Surjeet Munda v. State

15. She has further deposed that in his previous stay in the year 2001- 2003, her parents helped the appellant to learn driving and the appellant got a license issued from RTO Gaziabad and he gave photocopy of the same to her father on 30-06-2009 to rejoin work. However, after the incident, the photocopy was not found.

16. This witness was cross examined at length by the defence counsel. In the entire cross examination, not even a single suggestion has been given to this witness that the appellant was not present in the house of deceased Yashpal Soli on the date of the incident. It has not even been suggested to PW 5 that the appellant had not rejoined the services of deceased Yashpal Soli. PW 5 has categorically stated that when she left her parents house on the night of 04.07.2009 after taking dinner, appellant was there in the house. The testimony of this witness with regard to the presence of appellant in the house of the deceased on the date of the incident has gone unrebutted and unchallenged.

17. Another material witness is PW 13 who is the injured eye witness and wife of deceased Yashpal Soli. She has deposed that accused Surjeet Munda was working with her as domestic servant between 2001 to 2003. On 29.06.2009, accused Surjeet Munda came to her after contacting her husband on telephone. On his request, he was employed as domestic servant. He was provided a room at the top floor of her house in the servant room. On 04.07.2009, her daughter Swati had come to meet them. She stated that they took dinner together and thereafter, at about 9:00 p.m. her daughter Swati left the house for Gurgaon. The accused Surjeet was present at the house. Accused also took dinner and washed utensils and cleaned the kitchen. Thereafter, she went to her bedroom at first floor and her husband went to his office situated in the premises itself.

18. She further deposed that at around 10:30 p.m. she called her husband to come and sleep but he told that he would come after sometime. Thereafter, she went to sleep. At about 11:30 /11:45 p.m. she heard noise from the office of her husband. She went to the office of her husband. There she saw accused Surjeet Munda along with two associates. Accused Surjeet was holding her husband and had gagged his mouth with his hand. The other two persons were having iron rods in their hands. She shouted for help. Accused Surjeet threatened her that if she raised alarm, she would be killed. Accused Surjeet took rod from one of his associate and hit it on the head of her husband and thrashed his head against the wall. Her husband became unconscious.

19. She further deposed that she was taken to the first floor by the assailants who asked her to hand over the keys of the almirah. When she refused, she was hit by the accused Surjeet with an iron rod on her head. She became unconscious, but she was in senses to some extent. She was taken to her bedroom by the assailants and accused Surjeet gave her beatings. She was tied with chunnies and was blind folded. She regained consciousness at about 10:30/11:00 a.m. She managed to untie herself and then opened the door. She could not see the persons who were there at the door but she came to know that Sumit and some neighbours were there. She was taken to hospital by the police. Next day she came to know that her husband had died.

20. She further deposed that next day, she along with her daughters Swati and Nishtha checked the almirahs and found that cash of Rs. 2-2.[5] Lakhs and jewellery were missing. She found that wrist watches were also missing. She gave list of jewellery articles of silver, gold and diamond. Her bangles were also removed by the accused persons during the incident. Her car was also missing. She identified the case property i.e two iron rods (Ex. P-1) and (Ex. P-2), Shirt (Ex. P-3), Bag (Ex. P-4) and other items (Ex. P5/1- 7), Gold Chain (Ex. P-6), Ring (Ex. P-7), Pendent (Ex. P-8). She could not identify the cash amount of Rs. 25,000/-. She identified the iron tawa with handle and one hammer which are Ex. P-9 and Ex. P-10. She identified the accused Surjeet Munda during her deposition before the Court.

21. PW 13 was also cross examined at length. In her cross examination she has categorically replied to the questions put by the defence by saying that on the date of the incident the whole day accused remained in her house. She has further stated that she did not notice as to at what time, the appellant had gone to his room after finishing domestic work on the date of the incident. In the entire cross examination of this witness, it has not even been suggested to her that appellant was not working as a domestic servant in their house, or that he was not present in the house on the date of the incident. The relevant testimony of this witness with regard to the presence of the appellant in her house has also gone unrebutted and unchallenged.

