Crl.A.1068-2006 & Connect.matters Page 1 of 20 * THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 18.09.2009 Judgment delivered on: 15.12.2009 Crl. Appeal No.1068/2006 GULSHAN ..... Appellant vs STATE THROUGH GOVT. OF NCT, DELHI ..... Respondent AND Crl. Appeal No. 425/2008 MANOHAR LAL ..... Appellant vs STATE THROUGH GOVT. OF NCT, DELHI ..... Respondent AND Crl. Appeal No. 1069/2006 SATISH KUMAR ..... Appellant vs STATE THROUGH GOVT. OF NCT, DELHI ..... Respondent Advocates who appeared in this case: For the Appellants : Ms Vasudha V Indurkar & Mr Mukesh Jhakar, Advocates for the appellant in Crl.A. 1068/2006 Mr Atul Kumar, Ms Sweety Singh & Ms Archana Kumari, Advocates for the appellant in Crl.A. 425/2008. Mr A K Singh, Mr S K Singh & Mr Shiv Khanna, Advocates for the appellant in Crl.A. 1069/2006. For the Respondent : Mr Amit Sharma, Additional Public Prosecutor for the respondent-State. CORAM :- HON'BLE MR JUSTICE RAJIV SHAKDHER 1. Whether the Reporters of local papers may be allowed to see the judgment ? No Crl.A.1068-2006 & Connect.matters Page 2 of 20 2. To be referred to Reporters or not ? Yes 3. Whether the judgment should be reported Yes in the Digest ? RAJIV SHAKDHER, J 1. The captioned appeals have been filed by three persons who are convicted for various offences under the Indian Penal Code, 1860 (in short the ‘I.P.C.’) by a common judgment. Each of the convicted persons, as indicated hereinabove, has preferred a separate appeal. Manoharlal is the appellant in Crl. A. No.425/2008 (hereinafter referred to as ‘Manoharlal’); Gulshan is the appellant in Crl. A. No. 1068/2006 (hereinafter referred to as ‘Gulshan’); while Satish Kumar is the appellant in Crl. A. No.1069/2006 (hereinafter referred to as ‘Satish’). Collectively, I shall be referring to them as the appellants. While Gulshan and Satish were charged under Sections 392/394/397/34 of the I.P.C.; Manoharlal was, in addition to the said offences, also charged under Section 411 of the I.P.C. 1.1. The trial court vide its judgment dated 08.11.2006 and sentence dated 09.11.2006 has convicted Manoharlal only for offences punishable under Sections 394/397 read with Section 34 of the I.P.C., while Gulshan and Satish were convicted for offences under Section 394/34 of the I.P.C. 2. The prosecution’s version is as follows: On 23.04.2004 at about 5.15 pm one Prashad Bhai, i.e., the complainant (PW1) who was working as a teacher in the Adhyatmic Ishwariya Vishwavidhalya at the relevant point in time, while taking a stroll in the Teachers Park, Nimri Colony, Delhi (in short ‘Teachers Park’) was waylaid by four persons aged between 20 to 25 years. Out of the four persons, one of them, who was holding a knife in his hand, removed, a sum of Rs 1200/- from the top pocket of PW1’s shirt, and a mobile phone (make- Nokia 3350) kept in the left hand pocket of his trousers, at the threat of an injury. 3. This information was received at police post Wazirpur, Police Station, Ashok Vihar and was recorded as DD Entry no. 28. Immediately thereafter, H.C. Hemraj and Constable Crl.A.1068-2006 & Connect.matters Page 3 of 20 Dinesh Kumar reached the site of the incident, that is, the Teachers Park. The statement (Ex PW1/A) of the complainant (PW1) was recorded at about 7.40 pm. Based on the statement of the complainant, a rukka was prepared, which was sent to the police station for registration of a FIR. The FIR (Ex PW3/A) was registered at 8.10 pm. 4. The prosecution, in support of its case, cited 11 witnesses. The defence has not led any evidence. The trial court, however, has recorded the statements of the appellants under Section 313 of the Code of Criminal Procedure Code, 1973 (in short the ‘Cr.P.C.’). 4.1 The complainant (PW1) in his examination-in-chief before the court repeated his statement made to the police, in the first instance, particularly with regard to the core aspects of the prosecution case, which was that: he spreads God’s Messages, since he did not find enough people to convey the God’s message, he was roaming in the Teachers Park; at about 5.15 pm, he was waylaid by four boys; one amongst the four boys held a knife to his person; and a sum of Rs 1200 was removed from the pocket of his shirt while a mobile phone (make- Nokia 3350) was taken from the left hand pocket of his trouser. He gave his mobile no. as 9891038272. 4.2 It is important to note that in his examination-in-chief, he testified that at the point in time when he was robbed by the appellants and their fourth accomplice (who incidentally was never arrested), he had received knife injuries on his right hand. Curiously, this fact was not stated by the complainant in the statement made to the police, in the first instance, on 23.04.2004. 