Delhi District Court
S.C. No. 25/13 Fir No. 203/12 State vs . Prakash 1/15 on 30 September, 2014
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.25/13
(Unique ID No. 02406R0290962012)
FIR No. 203/12
PS: Malviya Nagar
U/S: 392/397/411/34 IPC
State
Versus
Prakash
S/o Shri Niwas
R/o H. No. H-1/203, Jhuggi Madangir,
New Delhi.
Date of Institution : 21.11.2012
Date of Institution in Session Court : 17.01.2013
Date of Pronouncement Order : 30.09.2014
JUDGMENT
1. The complainant Anil Kumar Seth made a statement to the police that on 28.05.2012 at about 10:30 a.m., he took his Honda City Car No. DL 3C BE 4828 at HP Petrol Pump, Swami Nagar, Slip Road for the purpose of getting the puncture fixed. When the S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 1/15 puncture of the front tyre of his car was being fixed, a twenty years old boy opened the right side rear door of the car and took away VIP Odyssey Briefcase which was kept on the rear seat. He requested a passing-by motorcycle for help and he rode that motorcycle and chased that boy, who ran away towards Hauz Khas. That boy handed over the briefcase to another boy, who was waiting for him on the main road in white colour I-10 Car No. DL 3C BM 2864 and he himself ran away after crossing the road. The complainant ran towards the I-10 car and when he opened the front door of the car, he was shown a knife by the driver of I-10 car, who asked the complainant to go away and then that person took that car towards Savitri Nagar, Police Picket. The complainant fell down on the road and chased that I-10 car, raising alarm. The police Geep stationed near Savitri Nagar, Police Picket, heard the alarm and apprehended the driver of I-10 car. The briefcase was on the rear seat of the car and it was seized. The driver of the I-10 car, namely, Prakash (accused) was apprehended and from his search, a knife was seized. On this statement, FIR No. 203/12 was registered under Section 392/411/34 IPC.
S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 2/15
2. The accused told the name of the other boy, who had picked up the briefcase, as Amit @ Ganja, who could not be apprehended. The charge-sheet was filed under Section 392/397/411/34 IPC against the present accused and since the offence under Section 397 IPC is exclusively triable by the court of Sessions, this matter was committed to this court.
3. On 17.01.2013, charge under Section 392/397/411/34 IPC was framed against the accused Prakash, to which he pleaded not guilty and claimed trial.
4. Prosecution examined six witnesses in support of its case. 4.1 PW-1 is the complainant Anil Kumar Seth, who deposed on the lines of the FIR. He proved his statement as Ex. PW1/A. The site plan was proved as Ex. PW1/B. The seizure memo of the briefcase was proved as Ex. PW1/C. Sketch of the knife was proved as Ex.PW1/D. The knife was converted into pullanda and was seized vide seizure memo Ex. PW1/E. He proved the seizure of I-10 car as Ex. PW1/F. The arrest memo of the accused was S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 3/15 proved as Ex. PW1/G and his personal search memo was proved as Ex. PW1/H. He identified the briefcase in the court and the same was exhibited as Ex. PW1/P1. He stated that the knife which was produced in court could be the same knife as the entire thing happened in quick succession. The knife was exhibited as Ex. PW1/P2. He identified the accused present in the court to be the person, who drove away that car with his briefcase. In his cross- examination, he stated that the boy spoke to the accused, who was sitting on the driver seat of I-10 car and at that time, the witness was at a distance of about 8-10 yards. He admitted that the accused had not taken out the briefcase from his car. He denied the suggestion that no knife was shown to him by the accused. 4.2 PW-2 W/HC Vandana proved the FIR as Ex. PW2/A and her endorsement on the Rukka as Ex.PW2/B. 4.3 PW-3 HC Satbir stated that on 28.05.2012 at about 11:00 a.m when he was present at Savitri Nagar, Police Picket, with ASI Krishan Kumar and Ct. Ravi Kumar, one person came from Swami S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 4/15 Nagar side running, crying and giving signal. Ahead to him, a white colour I-10 car No. DL 3C BM 2864 was coming. They put their vehicle in front of the said I-10 car and the driver of the car was overpowered by ASI Krishan Kumar with the help of Ct. Ravi Kumar. The person, who was chasing the said car, reached there and told that the driver of that car had snatched his briefcase on the point of knife. ASI Krishan Kumar searched the car and a silver black colour briefcase was found lying on the back seat of the car. A buttondar knife was also recovered from the left pocket of the driver of that car. The driver revealed his name as 'Prakash'. He identified the accused in the court. He told the name of the complainant as Anil Seth. IO/SI Jag Parvesh seized the briefcase. He also prepared the site plan and sketch of the knife. IO then prepared Rukka and handed it over to Ct. Ram Prakash at about 2:00 p.m for registration of FIR, who came back at about 3:30 p.m with copy of FIR and Rukka. IO seized the car and arrested the accused. He identified the I-10 car and the same was exhibited as Ex. PW3/P-3.
