Avdhesh vs State (Through Nct Of Delhi)
2011 Latest Caselaw 5043 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Judgment reserved on: July 27, 2011
                                  Judgment delivered on: October 13, 2011

+      CRL.A. 796/2008

       VEERPAL @ VEERU                        ....APPELLANT
               Through: Mr. Tarun Kumar, Advocate.

                              Versus

       THE STATE (NCT OF DELHI)                ....RESPONDENT
               Through: Ms. Fizani Husain, APP.

                                      WITH

       CRL.A. 178/2008

       AVDHESH                                                ....APPELLANT
                      Through:        Mr. Kunal Malhotra, Advocate.

                              Versus

       STATE (THROUGH NCT OF DELHI)              ....RESPONDENT
                Through: Ms. Fizani Husain, 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. Above noted appeals are directed against the impugned

judgment of conviction dated 30th January, 2008 in Sessions Case

No.84/2004 FIR No.352/2000 P.S. Sriniwas Puri and consequent order

on sentence dated 7th February, 2008 whereby the appellants Veerpal

and Avdhesh have been convicted and sentenced under Section

392/397/34 IPC.

2. Briefly stated, case of the prosecution is that on 24th August,

2000 complainant Madhav Krishan (PW-4) was dropped by his friend

Shahid Khan at bus stop Sriniwas Puri. The complainant was waiting

for the bus for Rohini. While he was waiting for the bus, the appellants

Veerpal and Avdhesh came at bus stop Sriniwas Puri and robbed the

complainant of his purse containing `221/-, besides some visiting cards

and other documents, on the point of knife. The knife was shown to the

complainant by the appellant Veerpal. After handing over his purse to

the appellant Avdhesh, complainant Madhav Krishan mustered courage

and caught hold of the appellant Veerpal and raised alarm. On hearing

the alarm, PW6 Sukhjeet Singh came to the spot from the nearby taxi

stand and he apprehended the appellant Avdhesh. Thereafter,

complainant and PW Sukhjeet Singh took both the appellants to the

police station and they handed over the knife as well as robbed purse

containing money to the police. Statement of the complainant was

recorded by the police, on the basis of which formal FIR was registered.

After the necessary formalities of investigation, the appellants were

challaned and sent for trial. Learned Additional Sessions Judge charged

the appellants for the offences punishable under Section 392 read with

Section 34 IPC as well as Section 397 IPC. Both the appellants pleaded

innocence and claimed to be tried.

3. In order to bring home the guilt of the appellants, prosecution has

examined 7 witnesses. Material witnesses, however, are PW-4 Madhav

Krishan (complainant) and PW-6 Sukhjeet Singh.

4. PW-4 Madhav Krishan complainant has testified that on the night

of 24th August, 2000, he had a dinner at the house of his friend Shahid

Khan at Nizamuddin. After the dinner, Shahid Khan dropped him at bus

stop Sriniwas Puri at around 10.30 p.m. While he was waiting for the

bus, the appellants came at the bus stop and initiated conversation

with him. The appellant Avdhesh suddenly caught hold of him and the

appellant Veerpal took out a knife and asked him to hand over his

belongings. On this, he handed over his purse containing `221/-, 8

visiting cards and some other documents to the appellant Avdhesh.

After handing over the purse, he mustered courage and caught hold of

the hand of the appellant Veerpal in which the appellant Veerpal was

holding the knife and raised alarm. On hearing his alarm, one sardarji

with a stick in his hand came at the spot and with his help, the

appellants were overpowered. In the process, the knife fell down from

the hand of the appellant Veerpal which was picked up by the

complainant. Complainant further stated that thereafter he along with

said Sardarji took the appellant to the police station where his

complaint statement Ex.PW-4/A was recorded. He has further stated

that he handed over the knife to the police. Police prepared the sketch

of knife Ex.PW-4/B, converted it into a sealed pack and seized it vide

memo Ex.PW-4/C. The stolen purse was also seized by the police

Ex.PW-4/D. Both the appellants were arrested vide arrest memos

Exhibits PW-4/E and PW-4/G. The complainant identified the knife used

by the appellant Veerpal as Ex.P1. He also identified his purse

containing `221/-, 8 visiting cards, one calendar and two small piece of

papers collectively exhibited as Ex.P-2.

5. PW-6 Sukhjeet Singh has supported the version of the

complainant. He testified that on 24th August, 2000, he was present at

Amritsar Taxi Stand at around 10.30 p.m. when he heard the noise of

`bachao bachao' coming from the side of bus stop Sriniwas Puri. He

saw that a young person had caught hold of another person who was

having a knife. On this, he picked a stick from the taxi stand and

rushed to the bus stop. The person who was holding the appellant

Veerpal told him that his purse was with the other appellant, thus, he

over powered the other person. Thereafter, both of them were taken

to the police station. Witness has identified the appellant Avdhesh as

the person who was caught by him.

