had gone to hospital for treatment. SI Pratap Singh after leaving HC Ishwar Singh at the place of occurrence, went to the Trauma Centre and met the injured. He collected her MLC. The injured was declared fit to make her statement. The injured disclosed her name as Smt. Versha Mehra and stated that when she was alone in the house at that time her servant with two accomplice came from the kitchen side and attacked her from behind. They tried to strangulate her. First they hit her on all sides and made her fall flat on the ground. There they tied her hands with rope and tied a torn pillow cover on her neck, put towel on her face and it became difficult for her to breathe. She further disclosed that God gave her the strength and she bit one of the accused State Vs. Ram Babu etc. Page No. 2 of pages 36 hand and turned around, but fortunately, her daughter in law gave a call and one of them picked up the phone. After that they were in a hurry to leave. She told them to take whatever they wanted but did not kill her. They had taken away cash and some other valuable things and other articles.
3. After recording the statement of the injured, SI Pratap Singh came back to the place of occurrence and made endorsement on her statement and sent the same through HC Ishwar Singh to the PS for registration of the FIR. Site plan was prepared and crime team was called. The injured was further interrogated and her supplementary statement was recorded. The injured had produced the towel, which had been allegedly, tied on her mouth, pillow cover having blood stains and a nylon rope. All the articles were sealed and converted into pullandas and sealed with the seal of PS and were taken into possession. SI Pratap Singh recorded the statement of the witnesses and deposited the articles in the maalkhana. It is further the case of the prosecution that injured further disclosed that she had employed domestic help Ram Babu and had handed over the photograph and address of Ram Babu.
Further on 30.09.2005, a secret information was received that State Vs. Ram Babu etc. Page No. 3 of pages 36 the culprits of this case were present on First Pushta, Sonia Vihar and could be apprehended. IO SI Pratap Singh asked 4/5 passersby to join the investigation but all had refused. Thereafter, he along with ASI Rajbir, Ct. Devender, Ct. Subhash and Ct. Murlidhar alongwith the secret informer went to Sonia Vihar, Gali No.20/B, Near Hanuman Mandir. The secret informer had pointed out a house. At about 7.35 pm, they entered in the said house where accused Ram Babu, Ranjeet, Mahesh, Dukhi Thakur and Shiv Kumar were found. All the accused persons were interrogated separately, who made their respective disclosure statement. All the accused persons were arrested and their personal search was conducted. TIP of accused persons was got conducted. After medical examination, all the accused persons were produced before the Ld. MM and were put in the lock. Exhibits were sent to CFSL for examination.
4. After completing all the investigation, challan was filed in the court. On the basis of the allegations, charges were framed against all the accused persons u/Sec. 307/395/120B IPC to which they have pleaded not guilty and claimed trial.
5. In support of its case, prosecution has examined 12 witnesses.
PW 1 Mrs. Versha Mehra is the complainant herself, who State Vs. Ram Babu etc. Page No. 4 of pages 36 deposed that she had a three bedroom house on the first floor with a servant quarter on the down stairs. She knew accused Ram Babu Sahni, accused present in the court, who was employed by her as a domestic servant at her house on 17.09.2005 ie. Just 23 days prior to the incident. At that time, she had noted down the address and other particulars of the servants in her personal diary. Amongst the three bedrooms in her house, she put up in one bedroom which is just near to the kitchen. She had a dressing room attached to her bedroom, where her almirah and cubboards were kept. She further deposed that during the day of incident, she was keeping a cash of Rs.25,000/ in her cub board along with jewellery items, her wrist watches etc. She was also using a mobile phone of the make Motorola. After employing accused Ram Babu as a domestic servant, he was given accommodation and from 17.09.2005 he started staying in her servant quarter. She further deposed that on 20.09.2005 at around 10.45 am, she was present in her bedroom, when she was arranging the room in proper order, at that time, accused Ram Babu Sahni accompanied by two of his accomplices, who were identified as accused Ranjeet and Mahesh Mandal had entered in her bedroom from the side of kitchen. One of these three accused persons probably Ranjeet had caught hold of her and other State Vs. Ram Babu etc. Page No. 5 of pages 36 accused persons had started beating her severally by fists and hand blows. Thereafter, all the three accused persons had forced her to fall on the ground by giving her a push. She was fighting and resisting the assaults of the accused persons. After, she fell down on the ground accused Mahesh was holding her where as out of the other two accused persons, one had tied her hand with a nylon rope. Then, accused Ram Babu asked his accomplice Mahesh to cover her face with a towel and accordingly, Mahesh brought a towel from her bedroom and covered her face. Accused Ranjeet brought a pillow cover and tied her neck with the said pillow cover and was strangulating her. All the three accused persons were raising exhortation to kill her and loot her belongings. She further deposed that she bite with her teeth on the hand of accused Ram Babu which resulting into oozing blood which also fell down on the towel on the pillow cover also. She further deposed that she pleaded the accused persons to spare her life and offered them to take away whatever valuables in her house. In the meantime, her landline phone rang which was a call from her daughter in law, which was attended by one of the three accused persons and thereafter, they started hurrying up. During the process, they had checked up the cubboards and taken away the cash of Rs.25,000/, jewelery, her mobile phone, wrist watches State Vs. Ram Babu etc. Page No. 6 of pages 36 etc. and had run away from her house within short span of time. They left her in the bed, while her hands were still tied.
