Delhi District Court
State vs Harveer Etc on 22 March, 2012
241/08
S/v Harveer etc
22.03.2012
Pre: Ld. APP for the state.
Convict persons are JC.
ld. Counsel Sh. Ashutosh Bharadwaj for convict Harveer.
ld. Counsel Sh. Harender Singh for accused Pawan.
Proxy Counsel Sh. Rajiv Sharma for main counsel Ms. Priya Mahajan,
Amicus Curiae for convict Suesh @ Kalu and Dharmender.
Vide separate order placed along side in the file, convict
1.Harveer is sentenced to undergo 3 years R.I. and to pay a fine of Rs.
7000/ in default 9 months further RI for the offence u/s 411 IPC; Convict
2.Suresh @ Kalu and 3.Dharmender are sentenced to undergo 6 years R.I.
and to pay a fine of Rs.2000/ each in default 3 months further RI for the
offence u/s 392/ 34 IPC; Convict 4.Pawan is sentenced to undergo 6
years R.I. and to pay a fine of Rs.3000/ in default 3 months further RI for
the offence u/s 392/ 34 IPC ; and further convict Pawan is sentenced to
undergo 3 years R.I. and to pay a fine of Rs.1500/ in default 2 months
further RI for the offence u/s 411 IPC. Both the sentences shall run
concurrently. Benefit of section 428 Cr. PC be given to all the convict
persons. Copy of this order and judgment be given to the convict at free of
cost forthwith. File be consigned to record room.
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
FIR no.241/08
State Vs Harveer etc
1/
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 267/1/10
FIR No. 241/08
State Vs Harveer Singh etc
Police Station Kirti Nagar
Convicted under section 392/34 IPC & 411 IPC
ORDER ON THE POINT OF SENTENCE
22.03.2012
Pre: Ld. APP for the state.
Convict persons are JC.
ld. Counsel Sh. Ashutosh Bharadwaj for convict Harveer.
ld. Counsel Sh. Harender Singh for accused Pawan.
Proxy Counsel Sh. Rajiv Sharma for main counsel Ms. Priya
Mahajan, Amicus Curiae for convict Suesh @ Kalu and Dharmender.
ld. APP submits that offence of such types are increasing day
by day. Ld. APP further submits that accused Pawan has been
convicted for the offence punishable u/s 392/ 34 & 411 IPC ;Accused
Suresh and Dharmender have been convicted for the offence
punishable u/s 392/ 34 IPC; Accused Harveer has been convicted for
the offence punishable u/s 411 IPC. Ld. APP further argues and
submits that accused persons namely Pawan, Dharmender, Suresh
and Harveer, have been acquitted for the offences punishable u/s
395/397/412 IPC by giving them benefit of doubt.
FIR no.241/08
State Vs Harveer etc
2/
Ld. APP further submits that all the accused persons along with
their coaccused Amit @ Magroo (PO) in furtherance of their common
intention robbed Rs.1,68,000/ and a cycle and other articles from the
factory by overpowering the two security guards. They all used
weapons including chhani and hammer in commission of crime. On
these grounds ld. APP submits that convict persons do not deserve for
any leniency hence maximum punishment be awarded to the convict
persons.
Contrary to it, ld. Counsel Sh. Ashutosh Bharadwaj for convict
Harveer submits accused is a very poor person. He has a wife and
one male child to look after. He has also old father to look after. His
mother has expired. He is the only member in his family to look after
them. Ld. Counsel further submits that convict Harveer is in JC w.e.f.
05.11.2008. He has no previous criminal antecedents.
ld. Counsel Sh. Harender Singh for convict Pawan submits that
convict Pawan accused is also a very poor person. He is unmarried.
He has old parents to look after. At the time of occurrence he was 22
years old. Ld. counsel again argued and submits that he is in JC
w.e.f. 05.11.2008. Accused has no criminal antecedents.
FIR no.241/08
State Vs Harveer etc
3/
Ld. Proxy counsel Sh. Rajiv Sharma submits in respect of
convict Suresh @ Kalu that he is also a very poor person. He is
unmarried. He has old parents to look after. There is no other male
family member except convict. Father of convict is in hospital for
treatment of T.B. and other ailments. During the pendency of the case
the elder brother of convict Suresh @ Kalu has expired in young age.
At the time of occurrence he was 21 years old. Ld. counsel again
argued and submits that he is in JC w.e.f. 05.11.2008. Convict is the
only earning member in his family. There is no conviction in other
case.
Ld. Proxy counsel Sh. Rajiv Sharma submits in respect of
convict Dharmender that he is also a very poor person. He has a wife
and two minor female children one aged about 2½ years and another
aged about 4 years respectively to look after. He is the only member
in his family to look after them. Ld. Counsel further submits that
convict is in JC w.e.f. 20.10.2009. There is no conviction in other
case.
On these grounds ld. counsel for convict persons pray for
release of convict persons on probation of good conduct or against the
period already undergone by them during the course of trial, taking
lenient view at the time of awarding the sentence.
FIR no.241/08
State Vs Harveer etc
4/
I have heard the submissions of ld. counsel for the convict and
ld. APP as well. To my view the ends of justice will be met if
accused / convict Harveer is sentenced to undergo 3 years R.I. and to
pay a fine of Rs.7000/ in default 9 months further RI for the offence
u/s 411 IPC;
Again to my view ends of justice will be met if accused Suresh @
Kalu and Dharmender are sentenced to undergo 6 years R.I. and to
pay a fine of Rs.2000/ each in default 3 months further RI for the
offence u/s 392/ 34 IPC;
Again to my view ends of justice will be met if accused Pawan is
sentenced to undergo 6 years R.I. and to pay a fine of Rs.3000/ in
default 3 months further RI for the offence u/s 392/ 34 IPC and
further ends of justice will be met if Pawan is sentenced to undergo 3
years R.I. and to pay a fine of Rs.1500/ in default 2 months further RI
for the offence u/s 411 IPC.
