Shekhar vs State Of Nct Of Delhi
2010 Latest Caselaw 5834 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI
%                               Judgment delivered on: 22nd December, 2010


+                      CRIMINAL APPEAL NO. 677 OF 2007


#      SALEEM                                                     .....Appellant
!                                          Through: Ms. Sahila Lamba, Advocate

                                      versus

$      STATE OF NCT OF DELHI                                    .....Respondent
^                                                Through: Mr. Pawan Behl, APP

                                          WITH



                     CRIMINAL APPEAL NO. 167 OF 2008

#      SHEKHAR                                                     .....Appellant
!                                              Through: Ms. Anu Narula, Advocate

                                        versus

$      STATE OF NCT OF DELHI                                     .....Respondent
^                                                Through: Mr. Pawan Behl, APP

                                           AND

                      CRIMINAL APPEAL NO. 46 OF 2009


#      MOHD. AKHTAR @ RAHUL                    .....Appellant
!                        Through: Mr. Sumit Verma, Advocate

                                        versus

$      STATE OF NCT OF DELHI                                     .....Respondent
^                                                  Through: Mr. Pawan Behl,APP

        CORAM:
*       HON'BLE MR. JUSTICE P.K.BHASIN
1.   Whether Reporters of local papers may be allowed to see
     the Judgment?(No)
2.   To be referred to the Reporter or not? (No)
3.   Whether the judgment should be reported in the digest? (No)



Crl. A. Nos. 677/07, 167/08 & 46/09                               Page 1 of 11
                                JUDGMENT

P.K.BHASIN,J:

These three appeals have been filed by the three accused-appellants

challenging their conviction and punishment awarded to them by the Court

of Additional Sessions Judge in Sessions Case No.50 of 2006. Vide

judgment dated 17th September,2007 accused-appellants have been

convicted under Section 392 read with Section 34 of the Indian Penal

Code('IPC' in short) and accused-appellant Mohd. Akhtar @ Rahul has

been additionally held guilty under Sections 411 and 397 IPC also and

vide order dated 24th September,2007 all the three accused-appellants

were awarded 10 years' rigorous imprisonment and fine of Rs.5000/- each

with a default stipulation that they shall have to undergo further simple

imprisonment for a period of one year in case of default in payment of

fine. For the conviction under Section 411 IPC accused-appellant Mohd.

Akhtar @ Rahul was separately awarded sentence of rigorous

imprisonment of three years and his substantive sentences of

imprisonment were ordered to run consecutively.

2. The case of the prosecution was that on 21st December,2005 at

about 3 p.m. PW-1 Rajan Chaudhary alongwith his employee PW-2 Kashi

Nath was going towards New Delhi Railway station on foot. At that time

Kashi Nath was carrying with him a black coloured brief of Goldman

Company case having Rs.1,25,000/- in it which amount he had withdrawn

from the bank account of his employer's firm M/s Sri Enterprises Ram a

day before. When they reached Kundewalan gali in Ajmeri Gate one fat

boy(accused-appellant Saleem) came and caught hold of the hand of Kashi

Nath with which he was holding the brief case containing money and that

boy also kept a knife on the neck of Kashi Nath and another boy(accused-

appellant Shekhar) started giving fist blows to Kashi Nath and their third

companion snatched the brief case from Kashi Nath. Therafter all the three

boys ran towards Kuch Pati Ram. On hue and cry being raised by Rajan

Chaudhary some public persons collected there and those boys were

chased. Accused-appellant Saleem and accused-appellant Shekhar could

be apprehended at some distance from the place of incident by PWs 1 and

2 with the help of public persons while the third person who had snatched

the brief (accused-appellant Mohd. Akhtar @ Rahul) managed to escape.

The two apprehended accused were beaten by the public. PW-14 Sub-

Inspector Ho Ram Singh alongwith two constables posted at Hauz Quazi

police station, within whose jurisdiction the robbery had taken place,

happened to be on patrolling duty at that time and hearing the commotion

came to the place where accused Saleem and Shekhar had been

apprehended. PW-1 Rajan Chaudhary narrated to SI Ho Ram Singh what

all had happended with PW-2 Kashi Nath and the two accused were

handed over to him. The statement of PW-1 was reduced into writing by

SI Ho Ram Singh meanwhile the police also reached there and on this

statement of Rajan Chaudhary and a rukka was prepared by SI HO Ram

Singh he sent constable Karambir with that rukka to the police station

Hauz Quazi for registration of the FIR under Sections 392/397/34 IPC

which was accordingly registered.

3. As per the further prosecution case during his interrogation at the

spot accused - appellant Salim volunteered to get recovered the knife used

by him while robbing the complainant and which he claimed to have

thrown on the roadside while running away from the place of incident and

at his instance knife Ex. PW-6/C was recovered from a nali and the same

was taken into police possession vide seizure memo Ex. PW-6/D.

