NAZIM KHAN ALIAS GUDDU Vs. STATE

JUDGEMENT

(1.) In the present appeal, the judgment dated 23rd March, 2012 and order on sentence dated 26th March, 2012 passed by learned Additional Sessions Judge (North West Delhi) arising out of Sessions Case No. 124/2011 relating to FIR No. 20/2010, P.S. Burari convicting the appellant for offences punishable under Sections 392/397/411/34 IPC and sentencing to undergo simple imprisonment for seven years and a fine of Rs.5,000/- and in default simple imprisonment for a period of two months, has been assailed by the appellant.

(2.) As per the prosecution case, on 30th January, 2010, at about 2.15pm, Asifa Alam/complainant/PW3 was robbed by seven/eight persons. At the time of incident, it is submitted that she was present in her house and was washing water filter in the kitchen at the first floor. She was running a clinic at the ground floor of her house and the doors of the house were open. Initially, five boys came upstairs. They asked her to hand over the jewellery she was wearing and she removed her gold earrings(bunde), gold chain with pendant, gold rings, and a pair of ear rings (bali). In her complaint to the police, she has further stated that at that time one of the boys mentioned that they had committed theft in her house earlier also and that they had returned to take the remaining items from her house. She further stated that thereafter, two more boys having pistols came upstairs and started opening the almirah. From almirah, they removed gold jhumke, a pair of gold long bunde, a pair of another gold jhumkees and two pairs of silver pajeb and a cash of Rs. 25,000/-. They had locked the complainant inside the bathroom. She came out of bathroom with the help of neighbours.

(3.) As per prosecution, on 8th January, 2009, a theft had taken place in her house and the matter was reported to the police but police could not solve the case and no recovery was effected at that time. On the basis of this FIR, the police started investigation. The Investigating Officer (PW12) SI Sanjay Kumar learned that the robbery was the handy work of one Manzoor gang and it was this gang who had committed the theft in the house of complainant/PW3 on 8.01.2009 also. He also learned that the appellant is the member of the said Manzoor Gang and so he arrested the appellant on 5th March, 2010 from his residence at Wazirabad vide arrest Memo Ex.PW4/B. The disclosure statement of appellant was recorded vide Memo Ex.PW4/A. While in police custody, the police got recovered a pair of gold earrings and a pair of silver pajeb kept in a paper beneath the mattress of the bed in his house. The articles were recovered vide Memo Ex.PW4/D. The test identification parade of articles were held on 7th April, 2010 which is Ex.PW13/F wherein, PW3 had correctly identified the recovered articles. On 6th March, 2010, an application was moved for test identification parade of the appellant. The appellant, however, refused to participate in the test identification parade and this fact was recorded by the learned Metropolitan Magistrate in his proceedings dated 12th March, 2010 vide Memo Ex.PW13/C at Tihar Jail. Police could arrest only the appellant in this case.