Delhi District Court
Nitin @ Himanshu vs State Of Delhi on 17 May, 2016
IN THE COURT OF SH. NARESH KUMAR MALHOTRA: ASJ05 : WEST
DISTRICT, TIS HAZARI COURTS, DELHI
C.A No. 72/15.
In the matter of :
Nitin @ Himanshu,
S/o Late Sh. Vinod Kumar,
R/o WZ136, Om Vihar, Phase I, Delhi59.
............ Appellants.
VERSUS
State of Delhi.
............. Respondent.
DATE OF INSTITUTION : 09.10.2015
DATE OF RESERVING THE JUDGMENT : 28.04.2016
DATE OF DECISION : 17.05.2016
AND
C.A No. 75/15
In the matter of :
Harsh Sharma @ Dinesh,
Son of Late Sh. Chander Parkash,
r/o C23, Anand Vihar, Uttam Nagar,
New Delhi110059.
............ Appellant.
VERSUS
The State
(N.C.T. of Delhi)
............. Respondent.
DATE OF INSTITUTION : 26.10.2015
DATE OF RESERVING THE JUDGMENT : 28.04.2016
DATE OF DECISION : 17.05.2016
AND
C.A No. 22/16 & Old No. 38/15.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 1 of 31
In the matter of :
Rajesh @ Raju,
S/o Sh. Khoju Ram,
r/o WZ24/3, JG2, Vikas Puri,
New Delhi 110018.
............ Appellant.
VERSUS
State (Govt. of N.C.T, Delhi)
............. Respondent.
DATE OF INSTITUTION : 26.10.2015
DATE OF RESERVING THE JUDGMENT : 28.04.2016
DATE OF DECISION : 17.05.2016
JUDGEMENT
1. Vide this common judgment, I shall decide the criminal appeal bearing No. 72/15 filed by appellant Nitin @ Himanshyu, criminal appeal bearing No. 75/15 field by appellant Harsh Sharma & criminal appeal bearing New No. 22/16 & Old No. 38/15 filed by appellant Rajesh @ Raju against the judgment dated 25.07.2015 passed by the Ld. MM, vide which all the appellants were convicted u/s. 392 IPC read with Section 34 IPC and against the order on sentence dated 09.09.2015, vide which all the appellants were sentenced to rigorous imprisonment for a term of three years and also to pay a fine of Rs. 5000/ each failing which they shall undergo simple imprisonment for one month. Benefit of Section 428 Cr.P.C is also given to the appellants.
2. I am deciding all the three criminal appeals together as they are CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 2 of 31 arising out of the same judgment dated 25.07.2015 and order on sentence dated 09.09.2015 in case FIR No. 09/2011, PS Mianwali Nagar, u/s. 392/34 IPC.
3. Aggrieved by the judgment dated 25.07.2015 & order on sentence dated 09.09.2015, the appellant Nitin @ Himanshu has filed the CA No. 72/15 on the ground that PW4, PW5 & PW8 have deposed that IO had taken the search of accused Harsh and thereafter that of Nitin and thereafter of Rajesh. On the other hand, PW3 HC Hari Kishan had stated that it is correct that after a bit of interrogation the search of all the accused persons was conducted simultaneously by the I.O and this is a material contradiction. PW3 HC Hari Kishan has stated that IO did the writing work and the same was done while sitting on the road/ earth and PW4 Ct. Sanjay also stated that writing work was done while sitting on the road. While PW5 & PW8 have contradicted PW3 & PW4 by saying that the writing work was done while sitting on the footpath/ Patri and this is also material contradiction. It is also mentioned that PW3 HC Hari Kishan has stated that the "Ustara" was measured by the IO with the help of plastic scale, whereas, PW5 has stated that "Ustara" was measured by the IO with the help of an iron scale having length of 1 feet. As per the appellant Nitin @ Himanshu these are material contradiction and Ld. MM has over looked all the material contradictions. Witnesses PW3, PW4 & PW5 had deposed that IO had completed the entire writing work and nobody else had helped him in writing, whereas, PW8 ASI Ved Prakash stated that the writing work was done by him and his colleague police officials also helped him. PW3, PW4 & PW8 stated that police officials also CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 3 of 31 helped in sealing the various items of the case property but PW5 stated that he does not assist the IO in sealing work. PW4 has stated that the street light was there at a distance of 50/100 yards but PW5 has stated that the street light was in existent approximately 20 to 30 yards from the spot. There is delay in lodging the FIR and this delay is not explained by the prosecution. The complainant remained silent for 10 days and no explanation has been given by the complainant as to why he has reported the matter to the police after 10 days. Ld. Trial Court has taken an unreasonable and unfair approach in accepting the explanation given by the complainant in reporting the matter to the police after 10 days. PW1 could not tell the colour of the car and he is not able to identify the car. Thus, case is not proved beyond reasonable doubt. Ld. MM has failed to consider that appellant remained in custody for a period of more than 3 years in case FIR No. 18/11, PS Mahender Park but appellant was on bail in this case and he could not obtain the benefit of being in custody in this case as well. It is prayed that judgment dated order on sentence be set aside.
