Amit Tomar vs State
2020 Latest Caselaw 2477 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                             Judgment delivered on: 24.08.2020

+       CRL. A. 864/2017 & CRL. M. (BAIL) 798/2019
AMIT TOMAR                                       .....Appellant

                        Versus

THE STATE (GNCT OF DELHI)                        ..... Respondent
Advocates who appeared in this case:
For the Appellant    :Mr Dinesh Malik, Advocate.
For the Respondent   :Mr Ravi Nayak, APP for State with
                      SI Vikram, PS Saket.

CORAM
HON'BLE MR JUSTICE VIBHU BAKHRU

                           JUDGMENT

VIBHU BAKHRU, J

1. The appellant has filed the present appeal impugning a judgment dated 09.03.2017, whereby the appellant was convicted of committing an offence punishable under Section 392/397 of the IPC read with Section 34 of the IPC. In addition, the appellant was also convicted of an offence punishable under Section 27 of the Arms Act, 1959. The appellant also impugns an order on sentence dated 17.03.2017, whereby he was sentenced to undergo rigorous imprisonment for a period of seven years with a fine of ₹3,000/- for the offence punishable under Section 397 of the IPC. It was further directed that the appellant would undergo simple imprisonment for a period of three months in default of payment of the fine. He was

sentenced to serve rigorous imprisonment of three years with a fine of ₹ 3,000/- for committing the offence punishable under Section 392/34 of the IPC and in default of payment of fine, to undergo simple imprisonment for a further period of three months. He was further sentenced to rigorous imprisonment for a period of three years with a fine of ₹3,000/- for the offence punishable under Section 27 of the Arms Act, 1959 and in default of payment of the fine, to undergo simple imprisonment for a further period of three months. The sentences were directed to run concurrently. The appellant was also granted the benefit of Section 428 of the Cr.PC.

2. The appellant was prosecuted pursuant to registration of an FIR, being FIR no. 154/2011 under Sections 392/34/397 of the IPC and Section 27 of the Arms Act, 1959, registered with PS Saket. The FIR in question was registered at the instance of one Ms Cecilia Renthlei (hereafter referred to as 'the complainant'). She had reported an incident of being robbed at a gunpoint. The said information was entered as DD No. 25/A on 10.05.2011. The same was then handed over to SI Jitender Kashyap who along with Ct. Harkesh reached Press Enclave Road near Main Gate Qila Rai, Pithora Park, which was the place where the incident had occurred. SI Jitender Kashyap (who was examined as PW8) recorded the statement of the complainant, which was exhibited as Ex.PW6/A. The complainant stated that she was a permanent resident of Aizawl, Mizoram and was at the material time residing at Lado Sarai, New Delhi in a tenanted premises. She stated that she was working as an Operations Supervisor at Hard Rock Cafe,

New Delhi. She had left her place of work (Hard Rock Cafe) at 10:45 pm on the said date and taken an auto (TSR) to go back to her home via Press Enclave Road. She stated that after crossing Malviya Nagar Metro Station Red Light, two persons riding on a Bajaj Discover Bike, stopped right in front of the auto. She stated that one of them came towards her to get a lighter but instead took out a gun and pointed it at her and demanded her bag. She stated that she was scared to death and the said persons took away her bag, which she described as a green and white color bag. She stated that the said bag contained the following articles: one black colour small purse containing two debit cards (one of Yes Bank and one of SBI), a PAN Card, a Voter ID Card, the employee Card of Hard Rock Café, bunch of office and house keys and ₹200/-. She also described the person who had come towards her and pulled out a gun. According to her, he was about 5 feet 7 inches of thin built, long face and whitish complexion. She stated that he was wearing blue jeans and a light yellow t-shirt. She described the person who remained on the motorcycle bike as strong built with an oval face and approximately 5 feet 8 inches tall. She alleged that they had taken away her bag on a bike, which had a Delhi registration number, but she had not noted down the number of the said motorcycle. She asserted that she could identify both the persons, if produced before her and requested that action be taken.

3. On the basis of the said statement, SI Jitender Kashyap prepared a Rukka (Ex.PW8/A) and he sent Ct. Harkesh to the police station for registration of the FIR. Ct. Harkesh (who was examined as PW2)

testified that he was handed over the Rukka prepared by SI Jitender Kashyap. He had then proceeded to the police station for registration of the FIR and had returned back to the spot with a copy of the FIR, which was handed over to SI Jitender Kashyap.