She further deposed that within 1020 minutes, her daughter in law, her son and husband arrived and found her in injured condition. They opened the rope of her hands and immediately took her to Trauma Centre and called the police. Police arrived and her complaint Ex.PW 1/A was written. After check up, she was discharged from the hospital on the same day. She further deposed that on 24.11.2005, she came to Tis Hazari Court and identified the parts of recovered articles and accused persons during TIP. The witness also identified the case property as nylon rope Ex.P1, motorola phone Ex. P2, key ring Ex. P3, two wrist watches Ex. P4 & P5 and two rings Ex. P6 & P7, towel Ex. P8, pillow cover Ex. P9 are the same which were used in the incident and were recovered from the possession of the accused person.
She further deposed that during the course of incident, she had noticed the presence of two more unknown persons in her stair but she could not identify any of them.
During the cross examination, she stated that accused Ram Babu was employed as a domestic servant on the recommendation of some known persons but she could not tell his name and particulars. State Vs. Ram Babu etc. Page No. 7 of pages 36 She also stated that by the time incident took place she could not get the antecedent of the accused verified through the police. At the time of incident, nobody else except herself was in the house. She had called up her daughter in law on her mobile phone but she could not tell the mobile number of her daughter in law. She was taken to hospital by her sister in law in a car and her husband had also joined her in the hospital when she was being examined by the doctor. She was conscious at the time police came to her house in the noon time. She had identified the accused in the court for the first time but she had claimed seeing him at the time of the incident also. The site plan was not drafted in her presence.
PW 2 HC Braham Pal testified that on 20.09.2005 he was working as duty office in PS Civil Lines. On that day HC Ishwar Singh had brought one complaint Ex.PW1/A alongwith rukka Ex.PW2/A sent by SI Pratap Singh. On the basis of said rukka, he registered FIR Ex.PW2/B in this case and made his endorsement on the said rukka.
PW 3 Dr. Girish Parbhat had examined the injured Smt. Versha Mehra on 20.09.2005 and prepared MLC Ex.PW3/A. As per his report all the vital organs of the patient were functioning normally. On local examination, he found the following injuries on her person: State Vs. Ram Babu etc. Page No. 8 of pages 36
(i).Swelling and blackening on both the peri orbital region i.e. region around the eyes with complaint of diminishing of the region in the right eye.
(ii).Wound on the left side of the fore head just above the eye brow.
(iii).Criscross type bruises on both the fore arm.
(iv).Bruises on both the knees.
During cross examination, he stated that he had not noticed any mark of strangulation on the neck of the patient. Neither there was any injury caused by any sharp edged weapon. He took around 510 minutes in examining the patient and at that time, no IO was present in the hospital.
PW 4 is ASI Rajbir Singh, who testified that on 30.09.2005 he joined the investigation of this case with Ct. Subhash, Ct. Devender, Ct. Murli etc. In the course of investigation, they had received a secret information in respect of culprits at about 5.25 pm. Immediately, they reached to the area of Sonia Vihar, where all the five accused persons namely Ram Babu, Shiv Kumar, Mahesh, Dukhi Thakur and Ranjeet were found sitting in front of a house at Sonia Vihar. On reaching there, secret informer pointed out towards the accused persons and they immediately apprehended all of them. All the accused persons were interrogated and were arrested in this case. At the time of arrest, State Vs. Ram Babu etc. Page No. 9 of pages 36 accused Ram Babu had produced before them 15 currency notes of Rs.100/ each as part of case property and also a Motorola Mobile Phone belonged to the complainant. Both were sealed in two different parcels and sealed with the seal of PS and seized vide memo Ex.PW4/A. Similarly, accused Ranjeet had also produced a pair of ear rings as part of the case property belonging to the complainant, same were sealed and seized vide memo Ex.PW4/C. Accused Dukhi Thakur had also produced a silver key ring having two small pieces as part of the case property belonging to the complainant and the same was seized and sealed vide memo Ex.PW4/D. Similarly, from accused Mahesh and Shiv Kumar a wrist watch each were recovered from both of them, same were sealed and seized vide memo Ex.PW4/E and Ex.PW4/F. All the accused persons made their disclosure statements, which were Ex.PW 4/G to Ex.PW4/K respectively. All the accused persons had correctly identified the place of occurrence vide memo Ex.PW4/L. The witness also correctly identified the case property, when produced before him.
