Delhi High Court

Lakhan Singh vs The State Of Nct Of Delhi. on 8 May, 2009

Author: Sunil Gaur

             HIGH COURT OF DELHI : NEW DELHI

          Judgment Reserved on: April 24, 2009
         Judgment Pronounced on : May 08, 2009

+                    Criminal Appeal No. 834 of 2006

%      Lakhan Singh                ...      Appellant
                Through: Mr. A.S. Khushwah, Advocate.

                                     versus

       The State of NCT of Delhi.         ...
       Respondent
                 Through: Mr. Amit Sharma, Additional
                           Public Prosecutor for State


                     Crl. Appeal No. 835 of 2006

%      Surender Kumar @ Lamboo ...          Appellant
                Through: Mr. A.S. Khushwah, 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. Above titled two appeals are being disposed of by

this common order in view of the fact that they arise out

Crl. Appeal Nos. 834 & 835 of 2006 Page 1 of a common impugned judgment vide which both the

appellants have been found guilty of committing armed

robbery.

2. On 14th May, 2004, at about 8:30 p.m., Raj Bahadur

Singh (PW-1), a Welder in a gas plant, was coming back

from Guna to Delhi, and while he reached Zakhira Bridge

at platform No. 3 to proceed towards Daya Basti Railway

Colony, three-four boys sitting underneath the stairs of the

bridge, surrounded him. One boy took out his purse

containing Rupees six hundred and another boy took off

his wrist watch (make Titan) and when he protested,

another boy gave him a knife blow on his hand while the

fourth one, hit on his chest with his knife and when Raj

Bahadur raised an alarm, some persons came from

platform No.2 and on seeing them, all those four boys fled

away from the spot. On the statement (Ex. PW1/A) of Raj

Bahadur- complainant, FIR No. 30 of 2004, under Sections

392/394/34 of the IPC was registered regarding this

incident. On 19th May, 2004, accused Manoj and Anwar @

Raju, were arrested in this case as complainant (PW-1)

stated that they were the assailants who along with their

companions, had robbed him on the point of knife.

Accused- Anwar @ Raju, led the police party to the house

Crl. Appeal Nos. 834 & 835 of 2006 Page 2 of their two companions i.e. the appellants /accused

herein- Lakhan Singh and Surender Kumar @ Lamboo,

who made their respective disclosure statements and

pursuant thereto, recoveries were made and after

completion of investigation, charge sheet under Sections

392/394/397/398/34 of the IPC and 25/27 of Arms Act,

against accused Lakhan Singh, Surender Kumar @ Lamboo

and Anwar @ Raju, was filed in the court. By order of 28th

September, 2004 accused Anwar @ Raju was directed to

be produced before Juvenile Justice Board for trial where

co-accused Manoj was facing trial and case of

appellants/accused- Lakhan Singh and Surender Kumar @

Lamboo, was tried by the court of Sessions.

3. Appellants/accused preferred to face trial for the

charged offences under Section 392/394/34 of the IPC. In

addition, appellant Lakhan was charged for committing

offences under Section 25 and 27 of the Arms act.

Accused Manoj and Anwar @ Raju, co-accused of the

appellants, were proceeded against before the Juvenile

Justice Board as they were juveniles.

4. The evidence adduced by the prosecution is of nine

witnesses and it consists of the testimony of Sh. Raj

Bahadhur (PW-1) i.e. the Complainant, Head Constable Crl. Appeal Nos. 834 & 835 of 2006 Page 3 Shiv Kumar (PW-2) had recorded the FIR of this case,

Doctor Rohit Kumar (PW-7) and Doctor Sharad (PW-8)

have proved MLC (EX. PW7/A) and opined the injuries to

be of simple nature. Sub-Inspector Mahipal Singh (PW-9) is

the Investigating Officer of this case.

5. Upon closing of prosecution evidence, appellants/

accused in their statements under Section 313 of the

Cr.P.C., alleged false implication in this case and solitary

defence witness - Mukesh deposed that appellant- Lakhan

was taken away from his house by police on 18th May,

2004, in the morning.

6. After completion of trial, both the appellants/accused

stood convicted and sentenced by the trial court in the

manner as noted below:-

RI for seven years each for committing offences under Section 392/394/34 of the IPC with fine of Rupees one thousand each, and in default of payment of fine, to undergo SI for three months each. Besides this, appellants/ accused- Lakhan has also been ordered to undergo SI for one year for committing offence under Section 25 Arms Act with fine of Rupees one thousand, and in default thereof, to undergo SI for three months.

Crl. Appeal Nos. 834 & 835 of 2006 Page 4

7. Submission made by both the sides have been

considered and the record of this case has been perused.

