Deep Singh v. State

1 These appeals are directed against the impugned Judgment and c"der on sentence dated 23.08.2013 & 26.08.2013 respectively wherein C,1. Appeal Nos.1172/2013&692/2014 Page 1 of[6] 1-ie appellant Deep Singh stands convicted under Section 397read with ejections 32/43 ofthe IPC. Maximum sentence awarded to him is RI /ears for his conviction under Section 397 ofthe IPC.For his second c onviction,he has been sentenced to undergo RIfor a period of[5] years £ id to pay a fine ofRs.10,000/- and in default ofpayment offine,to 1 idergo SIfor6months.Nominalrollofthe appellantreflectsthatason c ite, he has undergone incarceration of 3 years and 10 months. The s-cond convict Sumit has been convicted under Section 392/34 ofthe L C.He has been sentenced to undergo RIfor a period of[5] years and to p:y a fine ofRs.10,000/- and in default ofpayment offline,to undergo

2 The version ofthe prosecution was unfolded in the testimony of tl13 complainant Rashik(PW-4).His version wasto the effectthat he is a.(bident ofA Block,Sonia Vihar,Delhi.He was working as a barber in 4pex Parlour,Kalyan Puri. On 16.12.2010 at about 10:15 pm while he A ',s returning home and reached near park at Khichripur, three boys 3::ught him from behind;one ofthem(later on identified as Deep Singh) 3l.owed him a knife and took out his purse and mobile phone of Tata:. Appeal Nos.1172/2013&692/2014 Page2of[6] I.'lake. The accused started running after robbing the complainant. The complainant was able to apprehend one of the three persons whose p.rson was revealed as the appellant Deep Singh.Further version ofthe c Jmplamant was that Deep Singh was the person who had branded the Fiife. PGR van came. His statement (Ex.PW-4/A) was recorded. I -vestigation was set into motion. In the course of investigation, the p osecution had examined[5] witnesses ofwhom the complainant(pW-4) vas the star witness and his version as recorded in the complaint was reiterated on oath in Court.

3 He was subjected to a lengthy cross-examination but he did not d ■ ter from his stand.His version being reiterated to the effect that three persons had robbed him one of whom had branded the knife and that p-.rson was Deep Singh. Deep Singh was apprehended by the.mplainant and handed over to the police. However no knife was;e.:overed from Deep Singh. The disclosure statement of Deep Singh •IS recorded by the Investigating Officer SI Rahul Kumar (PW-5). rsuant to the disclosure statement ofaccused Deep Singh,the role of 'be second accused namely Sumit surfaced. Appellant Sumit inspite of se irch could not be arrested. He had surrendered on 03.01.2011 in the Cri.AppealNos.1172/2013&692/2014 Page3of[6] A Karkardooma Court. Accused Sumit was arrested. He made a disclosure statement butno recovery could be effected from him.He wassubjected to TIP but he refused TIP and in the TIP proceedings(Ex.PW-3/B),the ground for refusal tojoin TIP was that his photograph had been shown in the police station Kalyan Puri between 09:00 to 10:00 pm by 2-3 police persons on 03.01.2011.

4 The Trial Judge had drawn adverse inference against accused Sumitfor refusal tojoin TIP.

5 Testimony ofPW-4(the complainant)becomes relevant. He had on oath deposed that he had gone to the police station where he identified the accused Sumit. Thus the ground taken by appellant for refusal to join the TIP was a valid ground and he having given a ^ justification for not joining TIP the Trial Judge had committed an illegality in drawing adverse inference against Sumit.

6 On this count, the version ofthe prosecution clearly shows that the offence had taken place at 10:15 pm at winter night i.e. on 17.12.2010.The only accused who was apprehended at the spot was the appellant Deep Singh.The other accused Sumit had escaped and he was arrested later on. No recovery has been effected from him. Against Crl. Appeal Nos. 1172/2013&692/2014 Page4of[6] > I S mit, the Trial Judge had largely relied upon the fact that he had •(Tised tojoin TIP.This Courtis ofthe view that refusal tojoin TIP by 3:mit was for a justifiable reason in view of the fact that PW-4 had 3,[1] mitted that he had seen the appellant Sumitin the police where he had c mtified him. Adverse inference for notjoining TIP qua Sumit could 1;t have been drawn. Apartfrom the disclosure statement ofco-accused T';ep Singh,there is no other evidence to connect the appellant Sumit the crime. The disclosure statement ofco-accused under Section 30 o; the Evidence Act may be a relevant piece of evidence but taken by tielf, it cannot form the basis of a conviction. Appellant Sumit is 31:itled to a benefit. Accordingly while giving him benefit of doubt, he s acquitted. He be released forthwith,ifnotrequired in any other case. / Qua the role ofDeep Singh,the complainant had stated that Deep 3 igh was the person who had branded the knife upon him and the 31,jsequent version ofPW-4thatDeep Singh had been caught atthe spot T-1 no knife having been recovered from him also creates a doubt in the

8 With these directions,appeals are disposed of. S A copy of this order be sent to the Jail Superintendent for i:timation to the appellants.

INDERMEET KAUR,J jECEMBER,2015 >1. Appeal Nos. 1172/2013 &692/2014 Page6of[6]