During cross examination he claimed that all the five accused persons were sitting in front of the house and were talking with each other. The identities of the accused persons were established at the pointing out of the secret informer. The case property was produced by State Vs. Ram Babu etc. Page No. 10 of pages 36 the accused persons themselves after their arrest by the police. He conceded that the spot from where the accused persons were arrested was surrounded by the populated area,however at the time of their arrest no public person was present there. He did not question the land lady of the house in front of which the accused persons were sitting. Nothing incriminating was recovered from the room which was rented out to the accused persons.
PW 5 is HC Ishwar Singh, who testified that on 20.09.2005 at about 11.05 am, a DD no.14A Ex.PW 5/A assigned to him alongwith SI Pratap Singh on which he had gone to the spot and after reaching there, he came to know that injured had already been taken to hospital. SI Pratap Singh had left him on the scene of crime and went to the hospital. After about one hour, SI Pratap Singh came to the spot and gave him a rukka Ex.PW 2/A alongwith statement Ex.PW 1/A which he took to the PS and on the basis of it, the present case was registered. After the FIR, he brought its copy and original rukka back to the spot and handed over the same to SI Pratap Singh. He further deposed that in the course of investigation, IO had seized a nylon rope, a towel and a pillow cover and after sealing the same into three parcels with the seal of PS, the same were seized vide memo Ex.PW 5/A. The witness also State Vs. Ram Babu etc. Page No. 11 of pages 36 identified the case property, when produced before him.
During cross examination he claimed that the statement of PW Varsha Mehra was recorded by the IO in his presence but accused were not arrested in his presence. He could not tell the colour of the rope nor its thickness. He also could not tell the colour of the towel or its length and breadth. All the exhibits were having blood stains.
PW 6 is Sh. Vinay Mehra, the son of the complainant. He deposed that he resided with his mother, father, wife and son. On 20.09.2005, one servant known as Ram was working in their house. He was engaged three days before the incident. On that day at around 9.00 am, he alongwith his wife had left the house leaving behind his mother, father and accused Ram Babu in the house. His wife had tried to make a phone call to his mother at about 10.3510.40 am to inform her about the check up report. At that time, somebody picked up the phone and after saying 'hellohello' the phone was disconnected. She then, again called up but on that occasion, nobody answered the call. When, they were on the way to come back to home, his wife received a call after about 15 minutes from his mother informing her about the incident. He further deposed that they were already on the way and immediately within 10/15 minutes, they reached the home. On reaching the house, State Vs. Ram Babu etc. Page No. 12 of pages 36 they found his mother in a bad condition i.e. badly beaten up and face swollen. Soon his father also arrived. Immediately, they took mother to a near by Trauma Centre. He further deposed that at the time, when he had reached the house, he found the room totally ransacked as well as the cubboard broken. In the hospital, local police arrived and they had talked to his mother.
During cross examination, he claimed that he alongwith relative took the complainant to the hospital. The relative was living very nearby to whom his wife has already informed about the incident. The police had recorded the statement of the complainant in the hospital and his own statement was recorded at his house only. He claimed that in his presence no photographs were taken by the police He also stated that after engaging accused Ram Babu as servant, by the time of incident, his particulars were not got verified by the police. He could not tell as to who had called the police.
PW 7 is ASI Manish, from Crime Team. He testified that on 20.09.2005, on the request of IO SI Pratap Singh, he had arrived at the spot at around 11.45 am. The spot was situated in H.N. 27, Alipur Road, first floor, Delhi. There, he had inspected the scene of crime and had lifted four different chance prints from different articles lying in the State Vs. Ram Babu etc. Page No. 13 of pages 36 house such as wooden draw, godrej almirah and utensils. These chance prints were immediately sent to the Finger Print Bureau for its further development and matching etc. He had also prepared a finger print expert report which was Ex.PW 7/A. During cross examination, he told that he remained on the spot for a bout 2 hours and before they came to the spot, they made a separate entry in the Roznamcha.
PW 8 is Dr. Vijay Khari, who medically examined the accused Ranjeet on 01.10.2005 and handed over blood sample of the patient sealed with the seal of hospital to the IO. The MLC of accused was Ex.PW8/A. During cross examination, he denied the suggestion that the history, as incorporated in Ex. PW--8/A was not disclosed to him by the patient.
