Delhi District Court
St vs Firoz Fir No. 223/09, Ps Bhajan Pura, ... on 25 May, 2011
1 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS JUDGE : DELHI Case ID Number 02402R0279382009 Sessions Case No. 150/09 Assigned to Sessions 03/10/09 Arguments heard on 25/5/11 FIR NO. 223/09 Police station BHAJAN PURA Under Section U/Sec. 332/353/394 IPC Date of order 25/05/11 Out come of the case CONVICTED. STATE VS. FIROZ S/O MENAZ PEHLWAN R/O MAZAR KE SAMNE PATLI GALI NO.5, CHAND BAGH DELHI. PR : Sh. S.K Dass, Ld. Addl. PP for the state. Sh. A.K Tiiwari Advocate on behalf of accused. JUDGMENT
1. On 16/6/09 a case u/s 186/392/394/397/411IPC r/w sec. 25 & 27 Arms Act was registered at PS Gokal Puri vide FIR No. 233/09 on the basis of statement of Santosh Kumar s/o Sh. Ram Ashish r/o 184A, Gali No.4/1 Karawal Nagar Delhi against Firoz s/o Menaz Pehlwan, r/o Mazar Ke Samne Patli Gali no.5, Chand Bagh, Delhi.
1 2 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC
2. Brief facts arising out of this case are that on 16/6/09 on receipt of DD No. 18B ASI Suresh along with Const. Charan Singh reached at the spot i.e C-12 Police Picket Yammuna Vihar Delhi and on reaching there ASI Lalu Oraon handed over a mobile phone make Noika 1650 and one Ustra (Eraser). Complainant Santosh was also present there and his statement was recorded wherein he stated as under:
"On 16/6/09 at about 9 a.m he boarded a RTV bus bearing No. DL-1MC-0195 from Bhajan Pura bus stand and was going towards Jheel Khureji. In the mean time at about 9.10 a.m when he reached near Kardam Puri bus stand, 66 foota road one person who was also traveling in the said RTV demanded his mobile phone and when he refused to handover his mobile phone to him that boy landed a Thapper blow on his person and also landed a ustra/eraser blow but some how he saved himself. That boy also snatched his mobile phone make Nokia 1650. That persons also landed an ustra blow on another passenger who was also traveling in the said RTV bus. He tried to save himself. When RTV bus slowed down near Kardam Puri bus stand that boy tried to run away after jumping from the moving 2 3 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC RTV bus. ASI Lalu Oraon and Const.
Damber Singh who were present infront of picket apprehended that boy while running and that person also landed an ustra/eraser blow on the left hand thumb of Const.
Damber Singh. ASI Lalu Oraon also attempted to apprehend the accused but accused grappled with ASI Lalu Oraon and torn the right side shoulder badge of his uniform worn by him. But ultimately they both apprehended the accused near C-12 Police Picket Yammuna Vihar. He was interrogated and his name was revealed as Firoz s/o Menaz Pehlwan r/o Mazar Ke Samne Patli Gali no.5, chand Bagh, Delhi. Ustra/Eraser was also seized from his left hand, PCR was informed, Mobile phone was recovered. ".
3. After registration of the case, investigation were initiated, 4/5 persons were asked to joint he raiding party but none agreed. Mobile phone was converted into pullanda and sealed with the seal of SH. Sketch of Ustra was prepared which was also converted into pullanda and sealed with the seal of SH and seal after use was given to Const. Charan Singh. Site plan was prepared at the instance of complainant Santosh Kumar. Const. 3 4 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC Damber Singh was got medically examined vide MLC N o. A-2597/09 and nature of injury was opined as simple caused by sharp object. The uniform worn by ASI Lalu Oraon was taken in possession, disclosure statement of accused was recorded. Case property was deposited in the Malkhana. Mobile phone of complainant was released on superdari to its real owner, statement of witnesses were recorded and after completion of all necessary investigation challan u/sec. 173 Cr.P.C for the offences punishable u/sec. 186/353/332/394/397/411 IPC r/w section 27 of Arms Act was presented against the accused in the court of Ld. MM.
