Deepak vs State
2013 Latest Caselaw 5591 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 12th NOVEMBER, 2013
                            DECIDED ON : 03rd DECEMBER, 2013

+                          CRL.A. 149/2000

       DEEPAK                                         ....Appellant
                     Through :   Mr.Nitin Dahiya, Advocate.

                                 versus

       STATE                                           ....Respondent
                     Through :   Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Deepak impugns a judgment dated 25.01.2000 of learned

Addl. Sessions Judge in Sessions Case No. 10/98 arising out of FIR No.

95/97 PS Model Town whereby he was convicted under Sections 307, 394

reach with Section 397 IPC and by an order dated 27.01.2000, awarded RI

for seven years with fine ` 10,000/- under Section 307 IPC; RI for seven

years with fine ` 10,000/- under Section 397 IPC. Both the sentences were

to operate concurrently.

2. The case of the prosecution as projected in the charge-sheet

was that on 28.01.1997 at about 08.15 A.M. at B-412, Lal Bagh, Aakash

Tailors, GTK Road, Delhi, Deepak and his companion Pankaj in

furtherance of common intention inflicted injuries to Man Singh by a

knife and deprived Madan Lal of ` 800/- after stabbing him. The police

machinery came into motion when Daily Diary (DD) No. 5A was

recorded at PS Model Town at 09.20 A.M. on getting information from

duty constable Rattan Pal informing admission of Man Singh and Madan

Lal in Hindu Rao Hospital. The Investigating Officer lodged First

Information Report after recording Madan Lal's statement (Ex.PW-1/A).

During investigation, efforts were made to find out the culprits in vain.

Subsequently, Deepak was arrested in FIR No. 187/91, PS Sulatanpuri

and was taken into custody in this case (he was earlier Proclaimed

Offender). Pankaj could not be apprehended and arrested. After

completion of investigation, Deepak was duly charged and brought to

trial. The prosecution examined twelve witnesses and produced medical

evidence. In 313 statement, the appellant pleaded false implication. After

considering the rival contentions of the parties and appreciating the

evidence on record, the Trial Court, by the impugned judgment, convicted

Deepak giving rise to the filing of the present appeal.

3. I have heard learned counsel for the parties and have

examined the record. Learned counsel for the appellant urged that the

Trial Court did not appreciate the evidence in its true and proper

perspective and fell into grave error in relying upon the testimony of PW-

1 (Madan Lal), who resiled from the Court statement in the cross-

examination. The appellant was not charged under Section 392 IPC and

conviction under Section 397 IPC is unsustainable in the absence of non-

recovery of crime weapon. Learned Addl. Public Prosecutor urged that

both the victims have fully supported the prosecution and their testimony

has been corroborated by medical evidence.

4. Madan Lal and Man Singh were taken to the Hindu Rao

Hospital by Babu Lal from the spot. PW-3 (Babu Lal), Man Singh's

father, rushed to the spot on hearing a noise and found both Man Singh

and Madan Lal lying there with stab injuries. When he enquired from

them as to who had inflicted the injuries, Man Singh disclosed that

Deepak and Pankaj had given knife blows to them. This assertion

remained unchallenged in the cross-examination. MLCs Ex.PW-6/A (of

Man Singh) and Ex.PW-6/B (of Madan Lal) record arrival time of the

patients at 08.55 A.M. and 09.00 A.M., respectively. Madan Lal who had

sustained injuries 'simple' in nature was declared fit to make statement. In

his statement given to the police at the first available opportunity, he gave

graphic detail of the occurrence and implicated both Deepak and Pankaj

for robbing ` 800/- and causing injuries to them by a knife. Since the First

Information Report was lodged in promptitude by sending rukka at 01.30

P.M. after the occurrence took place at 08.15 A.M., there was least

possibility of fabrication of a false story in a short interval. PW-4 (Man

Singh), in Court statement fully supported the prosecution and ascribed a

specific and definite role to Deepak in the incident. He testified that on

28.01.1997 at about 08.15 A.M. he had gone to the complainant Madan

Lal's shop where he was counting money. In the meantime, Deepak and

Pankaj arrived there. Deepak snatched ` 800/- from Madan Lal and on his

resistance, was stabbed on left thigh. When he intervened to save Madan

Lal, Pankaj took out a knife and Deepak stabbed him on the left cheek.

