Delhi District Court
S T A T E vs (1) Pankaj Pandey on 23 October, 2010
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IN THE COURT OF SH. GURDEEP SINGH
ADDITIONAL SESSION JUDGE04, NORTHEAST DISTRICT
KARKARDOOMA COURTS : DELHI
FIR No. : 34/2005
Police Station : New Usmanpur, Delhi
Under Sections : 395/397/308/412/34 IPC &
25 of Arms Act
Unique ID No. : 02402R0182372005
S.C No. : 84/2008
S T A T E Versus (1) Pankaj Pandey
S/o Sh. Harender Pandey
R/o L22/41, Jai Prakash Nagar
Ghonda, Delhi.
(2) Kasif @ Bhaiya
S/o Sh. Islamuddin
R/o L261, Gali No.12
Gautam Vihar, Delhi.
(3) Yamin @ Aamin
S/o Ishaque Mohd.
R/o E48, Gali No. 9
Shastri Park, Delhi.
Date of Institution : 06/04/2005
Date of committal : 20/04/2005
Date of reserving judgment : 20/10/2010
Date of pronouncement : 20/10/2010
J U D G M E N T
FIR No. 34/2005 Page 1 of 39
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1.Accused persons namely Pankaj Pandey, Kasif @ Bhaiya, Yamin @ Aamin, Rizwan (juvenile), Raju @ Rizwan (juvenile) and Sehzad juvenile) were sent up for trial by police of PS:
Nand Nagri, Delhi to stand trial for offences punishable Under Sections 395/397/308/412/34 IPC & 25 of Arms Act on the allegations that on 31.01.2005, DD No. 31A was recorded on the information received from PCR that at Gali No. 11, Main Road, Brahmpuri, Dinesh Arya has been stabbed by four boys and has been looted. He has sustained knife injury on his head and he is admitted in Mohan Nursing Home. On this information, ASI Ishwar Singh alongwith Ct. Ved Pal reached at Mohan Nursing Home from where they were informed that injured has been removed to the GTB Hospital. They reached at the GTB Hospital and obtained the MLC of Dinesh Arya where the injured was declared fit to make the statement. Thereafter, the statement of Injured was recorded, mentioning therein, that threefour boys came while he was going from his shop to his house on his scooter. Three boys came and pushed him and stabbed him on his head and taken away Rs. 20,000/ from his pocket, one mobile also fell from his pocket. On the basis of his statement, FIR U/s 308/34 IPC was registered. Subsequently, he made his supplementary statement that there were six boys, FIR No. 34/2005 Page 2 of 39 3 out of which, one boy had pushed him and one boy was keeping the watch on the corner of the gali and others stood on the other side. When, he fell down, one boy hit him with the rod and one gave injury to him on his head with long churra. Thereafter, they held him and the boy who had pushed him and the boy who had accompanied him took our countrymade pistol and other boy took out the money from his pocket and other boy also taken out his Nokia Mobile phone and also threatened him that in case, he called the police, he will be killed. Thereafter, they ran away from there. He frightened, therefore, he did not disclose the entire incident to the police, at the time of recording of his initial statement. Thereafter, offence U/s 395/397 IPC was also added.
2. On 06.02.2005, S.I Tanvir Ashraf who was handed with subsequent investigation, apprehended the five boys on the secret information. Accused Raju @ Rizwan was having loaded countrymade pistol. Accused Kasif @ Bhaiya was having one long churra and accused Yamin @ Aamin was having an iron rod, which were seized. They also made confession regarding the commission of the present offence. From the possession of accused Kasif @ Bhaiya, three currency notes of Rs. 500/ FIR No. 34/2005 Page 3 of 39 4 (each), from the possession of accused Yamin, Rizwan and Shezad @ Munnu, two currency notes of Rs. 500/ and from the possession of accused Raju @ Rizwan, five currency notes of 500/ (each) were recovered. Thereafter, they were arrested. During the investigation, Dinesh came to the Police Station and he identified all the five boys who with the help of another had committed the dacoity. Accused Rizwan pointed out towards Khadde Wali Masjid House No. K166/67, Gautam Vihar "Ruby Telecom Centre, STD Booth" and pointed towards Pankaj Pandey who is the owner of the said shop to whom they had sold the mobile phone for Rs. 500/. Accused Pankaj Pandey was arrested and mobile phone make Nokia was recovered from drawer of the counter which was seized. The effort was made to arrest Asif whose identity could not be fixed, therefore, he could not be arrested. The other accused persons were arrested and chargesheeted.
3. After supplying the necessary copies to the accused persons, the case was committed to the Court of Session vide order dated 20.04.2005.
FIR No. 34/2005 Page 4 of 39 5
4. Accused persons namely Rizwan, Raju @ Rizwan and Sehzad @ Munna are juvenile. Therefore, vide order dated 10.06.2005, the separate chargesheet was directed to be filed against accused Sehzad before Juvenile Justice Board. As regards accused Rizwan and Raju @ Rizwan, the Juvenile Justice. Board was directed to conduct inquiry vide order dated 15.09.2005. Thereafter, Rizwan, Raju @ Rizwan and Sehzad @ Munna did not appear before the court of my Ld. Predecessor, apparently, because they were juvenile.
5. After supplying the copies to the accused persons, the case was committed to the court of sessions vide order dated 24/08/2007.
6. After committal of the case, My Ld. Predecessor vide order dated 28.10.2005, after finding primafacie offence, charged accused Kasif @ Bhaiya, Yamin @ Aamin for offence U/s 395 IPC and U/s 308/34 IPC, accused Pankaj Pandey was charged for offence punishable U/s 412 IPC and accused Kasif @ Bhaiya was also charged for offence punishable U/s 397 IPC, to which, they pleaded not guilty and claimed trial.