PW 9 is Sh. R.K. Singh, Ld. MM, who got conducted the TIP of the case property on an application of IO on 18.10.2005. The application in this regard was Ex.PW 9/A. He further testified that on 18.10.2005 the proceedings were adjourned as IO had not brought the case property. Therefore, on the application Ex.PW 9/B, the TIP was again fixed for 24.10.2005. On 24.10.2005 another application Ex.PW State Vs. Ram Babu etc. Page No. 14 of pages 36 9/C was put up before the witness by the IO. Accordingly, he conducted the TIP of the case property. His detailed report in this respect is Ex.PW 9/D. PW 10 is Smt. Ram Kumari Tiwari, owner of house No. 1543, PushtaI, Sonia Vihar, Delhi from where all the accused persons were apprehended. He testified that he had let out one outer room of the house to accused Ranjeet at a monthly rent of Rs.500/.
During cross examination, he conceded that there had not been any written rent agreement between him and the accused Daljeet. Only on the basis of summons, he had told the name of the tenant as Ram Babu. He admitted that accused Mahesh had taken a room on rent from her Jeth.
PW 11 is Dr. Archana Sinha, Ld. MM, who got conducted the TIP of accused Ranjeet and Mahesh on an application Ex.PW 11/A moved by the IO on 14.10.2005. The detailed TIP proceedings are Ex.PW 11/C and Ex.PW 11/D. PW 12 is SI Pratap Singh, IO of the case. He testified that on 20.09.2005 he was posted as SI in PS Civil Lines. On that day, the duty officer had handed over copy of DD no.14A. He alongwith HC Ishwar Singh had gone to H.N. 27, First Floor, Alipur Road, Delhi. There, they State Vs. Ram Babu etc. Page No. 15 of pages 36 came to know that the injured had gone to hospital for her treatment. He left HC Ishwar Singh at the place of occurrence. He went to trauma Centre and found the injured there. He collected MLC Ex.PW3/A and recorded the statement of the injured as Ex.PW1/A. He came back to the place of occurrence and made endorsement Ex.PW2/A and sent the same through HC Ishwar Singh to PS for registration of the FIR. FIR Ex.PW2/B was registered. He prepared the site plan at the instance of the injured as Ex.PW12/A, called the crime team and interrogated the injured and recorded the supplementary statement of the injured. He further deposed that injured had produced the towel which had been allegedly tied on her mouth and the pillow cover having blood stains of accused Ranjeet and also produced a nylon rope. All these were sealed in a pullanda and sealed with the seal of SP. These were taken into possession vide memo Ex.PW5/B. He also recorded the statement of the witnesses and handed over the exhibits to the MHC (M). He further submitted that victim Varsha Mehra also handed over him the photograph and address of her domestic help Ram Babu. The witness further deposed that on 30.09.2005, he along with ASI Rajbir, Ct. Devender, Ct. Subhash and Ct. Murlidhar were present in Timarpur area in connection with investigation of this case, a secret information State Vs. Ram Babu etc. Page No. 16 of pages 36 was received that the culprits of this case, were present on first Pushta, Sonia Vihar and they could be apprehended. He asked 4/5 persons to join the investigation, but all had refused. He alongwith other police officials and secret informer had gone to Sonia Vihar and at the pointing out of the informer, at about 7.35 pm they entered in the house of R.K. Tiwari and apprehended accused Ram Babu, Ranjeet, Mahesh, Dukhi Thakur and Shiv Kumar.
The witness further deposed that first of all, accused Ram Babu was interrogated, who made his disclosure statement Ex.PW4/G and stated that out of the looted amount, an amount of Rs.5000/ had fallen to his share and an amount of Rs.1500/ was with him. He further disclosed that he had purchased a mobile phone make Motorola from the looted amount, which was also found in his possession. The amount was taken into possession vide memo Ex.PW4/A and mobile was taken into possession vide memo Ex.PW4/B. The witness further testified that thereafter, accused Ranjeet was interrogated, who made his disclosure statement Ex.PW 4/H and confessed his involvement. He disclosed that from the looted articles, the ear rings had fallen to his share. Same were found in his possession and were sealed in a pullanda and sealed with the seal of PS and were State Vs. Ram Babu etc. Page No. 17 of pages 36 taken into possession vide memo Ex.PW 4/C. Thereafter, accused Mahesh was interrogated and his disclosure statement Ex.PW 4/J was recorded. He confessed his involvement. He further disclosed that from the looted articles, wrist watch had fallen to his share which was got recovered and was sealed in a pullanda and sealed with the seal of PS and taken into possession vide memo Ex.PW4/F. Thereafter, accused Dukhi Thakur was interrogated and his disclosure statement Ex.PW 4/I was recorded. He also confessed his involvement. One ring of silver had fallen to his share which was got recovered and sealed in a pullanda and sealed with the seal of PS and was taken into possession vide memo Ex.PW4/D. Thereafter, accused Shiv Kumar was interrogated and his disclosure statement Ex.PW4/K was recorded. He confessed his involvement. He further disclosed that from the looted articles, one wrist watch had fallen to his share which was got recovered and sealed in a pullanda and sealed with the seal of PS and taken into possession vide memo Ex.PW4/E. All the accused persons were arrested vide memo Ex.PW 12/B to 12/F and their personal search memos were prepared which are State Vs. Ram Babu etc. Page No. 18 of pages 36 Ex.PW 12/G to Ex.PW 12/K. TIP of accused persons as well as of case property was got done.
