Delhi District Court
St. vs Neelu Lunga Etc. on 20 March, 2011
St. Vs Neelu Lunga etc.
FIR No.15/10, PS: Paschim Vihar
U/s 392/394/397/411/452/308/34 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI
SC No. : 211/1/10
State
Versus
1. Neelu Lunga
D/o Sakuram Lunga
R/o Village Manhar Pur
P.O. Hisa Pita, Distt. Jojuda (Jharkhand)
2. Ramesh @ Ramu @ Dudhnath
S/o Kirpa Ram
R/o Village Gadriyampurwa
P.S. Bisheswar Ganj
Distt. Bahraich, U.P.
Case arising out of :
FIR No. : 15/10
U/s : 308/392/394/397/452/411/34 IPC
P.S. : Paschim Vihar
Date of FIR : 17.01.2010
Date of Institution : 10.03.2010
Date of Final Arguments : 14.03.2011
Judgment reserved on : 14.03.2011
Date of judgment : 16.03.2011
S.C. No.211/1/10 Page 1 of 26
St. Vs Neelu Lunga etc.
FIR No.15/10, PS: Paschim Vihar
U/s 392/394/397/411/452/308/34 IPC
JUDGMENT
1. The accused Neelu Lunga and Ramesh @ Ramu @ Dudhnath are facing charges to the allegations that on 17.01.2010 at about 01:45 PM at house no. B5/101, Paschim Vihar being servant with Neeta Pathak committed theft of mobile phone make Sony Ericsson and one lady purse containing debit card, license and some other papers and money which was the property of Neeta Pathak and within her possession which were robbed and voluntarily caused hurt to Neeta Pathak and at the time of commission of the offence they were having deadly weapon namely wooden leg of a cot and caused hurt to Neeta Pathak. Further alleged that by entering into an unlawful remaining into the house of Neeta Pathak used as a human dwelling and for custody of property having made preparation for causing hurt to Neeta Pathak with such intention and knowledge and under such circumstances if by that act they would have caused the death of Neeta Pathak and would have been guilty of culpable homicide not amounting to murder. From the possession of the accused Neelu Lunga on 18.01.2010 recovered mobile phone make Sony Ericsson and one purse containing debit card, license and some other papers and money which belong to Neeta Pathak. The accused Neelu Lunga also got recovered wooden legs, near the flower pot.
2. The prosecution story are that on 17.01.2010 on receipt of DD No.19A, ASI Padmesh Tyagi along with Ct. Khevender went to S.C. No.211/1/10 Page 2 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC the house no. B5/101, Paschim Vihar and inside one room found blood on double bed sheet of double bed, pillow and also on the floor. He did not find any eye witness at the spot and came to know that the injured lady had been removed to Action Balaji Hospital, Paschim Vihar. He directed Ct.Khevender to remain at the spot to safe guard the site. PW9 ASI Padmesh Tyagi went to Action Balaji Hospital and collected the MLC of the injured Neeta Pathak and found mention on the MLC that it was a case of hit by heavy object while sleeping. Patient was declared unfit for statement. Thereafter, PW9 ASI Padmesh Tyagi went to the spot and made endorsement on the daily diary vide Ex.PW9/B and gave the original tehrir to Ct. Khevender. He also inspected the site and prepared the site plan Ex.PW9/C. He had taken into possession blood stained double bed sheet and one pillow and kept the same into two different sealed parcels with the seal of PKT vide seizure memo Ex.PW6/B. Thereafter, he deposited the case property in the malkhana and on the same day, he again went to the Balaji Hospital and injured was still declared unfit for statement. He recorded the statement of Priya Pathak, PW3 daughter of the injured on the spot. On 18.01.2010, he