Raj Singh Alias Raju vs State
2015 Latest Caselaw 6260 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                       Judgment reserved on :19.08.2015
                                        Judgment delivered on:25.08.2015
+       CRL.A. 510/2013
        RAJ SINGH ALIAS RAJU
                                                                 ..... Appellants
                                Through         Mr. A.S. Kushwaha, Ms.
                                                Vandana Sharma and Mr.
                                                Abhigya, Advs.
                                Versus
        STATE
                                                                   ..... Respondent
                                Through         Ms. Kusum Dhalla, APP for the
                                                State along with Inspector C.P.
                                                Bhardwaj and SI Manoj Kumar.
+       CRL.A. 517/2013
        RAVINDER SINGH ALIAS RAJU
                                                                 ..... Appellants
                                Through         Mr. Krishan Kumar, Adv.

                                Versus
        STATE
                                                                   ..... Respondent
                                Through         Ms. Kusum Dhalla, APP for the
                                                State along with Inspector C.P.
                                                Bhardwaj and SI Manoj Kumar.
+       CRL.A. 622/2013
        SUNIL KUMAR ALIAS SANJEEV
                                                                    ..... Appellants
                                Through         Mr. Habibur, Adv.

                                Versus
        STATE
                                                                    ..... Respondent

Crl. Appeal Nos.510/2013, 517/2013 & 622/2013                 Page 1 of 17
                                 Through         Ms. Kusum Dhalla, APP for the
                                                State along with Inspector C.P.
                                                Bhardwaj and SI Manoj Kumar.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR


INDERMEET KAUR, J.

1 There are three appellants before this Court namely Raj Singh @

Raju, Ravinder Singh @ Raju and Sunil Kumar @ Sanjeev. They are all

aggrieved by the common judgment and order on sentence dated

26.02.2013 vide which each of them had been convicted under Sections

307/393/398/452 read with Section 120-B of the IPC. Each of them had

been sentenced to undergo RI for a period of 10 years and a fine of

Rs.20,000/- each for the said offence. In default of payment of fine, each

of them was to undergo RI for a period of 2 months. Benefit of Section

428 of the Cr.PC had been granted to the convicts. This Court notes that

no separate sentence has been awarded by the trial Judge for their other

convictions and as recorded supra, a common sentence period of 10

years RI has been imposed upon each of them.

2 The version of the prosecution is that on 22.05.2010 at about

11:30 am- 12:00 noon, Raj Singh went into the house of Rajender

Khosla (PW-3). He being the driver asked for the keys of the car.

Meanwhile, three other persons entered the house and one of them was

Sunil @ Sanjeev. They tried to rob the house of PW-3 by showing

revolvers and a knife. This incident was witnessed by the wife of PW-3

namely, Santosh Khosla (PW-4) as also their daughter-in-law Rekha

Khosla (PW-5). PW-3 was assaulted with a katta and the knife. He

sustained injuries. His MLC was conducted and eight injuries were

noted upon his person. They were proved through his MLC Ex. PW1/A.

Accused Sunil @ Sanjeev was apprehended at the spot.

3 The police reached the spot. In the course of investigation the

other two accused namely Ravinder @ Raju and Raj Singh @ Raju were

also arrested. Further investigation revealed that the accused persons

were in contact with one another and this was proved through their call

detail records. The mobile record had been obtained by SI Ajay,

member of special staff who was entrusted part investigation of this

case. He was examined as PW-8. They were proved in the evidence of

the Nodal Officer from Tata Tele Services (PW-6) and the Nodal

Officer from Aircel Limited (PW-10).

4 The remaining two accused namely Shahid and Azad were

declared as proclaimed offenders; they could not be arrested.

5 The prosecution in support of its case has examined as many as

17 witnesses.

6 In the statement of the accused recorded under Section 313 of the

Cr.P.C, each of them had pleaded innocence. They had stated that they

have been falsely implicated in the present case. No evidence was led in

defence.

7 On the basis of the aforenoted evidence, both oral and

documentary, the accused were convicted and sentenced as aforenoted.

8 On behalf of three appellants arguments have been addressed

separately as the role of each of them has surfaced distinctly. On behalf

of appellant Raj Singh @ Raju it is submitted that he was working as a

driver in the employment of PW-3. He has been falsely implicated; he

was waiting outside near the car; he was admittedly not inside the room

where the offence had been committed. Even as per PW-3 Raj Singh

had joined duty even on the following day; this was largely for the

reason that he was never a suspect in the eye of his employer; he has

been falsely implicated.

