Rajesh Kumar vs State
2012 Latest Caselaw 1898 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                  Reserved on: 16th February, 2012
                                                   Decided on: 20th March, 2012

                             CRL. APPEAL NO. 403/1999

SATISH KUMAR                                                    ..... Petitioner
                                  Through:    Ms. Anita Abraham, Amicus Curiae
                        versus

STATE                                                         ..... Respondents

                                  Through:    Mr. Manoj Ohri, APP for the State
                                              with SI Arun Kumar, PS Timarpur.

                                             AND

                  CRL. APPEAL NO. 506/1999

RAJESH KUMAR                                                    ..... Petitioner
                                  Through:    Mr. P.K. Chaudhary, Advocate

                        versus

STATE                                                         ..... Respondents
                                  Through:    Mr. Manoj Ohri, APP for the State
                                              with SI Arun Kumar, PS Timarpur.
Coram:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. The present appeals are directed against the judgment dated 1st June 1999 and order on sentence dated 4th June, 1999 convicting the Appellants for offences punishable under Sections 397/394/34 IPC and sentencing them to undergo Rigorous Imprisonment for a period of 7 years and pay a fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for 15 days respectively.

2. Briefly the prosecution case is that on 27th April, 1997, DD NO. 9A was received at PS Timar Pur which was marked to ASI Jeet Singh who alongwith Constable Pal Singh and Constable Bharat Bhushan reached near Wazirabad Pul. On reaching at the spot, they met Constable Ram Avtar and Constable Narender, who were present there alongwith Complainant Ram Bihari Thakur and one Subhash Chand. Constable Ram Avtar produced one gararidar knife and one HMT Kohinoor watch alongwith accused Satish and stated that the knife and the watch were recovered from accused Satish Kumar. Constable Narender produced one identity card of DD Industries Limited, B-30, G T Karnal Road Industrial Area alongwith some papers and Rs.95/-. Accused Rajesh and one chhuri alongwith other articles recovered were handed over and it was stated that these articles were recovered from accused Rajesh Kumar. Statement of Ram Bihari Thakur was recorded on the basis of which it transpired that he was robbed by accused Satish, Rajesh Kumar alongwith Aas Mohd. on the point of knife. In the meantime, one boy namely Subhash Chand passed through that way and he was also robbed by these three persons on the point of knife. He stated that accused, after robbing them, asked them to leave the place quietly and after going to a short distance, they raised alarm. All the three boys ran towards Shiv Mandir. Satish and Rajesh were apprehended by cattle grazers and were beaten by them while accused Aas Mohd. managed to escape. Constable Ram Avtar and Constable Narender in the meantime reached at the spot and apprehended the two boys and cattle grazers left the place. On the basis of the said statement of Ram Bihari Thakur, FIR under Sections 392/394/34 IPC and 25/54/59 Arms Act was registered against the accused persons. During investigations, Aas Mohd. was also arrested. After completion of

investigation, charge-sheet was filed. After recording the statement of prosecution witnesses and statement of accused persons under Section 313 Cr.P.C., learned Additional Sessions Judge convicted and sentenced the accused persons as mentioned above. The judgment and order on sentence passed by the learned Addl. Sessions Judge are impugned in the present appeals.

3. Learned counsels for the Appellants contend that the impugned judgment is bad in law as well as on facts. Learned Additional Sessions Judge has ignored the factual matrix of the case and passed the impugned judgment based on conjectures and surmises. The entire prosecution story is full of contradictions and lapses. The investigation is tainted and biased and thus conviction of the Appellants is unsustainable. The contemporaneous document i.e, DD NO. 9A records that at 4.38 p.m. only one person was apprehended. Different timings have been given by the witnesses, Constable Anju at PCR has not been examined by the prosecution. There are contradictions in the statement of Ram Bihari Thakur and the Investigating Officer in regard to the money recovered from accused Rajesh. There is no injury on the person of the victims so as to make out a case under Section 397 IPC. Ram Bihari Thakur, the Complainant has stated that at the time of incident, 50-60 persons were present at the spot but none has been made/examined as a prosecution witness. Learned counsel for the appellants further states that the appellants have already undergone substantial period awarded to them i.e, appellant Satish Kumar has already undergone imprisonment for 5 years and appellant Rajesh Kumar has undergone

imprisonment for 4 years, thus, it is prayed that they be released on the period already undergone.

