Full Judgment Text
* IN THE HIGH COURT OF DELHI AT NEW DELHI
th
RESERVED ON : 11 MARCH, 2014
nd
DECIDED ON : 2 APRIL, 2014
+ CRL.A. 133/2014
RAHUL JAIN @ SONU ..... Appellant
Through : Ms.Alpana Pandey, Advocate.
Versus
THE STATE (GOVT. OF NCT), DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Challenge in this appeal is to a judgment dated 09.03.2011
of learned Addl. Sessions Judge in Sessions Case No. 1030/09 arising out
of FIR No. 336/2008 PS Keshav Puram by which the appellant – Rahul
Jain @ Sonu along with his associates Sanjay Yadav and Rattan @
Mintoo was convicted under Sections 392/397 IPC. By an order on
sentence dated 19.03.2011, he was awarded RI for seven years with fine `
5,000/- under Section 392 IPC read with Section 397 IPC.
CRL.A. 133/2014 Page 1 of 10
2. The prosecution case as projected in the charge-sheet was
that on 17.12.2008 at about 11.15 P.M. opposite Gali No. 125, Shanti
Nagar, near Road No.37, Delhi, the appellant along with his associates
Sanjay Yadav and Rattan @ Mintoo robbed complainant – Umesh Chand
Vashisht and deprived him of cash 15,000/-, five or six credit cards,
`
mobile phone make Nokia-6610, two diaries and a bag containing clothes
and documents at knife point. First Information Report was lodged on the
complainant’s statement (Ex.PW-2/A) at Police Post Shanti Nagar, PS
Keshav Puram. In the complaint, Umesh Chand Vashisht gave detailed
account of the occurrence and disclosed how and under what
circumstances, he was robbed of his valuable articles at knife point by two
assailants and claimed to identify them. Efforts were made to find out the
culprits but in vain. On 19.12.2008, the appellant and his associates were
arrested in case FIR No. 312/08 under Sections 392/395/412/34 IPC PS
Vikaspuri by Special Staff (West district) and recoveries were effected
from their possession. Pursuant to their disclosure statements, robbed
articles were recovered. Intimation was given to the Investigating Officer
of this case who moved application for holding Test Identification
Proceedings. The accused and his associates declined to participate in the
Test Identification Proceedings. Statements of the witnesses conversant
CRL.A. 133/2014 Page 2 of 10
with the facts were recorded. After completion of investigation, a charge-
sheet was filed against the accused persons; they were duly charged and
brought to trial. The prosecution examined ten witnesses to substantiate
the charges. In 313 statement, the appellant pleaded false implication and
denied his complicity in the crime, claiming that he was lifted from Jaipur
Golden Hospital. After appreciating the evidence and considering the rival
contentions of the parties, the Trial Court, by the impugned judgment held
the appellant and his associates guilty for the offences mentioned
previously. Being aggrieved and dissatisfied, the appellant has preferred
the appeal. It is unclear if Sanjay Yadav and Rattan @ Mintoo have
challenged the conviction. It appears that they have served the sentence
awarded to them.
3. I have heard the learned counsel for the parties and have
examined the file. Appellant’s counsel urged that the Trial Court did not
appreciate the evidence in its true and proper perspective and fell into
grave error in relying upon the statement of the complainant without
independent corroboration. The delay in lodging the FIR remained un-
explained. No information was conveyed to PCR about the incident.
Initially, the complainant had stated that there were two assailants.
However, subsequently, he changed the version and stated that the
CRL.A. 133/2014 Page 3 of 10
assailants were three in number. The prosecution was unable to establish
beyond doubt that the credit cards were used by the appellant or any
purchases were made out of it. PW-4 (Mohit) could not explain as to how
and under what circumstances, he put his signatures on Ex.PW-4/A to
Ex.PW-4/C on 15.02.2009. The photographs of the appellant were taken
and shown to the complainant and he was justified to decline to participate
in the Test Identification Proceedings. No weapon was recovered from his
possession and no injury was caused to the complainant. Addl. Public
Prosecutor urged that the judgment of the Trial Court is based upon
minute evaluation of the evidence and no interference is called for.
