ever any one of the conspirators does an act or series of acts, he would be held guilty under Section 120-B

of IPC. In the case in hand, Ex.PJ, as per disclosure and Ex.Ex.PL the statements all the EX.PG, accused of the

Ex.PK

disclosed offence

regarding the

commission that they had 14,

to

effect

hatched already Gurgaon the the

conspiracy. present and he in

Accused ICICI

Sandeep Sector them

Bank, to

intimated It will be

regarding here that

amount.

assumed

accused Sandeep was watching the activities of the complainant regarding withdrawal of the amount from the bank. 17. As regard No and contradictions doubt, there are in and some the but

discrepancies. discrepancies deposition pf

contradictions

prosecution

witnesses

these are of minor nature and does not go to the root of the case and on the minor

discrepancies the prosecution case cannot be thrown alone on this count. Long passage of time some time erases the memory and minute details are lost sight of, while assessing

the evidence. One has to keep realities in view of not adopt a hyper sensitive

approach. Discrepancies pointed out by the learned defence counsel too trifle to affect the credibility out of these prosecution minor witnesses,

filtering cream of

discrepancies, on which the

evidence

remains

credibility of the evidence lies. Evidence of aforesaid prosecution witnesses are to be accepted to be true and reliable and it was the duty of the defence to dispel the

evidence led by the prosecution. My view is fortified Damodar Judicial from the of case law titled 2004 as (1)

Vs.

State

Rajasthan,

Reports

(Criminal),

200

(SC).

Besides it, the evidence of the prosecution witnesses are consistent, natural and stood test of cross-examination, witnesses cannot be disbelieved merely for the reasons of

some contradictions. 18. As regard, test identification parade. Section 9 of the Evidence Act deals with

relevancy of facts necessary to explain or introduce relevant facts. It says, inter-

alia, facts which established the identity of anything or person whose identity is

relevant. In so far as, they are necessary for the purpose are relevant. So, the

evidence of identification is relevant piece of evidence under Section 9 of Evidence Act where the evidence consists of

identification of the accused person at his trial. The statement of the witness made in the court a-fortiori by him of an accused is substantive evidence. The evidence of

identification in test identification parade is not substantive evidence but is only

corroborative evidence and it falls in the realm of investigation. The substantive

evidence is statement of witness made in the court. parade The is purpose to test of the test identification grasp

observation,

memory, capacity, recapitulate what he has seen earlier, strength or trustworthiness of the evidence of the identification of an

accused and to ascertain if it can be used as reliable, corroborative evidence of the witness identifying the accused at his trial

in

court.

As and

per

deposition

of

the and

complainant

Investigating

Officer

the other material available on the file go to show that occurrence took place in broad day light. No doubt identification parade

was not held but in pursuance of disclosure statement made by the accused, got the

recovery effected. All these go to show that in the case in hand if identification parade is not held which does not go to root of the case and the investigation was in the realm of prosecution and a duty was cast upon the prosecution to hold test identification

parade so as to test the veracity of the prosecution observation witnesses as to in record the but their

whether

accused was

the same person who committed the offence or not. But if the investigation has not been conducted by the Prosecution in accordance with law and lacuna, if any, in the

prosecution case then the complainant cannot be allowed to suffer who had been duped for an amount of Rs.3.5 lakhs. No doubt, later

on recovered but in the eyes of law accused have perpetrated the crime. 19. As regard, delay in lodging FIR and

delivering of special report. In the case in hand, the occurrence took place on 23.4.2010 at around 12.30 p.m. and as per police

proceeding and the application Ex.PA reveal that VT regarding snatching of Rs.3.5 lakhs, Sector 14, was received and pursuant to that VT, police party reached on the spot at

around 12.40 and then application was moved to the police at around 9.00 p.m. Meaning thereby the VT regarding the occurrence in question had been received by the police at 12.40 p.m. which corroborates the version of the complainant and delay, if any, in

lodging the DDR or FIR due to the lapse on the part of the police and that was beyond the control of the complainant and FIR as per Ex.PA/2 lodged in on the same the day. As

regard, report.

delay FIR

delivering lodged at

special p.m. and

was

9.30

special report had been delivered at 10.20

p.m.

