Rajiv vs State
2014 Latest Caselaw 1253 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                   Reserved on: 21.02.2014
%                                              Date of Decision: 10.03.2014

+                             CRL.A. 219 of 2010

RAJIV                                                 ..... Appellant
                         Through:    Mr. Mohit Mathur, Mr. Shishir Mathur
                                     & Mr. Pankaj Verma, Advs.

                                      versus

STATE                                                 ..... Respondent
                         Through:    Mr. Feroz Khan Ghazi, APP.
CORAM:
HON‟BLE MR. JUSTICE V.K.JAIN

                                    JUDGEMENT

V.K.JAIN, J.

On 26.4.1999, on receipt of copy of DD No.25, S.I. Manoj Kumar

of Police Station Saraswati Vihar reached F-304, Rashmi Apartment

where the statement of the complainant Sushil Agarwal was recorded by

him. The complainant told him that on the aforesaid date at about 11:15

a.m., he withdrew Rs.9.55 lakh from Bank of Punjab, Sector-8, Rohini.

Out of the aforesaid amount of Rs.9.55 lakh, Rs.65,000/- were paid by

him to one Naresh Jain and out of the remaining amount Rs.8.00 lakh

were kept by him in a parachute bag of yellow colour which he handed

over to his employee Babu Lal. The balance amount of Rs.90,000/-

were kept by him in a canvas bag, which he hung on the handle of his

scooter. Thereafter both of them were going on the scooter being driven

by him. On the Outer Ring Road in front of Section 8, Rohini, on

crossing half of the road, he had to stop his scooter, as traffic was

coming on the road from the other side. In the meanwhile, a white

colour Maruti car bearing No.DL1C D 1652 came from behind and two

boys got out of the said car. One of the boys was tall and slim, whereas

the other boy was rather short and well-built. The slim boy put a

country made pistol on his neck, whereas the other boy started snatching

bag from Babu Lal. When he resisted, that boy put a country made

pistol on the temple of Babu Lal. Both the bags were snatched from

them and thereafter they boarded the vehicle from which they had got

down and sped towards Peera Garhi Chowk. He further stated that the

aforesaid car was already in start position and he could feel that one or

two other boys were sitting in it though he could not see properly on

account of the glasses of the car being dark. He claimed that he could

identify the boys if brought before him. He further stated that being

scared, they went home and since his mother was not well, he did not

share the incident in the house. In the evening, on the advise of the

persons known to him he thought of reporting the incident and

accordingly his brother Sunil informed Police Control Room in this

regard. An FIR under Section 392/34 of IPC was registered on the

aforesaid statement of Shri Sushil Agarwal.

2. On receipt of information regarding recovery of car No.DL1C D

1652, inquiry with respect to the owner of the aforesaid car was made

and his statement was recorded. During investigation, the Investigating

Officer (for short „IO‟) received information about the arrest of the

appellant Rajiv under Section 41.1 of the Code of Criminal Procedure,

1908. After obtaining his production warrant, he was formally arrested

in this case and attempt was made to get him identified in a TIP. The

appellant Rajiv, however, refused to join TIP whereafter his police

remand was obtained. This is also the case of the prosecution that the

appellant Rajiv got recovered a country made pistol while in police

custody.

3. As many as four persons were chargesheeted after completion of

investigation. They were charged under Sections 392/397/34 of IPC.

The appellant Rajiv was also charged under Section 25 of the Arms Act.

The accused persons having pleaded not guilty, twenty-three (23)

witnesses were examined by the prosecution. Three (3) witnesses were

examined in defence.

4. The complainant Shri Sushil Kumar Agarwal came in the witness

box as PW20 and inter alia stated that on 26.4.1999, he withdrew

Rs.9.55 lakh from Bank of Punjab, Sector-8, Rohini, out of which

Rs.65,000/- were paid by him to Mr. Naresh Jain, whom he had called at

the bank and out of the remaining amount, Rs.8.00 lakh were kept in a

polythene bag, whereas the balance amount of Rs.90,000/- was kept in a

canvas bag. He further stated that when they were going on Outer Ring

Road on the scooter being driven by him and Babu Lal, the pillion rider

carrying Rs.8.00 lakh with him in a bag and Rs.90,000/- in the bag hung

on the handle of the scooter, he had to stop the scooter due to parking of

a truck on the road side. Immediately one Maruti car came over there

and was stopped aside their scooter. Two persons, one of whom was a

thin built person put a country made pistol on his parietal region,

whereas the other person who was healthy and fat pointed a country

made pistol/katta on the head of Babu Lal and they snatched both the

bags, and they ran away in the car towards Peera Garhi Chowk. He

along with Babu Lal chased them but could not follow, they being at

high speed. Thereafter they became perplexed and came to his house.

