Delhi District Court
Sc No.88/08 (State vs . Rahul) on 31 July, 2010
SC No.88/08 (State Vs. Rahul)
IN THE COURT OF SH. DINESH KUMAR SHARMA
ADDITIONAL SESSIONS JUDGE - 02 (SOUTH)
PATIALA HOUSE COURTS, NEW DELHI
SC No.88/08
Unique case ID No. 02403R0339782008
State Vs. Rahul
S/o Sh. Om Prakash
R/o 55/15 Khoka Market
Sector - 1, Pushap Vihar
New Delhi.
FIR No. : 119/08
PS : Defence Colony
u/Ss. : 392 r/w section 397 IPC
Date of Institution : 06.06.2008
Arguments Concluded on : 23.07.2010
Date of Decision: 27.07.2010
JUDGMENT.
1.0 The prosecution case is that on 12.04.08 on receipt of DD No.23A ASI Mukhtiyar Singh along with Ct. Narender Singh reached the Page 1 of 4 SC No.88/08 (State Vs. Rahul) spot at C-562, Defence Colony where injured / Ms. Prerna Singh met who got recorded her statement to the effect that at around 9:10 pm when she was talking over phone one person came from behind and grabbed her purse and she caught hold the purse tightly. Thereafter, that person started giving fist blows to her, abused her and snatched her purse which was containing Rs.150/- and Identity Card and some other articles. When she raised hue and cry, the driver of C-561, Defence colony and some rickshaw pullers came for her rescue and they caught hold the accused. Meanwhile, the father of the injured also reached the spot and called PCR and accused was arrested. On the basis of this statement, FIR No.119/08 u/Ss.394/397 IPC was registered. Statement of witnesses were recorded, Site plan was prepared and accused was arrested. After completing the investigation, charge sheet was filed in the court. 2.0 Being a prima facie case, charge u/Ss.392 r/w section 397 IPC was framed against the accused to which he pleaded not guilty and claimed trial.
3.0 Prosecution in support of its case examined seven (7) witnesses.
Page 2 of 4
SC No.88/08 (State Vs. Rahul) 3.1 PW1 Dr. Ranjan Joshi deposed on behalf of Dr. Nooruddin and proved the MLC as Ex.PW1/A. As per MLC, injury was opined to be grievous in nature and possibly caused by blunt object. It was also mentioned in the MLC that there was no active bleeding and there was a lacerated wound over the right side of upper lips. PW2 Prerna Singh complainant / injured deposed regarding the averments mentioned in her complaint and proved the seizure of her purse as Ex.PW2/A and her complaint as Ex.PW2/B. PW2 also proved the arrest memo and personal search memo of accused as Ex.PW2/C and Ex.PW2/D, respectively. PW3 Prithi Pal Singh is the father of the injured / victim. He also made a consistent and corroborative statement. PW4 HC Jagdish Prasad is the duty officer and proved the carbon copy of FIR No.119/08 as Ex.PW4/A and he also proved the DD entry No.23A as Ex.PW4/B. PW5 Rajender Prasad is the other material witness of the prosecution. PW5 was declared hostile by Ld. Addl. PP for State and was cross examined at length but nothing material could be extracted from him against the accused. PW6 Ct. Narender Kumar remained with IO during the investigation of the case. PW7 ASI Mukhtiyar Singh is the Investigation Officer (IO) and formally proved the investigation conducted by him. He also proved tehrir as Ex.PW7/A, site plan as Page 3 of 4 SC No.88/08 (State Vs. Rahul) Ex.PW7/B. 4.0 Accused in his statement u/S.313 Cr.P.C. denied all the allegations leveled against him. Accused has stated that after his duty, he was waiting at the spot to catch a bus and was apprehended wrongfully. It has been submitted he had received salary that day and was under the influence of liquor and he did not make any attempt to snatch the purse. It has further been submitted that he has been falsely implicated in the present case.
