Praveen Kumar vs Stateq
2009 Latest Caselaw 4283 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+      CRL.A. 247/2006

                                  Reserved on: October 14, 2009

                             Pronounced on: October 23rd , 2009

#      PRAVEEN KUMAR                               ..... Appellant

!                        Through: Mr. Ajay Verma, Advocate.

                         Versus

$      STATE                                   .....Respondent
^                        Through: Mr. Amit Sharma, Addl. PP for
                         the State.

CORAM:

    HON'BLE MR. JUSTICE V.K. JAIN



       1. Whether Reporters of Local newspapers may be allowed
          to see the Judgment?

       2. To be referred to the Reporter or not?

       3. Whether the Judgment should be reported in the
          Digest?


V.K.Jain, J.

This is an appeal against the Judgment dated13.10.2005 and

Order on Sentence dated 15.10.2005 whereby the appellant was

convicted under Section 394/34 of I.P.C. read with Section 397

thereof and was sentenced to undergo rigorous imprisonment for

eight years and to pay a fine of Rs.1,000/- or to undergo simple

imprisonment for two months in default.

2. The case of the prosecution is that on 21.9.2004,

complainant Sanjay, who was dropped by his employer at Ring

Road, near Pitam Pura Police Lines, was going on foot towards

village Karala as he could not get any transport at that hour of the

night. When he reached near Sulabh Shochalyain Y-Block

Mangolpuri, the appellant, who was carrying a knife in his hand

and his co-accused Krishan Kumar held him and asked him to take

out whatever he had with him. When the complainant covered his

pocket with his hand, the appellant gave a knife blow on the left

side of his chest as well as on his left hand, Driving licence of the

complainant and Rs.80/- which he was carrying with him were

removed and both the culprits ran away towards Y-Block,

Mangolpuri park.

3. The appeal filed by Krishan Kumar, co-accused of the

appellant, was disposed of vide order dated 11.5.2009 convicting

him under Section 394 of IPC and sentencing him to imprisonment

for the period already undergone by him.

4. During trial, the complainant came in the witness box as PW-

3 and stated that on the night intervening 20/21.9.2004, he came

to Delhi from Jammu driving a Quails vehicle. His employer Atul

Aggarwal left him near Police Lines, Ring Road. Since he had to

go to village Karala where his cousin was residing, he proceeded

towards Mangolpuri-Sultanpuri Road after waiting for a while for a

bus. When he reached near Y-Block, the appellant and his co-

accused Krishan Kumar stopped him and asked him to handover

whatever he had with him. The taller boy gave him two knife

blows and snatched his Driving Licence and cash amounting to

Rs.80/-. Both of them than ran towards park.

The complainant was taken to hospital in an ambulance,

called by an auto-rikshaw driver. After his medical examination

and recording of his statement in the hospital, he came to the spot

with the Investigating Officer and from there, they proceeded in

search of the culprits. When they reached near bushes of Y Block

park, he noticed the handle of a knife kept in the dub of taller boy.

Both of them were apprehended. Driving Licence and a sum of Rs.

40/- belonging to him were recovered from the pocket of shirt of

the appellant. Remaining amount of Rs.40/- was recovered from

his co-accused. The witness has identified the knife as well as his

driving licence which was seized from the appellant.

5. The testimony of the complainant as regards arrest of the

appellant and his co accused and recovery of knife, driving licence

of the complainant and currency notes has been corroborated by

PW-2 Ct. Kulvinder Kumar and PW-7 ASI Karambir Singh. Both of

them have stated that the appellant and his co accused Krishan

Kumar were found resting in the park of Y Block, Mangol Puri and

were arrested. They have identified the knife/dagger Ex. P-1 and

Driving Licence of the complainant Ex. P-3 which were recovered

from the possession of the appellant.

6. PW-4 Dr. Anju Garg examined the complainant in hospital on

21.9.04 and found one incised wound of 1.5 x 2 cm on the left side

of his chest and an incised wound of 3 x 0.5 cm on his left hand.

