Deepak vs State
2014 Latest Caselaw 1234 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%
                                          Date of Decision: 07.03.2014

+                         Crl. Appeal No.621/2010
DEEPAK                                                  ....Appellant
                               Through: Ms. Inderjeet Sidhu and
                               Ms Shiba Batra, Advs.

                                Versus

STATE                                                 ...Respondent
                               Through: Mr Feroz Khan Ghazi, APP
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J. (Oral)

On 02.11.2014, Police Control Room was informed at about 11.15

PM that a person had been injured with knife in Sector 20, Rohini and

one person was being beaten by the members of the public. A copy of

the aforesaid DD was given to SI Satbir Singh, who reached the

aforesaid spot and came to know that both the injured as well as the

person who had been caught by the public had already been taken to

Sanjay Gandhi Hospital. The Investigating Officer, accordingly, reached

the aforesaid hospital, where Mangal and Virender Singh were found

admitted. He recorded the statement of Virender Singh who, inter alia,

stated that on the aforesaid date, at about 10.30 PM, he along with

Mangal was going to his house through P-4 Sultanpuri Park. When they

reached in the middle of the park, four boys surrounded them and asked

them to take out whatever they had with them. Both of them got scared,

but he (the complainant) refused to take out anything. Thereupon, he

was caught by two boys and he had grappled with them. The other two

boys caught hold of his companion Mangal and started beating him. He

further stated that one of the boys, who had caught hold of him, held him

firmly, whereas the other one took out a blade and gave a blow on the

left side on his chest. He also took out the Nokia mobile phone model

3315 from his pocket, along with Rs. 150 in cash. On alarm being raised

by them, the member of the public started gathering there, whereupon

three boys managed to escape, but one of them was apprehended with

the help of the members of the public. His name was later found to be

Deepak, son of Babu Lal. He was given beating by the members of the

public and Police Control Room was informed.

2. Since the other persons alleged to be involved in the incident

could not be arrested, only Deepak was charge-sheeted by the

prosecution. He was charged under Section 392/34, 394/34 and 397 of

IPC. Since he pleaded not guilty to the charges, as many as seven

witnesses were examined by the prosecution. No witness, however, was

examined in defence.

3. The complainant Virender Singh came in the witness-box as PW-

1 and inter alia stated that when they (he and Mangal) reached in the

middle of the park, at about 10.30 PM on 02.11.2004, they were

surrounded by four persons and started beating him and his friend

Mangal and asked them to take out whatever they had. Two persons

then caught hold of him and put him down on the ground, whereas the

other person caught hold of his friend Mangal and started beating to him.

Out of the two persons, who had caught hold of him, one took out a

blade and caused injuries on the left side of the chest. He forcibly took

out his mobile phone Nokia 3315 from his pocket along with Rs 150 in

cash. When he raised alarm, the members of the public gathered and

three persons managed to escape from the spot, whereas the accused

Deepak was apprehended. He was also beaten by the mob and was later

handed over to the police.

4. PW-2 Mangal corroborated the deposition of PW-1 in all respects

and deposed with respect to both of them being surrounded by four boys

and two of them holding him, whereas the remaining two catching hold

of the complainant. He also claimed that Virender sustained injuries on

the left side of his chest though he did not say that a blade was used for

causing injury to Virender. He also claimed that accused Deepak was

apprehended on the spot, was beaten by the public and later handed over

to police.

5. PW-6 doctor Manoj Dhingra has proved the MLC of Mangal and

Virender Singh Exs. PW-6/A and PW-6/B, both of which are of

handwriting of one doctor Kailash Singh Rawat.

6. In his statement under Section 313 Cr. P.C, the appellant denied

allegations against him and claimed to be innocent.

7. The learned counsel for the appellant has drawn my attention to

the MLC of the complainant Ex.PW-6/B. A perusal of the said

document would show that the complainant had no stab injury on his

chest, when he was examined in the hospital. In fact, he has no stab

injury at all. Only abrasions were found on his back below scapular

region and the nature of the injury was opined to be simple. It may also

be pointed out at this stage that no blade was seized from the appellant

though the case of the prosecution is that he was apprehended on the

spot. Neither PW-1 nor PW-2 says that the appellant, after causing

injuries to him, had passed on the blade to one of his associates. The

learned defence counsel also pointed out that PW-2 Mangal, when he

examined in the witness box, did not say that a blade was used for

causing injuries to the complainant Virender Singh. In these

circumstances, it would be difficult to accept the case of the prosecution

that a blade was used during commission of the robbery. Therefore,

Section 397 of IPC could not have been applied while convicting the

appellant.

