Juber Khan @ Guddu vs State
2014 Latest Caselaw 1448 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                        RESERVED ON : March 13, 2014
                                        DECIDED ON : March 19, 2014

+      CRL.A. 743/2011 & CRL.M.B.No. 467/2014
       JUBER KHAN @ GUDDU                                     ..... Appellant
                             Through :       Mr.Harihar Guin, Advocate.

                             versus

       STATE                                                 ..... Respondent
                             Through :       Mr.Lovkesh Sawhney, APP.


+      CRL.A. 833/2011
       SHRAVAN @ SONU                                         ..... Appellant
                             Through :       Mr.Vivek Sood, Advocate.

                             versus

       STATE NCT OF DELHI                                    ..... Respondent
                     Through :               Mr.Lovkesh Sawhney, APP.

+      CRL.A. 851/2011 & CRL.M.B.No. 292/2014
       GURMEET SINGH @ SITU                                   ..... Appellant
                             Through :       Mr.Rajpal Rai Dua, Advocate.

                             versus

       STATE                                                 ..... Respondent
                             Through :       Mr.Lovkesh Sawhney, APP.


Crl.A.No.743/2011 & connected appeals                          Page 1 of 9
 +      CRL.A. 622/2011 & CRL.M.B.No. 216/2014
       SONU @ RANJHA                                       ..... Appellant
                             Through :   Ms.Rakhi Dubey, Advocate.

                             versus

       STATE                                             ..... Respondent
                             Through :   Mr.Lovkesh Sawhney, APP.


        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Juber Khan @ Guddu (A-1), Shravan @ Sonu (A-2),

Gurmeet Singh @ Sitoo (A-3) and Sonu @ Ranjha (A-4) challenge the

correctness and legality of a judgment dated 25.04.2011 in Sessions Case

No.26/10 arising out of FIR No.255/05 registered at Police Station

Timarpur by which they were held guilty for committing offences under

Sections 392/397 IPC. By an order on sentence dated 28.04.2011, they

were awarded RI for five years with fine `5,000/- each under Section 392

IPC and RI for seven years each under Section 397 IPC. The substantive

sentences were to operate concurrently.

2. Allegations against the appellants as projected in the charge-

sheet were that on 27.5.2005 at about 02.00 a.m. at House No.123/2, First

Floor, Sant Nagar, Burari, they committed robbery and deprived

complainant-Sandeep Kumar of various jewellery articles, cash, wrist

watch, cameras, mobile phone make Samsung while armed with deadly

weapons. Daily Diary (DD) No.8 (Ex.PW-14/A) was recorded at 05.15

hours at Police Post Jharoda, Police Station Timarpur regarding the

incident. The investigation was assigned to ASI Rajender Singh. SI Sunil

Shrivastava and Const.Satish Pal also went to the spot. After recording

complainant-Sandeep Kumar's statement (Ex.PW-3/A), he lodged First

Information Report. Efforts were made to find out the culprits but in vain.

On 31.05.2005 A-2, A-3 and A-4 were arrested in case FIR No.210/05

under Section 399/402 IPC registered at Police Station Sarai Rohilla.

Pursuant to disclosure statements, their involvement in the present case

surfaced and some recoveries were effected at their instance. On

07.09.2005, A-1 surrendered in the court in FIR No.210/05. Applications

were moved for holding Test Identification Proceedings and the accused

persons declined to participate in it. Statements of witnesses conversant

with the facts were recorded. After completion of investigation, a charge-

sheet was filed against all of them; they were duly charged and brought to

trial. The prosecution examined 20 witnesses to bring home their guilt.

In 313 statements, the accused persons pleaded false implication. The

trial resulted in their conviction as aforesaid. Being aggrieved and

dissatisfied, they have preferred the appeals.

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

arguments, learned counsel for A-1, A-3 and A-4, on instructions, did not

challenge the findings of the trial court on conviction under Section 392

IPC. Their only grievance was that the offence under Section 397 IPC

was not attracted and proved. No crime weapon allegedly used during the

incident was recovered from the possession of the accused or at their

instance. Prayer was made to modify the sentence order and to release the

appellants for the period already undergone in custody by them. Learned

counsel for A-2 urged that he was not named in the FIR despite the fact

that he was known to the complainant. No crime weapon was recovered

from his possession.

4. Crucial testimony to infer the guilt of the appellants is that of

PW-1 (Rashmi), who gave detailed account of the incident and deposed

that on the night intervening 27/28.05.05 at about 02.00 a.m. four

assailants, one of which was armed with a pistol and the others were

having 'big' churras entered forcibly in their house. She also disclosed as

to how they were threatened to part with the jewellery articles and cash at

the point of weapons. She clarified that she was caught hold by A-2 and

A-4 whereas her husband was caught hold by A-1 and A-3. A-1 was

armed with a pistol and A-2 to A-4 were having big knives. She attributed

specific role to A-4 who had threatened to stab her husband if they did not

hand-over the articles on his counting upto six. She gave the complete

description of the articles robbed. The assailants left after tying their

hands and legs. She identified gold necklace (Ex.P-1), four gold bangles

(Ex.P-2/A-1 to A-4), three pairs silver paijabs along with two pairs of

bichaus (Ex.P-3/A-1 to A-6), mobile phone make Samsung (Ex.P-4) and

wrist watch (Ex.P-5) recovered subsequently. PW-3 (Sandeep Kumar)

corroborated her version in its entirety without any deviation. He also

identified all the accused persons who had robbed them at the point of

pistol/knives. He also assigned specific role to each of the assailants in

committing robbery. Despite their cross-examination at length, no

material discrepancy or contradiction emerged to disbelieve their version.

