Rajinder Kumar & Anil vs State & Another
2009 Latest Caselaw 892 Del

*              HIGH COURT OF DELHI : NEW DELHI

        Judgment reserved on :March 4, 2009

       Judgment delivered on : March 19, 2009

+                      (1) Crl. Appeal No. 503/1999


%      Rajinder Kumar & Anil                               ...       Appellant

                               Through:   Mr. K.B. Andley, Senior Counsel
                                          with Mr. M.L. Yadav, Advocate

                                      versus
       State & Another                                ..Respondents

                               Through:   Mr. Amit Sharma, Additional
                                          Public Prosecutor for State

                               &

                   (2) Crl. Appeal No. 589/1999

%       Mohd. Nabi                                   ...         Appellant

                               Through:   Mr. T.N.Tripathi, Advocate

                                      versus
       State & Another                                ..Respondents

                               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 order/judgment of 13th September, 1999, whereby Crl. Appeal Nos. 503 & 589 of 1999] Page 1 these three appellants have been convicted and sentenced

to undergo RI for three years each and to pay a fine of

Rupees one thousand each for the offence under Section

393/34 of the IPC and in default of payment of fine, they

have been ordered to further undergo RI for nine months

each. They have also been ordered to undergo RI for seven

years each for the offence under Section 398 of the IPC.

However, both these substantive sentences have been

ordered to run concurrently.

2. Since both these appeals arise out of common

impugned judgment and order, therefore, they have been

heard together and are being disposed of together by this

common judgment.

3. The foundational facts of this case, emerging from the

record, are as follows:-

„Smt. Ratan Devi, r/o House No. X/3301, Gali No.2, Raghubar Pura No.2, Gandhi Nagar, Delhi, lodged a complaint in Police Station Gandhi Nagar, Delhi, that on 2.6.1990, at about 4:25 p.m., when she was at her house along with her grand-daughter-

Anju, the door bell rang and on opening the door, she found that four persons were standing there and on query, one of them told that they were electricians and had come to check the electric meter. Three persons entered the house, while one of them kept standing at the door and that while she, along with her grand-daughter, started moving inside the house, two of them caught hold

Crl. Appeal Nos. 503 & 589 of 1999] Page 2 of her and the third one caught hold of Anju. One of them, the tallest one, gave a fist blow over her face and gagged her mouth and then he took out a knife and stabbed her on her buttocks. The third one, having a pistol in his hand, intimidated Anju, threatening her of dire consequences, in case she raised any alarm. They took Anju inside the room and tied her legs and hands with string and on the point of gun, they asked her to tell where the money was kept and started searching the house. However, these three persons forgot to bolt the door of the room where Anju was tied and in the meanwhile, she managed to make her hands free by untying the string and ran outside the house. She bolted the door from outside and raised alarm for help. Many people from the locality gathered. However, the assailants broke the net of the ventilator and tried to escape. They were chased, but one of them, tall-thin man, escaped while another one, who was having pistol in his hand, while trying to jump on the roof of the other house, was caught hold by Raman Tomar ( PW-1) and Nasir Khan. The apprehended person told his name as Mohd. Nabi and he revealed the names of other persons as Rajinder and Anil.

On the complaint of Complainant-Ratan Devi, an FIR No. 107 of 1990, under Sections 393/394/398/342 of the IPC and under Section 27 of the Arms Act, at Police Station Gandhi Nagar, Delhi, was got registered. Complainant-Ratan Devi was sent to the hospital for medical examination, while police arrested the accused persons and got recovered a country made pistol and a cartridge from the possession of accused Mohd. Nabi".

Crl. Appeal Nos. 503 & 589 of 1999] Page 3

4. Police filed the charge sheet against accused Rajinder

and Mohd. Nabi in the court and the trial court, framed

charges against both the accused persons, under Sections

393/394/398/342 of the IPC and under Section 27 of the

Arms Act and since these accused persons pleaded not

guilty to the charges framed against them, they were put to

trial.

5. At trial, prosecution got examined Raman Kumar (PW-

1) a neigbhour and an eye witness, Sh. Pawan Kumar (PW-2),

Sub Judge, Delhi, injured Anju (PW-3), Dr. A.K. Wahal (PW-4),

HC Ramesh (PW-5) and Dheer Singh (PW-6). SI Gyan Singh

(PW-7) is the Investigating Officer of this case. Complainant

Ratan Devi died before trial could begin and so she could not

be examined at trial.

6. After completion of prosecution evidence, statement of

both the appellant/Accused persons, under section 313 of

the Cr.P.C. was recorded. However, both the

appellants/accused did not lead any evidence in their

defence before the trial court.

7. On conclusion of trial, the trial Court convicted and

sentenced the three appellants/accused, as noted in the

opening paragraph of this order.

8. In this appeal, both the sides have been heard and the

evidence on record has been perused.

