Amit vs State (Govt Of Nct) Of Delhi
2015 Latest Caselaw 6800 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Date of Judgment on : 10.9.2015

+      CRL.A. 972/2013

       AMIT                                         ..... Appellant

                           Through      Ms.Aishwarya Rai, Advocate

                           versus

       STATE (GOVT.OF NCT) OF DELHI                 ..... Respondent

                           Through      Mr.Akshai Malik, APP along
                                        with SI Ram Phal singh.

CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 This appeal is directed against the impugned judgment and order

on sentence dated 14.3.2013 and 21.3.2013 respectively wherein the

appellant had been convicted under Sections 392 read with Section 397

of the IPC and sentenced to undergo RI for a period of 7 years and to

pay a fine of Rs.1000/- and in default of payment of fine to undergo SI

for 2 days.

2 Nominal roll of the appellant reflects that as on date he has

undergone incarceration of about 3 ½ years which included remissions

awarded to him.

3 Version of the prosecution is that on 04.11.2012 the accused had

committed robbery of Rs.250/- from the possession of Dukhan Shah

(PW-5). The accused had used a sharp edged blade to commit this

robbery. Arun Shah (PW-6) was also present. The accused was

apprehended and arrested. The prosecution in support of its case had

examined eight witnesses. In his statement under Section 313 Cr.P.C.

accused had pleaded innocence stating that he had been falsely

implicated in this case. His defense was that Arun Shah (PW-6) was

earlier working as a labourer in his house and there was a dispute

regarding the work done by him and he was demanding more money.

This had led to enmity. He along with Dukhan Shah (PW-5) had

falsely implicated him in this case to extort money from him. No

evidence was, however, led in defense.

4 On behalf of the appellant learned Amicus Curiae submits that

this is a clear case of false implication. Attention has been drawn to DD

No.18A wherein the first information of this incident was recorded.

This information was given by Arun Shah (PW-6) wherein he had stated

that one boy had attacked him with Chaaku (knife). He knows that boy.

Attention has thereafter been drawn to the complaint of PW-5 wherein

he had stated that the accused had been armed with the half blade.

Submission being that this knife had suddenly become a blade; this was

for the reason that the prosecution was not clear about its stand.

Argument being propounded that the appellant had been falsely roped in

for the reason that PW-6 had worked in his house as a labourer and there

was the money dispute which had now been converted to this false

complaint. Additional submission being that it is the defense of the

appellant right from inception and same suggestion has been given to

the witnesses of the prosecution and thereafter the same stand had been

taken by the appellant in his statement recorded under Section 313

Cr.P.C. A sufficient dent has been created in the version of the

prosecution. Appellant is entitled to benefit of doubt and a consequent

acquittal. In the alternate submission being that case under Section 397

of the IPC is not made out as a half edge blade even presuming was the

weapon of offence but it would not amount to a deadly weapon within

Section 397 of the IPC and the appellant is accordingly entitled to a

modification of his sentence from Section 397 to Section 392 of the IPC.

The period of incarceration already suffered by him be treated as the

sentence imposed upon him.

5 Needless to state that these arguments have been refuted.

6 PW-5 was the complainant. He had on oath deposed that he was

working as a mason/Raj Mistry. On 04.11.2012 at about 6.00 p.m. when

he along with his nephew were coming towards his house and on

reaching at K-Block, J.J.Colony, Wazirpur, Delhi they saw a young

person who came in front of them caught hold of PW-5 by his clothes.

He had a blade in his right hand and threatened them to cause injury to

them if they would not hand over the money which they had and he took

out Rs.250/- from right pocket of the pant of PW-5. This amount

comprised of two currency notes in the denomination of Rs.100/-, five

currency notes in the denomination of Rs.10/-. The appellant then ran

way towards a gali. One policeman Bhoom Pal reached there and they

along with the policeman ran after the assailant and apprehended him

after some distance. A call at 100 number was made by PW-6. Police

team reached. Statement of PW-5 (Ex.PW-5/A) was recorded. In his

cross-examination he had admitted that he is a resident of the said block

and he was not aware that the accused is resident of the same block. He

did not know him from before. He volunteered that the accused may be

staying in the same block but he was not aware of the same. The

accused showed him a half blade and threatened to slash him and then

removed the money from the pocket of his pant. He had never seen the

appellant previously in the area. PW-5 stated that he used to leave for

work at 9.00 a.m. and returned by 6.00 p.m. He is residing in the

locality since last 10 years along with PW-6. He denied the suggestion

that he has falsely implicated the accused.

7 PW-6 was the person who had made the first call at 100 number.

He had deposed that he was also doing the work of labour along with his

uncle (PW-5). On 04.11.2012 when he along with his uncle were

coming from towards their house the appellant came in front of them

and caught hold of PW-5 and demanded money from him. The

appellant had a blade and he threatened PW-5 and PW-6 that he would

cause injury to them if they would not handover the money to him and

he took out Rs.250/- from the right pocket of the pant of his uncle

(PW-5). The appellant managed to flee. Policeman Bhoom Pal reached

the spot. They along with policeman Bhoom Pal chased the appellant

and apprehended him after some distance. PW-6 had made a call to 100

number about the incident. In the cross-examination PW-6 had stated

that he had became very scared and perplexed due to the incident of

robbery and in a hurry he had mentioned chakoo whereas it was a blade

which was shown to them. He admitted that he knew the appellant as he

had earlier worked in the house where the parents of the appellant were

residing. PW-6 admitted that he is a labourer by profession and he had

worked in the house where the parents of the appellant were staying and

the accused was also staying there. He could not say whether PW-5

(his uncle) knew the accused prior thereto or not. Police party reached

the spot. Public persons were not joined. He left the spot at 6.30 to

6.45 p.m. He denied the suggestion that due to previous enmity with the

accused he had falsely implicated the appellant.