along with HC Sanjay went to Action Balaji Hospital and recorded the statement of the injured under section 161 Cr.P.C. Thereafter, he along with HC Sanjay went to the spot where Priya and her uncle Suresh Sharma met. Priya stated that their maid servant namely Neelu Lunga is absent since 17.01.2010. Thereafter, he along HC Sanjay, Priya Pathak and Suresh Sharma went S.C. No.211/1/10 Page 3 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC in search of Neelu Lunga. When they reached near Bharti Vidhyapith Engineering Institute, Paschim Vihar, one secret informer met him who stated that accused Neelu Lunga is present near Peera Garhi bus stand. Thereafter, they reached Peera Garhi bus stand where Priya Pathak pointed towards a lady having bag in her hand. He stopped the accused Neelu Lunga and checked her bag, there was one hand purse of black colour containing one driving license in the name of Priya Pathak, one Axiz Bank International Debit Card in the name of Priya Pathak, one travel card of Metro, one ICard of LSR college of woman in the name of Priya Pathak, one mobile phone of black colour of Sony Ericsson were also recovered from the bag. The aforesaid articles were taken into possession vide seizure memo Ex.PW2/A The accused Neelu Lunga was arrested and her personal search was also made vide memo Ex.PW2/C1 and Ex.PW2/C. The disclosure statement of the accused Neelu Lunga was also recorded vide memo Ex.PW2/D. Thereafter, the accused taken the police party to H. No. B5/101, Paschim Vihar and got recovered two Paya (Wooden Leg) which were lying in between Gamlas (Flower Pots) outside the house and stated that the injuries were caused with the same Paya and it was broken into pieces at the time of hitting the same on the person of Neeta Pathak. There were blood stains on both the pieces of Paya and the same were taken into possession vide seizure memo Ex.PW2/B. Thereafter, the accused was got medically examined and she was put behind the lock up. The statements of Priya Pathak and Suresh Sharma S.C. No.211/1/10 Page 4 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC were also recorded.
On 19.01.2010, PW9 ASI Padmesh Tyagi along with Ct. Subhash and Priya went in search of another accused Ramesh @ Ramte @ Dudhnath @ Ramu, when they reached near drain of Raghubir Nagar, Priya Pathak pointed towards him and stated that he is Ramesh, their driver. PW9 ASI Padmesh Tyagi with the help of Ct. Subhash overpowered him and disclosure statement of accused Ramesh @ Dudhnath was recorded vide Ex.PW9/D. Accused Ramesh was arrested and prepared his personal search memo vide Ex.PW3/A1 and arrest memo Ex.PW3/A. Accused Ramesh was got medically examined. PW9 ASI Padmesh Tyagi sent the case property to FSL. On 20.01.2010, doctor of Balaji hospital gave one sealed parcel and one sample seal of Balaji hospital to PW9 ASI Padmesh Tyagi and the same into his possession vide seizure memo Ex.PW9/E. Later on, FSL result was submitted before the court through supplementary challan, FSL result is vide Ex.PW9/F and Ex.PW9/G.
3. After committal proceedings of the case, the charge against the accused persons were framed for the offence punishable under section 392/394/397/452/411/308/34 IPC for which they pleaded not guilty and claimed trial.
4. The prosecution in all, to bring home the guilt of the accused persons examined 11 witnesses. PW1 Neeta Pathak testified that she had employed a maid servant Neelu Lunga who was working with her for about last two years. She was being treated like a family member.
