Keshav Kumar @ Sajan v. State NCT of Delhi

JUDGMENT ; SUNITA GUPTA. J. For detailed order see Crl.A.No. 1088/2012. MARCH 18,2015 mb Crl.A. 820-2013 i\^-r7r^^ (SUNITA GUPTA) JUDGE $ * IN THE HIGH COURT OF DELHI AT NEW DELHI Date of Decision: 18"" March, 2015 + Crl.A. 1088/2012 VEERBAHADURSINGH@VEERU Appellant Through: Mr.U.M.Tripathi,Advocate Versus STATE Respondent Through; Mr.O.P.Saxena,AdditionalPublic Prosecutor for the State alongwith SI InderpalfromPoliceStationRajouri Garden. Cri.A. 820/2013 KESHAVKUMAR@SAJAN Appellant Through: Mr.U.M.Tripathi,Advocate Versus STATENCT OF DELHI Respondent Through: Ms.JasbirKaur,AdditionalPublic Prosecutor for the State alongwith SI Manohar Lai, Police Station Rajouri Garden, Delhi. CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA .1TID G M E N T : SUNITA GUPTA, J.

¶1Challengein these two appeals is to the judgmentdated 02.12.2011 and order on sentence dated 14.12.2011qua accusedVeer Bahadur Singh Crl.A.1088-2012&820-2013 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 IPG as under and were sentenced as under:-

(i) Under Section 397 IPG 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 IPG to undergo three years rigorous imprisonmentand to pay a fine of Rs.3000/- in defaultfurtherthree months rigorous imprisonment.

¶2Filteringthe unnecessarydetailsthe broad essentialfacets as put forth by the prosecutionare that on receiptofDD No.40AEx.PW9/A,ASI Hawa Singh alongwithGonstableRam KumarreachedKamlaMai Hospitalwhere they came to know that injuredHari Kishanwas broughtin the hospitalbut since his conditionwas seriousas 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 inspectedthe MLG. The doctor declaredHari Kishan Yadav unfit for statement. Since no eyewitnesswas available in the hospital as such, after making endorsementon the DD Ex.PW9/D,mkka was sent to policestationthroughGonstableRam Kumaron the basisofwhichFIRwas registeredunder Section307 IPG. Furtherinvestigationwas entrustedto SI BalbirSinghwho alongwithGonstableRam Kumarreachedthe spot where he met PW-1 Ram Bhagat Yadav who handed over a sweaterwhich was seizedvide seizurememo Ex.PWl/G.He disclosedthat on hearingthe noise of incidenthe reached the spot and found Hari Kishan Yadav in injured conditionand then he was sent to hospital.On 11.02.2009afterthe injured CrI.A.1088-2012&820-2013 ^"8®^ was declared fit for statement his statement was recorded. Thereafter Sections 394 and 397 IPG were added. After the injured was discharged from the hospital,on his pointingout siteplanEx.PW13/Awas prepared.

¶3It 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.PWS/A. Motorcycle was also seized. On receipt of informationfrom specialstaffaboutthe arrestofthe accusedpersons,on 29.03.2009PW-13 SI BalbirSingh interrogatedthe accusedpersonsinthe Court after seeking permission. Thereafter an application was moved before the learned MetropolitanMagistrate for conductingTest IdentificationParade of the accused persons however the accused refiised to join the proceedings. Pursuantto the applicationmoved by the InvestigatingOfficerof the case for grant of police remand, two days police remand was granted. Accused KeshavKumarled the policeparty at PriyadarshniPark and on his pointing out one purse was recoveredfrom thebushescontainingprescriptionslip 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. Crl.A.1088-2012 & 820-2013

¶4After compliance of provisions of Section 207 of the Code of CriminalProcedurethe casewas forwardedto the CourtofSessions.Charge for offenceunder Sections397/307/34IPC was framed againstthe accused to whichtheypleadednot guiltyand claimedtrial.

¶5In order to substantiateits case, prosecutionexamined14 witnesses. The case of accusedpersons in their statementunder 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 adducedby the prosecutionas well as accusedand convictedthe appellants for the aforesaidoffencesand sentencedthem, as mentionedabove.

¶6Feehngaggrieved,separateappealshavebeenpreferredby two ofthe convicts.

