Keshav Kumar @ Sajan v. State NCT of Delhi

15. PW-7 has stated that on 28.01.2009 he was coming from his duty at about 7.45 pm and was talking on his mobile to his father near Priya Darshan, Rajouri Park. Accused started snatching his phone. They also picked uphis purse and started beating. All the three accused started beating him. Veeru inflicted knife blow on his person while the remaining two accused caught hold of him. Although he did not know the name of two other accused however he pointed out towards accused Maninder and Keshav by deposing that they were the acciised who caught hold of him. He receivedeight injuries on different parts of his body. His intestines came out from the stomach due to the injuries caused by accused Veeru. He became unconscious. Due to injuries caused by the accused persons he was unable toperform his daily pursuits. He saw the accused persons when they caused i witness thatVeeni was living at Mayapuri Chowk and he was familiar with his face although he did not know his name. Accused Veer Bahadur Singh admitted in his statement recorded under Section 313 Cr.P.C that complainant used to live at a distance of about 100 meters from his residence and was known to him from earlier. He further stated that complainant had no enmity with him and he cannot tell as to why he got him implicated in this case. The witness was subjected to lengthy crossexamination by learned counsels for all the accused persons however nothing material could be elicited to discredit his testimony. Admittedly, he was not having any animosity either with accused Veer Bahadur Singh or the remaining accused persons for which reasons he would falsely implicate them in this case while allowing the real culprits to go scot free. From the deposition ofthis witness it becomes clear that while he was returning from his duty he was robbed ofhis purse and mobile phone by all the accused persons and while committing robbery he was inflicted knife blow on his person by accused Veer Bahadur Singh with the assistance rendered by his co-accused who caught hold of him with the result the witness sustained injuries on various parts ofhis body and he fell unconscious. The testimony ofthe witness is reliable, credibleand inspire confidence.

16. According to PW-1 Mr.Ram Bhagat Yadav on 28.01.2009 at about

9.30 pm he was going to purchase meat alongwith one other person. On the way there was alittle jungle. He heard noise ofscreaming ofaperson. When hesaw him henoticed that the victim was his relative Hari Kishan and blood to Dr.AmitAggarwal, the injuries on the person of Hari Kishanwas opined as dangerous.

17. It has come in the statement of PW-9 ASI Hawa Singh that on receipt of DD N0.4OA he went to Kamla Mai Hospital where he came to know that injured Hari Kishan was in serious condition as such, he has been sent to DDU Hospital. Thereafter onreceipt of DD No.41A regarding admission of injured in DDU Hospital, he went to the hospital where the injured was declared unfit for statement. According to PW-13 SI Balbir Singhhe could recordthe statement of injured HariKishan onlyon 11.02.2009 afterhe was declared fit for statement. Under the circumstances, from the testimony of the injured that in the course of committing robbery he was inflicted knife blow ondifferent parts ofhis body resulting inhis intestines coming out and due to injuries sustained by him he is unable to perform his daily pursuits find corroboration from the medical evidence that the injured sustained dangerous injuries. It isalso evident that although the incident took place on 28.01.2009 the victim was able to givethe statement onlyon 11.02.2009 i.e., after about 14 days ofthe incident.

18. As regards the identity of the accused being the assailants of the crime, it is a matter of record that after the accused persons were arrested, applications for conducting their Test Identification proceedings was moved by SI Balbir Singh and were presented before PW-2 Sh.Ashish Aggarwal, Metropolitan Magistrate. All the three accused i.e., Maninder Singh alias Cr.P.C accused Veer Bahadur Singh and Keshav Kumar have admitted that they refiised to TIP however no reason was assigned regarding this refusal whereas accused Maninder Singh took a plea that he never refused to join the proceedings which however is belied by the proceedings Ex PW-13/B which reflect that he had refused to join TIP on the ground that he was shown to the witnesses. There is absolutely no evidence on record to show that the accused were shown to the witness in special cell. In fact when the complainant came in the witness box the appellant did not even suggest to him that the witness has seen them in special cell. Even no suggestion was given to the Investigating Officer ofthe case that the accused were shown to the witness at special cell. It was for the appellants to show thatthey had been shown to the complainant and, therefore, theywere justified inrefusing to join TIP proceedings. However, they failed to discharge the aforesaid onus placed on them. The purpose ofprior test identification inthe presence of a Magistrate is primarily to test and strengthen the trustworthiness of an eye witness during the course of investigation. The test identification enables the eye witness to identify the persons involved in the offence who are not previously known to them or the case property, subject matter ofthe crime. Such identification also satisfies the Investigating Officer of the bonafide of the witness besides corroborating his testimony during the course of trial. The identification during the course of such proceeding also serves the purpose of reassuring the investigating agency that the investigation proceedings are inthe right direction and an innocent person is not being falsely implicated.

