Gaurav vs State
2014 Latest Caselaw 2529 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : April 23, 2014
                                     DECIDED ON : May 19, 2014


+      CRL.A. 151/2012 & CRL.M.B. 1626/2013

       GAURAV
                                                            ..... Appellant
                      Through :      Mr.Nilender Sharma, Advocate with
                                     Mr.Pawan Singh, Advocate.

                              Versus

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

+      CRL.A. 161/2012

       AMARJEET @ VAID
                                                            ..... Appellant
                      Through :      Mr.Rakesh Malhotra, Advocate with
                                     Mr.Sahil Ahuja, Advocate.

                              Versus

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

AND

+      CRL.A. 162/2012

       HANS GAURAV @ TANNU
                                                             ..... Appellant
                      Through :      Mr.Nitin Joshi, Advocate.
Crl.A.151/2012 & connected matters                               Page 1 of 12
                               Versus

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

CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Gaurav (A-1), Amarjeet @ Vaid (A-2) and Hans Gaurav @

Tannu (A-3) impugn a judgment dated 07.12.2011 of learned Additional

Sessions Judge in Sessions Case No.03/10 arising out of FIR No.190/09

registered at Police Station Dwarka by which A-1 and A-3 under Section

395 IPC; and A-2 under Section 412 IPC were held guilty. By an order

dated 13.12.2011, they were awarded various prison terms with fine.

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

sheet, were that on 01.04.2009, at about 1.30 pm at Kamla Nehru Garden

(Bonta), New Delhi, they all with their companions, Mukesh @ Vicky

(since convicted), Rajiv @ Raj (since convicted), Rama (proclaimed

offender) and Mussa (untraceable) committed dacoity and deprived

Ms.Anju and Deepak of two gold bangles, a pair of gold tops, three rings,

mobile phone make Nokia, purse containing `1,500/-, some documents,

DTC pass and a cheque of Punjab National Bank. Mukesh @ Vicky

armed with a knife used it to put the victims in fear. Daily Diary (DD)

No.22 (Ex.Pw-6/A) was recorded at Police Post, Sector 16-B Dwarka at

4.28 p.m. regarding the incident. ASI Ashok Kumar, to whom the

investigation was assigned, lodged First Information Report after

recording complainant-Anju's statement (Ex.PW-2/A). Efforts were

made to find out the culprits. On 04.04.2009 in supplementary statements,

Complainant and Deepak disclosed that the occurrence had taken place at

Kamla Nehru Vatika, Maurice Nagar and not in the area of Dwarka as

reported earlier. The investigation was handed over to Insp.Sudhir Singh

(PW-14). On 05.04.2009 A-1, A-3, Mukesh @ Vicky and Rajiv @ Raj

were arrested from Sanjay Basti, Timarpur and brought to Police Station

Dwarka. A buttondar knife was recovered from Mukesh @ Vicky; A-1

was found in possession of a mobile phone with SIM card

No.9250034306. He disclosed that he had made telephone calls from this

number to mobile No.9310481193 which was in possession of his friend

Ramu. On 06.04.2009, all the appellants except A-2 and Mukesh @

Vicky lead the police team to the place of occurrence and pointing out

memos (Ex.PW-11/D to Ex.PW-11/G) were prepared. Mukesh @ Vicky

took the police team to his residence at B-205, Sanjay Basti, Timarpur,

and recovered the robbed cheque which was seized by seizure memo

(Ex.PW-11/H); Rajiv @ Raj recovered `1,000/- and a gold ring from his

house; A-3 recovered `500/- and a pair of tops (ear ring) from his jhuggi.

A-1 produced one lady purse lying behind a box in the jhuggi. On

checking, it was found containing complainant's DTC pass. All these

documents were seized vide seizure memos. Further case of the

prosecution is that, thereafter, A-1 and Mukesh @ Vicky pointed out a

shop No.45, Kishore Market, Kingsway Camp, Delhi where A-2 was

found present. When A-2 came to the police station in the evening, as

instructed, on interrogation, his disclosure statement was recorded and it

led to his arrest on 07.04.2009. A-2 recovered two kadas purchased by

him from A-1 and Mukesh @ Vicky from his shop. Statements of

witnesses conversant with the facts were recorded. The appellants

declined to participate in the Test Identification Proceedings. The

complainant identified the articles in Identification Proceedings in the

court. After completion of investigation, a charge-sheet was submitted

against the appellants; they were duly charged and brought to trial. The

prosecution examined 14 witnesses in all to establish the appellants' guilt.