Since his mother was serious they could not disclose the incident to the

family members. He, however, informed his younger brother Sunil

Agarwal in this regard who immediately came to the house and

informed the police. The witness identified the appellant Rajiv as the

boy who had come to him. He also pointed out the other boy who had

pointed country made pistol on the parietal region of Babu Lal.

5. Babu Lal came in the witness box as PW13 and corroborated the

deposition of the complainant with respect to withdrawing money from

the bank, keeping Rs.8.00 lakh in one bag and Rs.90,000/- in the other

bag. However, regarding the other bag, he stated that it had been kept

on the foot of the scooter near its dicky. He further stated that they

stopped the scooter at the red light as the vehicles were coming on the

road from the other side. A car came from their behind, two (2) persons

got out of the car and put country made pistols on them. Those persons

snatched their bags and sped away in the Maruti car No.DL1C D 1652.

He inter alia identified the appellant Rajiv as the person who had put

country made pistol on Sushil. According to him the accused Ashwani

was the other boy who, along with Rajiv, had snatched their bags. He

also identified another accused Harvinder as the person who was sitting

on the backseat of the car and accused Sajan as the person who was

driving the aforesaid Maruti car.

6. PW2, Sunil Kumar Agarwal is the brother of the complainant. He

stated that on 26.4.1999, his brother told him that two boys had robbed

them of Rs.8.90 lakh at gun point. On coming to know of it he made a

telephone call to the police. In the cross-examination he stated that his

brother had returned home at about 12:00 noon and the police was

informed by him at about 8:00 p.m. He denied the suggestion of the

accused persons including the appellant Rajiv that no incident of

robbery had taken place and his brother has embezzled the amount in

question after withdrawing it from the bank.

7. PW4 Naresh Arya is the owner of the aforesaid car. He stated

that the aforesaid car was stolen on 25.4.1999, from a Banquet Hall on

Delhi Road, Rohtak and an FIR in this regard was lodged by him with

the Police Station Civil Lines, Rohtak.

PW8 Head Constable Satish Kumar inter alia stated that on

25.6.1999, the appellant Rajiv had got recovered a country made pistol

from a park between A & B Block of Saraswati Vihar after removing

the earth. He claimed that one live cartridge was found in the chamber

of the pistol. He identified the pistol Ex.P2 as well as the cartridge

Ex.P3.

PW7 Constable Harvinder Kumar stated that on 26.4.1999,

Maruti car No. No.DL1C D 1612 was found parked abandoned and was

seized.

PW9 Constable Rampal stated that on 26.6.1999, the appellant

Rajiv got recovered a country made pistol from „C‟ Block park, which

was seized vide memo Ex.PW8/C.

PW11 Constable Mahender stated that on 20.6.1999, they came to

the court with the accused Rajiv for his TIP and when he was produced

before a Magistrate, he refused to join the TIP.

PW19 Shri P.D. Gupta stated that on 26.6.1999 when he was

working as Metropolitan Magistrate, the application for TIP of the

appellant Rajiv was assigned to him. He (Rajiv), however, refused to

participate in the TIP vide proceedings Ex.PW19/G.

PW22 S.I. Manoj Kumar is the IO of the case. He inter alia

stated that on 20.6.1999, on receipt of information about arrest of the

appellant Rajiv under Section 41.1 of Cr.P.C. he collected the copy of

the disclosure statement made by him and after interrogating him he was

formally arrested and produced before the Magistrate in muffled face.

He further stated that on 24.6.1999, the appellant Rajiv refused to join

Tip before a Metropolitan Magistrate.

8. In his statement under Section 313 Cr.P.C., the appellant denied

the allegations against him and claimed that he had been kept in the

illegal custody by Crime Cell, Sonepat since 28.4.1999.

9. DW1 Sukhbir is the father of the appellant Rajiv. He inter alia

stated that on 29.4.1999, a police party headed by ASI Satbir Singh of

Crime Branch, Sonepat and including four (4) officials from Delhi

Police came to his house and took Rajiv as well as other accused

Harvinder with them on the ground that they were required in a case

registered in Police Station Jahangirpuri, Delhi. He further stated that

both of them were kept confined in Sonepat Crime Branch for about one

(1) week.