Accordingly, convict 1.Harveer is sentenced to
undergo 3 years R.I. and to pay a fine of Rs.7000/ in
default 9 months further RI for the offence u/s 411
IPC;
Convict 2.Suresh @ Kalu and 3.Dharmender are
sentenced to undergo 6 years R.I. and to pay a fine of
FIR no.241/08
State Vs Harveer etc
5/
Rs.2000/ each in default 3 months further RI for the
offence u/s 392/ 34 IPC;
Convict 4.Pawan is sentenced to undergo 6 years R.I.
and to pay a fine of Rs.3000/ in default 3 months
further RI for the offence u/s 392/ 34 IPC ; and
further convict Pawan is sentenced to undergo 3
years R.I. and to pay a fine of Rs.1500/ in default 2
months further RI for the offence u/s 411 IPC.
Both the sentences shall run concurrently.
Benefit of section 428 Cr. PC be given to all the
convict persons.
Copy of this order and judgment be given to the
convict at free of cost forthwith. Orders accordingly.
ANNOUNCED IN THE OPEN COURT
ON THIS 22.03.2012
(RAJ KAPOOR)
ASJ2/ West
Tis Hazari Courts, Delhi
FIR no.241/08
State Vs Harveer etc
6/
IN THE COURT OF SH. RAJ KAPOOR, LD. ADDITIONAL
SESSIONS JUDGE - 2 : WEST/ TIS HAZARI COURTS: DELHI.
Sessions Case No. 267/1/10
Assigned to Sessions. 18.02.2009
Arguments heard on 01/02/12
Date of order 20.03.2012
FIR No. 241/08
State Vs 1. Harveer Singh s/o Ram Khilari
Singh, R/o 133, Shadi Nagar,
Railway Road, Azadpur, Delhi.
2. Suresh @ Kalu s/o Ram
Kishan, R/o 43, Shadi Nagar,
Railway Road, Azadpur, Delhi.
3. Pawan Kumar s/o Madan Lal r/o
90, Shadi Nagar, Railway Road,
Azadpur, Delhi.
4. Dharmender @ Lala s/o Phool
Kumar r/o 183, Shadi Nagar,
Railway Road, Azadpur, Delhi.
5. Amit @ Magroo ( P.O. vide ld.
MM order dated 28.05.2009).
Police Station Kirti Nagar
Under Section 395/397/ 34 IPC and 412 IPC
Convicted under section 392/34 IPC & 411 IPC
JUDGEMENT
1. Briefly facts of the case are that on the intervening night of 29/30.10.2008, at about 10:00 PM, PW1 Mr. Ashok Kumar Singh FIR no.241/08 State Vs Harveer etc 7/ and PW7 Mr. Shesh Narayan, both security guards under the supervision of Top Security Services, were performing their duties at 5A, Furniture Block, Kirti Nagar, Delhi and at that time they both were eating food in the aforesaid premises and the gate of the factory was open accused persons entered into the aforesaid premises, kept knife on the neck of Ashok Kumar Singh and Shesh Narayan and asked them to keep quite, otherwise they would be killed. Accused persons tied hands and feet of Ashok Kumar Singh and Shesh Narayan with the help of piece of cloth and affixed tape on their mouth, took them to the basement. Thereafter, accused persons broke open two lockers (Tijoris) and took an amount of Rs. 1,68,000/ and Samsung mobile no. 9968572934 which belongs to PW1 Ashok Kumar Singh.
2. PW4 Ram Naresh, Manager and PW6 Mr. Ranpal, cashier, deployed at Sewa Export, 5A, Furniture Block, Kirti Nagar, on having received information, reached at the premises. PW6 Ranpal, cashier informed the police regarding the occurrence and PW4 Mr. Ram FIR no.241/08 State Vs Harveer etc 8/ Naresh took the photograph of the place of occurrence with the help of his digital camera and got developed the prints which are Ex.PW4/A1 to A9.
3. On 30.10.2008, PW16 SI Manoj Kumar on receiving DD No.6A, along with Ct. Shiv Parsad reached at 5A, Furniture Block, Kirti Nagar, Delhi, where he met with Ashok Kumar and Shesh Narayan.
4. PW16 SI Manoj Kumar recorded statement of Ashok Kumar Singh, vide Ex.PW1/A, made his endorsement on the same, vide Ex.PW16/A, gave original tehrir to Ct. Shiv Parsad and accordingly FIR No.241/08 Ex.PW3/C was registered by PW3 HC Ramesh Kumar, the duty officer. His endorsement on the original tehrir is Ex.PW3/B. PW16 SI Manoj inspected the site, prepared site plan Ex.PW16/B. Crime team officials were also called. PW14 Ct. Rakesh Kumar, PW15 ASI Azad Singh, incharge, Mobile Crime Team inspected the site and prepared their report vide Ex.PW15/A. FIR no.241/08 State Vs Harveer etc 9/
5. On 05.11.2008, accused Harveer , being security guard at the aforesaid premises, were thoroughly interrogated on the basis of suspicion. PW16 SI Manoj Kumar recorded his disclosure statement vide Ex.PW16/C and later on he was arrested vide arrest memo and personal search memo Ex.PW16/D and E. At the pointing out of accused Harveer one motorcycle was seized vide Ex.PW16/F and he also pointed out the place of occurrence vide Ex.PW16/G. It came in disclosure statement of accused Harveer that out of looted amount, an amount of Rs.5,000/ was deposited in the account of his wife at PNB, Azadpur. Subsequently, PW16 SI Manoj Kumar obtained the bank statement of his wife Anita through his application Ex.PW2/A and the bank manger provided original voucher and statement of account vide Ex.PW2/B and Ex.PW2/C.
6. On the pointing out of accused Harveer , accused Suresh and Pawan were overpowered. Accused Suresh was interrogated vide disclosure statement Ex.PW16/H. He was arrested vide arrest memo and personal search memo Ex.PW16/K and L. Accused FIR no.241/08 State Vs Harveer etc 10/ Pawan was also interrogated vide disclosure statement Ex.PW16/M and he was arrested vide arrest memo and personal search memo Ex.PW16/P and Q.
7. A mobile chip was recovered from the pocket of accused Pawan Kumar and on checking the same, it was found containing the mobile number of complainant Ashok Kumar. The chip was kept in a match box and it was sealed and was taken into possession through seizure memo Ex.PW16/R.