22. PW 5 and PW 13 have corroborated each other with regard to the presence of the appellant in the house of deceased Yashpal Soli, therefore, there is no reason for us to disbelieve or disregard their statements regarding the employment and presence of appellant as a domestic servant in the house of deceased Yashpal Soli on the date of the incident. In this regard reliance can be placed upon “State of Himachal Pradesh Vs. Thakur Dass”, 1983, Cr.L.J. 1694 1701 (HP), “Motilal Vs. State of Madhya Pradesh”, 1990 Cri.

LJ NOC 125 MP, “State Vs. Mohd. Afzal & Ors.”, 2003-VII AD (Delhi), wherein it has been observed that when a witness is not cross examined in respect of a certain fact, it amounts to admission and then the same cannot be disputed.

23. The Ld. defence counsel while making his submissions orally and in his written submissions has himself proved the presence of the appellant in the house of the deceased on the date of the incident. Apart from his submissions as already discussed hereinabove, there is enough material on record to show the presence of the appellant at the place of incident i.e. house of deceased Yashpal Soli. We have discussed the testimony of two material witnesses who have categorically established the presence of appellant at the house of deceased Yashpal Soli on the date of the incident.

24. Now coming to the scientific evidence in this regard. Finger prints of appellant were found on the liquor carton and the front window of the car which is evident from the report Ex. CW 1/A. Strangely enough, the counsel for the appellant submitted that the finger prints of the appellant were bound to be present on the above said articles since he was working there. So in our opinion, nothing else was required, since the appellant has himself admitted his presence in the house of Yahspal Soli on the date of the incident. Otherwise, it was not possible for his finger prints to be there for about 8-10 years, since the time when the appellant was first employed with Yashpal Soli between 2001-2003.

25. In the statement of the appellant U/s 313 Cr.P.C. question No. 1, 2, 3, 4 and 5 are relevant with regard to his presence in the house of the deceased and commission of offence. In reply to these questions, the appellant has only stated them to be “incorrect”. In answer to question NO. 22, he has stated that he has been falsely implicated, but has not led any evidence in defence. Therefore, the cumulative effect of all the circumstances i.e. testimony of PW 5 and PW 13, scientific evidence, replies given by the appellant to the above said questions put to him in his statement U/s 313 Cr.P.C., conclusively prove his presence in the house of deceased Yashpal Soli on the fateful night.

26. Other contention of the counsel for the appellant that the name of the appellant-who was well known to the victim family, did not surface in the PCR form as well as in the alleged history recorded in the MLC, in our opinion, has no force. This submission of the counsel for the appellant has to been seen in the context of the PCR form which is Ex. PW 21/A and the MLC of PW 13 which is Ex. PW 2/A. The PCR call was made by neighbour Mr. Anil Kumar Gupta and not by the injured PW-13 Ms. Sudha Soli. No doubt, name of Surjeet Munda (appellant) has not been mentioned in the said PCR form, but we cannot lose sight of the fact that the investigation is not to be done by the PCR officials. The MLC of the PW 13 clearly reveals that because of the injuries sustained by PW 13, she was not in a position to tell more.

27. As per the MLC, PW 13 Sudha Soli at the time of her admission in the hospital was unfit for statement. So there was no occasion for her to reveal the identity of the appellant to the doctors, or to narrate the entire incident. As per the history in the MLC it has been recorded that patient Sudha Soli was not able to recall the whole event. Therefore, because of her medical condition it was not possible for PW 13 to give a detailed description of the incident immediately to the PCR officials, or narrate the same to the doctors. As per the MLC, PW-13 suffered grievous injuries and it was only when she was fit for statement, she made a statement to the police categorically narrating the entire incident and the role played by the appellant.