Aggrieved by the judgment dated 25.07.2015 & order on sentence dated 09.09.2015, the appellant has filed the CA No. 75/15 on the same grounds as taken by appellant Nitin @ Himanshu. It is also mentioned that Ld. MM has passed the impugned judgment and order on sentence against law and facts on record and are unsustainable. No public person was made as a witness dring the arrest and recovery of the accused persons. The photographs of accused Harsh i.e. the present appellant was in the photo gallery of the victim's phone which was taken on 14.01.2011 which shows that the photographs of the accused person was CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 4 of 31 taken while he was in police custody. The IO got conducted the TIP proceeding through video conferencing. No recovery was effected and accused was not arrested on the date and time as alleged by the prosecution. It is prayed that judgment and order on sentence be set aside.
Aggrieved by the judgment dated 25.07.2015 & order on sentence dated 09.09.2015, the appellant Rajesh @ Raju has filed the CA No. 22/16 & Old. No. 38/15 on the similar grounds. It is also mentioned that PW3 could not tell the number of proceedings conducted at the place of arrest and he also failed to tell the clothes worn by the convicts at the time of arrest and there are material contradiction. PW4 is not able to tell the registration number of the vehicle. PW8 has also stated that there was dim street light at the spot where the convicts were apprehended. The fine of Rs. 5000/ has been deposited by the appellant. It is prayed that judgment and order on sentence by set aside.
4. I have heard Ld. Counsels for the appellants namely Nitin @ Himanshu, Harsh Sharma @ Dinesh and Rajesh @ Raju and Ld. Substitute Addl. PP for the State at length and perused the record of this court as well as Trial Court record very carefully.
Ld. Counsels for the appellants have argued on the lines of the appeal. On the other hand, Ld. Substitute Addl. PP for the State has argued that there is no illegality or infirmity in the judgment dated 25.07.2015 & order on sentence dated 09.09.2015 and Ld. MM has passed a reasoned judgment. It is also contended that from the testimony of PW3, PW4, PW5 & PW8, it is proved that accused CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 5 of 31 persons were apprehended and one Ustara was recovered from the possession of accused Himanshu @ Nitin and mobile phone of the complainant was also recovered from his possession. The other looted properties in other case were also recovered from accused Rajesh and other accused. It is prayed that appeals be dismissed.
5. In brief the case of the prosecution is that on 09.01.2011, the complainant Surender Kumar was waiting at Peeragarhi Chowk for a bus for going to Bahadurgarh. At about 10:00 PM, one white colour car stopped in front of him and the driver called for passenger going to Bahadurgarh. The complainant and two other persons got inside the car. The other two persons refused to sit in the car as there was no proper space and complainant boarded the car. The driver of the car after going for about 100 meters turned the car on the pretext of taking short cut. Complainant also stated that one person was sitting on the front seat adjoining the driver seat and other person was sitting with him on the back side. Thereafter, the driver of the car turned the vehicle towards the ring road and drove the car towards Madhuban Chowk. The person, who was sitting on the back side has taken out his purse and mobile phone LAVA BC from the pocket of his jacket along with the charger. When the complainant put his hand inside the right side pocket of his jacket, he did not find his purse and mobile phone. When he enquired from the person sitting on the back side then that person started arguing with him and the person, who was sitting on the front seat also started arguing with him. Thereafter, his hands were tied with his muffler and face was covered with CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 6 of 31 his cap. Thereafter, they asked him to get down from the car and they fled away taking brief case of the complainant.
On the basis of statement of the complainant, FIR was registered and investigation was carried out. During investigation, accused persons were apprehended on 19.01.2011 and they made disclosure statement. The mobile phone was recovered from accused Nitin @ Himanshu and wrist watch of the complainant was recovered from the possession of accused Rajesh @ Raju. During investigation, it was found that accused Harsh Sharma @ Dinesh was driving the vehicle and vehicle belongs to his mother. The vehicle was also taken into possession. All the accused refused to participate in the TIP proceedings. During investigation TIP of the case property was carried out and the complainant identified the case property before the Ld. MM. After completion of the investigation, chargesheet was filed.
6. Perusal of the file reveals that the charge u/s. 392/34 IPC was framed against the appellants on 16.10.2012 to which they pleaded not guilty and claimed trial.
