Delhi District Court
State vs 1. Satish Son Of Sh. Dhram Pal, on 28 July, 2009
1
IN THE COURT OF SHRI DILBAG SINGH: ADDITIONAL SESSIONS JUDGE
01(E): KARKARDOOMA COURTS : DELHI.
Sessions Case No.49/08
Date of Institution: 06.06.2008
Date on which reserved for order:28.07.2009
Date of delivery of order:28.07.2009
State V/s 1. Satish son of Sh. Dhram Pal,
R/o H.No. 239, Janta Colony,
Circular Road, Shahdara, Delhi.
2. Ravi son of Sh. Raj Pal,
R/o Tikona Park, Teele Ke Upar,
Kumar Wali Gali, Farsh Bazar,
Shahdara, Delhi.
3. Deepak son of Sh. Satpal,
R/o Kullu Halwai Ka Makan,
Railway Station Wali Gali,
Janta Colony, Circular Road,
Shahdara, Delhi.
FIR No. 40/08
PS Vivek Vihar
U/s 392/411/397/34 IPC
JUDGMENT:
1. Case of the prosecution as disclosed from the report under section 173 Cr.P.C is to the effect on 17.02.2008, HC Raj Kumar along with Ct. Naresh and Ct. Ajay was on patrolling duty in the area of PS Vivek Vihar. At about 3:00 p.m, when they reached railway station street circular road, they saw that three boys were coming running and noise of 'thief thief' was being raised. They were being chased by a boy. These boys were apprehended and their names were revealed as Ravi, Satish and Deepak. Their cursory searches were conducted and from 2 the cursory search a sum of Rs. 2,400/ was recovered from the pocket of shirt of Deepak. From right pocket of pant of accused Deepak black colour dial watch was recovered. From the right dub of the pant of accused Satish, a surgical blade was recovered. From cursory search of accused persons sums of Rs. 30/, 10/ and 25/ were recovered. Complainant stated that his amount was to the tune of Rs. 2,400/ and a watch. Sum of Rs. 2,400/ and watch were taken into police possession. HC recorded the statement of Veerpal, the crux of which is being given infra.
2. Sh. Veerpal interalia stated that on 17.02.2008, he was going to his aunt. That he had alighted from a bus and was going after crossing the railway line. That when he reached in the railway station, street around 3:00 p.m, he was surrounded all of a sudden by three boys and was caught hold of. One of the boys pinioned him, other boy put a blade on his neck and exhorted that in case he will make a noise then his neck will be cut. He was asked to hand over everything which he was having. In the meantime, third boy took out sum of Rs. 2,400/ and his watch and started running in the street. That he made noise of 'chor chor' and in the meantime police officials came from the front side and apprehended the culprits. He has further stated about the recovery of his money and watch as detailed supra.
3. On the above discussed statement of Veerpal, which has been exhibited as Ex.PW1/A, I.O HC Raj Kumar made his endorsement Ex.PW1/B and sent the same for registration of the case. Further investigation was handed over to ASI 3 Pritam Singh, who reached the spot along with Ct. Ajay. HC Raj Kumar handed over the case property and the accused persons to him. ASI Pritam Singh inspected the spot and prepared the site plan. He interrogated the accused persons, recorded their statements and got the spot of occurrence identified. He arrested the accused persons and conducted their personal searches after preparing their arrest memos. After completion of investigation, challan was filed by the SHO.
4. After compliance of the requirements of section 207 Cr.P.C, Ld. Metropolitan Magistrate committed the case to the court of Ld. Session Judge, who allocated the same to me.
5. On 02.08.2008, after hearing the arguments on the point of charge, charge under section 392 IPC was framed against all the accused persons. Charge under section 397 was framed against accused Satish. Vide separate order, the arguments of Sh. Ravi Karan to the contrary were disallowed. I deem it pertinent to mention that a typing mistake has taken place with respect to the year of occurrence which took place in 2008, whereas in the charge the year has been typed as 2007. Ld. Defence Advocates had submitted that they have no objection of any nature whatsoever if the year of occurrence is read as 2008 in place of 2007 in the charge dated 02.08.08.
