Uday Bhan vs The State (Nct Of Delhi)
2010 Latest Caselaw 4588 Del

*          IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      Judgment reserved on: September 23, 2010
                                     Judgment delivered on: September 29, 2010

+          CRIMINAL APPEAL NO.82/2005
           GOPAL @ NIZAM                            ....APPELLANT
                   Through:     Mr. Udai Raj Singh, Advocate

                                Versus

           THE STATE (NCT OF DELHI)             ....RESPONDENT
                   Through:     Mr. Pawan K. Bahl, APP

                                           WITH

           CRIMINAL APPEAL NO.101/2005
           UDAY BHAN                               ....APPELLANT
                   Through:     Mr. Udai Raj Singh, Advocate

                                Versus

           THE STATE (NCT 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 are directed against the impugned

judgment dated 05th November, 2004 in Sessions Case No.

272/2002, FIR No. 353/98, P.S. Sriniwas Puri, in terms of which

the appellant Gopal @ Nizam has been convicted for the

offence punishable under Section 394 read with Section 34

IPC and Section 397 IPC and the appellant Uday Bhan has

been convicted for the offence under Section 394 read with

Section 34 IPC as well as the consequent order on sentence

dated 08th November, 2004.

2. Briefly stated, the facts relevant for the instant appeals are

that on 29th April, 1998 at about 11:40 a.m., an information

was conveyed by Lady Constable Sudesh of PCR to police post

New Friends Colony that some boys on a motorcycle No.

2171 have committed robbery of ` 90,000/- and escaped after

inflicting knife injury on a victim. This information was

recorded as DD No. 9 at the police post and copy thereof was

entrusted to ASI Pat Ram, who proceeded for the spot of

occurrence along with Constable Ram Prasad. The police post

Incharge SI J.S.Joon and Home Guard Constable Daryal Singh

were also sent to the spot of occurrence.

3. On reaching the place of occurrence, SI J.S.Joon came to know

that the injured victim had already been sent to Holy Family

Hospital. SI J.S.Joon then went to the hospital and found the

victim Kailash Chand Sharma admitted there. Kailash Chand

Sharma was declared fit for making statement. SI J.S.Joon

recorded his statement Ex.PW11/1 and sent it to the Police

Station for registration of the case after appending his

endorsement Ex.PW6/A on the complaint.

4. Kailash Chand Sharma in his statement Ex.PW11/1 stated that

he was working as Liaison Officer with M/s. Jindal Rolling Mills,

D-1, Maharani Bagh. On 29th April, 1998, at about 11:00 a.m.,

he left his office for encashing a bearer cheque of ` 90,000/-.

After encashing the cheque from Canara Bank, Ashram Chowk,

he kept the money comprising of 10 packets of ` 50/-

denomination each and 4 packets of ` 100/- denomination

each in a green cloth bag. When he was returning back to his

office at around 11:20 a.m., while he was crossing the Ring

Road and had reached the Central Verge, two young boys

came from behind and started fighting with him. One of them

snatched said bag from him. When he resisted, the other boy

inflicted an injury on his left hip with a knife like instrument,

consequently he started bleeding and fell down. Thereafter,

those boys escaped with the bag containing money on a

motorcycle which was either 'Hero Honda' or 'Yamaha' and its

registration number was 2171. The complainant also stated

that one of those boys was aged around 24-25 years with fair

complexion. His height was about 05 feet 07 inches. The

other boy was aged around 22-23 years and claimed that he

would be able to identify them if shown to him.

5. SI J.S.Joon inspected the place of occurrence and prepared

unscaled site plan. Thereafter investigation was taken over by

SI Subhash Malik, Incharge, Police Post, Sunlight Colony, who

recorded the statements of the witnesses and got prepared

identity kit of the accused persons with the help of the

complainant. He also collected MLC of the complainant,

wherein it was opined that he had sustained simple injuries.

6. While the case was still under investigation, Gopal @ Nizam,

Manoj @ Bittu @ Satish and Uday Bhan were arrested by

Special Staff, South District, Delhi in case FIR No. 234/98 under

Sections 399/402 IPC and Section 25 of the Arms Act, P.S.

Mehrauli. On interrogation, appellants as well as their co-

accused Manoj made disclosure statements pertaining to this

case. Pursuant to the said disclosure statements, accused

Uday Bhan, Gopal and Manoj got recovered sums of ` 5000/-,

5000/- and 10,000/- respectively. On receiving information

about their arrest and disclosure statements as well as

recovery of stolen money at their instance, SI Subhash Malik

moved an application for production of aforesaid three

accused persons in the court and formally arrested them with

the permission of the court and obtained their police custody

remand, but neither the weapon offence nor the remaining

money could be recovered. On completion of investigation,

the above three accused persons were challaned and sent for

trial for the offences punishable under Sections 394/397/412

IPC.

