Delhi High Court
Munna Khan vs State (Nct) Of Delhi on 15 January, 2013
Author: S.P.Garg
Bench: S.P.Garg
* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 10TH JANUARY, 2013
DECIDED ON : 15TH JANUARY, 2013
+ CRL.A.669/2010 & CRL.M.B.Nos.484/2011 & 1697/2011
MUNNA KHAN ....Appellant
Through : Ms.Saahila Lamba, Advocate.
VERSUS
STATE (NCT) OF DELHI ....Respondent
Through : Ms.Fizani Husain, APP.
CORAM:
HON'BLE MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. The appellant-Munna Khan impugns the judgment dated 26.10.2009 in S.C. No.76/2008 by which he was convicted under Section 393/398 IPC and by an order on sentence dated 28.10.2009 sentenced to undergo RI for three years with fine of `1,000/- and in default SI for fifteen days under Section 393 IPC and RI for seven years under Section 398 IPC. Both the sentences were directed to run concurrently.
2. The prosecution examined PW-1 Ranjit (the complainant) and PW-2 Kamal Raj (his neighbour). Other witnesses examined by the prosecution are police witnesses. Statement of the accused was recorded under Section 313 Cr.P.C. He pleaded false implication and stated that he CRL.A.669/2010 Page 1 of 6 was a rickshaw-puller. On the day of incident, when he was taking rest after taking the passenger from New Delhi, at the spot, 4/5 boys were chased by the people. Due to misunderstanding, he was apprehended being one of them.
3. Contention of the learned counsel for the appellant is that material discrepancies in the depositions of the witnesses were ignored by the Trial Court. Delay in lodging the First Information Report has not been explained. Since the complainant had prepared the complaint before the arrival of the police, there was no occasion to send the rukka at 07.45 A.M. after two hours. Statements of the witnesses are inconsistent as to where the statement of PW-2 (Kamal Raj) was recorded i.e. at the spot or the police station. The weapon used i.e. iron rod was not 'deadly' to attract Section 398 IPC. The prosecution witnesses have given divergent version about the number of assailants. The arrest memo does not show the time when the appellant was arrested. Seizure memo Ex.PW-1/A contains the number of the First Information Report indicating that it was prepared after the registration of the case.
4. Learned APP urged that the appellant was arrested from the spot and his associates succeeded to flee. The complainant and independent witness PW-2 (Kamal Raj) had no enmity with the appellant CRL.A.669/2010 Page 2 of 6 to falsely implicate him. Since the witnesses were examined after a considerable delay, minor discrepancies are bound to occur.
5. I have considered the submissions and have examined the Trial Court record. Daily Diary (DD) No.9A (Ex.PW-5/A) was recorded at Police Station Gandhi Nagar at 06.03 A.M. to the effect that 3/4 assailants attempted to strangulate a person and one of the assailants was apprehended. ASI Chander Pal with Const.Ram Avtar reached the spot. PW-1 (Ranjit) and PW-2 (Kamal Raj) handed over custody of the appellant to them. In the complaint Ex.PW-1/A, PW-1 (Ranjit) named the appellant who with his associates had attempted to commit robbery. He also gave graphic detail as to how the appellant was in possession of an iron rod and how he used it to press his neck. The incident took place in the wee-hours at about 05.30 A.M. on 21.03.2008. Information to the police was given at 06.03 A.M. soon after the occurrence. The police reached at the spot, prepared rukka and sent it for lodging First Information Report at 07.45 A.M. There was, thus, no inordinate delay in lodging the First Information Report.
6. PW-1 (Ranjit) in his deposition before the Court proved the version given by him to the police at the first instance and testified that the accused had knocked the door of his house on the pretext to get some CRL.A.669/2010 Page 3 of 6 medicines for stomach pain. When he was giving medicine to the appellant, his two associates followed him. The appellant with his associates caught hold of him by neck and asked him to hand over all the valuable articles. The appellant also took out an iron road and put the same on his neck and pressed it. When he raised alarm, 'Bachao Bachao', his neighbours reached and the appellant-Munna was apprehended at the spot. His three associates succeeded in running away. In the cross- examination, the witness stated that his neighbour Kamal Raj and his son had gathered in the gali when he raised alarm. He fairly admitted that the accused did not cause injury with the iron rod but had put it on his neck to press. The police was informed by his neighbour. No material contradiction emerged in his cross-examination to disbelieve him. No suggestion was put by the accused that he was not present at the spot or that he had not used the rod to press the complainant's neck. PW-2 (Kamal Raj) corroborated the version given by PW-1 (Ranjit) in entirety and no discrepancy was elicited to disbelieve him. He reached the spot on hearing the noise 'Bachao Bachao' and found the accused with iron rod at the spot. He stated that the three associates of the accused fled away. He also identified the iron rod recovered from the accused. CRL.A.669/2010 Page 4 of 6
7. Both these witnesses had no acquaintance with the accused to make false statement against him. There was no previous ill-will or enmity with him. The accused did not explain his presence at the spot at odd hours. There was no occasion for the accused to knock at the door of the complainant at that time. No suggestion was put to PW-1 (Ranjit) and PW-2 (Kamal Raj) that the accused was a rickshaw-puller and was present after transporting the passenger. No rickshaw was recovered from the spot.
8. Minor discrepancies referred above by the counsel are not material to cause dent in the prosecution case. The Trial Court has dealt with all these contentions in the impugned judgment. Iron rod recovered from the possession of the accused is a deadly weapon and was used to press the neck of the accused. Ingredients of Section 398 IPC are attracted. Iron rod per se may not be a deadly weapon what would make it a deadly is its size/dimensions/design or the manner of its use such as is calculated to or is likely to produce death. In the present case, the iron rod measures 14 Inch in length, thickness 2.5 Inch and its pointed tip 3.5 Inch. It was used by the accused to press complainant's neck to achieve his design. In 'Saligram vs. State of M.P.', 1990 (Supp.) SCC 60, one of the convicts was carrying an iron rod. The other convict was armed with a CRL.A.669/2010 Page 5 of 6 sword. The Supreme Court observed that both the convicts were armed with deadly weapons.
9. In the light of above discussion, I find no merit in the appeal and is dismissed. Trial Court record be sent back forthwith. CRL.M.B.Nos.484/2011 & 1697/2011 In view of the orders passed above, the applications are disposed of as having become infructuous.
(S.P.GARG) JUDGE JANUARY 15, 2012 tr CRL.A.669/2010 Page 6 of 6