4. The complainant was examined as PW6. She testified as to the incident and her testimony is similar in all material aspects to her statement made on the date of the incident (Ex.PW6/A) except that she stated that her bag also contained nine medals each worth about ₹1,000/-. This was an addition to the contents of the bag as described in her initial statement. She also testified that after the two boys (accused) had fled away on their motorcycle, she asked the driver of the auto rickshaw to chase them so that she could note down the registration number of their motorcycle. She stated that two boys on the motorcycle took a right turn on the red light and fled away. She testified that while she was chasing the said accused, she made a call to the police by using her mobile number and the police asked her to wait at the place of the incident. She stated that she waited for the police and after some time, the police reached the spot and recorded her statement. She identified her signatures on Ex.PW6/A. She also testified that during the investigation, she had showed the place of incident to the police and a site plan was prepared at her instance. She further testified that during the investigation, she attended the office of the police authorities at Kamla Market for preparation of the sketch of the culprits. She identified the sketches (marked C & D) that were prepared by the artist on the basis of her description of the accused.

5. The Driver of the TSR, Sh. Ram Sunder Prasad, was examined as PW9. He testified that he was driving a TSR (TSR No. DL1RL8351) and at about 10.30 PM on 10.05.2011, he had taken a passenger from Connaught Place to Khanpur. When he was returning, after dropping him there, he had picked up another passenger (a girl) near Saket Mall. She had asked him to proceed to Lado Sarai. He testified that after they had crossed Malviya Nagar Metro Station and were near Rai Qila Pithora Park Gate, two boys came on a motorcycle and asked him to stop his TSR. He stated that fearing them, he stopped and one boy came on the side of the road and asked the lady passenger to deliver her bag on a gunpoint. He testified that that boy forcibly took away the bag and then he and his accomplice fled from the spot. He stated that he tried to chase them but they took a U turn from the red light and managed to flee. He stated that he had noted down the number of a motorcycle as "DL-----6". He described that the motorcycle was a black coloured Bajaj Discover with red stickers.

6. It is the prosecution's case that a secret information was received by the police that the accused who was involved in the incident would go to village Prahladpur from Tuglakabad Extension. SI Ombir Singh (Retired) was examined as PW4. He testified that on 20.05.2011, he was posted at PS Saket and he along with SI Jitender, ASI Suresh Chand, HC Randhawa, HC Tara Chand, HC Mukesh and HC Satender had placed barriers at MB Road near bus stand of Pul Prahladpur Village, as they had received secret information that the accused would proceed to village Prahladpur from Tuglakabad

Extension. He testified that at about 11:55 pm, he saw two motorcycles coming towards them and a secret informer who was present pointed them out to the police officials. He stated that the police officials singled them to stop. One of the motorcycles (DL- 9SAD-8646) was being ridden by a boy who was overpowered by the police officials and he was identified as one Arun who was involved in other cases (FIR Nos. 156/2011 and 163/2011). He stated that certain recovery was affected from him in those cases. He testified that the other motorcycle, bearing Registration No. DL-9SBL-6685 was being ridden by one boy and another boy was sitting on the pillion seat. Both of them were overpowered by SI Jitender with the help of HC Mukesh and HC Satender. One of the boys is the appellant in this case and the other was the other accused who was declared as a juvenile in conflict with law. He testified that the accused Amit (appellant in this case) was searched and one mobile phone of the brand Nokia was recovered from him and the said phone pertain to another case (FIR No. 156/2011).

7. It is the prosecution's case that the accused made certain disclosures, pursuant to which a country made pistol (katta) along with four empty cartridges were recovered on 21.05.2011. The said disclosure was made in FIR No. 156/2011 and the said statement has been placed on record. PW4 has also testified that he had recorded the said disclosure statement. He has also testified as to the recovery of the country made pistol and its seizure.

8. The accused also made a disclosure, which led to recovery of a small black purse belonging to the complainant. The said disclosure statement was made in this FIR and the same was marked as Ex.PW4/E. The test identification of the case property with respect to the said purse was conducted by the learned MM, Sandeep Garg, who was examined as PW5. The record of these proceedings established that the complainant has identified the small black purse that was recovered pursuant to the disclosure made by the accused, as that belonging to her. The motorcycle used to commit the said offence was also recovered and it confirms to the description as provided by the Sh. Ram Sunder Prasad (the person who was driving the TSR).

