Delhi District Court
State vs . Manish Soni Etc on 21 September, 2011
:1:
IN THE COURT OF SH. J. R. ARYAN
ADDITIONAL SESSIONS JUDGE, NEW DELHI
Date of Institution: 27.09.2010
Date of judgment reserved on:14.09.2011
Date of decision: 21.09.2011
S.C No. 09/2010
State Vs. Manish Soni etc
FIR No. 738/07
U/s 328/379/411/420/201/468/471/34IPC
PS: Connaught Place.
1. Manish Soni S/o Om Parkash Soni
71/48 Prem Nagar, Janakpuri,
Delhi.
2. Sachin Gandhi S/o Madan Lal Gandhi
R/o 483 Sector4, Karnal Ext.
Haryana.
JUDGMENT:
1. Accused Manish Soni, S/o Om Prakash and Sachin Gandhi S/o Madan Lal Gandhi were put on trial on a charge under Section 328/34, 379/34, 420/468/471/34 IPC and they claimed trial on pleading not guilty to the charge. Charge put to them on 16.03.2009 in brief was that on 30.10.2007 at around 5.30 P.M. at Volga Restaurant, both the accused administered some intoxicant to complainant/victim, Chambak Vasu Dinesh with an intention to commit an offence of theft and having been made victim by that intoxicant they removed one gold chain with locket, :2: one gold bracelet, an amount of Rs.3,500/, one mobile phone, driving license, PAN Card and ABNAmro bank credit card from person of victim. Charge under Section 420/468/471 IPC is that in between 01.10.2007 to 15.01.2008, both the accused dishonestly made purchase of two mobile phones with the help of credit card of the victim and they impersonated and forged signature of victim and thereby they committed the said offences.
2. Another third accused Somesh Dua was also put on trial on a charge under Section 411 IPC. He was alleged to be in possession of stolen gold jewelery article of the victim besides stolen articles of other cases when those stolen articles were recovered from his possession on 13.01.2008 and accused was in possession of those stolen articles knowing or having a reason to believe the same to be a stolen property. This accused also claimed trial by pleading not guilty.
3. Accused Somesh Dua then compounded the offence under Section 411 IPC with the victim/complainant Chambak Vasu Dinesh. An application under Section 320 Cr.P.C. along with deed of compromise was filed before this court. Statement of complainant/victim, C.V. Dinesh and statement of accused Somesh Dua was recorded about that compromise on 18.02.2011. Since, by Amendment Act, 2008 in Cr.P.C, Section 320 Cr.P.C. provided for compounding of offence under Section 411 IPC and the person owner of the stolen property was competent to enter into compromise, considering that complainant voluntarily entered into that compromise, the said application was granted in terms of compromise :3: between the parties, accused Somesh Dua was acquitted of charge vide order dated 18.02.2011.
4. Trial accordingly proceeded against the accused Manish Soni and Sachin Gandhi.
5. Facts wherein these accused persons were charge sheeted from police station, Connaught Place, New Delhi are that complainant, C.V. Dinesh happened to be on the Airport on 24.08.2007 with his family as he was to take flight for his native state, Kerala. Two young persons met him on the Airport who introduced themselves to be a business persons and going to Bombay. These persons while conversing with complainant over business talks, they took mobile phone number of the victim. Complainant was a cloth designer by profession residing at A19, Amrit Nagar, South Ex.I, New Delhi. Complainant with his family reached his native place in Kerala. Those two persons tried to contact and follow complainant by giving a call on his mobile on 26.08.2007 and offered to reach Ernakulam and asked the complainant if he could reach there to discuss business talks but then complainant replied his inability.