8. Subsequent to the disclosure statement of accused Pawan, a raid was conducted at his residence situated at 90, Sadik Nagar, from where one bicycle make Neelam Atlas black colour was recovered which was stolen from the factory on 30.10.2008, same was taken into possession vide Ex.PW16/S.
9. Subsequent to the disclosure statement of accused Suresh, a raid was conducted at his house and one hammer and chisel were FIR no.241/08 State Vs Harveer etc 11/ recovered from his residence and these implements were used in breaking the safe at the time of committing robbery. PW16 SI Manoj prepared sketch of chisel and hammer (collectively Ex.P1) vide Ex.PW16/U and V, both implements were kept in a cloth parcel, sealed with the seal of NK and the same were taken into possession, vide memo Ex.PW16/T. At the instance of accused persons IO prepared pointing out memo vide Ex.PW16/W and Ex.PW16/X.
10.That on 16.10.2009, at about 06:30 PM, HC Ombir received a secret information regarding presence of accused Dharmender @ Lala at fruit market Azadpur and thereafter ASI Shashi Kumar,HC Kulvinder and Rahul reached at Govt. Sr. Secondary School Azadpur and at the pointing out of secret informer accused Dharmender @ Lal was overpowered and from his search, one button actuated knife was recovered. He was interrogated vide disclosure statement Ex.PW25/A. On 20.10.2009, accused Dharmender @ Lala, was produced in muffled face the concerned court and after taking the permission from the court, PW16 SI Manoj FIR no.241/08 State Vs Harveer etc 12/ Kumar formally arrested him and prepared arrest memo vide Ex.PW16/Y.
11.On 28.11.2008, PW24 Insp. D.K. Sharma obtained some documents from Top Security Services from PW9 Ghan Parkash Dubey and those documents were taken into possession vide Ex.PW9/C. On 22.10.2009, PW19 Mr.Shailender Malik, the then Ld. MM conducted TIP proceedings of accused Dharmender @ Lala vide Ex.PW19/A wherein he was correctly identified by the witnesses.
12.After completion of the investigation the challan was prepared and filed to the court. This case was committed to this Court and received on 18.02.2009 for trial as it pertains to the heinous crime committed under section 392/395/ 397/ 412/ 34 IPC which is exclusively triable by court of Sessions. Ld. predecessor of this court framed charge for the offences punishable u/s 395/397/ 34 IPC FIR no.241/08 State Vs Harveer etc 13/ against accused persons namely 1.Harveer Singh, 2.Suresh @ Kalu, 3.Dharmender @ Lala and 4.Pawan Kumar and (accused Amit @ Magroo is P.O.) to which they did not plead guilty did not plead guilty and claimed trial. Charge for the offence u/s 412 IPC was also framed against accused Pawan Kumar and Harveer Singh by the ld. Predecessor of this court.
13.To prove and substantiate its case the prosecution has examined witnesses namely PW1 Ashok Kumar Singh - victim, PW2 S. Chakravarty, Branch Manager, PNB, PW3 HC Naresh Kumar - duty officer, PW4 Ram Naresh - Manager of the factory, PW5 Sarfraz Alam, Astt. Managar, MTNL, PW6 Ranpal, Cashier, Sewa Export Factory, PW7 Shesh Narain - victim, PW8 Manoj Kumar Nayak - security guard, PW9 Gyan Parkash Dubey - area officer in Tops Security Service, PW10 Ct. Suraj Pal Singh, PW11 Ct. Shiv Parsad, PW12 Aman Kumar Yadav, Finger Print Expert, PW13 Arun Kumar Choubey - official of Tops Security Ltd., PW14 Ct. Rakesh FIR no.241/08 State Vs Harveer etc 14/ Kumar - formal witness being photographer, PW15 ASI Azad Singh
- Crime Team Official, PW16 SI Manoj Kumar - I.O., PW17 HC Surender - Crime Team Official, PW18 HC Satbir Singh - formal witness, PW19 Shailender Malik, MM02, PW20 Anita - registered owner of motor cycle no. DL3 SX 3389, PW21 HC Raj Kumar - he accompanied the I.O., PW22 Retd/ SI Rameshwar Dass - Incharge PCR, PW23 Ct. Arun Kumar - he also accompanied the I.O., PW24 Insp. D K Sharma, he has filed the challan in respect of accused Harvir, Pawan and Suresh. He got completed proceedings u/s 82/83 Cr. PC in respect of accused Dharmender and Amit, PW25 ASI Omender Kumar - he apprehended accused Dharmender on 16.10.09, PW26 ASI Shashi Kumar - he was also accompanied the PW25 in apprehending of accused Dharmender @ Lala, PW27 SI O.P. Mandal - he filed the supplementary chargesheet in respect of accused Dharmender @ Lala, PW28 ASI Rajbir Singh - formal witness and PW29 Ct. Rahul Tyagi - he is also the witness to the arrest of accused Dharmender @ Lala.
FIR no.241/08 State Vs Harveer etc 15/
14.The most material witnesses in this case are PW1 Ashok Kumar Singh and PW7 Shesh Narain. On careful perusal of their testimony it has come on record that on the intervening night of 29/30.10.2008, at about 10:00 PM, PW1 Mr. Ashok Kumar Singh and PW7 Mr. Shesh Narayan, both security guards under the supervision of Top Security Services, were performing their duties at 5A, Furniture Block, Kirti Nagar, Delhi and at that time they both were eating food in the aforesaid premises and the gate of the factory was open and in the meanwhile accused persons entered into the aforesaid premises, kept the knife on the neck of PW1 Ashok Kumar Singh and PW7 Shesh Narayan and asked them to keep quite, otherwise they would be killed. Accused persons tied the hands and feet of Ashok Kumar Singh and Shesh Narayan with the help of piece of cloth and affixed tape on their mouth. Accused persons took them to the basement. Thereafter, they had broken two lockers (Tijoris) and took an amount of Rs.1,68,000/ and robbed the Samsung FIR no.241/08 State Vs Harveer etc 16/ mobile no. 9968572934 which belongs to PW1 Ashok Kumar Singh. Both these witnesses have correctly identified all the accused person. Both the victims got released themselves when accused persons had left the premises and informed Night Checker, Mr. Arun Choudhary who reached at the spot. Police was called. Cashier informed after verification that accused persons had robbed Rs. 1,68,000/ from the Tijori. Tijori/ lockers were found cut off/broken. Ld. defence counsel has crossexamined both these witnesses at length. I have also gone through the crossexamination carefully. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
15.PW4 Ram Naresh, Manager and PW6 Mr. Ranpal, cashier, deployed at Sewa Export, 5A, Furniture Block, Kirti Nagar, on having received information, reached at the premises. PW6 Ranpal, cashier informed the police regarding the occurrence and PW4 Mr. Ram Naresh took the photograph of the place of occurrence with the help of his digital camera, got developed the prints which are Ex.PW4/A1 FIR no.241/08 State Vs Harveer etc 17/ to A9. Both these witnesses have also been crossexamined. No contrary evidence has come on record.
