Delhi High Court

Virender Yadav @ Vicky @ Chhotu vs State Of Delhi on 13 September, 2011

Author: Suresh Kait

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+               Crl.Appeal No.679/2009

     %          Judgment reserved on :26th July, 2011
                Judgment delivered on:13th September, 2011


VIRENDER YADAV @ VICKY @ CHHOTU          ....... Appellant
                       Through: Ms.Rakhi Dubey, Adv.
               versus
STATE OF DELHI                        ....... Respondent
                       Through: Mr.Arvind Kumar Gupta
                       APP.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

 1. Whether the Reporters of local papers
    may be allowed to see the judgment?   YES
 2. To be referred to Reporter or not?    YES
 3. Whether the judgment should be reported
    in the Digest?
                                          YES
SURESH KAIT, J.

1. Vide the instant petition appellant has challenged

the judgment dated 31.07.2009, by which the appellant was

held guilty for the offence punishable under Section 397

Indian Penal Code, 1860 in case FIR No.17/2005 registered at

police station Ashok Vihar and has further challenged the

sentence order of even date, by which he was sentenced to

RI for 07 years and to pay a fine of `2,000/- in default of fine,

to further undergo SI for a period of 03 months. However,

the appellant herein and other co accused Gian Chand were

acquitted in case FIR No.19/2005 police station Ashok Vihar

under Section 307/186/353/120B/34 Indian Penal Code. But,

co-accused Gian Chand has been acquitted by giving him

benefit of doubt in both the aforesaid case FIRs.

2. The appellant has prayed in this appeal as under:-

"i) quash/set-aside the impugned order dated 31.07.2009 passed by Shri Alok Agarwal, Ld.ASJ, Delhi in S.C. No.62/2005 titled as State Vs.Virender Yadav & Ors. and acquit the appellant of this case or alternatively;

ii) pass an order modifying the sentence of R.I. for 7 years and fine `2,000/- to the period already undergone by the appellant or pass such other order as the Hon'ble Court may deem fit and proper in the interest of justice."

3. During arguments, learned counsel for the

appellant has not pressed the first prayer, therefore, she has

argued for the second prayer on the ground that in the

present case, no injury has been inflicted on the person of

the complainant, therefore, the case under Section 397

Indian Penal Code becomes doubtful, therefore, the

appellant can be convicted under Section 392 Indian Penal

Code.

4. It is further submitted that there were three

accused in both the abovesaid FIRs. Accused Gian Chand

has been acquitted and co accused Ajay Kumar was declared

juvenile vide order dated 25.03.2009 by the learned Trial

Court. Therefore, only appellant remained in the present

case.

5. Before proceeding further, let us recapitulate the

facts concerning in both the aforementioned FIRs.

6. On 08.01.2005 Sh.Rajinder Jain, owner of the

factory No.A93/1 at Wazirpur Industrial Area, after closing his

factory, was going in his Santro car bearing registration

No.DL-8CG-4411 along with his partner Shri Kamal Daga,

four boys aged between 20-25 years carrying knives and

pistol came in front of his said and forced him to stop. One of

the boys aimed a pistol at his temple and the other boys

carrying knives and asked him to handover the briefcase

under threat of killing him. They opened the rear door of the

car and picked up the briefcase. On their raising alarm, all

the boys ran away towards the petrol pump along with the

brief case. Rajinder Jain also stated that all the bundles of

the currency notes contained in the briefcase bear his

signature and that he can identify the four boys, if shown to

him.

7. On the basis of the above statement, FIR

No.15/2005 under Section 394/397/34 Indian Penal Code was

registered at police station Ashok Vihar upon sending a

rukka from the spot. Site plan is stated to have been

prepared at the instance of the complainant.