6. On 04.09.2007, complainant with his family came back to Delhi and he continued receiving phone calls from those two persons who had introduced themselves to complainant by their names Raju and Rakesh. Finally on 30.10.2007, those two persons succeeded inviting complainant to Volga Restaurant to discuss some business talks. Complainant alongwith his cousin Rajesh Kalidass PW3 reached Volga Restaurant in :4: the evening. Both those persons namely Raju and Rakesh were there in the restaurant. All of them had taken Beer (soft beverages) and chicken and then one of those two persons pretending a call received on his mobile asked complainant to reach Narulas Restaurant site as concerned person to take up business deal with the complainant had reached that the site. All four reached at Narula Restaurant site and there while complainant and his cousin Rajesh Kalidass kept on sitting in their vehicle, WagonR that boy Raju brought four juice glasses and each four of them drank juice. Complainant in about five minutes felt giddy and became unconscious Rajesh Kalidass also felt vomiting. As per advice of those boys Raju and Rakesh, complainant, C.V. Dinesh was taken on the back side of the car WagonR and one of those boys drove vehicle with Rajesh Kalidass taking seat by the side of the driver. Vehicle was brought to Lady Harding Medical Collage/ Hospital and the boy asked Rajesh to go inside and locate emergency and meanwhile he would be escorting victim C.V. Dinesh after parking the car.
7. In a few minutes Rajesh Kalidas when came back he found their vehicle WagonR no more around that site and neither victim C.V.Dinesh was there.
8. Finally victim C.V. Dinesh was found inside his vehicle WagonR abandoned in Mandir Marg area and his personal belongings like gold chain with locket, gold bracelet, his mobile phone and amount of Rs. 3,500/ and RC of his vehicle along with its duplicate key, his D/L, PAN :5: card and ABNAmro credit card were missing. The fact of victim/complainant found lying unconscious in his WagonR vehicle in Mandir Marg area came to the notice of Police Station, Mandir Marg but no action was taken by the police and victim cousin Rajesh Kalidass then removed victim to Moolchand Hospital.
9. Rajesh Kalidass, PW3 when examined in the trial deposed that he did not lodge report in PS, Mandir Marg as he was afraid of the police since he had consumed beer. It was a serious lapse on the part of the police, PS, Mandir Marg that no circumstances were inquired/investigated as to how and why victim was found unconscious. They could have created any kind of confidence in Rajesh Kalidass to come out with facts.
10. Incident was never reported to the police. Meanwhile, the police from Crime Branch, SOS, Sun Light Colony, Delhi while seized of a criminal case FIR No.396/07, PS, Mandir Marg happened to find that several incidents like an incident of FIR No. 396/07 had taken place within about two months in Delhi, a lead was developed and accused Manish Soni was located as living and residing in Prem Nagar, near Tilak Nagar area that residential house of Manish Soni was raided on 01.01.2008, where he was found resided with his wife and daughter. A huge amount of stolen property comprising mobile phones, bank credit cards were recovered and accused was arrested and his interrogation led to a confession/disclosure which is now Ex. PW7/A. Accused was alleged to have disclosed as many as 62 incidents wherein he along with his associate coaccused Sachin Gandhi :6: had made several business persons at several places in the country victim of their trap. In these instances, the accused disclosed their modus operandi as to how they used to contact a person and then drugged him and after the victim became unconscious they would take away his valuables. Confession/disclosure concerned with the incident of this case appeared at Sr. No.10 of that confession. The stolen gold jewelery of this case was recovered from Somesh Dua at the instance of accused persons and that recovery was effected from 13.01.2008 vide seizure memo Ex. PW7/E. Two mobile phones purchased by the accused persons by using bank credit card of the victim vide tax invoices markX were also recovered. These two mobile phones were Nokia N73S12MB with IMEI No.358974010203663 and mobile Nokia N73(Music), black with IMEI No. 356406019870103. With these facts collected during investigation that accused persons were charge sheeted.