S.C. No.211/1/10 Page 5 of 26St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC On 17.01.2010, Neelu Lunga mixed something in the food so that she could sleep but she was conscious and was not in deep sleep. Accused Neelu had struck her with the wooden leg of the cot on her head and struck several blows of the wooden leg of the cot on her back. Accused Ramesh was also present in the house and he also struck her several times with the wooden leg of the cot. Her mobile phone of Soni Erricson which was kept on the dressing table and her daughter's wallet which contained her LSR College I Card, Axis Bank Debit Card, Rs.1500/ and some other cards, papers and IPod were also taken away by accused Neelu. Accused Neelu and Ramesh ran away from the spot after locking the door from outside. When she regained consciousness found herself soaked with blood and there were lots of cut marks on her head and she had 28 stitches. She had seen accused Ramesh entering the room when accused Neelu was assaulting her with a leg cot and accused Ramesh shouted at accused Neelu "Aa j Memsab ka Kaam Tamam kar De". The accused had assaulted her because she had prevented Neelu from meeting accused Ramesh and insulted her and so they wanted to teach her a lesson. She tried to call her daughter and her sister, her sister came running to her house and she also informed her daughter. Her daughter informed the Police and Police arrived subsequently and with great difficulty she managed to open the door for the Police to come in. The police had also called her neighbours and was taken to Balaji Hospital from Java hospital as medical facilities were not available in Java hospital. It was a fatal S.C. No.211/1/10 Page 6 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC attack by the accused persons. Police had also recorded her statement. She was not aware of the shady and nefarious activities of accused Neelu Lunga and she used to call the drivers and other people to her house in her absence and used to have physical relations with them which she had come to know later on. She had obtained the articles on Superdari from the court vide Ex.PW1/A. The black purse is Ex P1, the I card is Ex P2, the driving license is Ex P3 and the debit cards of Axis bank is Ex P4.
PW2 Suresh Kumar is brother of Neeta Pathak. He stated in his deposition that Neeta Pathak told him that Neelu had told her that she was taking revenge from Neeta Pathak along with other accused persons. The accused Neelu Lunga told Neeta Pathak that Ramesh was her husband. He along his wife rushed to the house of Neeta Pathak. When they reached at the spot, PCR Van had already arrived and Neeta was taken to the hospital. He first time met Neeta in the hospital. He has seen that Neeta had been beaten very badly and she was having severe head injuries and blood was oozing out and medical treatment was provided. The accused Neelu Lunga was standing at the bus stand along with a black bag and she was apprehended by the police. The PW2 Suresh Kumar and PW3 Priya Pathak deposed in the similar manner as stated by PW1 Neeta Pathak in her deposition.
PW4 Dr. Sandeep Mittal proved the MLC of Neeta Pathak vide Ex.PW4/A. He observed two injuries on the forehead nearby S.C. No.211/1/10 Page 7 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC 2.2cm. One big injury on left paritoccipatal nearby 8 to 10cms. One nearby 3cms long on mid paritoccipatal. PW5 Dr. Amitabh Gupta opined the injuries as 'gri evous' in nature. The patient was discharged on 20.01.2010 with advice of regular follow up and check up.
Remaining witnesses are police officials who have stated regarding the manner in which the investigation has been conducted and also proved the documents prepared during the course of investigation.
5. After completion of the prosecution evidence, the statements of the accused persons recorded under section 313 Cr.P.C. and all the incriminating evidence led by the prosecution put to the accused persons one after the other to which they denied as false and incorrect with the submission that they are innocent and falsely implicated in the present case and they do not want to lead any defence evidence.
6. I have heard the submissions of Ld. APP for state and counsel for the accused and carefully gone through the material on record.
Ld. APP for state submitted that the prosecution examined all the material witnesses to prove the allegations against the accused persons. The testimony of the prosecution witnesses are trustworthy, believable and corroborative. The case property i.e. mobile phone (Sony Ericsson), wallet, Debit Card, Metro Card and ICard of LSR College has also been proved to be recovered from the possession and at the instance of the accused Neelu Lunga. Under these S.C. No.211/1/10 Page 8 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC circumstances, the accused persons are liable to be convicted for the charges as levelled against them.
