Safeeq vs State Of Nct Of Delhi
2014 Latest Caselaw 3048 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 5th MAY, 2014
                                 DECIDED ON : 11th JULY, 2014

+     CRL.A.No.1404/2012 & CRL.M.B.No.1376/2013

      SAFEEQ                                              ..... Appellant

                           Through :     Mr.Vivek Sood, Advocate.

                           VERSUS

      STATE OF NCT OF DELHI                               ..... Respondent

                           Through :     Mr.M.N.Dudeja, APP.

AND

+            CRL.A.No.957/2012 & CRL.M.B.No.520/2014

      JAVED                                               ..... Appellant

                           Through :     Mr.Afroz Ahmad, Advocate.

                           VERSUS

      STATE                                               ..... Respondent

                           Through :     Mr.M.N.Dudeja, APP.
                    3
                    +6




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




Crl.A.No.1404/2012 & connected appeal.                           Page 1 of 8
 S.P.GARG, J.

1. Ramesh @ Safeeq (A-1) and Javed (A-2) challenge the

legality and correctness of a judgment dated 23.02.2012 of learned Addl.

Sessions Judge in Sessions Case No. 72/10 arising out of FIR No. 167/10

PS Karawal Nagar, by which A-1 was convicted under Sections

392/397/34 IPC and 25 Arms Act; A-2 was held guilty under Section

392/34 IPC. By an order dated 29.02.2012, A-1 was sentenced to undergo

RI for eight years with fine ` 40,000/- under Sections 392/397 IPC and RI

for two years with fine ` 10,000/- under Section 25 Arms Act; A-2 was

awarded RI for seven years with fine ` 25,000/-. The sentences were to

operate concurrently.

2. Shorn of details, the prosecution case as reflected in the

charge-sheet was that on 02.07.2010 at about 07.00 A.M. at Rama

Garden, Karawal Nagar, the appellants in furtherance of common

intention robbed Ramu after administering stupefying substance of 113

bags of almonds belonging to complainant Matadin, loaded for

transportation to Khari Baoli in a tempo bearing No.HR-38E-3500 at

pistol point. Ramu was a driver and A-1 a helper in the tempo. When the

tempo did not reach its destination, Madadin lodged complaint (Ex.PW-

1/A). The Investigating Officer lodged First Information Report for

commission of offence under Section 407 IPC. The investigation was

taken over by SI Chetan Singh. On 03.07.2010, Ramu was found lying

unconscious at Sahibabad and was brought at PS Karawal Nagar and

taken for medical examination. After recording Ramu's statement under

Section 161 Cr.P.C. Sections 392/397/34 IPC were added.

On 18.08.2010, on receipt of secret information vide Daily

Diary (DD) No.20 (Ex.PW-16/A), A-2 was arrested from Dusra Pusta,

Usmanpur and pursuant to his disclosure statement, 65 bags of almonds

were recovered from his rented accommodation. He recovered seven more

bags of almonds on 20.08.2010 from the house of his landlord Rohtas.

Recovery of ` 48,000/- being sale proceeds of robbed almonds was

effected. On 23.08.2010 at 04.30 P.M. on the basis of secret information

vide Daily Diary (DD) No.12 (Ex.PW-16/E), A-1 was arrested from

Khajuri Khas and he recovered 50 kg bags of almonds from the house of

his landlord Dheeraj at Khajuri Khas. A country-made pistol and two live

cartridges were also seized from his residence. During investigation,

statements of the witnesses conversant with the facts were recorded. The

exhibits were sent to Forensic Science Laboratory. After completion of

investigation, a charge-sheet under Sections 407/328/392/397/411/34 IPC

and 25 Arms Act was submitted in the Court against the accused; they

were duly charged and brought to trial. The prosecution examined

nineteen witnesses in all. In 313 statements, the accused persons pleaded

false implication and denied their complicity in the crime without

examining any witness in defence. The trial resulted in their conviction as

aforesaid. Being aggrieved, the appellants have challenged the conviction.

It is pertinent to note that State did not challenge the appellants' acquittal

under Sections 407/328 IPC.

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

examined the record. It is not in dispute that on 02.07.2010, 113 bags of

almonds were loaded in a tempo bearing No.HR-38E-3500 driven by PW-

8 (Ramu); A-1 was a helper / conductor in the tempo. PW-6 (Matadin),

the complainant, deposed that on 02.07.2010 Ramu informed him after

loading the goods in the tempo that he had started from Karawal Nagar for

Khari Baoli. When the tempo did not reach Khari Baoli, he lodged First

Information Report (Ex.PW-1/A) at PS Karawal Nagar. PW-12 (Akshay

Kumar Bhatia), PW-13 (Raju Bhatia) and PW-17 (Rakesh Bhatia) have

given consistent version that on 02.07.2010, PW-11 (Sheetal) made a

telephone call to them and apprised that the tempo containing cracked

almonds was missing on the way to Khari Baoli.

