Anil Kumar vs State (N.C.T. Of Delhi)
2010 Latest Caselaw 3713 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment reserved on: July    01, 2010
                                   Judgment delivered on: August 10, 2010

+      CRIMINAL APPEAL NO.287/2006

       SANJU                                               ....APPELLANT
                      Through:       Mr. Jitender Kumar, Advocate

                              Versus

       STATE (N.C.T. OF DELHI)                .....RESPONDENT
                Through: Mr. Pawan K. Bahl, APP


                                           WITH


       CRIMINAL APPEAL NO.576/2006

       ANIL KUMAR                                         ....APPELLANT
               Through:              Mr. Bhupesh Narula, Advocate

                              Versus

       STATE (N.C.T. OF DELHI)                .....RESPONDENT
                Through: Mr. Pawan K. Bahl, APP


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. Above two appeals have been preferred by Sanju and Anil Kumar

against the impugned judgment of conviction dated 10.04.2006 and

the order on sentence dated 15.04.2006 whereby the learned

Additional Sessions Judge convicted the appellants for the offences

punishable under Section 394/34 IPC read with Section 397 IPC and

sentenced both of them under Section 394/34 IPC read with Section

397 IPC to undergo RI for the period of seven years and to pay a fine of

Rs.3000/-, in default to undergo RI for the period of six months. The

learned Additional Sessions Judge also convicted the appellant Anil

Kumar for the offence under Section 27 Arms Act and sentenced him to

undergo RI for the period of period of seven years and to pay a fine of

Rs.2000/- and in default to undergo RI for the period of two months.

The learned trial Judge further directed that both the sentences shall

run concurrently with benefit of Section 428 Cr.P.C.

2. Briefly stated, case of the prosecution is that the complainant

Jitender Kumar (PW1) was employed with M/s. GFC Finance Ltd., 13/34,

W.E.A. Karol Bagh, New Delhi. On 28.09.2004, Shri Tarun Goel (PW2),

Director of the aforesaid company gave Rs.6 lakhs in cash to PW1 for

depositing the same in Kotak Mahendra Bank, Greater Kailash, Part-II,

New Delhi. PW1 Jitender Kumar left the company with cash of Rs.6

lakhs kept in a black leather bag. He boarded a bus from Karol Bagh

to Greater Kailash, Part-II. At about 9:30 or 9.45 am, PW1 Jitender

Kumar got down from the bus near Savitri Cinema. When he was

proceeding towards Kotak Mahendra Bank, two boys came from

behind, one of them gave a knife blow on his right cheek as well as left

hand and both of them snatched the bag from him and ran away. PW1

Jitender Kumar raised an alarm "Pakro Pakro", on this some public

persons chased said two boys. SI Jagdish Chand (PW5) and Constable

Jitender Kumar (PW8) happened to be present near the place of

occurrence on patrol duty. On seeing the said two boys being chased

by public, they apprehended said two boys near House No.E-159,

Greater Kailash, Part-II. On inquiry, they disclosed their names as Anil

Kumar and Sanju. Appellant Anil Kumar was having a knife in his hand

and appellant Sanju was having a black leather bag.

3. In the meanwhile, someone informed PCR that a boy has been

stabbed near E-159, Greater Kailash, Part-II, which information was

conveyed by the PCR to Police Station Chitranjan Park and was reduced

into writing as DD No.5A dated 28.09.2004 P.S. Chitranjan Park at

11:05 am. Copy of the DD report (Ex.PW7/A) was entrusted to SI Ram

Yash Pandey (PW7) who along with Constable Anil Kumar (PW6) also

reached at the spot. He recorded the statement of injured complainant

Jitender Kumar Ex.PW1/A. Both the appellants and recovered black bag

containing Rs.6 lakhs in the form of currency notes of Rs.500/-

denomination each and spring actuated knife were produced before

the Investigating Officer. He counted the money which comprised of

12 packets of Rs.500/- denomination each. The Investigating Officer

also prepared the sketch of the knife Ex.PW5/A. On measurement, the

blade of the knife was found to be 13 cm long and its handle was 10

cm long. Recovered money as well as the knife were converted into

separate packets and sealed with the seal of "CB". The seal after use

was handed over to SI Jagdish Chand. SI Ram Yash Pandey appended

his endorsement Ex.PW7/B, detailing the proceedings conducted by

him, on the statement of the complainant and sent it to the Police

Station for the registration of the case. On the basis of said rukka,

formal FIR Ex.PW7/A was recorded at the Police Station at 1:35 pm.

