Delhi High Court
Sikander vs The State on 24 February, 2010
Author: V. K. Jain
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ Crl.A.No.971/2004
% Reserved on: 19th February, 2010
Date of Decision: 24th February, 2010
# RAJINDER KUMAR ..... Appellant
! Through: Mr. Rakesh Kumar and
Mr. Naval Kishor, Advs.
versus
$ THE STATE ..... Respondent
^ Through: Mr.Jaideep Malik, APP
Crl.A.No.16/2005
# NARINDER ..... Appellant
! Through: Mr. Rakesh Kumar and
Mr. Naval Kishor, Advs.
versus
$ THE STATE ..... Respondent
^ Through: Mr.Jaideep Malik, APP
Crl.A.No.258/2005
# SIKANDER ..... Appellant
! Through: Mr. Rakesh Kumar and
Mr. Naval Kishor, Advs.
versus
$ THE STATE ..... Respondent
^ Through: Mr.Jaideep Malik, APP
Crl.A.No.741/2005
# RAKESH & PAPPU ..... Appellant
! Through: Mr. Ravindra Narayan
Crl.A.No.16/2005 Page 1 of 35
versus
$ THE STATE ..... Respondent
^ Through: Mr.Jaideep Malik, 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
: V.K. JAIN, J.
1. By this common judgment, I shall dispose of all the four
appeals referred above which are directed against the
Judgment dated 6th November, 2004 and Order on Sentence
dated 9th November, 2004, whereby all the appellants were
convicted under Section 392/34, 394 and 506 of IPC and the
appellant Rakesh was also held guilty under Section 397 of
IPC and Section 25 of Arms Act. All the appellants were
sentenced to undergo RI for 10 years and to pay fine of
Rs.5,000/- or to undergo RI for 6 months each in default
under section 392/34 of IPC and were further sentenced to
undergo RI for 5 years each and to pay fine of Rs.2,000/-
each or to undergo imprisonment for four months each under
Section 394 IPC. They were also sentenced to undergo RI for
3 years and to pay fine of Rs.1,000/- each or to undergo RI
for three months in default under Section 506 of IPC. The
appellant Rakesh was sentenced to undergo RI for 7 years
and to pay fine of Rs.3,000/- or to undergo RI for 4 months
in default under Section 397 of IPC and to undergo RI for
three years and to pay fine of Rs.1,000/- or to undergo RI for
three months in default under Section 25 of Arms Act.
2. On the night intervening 29/30th December, 2003, on
receipt of copy of DD No.26-A regarding car No.DL2CA 5531
with four persons in it, having been intercepted near
Sultanpuri Crossing, the IO of this case reached the spot,
where ASI Jaslin Kongari of Police Control Room produced
the appellants before him and informed that they had been
caught with stolen goods on the identification of the
complainant Sunil and his companion Manoj. The articles
produced by ASI Jaslin Kongari and one knife were also
seized from him. He also found that Registration No. DL9C
2337 had been etched on the glasses of the car, whereas the
number plate fixed on it bore Registration No. DL2CA 5531.
3. In his complaint to the IO, Sunil Arora stated that on
29th December, 2003, he alongwith his companion Manoj,
was standing at Peeragarhi Chowk at about 11.30 pm. One
Maruti car No.DL2CA 5531 stopped near them. Two boys,
including driver, were sitting in the car and were asking for
passengers for Bahadurgarh, Sapla and Rohtak. Since they
agreed to drop the complainant and his companion to
Bahadurgarh, they occupied the rear seat of the car. Two
more boys, who were present on the bus stop, also joined
them on the rear seat of the car saying that they had to go to
Rohtak. When they reached ahead of Nangloi, the persons
sitting on the right side of the car, took out a knife, put it on
his neck and asked him to take out whatever he had. When
the complainant avoided handing over his belongings to him,
that person gave a knife blow to him which the complainant
was able to avert. The person, who was sitting on the left side
of Manoj, gave a fist blow to him. Having got scared, the
complainant handed over his mobile phone, wrist watch and
Rs.4700/- in cash, whereas Manoj handed over his gold
chain, mobile phone and gold ring, which he was wearing,
and Rs.2500/- in cash to them. The car driver then stopped
the vehicle at a deserted road. The complainant and his
companion Manoj were brought out of the car and were
searched. The robbers then sped away in the car, after
threatening to kill the complainant and his companion. When
the complainant and his companion were coming out of the
road on which they were left, they noticed a PCR van coming
on the road. They narrated the incident to the police officials
travelling in the PCR van with them. When they reached near
Police Station, it came to be known that one car No.DL2CA
5531 had been stopped near Sultan Puri Railway Crossing by
another PCR van. When they reached near Sultan Puri
railway crossing, they found car No.DL2CA 5531 and four
persons whose names came to be known as Narinder, who
was driving the car, Rajinder, who was sitting on the front
seat with the driver, Rakesh, who was sitting with the
complainant and Sikander, who was sitting with Manoj.
