Umesh Kumar vs The State
2013 Latest Caselaw 2900 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+                       CRL.A. 141/2003
%                                            Reserved on: 8th May, 2013
                                             Decided on: 10th July, 2013
UMESH KUMAR                                           ..... Appellant
                              Through:    Mr. Sanjeet Singh, Advocate
                              versus

THE STATE                                                  ..... Respondent

                              Through:    Mr. Manoj Ohri, APP for the State.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA

1. By the present appeal the Appellant lays a challenge to the judgment

dated 21st February, 2003 whereby he has been convicted for offences

punishable under Sections 451 and 393 IPC read with Section 34 IPC and

the order on sentence dated 21st February, 2003 whereby he has been

directed to undergo rigorous imprisonment for a period of three years and to

pay a fine of Rs. 1,000/- under Section 393 IPC and Rigorous Imprisonment

for a period of one year under Section 451 IPC. The Appellant was also

directed to pay Rs. 5,000/- each as compensation to PW3 and PW5 by way

of pay order or bank draft in their name and in default of the same the

Appellant was directed to undergo Simple Imprisonment for a period of

three months.

2. Learned counsel for the Appellant contends that on the same set of

evidence, the co-accused Shanti Ranjan, who was also charged with offences

under Section 398 IPC and 27 Arms Act has been acquitted, however the

Appellant has been convicted. Learned Trial Court failed to appreciate that

the prosecution story was not supported by the witnesses. The prosecution

witnesses contradicted each other. The identification in Court for the first

time was discarded in the case of Shanti Ranjan. However, the same was

accepted in the case of the Appellant. PW5 failed to identify the Appellant

and PW3 though identified stated that he did not know that the Appellant

was apprehended at the spot. The knowledge of PW3 qua identification is

based on hearsay evidence and thus not admissible in evidence. The version

of the Investigating Officer is not supported by PW3 inasmuch as he refutes

the recovery of knife from the possession of the co-accused in his presence.

Though the case of the prosecution is that the Appellant went to take

documents, which were kept by PW3 Sohan Lal in his house, however, PW8

SI Virender Singh clearly stated that no such diary or documents were

recovered. Thus the motive behind the robbery has not been proved.

Admittedly, PW6 Constable Om Prakash deposed that both legs of the

Appellant were broken and thus the injuries on the Appellant were grievous

in nature however, the prosecution has failed to explain the injuries on the

Appellant. Merely because a person is found injured at the spot does not

mean that he was the assailant. The present was a case of mistaken identity

which fact is further proved by the fact that the identification by PW3 is at

the behest of the police. The learned Trial Court wrongly drew adverse

inference. It is the duty of the prosecution to prove the case beyond

reasonable doubt. However, the learned Trial Court held that the Appellant

has not been able to prove his defence beyond reasonable doubt. Even on

the facts of the case Section 393 IPC is not attracted as no extortion has been

committed nor is there any allegation of extortion. Hence the Appellant be

acquitted of the charges framed.

3. Learned APP for the State on the other hand contends that PW3, the

injured witness categorically identified the Appellant and the co-accused.

PW6 Om Prakash and PW8 SI Virender Singh stopped and apprehended the

Appellant on the spot. The co-accused Shanti Ranjan was acquitted because

he was neither apprehended at the spot nor at the instance of the

Complainant or an eye-witness and thus his dock identification for the first

time was held to be insufficient to prove the identity. The moment the

Appellant with the co-accused entered the premises and demanded the

documents, offence under Section 393 IPC stands committed. There is no

error in the impugned judgment and the appeal be dismissed.

4. I have heard learned counsel for the parties.

5. Briefly the case of the prosecution is that on 15 th January, 1996 at

about 9.00-9.30 P.M. a PCR information was received at PS Sainik Farm

that a woman had been stabbed in Sainik Farm. When SI Virender Singh

reached Farm No. 112, Sainik Farm, the Appellant was found in an injured

condition near the gate and was sent to AIIMS in PCR van. The articles in

the room build on the plot were found scattered and asbestos sheet on the

roof was damaged. The injured had been taken to the hospital by that time.

The statement of PW1 Ram Sudhir was recorded who stated that at about

9.15 p.m. his nephew Dharamveer s/o Sohan Lal came to him and informed

that three-four persons had forcibly entered their house and were demanding

some papers from his father at the point of knife. Thereupon the

Complainant along with others reached farm No. 112 and found that three-

four persons were beating his brother Sohan Lal and his sister-in-law PW5

Sitilya after closing the room. Since the complainant and others surrounded

the room those persons started running away after breaking the asbestos

sheet on the roof of the room. They also attacked them with knife. The

witnesses also pelted bricks and stones in their defence as a result one of

them got injured and was apprehended on the spot. However, the others

managed to run away. PW1 when examined before the learned Trial Court

did not support the prosecution case and thus he was cross-examined by the

learned APP. In the cross-examination he admitted the prosecution case.

However, he denied that he had apprehended the Appellant at the spot. He

also denied that the co-accused was arrested in his presence. Similarly PW2

Baijnath also turned hostile.