7. Trial Court Record shows that the prosecution in total has examined 11 witnesses.
8. PW1 Sh. Surender Kumar, who is complainant in the present case has deposed that he is working as Chief Loco Inspector in Northern Railway CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 7 of 31 having his office at Diesel Shed, Tuglakabad. On 09.01.2011, he was returning from his duty and had deboarded the metro at metro station Peeragarhi at about 10:30 PM. This witness deposed that usually buses of Haryana Roadways and Jeeps and other private vehicles remain available there to go to Bahadurgarh. He has first asked a jeep driver for lift who refused. In the meanwhile, one car came there. The driver of the car was inviting passengers for Bahadurgarh. The witness boarded the same along with two other persons. The driver refused to take any more passenger. This witness further deposed that upon reaching the first cut towards Bahadurgarh, the driver took a Uturn and started driving towards Peeragarhi. The witness protested but the driver said that he is taking a short curt via Nangloi Phatak. The witness further deposed that the passenger sitting on the right side forcibly took out his mobile phone and charger from the right pocket of his jacket. When the witness protested the person sitting on the front seat also started pushing him and caught him so as to restrict his movement. The passenger on his right side took out his purse, Icard, railway card pass, metro smart card and photocopy of the complainant's pan card from his shirt pocket. His purse was containing Rs. 4800/ and some documents. He had a brief case containing some clothes, railway papers, shaving kit, battery, wrist watch and other documents. This witness further deposed that the accused persons covered his face with his own cap and tied his hand with his muffler and threw the witness out of the car near Dipali Chowk, Kali Mata Mandir. He stated that place was quite dark at that time. The witness has correctly identified the accused persons and pointed out the accused Nitin is the person, who was sitting on his right side, accused Rajesh as CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 8 of 31 the person sitting on the front seat and accused Harsh as the person, who was driving the car. This witness further deposed that he managed to untie his hands. He was under shock and did not know what to do. He went to the nearby chowk and boarded a roadways bus to Bahadurgarh. He narrated the incident to the bus conductor who allowed him to travel without ticket as he did not have any money. The witness reached to his house and narrated the incident to his wife. He was in a dilemma regarding reporting of the matter to the police or any other authority. He deposed that it took him eight days in order to decide whether he should report the matter to the police or not. He had gone to PS Mianwali Nagar and reported the matter to the police on 19.01.2011. This witness proved his statement as Ex. PW1/A. PW1 has further deposed that on being enquired by the accused persons about the contents of his brief case, he had replied that it contained his clothes and some important documents. The accused persons had also taken out the key of his briefcase from his pocket. He further deposed that he had requested accused persons to return his SIM card as it was issued to him by the department of railways but they refused saying that they had never returned SIM card of any of their victims. He deposed that that accused who was driving the car took his purse from the person sitting adjacent to the witness and inquired about the cash. He told them that his purse contained Rs. 4800/. This witness proved the site plan as Ex. PW1/B. Witness further deposed that he got released his wrist watch and mobile phone on superdari and proved the mobile phone as Ex. P1 and wrist watch as Ex. P2.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 9 of 31
9. PW2 Smt. Shashi Kiran Sharma is the registered owner of car bearing registration No. DL4CG8976 and mother of accused harsh. She deposed that the said car was seized by the police vide memo Ex. PW2/A. She got the car released on superdari vide superdarinama Ex. PW2/B. This witness proved the car as Ex. P3 and photocopy of RC of car is Mark R.
10. PW3 HC Hari Krishan has deposed that on 19.01.2011, he was posted in the Crime Branch Special Team, Paschim Vihar. On that day, ASI Ved Prakash had received a secret information that some boys were involved in snatching etc. at Peeragarhi bypass and Dhaula Kuan at night and their modus operandi is to offer lift to the public persons. On that information, a raiding team was constituted, headed by ASI Ved Prakash and consisting of HC Jai Bhagwan, HC Vinod, Ct. Sanjay and witness himself. The raiding party along with secret informer left for Deepali Chowk in a government vehicle i.e. Qualis bearing No. DL1CG9897. After about 30 minutes of their reaching the spot, the informer told them that 34 persons were consuming liquor in a vehicle near Kali Mata Mandir towards M2K road. ASI Ved Prakash requested 34 passerby to join the raiding team but none agreed and left the spot without disclosing their names and addresses. Thereafter, the secret informer left the place and the raiding team proceeded towards kali Mata Mandir. They saw that one Maruti Zen car bearing No. DL4CG8976 was parked there and three persons were sitting inside. This witness further deposed that ASI Ved Prakash asked them about their identity. Initially they gave wrong identities CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 10 of 31 but on stern interrogation, they disclosed their names as Harsh, Himanshu and Rajesh. This witness further deposed that on the number plate of the car, letters were written in Hindi while the dights were in English. On search, two mobile phones were recovered from the possession of the accused Harsh. One was G51310 and another was a black and grey phone. From the possession of accused Himanshu, one B5 Lava phone and one Razor was recovered. One Nokia mobile phone and one wrist watch was recovered from the possession of accused Rajesh. IO seized all the recovered articles vide separate seizure memos, the copy of which is Mark A, Mark A1, Mark A2 & Mark A3. The seizure memo Mark A, Mark A1, Mark A2 & Mark A3 were compared with the original and exhibited as Ex. PW3/A, Ex. PW3/B, Ex. PW3/D and Ex. PW3/C respectively.