4. The appellant along with his associates was arrested by
Special Staff (West district) on 19.12.2008. PW-9 (SI Manoj Kumar)
deposed that on the basis of secret information, in case FIR No. 312/08 PS
Vikaspuri at about 12.00 (noon), they apprehended Rahul Jain @ Sonu,
Rajesh @ Vijay, Rattan, Juned Qureshi and Ravi Kant Rekhi when they
were travelling in a robbed i10 car bearing No. DL 3C-ND-6075. Various
weapons were recovered from their possession. A dagger was recovered
from the left side dub of the accused Rahul. On 20.12.2008 pursuant to the
disclosure statements, some credit cards and some smart cards were
recovered and taken into possession vide memo Ex.PW-9/H under Section
CRL.A. 133/2014 Page 4 of 10
102 Cr.P.C. The co-accused Rattan recovered clothes purchased by them
using the robbed credit cards and were seized vide seizure memo (Ex.PW-
9/J). Invoices (Ex.PW-4/A to Ex.PW-4/C) and the receipts of the
shopping (Ex.PW-4/D, Ex.PW-4/E, Ex.PW-5/A and Ex.PW-5/B) were
collected. Mobile phone was seized by ASI Dharamvir of PS Vikaspuri
vide memo mark X1. Intimation was given to PS Keshav Puram on
20.12.2008 when their involvement in said case emerged. Apparently, the
police of PS Keshav Puram had nothing to do with the apprehension and
recovery effected at the instance of the appellant and his associates.
Crucial testimony is that of PW-2 (Umesh Chand Vashisht), the
complainant, a Professor, Lucknow University Campus who had visited
Delhi to attend a meeting in the Ministry of Human Resources on
17.12.2008. When, after attending the meeting, in the evening, he was
going to Deepankar Sharma’s residence at Tri Nagar by DTC bus No.816,
he got down at Inderlok Metro Bus Stand and walked on foot towards
Shanti Nagar. When he crossed the ‘nala’ and entered gali No.125 at
around 11.15 P.M., he was surrounded by three individuals and they
caught hold of him. He was shown a pronged knife and was criminally
intimidated. He became frightened. The assailants took ` 15,000/- in cash,
ten credit cards / I-cards, bag, two diaries, mobile phone make Nokia No.
CRL.A. 133/2014 Page 5 of 10
9415521737 and his clothes, sweater, etc. He deposed that he begged the
assailants to at least give him the important papers of MHRD and
University but they did not agree. They fled the spot. He went to his
relative’s residence. Thereafter, they reported the matter to the police of
Police Post Shanti Nagar where his statement (Ex.PW-2/A) was recorded.
He identified appellant to be the assailants who had threatened him with a
knife. He also deposed that he was called at Rohini Courts where he
participated in the Test Identification Proceedings and identified the case
property recovered. He also identified six cards collectively exhibited
(Ex.P1 & Ex.P2), mobile phone (Ex.P3), bag (Ex.P4). He was fair enough
to state that the clothes produced were not robbed from his possession. It
was informed by learned Addl. Public Prosecutor that these articles were
purchased by the accused persons using the stolen / robbed credit cards /
debit cards. In the cross-examination, the witness fairly admitted that
initially he had given the number of the assailants as two. However, on
20.12.2008, he returned to Delhi and informed the police that the number
of the assailants was three and he was unable to give the correct number
as he was perplexed and under fear. He further admitted that due to fear
and being night time, he could not properly see the said boys at the time of
incident. He denied the suggestion that at Tagore Garden the accused
CRL.A. 133/2014 Page 6 of 10
persons were shown to him. Despite lengthy and searching cross-
examination, no material discrepancy emerged to disbelieve the
complainant who had no prior animosity with any of the accused persons
to falsely implicate them. This witness had come to attend the meeting in
connection with official work and had no acquaintance with any of the
accused persons to falsely rope them in this case and recognise the
appellant as one of the assailants. He had direct confrontation with the
appellant and had reasonable and sufficient opportunity to see him and to
observe his broad features. In the statement (Ex.PW-2/A), he had
categorically stated that he would be able to identify the assailants. In
Court statement, he identified appellant without hesitation as one of the
assailants and attributed specific role to him that he was armed with a
knife and had threatened him. Adverse inference is to be drawn against
the appellant for declining to participate in the Test Identification
Proceedings. Nothing has come on record as to on which particular and
specific date the appellant was shown and his photographs were taken.