¶7It was submittedby learnedcounsel for the appellantVeer Bahadur Singh that no recovery was effected either from this appellantor 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,identificationof the accused for the first time in Court is of no consequence.Furthermore,accordingto PW-1 Ram BhagatYadav, he saw the victim lying in a jungle.There is nothingon recordto show that there was any electricityso that the victim could have identifiedthe accused persons.As regardsrecoveryofpurse and mobile,it was submittedthat the contentsof the articlesrecoveredfrom the pursereflectsthat the same does CrI.A.1088-2012&820-2013 Page4of20 not belongto victimand eventhe colourofthe mobilephoneis changed.As such,the same doesnotconnecttheaccusedwithcrime.

¶8LearnedcounselrepresentingappellantKeshavKumarsubmittedthat the only role attributedto this appellantis that ofbeatingand catchinghold the injured.In the absenceof"userofany deadlyweapon"by this appellant he could not have been convictedunder Section 397 IPG with the aid of Section 34 IPG. Moreover, the appellant has also been convicted under Section307 IPG howeverSection397 and 307 IPG cannotgo together. It was also contendedthat the weapon of offence was not recoveredand the contentsofthe purse goes to show that the same does not belongto victim. Under the circumstances,prosecutionhas failed to bring home the guilt of the accused beyond reasonable doubt as such, accused are liable to be acquitted.

¶9Rebuttingthe submissionsoflearnedcounselfor the appellantsitwas submitted by learned Additional Public Prosecutor for the State that a convictioncan be based on the sole testimonyof the victim. In the instant case none of the accusedis allegingany enmity with the injuredfor which reason he will falsely implicatethem. The accusedpersonsrefusedto join Test Identificationproceedingsas such, adverse inference is liable to be drawn againstthem. Moreover,they were duly identifiedby the victim m the Gourt.Non recoveryofweaponofoffencedoes not cast any dent on the prosecutionversion. Even if the articles lying in the purse are not in the name ofthe victim,it does not mean that the purse does not belongto him. The impugnedjudgmentdoes not sufferfrom any infirmitywhich calls for interferenceas such,appealsare liableto be dismissed. Crl.A.1088-2012&820-2013 Page5of20

¶10The case of prosecutionis 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 vs. State of Tamil Nadu, AIR 2008 SC 1381.

¶11There is no legal impediment in convicting a person on the sole testimony of a single witness. It is the quality and not the quantity of evidence which is necessary for proving or disprovinga fact. The legal system has laid emphasis on value, weight and quality of evidencerather than on quantity,multiplicityor pluralityof witnesses.The test is whether the evidence has a ring of tmth, is cogent, credible and trustworthyor otherwise.

¶12Moreover,the victim is also an injuredwitness.The evidenceofan injuredwitnessmust be givendue weightagebeingastampedwitness,thus, his presencecannotbe doubted.His statementis generallyconsideredto be very reliableand it is unlikelythathe will sparethe actualassailantin order to falsely implicatesomeoneelse. The testimonyof an injuredwitnesshas its own relevancyand efficacyas he has sustainedinjuriesat the time and place of occurrenceand this lends support to his testimonythat he was presentduringthe occurrence.Thus, the testimonyof an injuredwitnessis accordeda specialstatus in law. The witnesswould not like or want to let his actualassailantgo unpunishedmerelyto implicateathirdpersonfalsely for the commissionofthe offence.Thus,the evidenceofthe injuredwitness Crl.A.1088-2012 & 820-2013 Page 6 of20 iV should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein.

¶13In Abdul Sayed v. State of Madhya Pradesh,

(2010) 10 SCC 259, SupremeCourt laid down ; "26. The questionofthe weightto be attachedto the evidenceof a witnessthat was himself injured in the course of the occurrence has been extensively discussed by this Court. Where a witness to the occurrencehas himself been injuredin the incident,thetestimonyofsuch awitnessis generallyconsideredto be very reliable,as he is a witnessthat comes with a built-inguaranteeof his presenceatthe scene of the crime and is unlikelyto spare his actual assailant(s) in order to falsely implicate someone. "Convincing evidence is required to discreditan injured witness." [Vide Ramlagan Singh v. State of Bihar, 1972 SC 2593i.MalkhanSingh &Anr. v. State of Uttar Pradesh,AIR 1975 SC 12^ Machhi Singh & Ors. v. State of Punjab, AIR 1983 SC 957; Appabhai & Anr. v. State of Gujarat. AIR 1988 SC 696;_Bonkyaalias Bharat Shivaii Mane & Ors. v. State of Maharashtra. (1995) 6 SCC 447; Bhag Singh & Ors. (supra); Mohar &Anr.v. State of Uttar Pradesh{2002)7 SCC 606; Dinesh Kumar v. State of Rajasthan,(2008) 8 SCC 270; Vishnu & Ors v. State of Raiasthan (2009) 10 SCC 477; Annareddy SambasivaReddv&Ors.v.StateofAndhra Pradesh.AIR 2009 SC 2261 and Balraje alias Trimbak v. State of Maharashtra. (2010) 6 SCC 673.

