* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No. 627/1999
% Reserved on: 30th November, 2009
Date of Decision: 08th December, 2009
# ASHOK KUMAR AND ANR. ..... Appellants
! Through: Mr.K.B. Andley, Sr. Adv.
with Mr. M.L. Yadav, Adv.
versus
$ THE STATE (GOVT. OF THE NATIONAL CAPITAL
TERRITORY OF DELHI) ..... Respondent
^ Through: Mr. O.P. Saxena, APP
+ Crl.A.No. 594/1999
# JAGAN NATH ..... Appellant
! Through: Mr.K.B. Andley, Sr. Adv.
with Mr. M.L. Yadav, Adv.
versus
$ STATE OF DELHI ..... Respondent
^ Through: Mr. O.P. Saxena, APP
+ Crl.A.No. 186/2000
# BHAGWAN DASS ..... Appellant
! Through: Mr.S.N. Bhardhwaj, Adv.
versus
$ THE STATE (NCT OF DELHI) ..... Respondent
^ Through: Mr. O.P. Saxena, APP
* CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
1. Whether the Reporters of local papers
may be allowed to see the judgment? Yes
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be
reported in the Digest? Yes
Crl.A.Nos.627,594/1999 & 186/2000 Page 1 of 20
: V.K. JAIN, J.
1. These three appeals are directed against a common Judgment dated 14th October, 1999 and Order on Sentence dated 26th October, 1999, whereby all the appellants were convicted under Section 452 of IPC and under Section 392/34 of IPC read with Section 397 thereof and were sentenced to undergo RI for three years each and to pay a fine of Rs.1,000/- or to undergo RI for four months each in default under Section 452 of IPC and were further sentenced to undergo RI for four years each and to pay a fine of Rs.2,000/- each or to undergo RI for eight months each in default under Section 392 of IPC read with 34 thereof. They were also sentenced to RI for seven years each under Section 397 of IPC. Out of the fine to be realized from the appellants, Rs.10,000/- was directed to be paid to the complainant's father Shri Hans Raj, as compensation.
2. Crl.A.No.627/1999 was filed by two convicts, namely, Ashok Kumar and Anil Kumar. Ashok Kumar died during pendency of the appeal and the appeal filed by him stood abated in terms of the order of this Court dated 30 th April, 2009.
Crl.A.Nos.627,594/1999 & 186/2000 Page 2 of 20
3. The case of the prosecution, in brief, is that on 18 th January, 1988, at about 8.30 pm, the complainant-Jagdish Kumar was present in his house No.C-69/A-1, Gali No. 14 West Azad Nagar, when 3-4 boys entered his house. One of them stood at the gate alongwith a knife and the second one, showing a countrymade pistol to him, asked him to handover whatever he had with him and removed one watch from his arm. The third person opened the boxes kept in his house and removed jewellery and cash amounting to about Rs.5,000/-. When the intruders were running away after committing the robbery, the complainant and his father apprehended one of them and one countrymade pistol alongwith cartridges was recovered from him. That person was handed over to the police alongwith the pistol and cartridges. According to the prosecution, it was the appellant-Jagan Nath, who was apprehended on the spot alongwith pistol and cartridges and the other appellants were the persons associated with him in commission of the robbery.
4. The complainant-Jagdish Kumar came in the witness box as PW-4 and stated that on 18 th January, 1988 when he Crl.A.Nos.627,594/1999 & 186/2000 Page 3 of 20 was present in his house, 4-5 persons came to their house. Two of them were having revolvers, one was having a knife and one had picked up the kitchen knife, lying in their kitchen. One boy pointed out a countrymade pistol at him, asked him to take out whatever he had and forcibly removed his HMT wrist watch whereas the other boy removed Rs.5,000/- from their show window. Those persons also removed brass buttons from his almirah. Two of them ran away from the spot whereas one of them, whose name later on came to be known as Jagan Nath, was apprehended alongwith a revolver in his hand. He further stated that he sustained injury while apprehending the accused persons. He identified the pistol Ex.P.1 and cartridges Ex.P.2/123, which were recovered from the appellant-Jagan Nath. He also stated that he had identified the case property before the Magistrate in Shahdra Courts. He also identified all the appellants who were present in the Court. During cross- examination, he stated that Jagan Nath and Anil were armed with pistol while Bhagwan Dass was armed with a knife. Deceased Ashok, according to him, was the person who had picked up a knife from their kitchen. PW-12 Hans Raj is the Crl.A.Nos.627,594/1999 & 186/2000 Page 4 of 20 father of the complainant. He stated that on 18 th January, 1988, four persons entered his house as the door was open. Two of them were having pistols whereas one of them was having a knife. They surrounded him, pointing arm towards him and started looting. They removed his wrist watch and Rs.5000/- from his pocket. He further stated that Anil Kumar and Jagan Nath were having pistols in their hands whereas Bhagwan Dass was having a knife. He further stated that they had caught hold of Jagan Nath and informed the police.
