Delhi High Court
Ram Prakash @ Raju Kharkar vs The State on 22 January, 2009
Author: Sunil Gaur
* HIGH COURT OF DELHI : NEW DELHI
Judgment reserved on : January 16, 2009
Judgment delivered on : January 22, 2009
+ (1) Crl. A. No.348/1999
Ram Prakash @ Raju Kharkar ... Appellant
Through: Mr. Abhinav Bajaj, Advocate
versus
The State ... Respondent
Through: Mr. Amit Sharma, Additional
Public Prosecutor for State
And
(2) Crl. A. No. 275 /1999
Rajesh @ Raja ... Appellant
Through: Mr. Vishal Gosain, Advocate
versus
The State ... 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. The above titled two appeals arise out of common impugned
judgment of 26th April 1999, whereby these two Appellants have
been convicted for the offence punishable under Section 392 and
Crl.A.Nos. 348/99 & 275/99 Page 1
397 read with section 34 of IPC and vide order of 28th April 1999,
trial court has sentenced them to undergo rigorous imprisonment
for seven years each with fine of Rs.2,000/- each for the offence
punishable under Section 397 of IPC and for the offence
punishable under Section 392 of IPC, they have been sentenced
to undergo rigorous imprisonment for three years each with a fine
of Rs.1,000/- each. Both these sentences have been ordered to
run concurrently.
2. With the consent of the parties, both these appeals have
been heard together and are being disposed of together by this
common judgment.
3. The ocular version of this incident, as narrated by the injured/
first informant - Ramesh (PW-2), in brief, is that on 7th December
1997, at about 8.30 PM, after taking his meals, he was coming out
of hotel of one Cheena in Nand Nagri, Delhi and when he had
reached near the old police post in Nand Nagri, he was over
powered by Raju Kharkar (whose name was later on revealed as
Ram Prakash, i.e., Appellant herein) and Appellant - Rajesh @
Raja. Thereafter, they tried to snatch his purse/money and when
he resisted, Appellant Ram Prakash @ Raju Kharkar gave a knife
blow on his abdomen while Appellant - Rajesh @ Raja gave a
knife blow on his back and their associate / co-accused Rajesh @
Bobby (Proclaimed Offender) had secured him by his hands and
Crl.A.Nos. 348/99 & 275/99 Page 2
then while fleeing away, they took his purse which contained
Rs.4,600/- and cash of Rs.800/-, which was in his other pocket.
4. Suresh (PW-1) is the brother of the injured (PW-2) and he
had purportedly reached the hospital at about 10 PM on the day of
the incident, upon learning about this incident and as per this
witness, he was informed by his injured brother (PW-2) that he
was assaulted by these two Appellants. An FIR regarding this
incident was registered and during the investigation, these two
Appellants were arrested and Appellant - Rajesh @ Raja in
pursuance to his disclosure statement, is said to have got
recovered the weapon of offence, i.e., knife out of the heap of
stones lying outside the boundary wall of a school at B-4 Block,
Nand Nagri, Delhi. Appellant - Ram Prakash @ Raju Kharkar is
said to have disclosed that his weapon of offence, i.e., the knife
was with his co-accused Rajesh @ Bobby. After the completion of
investigation, both these Appellants were charge-sheeted in this
case.
5. Since these two Appellants had claimed trial by not pleading
guilty to the charges under Section 392/397/34 of IPC, and
Appellant - Rajesh @ Raja for the offence under Section 25 of
Arms Act, evidence of eight witnesses was recorded by the trial
court and the fate of this case hangs upon the testimony of first
Crl.A.Nos. 348/99 & 275/99 Page 3
informant/injured (PW-2) and of his brother Suresh, (PW-1). Sub
Inspector Satish Kumar is the Investigating Officer of this case.
6. The stand of both these Appellants /accused before the trial
court was of denial of the prosecution case. Appellant - Ram
Prakash @ Raju Kharkar had alleged false implication in this case
at the instance of injured Ramesh (PW-2), whereas Appellant -
Rajesh @ Raja had asserted that he was falsely implicated in this
case by the Investigating Officer of this case.
7. The two witnesses got examined by the Appellants / accused
have simply certified that these two Appellants are persons having
good moral character. But, the two defence witnesses have
pleaded ignorance about the facts of this case.
8. After the trial, both these Appellants stand convicted and
sentenced as noticed in the opening paragraph of this judgment.
9. After having heard both the sides and upon scrutiny of
evidence on record, I find that the reliance placed by learned
counsel for Appellants upon decisions reported in 1982 SCC (Cri)
334 and 2007 (4) Crimes 77 (SC), are of no avail as the facts of
every criminal case differs from the facts of another criminal case
and there are no precedents in criminal law.
10. The contention of the two Appellants of there being no Test
Identification Parade is rendered sterile as it is found that the two
Crl.A.Nos. 348/99 & 275/99 Page 4
Appellants /accused are named in the FIR, which is based upon
the statement of injured (PW-2).
11. It stands revealed from the testimony of injured (PW-2) that
he had fully supported the prosecution case in his examination in
chief recorded on 26th February, 1999, and his cross-examination
was deferred on account of absence of counsel for the accused
and on the next day, this witness (PW-2) was cross-examined by
the defence, wherein he took a somersault regarding the identity of
the Appellants/accused by stating that due to poor visibility at the
spot, he was not in a position to identify the assailants. Not only
this, this witness (PW-2) has gone to the extent of stating in cross-
examination by the defence that he had not seen the Appellant -
Rajesh at the spot and he was not known to him, prior to the day of
incident.
