Rohtash vs The State
2009 Latest Caselaw 1989 Del

*                  HIGH COURT OF DELHI : NEW DELHI

                       Date of hearing: April 28, 2009
                        Date of Order: May 12, 2009

+                            Crl. A. No. 291/2006

%       Rohtash                               ...          Appellant
                        Through:   Mr. D.M. Bhalla, Advocate

                                   versus

        The State                             ...        Respondent
                        Through:   Mr. Amit Sharma, Additional Public
                                   Prosecutor for the 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. Intermingling of the two offences, i.e., of abduction and

armed robbery produces a strange concoction in this case. To

begin with, the offence is of abduction which Appellant and his

companions commit at the point of a revolver and the demand

of ransom of Rupees one lac is strangely made to the victim

and not to his relatives and the victim is let of by telling him

that he should pay it on the second day. In any case, it is said

that offence of abduction simplicitor is still made out and side

by side, offence of armed robbery has been committed by

appellant/accused and he was assisted by his companions in

commission of these offences. In the aforestated background,

Crl. A. No. 291/2006 Page 1 factual scenario of this case has to be looked into.

2. In the evening of 29th day of November, 1998, A.K. Mishra

was about to leave his house in his Maruti Car and

Appellant/accused took a lift from him and since A.K. Mishra

knew Appellant/accused, therefore, he offered him a lift and in

the meanwhile, three companion of Appellant/accused sat on

the rear seat of the car of A.K. Mishra, who did not object to it

since Appellant/accused was known to him. After travelling for

a short while, Appellant/accused asked A.K. Mishra to close the

side window of the car and pointed a revolver at him, whereas

his companions had put some weapon like object on his

stomach from the rear side and Appellant/accused directed

A.K. Mishra to move towards Lal Kuan by pointing the revolver

at him and out of fear, A.K. Mishra took left turn in a street and

stopped the car and one of the companions of the

appellant/accused, pushed A.K. Mishra inside the car and drove

the car. After they had crossed Sangam Vihar, one of the

companions of appellant/ accused took out the purse of A.K.

Mishra from the back pocket of his pant and gave a blow to

him with the butt of the revolver and thereupon,

appellant/accused told his companion not to beat A.K. Mishra

and to take the money.

3. According to the narration of A.K. Mishra, companion of

appellant/accused took out the money from his purse, i.e.,

Rs.4200/- and kept it with him and finally the car stopped at a

deserted place after crossing Andheria Mor and Crl. A. No. 291/2006 Page 2 appellant/accused had allowed A.K. Mishra to go away only

after he had promised to pay a sum of rupees one lac on the

second day of this incident. As per the version of A.K. Mishra,

after this incident, he proceeded to his clinic and met his

brothers, and thereafter, he made a statement to the police

regarding this incident and the law was set into motion.

4. On the aforesaid statement of A.K. Mishra, (Ex.PW-4/A),

FIR No. 1062/98 under Section 392/397 of the Indian Penal

Code was registered at Police Station Kalkaji, Delhi. Girdhar

Gopal Mishra (PW-5) supports the aforesaid version of

complainant/first informant (PW-4). ASI Raj Singh, (PW-6) is the

initial Investigating Officer of this case. DSP Ombir Singh (PW-

8) had deposed about the arrest of appellant/accused in

another case. SI Anil Kumar (PW-9) is the main Investigating

Officer of this case, who has filed the charge sheet in this case

against appellant/accused alone as his companions could not

be traced.

5. Appellant/accused was charged for committing offences

punishable under Section 365/34 and under Section 392 read

with section 397 of the Indian Penal Code. He had claimed trial

in this case.

6. Prosecution case rests upon the testimony of nine

witnesses, and the crucial evidence is of complainant/first

informant (PW-4) and of the Investigating Officers (PW-6) and

(PW-9).

Crl. A. No. 291/2006 Page 3

7. The stand taken by the Appellant before the trial court

was of denial of the prosecution case and he chose not to lead

any evidence in his defence and the plea which he took, reads

as under:-

"Mr. Beer Singh alongwith Dr. A.K. Mishra were residing together at Harkesh Nagar Okhla in the year 1995. I was also residing at Harkesh Nagar Okhla alongwith other family members and my parents. On instigation of Dr. A.K. Mishra, Mr. Bir Singh committed the murder of my brother Swamiji on 17.1.95 and the criminal case was registered against Beer Singh. Mr. Beer Singh and PW-1, Dr. A.K. Mishra put pressure on us to sold out our residential house and other property but due to their pressure we sold our residential house and other property and due to said enmity the present false case was registered against me by PW-Dr. A.K. Mishra."