¶27Whiledecidingthis issue,asimilarview was taken in, JarnailSingh v. Stateof Punjab, (2009) 9 SCC 719, where this Court reiteratedthe special evidentiary status accordedto the testimonyof an injuredaccused and relyingon its earlier judgments held as under: "DarshanSingh (PW 4) was an injuredwitness. He had been examinedby the doctor. His testimonycould not be brushed aside lightly. He had given full details of the incident as he was present at the time when the assailants reached the tubewell. In Shivalingappa Kallayanappav. State of Karnataka, 1994 Supp (3) SCC 235, this Court has held that the depositionofthe injured witnessshouldbe relied upon unlessthere are stronggroundsfor rejectionof his evidence on the basis of major contradictions and discrepancies,for the reason that his presenceon the scene stands establishedin case it is proved that he suffered the injury during the said incident. In State of U.P. v. Kishan Chand. (2004) 7 SCC 629, a similarview has been reiterated observingthat the testimony of a stamped witness has its own relevanceand efficacy.The fact that the witnesssustainedinjuriesat the time and place of occurrence,lends supportto his testimonythat he was present Crl.A.1088-2012&820-2013 Page7of20 during the occurrence. In case the injured Vi/itness is subjected to lengthy cross-examination and nothing can be elicited to discard his testimony, it should be relied upon (vide Krishan v. State of Harvana (2006) 12 SCC 459). Thus, we are of the considered opinion that evidence of Darshan Singh (PW4) has rightly been relied upon by the courts below.

¶28The law on the point can be summarized to the effect that the testimony of the injured witness is accorded a special status in law.This is as a consequence of the fact that the injury to the witness is an in-built guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein."

¶14In view of this legal position, let us revert to the case in hand.

¶15PW-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 pickedup his purseand startedbeating.All the threeaccusedstartedbeating 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 Keshavby deposingthat they werethe acciisedwho caughthold of him. He receivedeight injurieson differentparts of his body. His intestinescame out from the stomach due to the injuries caused by accused Veeru. He became unconscious. Due to injuriescausedby the accusedpersonshe was unable to performhis dailypursuits.He saw the accusedpersonswhenthey caused injuryonhis person.They robbedhim ofhis purse and phone.He identified his purse Ex.P-1 containingthe articles and mobile phone Ex.P-2 which were robbedduringthe incident.It has come in the cross-examinationofthe Crl.A.1088-2012&820-2013 Page^ of20 i witnessthatVeeniwas livingat MayapuriChowkand he was familiarwith his face althoughhe did not know his name. AccusedVeer BahadurSingh 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 complainanthad no enmitywithhim and he cannottell as to why he got him implicated in this case. The witness was subjected to lengthy cross-examination by learned counsels for all the accused persons however nothingmaterialcouldbe elicitedto discredithis testimony.Admittedly,he was not having any animosityeither with accusedVeer BahadurSingh or the remainingaccusedpersonsfor whichreasonshe wouldfalselyimplicate them in this case while allowingthe real culpritsto go scot free. From the depositionofthis witnessit becomesclearthatwhile he was returningfrom his duty he was robbed ofhis purse and mobile phone by all the accused persons and while committingrobbery he was inflictedknife blow on his personby accusedVeer BahadurSingh with the assistancerenderedby his co-accusedwho caught hold of him with the result the witness sustained injurieson variouspartsofhis body and he fell unconscious.The testimony of the witness is reliable, credibleand inspire confidence.

¶16Accordingto PW-1 Mr.Ram Bhagat Yadav on 28.01.2009at about

9.30 pm he was goingto purchasemeat alongwithone otherperson.On the waytherewas alittlejungle.He heardnoiseofscreamingofaperson.When hesawhim henoticedthatthe victimwas his relativeHariKishanand blood was oozingout from his mouth.He broughthim to hisjhuggiand lateron he was sent to hospital. MLC of Hari Kishan Ex.PW-14/A prepared by Dr.RajeshShah was duly provedby PW-5 Dr.AvinashBhargav.According Crl.A.1088-2012&820-2013 9of20 to Dr.AmitAggarwal,the injurieson the person of Hari Kishanwas opined as dangerous.

