Crl.A.No.16/2005 Page 1 of 35 * IN THE HIGH COURT OF DELHI AT NEW DELHI + Crl.A.No.971/2004 % Reserved on: 19th February, 2010 Date of Decision: 24th February, 2010 # RAJINDER KUMAR ..... Appellant ! Through: Mr. Rakesh Kumar and Mr. Naval Kishor, Advs. versus $ THE STATE ..... Respondent ^ Through: Mr.Jaideep Malik, APP Crl.A.No.16/2005 # NARINDER ..... Appellant ! Through: Mr. Rakesh Kumar and Mr. Naval Kishor, Advs. versus $ THE STATE ..... Respondent ^ Through: Mr.Jaideep Malik, APP Crl.A.No.258/2005 # SIKANDER ..... Appellant ! Through: Mr. Rakesh Kumar and Mr. Naval Kishor, Advs. versus $ THE STATE ..... Respondent ^ Through: Mr.Jaideep Malik, APP Crl.A.No.741/2005 # RAKESH & PAPPU ..... Appellant ! Through: Mr. Ravindra Narayan Crl.A.No.16/2005 Page 2 of 35 versus $ THE STATE ..... Respondent ^ Through: Mr.Jaideep Malik, 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. 1. By this common judgment, I shall dispose of all the four appeals referred above which are directed against the Judgment dated 6th November, 2004 and Order on Sentence dated 9th November, 2004, whereby all the appellants were convicted under Section 392/34, 394 and 506 of IPC and the appellant Rakesh was also held guilty under Section 397 of IPC and Section 25 of Arms Act. All the appellants were sentenced to undergo RI for 10 years and to pay fine of Rs.5,000/- or to undergo RI for 6 months each in default under section 392/34 of IPC and were further sentenced to Crl.A.No.16/2005 Page 3 of 35 undergo RI for 5 years each and to pay fine of Rs.2,000/- each or to undergo imprisonment for four months each under Section 394 IPC. They were also sentenced to undergo RI for 3 years and to pay fine of Rs.1,000/- each or to undergo RI for three months in default under Section 506 of IPC. The appellant Rakesh was sentenced to undergo RI for 7 years and to pay fine of Rs.3,000/- or to undergo RI for 4 months in default under Section 397 of IPC and to undergo RI for three years and to pay fine of Rs.1,000/- or to undergo RI for three months in default under Section 25 of Arms Act. 2. On the night intervening 29/30th December, 2003, on receipt of copy of DD No.26-A regarding car No.DL2CA 5531 with four persons in it, having been intercepted near Sultanpuri Crossing, the IO of this case reached the spot, where ASI Jaslin Kongari of Police Control Room produced the appellants before him and informed that they had been caught with stolen goods on the identification of the complainant Sunil and his companion Manoj. The articles produced by ASI Jaslin Kongari and one knife were also seized from him. He also found that Registration No. DL9C 2337 had been etched on the glasses of the car, whereas the Crl.A.No.16/2005 Page 4 of 35 number plate fixed on it bore Registration No. DL2CA 5531. 3. In his complaint to the IO, Sunil Arora stated that on 29th December, 2003, he alongwith his companion Manoj, was standing at Peeragarhi Chowk at about 11.30 pm. One Maruti car No.DL2CA 5531 stopped near them. Two boys, including driver, were sitting in the car and were asking for passengers for Bahadurgarh, Sapla and Rohtak. Since they agreed to drop the complainant and his companion to Bahadurgarh, they occupied the rear seat of the car. Two more boys, who were present on the bus stop, also joined them on the rear seat of the car saying that they had to go to Rohtak. When they reached ahead of Nangloi, the persons sitting on the right side of the car, took out a knife, put it on his neck and asked him to take out whatever he had. When the complainant avoided handing over his belongings to him, that person gave a knife blow to him which the complainant was able to avert. The person, who was sitting on the left side of Manoj, gave a fist blow to him. Having got scared, the complainant handed over his mobile phone, wrist watch and Rs.4700/- in cash, whereas Manoj handed over his gold chain, mobile phone and gold ring, which he was wearing, Crl.A.No.16/2005 Page 5 of 35 and Rs.2500/- in cash to them. The car driver then stopped the vehicle at a deserted road. The complainant and his companion Manoj were brought out of the car and were searched. The robbers then sped away in the car, after threatening to kill the complainant and his companion. When the complainant and his companion were coming out of the road on which they were left, they noticed a PCR van coming on the road. They narrated the incident to the police officials travelling in the PCR van with them. When they reached near Police Station, it came to be known that one car No.DL2CA 5531 had been stopped near Sultan Puri Railway Crossing by another PCR van. When they reached near Sultan Puri railway crossing, they found car No.DL2CA 5531 and four persons whose names came to be known as Narinder, who was driving the car, Rajinder, who was sitting on the front seat with the driver, Rakesh, who was sitting with the complainant and Sikander, who was sitting with Manoj. 