4. Ld. MM after taking cognizance for the offence supplied the copies of the challan to the accused as provided u/s 207 Cr.P.C and committed the case to the court of Sessions and on turn allocated to this court for trial. Thereafter case was fixed for arguments on charge.
5. After hearing arguments and on perusal of the material placed on record charge for the offence u/s 332/353/394/397 IPC was framed against the accused to which he pleaded not guilty and claimed trial, thereafter case was fixed for prosecution evidence.
6. Sh. Ram Ashish Pd., appeared as (PW1), Sh. Santosh/complainant 4 5 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC appeared (PW2), H.C Yashvir Singh appeared as (PW3), PW Nitesh Kumar appeared as (PW4), Dr. Virat (CMO) GTB hospital, appeared as (PW5), Const. Charan Singh appeared as PW.6, H.C Balbir Singh appeared as (PW7), ASI Lalu Oraon appeared as (PW8), Const. Damber Singh appeared as (PW9) and ASI Suresh Hiwakar/IO appeared as (PW10). Thereafter no witness left to be examined and therefore, prosecution evidence was closed.
7. Brief testimony of all the PW's are as follows:
a).PW.1 is formal witness and he only deposed that he had taken the case property of this case ie mobile phone make Nokia 1650 on superdari from the court and had executed a superdarinama Ex. PW1/A bearing his signature at point A. He further deposed that he was the owner of Nokia 1650 and same was lost on 20.12.10. He also produced the original receipt of the mobile phone Nokia 1650 vide which he purchased from Om Communication and copy of the bill is Ex. PW1/B. He also produced the original 5 6 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC NCR which he got registered at PS Karawal Nagar regarding missing of above mobile phone and the same is Ex. PW1/C. During his cross-examination he reiterated his testimony as submitted during examination in chief.
b).PW.2 is the complainant in this case and deposed that on 16.6.09 at about 9 a.m he was going from Bhajan upra to Jheel on a RTV bus and when RTV reached at Kardam Puri chowk accused present in the court took out an ustra and gave him a slap and asked him to hand over his mobile phone Nokia 1650 having no.
9871838580. When he refused to hand over his mobile phone, he attacked on him with ustra but somehow he saved himself. Accused also snatched his mobile phone from his hand, after that he had also snatched a purse from another person who was traveling in the same RTV bus. He had also quarreled with that person. When RTV bus was to stop he got down from the RTV and started running away, someone informed the PCR , police official reached at the spot and tried to apprehend the accused. 6 7 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC During the said process accused also landed a ustra blow on the thumb of police official. The accused was over powered and apprehended by the police. Ustra and mobile phone were recovered from the possession of accused and his statement was recorded by the IO which is Ex. PW2/A bearing his signature at point A. IO prepared the sketch of the ustra vide memo Ex. PW2/B kept in a pullanda and was seized vide memo Ex. PW2/C. Mobile phone was seized by the IO vide memo Ex. PW2/D. The dress of the police official which was torn by the accused was also seized by the IO vide memo Ex. PW2/E . Accused was arrested vide memo Ex. PW2/F and his personal search was conducted vide memo Ex. PW2/E. His supplementary statement was recorded by the IO in this case. He correctly identified the accused Firoz and also identified the case property i.e Ustra. He also submitted that he can identify the mobile phone if shown to him. (the superdar who is present in the court submits that the mobile has been lost) NCR also brought on record which is Ex.PW 1/C. 7 8 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC During cross-examination he deposed that there were 25/30 passengers traveling in the said RTV bus. He was sitting on the seat by the side of the gate and another person was sitting by his side. None of his friend was traveling with him in that RTV bus. Accused present in the court was also standing by his side. He further stated that RTV bus left Bhajan Puri bus stand at about 8.30 a.m and the incident took place at about 9 or 9.15 a.m and no other passenger who were sitting inside the rTV including conductor tried to apprehend the accused as he was having Ustra in his hand. Incident has taken place inside the running RTV bus. Accused present in the court was apprehended at a distance of 10/15 fit from the RTV bus. Many persons gathered at the spot, his statement was recorded by the police. One Nitesh/public person also joined the investigation.
