Kaushalender vs State
2011 Latest Caselaw 2204 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

+                          Crl. Appeal No. 257/2000

%                                             Reserved on: 1st February, 2011

                                              Decided on: 26th April, 2011

KAUSHALENDER                                                 ..... Appellant
                                Through:   Mr. Ashwani Vij, Advocate

                       versus
STATE                                                         ..... Respondent
                                Through:   Mr. Manoj Ohri, APP for the State

Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. Whether the Reporters of local papers may           Not Necessary

   be allowed to see the judgment?
2. To be referred to Reporter or not?                  Yes

3. Whether the judgment should be reported             Yes
   in the Digest?

MUKTA GUPTA, J.

1. This is an appeal against the judgment of conviction and sentence dated 22 nd

September, 1999 whereby the Appellant has been convicted for offences

punishable under Sections 392/397/34 IPC and directed to undergo a sentence of

rigorous imprisonment for seven years and a fine of

Crl. Appeal No. 257/2000 `5,000/-. In default of payment of fine, the Appellant is to undergo simple

imprisonment for five months.

2. The facts leading to the prosecution filing the charge-sheet are that on

24th October, 1997 at about 1.45 P.M. PW2 Sri Niwas Pandey who was

working in R.N. Distributor at Mehrauli had gone to supply the medicines.

While he along with Subhash Chand Pandey were returning towards Mehrauli

on their respective bicycles, and reached at Vasant Kunj red light, Sri Niwas

Pandey crossed over but Subhash Chand Pandey could not do so in view of

the red light and followed him on the next green light. When PW2 reached at

B1, Vasant Kunj out of the two boys going on foot, one desired to sit on his

cycle. However, PW2 Sri Niwas Pandey refused saying that there was a

bundle of medicines on the carrier of his cycle. Thereafter, the co-convict

Abhay Raj Mishra gave a push to his cycle and PW2 along with his cycle fell

down. The co-convict Abhay Raj Mishra took out a knife and asked him to

hand over the money. Sri Nivas Pandey resisted and answered that he had no

money with him but later on took out `3,500/- from the right side pocket of

his pant which the co-convict took away and handed over to the present

Appellant Kaushlender. Thereafter, both the accused ran away. In the

meantime, Subhash Chand Pandey also came and both of them on their cycles

chased the accused persons. As they had raised the alarm, at the gate of B-7,

Crl. Appeal No. 257/2000

Vasant Kunj, public persons apprehended Abhay Raj Mishra however, the

present Appellant herein managed to escape. Some public person informed the

police about the said incident on which the police reached at the spot and

apprehended the co-convict Abhay Raj Mishra. The statement of PW2 Sri

Niwas Pandey was recorded vide Ex.PW2/A on the basis of which FIR was

got registered. The co-convict was arrested on the spot and in pursuance of his

disclosure statement and pointing out, the present Appellant Kaushlender was

arrested from his house in Village Nawada. The Appellant got recovered a

sum of `1,500/- from beneath the box in his room. After completion of

investigation, the charge sheet was filed

3. Pursuant to the trial the learned Judge convicted the Appellant and the

co-accused for the aforementioned offences. The Appellant Kaushlender has

filed the present appeal. The appeal qua co-accused Abhay Raj Mishra being

Cr. Appeal No. 531/1999 has been decided by this Court vide its judgment

date 4th January, 2011.

4. Learned counsel for the Appellant states that there is material

contradiction in the testimony of PW2, the Complainant Sri Niwas Pandey as

in his complaint he states that the Appellant showed the knife whereas in the

Court he alleges that co-convict Abhay Raj Mishra pushed him, showed the

knife and removed `3,500/- from the right side of his pocket and handed over

Crl. Appeal No. 257/2000

the same to the Appellant. Thus, no role in showing the knife has been

attributed to the Appellant in the testimony of PW2 before the Court. There

are material contradictions between the testimony of PW2, the Complainant,

PW3 Constable Shyam Lal and PW6 Assistant Sub-Inspector Vijay Kumar,

investigating officer as regards the time when they reached Nawada for

arresting the Appellant. PW3 has stated that he came back to the spot after

registering the FIR at 11:00 A.M. though the alleged incident is of 1:45 P.M.

in the noon. He states that he alongwith investigating officer and accused

Abhay Raj Mishra reached Nawada at 6:30 P.M. and returned back to the

police station at about 10:00 P.M. Thus, according to PW3, the Complainant

had not accompanied the investigating officer PW6 and PW3 to the house of

the Appellant. Whereas PW6 has stated that they reached Nawada at about

9:00 P.M. along with Subhash Pandey, Sri Niwas, co-accused Abhay Raj

Mishra and Constable Shyam Lal. There is only one witness to the recovery

at the instance of the Appellant i.e. PW3 who has not supported the

prosecution case. There is discrepancy in the money recovered at the instance

of the Appellant and produced in the Court. Neither the currency notes were

sealed nor any specific mark given to them nor their numbers were noted.

