Siri Shankar vs The State Of Nct Of Delhi
2009 Latest Caselaw 1197 Del

     *                   HIGH COURT OF DELHI : NEW DELHI


                     Judgment reserved on : March 20, 2009
                      Judgment delivered on: April 06, 2009

     +                   Crl. Appeal No. 33/2000
     Siri Shankar                   ...                   Appellant
                         Through:   Mr. Rajender Singh Negi,
                       Advocate

                                     versus

     The State of NCT of Delhi       ...        Respondent
                   Through: Mr. Amit Sharma, Additional
                               Public Prosecutor for 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. In this appeal, appellant- Siri Shankar S/o Sh. Sone Lal, is

assailing his conviction for the offences under Section 328/34 of

the Indian Penal Code and under Section 380/34 of the Indian

Penal Code vide impugned judgment of 25th November, 1999

and order of 1st December, 1999 of the trial court, vide which

he has been sentenced under Section 328/34 of the IPC to

Rigorous Imprisonment for four years and to pay a fine of

rupees one thousand and in default of payment of fine, to

Crl.A. No. 33/2000 Page 1 undergo Simple Imprisonment for four months. In addition,

appellant has also been sentenced under Section 380/34 of the

IPC to RI for two years and to pay a fine of rupees five

thousand and in default of payment of fine, to undergo Simple

Imprisonment for a period of two months. Both these sentences

have been ordered by the trial court, to run concurrently.

2. The facts of this case which needs to be noticed for

disposal of this appeal are that on 9th September, 1997, when

Complainant- Hawaldar Nek Ram (PW-1) was coming from

Kashmir and was at Old Delhi Railway Station, at about 9 p.m.,

two persons, met him, out of whom, one person was limping

and he asked another one to bring tea and persuaded Nek

Ram (PW-1) to have it. Both these persons told him that they

were also going to Etava, and they disclosed their names as

Kallan Singh and Siri Shankar. After having tea, the

complainant- Hawaldar Nek Ram (PW-1) felt giddy and fell

asleep. When Nek Ram (PW-1) regained his senses, the train

had reached Bhatna railway station and his luggage and other

belongings, as well both those co-passengers, who boarded

train with him were missing. He disclosed that his luggage

contained One coloured Hot Shot Camera, an alarm watch,

Rupees ten thousand only in cash and twelve bottles of rum,

clothes for children, soap and tea while he also had one hold-all

Crl.A. No. 33/2000 Page 2 for bedding (bister-band) and a kit bag. Nek Ram (PW-1)

reported this incident to GRP, Etawa, in writing (EX.PW1/A). On

his return to his house from Jabalpur, after about a month,

relatives of accused-Kallan, told him that accused-Kallan had

sold the stolen articles in the village. He, along with his brother,

reached Kallan's village and recovered one shirt and water

bottle from his possession. Accused-Kallan disclosed that the

remaining stolen articles were with his companions- Siri

Shankar and Ram Kishan Tiwari and this fact was brought to

the notice of the police, who searched the house of Siri

Shankar and got recovered one kitbag, one hold-all of beddings

(bister band), one quilt with over and uniform material in the

presence of Shiv Shankar from his house vide Recovery Memo

(Ex. PW1/B).

3. After completion of investigation, Appellant and his co-

accused Kalan @ Rambir were put to trial for the offences

under section 328/32 and under section 380/34 of the Indian

Penal Code as they did not plead guilty to the aforesaid

charges before the trial court.

4. Out of six witnesses examined at trial, the material ones

are the Complainant/first informant - Ex. Hawaldar - Nek Ram

(PW-1), Head Constable - Sohanbir Singh (PW-6) and Sub-

Inspector Netrapal Singh, (PW-5), who is the Investigating Crl.A. No. 33/2000 Page 3 Officer of this case. Appellant before the trial court had denied

the prosecution case and had claimed to be falsely implicated

in this case and alleged that the recovery of the articles from his

house were planted upon him by the police to implicate him in

this case. Appellant got his brother Shiv Shanker (DW-1)

examined in his defence to show that he was not present at his

house at the time of the alleged recovery. Mahesh Chand (DW-

2) and Ram Singh (DW-3) are the witnesses to the recovery of

the stolen articles from the house of the Appellant. However,

they claim that the articles taken away by the police, belong to

the family of the Appellant. The trial concluded, resulting into

the conviction of the Appellant and his co-accused for the

offences with which they were charged. Appellant has been

convicted and sentenced vide impugned judgment as indicated

above.

