Rahul Jain @ Sonu vs The State (Govt. Of Nct), Delhi
2014 Latest Caselaw 1781 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : 11th MARCH, 2014
                                   DECIDED ON : 2nd APRIL, 2014

+                         CRL.A. 133/2014

       RAHUL JAIN @ SONU                                ..... Appellant
                          Through :   Ms.Alpana Pandey, 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. Challenge in this appeal is to a judgment dated 09.03.2011

of learned Addl. Sessions Judge in Sessions Case No. 1030/09 arising out

of FIR No. 336/2008 PS Keshav Puram by which the appellant - Rahul

Jain @ Sonu along with his associates Sanjay Yadav and Rattan @

Mintoo was convicted under Sections 392/397 IPC. By an order on

sentence dated 19.03.2011, he was awarded RI for seven years with fine `

5,000/- under Section 392 IPC read with Section 397 IPC.

2. The prosecution case as projected in the charge-sheet was

that on 17.12.2008 at about 11.15 P.M. opposite Gali No. 125, Shanti

Nagar, near Road No.37, Delhi, the appellant along with his associates

Sanjay Yadav and Rattan @ Mintoo robbed complainant - Umesh Chand

Vashisht and deprived him of cash ` 15,000/-, five or six credit cards,

mobile phone make Nokia-6610, two diaries and a bag containing clothes

and documents at knife point. First Information Report was lodged on the

complainant's statement (Ex.PW-2/A) at Police Post Shanti Nagar, PS

Keshav Puram. In the complaint, Umesh Chand Vashisht gave detailed

account of the occurrence and disclosed how and under what

circumstances, he was robbed of his valuable articles at knife point by two

assailants and claimed to identify them. Efforts were made to find out the

culprits but in vain. On 19.12.2008, the appellant and his associates were

arrested in case FIR No. 312/08 under Sections 392/395/412/34 IPC PS

Vikaspuri by Special Staff (West district) and recoveries were effected

from their possession. Pursuant to their disclosure statements, robbed

articles were recovered. Intimation was given to the Investigating Officer

of this case who moved application for holding Test Identification

Proceedings. The accused and his associates declined to participate in the

Test Identification Proceedings. Statements of the witnesses conversant

with the facts were recorded. After completion of investigation, a charge-

sheet was filed against the accused persons; they were duly charged and

brought to trial. The prosecution examined ten witnesses to substantiate

the charges. In 313 statement, the appellant pleaded false implication and

denied his complicity in the crime, claiming that he was lifted from Jaipur

Golden Hospital. After appreciating the evidence and considering the rival

contentions of the parties, the Trial Court, by the impugned judgment held

the appellant and his associates guilty for the offences mentioned

previously. Being aggrieved and dissatisfied, the appellant has preferred

the appeal. It is unclear if Sanjay Yadav and Rattan @ Mintoo have

challenged the conviction. It appears that they have served the sentence

awarded to them.

3. I have heard the learned counsel for the parties and have

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

appreciate the evidence in its true and proper perspective and fell into

grave error in relying upon the statement of the complainant without

independent corroboration. The delay in lodging the FIR remained un-

explained. No information was conveyed to PCR about the incident.

Initially, the complainant had stated that there were two assailants.

However, subsequently, he changed the version and stated that the

assailants were three in number. The prosecution was unable to establish

beyond doubt that the credit cards were used by the appellant or any

purchases were made out of it. PW-4 (Mohit) could not explain as to how

and under what circumstances, he put his signatures on Ex.PW-4/A to

Ex.PW-4/C on 15.02.2009. The photographs of the appellant were taken

and shown to the complainant and he was justified to decline to participate

in the Test Identification Proceedings. No weapon was recovered from his

possession and no injury was caused to the complainant. Addl. Public

Prosecutor urged that the judgment of the Trial Court is based upon

minute evaluation of the evidence and no interference is called for.

4. The appellant along with his associates was arrested by

Special Staff (West district) on 19.12.2008. PW-9 (SI Manoj Kumar)

deposed that on the basis of secret information, in case FIR No. 312/08 PS

Vikaspuri at about 12.00 (noon), they apprehended Rahul Jain @ Sonu,

Rajesh @ Vijay, Rattan, Juned Qureshi and Ravi Kant Rekhi when they

were travelling in a robbed i10 car bearing No. DL 3C-ND-6075. Various

weapons were recovered from their possession. A dagger was recovered

from the left side dub of the accused Rahul. On 20.12.2008 pursuant to the

disclosure statements, some credit cards and some smart cards were

recovered and taken into possession vide memo Ex.PW-9/H under Section

102 Cr.P.C. The co-accused Rattan recovered clothes purchased by them

using the robbed credit cards and were seized vide seizure memo (Ex.PW-

9/J). Invoices (Ex.PW-4/A to Ex.PW-4/C) and the receipts of the

shopping (Ex.PW-4/D, Ex.PW-4/E, Ex.PW-5/A and Ex.PW-5/B) were

collected. Mobile phone was seized by ASI Dharamvir of PS Vikaspuri

vide memo mark X1. Intimation was given to PS Keshav Puram on

20.12.2008 when their involvement in said case emerged. Apparently, the

police of PS Keshav Puram had nothing to do with the apprehension and

recovery effected at the instance of the appellant and his associates.

Crucial testimony is that of PW-2 (Umesh Chand Vashisht), the

complainant, a Professor, Lucknow University Campus who had visited

Delhi to attend a meeting in the Ministry of Human Resources on

17.12.2008. When, after attending the meeting, in the evening, he was

going to Deepankar Sharma's residence at Tri Nagar by DTC bus No.816,

he got down at Inderlok Metro Bus Stand and walked on foot towards

Shanti Nagar. When he crossed the 'nala' and entered gali No.125 at

around 11.15 P.M., he was surrounded by three individuals and they

caught hold of him. He was shown a pronged knife and was criminally

intimidated. He became frightened. The assailants took ` 15,000/- in cash,

ten credit cards / I-cards, bag, two diaries, mobile phone make Nokia No.

