Sher Khan vs The State
2014 Latest Caselaw 2629 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 15th MAY, 2014
                              DECIDED ON : 22nd MAY, 2014

+             CRL.A. 985/2011 & CRL.M.B.No.560/2014

       SHER KHAN                                        ..... Appellant

                          Through :   Mr.Imran Khan, Advocate.

                          Versus

       THE STATE                                        ..... Respondent

                          Through :   Mr.Lovkesh Sawhney, APP.


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

S.P.GARG, J.

1. Challenge in this appeal is to a conviction recorded under

Sections 392/397/34 IPC by a judgment dated 28.05.2011 of learned

Addl. Sessions Judge in Sessions Case No. 118/10 arising out of FIR No.

90/2010 PS Kalyan Puri. By an order dated 01.06.2011, he was sentenced

to undergo RI for seven years with fine ` 1,000/-.

2. Briefly stated, the prosecution case as projected in the

charge-sheet was that on 26.03.2010 at about 11.00 P.M. at Khichripur

Main Road, near Community Bhawan, Delhi, he and his associate Sikku

(nor attested) robbed Jitender Bhati of ` 1,200/- and a gold chain at knife

point. The police machinery came into motion on getting information of

the incident at 2316 hours and Daily Diary (DD) No. 94B (Ex.PW-15/A)

came into existence. HC Sukhvir Singh to whom the investigation was

assigned went to the spot along with Const.Bijender and came to know

that the victim had already been taken to Lal Bahadur Shastri Hospital,

Khichripur, Delhi. He recorded complainant - Jitender Bhati's statement

(Ex.PW-1/A) there and lodged First Information Report. Efforts were

made to find out the culprits but in vain. On 07.04.2010, the appellant was

arrested in case FIR No.107/10 PS Kalyanpuri. His involvement in the

incident emerged pursuant to disclosure statement recorded therein. The

accused declined to participate in the Test Identification Proceedings.

Statements of the witnesses conversant with the facts were recorded. After

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

appellant; he was duly charged and brought to trial. To prove its case, the

prosecution examined fifteen witnesses. In 313 statement, the appellant

pleaded false implication stating that his previous involvement in some

criminal cases led the police to apprehend him as suspect in this case. He

did not examine any witness in defence. The trial resulted in his

conviction as aforesaid. Being aggrieved and dissatisfied, he has preferred

the appeal.

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

appreciate the evidence in its true and proper perspective. No crime

weapon or robbed article was recovered from the appellant's possession

who was arrested in some other case after about ten days of the incident.

PW-4 (Deepak Nagar) disclosed in his statement before the Court that the

appellant was known to him for the last two or three years and he resided

in a nearby locality. Despite that, the appellant was not named in the First

Information Report. The police was unable to apprehend and arrest Sikku.

It is unclear as to which of the assailants had inflicted injuries to the

complainant by a knife. Learned Addl. Public Prosecutor urged that the

complainant, PW-2 (Mahkar Singh) and PW-4 (Deepak Nagar) have fully

supported the prosecution case and no material discrepancy could be

extracted to disbelieve them.

4. The incident took place at around 11.00 P.M. on 26.03.2010

when the complainant and his cousin Mahkar Singh were going to see his

Bua - Bala residing at house No.147, Village Khichripur. They were way-

laid by the assailants who robbed the complainant of ` 1,200/- and gold

chain at knife point and also inflicted injuries to him. The injured was

taken to Lal Bahadur Shastri Hospital and was medically examined by

MLC (Ex.PW-10/A). It records the arrival time of the patient at 11.20

P.M. He was admitted by Deepak Nagar (PW-4). Six incise stab wounds

were found on the body. PW-10 (Dr.K.Tyagi) medically examined him

and the nature of injuries was given as 'simple' caused by sharp object. In

the First Information Report lodged in promptitude, the complainant gave

vivid description of the incident in which he was not only robbed but was

also injured. While appearing as PW-1, he fully supported the prosecution

and proved the version given to the police at the first instance without any

variation. He identified the appellant as one of the assailants who was

armed with a knife and inflicted injuries to him while committing robbery

on his person. In the cross-examination, his testimony could not be

shattered and no discrepancies or contradictions could be elicited to

disbelieve him. No ulterior motive was assigned to the complainant to

falsely recognise and identify the appellant as one of the assailants. The

complainant had no prior animosity or acquaintance with the appellant to

falsely rope him as he was a resident of village Khodna Kala outside

Delhi. Multiple injuries were sustained by him in the incident and he was

not expected to let the real culprit / offender go scot free and to name an

innocent one. The appellant declined to participate in the Test

Identification Proceedings. Adverse inference is to be drawn against him

for that. Nothing has come on record to show if the appellant was shown

in the police station. No such suggestion was put to the complainant in the

cross-examination if he had visited the spot or the police station at any

time after the incident where the appellant was shown to him. Statement

of the complainant is in consonance with medical evidence and there is no

variance between the two. In the absence of prior enmity, the injured /

victim cannot be disbelieved. The Trial Court specifically observed in the

statement of the complainant that he was having 4 inches stab injury mark

on his left cheek. PW-2 (Mahkar Singh) who fled the spot due to fear

brought Deepak Nagar from the residence of complainant's bua and

thereafter, the victim was taken to Lal Bahadur Shastri Hospital. He also

identified the appellant as one of the assailants who had taken out a knife

to assault Jitender Bhati.

5. It is true that PW-3 (Deepak Nagar) in his deposition before

the Court claimed that the appellant Sher Khan was known to him for last

two or three years as he lived in the same village Khichripur. It is also true

that the appellant was not named in the First Information Report and his

involvement in the present case surfaced only after he made disclosure in

case FIR No.107/10 PS Kalyanpuri in which he was arrested on

07.04.2010. It appears that Deepak Nagar was not a witness to the

incident and was introduced as such to strengthen the prosecution case.

PW-2 (Mahkar Singh) has stated that when he and Deepak Nagar arrived

at the spot, none of the assailants was present at the spot. It is unbelievable

that the assailants would remain present at the spot for long duration after

robbing the complainant. Exclusion of Deepak Nagar's statement from

consideration would not dilute or discredit the otherwise cogent and

clinching evidence of the complainant coupled with medical evidence.

Recovery of the crime weapon or robbed articles is not fatal to the

prosecution as the appellant could be arrested only after about ten days of

the incident. The appellant did not give plausible explanation to the

incriminating circumstance appearing against him. The complainant

attributed specific and precise role to him in the incident. The weapon

used was apparently 'deadly' as number of incised stab wounds were

inflicted and one of the wounds as observed by the Trial Court was of 4

inches in size. The minimum sentence prescribed under Section 397 IPC

is seven years which cannot be modified or altered.

6. In the light of above discussion, the appeal is unmerited and

is dismissed. Pending application also stands disposed of. Trial Court

record be sent back immediately with the copy of the order. A copy of the

order be sent to the Superintendent jail for information.

(S.P.GARG) JUDGE MAY 22, 2014/tr