Both the appellants were arrested. A packet of chilli powder was

recovered from the personal search of appellant Sanju. The

complainant was taken to nearby Talwar Nursing Home where his MLC

was prepared and he was treated by Dr. Kapil Dev(PW3). Blood-

stained baniyan and shirt of the complainant were also seized on being

handed over by the Doctor after converting into a sealed packet. On

interrogation, the appellants disclosed the involvement of one Manoj

and one Sunil in the offence. Accused Sunil could not be arrested.

Accused Manoj was arrested; however, he was not identified by the

complainant, so he was discharged.

4. During trial, the appellants were charged for the offence

punishable under Section 394/34 IPC read with Section 397 IPC.

Appellant Anil Kumar was also charged for the offence punishable

under Section 27 of the Arms Act. Both the appellants pleaded not

guilty to the charges framed against them and claimed to be tried.

5. In order to bring home the guilt of the appellants, prosecution

examined eight witnesses in all. Before adverting to submissions made

on behalf of the appellants, it would be useful to have a look upon the

testimony of some of the material witnesses.

6. PW1 Jitender Kumar is the complainant. He has reiterated his

version given in the complaint Ex.PW1/A by testifying that on

28.09.2004, he proceeded from GFC Finance company, Karol Bagh at

about 9:00 am with Rs.6 lakhs kept in a black bag for depositing the

same in Kotak Mahendra Bank, Greater Kailash, Part-II. He travelled by

bus route No.490 from Karol Bagh to Greater Kailash, Part-II. He got

down from the bus near Savitri Cinema, Greater Kailash around 9:30 or

9:45 am and proceeded towards the Bank on foot. At about

10:30/10:45 am when he was at some distance from the Bank, two

boys came from behind. One of them inflicted knife injuries on his right

cheek and left hand and thereafter those boys snatched the bag

containing currency notes and started running. He chased them and

raised an alarm "Pakro Pakro". Some public persons who were sitting

nearby apprehended those boys and the bag containing money was

recovered from them. He identified the appellant Anil as the person

who gave him knife blows and appellant Sanju as the person who

snatched the bag from him. He stated that the bag containing money

was recovered from the possession of appellant Sanju and the knife

was recovered from the appellant Anil Kumar. He also claimed that

thereafter, he was taken to a nearby hospital by public persons. Police

arrived in the hospital and recorded his statement Ex.PW1/A. Police

also seized the bag containing money which he had carried with him to

the hospital after the recovery. According to him, his blood-stained

baniyan and shirt were also seized by the police vide memo Ex.PW1/B.

The bag and currency notes were seized vide memo Ex.PW1/C and

knife was seized vide memo Ex.PW1/D. He identified the black bag as

Ex.P1, knife as Ex.P2 and his blood-stained baniyan and shirt as

Exhibits P3 and P4. He denied the suggestion of APP that the bag

containing the currency notes and the knife was recovered from the

possession of accused persons at the spot.

7. PW3 Dr. Kapil Dev of Talwar Medical Centre has stated that on

28.09.2004 at about 11:10 am, one Jitender was brought to Talwar

Medical Centre with a history of stab injury and on examination, he

found following injuries on his person:

"1. 4 cms. wound on right side of cheek, deep till inside, profusely bleeding.

2. 4 cms. Wound on left forearm dorsum deep till deep muscles, bleeding profusely".

8. PW3 Dr. Kapil Dev stated that the patient was immediately

shifted to Operation Theatre. Injuries were grievous and dangerous in

nature. He has proved copy of the MLC prepared by him as Ex.PW3/A.

9. PW5 SI Jagdish Pandey is another important witness. He has

stated that on 28.09.2004, he was on duty of bank checking and area

patrol on a motorcycle along with Constable Jitender Kumar. At about

10:40 or 10:45 am when they were at E-Block, Greater Kailash, Part-II,

he noticed two boys being chased by injured complainant and some

public persons. One of them was having a knife in his hand and other

was having a bag. He apprehended the boy carrying knife, whereas

Constable Jitender apprehended the boy carrying bag with the help of

public persons. On inquiry, the names of said two boys were disclosed

as Anil Kumar and Sanju and the name of the injured was disclosed as

Jitender. He stated that in the meantime, SI Pandey along with Anil

Kumar also reached at the spot. On checking, the bag was found to

contain 12 packets of currency notes of Rs.500/- denomination each.