28. It is next contended by the Ld. counsel for the appellant that there are material contradictions in the testimony of PW 13. He pointed out that PW 13 in her examination in chief has deposed that she was assaulted by the appellant with an iron rod, but in her cross examination she deposed that she did not remember which of the accused had assaulted her with an iron rod. Another contradiction which, according to the counsel for the appellant, goes to the root of the matter is that PW 13 deposed that she was tied with her chunni on the date of the incident. In the morning, she untied herself and then opened the door of her house, which is contrary to the history recorded in the MLC, according to which, she was found in her home by the relatives who entered after breaking the room.

29. In our opinion, the contradictions pointed out by the Ld. counsel for the appellant are minor in nature and do not shake the testimony of PW 13 which is otherwise trustworthy. Three persons were in the house of PW 13 on the fateful night of 4/5-7-2009 and they were hitting her husband and threatening her. One of them was also hitting her with iron rod. The examination in chief of PW 13 was recorded on 25.11.2010, wherein she categorically stated about she being hit by the appellant with an iron rod. The record reveals that her cross examination was done all most after more than a year of her examination in chief, so in these circumstances, even if PW 13 has stated that she does not remember which of the accused had assaulted her with an iron rod, it does not discredit her testimony. The MLC of the petitioner which is Ex. PW 2/A clearly reveals that she had received grievous injuries by a blunt object. Therefore, in these circumstances, the contradiction pointed out by the counsel for the appellant is insignificant.

30. Another contradiction pointed out by the counsel for the appellant as stated hereinabove in the version of PW 13 has also no force in it. PW 13 has deposed that she was tied with chunnies by the accused after taking her to her bed room and she became unconscious and in the next morning she regained consciousness but was still in semi unconscious conditions and 2-3 chunnies were still there on the body and then she opened the door of her bed room where she was tied and the history as recorded in the MLC was regarding entering the drawing room on the ground floor by the relatives.

31. The contradiction as pointed out by the counsel for the appellant is to be seen in the entire facts and circumstances of the case and her testimony has to be read as a whole. A perusal of the MLC shows that she was admitted in the hospital on 05.07.2009 at about 12:45 p.m. It is worthwhile to mention here that when Sudha Soli (injured) was admitted in the hospital, she was unfit for statement and no history with regard to the incident was given by her. As per the MLC Ex. PW 2/A she was brought by Ms. Neera. Therefore, the history as recorded by the doctor in the MLC cannot be attributed to her. Therefore, the contradiction as pointed out by the counsel for the appellant is not such that the appellant can be given any benefit of the same.

32. The Ld. counsel for the appellant has also contended that PW 5 and PW 13 are interested witnesses and they are not reliable. This contention was raised before the Ld. Trial Court and the Ld. Trial Court rejected this arguments and in our opinion rightly so. We say so because the incident had taken place in the house of PW 13 during late hours and her presence in the house was quite natural. Moreover, she is the injured eye witness and cannot be termed as interested and we see no reason for PW 13 to falsely implicate the appellant and let her and her’s husband real assailant goes scot free.

33. As far as PW 5 is concerned, she cannot be termed as interested witness. Her presence in the house was natural as she visited her parent’s house on 04.07.2009 and left from there at about 9:00 p.m. after having dinner. According to PW 5 when she left her parent’s house, appellant was present there and there is no challenge to this part of her testimony. She too had no reason to falsely implicate the appellant, while letting the real assailants of her father go scot free. She like PW 13, had no animus against the appellant.

34. Now as far as the question of examination of independent witnesses is concerned, it was not possible for any outsider to be present in the house and witness the incident because the incident had taken place in the house of PW 13 and that too in the late night hours. Reliance in this regard can be placed upon “Dalbir Kaur Vs. State of Punjab”, AIR 1977 SC 472, “Om Prakahs Vs. State of Punjab”, AIR 1993 SC 138, “Kailash Vs. State of U.P.”, AIR 1997 SC 2835 and “Tarjinder Singh Vs. State of Haryana”, AIR 1993 SC 503.