Complainant categorically denied if he visited Tagore Garden office. In
the statement recorded by the learned Magistrate in Test Identification
Proceedings, the plea of the accused was that his photographs were taken.
He did not claim that he was shown to the complainant.
CRL.A. 133/2014 Page 7 of 10
5. Recovery of the robbed articles from his possession or at his
instance is an additional relevant incriminating circumstance to connect
him with the crime. PW-4 (Mohit) identified the appellant as one who
with his associates had visited his showroom on 18.12.2008 and had
purchased garments of total amount of 10,695/- vide invoices / bills
`
Ex.PW-4/A to Ex.PW-4/C. The credit card slips are Ex.PW-4/D and
Ex.PW-4/E. He further stated that the credit cards were in the name of one
Umesh Vashisht i.e. the complainant. Similarly, PW-5 (Vinay) supported
the prosecution and stated that on 18.12.2008, three boys had purchased
two sweaters, one pair of socks and three pair of shoes through credit card
for a total sum of ` 14,253/- at his showroom. The credit card was in the
name of Umesh Vashisht. He issued bill no. 1919 dated 18.12.2008. The
relevant cash memos and merchant copies are Ex.PW-5/A and Ex.PW-
5/B. Both these independent witnesses had no ulterior consideration to
falsely show purchase of these articles by the appellant and his associates.
These purchases were made soon after the occurrence before the
complainant could block the credit cards. The police did not expect to
plant all these articles of substantial value of their own.
6. Minor contradictions, discrepancies and improvements
highlighted by the appellant’s counsel do not affect the basic structure of
CRL.A. 133/2014 Page 8 of 10
the prosecution case. The complainant was categorical to identify the
appellant as one of the assailants who had robbed him at knife point.
Inconsistency in the number of assailants given by the complainant at the
first instance was inconsequential. There was no inordinate delay in
lodging the First Information Report as the occurrence had taken place at
around 11.15 P.M. After the incident, the complainant went to his
relative’s residence and thereafter approached the police of Police Post
Shanti Nagar to lodge the report. The FIR was lodged at 10.45 A.M. next
date on 18.12.2008. Since the occurrence had taken place at midnight
during winter days and the complainant was deprived of his mobile phone,
no adverse inference can be drawn for omission to inform PCR at 100.
7. To attract Section 397 IPC, causing of injury is not a
condition precedent. Only ‘use’ of a deadly weapon is sufficient.
Moreover, at the time of his arrest in case FIR No. 312/08, a dagger is
alleged to have been recovered from the possession of the appellant. All
the relevant contentions of the appellant have been dealt with minutely
and dispelled with reasons. The findings are based upon proper
appreciation of the evidence and need no interference. The accused did
not give plausible explanation to the incriminating circumstance proved
against him. He did not produce any evidence to show when and under
CRL.A. 133/2014 Page 9 of 10
what circumstances, he had gone to Jaipur Golden Hospital and when and
from where he was lifted by the police. He did not examine any family
member / doctor to substantiate his defence. The findings on conviction
under Section 392 IPC read with Section 397 IPC are affirmed.
8. Turning to the alternative plea to modify the sentence order,
minimum sentence prescribed under Section 397 IPC is seven years which
cannot be altered or modified. The sentence order is maintained except
that the fine amount will be ` 1,000/- and default sentence for its non-
payment would be 10 days. Other terms and conditions of the sentence
order are left undisturbed.
9. The appeal stands disposed of in the above terms. Trial Court
record be sent back immediately.
