Lala Ram @ Vishal @ Kaley vs State
2013 Latest Caselaw 3535 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : 8th August, 2013
                                    DECIDED ON : 12th August, 2013

+      CRL.A. 1144/2011

       LALA RAM @ VISHAL @ KALEY
                                                           ..... Appellant
                             Through : Mr.Sumeet Verma, Amicus Curiae.

+      CRL.A. 796/2011 & Crl.M.B.No.1006/2013

       PRAKASH @ OM PRAKASH
                                                           ..... Appellant
                             Through : Mr.Sumeet Verma, Advocate.

+      CRL.A. 1108/2011

       SUNIL @ SURAJ
                                                            ..... Appellant
                             Through : Mr.Ajay Verma, Advocate.

                             versus
       STATE
                                                          ..... Respondent
                             Through : Mr.M.N.Dudeja, APP for the State.
       CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Lala Ram @ Vishal @ Kaley (A-1), Prakash @ Om Prakash

(A-2), Sunil @ Suraj (A-3) and Satish were arrested in case FIR

No.433/2008 registered at Police Station Model Town and sent for trial

for committing offences under Sections 392/397/411 IPC and 27/54/59

Arms Act on the allegations that on 23.12.2008 at around 01.45 P.M. they

robbed Ashwani Kumar Rattan of `33,500/- when he was travelling in

bus bearing Registration No.DL-1P-7720. The assailants were armed

with knives and used them to commit robbery. They were apprehended

from inside the bus after Sushil Kumar (PW-2), driver, stopped it near a

PCR vehicle. The investigation was taken over by PW-5 (SI Richhpal

Singh). Statements of witnesses conversant with the facts were recorded.

The assailants were arrested. Cash and knives were recovered from their

possession and seized vide seizure memos Ex.PW1/F to Ex.PW1/I and

Ex.PW1/H. After completion of the investigation, a charge-sheet was

filed against all of them in the court. They were duly charged and brought

to trial. The prosecution examined nine witnesses. In their 313 statement

the appellants pleaded false implication and took the defence that they

were lifted from their respective houses. On appreciating the evidence

and after considering the rival submissions of the parties, the Trial Court

by the impugned judgment dated 01.12.2010 in Sessions Case

No.1009/2009 convicted all of them under Section 392 read with Section

397 IPC and 25 Arms Act. By an order dated 09.12.2010, they were

sentenced to undergo Rigorous Imprisonment for eight years with total

fine `4,000/- each. Being aggrieved, A-1 to A-3 have challenged their

conviction and preferred the appeals.

2. Appellants' counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. PW-2 (Sushil

Kumar) and PW-3 (Monu), driver and helper in the bus completely turned

hostile and did not implicate the appellants. Complainant-Ashwani Kumar

Rattan (PW-1) was not sure about the identity of the appellants and did

not identify them with 'certainty' in the court. The prosecution witnesses

have given conflicting statements about the total number of knives

recovered from the possession of the appellants. In DD No.47B

(Ex.PW7/A) it is recorded that only two knives were recovered from the

four assailants. Learned APP urged that all the culprits were apprehended

at the spot with knives in their possession. Robbed cash was also

recovered from them. There are no sound reasons to discard the cogent

testimony of the victim.

3. The incident whereby the complainant-Ashwani Kumar

Rattan was robbed on the point of knives in a private bus bearing

Registration No.DL-1P-7720 cannot be suspected. He had no ulterior

motive to fake the incident and to falsely implicate the assailants with

whom he had no prior acquaintance. PW-2 (Sushil Kumar) and PW-3

(Monu) driver and conductor though did not support the prosecution on

material facts nevertheless deposed that the incident of robbery whereby

pocket of one of the passengers was picked inside the bus on 23.12.2008,

took place. They further deposed that on hearing the noise of the victim,

they stopped the bus near a gypsy which was standing near Telephone

Exchange. PW-2 further stated that one of the passengers was crying that

his money had been robbed. The police arrived and apprehended the

accused persons. DD No.47B (Ex.PW7/A) was recorded at 02.00 P.M. on

23.12,2008 at police station Model Town. There is specific mention that

in bus No.DL-1P-7720 Ashwani's pocket was picked and the bus was

standing at Nanak Piyao. There is mention about recovery of two knives

from the assailant's possession. The investigation was assigned to ASI

Richhpal Singh who went to the spot. The custody of the four assailants

with four knives and robbed cash was handed over to him by PCR

officials.