7. The learned Additional Sessions Judge, on consideration of

challan, charged appellant Gopal @ Nizam for the offences

punishable under Section 394/34 IPC and Section 397 IPC. He

also charged the other appellant Uday Bhan and co-accused

Manoj for the offence punishable under Section 394 read with

Section 34 IPC. Both the appellants pleaded not guilty to the

charge and claimed to be tried.

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

has examined 14 witnesses, including the victim Kailash

Chand Sharma (PW11).

9. Statements of the appellants as well as their co-accused Manoj

were recorded under Section 313 Cr.P.C. wherein they claimed

to be innocent and explained that they have been falsely

implicated by the police. Though the co-accused Manoj

examined one Praveen Rathi, Warden, Central Jail Tihar as

DW-1, neither of the appellants preferred to lead evidence in

defence.

10. The learned Additional Sessions Judge, relying upon the

testimony of sole witness of the incident complainant Kailash

Chand Sharma PW11 and the evidence pertaining to recovery

of part of the stolen property at the instance of the appellants

as well as their co-accused Manoj, found them guilty of the

offence punishable under Section 394 read with Section 34 IPC

and he also found the appellant Gopal @ Nizam guilty of

offence under Section 397 IPC and convicted and sentenced

them accordingly.

11. Co-accused Manoj has not challenged the impugned judgment

but the appellants have preferred the instant appeals.

12. Before adverting to the submissions of the rival parties, it

would be appropriate to have a look upon the important

evidence adduced by the prosecution.

13. PW11 Kailash Chand has testified that in April, 1998, he was

working as a Marketing Executive with Jindal Rolling Mills at D-

1, Maharani Bagh, New Delhi. On 29th April, 1998, at about

10:00 a.m., he had gone to Canara Bank, Ashram Chowk and

withdrawn a sum of ` 90,000/- comprising of currency notes of

denomination of ` 100/- and ` 50/- respectively. He kept the

money in a green colour bag and on his way-back when he

was on the Central Verge of Ring Road, three persons namely

Manoj, Nizam and Uday Bhan came there. Accused Manoj

snatched the bag from him and the appellant Gopal @ Nizam

inflicted an injury on his hip while the appellant Uday Bhan

punched him on his neck. Out of the fear that the assailants

may not inflict another knife injury on his person, he let go the

bag and the accused Manoj fled away on a motorcycle and

other accused persons also fled away from the spot. He,

thereafter, came to his office and intimated the police. From

the office, he was taken to Holy Family Hospital where the

police came and recorded his statement Ex.PW11/1. The

complainant Kailash Chand has also stated that all the bundles

of currency notes were having slips with the stamps of Canara

Bank. He has proved the photocopy of the cheque as Ex.PW4/1

and the bag as Ex.PW10/4. He has also identified the bundles

of currency notes, purportedly recovered at the instance of the

appellants and their co-accused as Ex.PW10/1 to Ex.PW10/3

and has identified the appellants as well as their co-accused.

14. PW1 Rajesh Kumar is the employee of Canara Bank. He has

testified that on 29th April, 1998, while working as a Cashier at

Ashram Chowk Branch of Canara Bank, he made the payment

of ` 90,000/- to Kailash Chand Sharma against a cheque issued

against Saving Bank Account No. 9635. He also stated that

aforesaid money comprised of wads of currency notes. This

version of PW1 corroborates the version of PW11 Kailash

Chand Sharma regarding withdrawl of ` 90,000/- by him from

Ashram Chowk Branch of Canara Bank on 29th April, 1998.

15. PW2 Dr. Thomas Davis, CMO, Holy Family Hospital examined

the complainant K.C.Sharma S/o Prahalad Sharma on 29th

April, 1998 vide MLC Ex.PW2A/A. He testified that on

examination, he found a clean cut incised wound 3 c.m. long

over left gluteol region i.e. the left buttock. He further stated

that he declared the patient fit for statement vide his

endorsement Ex.PW2/3 on the application made by the

Investigating Officer.

