Delhi High Court
Trilok Kapoor & Anr. vs The State on 3 December, 2009
Author: V. K. Jain
Bench: V.K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No. 893-94/2006
# TRILOK KAPOOR & ANR. ..... Appellant
Through: Mr. Shakti Chand Sharma
Versus
THE STATE ..... Respondent
Through: Mr. O.P. Saxena, APP * CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes : V.K. JAIN, J. (oral)
1. This is an appeal against the judgment dated 16 th September, 2006, whereby the appellants were convicted under Section 392 of IPC read with Section 397 thereof and were sentenced to undergo R.I. for 7 years, each.
2. The case of the prosecution is that on 8th July, 2003, at about 3.45 AM, the complainant Praveen Kumar, driver of Qualis vehicle No. HR-55 AT-3575 stopped the vehicle on outer ring road near JNU bus stand, in order to answer the call of the nature. One Maruti car No. DL-1CD-5415 came there and stopped near him. Two boys, one of whom was tall and the other one was short came out of Maruti car. Crl.A. 893-94/2006 Page 1 of 9
The short boy put a knife on the right side of the complainant, whereas the tall boy put a revolver on the left side of his face, and threatened to shoot him, in case he raised alarm. The complainant was then put ahead of the rear seat of the maruti car and the key of the Qualis was snatched from him and was given to the short boy. The person, who was driving the maruti car reversed his car. The boy wielding knife then reversed the Qualis vehicle. The tall boy was sitting on the rear seat. He took out the purse of the complainant which contained Rs.200/- in cash. Leaving the complainant and the Maruti car near Uday park, culprits fled away in Qualis vehicle.
3. The complainant came in the witness box as PW-7 and supported the case set out in the FIR. He stated that on 8 th July, 2003, when he stopped the vehicle on outer ring road near JNU bus stand at about 3.45 PM and came out of the vehicle for going to urinal, one Maruti car No. DL-1CD-5415 came and stopped near his Qualis car and two boys came out of that car. One of the boys was having a revolver and the other was having knife with him. The boy, who was carrying revolver pointed it out at his temple whereas the boy carrying knife pointed it near his stomach and put him Crl.A. 893-94/2006 Page 2 of 9 in the Maruti car. The person, who was carrying pistol snatched the keys of the Qualis and handed over the same to the person, who was carrying knife. They threatened to shoot him in case he raise alarm. There was another person, who was driving Maruti car. These persons then turned back the Maruti car as well as the Qualis car. The person, who was having revolver took out his purse containing Rs.200/-. Dropping him at Uday park, these persons went away in his Qualis, leaving Maruti car behind. The complainant identified the appellant Subhash as the tall person, who was carrying revolver and the appellant Trilok Kapoor as the person, who was carrying knife. He further stated that on receipt of notice, he had gone to Tihar Jail, where he was told that accused persons had refused to join TIP. Thereafter, he came to Patiala House courts on 6th December, 2003 where he saw both the appellant and identified them.
4. PW-8 Ms. Barkha Gupta, Metropolitan Magistrate has stated that on 4th December, 2003, she went to Central Jail No. 3 for conducting TIP of Subhash. The accused Subhash was produced before her and was identified by the Assistant Superintendent of Jail. Subhash, however, refused to join Crl.A. 893-94/2006 Page 3 of 9 TIP vide his statement Ex. PW 8/A. She has further stated that on the same day, accused Trilok Kapoor was also produced and identified by the Assistant Superintendent of Jail. Trilok Kapoor also refused to join TIP vide statement Ex.PW 8/E.
5. Though a number of other witnesses have also been produced by the prosecution, their testimony need not be disclosed. PW-2 Raj Kumar Sharma is the owner of Qualis vehicle No. HR-55 AT-3575 and he has stated that this car was robbed from a driver Parveen Kumar, who was driving in the night intervening 7th/8th July 2003.
6. In their statement under Section 313 Cr.P.C. both the appellants denied the allegations against them. They, however, admitted that they had refused to join TIP in Jail on 4th December, 2003.
7. I see no reason to disbelieve the testimony of the complainant. There is no enmity or ill-will between him on one hand and either of the appellants on the other hand. Therefore, he had absolutely no reason to depose falsely against them.
