SAJJAN Vs. STATE

JUDGEMENT

(1.) THE present appeal has been filed against the order of conviction dated 8.3.2010 and order on sentence dated 8.3.2010 by which appellant was sentenced to undergo RI for 7 years along with fine of Rs.5,000/ -, in default of payment of fine SI for 4 months punishable under Sections 392/ 34 IPC.

(2.) AS per the FIR No.294/1999 lodged at Police Station Saraswati Vihar, under Section 392/397/34 IPC, the appellant was convicted along with three other persons, who committed robbery on 26.4.1999 between 11:00 and 11:15 a.m. upon one Sh.Sushil Aggarwal PW -20, complainant and Mr.Babu Lal, PW -13 of Rs.8.90 lacs on gun point. As per the prosecution, Sushil Aggarwal, was doing business related to chemicals at shop no.2831/212 Tri Nagar, Delhi; he was residing at F -304, Rashmi Apartments, Pitampura, Delhi; and Babu Lal was one of his employees. On 26.4.1999 PW -20 along with Babu Lal, PW -13 were returning from the bank after withdrawing 9.55 lacs on a two -wheeler scooter. After withdrawing the money PW -20 had given Rs.65,000/ - to Naresh Jain and Rs.8.0 lacs were kept by him in a yellow colour plastic bag which was handed over to Babu Lal. The balance sum of Rs.90,000/ -was kept by him in a canvas bag, which was hanged on the handle of the scooter. The entire currency notes were of the denomination of Rs.50/ -, 100/ -and 500/ -. When Sushil Aggarwal reached in front of primary school, Outer Ring Road, Sector -8, Rohini and had crossed half of the road, they stopped the scooter as a truck was coming from the opposite side. In the meanwhile one white maruti car came from the right side and from said car two boys came out while two boys were sitting inside the car. The boys who came out from the car put a katta on the person of Sushil Aggarwal and Babu Lal and snatched away Rs.8.90 lacs and ran away towards Peeragarhi Chowk. PW -20 was perplexed and frightened. They returned home, but did not disclose the facts to their family, as mother of PW -20 was unwell. PW -20, called his brother, Sushil Aggarwal and thereafter the matter was reported to the police. SI Manoj along with Constable Rampal, upon receipt of DD No.25, reached at Pitampura, on 26.4.2009 where he recorded the statement of PW -20. Rukka was prepared by S.I. Manoj Kumar and was sent for the registration of the case, which was registered at 9:00. At 10:00 p.m. complainant, Babu Lal and S.I. Manoj Kumar reached the place of occurrence and prepared the site -plan. In the meanwhile DD No.11 was also received regarding escaping of 4 -5 persons after parking a Maruti Car in an abandoned condition at C -Block Market, Saraswati Vihar, Delhi. One Rajeev was arrested on 19.6.1999 by S.I. Jaidev; Rajeev disclosed about his involvement and participation in the offence which was registered vide FIR No.294/99 under Sections 392/34 IPC. The accused, Rajeev got recovered a country -made pistol stated to be used from a park situated between A and B Block, Saraswati Vihar, Delhi. One Ashwini and Harminder Singh were also arrested and their disclosure statements were recorded; subsequent thereto a case was registered against Sajjan Kumar, the present appellant and he was arrested on 5.7.1999 at about 8:30 p.m.; the disclosure statement of the appellant was also recorded, wherein he has disclosed his involvement and participation in the commission of offence registered vide FIR No.294/1999. The appellant refused to participate in the TIP. The appellant, Sajjan pointed out to the place of incident and also the place where they left the Maruti Car bearing DL 1 CD 1652 in an abandoned condition.

(3.) COUNSEL for the appellant, Sajjan submits that the judgment and order on sentence passed by the trial court is against the law, facts and circumstances of the case, as there is no material on record to suggest that appellant, Sajjan was involved in the commission of the crime. Counsel further submits that the prosecution has failed to establish the identity of the appellant and thus the judgment and order on sentence are liable to be reversed. Strong reliance is placed by counsel on the cross -examination of PW -20 and the complaint, Ex.PW -20/A, wherein the complainant specifically stated that he was unable to see other accused persons, sitting in the car due to the glass of the window being black ["jo gari start thi sume ak do ladke aur bethe hone ka ahsas ho raha tha parantu kale sheeshe honk e karan kuch dikhai na parsaka"; and in the absence of the identity of the appellant being established beyond doubt, the appeal is liable to be allowed.