12. It has been highlighted by the defence that this witness (PW-
2) in cross-examination has stated that after this incident he
became unconscious and he had regained consciousness in the
hospital on the next day and thus he contradicts his brother (PW-
1), who has stated in his evidence that in the hospital, on the same
day of incident, injured had disclosed the name of these two
Appellants as the assailants. It has also been pointed out that the
injured (PW-2) has admitted in the cross-examination that these
two Appellants were shown to him in the Police Station after a
Crl.A.Nos. 348/99 & 275/99 Page 5
month or two of this incident. It has been also pointed out on
behalf of the Appellants that this witness (PW-2) has denied the
prosecution case of this witness accompanying the police to the
house of Appellant/accused - Ram Prakash @ Raju Kharkar.
Learned counsels for these appellants/accused have also tried to
point out the infirmity in the prosecution case regarding the
recovery of knife by contending that it is not from the open place
and is hit by section 27 of the Evidence Act. Thus, it has been
contended that in view of the aforesaid infirmities in the
prosecution case, conviction of the Appellants is illegal and
deserves to be set aside. Nothing else is urged on behalf of the
Appellants.
13. On the other hand, learned Additional Public Prosecutor for
the State has supported the impugned judgment and has
submitted that due to the break in the recording of the
examination- in-chief and cross-examination of the injured witness,
for extraneous reasons, he has taken somersault in the cross-
examination by the defence but that will not make any difference
for the reason that the Apex Court in the case of 'Khujji alias
Surendra Tiwari vs. State of Madhya Pradesh', (1991 Cri.LJ 2653)
has held that the part of the evidence of hostile witness can be
acted upon, if it is found acceptable and the trial court has rightly
acted upon the chief examination of the injured (PW-2) and upon
Crl.A.Nos. 348/99 & 275/99 Page 6
the evidence of his brother Suresh (PW-1). It is also urged that the
discrepancies regarding the recovery of the knife are of no
consequence as there is an acquittal by the trial court for the
offence punishable under Section 25 of the Arms Act. However, it
is rightly asserted that conviction for the offences under Section
392/397/34 of IPC does not stand vitiated on account of acquittal
under Section 25 of the Arms Act or for want of recovery of
weapon of offence.
14. It is a matter of record that the chief examination of the
injured (PW-2) and his brother Suresh (PW-1) was recorded on
one date and they have fully supported the prosecution case.
However, on the next day, in their cross-examination by the
defence, they have tried to dilute the prosecution case, so far as
the identity of the Appellants / accused is concerned. Even if it is
taken, without accepting it to be so, that these two Appellants were
shown to the injured in the Police Station after a month or two of
the incident, it will not make any difference, because the assailants
were named at the earliest point of time, i.e., in the First
Information Report.
15. Since these two Appellants are specifically named in the FIR
and they have been attributed the role of stabbing the injured
which stands corroborated from the MLC Ex.PW-3/A of the injured,
I find that the dilution of the prosecution version by PW-1 and PW-
Crl.A.Nos. 348/99 & 275/99 Page 7
2 in the cross-examination by the defence is of no avail, as the
recording of the FIR in question stands firmly proved from the
evidence on record. False implication of the Appellants at the
instance of Ramesh (PW-2), as alleged, is of no consequence as it
has not been suggested to this witness (PW-2) that he has falsely
implicated the Appellants. No reason is forthcoming as to why
injured (PW-2) or his brother (PW-1) would falsely implicate these
two Appellants. Likewise, there is nothing on record to suggest as
to why the Investigating Officer of this case would falsely implicate
the Appellants/accused. It is not shown as to how the deposition of
the two defence witnesses is of any help to the case of these two
Appellants.
16. Administration of justice cannot be left at the mercy of
witnesses who try to wriggle out of their chief examination, in
cross-examination which is recorded on another day. For stating
so, decision of the Apex Court rendered in the case of 'Khujji alias
Surendra Tiwari vs. State of Madhya Pradesh', (1991 Cri.LJ 2653)
can be safely relied upon. No decision to the contrary has been
cited.
17. In my considered opinion, the chief examination of the
injured (PW-2) and of his brother Suresh (PW-1) inspires utmost
confidence and it receives ample corroboration from the MLC of
the injured referred to above, which indicates that injured Ramesh
Crl.A.Nos. 348/99 & 275/99 Page 8
was conscious when he was brought to the hospital at about 10
PM. This probabalises the fact of injured (PW-2) telling the names
of the Appellants as assailants to his brother (PW-1) in the hospital
on the day of this incident itself.
18. Upon taking an overall view of the entire evidence on record,
I find that the conviction and the sentence imposed upon these two
Appellants by the trial court is well deserved and it calls for no
interference by this court. Resultantly, these two appeals are
without merit and are dismissed as such. Both these Appellants
are on bail. Their bail bond and surety bonds are cancelled. Trial
court is directed to take them into custody to serve out the
remainder of the sentence awarded by the trial court.
19. With the aforesaid directions, these two appeals are
disposed of.
SUNIL GAUR, J
January 22, 2008
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