Chandan vs State
2016 Latest Caselaw 4318 Del

$~R-20
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     Judgment Reserved on: May 20, 2016
%                                    Judgment Delivered on: June 03, 2016

+                        CRL.A. No.922/2015

       CHANDAN                                    ..... Appellant
                         Through :     Mr.Imran Khan, Advocate           with
                                       Petitioner in Person.

                    Versus

       STATE                                              ..... Respondent
                         Through :     Mr.Amit Ahlawat, APP for the State.
PRATIBHA RANI, J.

1. This appeal has come up for hearing pursuant to the directions issued for expediting hearing in appeals filed by persons in custody (with sentence more than five years and upto seven years).

2. The instant has been preferred by the appellant Chandan against the judgment and order on sentence both dated 27th May, 2015 whereby he has been convicted for committing the offence punishable under Section 397 IPC read with Section 394 IPC and sentenced to undergo RI for 7 years with fine of ₹2,000/- and in default of payment of fine, to undergo RI for one month.

3. In brief, the prosecution's case is that on 28th September, 2014, the complainant Ram Vilas, resident of Sonipat, left home to visit his co-brother who was residing in Nangloi. From Sonepat upto Sindhu Border he came by TSR and from there he boarded a Green Line DTC Bus for going to Nangloi. He also got made a bus pass of `40 from the Conductor which was valid for that day. However, before the bus could reach by-pass, he felt pressure to

answer the call of nature. He got down from the bus and tried to search for a suitable place to answer the call of nature. Somebody informed him that after crossing the road there was vacant land where he could go. When he crossed the road and reached the open area he met one person who was holding water bottle in his hand. The complainant talked him about water. He told the complainant that he was also going to answer the call of nature and took him towards open area behind the bushes. After reaching there, the said person pushed him, gave him beating and took out a knife from his pocket and put it on his neck. After threatening him to kill he took out his Chinese mobile phone with dual SIM as well his purse which was containing about `1,500/-. After taking his mobile phone he took out the SIM cards and threw them there and left. After that person left the spot and went ahead, the complainant picked the two SIM cards and proceeded in the same direction. He met some persons there and he informed them about the incident that had taken place and pointed out towards the person who was going ahead. Those persons identified him to be Chandan, s/o Puran. On seeing other persons coming towards him, the robber fled from there.

4. One of those public persons informed the PCR and left. The police arrived at the spot and got him medically examined. In the police station he was shown Dossier of 50-60 persons including dossier of Chandan. The complainant identified the photograph of Chandan to be of the same person who had committed robbery on knife point. During investigation Chandan was arrested and robbed mobile phone was recovered from his pocket. Thereafter at his instance the knife and the purse were also recovered from the house. On completion of investigation charge-sheet was filed.

5. After committal of the case to the Court of Sessions, he was charged

of committing offence punishable under Section 392/394/397/411 IPC. Prosecution examined 11 witnesses in all to prove its case. In his statement under Section 313 Cr.P.C., the appellant claimed to have been falsely implicated in this case.

6. After considering the testimony of the prosecution witnesses and recovery of purse and knife effected from the possession of the appellant herein, the learned Trial Court found the testimony of the complainant to be inspiring confidence and trustworthy. The statement of the police officials regarding arrest and recovery of the case property belonging to the complainant from the possession of the appellant was also believed and the appellant herein was convicted and sentenced as above.

7. On behalf of the appellant the conviction and sentence have been challenged mainly on the following grounds:

(i) The appellant could not engage a private counsel because of his poor financial condition and he was represented by Amicus Curie.

(ii) He was not given fair opportunity to defend himself.

(iii) Learned Trial Court placed the onus on the appellant to discharge the charge whereas it is the duty of the prosecution to discharge the burden.

(iv)    The benefit of doubt has not been given to him.
(v)     The approach of the learned Trial Court was bias and he has been

convicted without any discussion as to how the ingredients of incident of robbery have been proved by the prosecution.

8. Pursuant to the production warrants issued against the appellant, he has been produced from Judicial Custody.

9. I have heard learned counsel for the appellant as well as the appellant.

10. The appellant cannot claim the denial of opportunity to have fair trial

as legal assistance was admittedly provide to him by the State and prosecution witnesses have been effectively cross examined by the Amicus Curiae.