16.PW2 S. Chakravarty, Branch Manager, Punjab National Bank came to the witness box and deposed that on 05.11.2008 as per requirement he supplied the statement of account and original voucher of cash deposit of Rs.5000/ on 03.11.2008 in Smt. Anita's account. He got exhibited carbon copy of the application of IO as Ex.PW2/A, original voucher of the cash deposit as Ex.PW2/B and statement of accounts as Ex.PW2/C. This witness has been cross examined by defence counsel. In the crossexamination it is admitted that on 04.10.2008 a sum of Rs.4500/ were deposited in this account and other entries i.e. 21.01.2008 a sum of Rs.14000/ were also deposited in the same account. On 15.02.2008 a sum of Rs.2500/ were also deposited.
FIR no.241/08 State Vs Harveer etc 18/
17.PW3 HC Naresh Kumar is the formal witness in this case being duty officer. He came to the witness box and deposed that on the night of 29/30.10.2008 he was posted at PS Kirti Nagar as Duty Officer. He testified that he recorded DD no.6A at 2.35 a.m. about the robbery on the point of knife. He got exhibited the copy of the DD as Ex.PW3/A. He also got exhibited the endorsement made on rukka as Ex.PW3/B, on the basis of which he recorded the FIR of the present case. He has also got exhibited the computer generated copy of FIR as Ex.PW3/C. This witness has not been cross examined.
18.PW5 Sarfraz Alam, Asstt. Manager, MTNL came to the witness box and deposed that on 28.01.2009 he produced the photocopy of agreement form from Trum Pre Paid Cellular Mobile. He testified that as per their record the telephone no.9968572934 is in the name of Mr. Deepak Kumar. He got exhibited the form as Ex.PW1/C. This witness has not been crossexamined.
FIR no.241/08 State Vs Harveer etc 19/
19.PW8 Manoj Kumar Nayak testified that on 29.10.08 he was working in Top Security Service as guard. He affirmed the fact that on 29.10.2008 accused Harveer Singh was also performing duty with him. He testified that on that day their duty hours were 8 a.m. to 8 p.m. He left his duty about two hours before i.e. 6 p.m. This witness has been crossexamined by defence counsel. I have perused the same. No contrary evidence has come on record.
20.PW9 Gyan Parkash Dubey testified that he is working as Area Officer in Tops Security Service, A333, Basement Outer Ring Road, Meera Bagh, New Delhi. He affirmed the fact that accused Harveer Singh was performing his duty as security guard at Sewa Exports on 29.10.2008. In this regard, this witness provided entry about the attendance at point A on Ex.PW9/A. He has also got exhibited his I card photocopy as Ex.PW9/B. He also got exhibited the seizure memo of the same as Ex.PW9/C. This witness has been cross FIR no.241/08 State Vs Harveer etc 20/ examined by defence counsel. In the crossexamination it has come on record that accused Harveer had performed his duty in Sewa Exports upto 04.11.2008.
21.PW10 Ct. Suraj Pal Singh came to the witness box and deposed that on 05.11.2008 he joined the investigation of this case along with SI Manoj Kumar, Ct. Arun and HC Raj Kumar. They reached at Sewa Export, 5A, Furniture Block, Kirti Nagar at around 3 p.m. He testified that security guard Harveer Singh was interrogated who disclosed about his involvement in this case. Subsequent to disclosure statement they reached at Punjab national Bank at Azadpur since accused had disclosed that robbed amount was deposited in the name of his wife Anita. This witness further deposed that IO collected the documents from the bank about the account of wife of accused Harveer Singh. This witness further testified that accused Harveer had also disclosed that accused Suresh and Pawan were also involved in this case. This witness further deposed that at the instance of accused Harveer other co FIR no.241/08 State Vs Harveer etc 21/ accused persons Suresh and Pawan were apprehended from bus stand, Bada Bagh. Mobile Chip was recovered from the front pocket of shirt of Pawan. Chip was seized. One bicycle was also recovered at the isntance of accused Pawan from Shadi Nagar Railway Road. This witness further deposed that chheni and hathora were also recovered from the house of Suresh at Shadi Nagar, Railway Road. Accused persons were arrested. This witness correctly identified all the accused persons and case property i.e. chheni hathora as Ex.P1; mobile chip as Ex.P2 and bicycle as Ex.P3. This witness has been crossexamined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
22.PW11 Shiv Parsad came to the witness box and deposed that on 30.10.2008 he was posted at PS Kirti Nagar. He deposed that on receiving DD no.6 he along with SI Manoj reached at Sewa Export, 5A, Furniture Block, Kirti Nagar, Delhi. He deposed that on the spot FIR no.241/08 State Vs Harveer etc 22/ they noticed that two lockers were broken. He deposed that one Naresh, Company Product Manager told that Rs.1,68,000/ and some documents were looted. This witness has not been cross examined.
23.PW12 Aman Kumar Yadav, Finger Print Expert came to the witness box and deposed that on examination of finger print and palm print they were found identical with left palm impression slip of accused Pawan Kumar which is marked as S1. He got exhibited his detailed report as Ex.PW12/A. This witness has been crossexamined at length. I have perused the same. No material contradiction has come on record which may go to the root of this case.
24.PW13 Arun Kumar Choubey is the hearsay witness to whom victim Ashok Kumar reported about the incident on telephone. Thereafter, he immediately informed the police at 100 number. This witness has been crossexamined at length. I have perused the same. No contrary evidence has come on record.