4. The complainant Sunil came in the witness box as PW-4
and stated that on 29th December, 2003 when he was
standing on the bus stand of Peeragarhi Chowk, at about
11.30 pm, alongwith his friend Manoj, waiting for the bus,
and finding no bus coming, they were intending to take lift in
the vehicle. One Maruti car came near them. Two persons,
including driver, were sitting in the car. They agreed to leave
them at Bahadurgarh. Thereupon, he alongwith his friend
Manoj, sat in the car. Two persons, who were standing at the
bus stand, also sat with them saying that they wanted to go
to Rohtak. When they reached near Nangloi, the person, who
was sitting with him, put a knife on his neck and asked him
to hand over whatever he had. When he refused, that person
tried to give a blow to him with a knife which he was able to
avert. The person who was sitting on the side of Manoj, then
gave a fist blow on the mouth of Manoj. Being afraid, he
handed over his mobile phone, Ex.P-1, cash amounting to
Rs.4700/- and wrist watch Ex.P-2 to them, whereas Manoj
handed over his gold ring, gold chain, mobile phone and cash
amounting to Rs.2500/- to them. The complainant identified
all the four appellants and stated that the appellant Narinder
was driving the Maruti car, whereas Rajinder was sitting on
the front seat. Rakesh, according to him, was the person,
who had put knife on his neck, whereas Sikander was the
person who was sitting with Manoj and had given fist blow to
him. He further stated that after turning on a Mundka-Finari
road, those persons took them out of the car, searched them
and left after threatened to kill them in case they disclosed
the incident to anyone. When they were coming at G.T. road,
they saw one PCR van coming there and narrated the
incident to PCR officials who immediately flashed the
message about the incident on the wireless. When they were
coming towards Police Station Nangloi in PCR van, the
officials received a message that a Maruti car had been
stopped near Sultan Puri Railway Crossing by another PCR
van. PCR officials took them to that place where all the four
accused were found standing with police officials. On their
search by police officials, his mobile phone was recovered
from the possession of the appellant Narinder, whereas his
watch and cash amounting to Rs.4700/- was recovered from
the possession of Rakesh. The mobile phone of Manoj was
recovered from the appellant Rajinder, whereas his ring,
chain and cash amounting to Rs.2500/- from the possession
of Sikander. He has further stated that Maruti car was seized
by the police vide memo Ex.Pw-4/h which bears his signature
at point-A. He further stated that knife Ex.P-4 was also
recovered from the possession of the appellant Rakesh, after
other police officials reached the spot.
5. Manoj, companion of the complainant, came in the
witness box as PW-5 and corroborated the version given by
the complainant. He also stated that he sustained injury on
his lower lip when the appellant Sikander gave a fist blow to
him. He identified his mobile phone Ex.P-5, gold ring, Ex.P-6
and chain Ex.P-7. He also identified the knife which was
recovered from the appellant Rakesh.
6. PW-1 ASI Jaslin Kongari stated that on 29th December,
2003, he was in charge of PCR van P-65 and was on duty
from 8.00 pm to 8.00 am. At about 12.45 pm, he received a
message on wireless about robbery by four boys travelling in
Maruti car No.DL2CA 5531. At that time, his van was parked
at Nangloi Chowk. He saw one Maruti car of white colour
coming from Haryana side towards Delhi and directed his
driver to chase that car. He also noticed that the number of
the car tallied with the number given in the wireless message.
