Full Text
Date of Decision: 3"^^ March, 2015 Crl.A.No. 995/2012
ARJUN SHARMA Appellant
Through: Mr.Pradeep Kumar Arya with Mr.Narender Coudhary, Advocates
Through: Mr.O.P.Saxena, APP and Ms.Jasbir Kaur, APP alongwith SI Bijender
Singh, Police Station Karol Bagh
JUDGMENT
For orders see Crl.A.No. 886/2012.
MARCH 03, 2015 mb (SUNITA GUPTA)
JUDGE
Crl.A.No.995/2012 Page 1of 1 2015:DHC:10760 HIGH COURT OF DELHI
Date ofDecisionr 3'"''March, 2015 CrLA.No. 886/2012
SUNIL KUMAR ' _ , ..... Appellant
• Through; Mr.Imran Khan, Advocate
Kaur, APP alongwith SI Bijender Singh, Police Station Karol Bagh.
ARJUbT SHARMA ' Appellant
Through: ' Mr.Pradeep Kumar Arya with ' Mr.Narender Coudhary, Advocates
' Versus.
STATE (GOVT^ OF NCT) OF DELHI . - .' ..... Respondent
, Kaur, APP alongwith SI Bijender Singh, Police Station Karol Bagh
. , , : . ^ -
1. By the present appeals, the appellants Sunil Kumar_ and Arjun 7? ^ under Section 392 read with Section 120-B IPG and Section 120-B IPC and Arjun Shaima under' Section 392/397 IPC read with Section 120-B IPC and Section 347IPC and orderon sentence.dated 12.04.2012,whereby tlie appellant,Sunil Kumar was sentenced to undergo rigorous imprisonment for 10 years and Rs. 25,000/- in default to undergo rigorous imprisonment for six months each for separate offenc6s while appellant Arjun Sharma was sentenced to undergo RI for 10 years and Rs.25,000/each for all the separate offences. The substantive sentences were ordered to nin concurrently. • '
2. Prosecution case in nutshell is as under: SmtDayawati used to"reside alone at House No.3377/1 Christian Colony, First Floor, Karol Bagh, New Delhi,and used to ran ashop at DBG road. On 19.05.2009 at about 7.15 pm she returaed back to her house. As she was about to enter her house, two boys camc and took her mside the house, blind folded her and took her to the bathroom andlocked her. She was robbed of her wearing ornaments, Rs.70,000/, two gold sets kept in the almifah and mobile phone. While the boys were stillrobbing herinher house, hersonDeepakAggarwal came and rang the hell. One of. the boys responded by saying that she was not inside tire house. Apprehending something wrong, Deepak Aggarwal rushed out after bolting the door from outside and raised an alarm. The boys jumped from the balcony. Whilehe triedto catchhold ofone boy, hewasshownalorife andthereafterboth the boysmanaged to escape.
3. It IS further the case of prosecution that pursuant to the supplementary statement made by Deepak Aggarwal on the next day raising suspicion on Sunil Kumar, notice was issued to him and he was conducting their Test Identification Parade (TIP) proceedings however they-refused to participate in the same. Search was made for arrest ofcoaccused Ravi however he could not be arrested. Chargesheet was filed against Sunil Kumar and Arjun Sharma for offences under Section 392/397/342/120-B/34 IPG. Both the accused pleaded not guilty to the charges framed against them. Prosecution in all examined 12.witnesses to substantiate its case. Both the accused alleged their false impHcation in the case and pleaded innocence. Accused Sunil Kumar examined himself as DW-1 and also examined his wife as DW-2.
4. After hearing learned counsels for the parties and meticulous e)tamination of prosecution witnesses and the stand taken by the accused, theywere convicted and sentenced, asmentioned above.
5. Feeling aggrieved, separate appeals have been preferred by the appellants.
6. It was submitted, by learned counsel for the appellant Sunil Kumar that no role has been assigned to this accused by the material witnesses. No recovery has been effected from him. The only role assigned to him is that he was standing downstairs in the building. This accused used to go to the second floor for the purpose ofphysiotherapy in the house ofone Sardar Amarjeet Singh, however, on the fateful day since his daughter was lying sick, therefore, he did not go to attend his dudes. In order to prove the charge ofconspiracy nothing has been brought on record to show that there was. any meeting of mind as such, it was submitted that the accused is liable to be acquitted.