She has opined that these injuries could be caused by a sharp

edged weapon.

7. In his statement under Section 313 of Cr. P.C., the appellant

denied the allegations against him and stated that he has been

falsely implicated in a false case.

8. I see no reason to disbelieve the complainant as regards the

commission of robbery. In fact, this is not the case of the

appellant that no incident of robbery had at all, taken place with

the complainant. The testimony of the complainant finds ample

corroboration from his medical examination. This is not the case

of the appellant that the complainant had suffered these injuries in

some other incident. Therefore, the prosecution has been able to

prove that the complainant was robbed of his Driving Licence and

cash amounting to Rs 80/- and also that a knife was used in

commission of the robbery.

9. Ex. P-3 is the Driving Licence of the complainant, which was

stolen during robbery. The robbery took place at about 1.15 am.

The Driving Licence along with some cash was recovered from the

possession of the appellant at about 5 am on the same date. Thus,

it stands proved that to stolen driving Licence, was recovered from

the possession of the appellant soon after its theft. The appellant

has not given any explanation for the Driving Licence of the

complainant being found in his possession. This is also not his

case that he had found the driving licence of the complainant lying

somewhere and kept it for safe custody or for sending it to its

holder. His defence is that the driving licence was not at all

recovered from his possession. Since there is no reason to

disbelieve the complainant as regards the recovery of driving

licence from the possession of the appellant, and his testimony

also finds corroboration from the deposition of PW-2 Ct. Kulvinder

Kumar and PW-7 ASI Karambir Singh, and there is no explanation

from the appellant for possession of the driving licence soon after

its theft, it can be safely presumed, as provided in Section 114 (a)

of Evidence Act, that either he had committed theft of the driving

licence or he had received it knowing it to be a stolen property.

Since this is not the case of the appellant that he had received the

driving licence of the complainant from someone, the appropriate

presumption in this case should be that he had committed theft of

this driving licence from the possession of the complainant.

10. The deposition of the complainant proves that a knife was

used in commission of robbery. The expression 'deadly weapon',

used in Section 397 of IPC has not been defined in the Act. In

common parlance, it would mean an instrument, which, if used as

a weapon, can cause death of a person. A perusal of the sketch of

the knife shows that it is not a knife meant for domestic use. Its

length is 37 cms and the length of its blade is 26 cms. A dagger

having a blade of 26 cms, if used, as a weapon of offence, can

result in the death of the person to whom the blow from such a

dagger is given and, therefore, is definitely, a deadly weapon.

11 In Phool Kumar Vs. Delhi Admn. AIR 1975 SC 905 the

accused was carrying a knife in his hand at the time the robbery

was committed. It was found from the deposition of PW-16 that

the appellant/accused Phool Kumar had a knife in his hand. The

Hon'ble Supreme Court held that he was therefore carrying a

deadly weapon. In Salim Vs. State 1987 (3) Crimes 794 the

Hon'ble High Court of Delhi held that to categorise knife or to fix

its size for it to be a deadly weapon may not be appropriate. It

was held that to say that a knife to be a deadly weapon should be

of a particular size would not be a correct statement. In State of

Maharasthra Vs. Vinayak 1997 Cr.L.J. 3988 Bombay High Court

held that knife is a deadly weapon within the ambit of expression

'deadly weapon' used in section 397 of IPC. Therefore,

irrespective of the size, any knife is a deadly weapon and

therefore, accused Sanjay is liable to be punished under Section

397 of IPC. In any case, in the present case, the size of the blade

of the dagger itself is sufficient to show that it is a deadly weapon.

The knife is a 'deadly weapon'.