He got the car stopped and informed the control room.
Another PCR van reached there, with two boys who had been
robbed by these four boys of Maruti car. On his direction,
Constable Samarveer Singh conducted their personal search
to ascertain arm in their possession. In the meantime, senior
police officials also reached there and on the directions of SI
Dariao Singh, the boys were searched again and one gold
chain, one mobile phone were recovered from the possession
of Sikander, whereas Rs.3100/- or Rs.2100/- in cash were
revered from Rakesh besides one buttondar knife. Cash
amounting to Rs.4700/- recovered from the possession of
Sikander. Four mobiles were also recovered from the
possession of accused persons. Out of them, two belonged to
the complainant and his companion. The witness has
identified the Nokia phone Ex.P-1, wrist watch, Ex.P-2, knife,
Ex.P-4, other mobile phones Ex.P-5, gold chain, Ex.P-6, gold
chain, Ex.P-7, besides currency notes.
7. PW-6 Head Constable Suresh Kumar was posted in
MHCM, Police Station Nangloi on 30th December, 2003. He
stated that on that date, case property, including one Maruti
car, was deposited in Malkhana and the relevant copies of the
registers are Ex.PW-6-A/B. PW-7 Shakti Singh produced the
record relating to PCR vehicle No.69 and 65 and stated that
as per record, vehicle No.P-65 was under charge of ASI Jaslin
Kongari, whereas PCR van P-69 was under the charge of Ram
Prakash.
8. PW-8 Ashok Kumar was on duty in PCR P-69 in the
night intervening 29/30th December, 2003. He stated that
about 12.18 am when they reached Mundka-Figni Road, they
saw two boys running towards their vehicle. The information
given by those boys about robbery with them by four persons
was flashed on by them on wireless and they went towards
Police Station Nangloi alongwith those boys. In the
meantime, they received a wireless message from P-65
regarding one Maruti car with four boys in it having been
intercepted. Thereafter, they went to Railway Crossing Sultan
Puri where they saw the accused persons in the custody of
police officials. PW-9 Head Constable Ram Prakash, who was
the in-charge of PCR van P-69 on 29th December, 2003, has
corroborated testimony of PW-8. He also identified the knife
Ex.P-4 which was seized in his presence and identified all the
four accused present in the Court.
9. PW-10 Constable Samarveer Singh was on duty in PCR
van P-65 on 29th December, 2003 alongwith PW-1 ASI Jaslin
Kongari. He has corroborated the deposition of PW-1 and has
stated that on reaching Rohtak Road, they received wireless
message about robbery by four persons in car No.DL2CA
5531 and when they were going to their base point, they
noticed one Maruti car turning towards Punjabi Basti Sultan
Puri. When they got the car stopped, it was found to be the
same car and all the four accused persons in the Court were
sitting in that car. He further stated that on search of the
appellant Rakesh, who tried to run away from the spot, one
buttondar knife Ex.P-4 was recovered from his possession.
10. PW-11 Head Constable Ajay, who was on duty with SI
Madan Lal in Police Station Nangloi on 29 th December, 2003
stated that when they reached the spot, one Maruti car
bearing No.DL2CA 5531 was found parked there and all the
four accused persons were also found there having been
apprehended by PCR officials. He further stated that one
buttondar knife Ex.P-4 was also revered from the possession
of the appellant Rakesh. PW-12 Head Constable Sri Bhagwan
is the another police official, who was on duty in PCR van P-
65 in the night intervening 29/30 th December, 2003. He also
has corroborated the testimony of ASI Jaslin Kongari and
PW-10 Constable Sumervir Singh. He has also identified the
knife Ex-P-4 recovered from the possession of the appellant
Rakesh besides mobile phone Ex.P-1 and P-5 and watch
Ex.P-2.
11. PW-13 ASI Anant Saroop was the driver of PCR van P-69
in the night intervening 29/30 th December, 2003. He
corroborated the testimony of PW-8 Ashok Kumar and PW-9
Head Constable Ram Prakash.
