{"id":91982,"date":"1998-03-20T00:00:00","date_gmt":"1998-03-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/sikander-kumar-vs-state-on-20-march-1998-2"},"modified":"2016-03-19T02:30:55","modified_gmt":"2016-03-18T21:00:55","slug":"sikander-kumar-vs-state-on-20-march-1998-2","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/sikander-kumar-vs-state-on-20-march-1998-2","title":{"rendered":"Sikander Kumar vs State on 20 March, 1998"},"content":{"rendered":"<div class=\"docsource_main\">Delhi High Court<\/div>\n<div class=\"doc_title\">Sikander Kumar vs State on 20 March, 1998<\/div>\n<div class=\"doc_citations\">Equivalent citations: 1998 IIIAD Delhi 450, 1998 CriLJ 3026, 1998 (3) Crimes 69, 72 (1998) DLT 547, 1998 (45) DRJ 360<\/div>\n<div class=\"doc_author\">Author: D Bhandari<\/div>\n<div class=\"doc_bench\">Bench: D Bhandari<\/div>\n<\/p>\n<pre><\/pre>\n<p>ORDER<\/p>\n<p> Dalveer Bhandari, J. <\/p>\n<p> 1.     This appeal is directed against the judgment of the learned Additional Session  Judge, Delhi dated 10.11.1976 convicting the appellant under  sections 392\/397\/34, IPC, and sentencing the appellant to undergo seven  years R.I. and a fine of Rs. 500\/- and in default thereof, a further R.I. for six months.\n<\/p>\n<p> 2.   Brief facts are recapitulated as under:-\n<\/p>\n<p>       A  three-wheeler scooter (for short scooter) having  registration  no.DHB 526 stood registered in the name of Harnam Dass. He was having a permit from  the  authority for plying the scooter on hire and was later  on  purchased  by Hari Kishan, PW-6, who in turn had given the scooter for  plying to Parshotam Lal, complainant, PW-5.\n<\/p>\n<p> 3.   In the intervening night of September 12\/13, 1972 at about 11.30  P.M. Parshotam Lal&#8217;s scooter was hired by two boys. According to the description as given by the complainant, one of them was quite tell and was about 26-27 years  of age and had a thin physique, dark whitish complexion  wearing  a pant and shirt having two pockets. The other boy was of a short stature and was  about 20 years of age wearing white shirt and pyjama. These  two  boys asked the complainant Parshotam Lal to take the scooter to Shahdara  border and  from there asked him to take the scooter to Azadpur. From Azadpur,  he was  asked to take them to Rajouri Garden to their houses as they  did  not having sufficient amount to clear the charges. When the scooter had reached 50  yards away from the petrol pump towards Punjabi Bagh, the  scooter  was<br \/>\nstopped  and the boys alighted from the scooter saying that he was to  urinate  while the other boy kept seated on the rear seat of the  scooter  and the time was around 2 A.M. After urinating, the boy came and he took out  a knife  and asked his companion also to take out his knife and he also  took out  his  knife  and placed it on the back of Parshotam Lal  and  then  the taller boy took out Rs. 50\/- currency note and coins worth Rs. 2 or 3  from the pocket of Parshotam Lal and compelled Parshotam Lal to leave his scooter.  In these circumstances, Parshotam Lal left the scooter and these  boys drove  away  the scooter. Parshotam Lal went to police station  Moti nagar where  a  daily  diary entry was recorded. As the case  related  to  police station Punjabi Bagh, the complainant was then referred there and the  case was registered at Police station Punjabi Bagh.\n<\/p>\n<p> 4.   The investigation of the case was entrusted to the Sub Inspector  R.C. Kalia. On September 14, 1972, at about, 7.30 P.M., the Sub Inspector accompanied by Parshotam Lal and Hari Kishan held a nakabandi at Mayapuri  Road. At about 8.15 p.m. the scooter in question was seen coming and was stopped. It was being driven by accused Sikander while accused Siri Ram was  sitting in  the  scooter. The scooter at that time bore registration no.  DHR  1426<br \/>\nshowing that the figure &#8216;1&#8217; had been added to the original number.\n<\/p>\n<p> 5.   Kuldip Singh PW-4 who is another scooter driver is stated to have also arrived  at the spot in his scooter and in his presence personal search  of both  the  appellant was carried out. Insurance certificate is Ex.  