Delhi High Court
Prem Singh @ Prem vs State Of Nct Of Delhi on 31 March, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : February 12, 2014
DECIDED ON : March 31, 2014
+ CRL.A. 1196/2012
PREM SINGH @ PREM ..... Appellant
Through : Mr.Ravi P.Shukla, Advocate with
Mr.Dananjay Singh, Advocate.
versus
STATE OF NCT OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
SI Sudeep Punia, PS Karol Bagh.
+ CRL.A. 1373/2012
SACHIN VERMA @ ASHU ..... Appellant
Through : Mr.Vimal Puggal, Advocate.
versus
THE STATE ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
SI Sudeep Punia, PS Karol Bagh.
+ CRL.A. 1206/2012
RAVI GUPTA @ RAVI ..... Appellant
Through : Mr.Ved Prakash, Advocate with
Mr.Amit Chaudhary, Advocate.
versus
THE STATE ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
SI Sudeep Punia, PS Karol Bagh.
Crl.A.No.1196/2012 & connected appeals Page 1 of 23
+ CRL.A. 1169/2012
GOPAL ..... Appellant
Through : Mr.R.K.Tarun, Advocate with
Mr.Anand Kumar, Advocate.
versus
STATE ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
SI Sudeep Punia, PS Karol Bagh.
+ CRL.A. 1291/2012
BHARAT ..... Appellant
Through : Mr.R.Chander Verma, Advocate.
versus
STATE ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
SI Sudeep Punia, PS Karol Bagh.
+ CRL.A. 280/2013
RAM SINGH ..... Appellant
Through : Mr.Gautam Khazanchi, counsel for
Mr.Siddharth Aggarwal, Advocate.
versus
STATE (GOVT. OF NCT) DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
SI Sudeep Punia, PS Karol Bagh.
CORAM:
MR. JUSTICE S.P.GARG
Crl.A.No.1196/2012 & connected appeals Page 2 of 23
S.P.GARG, J.
1. Prem Singh @ Prem (A-1), Sachin Verma @ Ashu (A-2),
Tarkeshwar @ Bittoo (A-3), Ravi Gupta @ Ravi (A-4), Gopal (A-5),
Bharat (A-6), Ravinder Singh (A-7), Rambishan @ Vishnu (A-8), Ram
Singh (A-9) and Bhim @ Sagar (A-10) were arrested by the police of PS
Karol Bagh in case FIR No.72/05 for committing offences under Sections
395/412/397/34 IPC. FIR Nos.84/2005, 85/05 and 86/05 were registered
in police station Karol Bagh against A-1, A-4 and A-9 respectively for
committing offences under Section 25 Arms Act.
2. On 03.02.2005, Daily Dairy (DD) No.40A was recorded at
08.45 p.m. at police station Karol Bagh on getting information about the
commission of robbery at Shop No. 36/3089, Karol Bagh. The
investigation was assigned to SI Baljeet Singh who with Const.Kundan
Singh went to the spot. After recording complainant-Saroop Santra's
statement (Ex.PW1/A), he lodged First Information Report. The
complainant disclosed that at about 8.15-8.30 p.m. when he was present in
the shop along with his worker Anant Bera and partner's brother Ram
Krishan, two individuals entered into his shop. One of them slapped him
as a result of which he fell down. The other assailant slapped Anant Bera.
In the meantime, their two associates entered into the shop; opened the
iron safe; and robbed the jewellery articles. The complainant further
disclosed that the assailant who was 'tall' in height and had an iron rod
inflicted injuries to him. After the robbery, the assailants sped the spot.
