Crl. A.618/2003 Page 1 36 $~ * IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 618/2003 VINOD KUMAR ..... Appellant Through: Mr. Sukhbir Singh, Adv. versus THE STATE (GNCT) OF DELHI ..... Respondent Through: Ms. Fizani Hussain, APP for the State. CORAM: HON'BLE MR. JUSTICE SANJIV KHANNA O R D E R % 20.08.2010 1 Appellant Vinod Kumar has been convicted under Section 397/411/34 of the Indian Penal Code, 1860 (hereinafter referred to as IPC) and has been sentenced to rigorous imprisonment of seven years and fine of Rs.10,000/- under Section 397/34 IPC and in default of payment of fine, to undergo rigorous imprisonment of six months. The applicant has been further sentenced under Section 411/34 IPC with rigorous imprisonment of one year and fine of Rs.1,000/-. In default of payment of fine, he has to undergo rigorous imprisonment for 15 days. 2 The story of the prosecution is that Mr. Jaspal Singh, driver and Mr. Jagtar Singh @ Jagga, cleaner had reached Delhi on 22nd February, 2001 at about 10.00 PM in truck No. PCK 597 from Mandi Govind Garh with bags of foam and iron items. They had unloaded the bags of foam at Shastri Nagar and Crl. A.618/2003 Page 2 had come to Naraina opposite Shop No.22/8 on the main road. Mr. Jaspal Singh, the driver went to make a telephone call to Mr. Raj Kumar to whom the goods were to be delivered leaving behind Mr. Jagtar Singh @ Jagga, the cleaner in the truck. When he came back, Mr. Jagtar Singh informed Mr.Jaspal Singh that someone had come demanding diesel from him. Mr. Jaspal Singh sat on the driver’s seat and started waiting for Mr. Raj Kumar. After some time the person who had earlier demanded diesel, came and gave a fist blow on the face of Mr. Jagtar Singh and two other persons came inside the truck and put a revolver on the forehead of Mr. Jaspal Singh. The three persons tied hands of Mr. Jaspal Singh and Mr. Jagtar Singh and made them lie down on the back seat of the truck and a quilt and blanket were put on them. One out of the three persons started driving the truck. The truck was driven for about one and a half hour. The goods were unloaded from the truck. Thereafter at about 4.30 AM in the morning, they stopped the truck and left Mr. Jaspal Singh and Mr. Jagtar Singh inside the truck with their hands tied. After some time both of them managed to free themselves and came to Delhi from Gurgaon where the truck was stopped. They made a call to the transport company in Mandi Gobindgarh and also spoke to Mr. Raj Kumar at Delhi. Both of them went to Police Station Patel Nagar and accordingly FIR No.104/2001 in Police Station Patel Nagar was recorded. 3 The appellant herein was arrested on the night intervening on 23rd and 24th February, 2001. He made a disclosure statement before SI Prahlad Singh stating that he was involved in the said robbery and he could get the articles recovered from a plot near Jai Vihar near Bani Camp Nazafgarh. Subsequently on the basis of the disclosure statement, the articles were recovered and given on superdari to Mr. Raj Kumar. 4 Learned counsel for the appellant has submitted that Mr. Jaspal Singh who had appeared as PW-2 has not identified the appellant/accused in the Test Identification Parade (TIP for short). It is accordingly submitted that the Crl. A.618/2003 Page 3 involvement of the appellant is not proved. 5 It is correct that PW-2 Mr. Jaspal Singh could not identify the appellant in the TIP. This fact is also proved from the statement of PW-10 Mr. Deepak Garg, Metropolitan Magistrate, Tis Hazari Courts. However, the appellant had made a disclosure statement Ex.PW-14/C. The statement was made before PW-13 Mr.Prahlad Singh. In this disclosure statement, he had stated that the goods downloaded from the truck after the robbery had been kept at Jai Vihar near Bani Camp Nazafgarh Road in a plot of land with one room. He had further stated that Dharampal @ Mental and Satbir were staying in that room. PW-13 SI Prahlad Singh on the basis of disclosure statement has stated that they went to the plot and recovered 70 iron sheets and 23 iron rods. These were seized vide memo Ex.PW-14/D. The case property was thereafter deposited in the malkhana in Police Station Dabri on the same day i.e. 26th February, 2001. 6 Learned counsel for the appellant submitted that there is difference in the property mentioned in the recovery memo Ex.PW-14/D and the statement of both PW-2 Mr. Jaspal Singh and PW-3 Mr. Jagtar Singh. It is stated that the disclosure statement which is marked Ex. Mark A does not pertain to the goods which were loaded in the truck and, therefore, the appellant is not connected with the said crime. 7. PW-2 Mr. Jaspal Singh had stated that they had loaded kamani patti of about 6 and a half tones from Mandi Gobindgarh. PW-2 Mr. Jaspal Singh was examined in the Court on 31st October, 2001. However, his examination-in- chief was deferred as the case property had not been brought by the superdar. He was thereafter examined in chief on 7th January, 2002. On 7th January, 2002 PW-2 Mr. Jaspal Singh had clearly stated that what was loaded in the truck was iron sheets and rods and he had seen the same outside today in the Court. That was the same property which was robbed from the truck. The case property was collectively marked as Ex.-PX. PW-2 Mr. Jaspal Singh was Crl. A.618/2003 Page 4 not cross-examined by the appellant. 8. PW-3 Mr. Jagtar Singh had stated that they had loaded the iron sheets and other items in the truck from Mandi Gobindgarh along with 5 bags of gadas. He had reiterated the other facts with regard to the entire incident. He had identified the appellant in the Court. He had stated that the material which was downloaded from the truck and robbed was the same material which was collectively marked Ex.-PX. PW3 Mr. Jagtar Singh was the cleaner of the truck and was a person who had the first interaction with the person who had asked for diesel and had subsequently reappeared and committed the robbery along with others. Unfortunately, he was not called to identify the appellant in the TIP in Jail. This is clear from his cross-examination. 