Delhi District Court
State vs . Manish @ Mani S/O Sh. Niwash on 28 March, 2013
1
IN THE COURT OF MR. UMED SINGH GREWAL
ASJ/SPECIAL JUDGE (NDPS)
OUTER DISTRICT:ROHINI COURTS:DELHI
SC No.116/2010
FIR No.279/09
PS S.P Badli
u/s 392/394/397/411/34 IPC &
State Vs. Manish @ Mani S/o Sh. Niwash
R/o D27/8, Yadav Nagar,
Delhi.
Date of institution : 21.10.2010
Date when arguments concluded: 23032013
Date when Judgment pronounced:28032013
JUDGMENT
1. The accused has been forwarded by the police to face trial under Section 392/394/397/411/34 of IPC.
2. Facts of the case are that complainant Amarjeet and Rajesh were strolling in the area of Badli Railway Station, Delhi on 12102009 at 10.00 PM. When they moved towards village Samaipur, Railway Crossing, they were surrounded by three boys at a deserted place and they started snatching money and mobile phone from them. Amarjeet was caught by one boy and other boy State vs. Shankar etc. 1 of 14 2 caught Rajesh. Amarjeet identified one of them. When he told that fact to the accused, he was hit on head by third boy with iron rod. A purse containing Rs.300/ were robbed from Amarjeet and a mobile phone and Rs.300/ were robbed from Rajesh. They started making noise and hearing their cries, some policemen came there. Two boys fled away from the spot and whereas third one was caught red handed by the police and his name lateron came to be known as accused Shankar. Regarding two accused, the complainant Amarjeet stated to the police that he was seeing them regularly in the market and their names were Mani and Manoj.
Manoj was not arrested because of nonavailability of his father's name and address. Accused Shankar faced trial before PM JJB, who died during trial. The present case is only against accused Manish @ Mani.
3. Charged u/s 392/34, 394 and 397 IPC was framed against accused Manish @ Mani on 21102010 to which he claimed trial.
4. In order to establish the case, prosecution examined as many as 15 witnesses. Not a single witness appeared in the defence.
State vs. Shankar etc. 2 of 14 3
5. PW2 HC Suresh registered FIR Ex. PW2/A on 1310 2009 at 2.30 AM on receipt of rukka brought by Ct. Nehru and sent by SI Satish Kumar. PW3 HC Kiran Pal alongwith Ct. Nehru was on patrolling in the area on Badli Railway Station on the night intervening 12/13102009. When they were standing near Badli Railway Station a person came to them at 10.00 PM to tell that two boys were being beaten and robbed by three boys near Peer Ki Mazar. PW3 and Ct. Nehru/PW6 reached the kacha road and saw that three boys were beating two persons and snatching money from their pockets. When they ran towards the three boys, two ran away from the spot but one boy, whose identity lateron came to be known as Shankar (since expired and faced trial before PM JJB), was apprehended. PW3 and PW6 identified the accused Manish in the court as the same boy who had run away from the spot. Both these witnesses knew accused Manish previously as he was involved in several other incidents of robbing in the area. They further deposed that after apprehending accused Shankar PW3 intimated the duty officer of PS telephonically and SI Satish reached to the spot. Before his arrival, both injured had left the spot for hospital. After preparing rukka, the tehrir was handed State vs. Shankar etc. 3 of 14 4 over to PW6 for registration of the case who returned to the spot with a copy of FIR and rukka. Accused Shankar who was apprehended at the spot, was arrested vide arrest and personal search memos Ex. PW3/A and Ex. PW3/B. Iron rod Ex. P3 was also seized from the spot at the instance of accused Shankar. A cash of Rs.300/ Ex. P1 was also recovered from his pocket. To the same effect is the testimony of PW6 Ct. Nehru Lal.
PW5 HC Satbir and PW7 HC Surender were with IO on 19 102009 at the time of arrest of accused Manish from his house No.27/8, Dblock, Yadav Nagar. He was arrested vide arrest and personal search memos Ex.PW5/A and Ex.PW5/B respectively. After interrogation, his disclosure statement Ex. PW7/C was recorded. These witnesses further deposed that in pursuance to disclosure statement, accused Manish led police party to a place near the wall of Railway Station and he got recovered an iron rod which was seized vide memo Ex. PW5/C. He pointed out the place near bazar on kacha way as the place of occurrence and pointing out memo Ex. PW7/B was prepared. The rod has been identified by PW5 and PW7 as Ex. P3.
