Delhi High Court
Praveen vs State on 14 May, 2015
$~13.
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Date of Decision: 14.05.2015
% CRL.A. 322/2015
PRAVEEN ..... Appellant
Through: Mr. Dinesh Malik & Mr. Gurpreet
Singh, Advocates.
versus
STATE ..... Respondent
Through: Mr. Lovkesh Sawhney, APP along
with SI Roshan Lal, PS-Nangloi, for
the State.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
VIPIN SANGHI, J. (OPEN COURT)
1. The present appeal is directed against the judgment dated 20.09.2014
passed by Sh. Naresh Kumar Malhotra, Additional Sessions Judge-05, West,
Tis Hazari Courts, Delhi in Sessions Case No. 49/14 (Old No.37/13) arising
out of First Information Report (FIR) No.50/2011 registered at Police
Station - Nangloi under Sections 392/34 I.P.C. and Sections 25/54/59 of the
Arms Act.
2. I may notice that the charge framed against the appellant under
Sections 392/34 IPC and Section 397 IPC, to which the appellant and the co-
accused pleaded 'not-guilty'.
3. The case of the prosecution, taken note in the impugned judgment, is
that on receipt of DD no. 39A, PW-8 ASI Shiv Narain went to the spot,
where the complainant/PW-1 met him. The complainant produced one knife
and handed over the accused Praveen to him. The complainant also gave his
statement to ASI Shiv Narain, wherein he has stated that he is running a
Chemist shop. On 28.02.2011, at about 6.10 PM, he was sitting at his shop.
Three boys came on a black colour Pulsar motorcycle. Two boys came into
the shop and one boy remained seated on the motorcycle. Those two boys
demanded money from the complainant. On the complainant questioning
them "Kis Cheez Ke Paise" one boy stated that "I am the 'DAADA' of this
area and my name is Kale", and he put a knife on the left side of the stomach
of the complainant and other boy took Rs.12,000/- from the pocket of the
complainant. Both those boys left the shop, while abusing the complainant.
When the complainant raised an alarm, his neighbour Dharampal S/o late
Diwan Chand/PW-4 came there and some passersby also collected there. All
the three boys tried to flee from the spot. Two boys succeeded in fleeing
from the spot on the motorcycle, while the third boy was apprehended by the
complainant with the aid of the public persons and he disclosed his name as
Praveen @ Kale. The complainant also stated that out of the two boys who
had fled away from the spot, one of them was the brother of accused
Praveen Kumar, and he can identify him.
4. On the search of accused Praveen, a button actuated knife was
recovered from the right side pocket of his pant. Thereafter, investigation
was carried out. Knife was taken into possession vide seizure memo Ex.PW-
1/C. Sketch of the knife was prepared vide Ex. PW1/B. The accused Praveen
was got medically examined at Sanjay Gandhi Memorial Hospital,
Mangolpuri vide MLC Ex. PW8/A-1. Motorcycle bearing no. DL4SBK-
1076 was recovered at the instance of accused Praveen Kumar. Accused
Manoj Kumar was also arrested during the investigation.
5. The prosecution examined eight witnesses, the material witnesses
being Sh. Ramesh Kumar, the complainant/ victim as PW-1; Sh. Dinesh
Kumar, the eye-witness as PW-5, and; ASI Shiv Narain, the Investigating
Officer (IO) as PW-8. Ashok Kumar (PW-2) is the Beat Constable, who had
taken the appellant/ accused to the hospital for his medical examination.
The statement of the accused Praveen was recorded under Section 313
Cr.P.C. in which the incriminating evidence was put to him. The accused
stated that he had received injuries due to beatings by the complainant
Ramesh Kumar/PW-1 along with his known persons, on account of his
quarrel with the complainant over some issue. He claimed that the
complainant, to save himself from the criminal liability, had falsely
implicated the accused in the present case.
6. The accused also led evidence of two witnesses - Sh. Dalbir Singh as
DW-1 and Sh. Kuldeep Singh as DW-2.
7. Ramesh Kumar (PW-1) deposed that on 28.02.2011 at about 06:10
p.m. he was sitting in his Chemist shop at D-39, 40 Foota Road, Rajdhani
Park, Nangloi, New Delhi. At that time, one black motor cycle Pulsar came.
