Santosh Kumar Dubey vs Govt. Of Nct Of Delhi
2010 Latest Caselaw 3229 Del

                       HIGH COURT OF DELHI: NEW DELHI

+             CRL. APPEAL NO.632/2008

%

Santosh Kumar Dubey                                             ..... Appellant
                             Through:     P.R.Aggarwal   &      Mr.Arun    Srivastava,
                                          Advs.
                             Versus


Govt. of NCT of Delhi                                            .....Respondent
                             Through: Mr. Manoj Ohri, APP for State.


                       Judgment reserved on: 5th July, 2010
                       Judgment delivered on: 13th July, 2010


Coram:
HON'BLE MR. JUSTICE A.K. PATHAK


       1.   Whether the Reporters of local papers
            may be allowed to see the judgment?                 Not necessary


       2. To be referred to Reporter or not?                    Not necessary


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


A.K. PATHAK, J.

1. Appellant has been convicted under Sections 392/394/397 IPC by the

learned trial court and sentenced to face rigorous imprisonment for seven

years and fine of Rs. 1,000/- and in default of payment of fine to undergo

rigorous imprisonment for one month under Section 392 IPC; to undergo

rigorous imprisonment for seven years and to pay fine of Rs. 1,000/- and in

default of payment of fine to undergo rigorous imprisonment for one month

under Section 394 IPC; to undergo rigorous imprisonment for seven years and

fine of Rs. 1,000/- and in default thereof to undergo rigorous imprisonment

for one month under Section 397 IPC. All the sentences have been directed

to run concurrently.

2. Appellant has been acquitted of the charge under Section 411 IPC. At

the time of his arrest, one country made pistol (desi katta) was recovered

from the Appellant and a separate FIR No. 491/2002 under Section 25 Arms

Act was also registered against him. This case was also tried with the main

case arising out of FIR No. 486/2002 under Sections 392/394/397/411 IPC.

However, Appellant has been acquitted in the said case arising out of FIR No.

491/2002 IPC.

3. Aggrieved by his conviction and sentence under Sections 392/394/397

IPC Appellant has preferred this appeal.

4. In brief, prosecution case is that on 29th July, 2002 PW2 Ram Kumar

and PW3 Lal Bahadur were sleeping in the factory situated at plot No. A-117,

WPIA Ashok Vihar, Delhi where they were working as Supervisor and Peon

respectively. On hearing some noise they woke up at about 1:00 am and

found Appellant along with accused Subodh (remained Proclaimed Offender

during the trial) and Sunil (juvenile) inside the factory. Appellant was armed

with a desi katta while Subodh and Sunil were carrying iron rods. Appellant

threatened to open fire in case Ram Kumar and Lal Bahadur did not hand

over the articles which they were having in their possession. Ram Kumar and

Lal Bahadur raised alarm at which Appellant instigated his other two

accomplices to give beatings to them. Subodh and Sunil on such instigation

gave beatings to Ram Kumar and Lal Bahadur with iron rods. In the

meanwhile Appellant snatched wrist watch and Rs.500/- from Ram Kumar.

Thereafter, Appellant and other accused ran away. Someone informed the

owner of the factory, Dinesh (PW-9) who came there and removed Ram

Kumar and Lal Bahadur firstly to a private nursing home and from there to ESI

Hospital.

5. An information was received in the Police Station Ashok Vihar from the

ESI Hospital, Basai Darapur regarding the hospitalization of Ram Kumar and

Lal Bahadur which was recorded as DD No. 31 and handed over to Sub

Inspector Sheesh Pal for inquiry who along with Head Constable Joginder

went to ESI Hospital, Basai Darapur and obtained their MLCs. After Ram

Kumar was declared fit for making statement, his statement was recorded, on

the basis whereof FIR No. 486/2002 under Sections 392/394/397 IPC was

registered. Since the Appellant and his co-accused were addressing each

other by their respective names while committing the robbery, their names

were mentioned by Ram Kumar in his statement recorded by the Police.

Ram Kumar also stated that he could identify the accused persons if brought

before him.