PW8 Ct. Anil Kumar was DD writer in PS SP Badli on 1210 State vs. Shankar etc. 4 of 14 5 2009 and on that day at 10.00 PM, he recorded DD No.73 B Ex. PW8/A on receipt of information from Wireless Operator that two persons were beaten and robbed at Railway Station, Badli. PW9 HC Vishal is irrelevant witness because he brought the list of cases in which accused Manish had involvement. Such kind of evidence is to be brought, as per Cr.PC, only after the accused has been held guilty.
PW10 Dr. Rajiv Ranjan identified the signature and handwriting of Dr. Ruchi Goel who had given opinion based upon Xray report, about the injuries of Rajesh. PW10 has identified handwriting and signatures of Dr. Ruchi Goel as he saw her several times signing and writing during the ordinary course of the duty. Dr. Ruchi Goel has left the hospital and her present whereabouts are not available. PW10 deposed that requisition form Ex. PW10/A filled by Dr. Bhawna Jain was received by Dr. Ruchi Goel as Xray of injured was to be done. Xray of skull , hand and mandible area were done in the Radiology Department vide Xray No.2449 to 2451. As per Xray report, Rajesh had fracture on mandible area. That opinion Ex. PW10/B was given by Dr. Ruchi Goel. PW12 Dr. Sanjay Sharma identified the signature and handwriting of Dr. State vs. Shankar etc. 5 of 14 6 Ashutosh at point X and Y on the MLC Ex. PW4/A of Rajesh. In the same way he identified the handwriting and signature of said doctor at point Z on the MLC of Amarjeet. He also identified his signature and handwriting of Dr. Ashutosh on the opinion Ex. PW12/A,Ex. PW12/B and Ex. PW12/C. Dr. Kanwar Sanjay Kumar PW14 identified the signature and handwriting of Dr. Sumit who had left the hospital and whose recent whereabouts were not known. He deposed that injured Rajesh was referred to Surgery Department on 12102009. After examination he was referred to Dental Department where he was examined by Dr. Sumit with the alleged history of physical assault. He had swelling on the right side of mandible area and hence Xray was advised and treatment was given. He identified the signature of Dr. Sumit at point Z on MLC Ex. PW4/A of Rajesh. PW15 HC Ramesh proved only the certificate Ex.PW15/B u/s 65 (B) of Indian Evidence Act which was not brought by PW2.
PW11 SI Satish Kumar is the IO and he deposed all the facts which have already been stated in the evidence of PW3, PW5, PW6 and PW7.
PW1 and PW13 are the injured witnesses. PW13 Amarjeet State vs. Shankar etc. 6 of 14 7 resiled from his previous statement on the issue of identity of the accused but he supported the prosecution case regarding the robbery and injury. But it is the evidence of PW1 Rajesh which is going to the hilt. He deposed that he was running a tailor shop and PW13 was his worker. On 12102009 at 10.00 PM, he and PW13 had gone towards Badli Railway Station for strolling. They were waylaid by two persons and when they resisted third person standing at some distance reached there. PW13 knew him and so he tried to cover his face. Then he took out one rod and hit him and Amarjeet. They fell down, became unconscious and were robbed by the accused. A mobile phone and cash of Rs.300/ were robbed from him and similar articles were robbed from Amarjeet. He further deposed that two accused ran away from the spot but third one i.e. accused Shankar was apprehended and taken into custody by the police. Both injured went to Chadha Nursing Home and thereafter they were treated at BSA hospital and Bhagwati hospital. He identified the accused Manish as the same person who had initially apprehended him and PW13. He was known to them earlier as he used to roam in the area of his shop. In further examination in chief, PW1 deposed that he was not sure who had State vs. Shankar etc. 7 of 14 8 removed mobile phone and cash from them. In crossexamination by APP he deposed that accused Manish was the same accused who came from front armed with rod and who had hit him and PW13 with that rod.
6. Under Section 313 of Cr.PC, accused warded off all questions terming them incorrect and that he was innocent and had been falsely implicated by police in collusion with complainant.