¶17It has come in the statement of PW-9 ASI Hawa Singh that on receipt of DD N0.4OAhe went to Kamla Mai Hospital where he came to know that injuredHari Kishan was in serious conditionas such, he has been sent to DDU Hospital.Thereafteronreceiptof DD No.41Aregardingadmissionof injured in DDU Hospital, he went to the hospital where the injured was declaredunfit for statement.Accordingto PW-13 SI Balbir Singhhe could recordthe statementof injuredHariKishanonlyon 11.02.2009afterhe was declared fit for statement. Under the circumstances, from the testimony of the injuredthat in the course of committingrobberyhe was inflictedknife blowondifferentpartsofhis body resultinginhis intestinescomingout and due to injuriessustainedby him he is unable to performhis daily pursuits find corroboration from the medical evidence that the injured sustained dangerousinjuries.It is also evidentthat althoughthe incidenttookplaceon

28.01.2009the victimwas able to givethe statementonlyon 11.02.2009i.e., after about 14 days of the incident.

¶18As regards the identity of the accused being the assailants of the crime, it is a matter of recordthat after the accusedpersonswere arrested, applicationsfor conductingtheirTestIdentificationproceedingswas moved by SI Balbir Singh and were presentedbefore PW-2 Sh.AshishAggarwal, MetropolitanMagistrate.All the three accused i.e., Maninder Singh alias Rockey, Keshav Kumar alias Sajan and Veer Bahadur Singh alias Veeru refusedto join the proceedingson the groundthat they were shownto the witnesses in special cell. In their statementsrecorded under Section 313 Crl.A.1088-2012 & 820-2013 Cr.P.C accusedVeer Bahadur Singh and Keshav Kumar have admittedthat they refiisedto TIP howeverno reason was assignedregardingthis refusal whereas accusedManinderSingh took a plea that he never refusedto join the proceedingswhich however is belied by the proceedingsEx PW-13/B which reflect that he had refused to join TIP on the ground that he was shown to the witnesses. There is absolutelyno evidence on record to show that the accused were shown to the witness in special cell. In fact when the complainantcame in the witnessbox the appellantdid not even suggestto him that the witness has seen them in special cell. Even no suggestionwas given to the InvestigatingOfficerofthe case that the accusedwere shown to the witnessat specialcell. It was for the appellantsto showthatthey had been shownto the complainantand, therefore,theywerejustifiedinrefusing to join TIP proceedings.However, they failed to dischargethe aforesaid onus placedon them. The purposeofpriortestidentificationinthe presence of a Magistrateis primarilyto test and strengthenthe trustworthinessof an eye witness during the course of investigation.The test identification enablesthe eye witnessto identifythe personsinvolvedin the offencewho are not previouslyknownto them or the case property,subjectmatterofthe crime. Such identification also satisfies the Investigating Officer of the bonafide of the witness besides corroborating his testimony during the course of trial. The identificationduringthe course of such proceedingalso serves the purpose of reassuring the investigating agency that the investigationproceedingsare inthe rightdirectionand an innocentpersonis not being falsely implicated. Crl.A.1088-2012&820-2013 Page 11 of20

¶19The legal position with respect to identificationof 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 identificationparade does not make the evidence of identification in court inadmissible rather the same is very much admissible in law, but ordinarilyidentificationof 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 previousidentificationin the test identificationparade 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 previousidentificationin the test identificationparade or any other evidence, can form the basis of conviction.

(g) Ordinarily,if an accused is not named in the first informationreport, his identificationby witnessesin court, should not be relied upon, especiallywhen they did not disclosename ofthe accusedbeforethe police, but to this general rule there may be exceptions as enumerated above."

¶20Thisjudgmentwas followedbythis Courtin inRijaulKhan vs. State, 2014 (1) JCC 670and it was observedas under:- "As a legal principle,the substantiveevidenceofa witnessis the statement made by him in the Court.The identificationforthe firsttime in the Court, by its very nature, is of a weak character and, therefore, the Court normallylooks for corroboratipnof such evidence by way of some other evidence which may, inter alia, include identification in a Test IdentificationProceeding. Identificationin a Test IdentificationParade is not a substantive piece of evidence,though it can be used as a piece of Crl.A.1088-2012&820-2013 Page 12 of20 corroborativeevidenceifthe witnessidentifiesthe accusedwhiledeposing in the Court."