6. Prosecution in support of its case has examined PW1 HC Raj Kumar, PW2 HC Sanjeev, PW3 Sh. Veerpal, PW4 Ct. Naresh and PW5 ASI Pritam Singh. PW1, PW4 and PW5 are the official witnesses, who have testified about 4 the apprehension of the accused persons, when they were patrolling in the area and noticed that the accused persons were coming running being followed by the complainant. PW1 HC Raj Kumar has proved recording of statement by him vide Ex.PW1/A, rukka vide memo Ex.PW1/B, seizure memos of surgical blade and wrist watch vide memo Ex.PW1/C and Ex.PW1/D. He has also proved the arrest memos of the accused persons as Ex.PW1/E1 to Ex.PW1/E3 and personal search memos as Ex.PW1/F1 to Ex.PW1/F3. He has identified the currency notes of Rs. 2,400/ in the denomination of Rs. 100/ as Ex.P1 to P24 as the ones which were recovered from the possession of accused Deepak. He has also identified watch Ex.P2 as the same, which was belonging to the complainant and was recovered from the possession of accused Deepak. He has also identified the surgical blade as Ex.P3 having been used by the accused Satish. Testimonies of PW4 Ct. Naresh and PW5 ASI Pritam Singh are not being adverted to in detail for the reason that the same are on the similar lines of PW1.
7. PW2 HC Sanjeev is a formal witness, who has proved recording of FIR. He has proved the computer generated copy of FIR as Ex.PW2/A.
8. PW3 Sh. Veerpal is the material eye witness of the case, who has testified about the manner in which the incident of robbery took place. He has proved the site plan as Ex.PW3/A. He has corroborated the version of police officials concerning arrests, personal searches etc. On 04.02.2009, Ld. PP closed prosecution evidence.
9. Statement of accused persons were recorded under section 313 Cr.P.C 5 without oath in order to give an opportunity to the accused persons to explain the circumstances appearing in evidence against them. Accused persons denied the case of the prosecution in its entirety and submitted that they are innocent and have been falsely implicated in this case. They pleaded ignorance with respect to the questions in which they could have denied their involvement. With respect to the questions, which are directly concerning with them vizaviz their apprehension, personal search arrest etc., they have denied the correctness of the case of prosecution put forth. Accused Deepak has taken the stand to the effect that he was lifted from his house and was falsely implicated in this case. Stand of accused Ravi is also to the same effect. Accused Satish has taken the stand that police officials of PS Vivek Vihar used to visit his house day in and day out and had threatened to falsely implicate him in some case several times. That police officials used to visit his house at odd hours and for that reason he had made complaints against police officials of PS Vivek Vihar. He has given this reason as the reason of his alleged false implication. Accused persons had preferred to lead defence evidence and DW1 Dharam Wati was examined as DW1.
10. Smt. Dharam Wati as DW1 has stated that on 17.02.2008 police had come to her residence at H.No. 239, Kashmiri Gali, Janta Colony, Circular Road, Shahdara, Delhi. That these four persons had asked about the whereabouts of Satish and were told that Satish was sleeping. That Satish was lifted by the police and taken to PS. That when the reason of taking away of Satish was 6 asked, she was told to come to the PS to ascertain about the same. That she went to the PS on 18.02.2008 and was told that Satish will be released at 2:00 p.m. That they were asked to come in the evening at 7:00 p.m. That in the evening, police told that Satish cannot be released. That he has been falsely implicated.
11. Arguments were heard at the bar. Ld. Defence counsel Sh. Ravi Karan for accused Ravi and Deepak and Sh. R.K. Sharma for accused Satish have been heard at length. They have argued that accused persons have been falsely implicated in this case. Ld. Defence counsel have led me through the evidence led in the case and have submitted that story put forth is not probable. My attention has been drawn towards the contradictions in the case of the prosecution concerning blades. It has been argued that possibility of the accused persons being falsely implicated is there if the defence of the accused persons is considered.
12. Ld. Public Prosecutor on the other hand has refuted the arguments advanced by Ld. Defence advocates. He has argued that prosecution has established its case beyond the shadow of reasonable doubt and the arguments advanced are not tenable in view of the fact that the categorical testimony of PW3, stands corroborated by the testimony of police officials.
13. I have carefully perused the records of the case and considered the submissions. The first charge framed against the accused persons is under section 392 IPC and I am dealing with the same first. Section 392 IPC 7 prescribes the punishment for robbery. Robbery is an aggravated form of theft or extortion.
