Surender vs State Nct Of Delhi
2016 Latest Caselaw 2512 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 9th MARCH, 2016
                              DECIDED ON : 31st MARCH, 2016

+                         CRL.A. 1577/2013
      SURENDER                                        ..... Appellant
                          Through :   Mr.Neeraj Bhardwaj, Advocate.

                          VERSUS

      STATE NCT OF DELHI                              ..... Respondent
                    Through :         Mr.Vinod Diwakar, APP.


AND
+                         CRL.A. 1513/2013
      SANJAY                                            ..... Appellant
                          Through :   Mr.Jivesh Tiwari, Advocate.

                          VERSUS

      STATE NCT OF DELHI                              ..... Respondent
                    Through :         Mr.Vinod Diwakar, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 16.08.2013 of learned Addl.

Sessions Judge in Sessions Case No.29/10 arising out of FIR No.52/10 PS

Bhalswa Dairy by which the appellants - Surender (A-1) and Sanjay (A-

2) were held guilty for committing offences punishable under Sections

458/392/394/34 IPC and A-1 also under Section 397 IPC, the instant

appeals have been preferred by them. By an order dated 21.08.2013, the

appellants were sentenced to undergo RI for seven years with fine

`5,000/- under Section 458 IPC; RI for five years with fine `2,000/-

under Section 394 IPC; and, RI for three years with fine `1,000/- under

Section 392 IPC each. A-1 was further sentenced to undergo RI for four

years with fine `2,000/- under Section 397 IPC. The substantive

sentences were to operate concurrently.

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

sheet was that on 09.04.2010 at around 09.30 p.m. the appellants in

furtherance of common intention committed lurking house-trespass by

night after having made preparation to cause hurt at House No.B-175, 1st

Floor, Veer Bazar Road, Mukundpur Part-I, Delhi belonging to

complainant - Pinki Aggarwal. They while armed with a knife robbed

Pinki Aggarwal of her gold chain and inflicted injuries to her. The

incident was conveyed to the police and Daily Diary (DD) No.53-B

(Ex.PW-8/A) came into existence at 10.50 p.m. The investigation was

assigned to ASI Rajeshwar who along with Const.Sudhir went to the spot.

After recording victim's statement (Ex.PW-1/A), the Investigating Officer

lodged First Information Report. The complainant was medically

examined. The accused persons were arrested. Statements of the

witnesses conversant with the facts were recorded. Upon completion of

investigation, a charge-sheet was filed against both the appellants in the

Court. In order to establish its case, the prosecution examined eleven

witnesses. In 313 Cr.P.C. statements, the appellants denied their

involvement in the crime and pleaded false implication. The trial resulted

in their conviction as aforesaid. Being aggrieved and dissatisfied, the

instant appeals have been preferred.

3. I have heard the learned counsel for the parties and have

examined the file minutely. Information conveyed to the police at the

earliest vide Daily Diary (DD) No.53-B (Ex.PW-8/A) recorded at 10.50

p.m. was to the effect that a 'thief' has been apprehended committing theft

at the house in question. In her complaint (Ex.PW-1/A), complainant -

Pinki Aggarwal disclosed that at around 09.30 p.m., her sister-in-law Arti

Aggarwal informed her about the presence of an 'individual' in the

balcony in the house. After coming out, she saw both A-1 and A-2, who

lived in her neighbourhood present there. When she enquired as to what

they wanted, A-1 assaulted her with a knife in his hand and inflicted

injuries to her on finger and left thigh. On raising alarm, her husband

arrived at the spot and A-1 was apprehended; A-2 succeeded to flee the

spot taking away her gold chain. Call was made to the police at 100; PCR

arrived at the spot and got her admitted in the hospital where her

statement was recorded.

4. In her Court statement as PW-1, the complainant deposed

that on 09.04.2010 in between 09.00 - 09.30 p.m., when she and her

sister-in-law Arti Aggarwal were going for dinner, Arti Aggarwal

suspected 'someone' present in the balcony. After coming out of the

room, she saw both the appellants present there. When she enquired as to

why they had come there, A-1 pounced upon her and inflicted injuries to

her on hand, thigh and abdomen by a knife. On her raising alarm, Arti

Aggarwal and other family members arrived and overpowered A-1. A-2

fled away from there through 'momty'. The police arrived at the spot and

took her for medical examination. In the cross-examination, she admitted

that the appellants were known to her and lived in her neighbourhood.

