Delhi District Court
State vs . Yash Sharma & Others ( Madan) on 26 September, 2013
State Vs. Yash Sharma & others ( Madan)
IN THE COURT OF SH. PAWAN KUMAR JAIN
ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI
SC No. 116/09
ID No. : 02401R01179762008
FIR No. 205/08
PS : Patel Nagar
U/s: 392/397/34 IPC
State
Versus
Madan
S/o Sh. Govind
R/o T-2571/21A,
Baljeet Nagar,
Delhi
.........Accused
Date of Institution : 27.08.2008
Date of committal : 06.12.2008
Date of Judgment reserved on : 18.09.2013
Date of judgment : 24.09.2013
Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the
State.
Sh. Raj K. Ruhil, Advocate, counsel for the accused.
SC No. 116/09 Page 1 of 26
State Vs. Yash Sharma & others ( Madan)
J U D G M E N T:-
1. Charge-sheet was filed against four accused persons namely Yash Sharma @ Popat (A1), Lekh Raj (A2), Madan (A3) and Sarver Hussain (A4) for the offence punishable under Section 392/397/34 IPC. However, vide judgment dated May 10, 2012 all the accused persons except accused Madan (A3) were acquitted from all the charges. Since, accused Madan stopped appearing in the Court w.e.f. July 16, 2011 i.e. after conclusion of the prosecution evidence, ultimately he was declared proclaimed offender on February 21, 2012. He was re-arrested on July 22, 2013, accordingly, case was restored.
2. Briefly stated facts of prosecution case are that on May 11, 2008 at about 2:31 PM, an intimation was received from police control room that theft had taken place at 45/6, first floor, East Patel Nagar, Delhi. Said information was recorded vide DD No. 21A (Ex.PW1/A) and the same was assigned to HC Pardeep Rathi who along with constable Mohan Kumar left for the spot. After reaching there, HC Pardeep Rathi found that a robbery had taken place in the said house. Accordingly, he informed the duty officer who recorded the DD No.22 A (Ex.PW1/B) and was assigned to ASI Bijender Singh, who left for the place of occurrence.
(i). After reaching the spot, ASI Bijender Singh (PW18) made an inquiry from complainant Smt. Vijay Luthra (PW3) and her family members.
Complainant Smt. Vijay Luthra got recorded her statement (Ex.PW3/A) to the police. In her statement, she alleged that on May 11, 2008 at about 2 PM, after hearing door bell, she opened the door and saw that one boy wearing full face helmet was standing outside the door, that boy enquired about Vikas. When she said that no Vikas was residing there and was SC No. 116/09 Page 2 of 26 State Vs. Yash Sharma & others ( Madan) closing the door, that boy had pushed her inside the house and put a knife on her neck and stated not to raise alarm. In the mean time, his three other companions also came there who were carrying pistol in their hands. It was alleged that said accused persons had taken her in the bed room of her son where her daughter-in-law Ms. Pooja Luthra (PW4) was already there. It was stated that her husband Sh. Prem Nath Luthra (PW9) and maid Rajwati (PW6) were present in the drawing room and they were also taken to the bed room of Ms. Pooja Luthra. It was alleged that accused persons had affixed tape on their mouth and tied their hands and threatened them, if they wanted to save their live, to be seated there silently and also asked them to hand over all the valuable articles and had taken the keys of almirah. It was alleged that after opening the almirah's locker, the accused persons had removed all cash, jewellery, camera, DVD player, mobile phone and other articles. It was further alleged that they had also snatched eight gold bangles, diamond tops and tops of Ms. Pooja Luthra, her two gold bangles and gold rings. It was alleged that since the bangles were tight in her (complainant) hands, the accused who was wearing helmet had applied soap on her hands and thereafter removed the bangles. It was alleged that at that time that person had removed his helmet. It was stated that she had seen all the accused persons, she could identify them and their age was between 20-25 years. It was further alleged that before leaving the house, accused persons bolted them in the house and also disconnected the wire of telephone. It was alleged that when accused persons fled away, they untied their hands and informed the police on 100 number. On her statement, ASI Bijender Singh had made an endorsement for the offence punishable under Section 397/34 IPC and sent constable Shyam Kumar to lodge an FIR. Crime Team was summoned.
