Delhi High Court

Ravinder Paswan vs State on 5 July, 2013

Author: Sunita Gupta

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*        IN THE HIGH COURT OF DELHI AT NEW DELHI

                                         Date of Decision: 05th July, 2013
+        CRL.A.319/2004

         RAVINDER PASWAN                              ..... Appellant
                     Through:              Mr. Ujas Kumar, Advocate
                                           along with the appellant (in
                                           custody)

                     versus

         STATE                                         ..... Respondent
                              Through:     Ms. Fizani Hussain, APP
                                           SI Raghuvir, PS Dabri

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                              JUDGMENT

: SUNITA GUPTA, J.

1. Challenge in this appeal is to the impugned judgment dated 3rd

March, 2004 and order on sentence dated 17th March, 2004, passed by

learned Addl. Sessions Judge in Session Case No.07/2002 arising out

of FIR No. 576/2001, Police Station Dabri, under Section 392/411/34

IPC and 27/54/59 Arms Act whereby the appellant was convicted for

offence under Section 392 IPC and was sentenced to undergo

Crl. A.319.2004

rigorous imprisonment for five years and to pay a fine of Rs.3,000/-

in default of payment of fine to further undergo simple imprisonment

for one year.

2. Prosecution case emanates from the fact that on 9th July, 2001

SI Prahlad Singh along with Constable Rajesh was on patrolling and

surprise checking in the area. At about 8.40 pm when they were

going to Kailashpuri via Gali No. 5, Main Sagarpur, they heard noise

coming from the Gali. They saw two boys running and they tried to

apprehend them but one of the boys managed to escape. They,

however, managed to apprehend one of the boys, who, on inquiry

gave his name as Shamshe Alam. Both of them along with Shamshe

Alam reached near the crowd and found that the crowd had also

apprehended another boy who was handed over to SI Prahlad Singh.

Meanwhile, Smt. Bhagwan Devi came and gave her statement, inter

alia, to the effect that on that day at about 8:30 pm, she along with

her grand-daughter aged about 1½ years was coming from the shop of

Dr. Mudgil. She was on foot and coming to her house. When she

was in front of Kesho Ram Sweets in Gali No. 5, three boys aged

about 20-22 years suddenly came from the side of Gali No. 5, Main

Crl. A.319.2004

Sagarpur and one boy who was a little fat and was wearing a cap

snatched her wearing chain weighing about 18-20 grams on which a

thread of „Babaji‟ had been tied. As soon as she tried to catch hold of

him and raised alarm, he whipped out a knife and his two other

accomplices pushed her. She fell down along with her grand-

daughter who was in her arms and also received injuries on her right

hand and also on stomach. She raised alarm on which all the three

boys ran towards Gali No. 5. On hearing her noise, her son

Ghanshyam and public persons started following those boys. One of

the boys who had snatched the chain and was a little fat was

apprehended at a distance of about 200 meters by the public and she

identified that boy. The boy was beaten by the public. His other

accomplices were also apprehended and given beatings but two of

them managed to escape. She identified both the boys Shamshe Alam

and Ravinder Paswan and also stated that when Ravinder Paswan was

searched, from his wearing black pant pocket, her chain which was

broken was also recovered. The knife was also recovered from his

pant. The statement Ex. PW1/1 of Smt. Bhagwan Devi became bed

rock of investigation. After making endorsement Ex.PW7A, same

Crl. A.319.2004

was sent to police station for registration of the case on the basis of

which FIR Ex.PW4/1 was recorded by Head Constable Om Prakash

(PW4). Chain (Ex.P1) was taken into possession vide memo

Ex.PW1/4. Sketch of the knife Ex.PW1/2 was prepared which was

sealed in a pulanda and was taken into possession by memo

Ex.PW1/3. From the possession of accused Shamse Alam, a knife

was recovered for which separate proceedings were initiated. Both

the accused were arrested and their personal search was conducted

vide memos Ex.PW-1/5 and Ex. PW1/6. The accused Ravinder

Paswan was sent to DDU Hospital for his medical examination. His

MLC Ex.PW5/1 was prepared by Dr. Devender Singh Chauhan

(PW5). After completing investigation, charge sheet was submitted

against both the accused.

3. Charge for offence under Section 392 r/w Section 397 IPC was

framed against both the accused to which they pleaded not guilty and

claimed trial.

4. Prosecution examined seven witnesses in order to substantiate

its case. All the incriminating evidence was put to both the accused

while recording their statements under Section 313 Cr. P.C., wherein

Crl. A.319.2004

they denied the case of prosecution. According to the appellant

Ravinder Paswan, on 9th July, 2001, he was sitting in his dhaba along

with his father when police officials came. He was taken forcibly to

an unknown place and was given merciless beatings and his leg was

broken. He was forced to sign on blank papers and then he was taken

to DDU Hospital where he was shown to his in-laws. He further

alleged his false implication in this case at the behest of his in-laws as

he was in love with Jaimala to whom he married against the wishes of

her parents. It had enraged her parents and they had taken away their

daughter after getting him involved in this case. Although, he took an

opportunity to produce defence evidence but no evidence was led but

certified copies of certain documents were filed. Accused Shamshe

Alam also pleaded his innocence and alleged that he was picked up

from his shop and was falsely implicated in this case.

