Dharmbir @ Dharma vs State
2011 Latest Caselaw 5037 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


+       CRL.A. 119/2010 & Crl.M.(Bail) 1451/2010

%                                             Reserved on: 20th September, 2011

                                              Decided on: 13th October, 2011


        DHARMBIR @ DHARMA                                     ..... Appellant
                    Through                Mr. Vimal Puggal, Adv.

                        versus

        STATE                                                 ..... Respondent
                                 Through   Mr. Mukesh Gupta, APP for State.

                                           AND

+       CRL.A. 145/2010

        SHASHI                                                ..... Appellant
                                 Through   Mr. Vimal Puggal, Adv.

                        versus

        STATE                                                 ..... Respondent
                                 Through   Mr. Mukesh Gupta, APP for 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?



Crl.A.Nos. 119 & 145/2010                                                   Page 1 of 7
 MUKTA GUPTA, J.

1. By these appeals the Appellants lay a challenge to the judgment of

conviction and order on sentence dated 21st and 22nd December, 2009

respectively passed by the Learned Additional Sessions Judge.

2. Appellant Dharambir has been convicted and sentenced to Rigorous

Imprisonment for 5 years and fine of Rs. 2,000/- for the offence punishable

under Section 392 IPC in default of payment of fine to further undergo

Rigorous Imprisonment for 1 year; Rigorous Imprisonment for 2 years and

fine of Rs. 1,000/- for the offence punishable under Section 324 IPC in default

of payment of fine to further undergo Rigorous Imprisonment for 6 months;

Rigorous Imprisonment for 1 month and fine of Rs. 500/- for the offence

punishable under Section 341 IPC and in default of payment of fine to further

undergo Simple Imprisonment for 1 month.

3. Appellant Shashi has been convicted and sentenced to Rigorous

Imprisonment for 7 years and fine of Rs. 5,000/- for the offences punishable

under Section 392/397 IPC and in default of payment of fine to further

undergo Rigorous Imprisonment for 1 year; Rigorous Imprisonment for 2

years and fine of Rs. 1,000/- for offence punishable under Section 324 IPC, in

default of payment of fine to further undergo Rigorous Imprisonment for 6

months and Rigorous Imprisonment for 1 month and fine of Rs. 500/- for the

offence punishable under Section 341 IPC, in default of payment of fine to

further undergo Simple Imprisonment for 1 month.

4. Learned counsel for the Appellant contends that the alleged incident is

of 11th May, 2007. After the incident DD No. 34A was received with regard

to the quarrel at Dhaba. Allegedly there are two eye-witnesses of the incident.

PW1 Mohd. Shajid is the maker of FIR who neither in his FIR nor in his

statement before the Court has leveled any allegations qua robbery of ATM

Card, Rs. 10,000/- and some documents. Even PW2 Abdul Wahid in the

MLC has not alleged anything in regard to the robbery. Thus his statement

under Section 161 Cr.P.C. and before the Court is a material improvement. In

cross-examination the Appellants have effectively elicited that PW2 was

inimical to the Appellant Shashi. Thus, the Appellants have been falsely

implicated in view of the enmity. Further, it is not proved that which weapon

was used by Appellant Shashi nor there was recovery of any weapon of

offence. In the absence of any such statement or recovery, it cannot be proved

that a deadly weapon was used. Therefore, the ingredients of Section 397 IPC

are not fulfilled. As regards the identity, PW1 has turned hostile. He has not

supported the prosecution case qua identity. He has stated that it was dark and

he could not identify the assailants. Even PW2 has not been able to identify

the other two alleged accused and thus on un-corroborated testimony of PW2

the Appellants have been convicted. Further, no investigation has been

carried out qua robbery of ATM Card, Rs. 10,000/- and the documents. The

nature of injury on the person of injured in the MLC has been opined to be

simple. No TIP of the Appellants conducted. In fact after the arrest the

Appellants were shown to the complainant in the Police Station which was

wholly unwarranted and illegal. In view of the material contradictions and

improvements in the testimony of the witnesses on record the Appellants are

entitled to be acquitted. In the absence of recovery of any deadly weapon and

use thereof it is prayed that since no offence under Section 392/397 IPC is

made out the Appellants be released on the period already undergone which is

around 2 years in the case of Appellant Dharambir and 1 years in the case of

Appellant Shashi.

