Rajkumar @ Babloo vs State
2013 Latest Caselaw 3977 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 8th July, 2013
                                  DECIDED ON : 6th September, 2013

+                        CRL.A. 542/2012

       RAJKUMAR @ BABLOO                               ..... Appellant
                   Through :          Mr.Chetan Lokur, Advocate.

                         versus

       STATE                                          ..... Respondent
                         Through :    Mr.M.N.Dudeja, APP.

                    `
        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Rajkumar @ Babloo (the appellant) challenges a judgment

dated 20.11.2010 of learned Sessions Judge in Sessions Case No.51/2008

arising out of FIR No.11/2005 registered at Police Station Uttam Nagar by

which he along with Malkiat Singh, Charan Singh and Nand Kishore @

Sanjay was convicted for committing offences punishable under Sections

394/395 read with Section 397 IPC. By an order dated 22.11.2010, he

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

Section 394 IPC and RI for ten years with fine `5,000/- under Section 395

read with Section 397 IPC.

2. Allegations against the appellant were that on 04.01.2005, he

and his associates con-jointly committed dacoity at Pawan's house

bearing No.168, Gali No.9, Laxmi Vihar, Mohan Garden, Uttam Nagar

and robbed articles detailed in the FIR and Sunita's supplementary

statement. Further allegations were that they also committed decoity in

the House of Bhim Sain at E-65, Bhagwati Garden, Uttam Nagar in

between 02.30 to 03.00 A.M. and robbed articles detailed in the

statements of the victim and his family members. It is further alleged that

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

decoity and voluntarily caused injuries to Tek Chand, Bhagwan Devi,

Bhim Sain, Rakesh Kumar, Pawan Kumar and Sunita. The police

machinery came into motion when DD No.35-A (Ex.PW19/A) was

recorded at Police Station Uttam Nagar on 04.01.2005 on getting

information that the assailants had entered inside House No.168, Gali

No.9, Laxmi Vihar, Mohan Garden, Uttam Nagar and had killed

informant's husband. The investigation was assigned to SI Bhagwan

Singh who with HC Davinder went to the spot. Another DD No.37-A

(Ex.PW-10/A) was recorded at 04.20 A.M. on getting information that the

assailants had entered in House No. E-65, Bhagwati Garden, Uttam Nagar

and had robbed its inmates after beating them. The Investigating Officer

lodged First Information Report after recording Pawan Kumar's statement

(Ex.PW-1/A). During the course of investigation, the culprits were

arrested and few robbed articles were recovered at their instance.

Applications for TIP were moved and statements of the witnesses

conversant with the facts were recorded. After completion of

investigation, a charge-sheet was submitted in the court. The prosecution

examined 24 witnesses to prove the charges. In his 313 statement, the

appellant pleaded false implication. On appreciating the evidence and

after considering the rival contentions of the parties, the Trial Court by the

impugned judgment convicted the appellant for the offence mentioned

previously and sentenced him accordingly. Being aggrieved, he has

preferred the appeal. It is significant to note that Kalu, Raju and Pappu @

Chuha were also arrested during investigation, however, the eye-witnesses

could not identify them in the Test Identification Proceedings and they

were discharged.

3. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. No

incriminating article was recovered from appellant's possession. The

prosecution witnesses have given contradictory version as to the number

of assailants and the role played by them in the incident. PWs 3, 5 and 6

did not identify the appellant as one of the assailants who committed

robbery/decoity at E-65, Bhagwati Garden, Uttam Nagar. The appellant

was shown to the witnesses in the Police Station and for that reason he did

not participate in the TIP proceedings. The prosecution witnesses have

given divergent statements as to what cash and other articles were robbed.

No independent public witness was associated at any stage of the

investigation. Chance prints lifted from the spot did not match.

Appellant's disclosure statement was not recorded and he was not named

by co-accused persons in their disclosure statements. Learned Additional

Public Prosecutor urged that there are no sound reasons to discard the

testimony of injured witnesses who had no prior animosity with the

appellant to falsely implicate him in the incident.