8. On the next date i.e. 09.01.2005, a secret

information is stated to have been received that the persons

who had robbed Rajinder Jain on the previous day were

scheduled to assemble in a park near the railway crossing at

Chander Singh Azad Railway Crossing in order to distribute

the looted amount. It is stated that the said information was

recorded vide DD No.16 at about 09:20PM. A raiding party is

stated to have been formed, reached near the public urinal

Railway Colony at about 09:30PM. A nakabandi was held and

police party distributed into four teams and started moving

towards the four persons. On finding themselves surrounded

by the police, one Ajay Kumar Paswan fired towards SI Sukh

Ram Pal from his pistol. Simultaneously, another person

namely Virender Yadav (appellant) aimed a pistol at

SI Rambhau and fired. Both the bullets misfired their

targets. Police party also fired in the air from their service

pistols and kept moving ahead to nab the assailants. Two of

them managed to slip away due to darkness. However, Ajay

Kumar was apprehended by SI Sukh Ram Pal & Virender

Yadav(appellant) by ASI Ram Bhau. The pistols in their

hands were also snatched by the police party. On search of

the accused persons, one live cartridge each was recovered

from the right side pant worn by them. From the recovered

pistol, the remnants of the fired bullets were also recovered.

One briefcase of black colour make (VIP Odyssey) was also

found laying there. The briefcase was picked up and checked

and same was found to contain `9.00 lacs, two cheques of

`5.00 lacs each drawn on State Bank of Mysore and some

visiting cards of Oswal Cable Products.

9. Thereafter, the Investigating Officer prepared the

sketches of pistol, live cartridges, and remnants recovered

from the accused Ajay and appellant respectively were

prepared and the weapons/ammunitions were sealed in

separate cloth parcels before being formally seized. The

requisite forms for sending them to CFSL were prepared at

the spot and since the police party was also obstructed while

performing their public duties, a separate FIR No.19/2005

was got registered at police station Ashok Vihar under

Section 307/186/353/34 Indian Penal Code and Section 25

Arms Act by sending a rukka from the spot.

10. After completing the spot investigations,

appellant and accused Ajay were arrested in both the said

FIRs bearing Nos.17/2005 & 19/2005. During investigation,

both the accused were sought to be put to TIP on

13.01.2005, but they refused to participate stating that they

have been shown to the people at police station and their

photographs have also been taken. The case property

namely the briefcase was however got identified by the

complainant in the TIP proceedings held on 14.01.2005.

11. In the meanwhile, co-accused Ajay Kumar and

appellant had already charge-sheet to the Court separately

in both the said FIRs. On arrest of accused Gian Chand,

supplementary charge-sheets were also filed in both the said

cases.

12. In case FIR No.17/2005, a charge under Section

392/397/34 and Section 411/34 Indian Penal Code, 1860 was

framed against all the accused persons vide order dated

27.05.2003. On the same date, charge under Section

186/353/307/34 Indian Penal Code, was also framed against

all of them. Separate charge under Section 25/27 Arms Act,

1959 were also framed against the appellant and accused

Ajay Kumar in respect of the pistols allegedly recovered from

them in case FIR No.19/2005. All the accused persons

including the appellant pleaded not guilty and claimed trial.

13. Vide order dated 17.05.2009 of learned Trial

Court, both the cases were clubbed together for the purpose

of trial and it was also ordered that the evidence shall be

recorded in the file of case FIR No.17/2005.

14. In order to prove both cases against the accused

persons including appellant, prosecution has examined in all

17 witnesses during trial.

15. PW-2 Shri Rajender Jain and PW-3 Shri Kamal

Daga are the victim and eye-witnesses of the offences of

robbery on 08.01.2005. The eye-witnesses of offence in

case FIR No.19/2005 and witnesses of recovery of the stolen

property and arrest of the accused Virender and Ajay Kumar

are PW-1 HC Narender, PW-4 Ct.Manohar Lal, PW-7 Ct.Manoj

Kumar, PW-9 ASI Ram Bhau, PW-11 Ct.Deen Dayal, PW-12

ASI Rohtash Singh and PW-15 SI Sukh Ram Pal (Investigating

officer).

16. PW-5 Ms.Archana Sinha, learned MM had

conducted the TIP proceedings of appellant Virender and

accused Ajay on 13.01.2005. She proved the proceedings as

Ex.PW5/B and Ex.PW5/C respectively, wherein, both of them

had refused to participate the TIP proceedings.

PW-8 Sh.Ajay Goyal, Learned MM had conducted the TIP

proceedings of the stolen brief case and proved the

proceedings as Ex.PW2/C.