On 04.02.2005, Gopi Kishan Patra, complainant's partner, discovered that
3993 grams of gold jewellery was robbed from the shop. The police
swung into action to find out the culprits and succeeded to apprehend A-1
on the basis of secret information on 10.02.2005. A country made pistol
was recovered from his possession and FIR bearing No.84/05 was
registered against him. Pursuant to A-1's disclosure statement (Ex.PW-
9/C), involvement of his associates emerged and lead to the arrest of A-4
and A-9 with recoveries of weapon from their possession for which FIR
Nos.85/05 and 86/05 under Section 25 Arms Act were lodged. A-2, A-3,
A-5, A-6 and A-7 were also arrested. They all recovered robbed jewellery
articles. (A-1) recovered a gold chain and a kara from under the mattress
of the bed in a room of his house at House No.57/1726, Naiwalan, Karol
Bagh; at A-2's instance, one gold kara weighing 60 grams was recovered
from underneath the mattress of his house at A-32, Majlis Park, Adarsh
Nagar; gold jewellery weighing 120 grams was recovered from A-3's
possession; A-4 recovered gold jewellery weighing 187 grams; A-5
recovered 55 grams of robbed jewellery from the drawer of his shop at
3154, Gali No.34, Beadon Pura; and, similarly A-6, A-7 and A-8
recovered the jewellery articles on their apprehension. A-9 recovered
jewellery weighing 364 grams. A-10 was declared Proclaimed Offender.
Subsequently, he was arrested but nothing was recovered at his instance.
During the course of investigation, statements of witnesses conversant
with the facts were recorded. A-4 and A-9 declined to participate in the
TIP proceedings whereas A-1 was identified by PW-7 (Manu Karan). The
complainant recognized and identified the recovered articles in Test
Identification Proceedings in the court. The exhibits were sent to Forensic
Science Laboratory for examination. After completion of investigation, a
charge-sheet was filed against all the accused persons; they were duly
charged; and brought to trial. By an order dated 22.07.2005, they were
charged under Section 394/395 read with Section 397 IPC. Charges under
Section 411 IPC were framed against A-1 to A-9. The prosecution
examined 28 witnesses to substantiate the charges. In 313 statements, the
accused persons denied their complicity in the crime and alleged false
implication. They examined nine witnesses in defence. After
appreciating the evidence and considering the rival contentions of the
parties, the trial court by the impugned common judgment dated
25.08.2012 in FIRs Nos.72/05, 84/05, 85/05 and 86/05 (Sessions cases
Nos. 150/09 to 154/09), acquitted A-10 of all the charges. A-1, A-4 and
A-9 were convicted under Section 394/411/34 IPC and 25 Arms Act. A-2,
A-3, A-5, A-6, A-7 and A-8 were held guilty under Section 411 IPC. It is
relevant to note that the State did not challenge the said judgment. By an
order dated 14.09.2012 A-1, A-4 and A-9 were sentenced to undergo RI
for 07 years with fine `5,000/- each under Section 394 IPC; RI for six
months with fine `3,000/- each under Section 411 IPC and RI for 3 years
with fine `3,000/- each under Section 25 Arms Act. A-2, A-3, A-5, A-6,
A-7 and A-8 were sentenced to undergo RI for six months with fine
`3,000/- each under Section 411 IPC. Being aggrieved and dissatisfied,
A-1, A-2, A-4, A-5, A-6 and A-9 have preferred the appeals. It appears
that A-3, A-7 and A-8 have not challenged their conviction.
3. I have heard the learned counsel for the parties and have
examined the file. Appellants' counsel urged that the trial court did not
appreciate the evidence in its true and proper perspective and vital
discrepancies emerging in the statements of prosecution witnesses
regarding the identity of the appellants were ignored without cogent and
valid reasons. No independent public witness was associated at any stage
of investigation. The recoveries are suspect. The Investigating Officer
did not ascertain/assess the purity of the gold articles recovered. The
prosecution witnesses have given inconsistent and conflicting version of
the incident. Alternative plea to release the appellants for the period
already undergone by them has been made as the convicts have clean
antecedents and are not involved in any other criminal proceedings.
Learned APP urged that the impugned judgment is based upon the fair
appraisal of the evidence and needs no interference.