5. PW-15 Inspector Narender Singh has stated that on 18 th January, 1988, he alongwith other police officials went to the place of incident, on receipt of information on his wireless set. Complainant-Jagdish produced the appellant- Jagan Nath to him alongwith one countrymade pistol and four cartridges. He further stated that accused Anil Kumar, who had surrendered in the Court on 21st January, 1988, took them to his house and produced one gold chain with locket, two gold rings, one HMT wrist watch and one double bed sheet, which had been kept in a nearby box. These articles were seized by the police. He further stated that accused Bhagwan Dass was Crl.A.Nos.627,594/1999 & 186/2000 Page 5 of 20 arrested at the instance of complainant-Jagdish on 10th February, 1988 and one watch HMT Jayant was recovered from his personal search. The witness identified the watch, which is alleged to have been recovered from Bhagwan Dass, as well as articles which were alleged to have been recovered from the house of the appellant-Anil Kumar.
6. PW-1 SI Mam Raj Singh corroborated the deposition of PW-15 as regards production of the accused Jagan Nath by the complainant alongwith countrymade pistol and cartridges and stated that he was found beaten by the public. The witness identified the pistol and cartridges which were seized by them. PW-5 Constable Badri Singh has also corroborated the deposition of PW-1 and PW-15 regarding apprehension of the appellant-Jagan Nath and seizure of one countrymade pistol and three live cartridges Ex.P.2/1 to 3 respectively. PW-10 Constable Banwari Lal has deposed about recovery of watch, gold chain, rings, etc. from the house of the appellant-Anil Kumar. PW-14 Head Constable Joginder Singh has deposed about recovery of one wrist watch HMT Jayant in the personal search of appellant- Bhagwan Dass. PW-3 S.K. Sarvaria has stated that the Crl.A.Nos.627,594/1999 & 186/2000 Page 6 of 20 appellant-Anil Kumar had refused to join TIP before him vide his statement Ex.P-3/C. He has also proved the proceedings of Test Identification of the case property Ex.P/3.
7. In their statements under Section 313 Cr.P.C., all the appellants denied the allegations against them. The appellant-Jagan Nath stated that on that day, he had gone to Rajgarh to meet one Rajinder working in M/s Tahu Exports. He stated that when they reached near Azad Nagar, he saw a crowd and went there out of curiosity. When the police reached there and was dispersing the crowd, he fell down and sustained injuries. The police caught him and implicated him in this case.
8. The appellants-Jagan Nath and Anil Kumar denied all the allegations against them without taking any particular defence. The appellant-Anil admitted that he had refused to join TIP. He, however, stated that he was shown to the witness by the police officials before he denied to take part in TIP.
9. As far as the appellant-Jagan Nath is concerned not only has he been identified by PW-4 Jagdish and PW-12 Hans Raj, he had apprehended on the spot by them and was Crl.A.Nos.627,594/1999 & 186/2000 Page 7 of 20 handed over to the police. One countrymade pistol Ex. P.1 and three cartridges Ex.P.2/1 to 3 were also recovered from his possession. Hence, there can be no reasonable doubt about his complicity in the robbery. The plea taken by him in his statement under Section 313 Cr.P.C. is that he had gone to Rajgarh to meet Rajinder working in M/s Tahu Exports when he fell down while police was dispersing the crowd that had gathered on the spot and he was caught by the police and implicated in this case. He produced Rajinder in the witness box as DW-1. But his testimony does not inspire confidence. Though he claims to be accompanying the complainant, he admittedly did not bother to wait for him when he fell down or to later on enquire about him. Had he been with the appellant, he would not have left him alone. Even otherwise, there could have been no reason for PW-4 and/or PW-12 to falsely identify the appellant-Jagan Nath as the person who was carrying the revolver and was caught on the spot alongwith the revolver being carried by him. They could not have planted a pistol and cartridges on him. In fact, during cross-examination of the complainant-Jagdish when he claimed that he had first caught Jagan Nath, it was Crl.A.Nos.627,594/1999 & 186/2000 Page 8 of 20 suggested to him that it was his father who had first caught hold of the appellant. During cross-examination of PW-1 Mam Raj Singh, a specific suggestion was given to him that Jagdish had told him that katta and cartridges had been recovered by him from Jagan Nath. Giving this suggestion implies that the countrymade pistol and cartridges were, in fact, recovered from the appellant-Jagan Nath. I, therefore, hold that the appellant-Jagan Nath was involved in commission of robbery committed in this case and he had used a fire arm in commission of the robbery by showing the countrymade pistol and asking the complainant to handover whatever he had with him.