12. PW-14 Constable Mundey Gyanoba went to the spot
alongwith SI Vipin Kumar in the night intervening 29/30 th
December, 2003. According to him, when they reached the
spot, one Maruti car No.DL2CA 5531 was found stationed
there alongwith six persons from the public and PCR officials.
13. PW-15 ASI Madan Lal went to the spot in the night
intervening 29/30th December, 2003 alongwith Constable
Ajay. According to him, when they reached the spot, all the
four accused were present there. Two boys had also reached
there in another PCR vehicle. ASI Jaslin Kongari produced
one knife which had been recovered from the appellant
Rakesh. According to him, SI Vipin Kumar also reached the
spot. He has identified buttondar knife Ex.P-4, stated to have
been recovered from the possession of the appellant Rakesh.
14. SI Vipin Kumar is the IO of this case. He stated that on
30th December, 2003, he, on receipt of copy of DD No.26-A,
Ex.P-2/A, reached the spot alongwith Constable Mundey
Gyanoba, where PCR officials were found. Complainant Sunil
and his companion Manoj as well as all the four accused were
present there. The recovered articles were handed over to
him. He has identified the mobile phones Ex.P-1 and Ex.P-5
and wrist watch Ex.P-4.
15. In their statement under Section 313 Cr.P.C., all the
appellants denied the allegations against them and claimed to
be innocent. The appellant Sikander stated that he was lifted
from his house. Similar claim was made by the appellant
Rajinder, Narinder and Rakesh.
16. DW-1 Rajni is the sister of the appellant Rajinder. She
has stated that on 30th December, 2003 at about 7.30 am,
two police officials came to their house and took Rajinder
alongwith them on the pretext that he was to be interrogated.
DW-2 Sube Dar is the father of the appellant Rakesh. He
stated that on 30th December, 2003, at about 2.30 am, two
police officials came to their house and took his son Rakesh
with them on the pretext that they wanted to interrogate him.
17. It was first contended by the learned counsel for the
appellant Rakesh that since the appellants were not
previously known to PW-4 and PW-5 and were not arrested in
their presence, they having been arrested by PCR officials
before PW-4 and PW-5 reached the place where they were
apprehended, it was obligatory for the prosecution to subject
them to Test Identification Parade and in the absence of any
such effort on the part of the Investigating Officer,
identification of the appellants by PW-4 and PW-5 in the
Court is not sufficient to establish their identity and cannot
form the basis of their conviction.
18. It is settled proposition of law that when the accused is
not previously known to the witness, and is not apprehended
on the spot, there is no evidence to corroborate identification
during trial, and there are no special features in the
testimony of a witness, which persuade the Court to accept
identification in the Court, even without any corroborative
evidence, it is obligatory for the prosecution to get his identity
verified in a Test Identification Parade. However, in the
present case, there is ample corroborative evidence on record
to show that the appellants alone are the persons who had
robbed PW-4 and PW-5, of their belongings.
19. The robbery took place in a Maruti car bearing
registration No.DL2CA 5531. The robbery took place past
midnight in the night intervening 29/30th December, 2003.
The persons involved in robbery were found in number. The
appellants (4 in numbers) were found travelling in a Maruti
car, which bore Registration No.DL2CA 5531, soon after the
commission of robbery. The appellants being found travelling
in a Maruti car bearing same Registration Number which PW-
4 and PW-5 had found on the Maruti car in which they were
robbed and that too soon after the robbery had taken place,
is a strong corroborative evidence against the appellants,
particularly when they have not offered any explanation for
their travelling in a Maruti car bearing Registration
No.DL2CA 5531, soon after the commission of robbery. It
has also come in the testimony of a number of witnesses,
including PW-4 and PW-5, that the articles stolen from the
possession of PW-4 and PW-5 were recovered from the
possession of the appellants when they were searched in the
presence of PW-4 and PW-5, after they had been apprehended
while travelling in Maruti car No.DL2CA 5531. Since there is
no explanation from the appellants for their being found in
possession of the stolen articles almost immediately after the
robbery had taken place, recovery of stolen articles from them
is yet another corroborative evidence which leaves no
reasonable doubt that they were the persons who had robbed
PW-4 and PW-5 of their belongings in the night intervening
29/30th December, 2003.