8. There is no good reason to disbelieve PW-1 Virender Singh and

PW-2 Mangal with respect to the incident of robbery. Though the

Investigating Officer did not collect documentary evidence with respect

to ownership of the mobile phone claimed by the complainant, that

would be a defect in the investigation, benefit of which would not accrue

to the appellant.

As held by the Hon'ble Supreme Court in Karnel Singh vs. State

of M.P. JT 1995 (6) SC 437, it is not proper to acquit the person due to

defective investigation, if the case otherwise stands established, since

doing so would be falling in to the hands of the erring Investigating

Officer. As noted by the Supreme Court in Ram Bihari Yadav vs. State

of Bihar and others, JT 1998 (3) SC 290, the story of the prosecution is

to be examined de hors the contaminated conduct of the Investigating

Officer lest the mischief which may also be deliberate one is

perpetuated. The criminal justice should not be made casualty because

of the wrong doing of a police officer.

The Apex Court in Dhanaj Singh @ Shera & Ors. v. State of

Punjab (2004) 3 SCC 654, held, "in the case of a defective investigation

the Court has to be circumspect in evaluating the evidence. But it would

not be right in acquitting an accused person solely on account of the

defect; to do so would tantamount to playing into the hands of the

investigating officer if the investigation is designedly defective."

The Apex Court in the case of Paras Yadav v. State of Bihar AIR 1999

SC 644, enunciated the principle, in conformity with the previous

judgments, that if the lapse or omission is committed by the

investigating agency, negligently or otherwise, the prosecution evidence

is required to be examined de hors such omissions to find out whether

the said evidence is reliable or not. The contaminated conduct of

officials should not stand in the way of evaluating the evidence by the

courts, otherwise the designed mischief would be perpetuated and justice

would be denied to the complainant party.

The Court, therefore, has to evaluate the evidence led by the

prosecution, irrespective of the aforesaid defect in the investigation and

then decide whether the evidence produced before the Court justifies

conviction of the accused or not. Such evaluation has to be undertaken

de hors the defect in the investigation. I find that in the FIR lodged by

him, the complainant gave the number of his mobile phone. This is not

the case of the appellant that the aforesaid mobile phone does not belong

to the complainant. There could be no reason for the complainant to

make a false accusation of theft of the mobile phone. He had nothing to

gain by making a false allegation of this nature.

9. The learned counsel for the appellant submits that in fact this was

a case of quarrel between the appellant on the one hand and the

complainant and his accomplice on the other hand and that explains the

injuries to the appellant as well as to the complainant and his accomplice

Mangal. She has also pointed out that both the complainant as well as

his companion Mangal were smelling of alcohol. However, no such plea

was taken by the appellant in his statement under Section 313 of Cr.P.C.

He did not claim that there was a quarrel between him and the

complainant and his companion. His case during the aforesaid statement

was of a total denial. Moreover, even during cross-examination of the

witnesses, no cause of the alleged quarrel between the appellant on the

one hand and the complainant and his companion on the other hand was

suggested. In these circumstances, it would be difficult to accept the

plea that there was a quarrel which resulted in the appellant as well as

the complainant and his companion getting injured.

10. The deposition of PW-1 Virender Singh and PW-2 Mangal,

corroborated their respective medical examination, would show that the

complainant was robbed of his mobile phone and Rs 150/- in cash and

both the complainant as well as his companions were also given injuries

during the course of incident. He has, therefore, rightly been convicted

under Section 394 of IPC read with Section 34 thereof. However, there

could be no separate conviction under Section 392/34 of IPC when the

appellant has already been convicted under Section 394/34 of the Indian

Penal Code. As far as Section 397 IPC is concerned, it only prescribes

an enhanced punishment in case a deadly weapon is used during the

commission of robbery or grievous hurt is caused to a person or attempt

to cause death or grievous heart is made. Therefore, no separate

conviction under Section 397 of IPC is made out.

11. For the reasons stated hereinabove, the conviction of the appellant

under Section 394/34 of IPC is maintained. Rest of his conviction is set

aside. The appellant is sentenced to undergo RI for three years and to

pay a fine of Rs 1,000/- or to undergo SI for 15 days in default.

The appeal stands disposed of accordingly.

One copy of this order be sent to the concerned Jail

Superintendent for information and necessary action.

The LCR be sent back along with copy of the judgment.

MARCH 07, 2014                                          V.K. JAIN, J
BG