Anand @ Jat vs State (Govt. Of Nct) Of Delhi
2014 Latest Caselaw 647 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 27th JANUARY, 2014
                                  DECIDED ON : 3rd FEBRUARY, 2014

+             CRL.A. 907/2013 & CRL.M.B. 1455/2013
       ANAND @ JAT                                           ..... Appellant
                            Through :       Ms. Saahila Lamba, Advocate.
                                   VERSUS
       STATE (GOVT. OF NCT) OF DELHI           ..... Respondent
                     Through : Mr.M.N.Dudeja, APP.

                                  RESERVED ON : 23rd JANUARY, 2014
                                  DECIDED ON : 3rd FEBRUARY, 2014
+             CRL.A. 1395/2012 & CRL.M.A.No. 53/2014
       SATISH @ MADRASI                                      ..... Appellant
                            Through :       Ms. Rakhi Dubey, Advocate.
                                   VERSUS
       STATE (GOVT. OF NCT) OF DELHI           ..... Respondent
                     Through : Mr.Lovkesh Sawhney, APP.

AND
                                  RESERVED ON : 27th JANUARY, 2014
                                  DECIDED ON : 3rd FEBRUARY, 2014

+             CRL.A. 703/2013 & CRL.M.B. 1097/2013
       PARMOD MANDAL @ DHUKHO MANDAL                         ..... Appellant
                            Through :       Ms.Alpana Pandey, Advocate.
                            VERSUS

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

CRL.A.Nos. 907/2013, 1395/2012 & 703/2013                         Page 1 of 12
        CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Anand @ Jat (A-1), Satish @ Madrasi (A-2) and Parmod

Mandal @ Dhukho Mandal (A-3) impugn their conviction by a judgment

dated 23.04.2012 of learned Addl. Sessions Judge in Sessions Case No.

221/09 arising out of FIR No. 124/09 PS Adarsh Nagar. By an order on

sentence dated 23.05.2012, A-1 was awarded RI for five years with fine `

3,000/- under Sections 394/307/34 IPC; RI for seven years with fine `

5,000/- under Section 397 IPC. A-2 and A-3 were awarded RI for five

years with fine ` 3,000/-, each, under Sections 394/307/34 IPC. The

substantive sentences were to operate concurrently.

2. Allegations against the appellants were that on 12.06.2009 at

about 06.30 A.M. in front of Phad no. A-264, New Subzi Mandi,

Azadpur, they in furtherance of common intention with their associate -

Bablu (not arrested) committed robbery and deprived Prem Chand of

mobile phone and cash ` 3,000/- at the point of knife. In the process of

committing robbery, injuries were inflicted to Prem Chand and Raju. The

police machinery came into motion when information was conveyed by

PCR regarding a stabbing-cum-robbery incident and Daily Diary (DD)

No. 12A was recorded at 07.05 A.M. at PS Adarsh Nagar. The

investigation was assigned to ASI Attar Singh who with Const. Suresh

went to the spot. After coming to know that the injured had already been

shifted to hospital, he went to Babu Jagjivan Ram Memorial Hospital and

collected Prem Chand's MLC. He was declared unfit for statement. The

Investigating Officer lodged First Information Report after recording

Raju's statement (Ex.PW-1/A). Further investigation was taken over by SI

Madan Mohan. On 15.06.2009, on the basis of secret information, A-1

and A-2 were apprehended and pursuant to the disclosure statements,

crime weapon was recovered. They also led the police team to the

residence of A-3 for his arrest. During investigation, statements of the

witnesses conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed against the appellants; they were

duly charged and brought to trial. The prosecution examined 19 witnesses

to substantiate the charges. In 313 statements, the accused persons pleaded

false implication. They, however, did not examine any witness in

defence. The trial resulted in their conviction as aforesaid.

3. I have heard the learned counsel for the parties and have

examined the record minutely. Appellants' counsel urged that the Trial

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

and ignored vital discrepancies emerging in the statements of prosecution

witnesses without cogent reasons. Ingredient of Sections 307 and 397 IPC

were not attracted and proved. The prosecution was unable to establish

that the assailants were armed with 'deadly' weapons. Non-recovery of

the crime weapon is fatal to the prosecution case as both PW-1 (Raju) and

PW-2 (Prem Chand) did not identify the knife (Ex.P1) to have been used

in the occurrence. In the alternative, prayer was made to modify the

sentence order as the appellants have already remained in custody for

substantial period. Learned Addl. Public Prosecutors urged that the

impugned judgment is based upon fair appraisal of the evidence of PW-1

(Raju) and PW-2 (Prem Chand) and needs no interference.

