* HIGH COURT OF DELHI : NEW DELHI
Date of hearing: April 28, 2009
Date of Order: May 12, 2009
+ Crl. A. No. 102/2000
% Ajay Pal @ Ajit Singh ... Appellant
Through: Mr. Jaswinder Singh and Mr.
Rakesh Nagar, Advocates
versus
The State ... Respondent
Through: Mr. Amit Sharma, Additional
Public Prosecutor for the State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR
1. Whether the Reporters of local
papers may be allowed to see
the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be
reported in the Digest?
SUNIL GAUR, J.
1. This is a case, where Appellant had purportedly fired from his country made pistol to injure one of the victims, to facilitate robbery near a nallah in Hari Nagar in the area of Police Station Badarpur, Delhi and Appellant was allegedly caught red handed near the spot, while his companions managed to escape from the clutches of law.
2. Appellant was tried in FIR No. 297/94 under Section 392/394/397/34 of IPC read with section 27 of Arms Act, Crl. A. No. 102/2000 Page 1 registered at Police Station Badarpur, Delhi for committing armed robbery at about 8.45 PM on 13th day of September, 1994, near pulia of Hari Nagar Nala and in the commission of this offence, Appellant was purportedly assisted by his three companions and the victims were Narender Kumar, Suresh Kumar and Dinesh, who were robbed of Rs.800/-, Rs.760/- and Rs.40/- respectively. Narender Kumar was also robbed of his wrist watch at the point of country made pistol. In this incident, Narender Kumar had sustained injuries from a shot fired by appellant/accused from his country made pistol. However, the aforesaid victims raised alarm, which attracted public persons, i.e., Gurpreet (PW-2) and Avtar (PW-3), who apprehended the appellant/accused near the spot and the appellant/accused was given beatings by the public persons, who had gathered at the spot and the PCR van also came at the spot, which led to the apprehension of the accused and of recovery of the country made pistol with live cartridges and it also led to the recovery of the robbed articles, i.e., wrist watch etc. from him. However, the companions of the appellant/accused managed to flee away.
3. During the investigation of this case, the statements of three victims, i.e., (PW-1), (PW-5) and (PW-6) as well as Crl. A. No. 102/2000 Page 2 of the public persons (PW-2) and (PW-3), who had apprehended the appellant/accused were recorded. The MLC (Ex.PW-7/A) of injured- victim (PW-1) was obtained and after completion of investigation, appellant/accused was charge sheeted for the commission of the aforesaid offences.
4. Appellant/accused chose to contest the charges framed against him for the offences punishable under Section 392/394/397/34 read with section 27 of the Arms Act. Trial ensued. Evidence of three victims, i.e., (PW-1), (PW-5) and (PW-6) as well as of the public witnesses, (PW-
2) and (PW-3) was recorded during the course of the trial. Dr. Deepak (PW-7) had proved the MLC (Ex.PW-7/A) of injured - victim (PW-1) and had opined the nature of injury sustained as grievous and was by a fire-arm. Sub- Inspector Desh Raj (PW-10) is the Investigating Officer of this case.
5. Plea taken by the appellant/accused before the trial court was that he was distantly related to Narender - injured/victim (PW-1) and he had given a loan of Rs.3,000/- to Narender (PW-1), who had not returned it and because of it, relations between them were strained and he has been falsely implicated in this case by Narender (PW-1). Appellant/accused alleged that Gurpreet Crl. A. No. 102/2000 Page 3 (PW-2) and Avtar (PW-3) are the police informers and they have falsely deposed against him. Interestingly, appellant/accused had got examined DW-1 - father of the injured - victim (PW-1), in his defence, who had stated that his son Narender (PW-1) has to pay some money to the appellant/accused and since his son did not return the money to the appellant/accused, there was hot exchange of words and his son had received injuries at the hands of someone else and had implicated the appellant/accused at the instance of the Mukhia.