14. Robbery is defined under section 390 and is an aggravating form of theft or extortion. The ingredients required are as follows: First paragraph Robbery is
(a) either theft, or
(b) extortion Second paragraph Theft is robbery if the following ingredients are satisfied :
(a) the offender voluntarily causes or attempts to cause to any person,
(i) death, or
(ii) hurt, or
(iii) wrongful restraint, or
(iv) fear of instant death, instant hurt or instant wrongful restraint.
(b) the act mentioned in (a) above is done (i) in order to the commission of the theft, or (ii) in committing the theft, or (iii) in carrying away or attempting to carry away any property obtained by the theft. Third paragraph
Extortion is robbery in the following circumstances.
(a) at the time of committing extortion the offender is in the presence of the person put in fear.
(b) the offender commits extortion by putting that person in fear of instant death, 8 hurt, or wrongful restraint.
(i) to that person, or (ii) to some other person. (c) by so putting such person in fear, the offender induces the person so put in fear then and there to deliver the thing extorted.
Theft is defined under section 379 IPC and has the following ingredients:
(i) a person moves any movable property
(ii) such person intends to take the property dishonestly
(iii) The property is moved out of the possession of any person
(iv) the moving is in order to such taking as is mentioned in two above
(v) the person out of whose possession property is moved has not consented.
15. The word 'dishonestly' is defined as doing of anything by anyone with the intention of causing wrongful gain to one person or wrongful loss to another person.
Extortion is defined under section 383 and consists of following ingredients:
(a) a person intentionally puts any person in fear of injury
(b) such injury is to that person or to any other
(c) thereby he induces the person so put in fear to deliver to any person
(i) any property, or
(ii) valuable security, or
(iii) anything signed or sealed which may be converted into a valuable security.
Valuable security is defined under section 30 of the IPC. It denotes a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right. 9
16. After enumerating the required ingredients, I deem it expedient to advert to some legal position with respect to appreciation of evidence. I am adverting to the mandates of some of the cases wherein the points involved in this case as well as points involved generally in determination of the cases have been dealt with. The mandates of some of such judgments are being given in the succeeding paragraphs:
17. In K. Mochi Vs. State of Bihar, reported in AIR 2002 SC 1965, it was held that normal discrepancies in evidence due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence do not corrode the credibility of the witness.
18. In R. Babu Vs. State of Bengal, reported in AIR 2000 SC 908, it has been held that proof beyond reasonable doubt is a guideline in fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human process. In Anil Singh's case, reported in AIR 1988 SC 1998, it has been held that a Judge does not preside over a criminal trial merely to see that no innocent man is convicted, but also to see that a guilty person does not escape conviction. One is as important as the other. Both are public duties which the Judge has to perform. In Orilal Liaswal 1994(1) SCC 3, it was reiterated that justice cannot be made sterile on the plea that it is better to let 100 guilty escape, since it is not doing justice according to law.
19. In Mohan Singh's case, reported in 1999(1) SCR 276, it has been held that all efforts should be made to find the truth as it is for this very object that courts are created. To search it out courts have been removing chaff and dust as these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is the solemn duty of 10 the courts not to merely conclude and leave the case the moment the suspicions are created. It is onerous duty of the court, within permissible limits to find the truth. It means, on one hand no innocent man should be punished,but on the other hand to see that no person committing an offence should go scotfree.
20. I am now adverting to the facts of the present case. I am of the considered view that from the testimony of PW3 all the ingredients of section 392 stand proved. The relevant portions of the examinationinchief touching upon the ingredients of section 392 IPC are being reproduced here in below for the sake of convenience: " I am driver by profession...... On 17.02.2008, around 3:00 p.m, I was going to the house of ....... All the accused persons present before the court met me in the way. Accused Ravi (witness pointed out towards the accused, who disclosed his name as Ravi) caught hold of me. Thereafter accused Deepak (witness pointed out towards the accused, who disclosed his name as Deepak) took out Rs. 2,400/, which were lying in front pocket of my wearing shirt.
Accused Satish (witness pointed out towards the accused, who disclosed his name as Satish) put a blade on my neck and directed me to keep quite, failing which he will insert the blade in my neck. My wrist watch was also removed by accused Deepak, present before the court........."
