Delhi High Court
Islamuddin vs State (Nct Of Delhi) on 30 September, 2010
Author: Ajit Bharihoke
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: September 10, 2010
Judgment delivered on: September 30, 2010
+ CRIMINAL APPEAL NO.260/2010
ISLAMUDDIN ....APPELLANT
Through: Mr. Rajesh Mahajan, Amicus Curiae with
Ms. Satsheel Sheokand, Advocate
Versus
STATE (NCT OF DELHI) .....RESPONDENT
Through: Mr. Pawan K. Bahl, APP
WITH
CRIMINAL APPEAL NO.471/2010
JAGDISH ....APPELLANT
Through: Mr. A.J. Bhambhani, Advocate with
Ms. Nisha Bhambhani, Advocate
Versus
STATE(NCT OF DELHI) .....RESPONDENT
Through: Mr. Pawan K. Bahl, APP
WITH
CRIMINAL APPEAL NO.639/2010
JITENDER GUJJAR ....APPELLANT
Through: Mr. Manoj Sharma, Advocate
Versus
STATE(NCT OF DELHI) .....RESPONDENT
Through: Mr. Pawan K. Bahl, APP
AND
Crl. A. Nos.260/2010, 471/2010, 639/2010 & 676/2010 Page 1 of 13
CRIMINAL APPEAL NO.676/2010
RAJESH @ KALU ....APPELLANT
Through: Ms. Rakhi Dubey, Amicus Curiae
Versus
STATE(NCT OF DELHI) .....RESPONDENT
Through: Mr. Pawan K. Bahl, APP
CORAM:
HON'BLE MR. JUSTICE AJIT BHARIHOKE
1. Whether Reporters of local papers
may be allowed to see the judgment?
2. To be referred to the Reporter or not ?
3. Whether the judgment should be
reported in Digest ?
AJIT BHARIHOKE, J.
1. These four appeals are directed against the impugned judgment
dated 22nd December 2009 in terms of which the appellants herein have
been convicted for the offences punishable under Section 307 IPC read
with Section 34 IPC and Section 395 IPC as also against the consequent
order on sentence dated 24th December 2009. Each appellant, for the
offence under Section 395 IPC has been sentenced to undergo rigorous
imprisonment for a period of 10 years and also to pay a fine of `500/-, in
default of payment of fine, to undergo SI for a period of two months
respectively and for the offence under Section 307/34 IPC, they have also
been sentenced to undergo RI for the period of 10 years each and also to
pay fine of `250/- each, in default of payment of fine to undergo SI for the
period of two months.
2. Briefly stated, facts giving rise to these appeals are that on 25 th
February 2005 at about 2:05 a.m., DD No.6A(Ex.PW15/A) was recorded at
P.S. Sarojini Nagar on the basis of information received about an incident
at Bhikaji Cama Place flyover. Copy of the DD report was entrusted to ASI
Ishwar Dutt (PW15) for verification. He along with Constable Robert (PW9)
on the receipt of DD report went to the place of incident near Hyatt Hotel
Flyover at Africa Avenue Road. There he met ASI Hanuman Singh (PW6)
of P.S. Sarojini Nagar. ASI Hanuman Singh handed over to him one packet
duly sealed with the seal of AIIMS, besides the MLCs of injured Sumit
Gupta, PW3 and injured Raj Kumar, PW8. No eye witness was available at
the place of occurrence. Both the injured persons were declared unfit for
statement by the treating doctors. ASI Ishwar Dutt appended his
endorsement on the copy of DD report and sent it to the police station for
the registration of the case. He also visited Safdarjung Hospital and
collected sealed packet of clothes of injured Raj Kumar from the treating
doctor. Blood sample was lifted from the spot of occurrence and sealed in
a separate packet. The sealed packets of the clothes of injured as well as
blood sample along with sample seals were deposited in the police
malkhana on the same day.
3. On 26th February 2005, injured Sumit Gupta (PW3) was declared fit
for statement. ASI Ishwar Dutt recorded his statement under Section 161
Cr.P.C. wherein he disclosed that on 24th February 2005, he came to
Bhikaji Cama Place in a bus where he was to meet his friend Surender.
After alighting at the bus stand Bhikaji Cama Place, he proceeded towards
the flyover. At around 11.00 p.m., when he reached near Hyatt flyover,
Africa Avenue Road, he was waylaid by 5-6 boys who asked him to give
his valuables to them. One of them inflicted a knife injury on his back. He
resisted their attempt to rob him and managed to snatch the knife from
the assailant. On this, those boys grappled with him and the knife fell
down from his hand. One of the robbers picked up the knife and stabbed
him in his back as well as abdomen while other boys physically restrained
him. Even then, he did not give up and again tried to snatch the knife
from the said boy. In that scuffle, aforesaid boy sustained injury on the
finger of his right hand. He further claimed that those robbers forcibly
took his mobile phone make Nokia bearing No.9868129314, a silver chain
and `850. When he raised alarm, one person (later identified as Raj
Kumar) came to rescue him and those robbers also stabbed him with the
knife. Statement of the injured Raj Kumar was also recorded during
investigation.