17. PW-6 HC Tasveer Singh, Duty Officer proved the

FIR No.17/2005. PW-13 HC Naresh had proved the FIR

No.19/2005. PW-10 Shri K. C. Varshney, Senior Scientific

Officer (Ballistics) has proved his report to the effect that

pistols examined by him were fire arms and the live

cartridges were ammunition as defined under the Arms Act.

He proved his report as Ex.PW10/A. PW-14 Shri Manish

Kumar Aggarwal, Deputy Commissioner of Police, North-West

District has proved the sanction for prosecution of accused

Ajay Kumar and the appellant under Section 39 of the Arms

Act.

18. PW-17 HC Jagjeet Singh has proved the

confessional statement made by co-accused Gian Chand

recorded on 15.04.2005.

19. On completion of the prosecution evidence, all

the accused persons including the appellant were examined

under Section 313 Cr. P. C., wherein all of them denied the

evidence against them.

20. Both the accused persons including the appellant

denied their involvement and took a defence that they have

been falsely implicated. Appellant has also produced a

defence witness as DW-1 Shri Chander Prakash, who

deposed that the appellant was picked up from his house on

09.01.2005 at about 10:00AM in his presence.

21. I note, during course of trial accused Ajay Kumar

was declared juvenile, vide order dated 25.03.2009 of the

trial Court and thereafter, the case was forwarded to learned

Juvenile Justice Board under Section 7A(2) of the Juvenile

Justice Act, 2000.

22. To prove the prosecution case in both the

aforesaid FIRs against both accused persons, learned public

prosecutor contended before the Trial Court that prosecution

case stands duly proved by the ocular testimony of

witnesses, duly supported by the documentary and

circumstantial evidence. PW-2 and PW-3, who, are the

victims of the robbery have been narrated the incident and

have clearly identified both the accused persons as the

robbers. Together with this, the evidence of recovery of the

stolen briefcase along with all its contents on the next date

from the possession of the accused persons further

reinforces their deposition. The testimony of these witnesses

are corroborative of each other in all material particulars

including the exact description of the incident and the roles

attributed to each of the accused. PWs 1, 4, 7, 8, 11, 12, &

15 are the eye witnesses of the incident on next date i.e.

09.01.2005, when the police party was fired upon and the

stolen briefcase was recovered. Their testimonies are also

quire consistent and corroborative of each others. The

pistol and one live cartridge recovered from the appellant

have been proved to be a fire arm and ammunition

respectively by ballistics expert report proved by PW-13.

Therefore, as was argued that there is no scope for taking

other view in the matter and both the accused persons

including appellant liable to the convicted for all the offences

they are charged with.

23. On the other hand, learned counsel for the

appellant assailed the evidence of the prosecution on all

counts. He had argued that no such robbery took place and

PW-2 Rajinder Jain has falsely implicated the appellant by

cooking up a false story of robbery in connivance with the

police officials. This, as per the learned counsel, has been

done because, he was annoyed with one of the accused

persons arrested in the case namely Ajay Kumar, who was

transferred to Learned Juvenile Justice Board, used to sell

fruits on the Thella in the parking space of the complainant.

24. Learned counsel for accused persons further

argued that there are material contradictions in the

deposition of the PW-2 and PW-3. Their depositions are not

exactly in line with the FIR. According to him, it is highly

improbable that the briefcase containing as many as

`9.00lacs is robbed and the same is recovered on the next

date with all its contents intact. Another aspect is that

complainant has signed on each and every bundle of

currency notes contained in the brief case and all the notes

are recovered on the next day. It has been further argued

that it is not possible in routine course of business to keep all

the bundles of currency notes duly signed. The ringing up

the police from PCO is also highly improbable especially

when both the witnesses were carrying their mobile phones.

25. In regard to the offences of firing at police party

and recovery of the briefcase also create doubts that non-

joining of any public witness even though the information

was available in advance with the police officials gave

credence to the contention that the alleged encounter was

totally fake. It is also pointed out that while four bullets are

stated to have been fired at the spot, there is no evidence

that the spent bullets were recovered or even searched by

the police party.

