Delhi District Court
Been Held So In Keshav Tyagi vs . State Air 2007 Cri. L.J. on 21 October, 2009
IN THE COURT OF SH. VIRENDER KUMAR GOYAL
ADDL SESSIONS JUDGE: FAST TRACK COURT
ROHINI:DELHI
SC No. 18/1
Date of institution of the case: 03/08/2001
Arguments heard on: 01/10/2009
Date of Decision:15/10/2009
State
Versus
1) Rajeev @ Raju
Son of Dharampal
R/o Village & P.O. Bakner
PS Narela, Delhi.
2) Vinod @ Ramesh
son of Asha Ram
R/o Village & P.O. Kakroli
District Muzaffar Nagar,
Uttar Pardesh.
FIR No. 385/2001
PS : Nangloi
U/s. 392/397/34 IPC
Judgment
In this case two accused persons namely Rajeev
@ Raju and Vinod @ Ramesh are facing trial for the offence
u/s 392/394 read with section 397/34 IPC. In brief the case of
the prosecution is as under:-
The present case was registered on the complaint
of Sh. Satish Chand who was running PCO booth in Tri
Nagar, Delhi. On 15.05.01 at about 10.15 p.m he left his
shop for his house on his two wheeler scooter no. DL-8S-
6036 and he was carrying amount of Rs.50,000/- in the form
of 5 bundles of notes in the denomination of Rs.100/- in the
dickey (at the front side) of his scooter. He had taken the said
amount on interest from Sh. Ashok and he had to give said
amount to his cousin namely Sh. Pawan Kumar. As per the
complainant, at about 10.45 pm when he reached near house
of Dr. Narendra, D-16, Extension II D, Nangloi, he heard a
voice of "Satish Bhaisaab" and he stopped his scooter and
when he turned back, he saw two persons on a two wheeler
scooter. Out of them, one got down from the scooter and
came near to him and gave a slap on his cheek and
intimidated him with a knife. On this, the complainant became
nervous and he left his scooter which was taken by the said
person, who had slapped him and then he and his co-
accused left the spot after taking his scooter. He went to the
PS and gave his statement to the police narrating the entire
incident and got the present case registered.
During investigation, Investigating Officer
prepared site plan of the place of occurrence and he recorded
supplementary statement of the complainant regarding the
correct number of his scooter. On 31.05.01, one of the
accused namely Vinod was arrested in FIR no.507/01 u/s 25
Arms Act, PS Rajouri Garden and he disclosed his
involvement in the present case. On 01.06.01, the other
accused namely Rajeev was arrested by the police of
Operation Cell, North West, District and he also disclosed
about the involvement in the present case. On the basis of
the same, Investigating Officer got issued the production
warrants of both the accused and they were arrested in the
present case on 07.06.2001.
Test identification Parade of one of the accused
namely Vinod was got conducted and he was duly identified
by the complainant in the TIP proceedings. Both the accused
made disclosure statements to the police and in pursuance of
the same, accused Rajeev got recovered a mobile phone
which was allegedly brought by him from the part of the looted
amount and he also got recovered Rs.1100/- in the cash
which was also part of the looted amount. The other accused
namely Vinod got recovered the dagger from his house which
was allegedly used in the commission of the offence. After
the completion of the investigation, chargesheet was filed
against both the accused persons u/s 392/397/34 IPC.
After compliance of the provisions of Section 207
Cr.PC, case was committed to Court of Session vide order
dated 17.08.2001.
After hearing both the accused,vide order dated
19.03.02, charge u/s 392/395 read with section 397/34 IPC was framed against both the accused to which they pleaded not guilty and claimed trial.
In support of its case prosecution has examined in total 13 witnesses.
The evidence led by the prosecution can be mainly divided in the following categories:-
Deposition of complainant and and other public witnesses.
Complainant Sh. Satish Chand has been examined as PW1. He has deposed on the lines of the complaint made to the police and he has proved the same as Ex.PW1/A. He has also identified the dagger Ex.P1 which was allegedly recovered from the accused Vinod and he also identified the cash amount of Rs.1100/- to be his own which was allegedly recovered from co-accused Rajeev .
Sh. Baldev Raj Aneja (PW2) was allegedly the person from whom the accused Rajeev had purchased the mobile phone out of the part of the looted amount, but he was completely hostile in the Court and he has denied that accused have purchased any mobile instrument from his shop or that he further executed the receipt of Rs.5000/- as alleged by the prosecution.
Sh. Ashok (PW4) has stated that he had given Rs.50,000/- to Sh. Satish Chander on 15.05.01 on credit basis and that on the next date, he came to know that Satish was robbed of this amount by someone.
Sh. Pawan Kumar (PW8) is the relative of the complainant and he had given loan of Rs.50,000/- to the complainant and the amount of Rs.50,000/- which the complainant had taken from Sh. Ashok was to be returned to this witness.
