Sonu v. State NCT of Delhi

1. By way of the present appeal, the appellant seeks to assail the judgement of conviction dated 11.01.2016 and order on sentence dated 18.01.2016, vide which he has been directed to undergo RI for a period of 7 years alongwith payment of fine of Rs.2,000/-, and in default thereof to undergo SI for 1 month, for the offence punishable under Sections 392/397 IPC; RI for a period of 7 years alongwith payment of fine of Rs.2,000/-, and in default thereof to undergo SI for 1 month, for the offence punishable under Section 120B IPC; SI for a period of 3 years alongwith payment of fine of Rs.3,000/-, and in default thereof to undergo SI for 1 month, for the offence punishable under Section 25 Arms Act; and SI for a period of 3 years alongwith payment of fine of Rs.3,000/-, and in default thereof to undergo SI for 1 month, for the offence punishable under Section 27 Arms Act. The benefit of Section 428 Cr.P.C. was provided to the appellant and all the sentences were directed to run concurrently.

2. The brief facts as noted by the Trial Court are as under:-

3. On completion of investigation, the chargesheet came to be filed and the charges were framed against the present appellant as well as two other accused namely Devi Ram and Parmod Pal under Sections 395/397/120B IPC. The appellant Sonu was additionally charged for the offence punishable under Sections 25/27 Arms Act. The prosecution examined 27 witnesses in total. The material witnesses being, the complainant Pankaj Kumar (PW-2), the injured Kishori Lal Sharma (PW-3), Surender Sharma (PW-5) and Rajender Shah (PW-6). The MLC of the injured was proved through testimony of Dr. Manisha Chadha, CMO, Delhi Heart and Lung Institute (PW-4) and Dr. Manish Kumar Gupta, Consultant Department of General & Laparoscopic Surgery, Sir Ganga Ram Hospital (PW-15). The ballistic report was proved through Dr. N. P. Waghmare, Assistant Director (Ballistics), FSL Rohini, Delhi (PW-24) and Dr. Puneet Puri, Senior Scientific Officer, Ballistics, FSL Rohini, Delhi (PW-25). The FSL report on the exhibits seized was proved through Sh. Indresh Kumar Mishra, Senior Scientific Officer, FSL Rohini, Delhi (PW-26).

4. Learned counsel for the appellant has contended that neither the complainant Pankaj Kumar nor the alleged eyewitness Rajender Shah supported the prosecution case inasmuch as both of them have not identified the appellant as one of the accused who had entered the premises and fired the gunshot. As per the prosecution case, one Kapil was also present at the spot, however, he was not examined. It is next contended that the case of the prosecution and in particular, the testimony of the injured was disbelieved on the involvement of the other two co-accused Devi Ram and Parmod Pal who were acquitted. As such, the judgment of conviction against the present appellant also deserves to be set aside.

5. The contentions are refuted by the learned APP for the State, who submits that though the complainant has not identified the appellant, he has proved vital facts of the incident. It is further contended that the testimony of the injured conclusively proves the presence and identity of the appellant who was apprehended and arrested from the spot, and the acquittal of the coaccused persons was on the ground of their non-identification in TIP proceedings.

6. The complainant Pankaj Kumar was examined as PW-2. He deposed that on 18.03.2013 he was present in the office along with Kishori Lal, Rajender, and Kapil. In between 6:30 to 7:00 p.m., two persons forcefully entered the office with pistol in their hands and were followed by two more persons behind them. At that time, the people in office were engaged in counting cash. When those persons were in the process of lifting the money (Rs.1.[5] lakhs), Kishori Lal Sharma objected to the same and resultantly, one of the accused fired at him. When the accused persons attempted to flee, the victims raised an alarm. While the other accused persons managed to escape, one of them was apprehended with the help of some public persons. He stated that the police officials later told him that the name of the boy apprehended at the spot was Sonu, but he was not sure of the same. The money taken by the accused persons, i.e., Rs.1.[5] lakhs, had fallen in the street, and the same was picked up by the public and handed over to the witness. At that time, Surender had reached the spot and the witness handed over the money to them. The injured Kishori Lal was taken to the hospital. He further deposed that one bag was recovered from the possession of the accused apprehended at the spot, which contained the pistol. He admitted to giving the complaint (Ex. PW-2/A) and also identified his signatures on the seizure memos of all the articles that were seized and the arrest memo of Sonu (Ex. PW-2/G). However, when the articles were produced, he didn’t identify them. He also did not conclusively identify the appellant as the same person who was arrested from the spot. In the said cross-examination by the learned APP, he admitted that two persons who had entered into the room first were aged about 20/25 years and one of them had a cut mark on his cheek, and that they were followed in by two other persons, who were about 25/30 years old. He also admitted it to be correct that the two accused persons who had entered first pointed the pistol towards them and stated “Sara maal hame de do”. He also admitted it to be correct that Kishore Lal had objected to the same and that he sustained injuries in his abdomen as a result of gunshot. He stated that when the victims raised an alarm, all four accused persons started running away and that they chased the accused persons. He admitted it to be correct that the robbed money fell on the road when the accused got hit by a scooter. He stated that he had picked up the bundles of currency notes lying on the road with the assistance of a public person. The currency notes picked up from the street were handed over to Surender, the brother of injured Kishore Lal. On being asked, he stated that he was not sure if the appellant was the same person who was apprehended at the spot. He admitted it to be correct that he had identified co-accused Devi Ram in judicial TIP and volunteered that he had done so at the instance of the police as they had shown him a photograph of the said co-accused prior to TIP. Pertinently, the present appellant refused TIP.

