Sumit vs State
2015 Latest Caselaw 9307 Del

$~R-111A and R-111B

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on:10.12.2015
                             Judgment delivered on:15.12.2015

+      CRL.A. 1172/2013
       SUMIT
                                                           ..... Appellant
                             Through    Mr. Dinesh Malik, Adv.
                             versus

       STATE
                                                        ..... Respondent
                             Through    Mr.Kewal Singh Ahuja, APP for
                                        the State.
+      CRL.A. 692/2014
       DEEP SINGH @ DEEPLA
                                                           ..... Appellant
                             Through    Mr. Dinesh Malik, Adv.
                             versus

       STATE
                                                        ..... Respondent
                             Through    Mr.Kewal Singh Ahuja, APP for
                                        the State.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 These appeals are directed against the impugned judgment and

order on sentence dated 23.08.2013 & 26.08.2013 respectively wherein

the appellant Deep Singh stands convicted under Section 397 read with

Sections 32/43 of the IPC. Maximum sentence awarded to him is RI

7years for his conviction under Section 397 of the IPC. For his second

conviction, he has been sentenced to undergo RI for a period of 5 years

and to pay a fine of Rs.10,000/- and in default of payment of fine, to

undergo SI for 6 months. Nominal roll of the appellant reflects that as on

date, he has undergone incarceration of 3 years and 10 months. The

second convict Sumit has been convicted under Section 392/34 of the

IPC. He has been sentenced to undergo RI for a period of 5 years and to

pay a fine of Rs.10,000/- and in default of payment of fine, to undergo

SI for 6 months. His nominal roll has been requisitioned. This reflects

that as on date, he has undergone incarceration of 3 years.

2 The version of the prosecution was unfolded in the testimony of

the complainant Rashik (PW-4). His version was to the effect that he is a

resident of A Block, Sonia Vihar, Delhi. He was working as a barber in

Apex Parlour, Kalyan Puri. On 16.12.2010 at about 10:15 pm while he

was returning home and reached near park at Khichripur, three boys

caught him from behind; one of them (later on identified as Deep Singh)

showed him a knife and took out his purse and mobile phone of Tata

make. The accused started running after robbing the complainant. The

complainant was able to apprehend one of the three persons whose

person was revealed as the appellant Deep Singh. Further version of the

complainant was that Deep Singh was the person who had branded the

knife. PCR van came. His statement (Ex.PW-4/A) was recorded.

Investigation was set into motion. In the course of investigation, the

prosecution had examined 5 witnesses of whom the complainant (pW-4)

was the star witness and his version as recorded in the complaint was

reiterated on oath in Court.

3 He was subjected to a lengthy cross-examination but he did not

deter from his stand. His version being reiterated to the effect that three

persons had robbed him one of whom had branded the knife and that

person was Deep Singh. Deep Singh was apprehended by the

complainant and handed over to the police. However no knife was

recovered from Deep Singh. The disclosure statement of Deep Singh

was recorded by the Investigating Officer SI Rahul Kumar (PW-5).

Pursuant to the disclosure statement of accused Deep Singh, the role of

the second accused namely Sumit surfaced. Appellant Sumit inspite of

search could not be arrested. He had surrendered on 03.01.2011 in the

Karkardooma Court. Accused Sumit was arrested. He made a disclosure

statement but no recovery could be effected from him. He was subjected

to TIP but he refused TIP and in the TIP proceedings (Ex.PW-3/B), the

ground for refusal to join TIP was that his photograph had been shown

in the police station Kalyan Puri between 09:00 to 10:00 pm by 2-3

police persons on 03.01.2011.

4 The Trial Judge had drawn adverse inference against accused

Sumit for refusal to join TIP.

5 Testimony of PW-4 (the complainant) becomes relevant. He had

on oath deposed that he had gone to the police station where he

identified the accused Sumit. Thus the ground taken by appellant for

refusal to join the TIP was a valid ground and he having given a

justification for not joining TIP the Trial Judge had committed an

illegality in drawing adverse inference against Sumit.

6 On this count, the version of the prosecution clearly shows that

the offence had taken place at 10:15 pm at winter night i.e. on

17.12.2010. The only accused who was apprehended at the spot was the

appellant Deep Singh. The other accused Sumit had escaped and he was

arrested later on. No recovery has been effected from him. Against

Sumit, the Trial Judge had largely relied upon the fact that he had

refused to join TIP. This Court is of the view that refusal to join TIP by

Sumit was for a justifiable reason in view of the fact that PW-4 had

admitted that he had seen the appellant Sumit in the police where he had

identified him. Adverse inference for not joining TIP qua Sumit could

not have been drawn. Apart from the disclosure statement of co-accused

Deep Singh, there is no other evidence to connect the appellant Sumit

with the crime. The disclosure statement of co-accused under Section 30

of the Evidence Act may be a relevant piece of evidence but taken by

itself, it cannot form the basis of a conviction. Appellant Sumit is

entitled to a benefit. Accordingly while giving him benefit of doubt, he

is acquitted. He be released forthwith, if not required in any other case.

7 Qua the role of Deep Singh, the complainant had stated that Deep

Singh was the person who had branded the knife upon him and the

subsequent version of PW-4 that Deep Singh had been caught at the spot

but no knife having been recovered from him also creates a doubt in the

mind of the Court as to whether it was Deep Singh who had branded the

knife upon the complainant or the other co-accused who had managed to

escape. This is especially keeping in the view the fact that the incident

had occurred on the winter on a dark night. The incident had occurred at

10:15 pm when the complainant was returning from his job to the house

and it was near the park where the incident had occurred. Even as per

the site plan (Ex.PW-5/B) no light has been shown. No pole light has

been depicted in this site plan. Thus the possibility of PW-4 having been

confused as to who out of the 3 assailants had pointed the knife cannot

be ruled out. The conviction of appellant Deep Singh under Section 397

of the IPC is set aside. His conviction under Section 392 of the IPC is

maintained. His sentence of RI 5 years is reduced to RI 4 years. Fine of

Rs.10,000/- remains unaltered but in default of payment of fine, the

appellant shall undergo SI for two months.

8      With these directions, appeals are disposed of.

9      A copy of this order be sent to the Jail Superintendent for

intimation to the appellants.



                                              INDERMEET KAUR, J
15 DECEMBER , 2015
A