as

per

testimony

of

PW8

Constable

Parveen Kumar No.222. 20. Recoveries in are proved of made part to have been

effected

pursuance statements

their by

respective the accused

disclosure persons. disclosure

Thus,

the

of

aforesaid to their

statements

relating

conduct and recoveries got effected by them i.e. accused under persons Sections are 8 admissible and 27 of in the

evidence

Evidence Act. 21. As regard No but non joining PW1O of independent was declared crossSIM

witness. hostile

doubt he

Vipin during

deposed it

his

examination

stated

correct

that

No.9034387343in his name and the statement of hostile witness cannot be thrown away as a whole but the relevant part of his

statement may be read in evidence which is also one of the circumstance to connect the accused with the commission of crime as the call details has been proved by PW9 Pardeep Kumar that he handed over the details and location of mobile No.9958084988 and

9034387343,

taken

into

possession

by

ASI

Jagdish Chander (PW16) vide memo Ex.PM and the call details and location of mobile

numbers are Ex.PM/1 and Ex.PM/2. The relevant position in which in the facts has and been

circumstances, committed in

offence

that

situation

independent

witnesses hesitate to come forward and join with the impression in mind that if they did so and appeared as prosecution witness

against the accused they will invite warth of the accused. It too lurks in their mind that they will have to come to the court to depose may be for one time or number of

times by wasting their precious time, money and energy. There is no ill-will and enmity between them and where test the they of police have officials, successfully

particularly withstood

the

cross-examination.

Mere upon joining of independent witnesses when the prosecution evidence found to he

reliable and no reason to falsely implicate the accused.

22.

As of

regard,

presumption Act. No The

under

Section

114-A

Evidence facts -

presumption of to disbelieve

certain

reason

testimony of complainant. The accused failed to disclose the reason regarding identity of the accused corroborated along after from with the recovery other theft. of

currency property

notes soon

case The

presumption is that they had committed the offence and even the circumstantial evidence connects the accused with the commission of crime. 23. The case law cited by the learned

defence counsel are not disputed but are on distinguishable facts and not applicable to the facts and circumstances of the present case. 24. In view of my aforesaid discussion, in the light of the cumulative effect of the facts and circumstances of the present case, the prosecution has woefully proved its case that on 23.4.2010 at about 12.30 p.m.,

accused Sandeep and Deepak along with coaccused Nitesh and Dinesh (juveniles)

hatched robbery

criminal upon the

conspiracy complainant

to and

commit all had

taken away the bag containing Rs.3.5 laths on the point of pistol in the area of Sector 14, Gurgaon, within Civil offence 392 the 392 read the jurisdiction Gurgaon of and under

Police

Station, an 120-B, I hold

Lines,

committed Sections IPC. So,

punishable with

Section 397 guilty under

accused read with

Sections IPC and

120-B, convict be

Section 397 Let the of

them

thereunder. on the

convicts sentence.

heard

quantum

Announced in open Court: 10.09.2011. (Naresh Kumar) Additional Sessions Judge, Gurgaon.

IN

THE

COURT

OF

SHRI

NARESH

KUMAR,

ADDITIONAL SESSIONS JUDGE, GURGAON Session Case No. 12 of 01.03.2011 Date of Institution: 15.09.2010 Date of Order: 16.09.2011 State 1. versus son of Sh.Dev

Sandeep, aged 24 years,

Singh,

resident of H.No.202, Firoz Gandhi

Colony, Police Station,Sector-10 A, Gurgaon. 2. Deepak, aged 23 years, son of Sh. Jagat

Singh, R/o H.No.172/3, Sheetal Puri Colony, Narela, Narod, Jind. Convicts FIR No.199 of 23.04.2010. U/ss: and Act. P.S : Civil Lines, Gurgaon. PRESENT: for the Sh.R.P.Dhankar, State assisted Public by Prosecutor Sharma, 392/397,120B 25/54/59 of IPC Arms

Sh.A.C.