4. The complainant Sunil came in the witness box as PW-4 and stated that on 29th December, 2003 when he was standing on the bus stand of Peeragarhi Chowk, at about 11.30 pm, alongwith his friend Manoj, waiting for the bus, Crl.A.No.16/2005 Page 6 of 35 and finding no bus coming, they were intending to take lift in the vehicle. One Maruti car came near them. Two persons, including driver, were sitting in the car. They agreed to leave them at Bahadurgarh. Thereupon, he alongwith his friend Manoj, sat in the car. Two persons, who were standing at the bus stand, also sat with them saying that they wanted to go to Rohtak. When they reached near Nangloi, the person, who was sitting with him, put a knife on his neck and asked him to hand over whatever he had. When he refused, that person tried to give a blow to him with a knife which he was able to avert. The person who was sitting on the side of Manoj, then gave a fist blow on the mouth of Manoj. Being afraid, he handed over his mobile phone, Ex.P-1, cash amounting to Rs.4700/- and wrist watch Ex.P-2 to them, whereas Manoj handed over his gold ring, gold chain, mobile phone and cash amounting to Rs.2500/- to them. The complainant identified all the four appellants and stated that the appellant Narinder was driving the Maruti car, whereas Rajinder was sitting on the front seat. Rakesh, according to him, was the person, who had put knife on his neck, whereas Sikander was the person who was sitting with Manoj and had given fist blow to Crl.A.No.16/2005 Page 7 of 35 him. He further stated that after turning on a Mundka-Finari road, those persons took them out of the car, searched them and left after threatened to kill them in case they disclosed the incident to anyone. When they were coming at G.T. road, they saw one PCR van coming there and narrated the incident to PCR officials who immediately flashed the message about the incident on the wireless. When they were coming towards Police Station Nangloi in PCR van, the officials received a message that a Maruti car had been stopped near Sultan Puri Railway Crossing by another PCR van. PCR officials took them to that place where all the four accused were found standing with police officials. On their search by police officials, his mobile phone was recovered from the possession of the appellant Narinder, whereas his watch and cash amounting to Rs.4700/- was recovered from the possession of Rakesh. The mobile phone of Manoj was recovered from the appellant Rajinder, whereas his ring, chain and cash amounting to Rs.2500/- from the possession of Sikander. He has further stated that Maruti car was seized by the police vide memo Ex.Pw-4/h which bears his signature at point-A. He further stated that knife Ex.P-4 was also Crl.A.No.16/2005 Page 8 of 35 recovered from the possession of the appellant Rakesh, after other police officials reached the spot. 5. Manoj, companion of the complainant, came in the witness box as PW-5 and corroborated the version given by the complainant. He also stated that he sustained injury on his lower lip when the appellant Sikander gave a fist blow to him. He identified his mobile phone Ex.P-5, gold ring, Ex.P-6 and chain Ex.P-7. He also identified the knife which was recovered from the appellant Rakesh. 6. PW-1 ASI Jaslin Kongari stated that on 29th December, 2003, he was in charge of PCR van P-65 and was on duty from 8.00 pm to 8.00 am. At about 12.45 pm, he received a message on wireless about robbery by four boys travelling in Maruti car No.DL2CA 5531. At that time, his van was parked at Nangloi Chowk. He saw one Maruti car of white colour coming from Haryana side towards Delhi and directed his driver to chase that car. He also noticed that the number of the car tallied with the number given in the wireless message. He got the car stopped and informed the control room. Another PCR van reached there, with two boys who had been robbed by these four boys of Maruti car. On his direction, Crl.A.No.16/2005 Page 9 of 35 Constable Samarveer Singh conducted their personal search to ascertain arm in their possession. In the meantime, senior police officials also reached there and on the directions of SI Dariao Singh, the boys were searched again and one gold chain, one mobile phone were recovered from the possession of Sikander, whereas Rs.3100/- or Rs.2100/- in cash were revered from Rakesh besides one buttondar knife. Cash amounting to Rs.4700/- recovered from the possession of Sikander. Four mobiles were also recovered from the possession of accused persons. Out of them, two belonged to the complainant and his companion. The witness has identified the Nokia phone Ex.P-1, wrist watch, Ex.P-2, knife, Ex.P-4, other mobile phones Ex.P-5, gold chain, Ex.P-6, gold chain, Ex.P-7, besides currency notes. 