Keshav @ Bichu vs The State (Govt. Of Nct) Delhi
2013 Latest Caselaw 2737 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 4th APRIL, 2013
                                  DECIDED ON : 3rd JULY, 2013

+            CRL.A. 575/2007 & CRL.M.A.1229/2011

      KESHAV @ BICHU                               ....Appellant
              Through :        Ms.Saahila Lambha, Advocate.

                               versus

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

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

S.P.GARG, J.

1. The appellant- Keshav @ Bichu impugns judgment dated

12.05.2007 in Sessions Case No. 50/2006 arising out of FIR No. 121/2006

PS Moti Nagar by which he was convicted for committing offences

punishable under Sections 392/394 read with Section 397 IPC. By an

order dated 14.05.2007, he was sentenced to undergo RI for seven years

with total fine ` 4,000/-.

2. Allegations against the appellant- Keshav @ Bichu were that

on 19.03.2006 at about 05.15 A.M. at Zakhira Flyover, he along with his

associates Irfan and Salam (not arrested) in furtherance of common

intention committed robbery and deprived Dilbagh Singh of cash ` 1600/-

and mobile phone. It is also alleged that in the process of committing

robbery Dilbagh Singh was injured with deadly weapon i.e. knife. Daily

Diary (DD) No.46A was recorded at 05.26 A.M. at PS Moti Nagar on

19.03.2006 to the effect that the assailant had fled the spot after stabbing

an individual. The investigation was assigned to ASI Suresh Chand who

with Const. Raj Kumar went to the spot. Dilbagh Singh had already been

taken to DDU Hospital and admitted there. ASI Suresh Chand recorded

his statement (Ex.PW-2/A) and lodged First Information Report. In the

course of investigation, the Investigating Officer recorded statements of

the witnesses conversant with the facts. On 16.04.2006, the appellant was

arrested in FIR No.130/2006 under Section 25 Arms Act, PS Anand

Parbat. Pursuant to the disclosure statement about his involvement in this

case, he was arrested. He declined to participate in the Test Identification

Proceedings. After completion of investigation, a charge-sheet was

submitted against the appellant for committing the aforesaid offences. He

was duly charged and brought to Trial. The prosecution examined thirteen

witnesses. In his 313 statement, the appellant pleaded false implication.

On appreciating the evidence and after considering the rival contentions of

the parties, the Trial Court, by the impugned judgment, held the appellant

perpetrator of the offences mentioned previously. Being aggrieved, the

appellant has preferred the present appeal.

3. Learned counsel for the appellant urged that the Trial Court

did not appreciate the evidence in its true and proper perspective. The

appellant was arrested after about one month of the incident and nothing

incriminating was recovered from his possession. PW-2 (Dilbagh Singh)

and PW-5 (Shri Krishan) have given inconsistent version about the

incident. PW-2 (Dilbagh Singh) did not reveal that he was taken to

hospital by PW-5 (Shri Krishan). PW-5 narrated a contradictory version

that the injured was first taken to the office and from there he was taken to

DDU Hospital. It was dark at the time of occurrence, and it was not

possible for the victim to identify the assailants. PW-2 (Dilbagh Singh)

was not sure about the number of assailants. She pointed out that Section

397 IPC is not attracted as the knife allegedly used in the incident was

never recovered. Learned APP urged that the appellant was identified by

the victim in the Court and had no ulterior motive to falsely implicate him.

4. The police machinery came into motion at 05.26 A.M. when

DD No.46 A (Ex.PW-11/A) was recorded about the stabbing incident at

PS Moti Nagar. MLC (Ex.PW-1/A) reveals that Dilbagh Singh was taken

to DDU Hospital by PW-ASI Dhanpat Singh of PCR and admitted at

06.25 A.M. Dilbagh Singh had sustained three incised wounds on his

body. PW-11 (ASI Suresh Chand) recorded his statement (Ex.PW-2/A)

and lodged First Information Report at 08.00 A.M. by making

endorsement (Ex.PW-11/B) without any delay. The complainant gave

graphic detail as to how and under what circumstances he was robbed by

the assailants. He gave description of the assailants and claimed to

identify them. The appellant was arrested in case FIR No.130/2006 PS

Anand Parbat and the disclosure statement (Ex.PW-11/E) was recorded in

which his involvement in the incident surfaced. Application was moved

by the Investigating Officer for conducting Test Identification

Proceedings. However, the appellant did not participate in it. Adverse

inference is to be drawn against the appellant for not participating in the

Test Identification Proceedings. The explanation given by him for refusal

is not justified. In the statement made to the learned Metropolitan

Magistrate (PW-13 Sameer Bajpai), he stated that his photographs were

taken by SI Suresh Chand. Const. Harphool Singh also took his

photographs on mobile and these must have been shown to the witnesses.

