Jai Veer Singh vs State
2013 Latest Caselaw 2952 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Crl. A. 249/2003

                                     Date of Decision: 15th July, 2013

JAI VEER SINGH                                     ..... Appellant
                         Through:     Mr. Jitender Tyagi, Advocate.

                         versus

STATE                                             ..... Respondent
                         Through:     Ms. Fizani Husain, APP

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                         JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the judgment dated 26.03.2003

and the order on sentence dated 31.03.2003 arising out of Sessions

Case No.133/96 in case FIR 310/94 u/s 392/397/34 IPC, P.S. Okhla

Industrial Area, vide which the appellant along with his co-accused

was held guilty of offence u/s 392 read with Section 34 IPC and was

sentenced to undergo 27 months rigorous imprisonment and to pay a

fine of Rs.500/- each, in default of payment of fine to undergo simple

imprisonment for 15 days.

2. Prosecution case emanates from the fact that on 8.10.1994, ASI

Shiv Singh (PW7) along with Ct. Anand Kumar (PW3) and Ct.

Brahm Singh reached Shyam Nagar at about 11.50 a.m where the

complainant Ravinder Chetwani (PW1) met them and gave his

statement, Ex.PW 1/A regarding commission of robbery of

Rs.1,50,000/-. Endorsement Ex. PW 7/A was made by ASI Shiv

Singh and the same was sent through Ct. Anand Kumar to police

station on the basis of which FIR Ex.PW 2/B was recorded by Ct.

Itwari Singh (PW2).

3. It is further the case of prosecution that on 03.02.1995, SI

Vimal Kishore Tripathi (PW9) posted at Spl. Staff South District

interrogated two accused Ramesh Kumar and Jai Veer Singh who

were arrested in case FIR No. 220/94 u/s 457/380 IPC P.S. Mehrauli

and recorded their disclosure statements. In pursuance thereof,

accused Ramesh got recovered Rs.50,000/- along with gold

ornaments whereas accused Jai Veer Singh got recovered Rs.15,000.

Insp. Narender Singh (PW10), on receipt of investigation of this case,

formally arrested the accused person. The accused refused to join test

identification proceedings. After completing investigation, charge-

sheet was submitted against them in the Court of learned

Metropolitan Magistrate who committed the case to the Court of

Sessions since offence u/s 397 IPC was triable by a Court of Sessions.

4. On commitment, charge u/s 392/397 IPC was framed against

both the accused persons to which they pleaded not guilty and

claimed trial. In order to substantiate its case, prosecution examined

ten witnesses. All the incriminating evidence was put to accused

persons while recording their statement u/s 313 Cr.P.C wherein they

denied the case of prosecution, pleaded innocence and alleged false

implication in this case. Vide impugned order referred above, both

the accused were held guilty u/s 392 read with Section 34 IPC and

were sentenced separately. Since the accused Ramesh had already

undergone the sentence, as such he was not taken in custody whereas

the present appellant Jai Veer Singh had undergone only 11 months,

therefore, in order to serve the remaining sentence, he was taken in

custody. Feeling aggrieved by the order, appellant Jai Veer Singh has

preferred the present appeal.

5. I have heard Mr. Jitender Tyagi, learned counsel for the

appellant and Ms. Fizani Husain, learned Public Prosecutor for the

State and have perused the Trial Court record.

6. It was submitted by learned counsel for the appellant that the

complainant did not identify the appellant and in fact was categorical

in stating that he was called in the police station on 04.02.1995 where

he had identified only one accused and not the second accused. He

specifically deposed that accused Jai Veer Singh was not the second

accused who had put the country made pistol on his person. That

being so, there was no occasion for his being convicted for offence

u/s 392 IPC. As regards recovery of Rs 15000/-, it was submitted that

recovery was alleged to have been effected in the presence of PW4

Ashok Rana. However this witness has categorically deposed that no

recovery was effected in his presence. Although he admitted his

signatures at recovery memo at Point A, however he clarified that his

signatures were obtained on blank paper. Moreover, the learned Trial

Court has convicted the appellant while raising presumption u/s

114(a) of the Evidence Act. However, in this case, that presumption

is not available because the alleged recovery which, otherwise, is

doubtful was effected after 3 months of the incident. Under the

circumstances, it was submitted that no case u/s 392 IPC is made out.