7. The prosecution in support of their case examined as many as 17 prosecution witnesses.
FIR No. 34/2005 Page 5 of 39 6 The material witnesses examined by the prosecution are: PW4 Dinesh Arya is the complainant and injured. The formal witnesses examined by the prosecution are:
PW1 Sh. Suresh Kumar Garg from whom Dinesh Arya had purchased the Mobile Phone and proved the cash memo Ex.PW1/A. PW2 Dr. Banarasi who had medically examined Dinesh Arya and proved the MLC Ex.PW2/A. PW5 Dr. Zahid who was working in Mohan Nursing Home where Dinesh Arya was given the firstaid treatment. PW6 HC Salauddin was the duty officer who on the receipt of rukka, recorded the FIR bearing No. 34/05, U/s 308/34 IPC PS New Usman Pur and proved the copy of the same as Ex. PW 6/A. He also endorsed the rukka vide his endorsement Ex. PW6/B. PW9 Ct. Gajraj Singh who had deposited the parcels at CFSL Chandigarh.
PW10 ASI Laique Ahmed was also the duty officer who recorded the information regarding the admission of the injured in Mohan Nursing Home who was stabbed by four boys and proved the copy of DD No. 31A vide Ex. PW10/A. FIR No. 34/2005 Page 6 of 39 7 PW11 H.C.Rajender Kumar who recorded the information at the PCR and proved the copy of relevant record Mark 11/A. Note : (In the present case, inadvertently, after PW No. 11 the next number was given as PW15) PW15 ASI Sohan Kashyap who was posted as MHC(M) on 20.03.2005 and on that day, received one sealed parcel having country made pistol and live cartridge which was sent to the CFSL Chandigarh and proved the relevant entry as Ex. PW 15/A. The witnesses of arrest and investigation examined by the prosecution are: PW3 Constable Lalit who alongwith the IO joined the investigation of this case. He proved the seizure memo of Churra Ex. PW 3/A, Seizure memo of rod Ex. PW3/B, Seizure memo of currency notes Ex. PW3/C. He also proved the arrest memos of the accused persons vide Ex. PW 3/D to H, their personal search memos vide Ex. PW 3/I to M and their disclosure statement Ex. PW 3/N to Q. He also proved the pointing out memo Ex. PW 3/R, Seizure memo of mobile make Nokia vide Ex. PW 3/S, arrest memo of accused Pankaj Panday vide Ex. PW 3/T, his personal search memo Ex. PW3/U, and his disclosure statement Ex. PW3/V. FIR No. 34/2005 Page 7 of 39 8 PW7 HC Manvir is also the witness of arrest and investigation. He proved the sketch of Katta as well as live cartridge as Ex. PW 7/A, its seizure memo Ex. PW7/B, disclosure statement of Kasim Ex. PW7/C and arrest memo of accused Kasim Ex. PW 7/D. PW8 ASI Rishi Pal is also the witness of arrest and investigation who proved the disclosure statements of accused persons namely Raju @ Rizwan, Shehzad @ Munnu, Yamin @Aamin, Qasif @ Bhaiya, and Rizwan. He also proved the arrest memo of accused Rizwan vide Ex. PW8/E, arrest memo of accused Raju @ Rizwan vide Ex. PW8/F, arrest of accused Kasif vide Ex. PW8/G and arrest Memo of accused Yamin Ex.
PW8/H and personal search memo of accusd Pankaj Panday vide Ex. PW8/X. PW16 Inspector Tanvir Ashraf, is the part IO and also the witness of arrest and recovery who in addition to other memos proved the CFSL report Ex. PW16/A and sanction order U/s 39 of Arms Act. Ex. PW16/B. PW17 ASI Ishwar Singh is the Investigating Officer who in addition to other memos proved his endorsement on the statement of injured vide Ex. PW17/A and site plan Ex. PW17/B. FIR No. 34/2005 Page 8 of 39 9
8. Vide order dated 06.10.2009, PW Ct. Satish who is the other witness of arrest and recovery was dropped. Vide order dated 25.01.2010, PW Sh. D.C Srivastava, Addl. DCP who had given the sanction U/s 39 of Arms Act and PW Dr. P. Siddambary who had given the ballistic report were also dropped as they relates to the accused persons who were juvenile.
9. After the completion of the prosecution evidence, statement of accused persons were recorded U/s 313 Cr.PC wherein they denied the prosecution evidence and claimed innocence. The accused persons also lead the defence evidence.
10. Accused Pankaj Pandey in his statement U/s 313 Cr.P.C has stated that he is innocent. He has been falsely implicated in this case. He is doing the work of repairing of mobile phones. On one Sunday, he had gone for barat at Ghaziabad. Where, he received a telephonic call of beat Constable namely Naresh, who asked him that he was to see the phones, which are lying with him for repair. He told him that he is away at Ghaziabad and told him to take the key from his brother and he had taken 23 phones which were lying there in his shop for repairing and thereafter, in the morning, when he came, he was apprehended and falsely implicated in this case.
FIR No. 34/2005 Page 9 of 39 10
11. Accused Kasif @ Bhaiya and accused Yamin @ Aamin in their statements U/s 313 Cr.P.C have similarly stated that they are innocent and have been falsely implicated in this case. They were lifted by the police from their houses and case property is planted upon them.
12. Accused persons examined DW1 Sh. Adil Khan, DW2 Sh. Abdul Sattar and DW3 Sh. Nawab Ali in their defence.
13. I have heard Sh. Virender Singh, Ld. Addl. Public Prosecutor for the State and Sh. A.A Khan, Advocate for the accused persons. I have also gone through the record.