7. Per contra, Ld. counsel for the accused persons submitted that the prosecution failed to prove the allegations against the accused persons beyond all reasonable doubts. The accused Neelu Lunga alleged to have been apprehended on 18.01.2010 and the alleged articles were recovered from her possession. She was not in the company of coaccused Ramesh at the time of apprehension nor any incriminating articles were recovered from her possession. No TIP of the accused persons was conducted. It is admitted that the accused Ramesh arrested on 19.01.2010 on the basis of disclosure statement. Nothing incriminating has been recovered on his instance. It is further contended that the alleged weapon of offence is not a deadly weapon nor the same was sent for expert opinion either to the FSL or to the doctor who examined the patient, to corroborate as to whether, the injuries received on the person of Neeta Pathak can be caused by the same weapon of offence or not. No blood stained clothes of the injured was searched or sent to match to the blood group of the injured. No blood stained clothes of the accused Neelu Lunga or Ramesh were recovered though he was arrested after the incident at different places. It is further submitted that there is no independent witness was joined during the course of investigation either at the time of recovery of Paya (Wooden Legs) or at the time of apprehension of the accused persons and pointing out of the place of incident.
S.C. No.211/1/10 Page 9 of 26St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC The counsel for the accused persons also relied upon 1995 Crl. L.J. 4042, Willson Vs State of Maharashtra, wherein it was observed that 'th e offender'
- expression pertains to actual offender. It does not include all persons who participated in robbery or dacoity. The expression 'the offender' pertains to the actual offender or accused person who at the time of committing robbery or dacoity uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person and it does not include all such persons who participated in the commission of such robbery or dacoity.
The counsel for the accused also relied upon Om Parkash & Ors. Vs State of Haryana, Punjab & Haryana High Court, 1985, it is observed that "co nviction under section 394 and 397 of the code of the appellants are hereby set aside and are instead substituted by the conviction of the appellants under section 397 and of the other appellants under section 397 read with section 149 of the Code. All the other conviction of the appellant are however, upheld and confirmed" .
In these circumstances, the prosecution failed to prove its case against the accused persons and they are liable to be acquitted from the charges levelled against them.
8. Keeping in view of the submissions of Ld. APP for state, counsel for the accused persons and material on record. For attracting the provision of section 397 IPC, the said section would only have S.C. No.211/1/10 Page 10 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC application if the evidence is that during the course of commission of robbery or dacoity, "th e offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person." Section 397 IPC contains the principle of individual liability. The words used in it are the offender. In other words, before section 397 IPC can have any application, prosecution has to establish as to who was that offender or accused person who during the course of commission of robbery or dacoity was armed with a deadly weapon caused grievous hurt to any person or attempted to cause the death or grievous hurt to any person.
A comparison of the language used in section 396 and 397 IPC justifies this inference. Had the Legislature intended that the expression ' the offender' used in section 397 should include all such persons participating in the offence of robbery or dacoity then it could have used language similar to that contained in section 397 IPC and section 397 in place of its present text would instead have read as follows : If at the time of committing robbery or dacoity, any person uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person every one of those person participating in the commission of such robbery or dacoity shall be punished with imprisonment which shall not be less than seven years.
The difference in the language used in section 396 IPC and section 397, leaves no room for doubt that the expression 'th e offender' S.C. No.211/1/10 Page 11 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC used in section 397 pertains to the actual offender or accused persons who at the time of committing robbery or dacoity uses any deadly weapon or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person and it does not include all such persons who participate in the commission of such robbery or dacoity.
9. For the application of section 397 IPC, first, it has to be established that either robbery or dacoity was committed. In Even assuming that the offence of robbery has been committed, the offence stipulated by section 397 IPC would only be complete if the prosecution adduces evidence to the effect that at the time of committing the robbery, the appellant used any deadly weapon or caused grievous hurt to any person or attempted to cause the death or grievous hurt to any person. No such evidence is forthcoming in the instance case. The also becomes apparent from a perusal of the confessional statement of the accused. Accordingly, the accused cannot hold guilty under section 397 IPC.
10. The offence of robbery is punishable U/s 392 IPC. When fear is used to enable any person to carry away booty, it amounts to robbery, theft is robbery when in committing theft or in order that theft by committing or in carrying away the booty force is used. Similarly robbery involve extortion hence person cannot be convicted both for the extortion and for robbery which is a special aggrievated form of the extortion. The dacoity consisting of five or more persons conjointly commit or attempt to commit a robbery or where the whole S.C. No.211/1/10 Page 12 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC number of persons conjointly committing or attempting to commit a robbery and person present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit " dacoity" .