9. Mr Malik, the learned Advocate appearing for the appellant sought to assail the impugned judgment on two fronts. First, he submitted that the recovery of the purse and the country made pistol was highly delayed as the same has been recovered almost thirteen days after the date of the incident. He submitted that it was not possible to believe that the said items would have remained undisturbed even after a long period of thirteen days. Second, he submitted that there was a serious dispute as to the identification of the appellant. He submitted that the appellant had already been shown to the complainant and had, therefore, not participated in the TIP proceedings. He submitted that identification of the accused before the Court was a very weak evidence and could not be relied upon.

10. He submitted that in view of the above, there are serious doubts as to the case set up by the prosecution and, therefore, the appellant ought to be acquitted.

11. Mr Malik also contended that the material witnesses had not been cross-examined and, therefore, the appellant had lost his valuable rights. He contended that if they were properly cross-examined, it would have made a serious dent on the case set up by the prosecution.

12. The contentions advanced on behalf of the appellant are unpersuasive. This Court is unable to accept that there is any doubt as to the recovery of the black purse or the country made pistol used by the appellant. The appellant herein has been involved in other cases as well and during the course of his interrogation in FIR No. 156/2011, he had also made disclosures and led the police officials to recover the weapon (country made katta) that was used in commission of the offence. In his disclosure statement, the appellant had admitted that he had used the said katta to rob passengers from the TSR, including the complainant in this case. He had disclosed that the said weapon was placed in a blue coloured polythene bag and had been concealed in bushes in a jungle behind CISF Headquarters, D Block, Saket. It is not the appellant's case that the said weapon had been recovered from a place, which was frequented and otherwise in plain vision of the persons passing by. The weapon had been placed in a polythene bag and had been placed in bushes in a jungle behind CISF Headquarters, D Block, Saket. This indicates that the weapon was concealed and this Court is unable to doubt the recovery of the weapon in question.

Insofar as the small black purse belonging to the complainant is concerned, the purse is a small purse, which was kept in her handbag. The purse was also thrown in the bushes and was recovered at the instance of the appellant. The purse was found covered in dirt and there is no reason to doubt its recovery as well.

13. It is also important to note that identification proceedings were also conducted before the learned Magistrate (who was examined as PW5). His testimony clearly indicates that the complainant had identified the said purse as belonging to her.

14. SI Ombir Singh (PW4) had also testified to the recovery of the country made pistol. It is material to note that he was not cross- examined by the appellant's counsel. Undisputedly, the appellant was provided sufficient opportunity to cross-examine SI Ombir Singh and no grievance in this regard can be raised at this stage.

15. The contention that there is any doubt as to the identification of the accused is wholly unmerited. First of all, the complainant had given a brief description of the appellant in her initial statement that was recorded on 11.05.2011. Subsequently, during the course of the investigation, she had once again described the accused and based on her narration, sketches of the appellant and his accomplice were prepared. The said sketches had been placed on record and there is no contention that the sketch of the appellant's face bears no similarity whatsoever with his facial features.

16. In addition, the IO had also applied for conducting the TIP proceedings and the same was directed. Accordingly, the appellant and his accomplice were produced before the learned Magistrate for TIP proceedings on 23.05.2011. However, the appellant had declined to participate in the TIP proceedings. He was duly explained that refusal to participate in proceedings may result in an adverse inference being drawn against him in trial. Despite this warning, the appellant had not participated in the TIP proceedings.

17. The complainant had identified the appellant in Court during the course of her examination. Sh. Ram Sunder Prasad (PW9) also identified the appellant as the person who had pointed a gun at the complainant and had robbed her of her bag. This Court finds no reason to doubt that the complainant (PW6) and Sh. Ram Sunder Prasad (PW9) had correctly identified the appellant as the person who had committed the offence along with his accomplice.

18. This Court has also examined the evidence placed on record and the same clearly establishes, beyond any reasonable doubt, that the appellant is guilty of the offences for which he has been convicted.

19. The appeal is unmerited and is, accordingly, dismissed. The pending application is also disposed of.

VIBHU BAKHRU, J AUGUST 24, 2020 RK