11. Though both the accused claimed trial by claiming not guilty to the charge but probably they did not have a courage to confront victim complainant C.V. Dinesh when examined as PW2 in this trial with any falsity may be by that time when this witness was examined in December 2010, both the accused persons had been convicted in several cases in and out side Delhi and had already been sentenced to various terms of imprisonment. They came forward with a word of repentance and offered to explain incriminating evidence deposed by the victim in their 313 Cr.P.C. statement. They however, came out with a plea that though they had :7: committed criminal acts charged against them but then the police was also absolutely unfair in their investigation and rather exploited their authority by taking accused persons to various jewelers in city of Delhi, creating a terror on Jeweler business place by giving hard slap to accused and then negotiating with jeweler that accused had sold some of the stolen gold items to that jeweler and threat of arrest was a weapon to negotiate with the jewelers. This court could have ignored this prima facie unsubstantiated grouse of accused but then it is a matter of record that accused persons disclosed 62 instances of their misdeeds and disposing of stolen goods which included gold jewelery, laptops, mobile phones etc. etc. If discovery of the facts of stolen articles pursuant to such a huge disclosure of accused persons remained uncontrolled and unsupervised then misuse of police power could be there. It is for the senior officers of the concerned police branch to see and ensure as to how much stolen articles pursuant to these disclosure of accused had been recovered and to what extent, there was no recovery and how and why. These disclosures also mentioned victim of these two accused persons from Karnatka, Goa, Bombay and various other places. As to how much, these investigations were conveyed to concerned police station of those places is also to be looked into by the senior police officials. Some of the victims as from these disclosures were young boys carrying laptops etc. Police must ensure that investigation under these disclosures of these accused persons are conveyed to concerned police station all the victims of crime committed by :8: these two accused persons.
12. Victim C.V. Dinesh PW2 when examined in trial, he deposed on oath as to how he had been trapped by these two accused persons right from his first meeting with these accused at domestic airport, New Delhi on 24.08.2007. He deposed that on 30.10.2007 on receiving a call from accused Manish Soni who had been impersonating as Raju had reached at Volga restaurant at around 5.30 p.m. alongwith his cousin Rajesh Kalidass in their WagonR vehicle bearing no. DL3CAW0252. He further deposed that both the accused entertained them with chicken and beer in the restaurant and then took them to Narula restaurant site saying that business customers had reached that place. He further deposed that at Narula restaurant site, accused Raju brought four glasses of juice and each of those four consumed that juice and soon in about five minutes complainant started feeling giddy and accused requested his cousin to take him to hospital and became unconscious. Witnesses further deposed that from hospital site near Shivaji Stadium may be he was referring to Lady Harding Medical College/Hospital, that he was taken away by accused persons and later on he found his personal belongings missing from his person which included gold chain, locket, bracelet, ABNAmro credit card and his mobile phone make Sony. He further deposed that a purchase of Rs.38,000/ had been made from his Credit card. He was removed to Mool Chand Hospital and he remained admitted there for three days.
13. He further deposed that on 24.12.2007, some police officials came to :9: his house at around 2 o'clock midnight and claimed to have traced this victim/complainant by mobile call details. Victim then went to ACP Rajbir Singh on 25.12.2007 and there he given his complaint Ex. PW2/A. Witness further deposed that gold chain with locket and gold bracelet had been recovered by the police in this case belonged to him and he had got them released on Superdari and identified and exhibited these articles during his deposition as Ex. PW2/P1 & P2. He also identified his stolen Sony mobile phone J70 bearing IMEI No. 35066833 440086 and operating on No.9811234231 as Ex. PW2/P3. Accused persons came out with no cross examination or challenge to this testimony of PW2. Both the accused persons had been provided with a defence counsel appointed as Amicus Curiae but they instructed advocate to not to question the testimony of the complainant.
14. Another material witness PW3 Rajesh Kalidass also fully supported the prosecution case and corroborated the testimony of PW2 on all material points and accused persons did not chose to cross examine this witness also. Same was the stand of accused persons when another material witness Biju Kumar a friend of victim/complainant was examined as PW5.