Two out of the three riders got down from the motor cycle and came to his
shop and they asked him to give money. He refused to give the money and
asked "kis cheez ke paise", on which, one of them said to PW-1 that, did he
not know that he was a dada of the area, and he disclosed his name as Kale.
He further stated that the boy who called himself as Kale, put a knife on the
left side of the stomach of PW-1, and the second boy took out Rs.12,000/-
from his pocket. Both of them abused him filthily and left the shop. He
further stated that he raised an alarm. Upon this, his neighbor Sh. Dharam
Pal (PW-4) and some public persons came there. They apprehended the
accused Kale and also gave beatings to him. The accused gave his name and
address. On his search, one knife was recovered from the right side of his
pant. The second boy, who snatched money from the complainant, ran away
on the motor cycle on which a third boy was waiting. They ran away upon
hearing Kale (accused) shout "bhaag bhai bhaag". The complainant then
informed the police on the number '100'. The Police Control Room (PCR)
Van and the local police arrived at the spot and the statement of PW-1 was
recorded, which is Ex.PW-1/A. The accused Praveen was handed over to
the police with the knife. PW-1 proved the sketch of the knife as Ex.PW-
1/B. He also proved the seizure memo as Ex.PW-1/C. The accused was
arrested vide arrest memo, which is Ex.PW-1/D and the personal search
memo of the accused was exhibited as Ex.PW-1/E. PW-1 also identified the
knife as Ex.P-1.
8. Constable Ashok Kumar (PW-2) deposed that on 28.02.2011 at about
06:30 P.M. on receipt of D.D. No.39/A by ASI Shiv Narain, he along with
ASI Shiv Narain went to H. No.D-39, 40 Foota Road, Rajdhani Park,
Nangloi, New Delhi. Public persons had gathered there. The complainant
met him and handed over Praveen @ Kale along with a buttondaar knife.
ASI Shiv Narain recorded the statement of the complainant - PW1, and ASI
Shiv Narain was handed over the custody of the accused Praveen. In the
meantime, Constable Ramesh also arrived at the spot. PW-2 also proved the
sketch of the knife, which was Ex.PW-1/B and the seizure memo (Ex. PW-
1/C). He stated that he had prepared the Rukka and handed over the same to
Constable Ramesh Kumar for getting the FIR registered. He also got the
accused Praveen medically examined. He proved the arrest memo as
Ex.PW-1/D, his personal search memo as Ex.PW-1/E and his disclosure
statement as Ex.PW-2/A. He too identified the knife as Ex.P-1.
9. Sh. Dharam Pal (PW-4) deposed that he ran a shop of readymade
garments on the ground floor. He was present at the first floor in his house
to take dinner, and on hearing noise of quarrel he came done. He further
stated that he was a crowd of public persons and that he did not see anything
else.
10. I may observe that PW-4 turned hostile and was, accordingly, cross-
examined by the learned APP for the State. He resiled from his previous
statement and he denied all the suggestions put to him in his cross-
examination by the learned APP. However, he admitted that Ex.PW-1/C
(Seizure Memo), Ex.PW-1/D (Arrest Memo), Ex.PW-1/E (Personal search
memo of Parveen @ Kale) and Ex.PW-1/F (Personal search memo of Manoj
Kumar) bear his signature. He denied that he had been won over by the
accused persons and was deliberately suppressing the truth in order to save
the accused persons.
11. Constable Ramesh Chand (PW-7), inter alia, deposed that the accused
Parveen during his PC remand got recovered one motor cycle DL4SBK-
1076 from his house. He proved the seizure memo-cum-pointing out memo
of the motor cycle as Ex.PW-1/A.