(S.P.GARG)
JUDGE
APRIL 02, 2014/
tr
CRL.A. 133/2014 Page 10 of 10
th
RESERVED ON : 11 MARCH, 2014
nd
DECIDED ON : 2 APRIL, 2014
+ CRL.A. 133/2014
RAHUL JAIN @ SONU ..... Appellant
Through : Ms.Alpana Pandey, Advocate.
Versus
THE STATE (GOVT. OF NCT), DELHI ..... Respondent
Through : Mr.M.N.Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Challenge in this appeal is to a judgment dated 09.03.2011
of learned Addl. Sessions Judge in Sessions Case No. 1030/09 arising out
of FIR No. 336/2008 PS Keshav Puram by which the appellant – Rahul
Jain @ Sonu along with his associates Sanjay Yadav and Rattan @
Mintoo was convicted under Sections 392/397 IPC. By an order on
sentence dated 19.03.2011, he was awarded RI for seven years with fine `
5,000/- under Section 392 IPC read with Section 397 IPC.
CRL.A. 133/2014 Page 1 of 10
2. The prosecution case as projected in the charge-sheet was
that on 17.12.2008 at about 11.15 P.M. opposite Gali No. 125, Shanti
Nagar, near Road No.37, Delhi, the appellant along with his associates
Sanjay Yadav and Rattan @ Mintoo robbed complainant – Umesh Chand
Vashisht and deprived him of cash 15,000/-, five or six credit cards,
`
mobile phone make Nokia-6610, two diaries and a bag containing clothes
and documents at knife point. First Information Report was lodged on the
complainant’s statement (Ex.PW-2/A) at Police Post Shanti Nagar, PS
Keshav Puram. In the complaint, Umesh Chand Vashisht gave detailed
account of the occurrence and disclosed how and under what
circumstances, he was robbed of his valuable articles at knife point by two
assailants and claimed to identify them. Efforts were made to find out the
culprits but in vain. On 19.12.2008, the appellant and his associates were
arrested in case FIR No. 312/08 under Sections 392/395/412/34 IPC PS
Vikaspuri by Special Staff (West district) and recoveries were effected
from their possession. Pursuant to their disclosure statements, robbed
articles were recovered. Intimation was given to the Investigating Officer
of this case who moved application for holding Test Identification
Proceedings. The accused and his associates declined to participate in the
Test Identification Proceedings. Statements of the witnesses conversant
CRL.A. 133/2014 Page 2 of 10
with the facts were recorded. After completion of investigation, a charge-
sheet was filed against the accused persons; they were duly charged and
brought to trial. The prosecution examined ten witnesses to substantiate
the charges. In 313 statement, the appellant pleaded false implication and
denied his complicity in the crime, claiming that he was lifted from Jaipur
Golden Hospital. After appreciating the evidence and considering the rival
contentions of the parties, the Trial Court, by the impugned judgment held
the appellant and his associates guilty for the offences mentioned
previously. Being aggrieved and dissatisfied, the appellant has preferred
the appeal. It is unclear if Sanjay Yadav and Rattan @ Mintoo have
challenged the conviction. It appears that they have served the sentence
awarded to them.
3. I have heard the learned counsel for the parties and have
examined the file. Appellant’s counsel urged that the Trial Court did not
appreciate the evidence in its true and proper perspective and fell into
grave error in relying upon the statement of the complainant without
independent corroboration. The delay in lodging the FIR remained un-
explained. No information was conveyed to PCR about the incident.
Initially, the complainant had stated that there were two assailants.
However, subsequently, he changed the version and stated that the
CRL.A. 133/2014 Page 3 of 10
assailants were three in number. The prosecution was unable to establish
beyond doubt that the credit cards were used by the appellant or any
purchases were made out of it. PW-4 (Mohit) could not explain as to how
and under what circumstances, he put his signatures on Ex.PW-4/A to
Ex.PW-4/C on 15.02.2009. The photographs of the appellant were taken
and shown to the complainant and he was justified to decline to participate
in the Test Identification Proceedings. No weapon was recovered from his
possession and no injury was caused to the complainant. Addl. Public
Prosecutor urged that the judgment of the Trial Court is based upon
minute evaluation of the evidence and no interference is called for.
