Sagar Takwal vs The State (Delhi Admn.) Delhi
2014 Latest Caselaw 664 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 6th DECEMBER, 2013
                              DECIDED ON : 4th FEBRUARY, 2014


+                    CRL.A. 492/2000 & CRL.M.A. 2835/2005

       SAGAR TAKWAL                                     ....Appellant
               Through :           Mr.K.B.Andley, Sr.Advocate with
                                   Mr.M.L.Yadav & Mr.Lokesh ,
                                   Advocates.

                                   versus

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

+                           CRL.A. 479/2000

       MOHD. RASHEED                                    ....Appellant
               Through :           Mr.K.B.Andley, Sr.Advocate with
                                   Mr.M.L.Yadav & Mr.Lokesh ,
                                   Advocates.

                                   versus

       STATE (N.C.T. OF DELHI)                 ....Respondent
                 Through : Mr.Lovkesh Sawhney, APP.

+                           CRL.A. 566/2000

       MOHD. ARFEEN & ANR.                    ....Appellants
               Through : Mr.K.B.Andley, Sr.Advocate with
                         Mr.M.L.Yadav & Mr.Lokesh ,
                         Advocates.

                                   versus

CRL.A.No. 492/2000 & connected matters                        Page 1 of 17
        STATE (N.C.T. OF DELHI)                 ....Respondent
                 Through : Mr.Lovkesh Sawhney, APP.

AND
+                           CRL.A. 59/2001

       STATE                                            .... Appellant
                     Through :     Mr.Lovkesh Sawhney, APP.

                                   versus

       SAGAR TAKWAL & ORS.                     ....Respondents
               Through : Mr.K.B.Andley, Sr.Advocate with
                         Mr.M.L.Yadav & Mr.Lokesh ,
                         Advocates.

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

S.P.GARG, J.

1. Sagar Takwal (A-1), Mohd. Rasheed (A-2), Nadeem (A-3),

Mohd. Arfeen (A-4) and Mohd. Noor (A-5) were arrested in case FIR No.

32/97 by the police of PS M.S.Park and sent for trial for committing

offences punishable under Sections 307/397/392/411/34 IPC. The

prosecution case as projected in the charge-sheet was that on 07.02.1997

in between 02.00 to 04.00 P.M. at house No. 13, RPS, DDA Flats,

M.S.Park, A-1 to A-4 in furtherance of common intention committed

robbery and deprived the complainant of cash ` 12,000/-, gold and silver

ornaments and remote control (of T.V.). While committing robbery,

grievous injuries by a knife were inflicted to Km. Pragati Seth. At first

instance, she was taken to Abhimanyu Hospital, M.S.Park by Rajesh

Gupta and S.P.Jain, her neighbourers. After providing first aid soon

thereafter she was referred to GTB Hospital and remained admitted there

till 15.02.1997. Daily Diary (DD) No. 8A (Ex.PW-13/A) was recorded at

police station M.S.Park on getting information of an „accident‟ at flat No.

13, M.S.Park. Investigation was assigned to HC Jaiveer who with Const.

Surender Kumar went to the spot. After recording Aman Seth‟s statement

(Ex.PW-2/A), First Information Report was lodged by making

endorsement (Ex.PW-7/A) at 06.00 P.M. Daily Diary (DD) No. 11A

(Ex.PW-13/B) was recorded on getting information from Duty Const.

Devender Kumar, GTB Hospital about admission of Km.Pragati Seth by

her brother Aman Seth in injured condition. During the course of

investigation, the accused persons were apprehended and arrested.

Statements of the witnesses conversant with the facts were recorded.