9 On behalf of appellant Ravinder Singh @ Raju, it is submitted

that he was arrested many days after the incident; the arrest memo is not

clear on the time; no TIP had been conducted which was mandatory as

admittedly PW-3 was not known to the appellant; the other eye

witnesses i.e. PW-4 and PW-5 were also strangers to Ravinder and in

such an eventuality the Investigating Officer not having conducted a TIP

it has committed an illegality. He has placed reliance upon the

judgments reported as 2013 Legal Eagle (DHC) 982 Sudhir Kumar Vs.

State of NCT of Delhi & Anil Kumar Vs. the State in Crl Rev. P.

No.76/2009 decided on 11.07.2012 to support his submission that where

the accused is a stranger to the victim, in the absence of TIP, benefit of

doubt on the identity of the accused has to be afforded to the accused.

The impugned judgment calls for an interference qua Ravinder on this

ground alone. No recovery has also been effected from him.

10 On behalf of the third appellant Sunil @ Sanjeev, it is pointed out

that although the version of the prosecution is that he was caught on the

spot yet this is a clear case of false implication; he has been picked up;

there is no evidence against him. Even the call details records proved by

the prosecution relate only to calls made by the present appellant to

Azad (not arrested); whole defence of Sunil @ Sanjeev was that he had

borrowed the taxi of his employer (Sunil examined as PW-9) for the

purpose of dropping Azad and on the way back after dropping him, he

has been falsely implicated in the present case. He is entitled to a benefit

of doubt.

11 Needless to state that these arguments have been refuted. It is

pointed that on no count, does the impugned judgment call for any

interference. The oral and documentary evidence fully establishes the

case of the prosecution and the version of the injured witness PW-3

corroborated by the version of PW-4 & PW-5 do not suffer from any

infirmity.

12 Arguments have been heard. Record has been perused.

13 The star witness of the prosecution was the injured victim

examined as PW-3. He has on oath deposed that sometime in May, 2010

(being a Saturday between 10:30 to 12:00 noon) while he was present in

his house along with his wife (PW-4) and daughter-in-law (PW-5)

accused Raj Singh who was working as a driver came into the house on

the pretext of asking for the car keys. PW-3 was in the bathroom. When

he came out, two persons caught hold of him (one of whom was Sunil

@ Sanjeev); they put a pistol on both sides of his head and asked him

'jo bhi mal hi de de nahi to mar denge'. Sunil put a pistol in the mouth

of his wife; she became unconscious. PW-3's mouth and neck were also

pressed. One of these persons assaulted him by knife whose name later

on was revealed as Azad. PW-3 caught hold of the knife to save himself

as a result of which he sustained injuries on his left palm. Accused Sunil

also bit him with his right arm on his teeth. Accused Ravinder closed his

mouth. His daughter-in-law (PW-5) who was in the other room also

came inside. Neighbours gathered. Azad ran away leaving his katta on

the spot. Accused Ravinder also managed to flee. Accused Sunil @

Sanjeev was caught on the spot. PW-5 had asked Raj Singh to catch

hold of Sunil but he did not heed to his request. Accused Sunil and Azad

fired from their kattas. Three cartridges fell down on the spot. His

clothes had got blood stained. His statement Ex.PW-3/A was recorded.

14 In his cross-examination, PW-3 admitted that accused Raj Singh

was his driver and had been employed with him since the last 1- ½

years. His wounds were stitched. Documents were signed by him in the

police station. His house is situated in a thickly populated area. This

witness was confronted with his earlier statement (Ex.PW-3/A). On oath

he had stated that the accused persons had put a katta on both sides of

his head which did not find mention in his earlier statement; on oath, he

had stated that the accused persons had threatened to kill him but this

did not find mention in his statement Ex.PW-3/A. He has denied the

suggestion that he had deposing falsely.

15 The wife of PW-3 was examined as PW-4. She also deposed on

the same lines as her husband stating that the incident had occurred

between 11:30 am to 12:00 am on 22.05.2010 and it was witnessed by

herself and her daughter-in-law (PW-5) who was also present in the

house. Her deposition is to the effect that three persons suddenly entered

the house and one of them had put a pistol in her mouth; the other

showed a knife; darkness came in front of her eyes; another person hit

the head of PW-3 with a pistol as a result of which he sustained injuries

on his head and mouth. Neighbours gathered. Her husband tried to catch

one of them; accused Sunil was caught on the spot. He had a pistol with

him. Accused Raj Singh was their driver and prior to the entry of thieves

in the room, accused Raj Singh had come to collect the keys of the car.