DW2 Raj Singh stated that on 29.4.1999, some police officials

from Delhi and some police officials from Sonepat came to their village

and took Rajiv and Harvinder with them.

10. Vide impugned judgement dated 27.11.1999, the appellant Rajiv

as well as his co-accused Ashwani were convicted under Sections

392/397/34 of IPC whereas another accused was convicted under

Section 392/34 of the Indian Penal Code. Vide Order on Sentence dated

30.11.2009, the appellant Rajiv was sentenced to undergo RI for eight

(8) years and to pay fine of Rs.10,000/- or to undergo SI for six (6)

months in default. Being aggrieved from his conviction and sentence

awarded to him, the appellant is before this Court by way of this appeal.

11. The impugned judgement has been assailed by the learned

counsel for the appellant primarily on the following grounds:

a. No witness from the bank was examined to prove the alleged

withdrawal of Rs.9.55 lakh.

b. The appellant was acquitted of the charge under Section 25 of the

Arms Act.

c. The appellant was shown to the witnesses while in police custody.

d. There is unexplained delay of more than eight (8) hours in

lodging the FIR.

12. The learned counsel for the appellant has filed a copy of the

judgment dated 25.03.2009, whereby the appellant and his co-accused

Ashwani and Harvinder were acquitted of the charge under Section 379

of IPC for committing theft of car No.DL1CD-1652, in which the

robbers are alleged to have fled away after commission of robbery. A

perusal of the said judgment would show that neither the complainant

Shri Sushil Agarwal nor the eye-witness Babu Lal Sharma were

produced in the aforesaid case. The case of the prosecution was based

on the recovery of the car and the disclosure statements alleged to have

been made by the accused persons. The car had already been recovered

lying abundant before the accused in the aforesaid case were arrested. It

was, therefore, held by the Trial Court that there was no evidence of the

accused having committed theft of the said vehicle or having received or

retained it knowing or having reason to believe the same to be stolen

property. Since neither the complainant nor Babu Lal Sharma were

produced as eye-witnesses in the aforesaid case, the Trial Court had no

occasion to consider their deposition and then take a view on the charge

of theft of the vehicle. In the case before this Court, the appellant have

been convicted for committing robbery in Delhi, and not for committing

theft of the vehicle from Haryana, which is a distinct offence. The

robbery committed in this case was not a part of the same transaction in

which the vehicle was stolen from Haryana. Therefore, acquittal of the

appellant on the charge of theft of the vehicle would have no bearing on

his conviction for committing robbery.

13. The learned counsel for the appellant has relied upon Balak Ram

vs. State 24 (1983) DLT 142. The said judgment, however, would have

no application in the case before this Court since the appellants were

armed with country-made pistol and not with knives. A perusal of the

said judgment would show that one of the issues which arose before the

Court in the aforesaid case was whether the knife alleged to have been

used in that case was a deadly weapon. It was observed that what would

make a knife deadly is its design or the manner of its use such as is

calculated to or is likely to produce death and, therefore, it is a question

of fact to be proved by the prosecution that the knife used by the

accused was a deadly one. Noticing that the knife alleged to have been

recovered from the accused had neither been shown to the victim when

he came to depose nor had he given any description of the knife, it was

observed that the accused could legitimately claim that the weapon used

by him had not been proved to be a deadly one. However, the said

judgment would not apply in the present case since the weapon alleged

to have been used by the appellants were country-made pistols and this

is nobody‟s case that country-made pistols are not deadly weapons.

14. The learned counsel for the appellant contended that since despite

having been charged, the appellant was not convicted under Section 25

of Arms Act, that amounts to his acquittal in respect of the said charge

which, in turn, would falsify the case of the prosecution that fire arms

were used during commission of robbery. In support of his contention,

the learned counsel for the appellant has relied upon Diwan Vs. Raja

Ram & Ors. AIR 1941 Oudh 575. In Diwan (supra), the trial court had

convicted seventeen (17) persons under Section 323, 147 & 426 of IPC.

