VINAY  Vs STATE

CRL. A. Nos. 790 & 791 of 2016 Page 1 of 12IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: 05.01.2021
+ CRL. A. 790/2016
VINAY …..Appellant
Versus
THE STATE ….. Respondent
Advocates who appeared in this case:
For the Appellant : Mr Vijay Kinger, Advocate.
For the Respondent : Mr Ravi Nayak, APP for State.
AND
+ CRL. A. 791/2016 and CRL.M. (BAIL) 1353/2019
RAJ TILAK …..Appellant
Versus
THE STATE ….. Respondent
Advocates who appeared in this case:
For the Appellant : Mr Zeeshan Hashmi, Advocate.
For the Respondent : Mr Ravi Nayak, APP for State.
CORAM
HON’BLE MR JUSTICE VIBHU BAKHRU
JUDGMENT
VIBHU BAKHRU, J
1. The appellants have impugned a judgment dated 21.07.2016,
whereby the appellants were convicted of offences punishable under
section 323, 354, 354A, 356, 394, 450, 452, 506 (Part II) read with
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 2 of 12Section 34 of the Indian Penal Code, 1860 (IPC). In addition, the
appellant Vinay was also convicted of an offence punishable under
Section 411 of the IPC. The appellants also impugn an order on
sentence dated 25.07.2016, whereby the appellants were sentenced in
respect of the offences committed by them.
2. A tabular statement indicating the sentences awarded to the
appellants in respect of the offences for which they were convicted is
set out below: –
S.
No.Offence Sentence
1. S. 323 IPC Rigorous Imprisonment for 1 year with fine of
₹ 1,000/- and in the event of default in
payment of fine, Simple Imprisonment for 30
days.
2. S. 354 IPC Rigorous Imprisonment for 3 years with fine
of ₹ 1,000/- and in the event of default in
payment of fine, Simple Imprisonment for 30
days.
3. S. 354-A
IPCRigorous Imprisonment for 1 year with fine of
₹ 1,000/- and in the event of default in
payment of fine, Simple Imprisonment for 30
days.
4. S. 356 IPC Rigorous Imprisonment for 2 years with fine
of ₹ 1,000/- and in the event of default in
payment of fine, Simple Imprisonment for 30
days.
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 3 of 125. S. 394 IPC Rigorous Imprisonment for 7 years with fine
of ₹ 5,000/- and in the event of default in
payment of fine, Simple Imprisonment for 6
months.
6. S. 450 IPC Rigorous Imprisonment for 5 years with fine
of ₹ 5,000/- and in the event of default in
payment of fine, Simple Imprisonment for 6
months.
7. S. 452 IPC Rigorous Imprisonment for 3 years with fine
of ₹ 5,000/- and in the event of default in
payment of fine, Simple Imprisonment for 6
months.
8. S. 506
Part II IPCRigorous Imprisonment for 3 years with fine
of ₹ 5,000/- and in the event of default in
payment of fine, Simple Imprisonment for 6
months.
3. In addition to the above, the appellant Vinay was also sentenced
to rigorous imprisonment for a period of one year with a fine of
₹1,000/- and in the event of default in payment of fine to undergo
simple imprisonment for a further period of 30 days for committing an
offence punishable under Section 411 of the IPC. All the sentences
awarded to appellants were directed to run concurrently.
Factual context
4. Briefly stated, the facts of the case are that on the basis of a
complaint made by Dolly Mondal, an FIR (FIR bearing no. 677/14
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 4 of 12under Sections 323/354/354A/394/397/452/411/506/34 of the IPC
registered at PS Khajuri Khas) was registered against the appellants.
