Vijay @ Vinay @ Bable v. State

2. Assailing the conviction, learned Counsel for appellants submits that conviction under Section 394 and Section 395 IPC cannot be sustained CRLA.286/2017,764/2017&767/2017 Page2of11 together. Learned Trial Court erred in returning the finding ofingredient of Section 395 IPG as it does not provide for hurt. He also submits that since there was injury, Section 395 IPG cannot be invoked. He further submits that SI Manoj Kumar(PW-12)was the only witness who deposed that the knife could not be recovered. The nature ofinjury was simple. He submits that the only allegation against the appellants Pushpa,Poonam and Pooja as per the statement ofPoonam Ahuja(Ex.PW-8/G) was the suspicion about their involvement as they didinot:come on calling by the complainant Poonam Ahuja(PW-1)so.they mightbe,inyolved in the:robbery.He submits that HC Ram Kumar (PW-3|^did4t^ty(^^ prints-from the door. Poonam Ahuja wasthe only eyewithe'ss^ahdthSrSwere no allegations inthe rukka. However, after a rnonth, the'.'complainant mentions'-about the • n i" ^ involvement ofPoonam,Pooja'and;Pps^ statement recorded under Section 161 Gr.P.G.dated 30^*^ Augpsl'^Q'lii

3. Per contra, learned APP#or|the Sf^te'^ubmits that the articles have been identified and seized l^i^i|n%^osecution has proved itscasefromtheevidenceofthec^mpj^^^^^dthar witnesses. ith

4. Brieffacts ofthe case are that on 9 August2011,at about 1:05 P.M., information was received regafdingnthefl aLE-28iPrashant Vihar,Sector-14, Rohini. Aforesaid information was recorded-vide DD No.20A(Ex.PW-8/A) and was assigned to SI Manoj Kumar. He along with Gt. Om Prakash reached the place ofincident i.e. House No. E-28, Ground Floor,Prashant Vihar where they met the complainant Poonam Ahuja and found that the -articles in the house were lying scattered and the iron almifahs were lying open. Thereafter, the crime team was called. SI Anil Kumar inspected the spot and prepared a report vide Ex.PW-4/A. HG Ram Kumar collected the CRLA.286/2017,764/2017& 767/2017 Page3of11 chance prints from the panel ofalmirah with the help ofblack powder and sentthe same to FingerBureau,Kamla Marketfor analysis.Ct.Rajbirtook the photographs of the scene from different angles vide Ex.PW-2/A-l to EX.PW-2/A-9.

5. Statement ofPoonam Ahuja was recorded vide Ex.PW-l/A wherein shestated-thaton9'^August2011,atabout 12:0p;p.M.,herhusband Sanjay Ahuja had left for Village Libaspur,Samaypur Badli for his printing press and she was at home with her two housemaids Pushpa and Poonam (appellants herein). She was ironing;fli^ clothes in her room and the two maids were cleaning the house at around,12:15 P.M.,a boyagedaround25/26years,^i^^i|fr:cpn^^ heightarouiid5'8",thin built, came into her room alf^bgaSai^SS a knife in&hand and threatened her not to speak a&wdrd'iahdf.pu her on the bed In the It # meantime, another boy entered ■her:fodmifvYho was aged around 25 years, height 5 4, and ofthinbuilt. \^ile sat onher legs, pressedher legs andheldherhands,thes|^oh#]|®i|d3gi§f^outhwithaskyblue cloth. The first boy then tiedher hahfe^tig^h®j|^(kind ofnaada) at the back, and tied her legs with a white string (naada). The first boy then asked her where she had kept her valUhbles,;,-Although:fb^ih tied, she was able to speak with great force and told them that nothing was kept in house. The second boy, while threatening, asked the first boy 'to take out a big knife andhurt her because only then she will telV. The first boy then threatened her saying "shouldItake out my big knife or you are willing to tell?", thereafter, under threat she told them about the almirah keys which were kept in her purse. The two boys then opened the almirah and stole the cash approximately ^4 lakhs and the jewellery consisting of 10 bangles and other CRLA. 286/2017, 764/2017& 767/2017 page4of11 jewellery. The boys picked her up and locked her in the bathroom of adjacent room. She further stated that with great force she called out for her maid Pushpa but she did not come. Although her hands were tied, she rubbed herselfon the lock and with great difficulty she was able to open the door ofthe bathroom and afterjumping outshe reached outside the house as both the maids were not visible in the house. On the street outside, the neighbour's maid untied her hands and she herself untied her legs and mouth. She further stated that when,she tHed.toiballup the police using her mobile no. 9311505427,she could nptimce her mobile.'Both the boys had taken her mobile with them whichswa^ma]|e?Sani M-369,black colour. - n •t She then tried,to call her husbahdi'Sarij^dAhuja on his mobile number 9811233329 through her landiihefhumbe^^^^^^^ but theVeall did not connect. She then called up her^fptheMh^lh^ Ahuja,who worked 4|^ with her husband,on his phone huMbdrp3|[2505425 and narrated the whole I fit v' livA story to her husband. She expfpsspdShCTgl^^ about the involvement of both her maids and that Pusfeba^caM'P.Pdhf&iv^ere in connivance with the two boys. On the basis of was prepared vide Ex.PW- 12/A which was handed overto Ct.Cm Prakash for registration ofFIR.