26. With regard to the incident of 08.01.2005, both

the prosecution witnesses i.e. PW-2 and PW-3 who are the

victims of incident have deposed that on 08.01.2005 that on

08.01.2005 at about 08:00PM, they were proceeding in Car

bearing registration No.DL-8C-G-4411 from their factory at

A-93/1, Wazirpur Group Industrial Area towards the house of

PW-2 and he was driving the car and PW-3 was also

accompanying him. When they reached in front of factory at

A-12, Wazirpur, their way was blocked by four persons, who,

forced them to stop their vehicle and took positions in front

of the doors of the car. Here, PW-2 has stated that out of the

two persons, taking position in front side, one had a pistol in

his hand and the other had a knife. However, the deposition

of PW-3 indicates that both the persons in front had pistols,

while both persons at the rear side had knives in their hands.

The appellant is stated to be person who had pointed a pistol

at PW-3 . Both the witnesses have also identified co-

accused Gian Chand as one of the robbers, who was carrying

a knife and had taken position in the other rear door.

27. PW-2 has proved his statement recorded by

police as Ex.PW2/A. He has further proved the TIP

proceedings in which he has identified his briefcase, cash,

cheques and visiting cards before the learned MM. They

have deposed that on 12.01.2005 or 13.01.2005, they were

called to the Central Jail, Tihar to participate in the TIP, but

were told that the accused persons had refused to

participate. In the cross-examinations, the witnesses have

firmly stood their ground. PW-2 admitted that he and PW-3

both had their mobile phones with them, but has explained

that the PCO booth was just at the distance of 5-7 steps

away from the spot of the incident. No further questions

have been put to him in this regard. In reply to another

question, he had testified in his cross-examination that it

was his normal practice to sign on the bundles of all

currency notes. No suggestion has been given to PW-2 that

at any time he had known any of the accused persons or

that he had falsely implicated any of the accused persons

because of some enmity or annoyance with them. Similarly,

PW-3 has also denied a suggestion that it was a false case or

that no incident of robbery took place. Further deposed that

entire incident lasted for about 5-7 minutes. He had denied

that the robbers had their faces covered at the time of the

incident and has firmly reiterated that he could identify a

person, if he sees him once in his life.

28. Learned Trial Court after going through the

depositions of the witnesses, found that no suggestions put

to the witnesses as they had never known any of the

accused persons or that they had falsely implicated them

due to some enmity. The suggestion has of course been

made to the police witnesses including the IO which has

been denied by them. In any case, the learned Trial Court

was of the view that doubt cannot be raised on the

deposition of the victim on the basis of a afterthought story

and one of the accused persons, parking his Thella in the car

parking space of the complainant. Moreover, in his

statement under Section 313 Cr. P. C. the concerned

accused namely Ajay has not been taken this defence. His

defence was that the stolen brief case was recovered on the

date of incident itself and that he has been falsely implicated

at the instance of police officials. In reply to other question,

in his examination he has further stated that he refused to

participate in the TIP because his photographs were shown

to the witnesses, which also belies the defence, which was

sought to be put up by learned counsel for accused on behalf

of other two accused persons.

29. On TIP, learned Trial Judge has relied upon the

judgment of Supreme Court in Ronny Vs. State of

Maharashtra AIR 1998 SC 1251; as well as State of UP

Vs. Buta Singh 19791 (1) SCC 31, wherein, it is held that

it was no fault of the victim and in a case like the present

one, where the victim and another eye witness have strongly

asserted that they had seen the accused as one of the

robbers in an incident which lasted over five minutes, there

is no reason to doubt their credibility. In Ronny (supra) it

is clearly stated that doubting first time identification of

witness is only a rule of prudence and is not statutorily

mandated. The Supreme Court has also listed several other

exceptions to the rule; one of them being when the witness

knew the accused earlier or when the witness has been the

accused in broad day light for a long time.

