Manglu vs State
2013 Latest Caselaw 1086 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : February 18, 2013
                                    DECIDED ON : March 05, 2013

+      CRL.A.301/2000

       MANGLU                                        ..... Appellant
                              Through :   Mr.Javed Hashmi, Advocate.

                              versus

       STATE                                         ..... Respondent
                              Through :   Ms.Fizani Husain, APP.
+      CRL.A.293/2000

       TARA CHAND                                    ..... Appellant
                              Through :   Mr.M.L.Yadav & Mr.Lokesh
                                          Chander, Advocates.

                              versus

       STATE                                         ..... Respondent
                              Through :   Ms.Fizani Husain, APP.


AND

+      CRL.A.321/2000

       RAJESH SHUKLA                                        ..... Appellant
                    Through :             Mr.S.D.S.Rathi, Advocate.

                              versus

       STATE                                         ..... Respondent
                              Through :   Ms.Fizani Husain, APP.

Crl.A.Nos.301-00, 293-00 & 321-00                           Page 1 of 12
 CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Manglu (A-1), Tara Chand (A-2) and Rajesh Shukla (A-3)

impugn their conviction and sentence in Sessions Case No.139/1997

arising out of FIR No.569/1994 registered at Police Station Shakarpur by

which they were held guilty for committing offences punishable under

Sections 394/34 IPC read with Section 397 IPC and sentenced to undergo

Rigorous Imprisonment for seven years with fine `1,000/-.

2. Allegations against the appellants were that on 30.11.1994 at

about 07:30 P.M. at School Block, near Tyagi Hotel, they in furtherance

of common intention committed robbery on the person of complainant-

Raj Kumar at the point of knife and deprived him of `10,000/-. It was

also alleged that while committing robbery, they caused injuries with

deadly weapon i.e.knife and iron punch to Raj Kumar. During the course

of investigation, statement of the victim was recorded. At first instance he

was admitted in Walia Nursing Home and shifted to JPN hospital later on.

Statements of the witnesses conversant with the facts were recorded. The

accused were arrested and their disclosure statements were recorded. On

completion of investigation, charge-sheet was submitted against the

accused. They were duly charged and brought to book. The prosecution

examined 15 witnesses to prove the charges. In their 313

Cr.P.C.statements, the accused pleaded false implication. DW-1

(Constable Om Parkash), DW-2 (Sunil Kumar) and DW-3 (HC Sri Niwas)

stepped in defence. On appreciating the evidence and considering the

contentions of the parties, by the impugned judgment, the appellants were

convicted and sentenced. Being aggrieved, they have preferred the

appeals.

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

did not appreciate the evidence in its true and proper perspective and erred

to base conviction on the sole testimony of complainant-Raj Kumar. PW-

13 (Yogeshwar Tyagi) an alleged eye witness did not corroborate the

complainant's version. PW-1 (Kirpi Dev), victim's mother, did not

support the prosecution and turned hostile. No weapon was recovered

from the accused's possession. Robbed cash was not found in possession

of any accused. Counsel further emphasized that the prosecution did not

adduce cogent evidence to prove if any 'deadly' weapon was used in the

commission of offence. Conviction under Section 397 IPC cannot be

sustained. Learned Additional Public Prosecutor urged that the

complainant (Raj Kumar), an injured witness, has no ulterior motive to

falsely implicate the accused. Non-recovery of crime weapon is not fatal.

4. I have considered the submissions of the parties and have

examined the Trial Court record. Daily Diary (DD) No.17A (Ex.PW14/A)

was recorded at Police Station Shakarpur at 08.30 P.M. on getting

information from PCR that a 'boy' has been stabbed and the assailant had

been apprehended. The investigation was assigned to ASI Yoginder

Singh who with Constable Rajinder went to the spot. DD No. 19A

(Ex.PW-14/B) was recorded on 30.11.1994 at 09.30 p.m. on getting

information from JPN hospital that Raj Kumar was admitted in injured

condition by his brother Rohtash Kumar. PW-14 (SI Yoginder Singh)

reached Walia Nursing Home and came to know that the injured has been

shifted to JPN hospital. He went to JPN hospital, collected the MLC of

injured Raj Kumar and recorded his statement (Ex.PW-3/A). In his

statement Raj Kumar gave detailed account of the incident and named the

accused persons for causing injuries to him while committing robbery. He

attributed specific role to the each accused. The Investigating Officer

made endorsement (Ex.PW14/C) and lodged First Information Report.

