Rajesh vs State
2009 Latest Caselaw 5331 Del

       * IN THE HIGH COURT OF DELHI AT NEW DELHI

%                        Judgment Reserved on: 17th December, 2009
                         Judgment Delivered on: 21st December, 2009

          + CRL.A.601/2008 & CRL.M.(Bail)No.940/2008

        RAJESH                                        ...Appellant
                     Through:   Ms.Anu Narula, Advocate.

                                Versus

        STATE                                             ...Respondent
                     Through:   Mr. Manoj Ohri, APP.

        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. On 29.2.2004 at 9.30 PM Raj Kumar PW-4 was coming on his

three wheeler scooter from Rohini side. On the signal of a boy he

stopped the vehicle at the Mangol Puri bus stop and agreed to take

him along with his two companions to the Uttam Nagar Terminal. At

Dholi Piau one of the three boys asked him to stop the vehicle as he

was to meet his brother working in the Metro. The said boy then

came back. At the same point of time another of those three boys

came on the left side of PW-4 and put a knife on his thigh; Rs.595/-

was snatched from PW-4; this money was snatched by the boy who

had put the knife on the thigh of PW-4; the wrist watch of Pw-4 was

also snatched; his TSR was forcibly taken away but on a chase by

PW-4, accompanied by a policeman, Constable Mahesh Chand, PW-

5; the TSR was stopped and overpowered; one out of the three boys

i.e. the present appellant Rajesh was apprehended at the spot along

with knife. The statement of PW-4 Ex.PW-4/A was recorded on which

endorsement Ex.PW-6/B was made by SI Jagat Singh pursuant to

which the present FIR was registered.

2. The first report of this incident was recorded in DD No.25A.

This DD Ex.Pw-6/A was marked to SI Jagat Singh PW-6 at 10.45 PM

who reached the spot. PW-5 and PW-4 were already present at the

spot. Appellant Rajesh who had been apprehended by PW-5 along

with his knife was produced before PW-6; the sketch of the knife

Ex.PW-4/D was prepared; it was taken into possession vide memo

Ex.PW-4/E. Statement of the complainant Ex.PW-4/A was recorded.

Site plan Ex.PW-6/C was prepared. The TSR was also seized vide

memo Ex.PW-4/F. Torn shirt and the cut pant of the victim i.e. of

PW-4 was taken into possession vide memo Ex.PW-4/B.

3. The co-accused Liyaqat Ali and Rakesh @ Paina were formally

arrested in this case on 15.3.2004; they had disclosed about their

involvement in the present case pursuant to their arrest in FIR

No.130/2004 on 6.3.2004 at police station Kirti Nagar. Appeal of

Liyaqat Ali has since been dismissed by a Co-ordinate Bench of this

Court; co-accused Rakesh @ Paina was acquitted by the Trial Court

giving him benefit of doubt.

4. Appellant before this Court is Rajesh. Version of the

prosecution is hinged on the testimony of PW-4 the complainant and

of PW-5 i.e. the policeman who had on his motorcycle reached there

by chance. He had helped PW-4 in apprehending Rajesh at the spot

and with his help the TSR had also been seized.

5. Vide impugned judgment dated 22.9.2006 appellant had been

convicted under Sections 397/392/411 of the IPC. Vide order of

sentence dated 5.10.2006 he had been sentenced to undergo RI for

a period of seven years for the offence punishable under Section

397 of the IPC; under Section 392 of the IPC he has been sentenced

to undergo RI for five years and to pay a fine of Rs.5000/-, in default

of payment of fine to undergo SI for six months; for the offence

punishable under Section 411 of the IPC he had been sentenced to

undergo RI for a period of one and half years. All the sentences

were to run concurrently.

6. The nominal roll of the appellant had been called. As on

30.6.2009 he had suffered incarceration of about six years and

three months; as on date he would have suffered incarceration of

about six years and nine months; fine has not been paid; this appeal

has been preferred from the jail.