Accused- appellant Mohd. Akhtar @ Rahul @ Rahul was then arrested by

the police on 24th December, 2005 from his house in village Balipada(in

Bihar) on the pointing out of a secret informer. He also made a disclosure

statement and pursuant to that he also allegedly got recovered a part of the

robbed money which was kept lying under the bedding of a takht in his

house. The total recovered amount was ` 53,000 consisting of currency

notes of different denominations. Those currency notes were taken into

police possession vide memo Ex. PW-7/B. The police also seized one

motor-cycle which was lying parked in the courtyard of the house of the

accused Mohd. Akhtar @ Rahul since it was claimed to have been

purchased out of the remaining robbed money. This accused was then

brought to Delhi and the police applied to the concerned Magistrate for

holding test identification parade in respect of accused - appellant Mohd.

Akhtar @ Rahul. However, that accused refused to participate in the test

identification parade for the reason that he had been shown to the

witnesses. As per the further prosecution case this accused made another

disclosure statement and pursuant to that he also got recovered the black

coloured briefcase(Ex.P-1) which was snatched from the hand of PW-2

Kashi Nath at the time of robbery. That recovery was from the factory of

PW-5 in some place in District Katiyar(Bihar). During investigation the

police confirmed from the bank from where the complainant had

withdrawn case amount of Rs.1,25,000/- from their account a day before

the incident.

4. After completion of investigation, all the three accused appellants

were charge-sheeted by the police and after committal of the case to

Sessions Court the Additional Sessions Judge framed charge under Section

392/34 IPC against all the three accused persons. Separate charges under

Sections 411 and 397 IPC were also framed against accused Saleem. All

the accused pleaded not guilty and claimed to be tried. The prosecution

then examined 14 witnesses including the complainant Rajan Chaudhary

and his employee Kashi Nath.

5. Learned trial Court after considering the evidence adduced by the

prosecution passed the impugned judgment holding all the three accused-

appellants guilty and sentenced them, as has been noticed already.

Feeling aggrieved, the three convicted accused filed separate appeals

which were however heard together and are now being disposed of also

together by this common judgment.

6. The prosecution had relied upon the evidence of the complainant

and his employee Kashi Nath, as eye witnesses of the incident, for

proving its case against the three accused persons and against accused

Mohd. Akhtar @ Rahul the prosecution had also adduced evidence of

recovery of part of the robbed money from his house and the

complainant's briefcase at his instance from the factory of PW-5. The

evidence in that regard was of the police officials and PW-5 Afsar.

7. PW-1 Rajan Chaudhary and PW-2 Kashi Nath had narrated the

incident almost exactly as had been informed to the police immediately

after the incident. They corroborated each other's version on all aspects

and gave the role of each of the three accused persons. Both of them

claimed that three accused persons were culprits who had committed

robbery. They also deposed that accused Saleem and Shekhar were

apprehended at the spot while attempting to run away after committing

robbery. The police officer PW-14, PW-6 constable Karambir and PW-8

constable Tapsi who were on patrolling duty at the time of the incident in

that area where the incident had taken place had also deposed that these

two accused were handed over by the public to them at the place of the

incident. It was suggested by the accused to PW-6 that the accused were

severely beaten by the public which shows that these two accused were

accepting the narration PWs 1 and 2. Learned counsel for these two

accused - appellants had submitted that when the prosecution claims that

these two accused were apprehended by the public persons then at least

one of them should have been produced and examined by the prosecution

to corroborate the evidence of PWs 1 and 2 but none has been examined

and their non-examination renders the prosecution case doubtful.

However, I do not find any merit in this argument since the complainant

Rajan Chaudhary in his cross-examination stated that none of the public

persons had come forward to give their statements before the police stating

that they would not indulge in Court cases. Similarly PW-6 Constable

Karambir also stated so in his cross-examination. There is nothing to

disbelieve this explanation given by PWs 1 and 6. Nothing could be

elicited from PWs 1 and 2 in their cross-examination which could discredit

them. No reason for their falsely implicating the accused persons was

suggested to them in their cross-examination. Learned trial Court had

found the evidence of both these witnesses to be reliable and this Court

also sees no reason to disbelieve their evidence and to differ with the

findings rendered by the learned trial Court.

8. The evidence of PWs 1 and 2 gets corroborated from the prompt

registration of the FIR in which the entire incident had been narrated by

the complainant Rajan Chaudhary as and the names of the accused Saleem

and Shekhar which they had come to know during their interrogation by

the police were also mentioned. Therefore, I have no hesitation in

upholding the conviction of accused- appellants Saleem and Shekhar for

the offence of robbery. As has been noticed already, the prosecution case

further was that accused-appellant Saleem had got recovered one

vegetable knife Ex. P-5 pursuant to his disclosure statement. There is no

doubt that PWs 1 and 2 as well as the investigating officer PW-14 and the

two constables with him on patrolling duty, PW-6 constable Karambir and

PW-8 Tapsi have also deposed about the recovery of knife at the instance

of accused Saleem but in my view, and as was rightly submitted by the

learned counsel for accused Saleem also, that recovery of the knife will be

of no significance since neither PW-1 nor PW-2 had deposed that Ex. P-5

was the same knife which had been used by accused Saleem at the time of

incident of robbery.