20. Identification of the appellants by PW-4 and PW-5,
coupled with their having been apprehended in the car
bearing Registration No.DL2CA 5531 and their being found in
possession of the stolen articles is sufficient to establish their
identity and it was not obligatory for the Investigating Officer
to get them identified in a judicial which is Test Identification
Parade.
21. In fact, even if identification of the appellants by PW-4
and PW-5 is altogether excluded from consideration, other
evidence available on record by itself is sufficient to establish
the guilt attributed to them. The testimony of PW-4 and PW-
5 shows that the persons who robbed them of cash, mobile
phone, watch, chain and ring, were travelling in a Maruti car
which had a number plate bearing Registration No.DL2CA
5531 on it. The testimony of PW-9 Head Constable Ram
Prakash who was on duty in PCR vehicle P-69 during that
night shows that when PW-4 and PW-5 met them in the night
intervening 29/30th December, 2003, they informed them
that they had been robbed in Maruti car No.DL2CA 5531 and
he flashed a wireless message accordingly to Police Control
Room. The testimony of PW-7 Shakti Singh shows that this
witness was in charge of PCR van P-69 in the night
intervening 29/30th December, 2003. Hence, there is
absolutely no reason to disbelieve his testimony. Ex.P-2/A is
copy of DD No.2-A recorded at Police Station Nangloi at about
1.12 am on 30th December, 2003. It shows that the
information given to the Police Control Room by police
officials travelling in PCR van P-69 regarding robbery in
Maruti car No.DL2CA 5531. This was the same car, in which
PW-8 and PW-9 were on duty in the night intervening 29/30 th
December, 2003. Therefore, there can be no reasonable
possibility of car Registration No.DL2CA 5531 having been
introduced at a later stage. This number had been flashed to
Police Control Room even before the appellants were
apprehended by the PCR officials on duty in PCR Vehicle No.
P-65, at Railway Crossing Sultan Puri. I, therefore, have no
hesitation in accepting that the person, who robbed PW-4
and PW-5 of their mobile phones, watch, jewellery and cash,
were travelling in a Maruti car which, at that time, was
having Registration No.DL2CA 5531. The testimony of PCR
officials, who were travelling in PCR P-65 in the night
intervening 29/30th December, 2003, namely, PW-10
Constable Sumervir Singh and PW-1 ASI Jaslin Kongari
shows that it was Maruti car being Registration No.DL2CA
5531 which they had chased and in which the appellants
were found travelling. PW-10 Constable Sumervir Singh has
specifically stated that after receipt of message, information
about crime committed in Maruti car No.DL2CA 5531, they
found a car turning towards Basti Sultan Puri and when they
got it stopped, they found it was the same car. PW-1 Jaslin
Kongari has specifically stated that they received a message
on wireless about robbery by four persons travelling in Maruti
car No.DL2CA 5531 and before Railway Crossing of Sultan
Puri, he noticed that a Maruti car coming from Haryana side
was having the same number which wireless message flashed
and it was that car which they had got stopped and in which
the appellants were found travelling. Thus, the testimony of
PW-1 and PW-9 shows that the appellants were traveling in
the intervening night of 29/30th December, 2003, in a car
bearing same registration number which had been displayed
on the car in which PW-4 and PW-5 were robbed of their
belongings. The testimony of PW-7 also shows that PW-1 ASI
Jaslin Kongari was the in-charge of PCR van P-65 in the
night intervening 29/30 th December, 2003 and, therefore, his
presence in PCR van during that night cannot be disputed.
Even otherwise, there is no reason to disbelieve the testimony
of police officials travelling in PCR vans P-65 and P-69, since
none of them belonged to the local Police Station and none of
them had any reason to make a false deposition against the
appellants. Though the case of the prosecution is that the
number plate fixed on the car was a fake one and true
registration number of car used in the crime was DL9C 2337,
that, to my mind, is of no consequence since registration
number on the car, in which robbery was committed, was the
same which was found on the car in which the appellants
were found travelling soon after the robbery had taken place.