7. On behalf of the learned counsel for the appellant, it has been

pointed out that PW-4 is a hostile witness and he has not supported

the version of the prosecution in any manner. In Court on oath he

has categorically deposed that he cannot identify his assailant; he

has refused to identify the appellant. In these circumstances the

Trial Court had gravely erred in convicting the appellant. The

version of PW-5 who had reached the spot subsequently cannot

supercede the version of PW-4 and although PW-5 had supported

the case of the prosecution yet his version has to be tested in the

light of the fact that he is a police official and he would have every

interest to ensure that the trial ends in a conviction; it is in this light

that the version of PW-5 has to adjudge. The entire incriminating

circumstances as has been alleged by the prosecution had not been

put to the accused in his statement under Section 313 of the Cr.P.C.;

it has not been put to the appellant that at the point of knife the

victim had been overpowered; his shirt had been torn; he had been

chased; in the absence of this, these circumstances cannot be read

against the appellant. The appellant had not been medically

examined. The MLC of PW-5 shows that it had been conducted at

1.35 AM which does not match the time as given in the DD NO.25

which was the first information given to the police about the present

incident which is timed at 1.45 AM. This also throws out the case of

the prosecution as the prosecution has failed to explain as to how

PW-5 was examined prior in time to the information of the incident

having been reported at the local police station.

8. The last three submissions are factually incorrect. Question

Nos. 2, 4, 5 and 7 were the incriminating circumstances put to the

appellant in his statement under Section 313 of the Cr.P.C. MLC of

the appellant was prepared at 10.50 P.M. on 01.03.2004; he was

again reviewed on 03.03.2004. This is testified by Constable Jai Vir

Singh, PW-2. Further DD No. 25-A was recorded at 10.45 P.M. not at

1.45 A.M.

9. Arguments have been countered by the learned public

prosecutor. It is pointed out that the Co-ordinate Bench of this Court

had appreciated the same submissions and the same evidence and

has dismissed the appeal of the co-accused Liyaqat Ali; judicial

propriety demands that on the same set of evidence a different view

cannot be taken. Attention has been drawn to the seizure memo

Ex.PW-4/B of the shirt and the pant which shows that the shirt had

been torn at one place and the pant also had a cut mark; it is

submitted that although PW-4 is hostile qua the identity of the

appellant in Court, yet he had admitted that he had given his

statement Ex.PW-4/A in which the role of the present appellant has

clearly been recited; PW-4 in Court has also identified his shirt and

his pant; it is obvious that PW-4 had been won over by the accused

in this intervening period i.e. from the date of the registration of the

FIR to his deposition in the Court; in such circumstances the Courts

have time and again held that reliance can be placed upon such a

hostile witness as well; version of PW-5 fully corroborates the

version of the prosecution.

10. Arguments have been heard; submissions and the counter

submissions have been noted; record has been perused.

11. PW-4 is the complainant; he has on oath deposed that on the

fateful day i.e. on 29.2.2004 at 9.30 PM while he was going on his

TSR he was stopped by one person and the said person along with

the other persons boarded his TSR near Dholi Piau; one person

alighted and one of the three persons at the point of knife, from the

left side, attacked PW-4; PW-4 was robbed of his wrist watch and

Rs.595/-; his TSR had also been snatched; a police man PW-5

reached the spot; they chased the TSR; PW-5 overpowered the

accused. PW-4 has resiled from his earlier version i.e. the complaint

Ex.PW-4/A and has on oath stated that he cannot recognize the

appellant in the Court as the person who had been overpowered by

PW-5. He has, however, admitted his signatures on the arrest memo

Ex.PW-4/C. Ex.PW-4/C depicts that the appellant Rajesh had been

arrested on 1.3.2004 i.e. at 1.35 A.M. and this document had been

attested by PW-4. In his statement under Section 313 of the Cr.P.C.

appellant has admitted this document; it has thus come on record

that the appellant was apprehended at the spot and was taken into

custody in the early morning hours of 1.3.2004 vide Ex.PW-4/C.

12. PW-4 has further admitted that he had given his complaint

Ex.PW-4/A; PW-4 has also identified his torn shirt and his cut pant

which had been taken into possession vide memo Ex.PW-4/B. This

piece of evidence leaves no manner of doubt that PW-4 for some

ulterior purpose or motive was not supporting the version of the

prosecution qua the identity of the appellant in the Court.

