Delhi High Court

Trilok Kapoor & Anr. vs The State on 3 December, 2009

Author: V. K. Jain

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                      Crl.A.No. 893-94/2006

#     TRILOK KAPOOR & ANR.                  ..... Appellant
                       Through: Mr. Shakti Chand Sharma
                  Versus
      THE STATE                                   ..... Respondent

Through: Mr. O.P. Saxena, APP * CORAM:

HON'BLE MR. JUSTICE V.K. JAIN

1. Whether the Reporters of local papers may be allowed to see the judgment? Yes

2. To be referred to the Reporter or not? Yes

3. Whether the judgment should be reported in the Digest? Yes

: V.K. JAIN, J. (oral)

1. This is an appeal against the judgment dated 16 th

September, 2006, whereby the appellants were convicted

under Section 392 of IPC read with Section 397 thereof and

were sentenced to undergo R.I. for 7 years, each.

2. The case of the prosecution is that on 8th July, 2003, at

about 3.45 AM, the complainant Praveen Kumar, driver of

Qualis vehicle No. HR-55 AT-3575 stopped the vehicle on

outer ring road near JNU bus stand, in order to answer the

call of the nature. One Maruti car No. DL-1CD-5415 came

there and stopped near him. Two boys, one of whom was

tall and the other one was short came out of Maruti car.

The short boy put a knife on the right side of the

complainant, whereas the tall boy put a revolver on the left

side of his face, and threatened to shoot him, in case he

raised alarm. The complainant was then put ahead of the

rear seat of the maruti car and the key of the Qualis was

snatched from him and was given to the short boy. The

person, who was driving the maruti car reversed his car.

The boy wielding knife then reversed the Qualis vehicle.

The tall boy was sitting on the rear seat. He took out the

purse of the complainant which contained Rs.200/- in cash.

Leaving the complainant and the Maruti car near Uday

park, culprits fled away in Qualis vehicle.

3. The complainant came in the witness box as PW-7 and

supported the case set out in the FIR. He stated that on 8 th

July, 2003, when he stopped the vehicle on outer ring road

near JNU bus stand at about 3.45 PM and came out of the

vehicle for going to urinal, one Maruti car No. DL-1CD-5415

came and stopped near his Qualis car and two boys came

out of that car. One of the boys was having a revolver and

the other was having knife with him. The boy, who was

carrying revolver pointed it out at his temple whereas the

boy carrying knife pointed it near his stomach and put him

in the Maruti car. The person, who was carrying pistol

snatched the keys of the Qualis and handed over the same

to the person, who was carrying knife. They threatened to

shoot him in case he raise alarm. There was another

person, who was driving Maruti car. These persons then

turned back the Maruti car as well as the Qualis car. The

person, who was having revolver took out his purse

containing Rs.200/-. Dropping him at Uday park, these

persons went away in his Qualis, leaving Maruti car behind.

The complainant identified the appellant Subhash as the tall

person, who was carrying revolver and the appellant Trilok

Kapoor as the person, who was carrying knife. He further

stated that on receipt of notice, he had gone to Tihar Jail,

where he was told that accused persons had refused to join

TIP. Thereafter, he came to Patiala House courts on 6th

December, 2003 where he saw both the appellant and

identified them.

4. PW-8 Ms. Barkha Gupta, Metropolitan Magistrate has

stated that on 4th December, 2003, she went to Central Jail

No. 3 for conducting TIP of Subhash. The accused Subhash

was produced before her and was identified by the Assistant

Superintendent of Jail. Subhash, however, refused to join

TIP vide his statement Ex. PW 8/A. She has further stated

that on the same day, accused Trilok Kapoor was also

produced and identified by the Assistant Superintendent of

Jail. Trilok Kapoor also refused to join TIP vide statement

Ex.PW 8/E.

5. Though a number of other witnesses have also been

produced by the prosecution, their testimony need not be

disclosed. PW-2 Raj Kumar Sharma is the owner of Qualis

vehicle No. HR-55 AT-3575 and he has stated that this car

was robbed from a driver Parveen Kumar, who was driving

in the night intervening 7th/8th July 2003.

6. In their statement under Section 313 Cr.P.C. both the

appellants denied the allegations against them. They,

however, admitted that they had refused to join TIP in Jail

on 4th December, 2003.