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

examined the Trial Court record. There are no good reasons to discard the

prosecution version about the incidents of robberies that took place at

House No.168, Gali No.9, Laxmi Vihar, Mohan Garden, Uttam Nagar and

House No.E-65, Bhagwati Extension on the night intervening

03/04.01.2005. Daily Diary (DD) No.35-A (Ex.PW19/A) was recorded in

this regard at 03.00 A.M. without any delay. The informant was the

inmate of the house and she disclosed that the assailants had killed her

husband. Again DD No.37-A (Ex.PW10/A) was recorded at 04.20 A.M.

regarding commission of decoity at E-65, Bhagwati Garden, Uttam Nagar.

Statement of victim Pawan Kumar was recorded and Investigating Officer

lodged First Information Report by making endorsement (Ex.PW19/A)

over it at 09.30 A.M. In the statement, the victim gave graphic detail as to

how and under what circumstances, 7-8 intruders armed with iron rods

and pistol committed decoity in his house and injured him and his wife.

He also disclosed that the said intruders also committed decoity at a

nearby house of Tek Chand. The victim had no reasons to fake the

incident of decoity at the dead of night at his house. In the incident, he

and his wife Sunita Arya sustained injuries. PW-1 (Pawan Kumar) was

injured with iron rod on his mouth, lower jaw, forehead and left cheek.

When PW-4 (Sunita Arya) intervened to save him, one of the assailants

(Malkiat Singh) fired at her twice and injured her. Both were taken to

hospital. PW-18 (Dr.Udai Kumar Singh) medically examined Pawan and

prepared MLC (Ex.PW-18/B). PW-20 (Dr.Nishu Dhawan) proved the

MLC (Ex.PW20/A) pertaining to injured Sunita Arya. As per MLC, she

suffered gunshot injuries. Similarly, victims PW-3 (Tek Chand) was

medically examined by Dr.Vishal Sehgal at DDU hospital. The MLC

(Ex.PW-20/C) has been proved by PW-20 (Dr.Nishu Dhawan). She also

proved MLCs of injured Rakesh (Ex.PW-20/B), Bhim Sain (Ex.PW-20/D)

and that of Bhagwan Devi (Ex.PW-18/A). The injuries sustained by them

were not suggested to be self-inflicted or accidental. All the injuries

sustained by them confirm their presence at the place of occurrences and

make them reliable witnesses. There is no conflict between the ocular and

medical evidence. There are no sound reasons to disbelieve their

testimonies. It is significant to note that co-convicts Malkiat Singh, Nand

Kishore @ Sanjay and Charan Singh had preferred Crl.A.Nos.1369/2010,

18/2011 and 1369/2010 respectively before this Court. While maintaining

their conviction vide orders dated 31.05.2012 and 17.10.2012, sentence

order was modified to the extent that they were sentenced to undergo the

period already spent by them in custody.

5. The appellant (Raj Kumar @ Babloo) was arrested on

01.02.2005 by the police of Special Cell vide arrest memo (Ex.PW19/D).

His involvement in the instant case surfaced in the disclosure statements.

PW-19 (Insp.Bhagwan Singh) moved applications for holding TIP

proceedings for Pappu @ Chuha, Kallu, Raj Kumar and Raju. The

witnesses did not identify Pappu @ Chuha, Kallu and Raju in the TIP

proceedings. The appellant refused to participate in the TIP proceedings.

Adverse inference is to be drawn against him for declining to participate

in the TIP proceedings. No plausible explanation has been given for

refusal to join the Test Identification Proceedings. No worthful evidence

has emerged to establish that he was shown to the public witnesses in the

police station.

6. PW-1 (Pawan Kumar) in his statement (Ex.PW-1/A) had

given description of the assailants and had claimed to identify them if

shown to him. In his Court statement, Pawan Kumar identified Malkiat

Singh, Nand Kishore, Charan Singh and Raj Kumar to be assailants and

attributed specific role to them. He was categorical to depose that Malkiat

Singh had a katta in his hand and fired on his wife. Nand Kishore had an

iron rod and he caused injuries to him. Charan Singh and Rajkumar

(appellant) were present at the spot with them (Malkiat Singh and Nand

Kisihore). The assailants had remained in the house of the victim for

sufficient long duration and had direct confrontation with them. PW-1

(Pawan Kumar) and his wife PW-4 (Sunita Arya) were injured in the

incident. Apparently, they had clear and sufficient opportunity to identify

and recognize the assailants. In the cross-examination, he denied that the

accused persons were shown to him before conducting TIP. He denied

the suggestion that Raj Kumar was apprehended by the police at Mansa

Mandi (Punjab) and was falsely implicated in this case. PW-4 (Sunita

Arya) also identified the present appellant along with co-convicts in the

court. She deposed that Malkiat Singh had a revolver in his hand and the

other three assailants stood near her bed along with him (Malkiat Singh).

