Sanjay Kumar Vashisth vs State
2013 Latest Caselaw 4046 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                      RESERVED ON : 13th August, 2013
                                      DECIDED ON : 10th September, 2013

+      CRL.A.574/2011 & Crl.M.A.No.19644/2012

       SANJAY KUMAR VASHISTH
                                                             ..... Appellant
                             Through : Mr.Neeraj Bhardwaj, Advocate.

                             versus

       STATE
                                                         ..... Respondents
                             Through : Mr.M.N.Dudeja, APP for the State.

+      CRL.A.44/2010

       DHYAN SINGH
                                                           ..... Appellant
                             Through : Mr.M.Shamikh, Advocate.

                             versus

       STATE
                                                         ..... Respondents
                             Through : Mr.M.N.Dudeja, APP for the State.

       CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Sanjay Kumar Vashisth (A-1) and Dhyan Singh (A-2)

impugn a judgment dated 17.12.2009 of learned Additional Sessions

Judge in Sessions Case No.74/2009 arising out of FIR No.579/2007

registered at Police Station M.S.Park by which they were held guilty for

committing offences punishable under Section 392/394/397/34 IPC. By

an order dated 21.12.2009 A-1 was directed to undergo (i) RI for ten years

with fine `20,000/- under Section 392/394/397 IPC; (ii) RI for three years

with fine `5,000/- under Section 25 Arms Act and (iii) RI for three years

with fine `5,000/- under Section 27 Arms Act. A-2 was sentenced to

undergo (i) RI for seven years with fine `10,000/- under Section

392/394/397 IPC and (ii) SI for six months with fine `500/- under Section

323 IPC.

2. Allegations against the appellants were that on 13.12.2007 at

about 09.45 P.M. in front of Goyal Medicos, Durgapuri Extension, they

with their associate (not arrested) in furtherance of common intention

voluntarily robbed Hari Kishan Goyal and deprived him of a bag

containing keys of the shop. The assailants were armed with deadly

weapons and caused injuries to intervener Bhupender. Police machinery

came into motion when DD No.23A (Ex.PW-4/B) was written at Police

Station M.S.Park at 10.08 P.M. on getting information that an individual

had been caught near Goel Medical Store, Durgapuri Chowk and he was

in possession of a katta and cartridge. The investigation was marked to SI

U.B.Shankaram who with Ct.Ravinder and Ct.Hukum Singh went to the

spot. Complainant Basant Goyal met and recorded his statement (Ex.PW-

2/A). The complainant handed over A-1's custody along with desi katta

with two live cartridges. The Investigating Officer lodged First

Information Report. Bhupender was taken to GTB hospital for medical

examination. Statements of witnesses conversant with the facts were

recorded. Pursuant to A-1's disclosure statement during police custody,

A-2 was arrested near Hanuman Mandir, Yamuna Bazar and he recorded

disclosure statement (Ex.PW-5/C). Bhupender was able to identify Dhyan

Singh in the TIP proceedings. During the course of investigation, exhibits

were sent to Forensic Science Laboratory. After completion of

investigation, a charge-sheet was submitted in the court and the appellants

were duly charged and brought to trial. The prosecution examined 14

witnesses to establish their guilt. In their 313 statements, the appellants

pleaded false implication. After considering the rival contentions of the

parties and appreciating the evidence, the Trial Court, by the impugned

judgment held both of them guilty for the offences mentioned previously

and sentenced them. Being aggrieved, they have preferred the appeals.

3. Appellants' counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. The

prosecution did not offer plausible explanation for not associating Hari

Kishan Goyal, complainant's father, from whom the bag was purportedly

snatched. No independent public witness was joined during investigation.

Only interested and partisan witnesses were produced to falsely rope in

the appellants. A-2 was not identified in Test Identification Proceedings

by the complainant and crime weapon was not recovered from him. It is

unclear why Hari Kishan Goyal who was hale and hearty did not

intervene. Learned Additional Public Prosecutor urged that apprehension

of A-1 on the spot is a vital incriminating circumstance. A-2 was

identified by the injured Bhupender during Test Identification Proceedings

and there are no sound reasons to discard reliable testimonies of victims.

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

examined the record. The occurrence took place at around 09.45 P.M. on

13.12.2007. Daily Diary (DD) No.23/A (Ex.PW-4/B) was recorded at

10.08 P.M. The Investigating Officer went to the spot; recorded

complainant's statement (Ex.PW2/A) and sent rukka (Ex.PW-12/A) for

lodging First Information Report at 11.50 P.M. Bhupender was taken for

medical examination at GTB hospital where time of arrival has been

mentioned as 12.15 A.M. It reveals that there was no delay in lodging

FIR with the police. First Information Report in a criminal case is an

extremely vital and valuable piece of evidence for the purpose of

corroborating the oral evidence adduced at the trial. The object of

insisting upon prompt and early reporting of the occurrence to the police

in respect of commission of an offence is to obtain information regarding

the circumstance in which the crime was committed, including the names

of the actual culprits and the parts played by them, the weapons, if any,

used, as also the names of the eyewitnesses, if any present at the scene of

occurrence. Since the FIR was lodged promptly there was least possibility

of fabrication of a false story. The complainant in his statement (Ex.PW-

2/A) gave vivid details of the incident and disclosed as to how and under

what circumstances, three assailants who were armed with country-made

pistols robbed his father Hari Kishan Goyal when he was sitting in the car.