So far as, in respect of the charge U/s 397 IPC, it is essential to satisfy the word " uses" for the purpose of section 391 IPC, robbery being committed by an offender who was armed with a deadly weapon which was then in the vision of the victim shown as to create a terror in the mind of victim and in that it should be further shown, have been used for cutting, stabbing, shooting as the case may be. In Phool Kumar Vs Delhi Administration AIR 1925 SC 905 and Jung Singh Vs State of Rajasthan 1984 Crl. J. 1135, in these two cases it was held that "u se of deadly weapon by one offender at the time of committing robbery does not attract section 397 for imposition of any minimum punishment for another offender who did not use such weapon and when the accused is charged under section 395 r/w 397 IPC for committing dacoity with attempt to cause grievous hurt, he cannot be convicted u/s 397 IPC only because one revolver had been recovered from the accused. This is no proof that he used the revolver while committing dacoity was charge under section 397 will not attract. The provision postulates on, only individual act of the accused to be relevant to attract section 397 IPC and thereby inevitably neglects the use of the contradictive or vacarious liability engrafted in S.C. No.211/1/10 Page 13 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC section 34 IPC.
11. Now coming to common intention, section 34 of IPC, acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.
The principal feature of this section is the element of active participation in the commission of the criminal act. In Devi Lal & Anr. Vs State of Rajasthan, AIR 1971, Supreme Court, 144, the Supreme Court observed : Under section 34 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. The words "in furtherance of the common of all" are a most essential part of section 34 of the Indian Penal Code. It is common intention to commit the crime actually committed. This common intention is anterior in time to the commission of the crime. Common intention means a prearranged plan. On the other hand, section 149 of the Indian Penal Code speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. The distinction between " common intention" under section 34 and "c ommon object" under section149 is of vital importance.
12. From the deposition of PW1 Neeta Pathak, it is testified S.C. No.211/1/10 Page 14 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC that " the accused Neelu Lunga had struck me with the wooden leg of the cot on my head and struck several blows of the wooden leg of the cot of my back. Accused Ramesh also present in court today was also present in the house and he also struck me several times with the wooden leg of the cot. My mobile phone of Sony Ericsson which was kept on the dressing table and my daughters walled which contained her LSR college ICard, Axiz Bank Debit Card, Rs.1500/ cash and some other cards and papers were also taken away by accused Neelu. Accused Neelu had also stolen my IPod."
Further in the cross examination of Ld. APP for state she stated that ".. .. It is correct that I had seen accused Ramesh entering the room when accused Neelu was assaulting me with a leg cot and accused Ramesh shouted at accused Neelu " Aaj Memsab Ka Kaam Tamam Kar De". It is correct that the accused had assaulted me because I had prevented Neelu from meeting accused Ramesh and also because I have insulted him and so they wanted to teach me a lesson... It is correct that the accused while leaving the house had taken mobile phone and purse containing various articles...."
In cross examination on behalf of the accused persons it is admitted that she has not suffered any loss of memory and amnesia and she has not disclosed this fact to the doctor also. It is denied that the accused persons have been falsely implicated at the instance of the S.C. No.211/1/10 Page 15 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC police. It is denied that the accused Ramesh had not entered in the house on the day of incident or that he was on regular duty with his lawyer O.P. Gupta, advocate or that no extortion was made by the accused Ramesh or that she has not been able to see the assailant at the time of incident.
13. So far as with respect to the nature of injuries, the MLC was prepared by PW4 and injured was examined by Dr. Amit Gupta. C.T. Scan was also conducted and suggested the linear fractures of both parietal bones and left squamous temporal bone with pneumocranium and subarachnoid haemorrhage in right sylvian fissure. The nature of injuries that the patient suffered were ' grievous' in nature. The C.T. Scan report was prepared by Dr. A. Dhar vide Ex.PW4/A and XRay was examined by Dr. Harsimran Singh Nagpal who opined that hilar and mediastinal shadows normal, pre and paravertebral soft tissue shadows appear to be normal.
