Suresh @ Pauvva vs State Of Nct Of Delhi
2012 Latest Caselaw 5623 Del

$~27 & 28
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+      Crl. A. 875/2010

%                                    Decided on: 18th September, 2012

       SURESH @ PAUVVA                                 ..... Appellant
                    Through:               Ms. Rakhi Dubey, Adv.

                      versus

       STATE OF NCT OF DELHI                           ... Respondent
                     Through:              Ms. Fizani Hussain, APP

                               AND
       Crl. A. 1027/2011

       REHMAT ALI @ VIKKI                              ..... Appellant
                    Through:               Mr. Aditya Wadhwa, Adv.

                      versus

       STATE OF NCT OF DELHI                           ... Respondent
                     Through:              Ms. Fizani Hussain, APP


A.K. PATHAK, J. (Oral)

1. Both the above referred appeals arise out of the same

incident, FIR and judgment thus, are disposed of together.

2. Appellants have been convicted under Sections 392/394/34

Indian Penal Code, 1860 (for short hereinafter referred to as

"Act"). Appellant Rehmat Ali @ Vicky has also been convicted

under Section 397 IPC. Both the appellants have been sentenced to

undergo rigorous imprisonment of 4 years with fine of `1,000/- and

in default of payment of fine to undergo one month rigorous

imprisonment for the offences punishable under Sections

392/394/34 IPC. Rehmat Ali @ Vicky has also been sentenced to

undergo rigorous imprisonment for 7 years with fine of `2,000/-

and in default of payment of fine to undergo rigorous

imprisonment for two months under Section 397 IPC. All the

sentences have been directed to run concurrently. Benefit of

Section 428 Cr.P.C. has also been accorded to the appellants.

3. Aggrieved by their conviction as also the quantum of

sentences as awarded by Trial Court, appellants have approached

this Court by way of present appeals.

4. Briefly stated, prosecution story as unfolded is that on 13th

February, 2008 victim Yamin was going to C-Block, Jahangir Puri

for purchasing meat and when he reached near the gate of A-Block

Park, Mangal Bazar Road, Jahangir Puri at about 6.30 pm four

boys intercepted him and commanded to handover to them

whatever he was having in his possession. One boy caught hold of

his shirt‟s collar; while second boy snatched his gold chain which

he was wearing; whereas third boy took out `3,500/- from his

shirt‟s pocket. When he resisted, fourth boy gave a blow on his

forehead by some sharp edged object. On the victim raising an

alarm all the four boys ran away. Names of two boys were Gudu

and Vicky. After the incident victim fell down and became

unconscious. He regained consciousness in his house. Police

Control Room was informed. Later, he was removed to Babu

Jagjeevan Ram Hospital by a PCR van. His statement was

recorded, on the basis whereof FIR No. 88/08 under Sections

392/397/411/34 IPC was registered.

5. On 21st February, 2008 victim Yamin approached Police

Station Jahangir Puri and informed that the persons who had

robbed him were present near a public toilet in B-Block, Jahangir

Puri near State Bank of India. DD No. 28-A was recorded in this

regard and handed over to Investigating Officer ASI Vijender

Singh who along with Ct. Ramesh reached there and apprehended

the appellants and their third accomplice, Hasmat Ali @ Guddu.

Appellants disclosed name of their fourth accomplice as Mulla, but

failed to give his address, thus, he could not be apprehended.

6. After completion of investigation, charge-sheet was filed in

the court of Metropolitan Magistrate who committed the case to

Sessions Court for trial.

7. Yamin has been examined as PW1. His wife Haseena has

been examined as PW2. HC Angrez Sigh has been examined as

PW3, who has deposed that he had removed Yamin to Babu

Jagjeevan Ram Hospital. PW7 Dr. Neeraj Chaudhary has proved

MLC of victim as Ex. PW7/A. Investigating Officer, ASI Vijender

Singh has been examined as PW8 who has given details of

investigations conducted by him. PW6 HC Ramesh was with

Investigation Officer on 21st February, 2008 when appellants were

apprehended. All of them have supported the prosecution,

inasmuch as their testimony has remained unshaken in their cross-

examination. Their testimonies have been found trustworthy and

reliable by the Trial Court so as to conclude that it is the appellants

who, with their accomplices, had robbed the victim of his

belongings comprising of a gold chain and `3,500/-, inasmuch as,

Rehmat Ali had assaulted him by a blade.