He was standing outside their house and was cleaning the car. PW-5 had

asked Raj Singh to apprehend the accused persons but he did not catch

them.

16 In her cross-examination, she stuck to her stand delineating that

Raj Singh was asked to nab the accused but he had allowed them to flee

away. He was working with them since the last 1- ½ years. She was also

confronted with her earlier statement but nothing material has been

pointed out which could discredit her version. She denied the suggestion

that she is deposing falsely.

17 The daughter-in-law of PW-3 & PW-4 was examined as PW-5.

She has corroborated their version that three persons (in the afternoon of

22.05.2010 at about 11:30 AM to 12:00 noon), entered their house. One

of them put a katta in the mouth of her mother-in-law and one of them

had put a katta on the head of her father-in-law asking them to deliver

the cash and jewellery which was with them. She raised alarm. Two

persons managed to flee away; one of them was nabbed by her father-in-

law. Her father-in-law was bleeding from his hand. The nabbed

accused was Sunil @ Sanjeev. Two pistols and 2-3 live cartridges were

lying on the spot.

18 In her cross-examination, this witness was also confronted with

her earlier statement but again nothing has been pointed out to discredit

her cogent version.

19 PW-3, PW-4 and PW-5 are all members of the same family and

their presence in the house in the afternoon at the time when the incident

had taken place was most normal and natural. Each of them has detailed

the manner in which the thieves entered the house, accused Sunil was

caught at the spot and others managed to flee away. Accused Raj Singh,

their driver, was standing outside and PW-5 asked him to nab the

accused persons but he allowed them to flee away. He had come to the

house prior to the thieves coming on the pretext of asking for the car

keys. Testimony of the aforenoted witness is coherent and credible.

They are all corroborative of one another. The minor inconsistencies

pointed out in the deposition of PW-3 i.e. as to whether he was given a

threat to kill or whether the kattas were placed on both sides of his head

or only on one side are not material to disturb his otherwise cogent

version. There was also no reason for them to have falsely implicated

the accused.

20 PW-3 had also suffered injuries. His MLC conducted on

22.5.2010 at 1.25 p.m. shows that he has suffered nine injuries which

included a lacerated wound on his finger and left hand as also over his

parietal region and forehead. He was kept under observation.

21 Testimony of PW-9 Sunil Kumar is also relevant. He was the

employer of accused Sunil. He has deposed that his TATA Indica car

No.HR51-J-5192 had been borrowed by his employee (accused Sunil)

for a period of 2½ hours. This was at 7.00/7.30 A.M. on 21.5.2002. He

did not return it till the following day when he learnt that he had been

arrested in some matter.

22 Initially the investigation was marked to H.C.Virender Singh

(PW-13) who along with Constable Rajesh (PW-7) reached the house of

PW-3 where accused Sunil @ Sanjeev was produced. Sunil had two

country-made pistols and three live cartridges which were all taken into

possession vide separate memos after being sealed. The crime team

had also been summoned. SI Sushil Kumar, Finger Print Expert (PW-

14) had visited the spot and had taken three chance prints from the

aforenoted TATA Indica car. His report Ex. PW-14/A was however

evasive and was not helpful to the version of the prosecution.

23 The Investigating Officer was SI Rohtash. He has been examined

as PW-16. He had arrested accused Sanjeev vide memo Ex. PW-7/A.

He had taken the TATA Indica car into possession vide memo Ex. PW-

7/C. On 26.5.2010 accused Raj Singh @ Raju was arrested from his

house vide memo Ex.PW-12/B. His disclosure statement was recorded.

The role of the third accused Ravinder @ Raju surfaced thereafter who

was arrested from his village Dhir Pur vide Ex. PW-12/F. His disclosure

statement was also recorded. The motor cycle used in the commission

of the offence was also recovered pursuant to the disclosure statement

which was seized vide memo Ex.PW-12/G.

