Ashwani Kumar vs State
2011 Latest Caselaw 194 Del

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*          IN THE HIGH COURT OF DELHI AT NEW DELHI
+                 Crl. Appeal 221/2001

%                                                 Reserved on: 10th November, 2010
                                                  Decided on: 13th January, 2011

Ashwani Kumar                                                     ..... Appellant
                                    Through:    Ms. Anita Abraham, Advocate along with
                                               the Appellant in person.

                           versus

State                                                            ..... Respondent
                                    Through:   Mr. Pawan K. Bahl, APP


Coram:

HON'BLE MS. JUSTICE MUKTA GUPTA


1. Whether the Reporters of local papers may
   be allowed to see the judgment?                               Not necessary

2. To be referred to Reporter or not?                            Yes

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

MUKTA GUPTA, J.

1. Briefly, the prosecution case is that on the night of 19th and 20th

August, 1992 at around 2:45 a.m., the accused along with the co-accused

Shamshad Ali and Bhushan, robbed one Ram Kishore of his purse containing

`1500/- by using a knife. At the time of the incident, SI Karam Chand and

Constable Rajinder Singh were patrolling the area and when they reached near the

Flag Staff Road, they heard a noise of "chor-chor" and they saw two persons

running. On chasing, the two persons were apprehended, one being the Appellant

and the other Bhushan Kumar. In the meanwhile, the Complainant also reached

there and on search of the Appellant, a black leather purse containing `1500/- in

the denomination of `50/- each and a visiting card of Bashiruddin, were recovered

which were duly identified by the Complainant. As per the Complainant, he along

with his nephew Ram Rattan had boarded a TSR at ISBT for going to Zakir Nagar,

however, the driver was asking `60/- but he told the driver that he only had `30/-.

The driver agreed to take them for `30/- on the condition that he will take other

passengers also in the scooter. After driving around, the above named two persons

also boarded the scooter, however, when the scooter reached North End Road, the

driver took out a knife and threatened Ram Kishore and his nephew not to raise

any alarm and the Appellant Ashwani Kumar searched the pocket of Ram Kishore

and the accused Bhushan searched the pocket of Ram Lakhan. The driver ran away

from the spot. On a trial being conducted, the Appellant was convicted for an

offence under Section 392 IPC and sentenced for a period of RI of one year and a

fine of `5,000/-. The co-accused Bhushan was also convicted for an offence under

Section 392 IPC, however, since he had undergone a period of five years during

the pendency of trial, he was sentenced to imprisonment for the period already

undergone and a fine of `1,000/-; and co-accused Shamshad Ali who was the

scooter driver was convicted for an offence under Section 398 IPC as he was

armed with knife and had used the same to rob the Complainant and was sentenced

to Rigorous Imprisonment for a period of seven years.

2. Learned counsel for the Appellant contends that the recovery from the

Appellant has not been proved as neither the black purse was sealed nor was the

number of the currency notes noted. There are discrepancies in the statement of the

PW2 Ram Kishore the Complainant and that of the I.O as to the place where the

statement of the Complainant was recorded. The investigation of the case is mala

fide and according to the defence, the Appellant was found gambling and thus the

money was planted on him and he has been falsely implicated in the present case.

3. The Appellant has examined his wife as DW1 in the present case, who

has stated that on the day of the incident two police officials, who were in uniform,

came to her house accompanied by her husband. The said police officials

demanded `2,000/- from her which she was not having and thus, she gave a pair of

gold ear rings to them and thereafter they left the house along with her husband on

the pretext that they were to obtain his signatures in the police station. She also

stated that her husband has been falsely implicated in the present case. PW4, owner

of the TSR was examined who was not even aware as to who was driving the

scooter on the day of the incident. It is stated that the testimony of the Complainant

cannot be relied upon, as neither his nephew, travelling with him, nor Constable

Rajinder Singh was examined and thus, the Appellant deserves to be acquitted. In

the alternative, it is stated that the Appellant was 20 years of age on the date of the

incident and has a mentally ill mother and thus he should be let out on probation.

4. Learned APP on the other hand contends that the story of false

implication of the Appellant is clearly an afterthought as no suggestion in this

regard has been given to the prosecution witnesses in their cross examination nor

has such a defence been taken by the Appellant in the statement under Section 313

CrPC. In fact the cross examination of PW2 on behalf of the Appellant itself

suggests that the Appellant was present at some distance where the Complainant

was dropped and the accused persons were arrested in his presence. Even if there is

a minor discrepancy as to the place where the statement of the Complainant was

recorded, the same does not discredit the entire prosecution case. There is no

material inconsistency in the testimony of the prosecution witnesses and nothing

adverse has been elicited from the Complainant in his cross examination.

5. It is contended by the learned APP that Sub Inspector Karam Chand,

who heard the noise of "chor-chor" and apprehended the Appellant on the spot, has

duly corroborated the testimony of PW2 and he has also testified about the seizure

of the currency notes vide memo Ex. PW2/B. The defence taken by the Appellant

by producing his wife as DW1 has not been put to the Investigating Officer in his

cross-examination and thus, the same cannot be relied upon in the absence of an

explanation sought from the witness.

6. I have heard learned counsel for the parties. This is a case where the

Appellant was apprehended on the spot and in this regard, the statement of PW2 is

trustworthy. The money which was robbed from the Complainant in the purse

along with the visiting card was recovered on the spot. This version of the

Complainant is duly corroborated by the testimony of PW6, Sub Inspector Karam

Chand who had reached the spot on hearing the noise. As regards the place of

recording of the statement of the PW2, ASI Budh Dev has been examined as PW1.

He stated that on receiving ruqqa, he recorded a formal FIR, the copy of which he

sent to the I.O. who was present at the spot. This witness has not been cross

examined. Also, no suggestion has been given to the I.O. on behalf of the

Appellant with regard to the false implication of the Appellant and thus, the

defence is clearly an afterthought. Moreover, no contemporaneous record of the

same has been produced. No suggestion has been put to the I.O. in the cross

examination as regards the allegation that the Appellant was apprehended while

gambling. The cross examinations of PW2 and PW6 on behalf of the Appellant

suggests that the prosecution version of the incident is correct.

7. In view of the evidence on record, I find no infirmity in the impugned

judgment convicting the Appellant for offence punishable under Section 392 IPC.

The Appellant has been sentenced for Rigorous Imprisonment for a period of one

year and a fine of `5,000/-. The fine amount has already been paid. Out of the

sentence awarded to the Appellant, he has already undergone almost half the

sentence. The incident is of the year 1992. The Appellant has already faced a

protracted trial and appeal. Thus, the sentence is reduced to the period already

undergone by him. The appeal is accordingly disposed of. The bail bond and the

surety bond are discharged.

(MUKTA GUPTA) JUDGE

JANUARY 13, 2010 'raj'