19. The legal position with respect to identification of an accused was summarized by Hon'ble Supreme Court in Dana Yadav @ Dahu and Ors. vs. State of Bihar, (2002) 7 SCC 295 inter alia as under: "37...(c) Evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate identification of accused by a witness in court.

XX XX XX XX XX XX XX XX XX XX (e) Failure to hold test identification parade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarily identification of an accused by a witnessfor the first time in court should not form basis of conviction, the same being from its very nature inherently of a weak character unless it is corroborated by his previous identification in the test identification parade or any other evidence. The previous identification in the test identification parade is a check value to the evidence of identification in court of an accused by a witness and the same is a rule of prudence and not law. (f) In exceptional circumstances only, as discussed above, evidence of identification for the first time in court, without the same being corroborated by previous identification in the test identification parade or any other evidence, can form the basis of conviction. (g) Ordinarily, if an accused is not named in the first information report, his identification by witnesses in court, should not be relied upon, especially when they did not disclose name ofthe accused before the police, but to this general rule there may be exceptions as enumerated above."

20. This judgment was followed bythis Court in inRijaul Khan vs. State, 2014 (1) JCC 670and it was observed as under:- "As a legal principle, the substantive evidence ofa witness is the statement made by him in the Court. The identification forthe first time in the Court, by its very nature, is of a weak character and, therefore, the Court corroborative evidence ifthe witness identifies the accused while deposing in the Court."

21. The power to identify also varies in terms ofpower ofobservation and memory ofthe identifying person. Another relevant circumstance in this regard is as to for how much time the witness had seen the accused. If, for instance, he had only aglimpse ofthe accused, he may not be in a position to firmly recall his identity, but ifhe had interacted with the accused for a substantial time and had ample opportunity to observe him, he may face no difficulty in identifying him at alater date.

22. In Raman Bhai Naran Bhai Patel & Others vs. State of Gujarat, (2000) 1see 358, the two injured eye witnesses PW[2] and PW14 tried to identify the accused only in the Court and they were not knowing them earlier. No identification parade was held during the course of investigation. It was held by the Apex Court that though their evidence is to be treated to be one ofaweak nature, but it cannot be said to be totally irrelevant or inadmissible. The Court was of the view that since the aforesaid witnesses were seriously injured in the incident and could have easily seen the faces ofthe persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad day light, they could not be said to be interested in roping any innocent person by shielding the real accused who had assaulted them. '>i corroboration whatsoever cannot form the sole basis for conviction, there may be exceptions to the said general rule when for example the Court is impressed by a particular witness, on whose testimony it can safely rely, without corroboration.

24. If the accused refuses Test Identification Parade without any justifiable cause, he does at his own peril and the Court will, in such circumstances, be justified in drawing an inference that had the appellant participated in Test Identification Parade he would have been identified by the witnesses and that precisely was the reason why he refused to join the TIP. Similar view was taken by the Hon'ble Supreme Court in Suraj Pal vs. State ofHaryana, (1995) 2 SCC 64. Therefore, the Court would be justified in inferring that had the appellant participated in the TIP, he would have been identified by the complainant. What can be culled out from the aforesaid decision is that the identification of the accused by the complainant in court coupled with his refusal to join TIP establishes the identity ofthe accused as the assailant ofthe crime.