7. PW-6 Head Constable Suresh Kumar was posted in MHCM, Police Station Nangloi on 30th December, 2003. He stated that on that date, case property, including one Maruti car, was deposited in Malkhana and the relevant copies of the registers are Ex.PW-6-A/B. PW-7 Shakti Singh produced the record relating to PCR vehicle No.69 and 65 and stated that as per record, vehicle No.P-65 was under charge of ASI Jaslin Crl.A.No.16/2005 Page 10 of 35 Kongari, whereas PCR van P-69 was under the charge of Ram Prakash. 8. PW-8 Ashok Kumar was on duty in PCR P-69 in the night intervening 29/30th December, 2003. He stated that about 12.18 am when they reached Mundka-Figni Road, they saw two boys running towards their vehicle. The information given by those boys about robbery with them by four persons was flashed on by them on wireless and they went towards Police Station Nangloi alongwith those boys. In the meantime, they received a wireless message from P-65 regarding one Maruti car with four boys in it having been intercepted. Thereafter, they went to Railway Crossing Sultan Puri where they saw the accused persons in the custody of police officials. PW-9 Head Constable Ram Prakash, who was the in-charge of PCR van P-69 on 29th December, 2003, has corroborated testimony of PW-8. He also identified the knife Ex.P-4 which was seized in his presence and identified all the four accused present in the Court. 9. PW-10 Constable Samarveer Singh was on duty in PCR van P-65 on 29th December, 2003 alongwith PW-1 ASI Jaslin Kongari. He has corroborated the deposition of PW-1 and has Crl.A.No.16/2005 Page 11 of 35 stated that on reaching Rohtak Road, they received wireless message about robbery by four persons in car No.DL2CA 5531 and when they were going to their base point, they noticed one Maruti car turning towards Punjabi Basti Sultan Puri. When they got the car stopped, it was found to be the same car and all the four accused persons in the Court were sitting in that car. He further stated that on search of the appellant Rakesh, who tried to run away from the spot, one buttondar knife Ex.P-4 was recovered from his possession. 10. PW-11 Head Constable Ajay, who was on duty with SI Madan Lal in Police Station Nangloi on 29th December, 2003 stated that when they reached the spot, one Maruti car bearing No.DL2CA 5531 was found parked there and all the four accused persons were also found there having been apprehended by PCR officials. He further stated that one buttondar knife Ex.P-4 was also revered from the possession of the appellant Rakesh. PW-12 Head Constable Sri Bhagwan is the another police official, who was on duty in PCR van P- 65 in the night intervening 29/30th December, 2003. He also has corroborated the testimony of ASI Jaslin Kongari and PW-10 Constable Sumervir Singh. He has also identified the Crl.A.No.16/2005 Page 12 of 35 knife Ex-P-4 recovered from the possession of the appellant Rakesh besides mobile phone Ex.P-1 and P-5 and watch Ex.P-2. 11. PW-13 ASI Anant Saroop was the driver of PCR van P-69 in the night intervening 29/30th December, 2003. He corroborated the testimony of PW-8 Ashok Kumar and PW-9 Head Constable Ram Prakash. 12. PW-14 Constable Mundey Gyanoba went to the spot alongwith SI Vipin Kumar in the night intervening 29/30th December, 2003. According to him, when they reached the spot, one Maruti car No.DL2CA 5531 was found stationed there alongwith six persons from the public and PCR officials. 13. PW-15 ASI Madan Lal went to the spot in the night intervening 29/30th December, 2003 alongwith Constable Ajay. According to him, when they reached the spot, all the four accused were present there. Two boys had also reached there in another PCR vehicle. ASI Jaslin Kongari produced one knife which had been recovered from the appellant Rakesh. According to him, SI Vipin Kumar also reached the spot. He has identified buttondar knife Ex.P-4, stated to have been recovered from the possession of the appellant Rakesh. Crl.A.No.16/2005 Page 13 of 35 14. SI Vipin Kumar is the IO of this case. He stated that on 30th December, 2003, he, on receipt of copy of DD No.26-A, Ex.P-2/A, reached the spot alongwith Constable Mundey Gyanoba, where PCR officials were found. Complainant Sunil and his companion Manoj as well as all the four accused were present there. The recovered articles were handed over to him. He has identified the mobile phones Ex.P-1 and Ex.P-5 and wrist watch Ex.P-4. 