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CRL.REV.P. 261/2013 Page 1
HIGH COURT OF DELHI
CRL.REV.P. 261/2013 & Crl.M.(B) 898/2013
KAMAL @ KALU ..... Petitioner
Through: Mr. Anil Dagar, Advocate
HIGH COURT OF DELHI
CRL.REV.P. 261/2013 & Crl.M.(B) 898/2013
KAMAL @ KALU ..... Petitioner
Through: Mr. Anil Dagar, Advocate
VERSUS
STATE ..... Respondent
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-State with
SI Rakesh Duhan
Through: Mr. Mukesh Gupta, Additional Public Prosecutor for respondent-State with
SI Rakesh Duhan
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 06.08.2013
In this petition, conviction of petitioner for the offences under Section
392/411/34 of IPC in FIR No.376/2010 registered at P.S. Keshav Puram, Delhi and the sentence of rigorous imprisonment of four years’ with fine of
` 2,000/- is under challenge. Appellate court vide impugned order of 8th March, 2013 affirms petitioner’s conviction and sentence for the aforesaid offence.
Learned counsel for petitioner had agreed to argue the main petition itself instead of arguing the application for suspension of sentence. To assail petitioner’s conviction, it was vehemently contended that the deposition of star witness (PW-2) is discrepant as he has deposed that the robbed mobile phone was recovered from co-accused-Kishan whereas as per prosecution’s case, it was recovered from petitioner. It was pointed out that the case property produced in the court was in an unsealed condition and star witness
(PW-2) has admitted before the trial court that currency notes of `100/- in the robbed purse did not belong to him. It was also urged on behalf of
2013:DHC:3906
In this petition, conviction of petitioner for the offences under Section
392/411/34 of IPC in FIR No.376/2010 registered at P.S. Keshav Puram, Delhi and the sentence of rigorous imprisonment of four years’ with fine of
` 2,000/- is under challenge. Appellate court vide impugned order of 8th March, 2013 affirms petitioner’s conviction and sentence for the aforesaid offence.
Learned counsel for petitioner had agreed to argue the main petition itself instead of arguing the application for suspension of sentence. To assail petitioner’s conviction, it was vehemently contended that the deposition of star witness (PW-2) is discrepant as he has deposed that the robbed mobile phone was recovered from co-accused-Kishan whereas as per prosecution’s case, it was recovered from petitioner. It was pointed out that the case property produced in the court was in an unsealed condition and star witness
(PW-2) has admitted before the trial court that currency notes of `100/- in the robbed purse did not belong to him. It was also urged on behalf of
2013:DHC:3906
CRL.REV.P. 261/2013 Page 2 petitioner that as per Investigating Officer (PW-6), all the writing work was done at the spot whereas star witness (PW-2) has deposed that his statement was recorded in the police station.
Attention of this Court was drawn by petitioner’s counsel to the deposition of Investigating Officer (PW-6) and constable (PW-5), who had accompanied the Investigating Officer (PW-6) during the course of investigation, to point out that no public witness was asked to join the investigation and Investigating Officer (PW-6) has deposed that the recovered mobile phone was not in working condition and this stands contradicted by the constable (PW-5), who had deposed that the recovered mobile phone was in working condition.
According to petitioner’s counsel, aforesaid contradictions are of material nature which renders the entire prosecution case doubtful and so petitioner deserves benefit of doubt and ought to be acquitted.
Learned Additional Public Prosecutor supports the impugned
Attention of this Court was drawn by petitioner’s counsel to the deposition of Investigating Officer (PW-6) and constable (PW-5), who had accompanied the Investigating Officer (PW-6) during the course of investigation, to point out that no public witness was asked to join the investigation and Investigating Officer (PW-6) has deposed that the recovered mobile phone was not in working condition and this stands contradicted by the constable (PW-5), who had deposed that the recovered mobile phone was in working condition.
According to petitioner’s counsel, aforesaid contradictions are of material nature which renders the entire prosecution case doubtful and so petitioner deserves benefit of doubt and ought to be acquitted.
Learned Additional Public Prosecutor supports the impugned
JUDGMENT
and submits that the identity of petitioner-accused as well as mobile phone recovered from petitioner is not in dispute and the contradictions pointed out by petitioner’s counsel are not fatal to the prosecution case.
Upon hearing both the sides and on perusal of the impugned judgment and the material evidence on record, I find that no doubt there are contradictions in the prosecution case, but on the basis of defective investigation, an accused cannot be acquitted.
Appellate court has rightly relied upon Apex Court’s decision in
Dhanaj Singh @ Shera and others v. State of Punjab, AIR 2004 SC 1920 to hold so. Appellate court is right in its conclusion that no benefit can be given
CRL.REV.P. 261/2013 Page 3 on account of non-joining of public witness as nowadays public witness seldom come forward to join the investigation of serious cases like the instant one.
Impugned judgment analytically deals with the submissions advanced which are reiterated before this Court and has rightly affirmed petitioner’s conviction and sentence as the identity of petitioner as an accused and of recovery of the mobile phone of victim (PW-2) from petitioner cannot be discredited because no reason is forthcoming as to why complainant/first- informant would falsely implicate petitioner in a case like the instant one.
In the facts and circumstances of this case, production of case property in an unsealed condition would not be fatal to the prosecution case.
It has to be kept in mind that minor contradictions are bound to arise when the deposition of material witness is recorded after a lapse of more than one year.
In the considered opinion of this Court, discrepancies in the prosecution case, as pointed out by petitioner’s counsel, are not fatal to the prosecution case as the substratum of the prosecution’s case stands proved beyond reasonable doubt.
Finding no illegality or infirmity in the impugned judgment, conviction and the sentence awarded to petitioner is maintained.
This petition and the application are dismissed.
(SUNIL GAUR)
Judge AUGUST 06, 2013 s
Upon hearing both the sides and on perusal of the impugned judgment and the material evidence on record, I find that no doubt there are contradictions in the prosecution case, but on the basis of defective investigation, an accused cannot be acquitted.
Appellate court has rightly relied upon Apex Court’s decision in
Dhanaj Singh @ Shera and others v. State of Punjab, AIR 2004 SC 1920 to hold so. Appellate court is right in its conclusion that no benefit can be given
CRL.REV.P. 261/2013 Page 3 on account of non-joining of public witness as nowadays public witness seldom come forward to join the investigation of serious cases like the instant one.
Impugned judgment analytically deals with the submissions advanced which are reiterated before this Court and has rightly affirmed petitioner’s conviction and sentence as the identity of petitioner as an accused and of recovery of the mobile phone of victim (PW-2) from petitioner cannot be discredited because no reason is forthcoming as to why complainant/first- informant would falsely implicate petitioner in a case like the instant one.
In the facts and circumstances of this case, production of case property in an unsealed condition would not be fatal to the prosecution case.
It has to be kept in mind that minor contradictions are bound to arise when the deposition of material witness is recorded after a lapse of more than one year.
In the considered opinion of this Court, discrepancies in the prosecution case, as pointed out by petitioner’s counsel, are not fatal to the prosecution case as the substratum of the prosecution’s case stands proved beyond reasonable doubt.
Finding no illegality or infirmity in the impugned judgment, conviction and the sentence awarded to petitioner is maintained.
This petition and the application are dismissed.
(SUNIL GAUR)
Judge AUGUST 06, 2013 s