¶21The power to identifyalso varies in terms ofpower ofobservation and memory ofthe identifyingperson. Anotherrelevantcircumstancein this regardis as to for how much time the witnesshad seen the accused. If, for instance,he had only aglimpseofthe accused,he may not be in a position to firmly recall his identity, but if he had interactedwith the accusedfor a substantialtime and had ample opportunityto observehim, he may face no difficultyin identifyinghim at alaterdate.

¶22In Raman Bhai Naran Bhai Patel & Others vs. State of Gujarat,

(2000)1see 358, the two injuredeye witnessesPW2 and PW14 triedto identifythe accusedonly in the Court and they were not knowingthem earlier. No identification parade was held during the course of investigation.It was held by the Apex Courtthatthoughtheirevidenceis to be treatedto be one ofa weaknature,but it cannotbe said to be totally irrelevantor inadmissible.The Court was of the view that since the aforesaidwitnesseswere seriouslyinjuredin the incidentand couldhave easilyseen the faces ofthe personsassaultingthem and their appearance and identitywould well remainimprintedin their minds especiallywhen they were assaulted in broad day light, they could not be said to be interestedin ropingany innocentpersonby shieldingthe real accusedwho had assaulted them.

¶23InBudhsen&Anr. vs. Stateof U.P., 1970, Crl. L.J. 1149,the Apex Court, inter alia, observedthat though as a generalrule, identificationof the accused for the first time in the Court without there being any Crl.A.1088-2012 & 820-2013 '>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.

¶24If 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 of Haryana,

(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 of the accused as the assailant of the crime.

¶25It 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 he was robbed of his purse and mobile phone and was inflicted knife blow on differentparts of his body as such, the complainanthad ampletime and opportunityto retainin his mind the imprintof the personswho attacked Crl.A.1088-2012 & 820-2013 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 of the crime.

¶26It 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.

¶27As 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 evidence to indicate that knife was actually used by the accused. In the instant case also, PW-7 has categorically deposed that he was given injuries on different parts of the body by knife which resulted in his intestines Crl.A.1088-2012 & 820-2013 comingoutandhe hadto remainhospitalisedfor numberof days whichfind corroboration from the medical evidence where injuries on the person of complainantwas opinedto be dangerous.Under the circumstances,there is clinchingevidenceavailableon recordthat the complainantwas robbed of his mobileand purse and while committingrobberydangerousinjurieswere caused on the person of the injured.

¶28The learned Sessions Judge charged all the accused simplicitor under Section 397 read with Section 34 of the 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 of the 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 combinationwith such persons,have committed robbery or dacoity. Therefore, Section 34 of the IPC has no applicationin constructionof Section397 thoughit may read with Sections 392, 394 or 395 of the IPC to determinethe substantialoffence.

¶29The law is very well explained,as early as, in the case of Emperor v. AH Mirza, 1924 ILR (Vol.LI) CalcuttaSeries 265. In this case, it is held as follows: "Section 397 and 398 of the Penal Code do not create any offence but regulate the measure of punishment when certain facts are found. Section 34 of the Crl.A.1088-2012&820-2013 Page 16 of20 X Penal Code has no applicationin the constructionof Sections397 and 398, though it may be read with Section392 and 395 to determinethe substantive offence which is created."

¶30Thereafterin 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 applicableit is necessary that each of the accused should be proved to have been the offender doingthe 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 purposesof section 397 all the persons participatingin the dacoity would not be held responsible for the acts of the others."

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

¶32The 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 provisionpostulates onlythe individualact of the accused to be relevantto attract Section397 IPC and thereby inevitablynegatesthe use of the principleof constructiveor vicariousliabilityengrafted in Section 34, IPC."

¶33In view of the aforesaidlegalposition,framingthe chargesimplicitor underSection397ofthe IPC was contraryto law. Further,applyingSection 34 to Section397 of the IPC was anotherdefect in the charge as well as in recording conviction of the accused under Section 397 read with Section 34 of the IPC.

¶34In the instant case, it is the specific case of the prosecution that the appellant Veer Bahadur Singh was carrying a knife at the time of Crl.A.1088-2012 & 820-2013 committingrobbery which was a deadly weapon in view of the medical evidence. As regards accused Keshav Kumar, it is not the case of prosecutionthat he was also armed with any deadly weapon. His role is confinedto renderingassistanceto Veer BahadurSingh by catchinghold the complainant hence his conviction with the aid of Section 34 IPG cannot be legally sustained.However,in the process of committingrobberyhurt was caused to the victim as such, he is liable to be convicted under Section 394/34 IPG.