Applications were moved for conducting Test Identification Proceedings

but the accused declined to participate in it. Pursuant to their disclosure

statements, some robbed articles were recovered. After completion of

investigation, a charge-sheet was submitted against them; they were duly

charged and brought to trial. By an order dated 29.07.2000, A-1 to A-4

were charged for committing offences under Sections 452/392/394/307

read with Section 397 IPC; A-5 was charged under Section 411 IPC. The

accused persons pleaded not guilty to the charges and claimed trial. The

prosecution examined eighteen witnesses to establish their guilt. In 313

statements, the accused persons denied their complicity in the crime and

pleaded false implication. After appreciating the evidence and considering

the rival contentions, the Trial Court, by the impugned judgment,

convicted A-1, A-2 and A-4 for committing offences under Sections

452/392 IPC and 307 IPC read with Section 34 IPC. A-3 was convicted

under Sections 452/392/394, 397 and 307 IPC. A-5 was held guilty under

Section 411 IPC. By an order on sentence dated 29.07.2000, various

prison terms with fine were awarded to A-1 to A-4. A-5 was sentenced to

imprisonment for the period already undergone by him. The substantive

sentences were ordered to operate concurrently. Being aggrieved, A-1 to

A-4 have preferred appeals. It appears that A-5 did not challenge the

judgment. It is relevant to note that State has preferred Crl.A. 59/2001 for

enhancement of sentence awarded to A-1 to A-4.

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

examined the record. At the outset, it may be mentioned that appellants‟

counsel did not contest the finding on conviction of the appellants

seriously and emphasized to modify the sentence order after taking lenient

view as the appellants have suffered incarceration for more than five years

and are not previous convicts. Learned Addl. Public Prosecutor also did

not insist for enhancement of the sentence awarded to the appellants.

Appellants‟ counsel merely argued that the prosecution was unable to

establish beyond reasonable doubt that all the appellants had shared

common intention to commit the crime. Only A-3 was allegedly armed

with a knife and injuries were inflicted after the incident of robbery was

over. The booty was not shared by the appellants.

3. Initially, the case was registered after recording Aman Seth‟s

statement (Ex.PW-2/A) under Section 307 IPC. When PW-10 (Bhawna

Seth) informed commission of robbery of ` 12,000/- cash and gold

ornaments, Section 394/397 IPC were added. After thorough

investigation, a charge-sheet was submitted under Sections

307/394/397/411/34 IPC. However, vide order on charge dated

30.07.1998, A-1 to A-4 were proceeded under Sections 452/392/394 read

with Section 397 and 307 IPC. The trial resulted in conviction of A-1, A-2

and A-4 under Sections 452/392/307/34 IPC. A-3 was held guilty for

committing offence under Sections 452/392/394 read with Section 397

and 307 IPC. In his statement (Ex.PW-2/A) made at the first instance soon

after the occurrence, Aman Seth disclosed to the police that his sister

Pragati Seth was stabbed and was taken to Abhimanyu Hospital. When

she was being taken on a stretcher to emergency at GTB Hospital, she

called him near her by a gesture and named Sagar (A-1) his maternal aunt

- Saroj‟s son to have attempted to murder her. He further disclosed that on

the previous Dussehra festival, Sagar (A-1) had stolen ` 2,800/-. The

complainant suspected A-1‟s involvement in the crime. A-1 was arrested

and pursuant to his disclosure statement, the police was able to locate and

apprehend his associates A-2 to A-5. Initially, A-3 was untraceable,

however, he was arrested subsequently. After Pragati Seth was discharged

from GTB hospital on 15.02.1997, involvement of all these accused

persons emerged and she claimed to identify the assailants. The

Investigating Officer moved application for holding Test Identification

Proceedings of A-2 and A-4. They declined to participate alleging that

they were shown to the witnesses. When A-3 was arrested on 11.07.1997,

application was moved for Test Identification Proceedings in which he

refused to participate.

4. Crucial testimony to infer the guilt of the accused persons is

that of PW-1 (Pragati Seth) who was aged 13 / 14 years and was a student

of 10th standard. She was studying at Moti Ram Memorial School, GT

Road, Shahdara. On 07.02.1997, she returned from the school at about

12.30 P.M. She deposed that her parents left around 02.00 P.M. She and

her younger brother Gaurav Seth remained at home. After about ten

minutes, she received a telephone call enquiring whether Aman was

present at home. She responded that Aman had gone to school. After

about two minutes, she again received a telephone call that school hours

were over and Aman might be present. After about ten minutes, a boy

came and insisted her to open the door on the pretext to handover her a

diary. She declined to open the door and the said boy left. After about ten

minutes, A-1 who is the son of her mother‟s sister came and asked her to

open the door on the pretext that his mother was coming on stairs.