He also disclosed that when Bhupender intervened to caught hold the first

assailant, he was injured with 'butt' of the katta. They were able to

apprehend A-1 at the spot. The complainant, PW-2, in his Court

statement proved the version given to the police at the first instance

without major variations. He deposed that on 13.12.2007 at about 09.45

P.M. he closed his shop being run under the name and style of 'Goyal

Medicos' at Loni Road. His father Hari Kishan Goyal had sit in the car.

When he opened the gate of the car to sit on the driver's seat, an

individual pointed a katta on his head. He turned back and caught hold of

the said assailant. In the meantime, another assailant snatched the bag

containing keys of the shop from his father. He threatened to release the

first assailant or else he would shot dead. Bhupender rushed to intervene

and caught hold the first assailant. At that time, third assailant surfaced

and inflicted 'butt' of the katta on his head and warned him to leave his

associate. They did not allow the first assailant to flee. A crowd gathered

and the police was informed. They handed over the custody of the first

assailant to the police. The complainant identified A-1 to be the

individual who was apprehended at the spot and was referred as 'first

assailant'. He further deposed that Bhupender was taken to GTB hospital

and was medically examined. His statement (Ex.PW-2/A) was recorded.

He identified katta (Ex.P-1) and cartridges (Ex.P2/1 & 2) recovered from

A-1's possession. He was unable to identify A-2. In the cross-

examination, he disclosed that there were 20/25 keys in the bag. His

father was hale and hearty on the day of the incident. He was unable to

tell as to which of the three assailants took away the keys and bag from

his father's possession. He denied the suggestion that A-1 was under the

influence of liquor and was hit by his car and implicated in this case. No

material discrepancy emerged in the cross-examination on vital facts

whereby the complainant assigned specific role to A-1 for participation in

the robbery. No injuries were found at A-1's body to believe that he was

hit with a car as suggested. Injuries caused to Bhupender were not

challenged in the cross-examination. No ulterior motive was assigned to

this witness who had no prior acquaintance with the assailants for falsely

implicating them in the incident. In the absence of prior animosity or ill-

will, the victim/complainant was not expected to fake the incident of

robbery and to implicate the assailants. He was fair enough not to

recognize and identify A-2 in TIP proceedings and in the court. PW-3

(Bhupender) who intervened to save his employer corroborated PW-1 on

material facts. He also implicated A-1 who was caught hold at the spot

with the country made pistol. He deposed that A-1's associates threatened

to leave him or else he would be killed. He identified A-2 to be the

assailant who inflicted injuries to him with the 'butt' of the katta (Ex.P-1).

In the cross-examination, he disclosed that the vehicle in possession of the

complainant was Tata Indigo and it was parked adjacent to the shop. He

fairly admitted that he did not know in which vehicle the assailants had

arrived. There were 20/25 keys in the bag. The appellants did not put any

suggestion to deny his presence at the spot. PW-3 sustained injuries in the

occurrence and was taken to GTB hospital where he was medically

examined by PW-1 (Dr.Avinash Tigga) vide MLC (Ex.PW-1/A). He

found lacerated wound on his right parietal region measuring 1 cm X 0.2

cm; abrasion on right little finger and abrasion on left leg. He was not

cross-examined to ascertain if the injuries were accidental or self-inflicted.

There is no variance between the ocular and medical version. Injuries on

the body of the witness confirms his presence at the spot. He had no

animosity with the assailants to falsely identify them as culprits. He

participated in the Test Identification Proceedings during investigation

and was able to identify A-2. In his Court statement also he was certain

that A-2 was one of the assailants and ascribed a specific role to him.

5. It is true that Hari Kishan Goyal from whom the bag was

snatched was not examined and no explanation has been offered for that.

He had witnessed the incident and was a material witness to be examined.

At the same time, it is a settled proposition of law of evidence that it is not

number of witnesses that matters but its substance. It is also not

necessary to examine a large number of witnesses if the prosecution can

bring home the guilt of the accused even with a limited number of

witnesses. Testimony of PWs-2 and 3 cannot be discredited simply

because the Investigating Officer did not opt to examine Hari Kishan

Goyal. A-2 voluntarily participated in the TIP proceedings and was

identified by PW-3 Bhupender. It makes no difference that complainant

was unable to recognize and identify him in the TIP proceedings and it

does not dilute the veracity of his statement. He explained that the person

who threatened him was not seen by Basant Goel as he was standing on

the opposite side. Non-recovery of weapon of offence from A-2 is not

fatal. The appellants did not offer plausible explanation in their 313

statements to the incriminating circumstances proved against them. A-1

did not explain as to when and where he had consumed alcohol. He also

did not elaborate as to how and under what circumstances he happened to

be present at the place of incident at odd hours without any apparent

reason. The discrepancies highlighted by the appellants' counsel do not

affect the core issues proved by the independent witnesses. The impugned

judgment is based upon proper and fair appreciation of evidence and

needs no interference.

6. Reasons were given by the Trial Court while awarding

stringent sentences to the appellants. They had no occasion to be in

possession of deadly weapons and use them to rob an innocent shop-

keeper. The appellants not only robbed the victim but also caused injuries

to the person who exhibited exemplary courage to save his employer. The

appellants deserve no leniency. The conviction and sentence of the

appellants are upheld. The substantive sentences of the convicts, however,

shall run concurrently and they will be entitled to have benefit under

Section 428 Cr.P.C.

7. The appellant-Dhyan Singh is directed to surrender before

the Trial Court within two weeks to serve the remainder of his sentence.

The Registry shall transmit the Trial Court records forthwith to ensure

compliance with the judgment.

8. The appeals and pending application are disposed of in the

above terms.

(S.P.GARG) JUDGE September 10, 2013 sa