Naresh vs State
2017 Latest Caselaw 3497 Del

*   IN THE HIGH COURT OF DELHI AT NEW DELHI
                                            Date of Decision : July 21st, 2017
+   CRL.A. 843/2005
    NARESH                                                    ..... Appellant
                            Through         Mr. M.L.Yadav, Adv

                            versus

    STATE                                                      ..... Respondent
                            Through         Mr.Panna Lal Sharma, APP for the
                                            State with SI Vasant Kumar

                                        AND

+   CRL.A. 42/2006

    RAJU ALIAS RAKESH                                            ..... Appellant

                               Through: Mr. M.LYadav, Adv

                                 versus

    STATE                                                     ..... Respondent
                            Through:        Mr. Panna Lal Sharma, APP with
                                            SI Vasant Kumar

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

                                   JUDGMENT

P.S.TEJI, J

1. The present appeals have been filed being aggrieved by the

judgment of conviction dated 27.09.2005 convicting the appellants

under Section 394/34 read with 397 IPC and order on sentence dated

27.09.2005 vide which the appellants were sentenced to undergo five

years rigorous imprisonment each with fine of Rs.5,000/- each for the

offence under Section 394/34 IPC. Further, the appellants were

sentenced to undergo rigorous imprisonment for a period of seven

years each with fine of Rs.5,000/- each for the offence under Section

397 IPC. In default of payment of fine, the appellants have been

ordered to further undergo simple imprisonment for five months each,

for both the offences.

2. Since the trial of both the applicants was commonly conducted

and both the appellants have been convicted by the common impugned

judgment and have been awarded sentence by the common order on

sentence, therefore, both these appeals are hereby disposed of by this

common judgment.

3. The factual matrix emerging from the record is that on

27.09.2003 at about 12 noon, the complainant, Ishwar Singh was

present at Taxi Stand Najafgarh with his taxi bearing registration No.

DL-2CG-9698 when the three accused persons namely, Naresh, Raju

and Ajay approached him for hiring of the Taxi to Pataudi (Haryana)

and further asked him that they had to pick up ladies from Bharat

Vihar near Kakrola and accordingly reached Bharat Vihar where the

ladies refused to join and thereafter the vehicle proceeded further

towards Shahbad and after crossing the railway track the accused

persons asked the complainant to take a kaccha road as it was a short-

cut. The complainant allegedly notified them that the road was not fit

for driving, for which he was beaten and hit with a country made

pistol on his head from the back and accused Naresh put a knife on his

belly and threatened him. The accused persons snatched his mobile

and threw it outside the vehicle and the vehicle was driven away.

4. On the basis of statement made by the complainant, FIR was

registered against all the accused persons who were subsequently

arrested at Gurgaon (Haryana) in a case under Section 399/402 IPC

and arrested in the present case. All the accused persons were charged

under Sections 397/394/34 IPC to which they pleaded not guilty and

claimed trial.

5. The prosecution had examined 13 witnesses in support of its

case, namely PW1 ASI Ramkishan, PW2 Constable Rupesh Kumar,

PW3 Smt. Sheela, PW4 Rajaram Sharma, PW5 SI Ramesh Kumar,

PW6 Ishwar Singh (complainant) , PW7 Gulshan Arora, PW8 Head

Constable Chattarmal, PW9 Head Constable Raghuvir Singh, PW10

Head Constable Mahipal, PW11 Dr.Ritu Vinayak, PW12 IO SI Anil

Berwal and PW13 Sh. Deepak Garg.

6. After completion of prosecution evidence, the statements of the

accused persons were recorded under Section 313 of the Cr.P.C. The

defence produced one witness to prove their case, DW 1- Suresh

Chand.

7. The appellants were held guilty by the learned Additional

Sessions Judge vide judgment of conviction dated 27.09.2005 and

passed the order on sentence on 27.09.2005. However, the third

accused Ajay was acquitted by the trial court.

8. Argument advanced by the learned counsel for the appellants is

that the testimony of the complainant is not reliable and errs

specifically with respect to description of the third accused who has

been let off in the present case and thus it is evident that he has

adopted the policy of pick and choose among the accused persons to

save the third accused, Ajay. The alleged weapons to have been used

by the appellants were not recovered by the police. That the

prosecution further failed to examine the material witness Ved Prakash

near whose house the incident had taken place. There is no

convincing evidence against the appellants and the appellants are

entitled for acquittal.

9. Per contra, argument advanced by learned Additional Public

Prosecutor for the State is that the appellants have been rightly held

guilty under Section 394/34 read with Section 397 IPC by the trial

court. The complainant has deposed against the appellants and

narrated the role played by them at the time of commission of offence.

There is sufficient evidence against the appellants to hold them guilty

and there is no infirmity in the judgment of conviction.

10. Arguments advanced by the counsel for the appellants as well

as learned APP for the State were heard.

11. It is apparent from the record that after filing of the present

appeal, the sentence awarded to the appellant- Naresh was suspended

vide order dated 10.11.2006 and sentence awarded to the appellant-

Raju was suspended vide order dated 26.07.2006.

12. To appreciate the arguments advanced by both the sides, I have

gone through their submissions and material available on record

meticulously.