S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 5/15 4.4 PW-4 ASI Krishan Kumar also deposed on these lines. In his cross-examination, he denied the suggestion that no such incident had occurred or that nothing was recovered at the instance of the accused or that the knife was planted upon him. 4.5 PW-5 Ct. Ram Prashad stated that on 28.05.2012 at about 12:30 p.m, he alongwith SI Jag Parvesh were going towards Savitri Nagar, Police Pocket and found a gathering of persons. They found that In-charge of ERV-ASI Krishan Kumar had apprehended a boy. He also handed over a briefcase, a knife and I-10 car to IO/SI Jag Parvesh and told that the said boy had run away after snatching briefcase of someone on knife point. Complainant Anil Kumar Seth also reached there. IO recorded the statement of the complainant and handed it over to him (witness) for registration of FIR. He went to the Police Station, got the FIR registered and came back at the spot at about 3:30 p.m. IO prepared sketch of the knife and seized it after converting it into pullanda. He also seized the briefcase and the I-10 car. Accused Prakash was arrested. He identified the accused in the court. In his cross-examination, he S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 6/15 denied the suggestion that his signatures do not appear on the sketch of the knife.
4.6 PW-6 SI Jag Parvesh is the IO. He recorded the statement of the complainant Anil Kumar Seth as Ex.PW1/A. He proved preparation of Rukka as Ex. PW6/A. He also proved the site-plan, the sketch of the knife, the seizure memo of the knife, the seizure memo of the briefcase, the seizure memo of the car, arrest memo, personal search memo and disclosure of the accused. He identified the accused in the court.
5. All the incriminating circumstances were put to the accused and his statement was recorded under Section 313 Cr.P.C wherein he stated that on 28.05.2012, he left his house at Madangir at about 10:00 a.m in his I-10 car No. DL 3C BM 2864 for going to Malai Mandir. When he reached Swami Nagar, there was some traffic on the road and hence he stopped his car on the road. One boy came running and threw something in his car through window, which was down. When the traffic eased, he moved his car ahead. After going some distance, he stopped the car to check as to what was S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 7/15 thrown in his car and at that time, he was apprehended by public persons and police came there and took him with them. He claimed to be innocent. He stated that he does not know any Amit @ Ganja. He stated that no knife was recovered from him. He admitted his apprehension by public persons but claimed to be innocent. He stated that he did not see as to whether the thing which was thrown in his car was a briefcase or not. He did not lead any defence evidence.
6. Ld. Counsel for the accused Prakash argued that there are defects in the prosecution case. The motorcycle rider, who carried the complainant to Savitri Nagar, Police Picket, has not been examined. It is stated that there is no public witness of the arrest and hence even the recovery of knife from the accused becomes doubtful. It is stated that although, a briefcase was recovered from his car but it was thrown in his car by a passer-by. It is stated that the identification of the knife by the complainant is full of doubt as the complainant had stated in his examination-in-chief that the handle of the knife was made of wood but the knife which was S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 8/15 produced in the court was having a steel handle. On these grounds, acquittal has been prayed for the accused.
7. Ld. Addl. PP, on the other hand, has stated that the prosecution has been able to prove its case beyond doubt. He has stated that there is no dispute that the accused was in the I-10 car and when the said car was in a stationary position, a briefcase was thrown in it by another person and the said briefcase was recovered from the car which was being driven by the accused. A knife was also recovered from the accused which he had shown to the complainant when the complainant approached him. It is stated that the accused and absconding co-accused Amit @ Ganja acted in concert and hence the accused is liable to be convicted.