It appeared from the order sheet that one Raja Ram who was also one of

the accused was acquitted though there was no mention whatever in the

judgement passed by the trial court. The appeals filed by the convicted

persons were dismissed. While dismissing the appeals, the learned

Additional Sessions Judge noted that the trial court had sentenced only

sixteen (16) accused though one Bhagwan Baksh had also been

convicted and had appealed against his conviction. The appeal filed by

Bhagwan Baksh was also dismissed. He also noted that there was no

order of acquittal of Raja Ram but in the order sheet it had been

mentioned that he had been acquitted, which in the opinion of the

learned Additional Sessions Judge amounted to an irregularity and not

an illegality. He also noted that the conviction was under Section 323

and not under Section 325 of IPC though the complainant Diwan had

received grievous injury. The accused persons filed a criminal revision

in the High Court. On the application filed by the injured Diwan a

reference was made by the learned Sessions Judge to the High Court for

enhancement of sentence. Remading the matter back to the trial court

for a fresh trial after framing proper charges, the High Court inter alia

observed that there was disregard of Sections 258 & 367 of the Code of

Criminal Procedure since it is imperative for the Court to record an

order of acquittal in case the trial court finds the accused not guilty. It

was further observed that under Section 367(2), the judgement is to

specify the offences of which and the Sections of the Penal Code or

other law under which the accused is convicted but despite that there

was no order of conviction or acquittal in the judgement as far as

Bhagwan Baksh was concerned. It was also observed that though the

accused had not been convicted under Sections 325/149 of IPC despite

having been charged under the said Sections, this could be regard as

their implied acquittal of the said offences.

I fail to appreciate how this judgement would apply to the facts of

the present case. It is true that the appellant was charged under Section

25 of the Arms Act and the impugned judgement contains no order

either of acquittal or of conviction in respect of the said charge, but that

would have no bearing on the charge of robbery, since there is no

finding rendered by the trial court that the appellant had not participated

in the incident or that he was not armed at that time. The appellant, of

course, gets a benefit of the said lapse on the part of the learned trial

Judge since he has not been convicted and sentenced under the Arms

Act.

15. The learned counsel for the appellant points out that according to

the complainant, on reaching home he did not share the incident with his

family members since his mother was not well whereas according to

PW13 Babu Lal, the information with respect to the incident was shared

with mother and sister of the complainant. The said contradiction, to

my mind, cannot be said to be material, since it has no bearing on the

incident of robbery. The only advantage which the appellant gets, even

if the deposition of Babu Lal is preferred over the deposition of the

complainant in this regard is that the reason given by the complainant

for the delay in reporting the matter to the police would be taken as

incorrect. The main reason why the courts insist on prompt registration

of FIR is that sometimes delay in lodging of FIR may result in

manipulations and false implications. However, a delayed FIR is not

per se illegal and the case of the prosecution, if otherwise proved cannot

be rejected merely on account of a few hours delay in reporting the

matter to the police.

The Hon‟ble Supreme Court noted in Ravinder Kumar Vs. State

of Punjab 2001 VII AD (SC) 2009, that the law has not fixed any time

limit for lodging FIR and delayed FIR is not illegal. Though prompt

lodging of FIR is ideal, that by itself does not guarantee the genuineness

of the version given in it. Whenever there is delay in lodging FIR, the

Court ought to look for reasons, if any. But, delay by itself cannot be

the sole ground to doubt and discard the entire case of the prosecution

though it does put the Court, on guard, to look for explanation, if any.

The court needs to appreciate that the complainant underwent a

harrowing experience when he was robbed of a huge amount at the point

of a gun. A person who experiences an incident of this nature is bound

to get scared and lose his nerves for quite some time. It is a natural

course of human conduct in such circumstances to go home and control

nerves, before the matter is reported to the police. This is also a natural

conduct of the victim of such a crime to consult his family members

before reporting the incident to the police and that precisely appears to

be the reason why the complainant called his brother Sunil Agarwal to

the house and then shared the incident with him. Since no names were

given in the FIR, it cannot be said that the delay was actuated by intent

to implicate some innocent person. It is also not uncommon not to

report such incidents to the police and to accept the financial loss,

instead of taking the hassles of going to the police station, answering the

queries of police officers and then visiting the court repeatedly in case

the culprits are caught and are subjected to trial. That appears to be the

reason why the complainant consulted his brother and there was delay of

a few hours in reporting the incident to the police.

16. It was pointed out by the learned counsel for the appellant that

according to PW13 Babu Lal they had withdrawn Rs.9.56 lakh from the

bank whereas according to the complainant, the amount withdrawn by

him was Rs.9.55 lakh. It appears to me that there was a typographical

error in the deposition of Babu Lal in this regard. If the figures of

Rs.90,000/-, Rs.65,000/- & Rs.8.00 lakh are added, the total amount

comes to Rs.9.55 lakh and not to Rs.9.56 lakh.

