Chandan v. The State (NCT of Delhi)

1. Convicted in FIR No. 349/2015 registered under Sections 392/397/411 IPC at P.S. New Friends Colony, Delhi, the appellants have preferred above-noted appeals challenging their conviction vide judgment dated 21.04.2022 whereby appellant/Jaswinder Singh @ Jassi was convicted under Sections 392/34/411 IPC (the error of convicting him under Section 397 was corrected on 27.07.2022 as there was no charge framed against him under Section 397 IPC), appellant/Neeraj was convicted under Sections 397/411/34 IPC and Sections 25/54/59 of the Arms Act and appellant- Chandan was convicted under Sections 397/34 and Sections 25/54/59 of Arms Act. Vide order on sentence dated 27.07.2022, the appellants have been sentenced as follows:i) The appellant/Jaswinder Singh @ Jassi was sentenced to undergo RI for 5 years for the offence under Section 392 IPC and further sentence to undergo SI for 3 years for the offence under Section 411 IPC; ii) Appellant/Neeraj was sentenced to undergo RI for 7 years for the offence punishable under Section 397 IPC, sentenced to undergo SI for 3 years for the offence under Section 411 IPC and further sentenced to undergo SI for 2 years for the offence under Sections 25/54/59 of the Arms Act. iii) Appellant/Chandan was sentenced to undergo RI for 7 years for the offence punishable under Section 397 IPC and sentenced to undergo SI for 5 years for the offence under Sections 25/54/59 of the Arms Act. All the sentenced were directed to run concurrently. Appellants were also sentenced to pay fine of Rs.10,000/- each, failing which they would further undergo SI for 3 months. The sentence of the appellant/Jaswinder and Neeraj was suspended by this Court vide order dated 24.02.2023 and 05.07.2023 respectively.

2. The trial was held in the context of an incident dated 25.07.2015 resulting into DD No. 2A registered at 12.30 am in which caller informed that while he boarded an Innova car of dark brown colour at Ashram Chowk to go to Faridabad, he was robbed of Rs.50,000/-, one gold ring, one gold chain and one mobile phone by the occupants of the car which was driven by a Sikh person. The front glass of the car had ‘Omkar’ written on it.

3. The said DD was assigned to SI Lokender who alongwith Const. Mahender met complainant-Marut Sharma and another victim, Ankur Sharma. Their statements were recorded in which they stated that there were four accused persons in the car, including the driver. On the point of a gun and knife, the complainant-Marut Sharma was robbed of his mobile phone, gold ring, gold chain along with one purse containing Rs.400/- and two ATM cards of Axis Bank and Corporation Bank. The ATM Cards were then used by forcing the complainant to disclose the PIN numbers and Rs.30,000/- + Rs.10,000/- were withdrawn from Axis Bank ATM, and a sum of Rs.10,000/- was withdrawn from Corporation Bank ATM. The other victim-Ankur Sharma was robbed of his mobile phone and Rs.1800 in cash.

4. During investigation, on receipt of a secret information, the said Innova car bearing No. DL3CAM1274 was intercepted on 05.08.2015 and its two occupants namely appellants/Jaswinder and Neeraj were apprehended. These accused confessed their involvements in the present crime. At the instance of appellant/Neeraj, the knife stated to be used in the commission of robbery was recovered from the back seat of the car alongwith two wrist watches and a mobile phone. Further, Rs.3,850/- was recovered from the possession of appellant/Neeraj. On their further disclosure, the appellant/Chandan was arrested and at his instance, a country-made pistol stated to be used in the robbery was recovered from his house. The fourth accused namely Mannu could not be traced. On 07.08.2015 further recoveries were made; while Jaswinder led to recovery of one gold chain, from the house of Neeraj - the mobile phone of Asus Company in a damaged condition was recovered. Chandan got recovered clothes that he was wearing at the time of the incident from his house. The accused persons also pointed out places where they used the ATM Cards during the commission of offence.

