Kashmir Singh S/O Sh. Karam Singh ... vs The State (Nct Of Delhi)
2002 Latest Caselaw 1298 Del

JUDGMENT

V.S. Aggarwal, J.

1. Kashmir Singh, appellant has preferred the present appeal directed against the judgment and order of sentence dated 7th August, 2000 and 8th August, 2000 respectively. Learned Additional Sessions Judge held the appellant guilty of the offence punishable under Section 394/398 Indian Penal Code and sentenced the appellant to five years rigorous imprisonment and a fine of Rs. 1,000/- for the offence punishable under Section 394. In default of payment o fine he was to undergo further rigorous imprisonment for six months. For the offence punishable under Section 398 Indian Penal Code the appellant was sentenced to undergo rigorous imprisonment for seven years and a fine of Rs. 2,000/-. In default of payment of fine he was to undergo further rigorous imprisonment, for one year. Both the substantive sentences were directed to run concurrently.

2. The facts of the prosecution case In brief are that on 19.10.1998 Mrs. Neena Sabharwal along with her husband and two children besides a domestic servant were going back from the office of her husband after performing Diwali pooja. They have stopped their car near Alankar cinema market on the main road. The husband of Mrs. Neena Sabharwal with two children had gone to purchase crackers while Mrs. Neena Sabharwal and the servant were sitting in the car.

3. After some time the appellant came there and asked the complainant to take their car a little ahead. Mrs. Sabharwal told the appellant that she does not know driving. She will call her husband he will do the needful. The ignition keys of the car were with him. The appellant told her that keys were very much in the car and he will do the needful by driving the car. He had told her that he was an employee of the par king place. Thereafter the appellant started driving the car solely but Then enhanced the speed and started driving at a high speed. Ms. Sabharwal caught hold of the appellant but he took out a knife. The domestic servant Deepak started crying. Appellant pushed him out of the car. He broke the barrier of the police because head constable Kiranpal and constable Prem Prakash had tried to stop the car. They stopped the car at gun point. The husband of Mrs. Sabharwal noticed it and were shouting for help. After the appellant was apprehended a knife was recovered from the hand of the appellant. He was taken to the police station. A sketch of the knife was drawn and it was converted into a sealed parcel. While the appellant was driving the car rashly and negligently he had hit Sandhya, Swayam and Shivani who were removed to the hospital. On these broad facts as against the appellant report under Section 313 Code of Criminal Procedure for the offences punishable under Section 394/398 Indian Penal Code was filed.

4. A charge was framed against the appellant for the said offences punishable under Section 394 and 398 Indian Penal Code to which the appellant pleaded not guilty and claimed a trial.

5. The prosecution case in all had examined 12 witnesses. When the appellant was examined under Section 313 Code of Criminal Procedure his version was that he has been falsely implicated but did not produce any defense.

6. The learned trial court on appraisal of the evidence held that it has been established that the appellant had entered the car and started driving it thereafter he had threatened Mrs. Sabharwal and pushed the servant out of the car while he continued to drive the same. Believing the version of the prosecution the above said judgment and order of sentence was passed. Aggrieved by the same the present appeal has been preferred.

7. In order to establish that the appellant had injured Mrs. Sandhya and Ms. Shivani the prosecution had examination them as PW-1 and PW-2. The material witness in this regard was Mrs. Neena Sabharwal, PW-3. The witness stated that on 19th October, 1998 she along with her husband and children besides the domestic servant had gone to the office of the husband for diwali puja. After performing the puja they were coming back. On the way they stopped their Maruti car and were going towards the Alankar cinema market on the main market on the main road. She and the domestic servant were sitting In the car. While other members of the family went to purchase crackers. After few minutes the appellant had come and wanted her to take the car a little ahead. She had told him that she does not know driving and she would call her husband. Appellant told her that keys were inside the car and he will do the needful thereafter he started driving the vehicle slowly telling her that he was an employee of the parking place. When the appellant did not stop the car and was continuing to drive it she caught hold of him from the collar. He took out a knife and told her to sit quietly. When the servant started crying he threw him out of the car and started driving it in a rash and negligent manner and two children were hurt. The appellant had broken the traffic barrier. Thereafter he was stopped. A knife was recovered from the appellant. When cross-examined she stated Deepak had left their services and his whereabouts are not known. She admitted that knife P2 was told to have been recovered from the appellant.

8. Sanjiv Sabharwal, PW-4 is the husband of Mrs. Neena Sabharwal and he in a like manner testified that when he had gone with the children to purchase the cracker his wife was sitting on the back seat. He had left the keys inside. When he came back the car was not there. He heard the voice of cries of his wife who was shouting for help. The police had halted the car and the appellant was apprehended. He too stated that Deepak had left their services and his present whereabouts are not known. He admitted that if similar types of knives are mixed up as P2 he will not be able to identify the knife purported to be recovered from the appellant.

9. PW-3 head constable Kiranpal was on duty on 19th October, 1998. He stated that car coming from the side of Alankar cinema and he heard noise bacho bacho. There was one sitting lady inside the car. He signalled the car to be stopped but the driver did not stop it. On the point of gun he stopped the car. The appellant was overpowered and knife P2 was recovered from him.

10. On behalf of the appellant it was argued that the prosecution has not cared to examine Deepak who was the servant of the complainant and was stated to be inside the car. According to the learned counsel he was a material witness and non examination of the said material witness clearly show that prosecution is not corning up with three facts.

11. In this regard the argument of the learned counsel in the peculiar facts must fail. It has transpired in the evidence of Mrs. Sabharwal and her husband referred to above that whereabouts of the servant is not known who has left their services. When a person cannot be traced necessarily if he is not examined adverse inferences should not be drawn. Not only that when other witnesses are on the record and if it is possible on basis of their testimonies to establish a particular fact it becomes unnecessary to examine each and every prosecution witness. In that view of the matter the said argument must fail.

12. It was further argued that there was no injury noticed on the person of Mrs. Sabharwal and therefore it clearly show that in fact what is being stated is not correct. Even on this count the argument necessarily has to be stated to be rejected. While committing robbery if injury is caused Section 394 Indian Penal Code would be attracted. Herein as noticed above injury had been caused to two persons, namely Sandhya, called PW-1 and Shivani, called PW-2. It is not necessary that injury must have been caused to Mrs. Sabharwal. The appellant in fact was armed with a deadly weapon and he had threatened Mrs. Sabharwal with said weapon. It was not necessary that injury must be caused to attract rigorous of Sect ion 397/398 Indian Penal Code. Even the said contention in that view of the matter must fail.

13. Some feeble argument even was addressed if knife had been recovered from the appellant, but as already pointed the consistent evidence on the record clearly show that appellant was apprehended red handed and knife was recovered. Evidence has to be viewed in light of fact that the complainant and her husband had no animosity against the appellant. They had no axe to grind by implicating an innocent person. The sequence of events clearly reveal that there is no ground to discredit or disbelieve them. The trial court in these circumstances rightly held the appellant guilty of the said offences.

14. For these reasons appeal being without merit must fail and is dismissed.