6. PW-2 Shahid Khan is the friend of the complainant who has

corroborated the version of the complainant that complainant had

taken dinner with him on 24th August, 2000 and thereafter, he dropped

the complainant Madhav Krishan at bus stop ring road Sriniwas Puri.

7. The appellants, when examined under Section 313 Cr.P.C. denied

the prosecution story and claimed innocence. Appellant Veerpal Singh

took a vague defence that he has been falsely implicated in this case.

On the other hand, appellant Avdhesh took the following defence:-

"On that day there was Sai Sandhya in Bhajan Pura, my father is Pandit. I had gone there along with my father. After the Poojan was over at about 8.30 p.m., Sai Sandhya started and I left for my house. The person in whose house the Sai Sandhya was organized came to the bus stop with me. I boarded the bus and thereafter he left. At about 10.15 or 10.30 pm I reached S.N.Puri bus stand. When I alighted from the bus I noticed that 2-3 persons standing there and talking with each other. Veerpal was also there. I inquired from them as to what happened. On this complainant asked me to leave the spot. Thereafter I went home. I informed the maternal grand mother of Veerpal and informed that Veerpal was taling with some person at S.N. Puri bus stop. Thereafter I went home and slept. About one or one and a half hour maternal grand mother of Veerpal came to my house and asked me to accompany her. I accompanied her to the police station where I was falsely implicated in this case."

8. The appellant Avdhesh has examined one Pashupati Nath Jha as

DW-1 who stated that on 24th August, 2000, he had organized `Maha

MritunjayJaap' at his residence from 10.00 a.m. to 5.00 p.m.

Thereafter, Havan was performed which was over at around 8.15 p.m.

The appellant attended said function and after taking dinner, he along

with 4-5 other friends boarded a bus from Bhajan Pura for ISBT,

Kashmere Gate. He also stated that from Bhajan Pura, appellant

Avdhesh had to change a bus from ISBT to reach Lajpat Nagar.

9. Learned Additional Sessions Judge, relying upon the testimony of

the complainant and PW-6 Sukhjeet Singh, found the appellants guilty

and he convicted the appellant Veerpal for the offence under Section

392/397/34 IPC and also convicted the appellant Avdhesh for the

offence under Section 392/34 IPC. Both the appellants were thereafter

sentenced vide impugned order on sentence dated 7th February, 2008.

10. Learned Sh. Kunal Malhotra, Advocate appearing for the

appellant Avdhesh and learned Sh. Tarun Kumar, Advocate appearing

for the appellant Veerpal have argued on similar lines. They have

assailed the impugned judgment of conviction on the ground that it is

based upon incorrect appreciation of facts. It is submitted that the

learned Additional Sessions Judge has failed to appreciate that the

prosecution story is too unnatural to be believed. It is contended that

this is a case of improper investigation. Though, as per the version of

PW6 Sukhjeet Singh, 2/3 persons including Rakesh Kumar, Bakshish

Singh and one helper boy also arrived at the spot of occurrence, yet

the prosecution has neither cited nor examined those witnesses.

Learned counsels argued that Sukhjeet Singh is a stock witness of the

police, as such, no reliance can be placed upon his testimony. It is

further argued that if the prosecution story is to be believed, appellant

Avdhesh did not try to get the appellant Veerpal released from the

complainant nor did he try to escape, which conduct is highly unnatural

to be believed. Learned counsels for the appellants have therefore

contended that it is not safe to rely upon the testimony of the

complainant and Sukhjeet Singh to hold the appellants guilty. Thus, it

is urged that the appeals be accepted.

11. I do not find any merit in the submissions made on behalf of the

appellants. PW4 Madhav Krishan, as per his testimony, is an engineer.

There is nothing on the record to show any connection between him

and the police officials posted at P.S. Sriniwas Puri at the relevant time.

There is nothing on record to suggest that he had any motive or

grudge against either of the appellants, which could have motivated

him to falsely implicate them. PW4 Madhav Krishan has fully supported

the case of the prosecution and his version stands corroborated by

PW6 Sukhjeet Singh, who was present at a nearby Taxi Stand and who

helped the complainant to catch hold of the appellants. He has also

withstood the test of cross examination. Thus, I find no reason to

suspect the veracity of the testimony of the above witnesses. As

regards the failure of the prosecution to cite or examine the

independent eye witnesses Rakesh Kumar and Bakshish Singh, PW6

Sukhjeet Singh has stated in his cross-examination that he did not tell

the police about the arrival of these persons at the spot of occurrence.

When the Investigating Officer was not told about their presence at the

spot immediately after the occurrence, he was not expected to name

them as witnesses in the charge sheet. Thus, under the

circumstances, absence of any other independent witness except

Sukhjeet Singh is by no means fatal to the case of the prosecution.