5. Both the sides have been heard in this appeal and the

evidence on record has been perused.

6. The contentions raised on behalf of the Appellant are that

there is discrepancy in the prosecution case in respect to the

number of articles recovered. It is pointed out that as per the

memo Ex.PW-1/B, 27 articles were recovered, whereas, as per

another memo Ex. PW-1/C, the articles recovered in 30

numbers. It is stated that the prosecution case was that some Crl.A. No. 33/2000 Page 4 of the articles were already sold and then, how can 30 articles

be recovered. It is also pointed out by learned counsel for the

Appellant that the star witness (PW-1) has stated in his

evidence that the writing work was done by the police on its

own and the photographs of the Appellant were shown to the

Complainant/first informant (PW-1) and therefore, his refusal to

participate in the Test Identification Parade was justified. Lastly,

it is submitted that the prosecution case is highly doubtful and

the impugned judgment is unsustainable and so the Appellant

deserves to be acquitted. Nothing else has been urged on

behalf of the Appellant.

7. Mr. Amit Sharma, Additional Public Prosecutor for the

State supports the impugned judgment and sentence and

submits that the modus operandi adopted by the Appellant and

his co-accused is quite common and there is nothing

improbable about the prosecution case. It is pointed out that

there is no reason as to why the Complainant (PW-1) would

falsely implicate the Appellant in this case and the

discrepancies pointed out by the defence in the prosecution

case are natural and they do occur with the passage of time. It

is submitted that the recovered stolen articles have been duly

identified by the Complainant (PW-1) as the ones belonged to

him and the prosecution case stands sufficiently proved from

Crl.A. No. 33/2000 Page 5 the evidence on record and there is no merit in this appeal.

8. After giving a thoughtful consideration to the submissions

made by both the sides and upon scrutiny of the evidence of

the Complainant (PW-1) of this case, I find that he is an Army

personnel who had deposed in a straight forward manner and

his testimony has got a ring of truth in it. No reason is

forthcoming as to why he would falsely implicate the Appellant

in this case. This witness (PW-1) has identified the recovered

stolen articles as the ones belonging to him. It really does not

matter, as to whether the number of stolen articles are 27 or 30,

as I find there is no cross-examination of this witness on this

aspect. Furthermore, Appellant's refusal to participate in the

Test Identification Parade is certainly an incriminating

circumstance, which has been rightly used against him by the

trial court as it is evident from the testimony of the Complainant

(PW-1) that there is no cross-examination of this witness on the

identity aspect of the Appellant.

9. Upon considering the prosecution case in its totality, I find

that the trial court has rightly relied upon the prosecution

evidence to convict the Appellant in this case.

10. On the aspect of the quantum of sentence, I find that

neither offence under section 328 of Indian Penal Code nor the

Crl.A. No. 33/2000 Page 6 offence under section 380 of the Indian Penal Code carries a

minimum sentence. It appears from the record of this case that

Appellant was aged about 20 years at the time of this incident

and it is evident from the impugned order on sentence that he is

not a previous convict. Learned counsel for the Appellant had

urged for taking a lenient view on the point of sentence as the

Appellant is stated to be a poor person and it is said that he has

a family to support. The nominal roll of the Appellant reveals

that as on 15th February, 2000, he had remained behind bars in

this case for a period of four months and twenty two days and

his conduct in the jail has been satisfactory. The sentence

imposed upon the Appellant was suspended on 3rd August,

2000 during the pendency of this appeal. It becomes clear that

from 15th February, 2000 to 3rd August, 2000 Appellant had

remained behind bars. Thus, the substantive sentence

undergone by the Appellant comes to about ten months. It has

to be kept in mind that the Appellant has faced the agony of trial

and the appeal proceedings in this case since September,

1997, i.e., for more than 12 years.

11. In the aforesaid facts and circumstances of this case, it

would be in the fitness of things to reduce the substantive

sentence of four years imposed upon the Appellant to the

period already undergone by him. However, the sentence of

Crl.A. No. 33/2000 Page 7 fine is maintained.

12. This appeal is partly allowed to the extent indicated

above. Appellant is granted three weeks time to deposit the

fine, as awarded by the trial court, if not already deposited by

him. In default of deposit of fine, appellant has to undergo

sentence as already awarded to him. Trial court be apprised of

this order to ensure its compliance.

13. This appeal is accordingly disposed of.

Sunil Gaur, J.

April 06, 2009
Rs/pkb




Crl.A. No. 33/2000                                            Page 8