She denied about any previous quarrel with the of the appellants' family.

In her examination after recall in terms of order dated 11.09.2012, she

informed that A-2 had snatched her gold chain.

5. PW-2 (Arti Aggarwal) testified that at about 09.30 p.m. while

watching T.V. in the outer room, she saw a 'shadow' in the balcony and

informed her sister-in-law Pinki, who went out to the balcony. On hearing

her cries soon thereafter, she immediately rushed to the balcony and saw

A-1 giving beatings to her by a knife. On her raising alarm 'Chor-Chor',

A-1 pushed her 'jethani' aside and ran away. In the meantime, A-2 came

from the ground floor and caught hold of her; A-2 having a knife

attempted to stab her. A-2 succeeded to run away from the spot, but A-1

was apprehended with the help of mohalla people. A knife (Ex.P1) was

recovered from his possession. In the cross-examination, she informed

that Gyan was among the neighbours who had apprehended A-1 at the

spot. The knife (Ex.P1) was in A-1's hand at the time of his

apprehension. This witness in her examination on 18.12.2012 in terms of

the order dated 11.09.2012 disclosed that on the day of incident after

hitting her jethani Pinki, A-2 had snatched her gold chain from the neck.

6. PW-4 (Sushil Aggarwal) complainant's husband deposed that

on 09.04.2010 at around 09.30 p.m. when he was present at his shop on

the ground floor, he immediately went on 1st floor on hearing noise and

saw A-1 and A-2 present there. A-1 had assaulted his wife with a knife

and A-2 had snatched chain from her neck. A-1 was apprehended at the

spot and A-2 succeeded to flee the spot. In the cross-examination, he

denied if A-1 was apprehended from the 'gali'.

7. On scrutinizing the statements of the material prosecution

witnesses referred above minutely, it reveals that divergent and

inconsistent versions have emerged. Admittedly, both the appellants are

real brothers and they lived in the complainant's neighbourhood since

long without any previous history of hostile relationship. The appellants

did not produce any evidence to show if any serious quarrel had taken

place between the two families on any particular issue prompting the

complainant to implicate them in the occurrence. Complainant had no

oblique motive to concoct a false incident.

8. About A-1, the prosecution has established beyond doubt that

he was apprehended at the spot. He was taken to Babu Jagjivan Ram

Memorial Hospital and was medically examined vide MLC (Ex.PW-9/A)

on 10.04.2010. All the prosecution witnesses have categorically deposed

about his apprehension on the 1st floor of the house at the relevant time.

Specific and definite role has been attributed to him in inflicting injuries

by a knife on the various body parts of the complainant. PW-1 (Pinki

Aggarwal) being an injured witness is not expected to spare the real

offenders and to rope in innocent ones falsely. Despite searching cross-

examination, no material infirmities could be elicited about A-1's

apprehension at the spot and of causing injuries by him. A-1 did not

produce any evidence to show his presence at some other particular place

at that time. Suggestion was put to PW-1 (Pinki Aggarwal) about his

apprehension from a 'street' which was denied. A-1's involvement

surfaced soon after the incident and it finds mention in the information

conveyed to the police vide DD No.53-B (Ex.PW-8/A). A-1 did not

furnish plausible explanation about his presence at the complainant's

house at odd hours. He had no occasion to reach to the balcony

clandestinely while armed with a weapon i.e. knife. When he was

confronted by the complainant about his presence in the balcony, instead

of justifying it for any bonafide purpose, he caused injuries to her and on

her raising alarm, he was apprehended at the spot. Apparently, A-1 had

committed lurking house-trespass by night with the intention to commit

theft and to cause injuries to the complainant. The findings of the Trial

Court on that score can't be faulted.

9. About A-2, his presence at the spot along with A-1 has not

been established beyond reasonable doubt; he was not arrested at the spot.