The complainant alleged that on 07.07.2014 at 11.30 a.m. at H. No. B-
65, Gali No. 2, Dayal Pur, New Delhi, the accused Vinay and Raj
Tilak entered the complainant’s house on the pretext of shifting the
electricity meter. They robbed her of her jewellery and mobile phone
thereby, causing hurt and outraging her modesty. It was also alleged
that the accused used a knife – a deadly weapon, at the time of
committing the said robbery. Upon hearing the alarm, the public near
her house caught the accused Vinay. The accused Raj Tilak managed
to escape and was apprehended from his house at around 8 pm later
that day. Pursuant to aforesaid FIR, the accused were charged with the
commission of the offences punishable under Sections 323/354/354A/
394/397/452/411/506/34 of the IPC. They pleaded not guilty and the
matter was set down for trial.
Evidence
5. During the course of the trial, the prosecution examined eleven
witnesses.
6. Dolly Mondal, the complainant, was examined as PW-1. She
stated that on 07.07.2014 at 11.30 a.m., the accused Vinay and Raj
Tilak entered the complainant’s house on the pretext of shifting the
electricity meter. PW-1 called her husband (PW-2) from her mobile
phone to confirm the same. She also asked the accused Vinay to talk to
her husband on phone. She stated that her husband had asked them to
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 5 of 12come the next day before 10 am when he would be home. The accused
Vinay and Raj Tilak asked her to show them the air-conditioner. She
stated that she asked them why they wanted to see it and asked them to
leave so that she could shut the door. The accused Raj Tilak became
aggressive and asked her what she had said ( kya bola, kya bola ) and
inserted his fingers into her mouth and brought her down on the floor.
PW-1 stated that the accused Raj Tilak bit her on her left cheek. He
pinned her down and the accused Vinay bolted the door from inside.
She testified that the accused took her forcibly inside the room and
pinned her down. The accused Vinay dragged her by her hair; he bit
her on her forearm, upper arm of her left hand; and gave fist blows on
her back and other parts of the body. She alleged that he bit her on her
back and other parts of her body. She alleged that the accused robbed
her of her gold chain, two gold rings and four ear-rings (two small and
two large) which PW-1 was wearing at the time of the incident, and a
Samsung mobile phone. She stated that she kept screaming and heard
the accused telling each other to kill her. She stated that Vinay was
holding her legs and tried to stab her with a knife but she caught it in
her hand. Consequently, she suffered a cut injury on her left palm.
7. She stated that hearing her screams, local persons in the
neighbourhood gathered outside the door that opened on the side street
and started knocking on the door. They asked her to open the door
while enquiring as to what had happened ( “Didi, kholo kholo andar
kya hua hai” ). She stated that the accused left the house from the main
door. She followed them raising an alarm and the accused Vinay was
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 6 of 12apprehended by the public present outside the house. The accused Raj
Tilak managed to escape. Someone took her phone from the accused
Vinay and handed it over to her. Someone called the PCR, which
arrived about 10-20 minutes later and took her to the Hospital.
Thereafter, at around 3 pm, she was medically examined at GTB
Hospital and her statement under Section 161 Cr.PC was recorded by
SI Shalinder Singh (Ex. PW1/B). She stated that she returned to her
house and the IO also came there. She testified that she handed over
the recovered Samsung phone to the IO at her house (Ex. PW1/C). She
further stated that at around 8 pm, the accused Raj Tilak was also
arrested by the IO and she identified him at Village Sherpur (Ex.
PW1/E).
8. In her cross-examination, PW-1 was confronted by her
statement under Section 161 of the Cr.PC and some of the facts as
testified by her were not a part of her statement. PW-1 affirmed that
the police officials did not enquire about the mobile phone numbers of
PW-1 and her husband. She affirmed that the place where the initial
conversation with the accused persons had taken place was not visible
from the houses situated opposite to her house. She affirmed that
around fifty persons from the locality were present when the accused
Vinay was apprehended by the public. She stated that she does not
know the person who recovered mobile phone from the accused Vinay
and handed it over. She denied having a nephew by the name of
Pradeep or that the accused Vinay had provided a loan to Pradeep or
on his surety. She denied knowing the accused Raj Tilak and also
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 7 of 12denied owing him any money. She denied that all the documents were
prepared at the police station by the IO or that she had signed the same
without verifying the contents.
