Shyambir vs State Govt. Of Nct Of Delhi
2014 Latest Caselaw 1471 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : March 19, 2014
                                DECIDED ON : March 20, 2014

+                                CRL.A. 310/2012

       SHYAMBIR                                       ..... Appellant
                          Through : Mr.Pramod Kr.Dubey with Mr.Shiv
                                   Pande, Advocates.

                          Versus

       STATE GOVT. OF NCT OF DELHI                ..... Respondent
                     Through : Mr.Lovkesh Sawhny, APP.
                              SI Manjeet Kumar, PS South Campus.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 05.10.2011 in

Sessions Case No.95/11 arising out of FIR No.56/10 registered at Police

Station Dhaula Kuan by which the appellant-Shyambir was held guilty for

committing offence under Section 392 read with Section 397 IPC. By an

order on sentence dated 10.10.2011, he was awarded RI for five years

with fine 5,000/- under Section 392 IPC and RI for seven years under

Section 397 IPC. Both the substantive sentences were to operate

concurrently.

2. Allegations against the appellant were that on 27.03.2010 at

about 11.30 a.m. at or near Arjun Vihar Bus Stand, Dhaula Kaun, he and

his associates Jaswant and Sanjay @ Ajay in furtherance of common

intention committed robbery and deprived Nirmla Devi of her gold chain

and gold ear-tops while she was travelling in a private bus. The appellant

was apprehended at some distance after chase and crime weapon i.e. knife

was recovered from his possession. His associates Jaswant and Sanjay @

Ajay succeeded to flee the spot. Subsequently, they were arrested and

some recoveries were effected. Statements of witnesses conversant with

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

was submitted in the court against all of them; they were duly charged;

and brought to trial. It is relevant to note that Sanjay @ Ajay expired

during trial and proceedings against him were dropped as 'abated'. In 313

statements, the contesting accused persons denied their complicity in the

crime and pleaded false implication. The trial court by the impugned

judgment convicted Shyambir for the offences mentioned previously

while Jaswant was acquitted of all the charges. It is apt to note that the

State did not challenge his acquittal. Being aggrieved by the impugned

judgment, the appellant has preferred the appeal.

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

examined the file. Appellant's counsel urged that the trial court did not

appreciate the evidence in its proper and true perspective. The appellant

was convicted with the aid of Section 397 IPC only. However, acquittal

of co-accused Jaswant shows that he did not share common intention with

him. No recovery of the stolen articles was effected from his possession.

The investigating officer did not move any application for holding Test

Identification Proceedings. The military-man who had apprehended the

appellant was not examined and produced. Learned APP for the State

urged that the complainant, her husband and nephew identified the

appellant as one of the assailants who committed robbery and there are no

sound reasons to interfere in the impugned judgment which is based upon

fair appraisal of the evidence.

4. The police machinery came into motion when information

was conveyed and recorded by Daily Dairy (DD) No.15A (Ex.PW-2/C) at

police station Dhaula Kuan about the apprehension of a snatcher. The

investigation was assigned to ASI Ramesh Chand (PW-8) who went to the

spot and lodged First Information Report after recording complainant-

Nirmla Devi's statement (Ex.PW-1/A). In her complainant, Nirmla Devi

gave detailed account of the incident as to how and under what

circumstances she was robbed of her golden chain and ear-rings by the

assailants in the bus while using a knife. She also disclosed that two of

the assailants were successful to flee on a motor-cycle and the appellant

was apprehended by a military-man. She also disclosed about the

recovery of knife from his possession. While appearing in the court, she

proved the version given to the police at the first instance without any

deviation. She identified Shyambir as one of the assailants and attributed

specific role to him. She deposed that accused Sanjay touched her gold

chain which she was wearing and snatched it. When she tried to raise

alarm, Shyambir (the appellant) took out a knife and threatened her not to

raise voice. Sanjay while running away removed her golden ear-tops.

Thereafter, Sanjay and Shyambir got down from the bus from the back

gate and the third assailant asked the driver to continue to drive the bus.

She further deposed that Shyambir was apprehend near the spot along

with a knife. Her statement (Ex.PW-1/A) was recorded by the police on

arrival. She identified knife (Ex.P1) as crime weapon. She was cross-

examined by the accused. However, no material discrepancies could be

extracted to disbelieve her statement. All material facts deposed by the

witness remained unchallenged and uncontroverted. She suffered injuries

and was medically examined by Dr.Mukesh Nandan (CW-1) by MLC

(Ex.CW1/A), where the nature of injuries was opined as 'simple'. The

accused did not deny his apprehension at the spot with a knife and the role

attributed to him.

5. PW-3 (Jagdish Prasad-her husband) and PW-6 (Vinay Kumar

Tiwari) who were travelling in the said bus, fully corroborated her version

without any deviation. They also identified Shyambir as one of the

assailants who used knife to extend threats while his associates robbed the

complainant of her valuable articles. They also proved his apprehension

with a knife soon after the occurrence at the spot. Again, their cross-

examination did not yield any fruitful result to benefit the appellant. No

ulterior motive was assigned to any of these witnesses, who had no prior

acquaintance with the appellant, to falsely implicate and identify him.

Non-examination of military-man, who was instrumental in apprehending

the appellant, is of no consequence as he has been identified without any

hesitation by the material witnesses who had direct confrontation with him

inside the bus. Acquittal of co-accused Jaswant due to lack of evidence

and lapses on the part of investigation is inconsequential to give benefit of

doubt to the appellant who has been recognized as one of the assailants

and who had facilitated the commission of robbery by co-accused. Knife

(Ex.P1) recovered from the accused was a buttandar knife; a prohibited

weapon under the Arms Act. Its sketch (Ex.PW-3/A) reveals its size and

dimension. Apparently, it was a 'deadly' weapon used while committing

robbery. The accused did not give plausible explanation to the

incriminating circumstances appearing against him. He did not give

reasonable explanation about his presence with a knife inside the bus at

the relevant time. Since the appellant was arrested soon after the incident

at the spot, there was no necessity to conduct Test Identification

Proceedings. The testimony of the prosecution witnesses is consistent and

they have corroborated each other on all material facts. There is nothing

to disbelieve and discard their clinching evidence in the absence of any

prior animosity or ill-will. The conviction of the appellant under Section

392 with the aid of Section 397 IPC cannot be faulted and is affirmed. The

sentence order cannot be modified as minimum sentence prescribed under

Section 397 IPC is seven years. However, default sentence awarded by the

trial court for non-payment of fine can be modified to some extent

considering the poor economic condition of the appellant.

6. In the light of the above discussion, while maintaining the

conviction under Section 392 read with Section 397 IPC, the sentence

order is modified to the extent that default sentence for non-payment of

fine of `5,000/- will be fifteen days instead of three months. Other terms

and conditions of the sentence order are left undisturbed.

7. The appeal stands disposed of in the above terms. Trial

Court record along with a copy of this order be sent back forthwith.

(S.P.GARG) JUDGE March 20, 2014 sa