During cross examination, he claimed that on 20./09.2005, he reached at the place of occurrence at about 10.45 am where son of complainant was found available who informed that his mother was in hospital. He had recorded the statement of son of Ms. Versha at the spot. The rukkas was sent to the police station at 1 pm from the place of occurrence. Chance finger prints were lifted by the members of Crime Team during investigation. Specimen finger prints of the accused were also lifted. The chance finger prints and the specimen finger prints of the accused were sent to the expert for comparison but the same had not tallied. The members of crime team had taken the photographs of the place of occurrence. He had gone inside the bed room where one almirah was found lying opened. He had not asked any neighbour to join the proceedings of the seizure of the articles. He had not collected evidence as to from where the accused had purchased the ropes. The seal after use was handed over to Ms. Versha Mehra to which she returned on the next day in the PS. Ms. Versha has given the address of the accused Ram Babu but hse had not gone to his village. He conceded that on 30.09.2005, he had received the secret information at about 5.25 State Vs. Ram Babu etc. Page No. 19 of pages 36 pm and the said information was received at the place which was surrounded by the residential houses and the shop but he did not make any effort to join persons from the public. He also confirmed that no action was taken against the persons who had refused to join the proceedings. The distance between the place of receipt of secret information and the place of apprehension of accused Ram Babu was about 34 kms. They had gone there in a TSR. Two TSRs were hired but their numbers were not noted down. The disclosure statement of accused Ram Babu was recorded at the place of his apprehension by sitting on a wall of 23 feet. He denied the suggestion that accused Ram Babu was illegally detained on 20.09.2005 or he had been illegally kept in police custody for ten days.
6. After conclusion of prosecution's evidence, statements of accused persons u/Sec. 313 Cr.P.C. were recorded separately in which they all denied the averments made by the prosecution and have stated that they have been falsely implicated in this case and nothing incriminating was recovered from their possession. Accused Ram Babu Sahney stated in his statement that on 20.09.2005, there was an altercation between Mrs. Varsha Mehra and her husband, she was unnecessarily annoyed on him. When he asked about his arrears of State Vs. Ram Babu etc. Page No. 20 of pages 36 salary as he had requested to leave the services. He was beaten by slap and fists blows. After about 1520 minutes, the police was called and he has been falsely implicated. He also claimed that prior to 20.09.2005, there was another domestic servant namely Vishnu and Mrs. Varsha had also altercated with the said domestic servant and he was also removed from his services after giving him beatings.
7. Accused Ranjit Sahney stated in his statement u/Sec. 313 Cr.P.C. that he was innocent and had been falsely implicated and nothing was recovered from him. He does not know the other persons except Mahesh Mandal for whom he assisted for rented accommodation from landlord R.K. Tiwari.
8. Accused Mahesh Mandal has stated in his statement u/Sec. 313 Cr.P.C. that he was innocent and has been falsely implicated. Accused Ranjit assisted him in having rented accommodation from landlord R.K. Tiwari in Sonia Vihar and that he was lifted by the police from his residence Sonia Vihar.
9. Accused Dukhi Thakur has stated in his statement u/Sec. 313 Cr.P.C. that he was innocent and has been falsely implicated in this case. He was barber by occupation and was living in Sonia Vihar and that police lifted him from his residence and implicated falsely and that State Vs. Ram Babu etc. Page No. 21 of pages 36 nothing was recovered from him.
10. Accused Shiv Kumar has stated in his statement u/Sec. 313 Cr.P.C. that he was innocent and has been falsely implicated in this case and that nothing incriminating was recovered from him. He further stated that he used to operate eatable hawker of chowmine and was lifted by the police falsely and implicated in this case. He further stated that he knew Mahesh being native of his village.
However, none of the accused persons have opted to lead any evidence in his defence.
11. I have heard Ms. Poornima Gupta, Ld. Addl. PP for State and Ms. Sadhna Bhatia, Ld Amicus Curiae for all the accused persons at length and have gone through the record carefully.
12. In the instant case, all the five accused persons have been charged for the offence of entering into the criminal conspiracy for committing the offence of dacoity and in furtherance of said conspiracy for committing the dacoity and also for making an attempt to commit the murder of the complainant/victim Versha Mehra.
The criminal conspiracy has been defined u/Sec. 120A of IPC (hereinafter shall be referred to as Code) and it is punishable u/Sec. 120B of Code.
State Vs. Ram Babu etc. Page No. 22 of pages 36
Section 120A IPC reads as under: When two or more persons agrees to do, or cause to be done,-
(1).an illegal act, or (2).an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.