12. ASI Shiv Narain (PW-8) deposed that on 28.02.2011, he was on
emergency duty from 08:00 a.m. to 08:00 p.m. and while on duty at 06:30
p.m., he received D.D. No.39/A (Ex.PW-8/A) regarding quarrel at D-39, 40
Foota Road, Rajdhani Park, Nangloi, New Delhi. He states that he along
with Constable Ashok Kumar reached the place of incident where the crowd
had gathered near D-39, 40 Foota Road, Rajdhani Park, Nangloi, New Delhi
in which the Chemist shop was being run. Amongst the crowd one person
namely Ramesh Kumar came forward and he produced one boy whose name
was revealed as Praveen @ Kale along with a gararidaar knife which could
be operated with button. He deposed that the complainant Ramesh Kumar
gave statement regarding robbery of Rs.12,000/- from him by three persons,
including the accused, who came to his chemist shop on a black colour
Pulsar motor cycle. He deposed that he recorded the statement of Ramesh
Kumar as Ex.PW-1/A and prepared the sketch plan of the knife as Ex.PW-
1/B. He proved seizure memo of the knife as Ex.PW-1/C and the Rukka as
Ex.PW-8/A. He states that the same was given to Constable Ramesh Chand
for getting the FIR registered at P.S. Nangloi. He further deposed that the
accused Parveen @ Kale was beaten by the public persons and, therefore, he
sent him to Sanjay Gandhi Memorial Hospital through Constable Ashok
Kumar. He also proved the site plan as Ex.PW-8/B. He stated that he
arrested the accused vide the arrest memo Ex.PW-1/D and his personal
search memo was proved as Ex.PW-1/E. The disclosure statement of the
accused Parveen @ Kale was exhibited as Ex.PW-2/A.
13. At this stage, I may take note of the following extract in the impugned
judgment in relation to the deposition of PW-8:
"... ... ... ... ... He has further stated that during disclosure
statement, the accused Praveen had disclosed that he had
parked the motorcycle which was used by them during incident
at his house."
14. In his testimony of PW-8, the following is, inter alia, recorded:
"... ... ... ... ... During disclosure statement, the accused had
disclosed that he had parked the motorcycle which was used by
them during incident at his house ... ... ... ... ..."
15. However, the disclosure statement (Ex. PW-2/A) recorded by PW-8
does not make any such disclosure with regard to the Pulsar motor cycle
having been parked by the accused at his house. A perusal of the disclosure
statement (Ex. PW-2/A) shows that the accused only stated that he could get
the said motor cycle recovered. PW-8 further stated that on the next day, i.e.
on 01.03.2011, two days police remand was obtained from the learned MM.
During the PC remand the accused Praveen @ Kale led them to a house
from where he got recovered the black colour Pulsar motor cycle DL4SBK-
1076. The seizure memo of the motor cycle was proved by PW-8 as
Ex.PW-7/A. PW-8 also exhibited the MLC of the accused Praveen @ Kale
done on 28.02.2011 as Ex.PW-8/A1. Thus, it is evident that the testimony of
PW-8 was apparently not consistent with the disclosure statement
(Ex.PW2/A), and appears to be an obvious error in the recording of the
statement of PW-8 which has crept into the impugned judgment as well.
16. On the basis of the evidence led before the Trial Court, the appellant
was convicted, as aforesaid, and sentenced vide order on sentence dated
24.09.2014 with seven years Rigorous Imprisonment (RI) with fine of
Rs.1,000/- for the offence punishable under Sections 392/ 34 I.P.C. and on
failure of payment of fine, to undergo RI for a further period of two months.
He was also sentenced to undergo RI for seven years with fine of Rs.1,000/-
for the offence punishable under Section 397 I.P.C. and in default of
payment of fine, to further undergo RI for two months. He was also
sentenced to undergo RI for one year for the offence punishable under
Sections 25/ 54/ 59 of the Arms Act. The sentences were directed to run
concurrently. Benefit of Section 428 Cr.P.C. was given to the convict/
appellant.
17. The submission of learned counsel for the petitioner, firstly, is that the
complainant (PW-1) has not narrated that after he had been robbed by
showing the knife, the appellant had closed the knife while leaving the shop.
He submits that if the appellant was running after committing the robbery,
his knife would have been in his hand in an open condition, which he would
have used to ward off the crowd, which had gathered on an alarm being
raised by the complainant (PW-1).
