Munna Khan vs State (Nct) Of Delhi
2013 Latest Caselaw 222 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 10TH JANUARY, 2013
                               DECIDED ON : 15TH JANUARY, 2013

+                CRL.A.669/2010 & CRL.M.B.Nos.484/2011 & 1697/2011

       MUNNA KHAN                                    ....Appellant
               Through :         Ms.Saahila Lamba, Advocate.

                                 VERSUS

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

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

S.P.GARG, J.

1. The appellant-Munna Khan impugns the judgment dated

26.10.2009 in S.C. No.76/2008 by which he was convicted under Section

393/398 IPC and by an order on sentence dated 28.10.2009 sentenced to

undergo RI for three years with fine of `1,000/- and in default SI for

fifteen days under Section 393 IPC and RI for seven years under Section

398 IPC. Both the sentences were directed to run concurrently.

2. The prosecution examined PW-1 Ranjit (the complainant)

and PW-2 Kamal Raj (his neighbour). Other witnesses examined by the

prosecution are police witnesses. Statement of the accused was recorded

under Section 313 Cr.P.C. He pleaded false implication and stated that he

was a rickshaw-puller. On the day of incident, when he was taking rest

after taking the passenger from New Delhi, at the spot, 4/5 boys were

chased by the people. Due to misunderstanding, he was apprehended

being one of them.

3. Contention of the learned counsel for the appellant is that

material discrepancies in the depositions of the witnesses were ignored by

the Trial Court. Delay in lodging the First Information Report has not

been explained. Since the complainant had prepared the complaint before

the arrival of the police, there was no occasion to send the rukka at 07.45

A.M. after two hours. Statements of the witnesses are inconsistent as to

where the statement of PW-2 (Kamal Raj) was recorded i.e. at the spot or

the police station. The weapon used i.e. iron rod was not 'deadly' to

attract Section 398 IPC. The prosecution witnesses have given divergent

version about the number of assailants. The arrest memo does not show

the time when the appellant was arrested. Seizure memo Ex.PW-1/A

contains the number of the First Information Report indicating that it was

prepared after the registration of the case.

4. Learned APP urged that the appellant was arrested from the

spot and his associates succeeded to flee. The complainant and

independent witness PW-2 (Kamal Raj) had no enmity with the appellant

to falsely implicate him. Since the witnesses were examined after a

considerable delay, minor discrepancies are bound to occur.

5. I have considered the submissions and have examined the

Trial Court record. Daily Diary (DD) No.9A (Ex.PW-5/A) was recorded

at Police Station Gandhi Nagar at 06.03 A.M. to the effect that 3/4

assailants attempted to strangulate a person and one of the assailants was

apprehended. ASI Chander Pal with Const.Ram Avtar reached the spot.

PW-1 (Ranjit) and PW-2 (Kamal Raj) handed over custody of the

appellant to them. In the complaint Ex.PW-1/A, PW-1 (Ranjit) named the

appellant who with his associates had attempted to commit robbery. He

also gave graphic detail as to how the appellant was in possession of an

iron rod and how he used it to press his neck. The incident took place in

the wee-hours at about 05.30 A.M. on 21.03.2008. Information to the

police was given at 06.03 A.M. soon after the occurrence. The police

reached at the spot, prepared rukka and sent it for lodging First

Information Report at 07.45 A.M. There was, thus, no inordinate delay in

lodging the First Information Report.

6. PW-1 (Ranjit) in his deposition before the Court proved the

version given by him to the police at the first instance and testified that the

accused had knocked the door of his house on the pretext to get some

medicines for stomach pain. When he was giving medicine to the

appellant, his two associates followed him. The appellant with his

associates caught hold of him by neck and asked him to hand over all the

valuable articles. The appellant also took out an iron road and put the

same on his neck and pressed it. When he raised alarm, 'Bachao Bachao',

his neighbours reached and the appellant-Munna was apprehended at the

spot. His three associates succeeded in running away. In the cross-

examination, the witness stated that his neighbour Kamal Raj and his son

had gathered in the gali when he raised alarm. He fairly admitted that the

accused did not cause injury with the iron rod but had put it on his neck to

press. The police was informed by his neighbour. No material

contradiction emerged in his cross-examination to disbelieve him. No

suggestion was put by the accused that he was not present at the spot or

that he had not used the rod to press the complainant's neck. PW-2

(Kamal Raj) corroborated the version given by PW-1 (Ranjit) in entirety

and no discrepancy was elicited to disbelieve him. He reached the spot on

hearing the noise 'Bachao Bachao' and found the accused with iron rod at

the spot. He stated that the three associates of the accused fled away. He

also identified the iron rod recovered from the accused.

7. Both these witnesses had no acquaintance with the accused to

make false statement against him. There was no previous ill-will or

enmity with him. The accused did not explain his presence at the spot at

odd hours. There was no occasion for the accused to knock at the door of

the complainant at that time. No suggestion was put to PW-1 (Ranjit) and

PW-2 (Kamal Raj) that the accused was a rickshaw-puller and was present

after transporting the passenger. No rickshaw was recovered from the

spot.

8. Minor discrepancies referred above by the counsel are not

material to cause dent in the prosecution case. The Trial Court has dealt

with all these contentions in the impugned judgment. Iron rod recovered

from the possession of the accused is a deadly weapon and was used to

press the neck of the accused. Ingredients of Section 398 IPC are

attracted. Iron rod per se may not be a deadly weapon what would make it

a deadly is its size/dimensions/design or the manner of its use such as is

calculated to or is likely to produce death. In the present case, the iron rod

measures 14 Inch in length, thickness 2.5 Inch and its pointed tip 3.5 Inch.

It was used by the accused to press complainant's neck to achieve his

design. In 'Saligram vs. State of M.P.', 1990 (Supp.) SCC 60, one of the

convicts was carrying an iron rod. The other convict was armed with a

sword. The Supreme Court observed that both the convicts were armed

with deadly weapons.

9. In the light of above discussion, I find no merit in the appeal

and is dismissed. Trial Court record be sent back forthwith.

CRL.M.B.Nos.484/2011 & 1697/2011 In view of the orders passed above, the applications are disposed of as having become infructuous.

(S.P.GARG) JUDGE JANUARY 15, 2012 tr