8. I have heard both the sides and have perused the records of the case. PW-1 A. K. Seth has clearly stated that on 28.05.2012 at about 10:30 a.m., he was getting the puncture fixed in his Honda City Car No. DL 3C BE 4828 at HP Petrol Pump, Swami Nagar Lane. When the puncture of the front tyre of his car was being fixed, a twenty year old boy opened the right side rear door of the S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 9/15 car and took away briefcase which was kept on the rear seat. He requested a passing-by motorcycle for help and he rode that motorcycle and chased that boy, who ran away towards Panchsheel. That boy handed over the briefcase to another boy, who was waiting for him on the main road in white colour I-10 Car No. DL 3C BM 2864 and its engine was running and he himself ran away after crossing the road. The complainant ran towards the I-10 car and when he opened the front door of the car, he was shown a knife by the driver of I-10 car, who asked the complainant to go away and then that person took that car towards Savitri Nagar, Police Picket. The complainant fell down on the road and chased that I-10 car, raising alarm. The Police Jeep stationed near Savitri Nagar, Police Picket, heard the alarm and apprehended the driver of I-10 car. The briefcase was on the rear seat of the car and it was seized. The driver of the I-10 car, namely, Prakash (accused) was apprehended and from his search, a knife was seized. He identified the accused in the court. The accused himself has not denied his presence at the spot. The defence raised is that the accused was going to Malai Mandir in his car and when he stopped S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 10/15 the car due to traffic on the road, a boy came running and threw something in his car. When the traffic eased, he moved the car ahead and when he stopped the car to check as to what was thrown in the car by that boy, he was apprehended by the public persons and police. As such, even the recovery of the robbed briefcase from the car of the accused is not disputed. Recovery of knife has been disputed on two counts - one that no public person has been associated in the arrest and recovery of knife and second that the identification of the knife is doubtful as the complainant first stated that the knife which was shown to him was having a wooden handle whereas the knife which was produced in the court had a steel handle. It is true that there is no public witness to the arrest and recovery of knife from the accused, although, a lot of public persons had gathered at the spot from where the accused was arrested. The arrest of the accused is not disputed but the recovery of knife is disputed. The complainant is also not very sure that the knife which was produced in the court was the same knife which was shown to him by the accused as he fumbled with the material of which the handle of the knife was made. As such, a doubt S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 11/15 occurs in the recovery of the knife and its benefit should go to the accused as is the law. However, the recovery of briefcase from the rear seat of the I-10 car which was being driven by the accused is not disputed. The involvement of the accused with co-accused Amit @ Ganja becomes clear from the circumstance that the absconding accused Amit @ Ganja took away the briefcase of the complainant from his car and ran away with it which he threw from the already rolled down window pane of the I-10 car which was already stationed on the road and its engine was running. The defence is that the accused had stopped there due to traffic and when the traffic eased, he moved ahead with the car. It is not disputed that he did not keep his car stopped at that place when 'something' was thrown in his car by the person, who came running towards his car. This behaviour of the accused is unnatural because if 'something' is thrown inside a car by an outsider, it would definitely raise alarm in the mind of the driver of the car and he would be anxious to know as to what has been thrown inside his car by an outsider. Instead of doing this, the accused kept sitting in the car and when the traffic eased, he went away with the car, S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 12/15 despite knowing that something had been thrown in his car. After moving for some distance, it has been claimed that he stopped the car to check as to what was thrown in his car and at this time, he was apprehended by the public persons. This explanation does not appeal to reason as the complainant and other police witnesses have deposed that the complainant chased the said I-10 car, raising alarm at which a Police Jeep was put ahead of I-10 car to stop it and from the I-10 car, the robbed briefcase was recovered. It is not the case of defence that the complainant and the accused had any previous enmity or that the accused has been falsely implicated in this case. On the contrary, the accused himself admits that the briefcase in question was recovered from his I-10 car. Recovery of the briefcase of the complainant is thus not in doubt. As such, the argument that the motorcycle driver has not been examined, is not fatal to the prosecution case.