The testimony of PW-6 Head Constable Suresh Kumar,
MHC(M) of Police Station Nangloi, coupled with the copies of
relevant registers of Police Station Ex.PW-6/A & B shows that
it was Maruti car No.DL2CA 5531 which was deposited in
Malkhana on that day. The seizure memo of the car Ex.PW-
4/M also shows that it was car having number plate bearing
Registration No.DL2CA 5531 which was seized by the police.
Therefore, there can be no dispute as regards the registration
number on the car in which the appellants were found
travelling during that night. The appellants have not offered
any explanation for their being found travelling in Maruti car
bearing Registration No.DL2CA 5531 in the night intervening
29/30th December, 2003. This is not their case that the car,
in which they were travelling, was different from the car in
which the robbery was committed though both the cars had
number plates bearing same registration number. According
to PW-16 SI Vipin Kumar, who seized the vehicle from the
spot, though the car seized by him had number plates
bearing Registration No.DL2CA 5531, the actual registration
of the car was 2337. There is no explanation from the
appellants as to why the car in which they were travelling had
a fake registration plate. Travelling in a car having fake
registration plate is also an incriminating circumstance
against the appellants and indicates that they were the
persons involved in committing robbery and that is why they
were using plate bearing fake registration number on the car
in which they were travelling. The case of the appellants is
that they were not at all travelling in any car when they were
apprehended and that they were, in fact, called from their
residence and implicated in this case.
22. The testimony of PW-4 Sunil Arora and PW-5 Manoj
shows that the stolen articles were recovered when the
appellants were searched in their presence in the night
intervening 29/30th December, 2003. The mobile phone
Ex.P-1 of PW-4 Sunil Arora was recovered from the
possession of the appellant Narinder, whereas mobile phone
of his companion PW-5 Manoj was recovered from the
possession of the appellant Rajinder. The watch of the
complainant Sunil Arora was recovered from the possession
of the appellant Rakesh, whereas chain and gold ring stolen
from the possession of PW-5 Manoj were recovered from the
possession of the appellant Sikander.
23. It was contended by the learned counsel for the
appellants that no Test Identification Parade of the stolen
property having been got conducted, the identity of these
articles does not stand established. I find that complainant
Sunil Arora has specifically stated that the mobile phone was
purchased by him from M/s Sai Enterprises Ex.PW-16/DXC
vide purchased memo No.465. Copy of invoice, whereby
mobile, belonging to PW-5 Manoj was purchased, is also
available on record. Ex.PW-4/DX2 and DX3 are the copies of
invoices of purchase of chain and ring stolen from the
possession of PW-5 Manoj, whereas Ex.DX4 is the copy of the
invoice, whereby watch was purchased by PW-4 Sunil.
Therefore, ownership of the articles stolen from PW-4 and
PW-5 has been duly proved by the prosecution. The
appellants, on the other hand, have not claimed any of the
articles alleged to have been recovered from their possession.
24. It was held by the Hon'ble Supreme Court in
Erabhadrappa alias Krishnappa vs. State of Karnataka,
AIR 1983 SC 446, that where a lady witness identifies the
stolen articles such as ornaments and sarees at the trial
without prior Test Identification Parade, the testimony of
such a witness was not inadmissible in evidence for want of
prior Test Identification Parade, as ladies have uncanny sense
of identifying their own belongings, particularly the articles of
personal use. This, to my mind, would equally apply to
articles of daily use by a male. A particular article may be
identified by any particular mark on it or by its frequent use
or observation which causes a permanent impression on the
mind of identifier, that leads to recognition of the article.
Since PW-4 and PW-5 had been using the mobile phones,
which were stolen from their possession, they were in a
position to identify them. Similarly, the watch, which PW-4
Sunil Arora used to wear and the ring and chain, which PW-5
Manoj used to wear, were such articles which these persons
were in a position to easily identify. More importantly, not
only these stolen articles have been identified by the
complainant, who have also produced proof of their purchase,
they were seized from the appellants on the spot, in their
presence. In the absence of any of the appellants claiming
these articles, there is no reason to disbelieve the testimony
of appellants as regards ownership and identification of the
stolen articles.