5. Vide impugned order dated 3rd March, 2004, the appellant was

held guilty of offence under Section 392 IPC, however, co-accused

Shamshe Alam was granted benefit of doubt and was acquitted of the

charge levelled against him. Feeling aggrieved by this impugned

Crl. A.319.2004

order, the present appeal has been preferred by the appellant Ravinder

Paswan.

6. It was submitted by learned counsel for the appellant that there

are contradictions in the statements of the witnesses as such no

reliance can be placed on the same. None of the public witnesses

have identified the appellant. Moreover, as per prosecution version,

besides the chain, a knife was also recovered from the possession of

the appellant. However, the recovery of knife has not been believed

by the learned Trial Court. Furthermore, on the same set of facts, co-

accused has been acquitted, therefore, the appellant could not have

been convicted on the basis of same set of facts. As such it was

submitted that prosecution has failed to bring home the guilt of

appellant beyond shadow of doubt and the appellant is entitled to be

acquitted.

7. Per contra, it was submitted by the learned Public Prosecutor

for the State that the factum of snatching of chain of the complainant

stands proved from her testimony. The same was recovered from the

possession of the appellant which was duly identified by the

complainant. The entire evidence has been considered by the learned

Crl. A.319.2004

Trial Court in correct perspective and no interference is called for. As

such, the appeal is liable to be dismissed.

8. Record reveals that as regards the factum of incident of

snatching of chain belonging to complainant Bhagwan Devi is

concerned, the same stands proved from her testimony wherein she

testified that in the month of July, 2001, she was going on foot with

her grand-daughter aged about 1½ years, who was in her arms and

when she was at the corner of gali No. 5, her chain was snatched from

her neck, she was pushed and she fell down and sustained injuries.

Her testimony in this regard goes un-rebutted and unchallenged

inasmuch as even no suggestion was given to her that no such incident

had taken place. Immediately after the incident, police officials

Constable Rajesh (PW6) and SI Prahlad Singh (PW7) came to the

spot. Accused were apprehended and thereafter the complainant made

a statement (Ex.PW1/1) which became bed rock of investigation. The

chain was also recovered which was duly identified by the

complainant as belonging to her. Under the circumstances, incident of

snatching of chain belonging to the complainant stands proved.

Crl. A.319.2004

9. As regards, the complicity of the accused in the crime, it has

come in the statement of PW-1 Smt. Bhagwan Devi that the boy who

had snatched the chain was wearing the cap. She also admitted that

her son Ghanshyam and public persons had chased the boys and

apprehended the boy who had snatched the chain. She identified the

chain (Ex. P1) which was snatched from her neck and it was recorded

that hook of the chain was intact but it was broken. The witness

expressed her inability to identify the accused which was quite

obvious inasmuch as she was aged about 60 years and was examined

after a lapse of about one year of the incident. Moreover, the

occurrence had taken place in a fraction of seconds, therefore, it was

difficult for her to identify the boy but the sequence of events

establishes that it was the appellant who had snatched the chain

because on hearing the noise PW-2 Ghanshyam Singh, son of the

complainant came out of his house and started running towards Gali

No.5 from where the noise was coming. Other persons were also

running. With the help of other persons, he caught hold of a boy,

who was running, however, the custody of that boy was taken from

him by the public persons who started giving him beatings. That

Crl. A.319.2004

boy, however, managed to escape from the clutches of public persons

but the police officials apprehended the boy whose name came to be

known as Ravinder Paswan and on his search, one knife and chain of

his mother was recovered. He was categorical in deposing that the

chain and knife was recovered from the possession of that particular

boy who had been apprehended by him and had succeeded in escaping

from the clutches of the public persons and who was then

apprehended by the police. To the same effect is the testimony of

PW-3 Sh. Sunil Kumar Sharma who also deposed that on 9th July,

2001 at about 8.30 pm, he was going towards Subzi Mandi from his

house. When he was near a shop of Kesho Ram Sweets, he heard

„Halla Gulla‟ and someone from the public told that chain had been

snatched and the boy was running. Public persons chased and

apprehended that boy. Name of that boy was told as „Paswan‟. From

the possession of that boy one knife was recovered. Chain had

already been recovered from that boy by the public persons as well as

the police officials.

10. It has further come in the testimony of the police officials that

SI Prahlad Singh along with constable Rajesh was on patrolling duty

Crl. A.319.2004

in the area when they reached near Gali No. 5, main Sagarpur and

were proceeding towards Kailashpuri Main Road, they found that

there was a crowd in the Gali. They saw that two boys were running

towards inside Gali No. 5. They tried to apprehend those boys. One

of the boys was apprehended whose name was disclosed as Shamse

Alam. Thereafter, they proceeded towards the crowd. One boy was

apprehended by the public who was handed over to them. Name of

that boy was disclosed as „Ravinder Paswan‟. On his search, from left

side pocket of pant, a chain (broken piece) was recovered which was

identified by the complainant and a knife was also recovered which

was also seized. Name of the other boy who was apprehended was

disclosed as Shamse Alam.