PM  and permit is Ex. PN. pertaining to the scooter in question were recovered from the person of the accused Siri Ram along with Rs. 3\/-, Rs. 10\/- were recov-\n<\/p>\n<p>ered from the personal search of Sikander. Open shirt and pant of  Sikander and open shirt of Siri Ram were taken into possession. Complainant  Parshotam  Lal had identified the said two accused as the persons who had  robbed him of his scooter and money.\n<\/p>\n<p> 6.   The  Sub  Inspector  also made an application to  the  Magistrate  for holding the test identification parade but the accused refused to  participate in the identification parade saying that they have already been  shown to  the witnesses. As a matter of fact, in this case, the accused  was  arrested in the presence of witnesses, so the question of holding identification  parade could not have been of much help. PW-5 complainant deposed  to the  fact regarding the robbery and his lodging the report  and  thereafter apprehension of the accused with the case property. PW-2 is Thakurpal Singh who had taken the photographs of the three wheeler scooter at the  instance of  SI Ratan Chand Kalia on 14.9.1972. PW-3 is Sub Inspector Ram Dayal.  He<br \/>\nwas  posted  at  the relevant time in Police Station Punjabi  Bagh  end  on receipt  of rukka Ex. PG. PW-4 is Kuldip Singh. He was driving  his  three, wheeler  scooter  and was coming from Mayapuri to Delhi station. He  is  an independent  witness in this case. He had stated in his statement  that  he could not identify both the boys as he had seem them in the darkness of the<br \/>\nnight.  This witness was declared hostile and the public prosecutor  cross examined the witness. PW-6 is Hari Kishan, owner of the scooter in question and PW-7 is S.I. Ratan Chand Kalia, who had investigated the entire case.\n<\/p>\n<p> 7.   The  most important witness in this case is PW-5 Parshotam  Lal,  complaint.  He had unfolded the entire prosecution version. The learned  Additional  Sessions Judge had observed that a clear mistake had been  made  by both Parshotam Lal, PW-5 and Hari Kishan PW-6, regarding the date on  which the accused were arrested. He was the most important witness and the odredibility of the entire prosecution evidence rests on his testimony.\n<\/p>\n<p> 8.   The accused denied the prosecution version and stated that he has been falsely  implicated in this case. He stated that he used to do the  job  of scooter repairing at the Red Fort scooter stand and the complainant Parshotam Lal had intended to remove him from there so that he could have his own man  in his place but a compromise was brought about with the  intervention of  Banarsi Lal Sethi and one Siri Ram Sawhney. Parshotam Lal  brought  Sub<br \/>\nInspector Kalia who sare him beatings and on the third day he was  arrested from that scooter stand and was falsely involved in this case.\n<\/p>\n<p> 9.   Sri Ram on the other stated in his statement had stated that he had  a quarrel with Parshotam Lal as he did not make the payment for the job  done by him regarding fixing of punctures and tubes.\n<\/p>\n<p> 10.  One  defense witness Sri Ram was examined by Sikander who had  deposed that he was a scooter driver and used to park his scooter at Red Fort Stand where  the accused also used to park his scooter. Parshotam along with  his companions  used to encourage gambling at the said scooter stand in  connivance with the local police particularly Sub Inspector Kalia. Parshotam was an informer of the police, who used to demand money from the scooter drivers  for parking their scooters at that particular scooter  stand.  Accused Sikander  used  to oppose his demands which had led to enmity  between  the two.\n<\/p>\n<p> 11.  The  learned Additional Sessions Judge had discarded the defense  version.  