Shekhar @ Chhotu vs The State (Nct Of Delhi)
2014 Latest Caselaw 620 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   RESERVED ON : 20th JANUARY, 2014
                                   DECIDED ON : 31st JANUARY, 2014

+                           CRL.A. 1283/2011
       SHEKHAR @ CHHOTU                                  ..... Appellant
                            Through :   Mr.S.B.Dandapani, Advocate.

                                    VERSUS

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

AND
+                           CRL.A. 1056/2011
       HARI OM                                           ..... Appellant
                            Through :   Mr.Bhupesh Narula, Advocate.

                            VERSUS

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

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

S.P.GARG, J.

1. Shekhar @ Chhotu (A-1) and Hari Om (A-2) question the

legality and correctness of a judgment dated 13.12.2010 in Sessions Case

No. 80/10 arising out of FIR No. 45/10 PS Gandhi Nagar by which they

were held guilty for committing offences punishable under Sections

452/394/398/34 IPC. A-1 was also held guilty under Section 25 Arms Act.

By orders on sentence dated 15.12.2010, A-1 was awarded RI for three

years with fine ` 200/- under Section 452 IPC; RI for five years with fine

` 500/- under Section 394 IPC; RI for seven years with fine ` 500/- under

Section 398 IPC and RI for one year with fine ` 200/- under Section 25

Arms Act. A-2 was awarded similar prison terms under Sections

452/394/398 IPC. The substantive sentences were to operate concurrently.

2. Allegations against the appellants were that on 21.02.2010 at

about 08.30 P.M. at Swastik Hosiery, 9/6563, Nehru Gali, Gandhi Nagar,

they in furtherance of common intention with their associates (not

arrested) committed house trespass and attempted to commit robbery. In

the process, they caused injuries to Darshan Jain by a 'deadly' weapon.

Both the appellants were apprehended at the spot. Daily Diary (DD) No.

31A was recorded at 2044 hours at PS Gandhi Nagar about the

apprehension of two assailants having knives. Daily Diary (DD) No. 32A

was recorded at 2048 hours on getting information that the owner of the

shop was assaulted with a knife by some assailants. The investigation was

assigned to ASI Zile Singh who with Const. Jaswant went to the spot.

Bhushan Jain produced both the assailants to him. Darshan Jain had

already been taken to SDN Hospital by PCR. The Investigating Officer

lodged First Information Report after recording Darshan Jain's statement

(Ex.PW-1/A). During investigation, statements of the witnesses

conversant with the facts were recorded. After completion of

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

were duly charged and brought to trial. The prosecution examined seven

witnesses to substantiate the charges. In 313 statements, the accused

persons pleaded false implication and claimed that on that day they had

gone to purchase pants. A-2 had consumed liquor and was under its

influence. 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. The incident took place at around 08.30 P.M.

Darshan Jain who was injured in the occurrence was taken to SDN

Hospital, Shahdara by PCR. MLC (Ex.PW-2/A) records the arrival time

of the patient at 10.05 P.M. DD Nos. 31A and 32A were recorded soon

after the incident at 2044 hours and 2048 hours, respectively. The

Investigating Officer after recording statement of the victim lodged First

Information Report without wasting time at 11.45 P.M. by making

endorsement (Ex.PW-6/B). In the complaint, the victim gave vivid

description of the incident and narrated as to how and under what

circumstances, four intruders had entered inside his factory and one of

them was armed with a knife. He was directed to handover the cash at the

point of knife. When he declined to do so, he was injured by a knife. The

assailant who was armed with a knife was caught hold by him. His

associate in an attempt to get him release, hit him on his head with a brick.

His neighbor Bhushan Jain succeeded to apprehend the said assailant.

Two of their associates escaped from the spot. Since the FIR was lodged

without any delay, the complainant had no time to concoct a false story.

He had no ulterior motive to fake an incident of robbery. While appearing

as PW-1, he identified A-1 and A-2 to be among the four assailants who

had committed trespass in his factory at about 08.30 P.M. when he was

making accounts for payment to the workers. He attributed specific role to

A-1 who had a knife and directed him to handover whatever money he

had. On his declining to part with the money, A-1 again said 'paise deta

hai ki nahi' and attacked him with a dagger. He hit him on the palm of his

right hand. On his raising alarm, Bhushan Jain arrived there. A-2 asked

him to release A-1 and on his refusal, he hit him with a brick on his head.