Explanation.- It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object.
The essence of a criminal conspiracy is the unlawful combination and ordinarily the offence is complete when the combination is framed. Offence of criminal conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act by unlawful means. So long as such a design rests in intention only, it is not indictable.
It was held in Hira Lal Hari Lal Bhagwati Vs. CBI 2003 State Vs. Ram Babu etc. Page No. 23 of pages 36 SCC (Cri) 1121 that, "To bring home the charge of conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing an unlawful act. It is difficult to establish conspiracy by direct evidence."
The offence of dacoity is defined u/Sec. 391 of IPC and it is punishable u/Sec. 395 of the Code.
Section 391 of the Code reads as follows: When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every persons so committing, attempting or aiding, is said to commit "dacoity".
The offence of robbery is denied u/Sec. 390 of Code and is punishable u/Sec.392 of IPC.
In AIR 1976 SC 1430 titled as Harish Chandra Vs. State, it was held that, "When force is used to enable another to carry away the booty, it amounts to robbery."
The essential ingredients of the offence of dacoity are that five State Vs. Ram Babu etc. Page No. 24 of pages 36 or more persons should be concerned in the commission of the offence and they should either commit or attempt to commit a robbery. In order to constitute the offence of dacoity the theft should be perpetrated by means of either actual violence or of threatened violence.
Before there can be a conviction for dacoity, it must be definitely proved that there were five or more persons who acted conjointly, whether directly or indirectly as abettors.
13. It is the case of the prosecution that all the five accused persons after entering into a criminal conspiracy to commit dacoity at the house of the complainant, committed dacoity in prosecution of conspiracy wherein the accused Rambabu, Ranjit and Mahesh had actually entered into the house of complainant and committed dacoity by using the force against complainant and took away the booty while escaping, whereas the accused Dukhi Thakur and Shiv Kumar remained standing out side the house of complainant i.e. at the staircase and thereby they played the role of abattor and subsequently all the accused were arrested and upon their disclosures the case property i.e. stolen articles were recovered from their respective possession. It is also the case of the prosecution that the accused Ram Babu, Ranjit and Mahesh had made an attempt to commit the murder of complainant at the time of State Vs. Ram Babu etc. Page No. 25 of pages 36 commission of dacoity.
Per contra, as per the defence put forth by the accused persons, they were falsely implicated by the police by lifting from their residences and nothing incriminating has been recovered from their possession. The accused Ram Babu has further claimed that on 20.09.2005, there was an altercation between Versha Mehra, the victim/ complainant and her husband and she was unnecessarily annoyed on him. When he asked about his arrears of salary, as he wanted to leave the service, he was beaten up and got implicated in this false case with the connivance of police. He also claimed that prior to him there was another domestic servant namely Vishnu and Mrs. Versha had also altercated with him and he was also removed from his services after giving him beatings.
According to Ld. Addl. PP for the State, the prosecution has successfully achieved its mission of proving its case against the accused persons by completing the chain of evidence against the accused by way of leading consistent, trustworthy and corroborative evidence in the form of PW1 to PW12. PW1 Versha Mehra, the victim and star witness has fully corroborated with the prosecution story. Not only she has narrated the entire incident in trustworthy manner but she has State Vs. Ram Babu etc. Page No. 26 of pages 36 identified the accused Ram Babu, Ranjit and Mahesh as well as the case property Ex.P1 to P9. Although, she was cross examined at a great length but no dent could be caused against the prosecution. She remained consistent through out the cross examination. Like PW1, her son PW6 Vinay Mehra has also corroborated with the story of prosecution. Besides them, the medical expert witnesses like PW3 & PW8 have also corroborated with the case of prosecution. The finger print expert report Ex.PW7/A has also supported the prosecution's story. The official and police witnesses have proved the factum of arrest of accused persons and the recovery effected from them. Thus, all the accused persons are liable to be held guilty of commission of offences charged against them.
On the other hand, according to Ld. Amicus Curiae Ms. Sadhana Bhatia for the accused persons, the prosecution has been utterly failed in its mission. First of all, there is no independent witness of the recovery of stolen articles from the accused persons despite of the fact that they could easily be procured. The IO has given no plausible explanation for non joining of any independent witness in the investigation. The stereo type explanation of IO inspires no confidence. Further, the evidence produced by the prosecution are not only State Vs. Ram Babu etc. Page No. 27 of pages 36 inconsistent but they are of very weak and ordinary in nature. There are many loopholes in the story of prosecution. The star witnesses and victim Versha Mehra has not identified the accused Dukhi Thakur and Shiv Kumar and as such the main ingredient of the offence of dacoity as provided under Section 395 IPC i.e. there should have been at least five or more persons, is not fulfilled, so no accused can be punished for the offence of dacoity. The accused Dukhi Thakur and Shiv Kumar deserves for a clear order of acquittal in their favour as they are neither identified by the victim (the sole witness of the incident) nor the factum of recovery of stolen articles are proved against them in the absence of independent public witnesses. In these circumstances, the remaining accused persons can also not be punished under Section 395 IPC. At the most, they can be booked under Section 392 IPC. It is further argued by her that only Rs.1,500/ out of stolen amount of Rs.25,000/ were recovered from the accused persons and there is no explanation as to what happened to the remaining amount and why it was not recovered? Ld. Amicus Curiae also submitted that the complainant had neither given the list of the looted articles nor she produced any documentary material in support of her ownership of the said articles. There are no receipts of the purchase of wrist watches, mobile phone and the State Vs. Ram Babu etc. Page No. 28 of pages 36 jewellery articles furnished by the complainant. Hence, it can not be confidently said that the articles recovered from the accused persons were the same articles, which were looted from the house of complainant.