21. From the above extracted testimony of PW3, the ingredients required under section 392 IPS stand established as a sum of Rs. 2,400/ and wrist watch were snatched from PW3 on the point of the blade. All the accused persons have actively participated in the commission of the offence and a reasonable prudent man will believe that accused persons snatched a sum of Rs. 2,400/ and a wrist watch from PW3 Sh. Veerpal. Every reasonable 11 prudent man will come to the same conclusion, when he will read the above mentioned lines in juxta position with the ingredients of section 390 IPC which are inclusive of ingredients of Section 378/382 IPC. So, I have no hesitation to observe from the above extracted testimony that the offence under section 392 stands brought on record.
22. Testimony of PW3 extracted above has stood true on the touch stone of crossexamination. During crossexamination nothing beneficial came out for defence. This witness has confidently answered all the questions in cross examination. He has testified that he is not much educated. He has also testified that he was weeping while chasing the accused persons and raising alarm which is a normal conduct on the part of PW3. He has denied the suggestion that accused Ravi and Deepak had not robbed him. He has also denied the suggestion that none of the accused had caught hold of him. He has also denied the suggestion that notes and wrist watch were not recovered from the possession of the accused persons. He has denied the suggestion that he was deposing false facts at the instance of the police officials. He has denied the suggestion that accused Satish was not involved and recovery of surgical blade had not taken place from him. He has denied the suggestion that no incident had taken place with him and he was deposing falsely.
23. From the above discussion of crossexamination, there is no hitch on my part to observe that this witness has stood the test of crossexamination. There is no suggestion to this witness that he was on inimical terms with the 12 accused persons and in view of this fact, there were no reasons with this witness to falsely implicate the accused persons as so put forth during the course of arguments as well as in the stand taken in the statement under section 313 Cr.P.C.
24. PW3 has testified about post incident stage as well and his version is inconsonance with the testimony of police officials, which would not have been the case had this witness not been a true witness. He has testified that he raised alarm " chore chore" and followed them. That 23 officials who were coming from the opposite side, over powered all the three accused persons, present before the court. He has further testified that his money and wrist watch were recovered from the possession of accused Deepak. He has also testified that blade was recovered from the possession of accused Satish. He has also testified that police interrogated the accused persons and the accused persons disclosed their names. He has testified about seizure of blade, wrist watch. He has also testified about personal search memos and arrest memos. The version of PW3 in examinationinchief is inconsonance in sum and substance with the version put forth by him in his statement Ex.PW1/A. His version is also inconsonance with the version of the police officials in this regard and I have thus no hesitation to believe this witness as the testimony of this witness is very cogent, credit worthy and bears the ring of truth.
25. Not only this PW1 HC Raj Kumar has given a detailed version with respect 13 to apprehension of the accused persons. His testimony has found full corroboration in the testimony of PW5. He has testified that sum of Rs. 2,400/ and wrist watch were recovered from accused Deepak. He has also testified about the apprehension of accused persons. During cross examination, this witness could not be shaken. He has given the proper replies which are natural. He has given the details about the manner of apprehension of the accused. He has denied the suggestion that he had not joined the investigation of the case. He has also denied the suggestion that accused Ravi and Deepak were lifted from their respective houses and were falsely implicated in this case. He has also denied the suggestion that nothing was recovered from the accused persons and all the memos were prepared in the PS.
26. Similarly, PW4 Ct. Naresh has testified about the apprehension of the accused persons. His version is in substantial consonance with the version of PW1. He has denied the suggestion that he had not participated in the investigation of the case and no recovery was affected from the accused persons. He has also denied the suggestion that memos were prepared in the PS and accused persons were lifted from their houses. He has also denied the suggestion that he was deposing falsely at the instance of the I.O.
27. Thus, from the testimony of PW4 also, the involvement of the accused persons in the commission of offence stands brought on record. From the testimony of this witness, it is clearly inferable that amount of Rs. 2,400/ and 14 wrist watch belonging to PW Veerpal Singh was recovered from the possession of accused Deepak. It is also clearly inferable that accused persons were running after robbing PW3 of Rs. 2,400/ and wrist watch and were being chased by PW3, who was raising the noise of 'chor chor'. The testimony of PW4, even if it is read in the absence of the testimony of PW3 concerning actual occurrence, is proving the fact that accused persons were apprehended at the spot and wrist watch and Rs. 2,400/ were recovered from them. No explanation has been offered by the accused persons in this regard for which an adverse inference has to be drawn against the accused persons. Plea of alibi taken by the accused persons clearly stands negatived by the above discussed version of Pws. Simultaneous running, chase by the complainant, coupled with the recovery clearly brings the case of the prosecution within the ambit of section 392 IPC. Therefore, I have no hitch in observing that prosecution has established its case under section 392 IPC.
