Delhi District Court
State vs Tanveer Alam on 11 February, 2008
1
IN THE COURT OF SH DINEH KR. SHARMA, ASJ, DELHI.
SESSION CASE NO. 19/07
FIR NO. 70/07
POLICE STATION KIRTI NAGAR
UNDER SECTION. 397/411/34IPC
& 25/54/59 A.ACT.
DATE OF ALLOCATION OF THE
CASE TO THIS COURT:- 09.05.2007
DATE ON WHICH THE JUDGMENT
HAS BEEN RESERVED:- 05.02.2008.
DATE ON WHICH THE JUDGMENT
HAS BEEN DELIVERED:- 05.02.2008.
STATE.
VERSUS
1. TANVEER ALAM
SON OF BADRUDDIN
R/O D-4/88, SULTANPURI, N. DELHI
2. SANJAY KUMAR YADAV @ KHALSA
SON OF LATE JAI RAM SINGH
R/O C-1, GALI NO. 5, SULTANPURI,
N. DELHI.
3. VIRENDER @ UNGLI KATTA,
SON OF SH. RAM NIWAS
R/O D-320, SULTANPURI,
KARAN VIHAR,DELHI.
4. GOGI
(NOT ARRESTED)
JUDGMENT:-
1. Briefly stated, the case of the prosecution is that on 10.02.2007 on receipt of DD number 21A, SI Arvind Verma reached on the spot along with constable Sahender. A bus 2 number DL 1PA 7481 was found parked on the spot. The complainant Siya Ram alleged in his statement made before the Police that he was carrying Rs. 35,000/- and his friend Nemi Chand was carrying Rs. 25,000/-. It was further stated that they boarded the bus at around 3.30 PM from Azad Pur for Sarai Kale Khan Bus stand. At around 4.00 PM, when the bus reached at Maya Puri Chowk three boys came and stood in front of them. One of the said boys took out a knife and put at the stomach of the complainant and asked to part with the money. Another boy pressed the mouth of Nemi Chand. The third one took out the money from the pocket of Siya Ram and Nemi Chand. Forth accomplice of the offender stated that in case of resistance, they may stab the victims. The complainant stated that they gave away the money under the fear. The complainant also narrated the made the description of the accused persons.
2. IO made the endorsement on the complaint and handed over the same to constable Sahender for registration of the case. A case FIR No. 70/2007, under Section 379/411/34 IPC & 25/54/59 Arms Act was registered.
3. During the investigation, on 16.02.2007 on the basis of secret information, accused Tanveer Alam and Sanjiv Kumar Yadav @ Khalsa were apprehended near Nangloi Railway Station. Accused Tanveer Alam was found in possession of a knife. He also disclosed the complicity of co-accused Sanjiv Kumar Yadav @ Khalas, Virender @ Ungli Katta and Gogi.
4. In pursuance of the disclosure statement, accused Tanveer Alam also got recovered a sum of Rs. 18,000/- and the 3 accused Sanjiv Kumar Yadav got recovered Rs. 8,000/- from their houses. Accused persons refused to take part in the TIP.
5. After completion of the investigation, charge sheet under section 397/411/34 IPC and 25/54/59 A. Act was preferred against the accused persons in the court for trial.
6. Initially, accused Virender @ Gogi was placed in column no. 2 . However, subsequently Virender @ Ungli Katta surrendered before the court and supplementary charge sheet was filed against him.
7. Accused persons were summoned and copies was supplied. The case being exclusively triable by the Sessions Court, was committed to the Court of Sessions.
8. Accused persons were charged for the offence punishable under section 397/34 of IPC, to which accused persons pleaded not guilty and claimed trial.
9. Accused Sanjiv Kumar Yadav @ Khalsa was also charged for the offence under section 411of IPC to which he pleaded not guilty and claimed trial.
10. Accused Tanveer Alam was separately charged for the offence under section 411IPC and under section 25/54/59 A. Act to which he pleaded not guilty and claimed trial.
11. Prosecution examined PW-1 Complainant Siya Ram.
He did not support the case of the prosecution on the point of identification and turned hostile.