30. The gist of the judgment on the point of TIP

appears to be that absence of the TIP would not matter in

case, the accused are known to the witness or where the

witness also had some interaction with them, may be at the

time of incident itself. It may also not been insisted upon if

the other circumstances proved in the case indicate the

complicity of the accused and the same can be taken as

corroborating evidence of identification. In case of absence

of any other corroborative circumstances, however, the

evidence, of identification in the Court, for the first time is

highly unsafe to rely upon. The Trial Court has relied upon

Lakhwinder Singh Vs. State of Punjab 2003 Crl LJ 3058

wherein, it ha s been held as under:-

"36. It is not in dispute that on the date of occurrence i.e. 24th December, 1996 the informant PW. 14 did not know the names of any of the gunmen who had taken part in the assault. Similarly, PW. 15 also did not know the names of the gunmen of Ranjit Singh and his father. Admittedly PW. 14 came to know of their names

3-4 days later. We have earlier noticed that despite the fact that they did not know the names of any of the gunmen, the name of Paramjit Singh finds place in the first information report as well as in the marginal notes of the site plan, both prepared at the instance of PW. 14. That apart, since the assailants were not known to this witness by name, there appears to be no reason why a test identification parade was not held. It is not in dispute that no test identification parade was held to identify the assailants and this also is a serious lacuna in the case of the prosecution."

31. In the instant case, the appellant had refused to

participate in the TIP, therefore, his identification by the eye-

witnesses in the Court cannot be rejected on the ground of

absence of the identification in TIP. In Munna Vs. State

AIR 2003 SC 3058, it has been held as under:-

"9. In a case where an accused himself refuses to participate in a test identification parade, it is not open to him to contend that the statement of the eye-witnesses made for the first time in Court wherein they specifically point towards him as a person who had taken part in the commission of the crime, should not be relied

upon. This plea is available provided the prosecution is itself responsible for not holding a test identification parade. However, in a case where the accused himself declines to participate in a test identification parade, the prosecution has no option but to proceed in a normal manner like all other cases and rely upon the testimony of the witnesses, which is recorded in Court during the course of the trial of the case".

32. In the case of appellant, both the witnesses have

identified him and have attributed a specific role of pointing

a pistol on the temple of the PW-3 Shri Kamal Daga. He also

refused to participate in the TIP on 13.01.2005. PW-5

Ms.Archana Sinha, learned MM has proved the TIP

proceedings in respect of appellant as Ex.PW5/C, as per

which, he had refused to participate on the ground that his

photographs had been taken at police station Ashok Vihar

and have been shown to number of public persons.

33. I note that no particular defence has been raised

by him in his examination under Section 313 Cr. P.C. and no

defence evidence has been led, therefore, there is no

explanation on record as to why two public witnesses would

falsely implicate the accused persons or appellant.

34. As regards the offence of firing at police officials,

as per prosecution case, during same transaction, two of the

persons, who, had assembled at park across the railway line

at Phase - II, Ashok Vihar, fired at the police party, therefore,

a separate case being FIR No.19/2005 under Section

307/186/353/120B/34 Indian Penal Code, 1860 was

registered on 09.01.2005.

35. Witnesses to this effect are PWs-1, 4, 7, 9, 11, 12.

They all had deposed that on 09.01.2005, PW-15 SI Sukhram

Pal received the information that the persons who had

committed robbery on the previous night would gather near

the mazaar at the railway line, Ashok Vihar, for the purpose

of distribution of the looted amount. The SHO, police station

Ashok Vihar was informed and a raiding party was formed

consisting of SI Sukhram Pal, ASI Ram Bahu, ASI Rohtash, HC

Naresh, Ct. Manohar, Ct.Manoj, Ct. Narender and Ct.Din

Dayal. The raiding party reached the spot at about 09:30PM.

The party was divided in four groups who took positions on

different sides in the park. They challenged the four persons

present in the park, upon which Ajay and appellant fired

shots on the police party with the country made pistol. SI

Sukhram Pal also fired twice in the air while moving towards

the said boys; the four teams of the police party surrounded

them. Two of those four boys managed to escape. While,

co accused Ajay and appellant were apprehended. A country

made pistol was stated to have been recovered from their

possession and on opening each pistol remnants were of the

spent cartridges and one live cartridge each was found in

their pockets. One briefcase was also found laying on the

ground, where, the said four boys were present. As per the

witness, one lock of the briefcase was damaged, but on

opening the briefcase, all the contents as mentioned by the

complainant were found intact.