28. PW5 ASI Pritam Singh has also corroborated fully the version of PW1 and PW3. Shorn of unnecessary circumlocution, I hereby observe that from the testimony of this witness also offence under section 392 IPC stand established against the accused persons. This witness has denied the suggestion that he had conducted the entire proceedings at the PS and had not visited the spot. He has denied the suggestion that he was deposing falsely. He has also denied the suggestion that accused persons were lifted from their houses and were falsely implicated in this case.
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29. Thus, in view of the above going discussion accused persons are held guilty under section 392/34 IPC. There is no requirement on my part to discuss about the applicability of section 34 in this case as the facts of the case speak about the same equivocally and categorically. Had the accused persons not been involved jointly in the commission of the offence, they would not have been running simultaneously while being chased. Moreover, in view of the defence of the accused being to the effect that they were lifted from their houses, this aspect requires no further discussion and I have no hitch in observing that offence of robbery was committed by the accused persons in furtherance of their common intention.
30. Arguments of Shri R.K. Sharma are not tenable as merely because the accused was apprehended on the railway line, is no ground to exclude the jurisdiction of this court . I had asked Sh. R.K.Sharma, as to which railway court was having the jurisdiction, in case, this court was not having the jurisdiction. Sh. R.K. Sharma could not reply the question put by me. The reason for the same was that jurisdiction of Session Court is not barred in session triable cases. In the present case, the accused has been charged for an offence which is triable by the sessions and therefore, Railway Magistrate could not have tried the case of the accused persons. So for this simple reason argument is not tenable and rejected. Perusal of the Railways Act, 1989, reveals that section 137 to section 182 deal with the offences which have any nexus with smooth running of railways. Section 181 provides that no 16 court inferior to that of a Metropolitan Magistrate of a Judicial Magistrate of Ist class shall try an offence under the Railways Act. Thus, from the angle of Railway Act as well, the argument is not tenable. Facts of the case clearly reveal that the same do not have any nexus with smooth running of railways. So the argument is rejected.
31. Argument that according to the case of the prosecution, incident took place in the railway station gali whereas PW3 Shri Veer Pal has testified that he had followed the accused persons on the railway line on foot and this brings on record two places concerning commission of offence, for which accused persons are entitled to benefit of doubt is not tenable. I am not inclined to allow this argument as perusal of Ex.PW3/A shows that point A and railway line are quite nearby. There was every possibility between the witnesses to depose some contradictory facts concerning the place of occurrence. The reason for the same lies in the fact that accused persons were apprehended after a chase. So the argument is not tenable.
32. The argument which was argued with great vehemence concerning there being two surgical blades is of some help to the accused Satish and not to other accused. I have awarded benefit of doubt to accused Satish u/s 397 IPC for this reason. However, this unfilled hole on the part of the I.O. does not take away the veracity of the case of the prosecution u/s 392 IPC against the accused persons. Another reason to disallow this argument is that belated explanation of PW5 in his examination in chief dated 2.2.2009, has gone 17 unchallenged. I am reproducing the belated explanation herein below: "During the time of locking the accused persons in the lock up, accused persons were thoroughly checked and then surgical blade was recovered from the possession of accused Ravi."
33. The above extracted version has gone unchallenged and uncontroverted and accused persons cannot get benefit of the negligence of the I.O. in this regard as far as Section 392 IPC is concerned. This I am observing for the reason that PW 3 Sh. Veer Pal, who is a public witness has categorically roped in the accused persons as the offenders and I could not find any reasons to disbelieve him. The argument that there are contradictions in the testimonies of PWs is of no help as minor contradictions were bound to take place. I deem it pertinent to mention that I had asked the Defence Advocates to tell me in specific, the contradictions in the testimonies of PWs. Despite my specific asking Advocates could not provide me the contradictions interse the testimonies and they argued the above referred arguments only. The argument that some public persons should have been joined is of no help as it was not statutorily required to join the public witness. It is common knowledge that public witnesses try to shy away from joining the investigation in order to avoid their future harassment which unfortunately takes place in Indian conditions. So the argument is rejected.