14. PW4 Sh. Dinesh Arya testified that he is running Auto Parts Shop at Maujpur Chowk. On 31.01.2005, at about 11.00/11.30 PM, he was going to his home from the shop on his scooter bearing registration No. DL4SJ0061. As he entered in Gali in which his house is situated, 56 boys came there. Out of those boys, one boy pushed his scooter, as a result of which, he fell down alongwith scooter and started manhandling with him. One of them was holding an iron rod, one was having a country made pistol and one of them had attacked him with the handle of a knife. The assailants looted Rs. 20,000/ which he kept in his pocket. During the scuffle, his mobile phone No. FIR No. 34/2005 Page 10 of 39 11 9213106069 of Nokia make fell down in the nali (drain) and the assailants picked up the said mobile phone. He stated that assailants had fled away from the spot. He got up and walked down to his house with much difficulty on foot. The neighbourers collected there and took him to Mohan Nursing Home, where he was given first aid. In the meantime, somebody informed the police and both the SHOs of PS Seelampur and New Usmanpur came there. He was not in his senses at that time but his preliminary statement was recorded and he was shifted to GTB Hospital, where he was medically examined. IO recorded his statement Ex.PW4/A after his discharge from the hospital. The witness stated that he can identify the assailants. He has identified accused Kasif and stated with respect to Yamin that he may or may not be one of the assailants. He further testified that on 06.02.2005, at about 5.00/5.30 PM, he was present at his house. He saw SI Tanvir of PS New Usmanpur was present in the gali alongwith the police officials and fourfive other boys. He went there and identified those boys as the assailants who robbed him. Accused persons also disclosed in his presence in the Police Station regarding the commission of robbery with him. He further stated that he had purchased the said Mobile Phone from the shop i.e M/s FIR No. 34/2005 Page 11 of 39 12 Prashant Communication, near his house vide receipt and he handed over the said receipt to the police. Police seized the same vide seizure memo Ex.PW4/B. He identified his mobile phone Ex.P1. He also identified the currency notes Ex.P2 collectively. He also identified iron rod and churra Ex.P3 and P.4 respectively. He was declared hostile by Ld. Addl. P.P for the state. On being crossexamined by Ld. Addl. P.P, the witness admitted that he had stated in his statement to the police that one of the assailants whose name was revealed to him as Kasif had attacked upon him with the handle of knife Ex.P4 and another assailant whose name was revealed to him as Yamin, had attacked upon him with iron road. He identified accused Yamin as one of the assailant who had attacked upon his head with iron rod Ex.P3 and he identified him at the spot before the police on 06.02.2005.
15. PW4 Dinesh Arya was corroborated by PW2 Dr. Banrasi who had medically examined the injured at GTB Hospital and found five injuries on his person. PW4 Dinesh Arya was also corroborated by PW1Sh. Suresh Kumar Garg regarding the purchase of the mobile phone.
FIR No. 34/2005 Page 12 of 39 13
16. PW7 H.C Manvir testified that on 06.02.2005, he joined the investigation of this case alongwith S.I Tanvir Ashraf, ASI Rishi Pal, Ct. Satish and Ct. Lalit at Zero Pushta. There, secret informer, told IO that the assailants, who were involved in committing robbery at Braham Puri, would gather at Second Pushta for committing another robbery. Thereafter, without causing any delay, he alongwith other staff went at Second Pushta alongwith secret informer after preparing raiding party consisting police staff. After some time, at the pointing of secret informer towards five persons, those five persons were apprehended, whose name on disclosing came as Raju Ali @ Rizwan (juvenile), Shehjad Ali @ Munnu (juvenile), Kasif @ Bhaiya, Aamin @ Yamin and Rizwan (juvenile). From the possession of accused Raju @ Rizwan, one country made pistol was recovered. From the possession of Kasim @ Bhaiya, one churra was recovered. From the possession of accused Yamin, one iron rod was recovered. They were sealed and seized. From the possession of Raju @ Rizwan, further recovery of Rs. 7,000/ (14 notes of Rs. 500/ denomination) were effected. From the possession of accused Shehzad, three notes of Rs. 500/ denomination were recovered. From the further possession of accused Kasim (it should be Kasif), three notes of FIR No. 34/2005 Page 13 of 39 14 the denomination of Rs. 500/ were recovered. All the abovesaid currency notes were seized vide seizure memo Ex.PW3/C. Thereafter, accused Shehzad, Raju @ Rizwan, Kasif, Yamin and Rizwan also made their disclosure statements and they were arrested and pointed out the place incident. In the meantime, Dinesh Arya, complainant, also arrived there, who identified all the accused persons. Dinesh Arya was discharged there. Thereafter, accused persons took them to K 166/67, Gautam Vihar, Khadde Wali Masjid, where the mobile was sold. They pointed out towards accused Pankaj Pandey, to whom the mobile was sold for Rs. 500/. Accused Pankaj Pandey was arrested and he got recovered one mobile phone make Nokia which was seized by the IO vide memo Ex.PW3/S.
17. PW7 H.C Manvir was duly corroborated by PW 3 Ct. Lalit, PW8 ASI Pal and PW16 IO/Inspector Tanvir Ashraf regarding the receipt of secret information, apprehension of accused persons at the instance of secret informer, on the point of recoveries of weapons and currency notes effected from the accused persons and identification of accused persons by complainant Dinesh Arya who met them there. They also FIR No. 34/2005 Page 14 of 39 15 corroborated PW7 H.C Manvir regarding the pointing out of the shop of Pankaj Pandey by the accused persons.