6. Trial court relied upon the prosecution version and discarded the defence plea and has convicted the appellant/accused and vide impugned order of 2nd December, 1999, sentenced the Appellant to undergo rigorous imprisonment for seven years each with fine for the offences under Section 394 and under Section 397 of the Indian Penal Code. For the offence punishable under Section 27 of the Arms Act, appellant has been sentenced to undergo rigorous imprisonment for three years. Aforesaid sentences have been ordered to run concurrently by the trial court, which are under challenge in this appeal.
7. Arguments have been advanced by both the sides and learned counsel for the parties have referred to the Crl. A. No. 102/2000 Page 4 evidence on record at the time of hearing of this appeal.
8. Learned counsel for the Appellant contends that the victims (PW-5) and (PW-6) have not supported the prosecution case which renders the version of the solitary witness (PW-1) as not worthy of reliance, in view of the fact that father of this solitary witness (PW-1) has clearly stated that there was strained relations between the appellant/accused and the solitary witness (PW-1) due to money transaction and this witness (PW-1) was injured by someone else, but Appellant has been falsely implicated by him in this case. Public witnesses (PW-2) and (PW-3) are alleged to be police informers and so it is stated by learned counsel for the Appellant that their evidence would not advance the prosecution any further. Discrepancies pointed out in the prosecution case by the defence are in respect of the recovery memo of the country made pistol, which indicates that the country made pistol with live cartridge was recovered, whereas in the court, it has been revealed that the recovered country made pistol had a spent cartridge in it and it is also pointed out that there is discrepancies regarding the number of cartridges recovered. In the end, it has been submitted on behalf of the appellant/accused that when two views are possible, then, the view in favour of the Crl. A. No. 102/2000 Page 5 accused has to be preferred. To state so, reliance has been placed upon decisions reported in 2008 ILRDLH 17 1176; 2008 TLPRE 0-641; 2008 AD (CR) 257; 1994 SCALE 653; 2008 (1) JCC 493 (SC); 2007 (2) JCC 972 (SC) and 1998 (1) JCC (Del) 109. Nothing else has been urged on behalf of the appellant/accused.
9. Learned Additional Public Prosecutor for Respondent- State submits that the plea of the appellant/accused of being falsely implicated in this case is not at all plausible and the involvement of the appellant/accused in commission of the crime in question stands established from the fact that he has been apprehended near the spot by public person (PW-2) and (PW-3) and in the face of the evidence of the injured victim (PW-1), it cannot be said that the appellant/accused has been falsely implicated in this case. The defence plea is said to be an afterthought and it is submitted that the same has been rightly discarded by the trial court and that there is no force in this appeal.
10. Human nature is frail. Some are courageous and many are not. This explains the conduct of the victims Suresh (PW-5) and Dinesh (PW-6), who have not pin- pointed the appellant/accused as the culprit. Although these two victims have graphically narrated this incident, Crl. A. No. 102/2000 Page 6 but have tried to wriggle out of the inconvenient situation by pleading before the trial court that they are not in a position to identify that accused whom they had seen in police gypsy soon after this incident. Victim Dinesh (PW-6) faithfully narrates this incident, but claims that he has become panicky after this incident and he resiles from the initial version given by him to the police. Such like witnesses are not to be wholly blamed. They did not want to buy enmity with the accused by deposing against him. In real terms, no worthwhile protection is provided to the victims of the crime, which can enable them to gather courage to depose against the real culprits/assailants. This is an unfortunate situation, with which we are faced today. However, fortunately, in this case, the main victim Narender (PW-1), who is also an injured, has gathered courage and has deposed against the appellant/accused who was not only apprehended near the spot but from whom the weapon of offence, i.e., country made pistol as well as the robbed amount and wrist watch was recovered.