4. The incident of robbery at Shop No. 36/3089, Karol Bagh, 1st
Floor being run under the name and style of Vishavkarma Jewellers is not
under challenge. The complainant had no ulterior motive to fake the
incident in his shop where various jewellery articles weighing about 3993
grams gold were looted in a daring robbery. The occurrence took place at
about 08.30 p.m. and the police machinery was set in motion soon
thereafter by recording DD No.40A at around 08.45 p.m. The
Investigating Officer after recording complainant's statement (Ex.PW-
1/A) lodged First Information Report at 10.15 p.m. by sending rukka
(Ex.PW-8/A). The very fact that the complainant had not named the
suspects shows that he had no extraneous motive to fake robbery at his
shop and to falsely implicate the appellants. In the complaint (Ex.PW-
1/A), the complainant disclosed that firstly two individuals/assailants
entered into the shop. Subsequently, two of their associates came there
and they all committed robbery. The complainant did not describe the
broad features of the assailants. He merely stated that one of them was a
tall man of 5'/9-10" and the other was a little short in height. He,
however, claimed to identify the assailants. On 10.02.2005 and
11.02.2005 applications Ex.PW-20/A & Ex.PW20/B respectively for
holding Test Identification Proceedings were moved and on 24.02.2005,
Test Identification Proceedings (Ex.PW-20/C & Ex.PW-20/D) were
conducted. A-4 and A-9 declined to participate in TIP.
5. A-1 volunteered to participate in the TIP and was correctly
identified by PW-7 (Manu Karan) whereas complainant-Swaroop Santra
could not recognize him. PW-3 (Ram Kishan) and PW-4 (Som Nath) in
their Court statements did not identify any of the assailants. Identification
of the culprits by PW-5 (Anant Bera) was not believed by the trial court
due to contradictory statements given on two different dates. PW-7
(Manu Karan) was not a witness to the occurrence. None of the assailants
had entered inside the shop in his presence. He did not report the
occurrence to the police and the Investigating Officer did not record his
statement on the day of occurrence i.e.03.02.2005. PW-22 (SI Yashwant)
in the examination-in-chief disclosed that PW-7 Manu Karan's statement
under Section 161 Cr.P.C. was recorded on 06.02.2005 during local
enquiry. PW-7 (Manu Karan) deposed that at around 08.00 or 08.30 p.m.
on 03.02.2005, when he was coming down from the shop after finishing
his job, he noticed four persons going up in the stairs. When he returned
to the shop after 10 or 15 minutes, he came to know that the robbery had
taken place in the shop. He disclosed to the police that he could identify
those persons who were climbing the stairs. The testimony of this witness
inspires no confidence as his statement under Section 161 Cr.P.C. was
recorded after a considerable delay on 06.02.2005. No acceptable reasons
or explanation has been offered as to why PW-7 (Manu Karan) did not
come forward to record his statement or to describe the broad features of
the assailants allegedly seen by him in the stairs in promptitude. He had
no direct confrontation with any of the four assailants and had no
reasonable opportunity to recognize their faces in the stairs. A-1's
identification by him in TIP proceedings when the complainant himself
could not identify him cannot be believed. The Investigating Officer did
not explain as to why PW-7 was not joined for identification of the other
three assailants in the TIP proceedings. The complainant-Swaroop Santra
(PW-1), admittedly, did not identify A-1 in the Test Identification
Proceedings conducted soon after the occurrence. It is strange that when
he was examined in the court on 09.09.2005 after a gap of about seven
months, he was able to recognize A-1 as one of the assailants who had
entered inside the shop. The witness did not give any explanation as to
why he was unable to identify A-1 during Test Identification Proceedings.
In the cross-examination, he admitted that he had seen the accused
persons in the police station and had identified them before their TIP was
held in Tihar Jail. The trial court did not believe PW-7 Manu Karan's
testimony to prove the presence of A-5 as one of the assailants and he was
acquitted of the charges under Section 394/395 IPC. A-5 was acquainted
with the complainant prior to the incident and as per his deposition, he
used to come to meet him at the shop. Despite that, in his statement
(Ex.PW-1/A), he was not named as one of the assailants. Since none of
the prosecution witnesses was able to identify A-1 with cogent and
clinching evidence, he too deserves benefit of doubt and cannot be held
guilty under Section 394 IPC. No specific role was attributed to him. The
trial court did not agree with the prosecution that any one of them was
armed with a deadly weapon or it was used at the time of crime.