During his cross-examination he reiterated his testimony as submitted during examination in chief.
c). PW.3 is formal witness and he only deposed that on 8 9 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC 16.6.09 ASI Suresh Hiwkar had deposited three sealed pullandas and personal search of accused I.e Rs.10/-. in malkhana which he had entered vide srl., no. 2376/09 in register 19 . He also produced original register no. 19 and photocopy of the same is Ex. PW3/A. He further deposed that on 20.6.09 one pullanda containing mobile phone was handed over to the superdar Ram Asheesh Prasad (PW.1) as per the direction of Ld. MM of Karkardooma court.
d). PW.4 deposed that on 16.6.09 at about 9 p.m he was going to Bhajan pura from Seelam Pur in a RTV bus no. DL-1MC-0195. When the bus reached near Kardampuri bus stand 66 foota road, accused present in the court gave a slap to one Santosh kumar who was standing there. He also took out a ustra, attacked him and snatched his mobile phone from his hand. Thereafter accused also attacked him(PW.4 Nitesh) by ustra but he saved himself. He further deposed that when the bus slowed down near Kardam puri bus stand accused got 9 10 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC down from the bus. He and Santosh made noise of chor chor the driver stopped the bus . He alongwith Santosh get down from the bus and followed the accused, two police persons (one ASI and one Const.) were present near the bus stand. After hearing their noise they also followed the accused and when the police persons tried to apprehend the accused, accused also attacked them with ustra and by the said Act, the uniform of the constable was also torned and he has also received injuries on his finger. He further deposed that when ASI tried to apprehend, accused had also torn his uniform by pulling the stars on his shoulder. Thereafter the accused was apprehended there. He also informed the PCR. ASI snatched the ustra from his hand and also took the mobile phone of Santosh from the hand of accused, on inquiry accused disclosed his name as Firoz. The local police came to the spot and recorded the statement of Santosh. IO prepared the sketch of ustra vide memo Ex. PW2/B kept in a pullanda and was seized vide memo Ex. PW2/C, the mobile phone of Santosh was also seized vide memo Ex. PW2/D . The torned uniform 10 11 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC of the police official was seized vide memo Ex,. PW2/E. Accused Firoz was arrested vide memo Ex. PW2/F and his personal search was conducted vide memo Ex. PW2/G. All the memos bears my signatures. In rest of his testimony he corroborated the testimonies of other witnesses and also identified Ustra as Ex.P.1 as the same recovered from accused Firoz. He further stated that he can identify the mobile phone if shown to him. During his cross-examination he deposed that there were 40/45 persons in side the RTV bus and further stated that he himself, Santosh and accused present in the court were standing near the gate of the RTV bus. Rest of his testimony is reiterated by him as submitted during examination in chief.
e). PW.5 deposed that on 16/6/09 Dr. Pameli Jr. Resident examined the patient Const. Dharambir Singh aged about 23 years, at about 2.45 p.m . Dr. Pameli examined the patient vide MLC bearing No. A-2597/09 Ex.PW 5/A bearing the signatures of Dr. Pameli at point 11 12 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC A. He identified the signature of Dr. Pameli as she was working under him and she has now left the services of the hospital and her present whereabouts are not know in the hospital record. He also deposed that he had seen the MLC bearing No. A-2596/09 prepared by Dr. Pameli, regarding injured Firoz s/o Menaz Pehlwan, MLC is Ex.PW 5/B bearing the signatures of Dr. Pameli at point A.
