Delhi High Court
Mohd. Salim @ Pappu vs State on 12 December, 2003
Equivalent citations: 112(2004)DLT605
Author: O.P. Dwivedi
Bench: O.P. Dwivedi
JUDGMENT O.P. Dwivedi, J.
1. By this order, I propose to deal with two criminal appeals bearing No. 663 of 2000 -- Mohd. Salim @ Pappu and CRLA 702 of 2000 -- Mohd. Mustaqeen @ Raju, both arising out of judgment of conviction dated 2.8.2000 and the order of sentence dated 11.8.2000 whereby both appellants were held guilty under Sections 364/34, IPC and 397/34, IPC and were sentenced to undergo RI for seven years and fine of Rs. one thousand each in default SI for a month.
2. Briefly stated, prosecution case is that on 18.7.1997, the appellants engaged a taxi (Armada) DL 3C G-7334 for going to Aligarh to fetch their parents. Hire charges were settled @ Rs. 1,000/- and it was agreed that they will come back to Delhi the same day evening. Accordingly, the complainant along with the appellant left Delhi at about 10.30 a.m. in the said Armada No. DL 3C G-7334 and when they reached Aligarh, the appellants asked him to go a little further. When the jeep reached near Kirawali on the road leading Mainpuri, appellant Mustaqueem forcibly caught hold of the steering of the vehicle and made the complainant to sit between the two appellants. The jeep was brought to the halt at some distance and thereafter both appellants squeezed the complainant in between them and tried to strangulate him with the seat belt and also assaulted him with kicks and fists. Complainant, however, managed to jump out by breaking the rear window panes. The appellants escaped in complainant's jeep. Complainant then went to the local police station i.e. P.S. Bichawa. District Mainpuri and lodged a complaint in this regard. On this a case FIR No. 0/97, under Sections 364/394/420/34 was registered at P.S. Bichawa, District Mainpuri and was investigated by SI Nanak Chand. Complainant Ram Niwas was got medically examined and he was found to have suffered some injuries (1) lacerated wound muscle deep on the right elbow (joint); (2) abrasion on posterial aspect of right hand laterally; (3) contusion on the front of right knee joint swelling present; and (4) abrasion on the right side neck. These injuries were opined to be simple caused by blunt object. SI Nank Chand then went in search of the vehicle viz., Armada Jeep No. DL 3C G-7334 which was found near village Karim Ganj. Kirawali, Mainpuri. Two appellants were also found therein. Appellants were taken into custody and from their search some countrymade pistols were allegedly recovered about which separate cases were registered. owner of the vehicle was informed telephonically. Thereafter on 26.7.97, the case was got registered at Delhi, P.S. Badarpur vide FIR No. 500/97 as the incident of abduction had taken place at Delhi. Various documents namely FIR lodged in Bichawa, MLC, seizure memo, etc., were also made available to the Police, P.S. Badarpur on 26.7.97 and thereafter SI Dharama Pal Kalra of P.S. Badarpur recorded the statement of the complainant, inspected the spot, prepared a site plan, brought appellants to Delhi on production warrant and also seized the vehicle involved which was returned to the rightful owner. After completing the investigation, challan was submitted against the appellants under Sections 364/420/394/307/34, IPC. On committal of case to the Court of Sessions, charges under Section 364/34, IPC were framed against appellants. They were also charged separately under Section 397, IPC to which they plead not guilty. In proof of its case prosecution examined Kushal Kumar, PW1; Ram Niwas, PW 2; Dr. V.B. Sarashurt, PW 3; Con. Rajbir Singh, PW 4; Con. Ram Rattan, PW 5; Con. Kamal, PW 6; H.C. Suman Lata, PW 7; HC Bhagirath Prasad, PW 8; Con Zile Singh, PW 9; and Nanak Chand SI, PW 10; and Dharam Pal Kalra, PW 11.
3. After considering the material on record and the submission made by the learned Counsel for the appellnts and learned APP, learned Additional Sessions Judge came to the conclusion that charges under Sections 364/34 and 397, IPC stand proved against the appellants. Accordingly, he convicted the appellants under Sections 364/397, IPC and sentenced them to RI for seven years + fine. No separate sentence was awarded under Section 364, IPC in view of the provisions of Section 71 of IPC. Feeling aggrieved the appellants have preferred this appeal.
4. I have heard learned Counsel for the appellants and the learned Counsel for the State and perused the material on record.