4. The occurrence took place on 12.06.2009 at around 06.30

A.M. when PW-1 (Raju) and PW-2 (Prem Chand) had arrived near Phad

no. A-264, New Subzi Mandi, Azadpur in truck No. RJ 32G-2187 from

District Sikar, Rajasthan to sell onions. After parking the truck there,

when they were going out, four assailants committed robbery and inflicted

injuries to them. Soon after the occurrence Daily Diary (DD) No. 12A was

recorded at 07.05 A.M. at PS Adarsh Nagar. It records that an individual

was stabbed and the articles were robbed. The police swung into action

and First Information Report was lodged without inordinate delay after

recording Raju's statement (Ex.PW-1/A) by sending rukka (Ex.PW-8/A)

at 10.00 A.M. Both, Raju and Prem Chand were taken by PCR to Babu

Jagjivan Ram Memorial Hospital. MLC of Prem Chand (Ex.PW-16/B)

and MLC of Raju (Ex.PW-16/A) record their arrival time at 07.25 A.M.

and 07.40 A.M., respectively. In the statement (Ex.PW-1/A), Raju gave

detailed account of the occurrence as to how and under what

circumstances they were robbed by the assailants. Both PW-1 and PW-2

had travelled from Rajasthan for a specific work to sell their onions in

New Azadpur Market and had no ulterior reasons to fake the incident of

robbery. They did not nurture any grievance against the assailants as none

of them was known to them. The complainant did not implicate any of the

assailants by name in the complaint (Ex.PW-1/A). Both, PW-1 (Raju) and

PW-2 (Prem Chand) had sustained injuries in the occurrence. Suggestion

was put in the cross-examination to PW-2 (Prem Chand) that he had got

injuries due to a quarrel with the driver of other truck and the appellants

were falsely implicated in this case. There were no cogent reasons for the

complainant to name the assailants for any such quarrel with any other

truck driver as alleged.

5. While appearing as PW-1, (Raju) proved the version given to

the police on material facts. He identified A-1 to be the assailant who had

a knife at the time of occurrence. He deposed that at about 06.30 A.M.,

four boys came, one of them caught hold Prem Chand from his neck, the

second started beating them and the third one brought out a knife and told

them to give him whatever they had. When they opposed, the boy having

the knife inflicted a blow on the left foot of Prem Chand. The fourth boy

took out mobile phone and ` 3,500/- from the pocket of Prem Chand and

thereafter, they all fled the spot. He assigned specific role to A-1 who

inflicted injuries to Prem Chand by a knife. A-2 was identified to the

assailant who had caught hold of Prem Chand by his neck. A-3 had given

beating to him (PW-1). PW-2 (Prem Chand) also corroborated the

testimony of the complainant on vital facts and implicated the appellants

and assigned similar role to them. The fourth boy, who was unable to be

arrested was described an individual aged about 10 / 11 years. Despite

searching cross-examination, no material discrepancies could be elicited

or extracted to disbelieve or discard the version narrated by them in the

Court. The accused persons did not assign any extraneous motive to them

to falsely rope them in the occurrence. Both, PW-1 (Raju) and PW-2

(Prem Chand) had sustained injuries and were not expected to spare the

real culprits and to implicate innocent ones, particularly when they had no

prior acquaintance with any of the assailants and none of them was named

in the FIR. In the absence of prior animosity or ill-will, the victims who

were not even resident of Delhi and had come in the course of their

routine business were not imagined to falsely depose and identify the

appellants. Minor contradictions, discrepancies and improvements

highlighted by the appellants' counsel do not affect the core of the

prosecution case to give clean chit to the accused persons.

6. During investigation, after apprehension of the appellants,

application for conducting Test Identification Parade was moved by the

Investigating Officer. PW-11 (Ms.Shunali Gupta, MM) conducted Test

Identification Proceedings on 27.06.2009 in which the appellants declined

to participate in the TIP proceedings alleging that they were shown to the

witnesses at the police station. PW-1 (Raju), in the examination-in-chief,

admitted that after 2 - 3 days of the occurrence, he was called at Police

Station Adarsh Nagar to identify the accused persons. Apparently, his

identification of the accused persons in the Court for the first time cannot

be taken at its face value as he had not given broad features / description

of the assailants at the time of lodging the complaint. However,

identification by PW-2 (Prem Chand) of the assailants / appellants in the

Court inspires confidence. He not only identified the assailants in the

Court but also assigned definite role to each of them in the occurrence. He

was fair enough not to identify the knife (Ex.P1) and the currency notes as

it had no specific mark of identification. In the cross-examination, no

suggestion was put to him if any time, any of the assailants was shown to

him by the police. It has come on record that from the inception, this

injured witness remained admitted in the hospital. Ex.PW-17/A (discharge

report) reveals that he was admitted on 12.06.2009 and was discharged on

15.07.2009 in Ram Manohar Lohia Hospital. Since PW-2 (Prem Chand)

was confined to Ram Manohar Lohia Hospital, throughout, there was no

occasion for him to identify the assailants in the police station after their

apprehension.