12. PW-2 Nemi Chand also did not support the case of the prosecution and turned hostile on the point of identification.
13. HC Vijay Pal , Duty Officer (PW-3) proved the copy of 4 FIR Ex. PW-3/A and made endorsement on the same which is Ex. PW-3/B. DD number 21A has been proved as Ex. PW-3/C.
14. Ct. Sahender Kumar who accompanied IO on 10.2.2007 has been examined as PW-4. Constable Sahender Kumar took the rukka to the Police Station and got the case registered.
15. Constable Surinder Kumar (PW-5) remained with the IO during the investigation on 16.02.2007. He proved the arrest of the accused persons. He also deposed regarding the seizure of knife. The sketch of the knife has been proved as Ex. PW-5/A. PW-5 prove the seizure memo as Ex. PW-5/B. PW-5 was also a witness regarding the recovery made at the instance of accused Tanveer Alam and Sanjiv Kumar Yadav @ Khalsa.
16. Sh. Ajay Goel (PW-6) proved the TIP proceedings as Ex. PW-6/C in respect of accused Tanveer Alam and Ex. PW-6/F in respect of accused Sanjeev kumar Yadav.
17. PW-7 Shriram proved the bill produced by the complainant Siya Ram and Nemi Chand vide which the potatoes were sold as Ex. P-1 and Ex. P-2 respectively. Siya Ram and Nemi Chand were carrying the sale proceeds of the said potatoes.
18. SI Arvind Verma, IO appeared as PW-8 and testified the investigation conducted by him. It is worthwhile to mention here that PW Sarvjeet and Jagmohan Jha could not be traced and IO made a statement on 14/01/2008 that the witnesses are not traceable.
19. The statement under section 313 Cr.P.C. of the 5 accused persons were recorded. Accused persons denied all the allegations levelled against them and submitted that they have been implicated falsely in this case.
20. Ms. Alka Goel, learned APP for the state has submitted that there are enough evidence on the record to connect the accused persons with the offence. Learned APP has submitted that the recovery effected from the accused persons indicates their involvement with the offence. It has further been submitted that the prosecution has successfully proved the recovery of knife from the possession of accused Tanveer Alam. Learned APP has further submitted that infact, it is one of those cases where witnesses have not identified the accused persons out of fear and it appears that they have been won over and threatened by the accused persons. Learned APP further submits that in such circumstances, the statement made by the IO be taken into account and the accused persons may be convicted.
21. On the other hand, Sh. S P Sharma, learned counsel for the accused persons has stated that the recovery effected from the accused persons cannot be connected to the offence, as the currency notes were never put to TIP and, therefore, it cannot be said that the currency notes which were allegedly recovered from the possession of the accused persons were part of the robbed money. Learned counsel for the accused has also submitted that complainant Siya Ram and Nemi Chand have not supported the case of the prosecution. He has further submitted that alleged arrest of accused Tanveer Alam and Sanjiv Kumar Yadav @ 6 Khalsa is highly doubtful as stated by the prosecution on 16.02.2007. Learned counsel has stated that, infact, accused persons were lifted from their residence and they have been falsely shown to have been involved in the present case. Learned counsel submits that, infact, money alleged to have been recovered from the accused Tanveer Alam belongs to his father. Learned counsel has submitted that the accused persons have falsely been involved in the present case and they are entitled to be acquitted.
22. PW-1 and PW-2 are the star witnesses of the present case. Both of them have not supported the case of the prosecution on the point of identification. PW-1 in his testimony has stated that the accused persons present in the court were not present in the bus at that time. PW-1 in his testimony has stated that the offenders who committed the offence were not having any arms with them. Even in the cross examination by the learned APP , PW-1 did not speak anything favourable to the prosecution. Similarly , PW-2 also stated that none of the offender is present in the court. Even in the cross examination by learned APP. PW-2 denied the suggestion that accused persons present in the court have committed the offence.
23. IO in respect of the identification of accused persons has stated that the accused persons were identified by PW-1 and PW-2 on 21.02.2007 in Tihar Jail. IO stated that he took both the witnesses to the jail for TIP and while he was standing with both the witnesses outside the jail of the gate, suddenly the small gate of the jail was opened and the witnesses immediately identified 7 the accused Tanveer Alam and Sanjeev Kumar Yadav who were sitting near the table in front of the gate. IO stated that later on he came to know that the accused persons have refused to take part in the TIP.
