Sanjay vs State
2014 Latest Caselaw 317 Del

$~R-11, R-12 & R-13
*      IN THE HIGH COURT OF DELHI AT NEW DELHI
%                       Judgment Reserved on:09.10.2014
                       Judgment Delivered on:17.01.2014
+      CRL.A.31/2006

       SANJAY                                       ..... Appellant

                             Through:    Mr.Puneet Singhal, Adv. along
                                         with accused in person.

                             versus

       STATE                                        ..... Respondent

                             Through:    Ms.Fizani Hussain, APP along
                                         with SI Amarjeet.

+      CRL.A.575/2006

       SUNIL KUMAR @ PEHALWAN                       ..... Appellant

                             Through:    Mr.Puneet Singhal, Adv.

                             versus

       STATE                                        ..... Respondent

                             Through:    Ms.Fizani Hussain, APP along
                                         with SI Amarjeet.

+      CRL.A.905/2006

       SUNIL @ SOMI                                        ..... Appellant

                             Through:    Mr.Puneet Singhal, Adv. along
                                         with accused in person.

                             versus
Crl.A Nos.31/2006, 575/2006 & 905/2006                       Page 1 of 17
        STATE                                         ..... Respondent

                             Through:     Ms.Fizani Hussain, APP along
                                          with SI Amarjeet.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 On 19.11.2001 at about 11.00 a.m. in house No.C-174, Sector-1,

Avantika, of the complainant Kamla Devi (PW-1), the

appellants/accused had while committing robbery had also caused

injuries upon her person.

2 There were four persons involved in the incident namely Sunil

Kumar @ Pehalwan, Sajay, Jai Pal and Sunil @ Somi. Jai Pal has since

suffered the sentence imposed upon him. The other three accused are

before this Court.

3 All the accused persons were convicted for the offences under

Sections 452/392/394 read with Section 34 IPC. Accused Sunil Kumar

@ Pehalwan and accused Sanjay were also separately convicted for

offence under Section 397 of the IPC and Section 37/54/59 of the Arms

Act. While appellant Sunil Kumar @ Pehalwan was found to be in

possession of a buttondar knife; appellant Sanjay was found to be in

illegal possession of a country made pistol.

4 All the aforenoted accused persons had been convicted and had

been sentenced to undergo rigorous imprisonment for a period of 7 years

and to pay fine of Rs.500/- in default of payment of fine to undergo

rigorous imprisonment for 3 months under Section 394 IPC; for the

offence under Section 452 of the IPC the accused persons had been

sentenced to undergo rigorous imprisonment for 5 years and to pay fine

of Rs.500/- in default of payment of fine to undergo rigorous

imprisonment for 3 months. Accused Sanjay and Sunil Kumar @

Pehalwan had also been convicted under Section 27 of the Arms Act

read with Section 397 of the IPC but no separate sentence was imposed

qua the said offences.

5 Star witness of the prosecution was Kamla Devi examined as

PW-1. She had deposed that at about 11.00 a.m. while she was about to

close the main door accused Sunil @ Pehalwan along with Sanjay had

entered into her house; she questioned them; they caught her and took

her inside the bathroom; two more boys entered the house and joined

them. Amongst the four boys two persons opened her Almirah and took

out the jewellery lying there. The two persons present in the bathroom

were armed; one of them was armed with one a knife and the other was

armed with a country made pistol; he put it on her chest. She started

crying. Accused Sunil @ Pehalwan had stabbed her on her head. The

accused robbed her of two pairs of bangles, 4-5 rings, one set, three

chains, a pair of tops and cash amounting to Rs.12,000/-.

6 Rajesh Kumar Sharma (PW-2) neighbor of the complainant

informed the police; he had found PW-1 lying in an injured condition

and bleeding from her head.

7 Unfortunately, for the offenders, matriculation certificate of Sunil

@ Pehalwan had been left at the crime scene. This certificate was from

the Board of School Education Haryana. It was verified from the

Competent Authority and vide report Ex. PW-4/B the correctness of the

said certificate had been certified. It was this certificate which had led

to the apprehension of the accused persons.

8 At this stage it would also be relevant to note that the incident had

occurred on 19.11.2001 at about 11.00 a.m. it was reported in the local

police station vide DD No.15A at 12.00 noon. The MLC of the victim

was conducted on the same day at 2.40 p.m. vide document Ex. PW-6/A

proved through Dr.Raj Mohan Divedi (PW-6). Ex.PW-6/A had

evidenced injuries on the left parietal scalp region of the victim.

9 Investigation was marked to H.C. Subash (PW-9) who along with

H.C.Dhari Ram (PW-7) reached the spot. Crime team was summoned.