8. Trial ended in conviction of the appellant/accused for the

offence of abduction as well as for the offence of committing

armed robbery and trial court vide impugned order of 12 th April

2006, has sentenced the Appellant to undergo rigorous

imprisonment for a period of ten years with fine of Rs.3,000/-

for commission of offence under Section 392 read with section

397 of the Indian Penal Code. For the offence under Section

365 of the Indian Penal Code, the Appellant has been

sentenced to undergo rigorous imprisonment for five years

with fine of Rs.2,000/-. Both these sentences contained default

clause and have been ordered to run concurrently.

9. In this appeal, counsel for the parties have been heard Crl. A. No. 291/2006 Page 4 and with their assistance, the evidence on record has been

assessed.

10. During the course of the arguments, learned counsel for

the Appellant had pointed out that the arrest of the

appellant/accused was after one year of this incident and no

recovery has been effected from or at the instance of

appellant/accused and there is discrepancy in the robbed

amount. It is pointed out that in the FIR, the robbed amount

mentioned is Rs.3,000/- only, whereas, complainant/first

informant (PW-4), in his evidence, has stated that the robbed

amount was Rs.4,200/-. Another discrepancy pointed out is

that complainant/first informant (PW-4) has stated in his

evidence that his son and compounder were with him, when he

was returning from his clinic to his house, whereas, as per the

evidence of his brother (PW-5), he had met the complainant

(PW-4) at the round about Okhla Service Road, i.e., not at the

clinic of the complainant (PW-4) as claimed by him. It is also

pointed out that brother (PW-5) of the complainant (PW-4) had

claimed that he had taken the complainant to Police Station

Okhla, whereas, ASI Raj Singh (PW-6) has stated in his

evidence that the complainant accompanied by his brother,

had come to PP Govindpuri.

11. According to learned counsel for the Appellant, aforesaid

infirmities in the prosecution case casts a doubt about the

veracity of the prosecution version and entitles

appellant/accused to benefit of doubt. Lastly, it is submitted Crl. A. No. 291/2006 Page 5 that trial of this case stands vitiated as proper legal assistance

was not provided to the appellant/ accused and reliance has

been placed upon a decision of a Division Bench of this Court,

reported in 90 (2001) DLT 702, to contend that instead of

remanding back the case, accused was let off as the accused

had remained behind bars for a substantial period of time. It is

pointed out that the Appellant is behind bars in this case for

the last about four and half years and therefore, he deserves

to be released forthwith as the trial of this case stands vitiated.

Nothing         else   has   been        urged      on   behalf   of   the

appellant/accused.

12. On behalf of the Respondent-State, learned Additional

Public Prosecutor, is quick to point out that appellant/accused

cannot derive any advantage out of the decision reported in 90

(2001) DLT 702, as the complainant (PW-4) of this case has

been adequately cross-examined by the counsel for the

appellant/accused before the trial court, but there is no

worthwhile cross-examination of the complainant (PW-4) to

create a doubt about the truthfulness of the complainant's

version and since it is not shown as to why complainant (PW-4)

would falsely implicate the appellant/accused, therefore, trial

court has rightly relied upon the evidence of this star witness,

i.e., complainant (PW-4) to convict and sentence the

appellant/accused and there is no infirmity in the impugned

judgment and order on sentence passed by the trial court in

this case.

Crl. A. No. 291/2006 Page 6

13. After giving thoughtful consideration to the submissions

advanced by both the sides, and upon analysis of the evidence

on record, I find that the discrepancies pointed out the in

prosecution case by the defence do not go to the root of the

matter and are not sufficient to dislodge the substratum of the

prosecution case, which stands firmly proved on record from

the evidence of complainant/first informant (PW-4) of this case.

14. The plea taken by the appellant/accused of complainant

(PW-4) falsely implicating him in this case at the instance of

one Bir Singh, is not only farfetched but is also without any

basis because the categoric assertion of the complainant (PW-

4) that he had no enmity with the appellant/accused remains

unassailable. It is pertinent to note that here the abduction of

the complainant is not for settling the old scores but is with a

view to rob and to extract money from the complainant of this

case. Therefore, I find that the trial court has rightly relied

upon the testimony of the complainant (PW-4) and has

rejected the aforesaid plea of the appellant/accused, as he has

failed to show that he had any inimical relations with the

complainant (PW-4) of this case.