(ii) It was alleged that on June 21, 2008, DD No.18A was received SC No. 116/09 Page 3 of 26 State Vs. Yash Sharma & others ( Madan) at police station Patel Nagar that accused Yash Sharma had been apprehended by Crime Branch, R.K. Puram. Accordingly, accused Yash Sharma was arrested in this case on June 28, 2008 and an application for Test Identification Parade was moved. Accused Yash Sharma was got remanded to judicial custody.
(iii) On July 3, 2008, DD No. 21A was lodged at police station Patel Nagar stating that another accused Sarver Hussain had been arrested by special staff of West. Accordingly, he was arrested of July 4, 2008.
(iv) It was stated that accused Yash Sharma and Sarver Hussain refused to participate in the Test Identification Parade. Thereafter, both the accused were taken on police remand. Nothing could be recovered from them.
(v) During interrogation, it was revealed that one of the robbers named Nand Kishore @ Nandu had died. His death certificate was obtained. Accused Lekh Raj and Madan were avoiding their arrest. Accordingly, warrants were obtained against them. Thereafter, proceedings under Section 82/83 Cr.P.C were initiated. It was stated that supplementary challan would be filed against them.
3. After completing investigation, a challan was filed against accused Yash Sharma and Sarver Hussain for the offence punishable under Section 392/395/34 IPC.
(i) It was alleged that accused Lekh Raj and Madan had surrendered themselves in case bearing FIR No. 455/08 under Section SC No. 116/09 Page 4 of 26 State Vs. Yash Sharma & others ( Madan) 393/397/395/398/307/506/353/120B/34 IPC, police station Malviya Nagar. Thereafter, on September 26, 2008, accused Lekh Raj and Madan were arrested in this case. During Test Identification Parade, complainant Mrs. Vijay Luthra and Mrs. Pooja Luthra failed to identify accused Lekh Raj. However, Smt. Vijay Luthra identified accused Madan in the Test Identification Parade. It was alleged that when accused Lekh Raj and Madan had come out after the Test Identification Parade, both the said witnesses again identified them. Accused Lekh Raj and Madan were taken on the police remand but no recovery could be affected from them.
4. After completing investigation, supplementary challan was filed against accused Lekh Raj and Madan for the offence punishable under Section 392/395/397/34 IPC.
5. After completing investigation, both the challans were filed in the Court of learned ACMM, West. After complying with the provisions of Section 207 Cr. P.C, the case was committed to the Court of Sessions on December 1, 2008. Thereafter, case was assigned to the Court of Ms. Poonam Choudhary, the then learned Additional Sessions Judge on December 6, 2008. The case was transferred to the learned Predecessor of this Court on September 29, 2009. Accordingly, case was registered as SC No. 116/2009.
6. Vide order dated January 22, 2009, a charge for the offence punishable under Section 392/395/34 IPC was framed against accused persons to which they pleaded not guilty and claimed trial.
SC No. 116/09 Page 5 of 26State Vs. Yash Sharma & others ( Madan)
7. In order to prove the guilt of accused persons, prosecution has examined as many as following 19 witnesses:-
PW-1 HC Partap Singh, duty officer, proved DD no.21A, 22A, 18A and 21 A which are exhibited as Ex.PW1/A to PW1/D respectively.
PW-2 HC Madan Lal, duty officer, proved the FIR Ex.
PW2/A PW-3 Smt. Vijay Luthra, complainant, material witness PW-4 Ms. Pooja Luthra, daughter-in-law of complainant PW-5 SI Naresh Sangwan, formal witness, proved the arrest of accused Yash Sharma PW-6 Rajwati, maid of complainant, turned hostile PW-7 HC Ramesh Tiwari, formal witness, took the complainant to PHQ for the portrait of suspects PW-8 Sh. Sanjay Luthra, son of complainant, formal witness PW-9 Sh. Prem Nath Luthra, husband of complainant, material witness PW-10 Const. Shyam Kumar, joined the investigation with ASI Bijender Singh PW-11 HC Pardeep Singh Rathi, Ist investigating officer reached the spot pursuant to DD No.21A PW-12 HC Mahesh Kumar, joined the investigation with ASI Bijender Singh PW-13 HC Ram Kishore, joined the investigation with ASI Bijender Singh SC No. 116/09 Page 6 of 26 State Vs. Yash Sharma & others ( Madan) PW-14 HC Lalit Tyagi, proved the arrest of accused Yash Sharma PW-15 SI Veer Pal, proved the arrest of accused Sarver Hussain PW-16 Sh. S.K.Gautam, learned Addl. District & Sessions Judge, the then learned Metropolitan Magistrate PW-17 Sh. Sidharath Sharma, learned Metropolitan Magistrate, proved the Test Identification Parade proceedings of accused Lekh Raj and Madan PW-18 ASI Bijender Singh, investigating officer PW-19 Ravi Shanker, formal witness
8. Vide order dated February 21, 2012, accused Madan was declared proclaimed offender. Thereafter, he was re-arrested on July 22, 2013, accordingly case was restored.
