Delhi High Court

Abhishek @ Pritam vs State Of The Nct Of Delhi on 12 February, 2015

Author: Sunita Gupta

*   IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of Decision:   12th February, 2015

+   CRL.A. 338/2012 & Crl. M.A. 972/2014

    ABHISHEK @ PRITAM                                 ..... Appellant
                 Through:           Ms. Anita Abraham, Advocate
                                    Appellant produced in judicial
                                    custody.
                        versus

    STATE OF THE NCT OF DELHI               ..... Respondent
                  Through: Mr O.P. Saxena, APP for State
                           along with SI Naubat Ram, PS
                           Mandir Marg, Delhi.

    CORAM:
    HON'BLE MS. JUSTICE SUNITA GUPTA

                                 JUDGMENT

: SUNITA GUPTA, J.

1. This is an appeal u/s 374 (2) Cr.P.C. against the judgment

and order dated 23.11.2011 and 26.11.2011 respectively passed by

learned Additional Sessions Judge, Patiala House Court in SC No.

16/11 pertaining to FIR No.13/11 u/s392/394/397/411/34 IPC

registered with PS Mandir Marg.

2. On 18th January, 2011, at about 9:00-9:30 pm, PW8-Dinesh

Das was going from Shivaji Stadium to Block No.85, Kalawati

Hospital by the side of wall of Lady Harding Medical College.

Two boys came from opposite side and hit him. One of the boys

pressed his neck with one hand and from another hand started hitting

him with a knife. He caught hold of his hand in which he was

holding the knife and twisted the same as a result of which he

sustained injuries on both of his hands. By that time, his associate

removed his mobile phone from back pocket of his pant and

Rs.8000/- from front pocket of the pant. In the meanwhile, some

passersby came to his rescue. On seeing them, the boy who was

aged about 20-21 years and had removed his mobile and money, ran

away. However, the boy who caught his neck was apprehended by

him. Some passersby informed the police who reached the spot.

The boy who was apprehended at the spot came to be known as

Abhishek S/o Shiv Bahadur. On receipt of information, ASI

Narender Singh, In charge of PCR No.5498 reached the spot along

with PCR staff and found complainant Dinesh and accused

Abhishek in injured condition. One razor/ustra was in possession of

Abhishek and he was informed by the injured that he was robbed by

Abhishek with his other associate who had succeeded to run away

from there and he has been robbed of his mobile phone and a sum of

Rs.8000/-. ASI Narender Singh removed both the injured to RML

Hospital. He came to know that Abhishek was beaten by the public

persons. On receipt of call regarding the robbery incident, Head

Constable Devender reached the spot where he came to know that

injured victim along with accused have been taken to RML Hospital

by PCR, as such, he went to RML Hospital, collected MLCs of

Dinesh Prasad, Ex.PW3/A and accused Abhishek, Ex. PW3/C. Both

were declared fit for statement by the doctor. As such, he recorded

the statement of injured victim Dinesh, Ex.PW7/A, prepared rukka

Ex.PW7/B and sent the same through Constable Rajiv for

registration of FIR. Further investigation was entrusted to ASI Suraj

Bhan. However, when Head Constable Devender came out from the

Emergency and went to PCR, RML Hospital where PCR officials

handed over one broken razor/ustra. He prepared the sketch of

Ustra, Ex.PW1/A and seized the same vide memo Ex.PW1/B.

Thereafter he along with accused Abhishek and complainant Dinesh

went to the place of incident where accused pointed out the place of

incident vide pointing out memo Ex.PW7/C. Accused Abhishek

was arrested vide memo Ex.PW7/D. The Investigating Officer lifted

the blood, earth control sample, one piece of stone having blood

stains, one muffler, blood stained woollen gloves from the spot vide

different seizure memos. Search was made for the co-accused who

was not traceable. Subsequently, on 4th March, 2011, on the basis of

secret information, accused Vikaram Thapa was arrested and one

mobile phone belonging to the complainant was recovered from

right pocket of his pant.

3. During the course of investigation, the pullanda containing

razor was produced before the doctor for obtaining his subsequent

opinion and it was opined that the weapon of offence was a deadly

weapon. After completing investigation, the charge sheet was

submitted u/s 392/394/397 IPC against both the accused. Both the

accused pleaded not guilty to the charge and claimed trial.

