Chandan @ Babar vs The State (Nct Of Delhi)
2014 Latest Caselaw 2047 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 16th APRIL, 2014
                                DECIDED ON : 24th APRIL, 2014

+                        CRL.A. 974/2011
       CHANDAN @ BABAR                                  ..... Appellant
                   Through :         Mr.Adit S.Pujari, Advocate for
                                     Mr.Siddharth Aggarwal, Advocate.

                         versus

       THE STATE (NCT OF DELHI)               ..... Respondent
                     Through : Mr.Lovkesh Sawhney, APP.


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

S.P.GARG, J.

1. Chandan @ Babar impugns conviction in Sessions Case

No.39/2008 arising out of FIR No.64/2008 registered at Police Station

Bara Hindu Rao by which he was held guilty for committing offences

punishable under Section 120-B/392/397 IPC and sentenced to undergo

RI for seven years.

2. Briefly stated, the prosecution case as projected in the

charge-sheet was that on 13.06.2008 at about 05.00 A.M. opposite shop

No.T-736, Tyre Market, Azad Market, DCM Road in pursuance of

criminal conspiracy, Chandan @ Babar and his associates - Mukesh @

Mukka, Karan Singh @ Deva and Mohd.Wasim robbed ` 2,500/-, visiting

cards and mobile phone no.9212421161 from the complainant - Manoj

Kumar. They also robbed ` 3,500/-, railway tickets from Deepak Sharma

(PW-1). They were armed with knives at the time of committing robbery

and used deadly weapons to deprive the complainant - Manoj Kumar and

Deepak of their valuable articles. During the course of investigation,

statements of witnesses conversant with facts were recorded. The accused

persons were arrested. The Investigating Officer moved applications for

conducting Test Identification Parade. The accused declined to participate

in the TIP. Robbed articles were recovered at the instance of the accused.

After completion of investigation a charge-sheet was submitted against

them in the Court. They were duly charged and brought to trial. The

prosecution examined 26 witnesses. In their statement under Section 313

Cr.P.C. the accused pleaded false implication. On appreciating the

evidence and considering the rival submissions of the parties, the Trial

court, by the impugned judgment convicted the appellant - Chandan @

Babar and his associates Mukesh @ Mukka and Karan Singh @ Deva.

Mohd. Wasim was acquitted of all the charges. Being aggrieved, the

appellant has preferred the appeal.

3. Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its true and proper perspective. The

accused were shown to the prosecution witnesses. In the police station,

their sketches were prepared and photographs were shown to witnesses.

The accused were justified to decline participation in Test Identification

Parade. The witnesses gave inconsistent version as to which of the

accused used knife to rob them. The TSR was found abandoned. PW-12

(Mukesh Chand Sharma) turned hostile and did not support the

prosecution. The robbed articles were not recovered in the presence of the

complainant and Deepak. There was no specific mark of identification on

the recovered currency notes. Allegations against the appellant were that

he sat with the driver of the TSR in which the victims were travelling. He

did not attempt to rob the victims. He was arrested in some other case and

was falsely implicated in the instant case. Learned APP for the State

urged that the accused was identified by the complainant and PW-1

(Deepak Sharma) in the court. They had no animosity to implicate the

accused falsely in the case.

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

examined the record. It is pertinent to note that co-convict Karan Singh @

Deva had preferred Crl.A.No. 411/2011 which was disposed of vide order

dated 07.03.2013 by this Court. Conviction of the appellant - Karan Singh

@ Deva under Sections 392/120-B IPC was sustained. Sentence order was

modified and substantive sentence was reduced to five years. Other

sentences were left undisturbed. The appellant's case stands on similar

footings. The reasons for conviction in the said appeal are equally and

fully applicable in the present appeal. At the outset, it may be mentioned

that the learned counsel for the appellant did not challenge the incident of

robbery. His only plea is that appellant was not one of the perpetrators of

the crime. PW-1 (Deepak Sharma) and PW-4 (Manoj Kumar) had no

animosity to implicate the accused in the incident of robbery in which

they were deprived of valuable articles including cash when they were

travelling in TSR No.DL 1 RE 9747 from Old Delhi Railway Station to

Anand Parbat. Police machinery came to motion when DD No.8/B

(Ex.PW15/A) was recorded at Police Station Bara Hindu Rao at 05.27

hours on getting information that three boys travelling in TSR No.DL 1RF

1454 committed robbery of cash and valuable articles. In his statement

(Ex.PW-4/A) the complainant - Manoj Kumar gave vivid description of

the occurrence. He also disclosed broad features of the assailants. The

complainant had no acquaintance with the assailants to falsely rope them

in the incident. First Information Report was lodged at 06.30 A.M. vide

rukka (Ex.PW23/A). There was no delay in lodging the First Information

Report and it ruled out the possibility of any false fabrication.