4.3 The complainant (PW1), however, identified the three appellants who were present in court. The complainant also proved his statement made to the police (Ex PW1/A) and the signatures appended on it at point ‘X’. He also testified that police had come to the spot and prepared a site plan (Mark X) on his pointing out the site of the incident. He deposed that his mobile phone which the appellants had robbed him of, was registered in the name of his friend one C. Sriram (PW4). He stated that the mobile phone was given by Crl.A.1068-2006 & Connect.matters Page 4 of 20 PW4 to him for the purposes of performing ‘Sewa’. He proved the cash bill and the warranty card of the said mobile phone, which was seized vide memo (Ex PW1/B), as also his signatures on it, at point X. PW1 also identified the mobile phone (Ex P3), which was taken out of a sealed parcel in court, after its seal (RVS) was broken. PW1 further testified that the day after the incident i.e., 24.04.2004 he had got himself treated at a hospital for injuries, sustained by him on his right hand, which were inflicted on him by one of the assailants. In this respect, he alluded to MLC (Mark X) prepared by the concerned doctor of Bara Hindu Rao Hospital. PW1 further testified that since his attention was focused on the money being removed from his shirt’s pocket by the assailants, he did not realize that he had been injured till he suffered severe pain in his hand. PW1, however, categorically stated that eventhough he had sustained an injury on his right hand during the incident; he had not communicated this fact to the police in his statement (Ex PW1/A). He, however, clarified that the number of the mobile phone which was taken away by the appellants was 9899240315; which was the mobile number, alongwith the sim card number 20001982478, which he had given to the police, when his statement, in the first instance (Ex PW1/A) was recorded by the Police. 4.4 In his cross-examination, PW1 deposed that on being robbed, he went over to a nearby house which was half a furlong away from the site of the incident, from where, he called the police. PW1 further stated that the police personnel on his dictation recorded his statement. PW1 categorically deposed that he had given the description of the persons who had attacked him with the knife. Importantly, PW1 reiterated that he had not informed the police as regards the injury sustained by him on his right hand. PW1 denied the suggestion that he had identified the appellants on the say so of the police. PW1 further deposed that he was not in a position to give any identification marks, such as height, complexion and the appearance of the fourth accused. PW1, however, stated that if the fourth accused was brought before him, he would be in a position to identify him. PW1 stated that he was with the police on the date of the incident till about 8 to 8.30 pm. PW1 further testified that he had visited the hospital on 24.04.2004. PW1 also stated that he had visited the police Crl.A.1068-2006 & Connect.matters Page 5 of 20 station 2-3 days after the incident, which is when his statement was recorded. He further deposed that the said mobile phone was gifted to him by his friend C. Sriram (PW4) in January, 2004; however, the cash invoice in respect of the same was not handed over by him at that point in time. He denied the suggestion that the appellants were not the persons who had attacked him on 23.04.2004 or that he was not attacked with a knife which caused injuries on his person. 5. Constable Vinod Kumar (PW2) testified to the effect that on the date of the incident at about 5.15 pm they had received information at police post Wazirpur, JJ Colony, Police Station Ashok Vihar, Delhi with respect to a robbery having been committed. PW2 stated that on receiving the information, he alongwith H.C. Hemraj proceeded to the site of the incident, where the statement of PW1 was recorded. PW2 further stated that based on the statement of PW1, a rukka was prepared which he took to the police station for registration of the FIR. He stated that the investigation of the case was handed over to the ASI Rajinder (PW11); whereupon he accompanied ASI Ranjinder (PW11) to the site of the incident at about 5.15 pm. A site plan was prepared by PW11 at the pointing out of PW1. In his cross-examination, PW2 accepted that he reached the site of the incident at about 5.30 pm. PW2 also accepted the fact that he had left the site of the incident for registration of the FIR at about 6.45 pm, and he re-visited the site of the incident alongwith ASI Rajinder (PW11) at 8.15 pm. He accepted the fact that PW1 was with them on the date of the incident till about 9.00 pm. To be noted that PW2 testified that neither did he nor anyone else noticed any injury on the person of PW1. 