LINK EVIDENCE Head Constable Virender Kumar (PW3) was the Duty officer at PS Nangloi on 15.05.01. He has recorded the FIR in the present case copy of which is Ex.PW3/A. SI Anil Kumar (PW5) was the witness of the arrest of the accused Vinod @ Ramesh in case FIR no.507/01 u/s 25 Arms Act, PS Rajouri Garden in which the accused had disclosed about his involvement in the present case.
Constable Dalbir Singh (PW6) is a witness of recovery of Mobile phone vide seizure memo Ex.PW1/D from the shop namely Aneja Communications which was allegedly purchased by accused Rajeev from the part of the looted amount. He is also a witness of the recovery of the dagger at the instance of accused Vinod vide seizure memo Ex.PW1/E. SI Sajjan Singh (PW7) is a witness of the arrest of the accused of the Vinod in FIR no. 507/01 u/s 25 Arms Act, PS Rajouri Garden and he is also a witness of the disclosure statement made by the accused Vinod in the said case, which is Ex.PW5/A. Ms. Seema Maini (PW9), the then Ld, MM, Tis Hazari Court conducted the TIP proceedings of accused Vinod in which accused Vinod was accordingly identified by complainant Sh. Satish Chand and the TIP proceeding is Ex.PW9/B. Copy of the same provided to the Investigating Officer vide his application Ex.PW9/C. Constable Kaptan Singh (PW10) and SI Dharamender Kumar (PW12) were the witnesses of the arrest of the accused Rajeev u/s 41.1. Cr.Pc within the area of PS Saraswati Vihar. They were also witnesses of the disclosure statement marked PW10/A in which he had disclosed his involvement in the present case.
Constable Mundae Gyanove (PW11) had taken rukka Ex.PW1/A to the PS Nangoloi and got the present case registered.
Inspector Hanuman Sahai (PW13) was Investigating Officer of this case and he has deposed in detail about investigation conducted by him. He has proved his endorsement Ex.PW13/A over the statement of complainant Satish Kumar and he has proved the site plan Ex.PW13/B. He has arrested both the accused persons and the disclosure statements of accused Raju and Vinod have been proved as Ex.PW13/C and PW13/D respectively and he also got the recovery effected from them.
After the completion of the prosecution evidence, statements of both the accused u/s 313 Cr.PC which they have denied and have stated that they have been falsely implicated in this case.
It is relevant here to state that charge was amended on 20.11.07 and thereafter on 22.05.09 and accused were finally charged for the offence u/s 392/394 read with section 397/34 IPC to which they pleaded not guilty and it was further stated that no prejudice has been caused to the accused persons,hence the PWs were not recalled as already examined for their cross examination.
I have heard learned Addl. PP for the State and learned defence counsel for both the accused.
To prove its case, prosecution has examined complainant Satish Chand as PW1. He has stated that he was running a PCO Booth in Tri Nagar. On 15/05/2001 at about 10.15 p.m., he left his shop for his house on his two wheeler scooter bearing registration No. DL-8S-6036 and he was also carrying a cash amount of Rs. 50,000/- in the denomination of Rs. 100/- each in five bundles in the front portion dickey of the scooter. He had taken the said money on interest from some person, which he had to give to one Pawan Kumar.
At about 10.45 p.m., as he turned his scooter near house of Dr. Narender, he heard a noise of "satish Bhaisahab". He stopped his scooter and turned back and saw accused Rajeev and Vinod, present in the court, were present on a two wheeler scooter. Thereafter, accused Vinod got down from the scooter and gave a slap on his cheek and took out a knife. He further stated that he became puzzled and left his scooter. Accused Vinod took his scooter and then they left the spot with the scooter i.e. on which they had come and the one they had taken from him. He raised an alarm and the accused managed to escape. His cousin made a phone call at 100 number. PCR van came at the spot. He went to PS. He gave statement Ex. PW1/A which bears his signatures. On 17/05/2001, he again went to the police station and asked the police officer to rectify the scooter number i.e. letter "L" which was left out in his initial statement.
On 08/06/2001, he identified accused Vinod as the same person, who alongwith his co-accused had robbed him of two wheeler scooter alongwith Rs. 50,000/-, in the TIP. PW1 has identified his signatures on TIP proceedings.
Learned defence counsel has contended that the police got conducted TIP of accused Vinod only and not of accused Rajeev @ Raju. Accused Rajeev has not been identified by the complainant. He has further contended that it has come in the cross examination of PW6 that the faces of the accused were not covered at the time of recovery of the dagger , hence prosecution has not been able to prove the identity of the accused persons in any manner. He has further contended that PW1 has admitted that accused were not known to him prior to the incident. He has further contended that on 08/06/2001, one Rajeev was shown to PW1, when he joined the investigation with the police.