8 Constable Bhoom Pal (PW-4) had deposed that on the fateful day

he was on patrolling duty at K-Block, Wazirpur, J.J. Colony. On that

day at about 6.00 p.m. he saw two persons in a perplexed state and one

person was running towards J-Block, and shouting pakro-pakro and

stating that the running person had taken their money. On enquiry,

PW-5 told him that he was robbed of Rs.250/- by the running person.

He along with PW-5 and PW-6 managed to apprehend the accused

whose name was revealed as Amit Kumar. Police party was informed.

A half piece of blade was recovered from right pant pocket of the

appellant. In his cross-examination he admitted that he departed from

the police station at 5.00 p.m. but he did not recollect the DD number

with which he departed from the police station. He admitted that DD

was recorded by the duty officer. He admitted that the place of incident

was a thick populated area and a thick residential area and public

persons were roaming around there. He admitted that the appellant was

living in the same block where PW-5 and PW-6 were living i.e. K-

Block. He deposed that he cannot say whether the complainant and the

appellant were known to each other. He denied the suggestion that the

PW-6 called 100number on his instructions. He admitted that the blade

was easily available in the market. He admitted that the blade does not

have any special mark of identification. The Investigating Officer to

whom the investigation had been marked was SI Vijay Kumar examined

as PW-8 who along with Constable Kuldeep Singh (PW-7) had reached

in from of K-Block on DD no.18A having been marked to them. He

admitted that he reached the spot. The appellant was already in the

custody of PW-4 and the accused was pleading that he was falsely

implicated. He could not say that the accused was B.C. of the area. He

denied the suggestion that the accused has been falsely implicated and

no recovery was made from him. He admitted that initial information

was regarding use of a knife but later on it was revealed that it was a

half blade which was used by the appellant.

9 The scrutiny of the testimony of the aforenoted witnesses supports

the submission of the appellant that this does appear to be a case where

there are dents created in the version of the injured and the eye

witnesses (the complainant and the eye-witness). The complainant was

PW-5. He was the uncle of PW-6. As per his version he was residing in

the same locality i.e. K- Block since last 10 years along with PW-6. The

appellant was living in the same neighbourhood and this has clearly

come in the version of PW-4 as also PW-6. Since PW-5 was living in

the same vicinity for the last 10 years and admittedly PW-6 had worked

as a labourer in the house of the appellant it would be difficult to believe

that he had neither seen the appellant in the neighbourhood and nor did

he know him. In fact on a specific query put to PW-5 on this count he

has given evasive answers.

10 Version of PW-6 is clear. He had admitted that the accused was

known to him. He has also admitted that he had worked in the house of

the parents of the appellant where the appellant was also living. He had

further denied the suggestion that because of a money dispute he along

with his uncle had got the accused falsely implicated.

11 Pw-6 had also admitted that initially when he had made a call to

100 number he had stated that the appellant who was known to him was

armed with a knife. However, what eventually followed was that the

appellant was armed with a half blade and not a knife. This was also the

complaint given almost at the same time by the complainant

(Ex.PW-5/A) wherein he had stated that the accused had threatened him

at a point of a blade. There is a clear difference in appearance of a knife

and a blade; neither can a knife look like as a blade nor a blade can look

like a knife. The distinction is stark. The version of PW-6 that the

accused was armed with a knife which later on was not found to be a

knife but a blade cast doubt on the version of the prosecution. PW-6

had admitted that he was working as a labourer in the house of the

parents of the appellant. He has also admitted that he used to do work of

a labourer with his uncle (PW-5) who was a Raj Mistry. They were

PW-5 and PW-6 who were residing in this locality i.e. in K-Block since

last 10 years. Appellant was also residing in the same locality. PW-6

had admitted that he knew the accused. PW-5 was giving evasive

answers. In fact he had at that point of time denied knowing the

appellant but in cross-examination he gave evasive answer. Since both

PW-5 and PW-6 were in the same profession and in fact PW-5 being a

Raj Mystry and PW-6 working under him it is difficult to believe that

PW-6 who had worked in the house of the parent of the accused and was

knowing him but PW-5 did not know him.

12 This circumstance as discussed supra by itself may not be

sufficient circumstance to discredit the version of PW-5 and PW-6 but

the cumulative circumstances which includes the initial complaint made

by PW-6 wherein he had reported that the accused was armed with a

knife but actually later on it was turned out to be a blade and the further

fact that the incident had occurred at 6.00 p.m. on 04.11.2012 in a busy

residential block (as admitted by PW-4) but no public persons either

witnessed the incident or had been asked to join the raid, further the

admission of PW-8 (Investigating Officer) that at the time when he

reached the spot he saw that the appellant was pleading that he has been

falsely implicated are all circumstances which are noted. It is also

relevant to note that the defence of the appellant right from the inception

has been that he has been falsely implicated because of money dispute.

PW-6 had worked as a labourer in the house of the appellant and this

money dispute had led to his false implication. The fact that PW-6 had

worked in the house of the appellant has also been admitted. The

defense of the accused right from the cross-examination of the witnesses

of the prosecution and thereafter in his statement recorded under Section

313 Cr.P.C. has been consistent. His defense that he has been falsely

implicated was even noted by the Investigating Officer (PW-8) who on

reaching the spot had noted this utterance of the appellant.

13 These cumulative circumstances have created a clear dent in the

version of the prosecution who has failed to prove its case to the hilt.

Appellant is entitled to a benefit of doubt and consequential acquittal.

He be released forthwith, if not, required in any other case.

14     Appeal is disposed of in the above terms.

15     A copy of this order be sent to Jail Superintendant for

compliance.

                                               INDERMEET KAUR, J

SEPTEMBER 10, 2015
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