Regarding A-1's conviction under Section 411 IPC and 25
Arms Act, the prosecution examined various witnesses i.e. PW-9 (SI
Lekh Singh), PW-11 (HC Shashi Kumar) and PW-22 (Insp.Yashwant).
PW-9 (SI Lekh Singh) deposed that on 10.02.20015, A-1 was arrested on
the basis of secret information and from his pant a country made kata
loaded with a cartridge was recovered. Pursuant to disclosure statement
(Ex.PW-9/C), he recovered bunch of chains (Ex.P-1E) and a gold kara
(Ex.P-1D) from the room of his house No.57/1726, Naiwalan, Karol
Bagh. He also divulged the name of his accomplices as Tarkeshwar @
Bittoo, Ravi Gupta, Ram Singh, Vishnu, Ravinder, Bharat etc. The chain
and kara had identification mark G-S and 22C and were seized vide
seizure memos Ex.PW-9/D and Ex.PW-9/E respectively. A-1 did not
cross-examine the witness despite an opportunity given and his testimony
remained unchallenged and unrebutted. PW-11 (HC Shashi Kumar)
corroborated his version in its entirety and proved the recovery of a
country made pistol from his possession at the time of arrest. He also
deposed that A-1 recovered a chain about 119 grams and a bracelet about
122 grams from his house No.1726, Gali No.57, Naiwalan. In the cross-
examination, he explained that at the time of recovery from his house, his
parents and sister were present. Despite lengthy cross-examination,
nothing material emerged to disbelieve the version given by the witness.
A-1 did not examine any of his family members to falsify the plea of the
prosecution regarding recovery of these incriminating articles at his
instance. A-1 did not give plausible explanation as to how and under what
circumstances, he came into possession of the robbed articles. The
findings of the trial court in this regard are based upon fair appraisal of the
evidence and no deviation is called for. A-1's conviction under Section
25 Arms Act and 411 IPC stands affirmed.
6. A-4 and A-9 were identified by the complainant in his Court
statement without hesitation. He disclosed that A-4 and A-9 had entered
into the shop at the first instance. In the cross-examination, he disclosed
that the assailants faces were not muffled. He identified A-9 who was
'tall' in height and had a pistol. No ulterior motive was assigned to the
complainant for implicating A-4 and A-9. Nothing has come on record
that complainant had any prior animosity with them. In the absence of
previous animosity or ill-will, the complainant had no occasion to identify
an innocent one. The accused persons did not put any suggestions as to
where else they were present on the relevant date. Recovery of the robbed
articles at their instance pursuant to disclosure statements further connects
them with the crime. The police officials are not expected to plant huge
recovery of substantial value on their own. These articles which had
distinct features and identification marks were identified by the
complainant in Test Identification Proceedings in the court. The accused
persons failed to explain how and in what manner, they received or
retained these gold ornaments belonging to the complainant. The trial
court has dealt with all these aspects minutely and has given cogent
reasons to arrive at the findings of conviction of A-4 and A-9. I find no
valid reasons to deviate from the said findings. SI Baljeet Singh (PW-8)
and PW-18 (HC Kamal Singh) categorically proved A-4's apprehension
on 10.02.2005 at 12.00 noon and recovery of a country made pistol with a
cartridge from him. PW-11 (HC Shashi Kumar) proved recovery of one
bracelet weighing about 187 grams from A-4 after his arrest at about
01.30 p.m. which remained unchallenged in the cross-examination. PW-
22 (SI Yaswant) corroborated PW-11's statement and deposed that A-4
produced a gold 'kara' from the pocket on which words GS, 22C were
written. The said 'kara' was seized vide seizure memo (Ex.PW-9/L) In
the cross-examination, he revealed that A-4 had tried to flee but was
apprehended by SI Baljeet Singh (PW-8) and HC Kamal Singh (PW-18)
after some chase. A-4 handed over the 'kara' to him voluntarily after
taking it out from the pocket of his pant. He denied the suggestion that no
recovery was effected from A-4. Apparently, despite lengthy cross-
examination, no material inconsistencies could be extracted to disbelieve
the version of this witness who had no prior enmity with the appellant.
