Trilok vs State (Nct) Of Delhi
2014 Latest Caselaw 147 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                              Date of Decision: 08.01.2014
+                             CRL. A. No.177 of 2010
TRILOK                                               ..... Appellant
                         Through:    Mr. Sumeet Verma, Adv.

                                      versus

STATE (NCT) OF DELHI                     ..... Respondent
               Through: Mr. Feroz Khan Ghazi, APP.
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                                    JUDGEMENT

V.K.JAIN, J. (Oral)

On 24.5.2004, on receipt of information with respect to a theft from House No.95B, Gali No.2, Sevasadan Block, Mandawali, Inspector Harish Chander, Additional SHO, Police Station Mandawali reached the aforesaid spot and recorded the statement of the complainant, Smt. Savitri Devi. She told the Investigating Officer that on that day she was present in the house along with her daughter-in-law, Ms. Pratibha. At about 1:30 p.m., she opened the door responding to the door bell. As soon as she opened the door two (2) persons entered the house and inquired about her husband. A third person also entered the house in the meanwhile and bolted the door from inside. One of them put a knife on her temple, whereas the other person caught hold of her and demanded the keys of the safe. When she refused to hand over the keys to them, he pushed her and made her fall, whereupon she handed over the keys to them. Those persons opened the safe and removed the

jewellery articles comprising one big gold necklace, one set consisting of a necklace, ring and earrings, one pendent, two chains, three rings (ladies), four rings (gents), two pairs of jumkas, silver ornaments, consisting of tagdi, pyjaeb and bichuwa and cash amounting to Rs.5,000/-. They also made her remove her earrings and fled away with the cash as well as jewellery. On alarm being raised by her, the neighbours chased those persons and one of them, whose name was later on known to be Hanif, was apprehended. The aforesaid intruder was handed over to the police officers, when they reached the spot. The case of the prosecution is that the appellant before this Court is one of the three (3) intruders who robbed the complainant of jewellery and cash, etc.

2. The trial court framed charged under Section 412 of IPC and Sections 4 & 25 of Arms Act, whereas Hanif was charged under Sections 397 and 412 IPC besides being charged under Section 392 IPC. One Reshma was charged under Section 412 of IPC. Vide impugned judgement dated 22.8.2009 and Order on Sentence dated 28.8.2009, the appellant was convicted under Section 392 of IPC read with Section 34 thereof and was sentenced to undergo sentence of five (5) years RI and pay fine of Rs.5,000/- and in default of payment of fine, to undergo RI for three (3) months. Being aggrieved from the conviction and the sentence awarded to him, the appellant is before this Court by way of this appeal.

3. The prosecution examined as many as seventeen (17) witnesses in support of its case, whereas no witness was examined in defence.

The informant, Smt. Savitri Devi, came in the witness box as PW13 and stated that on 24.5.2004, while she was present in the house

along with her daughter-in-law Ms. Pratibha, and was taking lunch, someone pressed the door bell. When she opened the door, two (2) persons present outside the door inquired about her husband. She told them they he was not present in the house. They wanted help of her husband in the police station and asked for water. She provided water to them, but after taking water they came inside the house. In the meanwhile another associate of theirs reached there and bolted the door from inside. One of them caught hold of her mouth and brought her inside the house. The mouth of her daughter-in-law was also gagged with a piece of cloth and one of the offenders asked for the keys of the safe from her. Initially she denied the keys to them, saying that she did not have the same with her, but ultimately the keys were provided to them. They opened the locker and took out jewellery articles comprising one big gold necklace, one set consisting of a necklace, ring and earrings, one pendent, two chains, three rings (ladies), four rings (gents), two pairs of jumkas, silver ornaments, consisting of tagdi, pyjaeb and bichuwa and cash amounting to Rs.5,000/-, which had been kept in a bag. Her earrings were also peeled off and so were the ring, chain and earrings of her daughter-in-law. Thereafter those persons went away. She came out of the house from the other door and raised alarm, whereupon the persons of the public chased and apprehended one of them, namely, Hanif. The witness also identified the appellant Trilok, as one of the persons who had come to her house and committed the robbery. She also stated that Hanif and the appellant, Trilok, as well as their third associate had gagged their mouth but had not assaulted them. This witness also identified the jewellery articles Ex. P1/1 to Ex.P1/2, tops Ex.P2, tikka Ex.P3, ring Ex.P4, Tagdi Ex.P5, Chain