18. Learned counsel further submits that there is a material contradiction
on the aspect of the identity of the person who recovered the knife from the
accused. PW-1 deposed in his cross-examination that the knife was
recovered from the possession of the accused by the persons who had
collected at the spot and had taken the search of the accused. He stated that
the police had not recorded who had taken the search of the accused Praveen
and recovered the knife. He did not know the name of the person who had
taken search of the accused. However, PW-8 had deposed that the
complainant Ramesh Kumar had produced the knife before him at the spot
and he had told PW-8 that he himself had snatched the knife from the
accused Praveen.
19. Learned counsel submits that it is highly unlikely that in a chemist
shop only the owner would be present. He further submits that PW-1 had
stated that he had an employee working with him, but he was on leave on
the date of the incident. He submits that it was unusual that there was no
customer, or person present in the shop. He further submits that it was also
unusual that on an alarm being raised only Sh.Dharam Pal (PW-4) had
apprehended the accused. Even Sh. Dharam Pal (PW-4) had turned hostile
and did not support the case of the prosecution.
20. Learned counsel submits that the complainant himself made the call to
the police on number '100' and D.D. No.39A (Ex. PW-8/A) was recorded at
06:30 p.m. This D.D. entry was in relation to a quarrel (jhagdaa) and not in
relation to a robbery (lootpaat). He submits that had the robbery been
committed, the D.D. entry would have recorded the position accordingly.
He, therefore, submits that this throws a doubt on the case of the
prosecution.
21. Learned counsel has also referred to the testimony of Sh. Dharam Pal
(PW-4), who responded to the alarm raised by the complainant. He stated
that on 28.02.2011, he saw present on the first floor of his house and was
about to take his dinner when, at about 06:30 p.m., he heard noise of quarrel
and came down. He saw a crowd of public persons and he did not see
anything else. He stated that the police did not record his statement.
Learned counsel submits that PW-4, upon his cross-examination by the
learned APP, further stated that he was asked to sign already prepared
documents after about 10 to 15 minutes of the incident. He denied the
suggestion that he had signed the documents Ex.PW-1/B, Ex.PW-1/C,
Ex.PW-1/D, Ex.PW-1/E and Ex.PW-1/F of his own. He also denied that he
had been won over by the accused and that he was deliberately suppressing
the truth. He deposed that he had signed the aforesaid documents without
going through the contents and under the pressure of the Investigating
Officer (IO).
22. Learned counsel submits that even though the appellant allegedly
made a disclosure statement that he could get the motor cycle recovered, and
his disclosure statement was recorded on 28.02.2011 itself, the police did
not proceed to recover the motor cycle at the earliest and the recovery was
effected on the following day. He submits that the delay in this action by
the police also throws doubt on the genuineness of the recovery. He submits
that it is highly unlikely that the accomplice of the appellant would park the
motor cycle at the residence of the appellant, when the appellant had already
been apprehended and taken into custody.
23. On the other hand, Mr. Sawhney, the learned APP has completely
supported the impugned judgment. Mr. Sawhney submits that conviction can
be based on the testimony of even a sole victim, if it is reliable. He submits
that the testimony of PW-1 is unshaken. He submits that there was hardly
any scope of any manipulation in the present case, since everything
happened in very quick succession. The complainant (PW-1) made the D.D.
entry (Ex. PW-8/A) at 06:30 p.m. and by 06:45 p.m. the IO (PW-8) had
already reached the spot. The accused had been apprehended by PW-4 and
the public persons, and they had also given beating to him. The statement of
the complainant (Ex.PW-1/A) was also recorded there and then. He submits
that though the accused had stated in his statement under Section 313
Cr.P.C. that he had been beaten up by the complainant on account of some
dispute, the appellant failed to disclose as to what was the nature of his
dispute with the complainant. He submits that the complainant had deposed
that he did not know the accused.
24. Mr. Sawhney submits that in his MLC (Ex. PW-8/A1), the accused
had disclosed/ got recorded "alleged H/o physical assault beaten by public/
mob as told by himself and B/B". Mr. Sawhney submits that the accused did
not name the complainant as the person who had assaulted him. Thus, his
version that he had been assaulted by the complainant on account of some
alleged dispute, was an afterthought and not believable.