counsel for the complainant. Convict Sandeep in custody with Sh. Hzari

Lal, Advocate. Convict Deepak in custody with Sh.Narender Yadar, Advocate

ORDER ON QUANTUM OF SENTENCE The above and 392 named convicts by with me have been held

guilty 120B,

convicted IPC read

under

Sections 397 IPC,

Section

vide judgment dated 10.9.2011. 2. I have heard the arguments, advanced by learned defence counsel and learned Public Prosecutor, for the State, on the point of quantum of sentence. 3. The convicts have also made the

statement, separately recorded, on the point of quantum of sentence to the effect that Convict Sandeep stated, he was below 21

years of age at the time of crime. There is no one in the house to look after his

parents since one of his brother is working at Noida and another is studying in 12th

class. He is not a previous convict. Convict Deepak, stated that his father has passed

away. He is elder in the family having two younger sisters dependent upon him and there is no earning member in the family. He is not a previous convict. They have thus,

prayed

that

leniency

may

be

shown

in

the

matter of sentence. 4. Learned keeping defence in counsel the of in has young the the contended age and

that

view

family lenient

circumstances view be taken

convicts, matter of

entrance and released them on probation of good conduct. In support of his contention, cited judgment Case dated No.597 Sandeep 30.1.2010, 14.9.2011 of 2010 passed titled to in as FIR

Criminal State No.74

Versus dated

pertaining under

Sections

420/467/468/ 471 IPC, Police Station, City, Gurgaon, by the court of Sh.Jasbir Singh,

Chief Judicial Magistrate, Gurgaon, and also cited Vicky case Vs. law The titled State. Gafoor as Hira Lal alias 609

2003(1) Goga Vs.

C.C.J. The

(Delhi),

Abdul

States

1985(1) Recent Criminal Reports, 174 (Delhi) and Masarufllah Vs. State of Tamil Nadu, AIR 1983 Supreme Court, 654 (SC). 5. On the other hand, learned PP for the State, has opposed the above said move and has urged that the punishment under such

like offences should be heavy, which may be an eye opener to the others and if a lenient view will be taken at this juncture, it will certainly encourage the convicts to commit such other crime in the society. Hence,

request is made for providing stringent and deterrent punishment to the convicts. 6. The case law titled as Hira Lal alias Vicky Vs. The State, is not applicable to the facts of the present case since in that case about accused two was was remained and in in custody of he for

years

report which

Probation was found

Officer

called

merit. In case law titled as Masarullah Vs. State of Tamil Nadu report of Probation

Officer was called. In case law titled as Abdul Gafoor Goga Vs. The State, the accused was below 21 years of age at the time of commission of offence and was married. Both these case are also not applicable to the facts of the present case. In the case in hand, the statements of the convicts cannot be termed as gospel truth and no mileage can be derived from the aforesaid judgment dated

14.9.2011 the trial

since in

which

does

not

pertain to adverse

question,

rather

inference is to be drawn that the convict is habitual So, to commit in of another view the case offences facts gravity also. and of

keeping

the and

circumstances

offence, request for releasing the convicts on probation of good conduct, is hereby

declined. 7. The Hon'ble Supreme Courts of India has laid court down in several be authorities in its that the duty, if

would

failing

appropriate punishment is not awarded for a particular crime. It has been laid down in an authority of law, contained in AIR 1996 SCW, 132 and in another authority of law, contained in 1994(2) SCC, 220, wherein, it has been held that shockingly large number of criminal the go unpunished, criminals and thereby in the

encouraging

ultimate making justice suffer by weakening the systems credibility. ft is further

observed by the Honble Supreme Court that by imposition of appropriate punishment, the

courts justice justice

respond against demands

to

the the

society's criminals the

cry and

for the

that

courts

should

impose punishment benefiting the crime. 8. Considering the ratio of law, discussed above, instant the facts and circumstances raised of the by the

case,

submissions

learned counsel for the parties, I sentence the convicts as under: U/s 120- To undergo Rigorous

B IPC Imprisonment for seven years. U/s 392 To undergo Rigorous read with Section 397 IPC Imprisonment for seven years

: and to pay a fine of Rs.2000/each. In default of payment of fine, rigorous to further imprisonment undergo for a

period of two months. 9. It is made clear that all the sentences shall run concurrently and the period of

detention, undergone by lie convicts, during the investigation/ inquiry or trial of the present case, shall be set off against the term of imprisonment imposed upon them, on

such

conviction, 428

in

the

contemplation

of

Section

Cr.P.C.

Stenographer,

Grade-J,

is directed to supply the copies of judgment and order, free of costs, today, itself.

File be consigned to record room after due compliance. Announced in open court 16.09.2011 (Naresh Kumar) Additional Sessions Judge, Gurgaon