11. Testimony of PW1 and PW2 find corroboration from PW 3

Sunil Sharma, an independent witness who has also stated that the boy

who was apprehended gave his name as „Paswan‟ and he was fat and

was wearing a cap. From his possession, chain and knife was

recovered. Contable Rajesh (PW6) and SI Prahlad (PW7) have also

deposed regarding apprehension of appellant at the spot by the public

and that he was beaten by the public and when he was running away,

Crl. A.319.2004

he was apprehended by them and on his search, chain Ex. P1 was

recovered. The sequence of events leads to the only conclusion that it

was the appellant Ravinder Paswan who had snatched the chain and

when he was running away, he was chased by Ghanshyam and was

apprehended by him and then the public who gathered at the spot took

charge of him and gave beatings to him. Police officials, while on

patrolling, reached the spot and apprehended him. Chain (Ex.P1) was

recovered from his possession. Presence of the appellant at the spot

stands further proved from the fact that since he was administered

beatings by the public, vide application Ex. PW7/2, he was sent to

DDU hospital where his MLC Ex. PW 5/A was prepared by Dr. D.S.

Chauhan (PW5) and a perusal of the MLC goes to show that at the

very initial juncture, the history of "being beaten by public" was

given. No suggestion was given to any of the public witnesses that the

appellant was not given beatings by the public or that he was taken to

police station where he was beaten by police.

12. The plea taken by the accused is that he was lifted from his

Dhaba in the presence of his father and was thereafter falsely

implicated in this case at the instance of his in-laws who were against

Crl. A.319.2004

his marriage with their daughter Jaimala. This plea does not appeal to

reason inasmuch as no evidence has been produced by the appellant to

prove that he was lifted from his Dhaba on that day, although it was

alleged that at that time even his father was present. However, for

reasons best known to him, he has not even examined his father in

order to substantiate this plea. Moreover, he has been taking

contradictory pleas, inasmuch as, it was suggested to PW7 in his

cross-examination that he was picked up from his house and thereafter

falsely implicated in this case. In order to prove that relations

between him and his in-laws were not cordial, he had filed certified

copies of a writ petition filed by his father-in-law before this Court

and the orders passed on the writ petition but that does not help the

appellant inasmuch as that at the most reflect that the relations

between him and his in-laws may not be cordial but no presumption

can be drawn that due to that reason at the behest of his in-laws,

police would falsely implicate him in this case. This is particularly so,

when the appellant was apprehended at the spot immediately after the

incident and the chain snatched by him was also recovered then and

there.

Crl. A.319.2004

13. As regards, the submission that recovery of knife from the

possession of the appellant has not been believed by the learned Trial

Court, same is devoid of substance, inasmuch as, no finding has been

given by the learned Trial Court regarding recovery of knife from the

possession of the appellant. The charge against the appellant was also

under Section 397 IPC, however, since there was no evidence to prove

that at the time of snatching the chain from Bhagwan Devi, the

appellant had used the deadly weapon, therefore, use of deadly

weapon at the time of committing robbery was not proved. That

being so, he was convicted only for offence under Section 392 IPC.

14. As regards the submission that co-accused Shamshe Alam has

been acquitted on the same set of facts and, therefore, the appellant

could not have been convicted, the plea is devoid of merits inasmuch

as there are catena of decisions to the effect that merely because other

accused is acquitted, that is no ground for acquittal of the co-accused.

15. In Gurcharan vs. State of Punjab, AIR 1956 SC 460, where

some accused persons were acquitted and some others were convicted,

it was held as follows:-

"9.......The highest that can be or has been said on behalf of the Appellants in this case is that two of the four accused have

Crl. A.319.2004

been acquitted, though the evidence against them, so far as the direct testimony went, was the same as against the Appellants also; but it does not follow as a necessary corollary that because the other two accused have been acquitted by the High Court the Appellants also must be similarly acquitted."

16. In Gangadhar Behera vs. State of Orrisa, (2002) 8 SCC

381:2003 SCC (Cri.) 32 reliance was placed on Gurcharan Singh

(Supra) and it was held:-

"15..... Merely because some of the accused persons have been acquitted though evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a court to differentiate the accused who had been acquitted from those who were convicted. "

17. This authority was cited with approval in Prathap Vs. State of

Kerala (2010) 12 SCC 79 and Surajit Sarkar Vs. State of West

Bengal (2013) 1 SCC (Cri) 877. It is being the legal position, the

appellant cannot be absolved of his involvement in the commission of

the crime merely because co-accused who was not identified by the

witnesses nor any recovery was effected from him, acquitted. So far

as the appellant is concerned, there is cogent and reliable evidence to

connect him with the crime. As such the submission of learned

counsel for the appellant deserves rejection.

Crl. A.319.2004

18. In view of the aforesaid discussion there is no infirmity in the

impugned order dated 3rd March, 2004 whereby the appellant was