Crl. Appeal Nos. 503 & 589 of 1999] Page 4

9. Learned senior counsel for Appellants - Rajinder and

Anil contends that Test Identification Parade (hereinafter

referred to as TIP) refusal by these two Appellants was

justified as they were produced before the court concerned

for TIP in un-muffled face on 7th June 1990. It is pointed out

that the star witness (PW-3) in her evidence has stated that

she had come to know the name of Appellant/accused Anil,

when he was arrested after two days of this incident when

he was brought to the spot. As regards appellant-Rajinder,

this witness (PW-3) had stated that she cannot say where

she had seen Appellant/accused Rajinder in the first

instance. Reliance has been placed upon the decision of the

Apex Court reported in 1979 SCC (Cri) 621 and on the

extract of Punjab Police Rules, 1934, regarding

identification of suspects, to contend that the suspects have

to be informed that they have to keep their faces muffled till

the identification parade is held. It is urged that in case no

TIP is held, then it is wholly unsafe to rely upon the

testimony of witness regarding identification of the accused

for the first time in the court.

10. It has been contended on behalf of Appellant/accused -

Rajender and Anil that the sole testimony of Anju (PW-3) is

not at all reliable and in fact, her version stands contradicted

by the evidence of neighbour (PW-1). It is pointed out that

Anju (PW-3) has stated in her evidence that

Appellant/accused Anil had given knife injuries to her

Crl. Appeal Nos. 503 & 589 of 1999] Page 5 grandmother - Rattan Devi, who is Complainant of this case,

whereas, it is the prosecution case that the knife injury was

inflicted upon the Complainant by Appellant/accused

Rajinder. Another contradiction pointed out in the

prosecution case is that Anju (PW-3) has stated in her

evidence that all the three assailants had taken out the knife

and had pushed her and her grandmother inside the room,

whereas, it is the prosecution case that Appellant/accused

Mohd. Nabi was armed with a country made pistol. It is

further contended that the solitary witness (PW-3) is silent

about the role of the fourth assailant and all this renders her

testimony unreliable and the trial court has gravely erred in

relying upon it to convict these two Appellants/accused and

therefore, they deserve to be acquitted.

11. On behalf of Appellant/accused Mohd. Nabi, it is

contended that the main witness (PW-3) in her evidence has

stated that this Appellant/accused was armed with the knife,

whereas, as per the prosecution case, he was armed with

country made pistol and this contradiction alone is sufficient

to entitle him to acquittal for the offence punishable under

Section 398 of the Indian Penal Code and for the offence

under Section 393 of the Indian Penal Code, he has already

undergone sentence of six years, two months and twenty

one days. Reliance has been placed upon a decision of the

Apex Court, reported in 2001 Cri.LJ 147, to contend that

despite a minimum sentence of seven years for the offence

Crl. Appeal Nos. 503 & 589 of 1999] Page 6 punishable under Section 397 of the Indian Penal Code, the

sentence of four years of imprisonment was held to be

sufficient to meet the ends of justice and in the present

case, the sentence of seven years imposed upon the

Appellant deserves to be reduced to the period already

undergone by him. Nothing else has been urged on behalf of

the Appellants.

12. On behalf of the Respondent-State, it is submitted that

at the time of refusal of Test Identification Parade, by

Appellant/accused Rajinder and Anil, they had not stated

that they had been already shown to the Complainant/

injured witnesses of this case and therefore, Test

Identification Parade refusal by them is not at all justified. It

is urged that the evidence of the solitary witness (PW-3) has

to be read as a whole and upon doing so, it becomes

apparent that her testimony has got a ring of truth in it and

it inspires confidence and the same has been rightly relied

upon by the trial court to convict the Appellants/accused.

Lastly, it is submitted that the decisions relied upon on

behalf of Appellants/accused have no application to the facts

of this case and there is no merit in these two appeals.

13. I have thoughtfully deliberated upon the submissions

advanced and have carefully scanned through the evidence

on record. Upon doing so, I find that this incident is of 2 nd

June 1990, and the evidence of the star witness (PW-3) had

been recorded by the trial court in July, 1994, i.e., after a

Crl. Appeal Nos. 503 & 589 of 1999] Page 7 gap of about four years. She has not stated in so many

words that she had seen Appellant/accused Anil with the

police at the spot after two days of this incident. What she

had stated is that she had come to know about the name of

this Appellant/accused. Since this witness (PW-3) was not

cross-examined on behalf of Appellant/accused Rajinder in

July, 1994, therefore, this witness was again re-called and

was cross examined on behalf of this Appellant/accused in

January, 1999, and she had stated that she cannot say

where she had first seen Appellant/accused Rajinder. To say

the least, it would be highly unfair to give undue benefit of

the aforesaid non-committal statement made by this witness

(PW-3) after more than eight years of this incident. It is so

said because in normal course of events, had

Appellant/accused Rajinder and Anil, been shown to the

Complainant/injured witnesses, the same should have found

mention in the TIP refusal memo, Ex.PW-2/A on 7th June 1990

itself. What is stated on behalf of Appellant/accused Rajinder

and Anil in document Ex.PW- 2/A, deserves notice and it

reads as under:-

"Both the accused have been produced in court from JC in unmuffled face, when they were sent on their surrender. Both the accused refused to join TIP on the ground that they have been produced in the court in unmuffled face.

