Karan Singh @ Deva vs State
2013 Latest Caselaw 1142 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : February 28, 2013
                               DECIDED ON : March 07, 2013

+                                  CRL.A. 411/2011
       KARAN SINGH @ DEVA
                                                          ..... Appellant
                          Through : Mr.Vijay Kinger, Advocate.

                          versus

       STATE
                                                        ..... Respondent
                          Through : Ms.Fizani Husain, APP for the State.


        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Karan Singh @ Deva impugns conviction in Sessions Case

No.39/2008 arising out of FIR No.64/2004 registered at Police Station

Bara Hindu Rao by which he was held guilty for committing offences

punishable under Section 120-B/392/397 IPC and sentenced to undergo

RI for seven years.

2. Allegations against the accused were that on 13.06.2008 at

about 05.00 A.M. opposite shop No.T-736, Tyre Market, Azad Market,

DCM Road in pursuance of criminal conspiracy Karan singh @ Deva and

his associate Mukesh @ Mukka, Chandan @ Babar and Mohd.Wasim

robbed `2,500/-, visiting cards and mobile phone no.9212421161 from the

complainant-Manoj Kumar. They also robbed `3,500/-, railway tickets

from Deepak Sharma (PW-1). They were armed with knives at the time

of committing robbery and used deadly weapons to deprive the

complainant-Manoj Kumar and Deepak of their valuable articles. During

the course of investigation, statements of witnesses conversant with facts

were recorded. The accused persons were arrested. The Investigating

Officer moved applications for conducting Test Identification Parade.

The accused declined to participate in the TIP. Robbed articles were

recovered at the instance of the accused. After completion of investigation

a charge-sheet was submitted against them in the Court. They were duly

charged and brought to trial. The prosecution examined 26 witnesses. In

their statement under Section 313 Cr.P.C. the accused pleaded false

implication. On appreciating the evidence and considering the rival

submissions of the parties, the Trial court, by the impugned judgment

convicted the appellant-Karan Singh @ Deva and his associates Mukesh

@ Mukka, Chandan @ Babar. Mohd. Wasim was acquitted of all the

charges. Being aggrieved, the appellant 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. The

accused were shown to the prosecution witnesses. In the police station,

they their sketches were prepared and photographs shown to witnesses.

The accused were justified to decline participation in Test Identification

Parade. The witnesses gave inconsistent version as to which of the

accused used knife to rob them. The TCR was found abandoned. PW-12

(Mukesh Chand Sharma) turned hostile and did not support the

prosecution. The robbed articles were not recovered in the presence of the

complainant and Deepak. There was no specific mark of identification on

the recovered currency notes. Learned APP for the State urged that the

accused was identified by the complainant and PW-1 (Deepak Sharma) in

the court. They had not animosity to implicate the accused falsely in the

case.

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

examined the record. At the outset, it may be mentioned that the learned

counsel for the appellant did not challenge the incident of robbery. His

only plea is that appellant was not one of the perpetrators of the crime.

PW-1 (Deepak Sharma) and PW-4 (Manoj Kumar) had no animosity to

implicate the accused in the incident of robbery in which they were

deprived of valuable articles including cash when they were travelling in

TSR No.DL 1 RE 9747 from Old Delhi Railway Station to Anand Parbat.

Police machinery came to motion when DD No.8/B (Ex.PW15/A) was

recorded at Police Station Bara Hindu Rao at 0.5.27 hours on getting

information that three boys travelling in TSR No.DL 1RF 1454 committed

robbery of cash and valuable articles. In his statement (Ex.PW-4/A) the

complainant-Manoj Kumar gave vivid description of the occurrence. He

also disclosed broad features of the assailants. The complainant had no

acquaintance with the assailants to falsely rope them in the incident. First

Information Report was lodged at 06.30 A.M. vide rukka (Ex.PW23/A).

There was no delay in lodging the First Information Report and it ruled

out the possibility of any false fabrication.

5. During investigation, Karan Singh @ Deva was arrested in

case FIR No.239/2008 registered at Police Station Mandavali and was

lodged in Tihar Jail No.8. The Investigating Officer moved an application

for issuance of production warrants. He was interrogated and his

disclosure statement (Ex.PW9/D) was recorded. The application was

moved for conducting TIP. PW-26 (Ashish Aggarwal, Metropolitan

Magistrate) conducted Test Identification Proceedings on 17.07.2008 in

which the accused declined to participate. An adverse inference is to be

drawn against the accused for not participating in the TIP proceedings.

PW-4 (Manoj Kumar) in his deposition before the court recognized and

identified Karan Singh @ Deva without hesitation to be amongst the

assailants. He was categorical in his identification and stated that the

person who was standing at his side wearing a rose colour shirt was the

accused-Karan Singh. In the cross-examination, he further stated that

after the accused refused to participate in TIP proceedings, he identified

him in the police station Bara Hindu Rao. PW-1 (Deepak Sharma) was

also certain that the accused-Karan present in the court was one of the

assailants. These independent public witnesses had no prior ill-will

against the accused to falsely implicate him and to let the real culprits go

scot free. The police witnesses also testified that some robbed articles

were recovered at the instance of the accused and were identified by PWs-

1 and 4 in their deposition in the court. Acquittal of co-accused Wasim is

of no benefit to the appellant. Co-accused Wasim was TSR driver and did

not come down from the TSR. Consequently, PWs 1 and 4 had no direct

confrontation with him. Wasim was given benefit of doubt as PWs-1 and

4 were unable to recognize and identify him as one of the assailants. The

photographs of the culprits were shown to the prosecution witnesses in the

Police Station to ascertain and find out real the assailants. The accused

was not in picture at that time. It is not on record that any photograph of

the accused was shown to PWs 1 and 4 before moving application for TIP.

The complainant had given the description of the assailants and had

claimed to identify them. Identification of the accused in the court by

PWs 1 and 4 is crucial and cannot be discarded. Merely because PW-12

(Mukesh Chand Sharma) did not identify the assailants in the court,

otherwise cogent and reliable deposition of independent witnesses PWs 1

and 4 cannot be discredited. The accused did not give plausible

explanation to the incriminating circumstances proved against them. The

findings of the Trial Court that the accused was one of the assailants in

committing the robbery are based upon fair appraisal of the evidence and

need no interference.

6. The accused was convicted with the aid of Section 397 IPC

whereby he allegedly used 'deadly' weapon at the time of committing

robbery. The evidence of the prosecution on this aspect is deficient. PW-

1 and PW-4 were not certain if knife was used by the appellant at the time

of committing robbery. No knife was recovered from the accused or at his

instance in the presence of the witnesses. In their deposition before the

court, the knife allegedly recovered in other case was not shown to them

to ascertain that if was the same knife used by the accused for committing

robbery. The prosecution witnesses did not give any detail particulars i.e.

size, dimension etc. of the knife to establish that it was a 'deadly' weapon.

No injuries were inflicted with any weapon to the victims. Conviction of

the appellant with the aid of Section 397 cannot be sustained and he

deserves benefit of doubt on that score.

7. In the light of the above discussion, conviction of the

appellant under Section 392/120-B IPC is maintained. Order on sentence

is modified and the substantive sentence awarded to the appellant to

undergo RI for seven years under Section 392 read with Section 397 IPC

is reduced to Rigorous Imprisonment for five years. Other sentences are

left undisturbed.

8. The appeal stands disposed of in the above terms. A copy of

the order be sent to the appellant through Superintendent, Tihar Jail.

9. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE March 07, 2013 sa