Delhi High Court
Dharmender vs The State (Govt. Of Nct Of Delhi) on 21 August, 2018
$~1
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. 58/2003
DHARMENDER ..... Appellant
Through: Mr. Sulaiman Mohd. Khan,
Advocate (Amicus Curiae)
versus
THE STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP.
CORAM: JUSTICE S. MURALIDHAR
JUSTICE VINOD GOEL
JUDGMENT
31.07.2018
Dr. S. Muralidhar, J.:
1. This is an appeal directed against the judgment dated 16th January 2003
passed by the Court of the learned Additional Sessions Judge, Karkardooma
Courts, Delhi in SC No.101/2002 arising out of FIR No.74/2000 registered
at PS Mandawali convicting the Appellant for the offence under
Sections 302 and 394 IPC both read with Section 34 IPC. Also challenged is
the order on sentence dated 17th January 2003 whereby, for the offence
under Section 302/34 IPC, the Appellant was sentenced to undergo life
imprisonment along with a fine of Rs.5,000/- and in default of payment of
fine, to further undergo rigorous imprisonment for three years and for the
offence under Section 394/34 IPC, to undergo rigorous imprisonment for 10
years along with a fine of Rs.5000/- and in default of payment of fine, to
further undergo rigorous imprisonment for two years.
2. At the outset, it requires to be noticed that there were three accused who
were sent up for trial, viz., Dharmender (A-1), Ajay (A-2), and Naveen (A-
3). By the impugned judgment, A-2 has been acquitted of the offences he
was charged with. A-1 and A-3 were both convicted in the manner as stated
above. It appears that A-3 had filed Crl.A.214/2003 but died during the
pendency of the appeal and hence it stood abated.
3. The charge framed against the three accused was that between 12.20 and
4 am on 4th March 2000, near DDA Tikona Park, behind Batla Apartments,
Mandawali they along with one Rajesh (not arrested), in furtherance of their
common intention, committed the offence of robbery while using deadly
weapons punishable under Section 394 IPC by robbing Balwant Singh
(deceased) of his purse as well as his motorcycle. They were also charged
with committing murder of Balwant Singh punishable under Section 302
IPC by inflicting knife blows on his person.
4. The entire case was based on circumstantial evidence. PW-2 was the
father of the deceased who stated that he had spoken to his son at 8.30 pm on
3rd March 2000 on the telephone. The deceased informed PW-2 that he
would be coming home late but asked that his meal be prepared. Thereafter,
PW-2 again spoke to the deceased at 12.20 am at which time the deceased
informed him that he would be reaching home in 5-10 minutes. Thereafter,
PW-2 went to bed and when he awoke at 8 am the next morning he found
that his son had still not returned. He called Sonali Chowdhary (PW-5) who
was his son's employer and enquired about his son. She told PW-2 that she
had spoken with his son at around 11.45 pm the previous night and had
asked him to go home after taking the keys with himself.
5. According to PW-2, between 9.30 and 10 am, two police officials of
PS Mandawali came to his house and showed him a photo of his son which
was stated to be recovered from the pocket of a person found dead at Tikona
Park in Mandawali. PW-2 then accompanied the police officials to Tikona
Park and identified the dead body of his son (deceased). The statement of
PW-2 was then recorded by the police.
6. It appears that on 7th March 2000, Sub-Inspector (SI) Sanjay Gupta (PW-
6) received information that A-1, who resided near Tikona Park, had gone
missing. It is then stated that they reached the National Victor Public School
and A-1 was seen coming from the side of Hassanpur Road. He was
supposedly known to Constable Rajesh (PW-11) who identified him. A-1
was then overpowered and apprehended.
7. The entire case of the prosecution is built on the disclosure of A-1 who
purportedly confessed to the commission of the crime and led the police
officials to the arrest of the other co-accused, viz., A-2 and A-3, who in turn
made disclosures which led the police to recover the weapons used in the
commission of the offence, i.e. knife and chhura (dagger).
8. As far as A-1 was concerned, he made a disclosure about the motorcycle
of the deceased having been taken by him and Rajesh and having been
parked at DDA flats. The motorcycle was recovered from the said place but
found in an unlocked condition. The recovery was witnessed by PW-2.
9. The trial Court has, in the impugned judgment, rightly concluded that the
portion of the disclosure statement of A-1 as regards his giving the knife
with which the deceased was stabbed to A-3 was inadmissible as it was hit
by Section 27 IEA. Nevertheless, the trial Court proceeded to convict both
the present appellant and A-3 for the offences under Sections 302 and 394
IPC both read with Section 34 IPC while at the same time giving the benefit
of doubt to A-2.
10. Although the death of the deceased was homicidal, there is absolutely no
evidence to show that that the present Appellant was in any manner involved
in the stabbing of the deceased or sharing any common intention for him to
be killed.
11. What emerges from the reading of the evidence of the prosecution is
only that the Appellant offered to get the motorcycle recovered. Since
recovery was witnessed by PW-2 whose evidence in that regard remains
unshaken, the Court is of the view that, at the highest, the Appellant would
be convicted for the offence under Section 392 IPC and not under Section
394/34 IPC.
12. Consequently, the impugned judgment of the trial Court convicting the
Appellant for the offence under Section 302/34 IPC and the sentence
corresponding to the said offence is hereby set aside. The Appellant is also
acquitted of the offence under Section 394/34 IPC and is instead convicted
for the offence under Section 392/34 IPC. The sentence awarded for the
conviction under Section 394/34 IPC is set aside. As for the conviction
under Section 392/34 IPC, the Appellant is sentenced to the period of
imprisonment already undergone.
13. The appeal is disposed of accordingly. The bail and surety bonds
furnished by the Appellant stand discharged. He shall fulfill the
requirements under Section 437A Cr PC to the satisfaction of the trial Court
at the earliest. The trial Court record be returned forthwith together with
certified copies of this judgment.
S. MURALIDHAR, J.
VINOD GOEL, J.
JULY 31, 2018
