Delhi District Court
State vs . Ashok Kumar & Ors. on 21 May, 2012
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Ashok Kumar & Ors.
FIR No. 84/94.
U/s. 356/379/411/34 IPC.
PS Shalimar Bagh,Delhi.
JUDGMENT
a) The sl. no. of the case : 234/5.
b) The Unique ID No. of the case : 02401R0012261994.
c) The date of commission of the : 10/03/1994.
offence
d) The date of institution of case : 20/09/1994.
e) The name of the complainant : Smt. Swaraj Kapoor.
f) The name & address of accused : 1. Raju Punjabi S/o Sh. Om Prakash, R/o. House of Guruji, AA Block, Shalimar Bagh, Delhi.
2. Ganesh Mandal S/o Sh. Vishnu Mandal, R/o Village Bharko, PS Amarpur, Distt. Bhagal Pur, Bihar.
3. Ashok Kumar S/o.
Sh. Hanuman Prasad, R/o Village Mahesh Pur, P.O. Ghogga, Distt. Bhagal Pur, Bihar.
g) The offence complained of : U/s. 356/379/411/34 IPC.
h) The plea of the accused : pleaded not guilty. i) The date of reserving the order : 25/04/2012. FIR No. 84/94 PS Shalimar Bagh 1 j) The final order : Accused Ganesh Mandal & Raju Punjabi Both Acquitted U/s. 356/379/411/34 IPC Accused Ashok Kumar Convicted U/s. 411 IPC. k) The date of such order : 15/05/2012. THE BRIEF REASONS FOR THE JUDGMENT :
1. The prosecution case, in brief, is that on 10/03/1994, a complaint was made by the complainant Smt. Swaraj Kapoor regarding snatching of her gold chain, which she wore in her neck. On this complaint, the FIR was registered and investigation was conducted. During investigation by the police officials, accused persons Ganesh Mandal, Ashok Kumar, Raju Punjabi and Shanti @ Sunny (already convicted) were apprehended on 25/07/1994 in another case and from their possession, the said gold chain was recovered, which all of whom in furtherance of their common intention had either snatched from Smt. Swaraj Kapoor or received or retained knowing or having reasons to believe the same to be stolen property. The information regarding arrest of accused persons was given to the IO of this case and after investigation, the challan was filed by the police.
2. Complete set of copies were supplied to the accused persons and after hearing arguments, charge was framed against the accused persons for trial of offences U/s. 356/379/411/34 IPC, by my Ld. Predecessor to which they pleaded not guilty and claimed trial.
FIR No. 84/94 PS Shalimar Bagh 2
3. In support of its case, the prosecution examined PW.1 complainant Smt. Swaraj Kapoor, who had proved her complaint Ex. PW1/A given to the police and also identified the chain vide Ex. P1 vide copy of TIP proceedings Ex. PW1/B. PW.2 is HC Prem Singh, Duty Officer, who has proved the copy of FIR vide Ex. PW2/A and endorsement on rukka vide Ex. PW2/B. PW.3 is IO SI (now Inspector) Pankaj Sood, who had investigated the case and proved site plan vide Ex. PW3/A, disclosure statements of accused persons vide Ex. PW3/B to Ex. PW3/D, pointing out memo of spot vide Ex. PW3/E, personal search of accused Ashok Kumar vide Ex. PW3/F, disclosure statement of accused Ashok Kumar vide Ex. PW3/G, seizure of pullanda containing chain vide memo Ex. PW3/H, pointing out memo of spot by accused Ashok Kumar vide memo Ex. PW3/J, copy of TIP proceedings vide Ex. PW3/K and also identified the chain vide Ex. P1. PW.4 is Sh. Manoj Kumar Jain, Ld. ASJ, Rohini Courts, who had conducted the TIP of case property vide Ex. PW4/A and TIP of accused vide Ex. PW4/B. PW.5 Ct. Anang Pal and PW.8 Ct. Narender, had joined the investigation with ASI Ram Kumar and deposed about the investigation proceedings conducted in case FIR No. 264/94. PW.6 is retired ASI Ram Kumar, who had investigated case FIR No. 364/94. PW.7 is HC Prabhu Dayal, who had joined the investigation alongwith IO SI Pankaj Sood.