FIR no.241/08 State Vs Harveer etc 23/
25.PW14 Ct. Rakesh Kumar is a formal witness being photographer. He deposed that on 30.10.2008 he was posted in Crime Team West Distt. as a photographer. He testified that on receiving call he along with crime team reached at the spot and took the photographs of the spot. He testified that HC Surender Singh took 5 finger prints from broken safes and wooden door and thereafter, he took photographs of finger prints. This witness has been crossexamined by defence counsel. In the crossexamination it has come on record that the finger prints were sent to finger print Bureau directly by him.
26.PW15 ASI Azad Singh and PW17 HC Surender are the member of Crime Team. They came to the witness box and deposed that on 30.10.08 they along with other members of Crime Team reached at the spot i.e. A5, furniture block, Kirti Nagar, Delhi where HC Surender lifted the five chance prints from the spot and submitted his report. They got exhibited the report as Ex/PW15/A. These witnesses have not been crossexamined.
FIR no.241/08 State Vs Harveer etc 24/
27.PW18 HC Satbir Singh came to the witness box and deposed that on 24.01.2009 Gyan Parkash Dubey, Area Officer, Top Security Services, had come in the PS and produced muster sheet for the month of October 2008 and November 2008. IO had seized the same vide seizure memo Ex.PW9/A and identity card of Gyan Parkash Dubey Ex.PW9/B. This witness has not been cross examined.
28.PW19 Shailender Malik, the then ld. MM appeared in the witness box and deposed that on 22.10.09 he had conducted the TIP of accused Dharmender @ Lala. He testified that accused Dharmender @ Lala was correctly identified by the witness. This witness got exhibited the TIP proceedings as Ex.PW19/A, application of IO for supply of copy as Ex.PW19/B. This witness has not been crossexamined.
FIR no.241/08 State Vs Harveer etc 25/
29.PW20 Anita w/o Harveer Singh (accused) came to the witnessbox and deposed that she is the registered owner of motorcycle bearing no. DL 3 SX 3389. In this regard she got exhibited the RC of the same as Ex.PW20/A and motor cycle as Ex.P1. This witness has not been crossexamined.
30.PW21 HC Raj Kumar and PW23 Ct.Arun Kumar have deposed more or less on similar lines as deposed by PW16 IO with regard to the arrest of coaccused persons Pawan and Suresh since they accompanied the IO on 05.11.2008. They have correctly identified the accused persons. These witnesses have been crossexamined at length. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
31.PW22 Retd/ SI Rameshwar Dass is also a formal witness. He deposed that on the intervening night of 29/30 October 2008 he was working as Incharge PCR Power 21. He received an information FIR no.241/08 State Vs Harveer etc 26/ from the control room to the effect "Kirti Nagar Petrol Pump Ke Samne Wale cut Sewa Stores Company Ke Guard Ko Chaku or Katta Dikha Kar Company Se Saman Chura Liya Hai." Accordingly, he reached at this place where Chowkidar met him. After 5/ 7 minutes SI Manoj Kumar also reached at the spot. Thereafter, he left the spot. This witness has been crossexamined. No contrary evidence has come on record.
32.PW24 Insp D K Sharma came to the witness box and deposed that on 28.11.2008, he was posted at PS Kirti Nagar as Inspector, ATO. On that day, investigation of the present case was assigned to him. Three accused persons namely Harveer , Suresh and Pawan were languishing in J/C and two accused persons namely Dharmender and Amit were at large. Their NBWs were obtained by SI Manoj. This witness got completed the proceedings under section 82/83 Cr.P.C. He obtained the result of chance, fingerprints from Finger Print Bureau and during investigation he sent the palm prints of accused Harveer , Suresh and Pawan and later on obtained the FIR no.241/08 State Vs Harveer etc 27/ palm report. He also obtained some documentary proof of Top security services from Gyan Parkash Dubey and these documents were seized vide seizure memo Ex.PW9/C. He also obtained PCR record. He had also collected the proof of ownership of SIM Card which was robbed from the complainant Ashok Kumar. This witness further deposed that he recorded the statements of witnesses and after completion of the investigation the challan was prepared against accused Harveer , Pawan and Suresh. This witness has been crossexamined. In the crossexamination he denied the suggestion that he did not examine any witness with regard to accused Harveer .
33.PW25 ASI Omender Kumar testified that on 16.10.2009, he was posted at PS Adarsh Nagar. On that day he alongwith ASI Shashi Kumar and Ct. Rahul were on area patrolling in the area of Azadpur Village. At about 6.30 pm one secret informer informed that one boy is standing at fruit market near M2K wearing black colour pant and shirt , having one knife with him. They requested four / five FIR no.241/08 State Vs Harveer etc 28/ passersby to join the investigation but they did not join. Thereafter they all the police officials alongwith secret informer reached near Govt. Sr. Sec. School Azadpur, one person was found coming and secret informer informed that he is the same person. They overpowered the same person and one button actuated knife in closed condition was recovered from the right pocket of his pant. He prepared the sketch of the knife and got the case registered. This witness further deposed that he interrogated accused Dharmender @ Lala and he disclosed regarding his involvement in the present case i.e, FIR No.241/08. This witness got exhibited the disclosure statement as Ex. PW25/A. Accused Dharmender was a proclaimed offender in case FIR No.241/08. On 17.10.2009 information was given at PS Kirti Nagar, regarding production of accused at Rohini Court. Accused was produced before the concerned court. This witness correctly identified accused Dharmender. This witness has not been crossexamined by defence counsel. FIR no.241/08 State Vs Harveer etc 29/
34.PW26 ASI Shashi Kumar deposed that on 16.10.2009, he was posted at PS Adarsh Nagar. On that day, he along with HC Ominder and Ct. Rahul was on area patrolling. At about 06:30 PM, HC Ominder received one secret information regarding presence of one accused namely Dharmender @ Lala at Fruit Market, Azadpur, having knife. They requested 34 public persons to join the raiding party but they did not join. Thereafter, they all reached Govt. Sr. Sec. School, Azadpur. This witness further deposed that one person was coming and at the pointing out of secret informer, that person was overpowered and on interrogation his name revealed as Dharmender @ Lala. His search was conducted and from the right pocket of his pant, one button actuated knife was recovered. HC Ominder conducted the proceedings with regard to recovery of knife. IO interrogated accused Dharmender @ Lala vide disclosure statement Ex.PW25/A. Accused made his disclosure statement with regard to the case FIR No. 241/08 and he was a proclaimed offender in that case. Accused was arrested and was brought to the PS. He identified the accused correctly. This witness has been cross FIR no.241/08 State Vs Harveer etc 30/ examined at length. I have perused the same. In the cross examination it has come on record that secret information was received by HC Ominder. He denied the suggestion that no such information was with HC Ominder or that he was not in the area of patrolling or that he did not go at the Fruit Market or that accused was not apprehended from there or that no knife was recovered from him or that he did not make any disclosure statement or that they obtained his sign on blank papers or that knife was planted upon him or that accused himself surrendered at the PS.