15. In their statement under Section 313 Cr.P.C., all the appellants denied the allegations against them and claimed to be innocent. The appellant Sikander stated that he was lifted from his house. Similar claim was made by the appellant Rajinder, Narinder and Rakesh. 16. DW-1 Rajni is the sister of the appellant Rajinder. She has stated that on 30th December, 2003 at about 7.30 am, two police officials came to their house and took Rajinder alongwith them on the pretext that he was to be interrogated. DW-2 Sube Dar is the father of the appellant Rakesh. He stated that on 30th December, 2003, at about 2.30 am, two police officials came to their house and took his son Rakesh with them on the pretext that they wanted to interrogate him. Crl.A.No.16/2005 Page 14 of 35 17. It was first contended by the learned counsel for the appellant Rakesh that since the appellants were not previously known to PW-4 and PW-5 and were not arrested in their presence, they having been arrested by PCR officials before PW-4 and PW-5 reached the place where they were apprehended, it was obligatory for the prosecution to subject them to Test Identification Parade and in the absence of any such effort on the part of the Investigating Officer, identification of the appellants by PW-4 and PW-5 in the Court is not sufficient to establish their identity and cannot form the basis of their conviction. 18. It is settled proposition of law that when the accused is not previously known to the witness, and is not apprehended on the spot, there is no evidence to corroborate identification during trial, and there are no special features in the testimony of a witness, which persuade the Court to accept identification in the Court, even without any corroborative evidence, it is obligatory for the prosecution to get his identity verified in a Test Identification Parade. However, in the present case, there is ample corroborative evidence on record to show that the appellants alone are the persons who had Crl.A.No.16/2005 Page 15 of 35 robbed PW-4 and PW-5, of their belongings. 19. The robbery took place in a Maruti car bearing registration No.DL2CA 5531. The robbery took place past midnight in the night intervening 29/30th December, 2003. The persons involved in robbery were found in number. The appellants (4 in numbers) were found travelling in a Maruti car, which bore Registration No.DL2CA 5531, soon after the commission of robbery. The appellants being found travelling in a Maruti car bearing same Registration Number which PW- 4 and PW-5 had found on the Maruti car in which they were robbed and that too soon after the robbery had taken place, is a strong corroborative evidence against the appellants, particularly when they have not offered any explanation for their travelling in a Maruti car bearing Registration No.DL2CA 5531, soon after the commission of robbery. It has also come in the testimony of a number of witnesses, including PW-4 and PW-5, that the articles stolen from the possession of PW-4 and PW-5 were recovered from the possession of the appellants when they were searched in the presence of PW-4 and PW-5, after they had been apprehended while travelling in Maruti car No.DL2CA 5531. Since there is Crl.A.No.16/2005 Page 16 of 35 no explanation from the appellants for their being found in possession of the stolen articles almost immediately after the robbery had taken place, recovery of stolen articles from them is yet another corroborative evidence which leaves no reasonable doubt that they were the persons who had robbed PW-4 and PW-5 of their belongings in the night intervening 29/30th December, 2003. 20. Identification of the appellants by PW-4 and PW-5, coupled with their having been apprehended in the car bearing Registration No.DL2CA 5531 and their being found in possession of the stolen articles is sufficient to establish their identity and it was not obligatory for the Investigating Officer to get them identified in a judicial which is Test Identification Parade. 