* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 68/2010 & Crl.M.B. 966/2010
% Reserved on: 19th September, 2011
Decided on: 1st November, 2011
KAMAL ..... Appellant
Through Mr. S.D. Dixit, Adv.
versus
STATE NCT OF DELHI ..... Respondent
Through Mr. Manoj Ohri, APP with SI Narender
Kuamr, PS New Ashok Nagar.
AND
+ CRL.A. 356/2010 & Crl.M.B. 436/2010
RAM NATH ..... Appellant
Through Mr. S.D. Dixit, Adv.
versus
STATE ..... Respondent
Through Mr. Manoj Ohri, APP with SI Narender
Kuamr, PS New Ashok Nagar.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. Whether the Reporters of local papers may Not Necessary
be allowed to see the judgment?
2. To be referred to Reporter or not? Yes
3. Whether the judgment should be reported Yes
in the Digest?
Crl.A.Nos. 68 & 356/2010 Page 1 of 11
MUKTA GUPTA, J.
1. By the present appeals the Appellants lay a challenge to the judgment
dated 15th December, 2009 whereby they have been convicted for offences
punishable under Sections 394/34 IPC and the order dated 19th December,
2009 directing them to undergo Rigorous Imprisonment for a period of four
years and to pay a fine of Rs. 3000/- and in default of payment of fine to
further undergo Rigorous Imprisonment for a period of six months.
2. Learned counsel for the Appellant contends that the alleged
Complainant PW1 Aleyamma neither gives the name nor the description of
the accused in her statement. She did not lodge the First Information
immediately after the incident, though she is allegedly a victim. She further
states that after the incident she came to her house and after about an hour she
received a phone call from Church whereafter she went to the Police Station.
It is contended that PW1 does not say about the presence of PW3 Christy
John. Further, also PW3 Christy John does not say that he called the PW1.
Though the Appellants were allegedly apprehended at the spot soon after the
incident but the FIR was registered belatedly after a period of six hours. No
request for TIP was made nor was it conducted. The TSR has neither been
exhibited nor proved. There are contradictions in regard to the time of PW1
reaching the place. Moreover, the accused persons were made to sit
Crl.A.Nos. 68 & 356/2010 Page 2 of 11
unmuffled when they were got identified by PW1. Furthermore no TIP of the
allegedly robbed chain was conducted. PW1 simply walks into the Police
Station and identifies the same. The recovery of the knife is also shrouded in
mystery. It is stated that the knife was handed-over in the hospital and thus
memo of knife was prepared later on, which fact has been denied by PW1.
The TSR has not been exhibited and proved by either of the eye-witnesses and
exhibiting of TSR by one Chandeshwar Sahu is meaningless exercise.
3. Learned APP on the other hand contends that PW3 Christy John heard
the cries of PW1 and chased the Appellants on his motor-cycle and raised an
alarm. Hearing him a PCR also followed and ultimately the PCR stopped the
TSR of the Appellants and apprehended the co-accused after a chase. Further
testimony of PW1 is corroborated by PW3, PW6 and PW7. The testimony of
PW6 corroborates PW3 and there is no contradiction in their version. Exhibit
PW3/A, that is, the sketch of knife bears the signatures of PW3 Christy John.
By the sequence of events it is clear that the FIR was registered on the
statement of Aleyammaa PW1. Further there is one more involvement of the
Appellant Kamal. In view of the fact that it was day light robbery no lenient
view should be taken in favour of the Appellants and the appeal be dismissed.
4. I have heard learned counsel for the parties and perused the record.
Crl.A.Nos. 68 & 356/2010 Page 3 of 11
5. Briefly the prosecution case is that on 31st May, 2009 robbery was
committed by the accused persons by snatching the gold chain of the
Complainant from her neck at point of knife when she was returning to her
home after offering prayer at Saint Marry Church. All the accused persons
were in an auto. As the Complainant protested she sustained injury and the
accused succeeded only in taking part of the chain whereas other part
remained with her. She went back to her home and disclosed the incident to
her daughter as well as her husband through telephone. One Christy John,
who had also come to attend the prayer to the church, saw the incident and
chased the TSR. While chasing he was hit by the auto due to which he fell
down and got injured. Inspite of this he further chased the TSR and in the
meanwhile he saw one police van and informed it. Both the PCR and Christy
John got stopped the TSR and three accused persons namely Kamal, Ramnath
and Pawan were apprehended at spot, however, one accused Ved Prakash
managed to escape who was later apprehended. Knife recovered from
accused Ramnath was handed over to the Investigating Officer at the CBS
Hospital. In the meantime, Complainant Alyemma reached the police station
when she was informed about the apprehending of the robbers. There upon
her statement FIR was registered under Section 394/397/411 IPC.
