Raju vs State
2010 Latest Caselaw 213 Del

R-2J
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
+      CRL.A. 96/2009

       RAJU                                       ..... Appellant
                         Through: Mr. Mukesh Jain, Adv.
                    versus
       STATE                                    .... Respondent
                         Through: Mr. O. P. Saxena, Adv.
*      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)

This is an appeal against the judgment dated 05 th December,

2008 and Order of Sentence dated 12th December, 2008, whereby the

appellant was convicted under Section 392 IPC read with 397/34

thereof and was sentenced to undergo RI for 7 years and to pay a

fine of Rs.5000/- and in default of payment of fine to undergo simple

imprisonment for three months.

2. The complainant Saravjeet Singh went to Police Station

Paschim Vihar on 01.01.2005 and lodged FIR, stating therein, that on

that day he was returning home in his car No. DL 9 CG-6789. When

he was reached at the traffic light of T Point of Road No. 19/20 at

about 12:30 a.m. and was waiting at the intersection, four boys came

there. Two of them stood in front of his car, whereas the remaining

two knocked at the window of his car. When the complainant pulled

down the glass of the window, one of them put a knife on his neck

and the other took out the keys of the car. When the complainant

tried to remove the knife from his neck, he sustained injuries on his

right hand and on his nose. The culprits then removed the two gold

rings which the complainant was wearing and also snatched the

mobile phone which he was carrying.

3. The prosecution examined 10 witnesses in support of its case.

No witness was examined in defence. The complainant came in the

witness box as PW-4 and stated that in the night intervening

31.12.2004 and 01.01.2005, he was going to his house from his office

in his car No. DL 9 CG-6789. When he reached the traffic light of T

Point of Road No. 19/20 at about 12:30 a.m. and was waiting at the

intersection, four boys came there, two of whom stood in front of his

car, whereas the remaining two knocked at the window and sought

lift. When he pulled down the window glass one of them put a knife

on his neck and the other took out the keys of the car. When the

complainant tried to remove the knife from his neck, he sustained

injuries on his right hand and head but those boys removed the two

gold rings and also snatched the mobile phone. He identified the

appellant Raju as one of those four boys and said that Raju was

having knife with him and was asking the other associates to kill him.

4. PW-8 Ms. Sukhvinder Kaur, Presiding Officer, New Delhi Court

has stated that on 05.05.2005, the appellant Raju refused to join the

TIP before her in jail court, despite warning and caution that an

adverse interference shall be drawn against him on account of his

refusal to join the TIP. PW-9 Dr. V.K. Jha has proved the MLC of the

complainant EX PW-9/A. One incise wound over palmar surface of

right hand of the complainant was found when he was examined in

the hospital.

5. In his statement recorded under Section 313 Cr.P.C. the

appellant denied the allegation against him. He however admitted

that he has refused to join the TIP before PW-8 Ms. Sukhvinder Kaur

in Tihar Jail. According to him he had been shown to witnesses.

6. The testimony of PW-4 Sarabjit Singh Kalsi, which I see no

reason to disbelieve and which finds corroboration from the injury

sustained by him shows that four persons including the appellant

robbed him of his two rings and mobile phone on 01.01.2005. He

has identified the appellant during trial. During investigation the

appellant refused to join TIP before PW-8 on the ground that he was

shown to about 10, 15 persons in Police Station Punjabi Bagh, he

was taken to the court in unmuffled face and his photographs were

also taken. There is absolutely no evidence to prove that the

appellant was shown to the complainant, Saravjeet Singh at any

point of time. During cross examination of PW-8 no suggestion was

given to him that the appellant was shown to him in Police Station

Punjabi Bagh. During cross examination PW-10 Karan Singh, no

suggestion was given to him that the appellant was shown by him to

complainant Saravjeet Singh in Police Station Punjabi Bagh, though

it was suggested that he has shown to the complainant at the time

when he was produced to the Court. Thus, there is no material or

circumstance from which it may be interfered that the appellant was

or could have been shown to the complainant Saravjeet Singh in

Police Station Punjabi Bagh.

