Arjun Mandal vs The State (Govt. Of Nct Of Delhi)
2010 Latest Caselaw 114 Del

*                     HIGH COURT OF DELHI : NEW DELHI

               Judgment reserved on: January 08, 2010
             Judgment pronounced on: January 12, 2010

+                         Crl. Appeal No. 385 of 2007
                                    &
                          Crl. M.B. No. 547 of 2009

%         Arjun Mandal                         ...     Appellant
                    Through:       Ms. Anu Narula, Advocate

                                    versus

          The State
          (Govt. of NCT of Delhi)                ...  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. In the night of 17th day of September, 2004, an armed

robbery had taken place at House No.1-E, Northern Road, Civil

Lines, Delhi. Smt. Anita Mukin, is the landlady of this house and

the Appellant was the servant there and he had purportedly

facilitated the armed robbery in this house by his co-accused

Ravinder Kumar Thakur. FIR No. 267/04 under Sections

Crl. A. No. 385 of 2007 Page 1 394/411/452/34 of the Indian Penal Code was registered at

Police Station Civil Lines, Delhi, regarding this incident.

Investigation had commenced and after its completion, charge

sheet under Sections 394/411/452/34 of Indian Penal Code was

filed before the concerned Court, who also took cognizance for

the offence punishable under Section 397 of IPC. Appellant

alongwith his co-accused was put to trial for the offences under

Sections 392/34, 394/34 and under Sections 392/394/397/34 of

Indian Penal Code.

2. Although the evidence of fourteen witnesses had been

recorded at trial of this case, but the fate of this case primarily

depends upon the evidence of the prime witness- Smt. Anita

Mukim, (PW-1), whose testimony has been referred to in

extenso by the learned counsel for the Appellant during the

hearing in this appeal. It is worthwhile to note that the stand of

the Appellant before the trial court was of bald denial and no

evidence in defence was led by the Appellant before the trial

court.

3. The trial of this case ended in conviction of the Appellant

and his co-accused and sentence of five years with fine has

been imposed upon the Appellant for the offence punishable

under Section 392/34 of Indian Penal Code. Similarly, the

Crl. A. No. 385 of 2007 Page 2 sentence imposed for the offence punishable under Section

394 of Indian Penal Code is also five years with fine. Conviction

for the offence punishable under Section 397 of Indian Penal

Code carries a minimum sentence of seven years, which has

been imposed upon the Appellant, which is seriously under

challenge in this appeal.

4. After having heard both the sides in this appeal and upon

perusal of the evidence on record, I find that learned counsel

for the Appellant candidly does not contest the conviction and

sentence imposed upon the Appellant for the offences

punishable under Section 392 and 394 read with section 34 of

Indian Penal Code and rightly so, as the evidence on record

clearly supports the conviction of the Appellant for these two

offences.

5. What has been vehemently contested by learned counsel

for the Appellant is the conviction for the offence punishable

under Section 397 of Indian Penal Code. For this purpose,

evidence on record has been extensively referred to by

learned counsel for the Appellant and it has been specifically

highlighted that there is no recovery of knife at the instance of

the Appellant and the chance print does not tally with the

specimen impressions of the Appellant and there is no

Crl. A. No. 385 of 2007 Page 3 worthwhile evidence to sustain the conviction of the Appellant

for this offence.

6. It is quite evident from the evidence of the star witness

Anita Mukim, (PW-1) that Appellant had taken out the kitchen

knife from his pocket and his co-accused had caught hold of

the landlady (PW-1) and had tied her with the rope and

thereafter, both the accused started beating her with some

hard object.

7. To attract offence punishable under Section 397 of Indian

Penal Code, use of knife is not a must and brandishing of knife

while committing the offence of robbery by itself is sufficient.

Attention of this Court was drawn by learned counsel for the

Appellant to the testimony of Dr. Mridul Kaushik (PW-10) to

show that she admits that injury on the finger of the patient

could have been by a fall. Though, it is stated so, but its

possibility ruled out by the fact that the injury sustained on the

finger of the Complainant/first informant was a incised wound,

which shows that there was use of knife in commission of this

offence. What probablises the prosecution version is that the

arrest of the appellant/accused is on the same day and he

does not rule out his presence at the time and place of this

incident.

Crl. A. No. 385 of 2007 Page 4

8. In the last, much emphasis has been laid by learned

counsel for the Appellant upon the aspect of lack of legal

assistance to the appellant/accused during the trial of this

case. What has been highlighted is that the Complainant/first

informant (PW-1) as well as her husband (PW-2) and public

witness (PW-4) have not been cross-examined on behalf of the

appellant/accused. What is being emphasized is that the trial

judges, in sessions trial, have to be sensitized to the need of

ensuring that legal aid counsel ought to be provided to cross-

examine the material witnesses and if cross-examination of

material witnesses is done by the accused, then it should be

specifically recorded that in the deposition of the material

witnesses, that the opportunity to have legal assistance was

provided to the accused, but he refused to avail of it.

9. I find substance in the aforesaid stand of the learned

counsel for the Appellant. Every session Court is duty bound to

provide fair trial and especially to the poor accused, who are

unrepresented by a counsel. Special care needs to be taken to

ensure that legal assistance, in cases like present one, is

afforded to the poor accused. The stage of cross-examination

is quite vital and it affords an opportunity to an accused to test

the veracity of the witnesses and to confront/contradict the

Crl. A. No. 385 of 2007 Page 5 witnesses and to put across what the accused has to say.

10. In any case, the trial of this case does not stand vitiated

on this account because record of this case reveals that

amicus curiae counsel was provided to the accused in this

case. It is so reflected in the order sheet of 4 th June, 2005 of

the trial Court. On that very day, charges were framed against

the appellant/accused. It is unfortunate that Mr. Surinder

Singh, Amicus Curiae counsel did not take any interest and

another Amicus Curiae counsel Ms. Sadhna Bhatia was

appointed as is evident from the order sheet of 26 th April,

2006. It is pertinent to note that the Complainant and first

informant were present on that date but they were discharged

to be examined on another date. At least, in this case the trial

judge was vigilant about the pre-requisite of providing a fair

trial.

11. Delhi Legal Services Authority or the authority concerned

for providing legal aid counsels have to ensure that effective

legal assistance is provided to the poor accused. For this,

constant monitoring of the legal aid counsels by the authorities

concerned has to be undertaken. In this matter, nothing further

is required to be said, except that effective assistance has

been rendered by Ms. Anu Malhotra, learned counsel for the

Crl. A. No. 385 of 2007 Page 6 Appellant during the hearing of this appeal.

12. All said and done, there is no merit in this appeal. There

is no illegality or infirmity in the impugned judgment. This

appeal merits rejection and is accordingly rejected.

13. This appeal and the pending application are accordingly

disposed of.

14. Appellant is in custody, he be informed of the fate of this

appeal through the concerned Jail Superintendant.

Sunil Gaur, J.

January 12, 2010
Pkb/rs




Crl. A. No. 385 of 2007                                            Page 7