f). PW.6 deposed that on 16/6/09 at about 9.30 a.m as he accompanied ASI Suresh Kumar to C-12, Yammuna Vihar, 66foota road Delhi. On reaching there ASI Lallu Oraon and Const. Dumber along with complainant Santosh Kumar and Nitesh met them. Accused Firoz was in the custody of ASI Lallu Oraon who had handed over the custody of the accused to ASI Suresh Kumar. He also handed over the mobile phone Noika 1650 of black colour and one Ustra. He also told him that mobile was recovered from the possession of the accused Firoz and the Ustra was snatched from the hand of accused. Mobile and Ustra were kept in separate pullanda, sealed 12 13 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC with the seal of SH and were seized vide memo Ex.PW 2/C and 2/D respectively. Before seizure of Ustra sketch of Ustra was prepared vide memo Ex.PW 2/B. IO had directed ASI Lallu Oraon to take Const. Dumber to hospital as he received injuries in the hands of accused. IO recorded the statement of complainant Santosh Kumar, prepared rukka and handed over the same to him for registration of FIR. He went to police station, got the FIR registered and after registration of FIR returned to the spot, handed over the copy of FIR and original rukka to the IO. Accused Firoz was arrested vide arrest memo Ex. PW 2/F and his personal search was conducted vide memo Ex. PW 2/G. ASI Lallu Oraon had also handed over his uniform to the IO which was seized vide memo Ex.PW 2/E. He further stated that his statement was recorded by the IO. He identified the case property i.e Ustra as Ex.P.1., and police uniform/shirt belonging to ASI Lallu Oraon as Ex.P.2. He also submitted that he can identify the mobile phone if shown to him but the mobile phone was got lost and this fact is proved by PW.1/superdar.
13 14 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC During his cross-examination he submitted that seal after use was given to him and he returned the seal in the evening time. He also failed to explain as to who signed the seizure memo and personal search memo of the accused.
Rest of his testimony is reiterated by him as submitted during examination in chief.
g).PW.7 is the duty officer and deposed that on 16/6/09 at about 11.15 a.m on the receipt of rukka sent by ASI Suresh Hiwakar through Const. Charan Singh, he registered formal FIR No.223/09, the computer copy of the same is Ex.PW 7/A bearing his signatures at point A. He also made endorsement in the rukka Ex.PW 7/B and handed over the copy of FIR and original rukka to Const. Charan Singh for onwards transmission to IO for further investigation.
h). PW.8 is ASI Lalu Oraon and PW.9 is Const. Damber 14 15 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC Singh. Both are the witnesses of the fact that on receipt of DD No. 18B they both reached at the spot i.e at picket No. C-12 Yammuna vihar 66 foota road as they both were on picket duty. They both further deposed that at about 9.15 a.m they saw a person was running after getting down from RTV bus. They both followed him. At the time of his apprehension, accused landed a Ustra blow on the finger of Const. Damber Singh/(PW. 9). He also torn the shoulder badge of his uniform. They both identified the accused present in the court, as the person who had caused Ustra injury to Damber Singh and torn his shoulder batch. PW.8 deposed that he snatched the open ustra from the hand of accused. The personal search of accused was taken and mobile phone make Nokia 1650, was taken out from the pocket of the pant worn by the accused. Two public person also reached at spot and disclosed their name as Santosh and Nitesh. PW.2/Santosh told him that mobile phone recovered from the accused belongs to him and was robbed by the accused inside the running RTV bus on the point of Ustra. They also deposed that some body informed the 15 16 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC PCR, ASI Suresh Hiwakar and Const. Charan Singh came to the spot and they handed over the custody of the accused Fiorz, Usrta and mobile phone to IO. As per direction of the IO he took injured/Const. Damber to GTB hospital for his medical examination. PW.8 also handed over his torn uniform to the IO which was seized vide memo Ex.PW 2/E. IO also recorded the statement of Santosh complainant, prepared the sketch of Ustra which was recovered from the hand of accused, which is Ex.PW 2/B, same was kept in pullanda, sealed with the seal of SH and was seized vide memo Ex.PW 2/C. Mobile phone was also seized vide memo Ex.PW 2/D after keeping it in pullanda and sealed with the seal of SH. Accused Firoz present in the court was arrested vide memo Ex.PW 2/F and his personal search was conducted vide memo Ex.PW 2/G. They both identified the Ustra Ex.P.1, torn Uniform Ex.P.2nd also stated that they can identified the mobile phone if shown to them, but as per testimony of PW.1, mobile phone in question was misplaced and NCR in this regard has been brought on record.