5.0 Sh. M.Z. Khan, Ld. Addl. PP for the State submitted that prosecution has successfully proved its case against the accused beyond reasonable doubt. It has been submitted that PW2 complainant / injured and PW3 Prithi Pal Singh, father of the complainant have supported the prosecution case and have made a consistent and corroborative statements.
5.1 Sh. S.S. Bhatia, Ld. Counsel for the accused has argued that prosecution has miserably failed to prove its case against the accused. It has been submitted that section 392 IPC has not been made out against the accused as the hurt was not caused for the commission of robbery. It Page 4 of 4 SC No.88/08 (State Vs. Rahul) has further been submitted that at the worst there is merely an attempt to commit theft as such the charge under Section 392 IPC is not made out. It has also been submitted that even as per case of the prosecution, the purse was handed over by the complainant to the police, therefore, it was merely an attempt to commit the theft. It has further been submitted that there is no grievous injury as defined u/S.320 IPC and only the tip of the tooth was broken. It has further been submitted that as per MLC, there was no active bleeding on the person of complainant and there was just a lacerated wound on the upper lip of the injured. Ld. counsel for accused has cited Bishambhar Nath and another Vs. Emperor, (28) AIR 1941 Oudh 476, Himatsing Shivsing Vs. The State of Gujarat, 1962 (2) Cri.L.J. 415, in support of his contentions.
6.0 Now it needs to be examined whether in view of above evidence on record offences u/Ss.392 r/w section 397 IPC or section 394 IPC is made out against the accused.
6.1 Section 397 reads as under :
"397 - Robbery, or dacoity, with attempt to cause death or grievous hurt - If, at the time of Page 5 of 4 SC No.88/08 (State Vs. Rahul) committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less that seven years."
The ingredients of section 397 IPC are commission of robbery or dacoity, use of deadly weapon or grievous hurt to any person or attempt to cause death or grievous hurt to any person. "Grievous hurt" has been defined u/S.320 IPC as under :
"Grievous hurt : The following kinds of hurt only are designated as "grievous" : -
First - Emasculation.
Secondly - Permanent privation of the sight of either eye.
Thirdly - Permanent privation of the hearing of either ear.
Fourthly - Privation of any member of joint. Fifthly - Destruction or permanent impairing of the powers of any member or joint. Sixthly - Permanent disfiguration of the head or face.
Seventhly - Fracture or dislocation of a bone or tooth.
Eighthly - Any hurt which endangers life or which causes the sufferer to be during the space of Page 6 of 4 SC No.88/08 (State Vs. Rahul) twenty days in severe bodily pain, or unable to follow his ordinary pursuits."
6.2 Admittedly, there is no use of dangerous weapon in the present case. Prosecution has rested its case upon clause 7 of section 320 IPC. In order to prove grievous hurt, the medical opinion is a relevant piece of evidence u/S.45 of Indian Evidence Act.
In the present case, as per MLC Ex.PW1/A, PW2 suffered lacerated wound over right upper lip and there was no active bleeding. It has been mentioned in the MLC that only the tip of one upper tooth was broken. As per MLC, the injury has been opined to be grievous hurt.
The courts are not bound to blindly accept the medical opinion. I consider that the courts are under bounden duty to apply its judicial mind to the facts and circumstances of the case so as to satisfy itself before accepting or rejecting the medical opinion.
As per clause (7) of Section 320 IPC, there should be fracture or dislocation of a bone or tooth. But in the present case, there is no dislocation of the upper tooth and only a tip of the tooth was broken. Therefore, I consider that the act does not squarely falls within the definition of grievous hurt as defined under clause 7 of Section 320 IPC. Rather, the injury suffered by PW2 is covered under section 319 IPC Page 7 of 4 SC No.88/08 (State Vs. Rahul) which defines "hurt". Hence, I consider that section 397 IPC is not made out in the present case.
