Delhi District Court
S.C.96/10 State vs . Rajender 1/10 on 15 October, 2012
IN THE COURT OF SHRI RAJEEV BANSAL, ASJ03,
SOUTH DISTRICT, SAKET COURTS, NEW DELHI.
S.C. No. 96/10
(Unique ID No. 02403R0264572010)
FIR No.135/10
PS: Saket
U/S: 399/402 IPC &
25 Arms Act.
STATE
Vs.
Rajender S/o Sh. Ramji Lal
R/o K462, Ambedkar Nagar,
New Delhi.
Date of Initial Institution : 14.07.2010
Date of institution in the Present Court : 07.10.2010
Date of Reserving Order : 01.10.2012
Date of Pronouncement Order :15.10.2012
JUDGMENT
1. The prosecution case is that on 18.05.2010 at about 9:40 p.m., a S.C.96/10 State Vs. Rajender 1/10 secret information was received that about 4-5 persons are likely to assemble at around 10:30 p.m in DDA Park, Dhola Peer for the purpose of committing dacoity. The informant also revealed that they would be carrying illegal arms with them. After taking necessary permission, a raiding party was formed consisting of HC Kuldeep, HC Ravinder, HC Suresh, Ct. Parveen and Ct. Sandeep. HC Kuldeep was sent in civil dress to the spot. About 4-5 persons from public were asked to join the raiding party but they all declined and due to shortage of time, no notice could be given to them. Raiding party reached the DDA Park, Dhola Peer at 10:20 p.m and they were stationed at the corners of the park. HC Kuldeep alongwith the secret informer were asked to go to park and to listen to the planning and in case the suspected persons were found to be talking about the dacoity, instructions were given to him to give a signal by lighting the lighter. SI Prashun took his position at the main gate of the DDA Park. After sometime, five boys, one after another, came on foot from Village Lado Sarai side and they assembled in the park on the Dhola Peer side corner. The secret informer signaled to the SI and confirmed that they were the same persons about whom he had given the information. All the five boys after assembling started talking/discussing. Shadow witness HC Kuldeep alongwith the secret informer clandestinely heard their talks. At about 10:50 p.m, the pre-decided signal of lighting the lighter was given. SI Prasun, with the help of raiding party, encircled all the five persons, giving them warning that nobody should try to escape. However, when all the five persons attempted to escape, they were overpowered by the raiding party. The secret informer went off from the side. SI Prasun alongwith HC Kuldeep S.C.96/10 State Vs. Rajender 2/10 overpowered Sunny and from his search a buttondar knife was seized. Thereafter, sketch of the knife was prepared. The length of the knife was 32 cm in all which consisted of 15 cm blade and 17 cm handle. Knife was converted into Pullanda and was sealed. HC Ravinder overpowered Rajender and from his possession also a buttondar knife was recovered from his pant. Sketch of the knife was prepared on a paper. This knife was also 32 cm in size which consisted of 17 cm of handle and 15 cm of blade. The knife was converted into pullanda and was sealed. HC Suresh overpowered Raj Kumar and from his personal search, an Ustra was recovered. The sketch of this Ustra was prepared and it was revealed that Ustra was 21 cm long which consisted of 9 cm of blade and 12 cm of handle. This was converted into pullanda and was sealed. Ct. Parveen had overpowered Jogender and from his personal search, a surgical blade was recovered from his pant. The blade was found to be 3.7 cm in length. The sketch of the surgical blade was prepared and thereafter it was converted into pullanda and was duly sealed. Ct. Sandeep searched the accused Sunder and from his personal search, it was found that Sunder was wearing a three meter nylon rope of yellow colour around his waist. The rope was converted into pullanda and was duly sealed. Shadow witness HC Kuldeep informed SI Prashun that all the five persons were planning to commit dacoity in G-Block Saket and Sunny was their Leader who was telling the other persons about the planning of dacoity.
2. Investigation was completed and all the five persons were arrested. Challan was filed against all the five persons. Charge was S.C.96/10 State Vs. Rajender 3/10 framed against the accused persons under Section 399/402 IPC. Apart from it, charge under Section 25 of the Arms Act was also framed against the accused Sunny and Rajender for possession of buttondar knives and against the accused Raj Kumar for keeping an Ustra. Charge was read over and was explained to all the five accused persons, who pleaded not guilty and claimed trial.
3. Prosecution had examined PW-1 Anil Yadav, who brought a copy of Notification dated 17.02.1979 issued by Under Secretary, Home General, Delhi Administration which prohibits possession of carrying of buttondar knives with sharp edged blade of 7.12 cm or more and proved the same as Ex. PW1/A.
4. PW-2 HC Suresh Kumar was examined, who was the member of the raiding party. He had apprehended accused Raj Kumar and proved his arrest memo as Ex.PW2/C and personal search memo as Ex. PW2/D. He also seized Ustra from the accused Raj Kumar, sketch of which was proved as Ex.PW2/A.