9. Since, accused was declared proclaimed offender after culmination of prosecution evidence, his statement under Section 313 Cr. P.C. was recorded wherein he denied all the incriminating evidence led by the prosecution and took the plea that since he was wanted in case of police station Malviya Nagar, he surrendered himself in the said case before the Court in the month of August 2008 and when he was in Tihar Jail, police had arrested him in the instant case on September 25, 2008. It was submitted that he did not know why police had arrested him and stated that he had no connection with the robbery in question. He further submitted that he had been shown to the witnesses by the police at police station Malviya Nagar along with other accused persons and thereafter he was arrested from jail in the instant case. However, he refused to lead evidence in his defence.
SC No. 116/09 Page 7 of 26State Vs. Yash Sharma & others ( Madan)
10. I have heard rival submissions made by counsel for both the parties and perused the record.
11. Learned counsel appearing for accused sagaciously contended that there is no iota of evidence to attract the provisions of Section 395 IPC as during trial prosecution has failed to establish that robbers were five or more. It was submitted that at the time of acquitting co-accused persons, this Court had held that prosecution failed to prove the ingredients of Section 395 IPC. Learned Additional Public Prosecutor fairly conceded that during trial prosecution failed to produce any cogent evidence to establish that robbers were five or more in number and also fairly conceded that after considering the evidence on record, this Court had opined that no case is made out for the offence punishable under Section 395 IPC.
12. While acquitting the co-accused persons vide judgment dated May 10, 2012, this Court dealt with the submissions advanced by counsel for both the parties in para No. 12 to 16 on the points as to whether provisions of Section 395 IPC attract in the instant case or not.
"Para No. 12 To decide the controversy as to whether provisions of Section 395 IPC attracts qua accused persons or not, statement of complainant exhibited as Ex. PW3/A and deposition of PW3 Ms. Vijay Luthra, PW4 Ms. Pooja Luthra, PW6 Rajwati and PW9 Prem Nath Luthra are relevant. After the incident, complainant Ms. Vijay Luthra had got recorded her statement to the police, which is exhibited as Ex. PW3/A wherein she alleged that they were total four robbers, she categorically deposed that all the four robbers had affixed tape on the mouth of occupants of the house and also tied SC No. 116/09 Page 8 of 26 State Vs. Yash Sharma & others ( Madan) their hands. She nowhere alleged that there was any other person except the four robbers. On the basis of her statement, the police had registered an FIR for the offence punishable under Section 397/34IPC. When complainant Smt. Vijay Luthra graced the witness box by appearing as PW3, she deposed that all the boys were having pistol in their hands except one who was having knife in his hand. She further categorically deposed that all the four accused persons are present in the Court today. She nowhere deposed that there was any other person besides these four accused persons. No doubt, in her deposition, at one place, she deposed that when she was closing the door, one boy who was wearing full face helmet pushed her inside the room and thereafter 3-4 other boys followed that boy and entered the house. At that time, she had given vague statement that robbers were either four or five but subsequently in her deposition, she categorically deposed that robbers were four and all were present in the Court. Thus, it becomes clear that only four robbers were involved in the incident and not five as contended by learned Additional Public Prosecutor.
Para No. 13 Though PW4 Ms. Pooja Luthra, daughter-in-law of Ms. Vijay Luthra (PW3) deposed that she had also noticed fifth person who was tall in height but she failed to attribute any specific role to that fifth person. In her deposition, she deposed that accused Sarver Hussain had taken the key of almirah from her and crushed the mobile chip of her phone. She further deposed that accused Lekh Raj was wearing full face helmet. She further deposed that accused Yash Sharma SC No. 116/09 Page 9 of 26 State Vs. Yash Sharma & others ( Madan) was unmuffled and one another boy was in muffled face. Thus, she has attributed the role of only four robbers. PW6 Rajwati though turned hostile, yet deposed that robbers were 3-4 in number. PW6 Rajwati was cross examined by learned Additional Public Prosecutor in length and even during cross- examination, learned Additional Public Prosecutor put suggestion to her that the robbers were only four and nowhere suggested that robbers were five or more. Thus, the testimony of PW6 Rajwati also proved that robbers were less than five in number.
