Ajay Pal @ Ajit Singh vs The State
2009 Latest Caselaw 1991 Del

*                  HIGH COURT OF DELHI : NEW DELHI

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

+                             Crl. A. No. 102/2000

%       Ajay Pal @ Ajit Singh         ...         Appellant
                  Through: Mr. Jaswinder Singh and Mr.
                             Rakesh Nagar, Advocates

                                   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. This is a case, where Appellant had purportedly fired

from his country made pistol to injure one of the victims,

to facilitate robbery near a nallah in Hari Nagar in the area

of Police Station Badarpur, Delhi and Appellant was

allegedly caught red handed near the spot, while his

companions managed to escape from the clutches of law.

2. Appellant was tried in FIR No. 297/94 under Section

392/394/397/34 of IPC read with section 27 of Arms Act, Crl. A. No. 102/2000 Page 1 registered at Police Station Badarpur, Delhi for committing

armed robbery at about 8.45 PM on 13th day of

September, 1994, near pulia of Hari Nagar Nala and in the

commission of this offence, Appellant was purportedly

assisted by his three companions and the victims were

Narender Kumar, Suresh Kumar and Dinesh, who were

robbed of Rs.800/-, Rs.760/- and Rs.40/- respectively.

Narender Kumar was also robbed of his wrist watch at the

point of country made pistol. In this incident, Narender

Kumar had sustained injuries from a shot fired by

appellant/accused from his country made pistol. However,

the aforesaid victims raised alarm, which attracted public

persons, i.e., Gurpreet (PW-2) and Avtar (PW-3), who

apprehended the appellant/accused near the spot and the

appellant/accused was given beatings by the public

persons, who had gathered at the spot and the PCR van

also came at the spot, which led to the apprehension of

the accused and of recovery of the country made pistol

with live cartridges and it also led to the recovery of the

robbed articles, i.e., wrist watch etc. from him. However,

the companions of the appellant/accused managed to flee

away.

3. During the investigation of this case, the statements

of three victims, i.e., (PW-1), (PW-5) and (PW-6) as well as

Crl. A. No. 102/2000 Page 2 of the public persons (PW-2) and (PW-3), who had

apprehended the appellant/accused were recorded. The

MLC (Ex.PW-7/A) of injured- victim (PW-1) was obtained

and after completion of investigation, appellant/accused

was charge sheeted for the commission of the aforesaid

offences.

4. Appellant/accused chose to contest the charges

framed against him for the offences punishable under

Section 392/394/397/34 read with section 27 of the Arms

Act. Trial ensued. Evidence of three victims, i.e., (PW-1),

(PW-5) and (PW-6) as well as of the public witnesses, (PW-

2) and (PW-3) was recorded during the course of the trial.

Dr. Deepak (PW-7) had proved the MLC (Ex.PW-7/A) of

injured - victim (PW-1) and had opined the nature of injury

sustained as grievous and was by a fire-arm. Sub-

Inspector Desh Raj (PW-10) is the Investigating Officer of

this case.

5. Plea taken by the appellant/accused before the trial

court was that he was distantly related to Narender -

injured/victim (PW-1) and he had given a loan of

Rs.3,000/- to Narender (PW-1), who had not returned it

and because of it, relations between them were strained

and he has been falsely implicated in this case by

Narender (PW-1). Appellant/accused alleged that Gurpreet Crl. A. No. 102/2000 Page 3 (PW-2) and Avtar (PW-3) are the police informers and they

have falsely deposed against him. Interestingly,

appellant/accused had got examined DW-1 - father of the

injured - victim (PW-1), in his defence, who had stated that

his son Narender (PW-1) has to pay some money to the

appellant/accused and since his son did not return the

money to the appellant/accused, there was hot exchange

of words and his son had received injuries at the hands of

someone else and had implicated the appellant/accused at

the instance of the Mukhia.