34. Argument of Shri Ravi Karan Vaishnav to the effect that PW4 Ct. Naresh has testified during cross examination that wrist watch was of golden colour which is in contrast with the case of the prosecution vide which it was 18 presented that wrist watch was of black colour, is of no help as PW4 Ct.Naresh has deposed falsely in this regard on account of inadvertence and mixing of facts. Best witness to decide about the same is PW3 and had PW3 testified that wrist watch of some other colour than the black, then a doubt could have come in the mind of the court. However, it is not so. PW3 Sh.Veer Pal to whom the watch belong, has testified during cross examination categorically to the effect that his wrist watch was having black colour dial, this takes away the sheen from the argument of Ld. Defence Counsel Sh. Ravi Karan. Police officials have to depose in many cases and chances are always there of mixing the facts and it was this reason due to which PW4 Ct. Naresh testified that wrist watch was of golden colour. Accordingly, the argument is rejected.
35. Argument of Sh.Ravi Karan to the effect that there are different versions concerning distance of the place of occurrence as PW1 has testified that incident took place in railway station wali gali , in examination in chief and in cross examination he stated that spot was about 100 or 150 ft. away from the railway track. He has also argued that PW3 has testified that accused persons were chased on the railway track. My attention has been drawn towards cross examination wherein PW 3 has testified that incident took place near the railway line and he was walking parallel to the railway lines when the incident occurred. My attention has also been drawn towards cross examination of PW4, wherein PW4 has testified that street was closed and 19 there was no way in the street leading to escape. On the basis of different versions about the place of incident, Sh. Ravi Karan Vaishnav argued that veracity of the case of the prosecution has been shakened. I do not agree with Sh. Ravi Karan Vaishnav, for the reason that this type of contradictions were bound to take place in the facts and circumstances of the present case. Accused persons were running and were being chased. Therefore, chances of different perceptions being there were there. It is well settled that different persons have different capacities of perception, retention, reproduction, observation etc. and two persons will not be in a position to give the ditto version of the incident. Different versions on a particular fact, are therefore, to be examined on broader probabilities. On examination, on broader probabilities I have found that discrepancies pointed out by Ld. Defence Counsel concerning place of occurrence being near the railway line, in the street near the railway line, on the railway line, across the railway line, 100 or 150 feet from railway track etc. are of no help and are disallowed.
36. Argument that shop keeper from whose shop bench was fetched has not been examined, is of no help as I have already observed that public witnesses shy away from joining the investigation. Moreover, efforts were made for joining the public witnesses and no fault can be found with PW5 in this regard. PW5 has testified in his cross examination that he had asked the public persons to join the investigation. Argument that why the accused persons did not try to escape after the seeing the police officials in uniform, is 20 of no help as future conduct of a person cannot be forecasted. Argument that there are different versions concerning carrying out of writing work are also not tenable. No doubt, PW1 has testified that all the documents were prepared at the spot while sitting on a bench which was lying nearby the shop and PW3 has testified that documents were prepared in the P.S. It is also there in the testimony of PW4 that writing work was done by H.C. Raj Kumar while standing and ASI Pritam Singh conducted proceedings at the spot while standing with the help of some object on which he had placed his leg. It is also there in testimony of PW5 that writing work was done while sitting on bench which was lying at the tea shop in the vicinity of the shop. No doubt, versions of Pws concerning the spot of writing work are at variance but the question arises as to whether these variances should be termed as material variances or not. I am of the considered view that in view of the testimony of PW3 the variances have to be considered as immaterial. I am of the considered view that police officials forgot facts of the case due to lapse of time and it resulted into the above mentioned discrepancies. However, the duty of the court is to arrive at the truth and accused is not to be awarded the benefit of doubt merely because some contradictions here and there have emerged on record. Court has to do the onerous duty of finding the truth. From the testimony of PW3, I am of the considered view that ingredients of offence u/s 392 IPC have been categorically brought on record and accused persons can be convicted on the sole testimony of PW3. For these reasons, 21 the contradictions are not tenable and are disallowed.
37. Argument that PW1 has testified that seal was kept by him and was not returned is of no help as in the present case complainant PW3 Sh.Veer Pal has categorically testified about his robbing on the part of the accused persons. He has categorically identified the accused persons. Accused persons were arrested from the spot and articles of PW3 were recovered from the accused persons. PW3 was very fair from the very beginning and had not claimed Rs.65/ which were belonging to the accused persons as so exhibited by Ex.PW1/B. Argument that there are different versions concerning timings also meets the same fate. No other argument was advanced.
