Pritam Singh vs The State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 1428 Del

                                                      R-2

             HIGH COURT OF DELHI : NEW DELHI
      Judgment Reserved on: March 4, 2010
      Judgment Pronounced on: March 15, 2010
+            Crl. Appeal No. 104 of 2004


%     Pritam Singh                           ...       Appellant
                 Through:         Mr. Jitender Kumar, Advocate

                                  versus

      The State (Govt. of NCT of Delhi)      ...  Respondent
                 Through: Mr. R.N. Vats, Additional Public
                            Prosecutor for State.

CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR

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

2. To be referred to Reporter or not?                       No

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

SUNIL GAUR, J.

1. The appellant has been tried and convicted in FIR No. 269

of 1999, under Sections 354/397/34 of the IPC, registered at

Police Station Kotla Mubarak Pur, New Delhi, in respect of an

occurrence in the night of 23rd May, 1999, which took place

near Subhash Marg. Modesty of an Australian woman (PW-4)

Criminal Appeal No. 104 of 2004 Page 1 (hereinafter referred to as the 'victim') was purportedly

outraged in a car by the appellant while his co-accused was

driving the car and thereafter, the victim (PW-4) was robbed of

her valuables like wallet, gold bracelet and black handbag at

the point of a sharp object.

2. Upon the complaint of the victim (PW-4), investigation in

this case commenced, spot proceedings were conducted and

co-accused of the appellant was arrested, whereas the

appellant/accused had managed to flee away. However, he

was arrested on the next day and at his instance, cash of

Rupees five thousand six hundred and eighty, two Australian

dollars in the denomination of Rupees hundred each, visiting

and membership cards of the victim (PW-4), were recovered

from a box in which wheat was kept in his room. From the co-

accused of the appellant, knife and remaining cash was

recovered and the co-accused had disclosed that the said knife

and cash was handed over to him by the appellant/accused.

Investigation of this case stood completed with the filing of the

charge-sheet against the appellant and his co-accused in this

case for the aforesaid offences. Trial had followed upon

appellant and his co-accused preferring to face the charges

framed against them for the offences under Sections 354/34 of Criminal Appeal No. 104 of 2004 Page 2 the IPC and under Section 397 of the IPC. The evidence

recorded consists of deposition of victim (PW-4) and that of

public witnesses (PW-2 and PW-3). The investigation in this

case was conducted by SI Hemant Kumar (PW-6) and Sub-

Inspector Raghunath (PW-9). The plea of appellant/ accused

before the trial court was of denial of the prosecution case,

though he had not led any evidence in his defence. The trial of

this case came to an end with the conviction of the

appellant/accused and the impugned order sentenced the

appellant/accused to rigorous imprisonment for seven years for

the offence under Section 397 of the IPC whereas for the

offence under Section 354 of the IPC, he stands imprisoned for

a period of two years.

3. The challenge herein is to the aforesaid conviction and

sentence on the ground that the trial court has arrived at the

conclusion that the offence committed by the appellant is of

being in possession of stolen property but has illegally

proceeded to convict the appellant for the offence under

Section 397 of the IPC by drawing presumption under Section

114 of the Evidence Act. According to the learned Counsel for

the appellant/accused, at best the appellant could have been

convicted for the offence under Section 411 of the IPC. It has Criminal Appeal No. 104 of 2004 Page 3 been urged on behalf of the appellant/accused that the

conviction of the appellant for the offence under Section 397 of

the IPC is patently illegal and is liable to be set aside. Mr. R.N.

Vats, learned Additional Public Prosecutor for respondent-

State, asserts that the presumption under Section 114 of the

Evidence Act can be drawn as the possession of the robbed

articles is recent one. It is a matter of record that the incident

is of 23rd May, 1999, whereas the recovery of the robbed

articles has been made from the appellant/accused on 25 th

May, 1999.

4. It is reasonable to presume from the recovery of the

robbed articles after about two days of the incident that the

robbery was committed by the appellant/accused and none

other. It is a matter of record that the victim (PW-4) has not

identified the appellant/accused as the assailant. Even the

depositions of the public witnesses (PW-2 & PW-3) do not

incriminate the appellant/accused. In such a situation, by

drawing presumption under Section 114 of the Evidence Act,

the appellant/accused can be convicted for the offence of

robbery.

Criminal Appeal No. 104 of 2004 Page 4

5. It is so said upon scrutiny of the evidence on record. It

does stand proved beyond any reasonable doubt that the

appellant/accused was found in possession of the robbed

articles and that too, just two days of this incident. The stand

of the appellant/accused is of mere denial, which can hardly

rebut the presumption raised against him under Section 114 of

the Evidence Act. The recovery of stolen articles from the

appellant/accused may not be soon after this incident, but is

certainly recent one. Therefore, the trial court did not commit

any illegality or infirmity in drawing adverse inference against

the appellant/ accused.

6. So far as the offence of robbery simplicitor is concerned,

it was legitimate to convict, by relying upon Illustration-A,

under Section 114 of the Evidence Act. However, it is illegal to

convict the appellant/accused for the offence of armed

robbery, especially when the recovery of the weapon of the

offence was from the co-accused. Evidence is lacking as

regards who had yielded the knife for commission of offence of

robbery. This Court is of the considered view that the

appellant/accused can be certainly convicted for the offence

under Section 392 of the IPC but his conviction for the offence

under Section 397 of the IPC is clearly unsustainable and is Criminal Appeal No. 104 of 2004 Page 5 accordingly set aside. Offence under Section 392 of the IPC is a

lesser offence of the same species as that of Section 397 of the

IPC. Therefore, appellant can be convicted for the lesser

offence though he has been charged for the graver offence.

While maintaining the conviction of the appellant/accused

under Section 354 of the IPC, his conviction for the offence

under Section 397 of the IPC, is set aside and instead thereof,

he stands convicted for the lesser offence under Section 392 of

the IPC.

7. During the pendency of this appeal, the sentence

imposed upon the appellant was suspended. Nominal Roll of

the appellant/accused indicates that the appellant has

remained behind bars in this case for a period of more than

three years and three months. His conduct in the jail has been

found to be satisfactory and his Nominal Roll shows that no

other case is pending against him. The offence under Section

392 of the IPC does not carry any minimum sentence. Counsel

for the appellant/accused had brought to the notice of this

Court during the hearing of this appeal that appellant/accused

is now settled in life and he is on bail since the year 2006. In

the typical facts of this case, the period of detention already

undergone by the appellant/accused would meet the ends of Criminal Appeal No. 104 of 2004 Page 6 justice. Resultantly, appellant/accused is sentenced to rigorous

imprisonment for three years and three months, i.e. the period

already undergone by him in this case. This appeal stands

partly allowed in the aforesaid terms.

8. The appeal stands disposed of accordingly.

Sunil Gaur, J.

March 15, 2010
rs




Criminal Appeal No. 104 of 2004                           Page 7