Sandeep Kumar vs The State (Nct Of Delhi)
2011 Latest Caselaw 3198 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                Decided on: 8th July, 2011

+               CRL.A. 414/2010 & Crl. M.B. No. 519/2010

DEEPAK KUMAR                                                  ..... Appellant
                                  Through:   Mr. Yogendra Singh, Advocate

                           versus

STATE                                                         ..... Respondent
                                  Through:   Mr. Manoj Ohri, APP

+               CRL.A. 772/2010 & Crl. M.B. No. 925/2010

SANDEEP KUMAR                                                 ..... Appellant
                                  Through:   Ms. Ritu Gauba, Advocate

                          versus

THE STATE (NCT OF DELHI)                                      ..... Respondent
                   Through:                  Mr. Manoj Ohri, APP

+               CRL.A. 831/2010 & Crl. M.B. No. 12443/2010

RINKU                                                         ..... Appellant
                                  Through:   Mr. Madhu Sudan Bhayana, Adv.

                         versus

THE STATE (N.C.T. OF DELHI)                                   ..... Respondent
                    Through:                 Mr. Manoj Ohri, APP

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

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



Crl. Appeal Nos. 414, 772 and 831/2010                                        Page 1 of 16
 2. To be referred to Reporter or not?             Yes

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

MUKTA GUPTA, J.

1. By the impugned judgment dated 12th March, 2010 the Appellants have

been convicted for offences punishable under Sections 392/411/506/186/34

IPC and awarded sentence of Rigorous Imprisonment for a period of five

years and fine of `5,000/- each under Section 392 IPC and in default of

payment of fine to further undergo six months Rigorous Imprisonment. For

offences punishable under Sections 411 and 506 IPC they have been

sentenced to Rigorous Imprisonment for three years and for offence under

Section 186 IPC a fine of `5,000/- and in default of payment of fine they have

been directed to undergo one month rigorous imprisonment. All the sentences

have been directed to run concurrently.

2. Briefly the case of the prosecution is that one Daroga Prasad, the

complainant was going to his native village and thus boarded a TSR to go to

Uttam Nagar Bus Terminal. In the said TSR two people were already sitting

on the back seat. However, the TSR instead of taking him to the destination

started taking him in different directions. On this, the Complainant became

suspicious, raised alarm and jumped out of the TSR. The three persons

including the TSR driver also got down. The TSR driver caught him from his

collar and the other two occupants of the TSR who were armed with knife,

threatened him and took away all his belongings and ran away. On hearing

the cries of Complainant, two police officials namely Ct. Babu Lal and Ct.

Jitender Tyagi who were patrolling nearby reached there and chased the TSR

on their motorcycle. The TSR was intercepted near Aggarwal Sweets, Vikas

Puri. The TSR driver and one passenger managed to escape while the other

passenger sitting on the back seat whose name came to be known as Deepak

was apprehended. A chhura kept in a rexine cover was recovered from his

possession. The broken suitcase of the Complainant was also recovered from

the TSR. On checking, the suitcase, the Complainant found `1800/- cash,

nokia charger and two video CDs missing. The Appellant Deepak was

apprehended at the spot and on his disclosure statement Ex. PW3/B Appellant

Sandeep Kumar was arrested in the presence of the Complainant and Ct.

Kuldeep Kumar. The Appellant Sandeep Kumar got recovered the mobile

phone charger, one purse and two silver rings from his house. On 27th May,

2005 the Appellant Rinku surrendered in the Court. During investigation TIP

of the Appellant Rinku was conducted, and he was correctly identified by the

Complainant and thereafter on 4th June, 2005, his police custody remand was

taken. While in custody Rinku got recovered two video CDs of the

Complainant from his house in Raghubir Nagar, Delhi. Since the Appellants

had obstructed the police officers in their duty a complaint under Section 195

Cr.P.C. was filed by the SHO along with the charge sheet. During trial the

Appellants were charged for offences punishable under Sections

392/397/506/186/353/34 IPC and Section 411 IPC. The Appellant Deepak

was separately charged for offence punishable under Section 27 Arms Act.