16 17 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC During cross-examination of PW.8 he deposed that he saw the accused running with Ustra but had not seen him getting down from RTV bus. He also stated that he in his statement to the IO disclosed that mobile phone was recovered from the pocket of the pant of the accused but in his statement Ex.PW 8/DA the word "from the pocket" is not mentioned. Rest of his testimony is reiterated by him in his testimony as submitted during examination in chief.
During cross-examination of PW.9 he stated that bus stand was at a distance of 25/30 mtrs., from the place of incident. He had not seen the accused getting down from the bus having Ustra in his hand. He also stated that ASI Lalu Oraon was also with him at that time and the accused was apprehended at a distance of ten mtrs., from the RTV bus.
During his cross-examination he reiterated his testimony as submitted during examination in chief.
I). PW.10 is the investigating officer of this case and deposed that on 16.6.09 on receipt of DD NO. 18 B, true 17 18 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC copy of which is EX PW 10/A, he alongwith Ct.. Charan Singh reached at C-12 Police picket Yamuna Vihar, and on reaching there they found ASI Lalu Oraon, Ct.. Dambar Singh, accused Firoj and two public persons Santosh and Nitesh present there. ASI Lalu Oraon handed over him the custody of accused Firoj, one ustra and one mobile phone make Nokia 1650 black colour. He had also briefed the fact to him. He recorded the statement of public persons Santosh Kumar vide memo EX PW 3/A. He made his endorsement EX PW 10/B, prepared a rukka and handed over to Ct. Charan Singh for registration of the FIR. He also prepared the site plan EX PW 10/C with correct marginal notes, prepared the sketch of ustra EX PW 2/B, kept in a pullanda, sealed with the seal of SH and was seized vide memo EX PW 2/C. He kept the mobile phone in pullanda sealed with the seal of SH and seized vide memo EX PW 2/D. He arrested accused Firoj vide memo EX PW 2/F and his personal search was conducted vide memo EX PW 2/J. Accused Firoj was interrogated and his disclosure statement was recorded vide memo EX PW 10/D. 18 19 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC Injured Ct.. Damber Singh was medically examined at GTB Hospital and the MLC of Ct.. Damber Singh was handed over to him . ASI Lalu Oraon had also handed over his torn uniform to him which was seized vide memo EX PW 2/E. He recorded the statement of witnesses, the case property was deposited in the malkhana, collected the result of MLC. The accused was sent to JC. After completion of investigation he prepared the challan was presented the same before the court of Ld. MM. This witness also identified the ustra EX P1 and uniform EX P-
2. He also stated that he can identify the mobile if shown to me. ( The mobile phone was on superdari and as per the statement of PW 1, the said mobile phone was stolen/misplaced and NCR in this regard brought on record by PW.1).During his cross-examination he reiterated his testimony as submitted during examination in chief.
Thereafter prosecution evidence was closed and case was fixed for examination of accused as required u/sec. 313 Cr.P.C.
19 20 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC
8. During the course of examination of accused u/s 313 Cr.P.C he controverted all the allegations as alleged against him and submitted that he was innocent and has been falsely implicated in this case. He did not desired to lead defence evidence, therefore, defence evidence was closed, and case was fixed for final arguments.
9. I have heard the arguments on behalf of Ld. counsel for all the accused persons and Ld. Addl. PP for the state.
10.Ld. Counsel on behalf of the accused submitted that before convicting the accused under any penal law, it is the duty of the prosecution to prove its case against the accused beyond reasonable doubt and in the present case no incriminating corroborative evidence with regard to the involvement of accused are brought on record against accused.