35. Next it has been submitted by the counsel for the appellant that PW-8, PW-25 and PW-42 have categorically deposed that the investigating agency did not record their statement and they did not support the case of the prosecution. As far as this contention of the counsel for the appellant is concerned, the same does not affect the case of the prosecution in any manner, because it is not the case of the prosecution that PW-8, PW-25 and PW-42 have witnessed the incident or any recovery or arrest was effected in their presence.

36. It is next contended by the counsel for the appellant that the investigating agency had failed to conduct scientific and fair investigation in as much as no location analysis of the conspirators at the relevant point of time was placed before the Court, though, call details record were requisitioned during the course of the investigation. He placed reliance on “Tomaso Bruno and Anr. Vs. State of Uttar Pradesh” (2015) 7 SCC 178. In our opinion, this argument of the counsel for the appellant has no force in it and the judgment "supra" relied upon by the counsel for the appellant is not applicable to the facts and circumstances of this case.

37. In the present case, the prosecution has heavily relied upon the testimony of PW 13-who is the injured eye witness, and we have already discussed the testimony of PW 13 to establish the presence of the appellant at the house of the deceased. So in our opinion, if the prosecution has not investigated or prosecuted the aspect of location of the appellant on the basis of mobile location, the same does not go to the root of the case. We are not inclined to draw any adverse inference against the prosecution, keeping in view the other facts and circumstances and the testimony of PW 13 and her daughter PW 5. Pertinently, the appellant has not set up an alibi.

38. It has next been argued that the bank account and driving license is in the name of Surjeet Sharma, whereas the name of the appellant is Surjeet Munda. In this regard, testimony of PW 4 B.K. Bhalla is relevant and the same is re-produced herein below: “I am working as Senior Manager PNB Branch Office Sector 7 Rohini, Delhi from 16th February 2008. Police officials of PS Anand Vihar came to my office and on his request I provided him attested copies of account opening form and bank statement account no. 3028000100307619 of Sh. Surjeet Sharma. Account was opened on 21.08.2007, on the basis of his driving license No. S26795/Ghaziabad, and rent agreement dated 25.06.2007. The attested copies of account opening form is Ex. PW 4/A running to 4 sheets with enclosures, form NO. 60 Ex. PW 4/B, rent agreement Ex. PW 4/C running into 2 sheets, driving licence Ex. PW 4/D and attested by Authorized Officer. I identify the accused Surjit Sharma is present in the court and I identify him as per record i.e. photograph affixed on the account opening form. IO recorded my statement. Statement of account is Ex. PW 4/E.”

39. This witness has identified appellant as Surjeet Sharma in the Court and this he did on the basis of the photograph of the appellant affixed on the account opening form. In his cross examination he has categorically stated that the appellant was introduced by one person, namely, Hariom who was having account No. 01049148 who had come alongwith appellant at the office of the bank at the time of opening of account. No suggestion has been given to this witness that the account was not introduced by Hariom or that the photograph on the account opening form is not that of the appellant. So from the testimony of this witness and the documents Ex. PW 4/A, Ex. PW 4/B, Ex. PW 4/C and Ex. PW 4/D it is established that it was the appellant who had opened his account with Punjab National Bank, Rohini Branch in the name of Surjeet Sharma.

40. It was next contended by the counsel for the appellant that mobile NO. 9210323683 which has been attributed to the appellant was, in fact, issued in the name of Nitin Sharma who has not been examined by the prosecution and the photograph on the customer application form is not that of the appellant. At the outset, we may observe that this argument raised by the counsel for the appellant does not in any manner, strengthen the case of the appellant because the edifice of the case of the prosecution is the testimony of PW 5 and PW 13, both of them have withstood the test of cross examination and their testimonies could not be shaken. But since this point has been raised we intend to deal with it.

