Somvir & Ors. vs State (Nct Of Delhi)
2014 Latest Caselaw 2116 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 11th MARCH, 2014
                              DECIDED ON : 29th APRIL, 2014

+            CRL.A. 1004/2011 & CRL.M.B.No. 105/2014

      SOMVIR & ORS.                                   ..... Appellants

                        Through :   Mr.Rakesh Nautiyal, Advocate.


                        versus



      STATE (NCT OF DELHI)                            ..... Respondent

                        Through :   Mr.Lovkesh Sawhney, APP.


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

S.P.GARG, J.

1. Somvir (A-1), Rajesh Kumar (A-2) and Kapil (A-3) impugn

a judgment dated 19.02.2011 of learned Addl. Sessions Judge in Sessions

Case No. 1070/09 arising out of FIR No. 128/05 PS Kanjhawla by which

they were convicted under Sections 392/394/397 IPC. By an order dated

28.02.2011, A-1 was sentenced to undergo RI for five years with fine `

2,000/- under Sections 392/394 IPC; A-2 was awarded RI for three years

with fine ` 2,000/- under Section 392 IPC and A-3 was awarded RI for

five years with fine ` 2,000/- under Sections 392/394 IPC and RI for

seven years under Section 397 IPC. The substantive sentences were to

operate concurrently.

2. Briefly stated, the prosecution case as set up in the charge-

sheet was that on 02.05.2005 at 10.00 P.M. near Senior Secondary School,

Chandpur, Delhi, the appellants in furtherance of common intention

robbed complainant - Ishwar Singh of ` 5,960/-, a wrist watch, mobile

phone, two golden rings and I-card. The appellants were armed with

deadly weapons and caused injuries to the complainant while committing

robbery. Daily Diary (DD) No. 31A was recorded at 10.16 P.M. at PS

Kanjhawla about the incident and the investigation was assigned to SI

Vishnu Dutt Pandey who with Const.Ranbir went to the spot. Injured had

already been taken by PCR to Sanjay Gandhi Memorial Hospital (in short

SGM Hospital). The Investigating Officer lodged First Information Report

after recording complainant's statement (Ex.PW-2/B). Statements of the

witnesses conversant with the facts were recorded. On 03.05.2005, Neeraj,

A-1 and A-2 were arrested in case FIR No. 422/05 PS Nangloi under

Sections 186/353/307/34 IPC and 25/27 Arms Act. Pursuant to the

disclosure statements recorded by A-1 and A-2 about their involvement in

the present case, A-3 was arrested. Maruti Car bearing No. DL-8CC-0989

stolen from Nihal Vihar was recovered. After completion of the

investigation, a charge-sheet was submitted against the accused persons;

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

twelve witnesses to establish appellants' guilt. In 313 statements, they

denied complicity in the crime and pleaded false implication. No evidence

in defence was produced. The trial resulted in their conviction as

aforesaid. Being aggrieved and dissatisfied, the appellants have preferred

the appeal.

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

examined the record. The appellants' counsel urged that the Trial Court

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

conviction is based upon the sole testimony of the complainant which is

full of contradictions. No independent public witness was associated at

any stage of the investigation. No 'deadly' weapon was used at the time of

committing crime and conviction with the aid of Section 397 IPC was not

permissible. The robbed articles were not recovered from the accused

persons. Learned Addl. Public Prosecutor urged that the Trial Court's

judgment is based upon cogent testimony of the complainant - Ishwar

Singh who had no prior animosity to falsely implicate them.

4. The occurrence took place at around 10.00 P.M. when PW-1

(Ishwar Singh) posted as Head Constable, Delhi Police at PS R.K.Puram

after performing his duty at about 08.00 P.M. was going on motorcycle

No. DL-4S-AG-5685 to his residence in village Majra Dabbas. Daily

Diary (DD) No. 31A was recorded at 10.16 P.M. in promptitude at PS

Kanjhawla on getting information from PCR that the assailants in Maruti

Car (white colour) No. DL-8CC-0989 had robbed Ishwar Singh of his

cash and I-card at pistol point. PCR had taken the victim to SGM Hospital

where he was medically examined by MLC (Ex.PW-7/A) which records

the arrival time of the patient at 10.50 P.M. brought by PCR. FIR was

lodged without any delay promptly after recording complainant's

statement (Ex.PW-2/B) by sending rukka at around 12.10 (night). In the

complaint, Ishwar Singh gave vivid description of the incident and

disclosed as to how and under what circumstance, he was obstructed by

three individuals who were travelling in a Maruti Car No. DL-8CC-0989

(of white colour) on the pretext to enquire way to the village. He was

assaulted by the assailants. One of them was armed with a country-made

pistol. After putting him in fear, he was deprived of cash ` 5,960/-, a wrist

watch, mobile phone, two golden rings and I-card. After the occurrence,

the assailants fled the spot. He described broad features of the assailants.

While appearing as PW-1, Ishwar Singh proved the version given to the

police at the first instance without any major variations or improvements.

He identified A-3 who had a country-made pistol at the time of

occurrence. He assigned specific role to A-1 and A-2 in committing

robbery. He deposed that while A-1 and A-3 gave him beatings, A-2 stood

near the car. In the cross-examination, he informed that he was working in

Delhi Police since 1976 and was on duty that day from 08.00 A.M. to

08.00 P.M. The distance between his residence and office was about 35 -

40 kilometres. He was in civil dress. He denied the suggestion that he had

stopped the car in which the appellants were travelling to check the

documents or that a quarrel took place between him and the assailants. He

further denied that only the driver in the car had come out from the car to

show the documents and identity proof to him. Despite searching cross-

examination, no material contradictions / discrepancies could be elicited

or extracted to doubt the veracity of the statement given by the victim.