12. Coming to the defence taken by the appellants. Appellant

Avdhesh has taken a defence that on the fateful night, he was

returning home after attending a „Bhajan Sandhya'. He alighted at the

bus stop, Sriniwas Puri at about 10.15--10.30 p.m. There, he noticed

2/3 persons talking to Veerpal. He enquired from them as to what had

happened and on this, complainant asked him to leave the spot.

Thereafter, he went home. Appellant Avdhesh further claimed that he

informed grand-mother of Veerpal that he saw Veerpal talking with

some persons at Sriniwas Puri bus stop. One and a half hours later, on

the request of grand-mother of Veerpal, he accompanied her to the

police station where he was falsely implicated.

13. Aforesaid defence of the appellant Avdhesh does not inspire

confidence for the reason that had it been true, Veerpal, in his

statement under Section 313 CrPC, would have taken a similar

defence. Appellant Veerpal however has only stated that he has been

falsely implicated in this case. Further, had the defence of Avdhesh

been true, he would have examined grand-mother of Veerpal to

substantiate his claim. Since he has failed to do so, I find no merit in

the defence.

14. Next submission on behalf of the appellants is that the story of

the prosecution put forth by the complainant Madhav Krishan and PW6

Sukhjeet Singh is not reliable for the reason that version of these

witnesses suffers from various contradictions. Learned counsels have

pointed out that according to PW4 Madhav Krishan, the taxi stand was

at a distance of 10 to 15 steps from the bus stop where the occurrence

took place whereas PW6 Sukhjeet Singh has stated that the taxi stand

was at a distance of 5 to 6 steps from the bus stop. Learned counsels

for the appellants further pointed out that as per PW4 (Complainant),

the distance of police station from the spot of occurrence was about

300-400 meters whereas according to PW6, the distance was about

250-350 meters. In my considered view, the aforesaid contradictions

pointed out by learned counsels for the appellants are too minor to

suspect the credibility of the witnesses. Otherwise also, the distance

has been given by the witnesses as per their own assessment on

approximate basis. Therefore, minor variation is bound to occur.

Learned counsels have further submitted that PW4, in his testimony,

stated that he and Sukhjeet Singh took the appellants to the police

station in a TSR whereas, according to PW6 Sukhjeet Singh, the

appellants were taken to the police station on foot and in view of this

contradiction, learned counsels have urged that the testimony of the

prosecution witnesses be rejected as unreliable. Even the above

contradiction is not so material so as to effect the credibility of the

complainant and PW6 Sukhjeet Singh, who are independent public

persons having no grudge against or reason to falsely implicate either

of the appellants. The testimony of the witnesses is consistent on all

material aspects of the case. Therefore, I am of the view that learned

Trial Judge has rightly relied upon the testimony of the complainant

and PW6 Sukhjeet Singh to return the finding of conviction.

15. Another submission made on behalf of the appellants is that the

conduct attributed to the appellant Avdhesh is highly unnatural to be

believed. Expanding on the argument, learned counsel for the

appellant Avdhesh submitted that if the prosecution story is to be

believed, appellant Avdhesh neither tried to get his co-accused Veerpal

released from the grip of the complainant nor he tried to run away on

seeing Sukhjeet Singh coming towards the spot of occurrence. It is

argued that aforesaid conduct is highly unnatural to be believed.

Therefore, it is not safe to believe the prosecution story put forth by

the complainant Madhav Krishan and PW6 Sukhjeet Singh.

16. I do not find any merit in this contention. It is well known that

different people react differently to similar situation. From the

sequence of events narrated by PW4 Madhav Krishan, it is apparent

that entire occurrence took place within a few minutes. If the appellant

Avdhesh did not react to the complainant apprehending Veerpal and

raising the alarm „bachao bachao', this by itself cannot be taken as a

reason to suspect the credibility of the complainant and PW6 Sukhjeet

Singh, particularly when they have withstood the test of cross-

examination and they have no axe to grind with either of the

appellants.

17. Learned counsel for the appellant Veerpal has submitted that

sentence of 07 years RI for offence under Section 397 IPC awarded to

the appellant Veerpal is too harsh. He has urged for a lenient view on

the ground that the appellant is having an aged mother and two minor

children to cater to. He is not a previous convict and he deserves at

least one chance to mend his ways and become a useful member of

the society.

18. On behalf of the appellant Avdhesh, it is contended that he was a

young man of 19 years at the time of commission of offence. He is not

a previous convict and during the pendency of this case, he has

completed his Graduation. It is contended that he deserves at least

one chance for rehabilitation. Thus, learned counsel for the appellant

Avdhesh has pressed for his release.

19. I have considered the submissions made on behalf of the

appellants. Taking into account the fact that the appellants have

committed a grave offence of robbing a person on the point of knife, I

do not find any reason to interfere with the sentence awarded by the

learned Additional Sessions Judge.

20. In view of the discussions above, I do not find any merit in the

appeals. Appeals are accordingly dismissed.

(AJIT BHARIHOKE) JUDGE

OCTOBER 13, 2011 Ks/akb