They all gave beatings to her husband. Three assailants had danda, hocky

and knife. In the cross-examination, she disclosed that she was unable to

participate in the Test Identification Proceedings of case property as she

remained in bed for seven to eight months due to the injuries caused to

her. She denied that the police had shown the accused persons after her

discharge from the hospital by bringing them to her house.

7. PW-3 (Tek Chand), PW-5 (Bhagwan Devi), PW-6 (Bhim

Sain) were fair enough to depose that they were unable to identify Raj

Kumar to be one of the assailants. They identified Charan Singh and

Nand Kishore and assigned specific role to them in the incident.

However, PW-11 (Rakesh Kumar) was able to identify all the assailants

Malkiat Singh, Charan Singh, Nand Kishore and Raj Kumar. In his

deposition in the court, he clarified that Malkiat Singh had a katta in his

hand and Charan Singh, Raj Kumar and Nand Kishore had iron rods at the

time of incident. In the cross-examination, he admitted that the accused

persons were not known to him prior to the incident and he saw their faces

on the night of incident only. He denied that the police officials had

shown him the photographs of some persons. He volunteered to add that

he identified the accused persons for the first time before the Metropolitan

Magistrate. He denied to have visited the police on 06.01.2005 or on

09.01.2005 or to have seen the accused persons sitting there.

8. The court has no reasons to disbelieve the statements of

PWs-1, 4 and 11 regarding identification of the present appellant in the

court. They had no ulterior motive to implicate an innocent person and to

let the real culprit go scot free. No specific suggestion was put in the

cross-examination to claim that the appellant was present on the date and

time of occurrence at some other specific place i.e. at his house or at the

place of his work. No such witness from these places was examined in

defence. They were fair enough to not to identify Pappu @ Chuha, Kallu

and Raju in the TIP proceedings. Minor contradictions and improvements

highlighted by the appellant's counsel do not discredit the otherwise

natural and reliable testimony of the public injured witnesses. The

discrepancies referred to by the counsel are insignificant and not material.

The occurrence took place at the residential houses at the dead of night.

The intruders were 7/8 in number and were armed with weapons. The

court can well understand and realize the trauma and shock of inmates of

the house on finding strangers with deadly weapons in their hands at that

odd hours. There are bound to be some discrepancies between the

narration of different witnesses when they speak of details, after

witnessing such a horrible incidence. Corroboration of evidence with

mathematical precision cannot be expected in criminal cases. I find no

valid reasons to interfere in the impugned judgment which is based upon

fair appraisal of the evidence.

9. Malkiat Singh, Charan Singh, Nand Kishore and Raj Kumar

were sentenced to undergo RI for ten years with total fine `10,000/-.

Malkiat Skingh and Charan Singh were further sentenced to undergo RI

for seven years with fine `3,000/- under Section 412 IPC. Malkiat Singh

was sentenced for two years RI under Section 25 Arms Act with fine

`2,000/-. All the sentences were to run concurrently. The convicts were

given benefit of Section 428 Cr.P.C. As observed above, Malkiat Singh,

Charan Singh and Nand Kishore were sentenced to undergo custody

period already spent by them in this case. The custody period of Charan

Singh was more than seven years. Nominal roll of the present appellant

reveals that he has spent seven years, one month and twenty days

incarceration as on 26.04.2012. He also earned remission for six months

and fifteen days as on 26.04.2012. The said custody period has increased

to almost more than eight years. Taking into consideration, facts and

circumstances, the present appellant is directed to undergo the sentence

already served by him in this case.

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

the order be sent to Jail Superintendent, Tihar Jail with the direction to

release the appellant, if he is not required in any other case. Copy be also

sent to the accused/appellant through Jail Superintendent. Trial Court

record, if any, along with copy of this order be sent back.

(S.P.GARG) JUDGE 6th September, 2013 sa