Unsuspectingly, she opened the door and A-1 came inside. Three boys

identified A-2 to A-4 were also with him. She further deposed the A-1

caught hold of her hands. The boy who had earlier come to deliver a diary

was also with A-1. She further deposed that on 05.02.1997 at about 03.00

P.M. when she, her mother and younger brother were present at home,

two boys had come and one of them had enquired about the presence of

her mother. When she told that she was going to call her mother present

inside the house, they disappeared. PW-2 further elaborated in her

testimony that the two boys who had come to her house on 05.02.1997

had accompanied A-1 on 07.02.1997. They made her to lie down on the

floor in the balcony. The boy who had come to deliver the diary caught

hold of her legs and A-1 caught hold of her head. The other boy who was

of blackish complexion and had come on 05.02.1997 put a red scarf over

her mouth. The boy who had a talk with her on 05.02.1997 went inside to

have some glance and came again in the balcony; sat by her side. He took

out a knife from the right pocket of his pant and stabbed on her neck. All

of them dragged her and bungled inside the kitchen. She became

unconscious. When she regained consciousness, she heard noise of goods

being taken out from the almirah. The two boys who had come to her

house on 05.02.1997 again came inside the kitchen. The boy who had

earlier grabbed her again put cloth over her mouth and pressed it forcibly.

She started feeling suffocated. The boy who had earlier stabbed again

stabbed her on her neck and she became unconscious. When she came to

senses, she noticed that those assailants had left the spot. She identified A-

2 to be the boy / assailant who had come to deliver a diary. A-4 was the

boy who visited her house on 05.02.1997 as well as on 07.02.1997 and

who grabbed her mouth on the day of occurrence. A-3 was the boy who

visited her house on 05.02.1997 and 07.02.1997 and stabbed her on

07.02.1997. She identified skirt (Ex.P1), top (Ex.P2) and sameej (Ex.P3)

which she had worn at the time of incident. In the cross-examination, she

informed that her statement was recorded by the police four times on

16.02.1997, 27.03.1997, 06.04.1997 and 31.07.1997. Her statements dated

06.04.1997 and 31.07.1997 were recorded in the Court premises. She

explained that she could not narrate entire facts in her statement (Ex.PW-

1/DA) recorded on 16.02.1997 as her physical condition was not good.

She denied that her parents had tutored her the statement. She stated that

A-2 and A-3 were not known to her prior to the date of occurrence. Her

statement for the first time was recorded by the police on 16.02.1997. She

denied that she was taken to the police station and the accused persons

were shown to her. She reiterated that at GTB hospital, she had called her

brother and told the name of A-1 and had signalled with her hands that she

was stabbed. She elaborated that A-1‟s sister Aarti was engaged and her

mother was mediator in the said marriage. However, the marriage could

not be solemnized and the relations became strained.

5. On scrutinising the entire statement of the victim, it reveals

that despite lengthy and searching cross-examination, the appellants were

unable to extract / elicit any material discrepancy or contradiction to

discredit her testimony on material facts to affect the core of the

prosecution case. It is true that some facts narrated by the witness were

omitted by her in her statement (Ex.PW-1/DA) date 16.02.1997 and she

was duly confronted. However, reasonable explanation has been given by

her that due to her physical condition, she was unable to disclose all the

detail facts in her statement recorded soon after discharge from GTB

hospital on 15.02.1997. It has come on record that subsequently, she was

again taken to Batra Hospital and got treatment for some days. Since the

victim had sustained „grievous‟ injuries on her vital organs and had

remained admitted in GTB Hospital till 15.02.1997, the delay in recording

her statement and omissions in statement under Section 161 Cr.P.C.

cannot be considered to be consequential and have been made after due

consultation and deliberations. In her deposition before the Court, she

categorically recognised and identified the assailants and attributed

specific and definite role to each of them in the occurrence. The victim

had no ulterior consideration to falsely rope in the accused persons and to

let the real culprit go scot free for the injuries inflicted to her. A-2 to A-4

were not acquainted with her prior to the incident. The child witness had

no prior animosity with any of them to implicate falsely in the occurrence.