11.In support of his contention he pointed out the following contradictions and confrontations in the testimonies of witnesses examined by the prosecution :
a) PW.2 Santosh is the complainant in this case and 20 21 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC specifically deposed that when police tried to apprehend the accused, accused landed an Ustra blow on the thumb of police official on the other hand PW.4 Nitesh deposed that when police officials tried to apprehend the accused, he attack with Ustra due to that Uniform of Const. Damber was torn and he also received injuries on his finger, other witness stated that uniform of ASI Lalu Oraon was torn.
b).PW.2 deposed that there were 25/30 passengers in side the RTV bus on the other hand PW.4 during his cross-examination stated that there were 40/45 passengers inside the RTV bus. PW.2 further submitted that he was sitting on the seat by the side of the gate and there was another passenger sitting by his side. On the other hand PW.4 during his cross-examination stated that he himself, Santosh and accused present in court were standing near the gate of RTV bus.21 22
ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC
c). PW.2 submitted that on 16/6/09 at 9 a.m he was going from Bhajan Pura to Jheel in a RTV bus and when he reached at Kardam Puri chowk, accused present in the court took out an Ustra and gave a slap and also forced him to hand over his mobile phone and when he (PW.2) refused, accused Landed an Ustra blow, but some how he saved himself. On the other hand PW.4 submitted that on 16/6/09 at about 9 a.m he was going to Bhajan Pura from Seelam Pur in a RTV bus No. DL-IMC-0195 which clearly suggest that they were traveling in opposite direction and possibility their presence in same bus is totally ruled out.
d). The case property i.e mobile phone which was forcibly taken from the possession of complainant/PW.2 was also not belonging to him rather it was released on superdari to PW.1 who had 22 23 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC also failed to produce the case property before the court on the ground that it was stolen. None production of the case property is fatal to the prosecution case.
12.In view of the aforesaid contradictions and confrontation brought on record during the examination of witnesses it has become crystal clear that prosecution has failed to brought on record the unbreakable chain of circumstances against the accused and requested for acquittal of the accused for the offence as alleged against him.
13.On the contrary Ld. Addl. PP for the State submitted that prosecution has examined ten witnesses in support of their case and on perusal of the testimonies of all the witnesses examined, it is established that prosecution succeeded in proving its case beyond reasonable doubt against the accused.
14.In support of his contention it is submitted that initially the case was registered on the basis of statement of PW.2 Santosh Kumar and in his testimony he specifically stated that on 16/6/09 at about 9 a.m he was traveling in RTV bus and was going from Bhajan Pura to Jheel and when 23 24 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC he reached near Kardam Puri chowk, accused present in the court took out an Ustra and gave slap blow to him. He also forced him to hand over his mobile phone and when he(Pw.2 Santosh) refused, accused also attack him and this fact is further corroborated by PW.3 Nitesh who specifically stated that he was also traveling in the same RTV bus on 16/6/09 but due to typographical mistake it is typed that he was going to Bhajan Pura from Jheel and on perusal of the testimonies of other witnesses it is proved that PW.2 and PW.4 were traveling in the same RTV bus on the date, time and place of incident and due to mere typographical mistake mentioned in the first line of statement of PW.4 cannot be considered as fatal to the prosecution due to the reason that this fact has been proved by other witnesses that both the witnesses were traveling in the same RTV bus on the day, time and place of incident.
15.It is also brought on record that accused was apprehended while running after getting down from the bus at the spot, case property recovered at the spot and factum of recovery of mobile phone and Ustra by the police is duly proved buy PW.2 Santosh and PW.4 Nitesh. Factum of receiving the injuries on the person of Const. Damber/PW.9 is also proved by PW.5 Dr. Virat Sr. Medical Officer Central Jail, Tihar, Delhi, who stated 24 25 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC that injured was examined by Dr. Pameli Jr. Resident, who opined that injuries caused by sharp object which again corroborated the facts that injuries were caused by sharp edged weapon i.e Ustra.
16.The factum of registration of the case is proved by PW.6, factum of receiving mobile phone on superdari by PW.1/superdar and non production of the case property cannot be taken as fatal to the prosecution on the ground that sufficient proof of missing of the said mobile phone is brought on record and proved vide copy of NCR Ex.PW 1/C. However, sufficient documentary evidence i.e purchase of mobile phone is duly proved on record.
