Sanjay @ Rohtash vs The State (Govt. Of Nct) Delhi
2013 Latest Caselaw 3886 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 8th JULY, 2013
                                 DECIDED ON : 3rd SEPTEMBER, 2013

+                           CRL.A. 90/2013

       SANJAY @ ROHTASH                       ....Appellant
                Through : Mr.S.K.Sethi, Advocate.

                                 VERSUS

       THE STATE (GOVT. OF NCT) DELHI       ....Respondent
                Through : Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Sanjay @ Rohtash (the appellant) challenges a judgment

dated 15.09.2010 in Sessions Case No. 47/2007 arising out of FIR No.

361/2007 PS Subzi Mandi by which he was held guilty for committing

offences punishable under Section 120B IPC, 395 read with Section 397

IPC and under Section 25/27 Arms Act. By an order dated 23.09.2010, he

was sentenced to undergo RI for seven years with fine ` 5,000/- under

Section 120B IPC, seven years with fine ` 5,000/- under Section 395 read

with Section 397 IPC and two years with fine ` 1,000/- under Section

25/27 Arms Act.

2. Allegations against the appellant were that on 20.07.2007, at

Sonu's jhuggi at Basti Seelampur, he, Hari Om, Sonu, Kalu @ Saleem

and Mahender Singh entered into a criminal conspiracy to rob the

complainant Ashok Kumar Jain. On 25.07.2007 at about 08.10 P.M. at

Anand Service Station, near petrol pump, Malka Ganj, Subji Mandi they

pursuant to the criminal conspiracy committed dacoity and robbed Ashok

Kumar Jain of bag containing ` 2,50,000/-, documents, mobile No.

9810212250 and Santro Car bearing No. DL-2CW-8053. The assailants

were armed with deadly weapons and they used it to commit the dacoity.

The Investigating Officer lodged First Information Report after recording

complainant - Ashok Kumar Jain's statement in which he disclosed that

on 25.07.2007 at about 07.50 P.M. he was present in Santro Car being

driven by accused Mahender Singh and was returning from his shop. The

car was stopped at Malka Ganj Petrol Pump for fuelling. Thereafter,

Mahender Singh started the vehicle. He again stopped it after about 4/5

paces on the pretext of bearing seatbelt. In the meantime, the assailants

forcibly entered inside the car through the rear doors. Kalu was having a

knife in his hand while Sonu and co-accused were having country made

pistols. They asked the driver to take the vehicle to Alipur by-pass. The

vehicle was taken there and stopped. ` 20,000/- to ` 25,000/- and other

articles were robbed from the victim. Thereafter, the victim and his

servant Raj Kumar were forced to get down from the vehicle. Battery of

the mobile phone was removed so that it could not be used by the victim.

Thereafter, the assailants took Mahender with them in the said Santro car.

During the course of investigation, Hari Om was apprehended on the basis

of secret information and his disclosure statement was recorded. `

35,000/- cash was recovered and seized. The other assailants were

apprehended and part of the cash looted, pistol and churi were recovered

from their possession. Applications were moved for holding TIP

proceedings but the accused persons declined to participate in the TIP

proceedings. After completion of investigation, a charge-sheet was

submitted against the five assailants in the Court. The prosecution

examined eighteen witnesses. In their 313 statements, the accused persons

pleaded false implication. On appreciating the evidence and considering

the rival contentions of the parties, the Trial Court, by the impugned

judgment, held all of them guilty for the offences mentioned previously

and sentenced them.

3. It is relevant to note that co-convicts Kalu @ Saleem , Sonu,

Hari Om and Mahender Singh preferred Criminal Appeals No. 1431/2011,

1306/2010, 183/2011 and 1244/2010 to challenge their conviction and

sentence. These appeals were disposed of by this Court on 14.12.2012.

The convicts in the said appeals opted not to challenge their conviction

under Sections 120 B and 395 IPC. They emphasized that ingredient of

offence under Section 397 IPC were not attracted as none of them used a

deadly weapon at the time of committing the offence. This Court accepted

their submissions and acquitted them under Section 397 IPC. They were

ordered to be released for the period already undergone by them in the

case.