Para No. 14 Though initially PW9 Prem Nath Luthra, husband of complainant (PW3) deposed that robbers were four or five. However, in the next breath, he deposed that one boy aged about 25 years, who was wearing full face helmet entered their house; he was holding a knife in his hand and was also carrying a pistol in his dub. He further deposed that three boys came forward; two of them had covered their face with handkerchief and one boy was in unmuffled face. Thus, as per his deposition, there were only four robbers.
Para No. 15 Perusal of record reveals that name of fifth robber i.e. Nand Kishore @ Nandu was surfaced during the disclosure statement of accused persons. But none of the witnesses had stated in their deposition that there was any other robber except four accused persons, who are facing trial. In the absence of any cogent evidence, I do not find any force in the contention of learned Additional Public Prosecutor that the total number of robbers was five and not four. It is SC No. 116/09 Page 10 of 26 State Vs. Yash Sharma & others ( Madan) pertinent to state here that the disclosure statement before the police is otherwise inadmissible in the eyes of law as the same is hit by Section 25 of the Indian Evidence Act. Thus, revelation the name of Nand Kishore @ Nandu during the disclosure statement of accused persons is not admissible in the eyes of law. There is no other scintilla of evidence to establish that the robbers were five or more.
Para No. 16 Considering the above discussion, I am of the opinion that there is no scintilla of evidence to establish that robbers were five or more, thus I am of the view that the provisions of Section 395 IPC do not attract in the present case."
13. In view of the above findings and the fact that during arguments learned Additional Public Prosecutor has not brought any new fact in my notice to establish that provisions of Section 395 IPC are attracted in this case, thus, I am of the opinion that prosecution has failed to establish that provisions of Section 395 IPC attract in the present case.
14. Next contention was raised by learned counsel appearing for the accused that there is no admissible evidence on record to establish the participation of accused in the alleged robbery. It was submitted that during trial prosecution has examined as many as four eye witnesses but none of them except PW3 Ms. Vijay Luthra identified the accused in the Test Identification Parade. It was submitted that no reliance can be placed on the testimony of PW3 Ms. Vijay Luthra as the photograph of accused was shown to the witness prior to holding the TIP. In support of his contention, he relied upon the judgment Wakil Singh & others vs. State of Bihar, AIR SC No. 116/09 Page 11 of 26 State Vs. Yash Sharma & others ( Madan) 1981, Supreme Court 1392, it was submitted that if we ignore the testimony of PW3, there is no other evidence on record to prove the complicity of the accused.
15. Per contra, learned Additional Public Prosecutor refuted the said contention by arguing sagaciously that there is no reason to disbelieve the testimony of PW3. It was submitted that PW3 categorically identified the accused not only in the judicial TIP but also before the Court and she had also categorically testified that accused was having a knife in his hand and he was roaming here and there at the time of commission of offence. He fairly conceded that PW 4 Ms. Pooja Luthra failed to identify the accused in the judicial TIP as well as before the Court. He also admitted that PW6 Rajwati turned hostile during trial and she did not support the prosecution case. He also candidly conceded that PW9 Prem Nath Luthra also failed to identify the accused during trial.
16. It is evident from the submissions advanced by counsel for the parties that though prosecution has examined four witnesses of the incident, yet three witnesses neither uttered even a single word against accused Madan nor identified him during trial. But PW3 Ms. Vijay Luthra testified against the accused Madan. She not only identified him during Test Identification Parade but also identified him during trial.
17. Before dealing with the contentions raised by counsel for parties, I deem it appropriate to have a look over the settled proposition of law on the point of Test Identification Parade. The Apex Court had summarized the law on the Test Identification Parade in case Mohd. Kalam @ Abdul Kalam vs. State of Rajasthan, AIR 2008 SC 1813. Para 7, 8, 12, 13 and 15 are relevant and same are reproduced as under:-
SC No. 116/09 Page 12 of 26State Vs. Yash Sharma & others ( Madan) 7 "...... The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Evidence Act. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution."