In complaint Ex. PW1/A, names of the accused persons have not been mentioned by the complainant Satish Chand (PW1). Accused Vinod has been identified in the TIP conducted by the then learned M.M. Ms. Seema Maini, examined as PW9. She has not been cross examined by learned defence counsel on behalf of both the accused persons in any manner that TIP proceedings were not conducted according to law. PW1 Satish Chand has identified both the accused persons before the court and has proved TIP proceedings Ex. PW9/B. PW1 has denied the suggestion that prior to TIP of accused Vinod on 08/06/2001, photo of accused Vinod was shown to him. PW1 has told the details of TIP in the cross examination. He has specifically stated that accused Vinod got down from the scooter and gave a slap on his cheek and took out a knife.
To prove the fact that PW1 Satish Chand was having Rs. 50,000/- in the front dickey of the scooter at that time, prosecution has examined PW4 Ashok Kumar and PW8 Pawan Kumar.
PW4 has stated that on 15/05/2001 i.e. the day of the incident, he had given Rs. 50,000/- to his friend Satish Chand. Next day, he came to know that someone had robbed the said amount from the possession of Satish Chand. He was contacted by the police and he told the facts to the police. In the cross examination, he has again affirmed this fact and has stated that he has withdrawn the said amount from his bank on 13/14.05.2001 i.e. from Federal Bank, Karol Bagh. He has denied the suggestion that he did not give Rs. 50,000/- to PW1 as loan. Merely that no writing work was done regarding giving of loan to PW1 by PW4 does not mean that no loan was given. PW4 has proved beyond reasonable doubts that he had given a loan of Rs. 50,000/- to complainant Satish Chand (PW1) on 15/05/2001.
PW8 Pawan Kumar has stated that 5/6 months prior to the robbery, which took place with his cousin PW1, he had given him Rs. 50,000/- as loan. Since he was constructing his house, so he demanded back his money. Police had made inquiries from him and had recorded his statement. In the cross examination, the witness has stated that Rs. 50,000/- were given by him to his cousin Satish Chand (PW1). So, PW1 had taken a loan from PW4 Ashok Kumar and was having the money to repay the previous loan to PW8 Pawan Kumar.
Learned defence counsel has contended that in the cross examination, PW1 has stated that he had taken Rs. 50,000/- from his cousin for his business and Pawan, his cousin, had withdrawn some money from some bank. So, he has contradicted with the depositions of PW4 and PW8. In my view, it is not so. From the evidence of PW4 and PW8, it is clear that loan was taken from PW4 Ashok Kumar to repay the previous loan to PW8 Pawan Kumar, which was taken 5/6 months prior to the date of the robbery. So from the depositions of PW1, PW4 and PW8, prosecution has been able to prove beyond reasonable doubts that on 15/05/2001, PW1 Satish Chand was having Rs. 50,000/- with him in the front portion dickey of the scooter.
PW5 is SI Anil Kumar. He has stated that on 31/05/2001, he was posted at Crime Branch office, Adarsh Nagar. On that day, SI Sajjan Kumar received a secret information that one persons, who was involved in a case of dacoity, would reach at Rajouri Garden Chowk on two wheeler scooter between 5/6 p.m. On the basis of that secret information, a raiding party was constituted comprising of SI Sajjan Singh, Constable Surender Singh, Constable Praveen and himself. They all reached at Rajouri Garden Chowk. 5/6 public persons were asked to join the raiding party after informing them regarding the secret information. Only one Dalbir Singh agreed to join the raiding party. Nakabandi was held at the spot. At about 5.45 p.m., a person came on a two wheeler scooter from Rajouri Garden side. He was asked to stop the scooter near Wimpy restaurant. During his casual search, a countrymade pistol was recovered from the left side dub of his pant, which was found loaded with one live cartridge. One more live cartridge was also recovered from the right side pocket of his pant. Sketch of the country made pistol and live cartridges was prepared. These were sealed in a pullanda and were seized. Investigating officer got registered a case. Accused disclosed his name as Vinod @ Ramesh. He made disclosure statement on interrogation, which is Ex. PW5/A and they came to know that accused Vinod was involved in this case also. So, an information was given to concerned PS and he handed over the copy of the disclosure statement of accused Vinod to the Investigating officer. PW7 SI Sajjan Singh has also deposed the same facts as of SI Anil Kumar (PW5). Both the witnesses have been cross examined on behalf of the accused persons, but they have denied the suggestion that accused Vinod was not apprehended at Rajouri Garden Chowk, but infact was detained in the PS and all the writing work was done while sitting in the police station. So, nothing came out from their cross examination to disbelieve their testimonies. Accordingly, prosecution has been able to prove beyond reasonable doubts that accused Vinod was arrested on 31/05/2001 at Rajouri Garden Chowk and made disclosure statement Ex. PW5/A regarding his involvement in this case.