7. The injured Kishori Lal Sharma was examined as PW-3. He deposed that on 18.03.2013, while he was in his office, Pankaj brought payment from the market and handed it over to him. The door was bolted. Thereafter, the appellant along with one Parmod and three other associates came to the spot. On their knocking, the door was opened by Rajinder. All of them were armed with weapons and some of them were also carrying bags. They demanded money, saying “Khade ho Jao, Jo Kuch Tumhare Pas he De do”. When he objected, the appellant fired upon him. On an alarm being raised, some persons came upstairs. At that time, the appellant and his associates started picking up the bundle of currency notes totaling to about Rs.1.[5] lakhs in 500-rupee denominations. While the others managed to escape, the appellant was apprehended on the road by the public. He stated that the incident had taken place in between 6:30 to 7:00 p.m. and that the weapon was a pistol. He was admitted to Delhi Heart Institute where he was operated upon for gunshot injuries received in the stomach. The witness identified the appellant alongwith other co-accused. In cross-examination done on behalf of other accused, he stated that he was discharged from the hospital on 20.03.2013 and that he did not know the names of the accused persons when he was taken to the hospital. He stated that he became aware of their names only after the incident. He stated that he had been called to the police station for identification of the accused, however, no accused was present in the police station at that time. His statement was recorded on the day of the TIP. In cross-examination by the counsel for the appellant, he denied the suggestion that he identified the appellant only on the asking of the I.O. He further denied the suggestion that the appellant had not fired at him or that he was deposing falsely.

8. Surender Sharma, the brother of the injured, was examined as PW-5. He deposed that when he reached near the spot of the incident, he saw that his brother had suffered a bullet injury in his abdomen. He stated that Pankaj had given him three bundles of currency notes of 500 rupees denomination and thereafter, he, along with 1-2 other shopkeepers, had taken the injured first to Delhi Heart and Lungs Institute and thereafter to Sir Ganga Ram Hospital. He was cross-examined in which he stated that he and Kishori Lal used to work at the same office. He denied the suggestion that three bundles of Rs.500 notes were not handed over to him by Pankaj.

9. Rajender Shah was examined as PW-6. He claimed that he was working in the kitchen at the time of the incident and had not seen or heard anything with respect to the incident except the gunshot.

10. Dr. Manisha Chadha, CMO, Delhi Heart and Lung Institute, who had first examined the injured and exhibited the MLC, was examined as PW-4. She stated that the patient was brought with an alleged history of bullet wound.

11. Dr. Manish Kumar Gupta, Consultant Department of General & Laparoscopic Surgery, Sir Ganga Ram Hospital was examined as PW-15. He deposed that the injured was admitted in the hospital, was operated upon on 19.03.2013, and a bullet shaped metallic object was removed from his right gluteal region. The removed bullet was handed over to medical record section for sealing and handing over to the police (Ex. PW-15/A).

12. Dr. N. P. Waghmare, Assistant Director (Ballistics), FSL Rohini, was examined as PW-24, and exhibited his detailed report as PW-24/A. Sh. Puneet Puri, Senior Scientific Officer, Ballistics, FSL Rohini, Delhi, examined as PW-25, exhibited his report as Ex. PW-25/A. The ballistic report as well as the FSL report on the clothes of the injured were inconclusive. The testimony of other prosecution witnesses pertained to co-accused persons who have been acquitted or relating to various aspects of investigation. As no contentions are raised on the investigation aspect, the testimonies of the police officials are not discussed.

13. On a perusal of the record, this Court finds that the testimony of the injured witness Kishori Lal Sharma/PW-3 is reliable and inspires confidence. His categorical statement that the appellant fired upon him during the robbery is corroborated by the MLC, the removal and recovery of a bullet vide surgery, and the seizure of a pistol with live cartridges from the appellant when he was apprehended near the spot. The ballistic expert has opined that the empty cartridge recovered from the scene was fired from the said pistol. These circumstances, read together, firmly establish the appellant’s role in the incident.

14. The contention that the prosecution case is weakened because PW-2 and PW-6 did not identify the appellant is without merit. Both witnesses supported the occurrence of a forcible entry, firing, and robbery, and confirmed that one of the assailants was apprehended at the spot. The appellant’s refusal to participate in TIP proceedings, without any credible evidence being led to substantiate his explanation, also warrants an adverse inference. Minor discrepancies pointed out by the learned counsel for the appellant do not detract from the core of the prosecution case.