8. Learned counsels for the appellants have vehemently

contended that the PW1 is not a trustworthy and reliable witness as

he has taken shifting stand at different stages. While deposing in

Court, PW1 has deposed that the appellants were not known to

him; whereas in the FIR he has specifically named Vicky, who is

also known as Rehmat Ali. PW1 had failed to explain as to how he

came to know the name of the Rehmat Ali @ Vikki. Test

Identification Parade (TIP) was not conducted. It is further

contended that appellants were not known to victim, thus, TIP was

necessary and in absence thereof identification of appellants in

Court for the first time is valueless. It is further contended that the

statements of PW2 and PW1 are inconsistent more particularly

with regard to the arrest of appellants. Thus, Trial Court has

committed a patent error and illegality in accepting the testimonies

of PW1 and PW2 to conclude that appellants had robbed the

victim. It is further contended that weapon of offence was not got

recovered by Rehmat Ali @ Vicky and in absence thereof,

prosecution has failed to prove that the weapon allegedly used by

Rehmat Ali was a "deadly weapon", thus, he could not have been

convicted under Section 397 IPC. Reliance has been placed on

Rakesh Chauhan versus The State (NCT of Delhi)

MANU/DE/0924/2011.

9. I have considered the arguments advanced by the learned

counsels in the light of Trial Court Record and do not find much

force in the contentions raised by them. PW2 Haseena was

admittedly not present at the spot, therefore, her statement as

regards to the incident is not of much relevance. She had no

occasion to see the appellants. It is the statement of PW1 which is

material to prove the incident and identity of appellants. PW1 has

supported prosecution version on both these counts. In a nutshell

his deposition indicates that on 13th February, 2008 at about 6.30

PM when he reached near Mangal Bazar Road, Jahangir Puri four

boys came there, waylaid him and robbed him and it is Rehmat Ali,

who assaulted him while Suresh removed wallet containing money

from his shirt‟s pocket. PW1 has identified the appellants correctly

in Court. Statement of PW1 has remained unshattered on material

points, inasmuch as he has correctly ascribed role of each

appellant. From his statement, it has been proved that the

appellants had robbed Yamin of his belongings.

10. I do not find much force in the contentions of learned

counsel that in the absence of TIP identification of appellants in

Court was valueless. In the peculiar facts of this case, in my view,

TIP was not required since the appellants had been arrested at the

instance of victim. It is not the case that appellants had been

apprehended by the police without any assistance of the victim.

Had the case been so, the matter would have been different. MLC

of PW1 supports his version regarding injuries, thus, Trial Court

has rightly convicted appellants under Sections 392/394/34 IPC.

Conviction under the said provisions is upheld.

11. However, in my view, ingredients of offence under Section

397 IPC are not attracted against Rehmat Ali @ Vicky.

Admittedly, weapon which was allegedly used in the commission

of crime had not been recovered, inasmuch as statement of PW1 is

discrepant in this regard. In the FIR PW1 has stated that some

pointed object was used; whereas in Court he stated that injury was

caused by a blade. That apart, no evidence has been led to prove

that such an object was a "deadly weapon". Non recovery of

weapon allegedly used in the commission of crime also goes in

favour of Rehmat Ali @ Vicky. Section 397 IPC envisages that

"If, at the time of committing robbery or dacoity, the offender uses

any deadly weapon, or causes grievous hurt to any person, or

attempts to cause death or grievous hurt to any person, the

imprisonment with which such offender shall be punished shall not

be less than seven years." This provision prescribes minimum

sentence of 7 years to such an offender who uses any „deadly

weapon‟ at the time of commission of crime or causes grievous

hurt to any person, or attempts to cause death or grievous hurt to

any person. The use of deadly weapon is of paramount necessity

for attracting the ingredients of offence under Section 397 IPC. In

this case, no grievous hurt has been caused to the victim nor is

there any clinching evidence to suggest that attempt was made to

cause death or grievous hurt to victim. Thus, in my view,

ingredients of offence under Section 397 IPC are attracted in this

case. Accordingly, conviction of Rehmat Ali @ Vicky under

Section 397 IPC is set aside. Consequence of this is that the

sentence under Section 397 IPC handed down to Rehmant Ali also

goes.

12. Keeping in mind the nature and gravity of offence, sentences

as handed down by the Trial Court are not disproportionate to the

acts of appellant and are, thus, are maintained. All the sentences

shall run concurrently. Needless to add that these appellants shall

be entitled to benefit of Section 428 Cr.P.C.

13. Both the appeals are disposed of in the above terms.

A.K. PATHAK, J.

SEPTEMBER 18, 2012 ga