41. In order to prove that mobile No. 9210323683 was used by the appellant, the prosecution has examined PW 19 Sanjay Sukhija who deposed that in the year 2009 he had sold the said mobile number to the appellant. No doubt, one Nitin Sharma was the first allottee of the mobile number in question and the customer application form Ex. PW 11/B is dated 03-11-2008, which is prior to the date of incident, which is 4-07-2009. As per PW 19 he has sold this mobile No. to the appellant and the appellant had signed the form in his presence. The form which is Ex. PW 19/A bears the photograph of the appellant to which there is no denial. It is also a fact that initially the shop owners used to sell and resell the SIM cards without taking much care and precaution and retaining copy of the identity card of the buyer in their record. It is now, during the last few years, that there is much more strictness in regard to the sale and purchase of the SIM card and all the formalities in this regard have to be strictly complied with which was not so when this change of SIM card in the instant case took place. So, this argument raised by the counsel for the appellant is of no help and cannot come to the rescue of the appellant.

42. As far as the arguments raised by the counsel for the appellant that the appellant after committing robbery deposited a sum of Rs. 12,000/- in two tranches on different dates is against the natural course of probabilities and the appellant would not stay in Delhi after commission of such an offence and deposit the amount in piecemeal in the bank. We do not find any merit in this contention of the counsel for the appellant. We have already discussed hereinabove that the bank account was opened by the appellant in the name of Surjeet Sharma in the Punjab National Bank. Therefore, deposit of the amount of Rs. 12,000/- in two tranches on different dates was solely the discretion of the appellant and what weighed at that time in his mind because of which he deposited the amount in two tranches does not in any manner mitigate the crime committed by him or create any dent in the case of the prosecution.

43. It has been argued by the counsel for the appellant that while examining the appellant U/s 313 Cr.P.C, several distinct facts and evidences have been put and bundled up in a single question by the Ld. Trial Court. Ld. counsel for the appellant particularly referred to question Nos. 10, 11, 16 and 18 and he relied upon “Naval Kishore Singh Vs. State of Bihar” (2004) 7 SCC 502 in support of this contention. We have perused the statement of the appellant recorded U/s 313 Cr.P.C. The Ld. Trial Court had in total put 23 questions to the appellant. No doubt, in question Nos. 10, 11, 16 &18 more than one fact and evidences have been put to the appellant but, in our opinion, it is not the case that the entire evidence was put to the appellant in these 4 questions. The Ld. Trial Court had put various items of evidence which was produced by the prosecution to the accused/appellant and he was given an opportunity to explain. We are not inclined to give any benefit to the appellant on this score, because the appellant was given full opportunity to explain the facts produced by the prosecution. Though, in question Nos. 10, 11, 16 and 18 some evidences and facts have been clubbed together by the Trial Court, but the same, in our opinion, has caused no prejudice to the appellant. The judgment supra relied upon by the counsel for the appellant is of no help to the appellant because in the said case, only three questions in all were put to the appellant and the entire evidence which was produced by the prosecution was put to the accused in a single question, which is not so in the instant case. So this contention has no force.

44. Ld. counsel for the appellant has submitted that the recoveries effected from the appellant are doubtful as there are material discrepancies in the testimonies of the recovery witnesses. The appellant in the instant case was arrested on 10.07.2009 from Village Naugai, PS Dumri, District Gumla, Jharkhand. The raiding party which went to Jharkhand consisted of PW 22, PW 23, PW 30, PW 40 and PW 41. It is submitted by the counsel for the appellant that there are contradiction in the testimonies of the recovery witnesses with regard to the meeting and joining of the Gram Pradhan of the village in the proceedings. He further submitted that the witnesses have also contradicted themselves in regard to the recovery of gold chain, silver ring and Rs. 25,000/- at the instance of the accused and have given different version. He further submitted that all these witnesses have also contradicted each other about the persons who were present in the house of the appellant when the raid was conducted. He further submitted that the witnesses have given different denomination about the currency notes which were recovered at the instance of the appellant.