9. Robin Mondal, the husband of the complainant, deposed as PW-
2. He stated that on 07.07.2014 at around 11:30 am, he received a
telephonic call from PW-1, wherein PW-1 informed him that the
accused persons had come to their house. PW-2 stated that he spoke to
one of the accused over the telephone, asked him to come the next day
and disconnected the call. He stated that his subsequent calls to PW-1
were not received by her. She returned his call after 25-30 minutes
informing him about the alleged incident. Thereafter, he reached GTB
Hospital and he and the complainant went home after her treatment.
10. On cross examination, PW-2 affirmed that the police did not
make any enquiries or recorded his statement regarding the alleged
incident. He affirmed that he had prepared the gold ornaments that
were robbed by the accused, from the gold received by him as labour
charges. He affirmed that he did not maintain a record of the
customers who gave gold to him as labour charges. He affirmed that
he did not give the receipt of the ornaments to the IO.
11. Dr. Ashutosh deposed as PW-4. He stated that on 07.07.2014,
he examined PW-1 at GTB Hospital and affirmed having signed the
MLC No. 2625/14. He also identified the photographs showing the
injuries suffered by the complainant. In his cross examination, PW-4
affirmed that there was no cut on the left palm of PW-1. He further
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 8 of 12affirmed that PW-1 had informed him that she had sustained the
injuries on account of her being bit by someone.
12. Ct. Subodh Kumar deposed as PW-6. In his cross examination,
he affirmed that he reached the spot of the alleged incident at around
12:30 pm and there were fifty to sixty public persons present there. He
affirmed that the accused Vinay had sustained injuries. He affirmed
that the accused Raj Tilak was found outside his house with two or
three persons. He affirmed that the accused did not run away and stood
silently when he was apprehended from Village Sherpur.
13. Ct. Sanjeev Singh deposed as PW-8. He affirmed that on
07.07.2014 he reached the spot of the alleged incident at around 12-
12:15 pm and there were fifteen to twenty persons present at the spot.
He further affirmed that the accused Vinay did not sustain any injuries.
14. SI Shailender Singh, the Investigating Officer, deposed as PW-
11. He stated that on 07.07.2014, after being informed of DD No. 23A
at 12:08 pm, Ct. Subodh (PW-6) and him reached the complainant’s
house. He stated that the accused Vinay had sustained injuries, as the
public had beaten him. After being rescued, the accused Vinay was
sent to the police station. Thereafter, he and Ct. Subodh (PW-6)
reached GTB Hospital to record the statement and obtain the MLC of
PW-1. He affirmed that he seized a Samsung mobile phone, which was
recovered by PW-1. He prepared a rukka (Ex PW11/A) for registration
of the FIR .Thereafter, on the basis the information given by the
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 9 of 12accused Vinay, he along with PW-6 arrested the accused Raj Tilak at
around 8 pm from Village Sherpur.
15. On cross examination, PW-11 affirmed that the accused Vinay
was medically examined at JPC Hospital (Ex. PW11/D-1). He
affirmed that he asked persons from the public to join the
investigation, however, none agreed. He denied that he went to the
house of the accused Raj Tilak and apprehended him from there while
he was sleeping. He affirmed that the accused Raj Tilak tried to run
away before being apprehended and no person from the public were
present at that time. He denied making any enquires from the
neighbours of the accused Raj Tilak.
16. The statements of the accused were recorded under Section 313
of the Cr.PC. They stated that they had been falsely implicated in the
present case. The accused Vinay stated that he had gone to the
complainant’s house alone to demand money from her nephew. He
stated that he did not enter the complainant’s house. He further stated
that he had sustained injuries because of the police officials and not the
public. He stated that he was made to sign blank papers at the police
station. The accused Raj Tilak stated that he was apprehended by the
police from his house while he was sleeping.