After the occurrence, Pankaj and Deepak fled the spot. In the cross-

examination, he explained that he was working at complainant's shop and

had no previous grudge with the accused. He expressed ignorance if there

was any prior money transaction between Deepak and Madan Lal. The

accused was unable to bring out any material contradiction or discrepancy

in cross-examination to disbelieve the version given by the injured eye-

witness. No ulterior motive was assigned for making false statement. PW-

1 (Madan Lal), in examination-in-chief recorded on 01.02.1999, proved

the version given to the police in the statement (Ex.PW-1/A) without any

variations or improvements. He implicated Deepak for robbing ` 800/-

from him and also causing injuries by a knife to him and Man Singh. The

appellant did not opt to cross-examine him that time. When he was

recalled for cross-examination on 16.09.1999 after a lapse of 7 months, he

took a somersault and denied any role to Deepak in the incident. It appears

that after examination on 01.02.1999, the complainant was won over and

completely resiled from the statements given to the police and in the

Court. Apparently, Madan Lal did not present true facts in the cross-

examination. Deepak was known to him prior to the incident for the last

many years and had no occasion to falsely name him for committing

robbery and causing injuries to them. He had given an eye-witness

account of entire incident and FIR was lodged at his instance. Simply

because in the cross-examination, the witness turned hostile and did not

implicate the accused, the version given in the examination-in-chief

recorded on oath on a prior date cannot be disbelieved and discarded. The

law is now well settled that merely the witness is declared hostile, whole

of his evidence is not liable to be thrown away. In Crl.A.No. 432/2010,

'Naresh Kumar vs. State' decided on 04.09.2013, this Court observed :

"18. 1991 Cr.L.J. 2653 (1), Khujji alias Surendra Tiwari V. State of M.P is a direct authority on the point in hand. In that case also, examination-in-chief of the witness was recorded on 16.11.76, when he identified all the assailants

by name. His cross-examination commenced on 15.12.76. In that cross-examination, he stated that since the accused had their backs towards him, therefore, he count not see their faces. On the basis of that statement, it was submitted that evidence regarding identity of the accused was rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification of such a wavering witness. Hon'ble High Court came to the conclusion, which was up held by Hon'ble Apex Court that during one month period that elapsed since the recording of his examination-in-chief, something transpired which made him shift his evidence on the question of identity to help the appellant. His statement in cross-examination on the question of identification of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. As such, it was observed that there was no material contradiction to doubt his testimony. It was further observed that evidence of declared hostile is not wholly effaced from record and that part of evidence, which is otherwise acceptable, can be acted upon. Reliance was placed on well settled decisions of Hon'ble Supreme Court-Bhagwan Singh v. State of Haryans, (1976) 2 SCR 921 : Air 1976 SC 202; Rabinder Kumar Dev v. State of Orissa, (1976) 4 SCC 233: AIR 1977 SC 170 and Sayed Akbar v. State of Karnataka, (1980) 1 SCR 95: AIR 1979 SC 1848 - Where it was held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version is found to be dependable on a careful scrutiny thereof.

19. Substantially, similar view was taken in 2009 (XI) AD SC 125 Alagarsamy& Ors. Vs. State by Deputy Superintendent of Police. In that case also, the witness was declared hostile at the fag end of his cross-examination. The examination-in-chief of witness was recorded on 02.04.01 and on the same day he was cross-examined by three

defence counsels. Then only later on, on 26.06.01, when he was recalled, he was treated as hostile witness. Hon'ble High Court commented that witness was tried to be won over, after his cross-examination and this comment was approved by Hon'ble Apex Court and it was observed that law is not well settled that merely because witness is declared as hostile witness, whole of his evidence is not liable to be thrown away. Reference was made to Syed Akbar Vs. State of Karnatka, 1980 (1) SCC 30, Rabindera Kumar Dey vs. State of Orissa, 1976 (4) SCC 233 and Bhagwan Singh Vs. State of Haryana, 1976 (1) SCC 389."