3. Learned counsel for the Appellant Deepak contends that the testimony

of PW2 Daroga Pandit, the Complainant is not trustworthy. According to this

witness, Appellant Rinku took out the mobile phone from the front pocket of

his shirt whereas Ct. Jitender Tyagi PW4 states that on the personal search of

accused Deepak a mobile phone was recovered. There are discrepancies as to

the place where the documents that is, the seizure memo, personal search

memo, arrest memo and the statements of the witnesses were recorded.

Moreover, the mobile has been recovered from the co-accused and thus, there

is no recovery of any stolen property from the Appellant Deepak and hence he

could not be convicted for offence punishable under section 411 IPC. In the

alternative it is contended that the Appellant is not involved in any other case

and has already suffered imprisonment for a period of three years and thus, his

sentence be reduced to the period already undergone.

4. On behalf of the Appellant Sandeep Kumar it is contended that the only

evidence against the Appellant is seizure of a mobile phone charger from his

residence on the pointing out of the co-accused/Appellant Deepak. Since the

said recovery is not at the instance of the Appellant himself he could not be

connected with the said recovery. Moreover, the mobile phone charger is

easily available in abundance in any market and unlike a mobile phone there

is no identification mark or specific EMEI number to differentiate between the

two similar chargers of same style. The Appellant Sandeep has been identified

by PW2 in the Court for the first time. No TIP of Sandeep Kumar or the

alleged mobile phone charger recovered from him was got conducted. PW2

the Complainant deposed that he did not enter the house of Sandeep and could

not tell the number of storeys of the building. He also deposed that he cannot

tell what proceedings were conducted at the residence. It is contended that the

learned Trial Court grossly erred in convicting the Appellants simultaneously

for offence punishable under Sections 392 and 411 IPC. Since the

prosecution has not proved its case beyond reasonable doubt against the

Appellant, the impugned judgment and order on sentence should be set aside.

In the alternative it is prayed that the Appellant has already undergone

imprisonment for nearly two years six months and he be released on the

period of imprisonment already undergone.

5. Learned counsel for the Appellant Rinku contends that the Appellant

was not apprehended at the spot. There is no recovery of any incriminating

article from the Appellant. The Appellant in his defence had examined DW1

Saleem who had stated that on the day of incident the Appellant was at

Meerut, however, the defence of the Appellant has not been considered by the

learned Trial Court. Even as per the prosecution case the Appellant has not

used any weapon of offence and in the absence of any recovery and usage of

weapon he is entitled to be acquitted. The prosecution case against the

Appellant falls flat as it was dark when the incident took place and the

Appellant could not have identified the Appellant. It is thus prayed that the

Appellant be acquitted and in the alternative since there is no previous

involvement he be released on the period of imprisonment already undergone.

6. Per contra learned APP for the State contends that the incident is of wee

hours in the morning of 20th May, 2005 i.e. around 4-4:30 a.m. when PW2

was going to Sarai Rohella station to catch a train to his hometown. Early in

the morning at about 3:50 a.m., he took the he took the TSR to go to Uttam

Nagar Terminal in which two persons were already sitting besides the driver.