10. PW4 HC Sanjay has deposed that on 19.01.2011, he was posted at Special Team Crime Branch as Constable. This witness deposed on the same lines as deposed by PW3. He further deposed that he had reached the spot on his motorcycle and all the accused persons were arrested under Section 41.1 (D) Cr.P.C in his presence.
11. PW5 HC Jai Bhagwan deposed on the same lines as deposed by PW3 and PW4.
12. PW6 Sh. Rajender Kumar, Ld. MM has deposed that on 24.01.2011, an application for conducting the TIP of the accused persons were moved by the IO CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 11 of 31 and same was marked to him. This witness further deposed that all three accused persons were produced by the IO in muffled face but they refused to participate in the TIP proceedings. The TIP proceedings of accused Harsh Sharma is proved as Ex. PW6/A, accused Nitin and Rajesh as Ex. PW6/B & Ex. PW6/C. The application of the IO is proved as Ex. PW6/D.
13. PW7 Sh. Satbir Singh Lamba, Ld. MM has deposed that on 17.02.2011, an application for conducting TIP of case property marked to him by Ld. ACMM (West). This witness further deposed that on 25.02.2011, he had conducted the TIP of the case property, SI Rohit Gahlot had produced the witness Surender Kumar in the Court. IO produced one silver grey mobile phone bearing the seal of RKG and one pullinda bearing the seal of PKD containing one gold wrist watch. He arranged the case property along with similar properties. Witness correctly identified the case property i.e. wrist watch and the mobile phone. His statement was recorded. TIP proceedings are Ex. PW7/A and application of the IO is proved as Ex. PW7/B.
14. PW8 ASI Ved Prakash had deposed on the same lines as deposed by PW3 and PW4. He further deposed that two sets of number plates were found lying underneath the mat of the driver's seat of the accused's car. The said number plates were having number DL4CG8976. The disclosure statement of accused persons are Mark CF, CF1 & CF2.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 12 of 31
15. PW9 Ct. Suresh Kumar has deposed that he had joined the investigation with SI Rohit Gahlot on 05.03.2011. This witness further deposed that he had accompanied the IO to C23, Anand Vihar, Uttam Nagar, where they met with Smt. Shashi Kiran, who produced the car bearing No. DL4CG8976 and told them that same was usually driven by her son. The car was seized by the IO.
16. PW10 SI Rohit Gahlot has deposed that on 19.01.2011, he was posted at PS Mianwali Nagar. On that day, Complainant Surender had come to the police station. His statement was recorded which is Ex. PW1/A. The witness prepared the endorsement Ex. PW10/A and got the FIR registered. The true print of FIR No. 09/11 is Ex. PW10/B. This witness further deposed that he went to the place of incident along with the complainant and prepared the site plan. The complainant handed over him the list of stolen articles which is Ex. PW10/C. This witness further deposed that on 20.01.2011 an information was received from Crime Branch vide DD No. 20B regarding apprehension of the accused persons, who has confessed about their involvement in the present case. The certified copy of DD No. 20B is Ex. PW10/D. He came to know that accused persons were arrested by the Staff of PS Mahindra Park in FIR No. 18/11. On 21.01.2011, he collected the copy of Kalandra and attached documents from the Crime Branch. He recorded the statement of recovery witnesses including that of ASI Ved Prakash. On 23.01.2011, he formally arrested the accused persons vide arrest memo Ex. PW10/E, Ex. PW10/E1 and Ex. PW10/E2 respectively. The accused persons were produced before the court on 24.01.2011 in muffled face. He moved an CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 13 of 31 application for TIP of the accused persons which is Ex. PW6/D. However, the accused persons refused to participate in TIP. This witness further deposed that on 10.02.2011, he collected the stolen watch in sealed condition from MHC(M), Crime Branch. He also collected the mobile phone make LAVA and sealed the same with the seal of RKG. The seizure memo of the mobile phone and wrist watch are Ex. PW10/F and Ex. PW10/G. He came to know that the car involved in the incident has already been released in favour of the registered owner. Hence, he reseized the car on 05.03.2011. On 21.02.2011, the complainant accompanied him to Tis Hazari Court Complex and he identified the accused persons on video screen at room No. 16 during their remand proceedings. The complainant also identified his stolen goods in the TIP of the case property. The car was identified by the complainant. Complainant also stated that on that day due to improper lighting, he could not observe the correct color of the car and he had stated that it was of white colour. However, later on he identified the car on 05.03.2011 correctly as golden in color. After completion of the investigation, he submitted the final report to the SHO.