7. PW-10 ( ASI Ratan Kumar) proved A-9's apprehension on
11.02.2005 at around 06.20 a.m. and recovery of a country made pistol
from his right side pocket. On checking, it was found loaded with a
cartridge and FIR 86/05 was registered. He further disclosed that pursuant
to the disclosure statement (Ex.PW-10/D), A-9 recovered two gold karas
and 10 Chains (of gold) weighing 364 grams from the basement of Stuti
Building, Bank Street. A wooden box was lying there and from that
wooden box, the articles were taken out by A-9 and seized vide seizure
memo (Ex.PW-10/E). In the cross-examination, the witness denied the
suggestion that A-9 was apprehended when he had visited the police
station from his village Azamgarh to make an enquiry. Nothing material
could be elicited in the cross-examination except to put bald suggestions
to disbelieve the recovery of huge jewellery articles. PW-22 (SI
Yashwant) in the cross-examination, disclosed that on 11.02.2005 when
he along with his team left for investigation at 05.00 a.m., A-9 was
arrested around 06.30 a.m. The recovery was effected from the basement
at around 10.00 or 10.15 a.m. Site plan of the place of recovery
(Ex.PW22/G) was prepared. Mere suggestions were put to the witness
that no such article was recovered at his instance. No motive was
attributed to the witness to make false deposition.
Adducing the positive evidence discussed above, the
prosecution was able to establish beyond reasonable doubt that A-4 and
A-9 were among the assailants who committed robbery and in the process
caused hurt to the complainant. The conviction under Section 394 IPC
and under Section 25 Arms Act recorded by the trial court cannot be
faulted and is sustained. Since the articles recovered from the possession
of A-4 and A-9 were part of the robbed property for which they were held
perpetrators of crime under Section 394 IPC, their conviction under
Section 411 IPC for recovering or retaining those robbed articles is not
permissible; and is set aside.
8. A-2, A-5 and A-6 were charged along with A-1, A-4 and A-
9 for committing offences under Sections 395/394/34 read with Section
397 IPC. However, the prosecution was unable to collect any evidence
and the trial court acquitted them of all these charges.
Further allegations against A-2 were that on 10.02.2005, he
recovered one gold kara belonging to the complainant from his House
No.A-32, Manjlis Park, Adarsh Nagar, Delhi. No independent public
witness was associated at the stage of A-2's apprehension and recovery
effected at his instance. PW-22 (SI Yashwant) Investigating Officer
deposed that on 10.02.2005, he had called A-2 in the police station by a
notice under Section 160 Cr.P.C. A-2 was interrogated and his disclosure
statement (Ex.PW-9/H) was recorded after his arrest. He did not elaborate
as to what was the incriminating material against A-2 at that time to arrest
him. It is alleged that pursuant to disclosure statement, A-2 recovered one
golden kara from his house at A-32, Majlis Park, Adarsh Nagar, Delhi,
lying underneath the mattress and was seized by seizure memo (Ex.PW-
11/A). In the cross-examination, the Investigating Officer admitted that
notice under Section 160 Cr.P.C. was given to A-2 for the first time on
06.02.2005. Subsequently on 7/02/2005, 8/02/2005 and 9/02/2005 notices
under Section 160 Cr.P.C. were also given to him. He denied the
suggestion that A-2 was detained illegally on 5/6.02.2005 and was
released on 08.02.2005. It is unbelievable that A-2 would retain the gold
kara belonging to the complainant at his residence after coming to know
about his involvement on 05.02.2005. On 10.02.2005, A-2 had appeared
in the police station on his own. He did not abscond though the police had
suspected him as one of the assailants. No evidence was collected if A-2
was in exclusive possession of the house. It is also not clear as to when
and from whom A-2 had come into possession of the stolen article. The
robbed article was not recovered at the instance or pursuant to the
disclosure statement of the assailants who had committed robbery. Earlier
the case of the prosecution was that this gold kara came into A-2's
possession as his share in the robbery which it failed to establish during
trial. The recovery is suspect and discrepant and cannot be believed to
base conviction under Section 411 IPC. A-2 deserves benefit of doubt and
is acquitted.