15. Now I shall deal with the aspect of trial of this case being

vitiated for want of legal assistance. In the case of Mohd. Miraz

@ Munna Vs. State (NCT of Delhi),90 (2001) DLT 702, it was

found that the counsel for the accused was not present on any

of the hearings and the cross-examination was done on behalf

of the accused but it was not stated that it was done by Crl. A. No. 291/2006 Page 7 counsel for the accused and since material witnesses were not

cross-examined by the counsel or amicus curiae counsel for

the accused, therefore, it was held that the trial stood vitiated.

16. The factual position of this case is entirely different. Here,

the material witness is the complainant/first informant (PW-4)

and he has been duly cross-examined by counsel for the

Appellant. Whether the cross-examination done by counsel is

adequate or inadequate, is a matter of subjective satisfaction

and on this account, it cannot be said by any stretch of

imagination that the trial stood vitiated. In any case, the

contention of the counsel for the appellant/accused herein is

that the trial stands vitiated in this case because the remaining

witnesses, i.e., brother (PW-5) and the Investigating Officers of

this case have been cross-examined by the accused and not by

any legal aid counsel and it was the duty of the trial court to

have provided free legal assistance to the appellant/accused

for cross-examination of the remaining witnesses.

17. Ideally speaking, trial court ought to have ensured that

without legal assistance, recording of evidence should not

have taken place. A perusal of this record reveals that an

amicus curiae counsel was, in fact, appointed by the trial court

in this case. What the trial court should do, if legal aid counsel

does not appear to defend the poor accused, is a question

which will arise for consideration not in this case, but perhaps

in some other case. It is so said because the record of this case

reveals that at the stage of recording of the statement of the Crl. A. No. 291/2006 Page 8 appellant/accused, under Section 313 Cr.P.C., he was duly

represented by his own counsel. It goes without saying that if

the counsel for appellant/accused wanted to cross-examine

Investigating Officers of this case and the brother of the

Complainant (PW-4) and then nothing had stopped him from

moving an application before the trial court for recalling these

witnesses. It is not the case that there is no cross-examination

of these witnesses by the accused. Since the evidence of

Girdhar PW-5 is of corroborative value, therefore, perhaps

counsel for the Appellant before the trial court did not deem it

proper to recall him for cross-examination.

18. Be that as it may. Since the fate of this case depends

upon the testimony of the Complainant/first informant PW-4

alone, who has been cross-examined by the counsel for

appellant/accused, therefore, no prejudice is caused to the

appellant/accused in the absence of cross-examination of PW-5

and PW-6 by the defence counsel. Therefore, in my considered

view, the trial of this case does not stand vitiated for want of

free legal assistance to appellant/accused at the stage of

recording of the evidence of witnesses i.e. PW-5, PW-6 and PW-

9.

19. Viewed from any angle, the testimony of the

Complainant/first informant PW-4 alone is sufficient to sustain

the conviction of the appellant/accused for the offences with

which he has been charged. There is no illegality in the

impugned judgment warranting any interference by this court Crl. A. No. 291/2006 Page 9 in this appeal. The conviction of the appellant/accused

deserves to be maintained and is hereby upheld.

20. On the quantum of sentence, I find that considering the

nature of offence committed, there is some scope for reduction

of the substantive sentence imposed upon the Appellant for

the offence under Section 397 of the Indian Penal Code. Trial

court has awarded ten years sentence for this offence,

whereas the minimum provided is seven years. Keeping in

view the fact that the Appellant has faced the agony of trial

and appeal proceedings in this case for the last more than one

decade, I find that the ends of justice would be met if the

substantive sentence imposed upon the Appellant for the

offence punishable under Section 397 of Indian Penal Code is

reduced from rigorous imprisonment for a period of ten years

to rigorous imprisonment for seven years.

21. With the modifications, as aforesaid, this appeal stands

partly allowed. Appellant is in custody. He be apprised of this

order through the concerned Jail Superintendant.

22. This appeal stands disposed of accordingly.

Sunil Gaur, J.

May 12, 2009
pkb




Crl. A. No. 291/2006                                  Page 10