24. It is a matter of record that accused Virender @ Ungli Katta was named by the accused persons in their disclosure statement and subsequently on 11.05.2007, accused Virender surrendered before the court and he was formally arrested. IO stated that accused Virender refused to take part in TIP on 18.05.2007. It is a matter of record that TIP in his case was conducted after the accused had remained on police custody of one day. Thus, as far as the identity of the accused persons in regard to the incident dated 16.02.2007, I consider that the prosecution has not been able to prove the same beyond reasonable doubts. Further two witnesses Sarvjeet and Jagmohan Jha who are the material witnesses could not be traced. No finding can be given as to the reasons for not identifying the accused persons by the witnesses, as the prosecution has not placed any material regarding this. In absence of any substantive evidence connecting the accused with the present offence, the accused persons cannot be held guilty for the incident dated. 10.02.2007. Thus, accused persons are acquitted for the offence under section 397/34IPC.
25. As far as offence under section 411 IPC is concerned, the plea of the prosecution, that Rs. 18,000/- recovered at the instance of accused Tanveer Alam and Rs. 8,000/- recovered at the instance of accused Sanjeev Kumar Yadav, was part of the 8 robbed amount which the accused persons dishonestly retained, cannot be accepted.
26. In order to convict a person under section 411 IPC, the prosecution is required to prove that the property alleged to have been recovered from the possession of accused persons was the stolen property. Until and unless the property recovered is proved to have been stolen property, the accused persons cannot be convicted for the offence under section 411 IPC. It is a matter of record that the currency notes were not put in TIP and nor there was any number of currency notes which alleged to have been robbed from the complainant. I consider that the prosecution has not been able to prove anything on the record so as to prove that the money recovered from the accused was the same as alleged to be robbed. In these circumstances, I consider that the accused persons also cannot be convicted for the offence under section 411 IPC.
27. Learned counsel for the accused persons has submitted that the money allegedly recovered from the possession of accused Tanveer Alam actually belongs to his father. However, the plea of the learned counsel for accused that this money actually belongs to father of accused persons does not seem to be reliable. The accused has not examined his father in the defence evidence. In these circumstances, the plea taken by the accused Tanvee Alam in this regard is not reliable.
28. Now coming to the recovery of knife from the possession of accused Tanveer Alam. Accused Tanveer Alam has also been charged for the offence under section 25/54/59 A. 9 Act.
29. The prosecution has duly placed on record the notification dated 29th October, 1980. This notification prohibits the possession of buttondar knife with a sharp edge blade of 7.62 cms or more in length and 1.72 cms or more in breadth in the Union Territory of Delhi.
30. PW-5 constable Surender Kumar specifically stated on oath that he was with PW-8 SI Arvind Verma during the investigation. The witness stated that on 16.02.2007 at the pointing out of secret informer, accused Tanvir Alam was apprehended alongwith co-accused Sanjeev. He further stated that in the search being taken, a knife was recovered from the possession of accused Tanvir Alam.
31. In the cross examination, PW-5 stated that that IO asked many public persons to join the proceedings but they refused. However, it is an admitted case that no notice was served upon the public persons, who refused to join the proceedings. Merely a suggestion was given to PW-5 that no knife was recovered from the possession of accused Tanvir Alam, which was denied by the witness.
32. In this regard, PW-8 has made a specific statement on oath that the accused Tanveer Alam was apprehended at the pointing out of secret informer and on the search being taken a knife was recovered from the dub of his pant. The knife was seized and its sketch Ex. PW-5/A was prepared. The knife was converted into the parcel with the help of white cloth and was sealed with the seal of AKV. Perusal of sketch Ex. PW-5/A 10 indicates that length of knife allegedly recovered from the possession of accused Tanveeer Alam was 17 cms.