7. Though as noted earlier it was suggested to the Investigating

Officer that he had shown the appellant to the complainant at the

time of producing him, for taking remand, I find that no suggestion

was given to the complainant that he was present in the Court when

the appellant was produced for the purpose of taking his remand.

Even otherwise there could have been no occasion for the

complainant to remain present in the Court at the time of production

of the appellant for the purpose of taking his remand. There is no

way the complainant could have come to know that the appellant was

being produced before the Court on a particular date unless

Investigating Officer decided to inform the complainant in this

regard. No suggestion was given to the Investigating Officer that he

had informed the complainant to remain present in the Court, on the

date the appellant was produced for taking his remand. In fact, there

was no direct suggestion to the Investigating Officer that the

complainant was present in the Court on the day the appellant was

produced for taking his remand. Thus, there is no material from

which it may be inferred that the complainant was present in the

court on the date the appellant was produced for the purpose of

taking his remand. In fact there is no material on record even to

show that the appellant was unmuffled when he was produced in the

court for taking his remand. No suggestion was given to

Investigation Officer that the appellant was produced in unmuffled at

the time of seeking his remand.

8. As regards, the photographs of the appellant I find that no

suggestion was given to the Investigation Officer that he had taken

photographs of the appellant when he was in Police custody. In any

case, taking photographs would be meaningless unless those

photographs are shown to the witness before refusal of the accused

to join TIP. No suggestion was given to the complainant that the

photographs of the appellant were shown to him at any point of time.

I, therefore, have no hesitation in holding that the appellant refused

the TIP without any justification any without any reasonable ground.

If the accused refused Test Identification Parade without any

justifiable cause, he does at his own peril and the Court will, in such

circumstances, be justified in drawing an interference that had the

appellant participated in Test Identification Parade he would have

been identified by the witnesses and that precisely was the reason

why he refused 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 Court, coupled with

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

to establish their identity.

9. It was pointed out by the learned counsel for the appellant that

neither the co-accused of the appellant has been arrested nor have

any of the stolen articles been recovered. I find that there is no

cross-examination of IO on these aspects. He was not asked as to

whether he had interrogated the appellant as regard identity of the

other persons who were involved with him in commission of this

robbery. The Investigation Officer was not asked as to whether he

made any effort to recover the stolen items from the appellant or not.

He was not asked as to whether he tried to ascertain from the

appellant as to what he and his accomplishes had done with the

stolen articles. In the absence of any cross examination the

appellant does not get any benefit on account of the failure the

investigating agency to recovery to the stolen articles or to arrest the

co-accused of the appellant. Had the stolen property been recovered

from the appellant, that would definitely have been a corroborative

piece of evidence against him. But, absence of such evidence, by

itself would not justify acquittal, if the other evidence available

against the accused is sufficient to justify his conviction. If recovery

of stolen property is to be insisted upon in a case of robbery, every

robber may escape punishment simply by disposing of or even

destroying the stolen property, before the Investigating Agency is

able to reach him.

10. It, therefore, stands proved that the appellant and his

accomplices had robbed the complainant of his mobile phone and

two rings in furtherance the common intention which they shared

with each other.

11. The complainant sustained injury in his right, when he tried to

remove the knife which was put on his neck. This, to my mind, would

not amount to the appellant or any of his accomplices voluntarily

causing hurt to him. Had the appellant not tried to remove the knife,

he would not have injured his right hand. The intention of the

appellant and his companions was to intimidate him by putting knife

on his neck so as to facilitate commission of robbery by them, and

was not to cause any injury to him. They did not do any such act

from which it may be inferred that they intend to cause hurt to the

complainant. Had that been the intention, nothing prevented them

from inflicting some injury on his person. This is not the case of the

prosecution that the appellant or any of his accomplish voluntarily

cause heart to the complainant. The injury in the right hand of the

complainant, therefore, cannot be attributed to the appellant or any

of his accomplices. Hence, Section 394 IPC is not attracted to the

facts of the present case.