Ex.P6, silver chain Ex.P7, another silver chain Ex.P8, one piece of pyajeb Ex.P9, nath Ex.P10, one piece pyajeb Ex.P11, pendent Ex.P-12, broken pieces of small jewellery Ex.P13, Gold chain Ex.P14 and silver ring Ex.P15.

4. PW12, Ms. Pratibha Sisodia, has corroborated the version given by her mother-in-law, PW13, and has identified the appellant, Trilok, as one of the boys who had come inside the house on the pretext of drinking water. According to her it was Trilok who had put cash and ornaments in his bag. She has also identified the articles of jewellery Ex. P1/1 to Ex.P1/2, tops Ex.P2, tikka Ex.P3, ring Ex.P4, Tagdi Ex.P5, Chain Ex.P6, silver chain Ex.P7, another silver chain Ex.P8, one piece of pyajeb Ex.P9, nath Ex.P10, one piece pyajeb Ex.P11, pendent Ex.P- 12, broken pieces of small jewellery Ex.P13, Gold chain Ex.P14 and silver ring Ex.P15.

5. PW16, Inspector Harish Chandra Yatti, has proved the disclosure statement of the appellant as PW16/H and has stated that pursuant to the disclosure statement, the appellant got recovered a tin of ghee, which was lying in the drawer of the table of his room. On opening the said tin, some articles of jewellery were found lying which were seized by him vide memo Ex.PW11/G, after duly sealing the parcel with the seal HCY. He has identified pair of pyajeb Ex.P1/1, to P1/2, tops Ex. P2, tikka Ex.P3, ring Ex.P4, tagdi Ex.P5, chain Ex.P6, another silver chain Ex.P7, chain silver Ex.P8, pajeb one piece Ex.P9, neth Ex.P10, pajeb one piece Ex.P11, pendant Ex.P12 and some broken pieces of jewellery Ex.P13 (collectively) as the articles of recovered at the instance of the appellant, Trilok.

PW11, Rana Pratap Constable, has corroborated the deposition of PW16, Inspector Harish Chandra Yatti with respect to recovery of the jewellery articles at the instance of the appellant. He also has identified the articles of jewellery as pair of pyajeb Ex.P1/1, to P1/2, tops Ex. P2, tikka Ex.P3, ring Ex.P4, tagdi Ex.P5, chain Ex.P6, another silver chain Ex.P7, chain silver Ex.P8, pajeb one piece Ex.P9, neth Ex.P10, pajeb one piece Ex.P11, pendant Ex.P12 and some broken pieces of jewellery Ex.P13 (collectively), which were recovered at the instance of the appellant and were seized after duly sealing them with the seal of HCY.

PW15, Shahbuddin, Metropolitan Magistrate, is the Judicial Officer before whom the articles of jewellery were identified by PW12 and PW13 on 5.8.2004. The proceedings conducted by him are Ex.PW12/1.

6. Both PW12 and PW13 have identified the appellant as one of the persons who had participated in the robbery in their house. Admittedly, the appellant had refused to join TIP proposed by the IO, conducted by a Metropolitan Magistrate. The TiP was refused on the ground that he had been known to the witnesses. However, there is no evidence of the appellant having shown to either of them before he refused to join the TIP. Thus, the ground given by the appellant to the learned Metropolitan Magistrate, for refusing to join TIP was not bonafide. Hence, an adverse inference needs to be drawn against the appellant, that had he joined the TIP, he would have been identified by the eye witnesses. Similar view was taken by the Hon'ble Supreme Court in Suraj Pal Versus State of Haryana [(1995) 2 SCC 64]. The identification of the appellants in Court, coupled with their refusal to

join TIP, without any reasonable ground, is sufficient to establish their identity.