She had direct confrontation with the assailants for sufficient long

duration inside the house and had clear opportunity to observe their broad

features. Even on 05.02.1997 in a recee, A-2 and A-3 visited the house on

the pretext to see her mother. Even prior to the occurrence, A-2 had come

at her house and insisted her to open the door to deliver a diary. When A-1

came at the spot and asked her to open the door on the pretext that his

mother was coming, the child was persuaded to open it without suspecting

evil design. Had there been prior animosity or ill-will, she must have not

opened the door at the instance of her relation A-1. Once A-1 with A-2 to

A-4 was inside the house, they not only robbed but also inflicted injuries

to the helpless child who was alone in the house. There are no sound

reasons to disbelieve the child witness who herself had sustained

„grievous‟ injuries. Minor discrepancies, contradictions and improvements

highlighted are inconsequential as they do not go to the root of the case

and affect the core of the prosecution case. These so-called improvements

are in fact elaboration of facts given by the witness in her statement

(Ex.PW-1/DA) at the first instance to the police.

6. Statement of PW-1 (Pragati Seth) is in consonance with the

statement of PW-3 (S.P.Jain) and PW-4 (Rajesh Gupta). She disclosed

that she was taken to Abhimanyu Hospital by them on a scooter. PW-4

(Rajesh Gupta), an independent witness from the neighbourhood also

deposed that her daughter Isha @ Seema informed him that Pragati @

Guriya was lying unconscious at her house at 03.30 P.M. He immediately

rushed to the house of Pragati and found her lying unconscious in the

balcony. She was smeared with blood. He lifted Pragati in his lap and

came down stairs. He requested S.P.Jain R/o 8, RPS, DDA Flats, present

at the gate of the house to bring his scooter to take Pragati to a hospital.

Thereafter, Pragati was taken on PW-3 (S.P.Jain)‟s scooter to Abhimanyu

Hospital. After admitting her in the hospital PW-3 (S.P.Jain) left for the

office of her mother Bhawna Seth to bring her there. Doctors gave first aid

to the injured and in the meantime, her mother arrived there. Her

statement is similar to the testimony of PW-3 (S.P.Jain).

7. PW-1 (Pragati Seth) corroborated the version of her brother

Aman Seth to whom she had indicated about A-1‟s involvement by

uttering his name by a gesture. The occurrence took place in between

02.00 P.M. to 04.00 P.M. The First Information Report was lodged at

06.00 P.M. without any delay. In the statement (Ex.PW-2/A), Aman Seth

implicated A-1 for the injuries caused to her sister. Since the FIR was

lodged promptly without any delay and A-1 was named therein, there was

least possibility to concoct a false story in such a short interval. Victim‟s

statement is also in consonance with medical evidence. PW-6 (Dr.Naresh

Verma) from Abhimanyu Nursing Home deposed that a girl known Guria

was brought in their nursing home with bleeding injury on the vital part of

her throat. First aid was given to her and she was referred to GTB

hospital. In the cross-examination, he clarified that no paper was prepared

regarding the first aid given to the girl who remained there for about 10 to

15 minutes. He further deposed that the patient was not in a position to

speak. PW-9 (Dr.T.R.Ramteke) from GTB hospital medically examined

Pragati Seth on 07.02.1997 at about 04.30 P.M. and found the following

injuries on her body :

"1. Incized wound on central aspect of throat, having dimension of 3 cm. x 1 cm. depth, bleeding present, Respiratory distress was also present.

2. Superficial incised wound at left wrist on dorsal aspect about five cm. long."

The injuries were caused by sharp object. MLC (Ex.PW-9/A)

was prepared by him. In the cross-examination, the expert witness stated

that the patient was conscious and oriented. She was capable to speak a

few words. He further clarified that only one „stab‟ wound was noted by

him. Since, PW-1 (Pragati Seth) was conscious and oriented when she

was medically examined by PW-9 (Dr.T.R.Ramteke) there was every

possibility of her to divulge the name of the assailant to her brother Aman

Seth who had reached there from his school. Since, she was not

acquainted with A-2 to A-4, she was unable to name them.

