Sanjay vs The State (Nct Of Delhi)
2014 Latest Caselaw 668 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                               Date of Decision: 04.02.2014

+                             CRL. A. No.492 of 2013

SANJAY                                                ..... Appellant
                         Through:   Counsel for the Appellant.

                                       versus

THE STATE (NCT OF DELHI)                ..... Respondent
              Through: Mr. Amit Ahlawat, APP.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                    JUDGEMENT

V.K.JAIN, J. (Oral) On 10.6.2004, the complainant, Kishan Dev Pathak, came to police station Shahdara and lodged an FIR, alleging therein that in the night intervening 9/10.6.2004, he hired an auto-rickshaw from Hanuman Mandir, Shahdara for going to his house. Two other persons were sitting on the passenger seat of the auto-rickshaw whereas one person was sitting with the driver. When the auto-rickshaw reached near Loni Road Tikona Park, the auto-rickshaw was got stopped and the other passengers who were sitting on the passenger seat of the auto-rickshaw alighted from the vehicle and sought to pay Rs.20/- to the auto-rickshaw driver, who demanded Rs.32/- as fare. On this both of them asked the auto-rickshaw driver to take the auto- rickshaw inside. He (the complainant) took out Rs.3/- from his pocket and gave it to the auto-rickshaw driver. In the meanwhile one of the passengers

who had got down from the auto-rickshaw caught him by neck, became angry with him and asked him to take out whatever he had. According to the complainant, he noticed a knife in his hand. Thereafter that person threatened to give knife blow to him whereas his companion gave a blow on his head, as a result of which he fell down and became unconscious. When he gained consciousness, he found himself on the road and also noticed that his mobile phone No.9810100492, make Sony Ericsson; Rs.200/- in cash and his identity card were missing. An FIR under Section 394/34 of IPC was then registered.

2. The case of the prosecution is that the appellant Sanjay was one of the persons involved in the robbery. The appellant was correctly identified by the complainant in a judicial TIP conducted during the investigation of the case.

3. Five (5) persons including the appellant Sanjay were chargesheeted. Since they pleaded not guilty to the charges, as many as fourteen (14) witnesses were examined by the prosecution. No witness, however, was examined in defence.

4. The complainant came in the witness box as PW2 and stated that in the night intervening 9/10.6.2004 he boarded an autorickshaw from Hanuman Mandir, Shahdara for going to his house. Four (4) persons including the driver were already present in the autorickshaw at that time. Two (2) of them were sitting on the passenger seat whereas one (1) was sitting with the driver. When the autorickshaw reached Tikona Park, Kabul Nagar, Shahdara, the TSR driver demanded Rs.32/- as fare from the two (2) passengers who had only Rs.20/- with them. They said to the driver that if

the autorickshaw is taken in the street, they would pay the remaining amount from their house. Suspecting something wrong, the complainant gave Rs.3/- to the driver. In the meanwhile the other persons travelling in the autorickshaw got down and when the complainant was giving money to the driver, one (1) of them caught hold of him by neck. He was carrying a knife in his hand and threatened to stab the complainant. Thereafter he was surrounded by all the four (4) persons and one (1) of them hit him on his head from the backside, as a result of which he fell down on the ground. According to the complainant though he was feeling unconscious, he could make out that the robbers were snatching his mobile phone and his purse which contained Rs.5,200/- in cash besides an identity card, some visiting cards and other papers. When he gained consciousness he found the mobile phone and other articles missing.

During the course of trial, the complainant identified all the four (4) persons including the appellant Sanjay. He further stated that during TIP proceedings he had identified the driver, the person who was sitting near the driver and one of the passengers travelling in the autorickshaw. He further stated that the appellant Sanjay was the person sitting on the passenger seat and he was the person who had shown knife to him. He also claimed that he had correctly identified the appellant Sanjay during TIP proceedings. The witness also identified his mobile phone Ex.P1 which was stolen from his possession. During cross-examination he denied the suggestion that the police had picked up certain persons who were shown to him in the police station. He also denied the suggestion that he was shown photographs of those persons and on the basis of the said photographs he had identified

them.

5. PW3, T. Gupta, examined the complainant in GTB Hospital on 11.6.2004. The injuries found by him on the person of the complainant were recorded in the MLC Ex.PW3/A.