5. Learned Counsel for the appellants vehemently contended that no offence is made out against the appellants. According to him, there was some quarrel between the parties as the driver declined to go beyond Aligarh, although the vehicle had been hired up to Gure Sahay Ganj, District Farookhabad. This contention of the learned Counsel for the appellants cannot be accepted in view of conflicting stands taken by the appellants at different stages regarding the cause of incident. The suggestion put in the cross-examination of complainant Ram Niwas, PW2 was that quarrel took place when he refused to go further and then the complainant ran away after leaving the vehicle. The suggestion was denied by the complainant. Moreover in their statement under Section 313, Cr.P.C. the appellants have taken varying stands. In his examination under Section 313, Cr.P.C. appellant Mustaqeem stated that the complainant Ram Niwas had caused an accident whereupon police had intervened and he quarrelled with the police and also spoke harsh words to SI Nanak Chand that is why he has been falsely implicated in the case. He does not say that there was any quarrel with complainant Ram Niwas. Rather in his examination under Section 313, Cr.P.C. appellant Mustaqeem states that he could not say as to why Ram Niwas has deposed against them. Perhaps he deposed at the instance of Police. As against this the other appellant Mohd. Salim in his statement under Section 313, Cr.P.C. states that there was an altercation between the complainant Ram Niwas and appellant Mustaqeem whereupon Ram Niwas went to the Police Station and whispered something in the ears of the Thanedar. It Will thus be seen that both the appellants are giving contrary versions as to the cause of incident. Not only that, in the grounds of appeal also appellants have taken different stands. Whereas appellant Salim in his grounds of appeal has taken the stand that complainant/driver Ram Niwas had consumed liquor while driving the vehicle. When appellant Mohd. Mustaqeem reprimanded driver Ram Niwas, he resented it and drove the vehicle straight to the P.S. Bichawa and then there was heated arguments between SI Nank and appellant Salim and that is why this case was planted on them. As against this, stand taken by the other appellant Mohd. Mustaqeem in his ground of appeal is that appellant Mohd. Mustaqeem asked driver to stop the vehicle for attending nature's call but driver became abusive whereupon Mohd. Mustaqeem slapped the driver and the driver then left the vehicle in the middle of the road and ran away towards Delhi. He (driver) came back after half an hour with police and got the appellants arrested on false charges. These conflicting stands taken by the appellants from time-to-time at different stages indicate that the incident did not occur the way they want the Court to believe. Rather they expose the falsity of their attempt to cover up their guilt. If the improvements made by the complainant in his Court statement are ignored, the complaint's statement finds corroboration from the medical evidence on record. No other serious contradiction was pointed out which could shake the credibility of the complainant. Manifestly, it is a case of robbery of the jeep from the complainant by the appellants, who caused injury on the complainant Ram Niwas in the process.
6. In his statement on both PW 2 complainant Ram Niwas has substantiated the prosecution case in all material particulars except that in his Court statement he made some improvement over his police version. In Court statement Ram Niwas, PW 2 states that both the appellants had shown him countrymade pistols and daggers and he was beaten up with dagger. In his first complaint made to the P.S. Bichawa on 18.7.97 Ext. PW 2/A and in his subsequent statement dated 26.7.97 made before Badarpur, police PW 2B the complainant never alleged that the accused persons had used countrymade pistol or dagger while attacking him. This is clearly an afterthought perhaps made with a view to strengthen his case. A perusal of statement of medical officer Dr. V.B. Sarahurt, who had examined complainant Ram Niwas on 19.7.97 shows that the complainant had suffered the following injuries:
(1) lacerated wound 1 cm. x 0.5 cm. into muscle deep on the right elbow (joint); (2) abrasion on posterial aspect of right hand laterally; (3) contusion 2.5 cm. x 1 cm. on the front of right knee joint swelling present; (4) abrasion 0.5 cm. x 0.2 cm. on the right side neck.
7. All these injuries were opined to be simple caused by blunt object. Not a single injury was noticed on his person which might have been caused by sharp weapon. According to Ram Niwas PW 2, he jumped out of the car from the rear left side window after breaking its glass panes. If that was so, complainant would have suffered some scratches and such injury would have been caused by sharp weapon but as already stated no such injury was noticed on his person. Had the appellants been armed with pistols or daggers and had intended to kill the complainant they could very well have done so because they had all the opportunity to do so. The fact that no serious injury was caused to the complainant would indicate that there was no intention or attempt to kill the complainant. Under these circumstances, offences under Sections 364 and 397, IPC cannot be said to have been made out. Rather, only offences under Sections 394/34 is made out against the appellants.
8. Accordingly, conviction of the appellants is altered from Sections 364/397, IPC to one under Sections 394/34, IPC and sentence is reduced to five years RI and fine of Rs. 1,000/- in default RI three months. The period of custody undergone during investigation, injury or trial or appeal shall be set off as per provisions of 428, Cr.P.C.