Raj Kumar @ Navvya vs State (G.N.C.T. Of Delhi)
2014 Latest Caselaw 2595 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : MAY 07, 2014
                                     DECIDED ON : MAY 21, 2014

+                               CRL.A. 711/2013

       RAJ KUMAR @ NAVVYA                                    ..... Appellant
                    Through :                 Ms.Suman Chauhan, Advocate.

                                versus

       STATE (G.N.C.T. OF DELHI)                  ..... Respondent
                       Through : Mr.Lovkesh Sawhney, APP.
                                 SI Sandeep Kumar, PS Ashok
                                 Vihar.
AND

+                               CRL.A. 685/2012

       BHAGWAN DASS                                                ..... Appellant
              Through :                  Mr.R.K.Singh, Advocate.

                                versus

       STATE                                                   ..... Respondent
                     Through :           Mr.Lovkesh Sawhney, APP.
                                         SI Sandeep Kumar, PS Ashok Vihar.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Raj Kumar @ Navvya (A-1) and Bhagwan Dass (A-2)

challenge their conviction by a judgment dated 12.03.2012 in Sessions

Case No.33/11 arising out of FIR No.27/11 under Section 392 read with

Section 397 IPC registered at Police Station Ashok Vihar. By an order

dated 20.03.2012, they were sentenced to undergo RI for seven years with

fine `5,000/- each.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on 29.01.2011 at about 9.00 pm near Kulanchi Hansraj

Model School, in front ATM, Punjab National Bank, A Block, Phase-I,

Ashok Vihar, the appellants and their associate Roshan (since released)

sharing common intention robbed complainant-Jai Karan Chauhan of cash

`8,000/ to `8,500/-, mobile phone and gold chain at knife/katta point.

On the basis of information conveyed to PCR at 100 by the complainant,

Daily Dairy (DD) No.31A (Ex.PW3/A) was recorded at police station

Ashok Vihar at 09.30 pm. ASI Ved Prakash, the Investigating Officer,

lodged First Information Report after recording complainant- Jai Karan

Chauhan's statement (Ex.PW-9/A). Statements of witnesses conversant

with the facts were recorded. Efforts were made to find out the culprits

but in vain. On 12.04.2011 A-2 was arrested in FIR No.87/11 registered

at Police Station Mahendra Park under Section 33 Delhi Excise Act and

25 Arms Act. On 14.04.2011, A-1 was apprehended in FIR No.136/11

registered at Police Station Shahbad Dairy. Pursuant to disclosure

statements, their involvement in this case emerged. Necessary

information was given to the concerned Investigating Officer and both A-

1 and A-2 were arrested. Applications were moved for Identification

Proceedings in which both A-1 and A-2 were identified by the

complainant. After completion of investigation, a charge-sheet was

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

prosecution examined 18 witnesses to prove their guilt. In their 313

statement, they denied their complicity in the crime and pleaded false

implication without examining any witness in defence. The trial resulted

in their conviction as aforesaid. It is relevant to note that Roshan could

not be identified by the complainant in Test Identification Proceedings

and was released on 30.03.2011.

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 ignored the

vital improvements/inconsistencies emerging in their statements. The

prosecution was unable to establish the ingredients of Section 397 IPC.

No weapon used in the crime was recovered from any of the appellants.

Learned Additional Public Prosecutor urged that there are not sound

reasons to disbelieve the complainant who was physically assaulted and

injured in the incident.

4. The appellants have not challenged the incident of robbery in

which the complainant was deprived of cash, gold chain and mobile.

Their only plea is that they were not the author of the crime and it was the

handiwork of someone else. The complainant having no ulterior motive to

fake the incident of robbery had set the police machinery in motion soon

after the occurrence. The incident was recorded in PCR Form (Ex.PW-

4/A) at 09.25 pm. The complainant disclosed robbery of `8,000/- and

gold chain by the assailants who had arrived in Car No. DL-1C M-1020.

Daily Diary (DD) No.31A (Ex.PW3/A) was recorded at 09.30 pm at

police station Ashok Vihar. In the statement (Ex.PW-9/A) given to the

police soon after the incident, the complainant gave detailed account as to

how he was deprived of his valuable articles by use of weapons by the

three assailants. He also disclosed the number of vehicle in which the

assailants had arrived. This vehicle was found to have been stolen in case

FIR No.35/11 under Section 392/34 IPC registered at Police Station

Burari, which was found abandoned within the jurisdiction of Police

Station Kashmiri Gate after the occurrence. The complainant described

features of the assailants and claimed to identify them. The appellants

were arrested in other cases and their involvement in the present case

emerged in the disclosure statement recorded in the said proceedings. The

Investigating officer of this case moved applications for conducting Test

Identification Proceedings. Both the appellants participated voluntarily in

it and were correctly identified by the complainant. At that stage, they

had no grievance if they or their photographs were ever shown to the

complainant in the police station. While appearing in the court, PW-9

proved the version given to the police without major variation and

identifies both the appellants to be the assailants without hesitation. He

attributed specific role to each of them. In the cross-examination, no

material discrepancy could be extracted or elicited to shatter his

testimony. The complainant who had no previous acquaintance or

animosity with any of the appellants is not expected to falsely implicate

them. His statement is in consonance with the medical evidence. He was

taken to Babu Jagjivan Ram Memorial hospital by HC Bhaksi Lal of PCR.

The MLC (Ex.PW-9/B) records the arrival time of the patient at 10.35 pm.

Lacerated wounds were found on his body. PW-10 (Dr.Sanjay Kumar)

proved the MLC (Ex.PW-9/B) prepared by Dr.Seema and Dr.Ajit

Tripathi. There is no variance between the ocular and medical evidence.

The prosecution also examined PW-6 (Jai Bhagwan) who corroborated

the complainant's version about the withdrawal of money from PNB

ATM on 29.01.2011. The accused persons did not give plausible

explanation to the incriminating circumstances appearing against them in

313 statements. All the relevant contentions of the appellants have been

considered with reasons in the impugned judgment and no deviation is

called for.

5. Conviction with the aid of Section 397 IPC, however, cannot

be sustained as the prosecution was unable to establish beyond reasonable

doubt that the complainant was robbed of his valuable articles by the use

of 'deadly' weapons. Admittedly, no crime weapon was recovered from

the possession of any of the appellants. In the PCR Form (Ex.PW-4/A),

there is no information if the complainant was robbed by the use of knife

or pistol. PCR Form (Ex.PW-4/A) records that the caller was injured by a

'blade'. Injuries found on the body of the complainant during stiff

resistance were lacerated wounds. There is no specific mention if these

injuries were caused by a sharp weapon. The complainant did not give the

specific particulars i.e. size or dimension of the knife allegedly used in the

incident. No injuries with knife and pistol were caused to the complainant.

Under these circumstances aid of Section 397 cannot be taken to base

conviction under Section 397 IPC. The conviction and sentence of the

appellants is accordingly sustained under Section 392/34 IPC.

Accordingly, sentence order is modified and both the appellants are

sentenced to undergo RI for five years with fine `5,000/-each under

Section 392/34 IPC and in default of payment of fine, they shall undergo

SI for one month each.

6. The appeals stand disposed of in the above terms. A-1 shall

surrender before the Trial Court on 28.05.2014 to serve the remaining

period of sentence. Copy of the order be sent to Superintendent Jail for

information. The Registry shall transmit the Trial Court records forthwith

along with the copy of this order.

(S.P.GARG) JUDGE MAY 21, 2014 sa