Similarly, accused Rajeev and Jaggi were apprehended by PW10 Constable Kaptan Singh and PW12 SI Dharmender Kumar. Oon 01/06/2001, they were posted in Operation Cell, North West, and apprehended both the accused U/s. 41.1 CrPC within the area of PS Saraswati Vihar. DD entry No. 12A was registered at PS Saraswati Vihar to this effect. Accused Rajeev has been identified by PW12 SI Dharmender Kumar before the court. He made a disclosure statement regarding his involvement in this case, which is Mark PW10/A. PW10 Constable Kaptan Singh has not been cross examined in any manner. PW12 has been cross examined formally and nothing came out from his cross examination to disbelieve their testimonies. Even suggestion has not been given to both the witnesses that accused Rajeev has been falsely implicated in this case. In the statement, accused Rajeev has stated that police used to put pressure on him to work for them as informer, but he used to refuse and for this reason, police was annoyed with him and he was falsely implicated in this case. No such suggestion has been given to PW10 or PW12 in any manner. Accordingly, prosecution has been able to prove beyond reasonable doubts that accused Rajeev was arrested on 01/06/2001 by PW10 and PW12 U/s. 14.1 CrPC withing the jurisdiction of PS Saraswati Vihar.
As police was informed on 100 number, hence, DD No. 37A Mark X was recorded. It was handed over to PW13 Inspector Hanuman Sahai on 15/16.05.2001. So, he alongwith Constable Gyanova Munde reached at D-15, Extension II, Nangloi, and met complainant there. He recorded his statement Ex. PW1/A and made his endorsement Ex. PW13/A and handed over the same to Constable Gyanova Munde to get the case registered. In the cross examination, PW1 Satish Chand has stated that his statement was recorded at the spot.
PW11 Constable Gyanova Munde has corroborated PW13 Inspector Hanuman Sahai and has stated that on that day, he took ruqqa from PW13 and went to PS Nangloi and got the case registered. Again he came back at the spot and handed over the copy of FIR and ruqqa to the Investigating officer. Nothing came out from the cross examination of PW11 to disbelieve his testimony.
PW3 Head Constable Virender Kumar has corroborated PW11 and has stated that he received the ruqqa sent by PW13 Inspector Hanuman Sahai through Constable Gyanova Munde (PW11) on the basis of the same, he recorded FIR of this case as he was on duty and has proved the carbon copy of the FIR Ex. PW3/A. PW3 has not been cross examined by learned defence counsel for accused persons.
Thereafter, site plan was prepared by PW13 at the instance of PW1. Same is Ex. PW13 /B. On 17/05/2001, he recorded supplementary statement of PW1 Satish Chand.
On 01/06/2001, PW13 received copies of two DD entries bearing No. 37 and perhaps 13. DD No. 37 was in respect of the arrest of accused Vinod by Crime Branch, Adarsh Nagar, in a case of PS Rajouri Garden. He was also informed that accused had made a disclosure statement regarding his involvement in this case. The other DD was in respect of arrest of two accused,namely, Raju and Jaggu @ Jagdish and they also made disclosure statements regarding their involvement in this case.
On the same day, PW13 reached at Tis Hazari Courts. Accused Vinod had already been taken on police remand by the Crime Branch of Adarsh Nagar and accused Raju had been sent to J.C. He recorded statements of police officials.
On 02/06/2001, PW13 got issued productions warrants of accused Raju @ Rajeev and Jaggu @ Jagdish and they were directed to be produced in the court on 07/06/2001. He also got issued production warrants of accused Vinod on 04/06/2001 for 07/06/2001.
On 07/06/2001, accused Raju @ Rajeev and Vinod were produced in the court. He formally arrested them in this case. He also obtained permission of the court to interrogate accused Jaggu @ Jagdish and after interrogation, he deferred his arrest. Thereafter, he moved an application Ex. PW9/A for conducting of TIP of accused Vinod. It was conducted on 08/06/2001. He obtained police custody remand of accused Raju and it was granted for two days on 07/06/2001. Accused Raju @ Rajeev made disclosure statement in presence of Constable Ishwar Singh, which is Ex. PW13/C. Accused Vinod also made a disclosure statement in presence of Constable Ishwar Singh, which was recorded as Ex. PW13/D. Constable Ishwar has not been examined by the prosecution and has been dropped.
On 08/06/2001 in the evening time, accused Rajeev @ Raju was taken out from the lockup and he led the police party comprising of PW13 Inspector Hanuman Sahai, Constable Ishwar and complainant, who met them outside the police station, to Village Bakner and took the police party inside a room of his house situated in front of Senior Secondary School and took out a polythene bag, which was lying under the mattress of the double bed. It was found containing Rs. 1100/- comprising of currency notes of Rs. 100/- each in denomination, four visiting cards, one receipt etc. All these articles were sealed in a pullanda with the seal of "HSM" and were seized vide memo Ex. PW1/B. The accused was brought back to PS. Case property was deposited with MHC(M). PW13 recorded statements of the witnesses.