15. Prosecution witness Rajesh Kali Dass PW3 who in fact had accompanied victim C.V Dinesh and had been with the victim till accused persons after having rendered victim unconscious by making him to consume some intoxicant drug had brought victim to Lady Harding :10: Medical College has fully supported the prosecution case and has corroborated victim on all material particulars of the case. This witness has also not been cross examined by the accused persons. PW5 another witness a known person to victim complainant has also supported the charge to the extent and the fact that on the date of incident they had enable to locate the stolen Wagon R vehicle in Mandir Marg police station area and victim C.V Dinesh was found lying unconscious in the vehicle and that vehicle along with the victim was first brought to police station Mandir Marg and from there he and PW3 took victim C.V.Dinesh to Mool Chand hospital. This witness has also not been cross examined by the accused persons.
16. During investigation IO collected MLC of C.V.Dinesh from Mool Chand hospital and this document showed that C.V.Dinesh was brought to th st that hospital on intervening night of 30 /31 October 2007 at 0.30 hours. Victim was brought unconscious with a history as narrated by Biju PW5 that patient had some alcoholic drink and Biju Kumar had traced and spotted victim in Birla Mandir area in unconscious state. Patient was found not responding any stimuli. Stomach wash was done but admittedly contents of stomach wash were not collected and then got examined from FSL to find contents and cause of that unconscious.
17. Other two material witnesses are the police officials and they are S.I Sharat Kohli PW7 and then investigating officer S.I Surender Singh as PW6. S.I Sharat Kohli had arrested both these accused persons and :11: besides effecting recovery of stolen properties of many other cases from accused persons, as regards recovery in the present case witness deposed that on 8/1/2008 both accused took this witness along with police party to a jewelery shop which was in the name of Maharani jewelers situated in Karolbagh near Gurudwara Road. Accused Somesh Dua was found present in the shop and Somesh Dua admitted to have bought jewelery from accused Manish Soni on 8 to 10 occasions and accordingly Somesh Dua was arrested and was taken in police custody remand for five days. Witness further stated on oath that finally on 13/1/2008 accused Somesh Dua took this witness and the police party to his residential house situated in Pritampura, Kohat Enclave and from a wooden almirah in a bed room of that house accused took out a small cloth packet which contained gold jewelery and it comprised three gold kadas, nine gold chains, two further gold chains with locket, one ring with stones, three gold bracelets and two gold rings. All that property was seized. Witness deposed further that gold jewelery articles were later on put in a test identification parade held on 29/1/2008 before Magistrate in Patiala House Court and complainants of 12 cases participated in that TIP and identified their respective stolen articles. Complainant of the present case claimed to have identified bracelet and a chain with locket and those were then got recorded and focused in photograph mark X1, X2 & X3. PW6 IO has also stated on oath that on 13/1/2008 S.I Sharat Kohli handed over to him seizure memo of the recovered stolen jewelery articles. :12:
18. IO further deposed that on 14/1/2008 both accused persons took him and led him to a mobile store shop situated in Connaught Place but the witness was unable to speak its address or any further details and only pointing out memo was prepared and the witness further stated that he did not recall if shop was closed or opened. Witness again took both accused to that mobile shop on 15/1/2008 and there the shop Manager Moin Qureshi identified both accused persons who had purchased two mobile phones both Nokia from his mobile store on 30/12/2007 through a bank credit card. Testimony of IO was so irresponsible that not only he did not know exact address or shop No. of that mobile store. He rather deposed that on 26/1/2008 he reached the house of one Nadim Khan which was situated at Minto Road Connaught Place area and Nadim Khan was found present in the house. Nadim Khan produced a mobile handset N73 in a packed box which was seized through memo Ex.PW6/A. Document Ex.PW6/A showed that Nadim Khan was resident of WZ6B Inder Nagar Tilak Nagar Delhi area and as per statement of Nadim Khan that mobile handset was stated to have been purchased by him from RPG Cell U Com about 2 ½ months before. On that fact that mobile recovered from Nadim Khan as purchased from RPG Cell U Com, another material witness examined by prosecution was PW4 Deepak Tyagi who was working and employed as Sales Executive with RPG Cell U Com situated at District Center Janakpuri, Delhi. This witness did not depose the prosecution story as desired by police and rather did not appear to be a hostile witness :13: but appeared to have been created as a witness by the police. Witness denied to have purchased that recovered mobile phone from any such person as Punit Kapoor or that to have sold it to Nadim Khan with some profit. He stated that he was called to police station Sunlight Colony and he reached that police station at around 11 a.m on 26/1/2008 and was detained in that police station till 10 O'clock night and was treated very badily by the police including assaults by slaps.