4. Per contra, learned APP for the State contends that there are no contradictions in the prosecution story as contended by the learned counsel for the appellants. The testimonies of PW-2, PW-3 and PW-6 fully support the prosecution version. It is further stated that the recovery of knives from the appellants clearly makes out a case under Sections 394/397/34 IPC. The recovery of knives is neither disputed nor has any suggestion been put to any witness in this regard. Thus, the present appeals have no merit and are liable to be dismissed.

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

6. PW2, the Complainant Ram Bihari Thakur in his testimony has stated that on 27th April, 1997 he was going on his bicycle from the side of Jharoda on ganda nala pushta. Appellant Satish gave him a signal to stop. He stopped his cycle and Satish pushed the cycle from the handle due to which he fell down on the ground. Thereafter, accused Aas Mohd. took out a knife and put the same on his abdomen. Accused Satish took out graridar knife which he opened with his teeth and tried to attack him with the knife. The complainant got some scratches on his hand and then the Appellant Satish put the knife on his chest. He asked him to hand over whatever he had in his possession. This witness has further stated that the third accused also had a knife in his possession. The accused Rajesh removed his purse from his back pocket of the pant. This witness deposed that his purse contained Rs.55 and certain documents and his I.Card. Accused Satish then asked him to run away from that place. In the meantime, another person came on foot. All

the accused person also looted him who raised alarm and he also raised alarm. Many persons from the area who were grazing their cattles and rehriwalas came there. One accused ran away from the spot while accused Satish and Rajesh were apprehended by them. In the meantime, two Constables of police came there. Both the accused persons were handed over to them. The local people who had apprehended the accused persons left the spot. Knives were recovered from both the accused persons by the police. It is stated that the police recovered his I.D. Card and other documents but the currency notes worth Rs.55 were not recovered. This witness has also stated that accused Aas Mohd. was also arrested by the police and he identified him. This witness in his cross examination has deposed that he did not raise any alarm as he had become frightened when knives were put on his abdomen and his chest by the two accused person.

7. PW3 Const. Narender Singh has deposed that on the date of incident he was posted at police post Burari of PS Timarpur. He was going from police post Burari to police station on a motorcycle. Near Wazirabad pul Cont. Ram Avtar at about 4:00 p.m. met him and they heard a noise of „pakro pakro‟ from the roadside. Thereafter, they rushed towards that direction. Some villagers were grazing their buffaloes. They had retained one person. Thereafter, he caught him. He was holding an open knife in his right hand. His name was revealed as Rajesh. This witness has stated that the second accused person was apprehended by Cont. Ram Avtar and the third accused had run away from the spot. PCR reached at the spot. Further investigation was done by SI Jeet Singh. He has stated that as soon as he apprehended accused Rajesh, he had taken his search and Rs.95 along with

some papers were recovered from the right side pocket of the accused. Accused Rajesh along with the knife, Rs.95 and recovered paper was handed over to ASI Jeet Singh. Similarly, PW6 Const. Ram Avtar has deposed on similar lines in regard to the incident. He has stated that when they heard the noise of "pakro pakro" from the side of ganda nala they rushed towards ganda nala and found two persons pointing towards shiv mandir and told that the boys after robbing them ran towards shiv mandir. This witness has deposed that two accused persons were apprehended by the „gwalas‟. He apprehended accused Satish and Const. Narender apprehended accused Rajesh. He conducted the search of accused Satish and a graridar knife was recovered from the socks of right leg and from the right pocket of pant Kohinoor wrist watch was recovered. Thereafter ASI Jeet also reached there and the knife and watch were handed over to him. This witness in his cross examination has deposed that the villagers had left the spot before reaching of ASI Jeet Singh.

