Rajesh Gupta vs State (Nct) Of Delhi
2013 Latest Caselaw 4075 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                       CRL.A. 239/2010 & Crl.M.B.119/2013

                                     Date of Decision: 11th September, 2013

        RAJESH GUPTA                                            ..... Appellant
                                   Through:       Mr. S.B .Dandapani, Advocate.

                                   versus

        STATE (NCT) OF DELHI                                   ..... Respondent
                       Through:                   Ms. Fizani Husain, APP for the
                                                  State with SI Vinod Kumar,
                                                  P.S Pandav Nagar.
                                            AND

+                                  CRL.A. 1047/2009
        PANKAJ GUPTA                                             ..... Appellant
                                   Through:       Mr. Krishan Kumar and Ms.
                                                  Sunita Arora, Advocates.

                                   versus

        STATE                                               ..... Respondent
                                   Through:       Ms. Fizani Husain, APP for the
                                                  State with SI Vinod Kumar,
                                                  P.S Pandav Nagar.
        CORAM:
        HON'BLE MS. JUSTICE SUNITA GUPTA

                                    JUDGMENT

:SUNITA GUPTA, J.

1. Challenge in these appeals is to the judgment dated 30.10.2009

and order on sentence dated 06.11.2009 arising out of Sessions Case

No.76/2005 in case FIR No. 631/2004 u/s 392/394/397/452/506

(ii)/342/34 IPC & 25/27 Arms Act vide which the accused were held

guilty for all the offences and were sentenced as under:-

 Sentenced to undergo rigorous imprisonment for a period of seven years each and were also directed to pay fine in the sum of Rs.2,000/- each, in default of payment of fine, to undergo simple imprisonment for a period of three months each for offence u/s 397/394/392 IPC read with Section 34 IPC  Sentenced to undergo rigorous imprisonment for a period of two years and also to pay fine of Rs.1,000/- each, failing which to undergo simple imprisonment for a period of two months each for offence u/s 452/34 IPC;

 Sentenced to undergo rigorous imprisonment for a period of one year each for offences punishable u/s 506(ii) IPC read with Section 34 IPC;

 Sentenced to undergo rigorous imprisonment for a period of six months for offence u/s 342 IPC;

 Sentenced to undergo rigorous imprisonment for a period of one year each for offences punishable u/s 25 read with Section 27 Arms Act.

All the sentences were to run concurrently. Benefit of Section 428 Cr.P.C was extended to each of the convicts.

2. Prosecution case emanates from the fact that on 27.11.2004, at

about 8.15 p.m, both the appellants along with their third associate

entered the house of complainant Savita Bhola at III Floor, A-12,

Pandav Nagar, Delhi and committed robbery on pointing out a

country made pistol and robbed her of her gold jewellery. The two

accused were apprehended while they tried to flee away, below the

house, by the public persons who gave severe beatings to them. The

husband of the complainant also reached the spot and recovered one

loaded country made pistol from the pant of accused Pankaj and four

live cartridges from accused Rajesh. PCR also reached the spot and

took the accused to L.B.S. Hospital. Local police arrived and took

the complainant and her husband to L.B.S.Hospital where the

statement of complainant was recorded, which culminated in

registration of FIR against the accused persons. One sweater, muffler

and a kitchen knife was also recovered from the dining room of the

house of the complainant while one half sleeve sweater was recovered

from the stair case. Same were seized. One gold pendent and one

silver jhumka belonging to the complainant were also recovered from

accused Rajesh and Pankaj respectively by the duty constable during

their medical examination at the hospital. The country made pistol

and cartridges were sent to CFSL, Hyderabad. Permission under

Section 39 Arms Act was obtained from DCP (East). After

completing investigation, charge-sheet was submitted against the

accused persons

3. Initially on 19.05.2005, charge for offence u/s 392/394/397/34

IPC was framed against the accused persons. Subsequently on

27.01.2006, additional charge u/s 452/506(ii)/342/34 IPC read with

Section 25/27 Arms Act was also framed. Accused pleaded not guilty

to the charge and claimed trial.