Investigation was completed and charge sheet was filed against the accused
Crl.A.Nos. 68 & 356/2010 Page 4 of 11
persons. After recording the prosecution evidence and statement of accused
persons under Section 313 Cr.P.C. the learned Trial Court convicted and
sentenced the accused persons as abovementioned. Besides the Appellants the
other two accused persons were also convicted. No appeal has been filed by
them.
6. PW1 Aleyamman in her testimony has narrated the incident. This
witness has deposed that on the day of incident at about 8.40 a.m. in morning
after attending the morning prayers in church she was returning back to her
house situated in phase-III, when a TSR came from behind and stopped by her
side. There were four boys in the TSR, three were sitting at back and fourth
one was driving the said TSR. Out of the four boys, two boys came out from
the TSR near her of which one was having knife. The one, who was having
open knife, asked her to give whatever she was having. On this she became
afraid and put her both hands on her neck. The second boy snatched her gold
chain from the back side. She made a cry. They ran away after taking half of
the chain they were able to snatch while a part of the same remained with her
in her hand. Witness has clearly identified accused Ramnath as the one who
was driving the said TSR, accused Pawan was having knife in his hand and
accused Kamal was identified as the person who had snatched the chain. She
has further deposed that after the incident she was afraid and came to her
Crl.A.Nos. 68 & 356/2010 Page 5 of 11
house. After about an hour she received telephone call from the member of
the church that the person who had snatched the chain had been apprehended
and was asked to go to the police station. Thereafter she went to the police
station where the accused person/Appellants and one Pawan were present and
she identified them as her assailants. She deposed that on the same day in the
evening she again visited the police station and from the pocket of the wearing
shirt of accused Ved Prakash gold chain was recovered. The same was taken
in possession and sealed by the police. Despite an elaborated cross
examination nothing material could be elicited from the witness.
7. PW3 Christy John in his testimony deposed that on the relevant day
when he reached near A-Z Block, Mayur Vihar he heard a cry of a woman.
He saw two boys and one of them was having knife, coming in an auto.
Those persons snatched the chain of a lady. He followed the TSR while
crying „chor chor‟ and at some distance he saw a vehicle of police officials.
He told them about the incident and continued chasing. After some distance
while trying to surpass the TSR he was hit by the TSR, he fell down and
received injuries. He stood up and continued to chase the TSR. The police
officials also came and apprehended the accused persons. This witness has
deposed that the sketch of the knife recovered was prepared in his presence.
He has identified all the accused persons and the knife in the court. In his
Crl.A.Nos. 68 & 356/2010 Page 6 of 11
cross-examination he has stated that he had seen the accused showing knife to
the lady and the knife was a folding knife. He has further deposed that the
police officials met him at the CRPF camp.
8. PW6 HC Komal Prasad has deposed that on 31st May, 2009 he was
posted in PCR. At about 8.40 a.m. he was present near CRPF camp in front
of Mayur Vihar, Phase-III. Three or four persons were going in TSR. One
was holding a knife in his hand and the knife was open. One motorcyclist
who was chasing the said TSR was raising the alarm “Chor Chor” “Pakro
pakro”. On seeing them, we also chased the TSR. On the way, TSR struck
the motor cycle wala and the motorcyclist fell down on the ground. Near
Safeda Park, he overtook the TSR and got the same stopped. Immediately,
three persons came down from the TSR and started running. Out of the three
persons, two persons were apprehended by the public persons who disclosed
their names as Kamal and Ram Nath and third one namely Pawan was
apprehended by him at some distance who was holding the knife with the help
of public persons. He identified all the three in the Court. This witness has
admitted in his cross-examination that motorcyclist was also there when they
apprehended and stopped the TSR. He had asked from the motor cyclist his
name and address. He told his name as Kristy, however, he did not note down
the number of his motor cycle. Further he has deposed that the sketch of the
Crl.A.Nos. 68 & 356/2010 Page 7 of 11
knife recovered was prepared. He identified all the accused persons and the
knife in the court to be the same which was recovered at the time of
apprehension.