PW1 Satish Chand has corroborated this fact and has stated that while he was passing through PS Nangloi, he saw Investigating officer of this case, standing outside the PS and he joined him in the investigation. He alongwith the Investigating officer went to the house of accused Rajeev, who produced an amount of Rs. 1100/- in the denomination of Rs. 100/-each, 4/5 visiting cards in the name of his brother and one receipt of mobile, which were contained in a white polythene. These were sealed in a pullanda with the seal of "HSM" and were seized vide memo Ex. PW1/B. Seal after use was given to him. He returned the seal to the Investigating officer on the next day i.e. 09/06/2001. So, PW1 has also corroborated this fact that on 08/06/2001, accused Rajeev led the police party including the complainant/PW1 to his house and got recovered the articles. PW1 has further identified the currency notes of Rs.100/- each Ex. P3/1-11, 4 visiting cards Ex. P4/1-4 and one receipt executed by Aneja Communications for Rs. 6100/- Ex. P5 .
Learned defence counsel has contended that PW1 has admitted in the cross examination that he kept on standing outside the house of accused Rajeev for 15/20 minutes, when accused went inside his house. Investigating officer did not give search to him prior to entering the house,so, it is clear that recovery, as stated above, has been planted upon accused Rajeev and the articles, as exhibited by PW1, have not been recovered from his house at his pointing out in presence of PW1 Satish Chand.
Learned defence counsel has further contended that PW13 has admitted in his cross examination that accused Rajeev had not told in his disclosure statement about Rs. 1100/-, visiting cards or throwing of the scooter in the canal, hence, recovery is doubtful. PW13 inspector Hanuman Sahai has not been cross examined on the aspect as to who went to the house of accused Rajeev.
On 10/06/2001, complainant was called to PS to join the investigation. Accused Rajeev had made a disclosure statement. It was recorded and same is Ex. PW1/G.Both the accused led the police party consisting of PW13, complainant Satish Chand (PW1), Constable Dalbir (PW6) and one more Constable to a shop which was situated in his house. From inside the shop, he took out one mobile phone instrument. Same was kept in a parcel and was sealed with the seal of "HSM". It was seized vide memo Ex. PW1/D. PW6 Constable Dalbir Singh has stated that on 10/06/2001, accused Vinod @ Ramesh and Rajeev were in the police custody. They were interrogated and they made disclosure statements, which are Ex. PW 6/A and Ex. PW1/G. Accused Rajeev told that he had purchased a mobile phone from the robbed amount and then led the police party to his house and got recovered a mobile phone from the rack of the counter, which was lying inside the shop at Village Bakner, Narela. It was sealed in a pullanda with the seal of "HSM" and was seized vide memo Ex. PW1/D. PW1 has stated that on 10/06/2001, he was sitting outside his shop and Investigating officer came there alongwith the accused persons. Accused persons pointed out the place of occurrence. A pointing out memo Ex. PW1/C was prepared and he joined the investigation with the Investigating officer. Thereafter, the accused led them to Gaffar Market, Karol Bagh and again took them to Garhi, but nothing was got recovered by the accused persons. Thereafter, the accused persons led them to the house of accused Rajeev, who got recovered one mobile phone from the counter of the shop, which was sealed in a pullanda with the seal of "HSM" and was seized vide memo Ex. PW1/D. PW6 Constable Dalbir Singh has also stated that accused persons also led them to Gaffar Market, but nothing was recovered and told that they had not purchased the clothes but had spent Rs. 10,000/- on consumable items. PW1 has identified the mobile phone Ex. P2.
Thereafter, accused Vinod led the police party including PW1 to Swatantra Nagar, Narela Kachhi Colony, and took out a dagger from inside the room of his house. Sketch of the dagger was prepared which is Ex. PW1/F. It was sealed in a pullanda with the seal of "HSM" and was seized vide memo Ex. PW1/E. PW1 has identified the dagger as Ex. P1. PW6 Constable Dalbir Singh has also identified the dagger as Ex. P1. PW13 Inspector Hanuman Sahai has also identified the dagger as Ex. P1.