4. The appellants along with others were arrested in some other case
FIR no.103/2005 under Sections 399/402 IPC and Section 25/27 of the
Arms Act pertaining to P.S. Mehrauli. When they were interrogated in that
case, they made disclosures about their involvement in this case. So they
were formally arrested and interrogated in this case. The Investigating
Officer applied for fixing the date for Test Identification Parade (TIP) to fix
the identity of the appellants as culprits and they were correctly identified
by PW3 Sumit Gupta in the TIP proceedings. The Exhibits seized during
investigation were sent to CFSL Calcutta and opinion of the doctors
regarding nature of the injuries sustained by the victims was obtained.
On completion of formalities of investigation, the appellants were
challaned and sent for trial.
5. The learned Additional Sessions Judge charged the appellants for
the offences punishable under Sections 395 IPC and 307 IPC read with
Section 34 IPC. The appellants pleaded innocence and claimed to be
tried.
6. In order to bring home the guilt of the appellants, prosecution has
examined 21 witnesses. The important witnesses, however, are victims
PW3 Sumit Gupta and PW8 Raj Kumar who had sustained injuries in the
incident.
7. PW3 Sumit Gupta testified in the court that on 24.02.2005 at around
11:00 pm, he alighted from the bus at Bhikaji Cama Place and proceeded
towards traffic point of Africa Avenue road where he was supposed to
meet his friend Surender. On reaching there, he rang up his friend
Surender from his mobile phone. In the meanwhile, 5-6 persons came
there and tried to rob him on the point of knife. He was asked to hand
over his valuable articles to them. They forcibly took his mobile phone,
silver chain and `850/- from him. In that process, a scuffle took place and
one of those persons took out a knife and inflicted injuries on his
abdomen, back and hand. When he raised alarm, a rickshaw puller came
there and tried to save him. On this, those persons started beating the
rickshaw puller. This witness also stated that when he tried to snatch the
knife from the assailant, he sustained injury on his hand. He also
identified the appellants as the culprits and proved the invoice pertaining
to purchase of said mobile phone Ex.PW3/A.
8. PW8 Raj Kumar is the other victim of the incident. He has testified
that on 24.02.2005 at about 11:00 pm, he heard the cry of a person at
bus stand of local route bus No.610. He noticed 5-6 persons were beating
a person and when he asked for the reason, they remarked "Tu Iska
Himajiti Hai, Tera Hi Kam Tamam Kar Dete Hai". Thereafter, one of them
stabbed him thrice with a knife on his abdomen and once on his right
thigh. After some time, police arrived at the spot and he was taken in a
police vehicle to the police station. PW8 Raj Kumar has identified the
appellant Jitender as the person who had inflicted knife injury on his
person. He has also identified the other persons as party to the incident.
He also claimed that he had identified them in Tihar Jail. However, in his
cross-examination, he took a somersault and stated that appellants are
not those persons and that he identified them at the instance of police.
9. The appellants in their respective statements under Section 313
Cr.P.C. denied the prosecution story in totality and claimed that they
have been falsely implicated in this case. They did not prefer to lead
evidence in defence.
10. The learned Additional Sessions Judge on consideration of the
evidence found the testimony of PW3 Sumit Gupta and PW8 Raj Kumar
reliable and on the strength of their testimony, he convicted the
appellants for the offences punishable under Section 307 IPC read with
Section 34 IPC and Section 395 IPC. Consequent upon the conviction,
learned Additional Sessions Judge awarded sentence to the appellants in
terms of order dated 24.12.2009.
11. Learned Shri A.J. Bhambhani, Advocate appearing on behalf of the
appellant Jagdish, Ms. Rakhi Dubey, Amicus Curiae appearing on behalf of
the appellant Rajesh, learned Shri Manoj Sharma, Advocate appearing on
behalf of the appellant Jitender and learned Shri Rajesh Mahajan, Amicus
Curiae appearing on behalf of the appellant Islamuddin have argued on
similar lines.
12. Learned Shri A.J. Bhambhani, Advocate for the appellant Jagdish,
leading the assault on the impugned judgment submitted that the case of
the prosecution is essentially based upon the purported eye witness
account of the incident given by PW3 Sumit Gupta and PW8 Raj Kumar,
which is not reliable. Dilating on the argument, learned counsel took me
through the cross-examination of PW8 Raj Kumar wherein he has stated
thus:
"There was no street light near the bus stand.
Ques: How did you identify the accused persons?