According to the learned Additional Sessions Judge, the recovery  of the scooter corroborates the testimony of complainant regarding his  having been  robbed  of his scooter and money. His testimony  finds  corroboration from  the  statement  of Hari Kishan PW-6. Though  the  learned  Additional<br \/>\nSessions  Judge had observed that PW Kuldip Singh was at the spot when  the accused  were  arrested  and the scooter was taken  into  possession,  this witness  has  turned  hostile. The learned Additional  Sessions  Judge  had believed  the testimony of Parshotam Lal and Hari Kishan and convicted  the accused for the offence punishable under sections 397\/392\/34 IPC. The court<br \/>\nalso observed that there is no justification for convicting the accused for<br \/>\nthe offence punishable under section 411 IPC, a minor offence, because they had  been  convicted for actual robbery. The  learned  Additional  Sessions<br \/>\nJudge  sentenced the accused to undergo RI 7 years and a fine of Rs.  500\/- each  and  in default of payment of fine further RI for  six  months  under section 392 read with section 197 IPC.\n<\/p>\n<p> 12.  The  appellant  Sikander Kumar aggrieved by the order of  the  learned Additional Sessions Judge has preferred this appeal before this court.  The learned  counsel  appearing  for the appellant submitted  that  the  entire prosecution version is inherently improbable, unbelievable and the  conviction on the strength of such prosecution witnesses has led to grave  injustice  in  this case. Mr. Mohit Mathur, learned counsel  for  the  appellant<br \/>\nsubmitted  that  the alleged incident had taken place  in  the  intervening night of 12\/13 September, 1972. The complainant went to the Police  Station Moti  Nagar  and DD entry was recorded and he was asked to  Police  station Punjabi Bagh, where the FIR was recorded.\n<\/p>\n<p> 13.  On  14.9.1972  at  about 7.30 P.M. Sub Inspector in  the  presence  of Parshotam  Lal,  Hari Kishan, held a nakabandi at Mayapuri Road.  At  about 8.15  P.M. this very scooter was seen coming from the side of Bharat  Nagar and was driven by the accused Sikander and other accused Sri Ram was seated in  the  scooter.  Mr. Mathur submitted that it is  highly  improbable  and<br \/>\ndoubtful  that afte committing the theft of the scooter, both the  accused persons would ply the scooter on that very road. It is also beyond  comprehension why the nakabandi at Mayapuri Road was set up by the Sub Inspector?\n<\/p>\n<p> 14.  Even  the learned Additional Sessions Judge had observed  glaring  infirmities in the testimony of both the main prosecution witnesses Parshotam Lal and Hari Kishan as to the date on which the accused were arrested,  but did  not  give benefit of doubt to the accused. Mr. Mathur  also  submitted that the learned Additional Sessions Judge gravely erred in discarding  the<br \/>\ndefense  version which was more probable. It is stated in the defense  version  that the appellant have been framed in this case falsely  because  of the previous enmity.\n<\/p>\n<p> 15.  Mr.  Mathur  submitted that DD entry made at the Police  Station  Moti Nagar  at 2 A.M. on 13th September, 1992 ought to have been  considered  as the  FIR  and the subsequent FIR registered at the police  station  Punjabi Bagh cannot be construed as FIR and the same is clearly hit by section  162<br \/>\nof the Code of Criminal Procedure. He has placed reliance on 1996 SCC (Crl) 713 and 1995 SCC (Crl) 734.\n<\/p>\n<p> 16.  Mr.  Mathur also submitted that the weapon of offence i.e.  knife  has not  been recovered from the appellant. Therefore, section 392 and  397  of the  IPC are not attracted. He further submitted that the prosecution  version  suffers  from material contradictions,  inconsistencies  and  glaring infirmities. The complainant, on whose testimony implicit reliance has been placed  by the learned Additional Sessions Judge, is also not  without  infirmity. He has wrongly stated the date of the incident. This infirmity  in his testimony is of serious nature. He further submitted that the manner of arrest and seizure of the vehicle had been differently described by the two main witnesses PW-5 and PW-7.\n<\/p>\n<p> 17.  Mr. Mathur submitted that only independent witness in this case is PW-4 Kuldip Singh who has also not supported the case of the prosecution.  Mr. Mathur also submitted that the actual owner of the vehicle Harnam Dass  has not been examined to support the case of the prosecution that three-wheeler scooter  was given to PW-5. PW-5 Parshotam Lal stated that the FIR was  not<br \/>\nread  out  to him and he has signed the FIR without reading the  same.  