Somvir & Ors. v. State (NCT of Delhi)

1. Somvir (A-1), Rajesh Kumar (A-2) and Kapil (A-3) impugn a judgment dated 19.02.2011 of learned Addl. Sessions Judge in Sessions Case No. 1070/09 arising out of FIR No. 128/05 PS Kanjhawla by which they were convicted under Sections 392/394/397 IPC. By an order dated 28.02.2011, A-1 was sentenced to undergo RI for five years with fine ` 2,000/- under Sections 392/394 IPC; A-2 was awarded RI for three years with fine ` 2,000/- under Section 392 IPC and A-3 was awarded RI for 2014:DHC:2210 five years with fine ` 2,000/- under Sections 392/394 IPC and RI for seven years under Section 397 IPC. The substantive sentences were to operate concurrently.

2. Briefly stated, the prosecution case as set up in the chargesheet was that on 02.05.2005 at 10.00 P.M. near Senior Secondary School, Chandpur, Delhi, the appellants in furtherance of common intention robbed complainant – Ishwar Singh of ` 5,960/-, a wrist watch, mobile phone, two golden rings and I-card. The appellants were armed with deadly weapons and caused injuries to the complainant while committing robbery. Daily Diary (DD) No. 31A was recorded at 10.16 P.M. at PS Kanjhawla about the incident and the investigation was assigned to SI Vishnu Dutt Pandey who with Const.Ranbir went to the spot. Injured had already been taken by PCR to Sanjay Gandhi Memorial Hospital (in short SGM Hospital). The Investigating Officer lodged First Information Report after recording complainant’s statement (Ex.PW-2/B). Statements of the witnesses conversant with the facts were recorded. On 03.05.2005, Neeraj, A-1 and A-2 were arrested in case FIR No. 422/05 PS Nangloi under Sections 186/353/307/34 IPC and 25/27 Arms Act. Pursuant to the disclosure statements recorded by A-1 and A-2 about their involvement in the present case, A-3 was arrested. Maruti Car bearing No. DL-8CC-0989 stolen from Nihal Vihar was recovered. After completion of the investigation, a charge-sheet was submitted against the accused persons; they were duly charged and brought to trial. The prosecution examined twelve witnesses to establish appellants’ guilt. In 313 statements, they denied complicity in the crime and pleaded false implication. No evidence in defence was produced. The trial resulted in their conviction as aforesaid. Being aggrieved and dissatisfied, the appellants have preferred the appeal.

3. I have heard the learned counsel for the parties and have examined the record. The appellants’ counsel urged that the Trial Court did not appreciate the evidence in its true and proper perspective. The conviction is based upon the sole testimony of the complainant which is full of contradictions. No independent public witness was associated at any stage of the investigation. No ‘deadly’ weapon was used at the time of committing crime and conviction with the aid of Section 397 IPC was not permissible. The robbed articles were not recovered from the accused persons. Learned Addl. Public Prosecutor urged that the Trial Court’s judgment is based upon cogent testimony of the complainant – Ishwar Singh who had no prior animosity to falsely implicate them.

4. The occurrence took place at around 10.00 P.M. when PW-1 (Ishwar Singh) posted as Head Constable, Delhi Police at PS R.K.Puram after performing his duty at about 08.00 P.M. was going on motorcycle No. DL-4S-AG-5685 to his residence in village Majra Dabbas. Daily Diary (DD) No. 31A was recorded at 10.16 P.M. in promptitude at PS Kanjhawla on getting information from PCR that the assailants in Maruti Car (white colour) No. DL-8CC-0989 had robbed Ishwar Singh of his cash and I-card at pistol point. PCR had taken the victim to SGM Hospital where he was medically examined by MLC (Ex.PW-7/A) which records the arrival time of the patient at 10.50 P.M. brought by PCR. FIR was lodged without any delay promptly after recording complainant’s statement (Ex.PW-2/B) by sending rukka at around 12.10 (night). In the complaint, Ishwar Singh gave vivid description of the incident and disclosed as to how and under what circumstance, he was obstructed by three individuals who were travelling in a Maruti Car No. DL-8CC-0989 (of white colour) on the pretext to enquire way to the village. He was assaulted by the assailants. One of them was armed with a country-made pistol. After putting him in fear, he was deprived of cash ` 5,960/-, a wrist watch, mobile phone, two golden rings and I-card. After the occurrence, the assailants fled the spot. He described broad features of the assailants. While appearing as PW-1, Ishwar Singh proved the version given to the police at the first instance without any major variations or improvements. He identified A-3 who had a country-made pistol at the time of occurrence. He assigned specific role to A-1 and A-2 in committing robbery. He deposed that while A-1 and A-3 gave him beatings, A-2 stood near the car. In the cross-examination, he informed that he was working in Delhi Police since 1976 and was on duty that day from 08.00 A.M. to