The occurrence took place at 07.30 P.M. and the rukka was sent without

any delay at 11.15 P.M. Since First Information Report was lodged

promptly without any delay, there was least possibility of manipulating a

false story. While appearing as PW-3/Complainant-Raj Kumar proved the

version given by him to the police at the first instance without any

variation. He deposed that on 30.11.1994 at about 07.00 or 07.30 P.M.

he went to his house to take `10,000/- from her mother. When he was

coming to the shop with money, the accused met him. They stopped their

motor-cycle and started taking his search. When he opposed, A-1 took

out a knife and stabbed him in chest, abdomen and leg. A-3 caught hold

him when A-1 gave knife blows. A-2 hit him with punch blows on his

face and head. A-2 and A-3 took out `10,000/- from his pocket. The

assailants fled the spot. His brother Rohtash reached there and took him

to Walia Nursing Home where his statement was recorded. In the cross-

examination, he elaborated that he was taken to JPN hospital at about

09.00 or 09.30 P.M. He was discharged the next date at about 3.00 or

04.00 P.M. The accused were known to him prior to the occurrence for

about one and a half years. He denied the suggestion that due to enmity

with the accused they were falsely implicated in this case.

5. On analyzing the testimony of the injured witness it reveals

that no material discrepancies have emerged in his cross-examination to

disbelieve him. He has stood the test of cross-examination. The accused

did not deny injuries suffered by PW-3 (Raj Kumar) on his person. No

suggestion was put to them in the cross-examination that none of them

was present at the spot. No ulterior motive was assigned to the victim for

falsely implicating them. PW-3 assigned specific role to the each

accused. One of them was apprehended soon after the occurrence.

6. Statement of the victim is in consonance with the medical

evidence. MLC (Ex.PW-9/A) was prepared at JPN hospital where Raj

Kumar was admitted at 08.40 P.M. on 30.11.2004. The MLC records the

alleged history whereby the informant (Raj Kumar) was stabbed by

Manglu, Tara Chand and Rajesh Shukla at School Block and they took

away currency notes worth `10,000/-. Stab injuries on the chest,

abdomen and right leg were noticed on the body of the victim. There

were bruises on the forehead. Nature of injuries was simple. There was

no conflict between the ocular and medical evidence. The testimony of a

stamped witness has its own relevance and efficacy. The fact that the

witness had sustained injuries at the time and place of occurrence, lends

support to his testimony that he was present during the occurrence. The

testimony of the injured witness is accorded a special status in law. This

is a consequence of the fact that the injury to the witness is an in-built

guarantee of his presence at the scene of crime and because the witness

will not want to let the actual assailant to go unpunished merely to falsely

involve a third party for the commission of the offence. In the case of

State of Uttar Pradesh vs.Naresh and Ors. (2011) 4 SCC 324, the

Supreme Court held:-

"The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.

7. In the case of Abdul Sayed Vs.State of Madhya Pradesh

(2010) 10 SCC 259 the Supreme Court held:-

"The question of the weight to be attached to the evidence of a witness that was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally

considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discredit an injured witness".

8. PW-2 (Rohtash Kumar) corroborated complainant's version

to the extent that on 30.11.1994 at about 06.55 P.M., he had asked him to

fetch `10,000/- from his mother as there was no other employee in the

shop at the time. He further deposed that after 15-20 minutes Yogeshwar

Tyagi informed him that his brother Raj Kumar was stabbed and admitted

at Walia Nursing Home. He took his brother Raj Kumar to JPN hospital.