4. In order to substantiate its case, prosecution examined 13

witnesses. All the incriminating evidence was put to the accused

while recording their statements u/s 313 Cr.P.C wherein they denied

the case of prosecution and alleged that accused Pankaj along with his

co-accused Rajesh had gone to demand money from the complainant

as he had worked with the complainant at his shop and amount of

salary was to be taken from him. When they came to demand the

dues, then a quarrel had taken place between them and Gagan Bhola

who raised alarm of `chor-chor' and got them apprehended with the

help of public who gave beatings to them. Complainant handed over

one piece of silver ear ring and one pendent to the police for planting

the same upon them. They, however, did not prefer to lead any

evidence.

5. After meticulously examining the evidence led by the

prosecution, vide impugned order, the appellants were convicted and

sentenced as stated above, which has been assailed by the appellants

by filing the present appeals.

6. It was submitted by learned counsel for the appellants that this

is a case of wrong appreciation of evidence. Conviction is based on

the testimony of PW-1 and PW-3 who are interested witnesses. No

independent witness has been examined. It has been admitted by the

Investigating Officer of the case that he himself did not recover any

article from the possession or at the instance of the accused. The

articles were handed over to him either by PW-3 Gagan Bhola or the

duty constable. If the pistol and cartridges were recovered by Gagan

Bhola, why the same were not handed over at the spot and why the

same were handed over in the police station. Moreover, if he had

taken search of the accused persons why did he not find jhumka and

pendent which was recovered by Duty Constable. This shows that the

jhumka and pendent has been planted upon the accused. It is not

established that the muffler and sweater given by Gagan Bhola to

police belongs to accused. It was further submitted that the FIR has

been recorded prior to the MLC, that being so, why in the MLC,

names of the accused do not find mention. The Constable who took

the accused to hospital was not examined by the prosecution. There

are contradictions in the testimony of PW-1 and PW-3. Under the

circumstances, prosecution has failed to bring home the guilt of the

accused beyond shadow of doubt and as such they are entitled to be

acquitted. Reliance was placed on Sanjay Kumar Gupta v. The

State, Govt. of NCT of Delhi, 2009(4) JCC 2544; State v. Parkha

Ram Suri & Ors., 2011(3) JCC 2094; Harendra Narain Singh &

Ors vs. State of Bihar, 1991 SCC (Cri) 905; Man Preet Singh vs.

State, 2004 Cr.L.J 530; Pramil @ Parmanand Gajanan Rao v State

of Goa, 2006(2) Bom, C.R.434; Vijay Kumar @ Bhushan v. State

and State Delhi Administration vs. Vijay @ Bhushan, 2007(1) JCC

16; Dharam Singh vs. State, 2007(4) JCC 3068; Dharambir vs. State

of Haryana, 2008(4) JCC Narcotics 197 and Anil Kumar Goswami

vs. State (NCT of Delhi), 2012(1) JCC 47.

7. Rebutting the submissions of learned counsel for the

appellants, it was submitted by learned Additional Public Prosecutor

for the State that the impugned order does not suffer from any

infirmity which calls for interference. The accused persons have

admitted their presence in the house of the complainant. The

suggestion given to the complainant and her husband is contrary to

the case set up by accused in their statements recorded under Section

313 Cr.P.C. On the other hand, there is no reason to disbelieve the

testimony of PW-1 and PW-3 which on material points goes

unrebutted. As regards omission to mention name of accused in the

MLC, it was submitted that the accused were taken to hospital by

PCR van and, therefore, since their names were not known to them,

as such in the MLC it was shown `unknown'. FIR was registered later

on. The recovery of country made revolver and the cartridges stands

proved and testimony of PW-3 in this regard goes unchallenged. The

FSL report further proves the case of prosecution, as such it was

submitted that the appeal is devoid of merit and is liable to be

dismissed.

8. I have given my anxious thoughts to the respective submissions

of learned counsel for the parties and have perused the record.