Photographer Arjun (PW-3) had taken the photographs of the site

Ex.PW-3/A to C; negatives of which proved as Ex.PW-3/A1 to C1.

Dog squad was summoned but as per the Dog Squad Incharge Constable

Virender Singh (PW-12) no clue could be found. The finger print expert

SI Naresh Kumar (PW-11) was summoned. Two chance prints from the

jewellery box and four chance prints from iron safe were taken.

10 SI Praveen Lodhi (PW-15) was the investigating officer. He

along with H.C. Rishi Raj (PW-14) had gone to the house of accused

Sunil @ Pehalwan where he was arrested. His disclosure statement

Ex. PW-7/S was recorded. Pursuant to his disclosure statement he got

recovered two gold bangles, one gold jhumka and one buttondar knife

from underneath the bed of his house which were sealed and seized vide

memo Ex. Ex.PW-7/S-3 and Ex.PW-7/S-2 respectively.

11 This disclosure statement had also disclosed the complicity of

other co-accused Sanjay, Sunil @ Somi. Sanjay was arrested. His

disclosure statement Ex.PW-7/T was recorded. He got recovered a

necklace, one ring, one ear ring and a country made pistol along with

three live cartridges. They were taken into possession vide memo

Ex.PW-7/T-2 and Ex. PW-7/T-3 respectively.

12 Accused Jai Pal was thereafter arrested. His disclosure statement

Ex.PW-7/X was recorded. As noted supra he has already suffered his

period of the sentenced. It may thus not be relevant to discuss the

evidence qua him.

13 Sunil @ Somi was thereafter arrested on 21.11.2011. His

disclosure statement Ex.PW-7/Y was recorded. Pursuant to his

disclosure statement he got recovered two bangles, one jhumka, one ring

and eight silver coins and a shirt; they were seized and sealed vide

memo Ex. PW-7/Y-1.

14 Sanction for prosecution under Section 39 of the Arms Act was

obtained and proved through SI Satish Bhardwaj (PW-16). Sanction

had been granted by the then Additional DCP. TIP of the accused

persons as also of the case property was also ordered. PW-1 had

identified accused Sanjay in the TIP proceeding. Other accused persons

had refused TIP. The TIP of the case property was also conducted. The

TIP proceedings were proved through Learned ARC Inderjeet Singh

(PW-17) as Ex.PW-17/A to H.

15 This was the gist of the version of the prosecution.

16 In the statement of the accused recorded under Section 313 of the

Cr.P.C. they pleaded innocence. Their submission was that they have

been falsely implicated.

17     No evidence was led in defence.

18     On behalf of the appellant arguments have been addressed in

detailed by Mr.Puneet Singhal, Advocate. At the outset, learned counsel

for the appellants submits that the offence is of the year 2001 and all the

appellants have been on bail since the year 2006. It is pointed out that

per the nominal roll, appellant Sanjay has since undergone incarceration

for a period of 5 years; Sunil @ Somi has undergone incarceration for a

period of 4 years 8 months which is exclusive of the period of remission

earned. Appellant Sunil @ Pehalwan has undergone incarceration for a

period of 4 years 9 months. It is stated that Sanjay and Sunil @ Somi

are both married and they have families; whereas Sanjay is aged 40

years; he has two children aged 18 years and 6 years; Sunil @ Somi is

aged 33 years and is now doing work of white wash and has a family.

They were both present in the course of hearing. Sunil @ Pehalwan

could not be traced. On the bailable warrants issued against him it was

reported that he had become a Sadhu Baba and his parents have

disinherited him.

19 It is submitted that in this background the sentence already

undergone by them should be the sentence imposed upon them. In the

alternate on merits, testimony of PW-1 has been assailed. It is pointed

out that no specific role has been attributed by PW-1 to any of the

accused persons. In the absence of this conviction of the appellants

Sanjay and Sunil @ Pehalwan under Section 397 is not called for as this

is an individual offence. It is pointed out that the identification of the

accused is also doubtful for the reason that PW-1 in her deposition has

admitted that the photograph of Sanjay had been shown to her before

she had identified him in the TIP. Thus the TIP becomes an eye-wash.

It is further stated that because of the reason that the photographs of the

other accused also might have been shown to the complainant, they

refused the TIP; as such their refusal to join the TIP was for a valid

reason and should not be read adversely against them. It is submitted

that the recoveries are doubtful not only of the alleged pistol and the

knife but also of the jewellery articles as no specific mark of

identification was admittedly present either on the weapons of offence

or on the jewellery articles. No public witness had joined any of these

recoveries. It is pointed out that Kamla Devi (PW-1) has admitted that

she knew one of the co-accused Jai Pal since 17-18 years. Thus it is

clear that PW-1 because of family rivalry had falsely implicated all the

accused persons. Benefit of doubt accrues to them and they are entitled

to an acquittal.