9. As far as accused Mohd. Akhtar @ Rahul is concerned, his

involvement is also fully established from the evidence of PWs 1 and 2

both of whom had identified him also in Court as the third culprit who had

managed to escape with the robbed brief case containing money. I have

found these two witnesses wholly trustworthy and the identification of

accused Akhtar @ Rahul by these two eye witnesses in Court which was

preceded by the refusal of this accused to participate in the test

identification parade established beyond doubt his complicity also in the

incident of robbery. Because of his refusal to participate in the test

identification parade an inference has to be drawn against him that he was

guilty. Learned trial Court has rightly observed in the impugned judgment

that nothing had been brought on record during the cross-examination of

any of the witnesses from which it could be inferred that there was even a

possibility of his being shown to PWs 1 and 2 before the test

identification parade and so his plea that he had refused to participate in

the identification parade was not justified.

10. It was also the prosecution case is that from the house of accused

Mohd. Akhtar a part of the robbed money was recovered. Learned counsel

for this accused had submitted that the recovery of robbed money from his

house is doubtful since the prosecution had not produced during evidence

the currency notes and only some photocopies were produced and

exhibited which is no legal evidence. And as far as the recovery of one

briefcase at his instance is concerned the same is also of no help to the

prosecution since PWs 1 & 2 themselves deposed that that briefcase had

been shown to them by the police at the police station and consequently

the identification of that briefcase by these two witnesses in Court has no

value. On the other hand, learned additional public prosecutor appearing

for the State had contended that the original currency notes had been taken

on superdari by the complainant and their photocopies had been retained

and that is why their photocopies were exhibited. Regarding the

identification of the briefcase Ex. P-1 by PWs 1and 2 at the police station,

as claimed by them, the learned additional public prosecutor did not claim

that that briefcase had not been shown to these two witnesses by the police

at the police station. It was however contended that the involvement of

accused Mohd. Akhtar @ Rahul in any event stood proved from the

evidence of PWs 1 and 2 and which stood corroborated also by the refusal

of this accused to participate in the test identification parade.

11. I am of the view that as far as the prosecution evidence regarding

recovery of currency notes at the instance of accused Mohd. Akhtar @

Rahul and the briefcase is concerned there is force in the submission of his

counsel that because of non-production of the original currency notes and

the police showing the brief-case to PWs 1 and 2 at the police station that

evidence cannot be availed of by the prosecution in support of its case

against accused Mohd. Akhtar @ Rahul. No witness had claimed that the

original notes had been taken on superdari by anyone and in any case there

is no explanation as to why the same had not been got produced from the

superdar during the prosecution evidence. There is also no explanation as

to why the brief case was shown to PWs 1 and 2 at the police station. So,

its identification in Court by these witnesses loses all significance.

However, I am in full agreement with the submission of learned additional

public prosecutor that even if that evidence is ignored the conviction of

this accused on the basis of his identification in Court by PWs 1 and 2,

who have been found to be wholly reliable witnesses and whose evidence

is corroborated also by the circumstance of refusal of this accused to

participate in the test identification parade. Therefore, the conviction of

accused Mohd. Akhtar @ Rahul is also upheld under Section 392/34 IPC.

Howver, since the evidence of recovery of robbed money from this

accused has not been accepted his conviction under Section 411 IPC

cannot be sustained.

12. It had also been argued on behalf of the three appellants by their

learned counsel that in the event of this Court not accepting their appeals

at least their sentence of imprisonment should be reduced since there were

no circumstances justifying imposition of the maximum sentence of

imprisonment provided under Section 392 IPC and considering the fact

that they had remained in jail for sufficiently long period their sentence of

imprisonment should be reduced to the period already undergone by them

in jail. Considering all the facts and circumstances and particularly the

fact that this is a case of daylight robbery in a market place and the

accused had acted like dare-devils this Court is not inclined to reduce the

period of sentence of imprisonment awarded to the three appellants by the

trial Court to the already undergone period. However, I consider then

years' imprisonment to be quite excessive and that period deserves to be

reduced.

13. These appeals are accordingly disposed of by maintaining the

conviction of all the three accused- appellants under Section 392/34 IPC.

However, the sentence of imprisonment awarded to each one of them is

reduced from ten years to six years. The sentence of fine is, however,

maintained as it is. Accused Mohd. Akhtar @ Rahul is acquitted of the

charge under Section 411 IPC.

As far as appellants Saleem and Shekhar are concerned they are

already in jail serving out their sentence while sentence of imprisonment

awarded to appellant Mohd. Akhtar @ Rahul was suspended during the

pendency of the appeal. Since his conviction under Section 392 IPC has

been maintained and he has not completed full term of his sentence his

bail bonds stand cancelled and he shall now be taken into custody by the

police and lodged in jail to complete remaining period of sentence of

imprisonment.

P.K. BHASIN,J

December 22, 2010 sh