The auto driver, that is, the Appellant Rinku instead of taking the

Complainant to Uttam Nagar Bus Terminal diverted the route from main road

towards Janta Flats and on the Complainant questioning, again diverted his

route towards main road but instead of taking the proper path he took the TSR

in the opposite direction. The complainant became suspicious and jumped out

of TSR on which the driver Appellant Rinku stopped the TSR and caught hold

of the complainant. Deepak and Sandeep who were sitting on the back were

armed with knives. They too came out and pointed out the knives towards the

Complainant. PW3 Constable Babu Lal and PW4 Ct. Jitender Tyagi who

were patrolling, reached the spot and the Appellant Deepak was caught at the

spot after chasing. The sequence of events has been described by PW3 and

PW4 clearly. Besides this, the dagger Ex. PW2/B which is a double edged

weapon with a long blade of 31.4 cm and the mobile phone charger of the

Complainant were also recovered. The Appellant Sandeep was arrested on

the next day on the pointing out of Appellant Deepak and from his house

search; mobile charger was recovered. The Appellant Rinku was arrested on

27th May, 2005 vide arrest memo Ex. PW8/D from Tis Hazari Courts. His

TIP was got conducted on 2nd June, 2005 in which the Complainant duly

identified him and thereafter on his disclosure statement Ex. PW8/E, two CDs

relating to the marriage of the Complainant were recovered from his house in

Raghubir Nagar, New Delhi. The Complainant has identified all the exhibits

including the mobile phone charger. The Complainant was initially examined

on 27th September, 2005 wherein he duly identified all the accused persons.

However, the cross examination on behalf of Appellant Sandeep was

conducted belatedly on 18th December, 2006 and again on 21st December,

2006 on behalf of Appellant Deepak and thus, there were variations in his

statement. Despite minor contradictions PW2 Daroga Pandit clearly stated

that Sandeep was present in the TSR and Appellant Deepak was arrested on

the spot after some chase and the dagger Ex.PW2/B was recovered from him.

The witnesses have proved the recovery of the dagger, mobile phone and

mobile phone charger. PW3 and PW4 have also explained the minor injuries

received by the Appellant Deepak. PW4 has deposed that while running

Deepak struck against the footpath and fell down on the road. PW5 Ct.

Kuldeep Kumar is the witness to the recovery of the mobile phone charger.

The test identification parade cannot be questioned by the Appellant Rinku at

this stage. PW6, that is, the learned Metropolitan Magistrate, Ms. Archana

Singh when appeared in the witness box was not cross-examined and thus, her

testimony has gone unchallenged. Thus, the offences under Section 392/34

IPC are clearly made out. Since the Appellant showed chhura to the police

officers while chasing them, offence punishable under Section 186 IPC is

made out and thus, they were rightly convicted of the said offence.

7. I have heard learned counsel for the parties and perused the record.

PW2 Daroga Pandit was going to his village in District Chhapra, Bihar and

was carrying in his baggage wearing apparels, a video cassette, `1,800/- cash,

Nokia mobile charger, other goods and Nokia mobile phone model No. 3310

in his pocket. At about 3.50 A.M. on 20th May, 2005 he hired a TSR from

Uttam Nagar to go to Uttam Nagar Bus Terminal in which two persons were

already sitting on the back seat. The TSR started moving towards the Janta

Flats and on the Complainant asking the driver about the change in the route

he stated that he had to pay the TSR rent to the TSR owner. On the

Complainant's persistence the TSR driver again returned back on the main

road and started driving the TSR in the opposite direction whereas the right

path was towards the Ganda Nala. On being suspicious the complainant

raised an alarm and jumped from the running TSR. On seeing this the TSR

was stopped by the driver, who caught hold of the Complainant by the collar.

In the meantime, the other two occupants of the TSR also came down who

were armed with knives. The complainant being terrified offered all his

belongings to the accused persons and pleaded for mercy. Thereafter, the

Appellant Rinku forcibly took out mobile phone from the pocket of his shirt.

PW3 Ct. Babu Lal and PW4 Jitender Tyagi who were on patrolling duty;

when reached near D.A.V. School saw one TSR parked nearby school and

three persons were quarreling with one person. They reached near the said

TSR and on seeing the two police officials on a motorcycle, the complainant

raised the alarm. On being chased by the police, the Appellants started

running away in the TSR towards the DAV school. Two out of the three

accused managed to escape but the police apprehended Appellant Deepak on

the spot and a knife/dagger was recovered from his possession i.e. from

underneath the belt of his pant and from the TSR bearing No.DL-1RR-0038

the suitcase of the complainant was recovered.