4. In order to substantiate its case, prosecution in all examined

12 witnesses to substantiate the charge. In statement u/s 313 Cr.P.C.

the accused persons denied their complicity in the crime and pleaded

false implication.

5. On appreciating the evidence and after considering the rival

submissions of the parties, the learned Trial Court by impugned

judgment dated 23rd November, 2011 convicted accused Abhishek

u/s 392/394/34 IPC and Section 397 IPC. He was sentenced as

under:-

"(a) RI for 5 years and fine of Rs.2000/- u/s 392/394/34 IPC, in default of payment of fine to further undergo SI for two months;

(b) RI for 7 years and fine of Rs.2,000/- u/s 397 IPC, in default of payment of fine to further undergo SI for 3 months.

All the sentences were to run concurrently. Benefit of S.428 Cr.P.C was also given."

6. Co-accused Vikram Thapa was also convicted u/s 392/394/34

IPC besides Section 411 IPC and sentenced separately. All the

sentences were to run concurrently.

7. Being aggrieved and dissatisfied, the present appeal has been

preferred by the appellant Abhishek. Assailing the findings of

learned Trial Court, Ms. Anita Abraham, Advocate for the appellant

submitted that the whole case hinges on the testimony of the

complainant, however, there is substantial variation in the initial

complaint lodged by him with the evidence as in the initial

complaint, there was no mention regarding ustra/razor and only one

weapon of offence was shown whereas in his deposition before the

Court, he has deposed that both the accused were armed with

razor/ustra and knife. Further the person who was armed with knife

was alleged to have been apprehended by him at the spot, however,

the accused is alleged to have been apprehended at the spot and one

razor was recovered from him. Under the circumstances, testimony

of this witness is not liable.

8. Furthermore PW1-ASI Narender Singh did not appear for

completing his statement in order to identify the ustra which was

allegedly handed over to him at the spot. Even no offence u/s 394

IPC is made out as only simple injuries were inflicted on

complainant. Even offence u/s 397 IPC is not made out as the size

of the knife/razor was not given and it is not a deadly weapon.

Under the circumstances, it was submitted that prosecution has

failed to bring home the guilt of the accused beyond reasonable

doubt. Even otherwise, the accused has remained in custody for

more than 4 years, as such, he be released on the period already

undergone.

9. Per contra, it was submitted by Sh. O.P. Saxena, learned

Additional Public Prosecutor for the State that the accused was

apprehended at the spot and razor was recovered from his possession

which has been opined to be a deadly weapon by the doctor. There

is absolutely no reason to falsely implicate the accused in this case.

Under the circumstances, the impugned judgment does not suffer

from any infirmity which calls for any interference.

10. The star witness of the prosecution is PW8-Dinesh Dass who

has reiterated the averments made by him in his initial complaint

Ex.PW7/A. He testified that on 18th January, 2011 at about 9:00-

9:30 PM, he was going from Shivaji Stadium to Block No. 85

situated in front of Kalawati Hospital by the side of the wall of Lady

Harding Medical College. Two persons came. One pressed his neck

and another started beating him with fist and the second boy robbed

him of Rs.8000/- and mobile phone make Nokia. At that time, one

person was having razor/ustra in his hand while another was having

knife in his hand and they caused him injury with ustra and knife.

On hearing his alarm, some public persons came to his rescue and

one was caught hold by him while the other managed to escape.

Some public persons made a call to PCR. He identified the person,

who was caught by him at the spot as Abhishek from whom

ustra/razor was recovered. Accused was given beatings by the

public. As such, he along with the said boy was taken by PCR

officials to RML Hospital. From the hospital, he along with the

police went to the place of incident where at his instance, site plan

was prepared. Police seized blood stained muffler, hand gloves,

blood stained soil with leaves from the spot and seized vide separate

seizure memos. His statement was recorded by the police. Accused

was also arrested. Subsequently, after the arrest of co-accused, he

had gone to Tihar Jail for the purpose of identification but the

accused refused to participate in the TIP. He got the mobile phone

released on superdari.

