Suresh vs The State ( N.C.T. Of Delhi)
2009 Latest Caselaw 5126 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

                     Judgment Reserved on: 04thDecember, 2009
%                   Judgment Delivered on: 10th December, 2009

+                        CRL.A.18/2008

        SURESH                                    ..... Appellant
                         Through:    Mr.Rajesh Mahajan, Adv.

                   versus

        THE STATE (N.C.T. OF DELHI)      ..... Respondent
                       Through: Mr. Manoj Ohri, APP for State


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be reported in the    Yes
        Digest?

INDERMEET KAUR, J.

1. Mohd. Shahbuddin PW-3 is the complainant. On 23.10.2005,

at about 5 PM, while he was going to Laxmi Nagar on reaching

near the Ganda Nala, Nangla Basti, Nehru Stadium, he was

accosted by four boys; one of the said four boys slapped him; the

second gave him a blow with a fist; the third showed him a knife

and the fourth caught hold of him from behind. Mohd. Shahbuddin

was robbed of about Rs.2000/- cash lying in his pocket; this

amount was removed by the person who had showed the knife; the

money was then handed over to his co-accomplices. On the basis

of the aforesaid allegations complaint Ex.PW-3/A was lodged. The

rukka was dispatched at 7.30 PM i.e. within two hours of the

incident.

2. The person who had brandished the knife was apprehended

at the spot. Other persons had managed to flee. Appellant before

this Court i.e. Suresh was the person who had been apprehended

at the spot; he was the person who was having the knife. The

knife was recovered from his person which was taken into

possession vide recovery memo Ex.PW-3/C; sketch of the knife

Ex.PW-3/B was prepared.

3. The star witness of the prosecution is the complainant

Mohd.Shahbuddin who has been examined as PW-3. In his

deposition on oath he has stated that when he was going towards

Laxmi Nagar he was attacked by four persons; Suresh the

appellant had showed him a knife; one of the accomplices had

slapped him; other had given him a fist blow; another caught hold

of him from behind; he was robbed of Rs.2000/- by the appellant

who had taken out his money from his pant pocket and handed it

over to his accomplice. This amount was subsequently recovered

from the co-accused.

4. PW-3 is categorical in his deposition; he has stated that

"........Accused Suresh fell down and he was apprehended by me with the help of some passersby.

Some public person made a telephone call to police. Police came to the spot and recorded my statement Ex.PW-3/A which bears my signatures at point A. On search of accused Suresh one knife was recovered from his possession. ....."

In his cross-examination he had stated that one of the four

persons was having a knife which was shown to him. PW-3 was

alone at that time; he was threatened by the knife by the assailant;

at the time of incident he had seen all the assailants properly; the

length of the knife was extending up to his wrist. He denied the

suggestion that he had identified the co-accused at the instance of

the Investigating Officer and they were not present at the spot.

5. This witness is clear, categorical and cogent. He has

specifically attributed a role to each of the four accused persons.

Appellant before this Court was the person who was holding the

knife by virtue of which he had threatened the complainant and

robbed him of his Rs.2000/-. Description of the knife had also

been given by PW-3; the same was extending right up to his wrist;

sketch of the knife Ex.PW-3/C shows that it is 32 cm in length

having a handle of 17 cm and blade of 15 cm. This knife is a

„deadly weapon‟ within the meaning of Section 397 of the IPC;

there is no dispute about this proposition. No argument has been

addressed on this score.

6. Learned defence counsel has argued that version of

PW-3 shows that the appellant had fallen down and he had been

apprehended him with the help of some passersby; police had been

summoned; on the search of the appellant knife was recovered.

This version of PW-3 as per learned defence counsel substantiates

his submission that the knife had been recovered from the

appellant after the police had reached the spot; this version is,

however, not in consonance with the version as set up by the other

witnesses of the prosecution namely PW-4 Ct.Rajender Singh, PW-

5 ASI Ajay Tyagi and PW-6 H.C.Krishan. Attention has been drawn

to their versions. PW-4 had deposed that PW-3 had handed over

the knife which was reported to be recovered from accused

Suresh. PW-5 had deposed that PW-3 had produced Suresh along

with the knife and told him that Suresh had robbed him of

Rs.2000/- at the point of knife. PW-6 has deposed that PW-3 had

produced Suresh along with knife to the ASI and had stated that

the accused had robbed him of Rs.2000/- at the point of knife. It is

submitted that these versions of PW-4, PW-5 and PW-6 are at

variance with the version of PW-3 and whereas PW-3 has stated

that after the police had reached the spot, the accused had been

apprehended and the knife had been recovered subsequently but

this does not match the testimony of PW-4,PW-5 and PW-6 who

have spoken otherwise. Their version being to the effect that the

knife had already been recovered by the complainant when the

police had reached the spot. This is a material discrepancy

throwing shadows of doubt on the recovery of the so-called deadly

weapon, entitling the accused to a benefit of doubt qua the offence

under Section 397 of the IPC. It is submitted that even assuming

the version of PW-3 to be the gospel truth, at best, the offence, in

view of the aforestated version, would be an offence under Section

392 of the IPC and the ingredients of Section 397 of the IPC are

not made out.