7. Ld. APP argued that accused has been identified by PW1, PW3 and PW6 as one of the robber. She further submitted that iron pipe used in the commission of the robbery was got recovered by accused on 19102009 vide seizure memo Ex. PW5/C. She also referred to pointing out memo Ex. PW7/A prepared at the instance of accused Manish on 19102009. She submitted that recovery of Rs.300/ from accused Shankar(since deceased) vide memo Ex. PW3/D and iron rod at the instance of same accused vide memo Ex. PW3/C, corroborate the fact that incident of robbery had occurred on the strength of deadly weapons. The defence counsel argued that accused has not been identified by PW13 and PW1. He further submitted that recovery State vs. Shankar etc. 8 of 14 9 of iron pipe at the instance of his client on 19102009 has not been proved.
8. IDENTITY OF THE ACCUSED PW13 Amarjeet deposed about the robbery and injury to him and PW1. But when his attention was drawn towards accused Manish, he deposed that he was not the same boy who had robbed him. In the same breath he stated that he could not see the face of the robbers as they were attacked from behind. So PW13 is not a competent witness to identify or not to identify any accused as he deposed that he was attacked from behind. Hence, he is not justified to say that accused Manish was not the person who had attacked them.
The accused has been identified by PW1 as the same person who was standing in front side at a distance of 2025 feet. He was known to PW13 and when Amarjeet stated to him that he had come to know his identity, he attacked both. The accused has been identified by PW3 HC Kiran Pal and PW6 HC Nehru Lal who were on patrolling duty in that area on 121009. They were informed by a person that two persons were being beaten and robbed by three boys and when they rushed towards that place, PW1 and State vs. Shankar etc. 9 of 14 10 PW13 were being beaten and robbed by accused and his co accused. Both these witnesses identified accused Manish as one of the accused who was present at the spot with accused Shankar who was apprehended at the spot. So, identity of accused Manish has been established through the testimony of PW1, PW3 and PW6.
RECOVERY OF IRON PIPE FROM ACCUSED MANISH PW5 and PW7 were with IO when the recovery of iron pipe was effected on the lead given by accused Manish. The seizure memo Ex. PW5/C was prepared. That pipe has been identified as Ex.P3. As per PW11 the recovery was effected from a place near the wall of railway station. Not a single public witness has been joined. Moreover PW11 admitted in crossexamination that he had told accused that some concession would be given to him if he told the true facts and thereafter he made a disclosure statement consequent to which iron pipe was recovered. It is a clear cut inducement which is prohibited by section 26 of Indian Evidence Act. No recovery can be believed on the basis of such induced confession. Additionally, as per FIR the rods were thrown on the spot by the accused who ran away from the spot. If the pipe was thrown on the spot just after the incident, why it was not State vs. Shankar etc. 10 of 14 11 recovered by the police at that very moment and why it has been shown to have been recovered on 19102009? So, recovery is not believable.
RECOVERY FROM COACCUSED SHANKAR Not a single question has been asked by defence from witnesses regarding recovery of Rs.300/ cash from the pocket of accused Shankar. On the lead given by that accused Shankar, an iron rod of 2 ft. length and 3/4 diameter cm was recovered from service road in front of leading to village Samaipur. The injury on the person of witnesses are consistent with this rod.
INJURY As per MLC Ex. PW4/A, PW1 Rajesh has contused lacerated wound over parietal region measuring 2.5x1.0x1.5 cm. He had pain and bleeding from mouth. Dental notes are to the effect that there was swelling on the mandible area. Injury on the person of Rajesh was declared grievous. PW13 Amarjeet also had contused lacerated wound on occipital region measuring 2.5x 0.5 cm. This injury was found simple. These injuries have not be debated and agitated by the defence counsel.
State vs. Shankar etc. 11 of 14
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GENERAL
The defence counsel stated that the date of incident has been stated by PW3 HC Kiran Pal 13102009 but the prosecution case is that it was 12102009. This does not make any difference because FIR was registered on 13102009 at 2.30 AM, injured were examined in the hospital on 12102009 at about 11.40 PM, accused Shankar was arrested on the spot on 13102009 at 3.00 AM. All these documents conclusively proves that incident had occurred on 12102009 and not on 13102009.
Next argument is that the incident had taken place, as per PW13 Amarjeet, at 8.309.00 PM whereas remaining witnesses deposed it took place at 10.00 PM. The counsel stated that there is a gap of 11½ hour which cannot be reconciled. PW13 admitted in crossexamination that accused Manish was residing in his locality and he was previously known to him. Possibility of his being won over by the accused on that ground cannot be ruled out. So, evidence of PW13 regarding time of incident is discarded.