4. Statement of accused persons were recorded separately U/s. 313 CrPC, wherein they pleaded innocence and false implication in this case, however, they did not wish to lead evidence in support of their defence. FIR No. 84/94 PS Shalimar Bagh 3
5. I have heard arguments from Ld. APP for State, all the accused persons and also gone through the evidence and documents on record carefully.
6. To prove the offence U/s. 356/379/411/34 411 IPC the prosecution has to prove that all the accused persons in furtherance of their common intention used criminal force to the complainant Smt. Swaraj Kumar and snatched her gold chain or had dishonestly received or retained the same in their possession knowing or having reason to believe the same to be stolen property. The prosecution has examined 8 witnesses in total.
7. PW1 complainant Ms. Swararj Kapoor deposed that on 10/03/1994, she was returning from her daughter's house in a bus of route number 160 and after leaving the bus at AEBlock bus stand, Shalimar Bagh when she was going towards her house she noted that two boys were chasing her and at about 9:30 pm when she opened the gate of her house, the said boys snatched her gold chain and fled away with other two boys who were also present there. She deposed that on raising alarm public persons chased them but they fled away and she made a complaint Ex. PW1/A to the police. She deposed that she could not identify the accused persons due to weakness of her eyesight. She further deposed that IO SI Pankaj Sood took her to Tis Hazari Courts to identify the accused persons but all the accused persons had refused to join the TIP. She further deposed that on 28/07/1994 she had gone to Tis Hazari Courts where she had identified her chain in TIP proceedings in the presence of Ld MM. She deposed that IO recorded her statement. She identified the FIR No. 84/94 PS Shalimar Bagh 4 chain in the court by pointing out the design and words KDM embedded on the said chain.
PW5 Ct. Anang Pal was part of the team which had recovered the prohibited knife from accused Ganesh Mandal. He deposed that on 24/07/1994, he alongwith constable Mahender, Ct. Mange Ram (DHG) and IO ASI Ram Kumar was on checking at ACT Point, Shalimar Bagh in case FIR No. 264/94, U/s. 25 Arms Act, and apprehended accused Ganesh Mandal with one buttondar knife. He further deposed that accused Ganesh Mandal was arrested and made a disclosure statement Ex. PW3/D regarding involvement in this case regarding snatching of chain of a women at AA Block, Shalimar Bagh.
PW6 IO retired ASI Ram Kumar and PW8 Constable Narender have deposed similar to the deposition of PW5 Ct. Anang Pal and have corroborated him regarding the arrest of the accused Ganesh mandal. PW6 has also deposed that after the arrest of accused Ganesh mandal other accused persons namely Raju Punjabi, Gopal @ Gatter and Shanti @ Sanni were also arrested.