Ans. I have not seen the accused persons on the spot but those
were shown to me in the hospital by the police. There I
identified as police pointed out to me that these are the
accused persons.
Accused persons were shown to me when I regained my
consciousness in the hospital on 05.03.2005. It is correct I
do not know who hit me with the knife only police told me
that he is the person."
and submitted that from the aforesaid version of PW8 Raj Kumar, it is
apparent that it was dark at the time of incident and as such, neither PW8
Raj Kumar nor PW3 Sumit Gupta could have been in a position to see the
culprits who robbed and caused injury to Sumit Gupta(PW3) as well as Raj
Kumar (PW8), as such it is not safe to place reliance upon the
identification of the appellants on the basis of sole testimony of PW3
Sumit Gupta, which is not corroborated by PW8 Raj Kumar. Secondly, it is
contended on behalf of the appellants that as per the prosecution story
and the testimony of PW3 Sumit Gupta, he had gone to Bhikaji Cama
Place with a view to meet his friend Surender with whom he had a pre-
appointment and that at the time of the incident he was talking to his
friend Surender. Despite of that, Surender never reached at the spot of
occurrence nor he has been produced as a witness to corroborate the
version of PW3. This circumstance, according to the learned counsels
appearing for the appellants, casts a doubt against the version of PW3
Sumit Gupta. Thirdly, it is submitted that though as per the case of
prosecution, the appellants made disclosure statements regarding their
involvement in the incident and the robbery, yet nothing has been
recovered pursuant to those disclosure statements, which circumstance
compounds the doubt against the correctness of the prosecution story. In
view of the above submissions, learned counsels for the appellants have
urged me to extend benefit of doubt to the appellants.
13. On the contrary, learned APP has argued in favour of the impugned
judgment. He has submitted that PW3 Sumit Gupta has fully supported
the prosecution case and his version stands corroborated by the
statement of PW8 Raj Kumar as well as the medical evidence i.e. the MLCs
of PW3 as well as PW8, Exhibits PW11/A and PW17/A respectively.
Learned APP submitted that merely because PW8 has given contradictory
versions about the identity of the appellants in his examination-in-chief
and cross-examination, the version of PW3 Sumit Gupta cannot be
suspected. Thus, he has pressed for dismissal of the appeals.
14. I have considered the rival contentions. On careful reading of the
evidence, I find no merit in the submissions made on behalf of the
appellants for the following reasons.
15. PW3 Sumit Gupta, as per the case of the prosecution, is the victim
who was stabbed and robbed of his belongings i.e. mobile phone, a silver
chain and `850/- in the occurrence. PW8 Raj Kumar is the other victim of
the occurrence who was stabbed when he came to the rescue of PW3
Sumit Gupta. PW3 Sumit Gupta has fully supported the prosecution story
in his testimony detailed above. His version regarding the occurrence
also finds corroboration in the testimony of PW8 Raj Kumar who has
categorically stated that on 24.02.2005 at around 11:00 pm, he noticed
5/6 persons beating the complainant and when he asked them as to why
they were beating him, they got annoyed and uttered "Tu Iska Himajiti
Hai, Tera He Kam Tamam Kar Dete Hai." Thereafter, one of them stabbed
him with a knife thrice on his abdomen and once on his right thigh. PW3
Sumit Gupta has also stated that he was stabbed by one of those boys at
the time of robbery. The version of these two witnesses also finds
corroboration in their respective MLCs Exhibits PW11/A and PW17/A.
Exhibit PW11/A is the MLC of PW3 Sumit Gupta, wherein it is recorded that
he was admitted in AIIMS on 24.02.2005 at 11:28 pm with the history of
"assault with knife". As per the testimony of Dr. Amit Kumar (PW11) who
prepared the MLC of Sumit Gupta, he found following three injuries on his
person:
"(a) One lacerated wound 2 X 1cm at front and at the back,
(b) One lacerated wound in the abdomen 1 X 1cm, and
(c) One lacerated wound at right forearm 2 X 1cm"
and, according to him, the nature of injuries suffered by Sumit Gupta was
grievous.
16. Exhibit PW17/A is the MLC of PW8 Raj Kumar wherein it is recorded
that on 24.02.2005, he was brought to Safdarjung Hospital by Constable
Hukum Chand of PCR with alleged history of assault. On perusal of the
MLC, it transpires that Raj Kumar had sustained a stab injury on his
abdomen measuring 4 X 1 cm deep on left lumber region of anterior
abdominal part and another injury measuring 2 X 1 cm deep on lateral
aspect of left thigh, besides a fracture of right clavicle. The nature of
injury, as per the MLC, was opined as grievous. From the above medical
evidence, it is apparent that PW3 Sumit Gupta as well as PW8 Raj Kumar
had sustained stab injuries, which obviously cannot be self inflicted.