In 313 statements, the appellants pleaded false implication and denied

their complicity in the crime. After considering the rival contentions of

parties and on appreciating the evidence on record, the trial court by the

impugned judgment held all of them guilty for the offences mentioned

previously. Being aggrieved and dissatisfied, they have preferred the

appeals. It appears that Rajiv @ Raj and Mukesh @ Vicky have not

challenged their conviction.

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

examined the file. The occurrence took place at around 01.30 pm at

Kamla Nehru Garden (Bonta) where the complainant had gone with her

boy friend Deepak. Intimation to the police regarding the incident was

conveyed and DD No.22 (Ex.PW-6/A) was recorded at 4.28 pm. The

Investigating Officer after recording complainant's statement (Ex.PW-

2/A) lodged First Information Report at 07.45 pm. The complainant in

her deposition explained the delay in lodging the report. In her statement

(Ex.PW-2/A), the complainant had told the place of occurrence near

Sector 13, Bus Stand, Dwarka. She explained that initially she did not

disclose the correct place of incident due to fear. It has come on record

that the complainant was a married woman and had gone along with her

friend Deepak to Kamla-Nehru Garden (Bonta). Apparently, to avoid

annoyance of her family members, she did not disclose at first instance

that the occurrence had taken place at Kamla Nehru Garden (Bonta).

Subsequently, in her supplementary statement, she revealed the true crime

spot. In the complaint (Ex.PW-2/A), the complainant gave detailed

account as to how she was deprived of her valuable articles. In her Court

statement as PW-3, she deposed that on 01.04.2009 when she was sitting

in the park near Delhi University, North Campus along with her friend

Deepak, at about 01.00 p.m. four/five individuals came and inquired from

them as to what they were doing there. One of them took away her ear

rings (tops), diamond ring, two other gold rings, two gold bangles (karas)

and mobile phone make Nokia. The other assailant showed them a knife

and threatened to kill if they raised alarm. Another assailant took away all

the articles lying in her bag which contained a small purse in which a

blank cheque drawn on PNB bank was lying. The assailants got her

signatures forcibly on it and took it away. They also took away `500/

cash and DTC pass lying in the purse. Deepak was deprived of his gold

ring and cash `500/- or 1000/-. She identified Mukesh @ Vicky to be the

assailant who was armed with a knife. She identified A-1, A-3 and Rajiv

@ Raj who were the other assailants and had taken away her articles. In

the cross-examination, she claimed that articles (Ex.P-1 to Ex.P-4)

identified by her in the court belonged to her and she used to wear them.

She denied the suggestion that the assailants were shown to her in the

police station and she identified them at the instance of the Investigating

Officer. On scanning her testimony, it reveals that despite in-depth cross-

examination, no material discrepancy could be elicited to disbelieve the

version given by her. No ulterior motive was assigned to the complainant

to falsely recognize and identify the appellants with whom she had no

prior acquaintance or animosity. Adverse inference is to be drawn against

the appellants for declining to participate in the Test Identification

Proceedings. Nothing has come on record to show if on any specific date,

the assailants were shown to the complainant in the police station. There

are no cogent reasons to disbelieve the complainant who was categorical

to recognize and identify the assailants in the court and to attribute a

specific role to each of them. The complainant had direct confrontation

with the assailants during day time when she was deprived of her valuable

articles and had reasonable and ample opportunity to note and observe

their broad features. She had volunteered to participate in the Test

Identification Proceedings. PW-4 (Deepak) though did not identify the

assailants, nevertheless, was sure that he and Anju were robbed of their

valuable articles by three/four individuals. He testified that after four or

five days of the incident, he came to know that the appellants had been

apprehended by the police. The police made enquires from him and he

narrated the incident to them. He further admitted that the incident had

taken place on 01.04.2009 when he and Anju Bharti were sitting in a park

near Delhi University at around 01.00 p.m. He further admitted that all

the ornaments of Anju and cash `200-300 were robbed from them at knife

point. They became frightened by the incident and returned to their

respective houses. Deepak's (PW-4) statement can be considered to

corroborate the complainant's version to the extent it supports the

prosecution case. The accused persons did not claim their presence at the

relevant time at any other specific/particular place. They did not examine

any witness in defence to falsify the prosecution case about their presence

at the spot.