17.Factum of depositing the case property in the malkhana and releasing the Mobile phone on superdari to PW.1 is duly proved by PW.3. PW.6 proved the factum of registration of the case on receipt of rukka sent by ASI Suresh through Const. Charan Singh. PW.6 joined the investigation on 16/6/09 with ASI Suresh/IO/PW.10. PW.8, PW.9 and PW.10 are the police officials and proved the factum of visiting the spot on receipt of information vide DD No. 18B. They all corroborated the testimony of official witnesses as well as of the public witnesses. PW.10 is the investigating officer of this case and in view of the aforesaid discussed 25 26 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC evidence it is established that prosecution succeeded in proving its case against the accused beyond reasonable doubt.
18.After hearing the arguments and taking into consideration the rival contentions as raised by ld. Counsels for both the parties, the contradictions and confrontations by ld. Counsels during cross- examination of witnesses I am of the considered view that all the confrontations/contradictions as alleged by Ld. counsel for accused is of trivial nature and cannot prove fatal to the prosecution case. However, factum of presence of accused in RTV bus as alleged, factum of removing the mobile phone from the possession of PW.2 Santosh and causing injuries on the person of PW.9 Const. Damber Singh by using the Ustra and factum of recovery of said Ustra as well as mobile phone is duly proved by the prosecution. Accused also failed to brought on record any evidence in rebuttal to the testimonies of public witnesses as well as police officials and in such circumstances, there is no reason to disbelieve the testimonies of prosecution witnesses which has already been discussed.
19.In view of the aforesaid discussion and taking into consideration the facts and circumstances of the case and evidence adduced by the 26 27 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC prosecution I am of the considered view that prosecution succeeded in proving its case beyond reasonable doubt against the accused for the offences u/sec. 332/353/394 IPC, however, no ingredients to convict the accused for the offence u/sec. 397 IPC are proved against the accused. . I accordingly hold the accused Firoz s/o Menaz Pehlwan guilty for the offence u/s 332/353/394 IPC. Let he be heard on the quantum of sentence.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 25th Day of May 2011 27 28 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC IN THE COURT OF SH. B.S. CHUMBAK, ADDITIONAL SESSIONS JUDGE : DELHI SC No. 150/09 FIR NO.: 223/09 PS BHAJAN PURA State Vs. 332/353/394 IPC PR : Sh. S.K Dass , Ld. Addl. PP for the state.
Sh. A.K Tiwari Advocate on behalf of accused. ORDER ON SENTENCE
1. I have heard the arguments on behalf of Ld. Addl. P.P for State as well as on behalf of Ld. Counsel for the convict on the quantum of sentence.
2. Ld. Counsel for the convict submitted that convict was young man aged about 21 years of age at the time of commission of offence.. Convict has to look after his old aged father and except him no other male member is bread earner in his family.
3. It is further pleaded that the convict is not the previous convict and the conduct of the convict during the whole trial remain good and no any sort of complaint were brought on record by the Jail Authority and considering the young age of convict, requested for releasing him on probation of good conduct as provided u/sec. 3 and 4 of the Probation of Offenders Act r/w Sec. 360 Cr.P.C., or to take lenient view at the time of awarding sentence.
4. On the contrary Ld. Addl. P.P for state argued that the public witnesses/victim who had seen the incident with their own eyes have 28 29 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC specifically deposed against the convict and identified him in the court. The convict also failed to place on record any explanation to the effect that he was falsely implicated in the present case by the public witnesses. In such circumstances it cannot be said that convict has become entitled for taking lenient view on the point of sentence and requested for awarding maximum sentence.
It is further pleaded by Ld. Addl. PP for State that the convict used sharp edged weapon and also attempted to cause injuries on the person of PW.2 Santosh and PW.4 Nitesh and also forcibly removed the mobile phone from the possession of PW.2. Convict also landed Ustra blow on the finger of Const. Damber Singh/PW.9 and also attempted to save himself from the hands of the police officials which in itself is a serious act on the part of the convict. Convict also succeeded in causing injury to the person of Const. Damber Singh and also torned the uniform of ASI Lalu Oraon and Const. Damber Singh and in such circumstances it is submitted that it is not a case for taking lienent view on the point of sentence.