9. A-6 was charged along with co-accused persons for
committing robbery under Sections 394/395/397 IPC. PW-22 (SI
Yashwant) deposed that on 10.02.2005, A-6 was arrested vide arrest
memo Ex.PW-11/O on the basis of secret information, at the pointing out
of secret informer at Ajmal Khan Road. Again, it was not explained as to
what was the incriminating material against A-6 at that time to apprehend
and arrest him. It is alleged that pursuant to disclosure statement
(Ex.PW11/N), A-6 led the police team to his workshop at 2 nd floor,
Beadon Pura, Karol Bagh and from the drawer of the table in the shop, A-
6 took out a golden 'kara' which was seized by seizure memo (Ex.PW-
11/M). In the cross-examination, the Investigating Officer admitted that
the adjoining shopkeepers were not joined at the time of alleged recovery
of the 'kara'. No documents were collected to show that A-6 was the
owner of the said shop. Nothing has come on record to show if the said
shop was close or open at that time or who else was present in the shop. It
is also not clear if A-6 was having the keys of the shop to open it. PW-11
(HC Shahi Kumar) deposed that after his apprehension from Ajmal Khan
Road near Gali No.5, Beadon Pura, A-6 led the police to his shop
No.2600, Gali No.5 and recovered one bracelet of about 172 grams. He
made a disclosure statement (Ex.PW-11/N) and was arrested vide memo
(Ex.PW-11/O). In the cross-examination, he stated that there was over-
writing in the arrest memo (Ex.PW-11/O) at point 'C' regarding the time
of arrest. There was no occasion for A-6 to remain standing alone in gali
at odd hours when he was alleged arrested at 11.30 p.m. He denied the
suggestion that the workshop in question was on the third floor and not on
the second floor. The Investigating Officer did not give plausible
explanation as to why the complainant or his partner were not associated
when they had a specific information about the golden jewellery lying at
A-6's workshop. The prosecution witnesses have given conflicting
statement whether A-6 was arrested at the first instance and pursuant to
his disclosure statement a golden kara (Ex.P-1K) was recovered or he was
arrested after its recovery. PW-12 (HC Hari Bhushan) in the examination-
in-chief disclosed that after his arrest, A-6 led the police to his shop at
34/3154, Beadon Pura, Karol Bagh and recovered one kara of 172 grams
from the drawer of the table. In response to the Court question, he
changed his version and stated that the recovery was effected from
2600/5, Beadon Pura, Karol Bagh at A-6's instance. The prosecution did
not collect cogent evidence as to when and from where A-6 had received
the stolen article and if so from whom and for what consideration. The
golden kara was not recovered at the instance of the robbers/assailants.
There is no evidence that anyone of them sold the gold kara to A-6 on any
specific date or that A-6 was aware that it was a robbed article. He also
deserves benefit of doubt and is acquitted under Section 411 IPC.
10. Prosecution case was that A-5 was one of the assailants who
had committed dacoity. PW-2 even identified him in his deposition and
attributed specific role that he had entered into the shop and had beaten
him. The trial court did not believe the prosecution in this regard and A-5
was acquitted of all the charges under Section 394/395/397 IPC. A-5 was
known to the complainant prior to the incident. Conflicting statements
have been given whether he had worked with A-1 as an employee or he
used to visit his partner Gopi Kishan. Despite having acquaintance with
A-5, in the statement (Ex.PW-1/A), he was not implicated and named by
the complainant. PW-22 (SI Yaswant) deposed that on 11.02.2005, A-5
was arrested on the pointing out of the informer at Sarswati Marg, near
Bank Street Crossing and his disclosure statement (Ex.PW-11/R) was
recorded. He did not disclose as to what were the grounds of his arrest at
that time. He was not in possession of any incriminating article. It is
alleged that he led the police to Gali No.34, Beadon Pura and recovered
one golden kara from the drawer in the shop which was seized by seizure
memo (Ex.PW-11/Q). In the cross-examination, he disclosed that A-5
was arrested on the night intervening 10/11.02.2005 at around 01.00 a.m.
when he was moving in the street. Again, there was no reasonable
explanation about the presence of A-5 at night time without any specific
purpose at Saraswati Marg, Bank Street Crossing. No independent
witness from the locality was joined at any stage of the investigation.
