State NCT of Delhi v. Monu Kumar

2. The factual matrix, in brief, is that the FIR of the present case was registered on the basis of statement made by the complainant Dr.Anil Kumar to the effect that on 12.07.2014 at

1. ThE present revisi under Se&ion 397 read Page 1 of[6] 2016:DHC:9225 S about 08.15 a.m., when the complainant was having breakfast and his wife Dr.Mithilesh was in the kitchen, four boys came in his house from the rear gate. One boy was carrying pistol like object who caught hold of the complainant and tied his hands from behind. The complainant was taken to kitchen where two boys were already present and were holding the wife of the complainant. Those boys had taken two bangles, ear rings and gold chain of the wife of the complainant. Tape was affixed on the mouths of the complainant and hiswite an t dheir hands-were tied from behind. Two boys kept4uar1ir[9] `9thenkitcheui in the whereas other two imi /1.4' boys starte ? tat akng searQ of..theThQus In the meanwhile, maid.. Durga Gu came inside'the house and her nosepin and ear tops I were alsQ. taken by the aàl5ersons. She was also tied and taped an was kept in the Jilt e accused personshad taken I away fou mobile phonéf iIj on aptop. After committing robbery, thca e1sWaW51frl, ti J e spot after confining tile cornpiai'nantetc. in the kitchen 1' \.... On the ba,t[1] intem1iaiflaflt, FIR of the present case was persons were arrested and charge sheet was filed in the Court. Arguments on charge were heard and vide impugned order dated 1509.2015, the Court below discharged all the respondents/accused persons for the offences under Section 395 and 397 IPC. Feeling aggrieved by the passing of order passed by the Court below, the instant petition has been preferred by the State. I have heard the arguments advanced by the learned Crl.Rev.P. 64/2016 Additional Public Prosecutor for the State.

5. Learned Additional Public Prosecutor has argued that there were talks between accused Mohit and accused Ashish and Vishal Mintu as there were 29 calls between them from 01.07.2014 to 11.07.2014. Even they talked 24 times between 09.07.2014 to 11.07.2014. Accused Mohit also talked with accused Ashish on the day of incident i.e. 12.07.2014. These talks between the accused persons clearly show that accused Ashish actively S.. participated in the crime anØ assisted other'fo.ur accused persons in committing theidacoity it was further arguedthataccused Ashish _ I _J was working'aswrd boyfinNavje'nNursing •. orne and he was /1 on duty fro[6] of 11.Oj70 of 12.0214. Duty of. & accused Ashish was als hack gate from here the Ii remaining four accused rJ)i Ientered the horni of the complainnt. It was c1t'e? g4d that non-menLning of description of we-apon otoffe[1] e J1ssnot4reieV.ant at..the stage of -J framing charge.'\E:Vèiiotherwise Qi oterwas' also used by e S accused Pankaj at the tjm e,ofiincident.. which-du1y covers the case #.'4-r. - rrJ.1,[4] of the prosecution to show thinvoIvernent. It was further argued that there was sufficient material on record to frame charge against the respondents/accused persons for commission of offence under Sections 395 and 397 IPC and the Court below erred in discharging them..

6. Term "dacoity" has been defined in Section 391 IPC. It reads: "391.Dacoity-When five or more persons Crl.Rev.P. 64/20 16 conjointly commit or attempt to commit a robbery, or where the whole number of persons conjointly committing or attempt to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing attempting or aiding, is said to commit dacoity."

7. The definition of Section 391 IPC makes it amply clear that presence of five or mote_-persons.Js necessary, where they O conjointly comm o r at tijaiobc ry, to constitute an offence of dac,Oity It is well settled that a mere innocent presence in an assembly of persons, as for example a bystander, does not ¼ make the accused a member of an unlawful assembly, unless it is ci shown by direct or circumstantial evidence that the accused shared fl V 1%tiUiJ1i the common object of the assembly. It must be proved in each V case that the person concerned was not only a member of the /7 unlawful assembly at some stage, but at all the crucial stages and..%'f if shared the common object of the assembly at all these stages. S 8. In the instant case,it is not the case of the prosecution that accused Ashish was present at the spot at the time of incident. It is not alleged against him that he was part of the gang of robbers or that he actively participated in the commission of robbery. Rather, it is the case of the prosecution itself that he was the co-conspirator of the crime but was not present at the time of robbery. In the absence of any such evidence or material, it cannot be said that accused Ashish was actively involved in the robbery or aiding the CrI.Rev.P. 64/20 16 robbery or made an attempt to commit the robbery in the house of the complainant on the day of incident. In the present case, the material produced on record merely shows that accused Ashish was just a co-conspirator at one particular stage but not at another. In these circumstances, the essential ingredients to convert the case from robbery to dacoity is lacking and as such, there is no infirmity in the findings returned by the Court below.

9. So far the offence under Section 397 IPC is concerned, the I prosecution has not brought sufficient material on record to show ir U a Dthat any deadly weapon was held by any of the accused at the time ' of alleged robbery. Perusal of statement made by the complainant II shows that he merely stated that one of the boys was having pistol like object at the time of robbery. But no description of any such C weapon has been given to show that it was actually a deadly weapon. Even otherwise, the test identification parade of pistol D At li allegedly recovered at the instance of accused Vishal was not e. 27 B B conducted to get it connected with the alleged offence. Even no S material was brought on record to show that the pistol allegedly recovered at the instance of accused Vishal was the same pistol which was used in the commission of alleged robbery. In the absence of cogent and convincing material, no case for framing charge under Section 397 IPC was made out against any of the respondents/accused persons.

10. In view of the above discussion, this Court finds no illegality or infirmity in the impugned order. The petitioner has failed to show any exceeding of jurisdiction by the learned Additional Sessions Judge or I the failure to exercise the jurisdiction vested in him.

11. Consequently, the present revision petition is hereby dismissed. JULY 089 2016 dd