Ram Prakash @ Raju Kharkar and Rajesh @ Raja vs The State

Sunil Gaur, J.—The above titled two appeals arise out of common impugned judgment of 26th April 1999, whereby these two Appellants have been convicted for the offence punishable u/s 392 and 397 read with Section 34 of IPC and vide order of 28th April 1999, trial court has sentenced them to undergo rigorous imprisonment for seven years each with fine of Rs. 2,000/- each for the offence punishable u/s 397 of IPC and for the offence punishable u/s 392 of IPC, they have been sentenced to undergo rigorous imprisonment for three years each with a fine of Rs. 1,000/- each. Both these sentences have been ordered to run concurrently.

With the consent of the parties, both these appeals have been heard together and are being disposed of together by this common judgment.

The ocular version of this incident, as narrated by the injured/first informant ''Ramesh (PW-2), in brief, is that on 7th December 1997, at about 8.30 PM, after taking his meals, he was coming out of hotel of one Cheena in Nand Nagri, Delhi and when he had reached near the old police post in Nand Nagri, he was over powered by Raju Kharkar (whose name was later on revealed as Ram Prakash, i.e., Appellant herein) and Appellant - Rajesh @ Raja. Thereafter, they tried to snatch his purse/money and when he resisted, Appellant Ram Prakash @ Raju Kharkar gave a knife blow on his abdomen while Appellant'' Rajesh @ Raja gave a knife blow on his back and their associate/co-accused Rajesh @ Bobby (Proclaimed Offender) had secured him by his hands and then while fleeing away, they took his purse which contained Rs. 4,600/- and cash of Rs. 800/-, which was in his other pocket.

Suresh (PW-1) is the brother of the injured (PW-2) and he had purportedly reached the hospital at about 10 PM on the day of the incident, upon learning about this incident and as per this witness, he was informed by his injured brother (PW-2) that he was assaulted by these two Appellants. An FIR regarding this incident was registered and during the investigation, these two Appellants were arrested and Appellant - Rajesh @ Raja in pursuance to his disclosure statement, is said to have got recovered the weapon of offence, i.e., knife out of the heap of stones lying outside the boundary wall of a school at B-4 Block, Nand Nagri, Delhi. Appellant - Ram Prakash @ Raju Kharkar is said to have disclosed that his weapon of offence, i.e., the knife was with his co-accused Rajesh @ Bobby. After the completion of investigation, both these Appellants were charge-sheeted in this case.

Since these two Appellants had claimed trial by not pleading guilty to the charges u/s 392/397/34 of IPC, and Appellant - Rajesh @ Raja for the offence u/s 25 of Arms Act, evidence of eight witnesses was recorded by the trial court and the fate of this case hangs upon the testimony of first informant/injured (PW-2) and of his brother Suresh, (PW-1). Sub Inspector Satish Kumar is the Investigating Officer of this case.

The stand of both these Appellants/accused before the trial court was of denial of the prosecution case. Appellant - Ram Prakash @ Raju Kharkar had alleged false implication in this case at the instance of injured Ramesh (PW-2), whereas Appellant - Rajesh @ Raja had asserted that he was falsely implicated in this case by the Investigating Officer of this case.

The two witnesses got examined by the Appellants/accused have simply certified that these two Appellants are persons having good moral character. But, the two defence witnesses have pleaded ignorance about the facts of this case.

After the trial, both these Appellants stand convicted and sentenced as noticed in the opening paragraph of this judgment.

After having heard both the sides and upon scrutiny of evidence on record, I find that the reliance placed by learned Counsel for Appellants upon decisions reported in 1982 SCC (Cri) 334 and 2007 (4) Crimes 77 (SC), are of no avail as the facts of every criminal case differs from the facts of another criminal case and there are no precedents in criminal law.

The contention of the two Appellants of there being no Test Identification Parade is rendered sterile as it is found that the two Appellants/accused are named in the FIR, which is based upon the statement of injured (PW-2).

It stands revealed from the testimony of injured (PW-2) that he had fully supported the prosecution case in his examination in chief recorded on 26th February, 1999, and his cross-examination was deferred on account of absence of counsel for the accused and on the next day, this witness (PW-2) was cross- examined by the defence, wherein he took a somersault regarding the identity of the Appellants/accused by stating that due to poor visibility at the spot, he was not in a position to identify the assailants. Not only this, this witness (PW-2) has gone to the extent of stating in cross-examination by the defence that he had not seen the Appellant - Rajesh at the spot and he was not known to him, prior to the day of incident.