Learned defence counsel has contended that PW1 Satish Chand has stated in the cross examination that he signed the pointing out memo of accused Rajeev, but the same does not bear his signatures, which is Ex. PW1/DA, so, PW1 has deposed falsely in this respect and no pointing out memo was prepared in his presence as pointed out by accused Rajeev, as alleged. Learned defence counsel has further contended that PW1 Satish Chand has admitted in the cross examination that except preparing the sketch of the knife, Investigating officer had not prepared any other document or done any writing work outside the house of accused Vinod. The memo was prepared while sitting in the van, which was standing about 100 yards away and they stayed there for half an hour or one hour. PW1 has further stated that he had gone to the house of accused Vinod on 10/06/2001. Learned defence counsel has further contended that this clearly shows that knife/dagger was neither sealed nor seized at the spot and recovery of the knife/dagger is doubtful as PW6 and PW13 have stated that the dagger was sealed and seized after its recovery.
PW13 has further deposed that search of the scooter was made at the instance of the accused persons, but it could not be recovered. PW6 has also stated that the accused persons disclosed that the scooter was concealed by them in a canal at Village Garhi Bindroli, Haryana. They all reached there including the complainant, but the scooter was not found in the canal. Thereafter, they came back to the PS. PW6 has stated in the cross examination that they asked the boys taking bath in the canal to search the scooter, but they did not find the same in the canal.
Learned defence counsel has contended that it is a concocted story as PW13 has admitted that there was no disclosure statement of accused regarding throwing of the scooter in the canal. He has further contended that PW1 has stated in the cross examination that the scooter, involved in the occurrence, was in the name of his brother Devender Kumar. After the occurrence, they had received a challan from Traffic Police of riding without helmet. The said challan was got quashed from Patiala House Courts. It was the month of December 2001. Learned defence counsel has contended that PW1 has further admitted that the scooter was still plying on the road. He has further contended that the scooter was not taken away by the accused persons, as deposed by PW1. Rather, it was still in possession of PW1. In this respect, PW1 has denied the suggestion that the scooter as mentioned in the complaint, has not been stolen or taken away by anyone or was still in their possession.
PW13 Inspector Hanuman Sahai has stated that accused Rajeev took the police party to the shop of Aneja Communications, railway road, Narela, and pointed out the shop and he recorded the statement of shop owner and they brought back the accused persons and case property to the PS. Case property was deposited in the malkhana and he recorded the statements of the witnesses. On 11/06/2001, both the accused were produced before the court and they were remanded to J.C. PW1 has also stated that he accompanied the police and accused persons to railway road and accused Rajeev pointed out the shop and disclosed that he purchased a mobile phone from the shop in lieu of Rs. 6100/-. Statement of the shopkeeper was recorded. He had told that he had taken Rs. 5000/- from accused Rajeev and accused Rajeev had yet to pay Rs. 1100/-. PW6 Constable Dalbir Singh has stated that accused persons again disclosed that they had purchased a mobile phone from the said amount from Narela. They went to Narela and accused pointed out a shop of Aneja Communications and disclosed that they had purchased a mobile at the cost of Rs. 6100/- and had paid Rs. 5000/- in cash and they still have to pay Rs. 1100/- to the shopkeeper, who admitted the same.
PW2 is Baldev Raj Aneja. He is owner of Aneja Communications. He has not supported the case of prosecution in any manner. He has been cross examined by Ld. Addl. PP . In the cross examination conducted by Ld. Addl. PP, PW2 has admitted that he sold one mobile phone to one person, but cannot say whether he was accused Rajeev present in the court. He has admitted that a receipt was executed for an amount of Rs. 5000/- but the same was not in his handwriting. He has denied that on 22/05/2001, accused Rajeev present in the court was known to him prior to coming to his shop. He has further denied that the accused purchased the said mobile phone and one SIM card for Rs. 6100/- or that he has issued a receipt of Rs. 5000/- and Rs. 1100/-remained due towards accused Rajeev.
Learned defence counsel has contended that PW1 is a decoy witness to the police, which is evident from his cross examination wherein he has stated that he does not remember as to how many times he has appeared in the court i.e. in Tis Hazari Courts, Patiala House Courts or Karkardooma courts as a witness. PW1 has admitted that he has visited the Courts in some cases, but has denied the suggestion that he is a decoy witness and he got a false case registered in order to avoid the payment of money to the person from whom he took loan and made a false complaint to show that he has been deprived of the amount so that he can avoid the payment to the person to whom it was to be made.
PW1 has identified accused Vinod during the TIP conducted in Tihar Jail by PW9, the then learned M.M. Ms. Seema Maini. PW1 has been cross examined at length regarding his participation in the TIP and he has given all the details in which manner, the TIP was conducted. PW9 has not been cross examined by learned defence counsel in any manner that TIP was not conducted as per rules. PW1 has specifically stated that prior to TIP of accused Vinod, which was conducted on 08/06/2001, photo of accused Vinod was not shown to him. PW1 has also stated in the cross examination that he never knew the accused persons prior to the incident. So, from the deposition of PW1 corroborated by PW9, prosecution has been able to prove identity of accused Vinod beyond reasonable doubts as the same person, who on 15/05/2001 at about 10.45 p.m., got down from the scooter and gave a slap on the cheek of the complainant and took out a knife. PW1 became puzzled and left his scooter. Accused Vinod took his scooter and then they left the spot with the scooter i.e. on which they had come and the one they had taken from PW1.
