CRL.A.--358/2015. Case: SANJAY @ AMIT Vs. STATE. Delhi High Court

Case Number:CRL.A.--358/2015
Party Name:SANJAY @ AMIT Vs. STATE
Citation:NA
Judgement Date:August 22, 2016
Court:Delhi High Court
 
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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment reserved on: 13th July, 2016

Judgment delivered on: 22nd August,201

+ CRL.A. 1763/2014

GAURAV ..... Appellant

Represented by: Mr. L.S. Saini, Adv.

versus

STATE (NCT OF DELHI) ..... Respondent

Represented by: Ms. Neelam Sharma, APP with

SI Amit Rana, PS Maurya

Enclave.

+ CRL.A. 288/2015

SURAJ @ BHAGAT ..... Appellant

Represented by: Mr. Himanshu Dutt, Adv.

versus

STATE OF NCT OF DELHI ..... Respondent

Represented by: Ms. Neelam Sharma, APP with

SI Amit Rana, PS Maurya

Enclave.

+ CRL.A. 358/2015

SANJAY @ AMIT ..... Appellant

Represented by: Mr. Jatin Rajput, Mr. Vikram

Mathur, Mr. Anupam Dubey,

Advs.

versus

STATE ..... Respondent

CRL.A. Nos. 1763/2014, 288/2015 & 358/2015 Page 1 of

Represented by: Ms. Neelam Sharma, APP with

SI Amit Rana, PS Maurya

Enclave.

  1. By the present appeals the appellants Gaurav, Suraj @ Bhagat Sanjay @ Amit challenge the impugned judgment dated 22nd

    2014 convicting Gaurav and Sanjay @ Amit for the offences under Sections 395/186/332/353/34 IPC and Suraj @ Bhagat for the offences punishable under Sections 395/186/332/353/397/34 IPC in FIR No.142/2012 registered at PS Maurya Enclave and the order on sentence dated November, 2014 directing them to undergo rigorous imprisonment period of ten years and to pay a fine of `10,000/-; in default to simple imprisonment for a period of one month.

  2. Learned counsel for Gaurav contends that Pradeep, PW- 18 who the complainant has turned hostile. Further, Pradeep in his cross examination stated that Gaurav was not seen at the spot, hence benefit of doubt should be given to Gaurav. There are contradictions in the testimony of Pradeep Dinesh. Pradeep stated that Suraj @ Bhagat gave the stab blow stomach whereas Dinesh stated that Sanjay @ Amit gave stab Pradeep. Furthermore, Pradeep stated that one person caught hold who was apprehended and his name was revealed as Sanjay @ Amit, person inflicted knife injury and another boy was wearing blue t-shirt had cut marks on the mouth. The knife injury was inflicted by Bhagat and the person having cut marks on the mouth was acquitted learned Trial Court. Therefore, Gaurav was not one of those three boys, thus, was not present at the spot and liable to be acquitted. Conviction

    CRL.A. Nos. 1763/2014, 288/2015 & 358/2015 Page 2 of

    CORAM:

    HON'BLE MS. JUSTICE MUKTA GUPTA

    based solely on the testimony of Dinesh because he is not a reliable trustworthy witness. Dinesh failed to identify the boys who caught him but identified those persons who caught hold of Pradeep and gave stab injuries. It is totally unbelievable that a person can identify a who was standing at a distance, on the opposite side of the vehicle had no occasion to see on the other side.

  3. Learned counsel for Gaurav further contends that the TIP was conducted through Dinesh but through PW-19 ASI Sheshdhar who identify Gaurav in the TIP proceedings. Further TIP was conducted after two months by PW-20 HC Babu Lal after showing him photographs appellant Gaurav, hence under these circumstances, Gaurav refused participate in the TIP. The identification in Court was rightly not by the Trial Court as there is no purpose to conduct TIP after two Dinesh claimed that Sanjay @ Amit inflicted knife injury to Pradeep the other hand Pradeep identified Suraj @ Bhagat as the person who stabbed him and Sanjay @ Amit caught him hold with another person. The Court believed this statement of Pradeep but did not believe when specifically stated that Gaurav was not the other person. Learned Court failed to note that Dinesh stated that he remained in police station 15-16 days till his vehicle was not released and he wrongly identified Gaurav under the pressure of police. Thus, Gaurav is liable to be acquitted.

    stated that Sanjay @ Amit was arrested on the spot and a sum of Rs.