19. This is for the senior police officers to search their conscious and to ask themselves how police investigate and behave with common man and rather brought a false story through such a common man and when it is not supported by such a witness he is got declared a liar and got declared hostile. Unless such an investigation is strictly supervised by the senior the rott in the police with abuse of their power will never come to an end. This court had no reason at all to disbelieve this witness Deepak Tyagi pW 4 that he was detained in the police station till 10 O'clock night and was treated very badily even with assault by slaps by the police. The functioning of the police is reflected from the testimony of above described police official witnesses who have deposed evidence in irresponsible manner.
20. Accused Sachin Gandhi took up cross examination on PW6 and suggested certain facts to witness in an attempt to expose the functioning of the police. Accused tried to project from the cross examination of the IO that police would terrorize any jeweler and then would negotiate with him :14: after showing and exhibiting no recovery of any stolen article. Who were to supervise the recovery of stolen jewelery and other valuable articles from other places if there was no public witness associated by the police officials. All these aspects of criminal justice delivery system are to be looked in to by the senior police officials if a faith in the functioning of the police is to be reenforced and exhibited.
21. Since accused persons did not come forward to cross examine victim complainant Chambak Vasu Dinesh PW2 and rather came forward to explain evidence deposed by this witness by their 313 examination, at that stage examination of both accused persons U/s 313 Cr.P.C was taken up. Both accused admitted the facts deposed by witness C.V.Dinesh. They further did not dispute or deny that as per their disclosure and pointing out stolen jewelery items belonging to C.V.Dinesh were recovered from coaccused Somesh Dua. However, during arguments both accused submitted that in fact Somesh Dua had come in to the custody of police officials much much prior to alleged date of his arrest and police exploited him to a good extent. Accused persons tried to impress upon this court that even if story of the police was accepted that Somesh Dua was apprehended and arrested on 8/1/2007 still recovery of stolen gold jewelery articles is shown effected by that accused on 13/1/2007 that too from his residential house. It would be kept in that wooden almirah from where it was stated to have been taken out by accused Somesh Dua despite family people of accused Somesh Dua knowing well that he was in :15: police custody for so many days could be a circumstance for any one to believe. Accused themselves submitted that nonjoining of any independent witness by the police provides them uncontrol and unchecked power to deal with human beings in a manner that their power to exploit the situation unchecked and uncontrolled. This court has nothing more to deliberate on this point except to observe that the senior police officers unless supervise investigation in such matters situation is to deteriorate.
22. Testimony of victim C.V.Dinesh has brought on record that accused persons having succeeded in inviting victim to a restaurant in Connaught Place on 30/10/2007 made him to take or consume some intoxicating or unwholesome drug whereby he became unconscious. They further succeeded in taking him away and brought him in police station Mandir Marg area, removed valuables from his person which included a gold chain with locket, a gold bracelet, his bank credit card from ABN Amro and a few other articles and accused persons then left victim abandoned in his Wagon R vehicle. Since both accused along with witness Rajesh Kalidass PW3 and the victim were together till victim became unconscious and was brought to Lady Harding Medical College and from there when Rajesh Kalidass was sent inside to locate emergency and by the time he came out he found victim as well accused persons absent from that site, inference can be drawn that accused persons took away victim and brought him to Mandir Marg area and then committed theft of above described valuables from the person of C.V.Dinesh. Charge U/s 328/379/34 IPC can be found :16: to have been duly proved. Section 328 IPC provides for an offence of causing hurt by means of poisoning etc with intent to commit an offence. All the ingrediants of offence are found established from the testimony of the victim supported by the testimony of Rajesh Kalidass.