8. Thus from the testimony of PW2, the complainant, the prosecution has

proved beyond reasonable doubt that the three Appellants on the wee hours in

the morning of 20th May, 2005 took away his belongings. The Appellants

were charged for offence punishable under Section 397 IPC. However, during

his testimony in the Court this witness in his examination-in-chief and his

cross-examination could not identify which of the two accused that is Deepak

or Sandeep showed him the knife, though he had stated that they were armed

with knives. In the absence of this evidence the learned Trial Court has

rightly not convicted the Appellants for offence punishable under Section 397

IPC as the user of the same has not been proved. The prosecution has

however, proved the possession of a knife/dagger with the Appellant Deepak.

The Appellant Deepak was apprehended immediately after the incident at the

spot on being chased by PW3 Ct. Babu Lal and PW4 Ct. Jitender Tyagi.

These witnesses were on patrolling duty who stated that they saw the scuffle

between one person on the one side and three persons on the other side and

one person was shouting "LOOT LIYA LOOT LIYA". On their reaching

near, the three persons boarded the TSR and ran away. Since the two of them

were chasing them on motorcycle, the Appellants abandoned the TSR and two

of them that is Appellant Rinku and Appellant Sandeep managed to escape

but Appellant Deepak was apprehended. From Deepak a knife was recovered

underneath his belt of the pant which was seized vide memo Ex.PW3/A and

from the TSR the suitcase of the Complainant with the broken handle was

recovered. Thus the complicity of the Appellant Deepak is proved beyond

reasonable doubt for offence punishable under Section 392 IPC.

9. I do not find any merit in the contention of the learned counsel that

because this witness has stated that it was dark so he could not have identified

the Appellants. PW2 had travelled with the Appellants for a long time

because he was taken to number of places before he jumped out and thus there

was sufficient time for this witness to identify the three Appellants. In his

cross-examination on 21st December, 2006 he has deposed that he did not

know which of the accused person was having the dagger, Ex.P-2 at the time

of occurrence, as it was a dark at that time. Thus it is only on the point as to

who was carrying the dagger that PW2 could not categorically mention the

person. It was for this reason the Appellants have been acquitted for offence

punishable under Section 397 IPC by the learned trial Judge. As regards the

contention of the learned counsel that there is discrepancy in the statement of

PW2, it would be relevant to note that this witness in his examination-in-chief

has correctly deposed about the events as they unfolded. But it is only in his

cross examination on 21st December, 2006 that he deposed that Appellant

Deepak was neither a passenger in the TSR nor did he intervene in the scuffle

nor said anything to him which fact has been pointed out by the learned

counsel as a major discrepancy. It is well settled in [email protected] Sumendra Tiwari

vs. State of Madhya Pradesh (1991) 3 SCC 627 that merely because a witness

is declared hostile, his entire evidence cannot be treated as effaced from

record and his testimony to the extent it is reliable can be acted upon. In view

of the law laid down and the fact that in the same cross examination the

witness had deposed that it is wrong to suggest that accused Deepak was not

involved in the incident coupled with the cogent evidence on record that the

Appellant Deepak was arrested at the spot immediately after the incident, it is

proved that accused Deepak was a party to the commission of the offence. I

also do not find any merit in the contention of the learned counsel that there is

discrepancy in regard to the preparation of seizure memo and other documents

is concerned as it also do not go to the root of the matter.

10. As regards the Appellant Sandeep, on the disclosure statement made by

co-accused Deepak Ex. PW3/B who led the police to the house of the

Appellant Sandeep at Raghubir Nagar from where he was arrested, there is

recovery of a mobile charger his instance. However, PW2 has fairly stated

that the mobile phone charger is a common thing and can be used in many

models of make NOKIA and is easily available in market. Thus, in my

opinion the recovery of mobile charger being an ordinary article would not

connect the Appellant Sandeep with the present case. However, PW2 has

deposed that the Appellant Sandeep was the one who was present on the night

along with the other co-accused and had robbed the articles i.e. his suitcase,

mobile phone charger and money from him. PW5 Constable Kuldeep in his

testimony has also deposed on similar lines that accused Deepak had led the

police party and PW2 to the house of Sandeep where on the pointing out of

PW2, the Appellant Sandeep was arrested. These statements of PW2 & PW5

are also supported by the version given by PW8 SI Ram Kishore who has

deposed that when the accused Deepak led them to the house of accused

Sandeep PW2 identified the accused Sandeep and he was thus arrested vide

arrest memo Ex.PW 5/A. The contention that no TIP of Sandeep was got

conducted is liable to be dismissed as the Appellant Sandeep had been

arrested in the presence of the complainant PW2 who had identified him.

