Sagar vs The State (N.C.T. Of Delhi)
2013 Latest Caselaw 3975 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                          RESERVED ON : 5th SEPTEMBER, 2013
                          DECIDED ON : 6th SEPTEMBER, 2013

+             CRL.A. 750/2011 & Crl.M.B.No.1033/2011

       SAGAR                                              ..... Appellant
                          Through :    Ms.Anita Abraham, Advocate.

                          Versus

       THE STATE (N.C.T. OF DELHI)              ..... Respondent
                      Through : Mr.M.N.Dudeja, APP.


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

S.P.GARG, J.

1. The present appeal has been filed by the appellant - Sagar to

impugn a judgment dated 22.07.2010 of learned Additional Sessions

Judge in Sessions Case No. 20/2010 arising out of FIR No. 316/2009 PS

Khajuri Khas by which he was held guilty for committing offence

punishable under Section 392 IPC read with Section 397 IPC. By an order

dated 23.07.2010, he was directed to undergo RI for seven years.

2. Allegations against the appellant were that on 10.11.2009 at

04.45 A.M. at Chand Bagh Puliya, Karawal Nagar Road, Delhi, he with

his associate robbed Gyanesh Singh of ` 700/- at the point of knife and

also caused injuries to him. The police machinery was set into motion

when Daily Diary (DD) No. 40A was lodged at Police Station Khajuri

Khas and the investigation assigned to ASI Om Pal Singh who with

Const. Nanak went to the spot. It was revealed that the victim had already

been taken to GTB Hospital by PCR officials. ASI Om Pal Singh went to

GTB Hospital and collected the MLC of injured Gyanesh Singh. He

lodged First Information Report after recording his statement (Ex.PW-

1/A). On 11.12.2009 on the basis of secret information, Sagar and

Allauddin were apprehended and arrested. Their involvement surfaced

after their disclosure statements were recorded. The Investigating Officer

moved the Court to hold Test Identification Proceedings. The complainant

was able to identify Sagar alone. Allauddin was discharged. After

recording statements of the witnesses conversant with the facts and after

completion of investigation, a charge-sheet was submitted against the

appellant in the Court. He was duly charged and brought to Trial. The

prosecution examined seven witnesses to prove his guilt. In his 313

statement, the appellant pleaded false implication. After appreciating the

evidence and considering the rival contentions of the parties, the Trial

Court, by the impugned judgment, held the appellant perpetrator of the

crime.

3. Appellant's counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective. Material

discrepancy as to on which body part the victim sustained injuries was not

considered for valid reasons. The appellant was arrested after a month of

the incident on the basis of secret information. It was highly improbable

for the complainant to identify him after a long gap. Crime weapon was

not recovered from the possession of the appellant or at his instance. The

prosecution was not sure if the weapon used was a 'deadly' one. Learned

Addl. Public Prosecutor urged that minor discrepancy as to the body part

where the injuries were inflicted is not material to discard the otherwise

reliable testimony of the injured witness.

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

examined the record. The incident of robbery occurred at 04.45 A.M.

Gyanesh Singh made telephone call at No. 100 and PCR officials took

him to GTB Hospital. MLC (Ex.PW-6/A) reveals that he was brought at

GTB Hospital at 05.45 A.M. Soon after the Daily Diary (DD) No. 40A

was recorded, ASI Om Pal Singh rushed to the spot. He recorded

complainant's statement (Ex.PW-1/A) in the hospital and lodged First

Information Report at 07.00 A.M. There was no delay in lodging the

report with the police. FIR in a criminal case is a vital and valuable piece

of evidence for the purpose of appreciating the evidence led at the trial.

The object of insisting upon prompt lodging of the FIR is to obtain the

earliest information regarding the circumstance in which the crime was

committed, including the names of the actual culprits and the parts played

by them, the weapons, if any, used, as also the names of the eyewitnesses,

if any. In the instant case, in the complaint, Gyanesh Singh gave vivid

details of the incident as to how and under what circumstances, he was

robbed by two assailants who were armed with country made pistol and a

knife and was deprived of ` 700/-. He also disclosed that he was stabbed

with knife and on his raising alarms the assailants fled away. He claimed

to identify them if shown. Since the FIR was lodged soon after the

occurrence, there was no possibility of fabrication of a false story. The

complainant had no acquaintance with the assailants and had not named

them. When Sagar and Allauddin were apprehended and put to Test

Identification Proceedings, Gyanesh Singh was able to identify the

appellant as one of the assailants. He was not sure about the identity of the

other assailant and was fair enough not to recognise Allauddin. While

appearing as PW-1, in his Court statement, the complainant proved the

version given to the police at first instance without major variation. He

categorically identified the appellant as one of the assailants and attributed

specific role to him. He deposed that the appellant was armed with a knife

and inflicted injuries on his body. He was taken to GTB Hospital and was

medically examined. He hand over his blood stained pant to the police

which was seized vide seizure memo Ex.PW-1/C. In the cross-

examination, he explained that there was complete day-light at about

04.45 A.M., two - four persons were visible near the place of occurrence.

He further deposed that on his raising alarm an individual had attempted

to intervene but was threatened by the assailant who had katta in his hand.

Material facts deposed by the witness remain unchallenged in the cross-

examination. No ulterior motive was assigned to him to falsely implicate

the appellant. In the absence of prior animosity or ill-will, the victim who

had no acquaintance with the appellant and had not named him in the FIR

was not expected to identify him on the mere asking of the police

officials. The appellant had participated in the TIP proceedings

voluntarily.

5. Non-recovery of the weapon of offence is not fatal. Ocular

testimony of the complainant is in consonance with medical evidence.

PW-6 (Dr. Irfan) who medically examined Gyanesh Singh proved the

MLC (Ex.PW-6/A). The injuries were simple in nature caused by sharp

object. Minor discrepancy whether the injuries were inflicted on the left or

right thigh is insignificant. The complainant was examined on 20.04.2010

after a gap of about five months and the possibility of his describing the

injuries on the right thigh cannot be taken as material contradiction. The

fact remains that PW-1 (Gyanesh Singh) sustained injuries on his body.

There is no substance in the appellant's plea that the complainant was not

able to identify the appellant after a long gap of one month. The

complainant has claimed that it was complete day-light at the time of

occurrence. He had direct confrontation with the assailants and had an

opportunity to observe / notice their features from close range.

Identification of the appellant in TIP proceedings and in the Court cannot

be faulted. The fact that the complainant did not identify Allauddin makes

his testimony more reliable. I find no merit in the appellant's plea that

Section 397 IPC is not attracted as the crime weapon was not recovered

and it was not ascertained if it was a 'deadly' weapon. The complainant

disclosed to the police that one of the assailants was armed with a country

made pistol and the other had a knife. He was injured/ stabbed with the

knife on his various body parts. MLC (Ex.PW-6/A) reveals that there was

stab wound on inner aspect of left upper thigh of 3 x 2 cm. size. There

were other incised wounds of 2 x 2 cm. on back and 2 x 2 cm. on lower

spine. The injuries were opined as 'simple' caused by sharp object. The

nature of injuries caused to the complainant with the weapon is enough to

infer that it was a 'deadly' one. During examination of witnesses, they

were not confronted about the size and dimension of the knife used in the

incident. No such plea was taken during trial.

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

The judgment is based upon fair appreciation of the evidence and needs

no interference. The appeal is dismissed. Pending application also stands

disposed of. Trial Court record be sent back.

(S.P.GARG) JUDGE SEPTEMBER 06, 2013 tr