Virender Pratap Singh vs State Of Nct Of Delhi
2015 Latest Caselaw 9535 Del

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*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment reserved on :15.12.2015.
                             Judgment delivered on :22.12.2015

+      CRL.A. 948/2013
       VIRENDER PRATAP SINGH
                                                          ..... Petitioner
                             Through    Mr. S.N.Pandey, Advocate

                             versus

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

+      CRL.A. 144/2014
       RAJESH KUMAR
                                                          ..... Petitioner
                             Through    Mr. V.K.Tandon, Advocate

                             versus

       STATE OF NCT OF DELHI
                                                         .....Respondent
                             Through    Mr. Kewal Singh Ahuja, APP for
                                        the State
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 The appeal filed by Virender Pratap Singh is directed against the

impugned judgment and order on sentence dated 13.03.2013 and

20.03.2013 respectively wherein the appellant Virender Pratap Singh

stands convicted under Section 392 read with Sections 394 & 397 of the

IPC. He has been sentenced to undergo RI for a period of 7 years and to

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

SI for one month.

2 The appeal filed by the co-convict Rajesh Kumar has impugned

the judgment and order on sentence dated 10.12.2013 and 14.12.2013

respectively wherein the appellant Rajesh Kumar had also been

convicted under Section 392 read with Section 394 of the IPC as also

Sections 25/54/59 of the Arms Act. He has been sentenced to undergo

RI for a period of 7 years and to pay a fine of Rs.10,000/- and in default

of payment of fine to undergo SI for one month for his conviction under

Section 392 of the IPC. For his conviction under Sections 25/54/59 of

the Arms Act, he has been sentenced to undergo RI for a period of 2

years and to pay a fine of Rs.2,000/- and in default of payment of fine,

to undergo SI for one week.

3 Benefit of Section 428 of the Cr.PC had been granted to both the

convicts. The judgment of Rajesh Kumar had followed subsequent to

the judgment already delivered qua Virender Pratap Singh and this was

for the reason that Rajesh Kumar had been absconding; he had been re-

arrested and thereafter a supplementary challan had been filed against

him.

4 The version of the prosecution is that on 28.05.2012, a PCR call

was received at police station Keshav Puram. This was regarding

robbery and apprehension of one person. The person apprehended was

Virender Pratap Singh. This DD was marked to SI Deepak Bhardwaj.

He along with constable Bijrender Dhama reached the spot i.e. A-17,

Lawrence Road Industrial Area. The complainant Manohar Lal (PW-10)

and the injured Vinod Bohra (PW-13) were present there. Virender

Pratap Singh had been apprehended by them. He had two country-made

pistol with him. The statement of the complainant was recorded.

Investigation was set into motion.

5 The version of the complainant being that on 28.05.2012,

Monohar Lal working as a Cashier was present in his office when at

about 12:00 pm two boys came to his cabin; they were accompanied by

Vinod Bohra, who was the chowkidar working in the company. One of

the two boys sat in front of him and other boy kept standing near the

door. The boy sitting in front took out a pistol and pointed towards the

complainant and asked him to hand over the cash or else he would be

killed. The complainant caught the barrel of the pistol but in the

meanwhile the said boy pushed him as a result, he fell down. The

complainant was hit by the butt of the pistol. The cash which was lying

on the table was taken away. The boy carrying the bag fell down on the

stairs. The other boy who was keeping watch at the door lifted the said

bag and ran away but in this process, his pistol dropped at the spot. The

first boy was apprehended. His name was later on revealed to be

Virender Pratap Singh. The police was informed.

6 In the course of investigation, the prosecution had examined 17

witnesses. Accused Virender Pratap Singh was alone charge-sheeted as

all efforts to apprehend the co-accused Rajesh failed. On 07.11.2012, he

was declared a proclaimed offender. On 12.03.2013, pursuant to a secret

information, Rajesh Kumar was arrested and the supplementary challan

was accordingly filed against him.

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

Cr.PC, both of them pleaded innocence. Accused Virender Pratap Singh

stated that he has been falsely implicated in the present case. There is no

evidence against him. The version of co-accused Rajesh Kumar was that

he has no role to play; he had been arrested much after the incident.