The blood stained double bed pillow was seized apart from the other articles like wooden legs. The injured Neeta Pathak having 28 stitches on her head The human blood of groupB was detected on bedsheet and pillow cover. The human blood was detected on two wooden pieces described as wooden Pawa. The said wooden legs were sent for scientific examination in FSL Rohini for expert opinion.
14. Section 394 defines as voluntarily causing hurt to any person jointly concerned in committing or attempting to commit such S.C. No.211/1/10 Page 16 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC robbery, shall be punished with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years and shall also liable to fine. The section 394 postulates and contemplates the causing hurt during the commission of robbery when such causingof hurt is hardly necessary to facilitate the commission of robbery where when hurt is caused to facilitate a robbery, the offence is punishable under section 392. Section 397 merely a rider to this section with reference to cases in which the hurt committed is 'grie vous' .
15. The weapon of offence has not been described by any of the prosecution witness including the experts as a 'de adly weapon' nor the doctor concerned who give opinion, examined with respect to the nature of injuries as well as to the weapon of offence as to give the description whether the injuries received by the injured could be caused by wooden leg. The case of the prosecution rested solely on the testimony of PW1 Neeta Pathak. The question of dispute of identification of the accused persons not arise, hence there is no question of judicial TIP, since the accused Ramesh Kumar and Neelu Lunga were arrested on the instance of the family member of the injured and they are employee of the injured. The accused Neelu Lunga was apprehended on 18.01.2010 at the Peera Garhi bus stand on the instance of PW3 Priya and PW Suresh Kumar.. She made the disclosure statement with respect to the articles and weapon of offence. The articles robbed by her alleged husband Ramesh and recovered from her possession and wooden legs were also recovered S.C. No.211/1/10 Page 17 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC on her instance on the basis of the disclosure statement from Gamlas (flower pots).
Accused Ramesh @ Ramu @ Doodhnath has been categorically identified by the injured Neeta Pathak during the course of investigation as well as during the course of trial and her statement has been corroborated to this effect by the other witnesses. It is also testified that the accused Ramesh in connivance with the accused Neelu Lunga committed the alleged offence.
16. It was observed in catena of judgments by Apex Court that whereafter causing injuries to the complainant by beating them the accused entered the complainant' s house and removed bags, it was held that beatings were merely for the purpose of theft and the offence of the robbery punishable under section 394 IPC has been committed.
It is observed in case titled as Shiv Sahai Singh 1985 Cri LJ 1977 (Ori), that where the accused were found in possession of gold ornaments of the deceased soon after the occurrence and he had no satisfactory explanation for such possession, the presumption was raised that the accused not only committed murder but also robbery of ornaments.
17. In the present case, all the elements of the offence punishable under section 394 IPC are including the facts and circumstances of the present case in consonance of the deposition of the PW1 Neeta Pathak and her deposition has been corroborated by PW2 Suresh Kumar Sharma and PW3 Priya Pathak as well as doctor S.C. No.211/1/10 Page 18 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC i.e. PW4 Dr. Sandeep Mittal and PW5 Dr. Amitabh Gupta concerned who examined the patient.
18. With respect to section 308, the wording of section 308 IPC is the same as that of u/s 307 IPC that it deals with an attempt to commit culpable homicide. Section 307 IPC and section 308 IPC are expressed in similar language and should be interpreted in the same way. The punishments therefore, not so severe. An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.
If an accused does not intend to cause death or any bodily injury, which he knows to be likely to cause death or even to cause such bodily injury as is sufficient, in the ordinary cause of nature to cause death, section 308 would apply even if the case is not covered by any of the exceptions mentioned in section 300 IPC. As held by the Supreme Court, offence punishable under section 308 postulates doing of an act with such intention or knowledge and under such circumstances that if one by that act caused death, he would be guilty of culpable homicide not amounting to murder. An attempt of that nature may actually result in hurt or may not.