5. Learned APP on the other hand contends that a perusal of the testimony

of PW2 Abdul Wahid shows that the Appellant Shashi used a sharp weapon

while committing robbery. This version of PW1 and PW2 is corroborated by

the MLC, though PW1 has turned hostile as far as the identity is concerned.

However, he has supported the entire prosecution case. As per the MLC the

nature of injury was found to be simple caused by sharp object and thus, there

is no infirmity in the judgment convicting the Appellants for offences under

Section 341/324 IPC.

6. I have heard learned counsel for the parties. PW1 Mohd. Sajjad has

stated that he was working as a labourer and was living with his brother. His

brother was running a 'dhabba' on which he used to work. On 11th May, 2007

at about 8.30-9.30 PM there was no electricity in the Gali. At that time, four

people came at other 'dhaba' when he was standing there. One of those

persons splashed water on his face and another started slapping him. PW2

Abdul Wahid intervened and tried to save him and a quarrel took place.

Abdul Wahid sustained injuries on his left hand and he took him to the

hospital with the help of the other people. PW2 Abdul Wahid has stated that

he was doing the business of selling school bags etc. in Sadar Bazar and was

having his godown in Amar Puri. On 11th May, 2007 while he was standing

outside his godown he saw that four persons were beating one person Mohd.

Sajjad. When he went to save him, all the four accused persons pounced on

him and started beating him and one of the accused gave blow on his left

thumb base with some sharp object. Accused Shashi was earlier known to him

who gave blow on his left thumb with some sharp object. He further deposed

that one of the accused took out Rs. 10,000/- from his pocket and his purse

containing ATM Card, some slips and some money and then escaped from the

spot.

7. A perusal of testimony of PW1 and PW2 shows that the two were

restrained and an assault was committed on them by the assailants on the

fateful day. As regards the identity of the accused persons, PW1 is

completely silent. PW2 has identified the Appellants. In his statement before

the Police recorded immediately after the incident he had given the names of

the Appellants. Enmity is a double edged weapon. If it can be used for

falsely implicating, it is also the motive to commit crime. PW2 has stated that

some sharp object weapon hit them. The MLC shows the injury on PW2 to be

simple and sharp in nature. In view of the evidence on record, I am of the

opinion that the prosecution has proved its case beyond reasonable doubt for

offences punishable under Section 341/324/34 IPC against the two Appellants

before this Court.

8. As regards offences punishable under Section 392/397 IPC, it may be

noted that undoubtedly PW1 neither in the FIR nor in his statement before the

Court has alleged robbery of the articles. The PW1 and PW2 were assaulted

together. In the absence of corroboration of the testimony of PW2 of robbery

from PW1 and from any other independent sources, I do not find it

appropriate to simplicitor rely on the testimony of PW 2. Moreso, because

admittedly there is enmity between PW2 and Appellant Shashi. Thus,

exaggeration to implicate Shashi in a more heinous offences cannot be ruled

out. Further the prosecution has neither recovered the sharp weapon nor

proved the same. Thus, there is no evidence on record to show that the

weapon used for committing assault on the PW2 was a deadly weapon. In the

absence of corroboration of testimony of PW2 and in the absence of proof of

use of a deadly weapon, in my opinion the offences under Section 392/397

IPC have not been proved beyond reasonable doubt by the prosecution. The

Appellants are thus liable to be acquitted for these offences.

9. In view of the aforementioned discussion, the conviction of the

Appellants is converted to one for offences under Section 341/ 324/34 IPC.

The sentence of Appellant Dharambir alias Dharma was never suspended and

he has been in custody for nearly two years whereas Appellant Shashi has

undergone a period of nearly 1 year including remissions.

10. In view of the facts and circumstances of the case, the sentence of the

Appellants is modified to the period already undergone. Appeals and the

application are accordingly disposed of.

(MUKTA GUPTA) JUDGE OCTOBER 13, 2011 'ga'