35.PW27 SI O.P. Mandal is the formal witness. He deposed that on 22.10.2009 he got conducted the TIP of accused Dharmender @ Lala at Tihar jail by complainant Ashok Kumar. Thereafter, he filed the supplementary chargesheet against accused Dharmender @ Lala. This witness has not been crossexamined. FIR no.241/08 State Vs Harveer etc 31/
36.PW28 ASI Rajbir Singh is also a formal witness. He brought summoned record i.e. DD register containing DD no.10A dated 17.10.2009 regarding apprehension of accused Dharmender @ Lala. He got exhibited the photocopy of the same as Ex.PW28/A. This witness has not been crossexamined.
37.PW29 Ct. Rahul Tyagi deposed that on 16.10.2009, he was posted at PS Adarsh Nagar. On that day at about 06:30 PM, he along with ASI Shasi was performing beat area duty. HC Ominder met them at Azad Pur Terminal and stated that he has been informed by one secret informer that one boy wearing black pant and black shirt, having knife, is roaming in front of Govt. Sr. Secondary School, Azadpur. They all the three police officials reached near the said school at about 06:4006:45 PM. He along with ASI Shashi was standing towards market and HC Ominder stood along with secret informer towards Azadpur village. The secret informer informed and pointed towards one boy as the same person who was coming from fruit market side. This witness deposed that with the help of HC FIR no.241/08 State Vs Harveer etc 32/ Ominder, he apprehended that boy and on interrogation his name revealed as Dharmender @ Lala, his formal search was conducted and from his right pocket of his pant one button actuated knife was recovered. HC Ominder completed the proceedings gave tehrir for getting the case registered. He went to PS Adarsh Nagar and after getting the case registered. He came back at spot, gave copy of FIR and original tehrir to the IO. IO interrogated accused Dharmender @ Lala, recorded his disclosure statement vide Ex.PW25/A. Accused was arrested by the IO. Thereafter, they went to PS. He has seen the personal search memo and arrest memo of Dharmender, which are Ex.PW29/A and B. IO prepared the sketch of the knife, kept the same in a parcel and it was sealed with the seal of OK and was taken into police possession. He identified accused Dharmender @ Lala. This witness has been cross examined. During the course of crossexamination he denied the suggestion that he did not join the investigation at any point of time or that no knife was recovered from accused Dharmender or that same was planted upon him or that all the proceedings were FIR no.241/08 State Vs Harveer etc 33/ conducted at the PS or that he has been falsely implicated in the present case.
38.PW16 SI Manoj Kumar is the material witness being investigating officer. This witness has conducted the investigation of this case and arrested accused persons. He has also got exhibited the material documents such as endorsement made on the statement of Ashok Kumar Singh vide Ex.PW16/A; site plan Ex.PW16/B; disclosure statement of accused Harveer vide Ex.PW16/C; arrest memo and personal search memo Ex.PW16/D and E; seizure memo of motorcycle (recovered at the instance of Harveer) vide Ex.PW16/F; pointing out memo vide Ex.PW16/G; disclosure statement of accused Suresh vide Ex.PW16/H; arrest memo and personal search memo Ex.PW16/K and L; disclosure statement of accused Pawan vide Ex.PW16/M; arrest memo and personal search memo Ex.PW16/P and Q. a mobile chip was recovered from the pocket of accused Pawan and on checking the same, it was found FIR no.241/08 State Vs Harveer etc 34/ containing the mobile number of complainant Ashok Kumar vide seizure memo Ex.PW16/R; seizure memo of one bicycle make Neelam Atlas black colour which was stolen from the factory on 30.10.2008 vide Ex.PW16/S; Sketch memo of one hammer and chisel (chheni) vide Ex.PW16/U and V and seizure memo as Ex.PW16/T; pointing out memos vide Ex.PW16/W and Ex.PW16/X. disclosure statement of accused Dharmender @ Lala vide Ex.PW25/A and arrest memo vide Ex.PW16/Y. This witness has been crossexamined at length. I have perused the same. I found some minor type of contradictions which are attributable due to the long duration of time and memory of a human being.
39.After recording the statements of prosecution witnesses, statements of accused persons u/s 313 Cr. P. C. were recorded in which they denied all the allegations and stated that they have been falsely implicated in this case. However, they did not lead any defence evidence.