38. Coming to section 397 IPC. In view of the fact that PW1 HC Raj Kumar has testified in his examinationinchief that a surgical blade was found in the right side pocket of pant of accused Deepak (10th and 11th line of examination inchief from bottom to top of first page of examinationinchief), coupled with his further version in the very next breath that it was recovered from the pant of Satish, I deem it expedient to award benefit of doubt to the accused under section 397 IPC. Another reason to award the benefit of doubt to the accused Satish in this regard is that in the case of the prosecution, there is no mention about two surgical blades and there is mention about only one surgical blade., whereas during evidence two surgical blades were produced. It is a different matter that recovery of surgical blade was explained. I deem it expedient to observe that I.O has been negligent in this case in this regard. Reason for 22 saying so is that in his examinationinchief, he stated that surgical blade was recovered from the possession of accused Ravi during the time of locking of the accused persons in the lockup, when they were thoroughly checked up. The relevant portion is being extracted here in below: "During the time of locking the accused persons in the lockup, accused persons were throughly checked and then surgical blade was recovered from the possession of accused Ravi".
39. No doubt the version of PW5 in this regard has gone unchallenged and uncontroverted, but the fact remains that the negligence of the I.O in this regard is there. He should have shown the surgical blade in the personal search of the accused and this fact should have formed part of the report under section 173 Cr.P.C or the documents accompanying the same. As it has not so taken place, I deem it expedient to direct the DCP East to conduct an inquiry against I.O ASI Pritam Singh and take suitable action against him in this regard. The negligence of the I.O. has constrained me to acquit accused Satish for the offence u/s 397 IPC. Had the dereliction of duty not been there on the part of I.O. concerning proper movement of blade/blades then this court would have been in a position to convict accused Satish u/s 397 IPC as well.
40. I am also of the view that investigation of such a serious case should not have been given to an ASI and DCP should take note of this aspect also. Action taken report in this case shall be sent to this court. Matter shall also be brought to the notice of Commissioner of Police so that corrective measures to prevent future recurrence of such cases can be taken by the Commissioner of 23 Police. A copy of the judgment be sent, therefore, to the Commissioner of Police as well.
41. Discussion about the defence of the accused persons has been left as this aspect has struck to my mind only now. In the statement u/s 313 Cr.P.C., plea of alibi has been taken. I have no hesitation to observe that this plea has been taken for the sake of taking. PWs have categorically denied the suggestion in this regard. No documentary evidence has been brought on record concerning plea of alibi. Onus to prove the plea of alibi to the satisfaction of the court lies upon the accused. I have no hesitation to observe that accused persons have failed to establish the plea of alibi. Version of DW1 is of no help to the accused persons as in cross examination Pws were not suggested in the tenor in which DW1 Dharam Wati has deposed . Moreover, Dharamwati is an interested witness and her testimony bears no weight, at all, when it is read in the light of testimony of an independent witness PW3. Accused persons were arrested at the spot as so testified by PW3 and hence question of the plea of alibi being true does not arise , at all. Apprehension of the accused persons at the spot, recovery of wrist watch and a sum of Rs.2400/, arrest and search of the accused persons, preparations of memos, recording of disclosure statements , pointing out memos coupled with medical examination of the accused persons on the same date of their apprehension, clearly negate the plea of alibi set up by the accused persons and I have no hesitation in rejecting the same.
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42. In view of the above going discussion, accused persons are held guilty for the offence punishable u/s392 IPC. Accused Satish is acquitted of the charge u/s 397 IPC. Let the convicts be heard on the point of sentence.
Announced in open court (DILBAG SINGH)
on 28.07.2009 ADDITIONAL SESSIONS JUDGE01(E):
KARKARDOOMA COURTS: DELHI.
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IN THE COURT OF SHRI DILBAG SINGH: ADDITIONAL SESSIONS JUDGE 01(E): KARKARDOOMA COURTS : DELHI.
Sessions Case No.49/08 State V/s 1. Satish son of Sh. Dhram Pal, R/o H.No. 239, Janta Colony, Circular Road, Shahdara, Delhi.
2. Ravi son of Sh. Raj Pal, R/o Tikona Park, Teele Ke Upar, Kumar Wali Gali, Farsh Bazar, Shahdara, Delhi.
3. Deepak son of Sh. Satpal, R/o Kullu Halwai Ka Makan, Railway Station Wali Gali, Janta Colony, Circular Road, Shahdara, Delhi.
