Crl. A. 1088/2012 and 820/2013. Case: Veer Bahadur Singh and Ors. Vs State and Ors.. High Court of Delhi (India)
| Case Number | Crl. A. 1088/2012 and 820/2013 |
| Counsel | For Appellant: U.M. Tripathi, Advocate and For Respondents: O.P. Saxena, Additional Public Prosecutor and Inderpal, SI |
| Judges | Sunita Gupta, J. |
| Issue | Code of Criminal Procedure, 1973 (CrPC) - Sections 207, 313; Indian Penal Code 1860, (IPC) - Sections 302, 307, 34, 392, 394, 395, 396, 397, 398 |
| Judgement Date | March 18, 2015 |
| Court | High Court of Delhi (India) |
Judgment:
Sunita Gupta, J.
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Challenge in these two appeals is to the judgment dated 02.12.2011 and order on sentence dated 14.12.2011 qua accused Veer Bahadur Singh and order on sentence dated 15.04.2013 qua appellant Keshav Kumar alias Sajan, vide which both the appellants were convicted under Section 307/397/34 IPC as under and were sentenced as under:-
(i) Under Section 397 IPC to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 5000/- in default six months further rigorous imprisonment.
(ii) Under Section 307/34 IPC to undergo three years rigorous imprisonment and to pay a fine of Rs. 3000/- in default further three months rigorous imprisonment.
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Filtering the unnecessary details the broad essential facts as put forth by the prosecution are that on receipt of DD No. 40A Ex.PW9/A, ASI Hawa Singh alongwith Constable Ram Kumar reached Kamla Mai Hospital where they came to know that injured Hari Kishan was brought in the hospital but since his condition was serious as such, he was sent to DDU hospital. In the meanwhile, ASI Hawa Singh received DD No. 41A Ex.PW9/B regarding admission of injured in DDU hospital. Accordingly, he went to DDU hospital and inspected the MLC. The doctor declared Hari Kishan Yadav unfit for statement. Since no eyewitness was available in the hospital as such, after making endorsement on the DD Ex.PW9/D, rukka was sent to police station through Constable Ram Kumar on the basis of which FIR was registered under Section 307 IPC. Further investigation was entrusted to SI Balbir Singh who alongwith Constable Ram Kumar reached the spot where he met PW-1 Ram Bhagat Yadav who handed over a sweater which was seized vide seizure memo Ex.PW1/C. He disclosed that on hearing the noise of incident he reached the spot and found Hari Kishan Yadav in injured condition and then he was sent to hospital. On 11.02.2009 after the injured was declared fit for statement his statement was recorded. Thereafter Sections 394 and 397 IPC were added. After the injured was discharged from the hospital, on his pointing out site plan Ex.PW13/A was prepared.
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It is further the case of prosecution that on 29.03.2009 a secret information was received by the special staff regarding three robbers reaching at Andh Vidhyalya near Khatu Shyam Stadium, Hari Nagar, Ghantaghar Chowk. All the three accused namely Veer Bahadur Singh, Keshav Kumar and Maninder Singh were arrested. Their disclosure statements Ex.PW8/C, Ex.PW8/D and Ex.PW8/E were recorded. One mobile phone make Nokia model no. 6610 colour black and silver was recovered from the possession of accused Maninder alias Rocky vide Ex.PW8/A. Motorcycle was also seized. On receipt of information from special staff about the arrest of the accused persons, on 29.03.2009 PW-13 SI Balbir Singh interrogated the accused persons in the Court after seeking permission. Thereafter an application was moved before the learned Metropolitan Magistrate for conducting Test Identification Parade of the accused persons however the accused refused to join the proceedings. Pursuant to the application moved by the Investigating Officer of the case for grant of police remand, two days police remand was granted. Accused Keshav Kumar led the police party at Priyadarshni Park and on his pointing out one purse was recovered from the bushes containing prescription slip of the doctor, driving licence and some visiting cards. The same were seized vide seizure memo Ex.PW-13/D. All the three accused pointed out the place of incident vide pointing out memo Ex.PW13/E, Ex.PW13/F and Ex.PW13/G. After completing investigation chargesheet was submitted against the accused persons.
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After compliance of provisions of Section 207 of the Code of Criminal Procedure the case was forwarded to the Court of Sessions. Charge for offence under Sections 397/307/34 IPC was framed against the accused to which they pleaded not guilty and claimed trial.
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In order to substantiate its case, prosecution examined 14 witnesses. The case of accused persons in their statement under Section 313 Cr.P.C was one of denial simplicitor. According to them, they were falsely implicated in this case. Two witnesses were examined by the accused persons. Learned Additional Sessions Judge considered the evidence adduced by the prosecution as well as accused and convicted the appellants for the aforesaid offences and sentenced them, as mentioned above.
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Feeling aggrieved, separate appeals have been preferred by two of the convicts.
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It was submitted by learned counsel for the appellant Veer Bahadur Singh that no recovery was effected either from this appellant or at his instance. In the absence of recovery of any article or weapon of offence from this accused, offence under Section 397 IPC is not made out. Moreover, identification of the accused for the first time in Court is of no consequence. Furthermore, according to PW-1 Ram Bhagat Yadav, he saw the victim lying in a jungle. There is nothing on record to show that there was any electricity so that the victim could have identified the accused persons. As regards recovery of purse and mobile, it was submitted that the contents of the articles recovered from the purse reflects that the same does not belong to victim and even the colour of the mobile phone is changed. As such, the same does not connect the accused with crime.
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Learned counsel representing appellant Keshav Kumar submitted that the only role attributed to this appellant is that of beating and catching hold the injured. In the absence of "user of any deadly weapon" by this appellant he could not have been convicted under Section 397 IPC with the aid of Section 34 IPC. Moreover, the appellant has also been convicted under Section 307 IPC however Section 397 and 307 IPC cannot go together. It was also contended that the weapon of offence was not recovered and the contents of the purse goes to show that the same does not belong to victim. Under the circumstances, prosecution has failed to bring home the guilt of the accused beyond reasonable doubt as such, accused are liable to be acquitted.
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Rebutting the submissions of learned counsel for the appellants it was submitted by learned Additional Public Prosecutor for the State that a conviction can be based on the sole testimony of the victim. In the instant case none of the accused is alleging any enmity with the injured for which reason he will falsely implicate them. The accused persons refused to join Test Identification proceedings as such, adverse inference is liable to be drawn against them. Moreover, they were duly identified by the victim in the Court. Non recovery of weapon of offence does not cast any dent on the prosecution version. Even if the articles lying in the purse are not in the name of the victim, it does not mean that the purse does not belong to him. The impugned judgment does not suffer from any infirmity which calls for interference as such, appeals are liable to be dismissed.
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The case of prosecution is based on the solitary testimony of PW-7 Hari Kishan Yadav, the victim. The law is well settled that the Court can and may act on the testimony of a single witness provided he is wholly reliable as held in Sunil Kumar vs. State of NCT of Delhi (2003) 11 SCC 367; Namdeo v. State of Maharashtra (2007 14 SCC 150; Kunju @ Balachandran...
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