[email protected] vs State
2010 Latest Caselaw 3832 Del

     *           IN THE HIGH COURT OF DELHI AT NEW DELHI


                                                        Date of Reserve: 9th July, 2010

                                    Date of Order: August , 2010

                                    + Crl. Appeal No. 16 of 2009
%                                                                            17.08.2010
         Santosh @ Mustafa                                            ...Appellant
         Through: Ms. Saahila Lamba, Advocate

         Versus

         State                                                        ...Respondent
         Through: Mr. Sunil Sharma, APP for State

                                               AND

                                    + Crl. Appeal No. 17 of 2009
%
         Ravi Shankar Prasad                                          ...Appellant
         Through: Ms. Saahila Lamba, Advocate

         Versus

         State                                                        ...Respondent
         Through: Mr. Sunil Sharma, APP for State


         JUSTICE SHIV NARAYAN DHINGRA

1.       Whether reporters of local papers may be allowed to see the judgment?

2.       To be referred to the reporter or not?

3.       Whether judgment should be reported in Digest?


                                            JUDGMENT

1. These two appeals have been preferred by the appellants assailing a common

judgment dated 25th September 2008 passed by learned Sessions Judge whereby the

learned Sessions Judge convicted both the appellants for the offences punishable under

Sections 392 read with Section 34 and 397 IPC and sentenced them vide order dated 1st

October 2008 to undergo rigorous imprisonment for a period of seven years under

Section 397 IPC with fine of Rs.500/- and three years rigorous imprisonment under

Crl. Appeal Nos.16/2009 & 17/2009 Page 1 Of 4 Section 392 IPC.

2. The FIR against the appellants was lodged on the statement of Rajbir Singh who

was the victim of robbery. On 1st April 2007, he was returning from Faridabad Sector-28

where he was working, on his bicycle. When he reached Mangal Bazzar Road street

no.4, D Block Sangam Vihar at about 11 pm, the appellants stopped him and asked him

about street no.9. The moment Rajbir Singh stopped, both the appellants pounced upon

him and took out knives and pointed the knives at him and asked him to hand over

whatever he had otherwise he would be stabbed. The money and other articles were

taken from the pockets of his shirt and pant. He (victim) was carrying Rs.600/- in pocket

of his pant. A diary and ICICI slip from his shirt pocket. These things were taken from

him on the knife point and after looting him, they ran away. Immediately thereafter, the

victim raised alarm about his being looted. ASI Karamvir and Constable Banwari were on

patrolling duty in the area on that day and they heard alarm and they chased the

appellants. Both were apprehended after chase and their names, addresses etc were

inquired. A search was taken and on search one knife each was recovered from both of

them. A diary along with ICICI bank slip also recovered from Santosh @ Mustafa and

Rs.600/- and a knife was recovered from appellant Ravi Shankar. Both of them were

apprehended.

3. During trial, the victim Rajbir Singh appeared as prime witness of prosecution and

testified about the manner in which he was robbed. He supported the prosecution case.

The other witnesses are police officials who had apprehended the appellants at the spot

and made recoveries from them. The defence taken by the appellants before the trial

court was that the cycle of Rajbir Singh hit them with the result that a quarrel took place

between Rajbir Singh and both the appellants. Police reached at the spot. Rajbir Singh

and both the appellants were taken to police station where police demanded money for

Crl. Appeal Nos.16/2009 & 17/2009 Page 2 Of 4 their release. Rajbir Singh called his brother to the police station who paid Rs.1500/- for

release of Rajbir Singh and Rajbir Singh was released. Since both the appellants could

not pay the amount demanded by the police, they were implicated by the police in this

false case. They claimed innocence.

4. From this defence, it is apparent that the appellants did not deny from their

presence at the spot, their apprehension by the police from the spot and taking them and

Rajbir Singh to police station from the spot. Rajbir Singh denied that his brother paid

Rs.1500/- to police for his release and he denied that the appellants were falsely

implicated.

5. It is argued by the counsel for the appellant that the trial court had not considered

the contradictions in the statements of Rajbir Singh. While he initially stated that both

the accused persons were arrested at the spot after chase but during cross examination

he stated that accused Ravi Shankar was apprehended by the police later on and he

was called at the police station on next day morning to identify him and he identified

accused Ravi Shankar and therefore the deposition of Rajbir Singh is not trustworthy.

6. I consider that some variations and contradictions in the statement of witnesses

are bound to come. The incidents tried by the courts are real life incidents and they are

not stories written by authors where the entire story has to run as per book. In real life

incidents, a witness has to depose from his/her memory When witnesses are asked to

depose in the Court after a long gap, the variations in the statement made before the

police and statement made in the Court are bound to be there. The court has to see if

the testimony of witness about commission of crime by the accused was trustworthy or

not. In the present case, Rajbir Singh categorically stated that both the appellants had

pounced upon him and took out knives and told him to shell out whatever he had in his

Crl. Appeal Nos.16/2009 & 17/2009 Page 3 Of 4 pocket otherwise he will be stabbed. He raised noise and the appellants were caught at

the spot. Let us presume that one appellant was caught at the spot and other was

traced at the instance of other accused during night and was not caught at the spot.

Thus, he was apprehended soon after the incident during same night it was not

necessary for police to keep the complainant sitting in the police station till the police was

able to trace the second accused and apprehend him. There is no denial of the fact that

both the accused/appellants were apprehended on the same night. In fact, it was not

case of the accused/appellants that they were not apprehended at the same time. What

is more important to see whether the appellants were the same persons who had

committed robbery or they were falsely implicated in this case. The person who was their

victim had categorically stated that both of them were the same persons who robbed

him. There is no reason to disbelieve him. It is not the case of the appellants that the

victim had an enmity against them rather the stand of appellants that Rajbir Singh was

also a victim at the hands of police highhandedness and he had to shell out Rs.1500/-. If

this had been the case, Rajbir Singh would have been the last person to support the

prosecution case and to depose against the appellants. The fact is that Rajbir Singh

stood by his stand and categorically stated that the appellants were the persons who

robbed him on knife point.

7. In view of above facts and circumstances, I find no force in these appeals. Both

the appeals are hereby dismissed. As far as sentence is concerned, the minimum

sentence provided under Section 397 IPC is seven years RI. The trial court has awarded

minimum sentence. There is no scope for reducing the sentence of the appellants.

8. Both appeals stand dismissed.

August 17, 2010                                             SHIV NARAYAN DHINGRA J.
rd


Crl. Appeal Nos.16/2009 & 17/2009                                           Page 4 Of 4