Govind @ Bharat vs State Nct Of Delhi
2014 Latest Caselaw 2092 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                               Reserved on: 25.04.2014
                                                           Date of Decision: 28.04.2014
+       CRL.A. 839/2013
        GOVIND @ BHARAT                                                 ..... Appellant
                        Through:                 Mr N.K. Chahar, Adv.
                                    versus

        STATE NCT OF DELHI                                         ..... Respondent
                       Through:                  Mr Feroz Khan Ghazi, APP
+       CRL.A. 956/2013
        SANDEEP @ SANJEEV
                                                                             ..... Appellant
                       Through:                  Mr. Rajesh Kumar, Adv.
                       versus
        STATE NCT OF DELHI
                                                                        ..... Respondent
                                    Through:     Mr Feroz Khan Ghazi, APP
+       CRL.A. 960/2013
        SUNNY
                                                                         ..... Appellant
                                    Through:     Mr. Pradeep Chaudhary and Mr. Vineet
                                                 Jain, Advs.
                       versus
        STATE (GNCT OF DLEHI)
                                                                        ..... Respondent
                                    Through:     Mr Feroz Khan Ghazi, APP

CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

                                               JUDGEMENT

V.K. JAIN, J.

On 02.10.2009, Head Constable - Rajesh Kumar (PW2) was on patrol with

other police officials in the area of S.P. Badli at BG Block. When they reached at

BG Block, near MCD toilet at about 7.45 pm, they saw a person coming running

and shouting pakro pakro. Four boys were running ahead of the aforesaid person.

The aforesaid four persons were apprehended by the police officials. The

statement of the person who was chasing them namely - Ravinder Shah was

recorded by Head Constable - Azad Prakash. In his statement, the complainant -

Ravinder Shah alleged that on that day at about 7.30 pm when he was going to

market to purchase household articles and reached near Harit Transport, BG Block

Road, four boys all of a sudden came in front of him, stopped him and asked him

to take out whatever he had. When he declined, two of them took out daggers; one

dagger was put on his abdomen whereas the other dagger was put on his neck and

the remaining two boys gave beatings to him and Rs.1200/- in cash besides his

mobile phone make Nokia having connection number 9990759493. One of the

boys carrying dagger with him also removed the watch which he was wearing on

his wrist. The aforesaid boys started running away after threatening him. When he

raised alarm, the police officials coming from the opposite direction apprehended

those boys whose names were later came to be known as Sunil @ Bittu, Sunny,

Govind & Sandeep. Those boys were searched and mobile phone of the

complainant was recovered from the pocket of the shirt of Sunny, whereas the

cash was recovered from the pocket of Sandeep. The wrist watch of the

complainant was recovered from the pocket of Govind. One dagger each was also

recovered from Govind and Sunil @ Bittu. One of the accused being a juvenile,

three (3) of them were prosecuted.

2. All the appellants were charged under Section 392 of IPC. The appellant -

Govind was additionally charged under Section 397 of IPC since he had used a

dagger at the time of committing robbery. The appellants having pleaded not

guilty, as many as 7 witnesses were examined by the prosecution. No witness was

examined in defence.

3. The complainant - Ravinder Shah came in the witness box as PW1 and

inter alia stated that on 02.10.2009 when he was going to market to bring

household articles and when he reached near Harit Transport, BG Block Road,

four boys all of a sudden came in front of him blocked his way and asked him to

give to them whatever he was carrying. According to the witness, it was dark at

that time. When he refused to give his belongings to them, two of the boys took

out daggers from their underarm. One of them put a dagger on his abdomen

whereas the other one put a dagger on his neck and the other two boys gave

beatings to him and snatched his cash amounting to Rs.1200/- as well as his

mobile phone make - Nokia having connection number 9990759493. One of the

boys who had put a dagger on his abdomen, removed his watch from the wrist and

thereafter all the boys started running towards other side. When he raised alarm

and shouted for help, the police officials coming from front side apprehended all

the four boys whose names and addresses were ascertained by the police officials.

He further stated that all his belongings and the daggers were recovered by the

police from those boys. The witness also identified his signatures on the recovery

memos Ex.PW1/B to PW1/D as well as on the arrest memos and personal search

memos of the accused persons. He, however, could not identify the persons who

had robbed him, claiming that it was night and dark at the time of the incident.

