RAJ KUMAR Vs. STATE OF NCT OF DELHI

JUDGEMENT

(1.) By these appeals, appellants Raj Kumar, Satish, Islam, Mohd. Zaiki, Sunil Kumar, Rajender and Parveen Goyal challenge the impugned judgment dated 6th September 2017 wherein the appellants Satish, Islam, Mohd. Zaiki, Sunil Kumar and Rajender were convicted for offence punishable under Section 395 IPC. Appellants Sunil and Satish were also convicted for the offence punishable under Section 397 IPC and Raj Kumar and Parveen Goyal were convicted for the offence punishable under Section 412 IPC in FIR No. 340/2011 registered at PS Shahbad Dairy. Appellants also challenge the order on sentence dated 11th September 2017 directing Satish, Sunil, Rajinder, Islam and Zaiki to undergo rigorous imprisonment for a period of fourteen years and to pay a fine of Rs. 5000/- each and in default to undergo simple imprisonment for a period of one year for the offence punishable under Section 395 IPC, Satish and Sunil to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 5000/- each and in default to undergo simple imprisonment for a period of one year for the offence punishable under Section 397 IPC and Raj Kumar and Parveen Goyal to undergo rigorous imprisonment for a period of ten years and to pay a fine of Rs. 50,000/- each and in default to undergo simple imprisonment for a period of one year for the offence punishable under Section 412 IPC.

(2.) Assailing the conviction, learned Counsel for Satish submits that identification of Satish is disputable as Satish was not identified at the first instance but during the trial while he was in custody. He further submits that identification was also not possible as all alleged persons present inside the factory were sitting head down which means that they could not identify the assailants. SI Anuj Nautiyal in his testimony has deposed that he met Lukhman and Manoj at Tihar Jail on 28th January 2012 before the TIP proceedings thus creating doubt that the assailants were shown to the witnesses. He further submits that the prosecution has failed to produce any site plan of the place of occurrence in order to establish whether there was electricity or not. The prosecution has also failed to link Satish with any recovered vehicle. He further submits that Satish was arrested in FIR No. 326/2011 registered at PS Adarsh Nagar on 27th January 2012 and while being produced in that case, the Investigating Officer of the present case talked to him and sought PC remand and thereafter filed the application for TIP proceedings. He submits that Tofi Ram did not recognize Satish in the TIP proceedings but recognized him in court and did not recognize him in the third instance. He further submits that no recovery was made from him and he has been falsely implicated in the present case. He further submits that offence punishable under Section 395 is not made out as there were only 3-4 persons and under Section 395 the minimum requirement is that of five persons. The broken lock was also not seized in order to show forced entry into the factory.

(3.) Learned Counsel for Sunil Kumar submits that there were four eyewitnesses and all of them stated that they were tied down by the gamcha while three of them stated that the assailants used knife or swords. He further submits that no description of the assailants was given. He also submits that Sunil was arrested in another case. As per the disclosure statement which was recorded the only evidence to connect Sunil was the fact that was already discovered on 14th December 2011 or disclosed by Islam so there can be no fresh disclosure again. No eye-witness identified the vehicle nor has the recovery been made at the instance of Sunil. SI Sonu in his deposition stated that he broke the lock of the main gate, but the same has not been seized. He further submits that Lukman has deposed that Sunil was armed with a deadly weapon but only the evidence of identification by Lukman is not sufficient to connect Sunil to the alleged robbery.