7. I see no reason to disbelieve the testimony of the

complainant. There is no enmity or ill-will between him on

one hand and either of the appellants on the other hand.

Therefore, he had absolutely no reason to depose falsely

against them.

8. The complainant has duly identified both the

appellants during trial. The appellants refused to join TIP in

Jail on 6th December, 2003 on the ground that they had been

shown to the witness in the Police Station. However, there

is absolutely no evidence on record to show that either of

the appellants was shown to the complainant before 4th

December, 2003 when they refused to join TIP, while lodged

in the Jail. When the complainant came in the witness box,

no suggestion was given to him that the appellants had

been shown to him in the Police Station. According to the

complainant, he saw the appellants in Court on 6 th

December, 2003, after they had already refused to join TIP

in Jail on 4th December, 2003. Thus, there was no

justification for either of the appellants to refuse to join the

TIP. If the person accused of an offence, refuses to join TIP,

without any justification, he does so at his own risk and it is

open to the Court to presume that had he participated in

the TIP, he would have been identified by the witness and

that in fact was the reason behind his refusing to join the

TIP. Similar view was taken by the Hon‟ble Supreme Court in

Suraj Pal vs. State of Haryana (1995) 2 SCC 64. The

identification of the appellants in the Court, coupled with

their refusal to join TIP, without any reasonable ground, is

sufficient to establish their identity.

9. The testimony of the complainant shows that the

appellant Subhash had used a revolver in commission of

robbery by putting it on his temple and threatening to kill

him. His testimony further shows that the appellant Trilok

used a knife by putting it near his stomach and threatening

to kill him. In Phool Kumar Vs. Delhi Admn. Admn. AIR 1975

SC 905 the accused was carrying a knife in his hand at the time

the robbery was committed. It was found from the deposition of

PW-16 that the appellant/accused Phool Kumar had a knife in his

hand. The Hon‟ble Supreme Court held that he was therefore

carrying a deadly weapon. In Salim Vs. State 1987(3) Crimes

794 the Hon‟ble High Court of Delhi held that to categorize knife

or to fix its sixe for it to be a deadly weapon may not be

appropriate. It was held that to say that a knife to be a deadly

weapon should be of a particular size would not be a correct

statement. In State of Maharashtra vs. Vinayak 1997 Cr.L.J.

3988 Bombay High Court held that knife is a deadly weapon

within the ambit of expression „deadly weapon‟ used in Section

397 of IPC. Therefore, irrespective of the size, any knife is a

deadly weapon.

10. It is evident from the testimony of the complainant that

the robbery was committed in furtherance of common

intention of the appellants. Both of them used deadly

weapons in committing the robbery. Hence the charge

under Section 392 of IPC read with Section 397 thereof has

been duly proved against both of them and they have rightly

been convicted accordingly. The conviction of the

appellants is accordingly maintained. The minimum

prescribed substantive sentence being 7 years, as provided

in Section 397 of IPC, there is no scope for interference

with the sentence awarded to the appellants.

11. The appellant Trilok Kapoor has filed an application

under Section 427 of the Code of Criminal Procedure

seeking direction that the sentence awarded in this case

may be directed to run along with the sentence awarded to

him in the case registered vide FIR No. 334/2003 of Police

Station Vasant Kunj, where he has been convicted under

Section 392 of IPC read with Section 397 thereof.

12. Section 427 (1) of the Code of Criminal Procedure, to

the extent, it is relevant, reads as under:

"427. Sentence on offender already sentenced for another offence. (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court

directs that the subsequent sentence shall run concurrently with such previous sentence:

Provided that where a person who has been sentenced to imprisonment by an order under section 122 I default of furnishing securing is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately."

13. In Ahsaan vs. State 2007 [1] JCC 351, a judgment

relied upon by the learned counsel for the appellant, the

appellant was convicted under Section 396 and 395/397 of

IPC in the case which was subject matter of Criminal Appeal

No. 40 of 2003. He had also been convicted under Section

392/397 of IPC in another case which was subject matter of

Criminal Appeal No. 823 of 2001. His request for granting

him benefit of Section 427 of Code of Criminal Procedure

was declined by this Court. A Special Leave Petition was

filed by Ahsaan against the judgment of this Court. On

grant of leave, the Special Leave Petition (Crl.) No.1686 of

2009 was converted into Criminal Appeal No. 1068 of 2009