9415521737 and his clothes, sweater, etc. He deposed that he begged the

assailants to at least give him the important papers of MHRD and

University but they did not agree. They fled the spot. He went to his

relative's residence. Thereafter, they reported the matter to the police of

Police Post Shanti Nagar where his statement (Ex.PW-2/A) was recorded.

He identified appellant to be the assailants who had threatened him with a

knife. He also deposed that he was called at Rohini Courts where he

participated in the Test Identification Proceedings and identified the case

property recovered. He also identified six cards collectively exhibited

(Ex.P1 & Ex.P2), mobile phone (Ex.P3), bag (Ex.P4). He was fair enough

to state that the clothes produced were not robbed from his possession. It

was informed by learned Addl. Public Prosecutor that these articles were

purchased by the accused persons using the stolen / robbed credit cards /

debit cards. In the cross-examination, the witness fairly admitted that

initially he had given the number of the assailants as two. However, on

20.12.2008, he returned to Delhi and informed the police that the number

of the assailants was three and he was unable to give the correct number

as he was perplexed and under fear. He further admitted that due to fear

and being night time, he could not properly see the said boys at the time of

incident. He denied the suggestion that at Tagore Garden the accused

persons were shown to him. Despite lengthy and searching cross-

examination, no material discrepancy emerged to disbelieve the

complainant who had no prior animosity with any of the accused persons

to falsely implicate them. This witness had come to attend the meeting in

connection with official work and had no acquaintance with any of the

accused persons to falsely rope them in this case and recognise the

appellant as one of the assailants. He had direct confrontation with the

appellant and had reasonable and sufficient opportunity to see him and to

observe his broad features. In the statement (Ex.PW-2/A), he had

categorically stated that he would be able to identify the assailants. In

Court statement, he identified appellant without hesitation as one of the

assailants and attributed specific role to him that he was armed with a

knife and had threatened him. Adverse inference is to be drawn against

the appellant for declining to participate in the Test Identification

Proceedings. Nothing has come on record as to on which particular and

specific date the appellant was shown and his photographs were taken.

Complainant categorically denied if he visited Tagore Garden office. In

the statement recorded by the learned Magistrate in Test Identification

Proceedings, the plea of the accused was that his photographs were taken.

He did not claim that he was shown to the complainant.

5. Recovery of the robbed articles from his possession or at his

instance is an additional relevant incriminating circumstance to connect

him with the crime. PW-4 (Mohit) identified the appellant as one who

with his associates had visited his showroom on 18.12.2008 and had

purchased garments of total amount of ` 10,695/- vide invoices / bills

Ex.PW-4/A to Ex.PW-4/C. The credit card slips are Ex.PW-4/D and

Ex.PW-4/E. He further stated that the credit cards were in the name of one

Umesh Vashisht i.e. the complainant. Similarly, PW-5 (Vinay) supported

the prosecution and stated that on 18.12.2008, three boys had purchased

two sweaters, one pair of socks and three pair of shoes through credit card

for a total sum of ` 14,253/- at his showroom. The credit card was in the

name of Umesh Vashisht. He issued bill no. 1919 dated 18.12.2008. The

relevant cash memos and merchant copies are Ex.PW-5/A and Ex.PW-

5/B. Both these independent witnesses had no ulterior consideration to

falsely show purchase of these articles by the appellant and his associates.

These purchases were made soon after the occurrence before the

complainant could block the credit cards. The police did not expect to

plant all these articles of substantial value of their own.

6. Minor contradictions, discrepancies and improvements

highlighted by the appellant's counsel do not affect the basic structure of

the prosecution case. The complainant was categorical to identify the

appellant as one of the assailants who had robbed him at knife point.

Inconsistency in the number of assailants given by the complainant at the

first instance was inconsequential. There was no inordinate delay in

lodging the First Information Report as the occurrence had taken place at

around 11.15 P.M. After the incident, the complainant went to his

relative's residence and thereafter approached the police of Police Post

Shanti Nagar to lodge the report. The FIR was lodged at 10.45 A.M. next

date on 18.12.2008. Since the occurrence had taken place at midnight

during winter days and the complainant was deprived of his mobile phone,

no adverse inference can be drawn for omission to inform PCR at 100.

7. To attract Section 397 IPC, causing of injury is not a

condition precedent. Only 'use' of a deadly weapon is sufficient.

Moreover, at the time of his arrest in case FIR No. 312/08, a dagger is

alleged to have been recovered from the possession of the appellant. All

the relevant contentions of the appellant have been dealt with minutely

and dispelled with reasons. The findings are based upon proper

appreciation of the evidence and need no interference. The accused did

not give plausible explanation to the incriminating circumstance proved

against him. He did not produce any evidence to show when and under

what circumstances, he had gone to Jaipur Golden Hospital and when and

from where he was lifted by the police. He did not examine any family

member / doctor to substantiate his defence. The findings on conviction

under Section 392 IPC read with Section 397 IPC are affirmed.

8. Turning to the alternative plea to modify the sentence order,

minimum sentence prescribed under Section 397 IPC is seven years which

cannot be altered or modified. The sentence order is maintained except

that the fine amount will be ` 1,000/- and default sentence for its non-

payment would be 10 days. Other terms and conditions of the sentence

order are left undisturbed.

9. The appeal stands disposed of in the above terms. Trial Court

record be sent back immediately.

(S.P.GARG) JUDGE APRIL 02, 2014/tr