36. Learned counsel for the accused persons has

argued before the Trial Court on the grounds as under:-

a) After registration of FIR of robbery of a huge

amount of `9.00lacs, the robbers would not assemble

on the next date at a public place, very near to the

police station, to distribute the booty;

b) It is highly improbable that all the contents of the

robbed briefcase would be intact although there was an

intervening night between the incident of robbery and

the distribution.

c) The story of the robbers firing at the police party

is also highly improbable. Four shots are stated to be

fired in all, but there is no evidence that the police

party had recovered or even searched for the fired

bullets."

37. The Trial Court has noted form the record that

none of the persons arrested by the police is a resident of

Ashok Vihar. There is no record to show that they have been

conducting any business or operating any criminal activities

from that area. In these circumstances, the story of their

assembling to distribute the looted amount very near to the

same police station, where, the FIR of robbery has been

registered just on the previous night and was under active

investigation appears to learned Trial Court to be totally

unbelievable.

38. Learned counsel for accused persons also argued

before the Trial Court that out of the four persons, only two

of them having country made pistols and which can only fire

one bullet at a time, if they are as seasoned criminals as

they are made out to be, would never fire at the police party

comprising of 12 police officials, who can be presumed to be

carrying their service revolvers. He also pointed that the

witnesses have admitted in their cross-examination that the

members of the police party were in uniforms and some of

witnesses stated that the area was illuminated by public

lights.

39. The Trial Court has observed that all seven

witnesses have deposed consistently about the incident of

firing and of recovery of arms and ammunitions and their

stolen briefcase on 09.01.2005. However, because of the

inherent improbabilities of the incident itself, there would

always be a lingering doubt over the same. Non-joining of

the public witnesses at the time of the raid and no efforts

being made to recover spent bullets, from the ground only

aggravates the suspicion. No other independent

circumstances have been proved which could corroborate

the testimonies of official witnesses in this regard. There is

no injury to any person.

40. In the above circumstances, the Trial Court has

acquitted all the accused persons under Section

307/186/353/120B/34 Indian Penal Code, 1860 allegedly

committed by them on 09.01.2005 in case FIR No.19/2005 of

police station Ashok Vihar, Delhi. Ultimately, the Trial Court

has held that prosecution has been able to prove that the

appellant on 08.01.2005 at about 08:30PM along with some

of his associates committed robbery of a briefcase

containing `9.00lacs, from the possession of the complainant

Rajinder Jain by pointing a pistol at the temple of his partner

Kamal Daga, therefore, the appellant has been convicted

under Section 397 Indian Penal Code, 1860, whereas the

appellant has been acquitted all other charges in both the

FIRs on benefit of doubt.

41. Co-accused Gian Chand has been acquitted in

both the cases from all the offences.

42. It has been argued by learned counsel for

appellant, that admittedly, there is no injury received by any

of the witnesses and the Trial Court has wrongly convicted

under Section 397 Indian Penal Code, 1860. The facts and

circumstances of the case do not fulfil the contents, as are

enumerated in Section 397 Indian Penal Code, 1860. For

convenience it is reproduced as under:-

"397. Robbery, or dacoity, with attempt to cause death or grievous hurt.--If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."

43. The recovery of the weapon is totally doubtful,

therefore, the ingredients of Section 397 Indian Penal Code,

1860 i.e. uses of any deadly weapon, or causes grievous hurt

or attempts to cause death or grievous hurt is missing in the

present case, therefore, the instant case does not fall under

Section 397 of Indian Penal Code, 1860, however, offence

falls under Section 392 Indian Penal Code, 1860.

44. The contents of said Section 392 of Indian Penal

Code, 1860 are as under:-

"392.Punishment for robbery.--Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years".

45. Admittedly, the instant case is not committed on

a highway between sun set and sun rise, therefore, in the

absence of this fact the punishment should be, to the extent

of maximum to ten years and fine.

46. The appellant is in Jail since his arrest i.e.

09.01.2005, therefore, he has completed 06 years

08 months.

47. Therefore, in the circumstances, I modify the

impugned judgment dated 31.07.2009 to the extent that the

appellant is convicted under Section 392 Indian Penal Code,

1860 and order on sentence of the same date to the extent

that appellant shall be released on the sentence to the