9. In order to substantiate its case, Prosecution has basically relied

upon the testimony of PW-1 Savita Bhola and PW-3 Gagan Bhola.

Savita Bhola has unfolded that on 27.11.2004, at about 8 p.m, she

was present in her house along her two children, namely, Mahima,

aged about six years and son Yash, aged about two years. The door

bell rang. She thought her husband had come and asked her daughter

Mahima to open the door. Mahima opened the door. Savita also

reached there and saw a person outside the door. That person was the

same person who had come 7-8 days back to repair the water tap but

at that time she did not open the door. He told her that he had come

to repair the water tap but she asked him to leave the place.

Meanwhile, two associates joined him and they pushed her inside the

house and all the three entered her house. One of them caught hold of

her daughter while remaining two intruders started beating her and

they put their hands into her mouth in order to stop her raising alarm.

Meanwhile, she noticed that the third person who caught hold of her

daughter was pressing her mouth. She requested the third person to

release her daughter, by giving signal to him without speaking any

word and that she would not raise alarm. One of the assailants took

her in the middle room and asked her to open the almirah. Due to

fear, she opened the almirah. One assailant continued to cover her

while the second who was with her took out all the ornaments

including three gold chains, five gold rings, two pairs of gold ear

rings, two gold heavy lockets from the almirah and also demanded

cash from her. She told that there is no cash in the house, on which

one of them took out a pistol and loaded the same with a cartridge and

put the pistol into her mouth. She repeated her request that she had

no cash in the house. Thereafter they confined her and her children in

the bathroom of the house. She also bolted the bathroom from inside.

Thereafter, she heard the cries of her husband Gagan Bhola. After

about 10-15 minutes, her husband opened the door of the bathroom

from outside and she also unbolted the bath room from inside. Her

husband informed her that the intruders have been over powered by

the public persons. She came down along with her husband and saw

a crowd of public persons and the two intruders were over powered

by them. She identified accused Rajesh to be the person who had

rung the bell of the door and entered the house along with co-accused

Pankaj. She further deposed that she can also identify the third

associate of the accused persons, if shown to her. Accused was

armed with knife at the time of the incident and he put his fingers in

her mouth to stop her from raising alarm while co-accused Pankaj had

caught hold of her daughter Mahima. The third associate had taken

the ornaments from the almirah.

10. She further deposed that pistol which was used by the accused

persons was recovered. Police arrived and took them to L.B.S.

hospital where they were medically examined. In the hospital, her

statement Ex.PW1/A was recorded by the police which bears her

signature at point A. Accused were also admitted in the same

hospital and were medically examined. In the hospital, one piece of

jhumka and one gold pendent was recovered from the accused

persons which were seized vide memo Ex.PW1/D. The katta and

cartridges were recovered which were also seized vide recovery

memo Ex.PW1/E. Sketch of the same Ex.PW1/B was also prepared.

Both the accused were arrested vide arrest memo Ex.PW1/H and

Ex.PW1/J. Police had prepared the site plan of the place of incident.

They had seized one sweater and one knife also which was produced

by her husband. In cross-examination she admitted that accused

Rajesh was known to her prior to the incident. She, however could

not say if he was working at the shop for 5-6 months. She denied the

suggestion that he worked at the shop for about 5-6 months and his

money was due towards her husband or that on the day of the

incident, he had come to the house for demanding money or that a

quarrel had taken place between her husband and the accused persons

or that they raised alarm `chor-chor' and got the accused persons

apprehended by the public and beaten up.

