Delhi High Court
Firoz And Another vs The State on 22 May, 2014
Author: S. P. Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 19th MAY, 2014
DECIDED ON : 22nd MAY, 2014
+ CRL.A. 512/2011
FIROZ AND ANOTHER ..... Appellants
Through : Mr.Sunil Tiwari, Advocate.
Versus
THE STATE ..... Respondent
Through : Mr.M.N.Dudeja, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Challenge in this appeal is to a conviction recorded by a
judgment dated 19.02.2011 of learned Addl. Sessions Judge in Sessions
Case No. 63/2008 arising out of FIR No. 93/2008 PS New Usmanpur
under Sections 392/394/397/34 IPC. By an order dated 17.03.2011, the
appellants were awarded various prison terms with fine.
2. Allegations against the appellants as projected in the charge-
sheet were that on the night intervening 18/19.04.2008 at about 12.30
A.M. at 2nd pushta, Khajuri, they with their associate Robin (facing trial
before Juvenile Board) robbed complainant - Narender Singh Rawat of
`380/- at knife point and inflicted injuries to him. Police machinery was
set in motion when incident was reported and Daily Diary (DD) No. 44B
was recorded at 03.45 (night) at Police Station New Usmanpur. The
appellants were apprehended at the pointing out of the complainant and
the robbed articles were recovered from their possession. Statements of
the witnesses conversant with the facts were recorded. After completion
of investigation, a charge-sheet was submitted against the appellants; they
were duly charged and brought to trial. To prove its case, the prosecution
examined nine witnesses. In 313 statements, the appellants denied their
complicity in the crime and pleaded false implication. The trial resulted in
their conviction as aforesaid. Being aggrieved and dissatisfied, they have
preferred the appeal.
3. Appellants' counsel urged that the Trial Court did not
appreciate the evidence properly and ignored the discrepancies in the
prosecution case without any valid reasons. The Investigating Officer did
not move any application for conducting Test Identification Proceedings.
The appellants were shown to the complainant in the police station. No
independent public witness was associated at any stage of investigation.
Learned Addl. Public Prosecutor urged that the complainant has fully
supported the prosecution case and despite searching cross-examination,
his testimony could not be shattered.
4. The crucial testimony is that of the complainant - Narender
Singh Rawat at whose instance the appellants were apprehended soon
after the incident. The occurrence took place at around 12.30 (night) and
the incident was reported to the police at 03.45 (night) when DD No. 44B
(Mark P-9/A) was recorded. The victim was medically examined vide
MLC (Ex.PW-6/A) at Guru Teg Bahadur Hospital. Nature of injuries was
opined as 'simple' caused by sharp object. In his statement (Ex.PW-1/A)
which formed the basis of First Information Report, the complainant gave
detailed account as to how and under what circumstances, three assailants
robbed him of ` 380/- when he was returning to his house from the
hospital at 12.30 (night) and was also inflicted injuries by a knife. While
appearing as PW-1, the complainant fully supported the prosecution and
proved the version given to the police at the first instance without any
variation. He identified the appellants and attributed specific role to them
in committing robbery. He also deposed that both the appellants were
apprehended and the robbed cash ` 380/- and an 'ustra' was recovered
from Firoz @ Sameer's possession. Suraj was also found in possession of
a knife. He identified the kurta (Ex.P1) which he was wearing on the day
of incident and was seized by the police having blood stains. He also
identified 'ustra' (Ex.P2) and knife (Ex.P3) used in the crime. Despite
lengthy cross-examination, no material discrepancies could be extracted to
disbelieve him. He disclosed that he was alone on the bicycle at the time
of incident. There were not too many public persons present at the place
of occurrence. The incident was over in 2 or 3 minutes. Nothing was
suggested to him as to when and where the appellants were shown in the
police station. Prosecution case from the very inception was that the
appellants were arrested at the pointing of the complainant soon after the
occurrence. There was no question of the police showing the appellants in
the police station. The complainant had no animosity or acquaintance with
the appellants prior to the incident to falsely name and implicate them. He
was not going to be benefited by falsely attributing precise role to them.
The accused persons did not give plausible explanation to incriminating
circumstances against them. The complainant's statement is in
consonance with medical evidence.
5. All the relevant contentions of the appellants have already
been considered with reasons in the impugned judgment which needs no
intervention. The minimum sentence prescribed under Section 397 IPC
cannot be modified or altered.
6. The provisions of Section 397 IPC do not create any new
substantive offence as such. Section 397 IPC simply prescribes a
minimum sentence for the offence of robbery / dacoity under the
aggravating circumstances. It regulates only the substantive sentence
which cannot be less than seven years. Apparently, Section 397 IPC does
not prescribe imposition of fine. Since the appellants were sentenced to
pay fine under Sections 392/394 IPC, imposition of fine under Section
397 IPC is not permissible and is set aside. Sentence order is modified to
the extent that default sentence for non-payment of fine ` 10,000/- under
Sections 392/394 IPC shall be SI for fifteen days, each.
7. In the light of above discussion, the appeal stands disposed of
in the above terms. 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