The counsel argued that beating and robbery took place at 10.00 PM but FIR was registered after a delay of 4½ hours i.e at 2.30 AM on 13102009. PW1, PW3 and PW6 deposed that after State vs. Shankar etc. 12 of 14 13 the incident, injured themselves went to Chadha Nursing Home and thereafter they were taken to BSA hospital. IO first came to the spot and when he came to know through PW3 and PW6 that injured had been shifted to the hospital, he went to the hospital and recorded the statement of injured Amarjeet. Thereafter, he came to the spot, prepared rukka and sent a constable to PS for registration of FIR. All these proceedings might have taken at least four hours. So, delay is definitely there but has been properly explained.
The counsel further submitted that PW1 Rajesh sustained injury on the back portion of his head and that cannot be possible because as per PW1, accused Manish was standing just in front of them at a distance of 2025 feet. The counsel has picked up only one sentence. Whole evidence of PW1 suggests that when he and PW13 resisted, the accused who was about 2025 ft. away from them, came to them and gave rod blows on their heads. At that time both witnesses were grappling with other two accused and it is very much probable that their backs were towards accused Manish when they were hit.
The last argument is that accused was previously known to State vs. Shankar etc. 13 of 14 14 both witnesses PW1 and PW13 but he was arrested on 19102009. The counsel submitted that police has no explanation why he was arrested so late. Name of the accused had figured in the statement of PW13 before police u/s 154 Cr. PC. He had also stated in that statement that accused Manish was known to him. Despite it Manish was arrested after seven days. It is the laxity on the part of police for which case of the complainant cannot suffer.
CONCLUSION
9. In view of above discussion, the accused Manish is held guilty u/s 392/34, 394 and 397 IPC. Let he be heard on the point of sentence separately.
Announced in the Open Court on 28th day of March, 2012.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
Outer Distt: Rohini Courts: Delhi
State vs. Shankar etc. 14 of 14
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IN THE COURT OF MR. UMED SINGH GREWAL
ADDL. SESSIONS JUDGE/SPECIAL JUDGE (NDPS) OUTER DISTRICT:ROHINI COURTS:DELHI SC No.116/2010 FIR No.279/09 PS S.P Badli u/s 392/394/397/411/34 IPC State Vs. Manish @ Mani S/o Sh. Niwash R/o D27/8, Yadav Nagar, Delhi.
28032013 ORDER ON SENTENCE Present: Ms. Purnima Gupta, Ld. APP for the State.
Mr. S. K. Kaushik, Counsel for convict.
Convict is on bail.
1. The accused has already been held guilty u/s 392/34, 394 and 397 IPC.
2. Ld. APP argued that stringent punishment be given to the convict as such like persons are creating law and order problem in Delhi State. They pounce upon anybody who is found alone in the night. On the other hand the defence counsel argued that his State vs. Shankar etc. 15 of 14 16 client is only of 28 yrs. He is to maintain his 25 years old wife and old parents who are living with him.
3. Taking into account mitigating and militating circumstances, the convict is sentenced to undergo RI for five years and to pay fine of Rs.5,000/ (Rupees five thousand only), in default of payment of fine he shall further undergo RI for one year for the offence punishable u/s 392 of IPC;
The convict is further sentenced to undergo RI for seven years and to pay fine of Rs.5,000/ (Rupees five thousand only), in default of payment of fine he shall further undergo RI for one year for the offence punishable u/s 394 of IPC;
The convict is further sentenced to undergo RI for eight years and to pay fine of Rs.5,000/ (Rupees five thousand only), in default of payment of fine he shall further undergo RI for two years for the offence punishable u/s 397 of IPC. All the sentences shall run concurrently.
4. Benefit of section 428 Cr. PC be given to the convict.
5. Fine not deposited.
6. Let a copy of Judgment and Order on Sentence be given to convict.
State vs. Shankar etc. 16 of 14 17
7. His bail bonds are cancelled and surety bonds are discharged. File be consigned to Record Room.
Announced in the Open Court on 28th day of March, 2013.
(UMED SINGH GREWAL)
ASJ/Special Judge (NDPS)
Outer Distt: Rohini Courts: Delhi
State vs. Shankar etc. 17 of 14