5. Ld. Addl. PP for state also placed her reliance on a decided case cited as " State of Punjab Vs Rakesh Kumar, 2009 Crl. L. J 396" wherein it is observed as under:
"Protection of society and stamping out criminal proclivity must be the object of law which must e achieved by imposing appropriate sentence. Therefore, law as a cornerstone of the edifice of "order" should meet challenges confronting the society. In operating the sentencing system, law should adopt the corrective machinery or the 29 30 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC deterrence based on factual matrix. By deft modulation sentencing process be stern where it should be, and tempered with mercy where it warrants to be. The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused, the nature of weapons used and all other attending circumstances are relevant facts which would enter into the area of consideration. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats."
6. Ld. Addl. PP for the state further pleaded that at the time of committing robbery the offender used sharp edged weapon i.e Ustra/Eraser and also attempted to cause hurt by landing an Ustra blow on the person PW.2 and PW.4 and also caused simple injury by use of sharp edged weapon on the person of Const. Damber Singh, thereby the convict also obstructed the public servants in discharge of their duties. In such circumstance the offender shall not become entitled for taking lenient view at the time of awarding sentence, and any such plea taken by the Ld. Counsel for convict is not tenable in law and is liable to be rejected.
7. In view of the contentions of Ld. Counsel for convict and Addl. PP for state I have also gone through the observations given by their lordships in the aforesaid decided case and the circumstances under which the offence was committed. I also considered the young age of the convict coupled with the fact that he is not involved in any other case except the present one. I also considered the fact that during the trial of this case, 30 31 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC his younger brother Nizam expired and convict is sole bread earner in his family. In view of the rival contentions of ld. Counsels for both the parties I am of the view that it is not a fit case to release the convict on probation, however, it is a case for taking lenient view on the point of sentence.
8. Accordingly I hereby sentenced the convict Firoz s/o Menaz Pehlwan for a term of Rigorous imprisonment for three years and to pay fine of Rs. 1000/- and in default of payment of fine he shall further undergo SI for three months for the offence u/s 394 IPC and further RI for one year and to pay fine of Rs.500/- and in default of payment of fine he shall further undergo SI for three months for the offences u/s 332/353 IPC each. All the sentence shall run concurrently. Fine not paid.
8. Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convict free of cost. File be consigned to the Record Room.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi Announced in the open court on 28th Day of May 2011 31 32 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC 25.05.2011 Present: Sh. S.K. Dass Ld. Addl. PP for state.
Convict produced from J/C. Sh.A.K Tiwari Advocate/Amicus Curiae on behalf of accused.
Vide separate detailed judgment of today accused Firoz hold guilty for the offence u/s 332/353/394 IPC. Let he be heard on the point of sentence on 28.5.2011.
(B.S. CHUMBAK) ASJ-3/North East District KKD/Delhi/25/5/2011.
32 33 ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC 28.05.2011 Present: Sh. S.K. Dass Ld. Addl. PP for state.
Convict produced from J/C. Sh.A.K Tiwari Advocate/Amicus Curiae on behalf of convict.
Arguments on the point of sentence heard.
After hearing arguments I sentenced the convict Firoz s/o Menaz Pehlwan for a term of Rigorous imprisonment for three years and to pay fine of Rs. 1000/- and in default of payment of fine he shall further undergo SI for three months for the offence u/s 394 IPC and further RI for one year and to pay fine of Rs.500/- and in default of payment of fine he shall further undergo SI for three months for the offences u/s 332/353 IPC each. All the sentence shall run concurrently. Fine not paid.
Benefit of Section 428 Cr.P.C shall be given to the convict as per law. Copy of the judgment and this order be given to the convict free of cost. File be consigned to the Record Room.
(B.S. CHUMBAK)
ASJ-3/KKD/NE DISTT.
DELHI/28.5.2011
33
34
ST VS FIROZ FIR No. 223/09, PS BHAJAN PURA, U/SEC. 332/353/394 IPC 34