    1600 and the mobile phone of Pradeep was recovered from Sanjay @

    and were handed over to him on the same day in the police station. However, the prosecution case was that it was seized by the police and later on was taken on Superdari. Thus, the testimony of Dinesh cannot be

    CRL.A. Nos. 1763/2014, 288/2015 & 358/2015 Page 3 of

    upon. Moreover no recovery was effected from the possession or instance of Gaurav.

  4. Learned counsel for Suraj @ Bhagat contends that the appellant @ Bhagat was neither identified by any of the witness nor by Pancham. Furthermore, no Test Identification Parade was conducted. @ Bhagat was identified only by Pradeep (who has turned hostile) and too on the basis of the photographs shown to him at the police station. was no recovery of knife from Suraj @ Bhagat. No witness has about it and the versions of Pancham and Raju are different.

  5. Learned counsel for Sanjay @ Amit contends that both Pancham Raju have not recognized Sanjay. Further Pradeep also did not Sanjay though it is alleged that Sanjay caught hold of Pradeep when was inflicted on him. The only evidence is of Dinesh, who could not seen injuries being inflicted to Pradeep as he was on the other side truck. In the alternative, it is also submitted that as regards punishable under Section 186/332/353 IPC are concerned, the appellant already undergone four years imprisonment. The only offence left is 395 IPC. Since the prosecution has not been able to prove that 5 or persons were involved, thus no offence of dacoity punishable under 395 IPC is made out. Hence in the alternate the conviction converted to one under Section 392 IPC and the appellant be released on the period already undergone as no minimum sentence is prescribed for punishable under Section 392 IPC.

  6. Learned APP for the State on the other hand contends that Sanjay Amit who was apprehended at the spot was the one who caught Pradeep and not the one who caused stab injury. Pradeep also

    CRL.A. Nos. 1763/2014, 288/2015 & 358/2015 Page 4 of

    Sanjay. Gaurav refused to participate in TIP hence adverse inference required to be drawn. Pradeep identified Suraj @ Bhagat through who gave knife blow. The version of the prosecution witnesses is supported by the MLC of injured Pradeep Ex.PW-9/A proved by Dr. Farooq Khan PW-9 who noticed a lacerated wound on the left iliac region of the abdomen Pradeep. Recovery of wrist watch of the complainant has been made instance of the appellants, which also proves the prosecution case.

  7. Brief facts of prosecution case are that the complainant Pradeep 18 driver of Swaraj Mazda truck bearing no. PB – 65P – 7734 on 2nd

    2012, along with the cleaner Dinesh Kumar PW-10 was coming Ambala to Kirti Nagar, Delhi and at 2:00 AM when they reached Chowk, a TATA 407 Tempo bearing no. DL – 1LE 7561 stopped in front of their truck and 8-10 boys came out of the truck. Two three boys pulled complainant down from his truck and two three boys pulled out the While two boys were holding the complainant, one of the boys took complainant‟s purse from his pocket. Thereafter, those boys tried to away the complainant‟s truck and when the complainant tried to same, one of them stabbed him with a knife in his stomach. Those drove away the truck towards Wazirpur. Thereafter, two police man them on a motorcycle to whom the complainant and the cleaner narrated entire incident. The police men along with the cleaner went Wazirpur to apprehend the assailants and trace the truck. While complainant was walking, he saw the assailants and TATA 407 opposite side of the road at Kohat Red Light where the police apprehended one of the assailants who had robbed him. The name person apprehended was revealed as Sanjay @ Amit and he was

    CRL.A. Nos. 1763/2014, 288/2015 & 358/2015 Page 5 of

    by the complainant. The complainant also stated that Sanjay @ Amit holding him when other boy stabbed him. On the basis of the statement PW 18/A of the complainant, FIR was registered under 395/397/412/186/332/353/34 IPC and...

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