4. PW-8 (Ramu), driver in the tempo, deposed that at the time

of loading of the almonds in the truck on 02.07.2010, A-1 was with him as

conductor. At Zero Pusta, Usmanpur, after A-2 sat in the tempo, A-1

directed him to get down at pistol point and pulled him out from the

tempo. Since he was feeling giddiness due to administration of some

poisonous substance, he became unconscious and was not aware as to

what had happened. He further deposed that on the next day, on regaining

senses at the shop of one auto mechanic at Sahibabad, he contacted his

employer Matadin. PW-14 (Mobin) supported his version and stated that

while working at the auto mobile service station, he found Ramu under

intoxicated condition. On his asking, he made a telephone call on his

mobile to the owner of the vehicle, who arrived and took Ramu with him.

5. The prosecution examined PW-2 (Rajesh) who had rented his

accommodation to A-1 and A-2 about one and a half year before their

arrest. He deposed that on 18.08.2010, A-2 was in police custody and 65

bags of almonds already recovered by him were loaded in a tempo parked

outside his house. PW-5 (Rohtas) testified that on 03.08.2010 A-2 took a

room on rent from him in his house No.D-325, Bhim Gali, Vijay Colony,

New Usmanpur, Delhi and kept his goods in the room on 04.08.2010.

After four or five days, the room started remaining locked. On

20.08.2010, A-2 in police custody recovered 7 bags of almonds from the

said room seized vide seizure memo (Ex.PW-5/A). PW-6 (Matadin) also

corroborated their version without major variations. PW-6 (Matadin)

further deposed that on 20.08.2010, A-2 recovered ` 48,000/- from near

Transport Nagar, Samaypur Badli, seized vide seizure memo (Ex.PW-

6/C). PW-10 (Mohd.Moosa) revealed that ` 48,000/- were handed over to

him by A-2 in the month of August to keep it as he did not have a safe

place. After 10 - 15 days, he handed over the cash to the police at A-2's

instance. A-2 did not give any explanation why cash ` 48,000/- was kept

with PW-10 (Mohd.Moosa) and from where he had arranged it. He did not

deny that the cash was sale proceeds of the robbed articles. The police is

not expected to plant a huge amount on his own. PW-6 (Matadin), PW-8

(Ramu), PW-9 (HC Surender Kumar) and PW-16 (ASI Amreek Singh)

gave consistent version that on 23.08.2010, A-1 pursuant to his disclosure

statement (Ex.PW-6/B) recovered one plastic bag containing almonds

from B-block, Khajuri from the house of Dheeraj. They also proved the

recovery of a country-made loaded katta and two live cartridges from

under the mattress at his house. Despite lengthy and in-depth cross-

examination, no material discrepancies could be elicited to discredit their

version. No ulterior motive was assigned to them for making false

statements. In 313 statements, the appellants did not offer plausible

explanation to the incriminating circumstances. All the relevant

contentions of the accused persons have been dealt with in the impugned

judgment which is based upon fair appraisal of the evidence and benefit

under Sections 328/407 IPC has been given to them. There are no good

reasons to disbelieve the statement of the complainant Matadin and victim

Ramu whereby the accused persons robbed 113 bags of almonds forcibly

using deadly weapon i.e. pistol in possession of A-1 that time. The

findings recorded by the Trial Court warrant no interference. The

independent public witnesses had no extraneous consideration to falsely

implicate the accused persons in the absence of any prior animosity.

6. A-1's nominal roll dated 13.11.2013 reveals that he has

suffered incarceration for three years, two months and fifteen days besides

remission for six months and seven days as on 11.11.2013; is not involved

in any other criminal activities; has clean antecedents; and, his overall jail

conduct is satisfactory. Sentence order dated 29.02.2012 records that he

was the sole bread earner of the family to take care of his seven younger

brothers and sisters besides parents. Considering all these circumstances,

sentence order is modified to the extent that A-1 shall undergo RI for

seven years with fine ` 2,000/- and default sentence would be SI for two

months under Section 392 read with Section 397 IPC. The sentence under

Section 25 Arms Act will be RI for two years with fine ` 1,000/- and the

default sentence would be SI for one month. The substantive sentences

shall run concurrently.

7. A-2's nominal roll dated 15.04.2014 shows that he has

suffered incarceration for three years, seven months and twenty five days

besides remission for eight months and seventeen days as on 15.04.2014;

has also clean antecedents; and, is not a previous convict. He is not

involved in any other criminal activities and is not a habitual offender; his

overall jail conduct is satisfactory. Taking into consideration the

mitigating circumstances, the sentence order is modified to the extent that

A-2 would undergo RI for five years with fine ` 2,000/- and non-payment

of fine would attract SI for two months under Sections 392/34 IPC.

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

applications also stand disposed of as infructuous. 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 JULY 11, 2014 / tr