Therefore, I find no reason to disbelieve the version of the above
witnesses regarding the incident involving robbing of mobile phone, silver
chain and `850/- from PW3 Sumit Gupta and causing stab injuries to PW3
Sumit Gupta as well as PW8 Raj Kumar.
17. It was emphatically argued on behalf of the appellants that as per
the case of the prosecution, PW3 Sumit Gupta had gone to meet his friend
Surender who was supposed to meet him near Bhikaji Cama Place flyover.
Despite that, said Surender has neither been cited nor examined as a
witness. This circumstance casts a doubt on the correctness of version of
PW3 Sumit Gupta and also points towards unfair investigation. I do not
find any merit in this submission. As per the case of the prosecution as
well as the evidence of PW3 Sumit Gupta, he had gone to Bhikaji Cama
Place to meet his friend Surender. However, from the version of PW3, it is
apparent that Surender was not there. Therefore, PW3 Sumit Gupta called
him on his mobile phone. This was the time when the incident took place.
Thus, it is apparent that Surender is not an eye witness to the case and if
the Investigating Officer did not deem it important to examine Surender in
order to verify the correctness of the reason given by PW3 for his visit to
Bhikaji Cama Place flyover, by no means can it be taken as a
circumstance to suspect the correctness of the version of PW3, which
version is corroborated by the testimony of PW8 Raj Kumar as well as the
medical evidence i.e. the MLCs of PW3 as well as PW8.
18. Crucial issue is whether or not the appellants were involved in the
aforesaid robbery. Contention of the appellants is that PW8 Raj Kumar
has categorically stated that there was no street light near the spot of
occurrence; as such it is highly improbable that PW3 Sumit Gupta could
have seen the robbers properly so as to be able to identify them later.
There is no merit in this submission for the reason that PW8 Raj Kumar is
not a reliable witness. He, in his examination-in-chief, identified all the
appellants, but in the cross-examination he took a somersault and
deposed that he had not seen the accused persons at the spot, but they
were shown to him in the Hospital. He also went on to say in his cross-
examination that accused persons were shown to him when he regained
consciousness in the hospital on 05.03.2005. This version of Raj Kumar
cannot be true because as per the testimony of PW16 Barkha Gupta, MM,
Test Identification Parade for fixing the identity of the appellants was held
on 04.03.2005 in which Raj Kumar wrongly identified the appellants
Jagdish and Islamuddin, whereas the other two appellants had refused to
join the TIP. From this, it can be safely inferred that PW8 Raj Kumar is not
truthful about the identification of the appellants. Otherwise also, PW8
Raj Kumar has given a contradictory version about the identity of the
appellants, which makes that part of his testimony unreliable.
19. Further, failure of PW8 Raj Kumar to identify the appellants as the
culprits cannot be taken as a reason to suspect the testimony of Sumit
Gupta (PW3) regarding the identity of the appellants as the persons who
stabbed and robbed him. The identification of the appellants done by
Sumit Gupta (PW3) in the court cannot be suspected for the reason that
as per the testimony of PW16 Ms. Barkha Gupta, M.M., on the request of
the Investigating Officer, she had conducted Test Identification Parade at
Central Jail on 09.03.2005 to fix the identity of the appellants. As per
PW16, the appellants showed their willingness to join the Test
Identification Parade and in the Identification Parade, PW3 Sumit Gupta
correctly identified the respective appellants. TIP proceedings are proved
on record as Exhibits PW16/T, PW16/V, PW16/X and PW16/Z. From this, it
is apparent that PW3 Sumit Gupta had identified the appellants as culprits
within a span of 15 days from the date of incident when his memory was
fresh. In view of this also, I find no reason to suspect the version of PW3,
particularly when there is nothing on the record to suggest that PW3 had
any reason or motive to falsely implicate the appellants. Thus, in my
view, the learned Additional Sessions Judge has rightly relied upon the
prosecution evidence, particularly the testimony of PW3 Sumit Gupta to
return the finding of guilt of the appellants.
20. Lastly, it is contended on behalf of the appellants that though their
disclosure statements were recorded by the Investigating Officer, it has
not led to any recovery and this circumstance casts a strong doubt
against the correctness of the prosecution case. I do not find any merit in
this contention for the reason that recovery of case property in a criminal
trial is not the sine qua non for holding the accused guilty. What is
important is whether or not the evidence led by the prosecution is
credible and sufficient to prove the guilt of the accused. In the instant
case, in view of the discussion above, prosecution has been able to bring
home the guilt of the appellants beyond the shadow of reasonable doubt.
21. In view of the discussion above, I do not find any infirmity in the
impugned judgment which may call for interference by this Court.
22. Appeals are devoid of merit, accordingly dismissed.
(AJIT BHARIHOKE)
JUDGE
SEPTEMBER 30, 2010
ks/pst
