Rakesh @ Bengali vs State (Govt. Of Nct) Delhi
2013 Latest Caselaw 3748 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI


                              RESERVED ON : July 12, 2013
                              DECIDED ON : August 26, 2013


+                                 CRL.A. 188/2012


       RAKESH @ BENGALI
                                                         ..... Appellant
                         Through : Mr.Avninder Singh with Mr.Aditya
                                   Vaibhav Singh, Advocates.


                         versus

       STATE (GOVT. OF NCT) DELHI
                                                      ..... Respondent
                         Through : Mr.M.N.Dudeja, APP for the State.


        CORAM:
        MR. JUSTICE S.P.GARG


S.P.GARG, J.

1. Rakesh @ Bengali (the appellant) challenges a judgment

dated 07.03.2011 of learned Additional Sessions Judge in Sessions Case

No.113/2010 arising out of FIR No.281/2007 by which he was convicted

for committing offence punishable under Section 392 read with Section

397 IPC. By an order dated 01.04.2011 he was sentenced to undergo

Rigorous Imprisonment for seven years with fine `2,000/-.

2. Daily Diary (DD) No.24 PP Inder Lok (Ex.PW4/A) was

recorded at 10.35 P.M. on getting information that PCR had caught hold

an individual with a knife. The investigation was assigned to ASI Ram

Kishan who with Ct.Chand Singh went to the spot. Rakesh @ Bengali

was produced along with khukhri by PCR officers to the Investigating

Officer and was arrested. During the course of investigation, his

associates Shahbuddin @ Shahabu @ Sonu Khan, Deepak @ Khubi and

Sonu @ Tamatar were apprehended and arrested. Statements of witnesses

conversant with the facts were recorded. On completion of investigation,

a charge-sheet was filed in the court against Rakesh @ Bengali,

Shahbuddin @ Shahabu @ Sonu Khan and Sonu @ Tamatar. Deepak @

Khubi was juvenile and was sent before Juvenile Justice Board for trial.

The prosecution examined 10 witnesses in all. In their 313 statements, the

accused persons pleaded false implication. On appreciating the evidence

and considering the rival contentions of the parties, the Trial Court by the

impugned judgment held all of them guilty for committing offence under

Section 392/34 IPC. In addition, the appellant was convicted with the aid

of Section 397 IPC and sentenced to undergo RI for seven years with fine

`2,000/-. Being aggrieved, he has preferred the present appeal.

3. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. Number of

prosecution witnesses examined turned hostile and did not support the

prosecution initially. When they were cross-examined by Additional

Public Prosecutor and specific suggestions were put to them, they

admitted the facts. The vital contradictions and discrepancies in their

statements have been ignored without valid reasons. The Investigating

Officer did not move application for conducting TIP proceedings to

establish the identity of the actual assailants. The recovery of 'khukhri'

from appellant's possession is highly doubtful as the dimensions of the

'khukhri' showed that it was not possible to keep it in the pocket. The

Investigating Officer was not examined. Learned Additional Public

Prosecutor urged that PW-1 (the victim) did not have any animosity with

the appellant to falsely implicate him in this case. There are no sound

reasons to disbelieve and discard his natural version.

4. I have considered the submissions of the parties and have

examined the record. Rakesh @ Bengali was arrested at the spot soon

after the incident. The Investigating Officer lodged First Information

Report after recording the victim's statement (Ex.PW-1/A). The incident

occurred at about 10.15 P.M. The rukka was sent for lodging FIR at 11.55

P.M. There was no delay in lodging the report with the police. FIR in a

criminal case is a vital and valuable piece of evidence for the purpose of

appreciating the evidence led at the trial. The object of insisting upon

prompt lodging of the FIR is to obtain the earliest information regarding

the circumstance in which the crime was committed, including the names

of the actual culprits and the parts played by them, the weapons, if any,

used, as also the names of the eyewitnesses, if any. In the instant case,

PW-1 (Abdul Wahid) gave graphic detail of the incident and narrated as to

how and under what circumstances, four assailants surrounded and robbed

him of cash `2,500/-, wrist watch make Maxima at the point of khukhri

and was given beatings. He also disclosed that he informed PCR officials

who were able to apprehend Rakesh @ Bengali. On his search, robbed

currency notes of `700/- and a khukhri were recovered. Since the FIR

was lodged promptly, there was least possibility of the complainant or the

police officials to fabricate a false story in the short duration. The

appellant was named in the report lodged at the first instance with the

police. While appearing as PW-1, the complainant proved the version

given to the police without any major variation. He identified Rakesh @

Bengali in the court and attributed specific role to him of having a

khukhri, which accused used to extort cash and wrist watch. He also

ascribed a specific part played by him to utter 'Tu Jyada Hero Banta Hai'.