Learned counsel contends that the defence of the Appellant in his statement

under Section 313 Cr.P.C. has not been considered. In view of the material

Crl. Appeal No. 257/2000

discrepancies in the statements of the witnesses, the Appellant is entitled to

the benefit of doubt. Though the co-convict Abhay Raj Mishra has been

convicted for offence punishable under Section 394/34 IPC, the case of the

Appellant stands on a different footing as he was not apprehended on the spot

and he is entitled to be acquitted.

5. Learned APP for the State on the other hand contends that though the

recovery of the money at the instance of the Appellant has been disbelieved

by the learned trial court as the currency was not sealed, however, on the basis

of identification by the Complainant that it was the Appellant along with

Abhay Raj Mishra who robbed him by showing the knife , prosecution has

proved the commission of offence under Section 392/34 IPC beyond

reasonable doubt. Hence there is no merit in the present appeal and the same

deserves to be dismissed.

6. I have heard learned counsel for the parties and perused the record.

This Court in Criminal Appeal No. 531/1999 filed by the co-convict Abhay

Raj Mishra has already held that in view of the discrepancy in the testimony

of PW2 Sri Niwas Pandey as to who showed the knife to the Complainant, the

learned trial court erred in convicting the Appellant and co-convict for offence

punishable under Section 397 IPC. The learned trial court has disbelieved the

recovery of currency notes at the instance of the present Appellant for the

Crl. Appeal No. 257/2000

reason that they were neither sealed nor their numbers noted. Moreover, as

per the seizure memo currency notes worth ` 1,500/- were recovered,

however, when the same were produced in the Court, they were `1,515/-. In

addition, PW6 has clarified that he did not seal the currency notes nor noted

the numbers because this was his first investigation for offences under Section

397/392 IPC. But the failure of prosecution to prove the recovery of ` 1,500/-

at the instance of the Appellant cannot dent the otherwise trustworthy

evidence of the Complainant. Thus, as regards the present Appellant, the only

evidence which requires consideration is; whether the offence punishable

under Section 392/34 IPC has been proved in view of the factum of his

identification by the Complainant, PW2 Sri Niwas Pandey. This Court in

Criminal Appeal No. 531/1999 has already held that the testimony of this

victim PW2 is cogent and convincing. He has explained the entire incident.

The testimony of PW2 is further corroborated from the fact that the co-convict

Abhay Raj Mishra was apprehended at the spot and beaten by the public and

was medically examined vide MLC Ex.PW4/A. The present Appellant was

arrested on the pointing out of co-convict Abhay Raj Mishra and on the

identification by PW2 the Complainant. PW2 had no reason to falsely

implicate the Appellant herein. The testimony of PW2 is corroborated by the

testimony of PW6, the investigating officer who has stated that after the arrest

Crl. Appeal No. 257/2000

of Abhay Raj Mishra, he disclosed about the Appellant and took them to

village Nawada along with Sri Niwas Pandey, Subhash Pandey, and Constable

Shyam Lal. Merely because PW3 in his testimony had given different time of

registration of FIR, leaving to Nawada and returning back to the police

station, it would not discredit the otherwise cogent testimony of PW2 and

PW6. As per the testimony of PW2 when he crossed the Vasant Kunj red

light, two boys were going on the foot and one of them wanted to sit on his

cycle but he told that there was a bundle of medicines on his carrier so they

cannot sit on his cycle. On this, two boys again insisted and on his refusing,

Abhay Raj Mishra gave a push to his cycle and he fell down along with his

cycle. Accused Abhay Raj Mishra took out the knife and asked him to hand

over the money and when he resisted, the same was taken out from right side

pocket of his pant and handed over to the Appellant present in Court. The

Appellant is the person who in furtherance of common intention with co-

convict Abhay Raj Mishra committed the offence of robbery. I find that the

prosecution has proved its case beyond reasonable doubt for commission of

offence punishable under Section 392/34 IPC.

The Appellant has undergone sentence of imprisonment for a period of

nearly three years and three months. He has faced the ordeal of trial and the

present appeal for the last 14 years and thus it would be in the interest of

Crl. Appeal No. 257/2000

justice that the sentence of the Appellant is modified to the period already

undergone as was done by this Court in the case of co-convict Abhay Raj

Mishra.

The Appeal is accordingly allowed modifying the conviction of the

Appellant to one for offence punishable under Sections 392/34 IPC and the

sentence to the period already undergone. The bail bond and the surety bond

are discharged.

(MUKTA GUPTA) JUDGE

APRIL 26th 2011/dk

Crl. Appeal No. 257/2000