8. The complainant has duly identified both the appellants during trial. The appellants refused to join TIP in Crl.A. 893-94/2006 Page 4 of 9 Jail on 6th December, 2003 on the ground that they had been shown to the witness in the Police Station. However, there is absolutely no evidence on record to show that either of the appellants was shown to the complainant before 4th December, 2003 when they refused to join TIP, while lodged in the Jail. When the complainant came in the witness box, no suggestion was given to him that the appellants had been shown to him in the Police Station. According to the complainant, he saw the appellants in Court on 6 th December, 2003, after they had already refused to join TIP in Jail on 4th December, 2003. Thus, there was no justification for either of the appellants to refuse to join the TIP. If the person accused of an offence, refuses to join TIP, without any justification, he does so at his own risk and it is open to the Court to presume that had he participated in the TIP, he would have been identified by the witness and that in fact was the reason behind his refusing to join the TIP. Similar view was taken by the Hon‟ble Supreme Court in Suraj Pal vs. State of Haryana (1995) 2 SCC 64. The identification of the appellants in the Court, coupled with their refusal to join TIP, without any reasonable ground, is sufficient to establish their identity.
Crl.A. 893-94/2006 Page 5 of 9
9. The testimony of the complainant shows that the appellant Subhash had used a revolver in commission of robbery by putting it on his temple and threatening to kill him. His testimony further shows that the appellant Trilok used a knife by putting it near his stomach and threatening to kill him. In Phool Kumar Vs. Delhi Admn. Admn. AIR 1975 SC 905 the accused was carrying a knife in his hand at the time the robbery was committed. It was found from the deposition of PW-16 that the appellant/accused Phool Kumar had a knife in his hand. The Hon‟ble Supreme Court held that he was therefore carrying a deadly weapon. In Salim Vs. State 1987(3) Crimes 794 the Hon‟ble High Court of Delhi held that to categorize knife or to fix its sixe for it to be a deadly weapon may not be appropriate. It was held that to say that a knife to be a deadly weapon should be of a particular size would not be a correct statement. In State of Maharashtra vs. Vinayak 1997 Cr.L.J. 3988 Bombay High Court held that knife is a deadly weapon within the ambit of expression „deadly weapon‟ used in Section 397 of IPC. Therefore, irrespective of the size, any knife is a deadly weapon.
10. It is evident from the testimony of the complainant that the robbery was committed in furtherance of common intention of the appellants. Both of them used deadly Crl.A. 893-94/2006 Page 6 of 9 weapons in committing the robbery. Hence the charge under Section 392 of IPC read with Section 397 thereof has been duly proved against both of them and they have rightly been convicted accordingly. The conviction of the appellants is accordingly maintained. The minimum prescribed substantive sentence being 7 years, as provided in Section 397 of IPC, there is no scope for interference with the sentence awarded to the appellants.
11. The appellant Trilok Kapoor has filed an application under Section 427 of the Code of Criminal Procedure seeking direction that the sentence awarded in this case may be directed to run along with the sentence awarded to him in the case registered vide FIR No. 334/2003 of Police Station Vasant Kunj, where he has been convicted under Section 392 of IPC read with Section 397 thereof.
12. Section 427 (1) of the Code of Criminal Procedure, to the extent, it is relevant, reads as under:
"427. Sentence on offender already sentenced for another offence. (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court Crl.A. 893-94/2006 Page 7 of 9 directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under section 122 I default of furnishing securing is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately."
13. In Ahsaan vs. State 2007 [1] JCC 351, a judgment relied upon by the learned counsel for the appellant, the appellant was convicted under Section 396 and 395/397 of IPC in the case which was subject matter of Criminal Appeal No. 40 of 2003. He had also been convicted under Section 392/397 of IPC in another case which was subject matter of Criminal Appeal No. 823 of 2001. His request for granting him benefit of Section 427 of Code of Criminal Procedure was declined by this Court. A Special Leave Petition was filed by Ahsaan against the judgment of this Court. On grant of leave, the Special Leave Petition (Crl.) No.1686 of 2009 was converted into Criminal Appeal No. 1068 of 2009 which was disposed of vide order dated 14th May, 2009 and the Hon‟ble Supreme Court having regard to the discretion vested in the Court under Section 427 of the Code of Crl.A. 893-94/2006 Page 8 of 9 Criminal Procedure directed that all the sentences in both the appeals shall run concurrently.
14. The appellant Trilok Kapoor is in custody since 12th November, 2003. He has thus spent more than six years in jail. Also, he comes from a poor strata of the society. Keeping in view all the facts and circumstances of the case, it is directed that the sentence awarded to the appellant Trilok under Section 394 of IPC in the case subject matter of Criminal Appeal No. 934 of 2005, which is being disposed of today by a separate order, shall run concurrently with the sentence awarded to him in the case which is subject matter of the present appeal.
One copy of this order be sent to concerned Jail Superintendent for information and compliance.
Appellant Subhash is directed to surrender forthwith before the Trial Court.
One copy of this order be also sent to the Trial Court within three days.
(V.K.JAIN) JUDGE DECEMBER 03, 2009 AG/bg Crl.A. 893-94/2006 Page 9 of 9