On the way, Raj Kumar told him that he was stabbed by Manglu, Tara

Chand and Shukla and they snatched `10,000/- from him. PW-1 (Kirpi

Devi) also deposed that she had handed over `10,000/- at about 7.00 P.M.

to her son Raj Kumar. PW-13 (Yogeshwar Tyagi) did not support the

prosecution on material facts. However, he deposed that when he and Raj

Kumar reached at School Block on 30.11.1994 at about 08.30 P.M. on his

motor-cycle bearing No.DLK-3776, Manglu, Tara Chand and Shukla to

whom he knew earlier met them and they had conversation with Raj

Kumar. The testimony of a hostile witness can be relied to the extent its

supports the prosecution case.

9. In the case of Bhajju @ Karan Singh v.State of M.P. 2012

Crl.L.J.1926 it was held:-

"Now, we shall discuss the effect of hostile witnesses as well as the worth of the defence put forward on behalf of the Appellant/accused. Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 of the Code of Criminal Procedure., the prosecutor, with the permission of the Court, can pray to the Court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the Court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is provided to the defence to cross- examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness in so far as it supports the case of the prosecution. It is settled law that the evidence of hostile witnesses can also be relied upon by the prosecution to the extent to which it supports the prosecution version of the incident. The evidence of such witnesses cannot be treated as washed off the records, it remains admissible in trial and there is no legal bar to base the conviction of the accused upon such testimony, if corroborated by other reliable evidence. Section 154 of the Act enables the Court, in its discretion, to permit the person, who calls a witness, to put any question to him which might be put in cross-examination by the adverse party. The view that the evidence of the witness who has been called and cross-examined by the party with the leave of the court, cannot be believed or disbelieved in part and has to be

excluded altogether, is not the correct exposition of law. The Courts may rely upon so much of the testimony which supports the case of the prosecution and is corroborated by other evidence. It is also now a settled cannon of criminal jurisprudence that the part which has been allowed to be cross-examined can also be relied upon by the prosecution."

10. PW-15 (B.D.Singh) proved the MLC (Ex.PW15/A) in which

stabbed injuries were noticed on the body of the complainant. In his

opinion, the injuries were simple.

11. Non recovery of crime weapon or the case property is not

fatal. Efforts were made to search the weapon of offence but it could not

be traced. The accused did not give plausible explanation to the

incriminating circumstances proved against them. They did not reveal as

to where else they were present at the time of occurrence. Minor

contradictions and discrepancies highlighted by the counsel are not fatal

to the prosecution case as they do not go to the root of the case and affect

the core issue that the appellants stabbed and robbed `10,000/-. The

victim was stabbed only by A-1. A-3 did not have any weapon. The only

role ascribed to him is that he caught hold the victim when A-1 stabbed

him. A-2 was having an 'iron punch'. No such 'punch' was recovered.

In the absence of any plausible evidence it cannot be inferred that 'iron

punch' used in the incident was a 'deadly' weapon. Its dimensions have

not been revealed. No injury caused with punch was noticed on the body

of the victim. Knife used by A-1 was not recovered. Again the court is

not aware about its size, dimensions etc. PW-15 ( Dr.B.D.Singh) did not

give specific opinion that the injuries found on the victim's body were

caused by knife. The injuries were simple in nature. The victim was

discharged the next day. Conviction of the appellants under Section 397

IPC, thus, cannot be sustained. The prosecution failed to prove beyond

reasonable doubt that the weapon used to cause injuries to the victim was

'deadly' weapon within the meaning of Section 397 IPC.

12. In the light of the above discussion the conviction of the

appellants only under Section 394/34 IPC is maintained. The appellants

were sentenced to undergo RI for seven years. They have suffered trial

for about 18 years. They remained in custody for more than three and a

half years. Their substantive sentence was suspended during the

pendency of the appeal and there is nothing on record to show that they

indulged in any similar offence or misused the liberty granted to them.

No previous conviction of the appellants has been proved. Considering

the facts and circumstances of the case, order on sentence is modified and

sentence is reduced to RI for four years with fine of `1,000/- each under

Section 394 read with Section 34 IPC. In default of payment of fine they

shall undergo SI for one month each.

13. The appeal stands disposed of in the above terms. The

appellants shall surrender before the Trial Court on 13.03.2013 to serve

the reminder of their sentence. The Trial Court record be sent back

immediately.

(S.P.GARG) JUDGE March 05, 2013 sa