08.00 P.M. The distance between his residence and office was about 35 – 40 kilometres. He was in civil dress. He denied the suggestion that he had stopped the car in which the appellants were travelling to check the documents or that a quarrel took place between him and the assailants. He further denied that only the driver in the car had come out from the car to show the documents and identity proof to him. Despite searching crossexamination, no material contradictions / discrepancies could be elicited or extracted to doubt the veracity of the statement given by the victim. Suggestions reveal that the appellants have not denied their presence at the spot. No ulterior motive was assigned to the victim for falsely implicating the appellants with whom he had no prior animosity or acquaintance. Complainant’s statement is in consonance with medical evidence. Soon after the occurrence, the victim was taken to SGM Hospital and was medically examined by MLC (Ex.PW-7/A). It records the alleged history of ‘physical assault’. Number of injuries were found on the body of the victim. PW-7 (Dr.Dipti Goel) proved the MLC (Ex.PW- 7/A) prepared by Dr.Niti Mathur who medically examined the patient. Her testimony remained unchallenged in the cross-examination. The prosecution examined PW-3 (ASI Rajbala) from PS Nangloi who recorded FIR No. 422/05 (Ex.PW-3/A) under Section 379 IPC regarding theft of the Maruti Car used in the crime. This car whose description finds mentioned in FIR No. 422/05 was recovered on 02.05.2005 itself after it was abandoned near Chandpur Bus Stand, Kanjhawla. PW-8 (Const.Sushil Kumar) took photographs (Ex.PW-8/A[1] to Ex.PW-8/A[6]) of the Maruti Car which was in damaged condition.

5. A-1 and A-2 were arrested by the police of PS Nangloi in case FIR No. 422/05. Their involvement in the present case emerged in the disclosure statements (Ex.PW-9/A and Ex.PW-9/B) recorded therein. A mobile phone, make Nokia 3310 was recovered from A-2. Wrist watch make Titan was recovered from A-1. Pursuant to their disclosure statement, A-3 was arrested. The concerned Investigating Officer was intimated. The appellants declined to participate in the Test Identification Proceedings. The prosecution examined PW-6 (Tej Singh) who proved sale of watch to the victim on 05.12.1996 by a receipt (Ex.PW-1/C). PW- 10 (Ravinder Kumar) proved the sale of mobile phone vide receipt (Ex.PW-1/D) to the complainant on 17.03.2004. Both these robbed articles were identified by the complainant in his Court statement.

6. Altogether inconsistent defence has been taken by the appellants in 313 statements. A-1 claimed that his cousin Virender required a vehicle. On that, he requested his friend Neeraj to lend his car to Virender. Neeraj agreed to accompany him and Virender. He, A-3, Neeraj and Virender went to Jind (Haryana). After staying there for two days, he returned to Delhi. After two / three days, A-3 and his friend Sinha came to him. Sinha told him that he required a stolen car. He therefore committed theft of a car from Peeragarhi. A-3, A-2 and Sinha went in the stolen vehicle to Mundka. He and Neeraj were in Neeraj’s car. After attending a wedding at Vatika Garden at Mundka, they started for Jind at about 11.30 P.M. When he was driving Neeraj’s vehicle, Neeraj shifted to other vehicle along with A-2 and A-3 while Sinha came to his vehicle and they started racing on Rohtak road. When he reached near Bahadurgarh pulia, he lost control of the car and met with a serious accident and sustained injuries whereas Sinha expired. Neeraj and A-3 shifted him to their car and brought him to Delhi for medical treatment. They were stopped at Tikri border. Since the vehicle in which they were travelling was a stolen vehicle, he was taken to SGM Hospital and others were arrested. In the same hospital Ishwar Singh was also admitted. They were shown to Ishwar Singh. A-1 did not examine any witness to establish his pleas. No such defence was put to any of the prosecution witnesses in cross-examination. Rather a suggestion was put to the complainant in the cross-examination that at the time of incident, a quarrel had taken place with the assailants when he had asked them to show the documents of the vehicle in which they were travelling. Similar defence was pleaded by A-2 and A-3 in 313 statements without examining any witness. The particulars of the accident in which A-1 was injured have not been brought on record. The facts taken and pleaded for the first time in 313 statement rather lend credence to the prosecution case about the apprehension and arrest of the appellant by the police of PS Nangloi who had no concern with the instant case. Appellants’ involvement appeared only after their disclosure statements were recorded in the said proceedings and A-3 was arrested.

7. Non recovery of the crime weapon is not fatal as there is specific assertion of the complainant that he was robbed at pistol point and it was in the possession of A-3. Since A-1 and A-2 were not armed with any ‘deadly’ weapon, the Trial Court rightly did not convict them with the aid of Section 397 IPC. The appellants’ participation in the crime has been clearly un-holded in the ocular account of the occurrence given by the victim / complainant whose evidence has been found to be cogent, reliable and un-impeachable. Complainant’s testimony cannot be doubted simply because he happened to be a police official at the relevant time. The impugned judgment has dealt all the appellants’ relevant contentions and is based upon true and fair appraisal of the evidence and deserves no interference.

8. In the light of above discussion, the appeal preferred by the appellants is dismissed as un-merited. Pending application also stands disposed of. Trial Court record be sent back immediately with the copy of the order. A copy of the order be sent to the Superintendent Jail for information.

JUDGE APRIL 29, 2014 / tr