20 Learned public prosecutor has refuted the submissions of the

learned counsel for the appellants. It is submitted that the impugned

judgment does not call for any interference. Period of incarceration

already undergone by the three accused persons is not under challenge.

Learned public prosecutor points out that appellant Sanjay and Sunil @

Pehalwan had been convicted under Section 397 IPC for which there is

minimum punishment prescribed which is of 7 years and as such this

Court cannot sentence the appellants for a lesser period as has been

argued by the learned counsel for the appellant. On merits, it is stated

that the conviction calls for no interference.

21 It is largely the testimony of PW-1 which has to decide the fate of

the appellants. PW-1 was the complainant. On oath in court she has

reiterated the averments which have been made in her complaint.

Relevant would it be to state that within less than one hour of the

incident the information reached the local police station; the incident

had occurred at 11.00 a.m. and the first DD entry was recorded at 12.00

Noon. Accused persons had entered the house of the victim. Accused

Sunil @ Pehalwan was armed with a knife; he stabbed the victim in her

head. Accused Sanjay was armed with a pistol. Jai Pal and Sunil @

Somi opened the almirah and had taken the jewellery items; they had

taken two sets of bangles, four rings, one set, three chains, 21 silver

coins, three pairs of ear rings and cash of Rs.12,000/-. Appellant Sunil

@ Pehalwan snatched the ear rings which PW-1 was wearing.

Appellant Sunil had got blood stains at the time when he stabbed the

victim. He had removed his blood shirt and exchanged it for the shirt of

the husband of PW-1. The accused persons thereafter fled away. PW-1

was removed to the hospital by PW-2. She was medically examined and

as noted supra her medical evidence shows that she had suffered an

incised wound measuring 1.5 cm x. 5 cm. on her left parietal region.

There was an abrasion on her right forearm and contusion on both the

forearms. This document speaks volumes and fully corroborates the

version of PW-1.

22 In her cross-examination PW-1 admitted that her statement was

recorded once in the hospital and thereafter in the police station. She

had joined TIP proceedings. She admitted that the incident lasted for

1½ hours. In the cross-examination certain questions have been put to

her by learned defence counsel and her purported improvements qua her

earlier statement (Ex.PW-1/A) have been put to her but nothing material

has been elicited. She admitted that she knew Jai Pal for the 17-18

years; she did not name him in the FIR as his face was muffled. She

denied the suggestion that he has been falsely implicated. She admitted

that she had gone to the police station where all the accused persons

were sitting; she identified them in the police station. Some of her gold

articles were recovered but not all. Cash amount of Rs.12,000/- as also

2 bangles, 2 chains, one gents ring, two ladies rings and eleven coins

were not recovered. She had gone to identify the recovered articles at

Tis Hazari.

23 The TIP proceedings i.e. of the accused and of the stolen articles

were conducted by PW-17 on 28.11.2001. Accused Sanjay was put to

TIP where PW-1 amongst 10 other similar persons had identified him

correctly in the said proceedings. Other accused persons as noted supra

i.e. Jai Pal, Sunil @ Pehalwan and Sunil @ Somi had refused the TIP.

There is nothing in the version of PW-1 or of any other witness of the

prosecution which evidences that the photo of Sanjay had been shown to

her prior to her identifying him in the said TIP. This argument of the

learned counsel for appellants is not born out from the record. Version

of PW-1 also has to be read as a whole. Although in one part of her

version she has stated that she had gone to police station where she had

identified the accused persons yet it is not in dispute and is also evident

from Ex.PW-17/A to Ex.PW-17/H that the TIP was conducted of the

accused persons on 28.11.2001 where for the first time PW-1 had been

asked to identify the accused. In fact this version has been explained in

a later part of her testimony wherein she has stated that after the incident

for the next one month she did not move out of her house meaning

thereby up to 19th December 2001 she had probably not visited the

police station. The TIP had been conducted at Tis Hazari in this

intervening period i.e. on 28.11.2001. This testimony in fact fully

establishes that PW-1 had not gone to the police station for the purpose

of identification prior to the accused having been put to TIP.

24 What has emanated from the aforenoted versions both oral and

documentary is that robbery had been committed in the house of PW-1

by the four persons i.e. the accused persons. All of them had been

correctly identified by her. Sanjay had been correctly identified by her

in the TIP and other accused Jail Pal, Sunil @ Pehalwan and Sunil @

Somi had willingly, consciously and voluntarily refused TIP. Adverse

inference against them for not joining TIP has to drawn. In these

circumstances, their identification in the court was a valid identification.