FIR No. 40/08 PS Vivek Vihar U/s 392/411/397/34 IPC ORDER ON SENTENCE:
1. I have heard the convicts and their Advocates Sh. R.K. Sharma and Shri R.K. Vaishnav on the point of sentence. They have requested for taking a lenient view.
2. Convict Satish has stated that he is not a previous convict; is 22 years of age and is in J.C. since beginning i.e. from 18.2.2008. That he was doing the work of book binding and was earning Rs. 1500/ to Rs.1600/ per month. That he is having a large family to support consisting of his parents, two elder brothers and two sisters; his father prepares kulfi cups and he is unmarried. 26
3. Convict Deepak has stated that he is not a previous convict; is 21 years of age; has a large family to support consisting of his parents, four brothers and seven sisters; his mother is working as maid servant; his father is blind and he is the eldest son in the family. That he was doing the wiring work and was earning Rs.2000/ per month and he is unmarried. That he is in J.C. since beginning i.e. 18.2.2008.
4. Convict Ravi has stated that he is not a previous convict; is 21 years of age; has a large family to support consisting of his mother, four brothers and three sisters; his mother is working as maid servant; his father is no more. That he was doing local fevicol preparation work and was earning Rs.2000/ per month. That he is unmarried. That he is in J.C. since beginning i.e. 18.2.2008.
5. Ld. Public Prosecutor on the other hand has submitted that convicts do not deserve any leniency in view of the seriousness of the offence and should be given deterrent punishment.
6. I have carefully perused the records of the case and considered the submissions. Before adverting to sentencing aspect, in the present case, I deem it expedient to make a little bit discussion about principles of sentencing.
7. Sentencing is a difficult task as the court has to decide the quantum of sentence on the basis of facts and circumstances of each case. The court has to balance the conflicting interests of the society on the one hand and that of the convict on the other hand. Hon'ble Supreme Court in 2008 (VII) SCC 17, 27 has provided apposite guidelines in this regard. In this judgement reliance has been placed on Dhananjoy Chatterjee Alias Dhanna Vs. State of W.B., reported in 1994 (2) SCC 220. Reliance has also been placed on Shailesh Jasvantbhai and Another Vs. State of Gujarat and Others, reported in 2006 (2) SCC 359.
8. I am not burdening this order with the ratio decidendi of these cases and the same may be read as part of this para. Hon'ble Supreme Court has reiterated the principles of sentencing in 2008 VIII AD (S.C.) 581 titled as State of Madhya Pradesh Vs. Pappu @ Ajay and has referred State of Madhya Pradesh vs Ghanshyam Singh 2003 (8) SCC 13 and State of Barkare @ Dalap Singh 2005 (5) SCC 413. Reliance has also been placed on Dennis Councle MCG Dautha v/s State of Callifornia, 402 US 183: 28 L.D.2d 711 and Sevaka Perumal etc. vs State of Tamil Nadu, AIR 1991 SC 1463.
9. I am not referring to the mandates of the above mentioned judgments as well for the sake of brevity and the same may be read as part of this para. Suffice to say that crux of all the judgments mentioned above is that sentencing court has to make a delicate balance between the conflicting interests of the society and victim on the one hand and that of the convict on the other hand. No doubt, the balancing cannot be done in golden scales but an effort has to be made in this direction.
10. In view of the above mentioned legal exposition , let the facts of the present case be confronted with. Convicts robbed a sum of Rs.2400/ and a 28 wrist watch at the point of surgical blade from complainant in furtherance of their common intention. This is an aggravating circumstance against the convicts as incidents of this nature are increasing day by day and require deterrent punishment so that present case can serve as a precedent to deter the such like convicts. On the other hand submissions made by the convicts and their counsel are mitigating circumstances. Young age of the convicts as well inclines me to consider this aspect as a mitigating circumstance. Making a balance between the two convicts are sentenced as follows.
11. Convicts are sentenced to undergo R.I. for a period of four years each and to pay fine of Rs. 4000/ each under Section 392 IPC. In default of payment of fine, they shall undergo further undergo R.I. for a period of four months each.
12. Benefit of set of under Section 428 Cr.P.C. is given to the convicts. A copy of the judgment and order on sentence be supplied to convicts free of cost.
Announced in the open court (Dilbag Singh)
Dated: 29.7.2009 Additional Sessions Judge01(E):
Karkardooma Courts: Delhi.