45. Before adverting any further, we cannot lose sight of the fact that the area in which the house of the appellant was situated was a naxalite affected area. The recovery witnesses have clearly narrated as to how and under what circumstances and in what manner they could reach the house of the appellant. According to PW 22, PW 23, PW 30 and PW 41, they went in search of appellant via Rajdhani train and reached Ranchi on 08/07/2009. From there they went to Gumla, P.S. Chainpur via bus and reached the local PS Doomri where IO contacted ASI Shashi Kant (PW-40) and alongwith him they went to Chainpur which is a naxalite affected area. From P.S they went in a Bakhtarband Jeep and reached Katghai, where one company of Jharkhand Arms Police (JAP) was stationed. On 10.07.2009, they alongwith an Armed platoon (tukdi) of JAP and ASI Shashi Kant (PW 40) of local PS went to the village of appellant Surjeet Munda i.e. Naugai which was located in the base (talhati) of hill. They had gone on foot for some distance since vehicle could not ply in the area. They raided the house of accused alongwith local Police and JAP. The accused was found in his house. They also deposed that they were warned by JAP and local police that the naxalites have come to know about the arrival of police, so it would be difficult for them to move out. The witnesses also deposed that IO quickly made interrogation from the accused and at his instance recovered a golden colour chain, a silver ring and Rs. 25,000/- cash from his house. The documents were prepared at the JAP camp since at the spot they could not stay for long doe to the naxalites. So, one thing is clear from the testimony of these witnesses that the house of the appellant was situated in a naxalite affected area and it was not easy for the raiding party to have operated there or remained there for long time. No prejudice has been shown to have been caused to the appellant, if documents were prepared in JAP camp as the place of arrest was situated in naxalite prone area.

46. As far as the discrepancies pointed out by the counsel for the appellant mentioned hereinabove, we can say that these are not such discrepancies which can create doubt in respect of recoveries effected from the house of the appellant.

47. As far as the question of non joining of public witnesses is concerned, no doubt, the IO has not joined the public witnesses but that by itself does not falsify the entire case of the prosecution. The testimony of the official witnesses cannot be thrown away simply on the ground that IO failed to join public witnesses. Experience has shown that public witnesses are reluctant to join the investigation. At the highest, the non joining of public witness by the IO can only be said to be a fault on the part of the IO which cannot be the sole basis for disbelieving the entire case of the prosecution and the testimony of the believable official witnesses. Conviction can be recorded on the sole testimony of police officials without corroboration from a public witness, if it inspires confidence. In this regard reliance can be placed upon Tahir Vs. State (1996) 3 SCC 338, in which the Hon'ble Supreme Court has held as follows: “no infirmity attaches to the testimony of police officials, merely because they belong to the police force and there is no rule of law or evidence which lays down that conviction cannot be recorded on the evidence of the police officials, if found reliable, unless corroborated by some independent evidence. The Rule of Prudence, however, only requires a more careful scrutiny of their evidence, since they can be said to be interested in the result of the case projected by them. Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence does not in any way affect the creditworthiness of the prosecution case.”

48. No doubt, there are some variations in the testimonies of the recovery witnesses as pointed out by the counsel for the appellant, but we cannot lose sight of the fact that the recovery was effected on 10.07.2009 and the statement of the recovery witnesses was recorded after more than 5 years of such recoveries. So, some inconsistencies are bound to creep in the testimonies of the witnesses and they cannot be expected to narrate the incident in a parrot like manner. PW 40 SI Shashi Kant Kumar of Jharkhand Police had accompanied Delhi Police at the time of arrest and recovery at the instance of the appellant. When his testimony is read in consonance with the testimony of PW 22, PW 23, PW 30 and PW 41, we are convinced that the arrest of the appellant and the recoveries effected at his instance are beyond the shadow of doubt.

