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2007(6) Supreme 153
Supreme Court of india
(From Delhi High Court)
Dr. Arijit Pasayat & D.K. Jain, JJ.
Dilawar Singh — Petitioner
versus
State of Delhi — Respondent
Appeal (crl.) 491 of 2002
Decided on : 05-09-2007
AIR 1973 SC 501; AIR 1974 SC 606 – Relied upon.
(b)Code of Criminal Procedure, 1973 – Section 210 – Delay in filing the complaint because of police inaction has to be explained by calling for the records from the police. (Para 9)
AIR 1971 SC 66 – Relied upon.
(c)Code of Criminal Procedure, 1973 – Section 156(3) – Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3), Cr. P.C., in which event he is not to examine the complainant on oath – Thereafter it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Cr. P.C. only thereafter. (Para 17)
2001(2) SCC 628; AIR 1961 SC 986; AIR 1959 SC 1118; (2006)1 SCC 627 – Relied upon.
(d)Indian Penal Code, 1860 – Section 397 – The term “offender” under Section 397 IPC is confined to the offender who uses any deadly weapon – But use of deadly weapon by one offender at the time of committing robbery cannot attract Section 397 IPC for imposition of minimum punishment on another offender who had not used any deadly weapon – Section 397 IPC connotes something more than merely being armed with deadly weapon – No injury having been inflicted, offence u/s 397 not established – Impugned conviction set aside. (Paras 23 to 25)
AIR 1975 SC 905; AIR 2004 SC 1253 – Relied upon.
(e)Indian Penal Code, 1860 – Section 304 – Mandate of the section 304 has to be kept in view by the courts when the accused persons are not represented by a counsel. (Para 26)
Facts of the case :
On 8.8.1984 Balwant Singh (the Complainant-PW1) was sitting at Kali Mata Ka Mandir, Udaseen Ashram at Village Taharpur, Shahdara, Delhi. He acts as a priest in the temple. Donations were collected from various persons to build the temple and he was maintaining the temple. He was residing at the temple and performing regular puja. On 8.8.1984 at about 9.30 p.m., after performing evening puja and aarti and after having dinner he was doing meditation when five persons including two accused persons namely the present appellant and one Ram Saran and three persons who were Sikhs and whose names he did not know but could identify them, entered into the temple, tied him with a rope and ran away with the donation box with cash of about Rs.5,000/-. Appellant was carrying a knife, Ram Saran was having a lathi and one of the three others who was a Sikh was having a revolver. After some time two local persons namely Kanwar Singh and Dr. Salekh Chand came to the temple and they also saw five persons running towards Gagan Cinema. Both of them identified the appellant and Ram Saran; they untied the rope and cried for help. After hearing their cry several local residents gathered at the temple and the complainant narrated the whole incident to them. Complainant along with Kanwar Singh and Dr. Salekh Chand and others went to lodge report at the police station, Seema Puri. But the duty officer did not listen to him and the complainant on 9.8.1984 made a written complaint to the Prime Minister, thereafter the complaint was filed on 31.8.1984. After going through the evidence, the learned Magistrate came to the conclusion that there was material to proceed against the appellant, Ram Saran and the three others. He committed the case in the Court of Sessions as offence relatable to Section 395 IPC is exclusively triable by that Court. Accused Dilawar Singh pleaded innocence. Ram Saran died during the proceedings and the charges against him were dropped. Except PW-1, no other witness was examined. It was stated by the prosecution that Dr. Salesh Chand, Kanwar Singh and others could not be traced despite the liberty granted to the prosecution. The trial court found that the delay in making a grievance has been explained and complainant’s version was acceptable.
The appeal before the High Court was dismissed by the impugned judgment.
Findings of the Court :
Offence u/s 397 not established.
Result : Appeal allowed.
Key Points: - Delay in lodging FIR must be explained plausibly; otherwise, it is treated as fatal to the prosecution case (!) . - If witnesses have no motive to implicate the accused and a plausible explanation is offered, long delay may be condoned (!) . - Section 397 IPC applies only to the offender who actually uses a deadly weapon, and no injury was inflicted in this case (!) (!) . - When the accused is not represented by counsel, courts must keep in view the mandate of Section 304 Cr.P.C. (!) . - It is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint (!) .
JUDGMENT
Dr. ARIJIT PASAYAT, J.—
1.Challenge in this appeal is to the judgment of the learned Single Judge, Delhi High Court, dismissing the appeal filed by the appellant and affirming his conviction for offences punishable under Sections 452, 392 and 397 of the Indian Penal Code, 1860 (in short the ‘IPC’) and sentencing him to undergo one year, two years and seven years rigorous imprisonment respectively with fine in each case with default stipulation. The sentences were directed to run concurrently.
2.Prosecution version in a nutshell is as follows :
“Complaint was filed by Balwant Singh (hereinafter referred to as the Complainant-PW1) alleging as follows :
“On 8.8.1984 he was sitting at Kali Mata Ka Mandir, Udaseen Ashram at Village Taharpur, Shahdara, Delhi. He acts as a priest in the temple. Donations were collected from various persons to build the temple and he was maintaining the temple. He was residing at the temple and performing regular puja. On 8.8.1984 at about 9.30 p.m., after performing evening puja and aarti and after having dinner he was doing meditation when five persons including two accused persons namely the present appellant and one Ram Saran and three persons who were Sikhs and whose names he did not know but could identify them, entered into the temple, tied him with a rope and ran away with the donation box with cash of about Rs.5,000/-. Appellant was carrying a knife, Ram Saran was having a lathi and one of the three others who was a Sikh was having a revolver. After some time two local persons namely Kanwar Singh and Dr. Salekh Chand came to the temple and they also saw five persons running towards Gagan Cinema. Both of them identified the appellant and Ram Saran; they untied the rope and cried for help. After hearing their cry several local residents gathered at the temple and the complainant narrated the whole incident to them. Complainant along with Kanwar Singh and Dr. Salekh Chand and others went to lodge report at the police station, Seema Puri. But the duty officer did not listen to him and the local residents and directed them to go away. On 9.8.1984 complainant made a written complaint to the Prime Minister, police officials but to no avail. Therefore, the complaint was filed on 31.8.1984. After going through the evidence, the learned Magistrate came to the conclusion that there was material to proceed against the appellant, Ram Saran and the three others. He committed the case in the Court of Sessions as offence relatable to Section 395 IPC is exclusively triable by that Court. Accused Dilawar Singh pleaded innocence. Ram Saran died during the proceedings and the charges against him were dropped. Except PW-1, no other witness was examined. It was stated by the prosecution that Dr. Salesh Chand, Kanwar Singh and others could not be traced despite the liberty granted to the prosecution. The trial court found that the delay in making a grievance has been explained and complainant’s version was acceptable.
3.The appeal before the High Court was dismissed by the impugned judgment on the ground that PW1’s evidence was clear and cogent.
4.In support of the appeal learned counsel for the appellant submitted that the alleged incident took place on 8.8.1984 and the complaint was lodged on 31.8.1984. Except a bare statement to the effect that representations were made to various persons but no material in that regard was adduced. Further, the modalities to be adopted when the police does not register the FIR are indicated in Section 154 (3) of the Code of Criminal Procedure, 1973 (in short the ‘Cr.P.C.’). Admittedly, that has not been done. It has also not been explained as to how and why the Prime Minister of the country was moved. Even no material has been adduced to show that any such complaint was made either to the Prime Minister or the Police Official claimed. In any event, no advocate was engaged for the accused who did not have the means to engage a lawyer and therefore the mandate of Section 304 C
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