9. A perusal of the testimony of PW1 shows that while she was coming
from the Sunday Church the Appellants along with the co-accused snatched
the chain from her back-side with the result half chain was taken by them
whereas the other part of the chain remained in her hands. The Appellants
along with co-convicts ran away and PW1 came back to her house. However,
this incident was witnessed and the cries of PW1 were heard by PW3 who
was on a motor-cycle and chased the TSR. When the Appellant saw that PW3
was chasing them, they hit him with the result he fell down and sustained
injuries. In the meantime the PCR also which was standing on the way
followed the TSR and stopped it. The accused started running away when the
Appellants were caught by the public and the co-accused Pawan was caught
by the PW6. The testimony of PW1 and PW3 is corroborated by their MLCs
Exhibit PW2/A and PW2/B. As per PW2 Dr. K.G. Gupta PW1 received
multiple linear abrasions on the back, the neck and upper part of back,
whereas PW3 received abrasions over the left elbow and right knee. The
injuries clearly corroborate the version of PW1 and PW3. Further a perusal of
the sequence of events shows that since PW1 left for her house she was called
Crl.A.Nos. 68 & 356/2010 Page 8 of 11
after the accused were apprehended. She was medically examined on the
same day at 3.15 PM.
10. A perusal of Ex.PW3/A the sketch of the knife shows that it has a blade
of 20.8 cms and the handle 24.2 cms. Thus, it is a fairly large knife which
shows that two Appellants and the co-accuseds were armed with the intention
of committing day-light chain snatching. Further from the testimony of PW3
it is apparent that after the recovery of the knife which seizure memo
Ex.PW3/B was duly signed by PW3 he left the hospital. By the time the PW1
was called and she reached the Police Station, the accused persons had been
caught red-handed at the instance of PW3. Since the Appellants were
apprehended at the spot in the presence of public at the instance of PW3 an
eye witness, I do not find any merit in the contention of the learned counsel
for the Appellant that TIP was not conducted and hence the identification
should not be believed. Further the snatched part of the chain was also
recovered in the evening at the instance of co-accused Ved Prakash. A
photograph of the said chain has been exhibited during the trial.
11. No doubt as urged by the learned counsel for the Appellants there is a
gap in the prosecution case as PW3 states he did not call up PW1 and PW1
states that she received a phone call from a member of the church and then she
went to the police station where her statement was recorded. However, the
Crl.A.Nos. 68 & 356/2010 Page 9 of 11
fact that the person who identified PW1 resulting in a phone call to be made to
her was either not traced or no efforts were made to trace is not such a lacuna
in the prosecution case so as to demolish the evidence of PW1 and PW3, who
are both injured witnesses. The possibility that being a Sunday morning
church time and as PW1 use to go to church regularly someone disclosed her
identity cannot be ruled. The present is a case of PW3 witnessing the incident
and chasing the culprits resulting in their apprehension and not a case of
circumstantial evidence.
12. As regards TIP of the chain it may be noted that the Appellants were
able to take away part of the chain which was less than half. The other part
remained with PW1. PW8 the Investigating Officer has clearly stated that the
part of the chain recovered from the co-accused Ved Prakash was identified
by PW1 and thereafter it was sealed. PW1 has stated that she got the part of
chain on superdari from the Court, though exact date she did not remember.
She also stated that she produced the complete chain in the Court as she got
attached with a kunda. No question has been put to the witness that the two
parts were not identical. In view of the fact that part chain was available with
the non-conducting of TIP of the part chain does not demolish the prosecution
case. Thus, I find no merit in the contentions raised by learned counsel for the
Appellants.
Crl.A.Nos. 68 & 356/2010 Page 10 of 11
13. The appeals and the pending applications are dismissed being devoid of
merits.
(MUKTA GUPTA)
JUDGE
NOVEMBER 01, 2011
‘ga’
Crl.A.Nos. 68 & 356/2010 Page 11 of 11