25 Shirt of the husband (Shiv Charan) of PW-1 had also been seized

from the house of Sunil @ Pehalwan which bore a sticker of the name of

Shiv Charan. This was identified by PW-1; this was the same shirt worn

by the appellant Sunil @ Pehalwan. She also identified the blood

stained shirt which the accused had left at the spot.

26 A buttondar knife which was recovered pursuant to the disclosure

statement of Sunil @ Pehalwan was seized vide memo Ex.PW-7/S-2; it

was attested by PW-7 & PW-14; both of whom had testified to this

document. The sketch of the knife shows that it has a blade of 11.4

c.m.. It was this knife which had been used by Sunil @ Pehalwan to

inflict injuries on the left parietal region of the scalp of PW-1. Not only

is the version of PW-1 clear on this count but the medical record also

corroborates this version. Recovery of this knife from Sunil @

Pehalwan stands proved.

27 A deshi katta/pistol was recovered from accused Sanjay. Sketch

of the pistol was proved as Ex. PW-7/T-1. CFSL vide its report Ex.PX

had opined this country made pistol of .315 bore along with the three

live cartridges (which had been seized vide memo Ex. PW7/T-2 and

Ex.PW-7/T-3) to be in a working condition. It was described as a

firearm under the Arms Act, 1959. This recovery also stood proved.

28 Prosecution has thus been successfully able to establish that the

accused persons had entered the house of PW-1and while appellant

Sanjay was armed with the pistol; Sunil @ Pehalwan had a buttondar

knife by which he had inflicted injuries on the head of PW-1 pursuant to

which she had been examined and remained in the hospital for the whole

day.

29 From each of the accused persons jewellery articles were also

recovered. Appellant Sunil @ Pehalwan pursuant to his disclosure

statement had got recovered two gold bangles and a jhumka from

underneath the mattress of his bed from the first floor of his house

which were taken into possession vide memo Ex.PW-7/S3. Appellant

Sanjay pursuant to his disclosure statement Ex.PW-7/T-3 got recovered

one gold necklace, one ring, one ear ring. Appellant Sunil @ Somi

pursuant to his disclosure statement Ex.PW-7/Y got recovered two gold

bangles, one jhumka, one ring and eight silver coins from almirah in his

room which were taken into possession vide memo Ex.PW-7/Y-1.

30 TIP of the jewellery articles was also conducted by PW-17. The

TIP proceedings sheet running into three pages have certified that PW-1

had correctly identified the articles belonging to her amongst similarly

placed other jewellery articles which had been taken out from separate

pullandas. She had correctly identified the bangles, coins, rings, her

chain, jhumkas and tops belonging to her. She had also correctly

identified the shirt of her husband which has been placed with three

other shirts of similar nature.

31 Prosecution has been able to establish its case to the hilt.

32 The conviction of the appellant on no count calls for any

interference.

33 As noted supra Sunil @ Somi has been convicted under Section

394 of the IPC. He has already undergone 4 years and 8 months. He is

on bail since 2006. He has not abused that process. He has a family; he

is presently doing work of white wash. He was present in the court

during the course of hearing. He has also paid the fine amount. Subject

to payment of fine of Rs.10,000/- which shall be paid over to the victim

Kamla Devi within one week from today Sunil @ Somi is sentenced for

the period already undergone by him in default of payment of fine to

undergo simple imprisonment for three months.

34 Accused Sanjay and Sunil @ Pehalwan have been convicted and

sentenced under Sections 452,394 and 397 of the IPC. The conviction

under Section 397 of the IPC qua their roles - Sanjay having been found

in possession of a pistol and Sunil @ Pehalwan having used the knife

pursuant to which victim had suffered injuries on her left portion of her

head establishes that they had committed the offence under Section 397

of the IPC.

35 Section 397 of the IPC prescribed a minimum sentence of 7 years.

Appellant Sanjay has undergone a sentence of 5 years; appellant Sunil

@ Pehalwan has undergone a sentence of 4 years and 9 months.

Keeping in view the legislative mandate since the offence of the

appellants has been fully proved under Section 397 of the IPC both the

aforenoted accused Sanjay and Sunil @ Pehalwan are sentenced to

undergo the remaining portion of their sentence. Their bail bonds and

surety bonds stand cancelled.

36 Accused Sanjay is present in Court. He be taken into custody and

sent to jail to suffer the remaining portion of sentence. Appellant Sunil

@ Pehalwan is an absconder; non-bailable warrants be issued against

him; as and when he is arrested he shall be taken into custody to suffer

his remaining portion of the sentence.

37     Appeals are disposed of in the above terms.



                                             INDERMEET KAUR, J

JANUARY 17, 2014
ndn