8."...... The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to SC No. 116/09 Page 13 of 26 State Vs. Yash Sharma & others ( Madan) exceptions; when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim, a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court. The weight to be attached to such identification should be a matter for the Courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v.
Delhi Administration (AIR 1958 SC 350), Vaikuntam Chandrappa and others v. State of Andhra Pradesh (AIR 1960 SC 1340), Budhsen and another v. State of U.P. (AIR 1970 SC 1321) and Rameshwar Singh v. State of Jammu and Kashmir (AIR 1972 SC
102)."
12. ".....It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in Court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in Court."
13."In Ram Nath Mahto v. State of Bihar (1996) 8 SCC 630) this Court upheld the conviction of the appellant even when the witness while deposing in Court did not identify the accused out of fear, though he had identified him in the test identification parade. This Court noticed the observations of the trial Judge SC No. 116/09 Page 14 of 26 State Vs. Yash Sharma & others ( Madan) who had recorded his remarks about the demeanor that the witness perhaps was afraid of the accused as he was trembling at the stare of Ram Nath-accused. This Court also relied upon the evidence of the Magistrate, PW-7 who had conducted the test identification parade in which the witness had identified the appellant. This Court found, that in the circumstances if the Courts below had convicted the appellant, there was no reason to interfere."
15. ".....In State of Uttar Pradesh v. Boota Singh and others (1979 (1) SCC 31), this Court observed that the evidence of Identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad daylight, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes."
(emphasis supplied)
18. In the light of the above settled proposition of law, testimony of PW3 will be analysed to ascertain as to whether her testimony inspires confidence to prove the complicity of the accused or not.
19. PW 3 in her examination-in-chief deposed that in the first week of October, 2008, she went to Tihar Jail to identify the accused persons where she identified the accused Madan, present in the Court but she could not identify another accused Lekh Raj at that time. She further testified that accused Madan was having a knife at the time of robbery and he was moving here and there in the house at the time of incident. She further deposed that accused persons were exchanging their weapons with each other during commission of robbery. She further deposed that police had SC No. 116/09 Page 15 of 26 State Vs. Yash Sharma & others ( Madan) shown the photographs of some of the persons to identify the robbers but no photograph of the accused persons, present in the Court was ever shown. During cross-examination, she admitted that on the day of TIP, she was called at the police station from where she accompanied with the police to the Tihar Jail. She denied the suggestion that she identified the accused Madan at the instance of investigating officer as he had shown his photograph to her. Except that no other suggestion was put to the witness. No doubt, attempt was made to establish that PW3 had identified the accused as photograph was shown to her by the investigating officer but she categorically denied the suggestion. Moreover, it is undisputed fact that PW4 also accompanied PW3. If any photograph was shown by police to PW3, police could have also shown the same to PW4 but PW4 did not identify the accused Madan during TIP. She even did not identify the accused Madan during trial. Similarly, if police could show the photograph of the accused Madan to PW3, police could also show the photograph of accused Lekhraj but PW3 failed to identify him during judicial TIP. Thus, it falsifies the defence version that PW3 had identified the accused Madan in TIP at the behest of police.
20. It is undisputed fact that the alleged incident had taken place on May 11, 2008 whereas accused Madan was arrested in this case on September 25, 2008 from Tihar Jail. PW18 ASI Bijender Singh, investigating officer admitted in his cross-examination that accused Madan had surrendered himself before the Patiala House Court in case FIR No. 455/2008, Police Station Malviya Nagar. Accused in his examination under Section 313 Cr. P.C. took the plea that he had surrendered before the Court in the said case in the month of August 2008. PW18 in his examination-in- chief also deposed that he had arrested the accused after seeking permission from the Court.