These witnesses had no extraneous consideration to fake the incident of

robbery at odd hours at their residence. They suffered injuries during

robbery at the hands of the assailants. They were taken to Aruna Asaf Ali

Government hospital and were medically examined by PW-16

(Dr.Kumud Bharti) by MLCs (Ex.PW-16/A and Ex.PW-16/B). The

injuries were opined as 'simple caused by blunt object.'

5. The appellants were arrested in case FIR No.210/05 under

Section 399/402 IPC registered at Police Station Sarai Rohilla and their

disclosure statements were recorded. A-2 pursuant to his disclosure

statement (Ex.PW-11/C) recovered three pairs of 'paijabs' and two pairs

of 'bichhuas' from his house at Nathu Pura. A-4 pursuant to his disclosure

statement (Ex.PW-4/D) recovered wrist watch (Ex.P-5) from his house

No. J-532, Sector-16, Rohini. A-3 recovered a mobile phone make

Samsung R-220 from his house and seized vide seizure memo (Ex.PW-

11/E). PW-5 (SI Sanjay Sharma) moved an application for production of

A-1 before the learned Metropolitan Magistrate and he appeared in

muffled face on 12.09.2005. With the permission of the court, SI Sanjay

Sharma interrogated him and recorded his disclosure statement (Ex.PW-

5/A). He declined to participate in the Test Identification Proceedings.

During police custody remand, he recovered jewellery articles from his

house at Delhi. All these articles recovered by the accused persons during

investigation were identified by the complainant in Test Identification

Proceedings before the Metropolitan Magistrate. The accused persons

could not give reasonable explanation to decline to participate in the Test

Identification Proceedings. Nothing has come in evidence to show that

they were shown to the prosecution witnesses before conducting Test

Identification Proceedings. The police of PS Timar Pur was not aware of

their arrest. Pursuant to the disclosure statement made in case FIR

No.210/05 registered at Police Station Sarai Rohilla their involvement in

the present case emerged. The police of Sarai Rohilla was able to effect

recovery of robbed articles from A-2 to A-4. There are no allegations that

they had shown the accused persons to the witnesses. In Court statements,

PW-2 and PW-3 categorically identified the accused persons without

hesitation.

6. Undisputedly, A-2 was known to the complainant prior to the

incident. PW-3 (Sandeep Kumar) admitted in the cross-examination that

A-2 worked in a factory near their house and he was known to him prior

to the occurrence. He further admitted that A-2 was not named in the

statement given to the police. Similarly, PW-1 (Rashmi) admitted in the

cross-examination that A-2 used to visit their house to get ice and cold

water. PW-1 and PW-3 did not give reasonable explanation as to why

A-2 was not named at the first instance in their statements given to the

police. The complainant had given detail description of the assailants but

omitted to disclose A-2's name. It is not the prosecution case that A-2

had covered his face and PWs 1 and 3 were not in a position to observe

his broad features. It appears that recovery of some stolen articles

subsequently at his instance convinced the complainant and his wife about

his involvement in the incident. A-2 was, however, not charged for

offence under Section 411 IPC. Since A-2 was known to the complainant

and his wife prior to the incident, he had reasonable justification to

decline to participate in the Test Identification Proceedings and no adverse

inference can be drawn against him. He deserves benefit of doubt.

7. Regarding Section 397 IPC, from the very inception, the

complainant's case was that the assailants were armed with deadly

weapons. One of them was having a pistol and the other three had 'big'

knives. In Court statement, the complainant identified A-1, who was

armed with a pistol and the others who were armed with 'big' knives.

Complainant (PW-3) and PW-1 (Rashmi) were not cross-examined

regarding the size of knives in possession of the assailants. When they

were arrested in FIR No.210/05 under Section 399/402 IPC registered at

Police Station Sarai Rohilla, they were found in possession of various

weapons. Merely because the crime weapons used in the incident were

not recovered, it does not discredit the testimony of PW-1 and PW-3 that

none of the assailants was armed with deadly weapons. Conviction of A-

1, A-3 and A-4 with the aid of Section 397 IPC recorded by the trial court

stands affirmed.

8. In the light of the above discussion, the appeals filed by A-1,

A-3 and A-4 are unmerited and are dismissed. A-2 given the benefit of

doubt and his appeal is accepted. The conviction and sentence of A-2 are

set aside. His bail bond and surety bond stand discharged. All pending

applications also stand disposed of.

9. Trial Court record along with a copy of this order be sent

back forthwith. A copy of the order be sent to Jail Superintendent, Tihar

Jail for intimation.

(S.P.GARG) JUDGE March 19, 2014 sa