Raju vs State Of Nct Of Delhi
2014 Latest Caselaw 1819 Del

R-82
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on :28.03.2014
                                   Judgment delivered on : 03.4.2014

                             CRL.A. 249/2006

       RAJU                                  ......Appellant
                      Through:     Mr.Pramod Kumar Dubey, Adv.

                Versus
       STATE OF NCT OF DELHI        .......Respondent
                Through: Ms.Fizani Hussain, APP.

                             CRL.A. 313/2006

       PARAS RAM                             ......Appellant
               Through:            Mr.Pramod Kumar Dubey, Adv.

                Versus
       STATE OF NCT OF DELHI        .......Respondent
                Through: Ms.Fizani Hussain, APP.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 Appellants are aggrieved by the impugned judgment and order of

sentence dated 24.12.2005 and 17.02.2006 respectively wherein the

appellants had been convicted and sentenced to undergo RI for 7 years

for the offence under Section 398 IPC; for the offence under Section

25/54/59 of the Arms Act they had been sentenced to undergo RI for

three years. Both the sentences were to run concurrently; benefit of

Section 428 Cr.P.C. had been granted to the appellants.

2 Version of the prosecution is that on 10.01.2001 at about 7.00

p.m. in the evening while Satish Kumar (PW-1) along with his nephew

Anshul (PW-2), his son Achin (PW-4) were in their shop along with

their employee Amar Singh (PW-7) four persons entered; appellant Raju

pointed a pistol at PW-4's head; he was also hurling abuses. PW-4

caught hold of right hand of the appellant Raju in which he was holding

a pistol; they grappled with one another. PW-1, PW-2 and PW-7 tried

to save PW-4; two of the accused persons who were standing near the

door ran away; the other two accused i.e. appellant Raju and the

appellant Paras Ram (holding a knife in his hand) had been apprehended

at the spot.

3 Statement of PW-1 Ex.PW-1/A was recorded at 7.50 p.m.

pursuant to which the present FIR was registered at 11.40 p.m. Apart

from the statement of PW-1 statements of PW-2,PW-4 and PW-7 were

also got recorded by the investigating officer Suresh Chand (PW-18).

4 The MLCs of the victim i.e. PW-2, PW-4 were proved through

Dr.Nazhat Parveen as Ex.PW-19/A and Ex.PW-19/B. The injuries

reported on both the victims were simple.

5 Katta recovered from the appellant Raju was taken into

possession vide memo Ex.PW-1/D. Three live cartridges were also

recovered from his personal search. A knife was found to be in

possession of the second appellant Paras Ram. Sketch of the knife was

prepared and it was taken into possession vide memo Ex.PW-1/C.

6 Statements of the accused were recorded; Raju in his statement

recorded under Section 313 Cr.P.C. had stated that he was an employee

of the complainant and he had gone to take his balance salary from his

employer (PW-1) wherein he was falsely implicated.

7 One witness was led in defence. He was Ram Sharan Gupta

(DW-1). He has also deposed that his brother-in-law Raju was an

employee of PW-1. He had gone to collect his salary where he has been

falsely implicated. In cross-examination, he admitted that there is no

documentary evidence to show that Raju was an employee with PW-1;

details and description of PW-1 also could not be given by him.

8 On the basis of the aforenoted evidence collected by the

prosecution both the accused persons were convicted and sentenced as

aforenoted. Defence was disbelieved.

9 On behalf of the appellants, it is pointed out that the judgment of

the trial court suffers from inherent improbabilities. Versions of PW-1,

PW-2, PW-4 and PW-7 are contrary ; there have been improvements in

their versions; to support this argument attention has been drawn to

cross-examination of PW-1 wherein on oath in Court he stated that the

appellant Raju had pointed a revolver at the head of his son but this was

not mentioned in his statement Ex.PW-1/A; this is the only

improvement which has been pointed out by learned defence counsel

qua the aforenoted version of the aforenoted witnesses. His second

submission is that after the apprehension of the accused the Katta and

the knife were already recovered when the police reached the spot.

Attention has been drawn to the documents i.e. Ex.PW-1/A, Ex.PW-1/B,

Ex.PW-1/D and Ex.PW-18/A; submission being that in all these

documents the FIR number has been written by the same pen and ink; it

is clearly a case when the documents are either ante dated or the

documents were not prepared at the spot. Benefit of doubt must accrue

to the appellants.