PW14 Barkha Gupta, Additional Sessions Judge has stated that on 8.7.2004, she had gone to Central Jail No.3 for conducting TIP of the appellant Sanjay, who was produced before him by the Assistant Superintendent. On being asked as to whether he wanted to join TIP proceedings, Sanjay expressed his willingness to join the said proceedings. She then asked the Assistant Superintendent to pick up 8-10 under-trials of the age of the appellant having similar physique. After completing other formalities the complainant K.D. Pathak was asked to identify the accused and he rightly identified the appellant Sanjay. The witness has proved Ex.PW2/A which bears the signatures of the complainant at point 'A1' and the signatures of the officer at point 'X'.

6. In his statement under Section 313 Cr.P.C., the appellant Sanjay denied the allegations against him and claimed to be innocent. He, however, admitted that he had participated in the TIP proceedings, though he expressed ignorance about the contents of the said proceedings. According to him on 28.6.2004, the marriage of his cousin sister was to be solemnised at Shahdara and on a day earlier police officials came to his house enquiring about him. Since he was not available at home they left a message for him to meet the SHO in the police station. When he went to the police station he was implicated in this case.

7. Vide impugned judgement dated 16.8.2010, the appellant was

convicted under Sections 392 and 394 of IPC read with Section 34 thereof. Vide order on sentence dated 19.8.2010 the appellant was sentenced to undergo RI for ten (10) years and to pay fine of Rs.3,000/- or to undergo RI for nine (9) months in default. Being aggrieved the appellant is before this Court by way of this appeal.

8. The commission of robbery which otherwise has been duly proved by the complainant has not been disputed by the appellant. It has come in the deposition of the complainant that his mobile phone was also stolen from the robbery. Ex.PW-11/B is the bill of purchase of mobile phone by the complainant K.D. Pathak from Manpreet Tele Shop. The IMEI number of the telephone of the complainant as noted in the bill is 350463802567848. A perusal of the seizure memo Ex.PW-9/A, which has been duly found by the prosecution witnesses, proves that the aforesaid mobile phone was later recovered from one of the accused Deepak, son of Babu Lal on 04.10.2004. Therefore, the commission of the robbery also stands proved from the aforesaid evidence produced by the prosecution.

9. The learned counsel for the appellant challenged the conviction on the grounds that the complainant could not have identified the assailants; no stolen property was recovered from the appellant and not only the photographs of the appellant were taken, he was shown to the complainant in the police station, before the TIP proceedings were conducted.

10. It has come in the deposition of the complainant that the appellant Sanjay was the person who was travelling on the passenger seat along with him. In my view, since the complainant was sitting close to the appellant while travelling in the autorickshaw he could have no difficulty in seeing

him properly and retaining in his mind, the face of the appellant, which later enabled him to identify him during the course of TIP. In my view, if a person is subjected to robbery and he had the opportunity to see the culprits closely, the first thing which would come to his mind, on gaining consciousness, would be to recall the face of the persons who were involved in the robbery. A victim of robbery is unlikely to forget the faces of the robbers in a short span of time since, the incident of robbery would continue to haunt him for a long time, which, in turn, would bring the faces of robbers before his eyes, whenever he recalls the incident.

11. The identification of the appellant during the course of trial coupled with the identification during the course of TIP, in my view, is sufficient to establish the identity of the appellant as one of the persons involved in the robbery. Though the case of the appellant is that not only his photograph but he also was shown to the complainant in the police station, there is no material on record to substantiate the plea taken by him. The complainant emphatically denied the suggestion that he was shown the photographs of certain persons and on that basis he had later identified them. He also denied the suggestion that police had picked up certain persons and shown them to him in the police station. Therefore, the test identification proceedings were not vitiated on account of either the appellant or his photograph having been shown to the witness.

12. For the reasons stated hereinabove, I find no good ground to interfere with the conviction of the appellant under Sections 392/394 of IPC read with Section 34 thereof. In my view the sentence awarded to the appellant is quite harsh and disproportionate to the charge for which he has been

convicted. In the facts & circumstances of the case the appellant is sentenced to undergo RI for four (4) years and to pay fine of Rs.10,000/- or to undergo SI for thirty (30) days in default. Out of the fine, if realized from the appellant, Rs.8000/- be paid to the complainant, as compensation.

The appeal stands 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.

FEBRUARY 04, 2014                                           V.K. JAIN, J.
b'nesh