He identified watch (Ex.P1) recovered from the accused's possession. He

also gave detailed account as to how other assailants were apprehended.

The witness was tested and cross-examined at length. However, nothing

material emerged to disbelieve, to doubt or suspect the value and

authenticity of his version. PW-1 (Abdul Wahid) had no prior

acquaintance with the appellant to falsely implicate him. No ulterior

motive was assigned to the complainant to falsely rope in the appellant in

the incident.

5. PW-2 (Ct.Jai Bhagwan), PCR official, supported the

prosecution on material aspects and corroborated the complainant's

version. He testified that on 01.07.2007 at about 10.30 P.M. Abdul Wahid

informed them that three or four boys standing under the Jakhira Fly Over

had snatched `2,500/- and wrist watch at the point of knife. They rushed

to the spot and were successful to apprehend Rakesh @ Bengali and

recover a khukhri which was produced to the local police. PW-7 (HC

Ram Kumar) another police official in the PCR corroborated his version

in toto. He also deposed that on getting information from a public person

about the snatching incident, they were able to apprehend one of them and

recovered a khukhri from him. In examination-in-chief, he fairly admitted

that he was unable to identify the assailant as he was driving the PCR van.

PW-9 (Ct.Suraj Mal), Incharge P-16, PCR van, also deposed that after

getting information from Abdul Wahid about the incident they chased

and were successful to apprehend one of the assailants whose name was

ascertained as Rakesh @ Bengali. It is true that there are some

discrepancies in their statements. However, these do not go to the root of

the case to disbelieve the core issue about the apprehension of the

appellant after chase at the spot and the recovery of khukhri from his

possession. The Investigating Officer could not be examined completely

as he had expired. However, PW-5 (Ct.Chand Singh), who accompanied

him deposed that Rakesh @ Bengali was produced by the Incharge of the

PCR van. He also produced 'Khukhri' which was seized vide seizure

memo (Ex.PW-1/C). `700/- were also seized vide seizure memo (Ex.PW-

1/F). Rakesh @ Bengali was examined and his disclosure statement

(Ex.PW-1/D) was recorded. The accused did not deny his apprehension at

the spot. Specific suggestion was put to PW-1 in the cross-examination

that Rakesh @ Bengali was brought by the police officials from his

vehicle lying parked near Bhusa (fodder) Mandi. The witness denied the

suggestion that Rakesh @ Bengali was falsely implicated in this case as

he had lodged complaints against the police officials. The appellant,

however, did not produce any evidence to show as to in which vehicle he

was travelling near Bhusa Mandi and what was the purpose of his

presence there at odd hours. PW-1 having no prior animosity with the

complainant is not expected to falsely implicate him on the mere asking of

the police officials. In fact, the appellant was not arrested by the local

police. He was chased by the PCR officials and was identified by the

complainant then and there as one of the assailants who had committed

robbery. PCR officials had nothing to do with the complaints (if any)

lodged by the appellant against the local police officials. No such

complaints have been brought on record. Mere marginal variations in the

statements of the witnesses highlighted by the appellant's counsel do no

render the evidence brittle. In the depositions of witnesses there are

always normal discrepancies due to normal errors of observation, error of

memory due to lapse of time, due to mental disposition such as shock at

the time of incident and the like. In the instant case, the court can well

understand the shock and trauma of the complainant who had direct

confrontation with four assailants, one of them being armed with a deadly

weapon. He was surrounded and threatened by the assailants and was

beaten. Number of memos prepared at the spot bears his signatures which

establishes his presence at the scene of crime.

6. In the light of the above discussion, I find no compelling

reasons to interfere with the impugned judgment which is based upon fair

appraisal of the evidence. The appeal is unmerited and is dismissed.

7. Trial court record be sent back forthwith.

(S.P.GARG) JUDGE August 26, 2013 sa