6. H.C. Dinesh (PW3) testified with respect to the fact that the FIR (Ex PW3/A), based on the rukka brought to him by PW2 (at about 8.00 pm) was prepared by him, which bore his signatures at point X. PW3 also stated that rukka (Ex PW1/A) bears his signatures at point X. Importantly, PW3 testified that on 02.05.2004, while he was posted as the duty officer at police station Ashok Vihar, at about 10.00 pm, Constable Rajinder Singh (PW10) brought a rukka signed by H.C. Chetrapal based on which he recorded FIR No. 303/04 (Ex Crl.A.1068-2006 & Connect.matters Page 6 of 20 PW3/C). He proved his signatures at point X, on FIR 303/04. He further deposed that about 10.15 pm, Constable Praveen Kumar brought another rukka based on which he recorded FIR 304/04 (Ex PW3/D). He proved his signatures at point X on FIR 304/04. 6.1 Importantly, PW3 was not cross-examined. 7. C. Sriram (PW4) testified that on 01.04.2003 he had brought from Kuala Lumpur, a Nokia mobile phone model 3350 bearing IMEI no. 351108301100182. This mobile phone was gifted by him to PW1 in January, 2004; however, the papers i.e., the cash memo and warranty card were handed over to PW1, only on 18.05.2004. In his cross-examination, he accepted that there was no writing work in place with respect to the mobile phone handed over by him to PW1. In the cross-examination, he also denied the suggestion that he had not given the mobile phone to PW1, and that the same had been lost. PW4 also identified the cash bill (Ex P1) and the warranty card (Ex P2). 8. PW5, Sh Yogender, Manager of a distribution concern of the manufacturers of mobile phone, deposed that, he was not in a position to shed any light on the cash bill (Ex P1) and the warranty card (Ex P2) of the mobile phone in issue. 9. PW6, Constable Jagbir testified that he and Constable Rajinder Singh had apprehended Gulshan at Haryana Nahar, Tapakna Pool under Section 25 of the Arms Act, 1959 (in short the ‘Arms Act’) in connection with the case registered as FIR No. 303/04. He deposed that this information was communicated to H.C. Chetrapal who was handed over a knife recovered from Gulshan. He further stated that H.C. Chetrapal recorded the disclosure statement of Gulshan (Ex PW6/A), which bears his signatures at point X, and that of Gulshan at point Y. He categorically stated that Gulshan, in his disclosure statement had revealed the commission of offence, at the Teachers Park. He also proved Furd Nishandehi (Ex PW6/B) which bears his signatures at point X, and that of Gulshan at point Y. Crl.A.1068-2006 & Connect.matters Page 7 of 20 10. PW7, Dr Om Prakash Prashad who was posted as MO Surgery, at Hindu Rao Hospital proved the opinion recorded by him on the MLC (Ex PW7/A) pertaining to PW1. Importantly, in his cross-examination he did not rule out the possibility of the injuries referred to in the MLC being self-inflicted. 11. PW8, Constable Praveen Kumar, deposed that on 02.05.2004 he was posted at police post JJ Colony, Wazirpur, PS Ashok Vihar, Delhi. He testified that on the said date while he was on a patrolling duty alongwith Constable Rajinder Singh, at about 8.30 pm they came across Manoharlal. On seeing them he tried to flee away which is when, he was apprehended. Manoharlal’s search revealed that he was carrying a button actuated knife. He further stated that this message was sent to Head Constable Hemraj Singh on wireless. On receiving the message, Head Constable Hemraj Singh reached the spot, in about 10 minutes. A case, being FIR No. 276/04 was registered against Manoharlal. Manoharlal also made a disclosure statement (Ex PW8/A) which bore his signatures at point A, wherein he revealed the commission of the offence at Teachers Park. He also proved the arrest memo (Ex PW8/B) and his signatures on it at point A. Similarly, he also proved the personal search memo (Ex PW8/C) prepared pursuant to the personal search of Manoharlal. The pointing out memo (Ex PW9/A) prepared at the behest of Manoharlal, which bore his signatures at point A, was also proved by him. In his cross-examination, PW8 testified that on Manoharlal being apprehended a knife was recovered from him; consequently, a case, being FIR No. 304/04, under Section 25 of the Arms Act was registered, at Police Station Ashok Vihar. In the said case, a disclosure statement (Ex PW8/B) which bore his signatures at point A was made with respect to the offence committed at Teachers Park. Furthermore, PW8 denied the suggestion made to him in cross-examination that neither did Manoharlal make any disclosure statement, nor was any knife recovered from him. He also denied the suggestion that Manoharlal had actually been apprehended from his house. 