SC No. 116/09 Page 16 of 26State Vs. Yash Sharma & others ( Madan)
21. Record reveals that after arresting the accused, he had moved an application before the Jail Superintendent requesting him to produce the accused persons before the Court of Sh. Lokesh Kumar Sharma, learned Metropolitan Magistrate on September 26, 2008 in muffled face for the purpose of TIP. The judicial remand application dated September 26, 2008 shows that accused Madan and Lekh Raj were produced before the Court of Sh. Lokesh Kumar Sharma, learned Metropolitan Magistrate in muffled face on September 26, 2008 and both were remanded to judicial custody till October 03, 2008. PW18 further deposed in his examination-in-chief that he had also moved an application for the TIP of the accused which was fixed in the first weeks of October, 2008. The TIP was conducted by PW17 Sh. Sidharth Sharma, learned Metropolitan Magistrate and the proceedings are exhibited as Ex.PW17/B. As per proceedings conducted by him, PW3 Vijay Luthra identified the accused and proceedings qua her is Ex.PW17/C. During cross-examination of PW18, no suggestion was given to the witnesses that any photograph of the accused Madan was taken or it was shown to the witness before conducting TIP. Nor during trial accused adduced any cogent evidence to establish that either police had taken his photograph in Malviya Nagar case or in the instant case or the same was shown to PW3 before TIP. In the absence of any cogent evidence, defence version to the extent that the photograph of accused was shown to the PW3 before TIP and on the basis of the said photograph PW3 identified the accused does not inspire any confidence.
22. Now coming to the issue as to whether PW3 had sufficient time to recognise the features of accused or not?
23. PW3 in her examination-in-chief deposed that she had attended door bell at about 2 PM and when she opened the door, she found that one boy was standing outside the door and asked as to whether Vikas was SC No. 116/09 Page 17 of 26 State Vs. Yash Sharma & others ( Madan) present and when she retorted that no Vikas was residing and was going to close the door, the said boy pushed her and entered the room. In her cross-examination, she deposed that the robbers remained in her house for 30-35 minutes.
24. Indisputably, police had received intimation of the incident first time vide DD No. 21A, which was recorded at 2:31 PM. It means that PW3 had 30 minutes time to recognise the features of the accused. PW3 in her examination-in-chief deposed that accused Madan was having a knife in his hand at the time of robbery and he was roaming here and there in the house and accused persons were exchanging their weapons with each other. This proves that PW3 had sufficient time to recognize the feature of the present accused, thus, there is no reason to disbelieve the testimony of PW3 in this regard. Moreover, her testimony also inspires confidence because she identified the accused not only in the judicial Test Identification Parade but also during the trial.
25. Counsel appearing for accused contended that since there was delay in conducting the TIP, no reliance can be placed on Test Identification Parade. I do not find any substance in this contention because it is undisputed fact that the accused was arrested first time in this case only on September 25, 2008 and TIP was fixed on October 01, 2008. Thus, there was no delay on the part of the investigating officer in get conducting TIP. Mere fact that accused could not be arrested just after incident is not a sufficient ground to give benefit to the accused otherwise it would amount giving benefit to the wrongdoer for his wrongful act.
26. Now coming to the judgement Wakil Singh & others vs. State of Bihar, (Supra) relied upon by the counsel for accused. To my mind, said SC No. 116/09 Page 18 of 26 State Vs. Yash Sharma & others ( Madan) judgment is not applicable to the facts of the present case as facts of the said case were totally different from the facts of case in hand. In the said case one witness identified the accused in the TIP; another witness failed to identify the accused during trial. Qua third witness, it is not clear whether the said witness identified the accused at both the occasions or not as in the instant case PW3 identified the accused. Moreover, it is also no clear whether in the said case witness had sufficient opportunity to notice the features of the accused as in the present case. Moreover in the said case incident had taken place in night in a remote village where there was no electricity whereas the instant incident had taken place in day light in the house of victim. Thus, victim was in a better position to recognise the features of the assailants, hence, I am of the view that the above said judgment is not helpful to the accused in any manner.
27. In the light of the above discussion, I am of the considered opinion that the testimony of PW3 wherein she identified the accused Madan is trustworthy and there is not reason to disbelieve the same.
28. Learned counsel appearing for the accused vehemently contended that neither any robbed items nor any weapon of offence is recovered from the accused and this falsifies the deposition of PW3 that he was one of the robbers in the said incident. To my mind, the said contention is without any substance because it is undisputed fact that the alleged incident had taken place on May 11, 2008 whereas accused was apprehended first time by the police of Malviya Nagar in the month of August 2008 and thereafter he was arrested in this case on September 25, 2008, thus, accused had more than sufficient time to dispose of the robbed property as well as weapon of offence. In the facts and circumstance of the present case, non recovery of robbed items and weapon of offence is not SC No. 116/09 Page 19 of 26 State Vs. Yash Sharma & others ( Madan) fatal to the prosecution case in any manner.
