Lal Singh & Anr vs State Nct Of Delhi
2009 Latest Caselaw 4692 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           Crl.A.No.236-37/2006
%                           Reserved on:       3rd November, 2009
                            Date of Decision: 18th November, 2009

#      LAL SINGH & ANR                              ..... Petitioner
!                               Through: Ms. Saahila Lamba, Adv.
                            versus

$      STATE NCT OF DELHI               ..... Respondents
^                      Through: Mr. R.N. Vats, APP

+                           Crl.A.No.670/2006

#      RAJESH                                      ..... Petitioner
!                               Through: Mr. K.B. Andley, Sr. Adv.
                                with Mr. M. Shamikh, Adv.

                            versus
$      STATE                                   ..... Respondents
^                               Through: Mr. R.N. Vats, 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.

1. These appeals are directed against the judgment

dated 8th March, 2006 and Order On Sentence dated 13th

March, 2006, whereby all the appellants were convicted

under Section 392 IPC read with Section 397 thereof and the

appellant Rajesh as well as his co-accused Mohd. Nazim were

also convicted under Section 25 of Arms Act. All the

appellants were sentenced to undergo rigorous imprisonment

for 7 years each and to pay a fine of Rs.1,000/- or to undergo

RI for 6 months each in default under Section 392 read with

Section 397 IPC. The appellant Rajesh was also sentenced to

undergo RI for one year and to pay a fine of Rs.500/- or to

undergo RI for one month in default under Section 25 of

Arms Act.

2. The case of the prosecution, as disclosed in the FIR

lodged by Shri Kaushal Kishore was that on 28th November,

2000, at about 10.45 P.M., he was waiting at ISBT in order to

take a bus for going to railway station. One auto rickshaw

bearing No. DL 1RC 5704 came up to him. One person was

sitting alongwith the auto rickshaw driver whereas two

persons were sitting on the rear seat of the auto rickshaw.

The boys who were sitting on the rear seat invited him to join

them in the auto rickshaw. On enquiry, the auto rickshaw

driver told him that he would charge Rs.10/- for taking him

to railway station. The complainant thereupon sat on the rear

seat of the auto rickshaw, in between the boys who were

sitting there. The driver took the auto rickshaw via Ring

Road. When the auto rickshaw reached behind Red Fort, one

of the boys sitting on the rear seat, put a knife on his neck,

while the other boy put a knife on his stomach. The boy, who

was sitting with the driver, pressed his mouth with a muffler

and thereupon all of them threatened to kill him, in case he

raised alarm and asked him to handover whatever he had

with him. They removed Rs.1500/- from his pocket, besides

removing the wrist watch, which he was wearing. They also

snatched his briefcase which contained a number of articles,

including one blanket, one shawl, one calculator making

CITIZEN and one camera making YASHICA and Rs.700/-

cash. The auto rickshaw driver then stopped the auto

rickshaw and all of them pushed him out, threatening to kill

him in case he made noise. The complainant took the help of

a police vehicle and lodged a report, which led to registration

of the case.

3. Appellant No. 2 in Crl.A. 236-237/2006, Shri Anil

Kumar @ Ajju died during pendency of the appeal and the

information regarding his death has been confirmed by the

concerned SHO vide his report dated 5th October, 2009.

4. During trial, the complainant came in the witness

box as PW-1 and supported the case stated by him in the

FIR. He identified the appellant Lal Singh as the person who

was sitting with the driver and appellant Rajesh as one of the

two persons who were sitting on the rear seat of the auto

rickshaw. Anil was identified as the driver of the auto

rickshaw. According to him, when the auto rickshaw came

behind Red Fort, the appellant Rajesh kept knife on his neck

whereas Lal Singh pressed his mouth with a muffler and

thereafter those persons asked him to handover whatever he

had in possession or else they would kill him. They removed

Rs. 1500/- besides his wrist watch and briefcase which

contained camera make YASHICA, calculator make CITIZEN

and important documents. After going a little ahead, Anil

stopped the auto rickshaw and then he was pushed out of the

auto rickshaw.