Reasons and conclusion
17. The prosecution’s case rests almost entirely on the testimony of
the complainant (PW1) and the MLC. The complainant’s MLC
(PW1/A) clearly indicates that she had suffered a wound on her left
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 10 of 12cheek measuring approximately 3 x 1.5 cm. She had swelling on her
lower lips and there were bruises present on the left cheek and the left
forearm. In addition, there were bite marks on the left cheek and the
left forearm. The photographs (PW1/G colly) establish that the
complainant had suffered an ugly injury on her left cheek. One of the
photographs clearly indicates the bite marks of her cheek as well as an
open wound. Although the investigation in this case has been shoddy
and wanting, however, it cannot be disputed that the prosecution has
clearly established that the complainant had suffered the injury. This
lends much credence to her testimony.
18. The jewellery stated to have been robbed by the appellants has
not been recovered. Although, no bills have been produced for
purchase of such jewellery; the complainant’s husband had explained
that the jewellery was made by the gold received by him as labour
charges for making jewellery. There is no reason to doubt that
explanation and, therefore, the same must be accepted.
19. The mobile phone stated to have been stolen by the appellant
Vinay was not recovered from him by the police officials or by the
complainant. According to the testimony of the complainant, someone
from the crowd had recovered the same and had handed it over to her.
As to who had recovered the said mobile has not been brought on
record. None of the persons who had apprehended the appellant Vinay,
have been examined.
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 11 of 1220. According to the testimony of the complainant, a large number
of persons had collected on the side lane of her house and had heard
her scream. They had knocked on the door and had enquired as to what
was happening inside. However, none of the said neighbours were
examined.
21. In view of the above, one may have doubted the prosecution’s
case against the appellants. But the appellant, Vinay had clearly
admitted that he had gone to the house of the complainant. In this
view, there can be no doubt that the appellant Vinay was present at the
spot. There is also no doubt that he had been apprehended by the
public. The appellant Raj Tilak was not apprehended at the spot but he
has also been identified by the complainant. The appellant Vinay, has
not led any evidence to establish as to why they had gone to the
complainant’s house. Although, in his statement, the appellant Vinay,
had stated that he had gone there because the complainant’s nephew
(one Pradeep) had borrowed money from him. However, there is no
evidence to establish the same. Suggestions to the aforesaid effect
were put to PW1 (the complainant) in her cross-examination.
However, she denied that she had any nephew by the name of Pradeep.
Thus, there is no substance in the defence sought to be built up by the
appellants. The complainant had suffered injuries and there is no
reason whatsoever for her to falsely implicate the appellants. Thus, this
court finds no reason to doubt her testimony that the appellants had
entered her premises and had robbed her of her valuables.
2021:DHC:13CRL. A. Nos. 790 & 791 of 2016 Page 12 of 1222. The complainant had identified the appellants and her testimony
remained unshaken.
23. This Court has evaluated the evidence obtaining in this case and
concurs with the decision of the trial court in convicting the appellants
for the offences for which they have been convicted.
24. However, this Court finds that the sentence awarded to the
appellants for committing the offence punishable under section 394
IPC is harsh and does not factor in the mitigating circumstances. The
appellant Vinay was aged about 21 years at the material time and had
no criminal antecedents. The appellant Raj Tilak was also aged about
24 years. His antecedents are clean as well. He has a minor daughter,
which was about four months old on the date of the impugned
judgment. The court had also disbelieved the case set up by the
prosecution that either of the appellants were armed. The appellants
have already served their sentences for all the offences except the
offence punishable under section 394 of the IPC. They have also
served more than six years for the said offence. In the given
circumstances, the sentences awarded to the appellants are reduced to
the period already served. The appellants are directed to be released
forthwith.
25. The appeals are disposed of in the aforesaid terms. The pending
application is also disposed of.
VIBHU BAKHRU, J
JANUARY 05, 2021/RK
2021:DHC:13