4. Sanjay @ Rohtash is the 5th convict whose appeal is under

consideration. He was apprehended on 01.08.2007 when co-convict Hari

Om led the police team to Seelampur and pointed at him. Complainant -

Ashok Kumar Jain was also with the police and identified him as one of

the assailants. PW- 18 (SI Bharat Bhushan) recorded his disclosure

statement (Ex.PW-7/E). Pursuant to disclosure statement ` 80,000/- along

with some visiting cards were recovered from a trunk box and seized vide

seizure memo (Ex.PW-7/F). He further led the police team near a

boundary wall ahead of Unsmanpur Police Station and recovered one

loaded katta from inside the garbage. It was unloaded and one cartridge

was recovered out of it. The necessary proceedings were conducted vide

memos (Ex.PW-7/G & Ex.PW-7/H). On 09.08.2007, PW-18 (SI Bharat

Bhushan) moved application for holding TIP proceedings for the appellant

but he refused to join it.

5. While appearing as PW-1, complainant - Ashok Kumar Jain

proved the version given to the police at the first instance without major

variations. He indentified Sanjay @ Rohtash to be among the assailants

who had entered forcibly inside the car. He elaborated that Sanjay and

Sonu had entered into the car from the left side. He further disclosed that

the assailant who had entered from the left side had told Mahender Singh

to take the car to by-pass. One of them had placed a churri on his back.

The vehicle was taken through Kirori Mal College to Khalsa College. He

further deposed that near petrol pump at Libaspur, Sanjay and Sonu asked

him about the contents of the bag and he told them that there were `

4,80,000/-. He volunteered to add that he had told the police in his

complaint that the cash was ` 20,000/- or ` 25,000/-. He explained that he

had done so as he was under fear and was frightened. He attributed

specific role to Sanjay and Sonu who had snatched his bag when the

vehicle was moving in between Libaspur and Khera. Sanjay and Sonu also

took out his mobiles and cash from his pocket. Batteries of the mobiles

were taken out. Sanjay also put a katta on his back and took him for about

25-30 steps. He and the child were left there. Sanjay returned to the

vehicle and it was taken away. In the cross-examination, the witness was

confronted with his statement where he had not disclosed certain facts

testified before the Court.

6. Overall testimony of the complainant reveals that he was

certain that Sanjay @ Rohtash was one of the assailants who had entered

forcibly inside the car and had snatched the bag containing cash from his

possession by using a deadly weapon i.e. katta which was subsequently,

recovered at his instance. Appellant's counsel has highlighted some

discrepancies and improvements in the statement of the complainant

regarding the exact cash in his possession at the time of occurrence or the

assailant who used the weapon. In my view, these discrepancies are trivial

in nature and do not go to the root of the case to discard the testimony of

the complainant who had no prior animosity with the appellant and was

not acquainted with him. Complainant was not expected to fake an

incident of dacoity. He had direct confrontation with the assailants who

took him to Libaspur side. The complainant remained in their company

for long duration and had ample opportunity to recognize and identify

them. He had no ulterior motive to falsely implicate the appellant and his

associates for the gruesome incident. He was the victim of circumstances

as the driver Mahender Singh employed by him betrayed and conspired

with his associates including his brother Hari Om to rob him. The co-

convicts have already confessed their guilt and have not opted to

challenge their conviction. They were given benefit under Section 397

IPC as the prosecution was not able to establish use of a deadly weapon at

the time of committing the crime. In the instant case, there is specific

assertion of the complainant that the appellant used the country made

pistol at the time of incident. It was also recovered at his instance during

the course of investigation. There are no sound reasons to disbelieve the

complainant's version. Recovery of ` 80,000/- was effected from the

possession of the accused. The police officials are not expected to plant a

huge amount of ` 80,000/- upon the appellant to falsely implicate him.

Adverse inference is to be drawn against the appellant for not

participating in the Test Identification Proceedings. He did not produce

any evidence to show that he was shown to the complainant prior to the

holding of TIP proceedings to justify refusal to participate in the

proceedings.

7. All the relevant contentions of the appellant have been

considered by the Trial Court in the impugned judgment. It is based upon

fair appraisal of the evidence. I find no good reasons to interfere with it.

8. In the light of above discussion, the appeal filed by the

appellant is unmerited and is dismissed.

(S.P.GARG) JUDGE SEPTEMBER 03, 2013 tr