He was also caught hold by Bhushan Jain. The assailants were given

beatings by the public. In the cross-examination, he admitted that there

was no blood stains on the knife (Ex.P1). He denied the suggestion that

the boys who had run away from the spot had caused injuries to him or

that the appellants were falsely implicated when they were coming to their

house. PW-5 (Bhushan Jain) corroborated PW-1 (Darshan Jain)'s

statement on material facts. He also identified A-2 to be the assailant who

was overpowered by him. He attributed definite role to A-1 who had the

handle of dagger and A-2 who had a brick in his hand. In the cross-

examination, he explained that the occurrence took place in one or two

minutes. He denied the suggestion that the appellants were wrongly

identified by him in the Court at the instance of the police.

4. On scrutinizing the testimonies of PW-1 and PW-5, it reveals

that they have given consistent version regarding the incident and have

proved the role played by each of the assailants in the occurrence without

major variation. Despite cross-examination, no material discrepancies

could be elicited or extracted to disbelieve or discard their statements. No

ulterior motive was assigned to any of these public witnesses for falsely

implicating the appellants with whom they had no prior acquaintance or

animosity. The victim who had sustained injuries with a sharp weapon

was not expected to let the real culprit go scot free and to falsely implicate

and identify innocent ones. The appellants were arrested at the spot and

were given beatings by the public. They were taken for medical

examination. They have not denied their presence at the spot. They did not

adduce any evidence to prove that prior to arrival at the spot, they had

purchased pants from a specific shop. No such shopkeeper was examined

in defence. Nothing was revealed as to when and where A-2 had

consumed liquor as alleged.

5. Minor contradictions and discrepancies highlighted by

appellants' counsel do not affect the core of the prosecution case. The

ocular testimony is in consonance with medical evidence. PW-2

(Dr.Gangotri Singh) medically examined Darshan Jain and prepared MLC

(Ex.PW-2/A). Nature of injuries was opined as 'simple' caused by sharp

weapon. In the cross-examination, she categorically stated that the patient

had bruises on his head. She denied the suggestion that the said injury on

the head was not possible with brick (Ex.P2). Injury on the palm was

described as 'simple' caused by sharp edged weapon. Merely because

blood was not found on the knife at the time of its production in the Court,

cogent and credible statement of the victim cannot be discarded. The

medical evidence is certain that the injuries were caused by a 'sharp'

object. In 313 statements, the accused persons did not give plausible

explanation to the incriminating circumstances proved against them. No

pant or cash was recovered during their search as depicted in their

personal search memos. The findings are based upon fair appraisal of the

evidence and require no interference.

6. A-2, admittedly, did not have any 'deadly' weapon at the

time of occurrence. Only when he attempted to get release A-1 from the

clutches of the victim, he hit him with a 'brick' on his head. Under these

circumstances, the 'brick' cannot be considered as a 'deadly' weapon to

attract section 398 IPC. Conviction under Section 398 IPC qua A-2 is set

aside.

7. A-1 has been awarded minimum sentence prescribed under

Section 398 IPC which cannot be altered or modified. A-2's nominal roll

dated 03.01.2012 reveals that he has suffered custody in this case for one

year, ten months and eleven days besides earning remission for four

months and four days as on 03.01.2012. Nominal roll further reveals that

he is not a previous convict and is not involved in any other criminal case.

His overall jail conduct is satisfactory. He was enlarged on bail by an

order dated 21.03.2013. Nothing has emerged if he misused the liberty or

indulged in any such crime after his release. Considering these mitigating

circumstances, the substantive sentence under Section 394 IPC qua A-2 is

reduced from five years to four years.

8. In the light of above discussion, appeal filed by A-1 is

dismissed. While maintaining A-2's conviction under Section 452/394

IPC, substantive sentence under Section 394 IPC will be RI for four years.

Other terms and conditions in the sentence order shall remain unaltered.

9. A-1 and A-2 are directed to surrender before the Trial Court

on 7th February, 2014 to serve the remaining period of sentence (if any).

10. Trial Court record be sent back immediately. A copy of the

judgment be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE JANUARY 31, 2014/tr