He claimed that the said bag along with the currency notes and the

knife was handed over to the Investigating Officer SI Pandey. PW8

Constable Jintender Kumar has deposed to almost similar effect.

According to him, Anil Kumar, when apprehended, was having open

knife in his hand, whereas appellant Sanju was carrying a leather bag

containing money. PW7 SI Ram Yash Pandey is the Investigating

Officer who reached at the spot immediately after the appellants were

apprehended along with the knife and the bag containing currency

notes. He has deposed about the details of investigation conducted by

him.

10. Both the appellants when examined under Section 313 Cr.P.C.

denied the prosecution case and claimed that they have been falsely

implicated. Appellant Anil claimed that he was lifted from his house

and implicated in this case falsely. Appellant Sanju also claimed that

he was lifted from his house and was implicated in this case. According

to the explanation given by appellant Sanju, the actual assailants

managed to escape from the spot and the Police have falsely

implicated him. No witness in defence has been examined by either of

the appellants.

11. The learned trial Judge on consideration of the evidence produced

by the prosecution and the submissions made on behalf of the

respective parties found the appellants guilty and convicted and

sentenced both the appellants for the offences punishable under

Section 394/34 IPC read with Section 397 IPC. The learned trial Judge

also found the appellant Anil Kumar guilty of offence under Section 27

of the Arms Act and convicted and sentenced him accordingly.

12. Learned Shri Jitender Kumar, advocate appearing for the

appellant Sanju and learned Shri Bhupesh Narula, advocate for the

appellant Anil Kumar have argued almost on similar lines. They

submitted that it is a false case and the appellants have been falsely

implicated after being picked up from their respective houses. Dilating

on the argument, it was submitted that as per the case of the

prosecution, the appellants were apprehended red-handed on the spot

along with the bag containing Rs.6 lakhs which fact stands belied by

DD No.5A dated 28.09.2004 recorded at Police Station Chitranjan Park

at 11:05 am regarding the incident. Learned counsels pointed out that

as per the said DD report Ex.PW7/A, the information conveyed by the

PCR to the Police Station was only in respect of one person having

been stabbed near E-159, Greater Kailash, Part-II, New Delhi and there

is no mention of the robbery of Rs.6 lakhs in the DD report. From this,

learned counsels have urged this Court to infer that no robbery actually

took place and the appellants have been falsely implicated.

13. The submission made on behalf of the appellants is devoid of

merit. As per the testimony of the complainant (PW1) Jitender Kumar

as well as SI Jagdish Chand (PW5) and PW8 Constable Jitender, some

public persons were also chasing the appellants at the relevant time.

From this it is apparent that the incident was seen by some public

persons also. The identity of the informer who conveyed the

information to the PCR is not revealed in the DD report and it is

possible that some public person, after seeing the stabbing incident,

might have informed the police control room that a boy has been

stabbed. Therefore, much importance cannot be attached to there

being no reference to the robbery of the bag containing Rs.6 lakhs in

the DD report Ex.PW7/A. Further, if the appellants were not caught

red-handed with the robbed money at the spot, it is highly improbable

that the complainant would have provided Rs.6 lakhs to the police to

be shown as the case property just for the sake of false implication of

the appellants at the instance of the police. There is nothing on the

record to indicate any enmity or motive on the part of PW1 Jitender

Kumar (complainant) which could have prompted him to take such a

drastic step. Thus, I find no merit in the above contention.

14. It is submitted on behalf of the appellants that the recovery of

the bag containing Rs.6 lakhs from the possession of the appellant

Sanju is highly doubtful. Dilating on the argument, learned counsels

submitted that as per the testimony of PW5 SI Jagdish Chand while he

was on patrol duty at E-Block, Greater Kailash, Part-II, he saw the

appellant being chased by public. On this, he apprehended the

appellants Anil Kumar who was carrying a knife in his hand and

Constable Jitender(PW8) apprehended the appellant Sanju who was

carrying the robbed bag containing Rs.6 lakhs. Learned counsels

argued that if this version was true, then seizure memo ought to have

reflected these facts, whereas as per the seizure memo Ex.PW1/C the

bag containing Rs.6 lakhs was produced before the Investigating

Officer SI R.Y. Pandey by the complainant Jitender Kumar. It is

submitted that this contradiction casts a strong suspicion against the

correctness of the prosecution version and the said suspicion is further

compounded by the fact that there is no independent witness either

cited or examined by the prosecution to corroborate the aforesaid

story. Thus, it is argued that the appellants are entitled to at least the

benefit of doubt.