12. PW9, Constable Ashok Kumar testified that on 18.05.2004, while he was posted at Police Station Ashok Vihar; PW1 came to the Police Station and produced before the ASI Crl.A.1068-2006 & Connect.matters Page 8 of 20 Rajinder Singh (PW11) the cash invoice MJ 042 dated 01.04.2003, and the warranty card, in respect of the Nokia mobile phone, model No. 3350 bearing IMEI no. 351108301100182. He also proved the seizure memo with respect to the same, being Ex PW1/B; the cash bill (Ex P1); and the warranty card (Ex P2). He also proved the seizure memos with respect to the said cash bill and warranty card (Ex PW1/B). In his cross- examination, PW9 stated that he did not recollect whether PW1 had signed the seizure memo. He, however, denied the suggestion that PW1 had not produced the cash bill and the warranty card, or that the seizure memo (Ex PW1/B) was not prepared in his presence. 13. PW9, Krishan Kumar, Court official of Sh Raj Kapoor, MM, Delhi (also inadvertently shown as PW9 in the trial court record) produced for examination of the trial court, the original judicial file pertaining to the case against Manoharlal, being FIR No. 304/04. He deposed that the original pointing out memo, the copy of which is Ex PW9/A, as well as the original disclosure statement, the copy of which is Ex PW9/B, was in the judicial file of the said court. 14. Constable Rajinder Singh, Belt No. 2321 (PW10), testified with respect to the fact that Gulshan was apprehended by him at about 8.15 pm, on 02.05.2004 while he was on a patrolling duty alongwith Constable Jagbir Singh, in A-Block Haryana Nahar, Tapakna Pool. He also testified that on a personal search of Gulshan, a knife was recovered, as also the fact that he made a disclosure statement (Ex PW6/A). PW10 also proved the personal search memo, and the arrest memo being Ex PW10/A and Ex PW10/B. He testified that Manoharlal and Satish were arrested from their house in his presence. He proved the personal search memo and arrest memo being Ex PW10/D and Ex PW10/E respectively and his signatures at point A on the said exhibits. He further proved that the disclosure statement of Satish (Ex PW10/F) and the pointing out memo (Ex PW10/G). Importantly, he stated in his testimony that the said mobile phone was seized by the I.O. (PW11) vide possession memo (Ex PW10/H) which bears his signatures at point A. Curiously, in response to a leading question by the prosecution he stated that the mobile phone (Ex P3) was recovered from the room of Manoharlal in Crl.A.1068-2006 & Connect.matters Page 9 of 20 House No. K-123, JJ Colony, Wazirpur, Depot. He deposed that the same was lying on the TV in his room. Furthermore, in his cross-examination PW10 alluded to the fact that Manoharlal and Satish were arrested at about 11-11.30 pm from their respective houses. As regards Satish, PW10 stated that he was arrested from his house. He accepted the fact that eventhough the relatives of Satish were present at the house their signatures were not obtained on any document. 15. ASI Rajinder Singh (PW11) testified that on 23.04.2004, while he was posted at Ashok Vihar Police Station, he was handed over the FIR by Constable Vinod Kumr (PW2) with regard to an incident of robbery having been committed at Teachers Park. PW11 stated that he reached the site of the incident alongwith H.C. Hemraj. PW11 testified that on reaching there he prepared a site plan (Ex PW11/A) which bears his signatures at point A. He further testified that on 02.05.2004, H.C. Chetrapal and H.C. Hemraj Singh informed him that they had arrested Manoharlal and Gulshan in two separate cases being: FIR Nos. 303/04 and 304/04, respectively. He, thus, stated that they were formally arrested by him in the present case. He proved the arrest memos of Manoharlal and Gulshan being Ex PW8/B and Ex PW10/B respectively. He also testified that Satish was arrested from his house vide arrest memo Ex PW10/E. He testified that the said arrest memo bears his signatures at point B. He also proved the personal search memos of all the three accused persons Exs PW10/A, PW10/D and PW8/C, and also his signatures at point B. He specifically testified that the mobile phone was recovered from the house no. K-123, JJ Colony, Wazirpur, Delhi of Manoharlal, in respect of which a seizure memo (Ex PW10/H) which bears his