14. Now, let us see how far the prosecution has attained success in its mission.
15. It was the case of the prosecution that all the accused persons had entered into a criminal conspiracy to commit dacoity at the house of the complainant. PW4 ASI Rajbir has confirmed the factum of apprehension of all the five accused persons at the instance of secret informer and by way of proving the factum of arrest of the accused persons as well as their disclosure statements in pursuance to which the recovery of the stolen articles were effected from the possession of the accused persons and further by correctly identifying the said stolen articles by PW1 during her testimony as Ex.P1 to P7, the case of the prosecution has established that the accused persons were having meetings of their mind to commit the offence of dacoity at the house of the complainant and thus the essence of the criminal conspiracy that is the unlawful combination of two or more persons to do an unlawful act by unlawful means is complete and thus the criminal conspiracy of the State Vs. Ram Babu etc. Page No. 29 of pages 36 accused persons have been established and thus they all are liable to be held guilty under Section 395/120B IPC. Accordingly, they all are held guilty therein under.
16. Now, let us see whether the prosecution has succeeded in establishing that all the accused persons have also committed dacoity at the given place and time.
By way of consistent and unequivocal testimony of PW1, the prosecution has successfully established its case against the accused persons Ram Babu, Ranjeet and Mahesh. She while recalling and narrating the incident dated 20.09.2005 exactly in the manner as stated in the story of the prosecution has confirmed that the accused Ram Babu (who was just appointed as a domestic help 34 days prior to the date of incident) alongwith the accused Mahesh and Ranjeet had roamed into one of the three rooms of her house to which she was arranging in the proper manner and one of them i.e. Ranjeet had caught hold of her and other accused persons started giving her beating severally by fists and hands and then she was made to fell down on the ground and then her hands were tied with a nylon rope and than on asking Ram Babu, accused Mahesh brought a Towel and covered her face and thereafter accused Ranjeet brought a pillow cover and tied her State Vs. Ram Babu etc. Page No. 30 of pages 36 neck with the same and was strangulating her. They were raising exhortation to kill her in looting her belongings. In the process to save her, she gave a tooth bite in the hand of accused Ram Babu which resulted into oozing blood, which also fell down on the towel and pillow cover also. In the meantime land line phone rang and the call was attended by one of the accused persons and then realizing risk they ran away alongwith the looted articles. She has also proved her complaint Ex.PW1/A and later on she identified the parts of recovered articles and accused persons during TIP and subsequently in her testimony recorded before the court she has identified the case property Ex.P1 to P9 and in this manner, the case of the prosecution against the aforesaid three accused persons is established beyond all doubts. Although, she was cross examined by Ld. counsel for accused persons but she remained unsuccessful in bringing any respite for the accused Ranjeet, Ram Babu and Mahesh. However, as regards to accused Dukhi Thakur and accused Shiv Kumar, who were according to the prosecution were playing the role of abater while waiting out side the house of the complainant i.e. at the staircase and were seen by the complainant/ victim, I am in agreement with the submissions of Ld. Amicus Curiae that since these accused persons were not identified by the complainant State Vs. Ram Babu etc. Page No. 31 of pages 36 as the persons who were seen by her at the staircase and there is no other witness to prove their presence at the spot except their disclosures and the recovery of the stolen goods from them, so the charge of dacoity is not proved against both of them beyond the shadow of doubt, so they can not be held guilty of having committed the offence of dacoity. Hence they both are liable to be acquitted under Section 395 IPC.