In case titled as Mohan Rathor 1986 Cri LJ 1280 (MP), it is observed that there was no enmity between the appellant and the victim. There was no premeditation. The appellant in a sudden flash of anger pierced the screw driver into the intervener which was at that S.C. No.211/1/10 Page 19 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC time in his hand. He chose to hit the chest, but the force he used was not very strong so as to penetrate the lungs. He was convicted under section 308 IPC and not section 307 as if the victim had died he would be guilty of culpable homicide not amounting to murder.
19. So far as with respect to the investigation, arrest and recovery of the articles, the same have also been duly testified and corroborated by the police officials and supported by the public witnesses including the injured. There is no major defects found in the investigation. Same has been done in the fair and lawful manner. There is no major contradictions pin pointed by defence counsel from the deposition of the prosecution witnesses.
20. Keeping in view of the aforesaid discussion, facts and circumstances of the present case, the prosecution has been able to bring home the guilt of the accused Neelu Lunga and Ramesh @ Ramu @ Doodhnath for the offence punishable under section 394/308/34 IPC beyond all reasonable doubts as the testimony of the prosecution witnesses are trustworthy, believable and corroborated.
So far as with respect to the section 411 IPC, the same has also been proved by the prosecution as the articles belonging to the injured Neeta Pathak and her daughter Priya Pathak have been recovered at the instance of the accused Neelu Lunga from her possession which are duly identified by the witnesses during the course of investigation and trial. Therefore, the testimony of the prosecution witnesses inspire confidence to bring home the guilt of the S.C. No.211/1/10 Page 20 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC accused Neelu Lunga for the offence punishable under section 411 IPC beyond all reasonable doubts.
Accordingly, the accused Neelu Lunga D/o Sakuram Lunga and Ramesh @ Ramu @ Doodhnath S/o Kirpa Ram are hereby convicted for the offence under section 394/308/34 IPC. The accused Neelu Lunga is also convicted individually for the offence punishable under section 411 IPC.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court today ADDITIONAL SESSIONS JUDGE
i.e. on 16.03.2011 (WEST02):DELHI
S.C. No.211/1/10 Page 21 of 26
St. Vs Neelu Lunga etc.
FIR No.15/10, PS: Paschim Vihar
U/s 392/394/397/411/452/308/34 IPC
IN THE COURT OF SH. SATINDER KUMAR GAUTAM,
ADDITIONAL SESSIONS JUDGE (WEST02), DELHI SC No. : 211/1/10 State Versus
1. Neelu Lunga D/o Sakuram Lunga R/o Village Manhar Pur P.O. Hisa Pita, Distt. Jojuda (Jharkhand)
2. Ramesh @ Ramu @ Dudhnath S/o Kirpa Ram R/o Village Gadriyampurwa P.S. Bisheswar Ganj Distt. Bahraich, U.P. Case arising out of :
FIR No. : 15/10 U/s : 308/392/394/397/452/411/34 IPC P.S. : Paschim Vihar Order on Sentence : 22.03.2011 Present: Sh. Subhash Chauhan, Ld. APP for state.
Both convicts produced from.
Sh. Yogesh Chabra, counsel for the convicts. I have heard the submissions of Ld. APP for state and the S.C. No.211/1/10 Page 22 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC counsel for the convicts and gone through the material on record.
Ld. APP for state submitted that prosecution proved its case against the accused persons beyond all reasonable doubts and the testimony of all the prosecution witnesses inspire confidence, they are trustworthy and reliable. The recovery of the wooden legs as well as the other articles belonging to the injured from the possession of the accused Neelu Lunga are also proved by complainant and PW Priya Pathak which is duly corroborated by statements of other prosecution witnesses. The accused has not given any rebuttal to the allegations and depositions made against them. As per the provision of 114 (A) of the Evidence Act " there are sufficient evidence against the accused to connect them with the crime. Therefore, the convicts be punished severely at the maximum punishment.