23. Charge U/s 420/468/471/34 IPC has not been proved. Prosecution claimed to have sent the purchase bill slip of mobile phones taken out of bank credit card swap machine and signed by one of the accused representing as Deepak Arora and sent to FSL for handwriting expert opinion but then till date FSL report had not been brought on the file. As seen above testimony of IO as regard recovery of that mobile phone Nokia was completely irresponsible statement and accordingly prosecution case was closed on that stage. Charge U/s 420/468/471/34 IPC fails but then charge U/s 328/379/34 IPC is found duly proved against both accused. I convict both accused for the said offences.
Announced in the Open (J.R.ARYAN) court on 21/09/2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
:17:IN THE COURT OF SH. J. R. ARYAN ADDITIONAL SESSIONS JUDGE, NEW DELHI S.C No. 09/2010 State Vs. Manish Soni etc FIR No. 738/07 U/s 328/379/34IPC PS: Connaught Place.
1. Manish Soni S/o Om Parkash Soni 71/48 Prem Nagar, Janakpuri, Delhi.
2. Sachin Gandhi S/o Madan Lal Gandhi R/o 483 Sector4, Karnal Ext.
Haryana.
ORDER ON SENTENCE:
Both sides have been heard on the point of sentence. Accused submitted that prior to their involvement in series of incident including incident of the present case they did not have any other criminal involvement. They submitted that in most of their other cases wherein they had been convicted, a sentence of 4 years imprisonment with a fine has been imposed and out of that substantive sentence of 4 years they had already spent most of that part of substantive sentence in jail and they prayed for similar lenient view in the present case so that by availing benefit of Section 428 Cr.P.C they come out and lead a meaningful life. Accused Manish Soni submitted that his family which includes small kids are without care and protection ever since he has been in jail and let he have an opportunity to take care of them. Ld APP on the other hand pointed :18: out that offences committed by accused persons against innocent/nonsuspecting victims where serious crimes and they deserve to be dealt with accordingly. I have considered these aspects.
Accused themselves have admitted their involvement in several other cases of similar and same nature wherein they have been convicted. In the totality of facts and circumstances I find a proper and appropriate sentence to be passed against both accused would be;
An R.I for 5 years with a fine of Rs.25,000/ in default of payment of which to further undergo R.I for 6 months is awarded to both accused U/s 328/34 IPC. A further sentence of 2 years R.I with fine of Rs. 5,000/ in default of payment of which accused shall undergo R.I for 3 months is awarded U/s 379/34 IPC. Substantive sentences in two offences shall run concurrent. Period undergone by accused persons during trial shall be set off against their substantive sentence.
Announced in the Open (J.R.ARYAN) court on 29/09/2011. ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.:19:
S.C No. 09/2010 State Vs. Manish Soni etc FIR No. 738/07 U/s 328/379/34IPC PS: Connaught Place.
29/09/2011
Present: Addl. PP for State.
Both convict produced from J.C.
Arguments heard from both sides on the point of sentence. Vide separate order convicts have been sentenced to undergo R.I for 5 years with a fine of Rs.25,000/ in default of payment of which to further undergo R.I for 6 months is awarded to both accused U/s 328/34 IPC and a further sentence of 2 years R.I with fine of Rs. 5,000/ in default of payment of which accused shall undergo R.I for 3 months is awarded U/s 379/34 IPC. Substantive sentences in two offences shall run concurrent. Period undergone by accused persons during trial shall be set off against their substantive sentence. Copy of judgment and order on sentence be supplied to them free of cost. File be consigned to record room.
(J.R.ARYAN) ADDITIONAL SESSIONS JUDGE (01) NEW DELHI DISTRICT, NEW DELHI.
29/09/2011.