6. Appellant was arrested on 30th July, 2002 at about 9:00 am. along with

Sunil. At the time of his arrest a desi katta was recovered from him along

with one live cartridge which was seized by the Police. Co-accused Subodh

was also arrested on 30th July, 2002 and from him robbed wrist watch was

recovered. Appellant was put to Test Identification Parade (TIP) by PW2 Ram

Kumar but he declined to participate therein on the ground that he was

already shown to the witnesses. After completion of investigation Appellant

along with the co-accused was sent up to face trial.

7. Charges under Sections 392/394/411/34 IPC were framed against the

Appellant to which he pleaded not guilty and claimed trial. Prosecution

examined sixteen witnesses to substantiate its case. Ram Kumar and Lal

Bahadur were examined as PW2 and PW3. They have supported the

prosecution version and identified Appellant in the court. Rest of the

witnesses were Police officials, Metropolitan Magistrate and doctor. PW4 is

Metropolitan Magistrate, who conducted the judicial TIP of Appellant on 1st

August, 2002. She has proved the TIP proceedings vide exhibits PW4/A,

PW4/B, and PW4/D. She has deposed that Appellant had shown his

unwillingness to join the TIP despite her warning that refusal to join TIP may

go against him in the trial as adverse inference might be drawn against him.

PW11 Dr. R.K. Sharma has proved the MLCs of Ram Kumar and Lal Bahadur as

PW11/A and PW11/B respectively which shows that these persons had

sustained multiple injuries on their person on the fateful day.

8. Statement of the Appellant under Section 313 Cr.P.C. was recorded in

which entire incriminating material, which had come on record, was put to

him. Appellant denied his participation in the crime. He claimed himself to

be innocent. He stated that on 28th July, 2002 he was picked up by the Police

officials from his residence and later on falsely implicated in this case. He

examined one Ajay Kumar in his defence as DW1 who deposed that on 28th

July, 2010 at about 2/3 am some Police officials came to the house of the

Appellant i.e. G-76, Harkesh Nagar and took him away with them.

9. Learned trial Judge found the testimony of PW2 and PW3 trustworthy

and reliable and sufficient enough to conclude beyond shadow of reasonable

doubt that the Appellant along with his accomplices had entered in the

factory premises and robbed Ram Kumar of his valuables and while

committing robbery used desi katta being a deadly weapon, thus, had

committed offence under Section 397 IPC; since Ram Kumar and Lal Bahadur

were also given beatings by iron rods at the time of robbery, resulting in

injuries to them, Appellant had also committed offence under Section 394 IPC.

10. I have carefully gone through the depositions of PW2 and PW3 and

find the same to be trustworthy and reliable. Both the witnesses have

corroborated each other on material points and their testimony has remained

unshattered in their cross examination. In my view, they are trustworthy and

reliable witnesses and have rightly been believed by the learned trial court for

holding that it is the Appellant who along with his accomplices had

committed the armed robbery. At the time of robbery Appellant was armed

with a desi katta which he used for threatening PW2 and PW3. Witnesses

were also given beatings by iron rods by the accomplices of the Appellant at

his instigation which also resulted in injuries on their person. Appellant has

been identified by PW2 Ram Kumar and PW3 Lal Bahadur in the court as the

same person who was carrying desi katta in his hand while committing

robbery and had threatened them with dire consequences in case they did

not hand over the valuables in their possession to the Appellant.

Identification of the Appellant in the court is to be accepted as he had

refused to participate in the TIP which fact goes against him. Injuries on the

person of PW2 and PW3 have been duly proved by the doctor and lend

credence to their version. There is no reason as to why these PWs would

depose falsely against the Appellant more so when no previous enmity has

been proved. In my view, learned trial court has rightly accepted the

testimonies of PW2 and PW3 while convicting the Appellant under Sections

392/394/397 IPC.