18. Ld. Counsel for the accused persons submitted that accused Kasif @ Bhaiya and Yamin were first time identified in the court and no TIP was conducted for their identification, therefore, their identification is doubtful. Further, it is submitted that recoveries have been planted on the accused persons. It is further submitted that PW4 Sh. Dinesh Arya is not reliable as his testimony is inconsistent. PW4 Sh. Dinesh Arya in his examinationinchief has stated that it was about 11.00/11.30 PM, when he was going to his house from his shop on his scooter. Whereas, he in his crossexamination, which was conducted on 14.07.2010, has stated that he used to close his shop at 9.00/9.30 PM.
19. The examinationinchief of PW4 Sh. Dinesh Arya was recorded in the year 2006 and the incident was of year 2005 and his crossexamination was done in year 2010, after he was recalled. Such inconsistencies are bound to occur, therefore, they can be ignored.
20. Now coming to the testimony of PW4 regarding the incident.
PW4 Sh. Dinesh Arya in his crossexamination has stated that FIR No. 34/2005 Page 15 of 39 16 he had signed Ex.PW1/A (it should be Ex.PW4/A) after going through its contents. In his initial statement, he had informed the police that in the scuffle, his money had fell down but when his statement was being recorded by the IO after his discharge from the hospital, he carefully checked his pant and saw that his pockets were torn and the money was taken out forcibly from the said pockets by the assailants. and hence, he was looted by them. He had informed the police officials that in the scuffle, his mobile phone had fell down in the 'nali' and the accused persons had taken it away. He stated that there were residential houses at the distance of about 20 paces away from the spot. He stated that after the incident, firstly, he went to his house and from there, he was taken to Mohan Nursing Home by family members and neighbours. He stated that he does not know who had called up the PCR. He stayed in the Nursing Home for about half an hour and thereafter, he was taken to GTB Hospital in the vehicle of Municipal Councilor Sh. Ishwar Chand Goel, who is his neighbor. He stated that ASI Ishwar met him for the first time in GTB Hospital and thereafter, he visited his house on the next day in the morning hours. He stated that he cannot given the exact denomination of all the notes which were looted from him as the payments in FIR No. 34/2005 Page 16 of 39 17 parts were received from different parties but most of notes were of Rs. 500/ (each). He stated that he generally put some mark to identify the payments received like 'D'. Currency notes Ex.P2 were again shown to the witness and notes were found mark of D. He further stated that he was present at the corner of the gail with his friends on 06.02.2005 when police officials again met him there. In his crossexamination on behalf of accused Kasif, he stated that he cannot identify the boy who had kicked his scooter, due to lapse of fivesix years of the incident.
21. As regards the incident, although the first statement recorded by the police says that there were only 23 boys who had hit him on the head and Rs. 20,000/ kept in his pocket fell down alongwith his mobile phone and subsequently, by way of supplementary chargesheet, PW4 Sh. Dinesh Arya had given the detailed statement.
22. One is well aware that the police in what manner dilute the actual offence. In the present case, as per the supplementary statement of the complainant, it is clear that it was the case of dacoity, whereby, he was robbed of Rs. 20,000/ and mobile phone. No one in ordinary scuffle would take money from the FIR No. 34/2005 Page 17 of 39 18 pocket of a person who has been injured or take away his mobile phone. The police had deliberately diluted the offence to show this is not as a case of dacoity but simple case of injury U/s 308 IPC. The crime is on rise because of the reason that actual crime is not being recorded, therefore, the actual criminals are not caught. The recording of actual crime would lead to the decrease in crime as the criminal who commit the actual crime would not go scotfree or be setfree by receiving the minor punishment, if any. In this case, the signed statement of PW4 Dinesh Arya was recorded on 01.02.2005 at about 1.00 AM and his statement U/s 161 Cr.P.C was again recorded on that very day, is clearly indicating the offence of dacoity. It is apparent that initially the correct offence was not recorded and subsequently, the police was forced to record his supplementary statement for recording the correct offence. Be that as it may.
23. The testimony of PW4 Sh. Dinesh Arya with respect to the offence is cogent and consistent on the material particulars and despite, the lengthy crossexamination, he has not been shaken.
24. Now coming to the identification of accused persons.
Admittedly, the accused persons were not known to the complainant/injured and he is shown by way of coincidence FIR No. 34/2005 Page 18 of 39 19 present near his house on 06.02.2005 when he identified the boys as the persons who had robbed him. The accused persons were arrested in pursuance of the secret information. Therefore, it was necessary for them to conduct their TIP before taking them to the place of occurrence. As per the testimony of PW4, he identified accused Kasif in the court and as regards accused Yamin, he stated that he is not sure, whether, he is the same person or not. After PW4 was crossexamined by Ld. Addl. P.P for the State, he stated that accused Yamin is the same person who had attacked upon his head with iron rod and similarly, also given the role of accused Kasif. The coincidence of finding the accused persons outside his house and identifying them is not worth giving any credence and identification for the first time in the court is shakey. Therefore, this witness cannot be relied upon with respect to the identification of the accused persons.
25. Now coming to the recovery. PW3 Ct. Lalit in his cross examination has stated that they left the police station after making departure entry. They were in private vehicle. He admitted that there is residential houses at Zero Pushta but no resident was called to join the investigation by the IO. The FIR No. 34/2005 Page 19 of 39 20 distance from the Zero Pushta to Second Pushta is one kilometer. There are residential houses at a distance of 200250 paces away from second pushta. They took their position at 2.15 PM. He and Ct. Manbir took position in West side. ASI Rishi Pal and Ct. Satish took position in East side. SI Tanvir and secret informer took position in South side. The secret informer was of the age of 30 years. He was wearing pant and shirt but he cannot tell the colour of his pant and shirt. Proceedings were conducted while sitting on the pulia. They remained at the spot from 2.30 PM to 7.00 PM. He admitted that till 7.00 PM, no one left the spot. He stated that no public public witness signed the recovery memos. His statement was recorded by S.I Tanivr Ashraf in his own handwriting on 06.02.2005. They took the accused persons to police station on foot. The distance of the spot from the police station is two kilometers. He denied the suggestion that nothing was recovered from the possession of accused persons.