¶35So far as Veer BahadurSingh is concerned,there is ample evidence on record against him to establishthat he was carryinga deadly weapon with him at thetime of allegedrobberywith whichhe causedgrievoushurt 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 ingredientsof this Section were put forth while framing charge against them.

¶36As regards the submissionthat Section 397 and 307 IPG cannot go together, this submission has no legs to stand in as much as in Ankush Maruti Shinde & Ors. V5. State of Mahrashtra, (2009) 6 SCC 661, the appellants were convicted under Section 397 read with Sections 395 and 396IPG and Section307readwith Section34 IPG. AgaininPargan Singh vs'. State of Punjab, (2014) Crl.L.J 4413 the conviction of the appellant under Sections 302, 397 as well as Section 307 IPG read with Section 34 IPG was upheld. Crl.A.1088-2012 & 820-2013

¶37The essentialingredientsrequiredto be provedin the case of offence under Section 307 are:-

(i) thatthedeathof a humanbeingwas attempted;

(ii) that such death was attemptedto be causedby or in consequenceof the act of the accused;

(iii) that such act was done with the intentionof causingdeath; orthat it was done with the intention of causing such bodily injury as;

(a) the accusedknewitto be likelyto causedeath;or

(b) was sufficientinthe ordinarycourseofnatureto causedeath, or that the accusedattemptedto cause deathby doing an act which was so iminentlydangerousthat it must in all probabilitycause

(a) death,or(b) suchbodilyinjuryasis likelyto causedeath,the accusedhavingno excuse for incurringthe risk of causingsuch death or injury. \

¶38In offence under Section 307 all the ingredients of offence of murder are presentexceptthe death ofthe victim.For the applicationof Section 307 IPG it is not necessarythatthe injurycapableof causingdeathshould have been actuallyinflicted.In the instantcase the injuriessustained,the marmerof assaultand the weaponused clearlymake outa case of Section 307 IPG. While accused Veer Bahadur Singh inflicted knife injury on the personofthe complainantthe remainingtwo accusedassistedhim in the commissionof crime by catchinghold of the victimthereforethey were rightlyconvictedunderSection307/34IPG.

¶39In view of the above, I am of the viewthat the instantcase does not present special features warrantingreview of the impugnedjudgment. Crl.A.1088-2012&820-2013 ^"8® / Thus, there is no cogentreasonto interferewith the impugnedjudgment exceptfor the modificationthat accusedKeshavKumaris convictedunder Section 394/34 IPG, and Veer BahadurSingh is convictedunder Section 394 read with 397 IPG. Conviction under Section 307/34 IPG does not call for interference.

¶40Gomingto the quantumofsentence,so far as Veer BahadurSinghis concerned, he was sentenced to undergo rigorous imprisonmentfor a periodofsevenyears for offenceunder Section397 IPG besidesfine and three years RI for offenceunder Section 307/34 IPG besides fme. This sentence does not call for interference as the minimum sentence prescribedunderSection397 IPG is sevenyears.

¶41As regards accusedKeshav Kumar, he was also awarded the same sentenceas awarded to Veer BahadurSingh. However,keeping in view the fact that he is liableto be convictedunder Section394/34IPG besides 307/34IPG as such while maintainingthe sentenceunder Section307/34 IPG the convictionunder Section 394/34 IPG is modified to rigorous imprisonmentfor five years whilemaintainingthe quantumof fme. With thesemodificationsthe appealsstanddisposedof GopyofthejudgmentalongwithTrialGourtrecordbe sentback. Appellantsbe informedthroughSuperintendentJail. (SUNITA GUPTA) JUDGE MARCH 18,2015 mb Crl.A.1088-2012&820-2013 20 of20

IN THE HIGH COURT OF DELHI AT NEW DELHI DateofDecision:18*'' March,2015 Crl.A. 820/2013 KESHAVKUMAR@SAJAN Through: Mr.U.M.Tripathi,Advocate Versus Appellant STATE NCT OF DELHI Respondent Through: Ms.Jasbir Kaur, Additional Public Prosecutorfor the StatealongwithSI ManoharLai,PoliceStationRajouri Garden, Delhi. CORAM: HON'BLE MS. JUSTICE SUNITA GUPTA