Ashok Kumar And Anr. vs The State (Govt. Of The National ...
2009 Latest Caselaw 5070 Del

*     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.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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