RAHUL JAIN @ SONU Vs. STATE

JUDGEMENT

(1.) CHALLENGE in this appeal is to a judgment dated 09.03.2011 of learned Addl. Sessions Judge in Sessions Case No. 1030/09 arising out of FIR No. 336/2008 PS Keshav Puram by which the appellant ­ Rahul Jain @ Sonu along with his associates Sanjay Yadav and Rattan @ Mintoo was convicted under Sections 392/397 IPC. By an order on sentence dated 19.03.2011, he was awarded RI for seven years with fine Rs. 5,000/ - under Section 392 IPC read with Section 397 IPC.

(2.) THE prosecution case as projected in the charge -sheet was that on 17.12.2008 at about 11.15 P.M. opposite Gali No. 125, Shanti Nagar, near Road No.37, Delhi, the appellant along with his associates Sanjay Yadav and Rattan @ Mintoo robbed complainant ­ Umesh Chand Vashisht and deprived him of cash Rs. 15,000/ -, five or six credit cards, mobile phone make Nokia -6610, two diaries and a bag containing clothes and documents at knife point. First Information Report was lodged on the complainant's statement (Ex.PW -2/A) at Police Post Shanti Nagar, PS Keshav Puram. In the complaint, Umesh Chand Vashisht gave detailed account of the occurrence and disclosed how and under what circumstances, he was robbed of his valuable articles at knife point by two assailants and claimed to identify them. Efforts were made to find out the culprits but in vain. On 19.12.2008, the appellant and his associates were arrested in case FIR No. 312/08 under Sections 392/395/412/34 IPC PS Vikaspuri by Special Staff (West district) and recoveries were effected from their possession. Pursuant to their disclosure statements, robbed articles were recovered. Intimation was given to the Investigating Officer of this case who moved application for holding Test Identification Proceedings. The accused and his associates declined to participate in the Test Identification Proceedings. Statements of the witnesses conversant with the facts were recorded. After completion of investigation, a charge - sheet was filed against the accused persons; they were duly charged and brought to trial. The prosecution examined ten witnesses to substantiate the charges. In 313 statement, the appellant pleaded false implication and denied his complicity in the crime, claiming that he was lifted from Jaipur Golden Hospital. After appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment held the appellant and his associates guilty for the offences mentioned previously. Being aggrieved and dissatisfied, the appellant has preferred the appeal. It is unclear if Sanjay Yadav and Rattan @ Mintoo have challenged the conviction. It appears that they have served the sentence awarded to them.

(3.) THE appellant along with his associates was arrested by Special Staff (West district) on 19.12.2008. PW -9 (SI Manoj Kumar) deposed that on the basis of secret information, in case FIR No. 312/08 PS Vikaspuri at about 12.00 (noon), they apprehended Rahul Jain @ Sonu, Rajesh @ Vijay, Rattan, Juned Qureshi and Ravi Kant Rekhi when they were travelling in a robbed i10 car bearing No. DL 3C -ND -6075. Various weapons were recovered from their possession. A dagger was recovered from the left side dub of the accused Rahul. On 20.12.2008 pursuant to the disclosure statements, some credit cards and some smart cards were recovered and taken into possession vide memo Ex.PW -9/H under Section 102 Cr.P.C. The co -accused Rattan recovered clothes purchased by them using the robbed credit cards and were seized vide seizure memo (Ex.PW - 9/J). Invoices (Ex.PW -4/A to Ex.PW -4/C) and the receipts of the shopping (Ex.PW -4/D, Ex.PW -4/E, Ex.PW -5/A and Ex.PW -5/B) were collected. Mobile phone was seized by ASI Dharamvir of PS Vikaspuri vide memo mark X1. Intimation was given to PS Keshav Puram on 20.12.2008 when their involvement in said case emerged. Apparently, the police of PS Keshav Puram had nothing to do with the apprehension and recovery effected at the instance of the appellant and his associates. Crucial testimony is that of PW -2 (Umesh Chand Vashisht), the complainant, a Professor, Lucknow University Campus who had visited Delhi to attend a meeting in the Ministry of Human Resources on 17.12.2008. When, after attending the meeting, in the evening, he was going to Deepankar Sharma's residence at Tri Nagar by DTC bus No.816, he got down at Inderlok Metro Bus Stand and walked on foot towards Shanti Nagar. When he crossed the 'nala' and entered gali No.125 at around 11.15 P.M., he was surrounded by three individuals and they caught hold of him. He was shown a pronged knife and was criminally intimidated. He became frightened. The assailants took Rs. 15,000/ - in cash, ten credit cards / I -cards, bag, two diaries, mobile phone make Nokia No. 9415521737 and his clothes, sweater, etc. He deposed that he begged the assailants to at least give him the important papers of MHRD and University but they did not agree. They fled the spot. He went to his relative's residence. Thereafter, they reported the matter to the police of Police Post Shanti Nagar where his statement (Ex.PW -2/A) was recorded. He identified appellant to be the assailants who had threatened him with a knife. He also deposed that he was called at Rohini Courts where he participated in the Test Identification Proceedings and identified the case property recovered. He also identified six cards collectively exhibited (Ex.P1 & Ex.P2), mobile phone (Ex.P3), bag (Ex.P4). He was fair enough to state that the clothes produced were not robbed from his possession. It was informed by learned Addl. Public Prosecutor that these articles were purchased by the accused persons using the stolen / robbed credit cards / debit cards. In the cross -examination, the witness fairly admitted that initially he had given the number of the assailants as two. However, on 20.12.2008, he returned to Delhi and informed the police that the number of the assailants was three and he was unable to give the correct number as he was perplexed and under fear. He further admitted that due to fear and being night time, he could not properly see the said boys at the time of incident. He denied the suggestion that at Tagore Garden the accused persons were shown to him. Despite lengthy and searching cross - examination, no material discrepancy emerged to disbelieve the complainant who had no prior animosity with any of the accused persons to falsely implicate them. This witness had come to attend the meeting in connection with official work and had no acquaintance with any of the accused persons to falsely rope them in this case and recognise the appellant as one of the assailants. He had direct confrontation with the appellant and had reasonable and sufficient opportunity to see him and to observe his broad features. In the statement (Ex.PW -2/A), he had categorically stated that he would be able to identify the assailants. In Court statement, he identified appellant without hesitation as one of the assailants and attributed specific role to him that he was armed with a knife and had threatened him. Adverse inference is to be drawn against the appellant for declining to participate in the Test Identification Proceedings. Nothing has come on record as to on which particular and specific date the appellant was shown and his photographs were taken. Complainant categorically denied if he visited Tagore Garden office. In the statement recorded by the learned Magistrate in Test Identification Proceedings, the plea of the accused was that his photographs were taken. He did not claim that he was shown to the complainant.