26. PW8 ASI Rishi Pal testified that the information regarding this case received at Zero Pushta, Usmanpur, Delhi at 2.00 PM. The distance between the place where the accused persons were standing and the place where they received the information is FIR No. 34/2005 Page 20 of 39 21 about 2/2½ kms. The spot is not thickly populated area. They were all in police uniform. The accused persons did not try to flee after seeing them. They remained at the spot till 5.00 PM. They all were on their motorcycles when they reached at Yamuna Khadar. The writing work was done while sittingin pulia which was at the north side.
27. PW16 Inspector Tanvir Ashraf in his crossexamination has stated that they went to Zero Pushta by private motorcycles. The residential colony is about 250 yards away from the zero pushta. He did not call any residents from the residential colony to join them in the investigation. The secret informers was wearing pant and shirt but he does not remember the colour of the clothes. The secret informer was aged about 28 to 30 Yrs. They remained at Zero pushta till 5.00 PM. He had given the information to the SHO through mobile phone. He does not remember the telephone number of the said mobile phone. Almost all the proceedings were written in his handwriting. Accused persons were brought to the police station on foot. The distance between the Zero Pushta and police station is about 1½ 2 kms.
FIR No. 34/2005 Page 21 of 39 22
28. The police witnesses are inconsistent with respect to the effect of time that PW3 Ct. Lalit said that they remained at the spot till 7 PM, whereas, PW8 ASI Rishi Pal and PW16 Inspector Tanvir Ashraf stated that they remained at the spot upto 5 PM. They are consistent, regarding all other aspects. The inconsistency to the effect of time is not so vide that one can not ignore the same. Therefore, the testimonies of police witnesses are consistent. The mere fact that public witnesses were not joined cannot be a ground to disbelieve the police witnesses. It is a settled law that "nonjoining of the public witnesses do not in any manner bring down the credibility of the police witnesses, if they are, otherwise, found to be consistent and credible ".
29. Ld. Defence Counsel has submitted that the currency notes are easily available in the open market and PWs have stated that they are not sure about the denomination of the stolen currency notes and all the currency notes are of the denomination of Rs. 500/.
30. PW4 Sh. Dinesh Arya stated that he put the mark of 'D' on the currency notes and explained that he generally put 'D' Mark on the currency notes to identify the payment received. FIR No. 34/2005 Page 22 of 39 23
31. Exhibit P.2 are the 14 currency notes which were having the identification mark of 'D'. Therefore, there cannot be any doubt about the currency notes belonging to the complainant and identification Mark 'D' is not put generally on the currency notes. Therefore, these currency notes can be easily distinguished from the other and witness has clearly explained the same.
32. As per the testimony of PW7 H.C Manvir , 14 currency notes of Rs. 500/ denomination were recovered from accused Raju @ Rizwan (juvenile). Three notes of Rs. 500/ denomination were recovered from accused Shehzad and three notes of the denomination of Rs. 500/ were recovered from accused Kasim (it should be Kasif).
33. As per the testimony of PW8 ASI Rishi Pal, from the possession of accused Kasif, 3 notes of Rs. 500/ denomination were recovered. From the possession of accused Yamin, 2 notes of Rs. 500/ denomination were recovered. From the possession of accused Rizwan two notes of Rs. 500/denomination were recovered. From the possession of accused Raju @ Rizwan, 5 notes of Rs. 500/denomination were recovered. From the FIR No. 34/2005 Page 23 of 39 24 possession of accused Sehzad, 2 notes of Rs. 500/ denomination were recovered.
34. As per the testimony of PW3 Ct. Lalit, three currency notes of Rs. 500/ were recovered from accused Kasif, two currency notes of Rs.500/ were recovered from accused Yamin, five currency notes of Rs. 500/ were recovered from accused Raju @ Rizwan and two currency notes of Rs. 500/ were recovered from accused Rizwan and two currency notes were recovered from accused Shehzad. As per PW3 Ct. Lalit, total 14 currency notes were recovered from the possession of the accused persons. Except one, all the three recovery witnesses are consistent that three currency notes were recovered from accused Kasif, two currency notes were recovered from accused Yamin and total 14 currency notes were recovered from the possession of the accused persons. It appears that testimony of PW7 H.C Manvir is incorrect to the effect that Rs. 7, 000/ were recovered from accused of Raju @ Rizwan and from the possession of accused Shehzad, three notes of Rs. 500/ denomination were recovered and from the further possession of accused Kasim (it should be Kasif), three notes of the denomination of Rs. 500/ were recovered.
FIR No. 34/2005 Page 24 of 39 25
35. The currency notes were identified by the complainant, therefore, accused Kasif and Yamin were found in possession of currency notes which were robbed by them from the person of the complainant in dacoity. Thereby, received or retained stolen property having reason to believe to have been transferred by commission of dacoity. The accused persons had pointed out the place of occurrence, therefore, they had knowledge that the property was stolen property having been robbed in dacoity. Therefore, prosecution has proved that accused persons namely Kasif @ Bhaiya and Yamin @ Aamin have dishonestly received the stolen property having knowledge to have been transferred by the commission of dacoity.