However, in the cross-examination of material witnesses, no such

suggestion was put. It was rather pleaded that the appellant was shown to

the witnesses in the police station. It was not revealed as to when and by

whom the appellant was shown to the prosecution witnesses. PW-2

(Dilbagh Singh) identified the appellant as one of the assailants in his

Court statement. He had no prior animosity with the appellant and had

even not named him in his first version to the police. He was not

acquainted with the appellant to falsely implicate him in the incident. The

witnesses had confrontation with the assailants for sufficient time and had

sustained serious injuries with sharp object on his body. He was not

expected to fake the incident. He had sufficient opportunity to recognise

and identify the culprits. He specifically deposed that it was dawn at that

time. He had no ulterior motive to falsely recognise him in the Court.

Despite lengthy cross-examination, nothing material emerged to

disbelieve him regarding identification of the appellant.

5. PW-5 (Shri Krishan) who went to the spot on hearing

commotion identified the appellant as one of the assailants. There are

some discrepancies about his presence at the spot. Even if his testimony is

excluded, it would not dilute the prosecution's case. Testimony of PW-2

(Dilbagh Singh) who was injured in the incident inspires confidence.

Normally, an injured witness would enjoy greater credibility because he is

sufferer himself and thus, there will be no occasion for him to state an

incorrect version of the occurrence or to involve anybody falsely and in

the bargain, protect the real culprit. It is relevant to note that the

prosecution had arrested suspect Deepak @ Ganja. He had consented to

participate in the TIP proceedings. Dilbagh Singh did not identify Deepak

@ Ganja and it led to his discharge in the case. It lends credence to the

testimony of PW-2 (Dilbagh Singh) as he did not identify the person who

was not involved in the incident. PW-2 (Dilbagh Singh)'s ocular

testimony has been corroborated by medical evidence. PW-1 (Dr.Rishi)

examined him on 19.03.2006 and prepared MLC (Ex.PW-1/A). He

deposed that three injuries mentioned in the MLC were found on the

victim's body and these were caused by sharp object. I find no merit in the

plea that Section 397 IPC is not attracted due to non-recovery of knife.

PW-2 (Dilbagh Singh) in his Court statement categorically deposed that

injuries were inflicted by the appellant with knife on his person. The

nature of injuries was opined as simple in nature by Dr.Gautam as

testified by PW-1 (Dr.Rishi). No suggestion was put to PW-1 in the cross-

examination that the knife used in the incident was not a 'deadly' weapon

or it was an ordinary vegetable knife. Moreover, at 05.30 A.M. at odd

hours, the appellant was not expected to retain a knife in his possession

without any apparent purpose.

6. Non-recovery of robbed articles is not fatal to the prosecution

case as the appellant was arrested after about one month of the incident

and his associates could not be arrested. The discrepancies and

contradictions highlighted by counsel are not material to throw away the

prosecution case in its entirety. The impugned judgment is based upon fair

appraisal of the evidence and needs no interference. Record reveals that

the appellant was earlier convicted for similar offence in case FIR

No.44/2003 under Sections 392/397/411/34 IPC PS Sarai Rohilla and

sentenced to undergo RI for seven years with fine ` 3,000/- on

29.03.2007. He completed the substantive sentence on 24.11.2010. He

was admonished by this Court in Crl.A.No. 384/2007 for default sentence

of payment of fine.

7. In the light of above discussion, the appeal filed by the

appellant lacks merits and is dismissed. The conviction and sentence of

the appellant are maintained.

8. Pending application also stands disposed of. The Trial Court

record be sent back forthwith.

(S.P.GARG) JUDGE JULY 03, 2013 tr