10 The State has refuted the submission. It is pointed out that on no

count does the impugned judgment call for any interference. It is stated

that the versions of the eye-witnesses PW-1, PW-2, PW-4 and PW-7 are

corroborative of one another; there was no reason as to why they would

falsely implicate the appellants. Further submission being that the

appellants were admittedly caught at the spot; the knife and the Katta

were also recovered from them; they had also been medically examined

and their MLCs show injuries on each of them; which clearly

substantiate the version of the prosecution that the appellants have been

beaten up by the public. This has come in the version of all the eye-

witnesses. On no count do the appellants deserve any leniency.

11     Arguments have been heard and record perused.

12      Nominal rolls of the appellants have been summoned.           The

nominal roll reflects that as on the date when the appellant Raju has

been granted bail he has suffered incarceration of 4½ years out of total

period of 7 years of sentence which had been awarded against him. Qua

the appellant Paras Ram as on the date when he has been granted bail he

has suffered incarceration of 5 years out of the total period of 7 years

sentence which had been awarded qua him.

13 The testimony of all the witnesses is coherent and cogent. PW-1

is the complainant. He has on oath deposed that he has a dry fruit shop

in Khadi Bawdi; on 10.10.2001 at about 7.00 p.m. after closing his shop

he along with PW-2, PW-4 and PW-7 gone to their office for sorting out

their accounts and papers when four persons entered into their office

from the open door; one of them pointed a pistol on his son's head and

told him to take out whatever he had. He was also hurling abuses. PW-

4 caught hold of the hand of the said person; PW-2 and PW-7 also

grappled with the said persons; out of the four accused two of them were

standing at the door and ran away when alarm was raised. Public

persons gathered. The accused persons were beaten up by the public.

Appellant Raju had a pistol in his hand and Param Ram had a knife. In

the scuffle PW-2 had also sustained injuries. His statement Ex.PW-1/A

was recovered. The recovered pistol and knife as also three live

cartridges which were recovered from the possession of the appellant

Raju and Para Ram were taken into possession.

14 PW-1 was subjected to a lengthy cross-examination. He admitted

that there is a busy market where the incident had occurred; he used to

open his shop at 11.00 a.m. and closes it at 7.00 p.m. 10-15 persons

were gathered at the spot. The place where the incident had taken place

consists of two rooms of which one room was the place where PW-1

along with other complainant party were sitting to sort out their

accounts. The improvement pointed out the learned defence counsel as

noted supra is not material to detract from his otherwise clear and

coherent version.

15 PW-2 who was the nephew of PW-1 has also toed the version of

PW-1; so also are the versions of PW-4 and PW-7 the other eye-

witnesses. No cross-examination has been effected on either of these

PWs on the defence which is now sought to be set up by the appellants.

Trite it is to state that this defence that appellant Raju was an employee

has been built up only as an afterthought. DW-1 being a close relative

of appellant Raju could not give any detail or description of this

so-called employer (PW-1); this was clearly for the reason that PW-1

was not the employer of appellant Raju. PW-19 had proved the MLC of

PW-2 and PW-4 as Ex.PW-19/A and Ex.PW-19/B. This medical record

shows that all of them have received simple injuries; they had been

discharged on the same day. PW-18 was the Investigating Officer. The

investigation further revealed that the appellants Raju and Paras Ram

had also sustained injuries; this is clear from the testimony of Cont.

Ramesh Chand (PW-14) who had taken both Raju and Paras Ram for

their medical examination in the Hindu Rao Hospital. The MLCs had

been handed over to the investigating officer. This medical record of

Raju and Paras Ram who were also examined on the same day in the

Hindu Rao Hospital substantiates the other oral and documentary

evidence collected by the prosecution that both of them had received

these injuries on account of the beatings given to them by the public.

16 The impugned judgment in view of the evidence collected by the

prosecution does not call for any interference. The arguments of the

learned defence counsel that the FIR number which has been mentioned

in the documents (Ex.PW-1/A, Ex.PW-1/B, Ex.PW-1/D and

Ex.PW-18/A) in the same ink and writing is an argument completely

bereft of force. Apart from the fact that FIR number, details of the case

have been mentioned in all the aforenoted documents in different ink

and in different writing; even otherwise it is a matter of common

knowledge that in the course of the investigation the investigating

officer details the number of the FIR on the documents prepared by him

for cross-verification and in order that they remain connected with the

case and this is for his administrative purpose. In this context a Bench

of this Court had answered this argument in 2012 II AD (Delhi) 288

Rattan @ Ratan Singh Vs. State (Govt. of NCT of Delhi) which reads as

follows:

"It is true that the seizure memos Exs.PW-3/E and PW-3/F do contain the FIR number on the top left side. SI Balbir Singh (I) duly proved the seizure memos. No explanation was obtained by the defence counsel as to the presence of the FIR number thereon, particularly when the FIR had not come into existence by the time seizure memos were written. Thus, the contention raised on behalf of the State that the FIR number was subsequently mentioned by the IO for the purpose of the record is convincing and must be accepted. A similar contention was raised before the Delhi High Court in Ramesh Kumar Rajput @ Khan v. The State of NCT of Delhi, Criminal Appeal No.755/2004, decided on 02.05.2008 where after referring to Radhey Shaym v. State of Haryana JT 2001(3) SC 535 the learned Single Judge of this Court held as under:

15.In any event the law as explained by the Supreme Court is that the mere writing of the FIR number on the arrest and search memos cannot entirely falsify those documents. Significant among the decisions is Radhey Shyam v. State of Haryana JT 2001(3) SC 535. Also, there is merit in the contention of the Respondent that there was no specific question put to the officers concerned in their cross-examination. What the counsel for the accused appears to have been done is to ask the witness whether the portion of the document from "point A to A" (which included

the portion containing the FIR number) was written at the same time. This might be intelligent cross-examination but if the defence wants to prove that the FIR number was in fact written at a later point in time the witness ought to have been asked that question. The failure to elicit any answer from the witnesses on this point can only indicate that the defence may have been inconvenienced by the possible answer that might have been given by the witness or that the witness may have explained that the writing of the FIR number was only for cross verification of the details and therefore the FIR number was written at a subsequent point in time.

17 In this background it can by no stretch of imagination said that the

documents prepared in this case were either ante-dated or that they were

not prepared at the spot.

18 As noted supra, both the accused persons have been convicted and

sentenced RI for a period of 7 years for the offence under Section 398

read with Section 34 IPC and they have been convicted and sentenced

RI for 3 years for the offence under Section 25/54/59 of the Arms Act.

19 Although the language used in Section 398 IPC is "armed with

any deadly weapon' but the use of the expression "armed" has to be read

in relation to the use of "deadly weapon" in connection with

commission of an offence of robbery or dacoity. This was held by the

Supreme Court in MNAU/SC/2010/1975 Phool Kumar Vs. State (Delhi

Administration). In this judgment of the Hon'ble Apex Court has noted

as under:

"........"armed" with any deadly weapon" and the minimum punishment provided therein is also 7 years if at the time of attempting to commit robbery the offender is armed with any deadly weapon. This had created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of 7 years under Section 398, if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two sections, viz. "uses" in Section 397 and "is armed" in Section

398. In our judgment the anomaly is resolved if the two terms are given the identical expressions in the sections. When the offence of robbery is committed by an offender be capable of creating a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon was not put any fruitful use because it would have been of use only when the offender succeeded in committing the robbery."

20 The Supreme Court in 2003 (supp.6) SCC 619 Ashfaq Vs. State

and 1997 (70) DLT 595 Madan Lal Vs. State (Delhi Administration)

had followed with approval the principles laid down in Phool Kumar's

case.

21 In this case although it has come on record that the appellant Raju

was armed with a pistol and Paras Ram had a knife yet there is no such

evidence on record which can establish that either of these two weapons

come within the definition of "deadly". Admittedly these weapons were

not the cause of the simple injuries which have been received by PW-2

and PW-4. In this background, the conviction of the appellant under

Section 398 IPC is set aside and they are convicted under Section 393

IPC. The conviction of the appellant under Sections 25/54/59 of the

Arms Act is, however, upheld.

22 However on the point of the sentence, the submission made by the

learned counsel for the appellant which is largely to the effect that the

offence is of the year is 2001 i.e. almost 13 years old; appellant Raju has

suffered sentenced for 4 ½ years and the appellant Praras Ram has

suffered incarceration for 5 years; the sentence which has since been

suffered by the appellants be taken into account at the time of final

sentence to be imposed by this Court. Both the appellants are present in

the course of hearing. Appellant Raju aged 34 years; he is married and

has four daughters. Appellant Paras Ram is aged 28 years; he is also

married and has two minor children- four years and two years old.

23 In view of the period of incarceration (as noted supra) already

undergone by each of the appellants, keeping in view the modified

conviction, they are sentenced to the period already undergone by each

of them.

24 They are on bail. Their bail bonds are cancelled. Surety

discharged.

25     Appeals are disposed of in the above terms.



                                                INDERMEET KAUR, J



APRIL 3, 2014
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