6. Trial court relied upon the prosecution version and

discarded the defence plea and has convicted the

appellant/accused and vide impugned order of 2nd

December, 1999, sentenced the Appellant to undergo

rigorous imprisonment for seven years each with fine for

the offences under Section 394 and under Section 397 of

the Indian Penal Code. For the offence punishable under

Section 27 of the Arms Act, appellant has been sentenced

to undergo rigorous imprisonment for three years.

Aforesaid sentences have been ordered to run

concurrently by the trial court, which are under challenge

in this appeal.

7. Arguments have been advanced by both the sides

and learned counsel for the parties have referred to the Crl. A. No. 102/2000 Page 4 evidence on record at the time of hearing of this appeal.

8. Learned counsel for the Appellant contends that the

victims (PW-5) and (PW-6) have not supported the

prosecution case which renders the version of the solitary

witness (PW-1) as not worthy of reliance, in view of the

fact that father of this solitary witness (PW-1) has clearly

stated that there was strained relations between the

appellant/accused and the solitary witness (PW-1) due to

money transaction and this witness (PW-1) was injured by

someone else, but Appellant has been falsely implicated

by him in this case. Public witnesses (PW-2) and (PW-3)

are alleged to be police informers and so it is stated by

learned counsel for the Appellant that their evidence

would not advance the prosecution any further.

Discrepancies pointed out in the prosecution case by the

defence are in respect of the recovery memo of the

country made pistol, which indicates that the country

made pistol with live cartridge was recovered, whereas in

the court, it has been revealed that the recovered country

made pistol had a spent cartridge in it and it is also

pointed out that there is discrepancies regarding the

number of cartridges recovered. In the end, it has been

submitted on behalf of the appellant/accused that when

two views are possible, then, the view in favour of the

Crl. A. No. 102/2000 Page 5 accused has to be preferred. To state so, reliance has

been placed upon decisions reported in 2008 ILRDLH 17

1176; 2008 TLPRE 0-641; 2008 AD (CR) 257; 1994

SCALE 653; 2008 (1) JCC 493 (SC); 2007 (2) JCC 972

(SC) and 1998 (1) JCC (Del) 109. Nothing else has been

urged on behalf of the appellant/accused.

9. Learned Additional Public Prosecutor for Respondent-

State submits that the plea of the appellant/accused of

being falsely implicated in this case is not at all plausible

and the involvement of the appellant/accused in

commission of the crime in question stands established

from the fact that he has been apprehended near the spot

by public person (PW-2) and (PW-3) and in the face of the

evidence of the injured victim (PW-1), it cannot be said

that the appellant/accused has been falsely implicated in

this case. The defence plea is said to be an afterthought

and it is submitted that the same has been rightly

discarded by the trial court and that there is no force in

this appeal.

10. Human nature is frail. Some are courageous and

many are not. This explains the conduct of the victims

Suresh (PW-5) and Dinesh (PW-6), who have not pin-

pointed the appellant/accused as the culprit. Although

these two victims have graphically narrated this incident, Crl. A. No. 102/2000 Page 6 but have tried to wriggle out of the inconvenient situation

by pleading before the trial court that they are not in a

position to identify that accused whom they had seen in

police gypsy soon after this incident. Victim Dinesh (PW-6)

faithfully narrates this incident, but claims that he has

become panicky after this incident and he resiles from the

initial version given by him to the police. Such like

witnesses are not to be wholly blamed. They did not want

to buy enmity with the accused by deposing against him.

In real terms, no worthwhile protection is provided to the

victims of the crime, which can enable them to gather

courage to depose against the real culprits/assailants. This

is an unfortunate situation, with which we are faced today.

However, fortunately, in this case, the main victim

Narender (PW-1), who is also an injured, has gathered

courage and has deposed against the appellant/accused

who was not only apprehended near the spot but from

whom the weapon of offence, i.e., country made pistol as

well as the robbed amount and wrist watch was recovered.