11. PW-3 Gagan Bhola has deposed that he was running the

business of interior decorator at his shop at house No.63, Pandav

Nagar. On 27.11.2004, he had to go to attend a wedding along with

his family. So after closing the shop at 8.20 p.m, he reached the

house which was situated at 3rd floor. When he pushed the call-back

button, he found one person inside the house. An iron mesh gate was

also fixed on the main door of the house. That person open the

wooden door. He enquired from him as to why he was present in the

house. He replied that he was an electrician. On suspicion, he tried to

bolt the door from outside but in the meantime two other persons

came there and tried to pull him inside the house. He raised hue and

cry. Those three persons started running out of the house. He caught

hold of one person by his sweater but he managed to wriggle out of

the sweater and ran away. He followed them downstairs and raised

alarm. On hearing this, some boys who had come to visit the nearby

gym caught hold of the accused persons and public persons gave

beatings to them. He went upstairs and found his wife and two

children locked up in the toilet by the assailants. He opened the door

and brought them out. He along with his wife came downstairs to the

place where public persons were giving beatings to the accused

persons with kick and fist blows. His wife informed him that accused

persons were the same who committed robbery in her house on which

he conducted search of the accused persons. On search of accused

Pankaj Gupta, one loaded country made pistol was recovered and four

live cartridges were recovered from accused Rajesh. Accused Rajesh

Gupta had worked as a plumber prior to 1-1/2 months of the incident.

In the meantime, PCR reached the spot and took the accused persons

to hospital as they had received injuries due to beatings given by

public persons. He and his wife had also received injuries. As such,

they were also taken to L.B.S. hospital by police. He handed over the

country made pistol and five cartridges to the Investigating Officer of

the case in the hospital. I.O. recorded the statement of his wife and

seized the pistol, vide seizure memo Ex.PW1/E. The accused persons

were also given treatment in the hospital. Their search was

conducted. One silver jhumka and gold pendent was recovered from

their person which was identified by his wife as belonging to her.

From the hospital, he along with his wife and police came back to his

house. One kitchen knife and one muffler was lying in the room of

the house while the sweater was lying on the second floor near the

stair-case. He handed over the same to the I.O of the case who took

the same in possession vide memo Ex.PW3/A. Crime team reached

the spot and inspected the scene of occurrence and developed chance

prints. Thereafter he along with his wife went to police station.

Accused persons were arrested vide Ex. PW1/H and Ex.PW1/J and

their personal search was conducted vide Ex.PW1/F and G. This

witness also denied in cross examination that accused Rajesh was

employed by him or that he worked as an employee for six months or

that a sum of Rs.6,000/- towards his salary was still payable by him.

He went on stating that since accused Rajesh was not employed by

him, therefore, the question of outstanding salary did not arise. He

further denied the suggestion that accused Rajesh had come to his

house along with his friend Pankaj for demanding his dues of

Rs.6,000/- or that he did not pay the same, as such, a quarrel had

taken place between them.

12. A perusal of statement of both the accused recorded u/s 313

Cr.P.C goes to show that the plea taken by accused Pankaj was that

he had gone along with his co-accused to demand money from the

complainant as he worked with the complainant at his shop and

amount of salary was to be taken from him. A quarrel had taken

place between them and PW-3 Gagan Bhola raised alarm `chor-chor'

and got them apprehended by the public who gave beatings to them.

It was further pleaded that the pistol, cartridges, silver ear-ring and

gold pendant had been planted upon them. Accused Rajesh in his

statement u/s 313 Cr.P.C had taken the plea that he had accompanied

his co-accused to the house of the complainant as his co-accused had

gone to demand money from the complainant as he had worked at his

shop. Thereupon instead of paying money, a quarrel took place and

Gagan Bhola raised alarm `chor-chor'. Public apprehended them and

gave beatings to them. Under the circumstances, the suggestion given

to the prosecution witnesses and the stand taken by the accused

persons makes it clear that contradictory stand has been taken by

accused. It was suggested to PW-1 and PW-3 that Rajesh used to

work at the shop of Gagan Bhola and a sum of Rs.6,000/- was due for

which he had gone to the house of the complainant to demand the

money whereas in their statement recorded u/s 313 Cr.P.C, no such

plea has been taken by accused Rajesh that he had worked at the shop

of Gagan Bhola. In fact now the stand taken was that accused Pankaj

was working at the shop of Gagan Bhola and his salary was due.

