Manish v. State Govt. of NCT of Delhi

1. With the consent of the parties, the appeal itself is taken up for consideration.

2. In view thereof, learned counsel for the appellant does not press the present application.

3. The present application is accordingly disposed of.

1. By way of the present appeal, the appellant assails the judgment of conviction dated 03.06.2024 and order on sentence dated 28.08.2024 passed by the learned ASJ-05, South-East District, Saket Courts, New Delhi in SC No. 555/2018 arising out of FIR No. 119/2018 registered under Section 392/397/411/34 IPC at P.S. Defence Colony, Delhi. The appellant was convicted for the offence punishable under Section 392/34 IPC read with Section 397 IPC and sentenced to undergo rigorous imprisonment for a period of 7 years along with payment of fine of Rs. 5,000/-, in default ASWAL whereof to further undergo simple imprisonment for 3 months. Benefit under Section 428 Cr.P.C. was granted to the appellant.

2. The facts, pithily put, are that on 22.09.2018, at around 03:00AM, at Andrews Ganj Road, near South-Extension Flyover, New Delhi, the appellant alongwith his associate who was CCL, in furtherance of their common intention, robbed complainant Tejpal of his black colour mobile phone of make ‘Techno’, at the point of knife. The appellant was apprehended at the spot by police officials and the robbed mobile phone as well as the knife used in commission of the offence were recovered from his possession.

3. The charges were framed under Section 392/397/411/34 IPC vide order dated 24.12.2018, to which the appellant pleaded not guilty and claimed trial. The complainant Sh. Tejpal was examined as PW[1]. SI Hawa Singh, who was one of the policeman who arrived on the spot and apprehended the appellant was examined as PW[3]. PW[2] and PW[4] deposed as to the ownership of the phone. The IO Sushil Sanwaria was examined as PW[5]. The appellant in his statement under Section 313 Cr.P.C. alleged false implication.

4. Learned counsel for the appellant contended that the appellant has been falsely implicated in the present case. It is urged that the conviction rests primarily on the testimony of the complainant (PW-1), which suffers from material contradictions and improbabilities. It is submitted that no independent witness was joined despite the spot being a public place and the alleged recovery of knife and mobile phone is doubtful. It is further contended that no CCTV footage or CDR records were produced, and that the appellant was in fact a victim who had stopped his motorcycle when the ASWAL juvenile co-accused took the bike and committed the alleged act. It is also urged that the appellant has already undergone over 1 year and 3 months of the sentence, has no other conviction on record though one other criminal case, being FIR No. 390/2019 under Sections 25/54/59 of the Arms Act registered at P.S. Rajouri Garden, is pending in which he is on bail, and has maintained satisfactory conduct in custody.

5. Learned APP for the State opposed the appeal, submitting that the testimony of the complainant (PW-1) stands corroborated by police witnesses, including PW-3 SI Hawa Singh and PW-5 Inspector Sushil Sanwaria. The complainant gave a consistent account of the incident and identified the appellant in court as the person who robbed him at knife point. The stolen mobile phone and knife were recovered from the appellant’s possession at the spot itself exhibited via Ex. PW 1/B. It is contended that the trial court has, upon a detailed appreciation of evidence, rightly convicted the appellant.

6. A perusal of the Trial Court record shows that the complainant (PW-

1) deposed that on 23.09.2018 at about 3:00 a.m., at Andrews Ganj Road, near South Extension flyover, two boys approached him on a motorcycle. The appellant, who was the pillion rider, alighted, put a knife to his abdomen, and said ‘jo kuch bhi hai nikal de’. PW-1 handed over his black coloured mobile phone of make ‘Techno’. In the meantime, 2 police officials arrived and apprehended the appellant at the spot, recovering the mobile phone (Ex.PW1/B) and knife (Ex. PW1/C) from his possession. PW[1] identified the appellant in Court. In his cross examination, nothing came out which would shake the veracity of his statement. He stated that he purchased the mobile phone from one Kanwar Singh Rawat.

7. The prosecution had also examined SI Hawa Singh as PW[3] who deposed that on the night of the incident, he alongwith Ct. Pawan were on duty in South Extension area when they heard the cry of a person stating ‘Bachao bachao.’ They reached the spot where they found PW[1], the appellant who was holding a knife and one other person on a motorcycle, who, on seeing them approach, escaped from the spot. The appellant was apprehended by them on the spot, and the robbed phone and the knife were also recovered from him.

8. PW-2 Jatin Gandhi, a mobile shop owner, deposed that he had sold the mobile phone in question to one Kanwar Singh Rawat. Kanwar Singh was examined as PW[4] who stated that he had given the mobile phone to his nephew, who was the complainant PW[1]. PW[5], the IO stated that on the same day, the appellant had led the police to his house at 9-9.30 AM where the bike used in the offence was recovered. The same was found to be registered in the name of the mother of the appellant. In his cross examination, suggestion was given to the effect of non-joining of public witnesses, to which he stated that though he made efforts to join public witnesses, however, none had joined the investigation.

9. The appellant was arrested at the spot and from whom, both the mobile phone and the knife used in the offence were also recovered. The sketch of the knife (Ex. PW1/D) reveals that the total length of the knife was 30 cm, and the blade was 14 cm long and 3 cm wide.

10. It is evident that the testimonies of the complainant, PW[1], and policeman who apprehended the appellant on spot, PW[3], and the IO. PW[5] are consistent, comprehensive and inter se corroborate with each other. The appellant has been clearly identified by both the appellant and PW[3] and his ASWAL specific role of using the knife to carry out the robbery has also come on record. As noted above, he was arrested from the spot. The robbed mobile phone and knife used for commission of the offence have both been recovered from him. No reason has been shown to suggest prior enmity. It is trite law that non joining of public witnesses would not be fatal to the prosecution case, in the cases where the other evidence put forth by the prosecution is cogent, credible and reliable. A reference may be made to the decision of Supreme Court in Gian Chand v. State of Haryana, 1 wherein it was held as under:-