5. PW-5 Constable Raj Pal has stated that on 29 th

November, 2000, he alongwith Investigating Officer went to

ISBT in search of the accused persons. At about 3.00 P.M.,

they received a secret information that four persons who were

wanted in this case, were coming from Gandhi Nagar side in

three-wheeler scooter bearing No. 5704. When they stopped

the auto rickshaw, its occupants started running, but were

apprehended. He identified appellant Rajesh and Lal Singh

amongst the person who were apprehended by them and

stated that one knife was recovered from Rajesh and one from

his co-accused Mohd. Nazim. He further stated that accused

Rajesh got recovered one camera from his house whereas Lal

Singh got recovered one suitcase. According to him, Anil also

got recovered one calculator from the rear seat of the auto

rickshaw alongwith a ladies shawl and some cash. Cash was

also seized from Lal Singh. The recovered articles were

identified by the witness during trial.

6. PW-7 ASI Bhagwan Dass has corroborated the

statement of PW-5 as regards apprehension of the appellants

and recovery from them. PW-8 SI Satpal has corroborated the

deposition of PW-5 Constable Raj Pal regarding arrest of the

appellants and recovery of one buttondar knife Ex. P-3 from

the appellant Rajesh. PW-10, SI Arvind Pratap Singh, has

also corroborated the deposition of PW-5, Constable Raj Pal,

and PW-7, ASI Bhagwan Das, as regards apprehension of the

appellants and recovery from them. He has also identified

the articles which were recovered from the appellants, as also

the knife which was recovered from Rajesh.

7. PW-4 Shri Narender Kumar, Metropolitan Magistrate

has stated that on 2nd December, 2000, all the accused were

produced before him in muffled face. They, however, refused

to join Test Identification Parade (TIP) despite a warning to

them that an adverse inference may be drawn during trial.

The proceedings conducted by him in this regard are Ex.1/B.

He has further stated that on 13 th December, 2000, he also

conducted TIP of the case property and complainant Kaushal

Kishore correctly identified camera, calculator, two pants,

underwear, woolen cap, towel, two shirts, jarsi, one bed

sheet, one pillow cover, two pairs of kurta paijama vide

proceedings Ex.PW-4/D.

8. In their statement u/s 313 of Cr.P.C., the appellants

denied the allegations against them. They, however, admitted

that they had refused to join test-identification-parade. The

appellant, Rajesh claimed that he refused to join test

identification parade as he did not know the meaning of test

identification parade and he did so at the instance of the

police. The appellant Lal Singh stated that he was shown to

the complainant and witnesses in police station and,

therefore, he refused to join test-identification-parade.

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

complainant as regards the incident that took place with him

and the identity of the persons involved in commission of

robbery. He had no enmity or ill-will against the appellants

and, therefore, had no reason to implicate them in a false

case of robbery.

10. Though the appellant Lal Singh claims that he was

shown to the complainant and the witnesses at the police

station, there is no material on record to substantiate the

plea taken by him. In fact during cross-examination of

complainant, Kamal Kishore, no suggestion was given to him

that the appellant Lal Singh was shown to him in the police

station. The complainant specifically stated that he had not

seen the accused persons prior to giving the statement to the

police and even before coming to the court. Thus, the

appellant Lal Singh had no justified reason to refuse to join

the test identification parade. The reason given by the

appellant Rajesh to the Trial Court for refusing to join test-

identification-parade is just meaningless. A perusal of the

proceedings conducted by PW-4, Sh. Narender Kumar,

Metropolitan Magistrate shows that a specific warning was

given to him that an adverse inference may be drawn against

him on account of his refusal to join it. Despite the warning

he persisted in refusing to join the test-identification-parade.

There is no material on record which may give rise to the

inference that the appellant had refused to join T.I.P. at the

instance of some police officer. The reason given by the

appellants to the learned Metropolitan Magistrate for refusing

to join T.I.P. was that the police was in possession of their

photographs. There is no material on record to show that the

photographs of the appellants were taken by the police before

they were produced in the court on 2nd December, 2000,

when they refused to join test-identification-parade. In any

case, even if the police had photographs of the appellants in

its custody that has no consequence unless the photographs

were shown to the witness, before the appellants refused to

join T.I.P. This is not the case of the appellants that their

photographs were shown to the complainant prior to 2nd

December, 2000. No such suggestion was given to the

complainant, when he came in the witness box.

11. Since the appellants refused to join T.I.P. without any

justified reason, an adverse inference can be drawn against

them that had they participated in the test-identification-

parade, they would have been identified by the complainant.

If the accused of his own volition declines to join T.I.P.

without reasonable cause, he does so at his own risk and

cannot be heard to say that in the absence of T.I.P., his

identification was not proper. Similar view was taken in

Suraj Pal Vs. State of Haryana, (1995) 2 SCC 64.