8. PW7 ASI Jeet Singh the investigating officer has deposed that on 27 th April, 1997 he was posted at PS Timarpur. On that day, on receipt of DD 9A he went to Waziarbad Ganda Nala pul along with Constables Pal Singh and Bharat Bhushan. On reaching at the spot, he met Const. Ram Avtar and Const. Narender. Const. Ram Avtar produced one person and disclosed his name as Satish. He also produced one knife and one HMT Kohinoor watch. It is stated that the knife was a Gararidar knife. The witness has stated that the knife and the HMT Kohinoor watch were separately sealed in a pulanda. Thereafter, Const. Narender produced accused Rajesh and a churi type knife, Rs.95 and one I.D. Card of D.D. Industries in the name of Ram Bihari

Thakur and some other paper. The said knife and other recovered articles were sealed and the statement of Ram Bihari Thakur was recorded. Thereafter, he along with Complainant Ram Bihari Thakur, Subhash, both the accused persons and the case property and Constables went to the police station. Disclosure statements of the accused persons were recorded. Complainant Ram Bihari Thakur was got medically examined. Thereafter search for third accused person Aas Mohd. was made who was arrested from his house on the pointing out of the accused Rajesh and Satish. This witness in his cross examination has specifically stated that villagers were not present at the spot when he reached. He had enquired from the Constables who were present at the spot as to whether any villager met them or not. They informed him that they had met some gawalas and had asked them to wait over there but they left the spot without disclosing their names and addresses. This witness in his cross-examination had also stated that he had gone through the contents of DD No. 9A and the same was in regard to the apprehension of one pick pocket by one lady Constable Anju. When he reached the spot he did not find lady Constable Anju with any pick pocket. He had met two Constables who had apprehended two boys and two complainants were also present.

9. From a perusal of the testimony of the witness, it is clear that on the date of incident the accused persons along with the other co-accused persons robbed the complainant and one other person who could not be examined during trial as he could not be traced. The non-examination of the other person, who was robbed, will not vitiate the prosecution case. The Complainant has stated the facts as they unfolded and has withstood a

lengthy cross examination but nothing material could be elicited from his testimony. The recovery of the I.D. Card of the Complainant and other documents is clearly proved by the testimony of PW3 and PW6. PW3 and PW6 have stated that the accused persons were apprehended by the villager/gwalas who left the spot after the accused persons were handed over to them. The non-examination of the villagers will not discredit the otherwise clear and cogent testimony of the Complainant and other witnesses. The testimony of PW3 is corroborated by the testimony of PW6 and PW7 as all the three consistently deposed that there was no Constable Anju present at the spot when they reached the place of incident. Therefore, the contention of learned counsel for the Appellants that the lady constable is not examined as a witness holds no ground. It is nowhere stated that the PCR reached at the spot or the Appellants were apprehended by them. PW3 and PW6 who were on patrolling duty reached near the spot and on hearing the noise they reached at the spot. The Appellants were already apprehended by the cattle grazers who handed over the Appellants to the police officials and left the spot. I find no force in the contention of the learned counsel for the Appellants that there is a discrepancy in the money recovered from the accused persons as it is clear from the testimony of the witnesses that one another person was also robbed on the same day and the money recovered could have been partly of the second person who was robbed. All the prosecution witnesses have been sufficiently cross examined by the defence counsel but nothing could be elicited to dent the prosecution case. The minor discrepancies in the testimony of the witnesses are bound to occur as the witnesses cannot be expected to give a parrot like evidence. Minor

variations in the initial statement of the Complainant cannot be termed as material improvement to discredit his testimony.

10. The use of knives has also been clearly stated by the complainant and recovery of the knives is sufficiently proved by the testimony of the witnesses. PW 6 has stated that when they reached at the spot and caught the accused Satish, a garidar knife was recovered from the socks of right leg. This testimony of the witness finds corroboration from the testimony of PW2 who has stated that when he was stopped by the accused Satish he took out a garidar knife, tried to attack him with the knife and he put the same on his chest. It is further not the case of the defence that the knives and other documents were planted upon them. Thus, the prosecution in the present case has proved its case beyond doubt against the Appellants.

11. Keeping in view the clear and cogent testimony of the prosecution witnesses, I am of the opinion that the present appeals have no merit and are liable to be dismissed. It is ordered accordingly. Appellant Satish Kumar is in custody. He will undergo the remaining sentence. Appellant Rajesh Kumar is on bail, he will be taken into custody to serve the remaining sentence. His bail bond and surety bond are cancelled.

(MUKTA GUPTA) JUDGE MARCH 20, 2012 dk