5. During investigation, Chandan @ Babar was arrested in case

FIR No.239/2008 registered at Police Station Mandavali and was lodged

in Tihar Jail No.8. The Investigating Officer moved an application for

issuance of production warrants. He was interrogated and his disclosure

statement (Ex.PW9/B) was recorded. The application was moved for

conducting TIP. PW-26 (Ashish Aggarwal, Metropolitan Magistrate)

conducted Test Identification Proceedings on 17.07.2008 in which the

accused declined to participate. An adverse inference is to be drawn

against the accused for not participating in the TIP proceedings. PW-4

(Manoj Kumar) in his deposition before the court recognized and

identified Chandan @ Babar without hesitation to be amongst the

assailants. He was categorical in his identification and stated that the

appellant was the assailant who sat with a knife on their TSR driver's seat.

In the cross-examination, he further stated that after the accused refused to

participate in TIP proceedings, he identified him in the police station Bara

Hindu Rao. PW-1 (Deepak Sharma) was also certain that the accused -

Chandan @ Babar present in the court was one of the assailants. These

independent public witnesses had no prior ill-will against the accused to

falsely implicate him and to let the real culprits go scot free. The police

witnesses also testified that some robbed articles were recovered at the

instance of the accused and were identified by PW-1 and PW-4 in their

deposition in the court. Acquittal of co-accused Wasim is of no benefit to

the appellant. Co-accused Wasim was TSR driver and did not come down

from the TSR. Consequently, PW-1 and PW-4 had no direct

confrontation with him. Wasim was given benefit of doubt as PW-1 and

PW-4 were unable to recognize and identify him as one of the assailants.

The photographs of the culprits were shown to the prosecution witnesses

in the Police Station to ascertain and find out real the assailants. The

accused was not in picture at that time. It is not on record that any

photograph of the accused was shown to PW-1 and PW-4 before moving

application for TIP. The complainant had given the description of the

assailants and had claimed to identify them. Identification of the accused

in the court by PW-1 and PW-4 is crucial and cannot be discarded. Merely

because PW-12 (Mukesh Chand Sharma) did not identify the assailants in

the court, otherwise cogent and reliable deposition of independent

witnesses PW-1 and PW-4 cannot be discredited. The accused did not

give plausible explanation to the incriminating circumstances proved

against them. The findings of the Trial Court that the accused was one of

the assailants in committing the robbery are based upon fair appraisal of

the evidence and need no interference.

6. The accused was convicted with the aid of Section 397 IPC

whereby he allegedly used 'deadly' weapon at the time of committing

robbery. The evidence of the prosecution on this aspect is deficient. PW-

1 and PW-4 were not certain if knife was used by the appellant at the time

of committing robbery. No knife was recovered from the accused or at his

instance in the presence of the witnesses. In their deposition before the

court, the knife allegedly recovered in other case was not shown to them

to ascertain that if was the same knife used by the accused for committing

robbery. The prosecution witnesses did not give any detail particulars i.e.

size, dimension etc. of the knife to establish that it was a 'deadly' weapon.

No injuries were inflicted with any weapon to the victims. Conviction of

the appellant with the aid of Section 397 cannot be sustained and he

deserves benefit of doubt on that score.

7. In the light of the above discussion, conviction of the

appellant under Section 392/120-B IPC is maintained. Order on sentence

is modified and the substantive sentence awarded to the appellant to

undergo RI for seven years under Section 392 read with Section 397 IPC

is reduced to Rigorous Imprisonment for five years. Other sentences are

left undisturbed.

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

the order be sent to the appellant through Superintendent, Tihar Jail.

9. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE APRIL 24, 2014 / tr