4. First Information Report was lodged by ASI Richhpal Singh

after recording the complainant-Ashwani Kumar Rattan's statement. He

disclosed to the police that when he was travelling in the bus, he was

surrounded by four assailants who had knives in their hands. They robbed

`33,500/- at the point of knives. When the bus reached near telephone

exchange, he raised alarm and asked the driver to stop the bus near a PCR

vehicle. The four assailants whose names were ascertained Lala Ram @

Vishal @ Kaley, Prakash @ Om Prakash, Sunil @ Suraj and Satish were

apprehended inside the bus with the assistance of driver, conductor and

other public persons. The knives were also recovered from the possession

with cash `33,500/-. The occurrence took place at about 01.45 P.M. The

information about the incident was recorded at Police Station Model

Town at 02.00 P.M. vide DD No.47B. The investigating officer after

recording the statement of the complainant prepared rukka (Ex.PW-4/B)

and lodged the First Information Report at about 04.35 P.M. It reveals that

there was no delay in lodging the report with the police. There was least

possibility to falsely rope in the appellants in this short duration. The

complainant was not having acquaintance with them to falsely implicate

them by name in his statement (Ex.PW-1/A). Being a victim he was not

expected to allow the real culprits to go scot free. While appearing as

PW-1 he proved the version given to the police at the first instance

without major variation. He gave graphic detail as to how and under what

circumstances he was robbed by the assailants in the bus. He was certain

that the assailants were apprehended from inside the bus by PCR officials.

He was specific that after alighting from the bus, he told the PCR officials

that the robbers were still inside the bus and had pointed at the accused

persons to the officials of Police Station Model Town and their names

were ascertained as Satish, Prakash, Lal chand and one other whose name

he did not know. In his examination-in-chief recorded on 24.09.2009, he

recollected the name of the fourth accused as [email protected] After seeing

the accused in the court he deposed that they appeared 'similar' to the

individuals who committed robbery. Counsel emphasised that the witness

was not sure about the identity of the actual culprits. It is true that in his

court statement the complainant did not identify the assailants with

'certainty'. It is, however, to be taken note that his statement was

recorded after a considerable lapse of time on 4.6.2009 and 24.09.2009.

At the same time, he did not give clean chit to the accused persons and

was fair enough to testify that their appearance was similar/akin to the

assailants who robbed him. PW-6 (Head Constable Majid Khan),

Incharge PCR van was categorical in his statement to identify the

appellants who were apprehended from inside the bus and cash of

`33,500/- was recovered from one of them. They were also found in

possession of open knives which were seized from their possession. He

deposed that all the accused persons in the court were apprehended by

them. The robbed cash and knife was also recovered from A-2. Names of

the other assailants were revealed as Lala Ram @ Vishal @ Kaley, Sunil

@ Suraj and Satish. After apprehension of the accused persons their

arrest memos and personal search memos were prepared. The accused

persons have not denied their signatures on these memos. It stands

established beyond doubt that the accused persons were apprehend at the

spot at the time and place recorded in the memos. It falsifies their plea

that they were lifted from their respective houses and implicated in this

case. They did not examine any witness in defence including their family

members to substantiate their plea.

5. Robbed cash of `33,500/- was recovered immediately after

the incident from one of the assailants (A-2). The police officials are not

expected to plant such a huge amount from their pocket to falsely rope in

the accused persons. Under Section 114 Illustration (a) Evidence Act

presumption can be raised that it were the accused persons, who

committed robbery as they were found in possession of the robbed articles

soon after its occurrence when they were present inside the bus. This

presumption has remained un-explained. PW-9 (HC Udmi Ram) who was

posted in the PCR van as gun man has corroborated PW-6 on all material

facts and no material infirmity has been emerged in his cross-examination.

Minor contradictions and discrepancies highlighted by the appellants'

counsel are not material to throw away the prosecution case in its entirety.

6. The Trial Court has discussed minutely all the relevant facts

and contentions of the accused persons and cogent reasons have been

recorded to return findings on conviction. I find no illegality or material

irregularity in the impugned judgment to interfere with. The conviction is

based upon fair appraisal of the evidence and is affirmed.

7. All the appellants have been sentenced to undergo Rigorous

Imprisonment for eight years with total fine `4,000/- each. They have

remained in custody for sufficient duration. Taking into consideration

their prayers to take lenient view the order on sentence is modified and

eight years punishment under Section 397 IPC is reduced to seven years

which is minimum sentence prescribed under it. Other terms and

conditions of the sentence order are left undisturbed.

8. Appeals and all pending applications are disposed of in the

above terms. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE August 12, 2013 sa