7. Learned counsel representing accused Arjun Sharma.submitted that as per the prosecution Smt. Dayawati was robbed of several articles, incident had taken place. The appellant has refused to join TIP because he was shown to the witnesses in the police station and this fact is admitted by PW-1 Smt.Dayawati that in the police station she came to loiow the name of accused as Amit. However, the prosecution has failed to prove this theory ofAmit. No admissible evidence has come to connect him with the crime. The factum of any conspiracy between Sunil Kumar and Arjun Sharma has not been proved. Under the circumstances, the impugned judgment cannot be sustained and as such, the same be set aside.
8. On the contrary, learned Additional Public Prosecutor for the State submitted that both Smt.Dayawati as well as Deepak Aggarwal have stood the test ofcross-examination and nothing could be elicited to discredit their testimony. They were not inimical to any ofthe accused for which reason they would falsely implicate them in this case. Moreover, both the accused refused to join TIP as such, adverse inference is to be drawn against them. It was fiirther submitted that even no suggestion was given to PW-1 Smt.Dayawati that accused, was shown to her in the police station. Under the circumstances, it was submitted that the impugned judgment does not suffer from any infirmity which calls for interference as such, appeals are liable to be dismissed.
9. Ihave given my considerable thoughts to the respective submissions oflearned counsel for the parties and have perused the record.
10. Prosecution machinery was set in motion on receipt of an information regarding dacoity at House No. 3377/1 Christian Colony, first floor, Karol Bagh, New Delhi on which DD No.27A Ex.PW4/A was recorded and was assigned to SI Mahipal Singh, PW-10. SI Mahipal Singh alongwith constable Shanker reached House No. 3377/1 Christian Colony,
1. New Delhi and used to run ashop at DBG Road. On 19.05.2009 at about 8.00 pm he went to meet his mother as per the daily routine. He rang the bell and called his mother however he heard the noise ofamale person from inside thatMataji is not inside. He suspected some foul play. and after bolting the door from outside went in the street and raised an alarm CherChor". Inthemeantimetwo boysjumped from the balconyin the street. He tried to catch hold ofone ofthose boys but he showed him ™ 'hose boys by raising alam, "Chor Ghor"but they managed to escape. The person who had showed him knife was strong built and was ofwheatish complexion while tlie other boy was slim and was having fair complexion. Both the boys were between the age group of 30-32 years. He rang police on 100 number and went to his mother. Onenquiryhis motherinformedhim that when shereturned to her house afterclosing the shop at about 7.30pm, two boys aged about 30 -32 years came from behmd and enquired aboutAmmaji. When she asked as to. whom they were enquiring, then the strong built boy caught hold ofher hand whrle theother boytiedherhands and legs with chunniand asked her not to raise alarm failing which, they will kill her with a knife. Both the boys removed her ornaments which she was wearing and they also took away Rs.70,000/- cash and twogold sets from the ahnirah andonemobile. This statement of Deepak Aggarwal culminated in registration of FIR Ex.PW4/B.
11. The star witness of the prosecution are PW-1 and PW-2 PW 1 Smt.Dayawati unfolded that on the fateful day at about 7.15 pm after returning from her shop when she was about to enter her house after unlocking, two boys came to the stairs from behind. One boy asked her u identified accused Arjun Shanna as one ofthe boys whose nameshe came totaowatthepolicestation as Amit. Boththe boysthen blind folded her mher house. They took her to the bathroom and locked her tiiere. Inside thebathroom theyremovedherdiamond earrings, two goldKaras of SIX tolas, one gold finger ring and one three tola gold chain. The duo enquired about the cash andthreatened to kill her in case she failed to tell them about the same. She told them that Rs.70,000/- cash was kept in the almtrah. Thereafter, those;boys took out the cash and two gold sets from fte aim,rah. While they were stilfrobbing her house, her son Deepak Aggarwal came and rang the bell and called her by name to which she did not respond. One ofthe boys then responded saying that "Mata JiAndar Nah, Hain". On hearing the unknown male voice from inside the house hersonboltedthe doorfrom outside, rushed down andraisedalarm saying ChorChor". Onhearingthealarm boththe boysjumpedfromthebalcony alongwth the money and jewellety and ran away. She also identified accused Suntl Kumar by saying thathe used to work with resident offloor • above her house.