36. Now coming to accused Pankaj Pandey. PW3 Ct. Lalit stated that accused Rizwan had led them to the shop of accused Pankaj Pandey and pointed out towards accused Pankaj Pandey and disclosed that he had given a mobile to him. Accused Pankaj Pandey had taken out the mobile make Nokia from his drawer and handed over it to the IO which was seized vide seizure memo Ex.PW3/S. The said mobile phone was identified by the complainant.
FIR No. 34/2005 Page 25 of 39 26
37. PW7 H.C Manvir testified that accused persons took them to K166/67, Gautam Vhar, Khadde Wali Masjid, where the mobile was sold. They pointed out towards accused Pankaj Pandey, to whom the mobile was sold for Rs. 500/. Accused Pankaj Pandey was arrested and he got recovered one mobile phone make Nokia which was seized.
38. PW8 ASI Rishipal testified that accused Rizwan disclosed that he had sold the robbed mobile to one Pankaj Pandey. Thereafter, they went to the STD Booth, Gautam Vihar and on the pointing out of Rizwan, accused Pankaj Pandey was apprehended. Accused Pankaj Pandey made his disclosure statement and from his possession, one mobile phone Nokia TATA was recovered which was seized vide memo Ex.PW3/S.
39. PW16 IO/Inspector Tanvir Ashraf similarly stated that accused Rizwan led the police party at the shop of Pankaj Pandey i.e Ruby Telecom Centre at Gautam Vihar and pointed out towards the Pankaj Pandey who was sitting in the shop at the counter and stated that he has sold the mobile phone to Pankaj Pandey. On this, PW16 apprehended Pankaj Pandey and interrogated him. He has produced the mobile phone make Nokia bearing Model No. 2280 which he taken out from the drawer of the FIR No. 34/2005 Page 26 of 39 27 counter. He seized the same vide seizure memo Ex.PW3/S. He arrested Pankaj Pandey vide arrest memo Ex.PW3/T and his personal search was conducted vide memo Ex.PW8/X.
40. There is no crossexamination of PW3 Ct. Lalit on this aspect regarding recovery of mobile phone from accused Pankaj Pandey. PW7 H.C Manvir was also not crossexamined on this aspect. In the crossexamination of PW8 ASI Rishi Pal stated that accused Pankaj Pandey was arrested from Khadawali Masjid. He does not know the nature of job of accused Pankaj Pandey. He denied the suggestion that accused Pankaj Pandey is the mechanic of mobile phone. There is no further cross examination on this aspect. PW16 Inspector Tanvir Ashraf was given the suggest that accused Pankaj was not having the knowledge that the recovered mobile phone was the robbed/stolen mobile phone. Therefore, prosecution has consistently proved that mobile phone belonging to the complainant was recovered from accused Pankaj Pandey. Accused Pankaj Pandey according to prosecution have purchased mobile phone of Rs. 500/. The said mobile phone was purchased for Rs. 2, 350/ in November 2004, which was robbed in January 2005. Therefore, the value of the phone FIR No. 34/2005 Page 27 of 39 28 would not have depreciated so much in two months and thereby, accused Pankaj Pandey received the same dishonestly having reason to believe the same to be the stolen property. However, there is no evidence on record that accused Pankaj Pandey knew that the phone was stolen while committing dacoity. Therefore, offence punishable U/s 412 IPC is not made out against accused Pankaj Pandey. However, offence punishable U/s 411 IPC is proved against accused Pankaj Pandey.
41. Now coming to the defence of the accused. Accused Kasif @ Bhaiya and accused Yamin @ Aamin have similarly stated that they are innocent and have been falsely implicated in this case. They were lifted by the police from their houses and case property is planted upon them.
42. Accused Pankaj Pandey has stated that he is innocent. He has been falsely implicated in this case. He is doing the work of repairing of mobile phones. On one Sunday, he had gone for barat at Ghaziabad. Where, he received a telephonic call of beat Constable namely Naresh, who asked him that he was to see the phones, which are lying with him for repair. He told him that he is away at Ghaziabad and told him to take the key from his brother and he had taken 23 phones which were lying there in FIR No. 34/2005 Page 28 of 39 29 his shop for repairing and thereafter, in the morning, when he came, he was apprehended and falsely implicated in this case.
43. Accused Pankaj Pandey examined DW1 Sh. Adil Khan in his defence. DW1 Sh. Adil Khan testified that he know accused Pankaj Pandey as he is running shop of STD Booth and mobile repair in his neighbourhood. He stated that on 06.2.2005, he alongwith Pankaj Pandey went in a barat at Modi Nagar, Ghaziabad, UP in the morning at 8:00 am and returned at 5:30 pm in Delhi. On receiving a call from the family member of Pankaj Pandey, they came to know that his brother has been lifted by the police. Thereafter what happened, he does not know. DW1 Sh. Adil Khan was crossexamined by Ld. Addl. P.P for the State. DW1 in his crossexamination has stated that they went in the marriage of one Naushad, who is living near the hospital at Machali Wala Hospital near Jama Masjid. Naushad is his friend and is also friend of Pankaj Pandey. Naushad is doing private job. However, he does not know the place of his job. He does not know about the family members of Naushad. He also does not know his residence address. He also does not know the particular place where the barat had gone. He does not know name of any of the others members of the barat. He admitted that Pankaj is his friend. He knows him for FIR No. 34/2005 Page 29 of 39 30 last about 8/10 years. He is also living in his neighbourhood. Naushad has orally invited him. He does not know whether marriage card was distributed or not. He admitted that accused running a shop of mobile repairing and STD booth. He also does not know about the involvement of the accused in the present case. He also does not remember the date of Id, Moharram, Diwali and Dusshera falls in the year of 2005. He admitted that he did not make any complaint to any senior police officials nor he met with them to disclose them that the accused was with him on the date of incident. He denied the suggestion that he does not remember the particular place where they had in the marriage of Naushad on 06.02.05 as he did not visit in the marriage with accused Pankaj Pandey on 06.02.05.