It has been highlighted by the defence that this witness (PW-2) in cross- examination has stated that after this incident he became unconscious and he had regained consciousness in the hospital on the next day and thus he contradicts his brother (PW-1), who has stated in his evidence that in the hospital, on the same day of incident, injured had disclosed the name of these two Appellants as the assailants. It has also been pointed out that the injured (PW-2) has admitted in the cross-examination that these two Appellants were shown to him in the Police Station after a month or two of this incident. It has been also pointed out on behalf of the Appellants that this witness (PW-2) has denied the prosecution case of this witness accompanying the police to the house of Appellant/accused - Ram Prakash @ Raju Kharkar. Learned Counsels for these appellants/accused have also tried to point out the infirmity in the prosecution case regarding the recovery of knife by contending that it is not from the open place and is hit by Section 27 of the Evidence Act. Thus, it has been contended that in view of the aforesaid infirmities in the prosecution case, conviction of the Appellants is illegal and deserves to be set aside. Nothing else is urged on behalf of the Appellants.

On the other hand, learned Additional Public Prosecutor for the State has supported the impugned judgment and has submitted that due to the break in the recording of the examination- in-chief and cross-examination of the injured witness, for extraneous reasons, he has taken somersault in the cross- examination by the defence but that will not make any difference for the reason that the Apex Court in the case of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, has held that the part of the evidence of hostile witness can be acted upon, if it is found acceptable and the trial court has rightly acted upon the chief examination of the injured (PW-2) and upon the evidence of his brother Suresh (PW-1). It is also urged that the discrepancies regarding the recovery of the knife are of no consequence as there is an acquittal by the trial court for the offence punishable u/s 25 of the Arms Act. However, it is rightly asserted that conviction for the offences u/s 392/397/34 of IPC does not stand vitiated on account of acquittal u/s 25 of the Arms Act or for want of recovery of weapon of offence.

It is a matter of record that the chief examination of the injured (PW-2) and his brother Suresh (PW-1) was recorded on one date and they have fully supported the prosecution case. However, on the next day, in their cross- examination by the defence, they have tried to dilute the prosecution case, so far as the identity of the Appellants/accused is concerned. Even if it is taken, without accepting it to be so, that these two Appellants were shown to the injured in the Police Station after a month or two of the incident, it will not make any difference, because the assailants were named at the earliest point of time, i.e., in the First Information Report.

Since these two Appellants are specifically named in the FIR and they have been attributed the role of stabbing the injured which stands corroborated from the MLC Ex.PW-3/A of the injured, I find that the dilution of the prosecution version by PW-1 and PW-2 in the cross-examination by the defence is of no avail, as the recording of the FIR in question stands firmly proved from the evidence on record. False implication of the Appellants at the instance of Ramesh (PW-2), as alleged, is of no consequence as it has not been suggested to this witness (PW-2) that he has falsely implicated the Appellants. No reason is forthcoming as to why injured (PW-2) or his brother (PW-1) would falsely implicate these two Appellants. Likewise, there is nothing on record to suggest as to why the Investigating Officer of this case would falsely implicate the Appellants/accused. It is not shown as to how the deposition of the two defence witnesses is of any help to the case of these two Appellants.

Administration of justice cannot be left at the mercy of witnesses who try to wriggle out of their chief examination, in cross-examination which is recorded on another day. For stating so, decision of the Apex Court rendered in the case of Khujji alias Surendra Tiwari Vs. State of Madhya Pradesh, can be safely relied upon. No decision to the contrary has been cited.

In my considered opinion, the chief examination of the injured (PW-2) and of his brother Suresh (PW-1) inspires utmost confidence and it receives ample corroboration from the MLC of the injured referred to above, which indicates that injured Ramesh was conscious when he was brought to the hospital at about 10 PM. This probabalises the fact of injured (PW-2) telling the names of the Appellants as assailants to his brother (PW-1) in the hospital on the day of this incident itself.

Upon taking an overall view of the entire evidence on record, I find that the conviction and the sentence imposed upon these two Appellants by the trial court is well deserved and it calls for no interference by this Court. Resultantly, these two appeals are without merit and are dismissed as such. Both these Appellants are on bail. Their bail bond and surety bonds are cancelled. Trial court is directed to take them into custody to serve out the remainder of the sentence awarded by the trial court.

With the aforesaid directions, these two appeals are disposed of.