12. PW-2DeepakAggarwal reiteratedtheaverments madebyhimin his imttal complaint.,Ex.PW2/A and co^boratedthe testimony ofPW-1 in all matenal particulars. He iurther deposed that he infonned PGR on 100 Thereafterpolice officials came and his statement and that ofhis mother were recorded. He ftrther deposed thatafterreachingthehouse of 'S mother when he parkedhis motorcycle, he saw accused Sunil Kumar s.andmgdownstairsnearthedoor.Heenquired from himastowhyhewas nmg. mtiaily he kept mum and then he replied that he had come to meet Amarjeet Singh. Sardar Amarjeet Singh was residing on the first •4;
13. As regards the incident of robbeiy at the house of PW-I SmtDayawati both these witnesses were subjected to lengthy crossexamination by learned defence counsels however nothing material could be ehcted to discredit their testimony. The same are cogent, coherent, reliable and trustworthy and even there is no challenge that an incident of robbeo-had tal^enplaceinthehouseofSmt.Dayawatiwhich standsproved not only from the testimony of complainant Deepalc Aggarwal and Smt.Dayawati but also from the surrounding circtmtstances which reflects that immediately after the incident information was given by Deepalc Aggarwal ontelephonetoPGRwhichresulted inrecordingofDDNo. 27A andthereafterthepolicemachinerywassetinmotionontheveo'sameday without any loss of thne. The statement of Deepalc Aggarwal was also recorded by SIMahipal Singhwhich culminatedin registration ofFIR.
14. Crucial question for consideration is regarding the perpetrators of the cnme. As regards accused Sunil Kumar is concerned, it is the case of prosecutionthat he was employed at the house of PW[3] SmLSurinderKaur who used.to reside on the second floor ofthe same property where PWl was residing. Smt.Surinder Kaur has stated that in the year 2008 her husband suffered paralytic attack and they engaged accused Sunil Kumar and his brother in law to help her husband in Physiotherapy and to look after him. For three months Sunil Kumar looked after her husband at the house ofher daughter in Vikaspuri. Thereafter she retimed back to her house alongwith her husband andaccused Snnil Kumar and his brother in law continued to take care ofher husband at the said house. She further deposed that SunilKumar used to visit her house at about 10.00 am and used to remain there til, 6.00pm. On 19'^May. 2009 Sunil Kumar did not •' • f 4 unwell. She then told that police was making enquiry about him and Sunil Kumar told her that he would come. Besides the fact that the testimony of this witness has gone unchallenged for want of cross-examination, even accused Sunil Kumar in his statement under Section 313 Cr.P.C has admitted the factum of his employment at the house of PW-3 to look after her husband and that he did not visit her house on 19.05.2009 as his child was ill. Sunil Kumar examined himself as DW-1 and hiswife as DW-2 and ^ both of them have deposed to the same fact. Smt.Dayawati has also identified accused Sunil Kumar to be the boy who used to work oh the upper floor ofher house.
15. Deepak Aggarwal however on 20.05.2009 made a supplementary. statement stating that while he was ascending the stairs he met Sunil Kumar downstairs and enquired about his presence. Initially, he kept mum and thereafter he said that he used to work at the house ofone Mr.Amarjeet Singh, the resident of second floor.