6. Consequently, FIR was registered at PS Prashant Vihar for offences punishable under Sections 394/397 IPG. Poonam Ahuja handed over twP wide strings (naada) and one sky blue chunnitype cloth to SI ManojKumar which were seized vide seizure memo Ex.PW-l/D.Site plan was prepared vide Ex.PW-l/B and case property was then deposited with MHC(M). Poonam Ahuja wasthen medically examined atBSA HospitalRohini vide MLCEx.PW-6/A.

7. On 10^^ August, 2011, Poonam Ahuja produced the list of robbed CRLA.286/2017,764/2017& 767/2017 Page5of11 articles vide Ex.PW-l/C. Thereafter, at about 3:00 P.M., SI Manoj Kumar, on receiving secret informationj along with Ct. Naveen, W/Ct. Komal and secretinformer reached MangolpurPatthar Market where 3-4 public persons were asked to join the raiding party but none of them agreed. Appellant Vijay @ Vinay @ Bable was apprehended at the instance of the secret informer and a bundle of currency notes of denomination of ?500/- was recovered from the right side pocket ofhis lower totalling to ?50,000/- and three golden bangles were recpyered from the'left,side pocket ofthe lower, which were seized vide sei^re memci-jEx.PW-lO/A, Vijay @ Vinay@Bable was arrested vide aiTest::mem6Ex,.PW-10/B and his personal search was carried out vide >search'mein6'.^Ex.PW-10/C.,;''Disclosure statement of.appellant Vijay,was,recorded^de Ex.PW-lO/D?wherein he disclosed the names ofthe othertappdlahtsj'/ii#

8. On the intervening night All'o!i-i?ll|;'August,2011,SI ManojKumar pill constituted a raiding party cohsisting^ Geeta, W/Ct. Neelam, Ct. Naveen, Ct. Ved Prakash, Dharmender,HC Roshan Lai, Ct. Ashok and Inspector' with the raiding team and appellant Vijay @ Vinay @Bable reached Anand Vihar Bus Terminal. Ct. Dharmender, W/Ct. Geeta^WICt.,Neelanfjtt. Ved Prakash and SI Manoj Kumar were in one team and the remaining persons were part ofthe other raiding team. A trap was laid at the out gate of Anand Vihar Bus Terminal atthe instance of appellant Vinay@Vinay@Bable.Around 1:00 A.M.,appellants Pushpa,Poonam,Pooja and Raju were apprehended at the instance of appellant Vijay @ Vinay @ Bable. On personal search of appellant Raju, jewellery and cash of 0,000/- was recovered and was seized vide seizure memo Ex.PW-7/A. W/Ct. Geeta carried outthe personal CRL.A.286/2017,764/2017& 767/2017 Page6of11 V search of appellant Pushpa vide Ex.PW-7/D-5 from whom some jewellery and ?84,620/- was recovered which was seized vide seizure memo Ex.PW- 7/B-L Personal search of Poonam was conducted vide Ex.PW-7/D-4 and somejewellery and ?65,000/- was recovered which was seized vide seizure memo.Ex.PW-7/B-2.Personal search ofPooja was conducted vide Ex.PW- 7/D-6 wherein some jewellery and ?50,000/- was recovered which was seized vide seizure memo Ex.PW-7/B-3. Appellant Pushpa, Poonam and ' Pooja were arrested vide arrest, memos'Ex. PW-7/D-3, Ex. PW-7/D, Ex. PW-7/D-2 respectively.- Appellant.Rajg-was arrested vide arrest memo Ex.PW-12/C. Disclosure statements-^dfr Pushpa,"^''Poonam, Pooja and Raju were recorded vide Ex.PW-7/CrirEx:PW and Ex.PW-lO/X-1 respectively., "