44. DW1 Sh. Adil Khan claims that Naushad is friend in whose marriage, he had gone. He does not know any other member of the barat. He was invited orally. He does not know whether marriage cards were distributed or not. The testimony of this witness is not believable.
45. Accused Kasif examined DW2 Sh. Abdul Sattar in his defence.
DW2 Sh. Abdul Sattar testified that he knows accused Kasif as he is his neighborer. In year 2007, again said it was in the year FIR No. 34/2005 Page 30 of 39 31 of 2005. He stated that on 7th of May 2005, 45 police officials came at the house of Kasif and taken him alongwith them. In his crossexamination by Ld. Addl. P.P, DW2 stated that he does not know the name and designation of the police officials who had come to the house of Kasif and taken him. He also does not know from which PS they had come. At that time he was sleeping in the house and father of accused had called him. He did not ask the police officials from where they had come and for what purpose they are taking the accused Kasif with them. This witness is also not believable. It is unbelievable that he would not have asked the police from where they had come or would not have come to know subsequently.
46. Accused Yamin examined DW3 Sh. Nawab Ali in his defence.
DW3 Nawab Ali testified that he knows accused Yamin as he is his neighborer. On 06.02.2005, police had came at the house of accused Yamin and taken away him with the assurance to release him after interrogation. But he was not released. DW3 Sh. Nawab Ali, in his crossexamination, has stated that on that day, at about 8.00 am, he was taking breakfast and the mother of accused Yamin came at his house and stated that police had come to her home. When he came out and saw that police officials were taking the accused Yamin. He asked police FIR No. 34/2005 Page 31 of 39 32 officials 'kya ho gaya', on this they replied that 'aa jayega'. He does not know the name of the police officials as well as their designation. He also does not know from which PS they had come. He does not know about the present case. This witness is also not believable. The defence of the accused persons does not inspire any confidence and same is liable to be rejected.
47. Accordingly, as per the discussion above, I am of the opinion that prosecution has proved offence punishable U/s 412 IPC against accused Kasif @ Bhaiya and Yamin @ Aamin beyond reasonable doubt. The prosecution has also succeeded in proving offence punishable U/s 411 IPC against accused Pankaj Pandey beyond reasonable doubt. The accused persons are accordingly convicted for the said offences. Let, they be heard on quantum of sentence.
Announced in the open court
Today i.e. on 20.10.2010 GURDEEP SINGH
ASJ04/KKD/20.10.2010
FIR No. 34/2005 Page 32 of 39
33
IN THE COURT OF SH. GURDEEP SINGH:ASJ04
NORTHEAST DISTRICT: KARKARDOOMA COURTS:DELHI S.C No.84/08 FIR No: 34/05 PS: New Usmanpur, Delhi U/s: 395/397/308/412/34 IPC & 25 of Arms Act 23/10/2010 O R D E R O N S E N T E N C E Pr.: Sh. Virender Singh, Ld. Addl. PP for the state Convict Kasif @ Bhaiya in J/C. Sh. A.A Khan, Advocate for convict.
Arguments heard on sentence.
It is submitted on behalf of the convict that convict is not a previous convict and has clean antecedents. The convict is young person whose age is about 24 Years and he is gainfully employed as electrician. He is an unmarried person and having mother and younger brother and sister to support. It is further submitted that the convict is sole bread earner of his family.
Ld. Counsel for the convict has cited judgment of Hon'ble Supreme Court in case titled as "Chhanni Vs. State of Uttar Pradesh" 2006 (3) RCR Criminal) 753, "Virender Kumar Vs. State of Haryana" 2004 (2) RCR (Criminal) 775 and "State of Haryana Vs. Raj Pal" 1996 (3) C.C Cases 396 (HC). Ld. Counsel has submitted that benefit of probation be given to the convict.
FIR No. 34/2005 Page 33 of 39 34
On the other hand Ld. Addl. PP for the state has submitted that theft and dacoity are on rise these days and convict Kasif @ Bhaiya has dishonesty received the stolen property having knowledge to have been transferred by the commission of dacoity. Therefore, maximum punishment, provided in the law, be awarded to the convict.
This is the case where dacoity was committed. Convict Kasif @ Bhaiya is found in possession of stolen currency notes belonging to the complainant with respect of which, dacoity has been committed. The offence punishable U/s 412 IPC is punishable with imprisonment for life. Therefore, the benefit of probation cannot be given to the convict.
Keeping in view the facts and circumstances of the case, I am of the opinion that the ends of justice would be met in sentencing the convict Kasif @ Bhaiya to undergo rigorous imprisonment for three years and fine of Rs. 20,000/ for the offence punishable U/s 412 IPC. In default of payment of fine, he shall further undergo simple imprisonment for 03 months.
Fine, if, recovered shall be paid to the complainant/injured as compensation.
The benefit U/s 428 Cr. PC given to the convict. Copy of the judgment and order on sentence be given to the convict free of cost.
File be consigned to record room.
Announced in the open court today i.e on 23.10.2010 GURDEEP SINGH ASJ04/NE/KKD/ 23.10.2010 FIR No. 34/2005 Page 34 of 39 35 IN THE COURT OF SH. GURDEEP SINGH:ASJ04 NORTHEAST DISTRICT: KARKARDOOMA COURTS:DELHI S.C No.84/08 FIR No: 34/05 PS: New Usmanpur, Delhi U/s: 395/397/308/412/34 IPC & 25 of Arms Act 23/10/2010 O R D E R O N S E N T E N C E Pr.: Sh. Virender Singh, Ld. Addl. PP for the state Convict Pankaj Pandey in J/C. Sh. A.A Khan, Advocate for convict.