This witness was cross examined by the learned Additional PP but nothing

worthwhile came out in the cross examination. The accused persons, however, did

not cross examine the witness at all despite opportunity given for the purpose.

4. PW2 - Constable Rajesh Kumar inter alia stated that on 7.10.2009, he was

on patrol along with other police officials in the area of S.P. Badli at BG Block

near MCD public toilets when they saw one boy coming running from the front

side and shouting pakro pakro. Three/Four boys were running ahead of him. They

ran after those boys and apprehended them. The witness identified the appellants -

Govind, Sunny and Sandeep and claimed that wrist watch with Rs.1200/- in cash

and mobile phone were recovered from them besides two daggers - one from

Govind and the other from Sunil. According to him on search of Govind, wrist

watch of the complainant was recovered from him.

PW3 - Constable Umesh corroborated the deposition of PW2 - Constable

Rajesh Kumar with respect to the accused persons having been apprehended in the

above referred manner and the daggers as well as the mobile phones and wrist

watch and cash of the complainant having been recovered from them. He also

correctly identified the accused persons. PW4 - Constable Satyapal is the third

police official, who along with others had apprehended the accused persons and

recovered the cash, mobile and watch of the complainant besides two daggers,

from them. PW7 - Head Constable Azad Prakash also corroborated the

deposition of PW2 to PW4 in all respects and identified the accused persons.

5. PW5 - ASI Rajbir Singh stated that on 2.10.2009, investigation of this case

was assigned to him and he reached the spot where HC Azad, Ct. Satyapal, Ct.

Bhopal, Ct. Umesh, Ct. Shri Krishan and Ct. Yogesh were present. Accused

Sandeep @ Sanjeev, Govind @ Bharat, Sunny and Sunil @ Bittoo (facing trial

before the Juvenile Justice Board) were found present at the spot in the custody of

aforesaid police officials. The sealed parcels containing the case property and

daggers which the police officials had recovered from the accused persons were

handed over to him along with the documents.

6. In their statements under Section 313 Cr.PC, the appellants denied the

allegations against them and claimed to be innocent.

7. Vide impugned judgment dated 4.5.2013, the appellants were convicted

under Section 392/34 of IPC. The appellant - Govind @ Bharat was additionally

convicted under Section 397 of IPC for using a deadly weapon during the

commission of robbery. Being aggrieved from their conviction and sentence

awarded to them, the appellants are before this Court by way of these appeals.

8. The impugned judgment has been assailed on the following grounds:

(i) The complainant has not identified any of the appellants;

(ii) The case of the prosecution is that the recovery memos were

prepared before the FIR was registered, but the FIR number finds

mention on all the recovery memos which creates serious doubt

about the truthfulness of the prosecution case;

(iii) According to the complainant, the mobile phone contained the sim

of mobile number 9990759493, but as per the seizure memo of

phone, it contained no sim card;

(iv) The complainant even during the cross examination by learned

Additional PP, denied having stated to the police that his personal

belongings and daggers were recovered from the accused persons; \

(v) No TIP of the stolen property was held;

(vi) It was found by the trial court during the examination of PW3 -

Constable Umesh that he was looking at the summons Ex.PW3/B on

which the names of the accused, recovery from them and the time

had been noted.

9. As noted earlier, the appellants did not cross-examine the complainant Shri

Ravinder Shah, thereby admitting the deposition of the witness. Though the

aforesaid witness did not identify any of the accused persons, he clearly stated that

he was stopped by four (4) boys, two (2) of whom were armed with the daggers,

one (1) of whom put a dagger on his abdomen, whereas the other put dagger on

his neck and thereafter his mobile phone as well as cash amounting to Rs.1,200/-

was removed from his pocket. The watch which he was wearing on his wrist was

also removed by one of the boys. By not cross-examining the witness the

appellants did not dispute the factum of robbery, including the theft of mobile

phone, watch and cash amounting to Rs.1,200/- as well as use of daggers by two

(2) of the boys. Even otherwise, the complainant had nothing to gain by making

false accusation of armed robbery. The conduct of the complainant in chasing

four (4) boys, simultaneously shouting chor-chor also, corroborates the allegations

of robbery made by him.