7. PW16/H is the statement made by the appellant, Trilok before Inspector Harish Chandra Yatti, whereby the appellant inter alia stated that he could get the jewellery recovered from the drawer of a table kept in a ghee tin. Since pursuant to the aforesaid statement the police officer discovered the fact that the articles of jewellery are lying the drawer of the table in the room of the appellant, to this extent, the aforesaid statement is admissible in evidence under Section 27 of the Evidence Act.

8. The depositions of PW16 Inspector Harish Chandra Yatti and PW11 Rana Pratap Constable, which I see no good reason to disbelieve also proves that the articles of jewellery - pair of pyajeb Ex.P1/1, to P1/2, tops Ex. P2, tikka Ex.P3, ring Ex.P4, tagdi Ex.P5, chain Ex.P6, another silver chain Ex.P7, chain silver Ex.P8, pajeb one piece Ex.P9, neth Ex.P10, pajeb one piece Ex.P11, pendant Ex.P12 and some broken pieces of jewellery Ex.P13 (collectively), were got recovered by the appellant from the drawer of the table, kept in a room. There are three possibilities with respect to the recovery of the jewellery at the instance of the appellant. The first possibility is that the appellant himself had kept the articles of jewellery in the aforesaid table, the second possibility is that he had seen someone keeping the jewellery in the drawer of the table and the third possibility is that someone had told him that the articles of jewellery were lying in the room of the table. The appellant did not tell the Court as to how he had got to know that the jewellery stolen from the house of the informant was lying in the drawer of the table. He, on the other hand, altogether denied the recovery of the

jewellery at his instance. Therefore, it would only be appropriate and logical to presume that the appellant himself had kept the aforesaid articles of jewellery in the drawer of the table from where it was later on got recovered by him.

9. The jewellery stolen from their house was duly identified by PW12 & PW13 before a Magistrate XXX. Therefore, PW12 & PW13 who must be using these articles of jewellery were in a position to identify them. Moreover, the appellant does not claim ownership of these articles. It, thus, stands proved that the articles stolen during the robbery had come into possession of the appellant between 24 th and 31st May, 2004.

10. The theft of the jewellery took place on 24.5.2004 whereas the jewellery was got recovered on 31.05.2004. Considering the short time lag between the date of theft and the date of recovery of the jewellery, the possession of the appellant would certainly be a recent possession and, therefore, since he has not offered any explanation for his possession of the aforesaid articles, in view of the provisions contained in Section 114(a) of the Evidence Act, the Court can presume that either he had committed theft of the aforesaid articles of jewellery or he had received or retained the same knowing or having reasons to believe the same to be stolen property. In the facts & circumstances of the case, including the identification of the appellant by PW12 & PW13 in the Court the appropriate presumption would be that he had committed theft of the aforesaid articles along with his accomplices on 24.5.2004. I, therefore, find no ground to interfere with the conviction of the appellant under Sections 392/34A of IPC.

11. The learned counsel for the appellant submits that the appellant is not a previous convict and a perusal of the nominal roll dated 4.3.2010 would show that on that date he had already spent four (4) years, three (3) months and twenty-seven (27) days in jail besides earning remission of two (2) months and the unexpired portion of the sentence on that date was only six (6) months and three (3) days. The appellant was granted bail on 18.3.2010, meaning thereby that he has already spent more than four and a half years in jail including the remission earned by him. Considering the period already spent by the appellant in jail coupled with the fact that he is not a previous convict, he is sentenced to undergo for a period of four (4) years & six (6) months and is also directed to pay fine of Rs.5,000/-, if not already paid, or to undergo fifteen (15) days simple imprisonment in default. The appellant is granted four (4) weeks to deposit the fine failing which he shall surrender before the trial court to undergo the sentence awarded to him in default of payment of fine. If the appellant neither deposits the fine nor surrenders before the trial court to undergo the imprisonment in default of payment of fine, the trial court will take appropriate steps for his being arrested and detained in the prison for undergoing the sentence awarded to him in default of payment of fine.

The appeal stands disposed of accordingly.

JANUARY 08, 2014                                           V.K. JAIN, J.
b'nesh