17. PW11 HC Naresh has deposed that on 19.01.2011, he was working as duty officer at PS Mianwali Nagar. At about 11.05 am, SI Rohit Gahlot gave him a tehrir, on the basis of which he registered the present FIR on the computer installed in the PS. This witness further deposed that he had made endorsement on tehrir which is Ex. PW11/A and made kaimy entry in DD register vide DD No. 12A.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 14 of 31
18. After closing of P.E, statement of accused persons u/s. 313 Cr.P.C were recorded. In his statement accused Rajesh has stated that he was falsely implicated in the present case and he was called from his house on the pretext of making some inquiries. His statements were recorded and he was falsely implicated in criminal case. Accused Nitin @ Himanshu has stated that he has been falsely implicated in the present case. He was lifted from near his house, as he was walking on the road near his house with his friend price. The recovery was planted by the IO. The real culprits were not apprehended by the police. He was forced to sign blank papers and he had not given any confession statement. Accused Harsh Sharma @ Dinesh has stated that he has been falsely implicated in the present case and he was picked from near his office at Nehru Motors, Rajouri Garden with the assistance of Prince, who has called him at the main road, Rajouri Garden.
Accused Nitin @ Himanshu has examined his mother Smt. Kiran as DW1.
19. Now, I am dealing with the contentions of ld. Counsels for the appellants one by one.
20. It is vehemently contended by Ld. Counsels for the appellants that there is delay in reporting the matter to the police. The incident is dated 09.01.2011 at about 10:00/11:00 PM whereas matter was reported by the complainant on CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 15 of 31 19.01.2011 at about 11:05 AM and the appellants/ accused persons have been falsely implicated in the present case.
In the present case, complainant has given explanation that after the incident he was terrified and was under shock due to the incident and he could not made the decision regarding the next course of action and went to the nearby chowk and boarded a bus for Bahadurgarh. He reached his house and narrated the incident to his wife and was in delima regarding reporting the matter to police or any other authority and it took about eight days to him to decide that whether he should report the matter to the police.
Admittedly, in the present case mobile phone of silver grey colour was looted and as per testimony of PW1 this phone was given to him by his employer. The briefcase of PW1 was also looted and he was having some official documents in it. I am of the view as the official phone and brief case containing official documents of PW1 were looted by the accused persons, he was under shock and after the eight days, he muster courage to report the matter to the police. The PW1 in his testimony has explained the delay in reporting the matter to the police. Thus, this contention carries no force.
21. PW 1 has given detail version of the incident. He has stated that he had deboarded at metro station Peeragarhi. At about 10/10:30 PM, he was standing on Peeragarhi Chowk, one car came and driver of the car was inviting the passengers for Bahadurgarh. He boarded the car and the moment car approached near first cut towards Bahadurgarh the driver took a Uturn and started driving the CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 16 of 31 same towards Peeragarhi. He protested the same but the driver informed that he is taking a short cut via Nangloi Phatak (railway crossing) for reaching Bahadurgarh. He also stated that in the mean while the person, who was sitting in his right side forcibly took his mobile and charger from his right side pocket and when he protested the passenger sitting on the front seat of the car also started pushing him and caught hold him for restricting his movement. He also deposed that the passenger sitting on his right side took away his purse from his pant's pocket and his I card containing railway card pass, metro smart card and laminated photocopy of PAN card from the pocket of his shirt. His purse was containing a cash of approximately Rs. 4,800/ and some documents. He has also deposed that he was also having one briefcase which was having some clothes, railway papers, shaving kit, battery, wrist watch, some documents, spectacles etc. He has also deposed that accused persons covered his face with his cap and tied his hands on his back with muffler and threw him out of the car in the area near Deepali Chowk, Kali Mata Mandir.
In cross examination PW1 remain firm and he has given the minute details of the incident. He deposed that accused, who was driving the car took his purse from the person, who has sitting adjacent to him and enquired regarding the cash therein. He replied that his purse was containing approximately Rs. 4800/. He has also deposed that after recording his statement, police had visited the place of incident and inspected the same and site plan was prepared in his presence. He has also deposed that he had identified all the accused persons through video conferencing. Ld. Counsels for the accused persons are not able to shatter the CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 17 of 31 testimony of PW1 in any manner. He has also stated during cross examination that the car of the accused was haulted just in front of him approximately 23 meters. The car was being driven by accused Harsh at that time. He has also stated during cross examination that on the rear seat he along with accused Nitin were sitting in the car. He also made clear that the person sitting adjacent to him put his hand in the pocket and took his mobile phone along with charger. PW1 also identified all the accused persons in the court and also admitted that he identified all the accused persons through video conferencing and this fact is also proved by PW10. Thus, as all the accused persons are not able to shatter the testimony of PW1 in any manner and PW1 has identified all the accused persons in the court before the Ld. Trial Court, I am of the view that it can be held that accused persons are involved in the incident. Thus, this contention of Ld. Counsels for the appellants carries no force.