10. The complainant specifically stated that the boys who carried out robbery

started running towards other side after snatching his belongings and were

apprehended by the police officials on the spot and their names and addresses

were inquired. He also stated that all his belongings as well as two (2) daggers

were recovered from the boys who were apprehended by the police. By not cross-

examining this witness the appellants also admitted that the boys who had

committed robbery were apprehended on the spot and the stolen property as well

as two (2) daggers were recovered from them.

11. The depositions of PW2 Constable Rajesh Kumar, PW3 Constable Umesh

and PW4 Constable Satyapal prove that they had seen four (4) boys being chased

by the complainant and had apprehended those boys on the spot. To this extent

the complainant also corroborated their deposition. PW2, PW3 as well as PW4

identified the appellants as three (3) of the four (4) boys whom they had

apprehended on the spot. The mobile phone make Nokia was recovered from the

appellant Sunny, cash amounting to Rs.1,200/- was recovered from the appellant

Sandeep @ Sanjeev, whereas the watch of the complainant was recovered from

the appellant Govind @ Bharat. It is true that when PW3 was examined in the

court he was found carrying and looking at a summon on which the name of the

accused, recovery from them and time had been noted. This would indicate that

before the witness was examined, he had refreshed his memory from the

documents, though it was done by him without permission from the court. Even if

I exclude the deposition of PW3 from consideration, the deposition of PW2

Constable Rajesh Kumar and PW4 Constable Satyapal is sufficient to prove the

identity of the appellants as three (3) of the four (4) boys, whom the police

officials had apprehended on the spot on 2.10.2009. The depositon of PW5 ASI

Rajbir Singh who went to the spot and to whom the accused persons were handed

over also corroborates the deposition of PW2 and PW4 with respect to identity of

the persons whom they had apprehended on the spot. Thus, commission of

robbery by four (4) persons has been proved by the complainant whereas the

identity of the appellants as the persons who committed the robbery stands proved

from the deposition of PW2, PW4 and PW5.

12. If the appellants were not the persons who had committed robbery of cash,

mobile phone and watch from the complainant, the only possibility can be that the

police officials who apprehended the boys let off the boys whom they had

apprehended and substituted them by the appellants before this Court. In my

view, there could have been no reason for the police officials to let off the real

culprits and implicate innocent persons. This is more so when the appellants do

not claim any previous animosity or ill-will of the police officials towards them.

13. The complainant not identifying the appellant and denying having stated to

police that his personal belongings and daggers were recovered from the accused

persons becomes meaningless considering that according to the witness the

persons who committed robbery were apprehended on the spot and the stolen

articles as well as daggers were recovered from them and the identity of the

robbers having been proved by PW2, PW4 and PW5.

14. It is true that according to the complainant the mobile phone stolen from

his possession had connection No.9990759493, meaning thereby that the mobile

phone had a SIM card in it whereas, as per the seizure memo no SIM card was

cound in the mobile phone recovered from the appellant Sunny. This, however,

would be of no consequence since the appellants were apprehended only after they

were chased by the complainant for some distance and, therefore, the appellant

Sunny had ample opportunity to remove the SIM from the mobile phone either

immediately after removing it from the pocket of the complainant or while

running from the spot, without the complainant having noticed him removing the

SIM card from the mobile phone. The purpose would be to prevent his location

being traced, in case a call was made on the mobile phone. Moreover, the

appellant Sunny does not claim that the mobile phone recovered by the police

from him belonged to him and not to the complainant. In any case, the charge

against the appellants stand duly proved even if the recovery of the mobile phone

from the appellant Sunny is excluded from consideration since it has been proved

that they were the boys who were involved in the commission of robbery

involving theft of a mobile phone besides cash and a wrist watch.

15. As regards FIR number on the documents which were prepared before

rukka was sent to the police station, it is a matter of common knowledge that the

FIR number on such documents is filled up only after the copy of the FIR is

brought to the spot. Moreover, there was absolutely no cross-examination of IO

ASI Rajbir Singh in this regard. He was not asked to explain how FIR number

came to be mentioned on the documents which had been prepared before the FIR

was registered. In the absence of any cross-examination of the Investigating

Officer directly on this aspect, no adverse inference against the prosecution can be

drawn on account of the FIR number having been recorded on the documents.