5. PW-3 Naresh Kumar was examined, who had registered the FIR No. 135/10 after receiving the rukka which was brought by Ct. Sandeep after it was sent by SI Prashun. He proved FIR as Ex. PW3/A. He also proved of making endorsement rukka as Ex.PW3/B.
6. After examination of these three witnesses and when the prosecution evidence was in progress, accused Sunny, Jogender, Raj Kumar and Sunder have moved their separate applications for S.C.96/10 State Vs. Rajender 4/10 pleading guilty voluntarily. In view of the applications of these four persons, their statements were recorded in which they stated that they are pleading guilty of their own free will and without any pressure. Vide order dated 10.10.2011, all these four accused persons were convicted under Section 399/402 IPC. Accused Sunny and Raj Kumar were also convicted under Section 25 of the Arms Act. Vide order dated 20.10.2011, all these four accused persons were sentenced to suffer the imprisonment of the period already undergone by them with separate fine for all the offences.
7. Thereafter, the trial proceeded for accused Rajender. PW-4 HC Ravinder stated that on 18.05.2010, he received a telephone call from SI Prasun that he had some secret information regarding notorious persons, who indulge in committing robbery etc and he asked this witness to reach at Asian Market, Pushp Vihar where he reached at 10:15 p.m. SI Prasun, HC Kuldeep, HC Ravinder, Ct. Sandeep, Ct. Praveen and secret informer met him. SI Prasun briefed the raiding team and asked all of them to reach DDA Park, Laddo Sarai, near Dhola Peer where they reached at about 10:30 p.m. HC Kuldeep was in civil dress and he was made a shadow witness. SI Prasun directed him to hear the conversation of the persons, who gathered for committing the crime and to give signal by lighting the lighter after hearing their conversation. At about 10:35 p.m, five persons came one by one inside the corner of the park towards Dhola Peer and after hearing their conversation, HC Kuldeep gave the signal by lighting the lighter. The said persons were encircled and apprehended. PW-4 HC Ravinder apprehended Rajender and proved his arrest memo as S.C.96/10 State Vs. Rajender 5/10 Ex.PW4/C and his personal search memo as Ex. PW4/D. From his search, one buttondar knife was recovered. Sketch of the knife was proved as Ex.PW4/A and its seizure memo was proved as Ex. PW4/B. SI Prasun prepared the rukka and the same was handed over to Ct. Sandeep, who left with the Rukka at about 11:45 p.m for registration of the FIR and he came back at the spot with SI Abraham Karkatta with original Rukka and copy of FIR at 1:15 a.m on 19.05.2010. Further investigation of the case was handed over by SI Prasun to SI Abraham Karkatta, who arrested the accused Rajender vide arrest memo Ex.PW4/C. The knife recovered from accused Rajender was identified and is Ex. P-2.
8. PW-5 SI Abraham, who was the second IO, stated that on 18.05.2010 at about 11:55 p.m on the direction of the SHO, he reached at DDA Park, Laddo Sarai where SI Prasun Kumar and other staff met him and handed him over the custody of five accused persons alongwith five sealed pullandas. He prepared the site plan of the spot which he proved as Ex.PW5/A, proved arrest memo of accused Rajender as Ex. PW4/C. He identified accused Rajender in the court.
9. PW-6 SI Prasun is the first IO, who stated that on 18.05.2010 at about 9:40 p.m, he alongwith HC Kuldeep were on area patrolling duty at Asian Market, Sector-3, Pushp Vihar, New Delhi. In the meantime, he received a secret informer through a secret informer that 4-5 persons, who used to commit robbery, will come at DDA Park, Dhaula Peer. He shared this information with SHO and he directed to S.C.96/10 State Vs. Rajender 6/10 take appropriate action. Thereafter, he called HC Ravinder, HC Suresh, Ct. Praveen, Ct. Sandeep at the spot and prepared a raiding team and shared the information with them. They reached Dhola Peer at 10:20/10:30 p.m and encircled the park. HC Kuldeep was made a shadow witness and he was directed to give the signal by lighting the lighter, if the information was found to be correct. At about 10:35 p.m , five boys came from the side of Laddo Sarai. At about 10:50 p.m. HC Kuldeep gave the signal by lighting the lighter and after that they apprehended all the five boys. HC Ravinder apprehended accused Rajender from whose search, a buttondar knife was recovered. He prepared the sketch of the recovered knife as Ex. PW4/A which was seized vide seizure memo Ex. PW4/B. He prepared the rukka Ex.PW6/A which was handed over to Ct. Sandeep for registration of FIR, who left with rukka at about 11:45 p.m. Thereafter, SI A. Karkatta came to the spot after about one hour alongwith Ct. Sandeep. He handed over the case property and custody of the accused persons to SI Karkatta, who prepared site plan as Ex. PW5/A and arrested accused Rajender vide Ex. PW4/C. He identified the knife as Ex.P-2 and also identified the accused.