12. According to the complainant, the appellant was having a knife

in his hand at the time of the commission of the robbery and had in

fact asked his accomplices to kill him. I find that in the statement of

the appellant recorded under Section 313 Cr.P.C. it was not put to

him that he was carrying a knife. In the absence of any question

being put to the appellant in this regard he had no opportunity to say

whatever he could possibly have said in respect of this part of the

evidence appearing against him. The purpose of recording the

statement of accused under Section 313 Cr.P.C. is to enable him to

say whatever he may have to say in respect of material circumstance

appearing in evidence against him. Carrying of knife at the time of

commission of robbery was definitely a material circumstance

appearing in evidence against the appellant, as it was on account of

this part of the evidence that Section 397 IPC came into play thereby

attracting minimum sentence of imprisonment of 7 years. It was,

therefore, further obligatory on the part of learned Trial Judge to put

this part of the evidence to the appellant in his statement recorded

by him.

13. In Harijan Megha Jesha Vs. State of Gujarat, AIR 1979 SC

1566, recovery of a blood stained cloth from the accused, which was

a material circumstance to establish the charge against him, was not

put to him. It was held by the Hon‟ble Supreme Court that the

appellant could not be convicted of the offence charged against him.

14. In State of Maharashtra Vs. Sukhdeo Singh {JT 1992 (4) SC

73}, the Hon‟ble Court inter alia observed as under:-

"It is trite law that the attention of the accused must be specifically invited to inculpatory pieces of evidence of circumstances laid on record with a view to

giving him an opportunity to offer an explanation if he chooses to do so. Section 313 imposes a heavy duty on the court to take great care to ensure that the incriminating circumstances are pout to the accused and his response solicited. The words „shall question him‟ clearly bring out the mandatory character of the clause and cast an imperative duty on the court and confer a corresponding right on the accused to an opportunity to offer his explanation for such incriminating material appearing against him" From the above, it is clear that it is the mandatory duty of the trial court to put all such material circumstances on which the prosecution relies to base a conviction to the accused when his statement is recorded under section 313 Code."

15. In Yusuf @ Babu Vs. State of Rajasthan, JT 2003 SC 585, the

allegations against the accused was that he was found in possession

of explosives which were being carried in a Maruti van. However,

evidence relating to his being in the van was not put to him in his

statement under Section 313 Cr.P.C. The Hon‟ble Supreme Court

observed that it was mandatory upon the trial court to put to him the

circumstance on which the guilt of the accused is based, when his

statement is recorded under Section 313 Cr.P.C. It was noticed that

the entire case of the prosecution was based on the circumstances

which had not been put to the appellant before the Hon‟ble Supreme

Court. It was noted that the entire case of the prosexutrix was based

on the circumstance that the appellants were found in a Maruti van,

from which explosives were seized. If they were not found in van,

there was no material to connect them with the explosive found in

the vehicle. It was ultimately held that the circumstances being

material, the omission would go to the root of prosecution of case

and benefit would go to the accused.

16. The Hon‟ble Supreme Court, thereafter, proceeded to consider

whether to proceed with the request made by the State Government

to remand back to the TADA Court from for fresh trial from the stage

prior to the stage at which the statement was recorded under

Section 313 Cr.P.C. After noticing that the incident dated back to

the year, the Hon‟ble Court decided to put an end to the

proceedings.

17. In the present case also the appellant has been in custody for

almost last more than 04 years and 09 months, he having been

arrested on 07.04.2005. If the matter is remanded back to the trial

court it will result in further delay and thereby prolong the detention

of the appellant in jail. Considering all the facts and circumstances

of the case, it would not be appropriate and justified to remand the

matter back to the trial court for the purpose of recording the

evidence as regards his carrying a knife with him and then deciding

the matter afresh.

For the reasons given above, I am of the view that the offence

under Section 392 IPC read with Section 34 IPC has been proved

against the appellant. Since, the evidence regarding the appellant

carrying a knife with him cannot be used against him Section 397

IPC cannot be applied for the purpose of convicting and sentencing

him. The appellant has already completed 04 years and 09 months in

jail. He is therefore sentenced to imprisonment for the period

already spent by him in jail and is further sentenced to pay fine of

Rs.1000/- or to undergo SI for one month in default. Once copy of

this order be sent to the appellant immediately through the Jail

Superintendent.

Trial Court record be sent back along with copy of this

judgment.

V.K. JAIN, J

JANUARY 15, 2010 BM/AG/BG