29. Learned counsel appearing for the accused further contended that in the instant case as many as 10 chance prints were lifted from the place of occurrence but the chance prints did not tally with the fingers prints of the accused, which proves that he did not participate in the alleged incident. However, the said contention was opposed by the learned Additional Public Prosecutor for the State by sagaciously arguing that in the instant case, the finger prints of the accused were never sent for the comparison, thus, the question of matching or mis-matching of his finger print with chance prints does not arise.
30. Perusal of the record reveals that after the incident, crime team was summoned and crime team had inspected the place of occurrence and during inspection, crime team had lifted 10 chance prints i.e. from the wooden bed, whiskey bottle and glasses. During trial, prosecution has not examined the in-charge of the crime team who submitted his report in this regard . During trial, investigating officer PW18 no where deposed that he had taken the finger prints of the accused for the purpose of comparison with the chance prints. Even during cross-examination, no such question was asked from him. Thus, it is established that the finger print of the accused were never sent for comparison. Hence, the question of matching or mis-matching with the chance prints does not arise. Moreover, from the report of the crime team, it appears that 4 chance prints were lifted from the wooden bed and 3 chance prints were lifted from whiskey bottle and 2 chance prints were lifted from the glasses. During testimony of none of the witnesses, it is surfaced that the accused had touched any of the such items. On the contrary, from the deposition of witnesses examined by the prosecution it is clear that the robbers had detained all the occupants of SC No. 116/09 Page 20 of 26 State Vs. Yash Sharma & others ( Madan) house in the bed room. Thus, the possibility that the chance prints, which were lifted from the wooden bed could be any of the said persons cannot be ruled out. Mere fact that the prosecution did not send the finger prints of the accused for comparison with the chance print is not sufficient to disbelieve the testimony of PW3, which is otherwise trustworthy.
31. From the testimony of PW3, PW4 and PW9, it is established beyond the shadow of all reasonable doubts that on May 11, 2008, robbery was committed in their house by 4 robbers and all the robbers were carrying pistol and knife in their hand. PW3 in her deposition categorically deposed that robbers had robbed jewelery including two sets of diamond, two sets of gold in big size and other jewelery and other items such as DVD player, digital camera. One of the robbers had also got removed 8 gold bangles from the hands of PW3 after asking her to apply soap as the bangles were tight. The said robbers had also removed diamond ring from her finger, two rings which was wearing by PW4 were also robbed. While committing the robbery, they had tied the hands of PW4, PW6 and PW9 and affixed tape on their mouth and detained them in the bed room of PW4. During robbery, one of the robbers took PW3 in the wash room to get remove her gold bangles from her hand. Though, PW6 turned hostile on the point of identity of the robbers but she corroborated the testimony of other witnesses on the happening of occurrence. Thus, from the deposition of said witnesses, it is established beyond the shadow of all reasonable doubts that robbery was committed in the house of PW3 by four persons. As already discussed, from the testimony of PW3, it is also established beyond the shadow of all reasonable doubts that accused Madan was one of the robbers to whom PW3 identified in the TIP as well as before the Court.
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32. Learned counsel appearing for the accused submitted that though PW3 identified the accused Madan in the judicial TIP as well as before the Court, yet in her testimony she failed to attribute any role to him thus, accused Madan is entitled for benefit of doubt. But to my mind, the said contention is not helpful to the accused in any manner. PW3 in her examination-in-chief categorically deposed that accused Madan was having a knife in his hand at the time of robbery and he was roaming in the house here and there. The testimony of PW3 proves the complicity of the accused in the said incident as he was moving in the house having a knife while his companion were committing robbery. Mere fact that accused himself did not snatch articles from any of the occupants is not sufficient to prove his innocence. Indisputably, accused Madan was stranger to the occupants of the said house, thus he was not supposed to be inside the house more particularly with a knife. Since, he was of the companions of the other robbers, he is also liable for the acts of his companions. Thus, with the aid of Section 34 IPC, he is liable for all the acts committed by his companions. Hence, in my view, he is equally liable for the said robbery.
33. It is pertinent to state that PW3 has no prior acquaintance with the accused Madan to falsely implicate him in this case. In the absence of prior animosity or ill-will, PW3 did not have any motive to falsely implicate the accused in this case.