5. The accused however refused to participate in the TIP proceedings on the ground that their photographs had already been shown. TIP proceedings of gold chain was conducted in which the complainant/Marut Sharma identified the said gold chain. During the further investigation, the CDR of mobile phone of the complainant and statement of Corporation Bank were also collected.

6. After conclusion of the investigation, charge-sheet was filed and charge under Sections 392/34 IPC were framed against all the accused persons. While the Appellants/Neeraj and Jaswinder were additionally charged for the offence under Section 411 IPC, the Appellants - Neeraj and Chandan were also charged under Sections 397 IPC and 25/54/59 of the Arms Act.

7. In the trial, total of 13 witnesses were examined by the prosecution, the primary being the complainant/Marut Sharma and Ankur Sharma who were examined as PW[2] and PW[3] respectively. Puneet Puri, Asst. Director (Ballistics), FSL Rohini, Delhi who proved the ballistic report on the seized country made pistol was examined as PW[8]. DCP Rajiv Ranjan (Traffic) who proved the sanction order Ex. PW10/A was examined as PW10. Bank Statement of Marut Sharma from Axis Bank was proved through Kapil Kumar, Dy. Manager, Axis Bank, Sector 62, Noida, who was examined as PW11. Mr. Chandrashekhar, Nodal Officer, Bhartiya Airtel Ltd. who proved the CAF, CDR location chart of call details records of mobile NO. 8826605617, was examined as PW12.

8. Mr. Alva, Ld. counsel for appellant/Chandan contended that there is no recovery of any robbed articles from the appellant, inasmuch as, the country made pistol recovered from him was not proved as the recovery witness-HC Ombir was not examined. Marut Sharma alleged that at the time of incident - a gun like object was shown to him which was covered in a handkerchief and as such ingredients of Section 397 IPC are not made out. He further submits that complainant has claimed that a cartridge was shown which by itself is not a deadly weapon. It is next submitted that even testimony of Ankur Sharma is not reliable as he had earlier stated that a pistol was shown to Marut Sharma and a knife was shown to him however, later during his cross-examination while claiming that the pistol was put at his stomach and the knife on his neck, he materially improved to state that the pistol used in the incident was old and rusted and was of black colour. This description was lacking in earlier statement. The prosecution case is also unbelievable as IO had failed to examine the guard deputed at the Bank ATMs from where the money was allegedly withdrawn. Lastly, it is contended that identification of the appellant in Court is also doubtful as Ankur Sharma had claimed that after 10 days of the incident, he was called in the police station to identify the appellant.

9. Mr. Harshit Jain, Ld. Counsel appearing for Jaswinder contended that while in the disclosure, it was claimed that gold chain and articles were sold and his share of money received, the gold chain was still shown to be recovered from an almirah in the appellant’s house. Besides, two watches were shown to be recovered but they do not pertain to present incident. Though as per the case of the prosecution, the appellant/Jaswinder was driving the car, the complainant admitted that being seated in the middle seat of the car he did not see the face of the driver and could only see the person wearing the turban.

10. Ms. Nandwani, Ld. Counsel appearing for Neeraj also doubted the appellant’s identification as the complainant/Marut Sharma in his statement recorded under Section 161 Cr.P.C. on 10.08.2015 (PW2/DA) claimed that he had identified the appellant/Neeraj alongwith Chandan while being called to Saket Court however, at the time of his cross-examination he denied making any such statement. Prosecution witness Ct. Dharamveer (PW[6]) in his deposition did not state about recovery of any article at the instance of Neeraj. At the time of deposition he wrongly identified Chandan as Neeraj. It is next contended that though the witness claimed the car to be of golden colour, the car seized by the prosecution is of light grey colour.