22. It is vehemently contended by Ld. Counsel for appellant Nitin @ Himanshu that PW1 is not able to tell the colour of the car. Thus, testimony of PW1 cannot be taken into consideration and Ld. Trial Court has wrongly relied upon the testimony of PW1.
I fail to appreciate this contention of Ld. Counsel for appellants as incident had taken place during night of 09.01.2011 at about 10:11:00 PM and deposed that car was stopped at Peeragarhi stop and he immediately boarded the car. If the PW1 is not able to tell the colour of the car then it has no consequence to the case of the prosecution. Particularly, when PW1 remain firm during his CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 18 of 31 cross examination. Thus, this contention carries no force.
23. It is contended by ld. Counsels for all the appellants that there is contradiction in the statement of the witnesses as PW3 HC Hari Kishan has stated that IO did the writing work and the same was done while sitting on the road/ earth and PW4 Ct. Sanjay also stated that writing work was done while sitting on the road. While PW5 & PW8 have contradicted PW3 & PW4 by saying that the writing work was done while sitting on the footpath/ Patri and this is also material contradiction.
I am of the view that testimonies of PW3, PW4, PW5 & PW8 corroborates that writing work was done while sitting in the Patri and there is no contradiction in the statements of PW3, PW4, PW5 & PW8. Thus, this contention carries no force.
24. The next contention raised by Ld. Counsel for appellant Nitin @ Himanshu is that PW4 has stated that the street light was there at a distance of 50/100 yards but PW5 has stated that the street light was in existent approximately 20 to 30 yards from the spot.
I am of the view that there is no contradiction regarding the existence of street light at the spot as it is corroborated by all the witnesses regarding existence of street light at the spot. Thus, this contention carries no force.
25. It is contended by Ld. Counsel for appellant Nitin @ Himanshu that CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 19 of 31 PW3 HC Hari Kishan has stated that the "Ustara" was measured by the IO with the help of plastic scale, whereas, PW5 has stated that "Ustara" was measured by the IO with the help of an iron scale having length of 1 feet. Witnesses PW3, PW4 & PW5 had deposed that IO had completed the entire writing work and nobody else had helped him in writing, whereas, PW8 ASI Ved Prakash stated that the writing work was done by him and his colleague police officials also helped him. PW3, PW4 & PW8 stated that police officials also helped in sealing the various items of the case property but PW5 stated that he does not assist the IO in sealing work.
I am of the view that is no major contradiction and IO must have taken help of other police officials in preparing the writing work. Taking about contradictions in the testimony of a prosecution witness it has been held by Hon'ble Supreme Court in "Leela Ram Vs. State of Haryana" 1999 9 (SCC) 525, wherein, it is held as under: "it is indeed necessary to note that one hardly comes across a witness whose evidence does not contain some exaggeration or embellishment sometimes there could even be a deliberate attempt to offer embellishment and sometimes in their over anxiety they may give a slightly exaggerated account. The court can sift the chaff from the grain and find out the truth from the testimony of the witnesses. Total repulsion of the evidence is unnecessary. The evidence is to be considered from the point of view of trustworthiness. If this element is satisfied, it ought to inspire confidence in the mind of the court to accept the stated evidence though not however in the absence of the same".
It is also held in judgment "State of U.P. v. Naresh" (2011) 4 SCC CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 20 of 31 324, wherein the Hon'ble Apex Court held : "In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such a shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishment or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence..... Exaggerations pr se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility". Thus, there is no strength in the arguments of ld. Counsels for the appellant.
26. It is also contended by Ld. Counsels for all the appellants that no public witness was joined by the IO. Thus, it belies the case of the prosecution.
I fail to appreciate this contention of Ld. Counsel for the appellants as it has come in the evidence of IO that he has requested 34 persons to join the investigation but they refused the same without disclosing their names and addresses. Thus, this contention carries no force.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 21 of 31
27. From the testimonies of PW3, PW4, PW5 & PW8, it is clear that police party went for apprehension of the accused on Qualis and motorcycle on the receipt of secret information. All the accused persons were found present in the car bearing No. DL4CG8976 and they were apprehended. One Ustara and one mobile phone B5 Lava having connection No. 9582630345 was recovered from accused Nitin. From appellant Rajesh one Nokia Phone and one wrist watch and other articles were recovered. From appellant Harsh, two mobile phones were recovered. Thus, it is proved that appellants were apprehended in the manner, time and place as deposed by PW3, PW4, PW5 & PW8.
