Delhi High Court
Sher Singh @ Sheru vs State Nct Of Delhi on 21 March, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 18th MARCH, 2014
DECIDED ON : 21st MARCH, 2014
+ CRL.A.792/2012
SHER SINGH @ SHERU ..... Appellant
Through : Ms.Saahila Lamba, Advocate.
versus
STATE NCT OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
+ CRL.A.1321/2011
HARISH @ BUNTY ..... Appellant
Through : Ms.Kavita Kapil, Advocate.
versus
THE STATE (GNCT OF DELHI) ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
AND
+ CRL.A.583/2012
VINOD @ AJAY ..... Appellant
Through : Mr.Sumeet Verma, Advocate.
versus
THE STATE (GNCT OF DELHI) ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
CRL.A.Nos. 792/2012, 1321/2011 & 583/2012 Page 1 of 6
S.P.GARG, J.
1. Sher Singh @ Sheru (A-1), Harish @ Bunty (A-2) and Vinod
@ Ajay (A-3) impugn a judgment dated 09.08.2011 in Sessions Case No.
25/10 arising out of FIR No. 63/10 PS Bharat Nagar by which they were
held perpetrator of the crime under Sections 392/34 IPC. A-3 in addition
was convicted with the aid of Section 397. By an order on sentence dated
11.08.2011, A-1 and A-2 were awarded RI for five years with fine
`2,000/- and A-3 was awarded RI for seven years with fine ` 3,000/-. The
substantive sentences were to operate concurrently.
2. Allegations against the appellants were that on 05.03.2010 at
about 03.30 P.M. near gate of Ismail Khan park, GTK road, Delhi, they in
furtherance of common intention committed robbery and deprived
complainant - Brij Mohan of a purse containing ` 100/- and documents;
cash ` 5,600/-. A-3 was armed with a 'churi' at the time of commission of
robbery. Daily Diary (DD) No. 23A (Ex.PW-1/A) was recorded at PS
Bharat Nagar at about 04.08 P.M. on getting information of the incident.
The investigation was marked to HC Sudhir who went to the spot and
lodged First Information Report after recording complainant - Brij
Mohan's statement (Ex.PW-2/A). The complainant was able to apprehend
A-1 at the spot after some chase; A-2 and A-3 succeeded to flee the spot.
They were subsequently arrested pursuant to A-1's disclosure statement; a
knife was recovered at A-3's instance; ` 400/- were recovered from A-2's
possession. Statements of the witnesses conversant with the facts were
recorded. After completion of investigation, a charge-sheet was submitted
against all the accused persons; they were duly charged and brought to
trial. The prosecution examined six witnesses. In 313 statements, the
appellants pleaded false implication and denied their complicity in the
crime. The trial resulted in their conviction as aforesaid.
3. During hearing of the appeals, appellants' counsel on
instructions stated at Bar that the appellants have opted to not challenge
their conviction under Section 392/34 IPC. Their only plea was to modify
the sentence order as the appellants have remained in custody for
substantial period. It is further argued that Section 397 IPC is not attracted
as the prosecution was unable to establish beyond doubt if any 'deadly'
weapon was used at the time of committing robbery.
4. Since the appellants have given up challenge to the findings
recorded by the Trial Court under Section 392/34 IPC in view of the
clinching evidence of PW-2 (Brij Mohan) coupled with recovery of the
robbed / stolen articles, their conviction under Section 392/34 IPC is
affirmed. A-3 has been awarded punishment with the aid of Section 397
IPC as he allegedly used a knife at the time of committing robbery. Daily
Diary (DD) No. 23A (Ex.PW-1/A) recorded on the basis of the
information given by the complainant does not record use of any weapon
by the assailants. When the Investigating Officer went to the spot, the
complainant handed over him A-1's custody. He was not in possession of
any knife that time. The crime weapon i.e. knife (Ex.P-6) is alleged to
have been recovered pursuant to A-3's disclosure statement. However,
prosecution witnesses have given divergent and conflicting version in this
regard. The complainant - Brij Mohan in the examination-in-chief
identified A-3 to be the assailant who used the knife and it was recovered
at his instance after his arrest. However, in the cross-examination, he gave
entirely contradictory version and stated that the knife was recovered by
A-1 near railway lines. The prosecution did not seek necessary
clarification. It is unclear at whose instance the crime weapon was
recovered. PW-2 (Brij Mohan) was unable to give the measurement of the
knife used in the incident. Admittedly, no injuries were caused to the
complainant with any weapon. It is not clear which of the assailant was in
possession of a deadly weapon at the time of incident. If knife (Ex.P-6)
was recovered at A-1's instance, it is difficult to believe that it was used
by A-3. No independent public witness was associated at the time of
alleged recovery of knife. In the statement (Ex.PW-2/A), complainant did
not give description of the assailant who used the knife at the time of
occurrence. A-3's conviction with the aid of Section 397 IPC cannot be
sustained as the prosecution failed to establish beyond doubt that it was A-
3 who was in possession of a deadly weapon and it was used by him.
Resultantly, while maintaining conviction under Section 392/34 IPC,
conviction with the aid of Section 397 IPC is set aside.
5. A-1's nominal roll dated 03.08.2013 reveals that he suffered
custody in this case for three years, four months and twenty three days
besides remission for seven months and eleven days as on 30.07.2013.
The unexpired portion was only eleven months and twenty six days on
that date. He was granted suspension of sentence by an order dated
29.08.2013. He is a first offender and is not involved in any other criminal
case; his overall jail conduct was satisfactory. A-2's nominal roll dated
29.11.2011 shows that he remained in custody for one year, eight months
and twenty three days besides remission for twenty seven days as on
28.11.2011. His substantive sentence was suspended by an order dated
12.12.2011 where it was noted that he had already undergone nearly two
years out of the total sentence of five years. He is not involved in any
other criminal case and his overall jail conduct was satisfactory. A-3's
nominal roll dated 31.10.2013 demonstrates that he has suffered custody
in this case for three years, seven months and twenty four days besides
remission for eight months and twenty six days as on 31.10.2013 before
enlargement on bail by an order dated 21.11.2013. He is also not a
previous convict and has clean antecedents.
6. Considering the facts and circumstances of the case, the
period already undergone in custody by the appellants in this case is taken
as their substantive sentence.
7. Appeals stand disposed of in the above terms. Trial Court
record be sent back immediately with the copy of the order. A copy of the
order be sent to the Superintendent jail for information.
(S.P.GARG)
JUDGE
MARCH 21, 2014/tr