8. During her (PW-1) treatment at GTB hospital, A-2 and A-4

were arrested and were sent to judicial custody. On 16.02.1997,

application was moved for conducting their Test Identification

Proceedings and the Court concerned issued production warrants for their

appearance. However, the learned Judge declined to conduct Test

Identification Proceedings as the accused persons were produced in un-

muffled faces. The order was challenged and Court of Sh.J.D.Kapoor,

learned Addl. Sessions Judge directed the learned Metropolitan Magistrate

to conduct Test Identification Proceedings. A-2 to A-4 declined to

participate in the proceedings. Adverse inference is to be drawn against

them for declining to join Test Identification Proceedings. Since PW-1

(Pragati Seth) was getting treatment in the hospital at the relevant period,

there was least possibility of her to visit the police station to see the

assailants there. Recovery of the stolen articles identified in Test

Identification Proceedings conducted by PW-11 (Nivedita Anil Sharma,

MM) also connects the accused with the crime.

9. The impugned judgment is based upon fair appraisal of the

evidence and all the relevant contentions of the accused persons have been

dealt with minutely with reasons. I find no sound reasons to deviate from

the findings recorded by learned Trial Court. The accused persons did not

submit plausible explanation to the incriminating circumstances appearing

against them. All of them had gone to the house of the victim together,

after due planning. They all had participated in the crime and played

specific role in the incident. They all shared common intention to commit

the crime. Apparently, the appellants were the author of the crime.

10. Regarding modification of sentence order, it reveals that A-1

was enlarged on bail and substantive sentence was suspended on

15.04.2004. Nominal roll dated 17.07.2010 reveals that at the time his

custody period was four years, two months and twenty three days besides

remission for one year, two months and fourteen days. The unexpired

portion of sentence was one year, six months and twenty three days. He

was not involved in any other criminal activity and had clean antecedents.

His conduct in the jail was satisfactory. Nothing emerged if after release

on bail he indulged in any criminal activity or misused the liberty granted

to him. He was not armed with any „deadly‟ weapon. He suffered ordeal

of trial / appeal for about sixteen years. Considering the mitigating

circumstances, the substantive period already undergone by him in this

case is taken as substantive sentence. However, A-1 shall deposit

compensation of ` 50,000/- in the Trial Court within fifteen days and the

compensation will be released to the victim - Km. Pragati Seth after due

notice.

11. A-2 was granted regular bail by this Court on 25.04.2003.

Nominal roll dated 05.07.2010 reveals that his custody period was two

years, eleven months and twenty one days besides remission for ten

months and eight days as on 28.04.2003. He was first offender and was

not involved in any other criminal case. His overall jail conduct was

satisfactory. He was also not armed with any weapon at the time of

occurrence. Considering the circumstances, the substantive sentence under

Section 307 IPC is reduced from seven years to five years. Other terms

and conditions of the sentence order are left undisturbed.

12. A-3 was convicted with the aid of Section 397 IPC. The

minimum sentence prescribed therein is seven years which cannot be

altered or modified. Sentence awarded to A-3 is maintained.

13. A-4 was admitted to regular bail on 17.09.2001. Nominal roll

dated 05.07.2010 reveals that he had undergone four years, four months

and twenty three days incarceration besides earning remission for two

months and twenty days as on 22.09.2001. The unexpired portion was two

years, four months and seventeen days. He had no criminal background

and was not a previous convict. His jail conduct was satisfactory. He was

also not armed with any weapon. Considering the circumstances, the

substantive sentence under Section 307 IPC is reduced to RI for Five

years. Other terms and conditions of the sentence order shall remain

unchanged.

14. A-2 to A-4 shall surrender before the Trial Court on 10th

February, 2014 to serve the remaining period of substantive sentence (if

any). A-1 to A-4 shall deposit unpaid fine (if any) with the Trial Court on

or before 10th February, 2014 or else shall suffer default sentence.

15. Appeal preferred by the State stands dismissed as unmerited.

16. The appeals stand disposed of in the above terms. Pending

application also stands disposed of. Trial Court record be sent back

forthwith with the copy of the order. A copy of the order be sent to the

Superintendent Jail for information.

(S.P.GARG) JUDGE FEBRUARY 04, 2014/tr