signatures at point B, was prepared by him. He also testified that on 18.05.2004, the complainant (PW1) handed over the cash bill and warranty card to him which was seized vide memo (EX PW1/B), and that it bore his signatures at point B. He also stated that the MLC of PW1 (Ex PW7/A) was taken on record. He specifically testified that application for Test Identification Parade (TIP) was moved before the concerned Metropolitan Magistrate with respect to the appellants. He stated that the appellants Crl.A.1068-2006 & Connect.matters Page 10 of 20 refused to participate in the TIP. He identified the mobile phone (Ex P3) on being shown to him in Court, as the one which was recovered from accused Manoharlal. 16. In their statement under Section 313 of the Cr.P.C., the only response which the appellants gave was that they had been falsely implicated. 17. In the background of the aforesaid, submissions were made on behalf of Gulshan by Mrs. Vasudha V. Indurkar, Advocate; on behalf of Manoharlal by Mr. Atul Kumar, Advocate; and on behalf of Satish by Mr A.K. Singh, Advocate. The summation of the submissions made by the learned counsels in support of their respective appeals is as follows: (i) in the statement made to the Police by the complainant (PW1) in the first instance, he had not given any description of the appellants. The fact that the appellants were identified for the first time in Court by the complainant (PW1), is a testimony, which ought not be relied upon by the court; (ii) the version of the prosecution is unbelievable, and the testimony of PW1 is untrustworthy for the reasons that; firstly, eventhough the incident happened in a public park, no public witness was examined by the prosecution and secondly, while the complainant (PW1) remembered the sim card number which he gave to the police in his first statement (Ex PW1/A), he was unable to give the number which is inscribed on the phone set i.e., IMEI number; (iii) the version given by the complainant is unbelievable, which is evident from the fact that he made a reference to two mobile numbers, one which relates to the mobile phone which was robbed (i.e. mobile number 9899240351) and the other being mobile number 9891038272, which also finds a mention in his statement made to the police; (iv) eventhough Constable Vinod Kumar (PW2) in his testimony stated that they had received information about the incident at 5.15 pm and that they had reached the spot at 5.30 pm the DD entry records the time of the said incident as 6.00 pm; (v) that the entire version of the prosecution that the PW1 had suffered an injury was fabricated. This was evident from the fact that eventhough as per the testimony of PW2 Crl.A.1068-2006 & Connect.matters Page 11 of 20 they were with the complainant for not less than 3-4 hours, the injury on the complainant was neither noticed by the police personnel who visited the site of the incident, nor was it reported by the complainant to them. In this connection, reference was made to the deposition of Dr Om Prakash Prashad (PW7) who deposed that the injury in respect of which he had given an opinion could be self-inflicted; (vi) the knife which was evidently used during robbery by the appellants, by which injury was inflicted on the complainant (PW1), was not produced by the prosecution; (vii) the prosecution has failed to connect the appellants to the crime. The reliance by the prosecution on the disclosure statement of Gulshan (Ex PW6/A) and the pointing out memo (Ex PW6/B) of Gulshan for the purposes of connecting Manoharlal and the disclosure statement of Manoharlal (Ex PW9/B) and his pointing out memo (Ex PW9/A) for connecting Satish to the crime is inadmissible as evidence in law as it is hit by the provisions of Sections 25 to 27 of the Evidence Act; (viii) in conducting the TIP, the prosecution has not followed the provisions of Section 294 of the Cr.P.C. In this connection, reliance was placed on the order of the Court dated 26.04.2005. Based on the said order, it was contended that the only TIP proceedings which were exhibited were that pertaining to Manoharlal, which was marked as ‘PY’. (ix) the testimony of PW10 and PW8 was contradictory, in as much as, while PW10 deposed to the effect that Manoharlal and Satish were arrested from their respective houses, in his presence; PW8 deposed that Manoharlal was arrested on 02.05.2004, while he was on patrolling duty alongwith Constable Rajinder Singh, at about 8.30 pm when, Manoharlal was coming from the direction of Shanti Nagar and proceeding to Bharti Nagar Nala. There being an apparent contradiction, their testimony cannot be relied