13. In (1999) 8 SCC 624 Kolhi Lakhmanbhai Chanabhai vs. State

of Gujarat it has been held by Supreme Court that the testimony of

a hostile witness can also be read to the extent that it supports the

version of the prosecution; evidence of such a witness is not washed

of the record completely.

14. Even relying upon this admitted version of PW-4 as deposed to

on oath in Court; his this part of the version is corroborated by the

testimony of PW-5 who had also reached the spot on his motorcycle.

PW-5 had in fact apprehended the appellant and had taken the knife

from his possession. In this process PW-5 had also suffered injuries.

PW-5 on oath deposed that on the fateful day i.e. on 29.2.2004 at

about 9.45 PM he was proceeding home after his duty hours; near

Dholi Piau he saw a person shouting for help; he i.e. the PW-5 was

informed that TSR of PW-4 had been snatched; the miscreants were

chased; the TSR was apprehended, Rajesh the present appellant

was apprehended at the spot; this was after grappling with him; the

knife was taken from the possession of the appellant; other two

persons had run away. PW-5 had correctly identified the present

appellant as the person who had been apprehended by him at the

spot. PW-5 has also corroborated that the shirt of PW-4 was torn

from the pocket and his pant also had a cut mark; the same were

taken into possession vide memo Ex.PW-4/B; his MLC Ex PW 8/A

recorded at 1.35 A.M. on 01.03.2004 had noted abrasions on his left

knee. Nothing has been elicited in the cross-examination of PW-5

which could shake his version. He has fully withstood with the test

of a detailed cross-examination.

15. The knife seized from the appellant was a 'deadly weapon'

within the definition of Section 397 of the IPC; the appellant had

used this deadly weapon to threaten PW-4 and robbed him of his

wrist watch and cash of Rs.595/- as also TSR. The TSR stood

recovered and was taken into possession vide memo Ex.PW-4/F.

Ingredients of the offence under Sections 397 and 392 of the IPC are

made out against the appellant.

16. Section 411 of the IPC necessarily entails:-

(i) Dishonestly receiving or retaining stolen property knowing or having reason to believe the same to be a stolen property.

17. The TSR which was the stolen property had been recovered

pursuant to a chase by PW-4 and PW-5; appellant was arrested at

the spot along with TSR. The conviction of the appellant under

Section 411 of the IPC also calls for no interference.

18. The defence sought to be projected by the appellant in the

version of DW-1 who is the mother of the appellant, that her son

was forcibly taken away on 29.2.2004 did not find favour with the

Trial Judge and rightly so; no such suggestion has been given to any

of the witnesses of the prosecution; this defence also did not surface

in the statement of the appellant recorded under Section 313 of the

Cr.P.C.; it was an afterthought.

19. Conviction under Section 397 of the IPC prescribes a minimum

sentence of RI for seven years. The Legislature has with a

purposeful intent imposed a minimum punishment for an offence of

such a nature. There is no mitigating circumstance in favour of the

accused except the fact that the appellant had already suffered

incarceration of a period of six years and nine months as on date;

this Court does not think this to be a mitigating circumstance as is

the submission advanced by the learned counsel for the appellant.

20. The substantive sentence imposed upon the appellant calls for

no interference. However, keeping in view the financial penury of

the appellant; the fact that the appeal has been preferred from the

Jail and the appellant is represented by a counsel for Delhi High

Court Legal Services Committee; the submission of the appellant

that he is unable to pay the fine amount of Rs.5000/- imposed upon

him and in the eventuality that he does not pay the fine he will

suffer a further sentence of six months SI, a modification is called

for in the sentence in default of payment of fine.

21. Fine of Rs.5000/- has been imposed upon the appellant for the

offence under Section 392 of the IPC which is a mandate along with

a term of imprisonment. However, in default of payment of fine the

appellant will undergo SI for one month instead of six months.

22. With these modifications, the appeal is disposed of.

(INDERMEET KAUR) JUDGE

December 21, 2009 nandan