SAGAR TAKWAL Vs. STATE (DELHI ADMN.) DELHI

JUDGEMENT

(1.) SAGAR Takwal (A -1), Mohd. Rasheed (A -2), Nadeem (A -3), Mohd. Arfeen (A -4) and Mohd. Noor (A -5) were arrested in case FIR No. 32/97 by the police of PS M.S.Park and sent for trial for committing offences punishable under Sections 307/397/392/411/34 IPC. The prosecution case as projected in the charge -sheet was that on 07.02.1997 in between 02.00 to 04.00 P.M. at house No. 13, RPS, DDA Flats, M.S.Park, A -1 to A -4 in furtherance of common intention committed robbery and deprived the complainant of cash Rs. 12,000/ -, gold and silver ornaments and remote control (of T.V.). While committing robbery, grievous injuries by a knife were inflicted to Km. Pragati Seth. At first instance, she was taken to Abhimanyu Hospital, M.S.Park by Rajesh Gupta and S.P.Jain, her neighbourers. After providing first aid soon thereafter she was referred to GTB Hospital and remained admitted there till 15.02.1997. Daily Diary (DD) No. 8A (Ex.PW -13/A) was recorded at police station M.S.Park on getting information of an ,,accident at flat No. 13, M.S.Park. Investigation was assigned to HC Jaiveer who with Const. Surender Kumar went to the spot. After recording Aman Seths statement (Ex.PW -2/A), First Information Report was lodged by making endorsement (Ex.PW -7/A) at 06.00 P.M. Daily Diary (DD) No. 11A (Ex.PW -13/B) was recorded on getting information from Duty Const. Devender Kumar, GTB Hospital about admission of Km.Pragati Seth by her brother Aman Seth in injured condition. During the course of investigation, the accused persons were apprehended and arrested. Statements of the witnesses conversant with the facts were recorded. Applications were moved for conducting Test Identification Proceedings but the accused declined to participate in it. Pursuant to their disclosure statements, some robbed articles were recovered. After completion of investigation, a charge -sheet was submitted against them; they were duly charged and brought to trial. By an order dated 29.07.2000, A -1 to A -4 were charged for committing offences under Sections 452/392/394/307 read with Section 397 IPC; A -5 was charged under Section 411 IPC. The accused persons pleaded not guilty to the charges and claimed trial. The prosecution examined eighteen witnesses to establish their guilt. In 313 statements, the accused persons denied their complicity in the crime and pleaded false implication. After appreciating the evidence and considering the rival contentions, the Trial Court, by the impugned judgment, convicted A -1, A -2 and A -4 for committing offences under Sections 452/392 IPC and 307 IPC read with Section 34 IPC. A -3 was convicted under Sections 452/392/394, 397 and 307 IPC. A -5 was held guilty under Section 411 IPC. By an order on sentence dated 29.07.2000, various prison terms with fine were awarded to A -1 to A -4. A -5 was sentenced to imprisonment for the period already undergone by him. The substantive sentences were ordered to operate concurrently. Being aggrieved, A -1 to A -4 have preferred appeals. It appears that A -5 did not challenge the judgment. It is relevant to note that State has preferred Crl.A. 59/2001 for enhancement of sentence awarded to A -1 to A -4.

(2.) I have heard the learned counsel for the parties and have examined the record. At the outset, it may be mentioned that appellants counsel did not contest the finding on conviction of the appellants seriously and emphasized to modify the sentence order after taking lenient view as the appellants have suffered incarceration for more than five years and are not previous convicts. Learned Addl. Public Prosecutor also did not insist for enhancement of the sentence awarded to the appellants. Appellants counsel merely argued that the prosecution was unable to establish beyond reasonable doubt that all the appellants had shared common intention to commit the crime. Only A -3 was allegedly armed with a knife and injuries were inflicted after the incident of robbery was over. The booty was not shared by the appellants.

(3.) CRUCIAL testimony to infer the guilt of the accused persons is that of PW -1 (Pragati Seth) who was aged 13 / 14 years and was a student of 10th standard. She was studying at Moti Ram Memorial School, GT Road, Shahdara. On 07.02.1997, she returned from the school at about 12.30 P.M. She deposed that her parents left around 02.00 P.M. She and her younger brother Gaurav Seth remained at home. After about ten minutes, she received a telephone call enquiring whether Aman was present at home. She responded that Aman had gone to school. After about two minutes, she again received a telephone call that school hours were over and Aman might be present. After about ten minutes, a boy came and insisted her to open the door on the pretext to handover her a diary. She declined to open the door and the said boy left. After about ten minutes, A -1 who is the son of her mothers sister came and asked her to open the door on the pretext that his mother was coming on stairs. Unsuspectingly, she opened the door and A -1 came inside. Three boys identified A -2 to A -4 were also with him. She further deposed the A -1 caught hold of her hands. The boy who had earlier come to deliver a diary was also with A -1. She further deposed that on 05.02.1997 at about 03.00 P.M. when she, her mother and younger brother were present at home, two boys had come and one of them had enquired about the presence of her mother. When she told that she was going to call her mother present inside the house, they disappeared. PW -2 further elaborated in her testimony that the two boys who had come to her house on 05.02.1997 had accompanied A -1 on 07.02.1997. They made her to lie down on the floor in the balcony. The boy who had come to deliver the diary caught hold of her legs and A -1 caught hold of her head. The other boy who was of blackish complexion and had come on 05.02.1997 put a red scarf over her mouth. The boy who had a talk with her on 05.02.1997 went inside to have some glance and came again in the balcony; sat by her side. He took out a knife from the right pocket of his pant and stabbed on her neck. All of them dragged her and bungled inside the kitchen. She became unconscious. When she regained consciousness, she heard noise of goods being taken out from the almirah. The two boys who had come to her house on 05.02.1997 again came inside the kitchen. The boy who had earlier grabbed her again put cloth over her mouth and pressed it forcibly. She started feeling suffocated. The boy who had earlier stabbed again stabbed her on her neck and she became unconscious. When she came to senses, she noticed that those assailants had left the spot. She identified A - 2 to be the boy / assailant who had come to deliver a diary. A -4 was the boy who visited her house on 05.02.1997 as well as on 07.02.1997 and who grabbed her mouth on the day of occurrence. A -3 was the boy who visited her house on 05.02.1997 and 07.02.1997 and stabbed her on 07.02.1997. She identified skirt (Ex.P1), top (Ex.P2) and sameej (Ex.P3) which she had worn at the time of incident. In the cross -examination, she informed that her statement was recorded by the police four times on 16.02.1997, 27.03.1997, 06.04.1997 and 31.07.1997. Her statements dated 06.04.1997 and 31.07.1997 were recorded in the Court premises. She explained that she could not narrate entire facts in her statement (Ex.PW - 1/DA) recorded on 16.02.1997 as her physical condition was not good. She denied that her parents had tutored her the statement. She stated that A -2 and A -3 were not known to her prior to the date of occurrence. Her statement for the first time was recorded by the police on 16.02.1997. She denied that she was taken to the police station and the accused persons were shown to her. She reiterated that at GTB hospital, she had called her brother and told the name of A -1 and had signalled with her hands that she was stabbed. She elaborated that A -1s sister Aarti was engaged and her mother was mediator in the said marriage. However, the marriage could not be solemnized and the relations became strained.