7. These arguments have been rebutted by learned counsel for

the State. Attention has been drawn to the first statement of the

complainant Ex.PW-3/A which had formed the basis of the rukka.

Attention has also been drawn to the seizure memo Ex.PW-3/C of

the knife. It is submitted that the case of the prosecution all along

has been that the accused had been apprehended by PW-3 and the

knife already stood recovered from his possession which he had

then handed over to the police personnel when they had come to

the spot.

8. Record has been perused. It is the version of PW-3 which has

to be scrutinized and examined by this Court to determine the

question as to whether the appellant is guilty of an offence

punishable under Section 392 of the IPC or an offence under

Section 397 of the IPC.

9. Under Section 397 of the IPC the prosecution must

establish:-

(i)     The commission of robbery and dacoity;




 (ii)    That the accused used the deadly weapon; or caused

grievous hurt; or attempted to cause death or grievous hurt;

(iii) The above acts were done during the commission of robbery

or dacoity

10. In this case ingredients nos. (i) & (iii) stand established. The

Court has to examine as to whether ingredient no.(ii) i.e. the use of

the deadly weapon by the appellant stands established or not.

Testimony of PW-3 has to be read in its entirety and as a whole; a

stray sentence picked up from here and there cannot and does not

become the test to determine the gist of what is sought to be

stated by the said witness.

11. Witnesses, as Bentham said, are the eyes and ears of justice.

They are the importance and primacy of the quality of the trial

process. The evidence has to be tested for its inherent consistency

and the inherent probability of the story, consistency with the

account of other witnesses held to be creditworthy; consistency

with the undisputed facts to the „credit‟ of the witnesses; their

performance in the witness box; their power of observation etc. In

appreciating the evidence of a witness, the approach of the court

must be to see whether the evidence of a witness as a whole is

reliable and has a ring of truth.

12. PW-3 on oath has narrated the incident in the same manner

in which it has been depicted in his first complaint Ex.Pw-3/A. He

is categorical that the present appellant was the person who had

showed him a knife and robbed him of his Rs.2000/- which he had

handed over to some other associate. Thereafter appellant had

fled away from the spot. He was chased by PW-3 and with the

help of the passersby he was apprehended. Telephone call was

made to the police. From the search of the appellant a knife was

recovered. Merely because the complainant in his deposition on

oath has preceded his version by first stating that his statement

Ex.PW-3/A was recorded bearing his signatures at point A and

thereafter in the next line he has stated that a knife was recovered

from the search of Suresh would not dispel the version of the

prosecution which is that the accused had already been

apprehended by the appellant, the weapon i.e. the knife had been

taken from him pursuant to which the police had reached the spot.

This is clear from the reading of the testimony of PW-3; at the cost

of repetition one sentence picked up from one stray corner is not

enough to deduce what the witness is trying to convey. This is

further clarified in the cross-examination of PW-3 wherein he has

stated that

".......I was threatened with the knife by the assailants at the time of incident. ...... ..... ...... I remained present at the spot till 1 pm. Police had reached at the spot after about half an hour of the incident. ....."

13. Version of PW-3 is wholly consistent and corroborative of the

versions of PW-4, PW-5 and PW-6. The case of the prosecution as

set up by the prosecution is that PW-3 was the person who had

apprehended the appellant with the help of some passersby; the

knife had been taken from him; police had thereafter reached the

spot. There is no inconsistency. This arguments is of no help to

the appellant. Ingredient no. (ii) of Section 397 of the IPC also

stands established.

14. In the alternate, learned defence counsel has argued that the

appellant should be granted benefit of probation. Appellant has

suffered a long and protracted trial and the incident being of the

year 2005; out of the seven years of imprisonment which had been

awarded to him; the nominal roll of the appellant shows that the

appellant has already undergone a sentence of almost five years.

Reliance has been placed upon a judgment of the Supreme Court

reported in Masarullah vs. State of Tamil Nadu 1983 SC (Cri) 84

wherein in a case under Section 397 of the IPC keeping in view the

factual position therein the appellant had been released on

probation.

15. For an offence punishable under Section 397 of the IPC,

there is a minimum punishment prescribed which is imprisonment

of not less than seven years as also fine. In Masarullah‟s case

(supra), the Supreme Court had granted the benefit of probation to

the appellant who was less than 21 years of age as on the date of

the offence. The report of the Probation Officer had been called

and keeping in view the circumstances as had been detailed in the

report of the Probation Officer coupled with the fact that the

appellant being less than 21 years of age on the date of offence, he

had been granted benefit of probation. These factual

circumstances are not applicable to the facts in hand.

16. Appellant was admittedly around 29 years of age as on the

date of the offence; as on date he would be about 34 years. No

ground is made out for the grant of the benefit of probation to the

appellant. There is minimum punishment which has been

prescribed by the legislature; this court is not inclined to modify

the sentence. The appellant stands convicted under Section 397 of

the IPC. Appeal is without any merit; it is dismissed.

(INDERMEET KAUR) JUDGE 10th December, 2009 rb