11. It is true that the testimony of the solitary witness is

to be assessed with great care and caution. But it is

equally true that a injured - victim like (PW-1) would be

the last person, who would spare the real assailant and

would falsely implicate the appellant/accused. Some story

Crl. A. No. 102/2000 Page 7 of money transaction has been put forth by the

appellant/accused to persuade this court to discard the

testimony of the injured victim (PW-1). Prem Singh (DW-1)

has deposed in favour of the appellant/accused to save

him as he happens to be distantly related to the family of

the injured victim (PW-1). This appears to be somewhat

strange. In any case, the deposition of Prem Singh (DW-1)

is found to be vague one as he does not spell out the

nature of the money transaction between his son (PW-1)

and the appellant/accused. Furthermore, as it has not

been so suggested to the injured - victim (PW-1) in his

cross-examination by the defence. Therefore, the trial

court has rightly discarded the defence plea.

12. The star witness Narender (PW-1) is the injured -

victim, who has deposed in clear terms that

appellant/accused had robbed him and had fired at him

when he had requested appellant/accused to at least

return his identity card and in the light of the torch, he had

seen the appellant/accused. Not only the torch, but also

the weapon of offence, i.e., country made pistol as well as

his robbed amount and the wrist watch has been

recovered.

13. To assail the aforesaid recoveries, defence has tried

to pick up some holes in the prosecution case by pointing Crl. A. No. 102/2000 Page 8 out that there is no mention of the identity card in the FIR

or that the recovery memo of the weapon of offence talks

of live cartridge whereas in the court, it has been deposed

that the country made pistol was having spent cartridge.

To my mind, these discrepancies are inconsequential.

However, I find that the trial court has dealt with this

aspect in the following manner:-

"Coming to the argument on behalf of the accused that while as per the prosecution case, one katta and two rounds had been recovered from the accused, a katta and three rounds had been produced in this court, which made the allegations against the accused improbable, I find that as per report Ex.PW5/A, two live were recovered from the pocket of the accused besides the katta. However, seizure memo Ex.PW10/C mentions that the barrel of the katta contained one empty round besides two live rounds. CFSL report Ex.PX also refers to one country made pistol (Desi Katta) fired cartridge case (Base detached) besides two cartridges which were received in CFSL. Besides the exhibits of this case, two fired cartridges pertaining to case FIR No. 91/94 dated 16.3.94 of Police Station Badarpur were also sent under the same reference. It is also revealed from the report that the cartridges of this case were C-1, L-1 and L-2 while the cartridges for case FIR No. 91/94 were C-1 and C-3. The report, therefore, shows that there were three cartridges pertaining to this case and while two cartridges L/1 & L/2 were live Crl. A. No. 102/2000 Page 9 and test fired in CFSL as per para 4 of the said report, cartridge C/1 was shown to be fired through the country made pistol sent alongwith the cartridges (para 1 of the report). Thus, the production of three empty cartridges of this case does not in any manner show that a false case had been made out against the accused as it was a case of recovery of two cartridges from the pocket of the accused besides one fired cartridges in the katta. The evidence of the Investigating Officer stating about recovery of two cartridges, though incorrect and against the prosecution case, cannot make the prosecution case unreliable as the Investigating Officer might have forgotten about this fact. Thus, this fact by itself does not subject the prosecution case to doubts in any manner when the prosecution case on all the material facts stands proved beyond any doubts."

14. After scrutinising the evidence on record, I find that

no different view, than the one, as aforesaid, can be

taken.

15. The evidence on record against the appellant/

accused is clinching, justifying his conviction by the trial

court. There is no illegality or infirmity in the impugned

judgment. This appeal lacks merit as I find that the

sentence imposed upon the Appellant is the minimum for

the offence under Section 397 of the Indian Penal Code,

for which the appellant has been convicted.

Crl. A. No. 102/2000 Page 10

16. This appeal merits rejection and is accordingly

dismissed.

17. Appellant is on bail. He is directed to surrender

forthwith to serve out remainder of the sentence awarded.

Trial court/ successor court to ensure compliance of this

order.

18. With aforesaid directions, this appeal stands disposed

of.

Sunil Gaur, J.

May 12, 2009
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