10. All the incriminating material was put to the accused in his examination under Section 313 Cr.P.C wherein he had stated that nothing was recovered from his possession. He stated that he has been wrongly arrested and was lifted from Pushp Vihar and was later on implicated in the present case. However, no defence evidence was led by him.
S.C.96/10 State Vs. Rajender 7/10
11. Ld. Counsel for the accused has stated that the accused has faced trial under Section 399/402 IPC. He has stated that the offence under Section 399 IPC relates to preparation to commit dacoity and the same is not made out against the accused as nothing has been proved that he was making any preparation for committing dacoity. It has been stated that there is no evidence as to where the alleged dacoity was to be committed. It has been further stated that there is no evidence regarding receipt of any secret information nor is there any permission of senior officers to form a raiding party and in the absence of any public witness regarding the alleged raid, the case of the prosecution becomes doubtful. Further, it has been stated that HC Kuldeep, who was the shadow witness, was not examined by the prosecution and there is no deposition as to what he heard and in the absence of his deposition, the case cannot be proved. Ld. Counsel has therefor prayed for acquittal of the accused Rajender.
12. On the other hand, Ld. Addl. PP has stated that other four co- accused persons had already pleaded guilty and they were convicted under Section 399/402 IPC and, therefore, the present accused Rajender cannot be heard to plead innocence. It has been stated that one buttondar knife was recovered from the search of the accused which is in contravention of the Notification of the Delhi Government and, therefore, the offence under Section 25 of the Arms Act is also made out against the accused.
13. Ld. Counsel for the accused persons as well as the Ld. Addl. PP have been heard. Section 399 IPC makes preparation for committing S.C.96/10 State Vs. Rajender 8/10 dacoity, an offence. Section 402 IPC makes assembling for the purpose of committing dacoity, a punishable offence. Vide order dated 10.10.2011, other four co-accused persons, namely, Sunny, Jogender, Raj Kumar and Sunder were convicted under Section 399/402 IPC. Accused Sunny and Raj Kumar were also convicted under Section 25 of the Arms Act.
14. The argument of the Ld. Counsel for the accused that no preparation as required under Section 399 IPC has been proved, suffers from the inherent defect that a knife measuring 32 cm was recovered from the possession of the accused, which he failed to account for. He has simply stated in his examination under Section 313 Cr.P.C that nothing was recovered from him and he was falsely implicated in this case. He, however, did not produce any defence evidence in support of his claim. The argument that there is no evidence as to where the alleged dacoity had to be committed and non-examination of shadow witness HC Kuldeep is also not relevant as other four co-accused persons had pleaded guilty and were convicted under Section 399/402 IPC. All the arguments raised by the Ld. Counsel for the accused loose their sting as in this case, four out of the five accused persons had pleaded guilty to the offence under Section 399/402 IPC. The offences under Section 399/402 IPC requires the involvement of five or more persons. Five persons were arrested by the Police and out of those five, four pleaded guilty and were convicted. No judicial pronouncement has been placed on record by the Ld. Defence counsel to the effect that in an offence under Section 399/402 IPC where four co-accused persons have S.C.96/10 State Vs. Rajender 9/10 pleaded guilty, one may claim innocence. Offence for preparation of dacoity and assembling for the purpose of committing dacoity necessarily requires the presence of five or more persons and when four persons plead guilty, one cannot be believed to say that he was falsely implicated in the case. The registration of FIR was proved by PW-3 HC Naresh Kumar. Receiving of secret information regarding assembling of the accused persons at Dhola Peer was proved by PW-6 SI Prasun. Formation of raiding team and the raid was proved by PW-6 Prasun, PW-2 HC Suresh Kumar and PW-4 HC Ravinder. The recovery of knife measuring 32 cms (17 cm handle and 15 cm blade) from accused Rajender was proved by PW-4 HC Ravinder and PW-6 SI Prasun. Anil Yadav, UDC from Department of Home, Delhi Government, proved copy of Notification dated 17.02.1979 as Ex.PW1/A, according to which, possession of any knife having a blade of more than 7.12 cm in length was prohibited. The seizure memo of this knife was also proved by PW-4 HC Ravinder and PW-6 SI Prasun. Arrest of the accused was proved by PW-5 SI Abraham and PW-4 HC Ravinder as Ex. PW4/C.
15. Accused Rajender is, therefore, convicted under Section 399/402 IPC. He is also convicted under Section 25 of the Arms Act, 1959.
Announced in the open court. ( Rajeev Bansal )
Dated:15.10.2012 ASJ-3/South District
Saket Courts, New Delhi
S.C.96/10 State Vs. Rajender 10/10