24 Apart from the aforenoted evidence testimony of PW-6 and

PW-10 is very relevant. They were the nodal officers from two different

nodal agencies and had brought the call detail record of three mobile

numbers i.e. 9211894275, (which mobile number was admittedly in the

name of Raj Singh). Mobile number 9211903907 (a mobile belonging

to accused Ravinder) and the third mobile i.e. mobile number

9808751592 was in the name of accused Sunil. The call detail record of

these mobile numbers reflected the various calls exchanged between the

three co-accused and there were w.e.f. 01.5.2010 to 23.5.2010. Even on

21.5.2010 several calls were exchanged interse the parties. The

submission of accused Sunil @ Sanjeev that he had not made any call to

Ravinder and co-accused Raj Singh is incorrect; the call detail record

evidence otherwise; apart from calls being made from Sunil to Ravinder

and Raj Singh he was also continuously in touch with accused Azad.

The defense sought to be projected that he had borrowed the TATA

Indica car only for the purpose of dropping Azad did not find mention in

the cross-examination of the witnesses of the prosecution and this was

obviously for the reason that it is a false defense and had it been an

honest defense it would have found mention in the earlier stages of

defense i.e. at the stage of cross-examination of the witnesses and even

at the stage when his statement under Section 313 Cr. P.C. was

recorded. This argument at this belated stage by itself persuades this

Court to hold that this defense is not an honest defense.

25 The substantive offence of conspiracy for which the accused

persons have been charged has to be gathered from the whole gamut of

circumstances which is collected by the prosecution which can never be

an eye-witness account; it is the circumstances of the case which will

establish this offence.

26 The call detail record showing continuous calls being exchanged

between the three accused persons right from 1.5.2010 to 23.5.2010

coupled with the categorical version of PW-3 and PW-4 that when

PW-3 asked Raj Singh to nab the accused persons who were trying to

flee from the incident, Raj Singh made a drama and did not make any

effort to catch them and allowed them to flee away; moreover, Raj

Singh was the first person who had come into the room of PW-3 on the

pretext of taking the car keys; at that time he must have informed his

accomplices that PW-3 was in bathroom and it was a good opportune

time to rob PW-3. The conspiracy and the complicity of three accused

persons of whom Sunil was caught on the spot and Ravinder having

arrested later on and from whose mobile phone his live link and

conversations with other accused Sunil @ Sanjeev and Raj Singh @

Raju establishes that each of the accused persons are guilty. Shahid and

Azad have not been arrested till date.

27 The Investigating Officer has also proved the recoveries which

were made from the accused persons which included the weapon i.e.

katta which was recovered from Sunil at the spot. Three cartridges

which had fallen from the spot of which one was live was also taken into

possession vide a separate memo.

28 The submission of the learned counsel for accused Ravinder that

TIP not having been held and he having been arrested at a later point of

time and his identification for the first time in the Court of law entitles

him to an acquittal is an argument without force. It was pursuant to the

disclosure statement of Raj Singh that Ravinder was arrested. He was

arrested vide memo Ex.12/A. This was on 26.5.2010. He was arrested

from his house pursuant to which his mobile phone had been seized vide

memo Ex. PW-12/H and which was admittedly in the name of accused

Ravinder @ Raju and call detail records obtained from this mobile

number 9211903907 establishes through cogent evidence i.e. from the

evidence of the nodal officers of the TATA Teleservices and Aircel

Limited that the conversations between all the three accused for the

entire month of May and record of calls exchanged between them had

rightly persuaded the Trial Judge to hold that the involvement of

Ravinder in the present crime was fully established. Moreover, it was

also never the defense of the accused Ravinder that he was not present at

the scene of crime; his defense simpliciter being that he is innocent.

The judgments relied upon by the learned counsel for accused Ravinder

in this context are not applicable.

29 The act of the accused in committing this dacoity while armed

with deadly weapon and in conspiracy and complicity with one another

holds them liable for the offence under Section 398 of the IPC for which

the minimum punishment is 7 years.

30 The impugned judgment calls for no interference. However, this

Court notes that the crime relates to the year 2010 and all the appellants

have already suffered a protracted trial. They were all young in years

and the submission of the learned counsel for the appellants that the

period of incarceration which they have already undergone may be

treated as a deterrent is a submission which is noted. Thus while

maintaining conviction of the appellant under Sections 398 and 452 read

with Section 120B of the IPC, this Court is inclined to modify the

sentence and RI 10 years is reduced to RI 8 years. Benefit of Section

428 of the Cr.P.C. is also accorded to the appellants.

31      Appeals disposed of in the above terms.



                                                  INDERMEET KAUR, J

AUGUST 25, 2015
A