25. Mr. Sawhney submits that the accused had produced two witnesses.
DW-1 is Dalbir Singh, who stated that on 28.02.2011 at about 7-8 p.m. he
was coming from his shop. Accused Praveen and Ramesh Kumar were
having some altercation. Thereafter Ramesh called 3-4 persons from the
locality and they have beaten the accused Praveen. Mr. Sawhney submits
that the incident had occurred at about 06:10 p.m. and by 06:45 p.m. the
police had already reached the spot. Therefore, the testimony of DW-1 that
he was coming from his shop at 7-8 p.m. when he saw the alleged incident
of altercation between the complainant and the accused, is not believable.
26. Mr. Sawhney submits that a perusal of the testimony of Kuldeep
Singh (DW-2) shows that the same is hearsay, since he states that at 08:30
p.m. "I came to know that accused Praveen had some altercation with one
chemist at 40 foota road" He was not the eye-witness to the incident and his
testimony was not believable.
27. On the aspect of recovery of the knife, Mr. Sawhney submits that
from the evidence brought on record, it is clear that the personal search of
the accused was taken by one of the persons in the crowd, and the knife was
found in the right side pocket of the appellant's pant in the presence of the
complainant. The knife was handed over to PW-8 by the complainant, as
disclosed by PW-8 and corroborated by seizure memo (Ex.PW-1/C). There
is no material contradiction going to the core of the prosecution's case.
28. Mr. Sawhney further submits that for completion of offence under
Section 397 I.P.C., it is the use of the weapon and not its subsequent
recovery, which is relevant. In this case, the complainant (PW-1) has
deposed that the accused had used the knife to threaten the complainant by
placing the same on the left side of his stomach and he had also identified
the knife in Court when produced.
29. The testimony of PW-1, the complainant is completely unshaken.
Pertinently, the complainant categorically stated that one black motor cycle
Pulsar came in front of his shop. Two riders got down from the motor cycle
and came at his shop and they asked him to give the money. Pertinently, the
said black coloured motor cycle was recovered from the house of the
accused. The complainant did not know the accused from before, and had
no reason to implicate the accused falsely at the cost of letting off the real
culprit. The accused was caught red handed while running after committing
the robbery; the buttondar knife was recovered from him, and; was even
given beating by the crowd which had gathered in the market place.
Pertinently, the accused, when taken for his medical examination and
treatment gave the alleged history of physical assault beating by public/mob.
It was for the accused to explain the circumstances in which the public/mob
had caught hold of him and beaten him up, and also to explain as to why he
made the said disclosure in his MLC (Ex. PW-8/A1), if according to him the
complainant had given him beating on account of a dispute with him. It was
for the accused to disclose the nature of his alleged dispute with the
complainant which allegedly led to the complainant giving him beating and
making an allegedly false complaint. However, the appellant failed to make
any disclosure in this regard, much less raise any probable defence in this
respect.
30. I find absolutely no merit in the appellant's submission that PW-1 had
not narrated that after he had been robbed by showing a knife, whether, or
not, the knife was closed. Whether or not the same was closed within the
sight of the complainant PW-1, is not relevant or material. The fact of the
matter is that the complainant disclosed in his earliest statement that he had
been robbed at knife point shown by the appellant/accused and the
buttondaar knife had also been recovered from the appellant, which had
been identified by the complainant.
31. The appellant has sought to raise doubts on the basis of the so-called
contradiction in the identity of the person who recovered the knife from the
accused. Once again, I find no material contradiction in the testimonies of
the prosecution witnesses, which go to the core of the matter. PW-1 had
clearly stated that the knife had been recovered by one of the person in the
crowd who had collected at the spot. In a crowd, when there may be several
persons surrounding the accused, and several hands reaching out to either
beat him up, or to check his pockets, it is very unlikely that the victim would
in that commotion, pay attention to observe as to who has got the knife
recovered from the pocket of the accused, particularly when the crowd
consists of strangers as well. Pertinently, the accused did not take the
defence even during the cross examination of the prosecution witnesses that
the knife did not belong to him, or that the same had been planted upon him.
In fact, the recovery of the knife from the accused was not challenged.