In case, it is held that the appellant was found in possession of the

stolen money, then, at the most, he can be held guilty u/s 411 IPC.

He has already remained in custody for a period of 11 months. The

incident took place in the year 1994. The appellant is now well

settled in life and has a family to support. As such he be sentenced to

the period already undergone.

7. Per contra, it was submitted by learned Public Prosecutor for

the State that the appellant refused to join TIP. Moreover, recovery

of Rs.15,000/- was effected from him in the presence of an

independent witness Ashok Rana. Although this witness has turned

hostile but admitted his signatures on the recovery memo. Under the

circumstances, it was submitted that there is no infirmity in the

impugned order which calls for interference.

8. The most material witness is the complainant Ravinder

Chetwani who unfolded that on 08.10.1994, he was working with M/s

Infocom Digital Systems Pvt. Ltd having its office at B-285, Okhla

Industrial Area, Phase-I as an Accountant. On that day, at about 11.30

a.m, after withdrawing Rs.1,50,000/- from the account of the

company held in SBI Okhla,Phase-III he kept the currency notes

contained in a polythene bag in the dicky of his scooter bearing

No.DDP 5339. When he reached near G.B. Pant Polytechnic, since

the road was bad, he was driving his scooter at low speed. In the

meanwhile, two boys riding a two wheeler scooter DL 3S 2208 came

from behind and obstructed his way. The front wheel of that scooter

touched his scooter and he was forced to stop his scooter since on the

other side there was a nallah. Those two boys asked him to open the

dicky and when he resisted, one of them who was sitting on the

pillion seat of the scooter, put a country made pistol on his backside.

The other boy, who was driving the scooter, opened the dicky with a

fist blow. They then removed the polythene bag from the dicky of the

scooter and fled away. He started his scooter and after covering some

distance, he saw two police officials and gave his statement Ex.

PW1/A which bears his signatures at Point A. He identified the

accused Ramesh as the person who was driving the scooter and who

had taken out the polythene bag containing currency notes from the

dicky of his scooter. However, he could not identify the other person

who was sitting on the pillion seat of the scooter and who had put

country made pistol on his back. Currency notes were later on

returned to him on Superdari. Since the witness did not support the

case of prosecution regarding the present appellant, he was cross-

examined by learned Public Prosecutor with the permission of the

Court and in cross-examination, he admitted that in his complaint

Ex.PW 1/A he had given the description of one accused and had

given the age of the other accused. However, he went on stating that

he had seen the accused who was driving the scooter and who had

taken the currency notes from the dicky of the scooter clearly but he

had not properly seen the pillion rider who had put the pistol on his

back as he was on one side. He was shown the accused Jai Veer

Singh and was asked whether he was the second person who was

sitting on the pillion seat of the scooter and who had put the country

made pistol on his neck and after looking at accused Jai Veer Singh,

he categorically stated that he was not the second accused. He went

on stating that accused Jai Veer Singh does not answer the description

of second accused. He admitted that he was shown two persons at the

police station on 04.02.1995 but he was able to identify only one

accused, whom he identified in the Court also. He had not identified

the second accused. He was the solitary witness to the incident and

was the best person to identify the accused but he completely

exonerated him by deposing that he was not the second accused and

in fact he had not even identified him in the police station on

04.02.1995.

9. Learned Public Prosecutor, however, stressed upon refusal on

the part of the appellant to join TIP proceedings. Although it is true

that the appellant had refused to join TIP proceedings, as such an

adverse inference can be drawn against him for his failure to join the

proceedings but that, ipso facto, is not sufficient to arrive at the

conclusion that he was the person who participated in the commission

of crime because it is the statement made by the witness in Court

which is of prime importance and, as seen above, the complainant has

categorically deposed that the appellant was not the second accused

who had put the pistol on his neck at the time of committing robbery,

therefore, only on the basis of presumption it cannot be held that

appellant was the second accused who had put pistol on the neck of

the complainant to commiting robbery.