FIR no.241/08 State Vs Harveer etc 35/
40.Thereafter, case was fixed for final arguments. Ld. counsel for accused persons argued and submitted that PW1 complainant Ashok Kumar Singh in his crossexamination has deposed that he had seen accused persons first time in the court. He has also deposed that accused persons had entered in the factory from roof side. Ld. counsel for accused persons also argued and submitted that there is no evidence on record to show that there were five persons or more. There is absolutely no evidence to show that Tijori contained Rs.1,68,000/ or even a single penny inside and any other luggage and documents. Further, owner has not come into witness box and even police did not record the statement of owner of the factory. There is no evidence whatsoever to show that hammer and chhani were used to break the Tijori. Ld. counsel again submitted that rope or pieces of cloth by which two guards were tied was neither seized nor produced. No record has been produced to show that the said mobile chip was in use at that time or what is the evidence that the chip belonged to the same mobile FIR no.241/08 State Vs Harveer etc 36/ phone and was of PW1 Ashok Kumar. In support of his contentions he has relied upon the following citations: i. Manju Kumar & Ors. Vs State NCT of Delhi 2011 (10) LRC (Delhi) (DB) wherein it has been held that: "SIM card is not a valuable property and there is every possibility that someone from accused persons might have given SIM card to be used by appellant either without any motive or mala fide. In absence of any evidence how and under what circumstances such property of insignificant value came to possession of appellant, no inference can be drawn that he knew or had reason to believe that the SIM Card was property obtained by dacoity or was a stolen property. Appellant who had already remained in custody for one year three months is entitled to benefit of doubt. Conviction set aside."
ii. Ram Lakhan Vs State of U.P. in Criminal appeal no. 541 of 1976, wherein it has been held that: "an offence under section 395 IPC can be made out there must be an assembly of 5 or more persons. On the findings of the courts below it is manifest that only one person is now left. In these circumstances, therefore, the appellant cannot be convicted for an offence u/s 395 IPC." iii. In Bishwanath Jha & Anrs. Vs State of Bihar 2002 (2) Crimes 163 (SC), it has been held that: "theft or extortion or attempt to commit any one of two is an inevitable ingredient for robbery - total lack of evidence to show that intruders committed theft or made any attempt to commit theft. Conviction u/s 395 IPC could not be sustained."
iv.In "Sayed Mohammad Owais Vs. State of Maharashtra 2003 Cril. LJ FIR no.241/08 State Vs Harveer etc 37/ 303" it has been held that: "15. In the present case, the identification parade has been held in a room within the premises of Crime Branch of Police Mumbai. There is evidence on record to show that the police persons were asked to obliterate themselves from the said room but there is no evidence to show that precaution was taken to see that the witnesses who were to identify the suspects had no opportunity to see them before identification parade."
v. In "Ravi @ Ravichandran Vs State 2007 Cri. L J 2740" it has been observed that: "when a First Information Report has been lodged against unknown persons, a test identification parade in terms of Section 9 of the Evidence Act, is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. The witnesses were not very sure as to whether they had seen the appellant before. Had the accused been known, their identity would have been disclosed in the First Information Report. PW1 for the first time before the court stated that he had known the accused from long before, but did not know their names earlier, although he came to know of their names at a later point of time.
18. In a case of this nature, it was incumbent upon the prosecution to arrange a test identification parade. Such test identification parade was required to be held as early as possible so as to exclude the possibility of the accused being identified either at the police station or at some other place by the concerned witnesses or with reference to the photographs published in the newspaper."
vi.In Ramkishan Vs Bombay State 1955 Cri. L J 196, wherein it has been held that: "the whole of the identification parades were thus directed and supervised by the police officers and the Panch witnesses took a minor part in the same and were there only for the purpose of guaranteeing that the requirements of the law in regard to the holding of the identification parades were satisfied. We feel very great reluctance in holding under these circumstances that the statements, if any, involved FIR no.241/08 State Vs Harveer etc 38/ in the process of identification were statements made by the identifiers to the Panch witnesses and not to the police officers as otherwise it will be easy for the police officers to circumvent the provisions of section 162 by formally asking the Panch witnesses to be present and contending that the statements, if any, made by the identifiers were to be Panch witnesses and not to themselves."
On the strength of these citations and contradictions ld. counsel for accused persons argued and submitted that accused persons are innocent and they have been falsely implicated in this case. Case property has been planted upon them. He further submitted that accused persons are entitled for acquittal by giving them benefit of doubt.
41.Contrary to it, ld. APP argued and submitted that there is sufficient evidence on record to hold the accused persons guilty for the alleged offences as it has come on record that accused persons entered in the premises in question, tied the hands and legs of both security guards namely PW1 Ashok Kumar and PW7 Shesh Narain and then broke the tijori of the factory and removed Rs.1,68,000/, samsung mobile no.9968572934. Ld.APP further argued and submitted that both these witnesses have correctly identified accused persons as FIR no.241/08 State Vs Harveer etc 39/ culprits. Ld. APP further submitted that IO of this case has got exhibited all the material documents on record. On the point of contradictions, ld. APP submitted that contradictions which have come on record are minor type of nature. On these grounds ld. APP submitted that accused persons be convicted.
42.Before reaching at any conclusion let the relevant sections be reproduced verbatim which are as under:
391. Dacoity.When five or more persons conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempting to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting or aiding, is said to commit "dacoity".
395. Punishment for dacoity.Whoever commits dacoity shall be punished with 2[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
397. Robbery, or dacoity, with attempt to cause death or grievous hurtIf, at the time of commuting robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years. Sec.34 IPC: "When a criminal act is done by several persons in furtherance of the common intention of all, each of such FIR no.241/08 State Vs Harveer etc 40/ persons is liable for that act in the same manner as if it were done by him alone."
Careful perusal of the section 34 IPC reveals the following important ingredients :
i. That there must be a criminal act.
ii. The act must have been done by several persons in furtherance of their common intention.
412. Dishonestly receiving property stolen in the commission of a dacoity.Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with [imprisonment for life], or with rigorous imprisonment 13 for a term which may extend to ten years, and shall also be liable to fine.
43.In the case in hand the most material witnesses are PW1 and PW7 being victim. On careful perusal of their testimony it has come on record that there were only four accused persons who entered into the premises in question on the intervening night of 29/30.10.2008.
No injury has been caused to the victims. No other victim except these two persons has come on record. Therefore, depositions of these two victims i.e. PW1 and PW7 goes to the root of this case. In view of the depositions of PW1 and PW7 the possibility of offences FIR no.241/08 State Vs Harveer etc 41/ u/s 395 and 397 IPC has been ruled out. Again, in view of these findings the possibility of committing the offence u/s 412 IPC is also ruled out being not proved the offence u/s 395/397 IPC which requires the committal of offence by at least 5 persons. The prosecution has miserably failed to prove its case beyond reasonable doubt against accused persons for the offences punishable u/s 395/ 397/ 412 IPC. In light of these facts and circumstances of the case I do not find it a fit case to convict the accused persons namely 1.Dharmender, 2.Harveer Singh, 3.Suresh @ Kalu, 4.Pawan Kumar for the offences punishable u/s 395/397/412 IPC since ingredients of these sections are not proved on record.