Personal search memo (Ex.PW-11/T) records the date 10.02.2005 at point
'C'. It is not clear if the shop from where A-5 allegedly recovered gold
kara belonged to him or who else was present at the shop at that time. It is
not clear if the shop was in his exclusive possession or it was opened by
him with the key in his possession.
PW-11(HC Shashi Kumar) in the cross-examination, deposed
that earlier at Saraswati Marg, A-7 and A-8 were arrested and they were
brought to police station. At around 11.30 p.m. or 12.00 night, they went
to Gurudwara Road, Bank Street, Karol Bagh and came back to the police
station. After some time when they went near Uttam Sweets, Bank Street,
Karol Bagh, A-5 was apprehended at around 12.30 a.m./1.00 a.m. A-5
was standing near the shop. He was unable to tell the number of
workshop of A-5. No proof about the ownership/possession of the said
shop was collected. In the cross-examination, PW-12 (HC Hari Bhushan)
disclosed that A-5 was arrested at about 11.45 p.m. They returned to the
police station at 1.45 a.m. Again, it was not explained as to from where,
when and for what consideration the robbed article came into the
possession of A-5. No robbed property was recovered at the instance of
the actual assailants. Earlier, the prosecution alleged that this robbed
article was part of the robbed jewellery which came into the A-5's share.
After coming to know about the involvement of his associates and their
arrest on 10.02.2005, A-5 was not expected to retain the robbed article at
his shop without taking proper precautions. The complainant or his
partner was not joined to identify the recovered jewellery article. The
apprehension of A-5 at odd hours from the street and its recovery
pursuant to the disclosure statement seems doubtful and suspect in the
absence of any independent corroboration. A-5 deserves benefit of doubt
under Section 411 IPC and is acquitted.
11. A-1 was awarded RI for 07 years with fine `5,000/- under
Section 394 IPC; RI for six months with fine `2,000/- under Section 411
IPC and RI for 3 years with fine `3,000/- under Section 25 Arms Act.
Since A-1 has been given acquitted under Section 394 IPC after giving
him benefit of doubt, the sentence order requires modification. As per
nominal roll dated 28.10.2013 his detention period is three years, seven
months and 12 days besides remission for four months and fourteen days
as on 28.10.2013. Apparently, the sentence awarded under Section
411/25 Arms Act has been served out by the appellant in this case. He is
ordered to be released forthwith, if not required to be detained in any other
case.
12. A-2 has been given the benefit of doubt and is acquitted.
13. A-4 was convicted under Section 394/411 IPC and under
Section 25 Arms Act. Nominal roll dated 10.01.2013 shows that he
served sentence for two years, one month and twenty six days besides
remission for 15 days as on 09.01.2013. He has clean antecedents and is
not involved in any criminal case. His jail conduct is satisfactory.
Sentence order is modified to the extent that instead of seven years RI
under Section 394 IPC, it shall be RI for six years. Other terms and
conditions of the sentence order are left undisturbed.
14. A-5 and A-6 are acquitted of the charges.
15. A-9 was also awarded RI for seven years under Section 394
IPC besides other prison terms under Sections 411 IPC and Section 25
Arms Act. Nominal roll dated 16.04.2013 reveals that he has served
sentence for five years, six months and 22 days besides earning remission
for two months and fifteen days as on 15.04.2013. The unexpired portion
of sentence was one year, two months and 23 days. It appears that A-9
has almost served the substantive sentence awarded to him. He is involved
in two FIRs i.e. FIR No.42/11 under Section 380/411/34 IPC registered at
PS Karol Bagh; and FIR No. 23/11 under Section 379/411/34 IPC
registered at PS Karol Bagh. Considering the role attributed to him and
his participation in the crime, he deserves no leniency. His conviction and
sentence under Section 394 IPC and 25 Arms Act are maintained.
Sentence awarded under Section 411 IPC is set aside.
16. The appeals stand disposed of in the above terms. 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 31, 2014/sa