11. I do not find any force in the contention of the learned counsel for the

Appellant that the refusal to participate in TIP by the Appellant would not be

sufficient to draw an adverse inference against the Appellant since he was

shown to the PWs prior to the holding of TIP. I have gone through the cross

examination of PW2 and PW3 carefully and find that no such question was

put to these witnesses that the Appellant was shown to them in the Police

Station by the Investigation Officer. No such defence was set up in the cross

examination of these witnesses. PW16 Sub Inspector Sheesh Pal, Investigating

Officer of this case, categorically deposed that he directed the accused to

remain in muffled face till the holding of TIP. In his cross examination, no

question was put to PW16 that the Appellant was not kept in muffled face

after his arrest till his TIP was conducted on 1st August, 2002. Moreover

endorsement on the application (Ex.PW4/C) made by the Investigation Officer

before the Metropolitan Magistrate shows that the accused was produced

with muffled face. In his cross examination PW16 has denied the suggestion

that before the TIP Appellant had been shown to the witnesses in the police

station. Appellant was arrested on 30th July, 2002 and an application for

conducting TIP was made on the same day and TIP was conducted on 1st

August, 2002. The promptness shown in conducting the TIP also rules out the

possibility of Appellant having been shown to the witnesses in the Police

Station, inasmuch as, no suggestion was put to the PW2 and PW3 in this

regard. No suggestion was put to these witnesses that they had visited the

Police Station between 30th July, 2002 to 1st August, 2002 nor was there any

evidence on record to show that Appellant was shown to PW2 and PW3 in

the Police Station or at any other place prior to holding of TIP. In these

circumstances, an adverse inference has to be drawn against the Appellant

and his identification in the court by the PW2 and PW3 would be sufficient to

fix his identity.

12. It is well settled that substantive evidence of the witness is his evidence

in the court. However, if the accused person is not known to the witness

concerned then identification of the accused by the witness after his arrest is

of a great importance because it furnishes an assurance that investigation is

proceeding on right direction in addition to furnishing corroboration of the

evidence to be given by the witness later in the court during the trial. The

aim of holding TIP, during investigation stage is to test the memory of the

witnesses based on first impression and also to enable the prosecution to

decide whether all or any of them could be cited as eye witnesses of the

crime. The necessity of holding identification parade arises only when the

accused are not previously known to the witnesses. The identification can

only be used as a corroborative piece of evidence of the statement made by

the witnesses in the court. Under Section 9 of the Evidence Act, the facts,

which establishes the identity of the accused persons, are relevant. As a

general rule, the substantive evidence of a witness is his statement made in

the court. The purpose of holding identification parade is to test the memory

of the witnesses which might fail with the lapse of time. By adopting this

course justice and fair play can be assured both to the accused as well as to

the prosecution.

13. In this case, identification parade was held without any undue delay.

However, Appellant declined to participate in the identification parade on the

ground that he was shown to the witnesses in the Police Station. This fact he

has failed to establish during the trial inasmuch as no such suggestion was

even put to the material witnesses i.e. PW2 and PW3 in this regard. In view

hereof an adverse inference can safely be drawn against the Appellant.

Appellant has been identified in the court by the PW 2 and PW3 and such

identification would be sufficient to fix the identity of the Appellant as the

culprits within the meaning of Section 9 of the Evidence Act.

14. I also do not find any force in the contention of the learned counsel

that since recovery of Desi Katta from the Appellant has been disbelieved he

cannot be convicted under Section 397 IPC. PW2 and PW3 have categorically

deposed that Appellant was armed with a Desi Katta at the time of robbery

which he used in threatening them to handover the robbed articles. This

clearly shows that at the time of committing robbery Appellant used a deadly

weapon so as to create a terror in the mind of victim (PW2) and this fact is

itself sufficient to attract the provisions of Section 397 IPC. Appellant was

arrested the next day and Desi Katta was allegedly recovered from him by the

police officials. Merely, because such recovery has failed, by itself would not

be sufficient to disbelieve the version of PW2 and PW3 regarding Appellant

being in possession of a Desi Katta at the time of commission of offence.

Thus this argument of the counsel for the Appellant is rejected.

15. In the light of the above discussions, I do not find any material

irregularity, impropriety or any illegality in the impugned judgment. The

minimum sentence provided under Section 397 IPC is of seven years which

has been awarded by the learned trial court and the same requires no

interference. The sentence awarded under Section 392 and 394 IPC also

requires no interference keeping in mind the nature of the offence.

16. Appeal is dismissed.

A.K. PATHAK, J.

July 13, 2010 ga