Subhash vs State (Nct) Of Delhi
2013 Latest Caselaw 880 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 11th February, 2013
                               DECIDED ON : 21st February, 2013

+                        CRL.A. 131/2010
      SUBHASH                                 ....Appellant
                  Through :    Mr.Ajay Verma, Advocate with Mr.Shiv
                               Kumar Dwivedi, Advocate.
                               versus
      STATE (NCT) OF DELHI                ....Respondent
               Through : Ms.Fizani Husain, APP.
                         SI Prahlad Meena, PS Mayur Vihar.
       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant- Subhash impugns judgment dated 06.07.2009

and order on sentence dated 18.07.2009 in Sessions Case No.86/2006

arising out of FIR No. 445/2005 PS Mayur Vihar by which he was

convicted for committing offences punishable under Sections 392/397/34

IPC and 25 Arms Act. He was sentenced to undergo RI for four years with

fine ` 3,000/- under Section 392 IPC and in default of payment of fine to

further undergo RI for three months. He was further sentenced to undergo

RI for seven years with fine ` 5,000/- under Section 397 IPC and in

default of payment of fine to further undergo RI for five months. He was

also sentenced to undergo RI for two years with fine ` 2,000/- under

Section 25 Arms Act and in default of payment of fine to further undergo

RI for two months. All the sentences were directed to operate

concurrently.

2. Allegations against the accused were that on 16.12.2005 at

06.00 P.M. in front of Block No.18 near Safeda wala park, Trilok Puri

accused Subhash along with his associates Rohtash and Nitin (juvenile)

committed robbery and deprived Ajay of his wrist watch, purse containing

` 677/- and identity card at the point of knife. The prosecution examined

four witnesses. In his 313 Cr.P.C. statement, Subhash pleaded false

implication and stated that he was lifted from his house. On appreciating

the evidence and considering the rival contentions of the parties, the Trial

Court by the impugned judgment convicted and sentenced the appellant.

Being aggrieved, he has preferred the appeal.

3. Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and fell

into grave error to base conviction on the sole testimony of complainant-

Ajay. There were inherent defects in the prosecution case. It was complete

darkness at the spot. It is unbelievable that in a short period, he would be

able to recognise and identify the assailants as he had only a fleeting

glance of the assailants. The Investigating Officer did not move any

application for Test Identification Parade. The prosecution witnesses have

given contrary and inconsistent version as to the circumstances in which

the assailants were apprehended and the recoveries were effected. The

recoveries at the instance or from the possession of the accused are also

suspect. No independent public witness was associated during the

investigation. Prosecution witnesses have given divergent version about

arrest of the accused. Learned APP urged that there was no complete

darkness. The complainant categorically identified the assailants who

were apprehended at the spot soon after the occurrence. Counsel for the

appellant placed reliance on 'State of Rajasthan vs. Netrapal and ors.',

(2007) 4 SCC 45.

4. I have considered the submissions of the parties and have

examined the record. The incident happened on 16.12.2005 at 06.00 P.M.

PW-3 (ASI Kanta Parsad) recorded rukka and lodged First Information

Report at 08.00 P.M. after recording complainant's statement (Ex.PW-

2/A). There was no delay in lodging the First Information Report. In his

statement (Ex.PW-2/A), the complainant Ajay gave vivid description of

the incident and attributed specific role to the each assailant in committing

robbery. Since the FIR was lodged promptly without any delay, there was

least possibility of false fabrication. While appearing as PW-2 in the

Court, the complainant proved the version given to the police at the first

instance without any variation. He deposed that on 16.12.2005 at about

06.00 P.M., he was returning to his house after meeting his aunt (bua) and

was on foot. When he reached Block No.18 near canal, three persons

suddenly came in front of him. Two of them caught hold him and the third

showed a knife. He identified Subhash who had the knife and Rohtash

who caught hold of his hand. He claimed to identify the third assailant (he

is facing trial before the Juvenile Court). PW-2 further deposed that

Rohtash snatched his wrist watch make HMT. The third assailant who was

not present before the Court took out his valet containing ` 677/- and I

card. He raised alarm. Three police officials who were on patrolling duty

in the area came and apprehended the assailants after some chase. The

robbed articles and the knife were recovered from their possession. He

further deposed that the watch was recovered from the possession of

Rohtash and the valet was recovered from the juvenile. Knife was

recovered from Subhash. Police recorded his statement Ex.PW-2/A. In the

cross-examination, he stated that it was dark at that time. The accused

came from the front direction. When the accused ran up to the distance of

4- 5 Km. they were apprehended by the police who were in Gypsy. He

stated that the papers were prepared at the spot by the police. He denied

that he was not robbed or that he named the accused at the instance of the

police.

5. Scrutinising the testimony of the victim, it reveals that

despite lengthy cross-examination, no material discrepancies emerged to

disbelieve him. PW-2 (Ajay) had no acquaintance with the assailants. In

the absence of any prior enmity or ill-will, he was not expected to falsely

implicate the accused. No ulterior motive was assigned to PW-2 in the

cross-examination for making false statement against the accused. There

are no good reasons to discard his cogent and reliable testimony. His

presence at the spot cannot be doubted as number of memos prepared at

the spot contain his signatures. The accused did not deny his presence at

the spot in his cross-examination. The victim identified the assailants at

the spot soon after their apprehension. He was not hesitant to identify

them in the Court. He attributed specific role to each accused in

committing the robbery. Since the accused persons were apprehended at

the spot and were identified by the complainant, there was no question of

moving any application for TIP for identification of the assailants. The

occurrence took place at about 06.00 P.M. and the complainant had direct

confrontation with assailants for sufficient long time, he had sufficient

opportunity to recognise the assailants and to identify them. The robbed

articles were recovered from the possession of the accused soon after their

apprehension and were identified by the complainant.

6. PW-3 (ASI Kanta Prasad) and PW-4 (Banveer) who were on

patrolling duty, categorically deposed that the assailants were

apprehended after some chase when they fled after committing robbery.

Minor contradictions highlighted by the counsel are not material to throw

away the prosecution case in its entirety. The police officials had no ill-

will against the assailants to falsely implicate them. The accused did not

examine any witness in defence to falsify the positive testimony of the

complainant. They did not examine any witness in defence to prove their

presence at some other specific place at the time of incident.

7. The conviction is based upon fair appraisal of the evidence

and requires no interference. The conviction is maintained. Order on

sentence is modified to the extent that total fine would be ` 3,000/- and in

default of payment of fine, he will undergo SI for one month. Other

sentences are left undisturbed. The appeal is disposed of in the above

terms. The Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE FEBRUARY 21, 2013/tr