10. It was pointed out by the learned counsel for the appellant-Jagan Nath that improvements have been made by complainant-Jagdish as well as his father Hans Raj, when they were examined in the Court. It was pointed out that while lodging FIR, the complainant-Jagdish stated that one person was armed with a countrymade pistol, while during his deposition in the Court he stated that two persons, Jagan Nath and Anil, were armed with pistols. It was further pointed out that when the complainant and his father were Crl.A.Nos.627,594/1999 & 186/2000 Page 9 of 20 examined in the Court, they stated that one of the culprits had lifted a kitchen knife from a room whereas no such statement was made by them to the police. Some contradictions in the testimony of PW-4 and PW-12 were also pointed out by the learned defence counsel. In my view, the testimony of a witness cannot be discarded in toto merely because he makes some improvement with his statement made during the course of investigation. Such improvements, however, need to be taken into consideration while evaluating the testimony of the witness and a view has thereafter to be taken on his credibility or otherwise. Minor contradictions in the testimony of the witnesses, who have undergone a harrowing experience at the time of commission of the robbery, cannot be considered to be material when they are examined after a substantially long period. This incident took place in January, 1988 whereas the complainant- Jagdish was cross-examined on 29.08.1997 and 28.07.1999. PW-12 Hans Raj was examined on 6th October, 1997. Memory fades with the passage of time and it is not possible for the witnesses when examined after such a long period to give an exact or identical version of the incident which took place Crl.A.Nos.627,594/1999 & 186/2000 Page 10 of 20 many years before they were examined in the Court. It is only in the case of tutored witnesses that the statements flow parrot-like without even natural variations. In fact, minor contradictions and discrepancies here and there only tend to show that the witnesses are truthful and natural witnesses and that is why these natural variations are occurring in their testimony. The Court has first to consider the evidence of a witness to find out whether it appears to be truthful or not. If the Court comes to the conclusion that he appears to be a truthful witness, his testimony has to be evaluated in the light of the improvements made by him and the contradictions pointed out in his statement. It is neither desirable nor legally permissible to reject the entire testimony of a witness merely on account of some improvements made by him during trial or on account of some contradictions or discrepancies, here and there in his deposition during trial.
11. It was contended by the learned counsel for the appellant-Jagan Nath that neither he was got medically examined nor has the prosecution explained the injuries sustained by him. This contention is devoid of merit. The appellant-Jagan Nath was examined in hospital on 19th Crl.A.Nos.627,594/1999 & 186/2000 Page 11 of 20 January, 1988 vide MLC No.14930 which was filed with the chargesheet and is available in Trial Court file. It has come in the deposition of PW-1 Mam Raj Singh that when he reached the spot, the appellant-Jagan Nath was found having been beaten by the police. The complainant-Jagdish has specifically stated in his cross-examination that he himself had given beating to Jagan Nath by fist and kick blows and there was mara-peeti (beating) between him and Jagan Nath. Thus, there is ample explanation of injuries sustained by the appellant-Jagan Nath. It was next pointed out by the learned defence counsel that the IO of this case has been disbelieved by the Trial Court, as he prepared two Seizure Memos in respect of the articles alleged to have been recovered from the appellant-Anil Kumar, one of them filed with the chargesheet and the other being Ex.D/A. The explanation given by the IO that one of them was only a draft has right been disbelieved by the Trial Court. But, the suspicion that has been created in respect of the recovery alleged to have been effected from Anil Kumar by preparation of two different Seizure Memo has no bearing on the merit of the case against the appellant- Jagan Nath. The case against him, which otherwise stands Crl.A.Nos.627,594/1999 & 186/2000 Page 12 of 20 duly proved, cannot be rejected on that ground. As held by the Hon'ble Suprme Court in Karnel Singh vs. State of M.P. JT 1995 (6) SC 437, it is not proper to acquit the person due to defective investigation, if the case otherwise stands established, since doing so would be falling in to the hands of the erring Investigating Officer. As noted by the Supreme Court in Ram Bihari Yadav vs. State of Bihar and others, JT 1998 (3) SC 290, the story of the prosecution is to be examined dehors the contaminated conduct of the Investigating Officer lest the mischief which may also be deliberate one is perpetuated. The criminal justice should not be made casualty because of the wrong doing of a police officer.