13. The complainant in the present case is PW6 Ishwar Singh. In

his testimony, PW6 stated that on 27.09.2003 he was present along

with his Tata Sumo DL-2C-G-9698 at Civil Hospital, Najafgarh Taxi

Stand at about 12 noon. Accused Naresh and Raju came to him for

hiring a taxi and another boy was accompanying them who sat in his

car when it was hired to go to Pataudi. Accused persons told the

complainant that they had to pick up two ladies from colony Bharat

Vihar near Kakraula, to where the complainant drove. Thereafter, after

a short while, the accused persons asked the complainant to take a

kaccha road to which he objected and thus was beaten by accused

persons and he had his phone snatched and thrown out of the vehicle.

This witness asked them not to kill him. The accused persons threw

the complainant out of his vehicle, who fell down and thereafter

accused persons drove away in his vehicle. The complainant was hit

on his head by the butt of the country made pistol at two places and

one of the accused was threatening him with a knife. Thereafter, this

complainant was dropped nearby to a village where he told the

incident to the person in the village and then informed the police. He

identified both the accused persons Naresh and Raju in the Court as

the persons who had hired his taxi and committed robbery with him.

14. From the testimony of the complainant Ishwar Singh (PW6) it

has duly been established that on the day of the incident, appellants

beat up the complainant when he objected to their suggestion of taking

a kaccha road enroute which they intended to take and thereafter

robbed the complainant of his mobile phone and also his vehicle. Both

accused persons were duly identified by the complainant as the

robbers while also stating that they were armed with knife and a

country made pistol at the relevant time. There is nothing to

disbelieve the testimony of the complainant with respect to the

robbery. The defence had cross-examined the complainant (PW 6) at

length, but failed to put any dent to his testimony. However, what is

pertinent to point is that the alleged weapons of offence, that is, the

knife and country made pistol, both have not been recovered in the

present matter.

15. From the sole testimony of the above mentioned witness, it has

duly been established beyond any reasonable doubt that on the day of

the incident, the appellants committed the robbery of the

complainant's mobile phone along with his vehicle in which they were

travelling under the garb of hiring the complainant as a taxi driver

while also beating him up when he protested to their ill intentions.

This court is conscious of the fact that the main witness in the present

case is complainant-Ishwar Singh (PW-6) on the basis of which the

appellants have been convicted.

16. In Anil Phukan vs State Of Assam 1993 SCR (2) 389 the

Hon'ble Apex Court observed that : "Indeed, conviction can be based

on the testimony of a single eye-witness and there is no rule of law or

evidence which says to the contrary provided the sole witness passes

the test of reliability. So long as the single eye-witness is a wholly

reliable witness the courts have no difficulty in basing conviction on

his testimony alone."

17. Further, in Abdul Sayeed vs State Of M.P, (2010) 10 SCC 259,

the Hon'ble Apex Court, while dealing with the reliability of

testimony of injured witness, has held as under: "The law on the

point can be summarised to the effect that the testimony of the injured

witness is accorded a special status in law. This is as a consequence of

the fact that the injury to the witness is an in-built guarantee of his

presence at the scene of the crime and because the witness will not

want to let his actual assailant go unpunished merely to falsely

implicate a third party for the commission of the offence. Thus, the

deposition of the injured witness should be relied upon unless there

are strong grounds for rejection of his evidence on the basis of major

contradictions and discrepancies therein."

18. Apart from commission of robbery, the appellants have also

been convicted under Section 397 IPC i.e. for using a deadly weapon

i.e. knife and a country made pistol at the time of commission of

robbery.

19. Case of the prosecution is that at the time of robbery, the

appellants were armed with a knife and a country made pistol and the

same were used in beating the complainant and the knife was pointed

on his belly and thereafter he was threatened. What is pertinent to

mention herein is that both the alleged weapons of offence have not

been recovered, which casts a doubt as to the commission of the

offence under Section 397 at the very outset. In the absence of

recovery of weapon of offence under Section 397, the alleged offence

alone shall stand outside the ambit of the said section and the accused

persons in that case cannot be held guilty for the same.

20. As discussed above, this Court is of the considered opinion that

the prosecution has failed to prove beyond reasonable doubt that the

accused was armed with any weapon at all, what to say about a deadly

weapon at the time of commission of robbery to cover its case under

Section 397 IPC. Therefore, the appellants are entitled to be acquitted

under Section 397 IPC.

21. From the totality of the discussion made above, this Court is of

the considered opinion that the prosecution has successfully

established its case against the appellants for the offence under Section

394/34 IPC. However, it has failed to establish beyond reasonable

doubt the offence under Section 397 IPC against the appellants.

Consequently, the conviction of the appellants under Section 394/34

IPC is upheld, however their conviction under Section 397 IPC is set

aside.

22. So far as the quantum of sentence is concerned, it is apparent

from the record that the incident of the present case took place on

27.09.2003 and judgment of conviction and order on sentence were

passed on 27.09.2005 and now we are in the year 2017. It is apparent

from the nominal roll of the appellants, that both have already faced

incarceration for more than three years each in the present case.

23. Keeping in view the fact that the appellants have now been

acquitted for the offence under Section 397 IPC and their conviction

has been upheld under Section 394/34 IPC wherein no minimum

sentence has been prescribed, it would be in the interest of justice to

release the appellants for the period already undergone by them in the

present case. The sentence awarded to the appellants is modified

accordingly.

24. Appellants are on bail. Their personal bonds and surety bonds

are discharged.

25. With the above observations, the present appeal stands disposed

of.

(P.S.TEJI) JUDGE JULY 21, 2017 dd