PW3 SI (now Inspector) Pankaj Sood deposed that on 10/03/1994, on receipt of DD No. 18A regarding theft, he alongwith PW8 constable Kuldeep reached near Kela Godown where he met with complainant Smt. Swaraj Kapoor and recorded her staement Ex. PW3/A. He deposed that FIR No. 84/94 PS Shalimar Bagh 5 rukka Ex. PW2/B was prepared and the case was got registered through PW8 constable Kuldeep and he searched for accused persons. He deposed that on 25/07/1994 he alongwith constable Prabhu Dayal was going nearby PS Shalimar Bagh, where complainant met him and told that she had gone to PS and had seen three accused persons who had already been arrested in some other case and she had identified those accused persons as the persons who had snatched her chain alongwith one another accused namely Ashok Kumar and also told him the name of that accused persons as Raju Punjabi, Shanti Kumar and Ganesh Mandal. He deposed that he went to PS and met PW6 SI Ram Kumar, who informed him about the arrest of accused Ganesh Mandal in case FIR No. 264/94, U/s. 25 Arms Act, PS Shalimar Bagh and on his disclosure statement, he also arrested accused Shanti Kumar and Raju Punjabi and all the accused persons had disclosed their involvement alongwith one Ashok Kumar in this case. He further deposed that he also interrogated all the accused persons and formally arrested them in this case and all of them took him to the spot and he prepared pointing out memo Ex. PW3/E and all the accused persons were produced in the court. He further deposed that after obtaining one day PC remand of accused Raju Punjabi, he took him to PS for further interrogation and on specific information he raided at the jhuggi of Ashok Kumar at Kela godown, Shalimar Bagh and detained him and accused Raju Punjabi identified accused Ashok Kumar. He deposed that after interrogation he arrested accused Ashok Kumar. He further deposed that accused Ashok Kumar got recovered the snatched chain of the complainant from his jhuggi which was kept in a used trunk. He further deposed that the FIR No. 84/94 PS Shalimar Bagh 6 chain was kept in a match box which was kept in a pullanda and sealed with the seal of PS and the seal after use was handed over to constable Prabhu Dayal and was seized vide memo Ex. PW3/H. He further deposed that both the accused persons were sent to J/c on 26/07/1994 and the date of TIP of case property was fixed for 28/07/1994 and the complainant had identified her chain in the court during TIP proceedings, copy of which are Ex. PW1/B. He further deposed that the date of TIP of accused was fixed for 30/07/1994 and on that day the accused had refused to join the TIP proceedings in the Jail. He further deposed that the statement of witnesses was recorded. He had identified the chain in court recovered from the possession of accused Ashok vide Ex. P1.
The testimony of PW3 IO Inspector Pankaj Sood regarding conducting of investigation in this case has been corroborated by PW8 HC Prabhu Dayal and the proceedings of TIP of case property as well as accused Ashok Kumar have been corroborated by complainant / PW1 Smt. Swaraj Kapoor and PW4 Sh. Manoj Kumar Jain, Ld. ASJ, Rohini Courts, Delhi.
8. PW1 complainant Smt. Swararj Kapoor has deposed about the theft of her gold chain which she was wearing in her neck and has proved her complaint Ex. PW1/A. She deposed that she could not identify the accused persons due to weakness of her eyesight as she was 72 years old, however she identified the chain as the one which was snatched by the accused persons on the date of incident. The accused Ashok Kumar has led no defence to prove that the stolen gold chain was not recovered at his instance or from his possession; FIR No. 84/94 PS Shalimar Bagh 7 neither could he discredit the testimonies of the PWs, nor accounted for the possession of the stolen chain. The court has no reason to disbelieve the testimonies of the prosecution witnesses, who have corroborated each other in all material aspects about the theft of gold chain from the possession of complainant Smt. Swaraj Kapoor and later recovery of the same at the instance of accused Ashok Kumar from his jhuggi.
9. Hence, in view of the above observation and discussion and the evidence on record, in my opinion, the prosecution has failed to prove its case against accused Raju Punjabi and Ganesh Mandal beyond all shadows of reasonable doubt that the snatched gold chain was recovered from their possession or at their instance. Hence, I hereby acquit accused Raju Punjabi and Ganesh Mandal for the offence U/s. 356/379/411//34 IPC. The bail bonds of accused Raju Punjabi and Ganesh Mandal shall remain bound for another six months U/s. 437A CrPC. However, the prosecution has successfully proved its case against accused Ashok Kumar that he was found in possession of the stolen gold chain in his jhuggi, which he dishonestly received or retained knowing or having reason to believe the same to be stolen property. Therefore, I hereby hold accused Ashok Kumar guilty of the offence U/s. 411 IPC and convict him accordingly. Order on sentence shall be announced after hearing the accused Ashok Kumar.