33. The knife was taken into possession vide memo Ex. PW-5/B. The knife was duly produced in the court and has been identified as Ex. P-3. In this regard, constable Surinder Kumar has made a consistent and corroborative statement. He has stated that on 16.02.2007, on a personal search being taken , a knife was taken from the possession of accused Tanveer Alam which was seized and sealed. This witness identified the knife as Ex. P-3. In the cross examination of both these witnesses, there is nothing on the record to discredit the case of the prosecution.
34. Perusal of the cross examination of PW-8 SI Arvind Verma indicates that this witness was not cross examined about the recovery of knife from the possession of accused Tanvir Alam. It came in his cross examination that the knife recovered from the accused Tanvir Alam remained in his possession. He has further admitted that knife recovered from accused Tanvir Alam was not sent to CFSL for ascertaining the finger prints.
35. In these circumstances, I consider that as far as recovery of the knife from accused Tanveer Alam, the prosecution has successfully proved its case beyond reasonable doubts and the accused Tanveer Alam is convicted for the offence under section 25/54/59 A. Act.
36. In view of the above discussions, the accused persons namely Tanveer Alam, Sanjeev Kumar Yadav @ Khalsa , Virender @ Ungli Katta are acquitted for the offence under 11 section 397/411/34 IPC. However, accused Tanveer Alam is convicted for the offence under section 25/54/59 A. Act.
37. Now to come up for order on sentence in respect of accused Tanveer Alam on 08.02.2008.
ANNOUNCED IN THE OPEN COURT ON 05.02.2008.
(DINESH KR. SHARMA) ADDL. SESSION JUDGE, DELHI.
1205.02.2008.
Present :- Ms. Alka Goel, learned APP for the State.
Accused all produced from JC.
Sh. S.P.Sharma, counsel for the accused persons. Arguments heard. Vide judgment announced of even date on separate sheets, the accused persons namely Tanveer Alam, Sanjeev Kumar Yadav @ Khalsa , Virender @ Ungli Katta are acquitted for the offence under section 397/411/34 IPC. However, accused Tanveer Alam is convicted for the offence under section 25/54/59 A. Act.
Now to come up for order on sentence in respect of accused Tanveer Alam on 08.02.2008.
(DINESH KR. SHARMA) ASJ/DELHI.
05.02.2008.
13IN THE COURT OF SH DINEH KR. SHARMA, ASJ, DELHI.
SESSION CASE NO. 19/07 FIR NO. 70/07 POLICE STATION KIRTI NAGAR
UNDER SECTION. 397/411/34IPC
& 25/54/59 A.ACT.
STATE.
VERSUS
TANVEER ALAM
SON OF BADRUDDIN
R/O D-4/88, SULTANPURI, N. DELHI
ORDER ON SENTENCE:
11.02.2008:
Present : Ms Alka Goel, APP for the state.
Accused Tanvir Alam produced from custody. Sh. S. P. Sharma, counsel for accused Tanvir Alam. Accused Tanvir Alam has been convicted for the offence punishable under section 25/54/59 of Arms Act.
Sh. S. P. Sharma, learned counsel for the accused has submitted that the accused is not a previous convict and a young man of aged about 33 years. He is sole bread earner of his family and is having three school going children, young wife, two marriageable sisters and old parents. Learned counsel has prayed for a lenient view.
On the other hand, Ms. Alka Goel, learned APP for 14 the state has argued that the accused may be punished appropriately, keeping in view the gravity of the offence.
I have considered the submissions and perused the record carefully. As per record, accused Tanvir Alam is young man and there is no record of previous conviction against the accused Tanvir Alam. I consider it being the first offence and keeping in view the age and antecedents and circumstances of the case, a lenient view can be taken against the accused. Accused is in custody since 16.02.2007.
I consider that in these circumstances, for the offence punishable under section 25/54/59 of Arms Act, SI for one year shall met the ends of justice. A fine of Rs. 2,000/- is also imposed failing which the accused shall further undergo SI for three month.
Benefit under section 428 Cr.P.C. be given to the accused. The period of detention already undergone be set off against the sentence of imprisonment. Copy of the judgment and order on sentence be given to the accused. ANNOUNCED IN THE OPEN COURT ON 11.02.2008.
(DINESH KR. SHARMA) ADDL. SESSION JUDGE, DELHI.