Therefore, Pankaj had gone along with Rajesh to the house of the

complainant where the quarrel ensued. No evidence has been led by

the accused persons in order to prove as to who was working at the

shop of Gagan Bhola and whether any amount was due to him or not.

That being so, the suggestion given to the prosecution witnesses

which was denied by them was not even carried forward by the

accused persons in their statement u/s 313 Cr.P.C.

13. However, the suggestions given to the prosecution witnesses

and statement of accused under Section 313 Cr.P.C makes it clear that

the accused are not disputing their presence in the house of

complainant. They are also not disputing regarding beatings given to

them by public. In this background, since the presence of the accused

persons in the house of complainant is undisputed, the entire incident

has to be considered. Learned counsel for the appellant had placed

reliance on Raju alias Balachandran & Ors v. State of Tamil Nadu,

AIR 2013 SCC 983, for submitting that PW1 and PW3 are interested

witnesses. There is no independent witness hence no reliance can be

placed on their testimony. In this case, it was observed that the

evidence of a related or interested witness should be meticulously and

carefully examined. In a case where the related witness may have an

enmity with the assailant, the bar would need to be raised and the

evidence of the witness would have to be examined by applying the

standard of discerning scrutiny. However, this is only a rule of

prudence and not one of law. Though the prosecution case rests on

the testimony of Savita and her husband Gagan and there is no other

independent witness but that itself is not sufficient to cast any doubt

on their testimony keeping in view the fact that the accused persons

have failed to show that there was any enmity between them and the

complainant/her husband. Once it is not proved as to for what

purpose the accused persons had gone to the house of the

complainant, there is no reason to disbelieve the testimony of Savita

who had given a detailed account of the entire incident by explaining

the role of each and every accused with minute details. Despite cross

examination, nothing could be elicited to discredit her testimony.

Furthermore, according to Gagan Bhola, on search of the accused

persons a loaded country made pistol and four cartridges were

recovered from the accused persons. His testimony in this regard

goes absolutely unchallenged and unshattered as he was not cross

examined in regard to this recovery at all. In fact, except for giving a

bare suggestion that no such incident had taken place, his entire

testimony regarding the incident has not been assailed in cross

examination.

14. It further stands proved that the accused persons were taken to

L.B.S. hospital where their search was taken by the Duty Constable

and one silver jhumka and one pendent was recovered from the search

of both the accused persons which were duly identified by the

complainant and the same were seized. There is no plausible reason

as to why the complainant or her husband would get the jhumka and

the pendent planted upon the accused persons since recovery is not a

sine qua non for proving the offence of robbery.

15. Much emphasis was led by learned counsel for the appellants

for submitting that the Constable who had taken the accused persons

to hospital was not examined by prosecution and reliance was placed

on Parkha Ram Suri (supra) and Pramil(supra). Section 134 of the

Indian Evidence Act provides that no particular number of witnesses

are required for proof of any fact. It is trite law that it is not the

number of witnesses but it is the quality of evidence which is required

to be taken note of for ascertaining the truth of the allegations made

against the accused. In Thakaji Hiraji vs. Thakore Kubersing

Chamansing (2001) 6 SCC 145, it was observed as follows:-

"It is true that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the

prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case. On the other hand if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non- examination of such other witnesses may not be material. In such a case the court ought to scrutinise the worth of the evidence adduced. The court of facts must ask itself -- whether in the facts and circumstances of the case, it was necessary to examine such other witness, and if so, whether such witness was available to be examined and yet was being withheld from the court. If the answer be positive then only a question of drawing an adverse inference may arise. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses."

16. Surinder Narain @ Munna Pandey vs. State of U.P, AIR

1998 SC 192 was also a case where murder took place while deceased

was travelling in rickshaw. Non- examination of rickshaw puller was

held not to be fatal by observing that evidence has to be weighed and

not counted.