6.3 In case of hurt, the provision of section 394 IPC shall be relevant which reads as under :
"394 - Voluntarily causing hurt in committing robbery - If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with [imprisonment for life] or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
In order to attribute section 394 IPC, the prosecution has to prove the commission of robbery or attempt of robbery and voluntarily causing of hurt in committing or attempting to commit such robbery. The ingredients of robbery u/S.390 IPC are as under :
i) there must be either theft or extortion ;
ii) there must be voluntarily causing or attempt to cause to any person that death, hurt or wrongful restrain by the accused ; and Page 8 of 4 SC No.88/08 (State Vs. Rahul)
iii)the death, hurt or wrongful restrain must be caused in order to commit a theft or in committing theft or in attempting or carrying away the property.
6.4 Sh. S.S. Bhatia, Ld. counsel for the accused has primarily raised the arguments on the ground that since the theft did not take place in the present case, therefore, the offence u/S.390 is not attracted. It has been submitted that theft is robbery only when the complete theft has been committed. If it is only an attempt to commit the robbery, it would not fall within the definition of Section 390 IPC. It has further been submitted that since section 390 IPC is not attracted, section 394 IPC also would not be made out.
6.5 On the other hand, Ld. Addl. PP for State has countered the submissions. It has been submitted that section 390 IPC amply covers the facts of the present case and prosecution has successfully proved its case against the accused.
7.0 In order to determine this, the most important material on the record is the testimony of PW2. I would like to reproduce the Page 9 of 4 SC No.88/08 (State Vs. Rahul) relevant portion of testimony of PW2, which reads as under :
"On 12/4/08, I was coming back from the house of my brother who stays at Sidharth Extension and I reached outside my house at about 9/10pm. At that time, I was talking on my mobile phone, then accused came from behind and tried to snatch my purse. I did not allow him to snatch my purse, upon which I had a scuffle with the accused. In the scuffle, accused started abusing me and gave fist blows to me, due to which my front teeth were broken and lip was cut. I started shouting for help. The driver namely Rajender of H. No. C-561, reached there and with his help, we overpowered the accused...."
7.1 It is not disputed that the purse was recovered from the possession of the complainant. In fact, on account of resistance put by the complainant, accused could not complete his design. In the cross examination, the defence has not been able to bring any material on the record to show that the complainant did not suffer hurt while commission of the offence of the theft. The cross examination by defence counsel has not been able to shatter the testimony of the complainant.
PW5 Rajender Prasad though declared hostile but has Page 10 of 4 SC No.88/08 (State Vs. Rahul) specifically stated that he also saw that a scuffle taking place between a girl and a person. It is settled proposition that testimony of the hostile witness cannot be rejected outrightly.
7.2 The main contention of the defence is that since the purse was recovered from the possession of the complainant only, therefore, theft was not complete and since the theft was not complete therefore, section 390 IPC cannot be attributed.
I am not impressed with this argument. If we go through the definition of Section 390 IPC, it says that theft is "robbery" if, in order to the committing of the theft, of in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Thus, the legislature envisaged a situation where the offender has voluntarily caused or attempted to cause any person death or hurt of wrongful restraint or fear of instant death or of instant hurt, or of instant wrongful restraint, in order to commission of theft. Thus, it is not necessary that the entire chain of theft must be complete in order to attract section 390 IPC. Page 11 of 4
SC No.88/08 (State Vs. Rahul) 7.3 In the present case, the testimony of the complainant has indicated that the accused had tried to snatch her purse but the complainant did not allow him to snatch her purse on which a scuffle took place. If we go through the definition of theft as defined u/S.378 IPC, the explanation 2 of it indicates that any movement effected by the act of the accused is a theft.