16. Much emphasis was laid by learned counsel for the appellant Sunil Kumar by submitting that no such statement was made by Deepak Aggarwal in the initial complaint Ex.PW2/A made by him to the police. It was rightly observed by learned Additional Sessions Judge, that after committing such a gruesome crime both the culprits managed to escape from the spot as such, the sequence of events was bound to get replayed in the mind of Deepak Aggarwal and although when he made the statement initially to the police meeting ofSunil Kumar at downstairs might not have occurred to him but on the very next day he gave the supplementary statement on the basis of which the whole case was solved. It has come on record that pursuant to the information given'by Deepak Aggarwal accused -nand thereafter it was at the instance of accused Sunil Kumar that accused Arjun Sharmawas arrested from his house on the same day. Mobilephone of Arjun Sharma make" NOKIA.6610 IMEI No.35154000003920 with Airtel SIM No,8991-1006121.02068429 and mobile phone No.9971200612 of Sunil Kumar was seized. Factum of seizure of mobile phone of Arjun. Sharma. is even admitted by him in his statement recorded under Section 313 Cr.P.C. However, as regards mobile of Sunil Kumar, it was submitted by learned counsel,for.the appellant that as per the customer application forai EX.PW9/A it was in the name of Chand Ram. Chand Ram however deposed that he never applied for obtaining a mobile phone cormection. He also displayed ignorance about accused Sunil Kumar. From the testimony of the prosecution witnesses it stands. established that the mobile connection was applied in the name of Chand Ram and the mobile phone was recovered from accused Sunil Kumar on 29.05.2009. Although accused Sunil Kumar tried to show that this mobile was not recovered from his possession, however, firstly there is no reason;to disbelieve the.; testimony of prosecution witnesses regarding the recovery of this mobile from the possession of this accused. Moreover, Sunil Kumar stepped into the witness box as DW-1. Even at that time he did not even utter a word about non-seizure,of mobile phone from his possession or that he was not using this phone number during those days. DW-2 Promila his wife also nowhere deposed about the mobile phone. PW-9 Israr Babu, Nodal Officer, Vodafone proved the call detail record Ex.PW9/C according to which mobile phone connection no.09971200612 was having IMEI 35154000003921 which tallied with the IMEI No. of mobile phone, recovered from accused Arjun Shanna. The call detail record further 20.05.2009 at 15:18:37 and 17:21:09 two outgoing calls were recorded in addition to sending of one SMS at 15:09:10. The mobile phone, of Sunil Kumar was bearing IMEI No.352938025339590 upto 19.05.2009 however on 20.05.2009 IMEI number as against the above referred two outgoing calls and outgoing SMS find mention as 351540000803920 those of handset ofArjun Sharma and recovered from him.
17. Criminal conspiracy is always hatched in secrecy and direct ^ evidence is hardly available. In the instant case although accused Sunil Kumar tried to take a plea that he had not even come for his duty at the house of Sardar Amarjeet Singh on 19.05.2009 and 20.05.2009. However his duty hours were from 10.00 am to 6.00 pm. At about 7.30 pm Deepak Aggarwal met this accused downstairs when he was going to meet his mother upstairs. Besides the fact that accused was unknown tP Deepak Aggarwal and had absolutely no rhyme or reason to falsely implicate him, itwas only asuspicion raised by him on the next day when he informed the police about the fact that he met Sunil Kumar downstairs and the conversation which had taken place between them. The police was completely in dark regarding the identity of the accused. It was only pursuant tothe disclosure statement ofaccused Sunil Kumar that the name of accused Arjun Sharma and Ravi were revealed and it was only at the instance of accused Sunil Kumar that Aijun Sharma was subsequently arrested. The call details amply proved the conspiracy between the two and it was for the accused to prove as to how they were having conversation with each other if they were not connected with each other. However, nothing has been brought on record by any ofthe accused inthis regard so much so that despite the fact that Sunil Kumar appeared as DW-1 he did A f Identification Proceedings conducted however as per the proceedings Ex. PW-12/B and Ex.PW-12/C conducted by Sh Sidharth Mathur, Metropolitan Magistrate both the accused refused to join Test Identification Parade. Needless to say, the refusal to join TIP leads to an adverse inference against the accused that had they joinedthe proceedings, they would have been identified by the witnesses. The plea taken by accused Sunil Kumar is that he refused to join as he was not informed about the consequences ofthe same. However, this plea is devoid ofmerit as a perusal of TIP proceedings conducted by Sh Sidharth Mathur, Metropolitan Magistrate Ex.PW12/C goes to show that when accused refused to participate in the proceedings he was duly warned by the learned Metropolitan Magistrate that an adverse inference can be drawn during the course of trial on his refusal to participate in the proceedings but accused still refused to participate in the TIP. At that time the reason assigned by him fcr not joining the