25. It has come in the deposition of the victim that there was light and he had seen the faces of all the three assailants. The mere fact that in the site plan the Investigating Officer has not shown any light does not mean that there was no light so as to identify the accused persons. Even PW-1 Ram Bhagat Yadav has deposed that there was street light. According to the victim the incident continued for about half an hour during which period him and robbed him of his articles. Moreover, so far as Veer Bahadur Singh is concerned, the complainant alleges that he knevy him from earlier although he did not know his name at that time. Even the accused admits that he was living at a short distance from his house and, therefore, was known to the complainant. Under the circumstances, the complainant could not have committed mistake in identifying the accused during the course of trial. Therefore, identification of the accused in Court coupled with their refusal to join TIP before the Metropolitan Magistrate is sufficient to establish their identity as the perpetrators ofthe crime.

26. It has further come on record that when accused Maninder Singh was arrested, mobile phone belonging to the complainant was recovered from his possession. Pursuant to the disclosure statement made by accused Keshav Kumar, purse Ex.PW-13/D belonging to the complainant was recovered from the bushes of Priyadarshni Park which was containing prescription slip of doctor, driving licence and some visiting cards. The mere fact that some of the articles contained in the purse do not belong to the complainant does not mean that the purse does not belong to the complainant.

27. As regards the non-recovery of weapon of offence in Praveen Kumar vs. State, 1997 Crl.L J 577 (Bom) it was observed that simply because the knife used in the commission of offence could not be recovered, it cannot said that the weapon was not used, especially where there is unimpeachable coming outandhe hadto remain hospitalised fornumber of days which find corroboration from the medical evidence where injuries on the person of complainant was opined to be dangerous. Under the circumstances, there is clinching evidence available on record that the complainant was robbed of his mobile and purse and while committing robbery dangerous injuries were caused on the person ofthe injured.

28. The learned Sessions Judge charged all the accused simplicitor under Section 397 read with Section 34 ofthe IPC and then under Section 307 read with Section 34 of the IPC. Section 397 and Section 398 of the IPC do not create any substantial offence but regulate the measure of punishment when certain facts are found in an aggravated situation. Therefore, there cannot be a charge simplicitor under Section 397 of the IPC. The charge has to be under Section 392 read with Section 397 or under Section 394 read with Section 397 or under Section 395 read with Section 397 of the IPC. Moreover, when Section 397 does not refer to any substantial offence, Section 34 ofthe IPC would be inapplicable. The word "offender" in Section 397 refers only to the person who is proved to have actually used deadly weapon and not to the others, who in combination with such persons, have committed robbery or dacoity. Therefore, Section 34 of the IPC has no application in construction of Section 397 though it may read with Sections 392, 394 or 395 ofthe IPC to determine the substantial offence.

29. The law is very well explained, as early as, in the case of Emperor v. AH Mirza, 1924 ILR (Vol.LI) Calcutta Series 265. In this case, it is held as X Penal Code has no application in the construction of Sections 397 and 398, though it may be read with Section 392 and 395 to determine the substantive offence which is created."

30. Thereafter in Emperor v. Dulli; 1925 ILR (VOLXLVII) Allahabad Series 59 it is held as follows: Before section 397 of the Indian Penal Code can be made applicable it is necessary that each of the accused should be proved to have been the offender doing the acts mentioned therein. When section 397 does not refer to any substantive offence, section 34 of the Indian Penal Code would be inapplicable. For the purposes of section 397 all the persons participating in the dacoity would not be held responsible for the acts of the others."

31. In Phool Kumar v. Delhi Administration; 1975 CRJ.L.J 778, the Supreme Court held as under:- "The use of a deadly weapon by one offender at the time of committing robbery cannot attract Section 397 for the imposition of the minimum punishment on another offender who had notused any deadly weapon."

32. The Apex Court in Ashfaq v. State (Govt of NCT of Delhi), 2004 CRI.L.J 936 explained the provision of Section 397 IPC and held as follows;- "No doubt the provision postulates onlythe individual act of the accused to be relevant to attract Section 397 IPC and thereby inevitably negates the use of the principle of constructive or vicarious liability engrafted in Section 34, IPC."