32. I also find no merit in the submission of the appellant that it was
highly unlikely that in a chemist shop only an owner would be present. In
any shop, during the course of the day, there could be episodes when there is
no customer present. There is nothing unusual about it. It could well that
the appellant and his accomplice chose to rob the complainant precisely for
the reason that he appeared to be all alone in his shop. The appellant and his
accomplices picked the complainant for that reason, so as to minimize the
risk of resistance or confrontation.
33. PW-4 was the first person to hear the alarm raised by the complainant
PW-1 and responded. However, the fact that a crowd/mob gathered;
apprehended and beat the appellant/accused and recovered the knife from
him, shows that eventually the alarm raised by the complainant PW-1 did
have the desired result. Pertinently, the complainant made a call to the
police on no.100 and DD No.39A was recorded at 6:30 p.m. Within fifteen
minutes, i.e. by 6:45 p.m., the IO had reached the spot. Thus, there was no
scope for any manipulation during this period. The accused had been
apprehended by PW-4 and the public also gave him beating. Soon
thereafter, the statement of complainant PW-1/A was also recorded at the
spot. The appellant was taken to the hospital for his medical examination.
34. No doubt, the DD entry recorded the incident of quarrel and not
robbery. However, that by itself would not throw any doubt on the case of
the prosecution. The call made by the complainant on no.100 was with a
sense of urgency. What he may have uttered, and what eventually came to
be recorded would not result in changing the nature of the incident and
offence which occurred at the site.
35. PW-4, no doubt, turned hostile. However, he admitted his signatures
on Ex.1/B, C, D E & F. He also admitted that he heard a quarrel and came
down and saw a crowd. This corroborates the testimony of the other
prosecution witnesses, including PW-1. Though, PW-4 states that he signed
pre prepared documents without reading them, viz. Ex.PW-1/C (Seizure
Memo), Ex.PW-1/D (Arrest Memo), Ex.PW-1/E (Personal search memo of
Parveen @ Kale) and Ex.PW-1/F (Personal search memo of Manoj Kumar),
he does not disclose why he acted in this unusual and irresponsible manner.
He did not claim the exercise of threat, coercion or inducement either by the
complainant or the police. Thus, PW-4 stands discredited since his
testimony before the Court is not in accord with the corroborative evidence.
As to why he turned hostile, is anybody's guess.
36. The disclosure statement of the appellant was recorded on 28.02.2011
itself. The timing of the incident was around 6:10 p.m.; the DD entry was
made recorded at 6:30 p.m.; the IO PW-8 had reached the spot by 6:45 p.m.
Thereafter, the appellant was taken for his medical treatment to the hospital.
The MLC records the date and time of arrival as 28-02-2011 at 9.30 am. It
is only thereafter that later in the evening/night, the disclosure statement of
the appellant was recorded. The black coloured motor cycle Pulsar was
recovered on the following day. Thus, it cannot be said that there was any
undue delay in the recovery of the motor cycle.
37. I also find merit in the submission of learned APP that the two
defence witnesses produced by the appellant/accused were not trustworthy.
DW-1 stated that about 7-8 p.m. while coming from a shop, he noticed the
complainant and the appellant/accused having an altercation. This is
completely belied by the fact that the incident occurred at about 6:10 p.m.;
the complainant reported the incident to the police on no.100 at about 6:30
p.m., and; the IO had even arrived at the spot by 6:45 p.m. There was no
question of the appellant/accused having an altercation with the complainant
between 7-8 p.m. The evidence of DW-2 is merely hearsay evidence, and is
of no avail.
38. In the light of the aforesaid discussion, I am of the view that the
appellant has failed to demonstrate that the impugned judgment suffers from
perversity, or lack of appreciation, or mis-appreciation of evidence. The
evidence brought on record is sufficient to establish beyond any reasonable
doubt the commission of offence by the appellant, of which the appellant has
been found guilty. The guilt of the appellant stands proved beyond all
reasonable doubts.
39. For all the aforesaid reasons, I do not find any merit in this appeal and
dismiss the same.
VIPIN SANGHI, J
MAY 14, 2015
B.S. Rohella/sr