Suggestions reveal that the appellants have not denied their presence at

the spot. No ulterior motive was assigned to the victim for falsely

implicating the appellants with whom he had no prior animosity or

acquaintance. Complainant's statement is in consonance with medical

evidence. Soon after the occurrence, the victim was taken to SGM

Hospital and was medically examined by MLC (Ex.PW-7/A). It records

the alleged history of 'physical assault'. Number of injuries were found on

the body of the victim. PW-7 (Dr.Dipti Goel) proved the MLC (Ex.PW-

7/A) prepared by Dr.Niti Mathur who medically examined the patient. Her

testimony remained unchallenged in the cross-examination. The

prosecution examined PW-3 (ASI Rajbala) from PS Nangloi who

recorded FIR No. 422/05 (Ex.PW-3/A) under Section 379 IPC regarding

theft of the Maruti Car used in the crime. This car whose description finds

mentioned in FIR No. 422/05 was recovered on 02.05.2005 itself after it

was abandoned near Chandpur Bus Stand, Kanjhawla. PW-8

(Const.Sushil Kumar) took photographs (Ex.PW-8/A1 to Ex.PW-8/A6) of

the Maruti Car which was in damaged condition.

5. A-1 and A-2 were arrested by the police of PS Nangloi in

case FIR No. 422/05. Their involvement in the present case emerged in

the disclosure statements (Ex.PW-9/A and Ex.PW-9/B) recorded therein.

A mobile phone, make Nokia 3310 was recovered from A-2. Wrist watch

make Titan was recovered from A-1. Pursuant to their disclosure

statement, A-3 was arrested. The concerned Investigating Officer was

intimated. The appellants declined to participate in the Test Identification

Proceedings. The prosecution examined PW-6 (Tej Singh) who proved

sale of watch to the victim on 05.12.1996 by a receipt (Ex.PW-1/C). PW-

10 (Ravinder Kumar) proved the sale of mobile phone vide receipt

(Ex.PW-1/D) to the complainant on 17.03.2004. Both these robbed

articles were identified by the complainant in his Court statement.

6. Altogether inconsistent defence has been taken by the

appellants in 313 statements. A-1 claimed that his cousin Virender

required a vehicle. On that, he requested his friend Neeraj to lend his car

to Virender. Neeraj agreed to accompany him and Virender. He, A-3,

Neeraj and Virender went to Jind (Haryana). After staying there for two

days, he returned to Delhi. After two / three days, A-3 and his friend

Sinha came to him. Sinha told him that he required a stolen car. He

therefore committed theft of a car from Peeragarhi. A-3, A-2 and Sinha

went in the stolen vehicle to Mundka. He and Neeraj were in Neeraj's car.

After attending a wedding at Vatika Garden at Mundka, they started for

Jind at about 11.30 P.M. When he was driving Neeraj's vehicle, Neeraj

shifted to other vehicle along with A-2 and A-3 while Sinha came to his

vehicle and they started racing on Rohtak road. When he reached near

Bahadurgarh pulia, he lost control of the car and met with a serious

accident and sustained injuries whereas Sinha expired. Neeraj and A-3

shifted him to their car and brought him to Delhi for medical treatment.

They were stopped at Tikri border. Since the vehicle in which they were

travelling was a stolen vehicle, he was taken to SGM Hospital and others

were arrested. In the same hospital Ishwar Singh was also admitted. They

were shown to Ishwar Singh. A-1 did not examine any witness to establish

his pleas. No such defence was put to any of the prosecution witnesses in

cross-examination. Rather a suggestion was put to the complainant in the

cross-examination that at the time of incident, a quarrel had taken place

with the assailants when he had asked them to show the documents of the

vehicle in which they were travelling. Similar defence was pleaded by A-2

and A-3 in 313 statements without examining any witness. The particulars

of the accident in which A-1 was injured have not been brought on record.

The facts taken and pleaded for the first time in 313 statement rather lend

credence to the prosecution case about the apprehension and arrest of the

appellant by the police of PS Nangloi who had no concern with the instant

case. Appellants' involvement appeared only after their disclosure

statements were recorded in the said proceedings and A-3 was arrested.

7. Non recovery of the crime weapon is not fatal as there is

specific assertion of the complainant that he was robbed at pistol point and

it was in the possession of A-3. Since A-1 and A-2 were not armed with

any 'deadly' weapon, the Trial Court rightly did not convict them with the

aid of Section 397 IPC. The appellants' participation in the crime has been

clearly un-holded in the ocular account of the occurrence given by the

victim / complainant whose evidence has been found to be cogent, reliable

and un-impeachable. Complainant's testimony cannot be doubted simply

because he happened to be a police official at the relevant time. The

impugned judgment has dealt all the appellants' relevant contentions and

is based upon true and fair appraisal of the evidence and deserves no

interference.

8. In the light of above discussion, the appeal preferred by the

appellants is dismissed as un-merited. Pending application also stands

disposed of. Trial Court record be sent back immediately with the copy of

the order. A copy of the order be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE APRIL 29, 2014 / tr