4. The appellant along with his associates was arrested by
Special Staff (West district) on 19.12.2008. PW-9 (SI Manoj Kumar)
deposed that on the basis of secret information, in case FIR No. 312/08 PS
Vikaspuri at about 12.00 (noon), they apprehended Rahul Jain @ Sonu,
Rajesh @ Vijay, Rattan, Juned Qureshi and Ravi Kant Rekhi when they
were travelling in a robbed i10 car bearing No. DL 3C-ND-6075. Various
weapons were recovered from their possession. A dagger was recovered
from the left side dub of the accused Rahul. On 20.12.2008 pursuant to the
disclosure statements, some credit cards and some smart cards were
recovered and taken into possession vide memo Ex.PW-9/H under Section
CRL.A. 133/2014 Page 4 of 10
102 Cr.P.C. The co-accused Rattan recovered clothes purchased by them
using the robbed credit cards and were seized vide seizure memo (Ex.PW-
9/J). Invoices (Ex.PW-4/A to Ex.PW-4/C) and the receipts of the
shopping (Ex.PW-4/D, Ex.PW-4/E, Ex.PW-5/A and Ex.PW-5/B) were
collected. Mobile phone was seized by ASI Dharamvir of PS Vikaspuri
vide memo mark X1. Intimation was given to PS Keshav Puram on
20.12.2008 when their involvement in said case emerged. Apparently, the
police of PS Keshav Puram had nothing to do with the apprehension and
recovery effected at the instance of the appellant and his associates.
Crucial testimony is that of PW-2 (Umesh Chand Vashisht), the
complainant, a Professor, Lucknow University Campus who had visited
Delhi to attend a meeting in the Ministry of Human Resources on
17.12.2008. When, after attending the meeting, in the evening, he was
going to Deepankar Sharma’s residence at Tri Nagar by DTC bus No.816,
he got down at Inderlok Metro Bus Stand and walked on foot towards
Shanti Nagar. When he crossed the ‘nala’ and entered gali No.125 at
around 11.15 P.M., he was surrounded by three individuals and they
caught hold of him. He was shown a pronged knife and was criminally
intimidated. He became frightened. The assailants took ` 15,000/- in cash,
ten credit cards / I-cards, bag, two diaries, mobile phone make Nokia No.
CRL.A. 133/2014 Page 5 of 10
9415521737 and his clothes, sweater, etc. He deposed that he begged the
assailants to at least give him the important papers of MHRD and
University but they did not agree. They fled the spot. He went to his
relative’s residence. Thereafter, they reported the matter to the police of
Police Post Shanti Nagar where his statement (Ex.PW-2/A) was recorded.
He identified appellant to be the assailants who had threatened him with a
knife. He also deposed that he was called at Rohini Courts where he
participated in the Test Identification Proceedings and identified the case
property recovered. He also identified six cards collectively exhibited
(Ex.P1 & Ex.P2), mobile phone (Ex.P3), bag (Ex.P4). He was fair enough
to state that the clothes produced were not robbed from his possession. It
was informed by learned Addl. Public Prosecutor that these articles were
purchased by the accused persons using the stolen / robbed credit cards /
debit cards. In the cross-examination, the witness fairly admitted that
initially he had given the number of the assailants as two. However, on
20.12.2008, he returned to Delhi and informed the police that the number
of the assailants was three and he was unable to give the correct number
as he was perplexed and under fear. He further admitted that due to fear
and being night time, he could not properly see the said boys at the time of
incident. He denied the suggestion that at Tagore Garden the accused
CRL.A. 133/2014 Page 6 of 10
persons were shown to him. Despite lengthy and searching cross-
examination, no material discrepancy emerged to disbelieve the
complainant who had no prior animosity with any of the accused persons
to falsely implicate them. This witness had come to attend the meeting in
connection with official work and had no acquaintance with any of the
accused persons to falsely rope them in this case and recognise the
appellant as one of the assailants. He had direct confrontation with the
appellant and had reasonable and sufficient opportunity to see him and to
observe his broad features. In the statement (Ex.PW-2/A), he had
categorically stated that he would be able to identify the assailants. In
Court statement, he identified appellant without hesitation as one of the
assailants and attributed specific role to him that he was armed with a
knife and had threatened him. Adverse inference is to be drawn against
the appellant for declining to participate in the Test Identification
Proceedings. Nothing has come on record as to on which particular and
specific date the appellant was shown and his photographs were taken.