In complaint Ex. PW1/A, complainant has not named the accused persons, but has given the description of both the accused. Accused Vinod has been identified during the TIP and before the court. Accused Rajiv has also been identified before the court, but identity of accused Rajiv is doubtful, as identified by PW1, because the police officials did not think it appropriate to get conducted the TIP of accused Rajiv for the reasons best known to them. Accused Rajiv was arrested in this case on 07/06/2001 and his two days' police custody remand was obtained by the police. On 08/06/2001, accused Rajiv in the evening was taken out from the lockup and he led the police party. Fortunately complainant met them outside the police station and joined the police party for investigation. At that time, complainant came to know about the identity of accused Rajiv. Statement of PW1 U/s. 161 CrPC was also recorded on same day i.e. 08/06/2001. Even therein he has not stated that accused Rajiv was the same person, who came on a two wheeler scooter with accused Vinod on the day of the incident and after committing robbery they escaped. So it is clear that PW1 has identified accused Rajeev on the basis that accused Rajeev was shown to him on 08/06/2001.
Regarding the recovery of Rs. 1100/-, some visiting cards and one receipt, PW1 complainant Satish Chand has stated that he joined the investigation on 08/06/2001 with the police party and accused Rajiv. Prior to that, supplementary statement of the complainant was recorded on 17/05/2001. PW1 has stated the he contacted the police to get corrected the number of the scooter, wherein he left to tell letter "L" to the police in the scooter number. One more thing was told to the police by him as mentioned in his statement recorded U/s. 161 CrPC dated 17/05/2001 that there were some visiting cards with Rs. 50,000/- in the front dickey of the scooter, but PW1 has not stated so before the court and has told about the correction of the scooter number only for which he approached the police. In the cross examination, PW1 has stated that he kept on standing outside the house of accused Rajiv for 15/20 minutes, when accused went inside his house. So it clearly shows that he did not go inside the house with the Investigating officer and the accused when the recovery of Rs. 1100/-, four visiting cards and one receipt was effected from the house of accused Rajiv on his pointing out. PW1 has signed as a witness to the memo.
The contention of learned defence counsel that accused Rajiv did not make any disclosure statement regarding these articles is also forceful with the fact that PW1 did not enter the house of accused Rajiv. So, recovery of these articles is also doubtful from the house of accused Rajiv on his pointing. This also fortified with the fact that PW1 has nowhere stated before the court that he had also pointed out to the police later on, as per his supplementary statement, that some visiting cards were also lying with the cash in the front dickey of the scooter. Identification of currency notes is in fact no identification because these were not having any particular marks.
Regarding recovery of mobile phone, PW2 Baldev Raj Aneja, owner of Aneja Communications, has not supported the case of the prosecution. He has denied that receipt of Rs. 5000/- was executed by him. He has also not identified accused Rajiv as the same person to whom, he sold the mobile phone. He has also denied that Rs. 1100/- were due against accused Rajiv and mobile phone was sold for a sum of Rs. 6100/-. So the story of purchasing of the mobile phone from the robbed amount is also doubtful as PW2 has not supported the case of the prosecution in any manner.
Regarding the recovery of the dagger, PW1 has signed the sketch of the same as witness. Learned defence counsel has contended that PW1 has stated in the cross examination that except preparing the sketch of the knife, Investigating officer did not prepare any other document or done any writing work outside the house of accused Vinod.
The memo was prepared while sitting in the van, which was standing about 100 yards away and they stayed there for half an hour or one hour. Learned defence counsel has further contended that on the other hand PW6 and PW13 have stated that the dagger was sealed and seized after its recovery. So, PW1 on one hand and PW6 and PW13 on the other hand have contradicted materially regarding the sealing and seizing of the dagger, which creates doubt on the case of the prosecution as to whether any dagger was recovered from the possession of the accused.
It seems to be a matter of interpretation. PW1 in his examination in chief has stated that accused Vinod got recovered one dagger and gave the same to the Investigating officer. He has identified the said dagger as to be the same. Investigating officer prepared a parcel of the same dagger and sealed with the seal of "HSM" after taking the same into possession and seizure memo Ex. PW1/E was prepared,which bears his signature. PW1 has identified the dagger before the court as Ex. P1 as the same.