33. In view of the aforesaid legal position, framing the charge simplicitor under Section 397ofthe IPC was contrary to law. Further, applying Section 34 to Section 397 of the IPC was another defect in the charge as well as in recording conviction of the accused under Section 397 read with Section 34 of the IPC. committing robbery which was a deadly weapon in view of the medical evidence. As regards accused Keshav Kumar, it is not the case of prosecution that he was also armed with any deadly weapon. His role is confined to rendering assistance to Veer Bahadur Singh by catching hold the complainant hence his conviction with the aid of Section 34 IPG cannot be legally sustained. However, in the process of committing robbery hurt was caused to the victim as such, he is liable to be convicted under Section 394/34 IPG.

35. So far as Veer Bahadur Singh is concerned, there is ample evidence on record against him to establish that he was carrying a deadly weapon with him at thetime ofalleged robbery with which he caused grievous hurt on the person of the complainant as such, he is liable to be convicted under Section 394 read with 397 IPG. No prejudice is caused to any of the accused for their conviction under Section 394 IPG as all the essential ingredients of this Section were put forth while framing charge against them.

36. As regards the submission that Section 397 and 307 IPG cannot go together, this submission has no legs to stand in as much as in Ankush Maruti Shinde & Ors. V[5]. State of Mahrashtra, (2009) 6 SCC 661, the appellants were convicted under Section 397 read with Sections 395 and 396IPG and Section 307readwith Section 34 IPG. Again inPargan Singh vs'. State of Punjab, (2014) Crl.L.J 4413 the conviction of the appellant

37. The essential ingredients required to be provedin the case of offence under Section 307 are:-

(i) thatthedeath of a human being was attempted;

(ii) that such death was attempted to be caused by or in consequence of the act of the accused;

(iii) that such act was done with the intention of causing death; orthat it was done with the intention of causing such bodily injury as; (a) the accused knew itto be likely to cause death; or (b) was sufficient inthe ordinary course ofnature to cause death, or that the accused attempted to cause deathby doing an act which was so iminently dangerous that it must in all probability cause (a) death, or(b) such bodily injury asis likely to cause death, the accused having no excuse for incurring the risk of causing such death or injury. \

38. In offence under Section 307 all the ingredients of offence of murder are present except the death ofthe victim. For the application of Section 307 IPG it is not necessary thatthe injury capable of causing death should have been actually inflicted. In the instant case the injuries sustained, the marmer of assault and the weapon used clearly make outa case of Section 307 IPG. While accused Veer Bahadur Singh inflicted knife injury on the person ofthe complainant the remaining two accused assisted him in the commission of crime by catching hold of the victim therefore they were rightly convicted under Section 307/34 IPG. / Thus, there is no cogent reason to interfere with the impugned judgment except for the modification that accused Keshav Kumar is convicted under Section 394/34 IPG, and Veer Bahadur Singh is convicted under Section 394 read with 397 IPG. Conviction under Section 307/34 IPG does not call for interference.

40. Goming to the quantum ofsentence, so far as Veer Bahadur Singh is concerned, he was sentenced to undergo rigorous imprisonment for a period ofseven years for offence under Section 397 IPG besides fine and three years RI for offence under Section 307/34 IPG besides fme. This sentence does not call for interference as the minimum sentence prescribed under Section 397 IPG is seven years.

41. As regards accused Keshav Kumar, he was also awarded the same sentence as awarded to Veer Bahadur Singh. However, keeping in view the fact that he is liable to be convicted under Section 394/34 IPG besides 307/34 IPG as such while maintaining the sentence under Section 307/34 IPG the conviction under Section 394/34 IPG is modified to rigorous imprisonment for five years while maintaining the quantum of fme. With thesemodifications the appeals standdisposed of Gopy ofthe judgment along with Trial Gourt record be sent back. Appellants be informed through Superintendent Jail.