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2016 Supreme(Del) 4364
IN THE HIGH COURT OF DELHI AT NEW DELHI
S.P. GARG, J.
Shahrukh @ Salman @ Mota - Appellant
Versus
The State (Govt. of NCT) Delhi - Respondent
Crl. A. No. 552 of 2016
Decided On : 09-12-2016
For the Respondent: Ms. Meenakshi Dahiya
The admissibility of the testimony of a hostile witness and the impact of delay in cross-examination were central to the court's decision.
Headnote:
Robbery - Criminal Law - IPC 392, IPC 411 - The court discussed the occurrence of the robbery, the prompt reporting to the police, the victim's testimony, and the retraction of the witness's statement. The court also referred to the delay in cross-examination and the admissibility of the testimony of a hostile witness. The judgment affirmed the conviction based on fair appreciation of the evidence.
Fact of the Case:
The appellant was convicted for committing offences punishable under Sections 392/411 IPC for robbing the complainant of his mobile phone and purse at knife point. The victim promptly reported the incident to the police, and the appellant was apprehended with the robbed mobile in his possession.
Finding of the Court:
The court found that the victim's prompt reporting to the police and his detailed account of the robbery supported the prosecution's case. The court also considered the retraction of the witness's statement and the delay in cross-examination. The judgment affirmed the conviction based on fair appreciation of the evidence.
Issues: Prompt reporting of the incident, witness testimony, retraction of witness statement, delay in cross-examination, admissibility of testimony of a hostile witness.
Ratio Decidendi: The victim's prompt reporting and detailed account of the robbery were considered credible. The court also emphasized the admissibility of the testimony of a hostile witness and the impact of delay in cross-examination.
Final Decision: The appeal lacked merits and was dismissed. The conviction was affirmed.
S.P. Garg, J.
1. Aggrieved by a judgment dated 16.05.2015 of learned Addl. Sessions Judge in Sessions Case No. 62/2014 arising out of FIR No. 240/11 PS Seelampur whereby the appellant-Shahrukh @ Salman @ Mota was held guilty for committing offences punishable under Sections 392/411 IPC, the instant appeal has been preferred by him. By an order dated 18.05.2015, he was sentenced to undergo RI for five years with fine Rs.2,000/- under Section 392 IPC and RI for three years with fine of Rs.1,000/- under Section 411 IPC. Both the sentences were to operate concurrently.
2. Briefly stated, the prosecution case as reflected in the charge-sheet was that on 02.07.2011 at around 9.45 P.M. at G.T. Road, near Dharampura Red Light, the appellant along with his associate – Rocky, who could not be arrested, sharing common intention with him, robbed the complainant – Javed Ahmed of his mobile phone make Nokia 5130 and a purse containing Rs.5,000/-, PNB ATM card and Metro Smart card at knife point. Information was conveyed to the police and Daily Diary (DD) No.30A (Mark PA) came into existence at 09.45 p.m. The Investigating Officer after recording victim’s statement (Ex. PW-1/A) lodged First Information Report. The accused was arrested. Statements of the witnesses conversant with the facts were recorded. Upon completion of investigation, a charge-sheet was filed against the appellant in the Court. To prove its case, the prosecution examined seven witnesses in all. In 313 Cr.P.C. statement, the appellant denied his involvement in the crime and pleaded false implication. The trial resulted in conviction as aforesaid. Being aggrieved and dissatisfied, the instant appeal has been preferred by him.
3. I have heard the learned counsel for the parties and have examined the file. The occurrence took place on 02.07.2011 at around 09.30 p.m. The incident was reported to the police promptly without any delay and Daily Diary (DD) No.30A (Mark PA) came to be recorded at PS Seelampur at 09.45 p.m. It was informed therein that near Dharampura Red Light, two individuals had robbed the complainant after showing a pointed object. In the complaint (Ex.PW-1/A), the complainant gave detailed account as to how and in what manner, he was robbed by two assailants armed with a pointed object. Since the FIR was lodged without any delay, there was least possibility of the complainant to fabricate a false story particularly when the assailants were not named by him in the complaint.
4. In his Court statement, recorded on 24.01.2012 as PW-1, the complainant implicated the appellant to be the perpetrator of the crime and identified him to be one of the assailants. He deposed that on 02.07.2011 when he was returning from office and reached Dharampura Red Light at 09.30 p.m. two boys came there; one of them caught hold of him by neck and pressed it; the other showed him a sharp edged weapon like ice-breaker; they threatened him to hand over the articles or else he would be killed. The boy who had caught hold him by neck pressed it with more pressure, as a result of which, he became unconscious. On regaining consciousness, he found that his mobile phone make Nokia 5130 and purse containing Rs.5,000/- ATM and Metro Smart card were missing. He made a telephone call to police at 100 by taking mobile of some passerby. He recorded his statement (Ex.PW-1/A). He accompanied the Investigating Officer for search of the assailants. The appellant was found present and was apprehended at his instance. The robbed mobile was recovered from the right side pocket of the pant.
5. Opportunity was offered to cross-examine this witness on 24.01.2012, however, the accused did not avail it. Subsequently, an application under Section 311 Cr.P.C. was filed to recall PW-1 (Javed Ahmed). He was cross-examined on 18.03.2013. In the cross-examination, he did not opt to support the prosecution and disclosed that the statement recorded on 24.01.2012 was not with his free consent. In re-examination b