7. Statements of PW-1 (Raju) and PW-2 (Prem Chand) are not

in conflict with medical evidence and there is no major variance between

the two. PW-16 (Dr.J.P.Palyia) proved Raju's MLC (Ex.PW-16/A) and

nature of injuries suffered by him was 'simple' caused by blunt object. He

also examined Prem Chand's MLC (Ex.PW-16/B) prepared by Dr.Vijay.

PW-17 (Dr.Suresh Minz) proved that in his opinion (Ex.PW-17/A),

injuries were 'grievous' in nature. Findings recorded by the Trial Court

that the appellants were perpetrators of the crime cannot be faulted and are

affirmed.

8. I find no substance in the appellants' plea that Section 397

IPC is not attracted or proved as the prosecution was unable to establish

beyond reasonable doubt that the 'knife' used in the crime was a 'deadly'

one. Both, PW-1 (Raju) and PW-2 (Prem Chand) have categorically

deposed that on their refusal to part with the cash, A-1 who was armed

with a 'knife' inflicted a blow to Prem Chand. The injuries have been

opined 'grievous' in nature. It has further come in evidence that due to the

said injuries the victim remained admitted in the hospital for about one

month and three days and his leg had to be amputated. Elaborating it, PW-

2 (Prem Chand) stated that the main vein which supplied blood was cut

with the knife and could not be repaired by operation. Declining to

identify Ex.P1 (knife) to be the weapon used, he was categorical to assert

that he was inflicted injury by a 'big' knife whereas Ex.P1 was a 'small'

one. The extent of injuries and damaged caused by it are enough to infer

that the crime weapon used in the occurrence was a 'deadly' one to attract

Section 397 IPC. Moreover, infliction of grievous hurt was enough for

conviction with the aid of Section 397 IPC irrespective of the nature of

weapon used. The provision of Section 397 IPC do not create any new

substantive offence as such but merely serve as complementary to Section

392 IPC and 395 IPC by regulating the punishment already provided

therein. The minimum term of imprisonment prescribed under Section 397

IPC is only seven years. Apparently, it does not regulate sentence of fine.

In the instant case, once the Trial Court had imposed fine under Section

392 IPC, imposition of additional fine of ` 5,000/- under Section 397 IPC

was not permissible and sustainable. Accordingly, fine imposed under

Section 397 IPC is set aside.

9. Appellants' plea that ingredient of Section 307 IPC are

missing has substance. The victim was inflicted single blow on thigh

which was not a vital organ. No repeated life threatening blows were

caused to the victim. PW-1 (Raju) was not caused any physical harm. The

nature of injuries was 'grievous'. Apparently, A-1 had no enmity with the

complainant and his only intention was to rob him. It cannot be inferred

that injuries to the victim were inflicted with the avowed object or

intention to cause death. The determinative question is intention or

knowledge as the case may be, and not nature of injury. A-2 and A-3 were

not armed with any weapons. The conviction under Section 307 IPC is

altered to Section 326 IPC. The substantive sentence to the appellants for

five years under Section 307 IPC is reduced to RI for three years under

Section 326 IPC.

10. A-1 was armed with a 'deadly' weapon and caused

'grievous' hurt to the victim while committing robbery. The minimum

sentence prescribed under Section 397 IPC is seven years which cannot be

modified or altered. Fine ` 5,000/- imposed under Section 397 IPC is set

aside. The default sentence for non-payment of ` 3,000/- under Sections

394/326/34 IPC is reduced to fifteen days. Other terms and conditions of

the sentence order are left undisturbed.

11. A-2 was awarded RI for five years with ` 3,000/- under

Sections 394/307/34 IPC. Nominal roll 01.02.2013 reveals that he has

undergone 2 years, 11 months and 26 days incarceration besides earning

remission for 2 months and 24 days as on 29.01.2013. It further reveals

that he is not involved in any other criminal case and has clean

antecedents. His overall jail conduct is satisfactory. The sentence period

has increased to more than four years. Being the first offender and

considering his role in the incident, the period already undergone by him

(A-2) in this case is taken as substantive sentence. He be released

forthwith if not required to be detained in other case.

12. A-3's nominal roll dated 03.08.2013 reveals that he has

undergone 2 years, 2 months and 24 days incarceration besides earning

remission for 4 months and 3 days as on 02.08.2013. He is not involved in

any other criminal case and has clean antecedents. His overall jail conduct

is satisfactory. He is also the first offender. Considering the mitigating

circumstances, the substantive sentence of five years is reduced to four

years under Section 394 IPC and three years under Section 326 IPC. The

default sentence for non-payment of fine amount will be in all fifteen

days.

13. In the light of above discussion, appeals filed by the

appellants stand disposed of in the above terms. Pending applications also

stand disposed of. Trial Court record be sent back immediately. A copy of

the judgment be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE FEBRUARY 03, 2014/tr