ANNOUNCED IN THE OPEN
COURT ON 15/05/2012. (VISHAL SINGH)
(Copies 1 + 1) Metropolitan Magistrate,
Delhi
FIR No. 84/94
PS Shalimar Bagh 8
IN THE COURT OF SH. VISHAL SINGH : MM : DELHI
State Vs. Ashok Kumar & Ors.
FIR No. 84/94.
U/s. 356/379/411/34 IPC.
PS Shalimar Bagh,Delhi.
ORDER ON SENTENCE
Present: Ld APP (Subs.) for State.
Accused/Convict Ashok Kumar is present on bail.
Ms. Shashi Jaiswal, Ld. Legal Aid Counsel for the accused. Arguments on sentence heard. It is argued by the Ld. Legal Aid Counsel for the accused that it is an old case of the year 1994 and convict is facing trial for the last more than 17 years. It is further stated that facing trial for such a long period is itself a punishment for the convict and hence he is entitled to benefit of probation for good conduct. It is further stated that the convict is not a habitual offender and has not been previously convicted by any competent court of law. It is further stated that the convict is aged around 45 years and he is the only bread earner of his respective family, having three minor children and wife to look after.
On the other hand, it is stated by Ld. APP that the only fact that it is an old case does not entitle the convict for any lenient view. It is further stated by Ld. APP that convict deserves maximum punishment. FIR No. 84/94 PS Shalimar Bagh 9
The convict Ashok Kumar was found possessing of stolen gold chain belonging to complainant Smt. Swaraj Kapoor, which he received or retained knowing or having reasons to believe the same to be stolen property. Considering the facts and circumstances of the case and the recovery of stolen chain from the possession/house of the accused, I do not find it a fit case for grant of probation. I hereby sentence the accused/convict Ashok Kumar for a period of two years RI for the offence U/s. 411 IPC and further to pay a fine of Rs. 5,000/ i.d. to undergo six months simple imprisonment. The sentence shall run concurrently and benefit of section 428 Cr.P.C is given to the convict and any previous imprisonment suffered by him in this case shall be set off against the substantive period of imprisonment imposed on him. File be consigned to Record Room.
Copy of Judgment and order on sentence be provided to the convict free of cost.
ANNOUNCED IN THE OPEN
COURT ON 21/05/2012 (VISHAL SINGH)
Metropolitan Magistrate
(Copies 1 +1) Delhi
FIR No. 84/94
PS Shalimar Bagh 10
State Vs. Ashok Kumar & Ors.
FIR No. 84/94.
U/s. 356/379/411/34 IPC.
PS Shalimar Bagh,Delhi.
21/05/2012
Pr. Ld. APP (Subs.) for State.
Accused/convict Ashok Kumar on bail.
Ms. Shashi Jaiswal, Ld. Legal Aid Counsel for the accused. Heard arguments on the point of sentence. Vide separate order, announced in the open court, the accused/convict is sentenced for a period of two years RI for the offence U/s. 411 IPC and further to pay a fine of Rs. 5,000/ i.d. to undergo six months simple imprisonment. The sentence shall run concurrently and benefit of section 428 Cr.P.C is given to the convict and any previous imprisonment suffered by him in this case shall be set off against the substantive period of imprisonment imposed on him.
At this stage, accused Ashok Kumar moved an application U/s. 389 CrPC for grant of bail and for appeal against the judgment and order on sentence. Heard. Accused was on bail during the trial. He is admitted to bail on furnishing PB in the sum of Rs. 20,000/ with one surety of like amount subject to payment of fine. Fine paid. BB furnished, considered and accepted till one month from today. File be consigned to Record Room.
BB of accused/convict be put up on 21/06/2012 at 2:00 pm. MM:DELHI 21/05/2012 FIR No. 84/94 PS Shalimar Bagh 11