11. The complainant in this case is PW3-Ram Vilas who was a total stranger to the appellant. DTC bus pass for `40/- valid for that day has been seized in this case. CDR of the mobile phone has also been obtained. The fact of police being informed by a public person i.e. PW4-Rohit, has also been established on record.

12. PW4-Rohit who is an independent public person has specifically stated that on 28th September, 2014 when he was going towards Fish Market near Libaspur and reached Sanjay Colony, near Fish Market, the complainant Ram Nivas met him and informed him that he has been robbed of his mobile phone and purse. Since Ram Vilas was also present in the Court on that date as witness on that date, PW4-Rohit also identified Ram Vilas to be the same person who met him on that day and informed about the incident as well the fact of being assaulted by the person who committed robbery. PW4-Rohit has specifically stated that he informed PCR from his mobile phone No. 9718650347 and thereafter he left the spot. He has further stated that subsequently his statement was recorded by the Investigation Officer in this case.

13. Thus from the statement of the complainant and PW4-Rohit who called PCR, the prosecution has proved beyond reasonable doubt that the complainant was a victim of robbery on that date. It is further proved that PW4-Rohit, a public person, helped him out by informing PCR and leaving thereafter.

14. Next question is about the identification of the appellant. It is clearly

stated by PW3-Ram Vilas that when he was chasing the appellant from some distance and met certain persons and informed them about the robbery by the person who was going ahead and pointing towards him, those persons identified him to be Chandan. Thereafter in the police station out of the Dozier of 50-60 persons, the appellant has identified the photograph of the appellant to be the person who committed robbery at knife point.

15. The appellant was apprehended on 18th October, 2014 by Ct. PW8-Pramod and PW9-HC Jagat as instructions had already been given to this effect by the Investigation Officer SI Sachin Mann-PW6. The Chinese mobile phone belonging to the complainant had been recovered from the right side pant pocket of the appellant. The call detail record was proved and IMEI number of the mobile phone recovered from the appellant was of mobile phone of the complainant (PW-3). No doubt the purse belonging to the complainant was recovered at the instance of the appellant has not been put for TIP but the mere fact that identity of the appellant was established from the Dossier, mobile phone belonging to the complainant has been recovered from the pocket of the appellant when he was apprehended by PW8 & PW9, recovery of knife which was used for commission of robbery as well purse of the complainant have been recovered from the house of the appellant, there was hardly any loop-hole in the case of prosecution on the basis of which the appellant can claim that he has been falsely implicated in this case.

16. The point for consideration is whether the grounds raised by the appellant highlighting the infirmities would require the impugned judgment liable to be set aside.

17. Learned Trial Court while convicting the appellant for commission of

offence under Section 394/397 IPC has satisfied itself in respect of all the ingredients necessary to convict him for offence punishable under Section 394/397 IPC. Learned Trial Court had also noted that all the police officials i.e. PW5-ASI Udaibir Singh, PW6-Sachin Mann (Investigating Officer), PW7-Ct. Sher Pal, PW8-Ct. Pramod, PW9-HC Jagat and PW10-Ct. Naresh have fully withstood the test of cross-examination. Learned Trial Court has also noted that the complainant was stranger to the appellant and he had no reason to falsely implicate him in this case. It was also held by the Trial Court that the identification of the appellant through TIP was not required as he was identified by the complainant from the photograph in his Dozier. Prior to that, the complainant got clue about the identity of the person who committed robbery from the public persons to whom he pointed out the person who was going ahead after robbing him of his purse and mobile phone at knife point.

18. The essential ingredients to bring home the charge against the accused are established by overwhelming evidence appearing on record in the form of statement of the complainant as well the police officials who were part of the investigation. The appellant was arrested and the robbed property i.e. purse and mobile of the complainant were recovered from him.

19. I do not find any illegality or infirmity in the impugned judgment whereby the appellant has been convicted for committing the offence punishable under Section 397 read with Section 394 IPC.

20. Even on the quantum of sentence, the appellant does not deserve any leniency for the reason that the minimum sentence prescribed for committing offence punishable under Section 397 IPC is seven years which has been awarded to him in this case.

21. The appeal is dismissed.

22. TCR be sent back alongwith copy of this order.

23. The appellant be informed through the concerned Jail Superintendent about the order passed.

PRATIBHA RANI, J.

JUNE 03, 2016 'hkaur'