10. It is the case of prosecution that the present appellant along

with his co-accused was arrested in case FIR No.220/94 u/s 457/380

IPC P.S. Mehrauli by PW-9 SI Vimal Kishore Tripathi wherein they

made disclosure statements. In pursuance thereof, while accused

Ramesh got recovered Rs.50,000/- pertaining to this case along with

some gold ornaments of some other case, the present appellant got

recovered Rs.15,000/- pertaining to this case. The same were seized

vide recovery memoes Ex.PW 6/C and PW 6/D respectively. The

recovery was effected in the presence of H.C Tarachand PW6 and at

the time of recovery, one independent witness Ashok Rana PW-4 was

also joined. So far as, PW4 Ashok Rana is concerned, this witness

has not supported the case of prosecution by deposing that no

recovery was effected in his presence. He admitted his signatures at

Point A on the recovery memo but went on stating that his signatures

were obtained on blank paper. The reason for not supporting the case

of prosecution by this witness is quite obvious as he was residing in

the neighbourhood of the present accused. That being so, being

neighbour of the accused, he might have chosen not to support the

case of prosecution but then there is testimony of H.C Tarachand and

SI Vimal Kishore Tripathi, both of whom have deposed about the

recovery of Rs.15,000/- at the instance of this accused in pursuance to

his disclosure statement. Despite cross-examination, nothing could be

elicited to discredit their testimony.

11. The testimony of police personnel have to be treated in the

same manner as testimony of any other witnesses and there is no

principle of law that without corroboration by independent witnesses

their testimony cannot be relied upon. The presumption that a person

acts honestly applies, as much in favour of police personnel as of

other person and it is not a proper judicial approach to distrust and

suspect them without good ground. It depends upon the facts and

circumstances of each case and no principle of general application

can be laid down as held in Karamjit Singh Vs. State (Delhi Admn.)

2003 5 SCC 291, C. Ronald & Anr. Vs. Union Territory of

Andaman & Nicobar Islands, (2012) 1 SCC (Crl.) 596. In Sunil

Clifford Daniel vs. State of Punjab, 2012 11 SCC 205, Apex Court

referred to State Govt. of NCT of Delhi v. Sunil and Anr., (2001) 1

SCC 652, wherein Court held as under:-

"20. ... But if no witness was present or if no person had agreed to affix his signature on the document, it is difficult to

lay down, as a proposition of law, that the document so prepared by the police officer must be treated as tainted and the recovery evidence unreliable. The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.

21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust.....At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way round. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."

Record reveals that no ill-will or animus has been alleged

against any of the police officials for which reason they will falsely

implicate the accused. Under the circumstance, recovery of

Rs.15,000/- at the instance of this accused stands proved. Moreover

the accused has not claimed this money in his statement recorded u/s

313 Cr.P.C nor any explanation has been afforded as to how he came

in possession of so much currency notes. Under the circumstances it

becomes clear that it was a stolen property.

12. Learned Trial Court has convicted the present appellant u/s 392

I.P.C along with the co-accused relying upon the presumption

available u/s 114(a) of the Evidence Act on the ground that the

appellant was found in possession of the stolen property. Reliance

was placed on Sanjay vs. State, AIR 2001 SC 979 and Gulab Chand

vs. State of Madhya Pradesh, (1995) 3 SCC 574.

13. Illustration (a) of Section 114 of the Indian Evidence Act, 1872

provides that the Court may presume that a man who is in possession

of stolen goods soon after the theft is either the thief or has received

the goods knowing them to be stolen, unless he can account for his

possession.