8      DW-1 was examined on behalf of accused Rajesh.

9      On behalf of the appellants arguments have been addressed in

detail. It is pointed out that there are inherent contradictions in the

versions of PW-10 and PW-13 and these statements being inconsistent,

the conviction of the appellants under the aforenoted provisions of law

calls for an interference. Recovery is also liable to be dis-believed as no

public person had joined. It is pointed out that appellant Rajesh Kumar

was arrested much later; he was identified for the first time by the

complainant in Court which is a bad identification. No recovery has also

been effected from him. On all counts, both the appellants are entitled to

a benefit of doubt and a consequent acquittal.

10 Needless to state that these arguments have been refuted by the

learned APP for the State.

11 Arguments have been heard. Record has been perused.

12 The star witness of the prosecution was the complainant Manohar

Lal examined as PW-10. He had deposed that he was working with

Rahul Beverages, Lawrence Road Industrial Area as a cashier. His job

was to receive cash payment. On 28.05.2012 at about noon while he was

working in his office, their chowkidar Vinod Bohra (PW-13) came to his

office along with two boys. He left the boys in the office as they wanted

to give some cash payment. PW-13 went away. One boy was sitting in

front of him and the other boy was standing outside. The boy sitting in

front of him had a netted cloth bag. He kept the bag on table. PW-10

asked for payment on which he took out a pistol and pointed the same

on PW-10 threatening him that 'cash do verna goli mar doonga'. PW-10

got scared. He caught hold of barrel of the pistol which was held by the

boy. PW-10 was pushed. He fell down. That boy hit PW-10 with the

butt of his pistol and picked up the black coloured bag lying on the table

which had cash of Rs.20,000 -22,000/- thousand and some documents of

the company and started running away. PW-10 raised the alarm 'bachao

mujhe loot liya, maar rahe hai'. The boy who had snatched the bag

slipped while going downstairs. The other boy who was standing outside

managed to flee. The boy who had fell down was caught with the help

of PW-13. He hit PW-13 also with a butt of his pistol as a result PW-13

also sustained injuries. That boy had also suffered injuries when he had

fallen down. Police was informed. Investigation was set into motion.

The boy who was arrested revealed his name as Virender Pratap Singh.

The country-made pistol and its fire cartridge were also taken into

possession. The observations of the Court in the deposition of PW-10

being noted to the effect that the kutta had a broken wooden butt at one

side.

13 PW-10 was subjected to a lengthy cross-examination but he stuck

to his stand. He reiterated that he was robbed by two boys out of whom

one was standing outside and one was inside. It was afternoon time.

PW-13 was the chowkidar. He did not have any fire arm with him.

PW-10 was alone inside when he was attacked by the accused. He

denied the suggestion that the accused has been falsely implicated in the

present case. Relevant would it be to note that there was no reason put to

PW-10 as to why he would have falsely implicated the accused.

14 The chowkidar of the company Vinod Bohra was examined as

PW-13. He had reiterated the stand of PW-10 stating that on 28.05.2012

while he was in duty outside the gate, two persons came and stated that

they wanted to deposit some cash in the factory. He had taken the boys

to the cashier (PW-10). After 10-15 minutes he heard the voice of

cashier saying 'bachao yeh cash le kar bhag rahe hai'. PW-13 ran

towards the direction of the room of the cashier. He saw one of the two

boys running but he managed to escape. The other boy who was holding

pistol was climbing down. That boy hit PW-13 with the butt of his pistol

on his face and chest. The owner of the factory Rahul Khanna (PW-15)

also came out. That boy was apprehended and a kutta with a live

cartridge was recovered from him.

15 PW-13 was also subjected to a lengthy cross-examination but

nothing has been elicited in his version which could detract from his

credibility; submission of the learned counsel for the appellants that the

terminology used by PW-10 and PW-13 while raising alarm are

different and contrary to one another is of little relevance as keeping in

view the turmoil that each of them were facing when in the mid

afternoon somebody with the pistol was trying to attack the cashier and

the chowkidar who was on duty was running to save him; it is the gist of

the alarm raised by PW-13 that has to be read and understood and the

gist of the said communication was that he was being attacked and

looted of cash. Relevant would it be to note that even the testimony of

PW-13, there is no cross-examination as to why PW-13 would for any

purpose rope in the accused persons falsely.