8. The primary submission made on behalf of both the

Appellants/accused is regarding their identity. It has been

vehemently argued on behalf of both the

appellants/accused that absence of Test Identification

Parade raises a reasonable doubt about the identity of

both the appellants/accused and the benefit of the same

has been illegally denied by the trial court to the

appellants/accused and the same deserves to be given to

them. Ultimate submission made on behalf of the

appellants/accused is that at the time of this incident,

appellants/accused were aged 20-21 years and therefore,

the benefit of probation was required to be given to them.

To seek the benefit of probation, reliance has been placed

by learned counsel for the appellants upon a decision of

the Apex Court reported in AIR 1963 SC 1088. In the

last, it has been submitted on behalf of both the

appellants/accused that appellant-Lakhan Singh has

remained behind bars for more than three and half years

and appellant - Surender is in custody for the last more

than three years and therefore, their substantive sentence

deserves to be reduced to the period already undergone

Crl. Appeal Nos. 834 & 835 of 2006 Page 5 by them. Nothing else is urged on behalf of the

appellants/accused.

9. Learned Additional Public Prosecutor for the State

submits that the question of holding of Test Identification

Parade does not arise because both these appellants/

accused were arrested at the instance of their co-accused

and were there and then identified by the complainant

(PW-1) as the assailants and the conviction and the

sentence imposed upon the appellants/accused is fully

supported by the evidence on record and there is no merit

in these appeals.

10. It has been pointed out by learned Additional Public

Prosecutor for the State that so far as the prayer for grant

of probation made on behalf of both the appellants/

accused is concerned, the same stands already declined

by this court vide order of 4th October, 2006 passed on the

applications of the appellants/ accused made by them in

this behalf.

11. After having heard both the sides and upon perusal

of record this case, I find that it is a matter of record that

applications of both the appellants for grant of benefit of

probation already stand declined vide order of 4th October,

Crl. Appeal Nos. 834 & 835 of 2006 Page 6 2006. Therefore, the prayer of the appellants/accused now

renewed at the final hearing cannot be considered.

12. So far as the identity of the appellants/accused is

concerned, it is clear from the evidence of complainant

(PW-1) that both these appellants/accused have been duly

identified by him in his evidence before the court and

nothing worthwhile has come out in the cross-examination

of the complainant to discredit his version regarding the

identity of these appellants/accused. It is evident from the

evidence of the Investigating Officer (PW-9) that at the

first instance, two co-accused of the appellants were

arrested and at their instance, the present appellants/

accused were arrested and the complainant (PW-1) was

accompanying the raiding party and upon the arrest of the

appellants/ accused, complainant (PW-1) had there and

then identified the appellants as the assailants. In these

circumstances, there was no requirement of subjecting

appellants to the Test Identification Parade.

13. Upon careful analysis of the entire evidence on

record, I find that the conviction of both the

Appellants/accused for the offence under section 394/34

of the Indian Penal Code is fully justified and is hereby

upheld. However, as regards the conviction of both these Crl. Appeal Nos. 834 & 835 of 2006 Page 7 appellants/accused for the offence under section 397/34 of

Indian Penal Code is concerned, I find that the conviction

of appellant-Lakhan Singh for commission of offence under

section 397 of Indian Penal Code is well merited as it

stands proved from evidence on record that he had given

a knife injury on the chest of the complainant (PW-1) and

the same stands corroborated from MLC (EX. PW7/A) of

the complainant. The role attributed to appellant -

Surender Kumar by the complainant (PW-1) is of catching

hold of the complainant and of robbing the Complainant of

his purse. There is no evidence on record to suggest that

appellant - Surender Kumar was having any weapon with

him at the time of commission of this offence.

14. Appellant- Lakhan alone was charged for commission

of offence under Section 397 of the IPC and therefore, trial

court has gravely erred in convicting appellant-Surender

Kumar by invoking Section 34 of the Indian Penal Code, for

the offence under Section 397 of Indian Penal Code. To

fasten the liability for the offence under Section 397 of

Indian Penal Code, a direct role has to be attributed and

an accused cannot be vicariously held liable for

commission of an offence under Section 397 of Indian

Penal Code. It is so said in view of the dictum of the Apex

Crl. Appeal Nos. 834 & 835 of 2006 Page 8 Court in the case of Dilawar Singh Vs. State of Delhi, AIR

2007 SC 3234, which is as under:-

"Use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for the imposition of minimum punishment on another offender who had not used any deadly weapon."

15. In view of the aforesaid, the conviction of the

appellant-Surender Kumar for the offence under section

397 of Indian Penal Code with the aid of section 34 of

Indian Penal Code cannot be sustained and is accordingly

set aside.

16. On the quantum of sentence, it is found that the

sentence imposed upon the appellant-Lakhan Singh is the

minimum as provided under section 397 of Indian Penal

Code and therefore, there is no scope for any interference

by this court in respect of the sentence imposed upon this

appellant.

17. So far as appellant-Surender Kumar @ Lamboo s/o