5. PW-11 (Dr.Suresh Kr.Bansal) proved MLC Ex.PW-6/B (of

victim Madan Lal) and the nature of injuries was opined simple by sharp

weapon. PW-10 (Dr.P.K.Suneja) examined Man Singh vide MLC Ex.PW-

6/A and opined the nature of injuries as 'grievous' caused by sharp object

(Ex.PW-10/A). Both, these witnesses were not cross-examined despite an

opportunity given. The accused did not deny his presence at the spot.

There are no valid reasons to suspect the statements of the injured eye-

witnesses which are accorded a special status in law. The fact that they got

injuries in the occurrence establishes their presence at the spot. They are

not expected to let the real culprits go scot free and to falsely implicate the

appellant with whom there was no previous history of hostile relations.

The prosecution was able to establish beyond reasonable doubt that

Deepak was author of the injuries to both Madan Lal and Man Singh and

snatched ` 800/- from the complainant. Man Singh (Madan Lal's

employee) was not the target of attack. Injuries were caused to him when

he intervened to save Madan Lal. No attempt was made to rob cash or

other article from his possession. The appellant had no grudge or enmity

to eliminate him. The injuries inflicted were not on vital organ but were

on cheek and were opined 'grievous' in nature. There is nothing on record

to show as to for how much duration, Man Singh remained admitted in the

hospital. No repeated blows with the weapon were inflicted on vital

organs. When taken to hospital soon after the incident, Man Singh was

conscious and was not admitted for any operation etc. The prosecution

was, thus, not able to prove that the appellant had intention and

knowledge to cause death. The conviction under Section 307 IPC requires

alternation to offence under Section 326 IPC.

6. I do not find any force in the contention raised by the counsel

for the appellant that conviction with the aid of Section 397 IPC is not

permissible in the absence of non-recovery of knife. It is true that the

crime weapon could not be recovered during investigation. Soon after the

incident, the appellant fled the spot and could not be apprehended for long

and was declared Proclaimed Offender. The prosecution was, thus, not

able to recover the weapon of offence at his instance. Both the victims

categorically deposed about the use of knife by the offender while

inflicting injuries. PW-4 (Man Singh) suffered 'grievous' injuries by the

'knife' used to rob the complainant by Deepak. Testimony of PW-10

(Dr.P.K.Suneja) is of utmost importance in this regard. He deposed that

on local examination, the patient had incised wound over left cheek of

size of 3 cm in length and it was extending to the oral cavity. The accused

did not cross-examine the expert to ascertain the size and dimension of the

weapon used in the incident. It cannot be inferred that the weapon used

was not a 'deadly' one in nature.

7. Appellant's nominal roll on record reveals that he remained

in custody for three years and fourteen days besides earning remission for

three months and twenty five days as on 24.07.2001 and was enlarged on

bail by an order dated 23.01.2002. Nominal roll further reveals that he

was involved in another FIR No. 187/91 under Section 307/147/148 IPC

and 27 Arms Act PS Sultanpuri whose outcome is not clear. The incident

pertains to the year 1997 and the appellant has suffered the ordeal of the

trial / appeal for about sixteen years. Considering these facts and

circumstances, sentence order is modified and Deepak is awarded RI for

seven years with fine ` 2,000/- and failing to pay the fine to undergo SI

for one month under Section 394 read with Section 397 IPC; RI for five

years with fine ` 2,000/- and failing to pay the fine to undergo SI for one

month under Section 326 IPC. Both the sentences shall run concurrently.

The period already suffered by the appellant in custody, in this case, shall

be counted and set off under Section 428 IPC. The appellant shall

surrender before the Trial Court on 10th December, 2013 to serve the

remaining period of substantive sentence.

8. The appeal stands disposed of in the above terms. Pending

application (if any) also stands disposed of. Trial Court record be sent

back forthwith with the copy of the order.

(S.P.GARG) JUDGE DECEMBER 03, 2013/tr