Complainant categorically denied if he visited Tagore Garden office. In
the statement recorded by the learned Magistrate in Test Identification
Proceedings, the plea of the accused was that his photographs were taken.
He did not claim that he was shown to the complainant.
CRL.A. 133/2014 Page 7 of 10
5. Recovery of the robbed articles from his possession or at his
instance is an additional relevant incriminating circumstance to connect
him with the crime. PW-4 (Mohit) identified the appellant as one who
with his associates had visited his showroom on 18.12.2008 and had
purchased garments of total amount of 10,695/- vide invoices / bills
`
Ex.PW-4/A to Ex.PW-4/C. The credit card slips are Ex.PW-4/D and
Ex.PW-4/E. He further stated that the credit cards were in the name of one
Umesh Vashisht i.e. the complainant. Similarly, PW-5 (Vinay) supported
the prosecution and stated that on 18.12.2008, three boys had purchased
two sweaters, one pair of socks and three pair of shoes through credit card
for a total sum of ` 14,253/- at his showroom. The credit card was in the
name of Umesh Vashisht. He issued bill no. 1919 dated 18.12.2008. The
relevant cash memos and merchant copies are Ex.PW-5/A and Ex.PW-
5/B. Both these independent witnesses had no ulterior consideration to
falsely show purchase of these articles by the appellant and his associates.
These purchases were made soon after the occurrence before the
complainant could block the credit cards. The police did not expect to
plant all these articles of substantial value of their own.
6. Minor contradictions, discrepancies and improvements
highlighted by the appellant’s counsel do not affect the basic structure of
CRL.A. 133/2014 Page 8 of 10
the prosecution case. The complainant was categorical to identify the
appellant as one of the assailants who had robbed him at knife point.
Inconsistency in the number of assailants given by the complainant at the
first instance was inconsequential. There was no inordinate delay in
lodging the First Information Report as the occurrence had taken place at
around 11.15 P.M. After the incident, the complainant went to his
relative’s residence and thereafter approached the police of Police Post
Shanti Nagar to lodge the report. The FIR was lodged at 10.45 A.M. next
date on 18.12.2008. Since the occurrence had taken place at midnight
during winter days and the complainant was deprived of his mobile phone,
no adverse inference can be drawn for omission to inform PCR at 100.
7. To attract Section 397 IPC, causing of injury is not a
condition precedent. Only ‘use’ of a deadly weapon is sufficient.
Moreover, at the time of his arrest in case FIR No. 312/08, a dagger is
alleged to have been recovered from the possession of the appellant. All
the relevant contentions of the appellant have been dealt with minutely
and dispelled with reasons. The findings are based upon proper
appreciation of the evidence and need no interference. The accused did
not give plausible explanation to the incriminating circumstance proved
against him. He did not produce any evidence to show when and under
CRL.A. 133/2014 Page 9 of 10
what circumstances, he had gone to Jaipur Golden Hospital and when and
from where he was lifted by the police. He did not examine any family
member / doctor to substantiate his defence. The findings on conviction
under Section 392 IPC read with Section 397 IPC are affirmed.
8. Turning to the alternative plea to modify the sentence order,
minimum sentence prescribed under Section 397 IPC is seven years which
cannot be altered or modified. The sentence order is maintained except
that the fine amount will be ` 1,000/- and default sentence for its non-
payment would be 10 days. Other terms and conditions of the sentence
order are left undisturbed.
9. The appeal stands disposed of in the above terms. Trial Court
record be sent back immediately.
(S.P.GARG)
JUDGE
APRIL 02, 2014/
tr
CRL.A. 133/2014 Page 10 of 10