17. I have carefully gone through both the judgments relied upon

by learned counsel for the appellants. Same has no application to the

facts of the case in hand inasmuch as in Parkha Ram Suri(supra)

there was a dispute between the husband and his family members on

one side and the members of wife's family regarding the character of

the wife. The matter reached the community Panchayat. Panchayat

decided to hold Jal Pariksha by erecting two bamboos on the banks of

river Yamuna at the cost of mother of the wife and brother of the

wife. Bamboos were fixed. Her husband Mohan Lal and his wife's

brother Lalit were asked to enter the water and hold on to the

bamboos which were firmly held by two other persons. Two

swimmers were also kept ready inside the water. However, none of

the two came out even after a considerable time and got drowned and

their dead bodies were retrieved after about four days. Mohan Lal's

father and elder brother along with members of the Panchayat were

prosecuted for offence u/s 304 and 384 read with Section 34 IPC for

causing death of the deceased. According to the prosecution version,

two persons, namely Hari and Sardari held the bamboos with the

support of which deceased Lalit and Mohan sat inside the water.

However, those persons were neither interrogated nor cited as a

witness. It was observed that they were the most crucial witnesses for

the prosecution to depose what exactly happened before or after the

deceased entered the water. As such an adverse inference had to be

drawn against the prosecution for their non-examination. Similarly in

Pramil (supra), for non-examination of material witness, an adverse

inference was drawn. It was case based on circumstantial evidence.

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

Constable who had taken the accused persons to hospital was not an

eye witness of the incident. He merely removed the accused to

hospital. That being so, his non-examination is not fatal.

18. Similarly, as regards the omission to mention the name of the

accused persons in the MLC, it is a matter of record that the accused

persons were taken to hospital by PCR van and as per the MLC, the

accused persons were unconscious/semi-unconscious and the police

officials were not aware of their names. That being so, the MLC was

prepared as `unknown'. The FIR was recorded subsequently when the

complainant reached the hospital. Therefore, no significance can be

attached to non-mention of names of accused in MLC.

19. The plea that the country made pistol and cartridges were

planted upon the accused by Gagan Bhola, does not inspire

confidence inasmuch as it has come in his deposition that when he

took search of accused, then the loaded country made pistol was

recovered from accused Pankaj while four cartridges were recovered

from accused Rajesh. His testimony was not assailed in cross-

examination. That being so, it does not appeal to reason as to why

and how Gagan Bhola would hand over the country made pistol or the

cartridges to the police officials in order to plant the same upon the

accused persons with whom no enmity could be proved. The country

made pistol and cartridges were sent to CFSL which confirmed that

they were arms and ammunitions within the definition of Arms Act.

The sanction u/s 39 Arms Act for the prosecution of the accused for

the possession of the said arms was also accorded by PW-13 Sh. Ajay

Chaudhary DCP.

20. The other authorities relied upon by learned counsel for the

appellant has no application to the facts of the case in hand inasmuch

as same pertains to circumstantial evidence where it is incumbent

upon the prosecution to prove all the links in the chain whereas the

present case is based on direct evidence in the form of testimony of

Savita and Gagan Bhola and as discussed above, on material points,

testimony of both the witnesses goes unrebutted. Savita has also

given a clear, vivid and cogent picture of the entire incident with

specific role of each and every accused.

21. The nut shell of the aforesaid discussion is that the prosecution

had succeeded in establishing its case and the impugned order does

not suffer from any infirmity which calls for interference.

22. Even as regards the quantum of sentence, although learned

counsel for the appellant prayed for a lenient view by submitting that

accused Rajesh has remained in jail for 5 years while Pankaj

remained in jail for 3-½ years when he was released on bail by

Hon'ble Supreme Court, however, the accused persons have been

convicted for offence u/s 397 IPC besides other offences. Section

397 IPC mandates that "the imprisonment shall not be less than seven

years". That being so, the sentence, even otherwise, cannot be

reduced.

23. Under the circumstances, there is no merit in both the appeals.

The same are accordingly dismissed. Copy of this order along with

Trial Court record be sent back.

SUNITA GUPTA (JUDGE) SEPTEMBER 11, 2013 as