9. PW-5 Mr. Raj Kumar had appeared before the Court and his statement was recorded on 31st January, 2002. He had stated that he had purchased iron flats and iron squares from M/s. Raj Steel Traders, Ludhiana on 21st February, 2001. He had further stated that these goods were stolen from the truck and later on were recovered and were given to him on superdari. 23 iron rods (square) and 70 iron sheets (iron flat) were identified by him. He has identified his signatures on the challan for purchase of the goods. He was not cross- examined by the appellant. With regard to the identification of the case property, the counsel who was appearing for the appellant before the trial court had stated during cross-examination of PW-13 SI Prahlad Singh, that production of the property recovered which was marked Ex.-PX was not objected to by him. Thus it is established beyond doubt that the goods which were stolen and unloaded from the truck were recovered from the site shortly after the robbery on the disclosure made by the appellant. 10. Learned counsel for the appellant submitted that PW-12 Head Constable Mr. Baljit Singh had stated that he had recorded the disclosure statement. Thus PW-12 Head Constable Baljit singh and PW-13 SI Prahlad Singh, both claim that they had recorded the disclosure statement. PW-12 Head Constable Baljit Crl. A.618/2003 Page 5 Singh in his statement had stated that SI Prahlad Singh had arrived first at the spot. He had stated that during investigation the accused i.e. the appellant made a disclosure statement regarding the robbery in the truck at Patel Nagar. He had stated that the disclosure statement was recorded by him. PW-13 SI Prahlad Singh had stated that they had received secret information and he along with Head Constable Baljit Singh and some other had reached at the spot and later on arrested the appellant along with a revolver and cartridges. He had stated that during interrogation, the appellant had made a disclosure statement regarding his involvement in the robbery case. The disclosure statement was reduced into writing. As the appellant herein had arrested with a revolver and cartridges, another FIR being FIR No.135/2001 was registered against the appellant. The original disclosure statement became an enclosure to the charge sheet filed with the said FIR. Only the photocopy of the disclosure statement was filed before the trial court in the present case. The photocopy is signed by Head Constable Mr. Baljit Singh as a witness and is attested by SI Mr. Prahlad Singh. Thus both of them have signed the disclosure statement. The original of this document was subsequently produced by PW-14 Mr. Sanjay Kumar, Ahlmad from the Court where the original statement was filed in proceedings pursuant to FIR No.135/2001 and thereafter marked Ex.PW-14/C. It may be interested to note that PW-13 Mr.Prahlad Singh had stated that he had reduced the disclosure statement into writing and the same is in his writing. There was no cross-examination of PW-13 in this regard. 11. Learned counsel for the appellant submitted that the appellant has been acquitted in FIR No.135/2001. Certified copy of the said judgment is not on record. However, even if the appellant has been acquitted in the said case, he is not entitled to acquittal in the present case as a matter of right and as a mandatory consequence. FIR No.135/2001 was registered with regard to a different offence as is clear from the statement of PW-11 Constable Parminder , PW-12 Head Constable Baljit Singh and PW-13 SI Prahlad Singh. Three of Crl. A.618/2003 Page 6 them have stated that they were posted at Police Station Dabri and had received secret information that one Dharampal @ Mental who was wanted in some case would come with some of his colleagues and would be going towards Nasirpur. They reached at the spot and found that crowd had collected outside the house of one Birju. It was alleged that the appellant was present at the spot and had fired at them. He was apprehended and a revolver with live cartridges and empty cartridges were recovered. The offence alleged and the allegations made in the said FIR are absolutely different from the allegations made in the present FIR. The only connecting link is the disclosure statement which was made by the appellant after his arrest in FIR No.135/2001. As held above the disclosure statement has resulted recovery of huge quantity of 23 iron sheets and 70 iron rods. In view of the aforesaid discussion, the contentions raised by the learned counsel for the appellant in this regard are rejected. 12. Learned counsel for the appellant submitted that offence under Section 397 IPC is not made out as there was no recovery of the alleged revolver or the cartridges. To this extent, the contention of the learned counsel for the appellant merits acceptance. However, it is well settled that Section 397 of the IPC imposes a stringent and harsher punishment for an offence under Section 392 IPC. Section 397 only prescribes aggravated punishment in case a deadly weapon is used at the time of the offence under Section 392 of the Act. Accordingly, conviction of the petition will be under Section 392 and 411 IPC. 13. As per the nominal roll, the appellant has undergone punishment of 4 years 6 months and 23 days and the appellant has also earned a remission of 9 months and 28 days. In these circumstances, the appellant is released on the sentence of rigorous imprisonment already undergone. The appellant will also pay fine of Rs.10,000/- under Section 392 IPC and Rs.1000/- under Section 411 IPC and in default of payment of fine suffer rigorous imprisonment of 6 months and 15 days, respectively. It is stated by the learned counsel for the Crl. A.618/2003 Page 7 petitioner that the fine has already been paid. Appeal is accordingly disposed of. SANJIV KHANNA, J. AUGUST 20, 2010 J