9. The prosecution has been launched under Section 392/397 IPC. Section 392 and 397 IPC are aggravated forms of robbery. It is one of the necessary ingredients of robbery that at the time of S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 13/15 committing the theft or at the time of carrying away the stolen property 'instant death' or 'instant hurt' or 'instant wrongful restraint', is caused or its fear is shown to the victim. There is neither any 'instant death' or 'instant hurt' or 'instant wrongful restraint' of the complainant or of any other person. The recovery of knife has already been doubted and, therefore, charge under Section 397 IPC gets diluted. The accused himself did not rob the complainant of his briefcase as it was picked up by the absconding accused, namely, Amit @ Ganja, who threw it in the I-10 car which was driven away by the accused. There is no other independent witness that the accused had shown any knife to the complainant at the time of escaping with the robbed briefcase. In the circumstances that the recovery of knife is not free from doubt, the conviction of the accused for the offence of robbery would be contrary to law. Thus, the element of 'fear of instant death' or 'instant hurt' or 'instant wrongful restraint' is missing which is the very ingredient necessary for the prosecution to establish the offence of robbery. The accused thus cannot be convicted for the offences under Section 392 and 397 IPC. Section 222 of Cr.P.C S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 14/15 authorizes a court to convict a person for any minor offence even if he is not charged with the said offence. In the absence of the necessary ingredients of the offence of robbery, it would be a case of 'theft' punishable under Section 379 IPC, which is a minor offence as compared to the offence of robbery. Any dishonest moving of a moveable property out of the possession of a person without the consent of that person, amounts to theft under Section 378 IPC. Since the ingredients of the offence of 'theft' are proved against the accused in this case, he is convicted for the offence of theft punishable under Section 379 IPC. There is recovery of the stolen briefcase from the accused and hence he would also be liable to be convicted for the offence under Section 411 IPC. In the net result, the accused is convicted for the offences under Section 379/411 IPC.
Announced in the open Court. (Rajeev Bansal)
Dated: 30.09.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 15/15
IN THE COURT OF SHRI RAJEEV BANSAL,
ASJ-03 (SOUTH DISTRICT), SAKET COURTS,
NEW DELHI.
S.C. No.25/13
(Unique ID No. 02406R0290962012)
FIR No. 203/12
PS: Malviya Nagar
U/S: 392/397/411/34 IPC
State
Versus
Prakash
S/o Shri Niwas
R/o H. No. H-1/203, Jhuggi Madangir,
New Delhi.
ORDER ON SENTENCE
Ld. Counsel for convict has stated that the convict Prakash has been convicted u/s 379/411 IPC for which the maximum punishment provided in law is three years and the convict has already undergone imprisonment for a period of about 1 ½ months and hence, a prayer has been made that the convict may be awarded the punishment of already undergone. Ld. Counsel has S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 16/15 also stated that except this incident, the accused has clean antecedents. It is stated that the convict has a wife and a 2 years old child to look after and hence a lenient view may be taken against the convict.
2. On the other hand, the Ld. Addl. PP has argued that the convict be given maximum punishment.
3. Heard both the Ld. Counsels and have perused the records.
4. The conviction is under Section 379 and 411 IPC and both provide for a punishment of imprisonment of either description for a term which may extend to three years or fine or with both.
5. A prayer has been made that the convict may be considered for being released on probation as the conviction is for an offence which is punishable upto three years.
6. Taking into consideration the nature of offence and the extent of punishment provided in law and the circumstance that the convict has a two year old child and that the convict remained in S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 17/15 custody for about 50 days, I deem it appropriate to release the convict on probation for a period of one year on his furnishing a Bond in the sum of Rs. 10,000/- with one surety to maintain peace and good behaviour during this period of one year. In case, the convict breaches the bond during the bond period of one year, he shall be liable to be called to receive sentence.
7. A copy of the Judgment and this Order on Sentence be provided to the convict free of cost.
8. File be consigned to Record Room.
Announced in the open court. (Rajeev Bansal)
Dated: 30.09.2014 ASJ-3/South District
Saket Courts, New Delhi
S.C. No. 25/13 FIR No. 203/12 State vs. Prakash 18/15