44.Before reaching at the conclusion let the relevant sections i.e. 392 IPC and 411 IPC are being reproduced which are as under: Section 392 IPC "Punishment for robbery Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to find; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years." FIR no.241/08 State Vs Harveer etc 42/ Section 411 IPC "Dishonestly receiving stolen property Whoever dishonestly receives or retains any stolen propety, knowing or having rason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
"Stolen Property" has been defined u/s 410 IPC which makes it clear that - Property, the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated or in respect of which criminal breach of trust has been committed, is designated as "stolen property", [whether the transfer has been made, or the misappropriation or breach of trust has been committed, within or without {India}]. But, if such property subsequently comes into possession of a person legally entitled to the possession thereof, it then ceases to be stolen property. It has been observed in 'Harish Chandra Vs State of UP - AIR 1976 SC 1430' that :
"Robbery The offence of robbery is defined in section 390 IPC. The robbery is punishable under section 392 IPC. When force is used to enable another to carry away the booty, it amounts to robbery."
I have gone through the whole case file very carefully. Arguments of defence counsel were also heard. The arguments of ld. counsel for FIR no.241/08 State Vs Harveer etc 43/ the accused persons that they are innocent and they have been falsely implicated in this case have no force. Further, the argument of ld. defence counsel that there are so many contradictions in the testimonies of witnesses is also not tenable precisely for the reasons that it is a well settled principle of law which has been observed in 'Jaskaran Singh Vs State 1997 SCC (Crl) 651' that: "When the evidence of first informant is found to be full of contradictions, exaggerations and improvements, he cannot be held to be a truthful witness".
Again on the point of contradictions the Hon'ble Supreme Court in case State of UP Vs Bhagwan AIR 1997 SC 3292: (1997) 1 SCC 19 made the following observations which are very relevant crucial and dominant in deciding the fate of the present case: "minor discrepancies in the evidence of the eyewitnesses are immaterial unless they demolished the basic case of the prosecution".
The observations made in the aforesaid two cases by the Hon'ble Supreme Court are exfacie indicative of the fact that a clear distinction be made between the major contradictions and minor contradictions when the contradictions are minor the truthfulness of FIR no.241/08 State Vs Harveer etc 44/ the witness cannot be discredited in all and contrary to it when the contradictions are major these affect the root of the case and leave an impression of untruthfulness of the witnesses.
45.Therefore, ingredients of section 392 / 34 IPC in respect of accused persons Pawan and Suresh have been proved on record precisely for the reasons that PW1 and PW7 in their depositions have categorically stated that four accused persons entered in the premises and robbed the factory and taken away the cycle and mobile from them, after tying them. Subsequent to the disclosure statement of accused Suresh, a raid was conducted at his house and one hammer and chisel were recovered from his residence and these implements were used in breaking the safe at the time of committing robbery vide seizure memo Ex.PW16/T. Since, PW1 and PW7 have failed to identify other two accused persons namely Harveer and Dharmender as culprits, so I convict accused Pawan and Suresh for the offence punishable u/s 392/34 IPC for committing robbery.
FIR no.241/08 State Vs Harveer etc 45/
46.So long as the deposition qua accused Dharmender @ Lala is concerned, in this regard it has come on record that he was declared P.O. vide ld. MM order dated 28.05.2009 and subsequently he was arrested and supplementary challan was filed vide court order dated 10.12.2009. During the course of supplementary challan proceedings of TIP was got conducted by the I.O. In the TIP proceedings accused Dharmender was correctly identified by victim Pw1 Ashok Kumar and in this regard PW19 Shailender Malik, the then ld. MM got exhibited the TIP proceedings as Ex.PW19/A and application of IO for supply of copy as Ex.PW19/B. Hence, prosecution has proved its case u/s 392/34 IPC against accused Dharmender too.
47.So long as the recovery of bicycle vide seizure memo Ex.PW16/S from accused Pawan is concerned, the same has been proved on record beyond reasonable doubt for the offence u/s 411 IPC since, FIR no.241/08 State Vs Harveer etc 46/ accused Pawan has failed to prove on record that as to how he possessed the stolen bicycle while he is not the owner of the same. He has also failed to give any satisfactory reply to the questions put to him in the statement recorded u/s 313 Cr. PC. Therefore, I am of the view that prosecution has successfully proved its case for the offence u/s 411 IPC against accused Pawan.
48.So long as recovery of Rs.5000/ is concerned, it has come on record against accused Harveer in his disclosure statement that he had deposited Rs.5000/ in the account of his wife namely Anita and as per testimony of PW2 S. Chakravarty, Branch Manager, Punjab National Bank that on 03.11.2008 Rs.5000/ were deposited in Smt. Anita's account. He got exhibited carbon copy of the application of IO as Ex.PW2/A, original voucher of the cash deposit as Ex.PW2/B and statement of accounts as Ex.PW2/C. In light of these facts and circumstances of the case, I am of the view that ingredients of section 411 IPC again are proved on record against accused FIR no.241/08 State Vs Harveer etc 47/ Harveer for having possession of stolen Rs.5000/ vide disclosure statement Ex.PW16/C of accused Harveer and deposition of PW2 PW2 S. Chakravarty, Branch Manager, Punjab National Bank.
Accordingly, accused Pawan is convicted for the offence punishable u/s 392/ 34 & 411 IPC ;
Accused Suresh is convicted for the offence punishable u/s 392/ 34 IPC;
Accused Harveer is convicted for the offence punishable u/s 411 IPC;
Accused Dharmender is convicted for the offence punishable u/s 392/34 IPC; and Prosecution has failed to prove on record the offences punishable u/s 395/397/412 IPC in respect of accused persons namely Pawan, Dharmender, Suresh and Harveer, so I acquit them for the offences u/s 395/397/ 412 IPC by giving them benefit of doubt.
ANNOUNCED IN THE OPEN
COURT ON THIS 20.03.2012
( RAJ KAPOOR)
ASJ02/ West/ THC/DELHI
FIR no.241/08
State Vs Harveer etc
48/