14. The words "soon after" in this illustration are pertinent. In

Tulsi Ram Kanu vs. State, AIR 1954 SC 1, it was observed:

"The Supreme Court has indicated that the presumption permitted to be drawn under Section 114, Illustration (a) of the Evidence Act 1972 has to be drawn under the `important time factor'. If the ornaments in possession of the deceased are found

in possession of a person soon after the murder, a presumption of guilt may be permitted. But if a long period has expired in the interval, the presumption cannot be drawn having regard to the circumstances of the case."

15. In Earabhadrappa v. State of Karnataka, AIR 1983 SC 446,

the Supreme Court held that the nature of presumption under

Illustration (a) to Section 114, must depend upon the nature of the

evidence adduced. No fixed time limit can be laid down to determine

whether possession is recent or otherwise and each case must be

judged on its own facts. The question as to what amounts to recent

possession sufficient to justify the presumption of guilt varies

according as the stolen article is or is not calculated to pass readily

from hand to hand. If the stolen articles were such as were not likely

to pass readily from hand to hand, the period of one year that elapsed

cannot he said to be too long particularly when the Appellant had

been absconding during that period.

16. Following such a reasoning, in Sanjay(supra), Hon'ble

Supreme Court upheld the conviction by the trial court since

disclosure statements were made by the accused persons on the next

day of the commission of the offence and the property of the deceased

was recovered at their instance from the places where they had kept

such properties, on the same day. The Court found that the trial court

was justified in holding that the disclosure statements of the accused

persons and huge recoveries from them at their instance by itself was

a sufficient circumstance on the very next day of the incident which

clearly went to show that the accused persons had joined hands to

commit the offence of robbery. Therefore, recent and unexplained

possession of stolen properties will be taken to be presumptive

evidence of the charge of murder as well.

17. In Gulab Chand (supra) also, Hon'ble Supreme Court upheld

the conviction for committing dacoity on the basis of recovery of

ornaments of the deceased from the possession of the person accused

of robbery and murder immediately after the occurrence.

18. In both the authorities, Sanjay(supra) and Gulabchand (supra),

since recovery was effected immediately after the incident and the

accused were unable to explain the possession of stolen properties,

such a presumption u/s 114(a) of the Evidence Act was drawn.

However, things are entirely different in the instant case, inasmuch as

the incident had taken place on 08.10.1994 whereas the accused was

arrested on 03.02.1995 i.e after almost three months of the incident

and the recovery was of cash which can be passed from one person to

another without any difficulty.

19. In State of Rajasthan vs. Talewar and Anr., AIR 2011 SC

2271, in pursuance to disclosure statement, cash, silver glass, scooter,

key of the car were recovered from accused persons. Recovery was

not in close proximity of the time from the date of incident. It was

observed that recovery is either of cash, small things or vehicles

which can be passed from one person to another without any

difficulty. In such a situation, no presumption can be drawn against

the accused under Section 114 illustration(a) of the Evidence Act. No

adverse inference can be drawn on the basis of recoveries made on

their disclosure statements to connect them with the commission of

crime.

20. In the instant case also, since recovery is only of cash, that too,

after about three months of the incident it is not safe to draw an

inference that the appellant in possession of the stolen property had

committed robbery. In that view of the matter, the conviction of the

appellant for the charge of robbery u/s 392 IPC cannot be sustained

and is accordingly set aside.

21. However, since the recovery of stolen property was effected at

the instance of accused which remains unexplained, as such he is

convicted u/s 411 IPC. The incident took place in the year 1994. The

appellant remained in custody for a period of 11 months. It was

submitted that the appellant is now well settled in life and is now

living in his village along with his family. Under the circumstances,

the ends of justice will be met, if he is sentenced to the period already

undergone. However, the fine of Rs.500/- imposed upon him is

enhanced to Rs.5,000/- which be deposited with the learned Trial

Court within seven days, failing which he is to undergo S.I for a

period of one month. Fine of Rs.500/-, if already deposited, be

adjusted. With these observations the appeal stands disposed of.

SUNITA GUPTA (JUDGE) July 15, 2013 as