12. It was lastly contended by the learned defence counsel that the appellant-Jagan Nath having been acquitted of the charge under Arms Act, it would not be safe to convict him on the charge of robbery when the case of the prosecution is that the fire arm, in respect of which charge under Section 25 of Arms Act was framed against him, was used in commission of this very robbery. In my view, there is no merit in the contention. A perusal of the judgment of the Trial Court Crl.A.Nos.627,594/1999 & 186/2000 Page 13 of 20 would show that the appellant-Jagan Nath has been acquitted of charge under Section 25 of Arms Act only because the requisite sanction under Arms Act has been proved. The recovery of countrymade pistol and cartridges from the possession of the appellant-Jagan Nath, which has otherwise been duly proved, has not been disbelieved by the Trial Court.
13. As regards the appellant-Anil Kumar, according to PW-4 Jagdish and PW-12 Hans Raj, he was one of the two persons who were armed with a pistol at the time of commission of robbery. A perusal of the FIR would show that while giving statement to the police, the complainant claimed that one person out of three-four persons, involved in the incident, was armed with a pistol. Neither he said that two persons were having fire arms with them nor did he say that he had seen fire arms with two of them. He specifically stated that one person stood at the gate with knife and the other person showed pistol to him and removed his watch whereas the third person who was wearing a black coat searched the house and removed jewellery and cash from the boxes. Had two persons been armed with pistols, that could not have Crl.A.Nos.627,594/1999 & 186/2000 Page 14 of 20 escaped the attention of the complainant and his father. Neither PW-4 Jagdish nor PW-12 Hans Raj has said that the appellant Anil Kumar had shown a pistol to them. Had two persons been armed with pistols, the role played by him during commission of robbery, would have been stated by the complainant in the FIR. I also find that in the FIR, the complainant gave description of only three persons. One out of them was Jagan Nath, the second one was Ashok, who, according to the complainant, had picked up a knife from kitchen and the third was Bhagwan Dass, who, according to complainant and his father, was armed with a knife. This is not their case that the appellant-Anil was the person who was armed with a knife or the person who had picked up a knife from their kitchen. There is no explanation for not giving either the description of the fourth person or the role played by him in the committing of robbery. Since the deposition of PW-4 and PW-12 to the effect that two persons were armed with pistol cannot be believed, involvement of the appellant- Anil in the incident becomes doubtful because appellant Jagan Nath having been apprehended on the spot alongwith the pistol and cartridges, he is the person mentioned in the Crl.A.Nos.627,594/1999 & 186/2000 Page 15 of 20 FIR as the one who was having a pistol.
14. The prosecution had sought to prove the charge against the appellant-Anil Kumar by alleging that one stolen watch was recovered from his house. However, there is no evidence on record to prove that the watch, alleged to have been recovered from the house of the appellant Anil, was the same which was stolen from the house of the complainant-Jagdish and his father Hans Raj. Ex.P.7, according to the IO, is the watch which was recovered from the house of the appellant- Anil. Neither PW-4 Jagdish nor PW-12 Hans Raj has identified the watch Ex.P.7 during trial. Neither of them has said that Ex.P.7 is the watch which was stolen from their house on 18th January, 1988. The prosecution was required to prove not only recovery of a watch from him, but also that it was the same watch which was stolen from the possession of the complainant. This could be done only if the owner of the watch identifies the watch recovered from the appellant during trial, as his watch that was stolen. In this case, the prosecution, therefore, has failed to prove recovery of any stolen property from the possession of the appellant-Anil Kumar. The alleged involvement of the appellant-Anil Kumar Crl.A.Nos.627,594/1999 & 186/2000 Page 16 of 20 in commission of robbery having become doubtful, he is entitled to be acquitted.