12. It was pointed out by learned counsel for the appellant that

there is contradiction in the deposition of the complainant on the

one hand and that of PW-2 Constable Kulvinder Kumar and PW-7

ASI Karambir Singh on the other hand, as regard, the time at

which the appellant was apprehended from the park. According to

the complainant, he remained in Hospital till 5 AM and then he

came to the place of occurrence with IO where they remained for

1-1/2 hour. On the other hand, according to PW-2 and PW-7, the

appellant was arrested at about 5-10A.M. In my view, such a

contradiction cannot be said to be material. It has also to be kept

in mind that answers to such questions are given by estimates

only. No one notes down the time at which he went to a particular

place on a particular date. No one is expected to remember the

exact time of his movements or the exact time spent by him on a

particular spot. It is true that one doesn't undergo such

experiences every day. Still, a truthful witness when he is

examined at a later date is not expected to remember the exact

time of such peripheral happenings after lapse of a considerable

period. Such minor discrepancies are bound to occur as memory

fades with the passage of time and recalling minute details

becomes rather difficult. Therefore, variation in the deposition of

the witnesses as regard the time at which the appellant was

arrested from the part is not material in the facts of the present

case, particularly when in his statement under Section 313 of

Cr.P.C., the appellant does not give any specific time of his arrest.

In fact during cross-examination of PW-3, no suggestion was given

to him that the appellant was not arrested from the park.

13. It was pointed out by the learned counsel for the appellant

that the vest of the complainant was not seized and no cut was

found on his shirt. The deposition of the complainant would show

that the buttons of his shirt had opened before knife blows were

given to him. The injury was caused on the chest and left arm of

the complainant. That explains the absence of cut marks on his

shirt. There is no evidence that the vest had any cut mark or blood

mark on it. Therefore, failure to seize the vest of the complainant

had no significance.

It was also pointed out that the knife was not sent to FSL.

The injuries on the body of the complainant stand proved from his

MLC, and there is no evidence that the dagger had blood stains on

it, when it was seized. In fact there was no cross-examination of

IO on the aspect and he was not asked as to why he did not seize

vest of the complainant and did not send the dagger to FSL. In the

absence of any cross-examination, no adverse inference can be

drawn against the prosecution in such matters. Nothing really

turns on to Investigating Officer not sending the knife to FSL.

14. The plea taken by the appellant in his statement under

section 313 Cr.P.C. is that this is a false case and he has been

falsely implicated. He has not suggested any motive for the

complainant to concoct a false story of robbery. The amount

stolen from the possession of the appellant was a meagre amount

of Rs.80/-. It cannot be accepted that the complainant would have

gone to the extent of causing injuries to himself, going to a

Hospital, getting admitted there and lodging a report with the

police for a petty amount of Rs.80/-.

15. The appellant has not given any reason as to why the

complainant chose to target him in this case. He has not alleged

any previous enmity or ill-will between him and the complainant.

Therefore, there could have been no reason for the complainant to

implicate him in a false case. Being not only the victim of robbery

but also an injured, the complainant was most unlikely to spare the

real culprit and implicate an innocent person. This is more so,

when he has nothing to gain by doing so. The victim of a crime

would infact be most anxious to ensure that only the person who

committed the crime is brought to justice and is suitably punished.

The appellant has also not given any reason or motive for the

police officials to depose falsely against him and implicate him in a

false case. This is not the case of the appellant that he was

arrested on suspicion and implicated in this case. This is also not

his case that in fact the case property was recovered from some

other person and was planted on him. Therefore, they had no

reason to depose against the appellant and implicate him in a false

case of robbery.

16. For the reasons given in the preceding paragraph, I find no

reason to interfere with the conviction of the appellant under

Section 394 of IPC r/w Section 34 and 397 thereof. This conviction

is maintained accordingly. Keeping in view all the facts and

circumstances, including social background of the appellant and

the period already spent by him in custody, his sentence is

reduced to RI for seven years. The amount of fine is however

maintained. One copy of the order be sent to trial court and the

other be sent to the appellant, through concerned Jail

Superintendent.

(V.K. JAIN) JUDGE October 23rd, 2009 acm