4. Robbed articles identified by the complainant in Test

Identification proceedings were recovered from the appellants. She also

identified these articles (Ex.P-1 to Ex.P-4) in her Court statement. The

police is not expected to plant all these articles of substantial value on

their own. The accused persons did not examine any family member to

controvert the prosecution case about its recovery from their respective

houses. Some of these articles were having special and distinctive

features and were not expected to be in their possession. They did not

offer any explanation as to how these articles which did not belong to

them came into their possession. All the relevant contentions of the

appellants have been dealt with in the impugned judgment. The findings

of the trial court that A-1, A-3, Mukesh @ Vicky and Rajiv @ Raj

deprived the complainant and Deepak of the valuable articles after putting

them in fear cannot be faulted.

5. Appellants' conviction under Section 395 IPC, however,

cannot be sustained as the prosecution was unable to establish the exact

number of the assailants committing the crime. In her statement (Ex.PW-

2/A), the complainant did not give exact number of the assailants. In her

Court statement, she described their number as four or five. In the later

part of the examination, after identifying A-1, A-3, Mukesh @ Vicky and

Rajiv @ Raj, she disclosed about presence of two more individuals with

the appellants. PW-4 (Deepak) gave the number of assailants as three or

four. Leading question was put by the Public Prosecutor to the

complainant-Anju if A-2 was among the assailants who took away her

articles on the day of incident. It appears that initially A-2 was a suspect

in the crime. During investigation, the appellants' alleged associates

Rama and Mussa could not be apprehended. Rama was declared

Proclaimed Offender whereas Mussa could not be traced. It cannot be

inferred with certainty that they were with the appellants at the time of

commission of incident as their association with them could not be

ascertained. Since the prosecution was unable to establish beyond doubt

the exact number of assailants, conviction and sentence under Section 395

IPC is not permissible and is altered to Section 392/34 IPC.

6. Allegations against A-2 were that he received or retained two

gold kadas belonging to the complainant knowing or having reasons to

believe the same to be a robbed property. A-2 himself was a suspect

along with his associates in the crime. The police visited his shop on

06.04.2009 when A-1 and Mukesh @ Vicky allegedly pointed out it in

police custody and pointing out memos (Ex.PW-11/M and Ex.PW-11/N)

were prepared. However, A-2 was not arrested at that time. Shop in

question was not searched to recover the robbed articles. Notice was

served upon A-2 to arrive at Police Station Dwarka and he accordingly

went in the evening to the police station where he was interrogated and

arrested. At that stage, there was no incriminating material against A-2 to

put him under arrest. Again, no recovery was effected of the

stolen/robbed articles at his instance on 06.04.2009. It is alleged that on

07.04.2009, A-2 took the police team to his shop at Kishore Market and

produced two kadas allegedly purchased by him from A-1 and Mukesh @

Vicky. It is highly unbelievable that after coming to know about his

involvement in the incident on 06.04.2009, A-2 would retain/keep the

robbed articles intact at his shop. No explanation has been given as to

why these two kadas were not recovered when A-1 and Mukesh @ Vicky

had led the police team to A-2's shop on 06.04.2009. It is unclear as to

who was available in the shop on 07.04.2009 and who opened it as A-2

was already in the police custody. No independent witness was

associated at the time of recovery of these kadas on 07.04.2009 which

were not recovered pursuant to the disclosure statement of A-1 and

Mukesh @ Vicky from his shop. No evidence has been collected to

ascertain if A-2 was aware that these kadas were robbed articles. It was

not investigated as to when the kadas were sold by A-1 and Mukesh @

Vicky to A-2 and if so for what consideration. Considering these

deficiencies, A-2's conviction under Section 412 cannot be sustained. He

deserves benefit of doubt and is acquitted.

7. In the light of the above discussion, appeal filed by A-2 is

accepted. Conviction and sentence recorded under Section 412 IPC is set

aside. Conviction and sentence of A-1 and A-3 are sustained under

Section 392/34 IPC only.

8. The appeals stand disposed of in the above terms. Trial

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

Copy of the order be sent to Superintendent Jail for information. All

pending application(s) also stand disposed of.

(S.P.GARG) JUDGE May 19, 2014/sa