49. It has also been argued by the counsel for the appellant that the recovery of two steel rods Ex. P-1 and Ex. P-2 alongwith gold pendent at the instance of the appellant from the house of co-accused Pooran Sharma on 15.07.2009 is also doubtful as co-accused Pooran Sharma was arrested from his residence on 14.07.2009 and stolen articles were recovered on the same date. The counsel for the appellant has relied upon “Mani Vs. State of Tamil Nadu” (2009) 17 SCC 273. The judgment “Mani Vs. State of Tamil Nadu” (supra) is not applicable to the facts of the present case because in that case all the discovered articles were lying in bare open barely 300 ft. away from the body of the deceased. But in the instant case, recoveries were made from particular place which was in the special knowledge of the accused/appellant, so the recovery at the instance of the appellant made a day after the recovery at the instance of co-accused Pooran Sharma cannot be seen with suspicion because both the recoveries-though from the same house, were from different places in that room, which was in the specific knowledge of the appellant.

50. It is further submitted by the Ld. counsel for the appellant that according to PW 5 Swati Soli, the said rods were seized by the IO from her parental house in her presence which completely negates the yarn spun by the prosecution.

51. No doubt, PW 5 has deposed that two iron rods were recovered from her parental house but as per the case of the prosecution, two iron rods were recovered at the instance of the appellant from the house of co-accused Pooran Sharma in the presence of PW 37 SI Desh Raj Singh and Inspector Ghanshyam (PW 39) and the same were seized vide memo Ex. PW-37/A.

52. According to PW 5, police had seized one iron tawa and one hammer vide seizure memo Ex. PW 5/B, blood stained clothes including bed sheet, quilt etc. vide seizure memo Ex. PW 5/C, one small Heinz tomato bottle in which some liquid was found vide seizure memo Ex. PW 5/D, wine/whiskey bottle and glass mug vide seizure memo Ex. PW 5/E, blood which was lifted from near the bath room and bed vide seizure memo Ex. PW 5/F, blood from the store room floor vide seizure memo Ex. PW 5/G from her parental house. Two steel rods Ex. P-1 and Ex. P-2 were also shown to PW 5 by the MHC(M) and she stated that these rods were seized by the police from her parental house. No doubt, this part of her testimony does not find corroboration from the testimony of other witnesses, according to whom the rods were recovered at the instance of accused/appellant from the house of co-accused Pooran Sharma. In our opinion, simply because PW 5 has wrongly stated about the recovery of two iron rods from her parental house is not enough to make the entire case of the prosecution unbelievable when there is enough material on record which points towards the guilt of the accused.

53. The robbed articles i.e. gold chain and ring which were recovered from the appellant have been identified by PW 13 Sudha Soli in the Court and also in judicial TIP conducted by PW 18. So, we have no reason to disbelieve the same. As far as the identification of Rs. 25,000/- is concerned, both PW 5 and PW 13 have failed to identify the currency notes which in our opinion is quite natural because it is not possible for any person to identify the currency notes of Rs. 25,000/- which are in the denomination of Rs. 500/-.

54. Lastly, it was argued by the counsel for the appellant that MHC (M) PW 31 H.C. Akhlesh Kumar did not depose that while the case property remained in his possession, they were not tampered with and he placed reliance on “Hannan Vs. State” 2013 SCC Online Del 1416. In the instant case, PW 31 MHC(M) was not cross examined and his testimony has gone unrebutted and unchallenged. Reliance on the judgment “supra” by the counsel for the appellant is not applicable to the facts and circumstances of this case as the said case is under NDPS Act and link evidence in that case was missing which is not so in the instant case, as the present case is based on eye witness account of PW 13 and there is sufficient corroborative evidence on record against the appellant.

55. Therefore, in view of the discussions mentioned hereinabove, we do not find any infirmity in the impugned judgment dated 20.12.2018 and order on sentence dated 21.12.2018 and we are of the considered view that the prosecution has been able to prove the charges against the appellant. The appeal is accordingly dismissed. Impugned judgment dated 20.12.2018 and order on sentence dated 21.12.2018 passed by the Ld. Trial Court are upheld. All pending applications (if any) are disposed of. Trial court record be sent back forthwith alongwith a certified copy of this judgment.

RAJNISH BHATNAGAR, J VIPIN SANGHI, J MARCH 02, 2021 Sumant