Sd/-

MM 7th June 1990."

Crl. Appeal Nos. 503 & 589 of 1999] Page 8

14. One fails to understand, as to what had stopped

Appellants/accused Rajinder and Anil from disclosing to the

Metropolitan Magistrate concerned, before whom, they were

produced that they have already been shown to the

witnesses of this case. Having not done that,

Appellants/accused Rajinder and Anil cannot be heard to say

now that they were already shown to the witnesses.

Therefore, the extract of Punjab Police Rules and decision of

the Apex Court in case of „Kanan & Others vs. State of

Kerala", 1979 SCC (Cri) 621, relied upon by these two

Appellants is of no avail to them.

15. The star witness (PW-3) has categorically stated in her

evidence that these three Appellants/accused are the one

who had entered the house and had shown knife to her and

her grandmother and thereafter, knife injury was given to

the grandmother of this witness and this witness was tried

with a cord and when Anju (PW-3) had refused to disclose as

to where the keys of almirah were, she was threatened that

she would be killed by these Appellants/accused. However,

she managed to free herself somehow and the robbery bid

was foiled.

16. It is true that Anju (PW-3) is silent in her evidence

about the fourth assailant, but no benefit on this account

accrues to the Appellants/accused because she has not been

Crl. Appeal Nos. 503 & 589 of 1999] Page 9 cross-examined on this aspect. Whether the stabbing was by

Appellant/accused Anil or Rajinder, the benefit of the same

has been already given by the trial court by returning a

finding of acquittal for the offence punishable under Section

394 of the Indian Penal Code. It is true that Anju (PW-3) in

her evidence had stated that these three Appellants/accused

were armed with knives and in fact, it was found that one of

them, i.e. Appellant/accused Mohd. Nabi was armed with a

country made pistol and not with a knife. The requirement of

section 398 of the Indian Penal Code is that the accused

would come within the range of this offence, if he is armed

with a deadly weapon. Since the evidence of material

witness (PW-3) was recorded after a lapse of about four

years of this incident, therefore, the inadvertent lapse of

attributing knife instead of a pistol to Appellant/accused

Mohd. Nabi is quite natural and the same can be ignored

and benefit on this account, does not accrue to

Appellant/accused Mohd. Nabi. It would not make much

difference as to whether the offender is armed with knife or

a pistol, as in both cases, the offence committed would still

come within the ambit of section 398 of the Indian Penal

Code.

17. In my considered view, the evidence of the injured

witness Anju (PW-3) regarding the identity of these three

Appellants/accused is clinching one and the trial court has

rightly relied upon it.

Crl. Appeal Nos. 503 & 589 of 1999] Page 10

18. I do not find any illegality or infirmity in the evidence of

this star witness Anju (PW-3) regarding the identity of the

Appellants/accused. There is no plausible reason as to why

she would falsely implicate the Appellants/accused in this

case. It is pertinent to note that the stand of these three

Appellants/accused before the trial court was of bald denial

of the prosecution case and of false implication. These

Appellants/accused do not state as to why they have been

falsely implicated in this case and they had not led any

evidence in their defence before the trial court.

19. In the decision of the Apex Court in the case of "Dhanai

Mahto and another vs. State of Bihar, 2001 Cri.LJ 247, the

weapon of offence used was bamboo sticks and lathies and

it was said that the said weapons were not lethal or deadly

and in the peculiar facts of the said case, the sentence was

reduced to rigorous imprisonment for a period of four years.

20. Aforesaid decision has no application to the facts of

this case and Appellant/accused Mohd. Nabi cannot derive

any advantage because he was armed with a country made

pistol and was apprehended at the spot.

21. In view of the aforesaid narration, I find that there is no

merit in these two appeals as the impugned judgment and

the sentence is perfectly legal and justified in the facts of

this case. Thus, the impugned conviction and sentence

imposed upon these three Appellants is hereby upheld. The

three Appellants/accused are on bail. Their bail bonds and

Crl. Appeal Nos. 503 & 589 of 1999] Page 11 surety bonds are cancelled. They are directed to surrender

forthwith, failing with, trial court is directed to ensure that

they are taken into custody to serve out the remainder of

the sentence as awarded by the trial court.

22. With the aforesaid directions, these two appeals are

dismissed.

Sunil Gaur, J.

March 19, 2009 rs

Crl. Appeal Nos. 503 & 589 of 1999] Page 12 Page 1