34. At last, learned counsel appearing for accused submitted that since the other accused persons were acquitted , accused should be also given benefit of doubt. To my mind, the said contention has no substance. The other accused persons were acquitted after considering the evidence available on record qua them. Mere fact they have been acquitted is not SC No. 116/09 Page 22 of 26 State Vs. Yash Sharma & others ( Madan) suffice to prove the innocence of the accused.
35. Pondering over the ongoing discussion, I am of the considered opinion that prosecution has succeeded to bring home the guilt of accused Madan beyond the shadow of all reasonable doubts for the offence punishable under Section 392/34 IPC, thus, I hereby hold him guilty thereunder.
Announced in the open court On 24th September, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
SC No. 116/09 Page 23 of 26State Vs. Yash Sharma & others ( Madan) IN THE COURT OF SH. PAWAN KUMAR JAIN ADDITIONAL SESSIONS JUDGE-01 ( CENTRAL): DELHI SC No. 116/09 ID No. : 02401R01179762008 FIR No. 205/08 PS : Patel Nagar U/s: 392/397/34 IPC State Versus Madan S/o Sh. Govind R/o T-2571/21A, Baljeet Nagar, Delhi .........Convict Present: Sh. R.K. Tanwar, Additional Public Prosecutor for the State.
Sh. Raj K. Ruhil, Advocate, counsel for the convict.
ORDER ON THE POINT OF SENTENCE:-
1. Vide separate judgment dated September 24, 2013, accused was held guilty for the offence punishable under Section 392/34 IPC.SC No. 116/09 Page 24 of 26
State Vs. Yash Sharma & others ( Madan)
2. Learned counsel appearing for the convict requests for a lenient view on the ground that he is a young boy of 29 years having the responsibility of his wife and old parents. It is further submitted that accused has not been convicted in any other matter till date. It is further submitted that since 2008, accused is not involved in any other criminal matter.
3. Per contra, learned Additional Public Prosecutor requests for maximum punishment for ten years on the ground that he was a member of the gang, which committed arm robbery in the house of PW3. It is further submitted the convict is involved in a very heinous crime and sentence should convey a massage to the society that whosoever involved in such type of offence shall be dealt firmly on proving their guilt.
4. I have heard rival submissions advanced by counsel for both the parties, perused the record carefully and gave my thoughtful consideration to their contentions.
5. No doubt, convict was involved in the arm robbery, but this fact itself is not sufficient to award maximum punishment of ten years as prayed by learned Additional Public Prosecutor. Perusal of the file reveals some of the aggravating factors against the accused such as that during trial he stopped appearing in the Court since July 16, 2011 and ultimately he was declared proclaimed offender on February 21, 2012 and thereafter, he was arrested on July 22, 2013. Thus, almost two years he remained absconded. It is also undisputed fact that convict is also involved in another case of attempt to robbery and he is facing trial for the same. But it is also true that he has not been held guilty till date in the said case. No doubt, convict was member of the gang, which had committed the arm robbery in the house of PW3 Vijay Luthra but it is also true that witnesses examined by the SC No. 116/09 Page 25 of 26 State Vs. Yash Sharma & others ( Madan) prosecution have not attributed any specific role to the convict except PW3 who deposed that convict was roaming in the house here and there carrying a knife. But, it is undisputed fact that even PW3 did not depose that convict had snatched any item personally. This is another mitigating factor in favour of convict. At last but not least there is nothing on record which may suggest that convict is involved in any other case after the incident in question. Admittedly, the incident had taken place in the year 2008, it means that during the last five years, convict is not involved in any other criminal matter, which shows that he is trying to reform himself, this is another mitigating factor in favour of the convict.
6. In view of the aforesaid discussion, I am of the opinion that convict deserves a lenient view, thus I hereby sentence the convict Madan rigorous imprisonment for a period of four years and a fine of ` 10,000/- in default further simple imprisonment for a period of six months for the offence punishable under Section 392/34 IPC. Benefit of Section 428 Cr. P.C. be given to the convict.
7. Copy of judgement along with the copy of order on the point of sentence be given to the convict free of cost.
8. File be consigned to record room.
Announced in the open court On 26th September, 2013. (PAWAN KUMAR JAIN) ADDITIONAL SESSIONS JUDGE-01 CENTRAL/THC, DELHI.
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