11. Per contra, learned APP for the State, while disputing the contentions raised on behalf of the appellants, contended that testimony of complainant and Ankur Sharma are reliable as both have identified the appellants. He further submits that appellants had refused to participate in TIP proceedings and were later identified while they were coming out from the court. Further, the testimony of both the complainant and Ankur Sharma are reliable as they have not only identified the appellants in Court but also attributed specific role to each of the accused. It is stated that while Chandan has led to recovery of country made pistol from his house, Jaswinder has led to gold chain from almirah of his house and Neeraj has led to recovery of knife and Rs.3,800/-. Prosecution has proved the ownership of mobile phone used by Ankur Sharma from the CAF which is in the name of his father Vijay Pal. Evaluation of Testimonies of Prosecution Witnesses

12. A perusal of the records would reveal that on the date of the incident i.e. 24.07.2015 both Marut Sharma and Ankur Sharma claimed that they were standing at Ankur Chowk where they boarded Innova car at Ashram Chowk. At that time, there were already four passengers in the car. They had claimed the car to be of golden colour. The appellant/Jaswinder was statedly driving the car, another co-accused (not arrested) was sitting next to him in the front who used the appellant’s ATM cards to withdraw money. The complainant Marut was sitting in the centre of the seat in the middle, with Ankur to his left and appellant/Chandan on his right. The appellant/Neeraj was sitting in the last row. Marut deposed that one of the occupants of the car put a gun like object on his stomach while another occupant who was on the backseat put a knife on the throat of Ankur, who was also beaten. His Nokia phone, some hundreds in cash, and two ATM cards, of Axis Bank and Corporation Bank, were taken. The car kept roaming around, and it stopped at ATMs on 3 occasions, where one of the accused ( not arrested) used the ATM cards of Marut to withdraw cash after making him reveal the PIN. They also snatched his gold chain and the accused who had the country made weapon also took his gold ring. He identified appellant/Chandan as the person who put the country made katta on his stomach and appellant/Neeraj as the one who put knife to the neck of Ankur. Thereafter the accused dropped him and Ankur near a street, whereafter they approached the police. Though he did not identify the katta and knife stating that it was dark, he categorically stated that he was shown a cartridge of the katta during the incident. His chain was recovered by the police which he duly identified. The same was produced in Court as well. In his cross examination, he stated that initially the gun was covered with a handkerchief when it was put on his stomach. However, later he saw the gun as well as two cartridges. He stated that the knife used on Ankur was 30/40 cm in length and was foldable. He explained that he was under threat from accused persons and that is why he had not raised any alarm. He also deposed that he had not seen accused persons at any place other than place of incident and in the court. He was confronted with his previous two statements, Ex.PW2/DA and Ex.PW2/DB, which he denied.

13. Ankur deposed as PW-3. He deposed on similar lines as Marut. He pointed Neeraj as the person who had put the knife on him and Chandan as the one who put pistol on Marut. His mobile phone which was snatched by them was recovered and released to him on superdari, which he produced in Court. He pointed out appellant/Jaswinder as the one who was driving the car. He stated that he was able to see the face of the driver from his sitting position. He denied identifying the appellants at the instance of the police. He described the pistol as old, rusted and black in colour. He described the knife as huge.

14. SI Lokender, the initial IO, was examined as PW[5]. He deposed that he had made inquiry from the ATM guard of ATM booth of HDFC located at 500 meters from the spot of incident but the guard did not inform him about anything. He did not find any public witnesses on the spot. The second IO, SI Janak Singh, was examined as PW[9]. He proved the interception of the Innova car on 05.08.2015, apprehension of Jaswinder and Neeraj, and subsequently Chandan, the recovery made therefrom, as discussed earlier. The appellants refused judicial TIP. The TIP of the recovered gold chain was conducted on 20.08.2015 wherein the complainant identified the chain.

15. PW11- Kapil Kumar, Deputy Manager, Axis Bank, placed on record bank statement of victim Marut Sharma as Ex.PW11/A as per which Rs. 40,000/- were recovered from ATM booth, located in New Friends Colony, Delhi on 24.07.2015, coinciding with the incident.