21. In fact, even if identification of the appellants by PW-4 and PW-5 is altogether excluded from consideration, other evidence available on record by itself is sufficient to establish the guilt attributed to them. The testimony of PW-4 and PW- 5 shows that the persons who robbed them of cash, mobile phone, watch, chain and ring, were travelling in a Maruti car which had a number plate bearing Registration No.DL2CA Crl.A.No.16/2005 Page 17 of 35 5531 on it. The testimony of PW-9 Head Constable Ram Prakash who was on duty in PCR vehicle P-69 during that night shows that when PW-4 and PW-5 met them in the night intervening 29/30th December, 2003, they informed them that they had been robbed in Maruti car No.DL2CA 5531 and he flashed a wireless message accordingly to Police Control Room. The testimony of PW-7 Shakti Singh shows that this witness was in charge of PCR van P-69 in the night intervening 29/30th December, 2003. Hence, there is absolutely no reason to disbelieve his testimony. Ex.P-2/A is copy of DD No.2-A recorded at Police Station Nangloi at about 1.12 am on 30th December, 2003. It shows that the information given to the Police Control Room by police officials travelling in PCR van P-69 regarding robbery in Maruti car No.DL2CA 5531. This was the same car, in which PW-8 and PW-9 were on duty in the night intervening 29/30th December, 2003. Therefore, there can be no reasonable possibility of car Registration No.DL2CA 5531 having been introduced at a later stage. This number had been flashed to Police Control Room even before the appellants were apprehended by the PCR officials on duty in PCR Vehicle No. Crl.A.No.16/2005 Page 18 of 35 P-65, at Railway Crossing Sultan Puri. I, therefore, have no hesitation in accepting that the person, who robbed PW-4 and PW-5 of their mobile phones, watch, jewellery and cash, were travelling in a Maruti car which, at that time, was having Registration No.DL2CA 5531. The testimony of PCR officials, who were travelling in PCR P-65 in the night intervening 29/30th December, 2003, namely, PW-10 Constable Sumervir Singh and PW-1 ASI Jaslin Kongari shows that it was Maruti car being Registration No.DL2CA 5531 which they had chased and in which the appellants were found travelling. PW-10 Constable Sumervir Singh has specifically stated that after receipt of message, information about crime committed in Maruti car No.DL2CA 5531, they found a car turning towards Basti Sultan Puri and when they got it stopped, they found it was the same car. PW-1 Jaslin Kongari has specifically stated that they received a message on wireless about robbery by four persons travelling in Maruti car No.DL2CA 5531 and before Railway Crossing of Sultan Puri, he noticed that a Maruti car coming from Haryana side was having the same number which wireless message flashed and it was that car which they had got stopped and in which Crl.A.No.16/2005 Page 19 of 35 the appellants were found travelling. Thus, the testimony of PW-1 and PW-9 shows that the appellants were traveling in the intervening night of 29/30th December, 2003, in a car bearing same registration number which had been displayed on the car in which PW-4 and PW-5 were robbed of their belongings. The testimony of PW-7 also shows that PW-1 ASI Jaslin Kongari was the in-charge of PCR van P-65 in the night intervening 29/30th December, 2003 and, therefore, his presence in PCR van during that night cannot be disputed. Even otherwise, there is no reason to disbelieve the testimony of police officials travelling in PCR vans P-65 and P-69, since none of them belonged to the local Police Station and none of them had any reason to make a false deposition against the appellants. Though the case of the prosecution is that the number plate fixed on the car was a fake one and true registration number of car used in the crime was DL9C 2337, that, to my mind, is of no consequence since registration number on the car, in which robbery was committed, was the same which was found on the car in which the appellants were found travelling soon after the robbery had taken place. The testimony of PW-6 Head Constable Suresh Kumar, Crl.A.No.16/2005 Page 20 of 35 MHC(M) of Police Station Nangloi, coupled with the copies of relevant registers of Police Station Ex.PW-6/A & B shows that it was Maruti car No.DL2CA 5531 which was deposited in Malkhana on that day. The seizure memo of the car Ex.PW- 4/M also shows that it was car having number plate bearing Registration No.DL2CA 5531 which was seized by the police. Therefore, there can be no dispute as regards the registration number on the car in which the appellants were found travelling during that night. The appellants have not offered any explanation for their being found travelling in Maruti car bearing Registration No.DL2CA 5531 in the night intervening 29/30th December, 2003. This is not their case that the car, in which they were travelling, was different from the