11. Although, it is true that certain variation has appeared in the

testimony of this witness regarding the weapons which the accused

were having at the time of commission of robbery inasmuch as in

the initial complaint, he had mentioned that one of the accused was

armed with knife whereas in his deposition before the Court he has

mentioned that one was armed with razor/ustra and another was with

knife. However, this discrepancy does not go to the substratum of

the case keeping in view the fact that accused Abhishek was

apprehended at the spot by the public and was given beatings. A

call was also made by the public to the police officials with the

result ASI Narender Singh reached the spot where complainant and

accused were found in injured condition. Razor was in possession of

accused Abhishek which was taken into possession and was

subsequently, handed over to the police. ASI Narender Singh was

initially examined on 18th July, 2011 but his statement was deferred

for want of case property and thereafter it seems that this witness

was not produced for completing his statement. However, that itself

is not fatal keeping in view the fact that it has come in the testimony

of PW7 Head Constable Devender that on receipt of call regarding

an incident of robbery near Jain Happy Public School, he reached

the spot and came to know that the injured/victim along with

accused has been removed to RML Hospital by PCR. As such, after

leaving Constable Rohit at the spot, he went to RML Hospital where

he was handed over the broken ustra which was taken into

possession vide seizure memo Ex.PW1/B. Therefore, not only the

fact that accused was apprehended at the spot but even the weapon

of offence was recovered from his possession at the spot.

Furthermore, he was given beatings by the public with the result he

along with injured were taken to hospital and his MLC Ex.PW3/C

was prepared by Dr. Nivedita which was proved by PW3-Sh. S.

Mehto, Medical Record Technician, RML Hospital since the doctor

has left the hospital. Similarly, Ex.PW3/A-MLC of Dinesh Prasad/

complainant was prepared by Dr. Pomany who had also left the

hospital and, therefore, the MLC was proved by Dr. S. Mehto. The

factum of apprehension of the accused at the spot coupled with the

recovery of weapon of offence at the spot from his possession

corroborates the version of complainant. Moreover, although the

complainant was subjected to lengthy cross-examination, however,

nothing material could be elicited to discredit his testimony.

Accused is not alleging any enmity, ill will or grudge against the

complainant for which reason he would falsely implicate him in this

case. Moreover, the deposition of the complainant that the other

accused removed his mobile and a sum of Rs.8000/- finds

corroboration from the fact that on 4th March, 2011, on the basis of

secret information, co-accused Vikram Thapa was apprehended and

from his possession, one mobile phone belonging to the complainant

was recovered. Besides that, the blood stained muffler and gloves

belonging to the complainant and other articles lying at the spot

were seized which were sent to FSL. As per the reports of FSL, Ex.

PW11/D and PW11/E given by Dr. Rajender Kumar, Assistant

Director, FSL Rohini, Delhi, blood was detected on a piece of stone,

pair of gloves, muffler and blood stained earthy material which was

of human origin, however, the grouping of the blood could not be

given.

12. The submission of learned counsel for the appellant that no

case u/s 394 IPC is made out, inasmuch as, as per the MLC, there

was only simple injury on the person of complainant, the same is

devoid of merit, inasmuch as, Section 394 IPC provides for

"voluntarily causing hurt in committing robbery". This Section reads

as under:-

"394. Voluntarily causing hurt in committing robbery.--If any person, in committing or in attempting to commit robbery, voluntarily causes hurt, such person, and any other person jointly concerned in committing or attempting to commit such robbery, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."

13. Section 319 of Indian Penal Code provides for "hurt" and it

reads as follows:-

"319. Hurt.--Whoever causes bodily pain, disease or infirmity to any person is said to cause hurt."

14. Section 321 provides for "voluntarily causing hurt" which

reads as under:-

"321. Voluntarily causing hurt.--Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge

that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

15. The combined reading of these provisions goes to show that

causing of grievous hurt is not the sine qua non for bringing the

offence within the four corners of Section 394. The Section speaks

about causing hurt and the same may also be simple. As per the

MLC, the complainant/injured sustained CLW 5cm x 1 cm over left

palm. Although no final opinion has been obtained but the fact

remains that the injuries on the palm of the complainant can be

considered to be simple, as such, falling within the four corners of

Section 394 IPC.

16. The last limb of argument that Section 397 IPC is not

attracted inasmuch as the weapon of offence was not a deadly

weapon, the same is also devoid of merit as it has come in the