17. As regards, the alleged failure of the prosecution to examine the

bank official to prove the withdrawal of Rs.9.55 lakh, no doubt, the

Investigating Officer ought to have examined the bank official since the

name of the bank had been given to him by the complainant. However,

the benefit of defect of investigation does not automatically accrue to

the accused. The court, in such circumstances is required to evaluate the

evidence produced by the prosecution de hors the defect in investigation

and find out whether the said evidence is credible and trustworthy so

that conviction can be safely based on it.

As held by the Hon‟ble Suprme Court in Karnel Singh vs. State of

M.P. JT 1995 (6) SC 437, it is not proper to acquit the person due to

defective investigation, if the case otherwise stands established, since

doing so would be falling in to the hands of the erring Investigating

Officer.

The Apex Court in Dhanaj Singh @ Shera & Ors. v. State of

Punjab (2004) 3 SCC 654, held, "in the case of a defective investigation

the Court has to be circumspect in evaluating the evidence. But it would

not be right in acquitting an accused person solely on account of the

defect; to do so would tantamount to playing into the hands of the

investigating officer if the investigation is designedly defective."

The Apex Court in the case of Paras Yadav v. State of Bihar AIR

1999 SC 644, enunciated the principle, in conformity with the previous

judgments, that if the lapse or omission is committed by the

investigating agency, negligently or otherwise, the prosecution evidence

is required to be examined de hors such omissions to find out whether

the said evidence is reliable or not. The contaminated conduct of

officials should not stand in the way of evaluating the evidence by the

courts, otherwise the designed mischief would be perpetuated and

justice would be denied to the complainant party.

Having examined the deposition of the complainant, which finds

corroboration not only from Shri Babu Lal but also from his brother Shri

Sunil Agarwal, I see no reason to disbelieve the deposition of the

witnesses in this regard. It would be appropriate to note here that

neither the complainant nor other witnesses had anything to gain by

cooking up a false story of robbery. The car, number of which was

provided to the police, was later found abandoned and it was also

discovered that it was a stolen car. This is yet another circumstance

which corroborates the deposition of the complainant and Babu Lal in

this Regard.

18. The deposition of Shri Sushil Agarwal and PW13 Babu Lal shows

that it was the appellant Rajiv who armed with a country made pistol,

along with his associate, snatched two bags - one containing Rs.8.00

lakh and the other containing Rs.90,000/-. He was also the person who

had put country made pistol on the complainant Sushil Agarwal PW20.

In the FIR the person who intimidated the complainant with a country

made pistol was described as a thin, tall boy. During trial, the

complainant referred to the appellant Rajiv as the thin boy. This was

not the case of the appellant during cross-examination of the

complainant or Babu Lal that he was not tall or slim. Thus, he did not

dispute the description given by the witnesses.

The appellant Rajiv refused to join TIP on the ground that he had

been shown to the witnesses. However, there is absolutely no evidence

which would show that he was shown either to the complainant or to

PW13 Babu Lal at any time before he refused to join TIP. In fact, there

is no evidence of either of these two witnesses even having met the

Investigating Officer, after arrest of the appellant Rajiv and before his

refusing to join the TIP. Therefore, the appellant has failed to show

existence of the circumstance from which the court may infer that he

was shown to either of the eye-witnesses, while in police custody and

before he refused to join TIP. I, therefore, conclude that the appellant

Rajiv refused to join TIP without any justification. Hence, an adverse

inference can be drawn that had he joined the TIP he would have been

identified by the witnesses and that was the reason he refused to

participate in the said proceedings.

19. Since the appellant put a country made pistol on the parietal

region of the complainant, before he and his associates snatched the

bags containing cash, he used the country made pistol, which is a deadly

weapon, during commission of the robbery, the obvious purpose being

to scare and intimidate the complainant and his companion so that they

do not resist the snatching of the bags containing cash from them. The

appellant Rajiv, therefore, has rightly been convicted under Section 392

of IPC read with Section 397 thereof. Therefore, his conviction under

the aforesaid Sections is affirmed. However, in the facts &

circumstances of the case, the substantive sentence awarded to the

appellant is reduced to seven (7) years and it is also directed that in the

event of failure to pay fine he would undergo SI for fifteen (15) days.

The appeal stands disposed of accordingly.

One copy of this order be sent to the concerned Jail

Superintendent for information & necessary action.

LCR be sent back along with a copy of this order.

MARCH 10, 2014                                              V.K. JAIN, J.
b'nesh/BG