Thus, there was no need of his test identification parade as the Appellant

Sandeep has been duly identified person who had robbed him at the time of

the incident. Thus there is sufficient and cogent evidence placed on record to

convict the Appellants for offence punishable under section 392/34 IPC.

11. I find merit in the contention of learned counsel for the Appellant

Sandeep that he cannot be convicted for offence punishable under Section 411

IPC. A mobile charger of nokia has been recovered at the instance of the

Appellant Sandeep. However PW 2 has admitted that the mobile charger is an

ordinarily available item with no special/unique mark of identification on it.

Thus the same cannot be identified to be one robbed from the Complainant.

In the absence of proper identification of the stolen article, Appellant Sandeep

cannot be convicted for offence punishable under Section 411 IPC.

12. As regards the Appellant Rinku, the contention of the learned counsel

that no recovery of any incriminating article was attributed to the appellant

deserves to be rejected as the two video CD's belonging to the complainant

were recovered from the Appellant. This recovery of CD's alongwith his

identification by PW2 clearly prove the presence of the Appellant at the time

of incident as well as his participation in the crime. The recovery and

identification of the CD's is also corroborated by the testimony of PW3

Constable Babu Lal and PW8 S.I. Ram Kishore who has deposed that 2 CD's

were recovered at the instance of accused Rinku from his house at Raghubir

Nagar, Delhi. Thus, there is sufficient and cogent evidence to prove the

recovery of CD's from the Appellant Rinku. Complainant PW2 in the test

identification parade duly conducted by PW6 Ms. Archana Sinha, learned

Metropolitan Magistrate has identified the Appellant Rinku, as the person who

was driving the TSR. Though a suggestion was given to PW2 and PW8 that

photograph of Rinku was shown to PW2 and thus he identified him however,

this suggestion has been denied by the witnesses. There is no material on

record to show that at any point of time the photograph of the Appellant

Rinku was taken so that the same could be shown to PW2. Appellant Rinku

during his test identification parade has nowhere taken this objection. The

defence of alibi of Appellant Rinku is also not sustainable. Though he has

examined DW1 Salim on 6th February, 2010 in this regard who has stated that

Rinku was with him at the weekly bazaar however, this defence is clearly an

afterthought and no such suggestion has been given to PW2 when he was

cross-examined on 31st August, 2009. Thus, I find no infirmity in the order of

conviction of the Appellants for offence punishable under Section 392/34 IPC.

13. From the testimony of PW3 constable Babu Lal and PW4 Constable

Jitender Tyagi it is proved that when they were chasing the Appellants one of

the occupant of the TSR showed PW3 a dagger and threatened him thus

proving the offence under Section 506 IPC against the Appellants.

14. However PW 3 or PW4 have not stated that the occupants of the TSR

either assaulted or used criminal force to deter them in performing their

duties. Thus they could be convicted for offence punishable under Section

186 IPC only and not under Section 353 IPC. Therefore, the conviction of the

Appellants for offence punishable under section 186 is upheld. As regards

the contention of learned counsels for the Appellants on the quantum of

sentence is concerned, the Appellants have been awarded a sentence of

Rigorous Imprisonment for five years. Appellant Rinku has already

undergone the same. In regard to the remaining two Appellants, they still

have to undergo the remaining sentence of nearly two years. I find no

mitigating circumstance to reduce the sentence of the Appellants.

15. The appeals and the applications are accordingly dismissed except

setting aside the conviction and sentence of the Appellant Sandeep for offence

punishable under Section 411 IPC. The Appellants who are in custody be

informed through Superintendent Jail.

(MUKTA GUPTA) JUDGE JULY 08, 2011/vn