Arguments heard on sentence.
It is submitted on behalf of the convict that convict is not a previous convict and has clean antecedents. The convict is young person whose age is about 30 years and he is gainfully employed as mobile repairer. He is an unmarried person and having old aged mother to support. It is further submitted that the convict is sole bread earner of his family. Therefore lenient view is prayed for.
Ld. Counsel for the convict has cited judgment of Hon'ble Supreme Court in case titled as "Chhanni Vs. State of Uttar Pradesh" 2006 (3) RCR Criminal) 753, "Virender Kumar Vs. State of Haryana" 2004 (2) RCR (Criminal) 775 and "State of Haryana Vs. Raj Pal" 1996 (3) C.C Cases 396 (HC). Ld. Counsel has submitted that benefit of probation be given to the convict.
FIR No. 34/2005 Page 35 of 39 36
On the other hand, Ld. Addl. PP for the state has submitted that theft and dacoity are on rise as there are receivers of the stolen property. The receivers, if punished with heavy hand, it can check on the theft and dacoity. Therefore, maximum punishment, provided in the law, be awarded to the convict.
The punishment for offence punishable U/s 379 IPC is imprisonment for either description for a term which may extend to three years or with fine. The punishment for offence punishable U/s 411 IPC for dishonesty receiving the stolen property is imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Therefore, the law makers have not made any distinction between for the offence of theft and for dishonesty receiving the stolen property. Apparently that view to treat the receiver of the stolen property is the same manner as the person who has actually committed the theft. If there are no purchaser of the stolen property in the market, the thieves will get any incentive in committing the theft as it would be difficult for them to dispose of the stolen property. Therefore, the receiver of the stolen property is as serious as one who actually committed the theft.
The stolen article i.e Mobile Phone recovered from the possession of convict was robbed in dacoity. Therefore, the benefit of probation cannot be given to the convict.
Keeping in the facts and circumstances of the case and keeping in view the amount of stolen property which is a mobile phone, I am of the opinion that the ends of justice would be met in sentencing the convict Pankaj Pandey to FIR No. 34/2005 Page 36 of 39 37 undergo rigorous imprisonment for six months and fine of Rs. 5,000/ for the offence punishable U/s 411 IPC. In default of payment of fine, he shall further undergo simple imprisonment for 15 days.
Fine, if, recovered shall be paid to the complainant/injured as compensation.
The benefit U/s 428 Cr. PC given to the convict. Copy of the judgment and order on sentence be given to the convict free of cost.
File be consigned to record room.
Announced in the open court today i.e on 23.10.2010 GURDEEP SINGH ASJ04/NE/KKD/ 23.10.2010 FIR No. 34/2005 Page 37 of 39 38 IN THE COURT OF SH. GURDEEP SINGH:ASJ04 NORTHEAST DISTRICT: KARKARDOOMA COURTS:DELHI S.C No.84/08 FIR No: 34/05 PS: New Usmanpur, Delhi U/s: 395/397/308/412/34 IPC & 25 of Arms Act 23/10/2010 O R D E R O N S E N T E N C E Pr.: Sh. Virender Singh, Ld. Addl. PP for the state Convict Yamin @ Aamin in J/C. Sh. A.A Khan, Advocate for convict.
Arguments heard on sentence.
It is submitted on behalf of the convict that convict is not a previous convict and has clean antecedents. The convict is young person whose age is about 24 Years and he is gainfully employed as A/C Mechanic. He is an unmarried person and having parents and younger brother and sister to support. It is further submitted that the convict is sole bread earner of his family.
Ld. Counsel for the convict has cited judgment of Hon'ble Supreme Court in case titled as "Chhanni Vs. State of Uttar Pradesh" 2006 (3) RCR Criminal) 753, "Virender Kumar Vs. State of Haryana" 2004 (2) RCR (Criminal) 775 and "State of Haryana Vs. Raj Pal" 1996 (3) C.C Cases 396 (HC). Ld. Counsel has submitted that benefit of probation be given to the convict.
FIR No. 34/2005 Page 38 of 39 39
On the other hand, Ld. Addl. PP for the state has submitted that theft and dacoity are on rise these days and convict Yamin @ Aamin has dishonesty received the stolen property having knowledge to have been transferred by the commission of dacoity. Therefore, maximum punishment, provided in the law, be awarded to the convict.
This is the case where dacoity was committed. Convict Yamin @ Aamin is found in possession of stolen currency notes belonging to the complainant with respect of which, dacoity has been committed. The offence punishable U/s 412 IPC is punishable with imprisonment for life. Therefore, the benefit of probation cannot be given to the convict.
Keeping in view the facts and circumstances of the case, I am of the opinion that the ends of justice would be met in sentencing the convict Yamin @ Aamin to undergo rigorous imprisonment for three years and fine of Rs. 20,000/ for the offence punishable U/s 412 IPC. In default of payment of fine, he shall further undergo simple imprisonment for 03 months.
Fine, if, recovered shall be paid to the complainant/injured as compensation.
The benefit U/s 428 Cr. PC given to the convict. Copy of the judgment and order on sentence be given to the convict free of cost.
File be consigned to record room.
Announced in the open
court today i.e on 23.10.2010 GURDEEP SINGH
ASJ04/NE/KKD/ 23.10.2010
FIR No. 34/2005 Page 39 of 39