proceedings was that he was working on the floor just above the residence of the witnesses and, therefore, witnesses were Imown to him. So far as Smt.Dayawati is concerned, shewas knowing this accused from before as he was working at the house of Sardar Amarjeet Singh for substantial period but so far as Deepak Aggarwal is concerned, he was not.Imown to him from before and precisely for this reason the TIP was required to be conducted which was refused by this accused. He was duly identified not only by Smt.Dayawati but by Deepak Aggarwal also in the Court to be the same person with whom he had a conversation on the ground floor when he came to visit his mother on the fateful day. Under the circumstances, conspiracy to commit the crime between Sunil Kumar, Arjun Sharma and one other person who could not be arrested stands duly took her to the bathroom and locked her inside where she was robbed of her wearing ornaments and then on the threat of killing her Rs.70,000/cash, two gold sets and mobile were also taken away by them. PW-2 Deepak Aggarwal also identified this accused as the person who showed him the loiife when he tried to catch hold ofhim in the street. The accused is not alleging any enmity, ill will or grudge against any of these two Mdtnesses for which reason they would wrongly identify him as the assailant. •
19. This accused has also refiised to join TIP on the ground that he was shown to the witnesses in the police station. Learned counsel for the appellant fried to take benefit from the testimony of Dayawati who deposed that at the police station she came to laiow the name of accused Arjuii as Amit however no inference can be drawn that prior to conducting his TIP proceedings the witness had gone to the police station or that accused was shown to her. Even no suggestion has been given to this witness that accused was shown to her in the police station. Similar is the case with PW-2 Deepak Aggarwal. As regards Deepak Aggarwal is concerned, it was tried to be submitted by learned counsel for the appellant that while giving description of the accused he stated that one of the accused was strong built and wheatish complexion whereas accused Arjun Sharma was haying fair complexion. However accused does not get any benefit from thj? slight variation in as much as the witness has clarified that it was dark at the time of incident and therefore he believed that his complexion is-wheatish. The mere fact that avariation has come regarding the complexion of the accused as to whether it was wheatish or fair does no't mean that he was not the accused whom the witness had seen jumping In view of the identification of the accused by both the witnesses there is nothing to suspect the involvement ofthe accused in the crime.
20. The robbed articles and the weapon of offence could not be recovered but it is a matter of record that one of the co-accused is still at large and as per the disclosure statement made by accused Aijun Sharma which although is inadmissible in evidence the looted articles were taken by the co-accused, as such, non-recovery does not adversely affect the case ofprosecution.'
21. As regards non joining of any independent witnesses, it is common experience that for variety ofreasons the public persons do not want to join the police proceedings. It has come in the statement of PW-2 Deepak Aggarwal that persons from the neighbourhood though were preserit. in the balcony of their respective houses but did not come down. Moreover, the mere fact that there is no independent witness is absolutely no ground to discard the testimony of the victim herselfwho had absolutely no rhyme or reason to make a police complaint regarding the incident of robbery and then to face the turmoil of visiting the police station and Court umpteen number oftimes and then to identify the accused. Under the circumstances, the learned Additional Sessions Judge rightly convicted both the accused for the offences referred above and the impugned judgment dated 12.04.2012 does not call for any interference.
22. Coming to the quantum of sentence, it was submitted that the appellants are the only bread earners in their families andas such, leriiency be shown. One cannot lose sight of the fact that the victim in the instant case is a senior citizen aged about 70 years. Despite the fact she was having four sons she was living alone and was earning her livelihood by a watch on her daily routine. One can visualise the tunnoil faced by Smt.Dayawati who was blind folded, confined in the bathroom anS then robbed of her wearing ornaments, cash, jewellery and mobile. Such crimes have now become a daily routine. Day and night senior citizens are being targeted by criminals. Under the circumstances, the gravity and seriousness of the offence cannot be lost sight of However imposition of sentence of 10 years and Rs.25,000/- for each of the offences seems to be on a higher side. As such, the substantive sentence of the appellants is modified from 10 years to 7 years each while maintaining the sentence of fine and the default sentence. In case of realisation offine, thie entire amount be paid as compensation to victim Smt. Dayawati.
23. With this modification, the appeals stand disposedof Copy of the judgment along with Trial Court record be sent back. Appellants be infonnedthrough the Jail Superintendent.
JUDGE MARCH 03, 2015 mb