There is no mention in DD No.53-B (Ex.PW-8/A) about the arrival of two

individuals at the complainant's house. In her complaint (Ex.PW-1/A),

the complainant undoubtedly disclosed about the presence of both A-1

and A-2 in the balcony and reiterated it in her Court statement too. PW-2

(Arti Aggarwal), however, contradicted her. She deposed that she

suspected the presence of an 'individual' in the balcony. When she came

out after hearing Pinki's cries, she saw A-1 inflicting injuries to her with a

knife. She did not claim if A-2 was present at the spot that time or she

had seen him. She further informed that on her raising noise 'Chor-Chor'

A-1 pushed her 'jethani' and ran away. In the meantime, A-2 also came

there from the ground floor and caught hold of her; A-2 who had a knife

attempted to stab her. He, however, succeeded to run away from the spot.

This version is entirely at variance to the one given by PW-1 (Pinki

Aggarwal) and her husband. PW-1 (Pinki Aggarwal) - complainant did

not reveal if A-2 had arrived from the ground floor, on Arti's raising

alarm 'Chor-Chor'. She also did not state if A-2 was armed with a knife

or had attempted to stab Arti Aggarwal. PW-4 (Sushil Aggarwal) also did

not speak if A-2 was in possession of any knife or had attempted to stab

his sister-in-law. No injuries were inflicted to Arti Aggarwal.

10. Vital contradictions have emerged in the statements of the

prosecution witnesses about robbing of the gold-chain in the incident. In

the complaint (Ex.PW-1/A), no specific role was attributed to any of the

appellants in snatching the gold-chain. It was merely informed that A-2

while fleeing the spot had taken her gold-chain. It was not informed as to

in what manner, she was divested of the chain. No role was assigned to

A-1 in robbing the complainant's gold-chain. In their initial examination,

the complainant and PW Arti did not claim if any gold chain was robbed

in the incident. When they were recalled for examination subsequently

after a considerable delay in terms of orders dated 11.09.2012, they

implicated A-2 to have snatched the gold chain. During investigation, the

gold-chain could not be recovered. The complainant did not furnish any

description of the gold-chain allegedly robbed in the incident in her

complaint. No independent public witness, including Gyan, allegedly

present at the time of A-1's apprehension at the spot was examined to

show A-2's presence there. Possibility of A-2's arrival at the spot after A-

1's (his brother) apprehension cannot be taken as incriminating

circumstance. In the absence of any specific overt act attributed to him, it

cannot be inferred with certainty that he had accompanied A-1 to the

complainant's house for any oblique motive; admittedly, he was not

armed with any weapon.

11. Appellants' conviction under Sections 392/394/397 IPC

cannot be sustained as the evidence is lacking to prove the ingredients. It

was a simple case where A-1 committed lurking house-trespass by night

at the complainant's house after having made preparation to cause hurt.

When confronted, A-1 inflicted 'simple' hurt by a sharp weapon to the

complainant.

12. In the light of the above discussion, the prosecution has failed

to prove its case beyond reasonable doubt against A-2; he deserves benefit

of doubt. Appeal preferred by him is accepted and his conviction and

sentence are set aside. A-2 shall be released forthwith if not required to

be detained in any other criminal case. Maintaining A-1's conviction

under Section 458 IPC alone, conviction under Sections 392/394/397 IPC

is set aside.

13. By an order dated 21.08.2013, A-1 was sentenced to undergo

RI for seven years with fine `5,000/- under Section 458 IPC. Nominal

Roll dated 21.03.2015 reflects that the undergone period is one year, ten

months and eight days besides remission for six months and twenty-nine

days as on 20.03.2015. It further shows that he is not a previous convict;

has clean antecedents; is not involved in any other criminal case; and, his

overall jail conduct is satisfactory. Considering these circumstances,

Sentence Order is modified and the substantive sentence under Section

458 IPC is reduced to RI for four years with fine `5,000/- and default

sentence for its non-payment would be SI for one month. The appeal

preferred by A-1 stands disposed of in the above terms.

14. Trial Court record be sent back forthwith with the copy of the

order. A copy of the order be sent to the Superintendent Jail for

information / compliance.

(S.P.GARG) JUDGE MARCH 31, 2016 / tr