16 PW-10 was medically examined by Dr. Prem (PW-11) at the

BJRM hospital at about 02:10 pm. His MLC was proved as

Ex.PW-11/A evidencing abrasions on right thumb dorsal surface and

abrasions on right forearm. PW-13 was also medically examined by

him. His MLC was proved as Ex.PW-11/B which has evidenced

abrasions on inner surface of upper lip. PW-12 Dr. Gagan had endorsed

this medical record. This medical evidence also matches the ocular

versions of PW-10 and PW-13 about the places where injuries have

been suffered by both the two victims.

17 The owner of the factory Rahul Khanna was examined as PW-15.

His version is also fully corroborative of the versions of PW-10 and

PW-13. The kutta which had been seized from Virender Pratap Singh

had been produced in Court and a broken butt had again been noted by

the Court in its observations. The recovered kutta which was in

possession of co-accused Rajesh was also seized and proved in Court.

18 The Investigating Officer qua the role of Virender Pratap Singh

was SI Deepak Bhardwaj. He was examined as PW-16. He had seized

the pistol vide seizure memo Ex.PW-9/C and prepared its sketch. The

second country-made pistol and test live cartridge was also seized vide

memo Ex.PW-9/B.

19 The same had also been sent to the CFSL for examination. Sh.

Puneet Puri (PW-8), senior scientific officer had examined both the

pistols and live cartridge and prepared his report evidencing the fact that

both the country-made pistols were in a working order and test fire was

conducted successfully. The cartridge marked Ex.F-1 was fired through

country-made pistol Ex.A1 and the cartridge marked Ex. A-2 was test

fired through the country-made pistol marked Ex. F-2.

20 Pursuant to the disclosure statement of Virender Pratap Singh, the

role of other co-accused Rajesh Kumar had surfaced but he was arrested

only subsequently i.e. on 12.03.2013 after the proceedings having

declared him as proclaimed offender stood complete. Monohar Lal and

Vinod Bohra had again come into the witness box after the

supplementary challan had been filed against accused Rajesh and had

been examined as PW-10 and PW-13. Both of them have reiterated the

versions earlier given by them qua the role of Virender Pratap Singh.

They had correctly identified the accused Rajesh as the accomplice of

Virender Pratap Singh. Relevant would it be to note that the accused

Rajesh had been put to judicial TIP on 19.03.2013 and both the

witnesses i.e. Manohar Lal and Vinod Bohra had correctly identified

Rajesh as the second assailant i.e. the person who had accompanied

Virender Pratap Singh. The submission of the learned counsel for the

appellant before this Court that Rajesh had not been put to TIP was an

incorrect factual submission.

21 PW-10 and PW-13 having reiterated their versions and the role of

co-accused Rajesh already having been spelt out and the identity of

Rajesh not being in dispute, there was little left with the Trial Court

leading with the supplementary challan.

22 Learned counsel for the accused Rajesh had cross-examined both

PW-10 and PW-13 in detail but nothing had been elicited which could

detract from their versions. The Investigating Officer qua Rajesh was

examined as PW-23 namely ASI Rakesh. He denied the suggestion that

the accused has been falsely implicated in the present case.

23 In defence, Rajesh had produced one witness namely his wife

Sunita examined as DW-1. Her testimony was to the effect that she had

gone to the hospital with her husband at the relevant date i.e. on

28.05.2012 and a medical certificate (Ex.DW-1/A) along with medical

record (Ex.DW-1/B) had been placed on record. Ex.DW-1/A and

Ex.DW-1/B are documents related to 21.05.2012 wherein Ex.DW-1/B is

Haematology report of Master Arjit; Ex.DW-1/A is also his diagnostic

and treatment chart. Master Arjit is stated to be the brother-in-law of

accused Rajesh. Presence of Rajesh is nowhere depicted even presuming

the documents are taken to be wholly correct. Defence is clearly sham.

24 The ocular testimony of PW-10 and PW-13 that the second pistol

was in possession of co-accused Rajesh is established although both the

weapons had been recovered from Virender Pratap Singh. The

conviction of the appellants on no count calls for any interference.

Sentence is also the minimum.

25     Appeals are without any merit. Dismissed.



                                      INDERMEET KAUR, J

DECEMBER 22, 2015
A