Delhi High Court
Salim Khan vs State Nct Of Delhi on 29 January, 2010
Author: A. K. Pathak
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL. APPEAL No. 887/2008
%
Decided on: 29th January, 2010
SALIM KHAN ..... Appellant
Through: Ms. Rakhi Dubey, Adv.
Versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. M.P. Singh, Adv.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK
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?
A.K. PATHAK, J. (ORAL)
1. Appellant has been convicted by the learned Additional
Sessions Judge, Delhi under Sections 392/394/397 of the Indian
Penal Code (IPC) and sentenced to undergo simple
imprisonment for two years and pay fine of Rs. 500/- ; in default
to further undergo simple imprisonment for fifteen days for
offence punishable under Section 392 IPC; sentenced to undergo
simple imprisonment for four years and pay fine of Rs. 1,000/-; in
default to further undergo simple imprisonment for thirty days
for the offence under Section 394 IPC; sentenced to undergo
simple imprisonment for seven years and pay fine of Rs. 1500/-;
in default to further undergo simple imprisonment for sixty days
for the offence under Section 397 IPC.
2. Brief facts of the case are that the appellant, on 17th
March, 2007, at about 8:30 pm, in front of house No. 433 A,
Pocket II, Mayur Vihar, Phase I, Delhi, switched on the ignition
of Maruti Van bearing No. DL-6CE-5273, belonging to
complainant Vikram Kapoor, in order to commit theft of the said
vehicle. Complainant Vikram Kapoor, who was present in his
house, on hearing the sound of the engine, came out and after
opening the door of the Van confronted the appellant, as to what
he was doing there, at which appellant gave a blow on his right
wrist with some sharp object. On complainant raising alarm
neighbours came there and apprehended the appellant.
3. FIR No. 89/2007 under Sections 392/394/397 IPC was
registered at the Police Station Mayur Vihar on the statement of
complainant.
4. On receipt of information regarding the incident, SI Anant
Kumar (hereinafter referred to as IO) along with Const. Brahm
Singh reached the spot and took the appellant in custody.
Master key of the vehicle was recovered from the possession of
the appellant and sealed in a pulanda. Maruti Van was also
seized and site plan was prepared. After completion of
investigation, appellant was sent up to face trial, for having
committed offences under Sections 392/394/397 IPC, by filing a
charge sheet in the court of learned Metropolitan Magistrate,
who took cognizance of the offence and after completing the
formalities under Section 207 Cr.P.C., committed the case to
Sessions Court for trial.
5. Charges under Sections 392/394/397 IPC were framed
against the appellant on 21st June, 2007 by the learned
Additional Sessions Judge to which appellant pleaded not guilty
and claimed trial.
6. Prosecution examined seven witnesses to prove its story.
Complainant Vikram Kapoor was examined as PW3. Eye witness
Virender Sharma was examined as PW1. Sub Inspector Anant
Kumar was examined as PW7. These are the material witnesses.
Other witnesses are formal in nature being Police officials.
7. After prosecution closed its evidence, statement of
appellant under Section 313 Cr.P.C. was recorded wherein
entire incriminating material which had come on record was put
to him. Appellant denied the same as being incorrect. He
claimed himself to be innocent and denied his complicity in the
said crime. He stated that he was a mechanic by profession and
had repaired the Van but he was not paid the repair charges. On
17th March, 2007, he had gone to complainant's house for
collecting the money. Complainant told that the gear box was
not working properly, therefore, he would not pay anything.
This lead to a scuffle between them as a result of which
complainant received injury. Later on appellant was falsely
implicated in this case. However, no evidence was lead by the
appellant in his defence.
8. PW1 Virender Sharma, who was the alleged eye witness to
the occurrence, did not support the prosecution case. He
admitted that he was neighbour of complainant but at the same
time, he categorically stated that nothing had happened in his
presence. He was cross examined at length by the learned APP
for the State but nothing could be elicited from him which could
go in favour of the prosecution and against the appellant. PW3
Virender Kumar is the star witness of the prosecution. He has
supported the prosecution story. His testimony was found
trustworthy and reliable by the learned Additional Sessions
Judge, consequently appellant was convicted under Sections
392/394/397 IPC.
9. I have heard leaned counsel for appellant, learned counsel
for the State and perused the trial court record carefully and I
find testimony of PW3 trustworthy and reliable. His statement,
in cross-examination, had remained unshaken on material
points. From the statement of PW3 it is clear that on 17 th
March, 2007 at about 8:30 pm when he came out of his house,
on hearing the sound of engine of his Maruti Van, he found
appellant sitting in the driver's seat. When complainant
confronted the appellant as to what was he doing there,
appellant attacked him causing injury in wrist of his right hand.
Appellant was apprehended at the spot by the public persons. In
my view, only because PW1 Virender Sharma had not supported
the prosecution case, would not be sufficient to discard the
testimony of victim i.e. PW3. Accordingly, I am of the opinion
that learned Additional Sessions Judge rightly convicted the
appellant for the offences under Section 392/394 IPC.
10. Next question which arises for consideration is as to
whether the offending act of the appellant attracts the
ingredients of offence under Section 397. It has to be seen
whether appellant had caused injury by a deadly weapon. PW3
Vikram Kapoor deposed that appellant had attacked him by
some object causing injury on his right hand. He further
deposed that Police seized two-three items from the possession
of appellant including some pointed/sharp knife type object, vide
a seizure memo PW3/B. However, as per PW7, no such sharp
object was recovered from the appellant. According to him, one
'L' shaped master key was recovered and taken in possession
vide seizure memo PW3/B. No sketch of 'L' shaped master key
was prepared nor had any of the witness deposed that the injury
on the person of PW3 was possible by the recovered master key
of the car. In any case, there is nothing to show that the
appellant was armed with knife by which he caused injury on the
person of PW3. In view of this, appellant is entitled to benefit of
doubt for the offence under Section 397 IPC.
11. In Charan Singh vs. State reported in 1998 Crl. L.J.
NOC 28 (Delhi) it was held that in order to bring home a
charge under Section 397, the prosecution must produce
convincing evidence that the knife used by the accused was
deadly weapon. What would make knife deadly is its design or
the method of its use such as is calculated to or is likely to
produce death. It is, therefore, a question of fact which is
required to be proved by the prosecution that the knife used by
the appellant was a deadly weapon and in absence of such
evidence and particularly non-recovery of the weapon, would
certainly bring the case out of the ambit of Section 397. Similar
view has been expressed in Rakesh Kumar vs. State reported
in 2005(1) JCC 334.
12. As already stated earlier, no sharp object was recovered
from the appellant nor is there any evidence to indicate that the
injury was possible by the master key, therefore, it cannot be
said that injury was caused by use of deadly weapon, therefore,
attracting the provision of Section 397 IPC.
13. Accordingly, appellant is acquitted for the offence under
Section 397 IPC. Sentence of seven years as awarded by the
learned trial court, under Section 397, is also set aside.
14. Sentence of petitioner under Section 394 IPC is also
reduced from four years to three years. Sentence under Section
392 IPC as awarded by the trial court is maintained as it is.
However, all the sentences shall run concurrently and benefit of
Section 428 Cr.P.C. is also given.
15. Appeal disposed of in the above terms.
16. Copy of this order be sent to Superintendent Jail for
compliance.
A.K. PATHAK, J
January 29, 2010
ga