28. In the present case, LAVA mobile phone was recovered from the possession of appellant Nitin @ Himanshu and it has come in the testimony of PW1 that there were about 34 photographs of accused Harsh in the photo gallery of the phone of the victim and the mobile phone shows that the said photographs of the accused are clicked on 14.01.2011. The mobile phone also containing one SMS received from phone number 919891585650 on 19.01.2011 at 18:23 hrs. The mobile phone LAVA was looted from PW1 on 09.01.2011 and photographs of Harsh were clicked in the mobile of the complainant on 14.01.2011. No explanation has been given by the appellant Harsh as to who had clicked photographs from the mobile. Thus, it shows that after looting the mobile phone from the complainant on 09.01.2011, accused Harsh had taken his photographs in CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 22 of 31 the mobile of the complainant. Thus, it shows that phone was used by the appellant after robbery and at no point of time counsel for the accused has given any explanation. Thus, it also fortify the fact that after robbery mobile phone was used by appellant Harsh by taking photographs.
29. In the present case, accused persons have refused to participate in the TIP proceedings and no explanation has been given as to why they have refused to participate in the TIP proceedings. This conduct of the appellants also goes against them and in the present case complainant has correctly identified the case properties. Thus, this also fortified that fact that mobile phone and watch along with other articles were looted from PW1 on 09.01.2011.
Ld. MM has rightly relied on the judgment titled as "Ranjeet Vs. State (NCT of Delhi)", Crl. A. 684/2012 decided on 03.03.2014, where it is observed by the Hon'ble High Court of Delhi that "It is a settled law that the refusal on the part of the appellant without any just reason leads to an adverse inference against the appellants, unless it is shown by the appellants that holding of a TIP was a futile exercise because he had been shown to the witness."
30. In the present case, appellant/ accused Nitin @ Himanshu has examined his mother Smt. Kiran as DW1 and she deposed that accused Nitin @ Himanshu was arrested on 18.01.2011 and not on 19.01.2011. She also admitted that she has not lodged any complaint regarding false arrest of his son and she has not produced any documentary evidence to show that her son is employed with M/s. CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 23 of 31 Chopra. Thus, evidence of DW1 is not helpful to appellant/ accused Nitin @ Himanshu.
31. In view of the above discussions, I do not find any infirmity or illegality in the impugned judgment dated 25.07.2015 passed by the trial court in Case FIR No. 09/2011 and it is upheld. The appeals filed by the appellants are without any merits and same are hereby dismissed.
Announced in the Open Court
on 17.05.2016 (Naresh Kumar Malhotra)
ASJ05 (West)/THC/Delhi
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 24 of 31 IN THE COURT OF SH. NARESH KR. MALHOTRA, ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No. 72/15.
17.05.2016.
IN THE MATTER OF: Nitin @ Himanshu S/o Late Sh. Vinod Kumar, r/o WZ136, Om Vihar, Phase I, Delhi59.
....... Appellant.
Versus.
The State of N.C.T of Delhi.
....... Respondent.
ORDER ON SENTENCE.
1. Ld. Counsel for the appellant has filed an application u/s. 4 & 6 of the Probation of Offenders Act for releasing the convict/ appellant Nitin @ Himanshu on probation. It is also contended by Ld. Counsel for the appellant that at the time of incident the age of the appellant was 20 years and as per Section 6 of the Probation of Offenders Act, the applicant is entitled to probation.
Ld. Counsel for the applicant has placed reliance on judgment titled as "State of Haryana Vs. Prem Chand", where convict/ accused aged about 21 years was released on probation u/s. 376 IPC. He has also placed reliance on judgment AIR 1972 Supreme Court 1295 titled as "Isher Das Vs. CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 25 of 31 2 The State of Punjab", where the accused was granted probation under the Prevention of food adulteration Act. Ld. Counsel for the convict has also placed reliance on judgment AIR 1983 SC 654.
2. In the present case, the appellant has robbed the complainant/ PW1 on the pretext of giving lift in his car. Accused/ applicant Nitin was sitting on the rear seat of the car and he has snatched purse, mobile and charger of the complainant.
In the present case, incident has taken place at about 11:00 PM and as per Section 392 IPC, if the robbery is committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. I am of the view that applicant/ appellant is not entitled to probation and application for probation is hereby dismissed.
3. At this stage, it is contended by Ld. Counsel for the appellant that appellant is aged about 25 years and he is unmarried. He has to support his family. It is prayed that lenient view be taken against him.