6. PW3 Sohan Lal, the injured deposed before the Court that in January,

1996 he was working with Shri S.K. Goel as a Gardener at 127-A, Sanik

Farm, New Delhi. Mr. Goel used to give him documents to keep in

polythene bag and he used to keep them in his room. On 15th January, 1996

at about 9.00-915 p.m. when he was present in his room along with his wife

and son, three persons came there and asked for Vishambar. PW3 stated to

them that Vishambar had gone to the village. Thereafter they asked him to

open the door and when he opened the door those people asked him to hand

over the documents of Mr. Goel to them. PW3 told that that he had no

documents whereupon those persons tied a cloth on his face and gave knife

blows on his hand, chest and other parts of body. He further stated that his

wife was also given knife blows however, the child was spared. Later on his

son called the neighbours. He identified the Appellant and his co-accused as

the two persons who had come to his house, demanded the papers and

injured him and his wife. Further this witness was cross-examined on the

point as he failed to identify which of the accused was apprehended on the

spot. In cross-examination by the learned APP he identified the Appellant as

the person who was apprehended at the spot. He also identified his

signatures on the memos. In cross-examination by the defence this witness

stated that he become unconscious however, he was conscious when he was

taken to the hospital. He stated that one of the assailants was apprehended

when he was trying to run away through the door whereas the remaining

managed to run away by breaking the asbestos sheet of the roof of his room

as the height of his room was 6-7 feet. This witness clarified that he could

not identify as to who had escaped after breaking the asbestos sheet and who

had escaped from the door as his face was covered with a cloth before that.

PW3 in cross-examination further stated that he did not tell as to who had

stabbed him as his face was covered at that time. He reiterated that the

Appellant Umesh was the person who apprehended at the spot. It is thus

apparent that the identification of the Appellant by PW3 as the person who

came to his room is cogent and convincing however the identification as to

the apprehension at the spot is shaky as he has made contradictory statement.

7. PW4 Dharamveer, son of PW3 also deposed about the incident

however he could not identify the assailants who had come to the room as

there was darkness. Even on cross-examination by the learned APP he

stated that he could not identify the Appellant as the person who was

apprehended at the spot.

8. PW5 Smt. Sitilya W/o of Sohan Lal also deposed on the same lines as

that of PW3. However, she did not identify the assailants as she stated that

she could not see the face of the assailants and thus permission was granted

to the learned APP to cross-examine this witness. PW5 also stated that one

of the assailants was apprehended at the spot however, she cannot identify

him.

9. The injuries on the witnesses have been proved by PW15 Hurum

Singh, Record Clerk, G.M. Modi Hospital, Saket vide Ex. PW15/2 and Ex.

PW15/1. Thus their presence at the spot cannot be doubted. No doubt PW1,

PW2, PW4 and PW5 have not supported the prosecution case with regard to

the identity of the Appellant however, PW3 Sohan Lal the injured witness

who suffered multiple injuries on the scalp, one stab wound over the 5th inter

coastal space and incised wound in chest of left side clearly identified the

Appellant as one of the accused who entered the room and asked PW3 to

hand over the documents of Mr. Goel to them. It may be noted that the other

witnesses who had not supported the prosecution case had not stated that the

Appellant was not one of the persons who entered the room. They only

stated that they did not remember as to who were the assailants. Merely

because PW3 does not say that the Appellant was apprehended in his

presence would not bely the otherwise acceptable version of PW3. The

apprehension of the Appellant at the spot has been deposed to by Constable

Om Prakash as the injured who was found at the farmhouse.

10. Learned counsel for the Appellant has stressed that the prosecution

was required to prove the case beyond reasonable doubt against the

Appellant and not vice-versa. There can be no dispute on this proposition.

However in the present case the prosecution has proved the identification of

the Appellant by PW3 at the spot and the apprehension at the spot has been

proved by PW6 and PW8, that is, Constable Om Prakash and SI Virender

Singh. Not only he was apprehended from the spot, scattered things like

broken bangles, leather shoes, pair of action shoes etc. were also recovered.

PW6 on cross-examination admitted that the legs of the Appellant were

broken when he was found lying in the farmhouse. It may be noted that by

broken legs, Constable Om Prakash PW6 could not have opined that the

same was a case of grievous injury in the absence of MLC being exhibited to

this extent. Thus all that can be stated even as per the statement of Constable

Om Prakash is that the Appellant received simple injuries. Non-explanation

of simple injuries by the prosecution witness is not fatal. Further, in the

present case the police witnesses have spoken about the apprehension of the

Appellant at the spot which fact has gone unrebutted.

11. Learned counsel for the Appellant has contended that from the

incriminating facts ingredients of Section 393 IPC are not proved. Section

393 IPC provides as under:

"393. Attempt to commit robbery.--Whoever attempts to commit robbery shall be punished with rigorous imprisonment for a term which may extend to seven years, and shall also be liable to fine."

12. From the evidence on record it is proved that the Appellant entered the

house of PW3 and demanded the documents and in furtherance of the same

injuries were inflicted on PW3. It is only for the reason that the Appellant

could not rob any article that the conviction has been converted to one under

Section 393 IPC instead of 397 IPC and the Appellant has been convicted for

attempt to commit robbery.

13. In view of the aforesaid discussion I find no infirmity in the impugned

judgment of conviction and order on sentence. The appeal is dismissed.

Bail bond and the surety bond are cancelled.

(MUKTA GUPTA) JUDGE JULY 10, 2013 'vn'