Now the question arises as to whether in the aforesaid situation, the accused Ram Babu, Ranjeet and Mahesh are also entitled for the benefit received by accused Dukhi Thakur and Shiv Kumar as claimed by Ld. Amicus Curiae. I am sorry, at this juncture, I do not find myself in agreement with the contentions of Ld. Amicus Curiae that since the prosecution has been failed to establish the one of the main ingredients of the offence of the dacoity as defined under section 391 IPC i.e. "there should have been at least five or more persons" is not complete, so accused Ram Babu, Ranjeet and Mahesh can also not be held guilty under Section 395 IPC as it is well settled proposition of law that if out of the persons charged with dacoity some are acquitted and five or less then five are convicted, the conviction does not become illegal. The mere fact that the evidence was not sufficient to convict the accused actually charged would not in any way affect the number of State Vs. Ram Babu etc. Page No. 32 of pages 36 persons engaged. Here, I am fortified by the judgment reported as 47 (Cri. LJ) 822/Nagpur.
In State Vs. Nenkuri 1986 (Cri. LJ) 439 (Orissa), it was held that, "where the substantive evidence of informant i.e. victim of dacoity and his parents implicated the accused in the commission of dacoity and their evidence is corroborated from the recovery of the stolen articles from the possession of the accuse which were duly identified by the inmates of the house at stolen, the conclusion was irresistible that the prosecution has established the charge under Section 395 IPC."
In AIR 1984 SC 207 titled as State Vs. Sukhpal Sigh, wherein it was held that, "in a bank dacoity, the accused persons were arrested red handed near the place of dacoity whilst escaping in the car, the first information report was lodged promptly that the number of the car was not mentioned was considered a minor infirmity. A part of the loot as well as the weapons used in the dacoity were recovered. The testimonies of bank employees was considered reliable. Hence conviction under section 395 IPC was made out."
In the case in hand, the identification of all the three accused are not only established by PW1 but also by the police officials, including IO and factum of arrest and the recovery of stolen articles from them are established.
In the light of aforesaid, the irresistible conclusion is that the accused Ranjeet, Ram Babu and Mahesh are liable to be held guilty State Vs. Ram Babu etc. Page No. 33 of pages 36 u/Sec. 395 IPC.
Now, the accused Dukhi Thakur and Shiv Kumar, who were members of unlawful assembly and hatched the criminal conspiracy with other accused, can not be escaped from their liabilities u/Sec.411 of Indian Penal Code being the recipients of stolen articles. In the foregoing paras, I have held them guilty of hatching conspiracy. The factum of recovery of stolen articles from their respective possessions are proved by the testimonies of PW4 ASI Rajbir, who has proved the disclosures of accused persons Ex.PW4/G to Ex.PW6/K, pointing out of place of occurrence memo Ex.PW4/L and their respective identities. Besides them, PW1 has duly identified the case property recovered from them, so they are liable to be held guilty u/Sec.411 IPC.
As regards to allegation regarding commission of offence of attempt to commit the culpable homicide amounting to murder in pursuance to the conspiracy entered into by the accused persons, I am convinced with the submissions of Ld. Amicus Curiae that the prosecution has been failed to establish on record that the accused persons were having intention or knowledge right from the beginning and as such no accused can be held liable u/Sec.307/120B IPC. There is no material on record to show that the accused persons had meeting of State Vs. Ram Babu etc. Page No. 34 of pages 36 their minds to kill anybody and in furtherance that conspiracy the attempt was made by the accused persons. Further the medical evidence brought on record by the prosecution in the form of the evidence of PW3 Dr. Girish Prabhat has not supported the prosecution on this point. He clearly stated that he had not noticed any mark of strangulation on the neck of patient nor there was any injury caused by sharp edged weapon. As such, no accused persons can be held guilty under this provision of IPC and accordingly they are acquitted u/Sec.307/120B IPC.
17. In view of aforesaid, I have reached to the following conclusion: (A). All the accused persons had entered into the criminal conspiracy for committing the offence of dacoity, so they are liable for holding guilty u/Sec.395/120B IPC for conspiring the dacoity and accordingly they are convicted therein under.
(b). The accused Ram Babu, Ranjit and Mahesh had also committed dacoity in pursuance to said conspiracy, so they are liable for holding guilty u/Sec.395 IPC for having committed dacoity. They are convicted accordingly.
As regards to the remaining accused persons namely Dukhi Tahkur and Shiv Kumar, who were not identified by the complainant as the abater State Vs. Ram Babu etc. Page No. 35 of pages 36 so they are entitled for an order of acquittal on the basis of benefit of doubt and accordingly they are acquitted U/s 395 IPC.
(c). Since the accused Dukhi Thakur and Shiv Kumar, who were members of unlawful assembly and hatched the criminal conspiracy with other accused, can not be escaped from their liabilities u/Sec.411 of Indian Penal Code being the recipients of stolen articles, so they are liable to held guilty under Section 411 IPC. They are convicted accordingly. (D). Under Section 307/120B IPC, all the accused persons are acquitted.
18. Now, they be heard on the point of sentence.
(Announced in the open (RAKESH KUMAR)
court today on 25.04.2009) ASJ04 (NORTH)/DELHI
State Vs. Ram Babu etc. Page No. 36 of pages 36