In the cross examination, PW1 has stated that except preparing the sketch of the knife, Investigating officer did not prepare any other document or done any writing work outside the house of accused Vinod. He has further stated that the memo was prepared, while sitting in the van, which was standing about 100 yards away. They remained there for about ½ an hour or one hour. It clearly shows that sketch of the dagger was prepared in front of the house of accused, whereas the other writing work including sealing and seizing was done in the van, which was standing about 100 yards away from the house of accused Vinod. PW6 and PW13 have also stated that the dagger was sealed and seized after its recovery. They have also identified the dagger as Ex. P1 during their examination. So, prosecution has been able to prove beyond reasonable doubts the recovery of the dagger from the possession of accused Vinod on his pointing from his house on 10/06/2001 during investigation.
Accused Vinod has failed to brought on record that the complainant (PW1 Satish Chand) was having any enmity against him to implicate him in this case falsely. It has been held so in Keshav Tyagi Vs. State AIR 2007 Cri. L.J. 3663 that if the complainant having no enmity against the accused, then he cannot be said to be not an independent witness. It has also been held further that non-sealing of recovered articles would have no adverse consequences for prosecution.
All the witnesses examined by the prosecution have corroborated each other and their testimonies inspire confidence. There is no reason as to why they should be disbelieved.
In view of the above discussion, prosecution has been able to prove the identity of accused Vinod beyond reasonable doubts as the same person, who on 15/05/2001 at about 10.45 p.m. slapped PW1 Satish Chand and took out a knife and thereafter robbed his scooter, which was containing Rs. 50,000/- in its front dickey and the recovery of dagger Ex. P1 which was used in committing the robbery by accused Vinod.
The prosecution has not been able to prove beyond reasonable doubts identity of accused Rajiv as the same person, who accompanied accused Vinod at the time of the incident and also has not been able to prove beyond reasonable doubts, the recovery of Rs. 1100/-, four visiting cards and one receipt of mobile phone issued by Aneja Communications from his possession on his pointing.
The prosecution has also not been able to prove beyond reasonable doubts that accused Rajiv purchased a mobile phone, which was recovered from his possession stated to be purchased from Aneja Communications for a sum of Rs. 6100/-, out of which Rs. 1100/- were still due.
Accordingly, accused Rajeev is acquitted for the offence U/s. 392/34 of IPC read with offence U/s. 397/34 of IPC.
It has been held in Vinod Kumar Vs. State AIR 2007 Cri. L.J. 2861 that brandishing a knife in order to commit robbery amounts to use of knife. Even if the victim is not stabbed at knife point, he is robbed or looted, offence U/s. 397 of IPC is made out. Use of weapon is also there, when weapon is brandished and a person is robbed/looted under fear of his life caused by weapon.
Accordingly, accused Vinod is convicted for the offence U/s. 392 of IPC read with Section 397 of IPC. Announced in Open Court on 15th of October, 2009 (Virender Kumar Goyal) Additional Sessions Judge Fast Track Court Rohini : Delhi IN THE COURT OF SH. VIRENDER KUMAR GOYAL ADDL SESSIONS JUDGE: FAST TRACK COURT ROHINI:DELHI SC No. 18/1 Date of Conviction: 15/10/2009 Order on sentence: 21/10/2009 State Versus Vinod @ Ramesh son of Asha Ram R/o Village & P.O. Kakroli District Muzaffar Nagar, Uttar Pardesh.
FIR No. 385/2001
PS : Nangloi
U/s. 392 r.w section 397 of IPC
ORDER ON SENTENCE
21/10/2009
Present. Ld. Addl. PP for the State.
Convict in person with Amicus Curiae Sh. Sachin Dev Sharma.
I have heard learned defence counsel and Ld. Addl. PP for the State on the point of sentence.
Ld APP has contended that convict robbed complainant on the point of knife Rs.50,000/- which were lying in the dicky of the scooter of the complainant. Hence -2- punishment as provided with fine be awarded.
Ld Amicus Curiae has contended that convict is in JC for last about 5 years and he has faced the trial since the 2001. He further stated that convict is aged about 36 years and is having 3 children to support. He is the only earning member of his family. Hence a lenient view may be taken.
Accused has been convicted for offence 392 of IPC read with section 397 of IPC which is punishable with imprisonment which shall not be less than 7 years. Offence u/s 392 of IPC is punishable with RI for a term which may extend to 10 years and shall also be liable to pay fine.
Considering the above facts and circumstances, imprisonment for 7 years RI is imposed with fine of Rs.15,000/-. In default convict shall further undergo imprisonment for one year and nine months SI u/s 392 read with section 397 of IPC.
Fine not deposited.
Accordingly, benefit of Section 428 of CrPC be given to the convict for the period for which he is already undergone custody.
-3-
Convict is remanded to serve the sentence. Copy of this order be given to the convict free of cost.
Case property if any be destroyed in accordance with rules on expiry of period of appeal/revision, if none is preferred or subject to decision thereof. File be consigned to record room.
Announced in Open Court (Virender Kumar Goyal) on 21st of October, 2009 Additional Sessions Judge Fast Track Court Rohini : Delhi