Mr. Mathur also assailed the testimony of PW-5, who mentioned that he had  been running  the  three-wheeler for over 5 months while PW-6 says that  he  had given the scooter about one to two months back.\n<\/p>\n<p> 18.  The learned counsel for the State admitted that though there are  some contradictions  and discrepancies yet on all broad aspects,  the  witnesses have  supported  the  case of the prosecution and no  interference  in  the judgment of the Additional Sessions Judge is called for.\n<\/p>\n<p> 19.  I have considered the rival contentions of the parties and perused the entire record of this case. The independent prosecution witness PW-4 Kuldip Singh,  who was coming from Mayapuri towards Delhi Station, in his  scooter was  stopped by the Police and at that time another three  wheeler  scooter was  there  which was being searched by the police. He had  stated  in  his<br \/>\nstatement that he cannot now identify the boys who were there in the scooter as he saw them in the darkness. This witness did not support the  prose cution and was declared hostile. Apart from this witness, there are material  contradictions even in the testimony of PW-5 and PW-6. On 13.9.72,  the complainant had gone to the Police Station Moti Nagar to lodge the  report.\n<\/p>\n<p>The DD entry was made at his behest and from there he was directed to go to the  Police  Station Punjabi Bagh, where FIR had been lodged.  He  did  not mention  the date of lodging the FIR correctly. This serious lapse  on  his part  creates  doubt in the credibility of the prosecution  version  though this fact had been noticed by the learned Additional Sessions Judge but  he<br \/>\nhad justified this lapse on the ground that the witnesses had been examined after 3-1\/2 years. Apart from this, there are other material contradictions in  the testimony of PW-5 Parshotam Lal and PW-7, SI Kalia,  regarding  the manner  of arrest and seizure of vehicle which also creates doubts  in  the prosecution version.\n<\/p>\n<p> 20.  The  entire story of the prosecution looks inherently  improbable  and unbelievable. Organising of nakabandi at Mayapuri Road and both the accused sitting in the scooter coming at Mayapuri also makes the entire prosecution version  rather doubtful particularly in the light of defense version  that because of the previous enmity the accused have been falsely implicated  in<br \/>\nthis  case. The learned Additional Sessions Judge had recorded  the  entire conviction  on  the testimony of PW-5 Parshotam Lal and PW-6  Hari  Kishan. There are serious contradictions and infirmities in their statements and it would be unsafe to place total reliance on their estimony.\n<\/p>\n<p> 21.  In my considered opinion, because of grave and serious infirmities and contradictions in the testimony of prosecution witnesses and the fact  that the only independent witness PW-4 Kuldip Singh has not supported the prosecution  and turned hostile, so it would not be safe to base  conviction  on the statements of these witnesses.\n<\/p>\n<p> 22.  In the facts and circumstances of this case, the appellant is entitled to get the benefit of doubt. Accordingly, I set aside the impugned judgment of the Additional Sessions Judge. The appellant is acquitted of the  afore said  charges,  and  his bail bonds shall stand cancelled.  The  appeal  is accordingly allowed and disposed of.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Delhi High Court Sikander Kumar vs State on 20 March, 1998 Equivalent citations: 1998 IIIAD Delhi 450, 1998 CriLJ 3026, 1998 (3) Crimes 69, 72 (1998) DLT 547, 1998 (45) DRJ 360 Author: D Bhandari Bench: D Bhandari ORDER Dalveer Bhandari, J. 1. This appeal is directed against the judgment of the learned Additional Session [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-91982","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.6 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Sikander Kumar vs State on 20 March, 1998 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/sikander-kumar-vs-state-on-20-march-1998-2\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Sikander Kumar vs State on 20 March, 1998 - Free Judgements of Supreme Court &amp; 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