16. PW12 S.I. R.S.Sherawat has testified that on 06.05.1998, the

appellants along with their co-accused Manoj and four other

persons were arrested in case FIR No.234/98 P.S. Mehrauli on

the basis of secret information. On interrogation, the

appellant Gopal @ Nizam made a disclosure statement

Ex.PW12/2 in respect of the offence which is the subject-

matter of his appeal and disclosed that he had kept ` 5000/-

out of the stolen money in his house at Tilak Ram Colony,

Bheta, Hajipur, Loni and pursuant o the said disclosure, he led

the police party to his house at Tilak Ram Colony, Bheta,

Hajipur, Loni. From there, he took out one packet of currency

notes of ` 50/- denomination each, having 100 currency notes

from the drawer of his bed which was seized vide memo

Ex.PW10/6 after converting it into a sealed packet. He has

proved the said packet of currency notes as Ex.PW10/2. PW12

S.I. R.S.Sherawat further deposed that the appellant Uday

Bhan on interrogation also made a disclosure statement

Ex.PW12/1 stating that he could get recovered ` 5000/- out of

the stolen money from his house at Sangam Vihar. Pursuant

to the said disclosure statement, the appellant Uday Bhan led

the police party to his house at Sangam Vihar from where he

got recovered one packet of currency notes of ` 50/-

denomination each, containing 100 currency notes, which

packet was converted into a sealed parcel and taken into

possession. He identified the packet of currency notes

recovered at the instance of appellant Uday Bhan as

Ex.PW10/1. Aforesaid version of PW12 also find corroboration

in the testimony of PW10 ASI Suraj Bhan and PW13 Rohan

Singh who have also deposed to almost similar effect. PW13

Head Constable Roop Singh has also stated that the wads of

currency notes recovered at the instance of appellants were

having slips of Canara Bank, Maharani Bagh Branch.

17. Learned Sh. Udai Raj Singh, Advocate appearing for the

appellants has submitted that the appellants are innocent and

they have been falsely implicated by the police with a view to

solve the blind case.

18. First contention of learned counsel for the appellants against

the impugned judgment of conviction is that the case of the

prosecution rests on sole testimony of the complainant Kailash

Chand Sharma, whose version pertaining to identity of the

appellants as the robbers is highly suspect. Dilating on the

argument, learned counsel for the appellants submitted that

as per the case of prosecution, incident took place in the

morning of 29th April, 1998 at around 11:00 a.m. and the

Investigating Officer recorded the statement of the

complainant Kailash Chand Sharma Ex.PW11/1 on the same

day at Holy Family Hospital, on the basis of which the FIR was

registered. Learned counsel took me through the said

complaint statement Ex.PW11/1 and submitted that in the

complaint, Kailash Chand Sharma is categoric that he was

robbed by two young boys whereas in his testimony in the

court on 01st August, 2001, he has improved upon his

aforesaid earlier version and implicated three persons namely,

both the appellants and their co-accused Manoj. Learned

counsel argued that after initially lodging complaint naming

two persons, the complainant in his testimony in the court has

introduced the story of involvement of third person and he has

even identified three persons as robbers, which casts a doubt

on the correctness of the version of the complainant,

particularly regarding the identification of the culprits and a

possibility cannot be ruled out that the complainant has

identified all the three accused persons before the court only

for the reason that they had been charge sheeted by the

police and he was told that they are the culprits. Learned

counsel further submitted that otherwise also, the incident

took place on 29th April, 1998 and the complainant Kailash

Chand Sharma was examined as a witness in the court on 01st

August, 2001 i.e. after more than three years of the incident.

Therefore also, it is highly improbable that after such a long

time, the complainant could have remembered the faces of

the appellants to categorically identify them as the robbers.

19. I am not convinced with the above contention. On careful

perusal of the complaint statement Ex.PW11/1, it transpires

that complainant Kailash Chand Sharma in the said statement

claimed that when he was returning to his office after

withdrawing ` 90,000/- from Canara Bank, Ashram Chowk

Branch, two young boys grappled with him and one of them

tried to snatch the bag containing money from his hand.

When he resisted, the other boy stabbed him on his left hip

with a knife like object and as a result of injury, he fell down.

Thereafter, said boys fled away on a motor cycle. From the

aforesaid statement, it is obvious that at the time of robbery,

there was some accomplice of the appellants who was on

motor cycle and who brought the motor cycle at the spot after

the snatching of bag. Thus, I do not find any mismatch

between the complaint statement Ex.PW11/1 and the

testimony of the complainant in the court. Only difference is

that PW11, in his testimony in the court has given the details

of the manner in which the occurrence took place and how the

appellants/accused persons fled away from the spot, which

was not in his statement Ex.PW11/1. Thus, it cannot be said

that the complainant has improved upon his earlier version.