4. I have perused the record. The Ld. MM vide order on sentence dated 09.09.2015, sentenced the appellant to undergo rigorous imprisonment for a term of three years and also to pay a fine of Rs. 5000/ failing which they shall undergo simple imprisonment for one month. Benefit of Section 428 Cr.P.C is also given to the appellant.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 26 of 31 3 I am of the view that no further lenient view can be taken against the appellant as Ld. MM has already taken lenient view. The order on sentence dated 09.09.2015 passed by the Ld. MM in case FIR No. 09/2011, PS Mianwali Nagar, u/s. 392/34 IPC is upheld and the appellant is directed to undergo sentence as awarded by the Ld. MM. Fine paid by the appellant before the Ld. Trial Court.
Appellant is entitled to the benefit of Section 428 Cr.P.C and the period of detention, if any, already undergone by him during the investigation, inquiry or trial of the present case before today shall be set off. Copy of judgment and order on sentence be given to the appellant free of cost.
Copy of judgment and order on sentence be sent along with TCR. Appeal file be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON : 17.05.2016. ASJ5 (West), THC, Delhi.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 27 of 31 IN THE COURT OF SH. NARESH KR. MALHOTRA, ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No. 75/15.
17.05.2016.
IN THE MATTER OF: Harsh Sharma @ Dinesh, Son of Late Sh. Chander Prakash, r/o C23, Anand Vihar, Uttam Nagar, New Delhi59..
....... Appellant.
Versus.
The State of N.C.T of Delhi.
....... Respondent.
ORDER ON SENTENCE.
1. It is is contended by Ld. Counsel for the appellant that appellant is aged about 26 years and he is unmarried. He has to support his family. It is prayed that lenient view be taken against him.
4. I have perused the record. The Ld. MM vide order on sentence dated 09.09.2015, sentenced the appellant to undergo rigorous imprisonment for a term of three years and also to pay a fine of Rs. 5000/ failing which they shall undergo simple imprisonment for one month. Benefit of Section 428 Cr.P.C is also given to the appellant.
I am of the view that no further lenient view can be taken against CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 28 of 31 2 the appellant as Ld. MM has already taken lenient view. The order on sentence dated 09.09.2015 passed by the Ld. MM in case FIR No. 09/2011, PS Mianwali Nagar, u/s. 392/34 IPC is upheld and the appellant is directed to undergo sentence as awarded by the Ld. MM. Fine paid by the appellant before the Ld. Trial Court.
Appellant is entitled to the benefit of Section 428 Cr.P.C and the period of detention, if any, already undergone by him during the investigation, inquiry or trial of the present case before today shall be set off. Copy of judgment and order on sentence be given to the appellant free of cost.
Copy of judgment and order on sentence be sent along with TCR. Appeal file be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON : 17.05.2016. ASJ5 (West), THC, Delhi.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 29 of 31 IN THE COURT OF SH. NARESH KR. MALHOTRA, ADDITIONAL SESSIONS JUDGE05, WEST, TIS HAZARI COURTS, DELHI.
C.A. No. 22/16 & Old No. 38/15.
17.05.2016.
IN THE MATTER OF: Rajesh @ Raju, S/o Sh. Khoju Ram, r/o WZ24/3, JG2, Vikas Puri, New Delhi 18.
....... Appellant.
Versus.
The State of N.C.T of Delhi.
....... Respondent.
ORDER ON SENTENCE.
1. It is is contended by Ld. Counsel for the appellant that appellant is aged about 27 years and he is unmarried. He has to support his family. It is prayed that lenient view be taken against him.
4. I have perused the record. The Ld. MM vide order on sentence dated 09.09.2015, sentenced the appellant to undergo rigorous imprisonment for a term of three years and also to pay a fine of Rs. 5000/ failing which they shall undergo simple imprisonment for one month. Benefit of Section 428 Cr.P.C is also given to the appellant.
I am of the view that no further lenient view can be taken against CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 30 of 31 2 the appellant as Ld. MM has already taken lenient view. The order on sentence dated 09.09.2015 passed by the Ld. MM in case FIR No. 09/2011, PS Mianwali Nagar, u/s. 392/34 IPC is upheld and the appellant is directed to undergo sentence as awarded by the Ld. MM. Fine paid by the appellant before the Ld. Trial Court.
Appellant is entitled to the benefit of Section 428 Cr.P.C and the period of detention, if any, already undergone by him during the investigation, inquiry or trial of the present case before today shall be set off. Copy of judgment and order on sentence be given to the appellant free of cost.
Copy of judgment and order on sentence be sent along with TCR. Appeal file be consigned to record room, after necessary compliance.
ANNOUNCED IN THE OPEN (NARESH KR. MALHOTRA) COURT ON : 17.05.2016. ASJ5 (West), THC, Delhi.
CA No. 72/15, CA No. 75/15 & CA No. 22/16 & Old No. 38/15. Page No. 31 of 31