The learned counsel for the appellants relied upon the decision of this Court

in Crl. A. No.172/2001 titled Pradeep Saini & Anr. Vs. State decided on 9.9.2009.

In the aforesaid case, the sketch of the knife alleged to have been recovered from

the possession of the accused Kishore Kumar was found to bear the FIR number

though it had been prepared before the registration of FIR. The prosecution did

not offer any explanation as to under what circumstances the number of FIR had

appeared on the document prepared before the registration of the FIR. The Court

was of the view that in these circumstances it could be inferred either that the FIR

was recorded prior to the alleged recovery of knife or the number of FIR was

inserted in the document after the FIR had been registered and in both situations it

would reflect upon the veracity of the prosecution version and create doubt about

recovery of knife in the manner alleged by the prosecution. This judgement would

not be applicable to the facts of this case where the factum of robbery as well as

the apprehension of the robbers on the spot stands proved even from the oral

deposition of the complainant and the identity of the appellants as the persons

involved in the robbery stands proved from the oral depositions of PW2, PW4 and

PW5.

16. The learned counsel for the appellants also referred to the judgements of

the Hon'ble Supreme Court in Ashish Batham Vs. State of M.P. (2002) 7 SCC

317 and State of U.P. Vs. Ashok Kumar Srivastava (1992) 2 SCC 86.

In Ashok Batham (supra), the Apex Court inter alia observed that mere

suspicion, however, strong or probable cannot be a substitute for legal proof

required to substantiate the charge. There can be no quarrel with the proposition

of law enunciated in the above-referred case but the charge against the appellants,

in my opinion, stands proved beyond any reasonable doubt.

In State of U.P. Vs. Ashok Kumar Srivastava (supra), the Apex Court in the

context of circumstantial evidence held that the conviction should be based only if

all the links in the chain of circumstances are complete, pointing to the guilt of the

accused and every hypothesis of innocence capable of being negatived on

evidence. In the case before this Court, the evidence available against the

appellants unerringly points to their guilt and negates every hypothesis of their

being innocent.

17. For the reasons stated hereinabove, the conviction of the appellants under

Section 392 of IPC read with Section 34 thereof cannot be faulted with. Since a

dagger was recovered from the possession of the appellant Govind and the dagger

is certainly a deadly weapon it being capable of causing death if used as a weapon

of offence, the prosecution has also been able to prove that the aforesaid appellant

had used a deadly weapon during the commission of robbery by placing it on the

body of the complainant. Therefore, Section 397 of IPC is attracted as far as the

appellant Govind is concerned.

18. For the reasons stated hereinabove, the conviction of the appellants

Sandeep and Sunny under Section 392 of IPC and the conviction of the appellant

Govind under Section 392 of IPC read with Section 397 thereof is affirmed.

However, in the facts & circumstances of the case the substantive sentence

awarded to the appellants Sandeep and Sunny is reduced from four (4) years each

awarded by the trial court to three (3) years each. The sentence of fine imposed

on them, however, remains unaltered. In the event of default in payment of fine

they shall undergo SI for three (3) months each as against six (6) months each

awarded by the trial court. The appellant Govind @ Bharat having been awarded

the minimum prescribed substantive sentence, there is no scope for its reduction.

The fine imposed on him also does not call for any reduction. It is, however,

directed that in the event of default of payment of fine, he shall undergo SI for

three (3) months as against one (1) year awarded by the trial court. There will be

no independent conviction of or sentence on the appellant Govind under Section

397 of IPC since the aforesaid Section does not constitute an independent offence

but only prescribes a minimum punishment if the offender, at the time of

committing robbery or dacoity, as the case may be, uses any deadly weapon or

causes grievous hurt or attempts to cause death or grievous hurt.

The appeals stand disposed of accordingly.

One copy of this order be sent to the concerned Jail Superintendent for

information and necessary action.

LCR be sent back along with a copy of this order.

APRIL 28, 2014                                                 V.K. JAIN, J.
rd/b'nesh