One cannot lose sight of the fact that at the time of recording

of statement Ex.PW11/1, the complainant must have been in

an acute pain and trauma as a result of the stab injury

suffered by him and if in that traumatic condition, he failed to

give elaborate details of the manner in which incident took

place, it cannot be taken as a circumstance to suspect his

testimony.

20. Coming to the issue of identity of the appellants as culprits.

PW11 Kailash Chand Sharma, sole witness of the incident has

categorically stated that while he was returning back after

withdrawing ` 90,000/- from Canara Bank, Ashram Chowk

Branch at the Ring Road, he was waylaid by two young boys

who tried to snatch the bag containing money from him and

when he resisted their attempt, he was stabbed on his left hip

by the appellant Gopal @ Nizam. This version of the

complainant finds corroboration in the testimony of PW Rajesh

Kumar, Cashier of Canara Bank, Ashram Chowk Branch, who

has stated that on 29th April, 1998, he made payment of

` 90,000/- to the complainant against a cheque Ex.PW1/1

issued from Saving Bank Account No. 9635. The version of the

complainant regarding his having been stabbed is also

corroborated by his MLC Ex.PW2A/A, which was prepared by

PW3 Dr. Thomas Davis, wherein it is recorded that on 29th

April, 1998, complainant K.C.Sharma was admitted in Holy

Family Hospital with the history of incised wound 3 c.m. long

over his left gluteal region. In view of the above, I find no

reason to suspect correctness of the testimony of the

complainant K.C.Sharma. From his version, not only the

robbery and stabbing is established but it is also established

on record that the complainant K.C.Sharma resisted the

attempt of the appellants when they tried to snatch the bag

containing money from him. It is natural that in that process,

the complainant had an opportunity to see them snatching,

therefore, there is no reason to suspect the dock identification

of the appellants by the complainant merely on the ground

that he was examined three years later, particularly when

there is nothing on record to suggest any reason or motive on

the part of the complainant to falsely implicate the appellants.

Thus, I am of the view that the learned Additional Sessions

Judge has rightly relied upon the testimony of the

complainant.

21. PW10 ASI Suraj Bhan, PW12 SI R.S.Sehrawat and PW13 Head

Constable Roop Singh are the witnesses to the disclosure

statements made by the appellants and consequent recovery

of stolen money from their possession at their instance. From

the testimony of above three witnesses, it stands established

that the appellants along with their co-accused Manoj and four

others were arrested in some other case FIR No. 234/1998

relating to police station Mehrauli. When the appellants were

interrogated, both the appellants Uday Bhan and Nizam made

disclosure statements that they could get recovered ` 5000/-

each out of the stolen money from their respective houses and

pursuant to their respective disclosure statements, they led

the police party to their respective houses at Sangam Vihar

and Tilak Ram Colony, Behta Road, Hazipur, Loni and got

recovered one packet each of ` 50/- denomination each from

their respective houses. The witnesses have proved those

packets of currency notes recovered at the instance of the

appellants as Ex.PW10/1 and Ex.PW10/2. The case property

was produced for examination by this court from 'malkhana'

on 23rd September, 2010 and on examination, the wads of

currency notes Ex.PW10/1 and Ex.PW10/2 were found to have

bank slips of Canara Bank, Ashram Chowk Branch with

endorsement of dates prior to the date of incident i.e. 29th

April, 1998. Thus, any possibility of planting of aforesaid

currency notes Ex.PW10/1 and Ex.PW10/2 on the appellants is

oblique. Learned counsel for the appellants contended that

wads of currency notes Ex.PW10/1 and Ex.PW10/2 are planted

by the Investigating Officer to implicate the appellants. This

suggestion was given to PW1A Rajesh in his cross

examination, which he denied as incorrect. Otherwise also,

there is no reason as to why a bank official will agree to be a

part of conspiracy to falsely implicating the appellants at the

instance of police. Thus, I find no reason to suspect the

testimony of police officials regarding the disclosure

statements made by the appellants and the recovery of the

stolen money at their instance. Neither of the appellants have

come out with any explanation as to how they came into

possession of the stolen money, which was recovered at their

instance within 8 days of the robbery. From this, it can be

safely inferred that the appellants have committed the

robbery.

22. In view of the discussion above, I find no infirmity in the

impugned judgment and find that the learned Additional

Sessions Judge has rightly convicted and sentenced the

appellants.

23. The appeals are accordingly dismissed.

24. The appellants are on bail. They be taken into custody to

undergo the remaining sentence.

(AJIT BHARIHOKE) JUDGE

SEPTEMBER 29, 2010 akb