Counsel for the convicts on the other hand submitted that the accused persons have clean antecedents, they have not been previously convicted and they are young and belong to very poor families. It is further contended that they have remained in judicial custody for one year and two months. Therefore, prayed to be released on the undergone imprisonment.
In view of the submissions made by the Ld. APP for state and counsel for convicted and the provision of law, I am of the view that it has been very aptly indicated in Dennis Councle MCG Dautha Vs State of Callifornia (402 US 183: 28 L.D. 2d 711) that no formula of foolproof nature is possible that would provide a reasonable criterion in S.C. No.211/1/10 Page 23 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC determining a just and appropriate punishment in the infinite variety of circumstances that may affect the gravity of the crime. In the absence of any foolproof formula which may provide any basis for reasonable criteria to correctly assess various circumstances germane to the consideration of gravity of crime, the discretionary judgment in the facts of each case, is the only way in which such judgment may be equitably distinguished.
In 2008 X AD (S.C.) 645 in case titled as Siriya @ Shri Lal Vs State of Madhya Pradesh, it has been held that, "in operation of Sentencing System, law should adopt corrective machinery or the deterrence based on factual matrix facts and given circumstances in each case, the nature of the crime, in manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, nature of weapons used and all other attending circumstances are relevant in award of sentence. Sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy in law. In each case, there should be proper balancing of aggravating and mitigating circumstances on the basis of relevant circumstances in a dispassionate manner.
The contagion of lawlessness would undermine social order and lay it in ruins. Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of " order" should meet the challenges confronting the society. Friedman S.C. No.211/1/10 Page 24 of 26 St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC in his " Law in Changing Society" stated that, " State of criminal law continues to be as it should be decisive reflection of social consciousness of society" . Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
In Sevaka Perumal etc. Vs State of Tamil Nadu (1991 (3) SCC 471 " It is therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. No doubt, the convicted is remained in judicial custody and the article robbed belonging to the injured Neeta Pathak and her daughter Priya Pathak, have been recovered from the possession of accused Neelu Lunga. The deposition of injured Neeta Pathak and other prosecution witnesses is also corroborated and inspired confidence. Therefore to consider the submissions made and law laid down, the punishment provided under section 394 IPC is extended to ten years and fine. Under section 308 IPC, the maximum punishment may extend to seven years or with fine or with both. In view of the above, discussion as well as contention raised, the convicted Neelu Lunga and Ramesh @ Ramu Dudhnath are hereby sentenced to in the following manner :
(i) Under section 308/34 IPC : Both the convicts are sentenced to imprisonment which they already undergone and fine of Rs,.10,000/ in default of six months simple imprisonment to each of the convict.
S.C. No.211/1/10 Page 25 of 26St. Vs Neelu Lunga etc. FIR No.15/10, PS: Paschim Vihar U/s 392/394/397/411/452/308/34 IPC
(ii) Under section 394/34 IPC, the convict Neelu Lunga and Ramesh @ Ramu @ Dudhnath are sentenced to rigorous imprisonment for five years and fine of Rs. 10,000/ in default of six months simple imprisonment to each of the convict.
(iii) Under section 411 IPC, the convict Neelu Lunga is individually sentenced to simple imprisonment which she had already undergone.
Benefit of section 428 Cr.P.C. be awarded to both the convicts. The period which they had already undergone be set off from the sentenced awarded. All the sentence shall run concurrently.
I think the sentence awarded to the convicted will meet the end of justice. Copy be given to the convicted free of cost forthwith.
Dictated & Announced (SATINDER KUMAR GAUTAM)
in the open court today ADDITIONAL SESSIONS JUDGE
i.e. on 22.03.2011 (WEST02):DELHI
S.C. No.211/1/10 Page 26 of 26