15. As regards the appellant-Bhagwan Dass, admittedly he was not apprehended on the spot and was not known previously either to PW-4 Jagdish or PW-12 Hans Raj. Despite that, no attempt was made by the IO to establish his identity in a Test Identification Parade. According to the IO of the case, the appellant-Bhagwan Dass was arrested in the presence of the complainant on 10th February, 1988. However, this part of his deposition has not been supported by the complainant. When the complaint-Jagdish came in the witness box as PW-4, he did not say that the appellant- Bhagwan Dass was arrested in the presence of complainant. Therefore, it is difficult to accept the deposition of the IO to the effect that the appellant-Bhagwan Dass was arrested in his presence. Though the case of the prosecution is that one stolen watch Ex.P.7 was recovered from the possession of the appellant-Bhagwan Dass, there is no evidence to prove that it was the same watch which was stolen from the house of complainant Jagdish and his father Hans Raj on 18 th January, 1988. Neither Jagdish nor his father Hans Raj has Crl.A.Nos.627,594/1999 & 186/2000 Page 17 of 20 identified the watch Ex.P.7 during trial. Neither of them has said that Ex.P.7 is the watch which was stolen from their house during robbery committed on 18th January, 1988. It is by now a settled proposition of law if the accused is not previously known to the witnesses and is not apprehended on the spot, it is necessary to get his identity verified in a Test Identification Parade, unless the prosecution produces some credible evidence, to corroborate his identification for the first time during trial. There may be special features in a particular case or in the testimony of a particular witness which may persuade the Court to accept identification for the first time in the dock even in the absence of any corroborative evidence. But, no such special features are available in the present case. Thus, the alleged involvement of the appellant- Bhagwan Dass in the commission of robbery has also come under serious doubt. He, therefore, is also entitled to benefit of doubt and consequently to acquittal.
16. From the discussion in the preceding paragraphs, the appellant-Jagan Nath is found guilty of the offences punishable under Section 452 of IPC as he entered the house of the complainant armed with a pistol loaded with Crl.A.Nos.627,594/1999 & 186/2000 Page 18 of 20 cartridges and thus having made preparations to cause hurt or to put the inmates of the house in fear of hurt or of assault. He is also guilty of robbery as he threatened the complainant with a countrymade pistol and then also removed the watch which he was wearing. Since he used a countrymade pistol, which is a deadly weapon, at the time of committing robbery, Section 397 of IPC also comes into application. His conviction is, therefore, upheld under Section 452 of IPC and Section 392 read with Section 397 thereof. The offence under Section 392 of IPC read with Section 397 thereof being punishable with minimum sentence of seven years, there is no scope for reducing the substantive sentence awarded to the appellant-Jagan Nath. However, since Section 397 of IPC does not, by itself, creates any offence and it only prescribes a minimum sentence if a deadly weapon is used or grievous hurt is committed or an attempt made to cause death or grievous hurt to any person at the time of committing robbery, the appellant could not have been convicted and sentenced separately under Section 397 of IPC. As regards sentence awarded to the appellant under Section 452 of IPC, I do not find the same to be on Crl.A.Nos.627,594/1999 & 186/2000 Page 19 of 20 higher side. In any case, since all the sentences are to run concurrently, no benefit would accrue to the appellant-Jagan Nath even if the sentence awarded to him under Section 452 of IPC is reduced. The appellant-Jagan Nath would, therefore, undergo RI four three years and pay a fine of Rs.1,000/- or to undergo SI for two months in default under Section 452 of IPC whereas he would undergo RI for seven years and would also pay a fine of Rs.2,000/- or undergo SI for two months in default under Section 392 IPC read with Section 397 thereof. The sentences shall run concurrently. The appellants-Anil Kumar and Bhagwan Dass are given benefit of doubt and are hereby acquitted.
(V.K.JAIN) JUDGE DECEMBER 08, 2009 bg Crl.A.Nos.627,594/1999 & 186/2000 Page 20 of 20