11. It is true that the testimony of the solitary witness is to be assessed with great care and caution. But it is equally true that a injured - victim like (PW-1) would be the last person, who would spare the real assailant and would falsely implicate the appellant/accused. Some story Crl. A. No. 102/2000 Page 7 of money transaction has been put forth by the appellant/accused to persuade this court to discard the testimony of the injured victim (PW-1). Prem Singh (DW-1) has deposed in favour of the appellant/accused to save him as he happens to be distantly related to the family of the injured victim (PW-1). This appears to be somewhat strange. In any case, the deposition of Prem Singh (DW-1) is found to be vague one as he does not spell out the nature of the money transaction between his son (PW-1) and the appellant/accused. Furthermore, as it has not been so suggested to the injured - victim (PW-1) in his cross-examination by the defence. Therefore, the trial court has rightly discarded the defence plea.
12. The star witness Narender (PW-1) is the injured - victim, who has deposed in clear terms that appellant/accused had robbed him and had fired at him when he had requested appellant/accused to at least return his identity card and in the light of the torch, he had seen the appellant/accused. Not only the torch, but also the weapon of offence, i.e., country made pistol as well as his robbed amount and the wrist watch has been recovered.
13. To assail the aforesaid recoveries, defence has tried to pick up some holes in the prosecution case by pointing Crl. A. No. 102/2000 Page 8 out that there is no mention of the identity card in the FIR or that the recovery memo of the weapon of offence talks of live cartridge whereas in the court, it has been deposed that the country made pistol was having spent cartridge. To my mind, these discrepancies are inconsequential. However, I find that the trial court has dealt with this aspect in the following manner:-
"Coming to the argument on behalf of the accused that while as per the prosecution case, one katta and two rounds had been recovered from the accused, a katta and three rounds had been produced in this court, which made the allegations against the accused improbable, I find that as per report Ex.PW5/A, two live were recovered from the pocket of the accused besides the katta. However, seizure memo Ex.PW10/C mentions that the barrel of the katta contained one empty round besides two live rounds. CFSL report Ex.PX also refers to one country made pistol (Desi Katta) fired cartridge case (Base detached) besides two cartridges which were received in CFSL. Besides the exhibits of this case, two fired cartridges pertaining to case FIR No. 91/94 dated 16.3.94 of Police Station Badarpur were also sent under the same reference. It is also revealed from the report that the cartridges of this case were C-1, L-1 and L-2 while the cartridges for case FIR No. 91/94 were C-1 and C-3. The report, therefore, shows that there were three cartridges pertaining to this case and while two cartridges L/1 & L/2 were live Crl. A. No. 102/2000 Page 9 and test fired in CFSL as per para 4 of the said report, cartridge C/1 was shown to be fired through the country made pistol sent alongwith the cartridges (para 1 of the report). Thus, the production of three empty cartridges of this case does not in any manner show that a false case had been made out against the accused as it was a case of recovery of two cartridges from the pocket of the accused besides one fired cartridges in the katta. The evidence of the Investigating Officer stating about recovery of two cartridges, though incorrect and against the prosecution case, cannot make the prosecution case unreliable as the Investigating Officer might have forgotten about this fact. Thus, this fact by itself does not subject the prosecution case to doubts in any manner when the prosecution case on all the material facts stands proved beyond any doubts."
14. After scrutinising the evidence on record, I find that no different view, than the one, as aforesaid, can be taken.
15. The evidence on record against the appellant/ accused is clinching, justifying his conviction by the trial court. There is no illegality or infirmity in the impugned judgment. This appeal lacks merit as I find that the sentence imposed upon the Appellant is the minimum for the offence under Section 397 of the Indian Penal Code, for which the appellant has been convicted.
Crl. A. No. 102/2000 Page 10
16. This appeal merits rejection and is accordingly dismissed.
17. Appellant is on bail. He is directed to surrender forthwith to serve out remainder of the sentence awarded. Trial court/ successor court to ensure compliance of this order.
18. With aforesaid directions, this appeal stands disposed of.
Sunil Gaur, J.
May 12, 2009 pkb Crl. A. No. 102/2000 Page 11