9. On 11 August, 2011, SI Mandj;'Kumar carried out further n [■'!. "If iv; Jv aj fi'i jin investigation along with W/Ct.tGeefa,t.:@tr:|W^ and Ct. Ved Prakash. Thereafter, SI Manoj Kumar^-«alonpWit&vthe\ appellants went to Kacchi Colony, Pooth Kalan where @ Bable led him to his house, took out a key froin^mllg^l^^ in front of third room and opened the lock. He took out two golden colour bangles, one gent's watch having white dial and one gdlden^hain fromTft^lbed (diwan) which were seized vide seizure memo Ex.PW-lO/X-2.

10. Thereafter, appellant Raju was brought inside the aforesaid room by Ct. Naveen who produced some jewellery fromunder the diwan which were seized vide seizure memo Ex. PW-10/X-3.

11. Appellant Pushpa took out jewellery items from under the clothes kept in an iron almirah which were seized vide seizure memo Ex.PW-lO/X-

4. SI Manoj Kumar prepared the pointing out memo of recovery vide Ex. CEL.A. 286/2017, 764/2017& 767/2017 Page 7of11 I PW-ll/A.The pointing out memo and recovery atISBT were effected vide Ex.PW-12/D.Thereafter,case property wasdeposited withthe MHC(M).

12. Appellants Raju and Vijay were put up for judicial TIP but both refused to join TIP. On 25"^ July 2011, TIP of the case property was conducted. On 30^^ August 2011,the case property I.e. cash andjewellery were released on superdari vide superdarinama Ex.PW-l/G, affidavit Ex.PW-1/HandIndemnityBond Ex.PW-1/JtosuperdarPoonam Ahuja.

13. After the completion ofinvestigation, ch^ge sheet was filed for the offencespunishable underSections.395/397/411 IPG.Charge wasframed.

14. Poonam Ahiya was examined'^^,P^|fin..Cour^ who deposed in sync with her statement made befGrefitbe:pG^^^ Vijay in court as theperson who washavingkniibThdiis4darS|&^ heranfrcaughthold of her legs. She identified Rajuv^as;fhd,rdne;:who also threatened her and;•.('i '"j! pressed her face with both hands^;^l[$b|stated that appellant Vyay had Stabbed her on her head multiplC^-tMesfwfribfrcause her severe pain. The • appellants had also taken her hands. She further "Vystated thatthe appellantPushpa|is'eft^;fd^ work ather house with her daughters (appellant Poonam and Pooja). On the day of incident, all the appellants were sitting in thea:)ark!which:^wasi='V^^^^ from her house. She had called appellant Pushpa inside her house for work. Appellant Poonam came inside her house for work and when she enquired as to why Pushpa was not coming inside, appellant Poonam told her that Pushpa will come within two three minutes. After some time,,appellant Pushpa came inside and started talking to appellant Poonam in the kitchen, after which this incidenttook place.

15. Dr. Kuldeep Singh (PW-6), CMC,BSA Hospital stated that on 9^'' CJtLA.286/2017,764/2017& 767/2017 Page8of11 li August,2011,at about 9:20 P.M.,he had examined Poonam Ahuja(PW-1) brought to the hospital by SI Manoj,Kumar with the alleged history of physical assault at 12:30 P.M. on the same day.-MLC (Ex.PW-6/A) was prepared by him and he opined the nature ofinjuries as simple.Opinion was proved vide Ex.PW-6/B. Following injuries.were mentioned in the MLC.of Poonam Ahuja: i. Bruises over leftshoulder 2x 1 cm app. No active bleed, no crepitus no gross deformity,shoulder movement. Abrasions over left-wrist 10 x 2cm,app. encircling wrist bruises, no active bleeding,nocrepjPd^fnp^^fpnty,yvristmovement. Hi. Right wrist 'dorsal no activeybleeding, no crepitus, no deformityjdiritit^py^M^nt.^ 4 i iv. B/C tender achilles regidn;.:plimlM)gye heels 1.[5] x 1 cm app., no y fl'W n ' n " n '•v^ i,'.' k'|| ijfi active bleeding, no crepituslhddefprmity. i '1 Left little and ringfingepypplfTjar^dsfecfproximalphalanx 1 x 0.[1] cm 7 j* 1 7 7'V i? -i\ 7 y • V. app each, no active bl0dinglMd5pre0tps^ deformity, A