12. The testimony of the complainant as regards identity of

the appellants also finds corroboration from recovery of the

stolen articles from them. The deposition of the police

officials shows that one camera was recovered from the

almirah of the house of the appellant Rajesh whereas one

suitcase was recovered from the house of the appellant Lal

Singh. The suit-case contained a number of articles

including some clothes and bed-sheet. PW-1 Kamal Kishore

has duly identified the camera as well as the clothes which

were recovered from the appellants. He identified these

articles firstly during judicial T.I.P. and thereafter during

trial. The appellants do not claim any of these articles.

Therefore, there is no reason to disbelieve the testimony of

the complainant as regards ownership of the articles which

were recovered from the possession of the appellants. In fact

articles such as wearing apparel can be identified by a person

merely by having a look at them as he has been wearing

those articles from time to time. A particular article may be

identified by frequent use which leads to recognition of the

article. In the present case, not only have the articles been

identified during trial, they were also identified during Test-

Identification-Parade conducted by the learned M.M. Since

the appellants were found in possession of stolen articles

soon after the theft, and they have not come forward with any

explanation for these articles being in their possession, it can

be presumed, as provided in Section 114(a) of Evidence Act

that either they had committed theft of these articles or they

had received or retained the same knowing the same to be

stolen property. Since this is not the case of the appellants

that they had received these stolen articles from some other

person, the appropriate presumption should be that they had

committed theft of these articles from the possession of the

complainant.

13. The testimony of the complainant shows that the

appellant Rajesh kept a knife on his neck and then he was

asked to hand over whatever he was carrying with him. A

knife was, thus, used in commission of the robbery. Even if a

person simply carries a weapon with him and that weapon is

seen by the victim at the time of the commission of the

robbery that amounts to use of weapon in commission of

robbery. Here, the weapon has been actually used for

threatening the complainant.

14. In Phool Kumar Vs. Delhi 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

categorise knife or to fix its size 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 Maharasthra 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 and

therefore, accused Rajesh is liable to be punished under

Section 392 of IPC read with Section 397 thereof.

15. However, as far as the appellant Lal Singh is concerned,

admittedly neither he was carrying any weapon nor did he

use the weapon in commission of the offence. Therefore

Section 397 of IPC does not apply in his case. The testimony

of the complainant, however, shows that the appellant Lal

Singh who was sitting on the front seat alongwith the driver

had pressed his mouth with a muffler and thereafter all of

them including Lal Singh had asked the complainant to hand

over whatever he had with him and then removed cash and

other articles which the complainant was carrying with him

in the auto-rickshaw. Therefore, it is evident that the

appellant Lal Singh is guilty of commission of robbery, which

is punishable u/s 392 of Indian Penal Code. It would be

pertinent to note here that Section 397 of the Indian Penal

Code by itself does not create any offence. It only makes the

robbery punishable with imprisonment for a term which shall

not be less than seven years in case a deadly weapon is used

or grievous hurt is caused or an attempt to cause death or

grievous hurt is made. The substantive offence for which

Section 397 provides minimum punishment is robbery or

dacoity, as the case may be. Therefore, it is not necessary to

award sentence of minimum 7 years to the appellant Lal

Singh.

16. As regards conviction of the appellant Rajesh u/s 25 of

Arms Act, no arguments were advanced on his behalf. In any

case, the deposition of PW-5 Ct. Raj Pal, PW-8 SI Satpal and

PW-10 SI Arvind Pratap Singh shows that he was found in

possession of a buttondar knife at a public place. He has

therefore been rightly convicted u/s 25 of the Arms Act.

17. For the reasons given in the preceding paragraphs,

while maintaining conviction of the appellant Rajesh u/s 392

of IPC r/w Section 397 thereof, the conviction of the appellant

Lal Singh is upheld only u/s 392 of IPC without application

of Section 397 thereof. The conviction of the appellant Rajesh

under Section 25 of Arms Act, which otherwise was not

assailed during arguments is also maintained. The sentence

awarded to the appellant Rajesh does not call for any

interference and is accordingly maintained. The sentence

awarded to the appellant Lal Singh is, however, reduced to

rigorous imprisonment for 3 years and fine of Rs.1000/-. In

default of payment of fine, he shall undergo SI for three

months. One copy of this judgment be sent to trial court and

one copy be sent to Jail Superintendent for information of the

appellants and for record.

(V.K.JAIN) JUDGE NOVEMBER 18, 2009 bg/sk/acm