15. I am not convinced with the above argument. Non-joining of

public witnesses to the recovery, by itself, cannot be taken as a

circumstance to discard the testimony of the complainant who

sustained knife injuries in the incident which have been described as

dangerous by PW3 Dr. Kapil Dev who prepared his MLC Ex.PW3/A and

who treated him on the date of incident at Talwar Medical Centre.

However, this circumstance requires the Court to be on its guard while

examining the evidence of the complainant and police witnesses.

16. As regards the infirmity pointed out by the learned counsels for

the appellants regarding the recovery and seizure of the bag

containing money from appellant Sanju, it would be seen from the

testimony of PW1 Jitender Kumar that he has testified that after being

stabbed and looted, he ran after the appellants and raised an alarm

"Pakro Pakro". On this, some public persons who were sitting nearby

chased the appellants and apprehended them. He also claimed that

his bag containing Rs.6 lakhs was recovered from the possession of the

appellant Sanju, whereas the knife was recovered from the appellant

Anil Kumar. In his further statement, he deposed that from the spot he

was taken to the Hospital where his statement was recorded and at the

Hospital, police seized the said bag containing currency notes of Rs.6

lakhs which was carried by him to the Hospital after recovery. From

this statement of the complainant Jitender Kumar, it is clear that after

the recovery of looted bag from the appellant Sanju, it was handed

over to the complainant who carried it with him to Talwar Medical

Centre where he handed over the same to the Investigating Officer.

Thus, I find no mismatch in the testimony of the complainant and the

facts recorded in the seizure memo Ex.PW1/C. Rather, the facts

narrated in the seizure memo Ex.PW1/C tend to corroborate the

testimony of the complainant Jitender Kumar.

17. Lastly, it is argued on behalf of the appellants that as per the

testimony of PW8 Constable Jitender, he reached back at the Police

Station on the date of occurrence at around 8:00 pm and when he

reached at the Police Station, he did not see the accused persons

there. From this, learned counsels have urged me to infer that till 8:00

pm the appellants were not arrested and if the prosecution story was

true, then Constable Jitender should have seen the appellants in the

lockup of the Police Station on his arrival at the Police Station on

28.09.2004 at 8:00 pm. I find no merit in this contention. Reaching at

the Police Station does not mean that Constable Jitender had visited

the lockup of the Police Station to find out who was detained at the

Police Station at the relevant time. Thus, much significance cannot be

attached to the above referred version of PW8 Constable Jintender.

18. Appellants in their respective statements under Section 313

Cr.P.C. have claimed that they were picked up by the Police from their

respective houses and falsely implicated in this case. The defence

taken by the appellants is not plausible because had this been true, the

appellants would definitely have examined someone from their family

or their neighbourhood to substantiate the aforesaid defence that they

were picked up by the Police from their respective houses. Since no

evidence has been adduced by the appellants in this case, I am not

inclined to accept the defence put forth by them.

19. PW1 Jitender Kumar (complainant) has fully supported the case of

the prosecution. His version is natural and consistent with the first

information report recorded at the Police Station within three hours of

the incident. Not only this, Jitender Kumar had sustained serious knife

injuries on his person. Therefore, his presence at the spot cannot be

doubted. Otherwise also, there is nothing on the record to suggest that

he had any enmity or motive to falsely implicate the appellants. Thus,

there is no reason as to why the complainant would depose falsely to

implicate the appellants and also provide Rs.6 lakhs, which is a huge

amount, to the Police to ensure false implication of the appellants.

Thus, in my view, the learned trial Judge has rightly relied upon his

testimony, which finds corroboration from the testimony of PW5 SI

Jagdish Chand and PW8 Constable Jitender as well as the medical

evidence provided by PW3 Dr. Kapil Dev, to find the appellants guilty

of the charges.

20. In view of the above, I find no reason to interfere with the

impugned judgment of conviction and consequent order on sentence.

Appeals are devoid of merit, which are accordingly dismissed.

21. Appellant Anil Kumar is stated to be on bail. SHO, P.S. Chitranjan

Park is directed to take him in custody and send him to the Jail for

undergoing the remaining sentence.

(AJIT BHARIHOKE) JUDGE AUGUST 10, 2010/pst