In the present case, a scuffle took place while accused was snatching the purse and the complainant resisted the same. It is a settled proposition that penal provision requires strict interpretation. 7.4 I have gone through the judgments cited by Ld. counsel for the accused. Rather, it supports the case of prosecution. In Bishambhar Nath's case (supra),, the law laid down was that the hurt caused must be with the express object of facilitating the commission of theft. In this case, it was inter alia held as under :
"... The words 'for that end' used in S.390, Penal Code, in my opinion, clearly mean that the hurt caused by the offender must be with the express object of facilitating the committing of the theft, or must be caused while the offender is committing the theft of is carrying away or is attempting to carry away the property obtained by the theft. It does not mean that the assault or the hurt must be caused in Page 12 of 4 SC No.88/08 (State Vs. Rahul) the same transaction or in the same circumstances. A Bench of the Madras High Court in 18 Cr.L.J. 346 has held that "the words 'for that end' in S.390 Penal Code, cannot be read as meaning in those circumstances". It was held by the Lahore High Court in 35 Cr.L.J. 297 that before a person can be convicted of robbery the prosecution must prove that hurt was caused in order to the committing of the theft or in carrying away or attempting to carry away the property obtained by the theft. The hurt contemplated must be a conscious and voluntary act on the part of the thief for the purpose of overpowering resistance on the part of the victim, quite separate and distinct from the act of theft itself."
Similarly, in Himatsing Shivsing's case (supra), it was inter alia held as under :
"(20) Theft amounts to 'robbery' if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender for that end, voluntarily causes or attempt to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. Before theft can amount to Page 13 of 4 SC No.88/08 (State Vs. Rahul) 'robbery' the offender must have voluntarily caused or attempted to cause to any person death or hurt or wrongful restraint, or fear of cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. The second necessary ingredient is that this must be in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft. The third necessary ingredient is that the offender must voluntarily cause or attempt to cause to any person hurt etc. for that end, that is, in order to the committing of the theft, or for the purpose of committing theft or for carrying away or attempting to carry away property obtained by the theft.
It is not sufficient that in the transaction of committing theft, hurt etc. had been caused. If hurt etc. is caused, at the time of the commission of the theft, but for an object other than the one referred to in Sec.390 I.P.Code, theft would not amount to robbery. It is also not sufficient that hurt had been caused in the course of the same transaction as commission of the theft. The three ingredients mentioned in section 390 I.P.Code must always be satisfied before theft can amount to robbery, and this has been explained in AIR 1941 Oudh 476."
Thus, the ration laid down in the above noted judgments is that the hurt must be caused with the principle object of facilitating the Page 14 of 4 SC No.88/08 (State Vs. Rahul) commission of theft. In the present case, the complainant had made a categorical statement that he accused caused hurt for facilitating the commission of theft. I consider that bare perusal of section 390 IPC makes it clear that if the hurt has been caused in order to commission of theft, it would very well fall within the purview of section 390 IPC. The prosecution witnesses have made a consistent and corroborative statements on oath and there is no reason to disbelieve the same. 8.0 In view of the above findings, I consider that prosecution has successfully proved the case under Section 394 IPC against the accused. Therefore, accused Rahul is convicted for the offence punishable u/S.394 IPC in case FIR No.119/08 PS Defence Colony. Announced in the Open court (Dinesh Kumar Sharma) Today On : 27.07.2010 ASJ-02(South)/PHC/ND Page 15 of 4 SC No.88/08 (State Vs. Rahul) IN THE COURT OF SH. DINESH KUMAR SHARMA ADDITIONAL SESSIONS JUDGE - 02 (SOUTH) PATIALA HOUSE COURTS, NEW DELHI SC No.88/08 Unique case ID No. 02403R0339782008 State Vs. Rahul S/o Sh. Om Prakash R/o 55/15 Khoka Market Sector - 1, Pushap Vihar New Delhi.
FIR No. : 119/08 PS : Defence Colony u/S. : 394 IPC Date of Judgment : 27.07.2010 Date of Order on Sentence : 31.07.2010 ORDER ON SENTENCE
Convict has been convicted for the offence u/S.394 IPC. 1.0 Sh. S.S. Bhatia, Ld. counsel for convict submitted that convict is in custody since 12.04.08. It has been submitted that convict is Page 16 of 4 SC No.88/08 (State Vs. Rahul) a young boy of 20 years of age and has no previous history of conviction. It has further been submitted that convict is the sole bread earner of his family and therefore, a lenient view may be taken. 2.0 Sh. M.Z. Khan, Ld. Addl. PP for State has submitted that the convict has committed a serious offence and maximum punishment should be awarded to him so that a message be sent to the society that in serious offence cases, the offenders get a harsh punishment. 3.0 I have considered the submissions made by Ld. counsel for the convict as well as Ld. Addl. PP for State and have perused the record carefully.
4.0 Sentence is the most difficult aspect. While awarding the sentence, court has to take into account the circumstances of an individual as well as the overall effect of the crime on the society. There cannot be any doubt to the proposition that a message must go to the society that in serious offence cases, the offenders should be handed over harsh punishment so that no else should dare to commit this. However, at the same time, the interest of an individual is also to be protected. There may be various circumstances which lead an individual to commit Page 17 of 4 SC No.88/08 (State Vs. Rahul) the offence. The fabric of the society may get damaged if the efforts of reformationof the offenders are not done. In B.G. Goswami Vs. Delhi Administration, 1973 SCC (Cri.) 796, while dealing with the same question, it has been inter alia held as under :
"Now the question of sentence is always a difficult question, requiring as it does, proper adjustment and balancing of various considerations which weigh with a judicial mind in determining its appropriate quantum in a given case. The main purpose of the sentence broadly stated is that the accused must realise that he has committed an act which is not only harmful to the society of which he forms an integral part but is also harmful to his own future, both as an individual and as a member of the society. Punishment is designed to protect society by deterring potential offenders as also by preventing the guilty party from repeating the offence ; it is also designed to reform the offender and reclaim as a law abiding citizen for the good of the society as a whole. Reformatory, deterrent : punitive aspect of punishment thus play there due part in judicial thinking while determining the question. In modern civilized society, however, reformatory aspect is being given somewhat greater importance. Too lenient as well as too harsh sentence both loose their efficaciousness. One does not deter and the other may frustrate thereby making the offender a hardened criminal...."Page 18 of 4
SC No.88/08 (State Vs. Rahul) 5.0 I consider that taking into account the totality of the facts and circumstances of the case and weighing the consideration already noted by this court and the fact that convict is a young boy and is in custody for last more than 2 years, convict be sentenced to RI for 3 years and fine of Rs.1,000/- in default to undergo SI for 3 months.
Benefit of section 428 Cr.P.C. be given to the convict. 5.1 A copy of this order and judgment be given to the convict free of cost.
Convict has also been informed that he can file an appeal against this order before the Hon'ble High Court of Delhi and he can apply legal aid from Delhi High Court, Legal Service Committee through Legal Aid Cell, Tihar Jail.
6.0 File be consigned to Record Room.
Announced in the Open court (Dinesh Kumar Sharma)
Today On : 31.07.2010 ASJ-02(South)/PHC/ND
Page 19 of 4
SC No.88/08 (State Vs. Rahul)
SC No.88/08
31.07.2010
Present : Ld. Addl. PP for State
Convict produced from JC
Sh. S.S. Bhatia, ld. counsel for convict
Vide separately announced order on sentence, convicted is sentenced to RI for 3 years and fine of Rs.1,000/- in default to undergo SI for 3 months.
Benefit of section 428 Cr.P.C. be given to the convict. Fine of Rs.1,000/- stands deposited.
A copy of this order and judgment be given to the convict free of cost.
File be consigned to Record Room.
(Dinesh Kumar Sharma) ASJ-02(South)/PHC/ND Page 20 of 4