25. The appellants were found in possession of the stolen
articles soon after their theft. In view of the provisions
contained in Section 114(a) of Evidence Act, it may be
presumed that they had either stolen these articles or they
had received the same knowing or having reason to believe
the same to be stolen property. Since the appellants have not
offered any explanation for their being found in possession of
the stolen articles and considering the fact that they were
found in possession almost immediately after theft of these
articles, the presumption necessarily has to be that the
appellants had committed theft of these articles. The
appellants have not even attempted to rebut the statutory
presumption available against them under Section 114(a)
Evidence Act. Therefore, recovery of stolen articles from their
possession almost immediately after commission of robbery,
by itself is sufficient to prove that they were the persons who
robbed PW-4 and PW-5 of their belongings in the night
intervening 29/30th December, 2003.
26. It was pointed out by the learned counsel for the
appellant Rakesh that FIR number finds mention of
documents such as seizure memo of car and stolen articles
Ex.PW-4/D, Ex.PW-4/E, Ex.PW-4/F, Ex.PW-4/G and Ex.PW
4/M though the case of the prosecution is that these
documents were prepared on the spot and the rukka, bearing
endorsement of the IO on the statement of Sunil Arora, was
sent to the Police Station only after these documents had
been prepared. There is no cross-examination of the
Investigating Officer on this aspect. He was not asked as to
how FIR number came to be given on these documents when,
according to him, the documents had been prepared before
registration of FIR. In the absence of any cross-examination
of the Investigating Officer, no advantage can be derived by
the appellants from this aspect of the case. It would be
noteworthy here that according to learned APP, as per
practice FIR number on such documents is written only after
FIR has been registered and a copy of the FIR is brought on
the spot by the police official who takes rukka to the Police
Station for registration of the FIR.
27. It was next pointed out by the learned counsel for
Rakesh that when PW-5 was examined in hospital by PW-3
Dr. Rajesh Chauhan, he did not tell him that as to how he
has sustained injuries on his person. This, to my mind, is of
no significance. PW-3 does not claim that he had asked PW-5
Manoj as to how the injury was sustained by him. Since the
person who caused injury to PW-5 had already been arrested
before he was taken to the hospital for his medical
examination, there was no occasion for him to tell the doctor
as to how he had sustained the injury on his person.
28. It was also pointed out by the learned counsel that
neither key nor the number plate fixed on the car was seized
by the police. In my view, nothing turns on the failure of the
Investigating Officer to seize the key of the vehicle. It was not
necessary for the Investigating Officer to remove the fake
number plate fixed on the car and seize since he was not
investigating theft of the car in which robbery was committed.
Therefore, no adverse inference can be drawn against
prosecution on account of the key or fake number plate fixed
on the car having not been seized.
29. It was also pointed out by the learned counsel for the
appellant that Sub-Inspector Dariao Singh has not been
examined though he was the superior officer of PW-1 and it
was at his instance that the appellants were searched again
after he had arrived at the spot. It was not obligatory for the
prosecution to examine Dariao Singh when a number of
witnesses, including public witnesses, who were victims of
the crime and a number of police officials, including those
who were on duty in PCR vehicles and who had apprehended
the appellants have been examined. What the Court is
required to see as to whether the prosecution has been able
to prove its case from the testimony of the witnesses who
have not been examined by it. No useful purpose is served
from multiplying the evidence by examining multiple
witnesses to prove the same fact.
30. It was submitted by the learned counsel for the
appellant Rakesh that according to PW-5, he had brought
Rs.2500/- from his house and had purchased some clothes
from the shop of his friend and at the same time, he claims to
have Rs.2500/-. The contention is that PW-5 must have
spent some money in purchase of clothes and, therefore, he
could not have Rs.2500/- in possession, when the robbery
took place. I find that PW-5 was not asked as to how he was
having Rs.2500/- with him at the time of commission of
robbery when he had taken that very amount with him while
leaving the house and he had also purchased some clothes
for which he must have incurred some expenditure. More
importantly, I find that according to PW-5, he had purchased
the clothes from the shop of his friend Sunil. It is quite
possible that Sunil being his friend PW-5 at that time did not
make any payment to him for the clothes purchased from his
shop.
31. It was also submitted by the learned counsel for the
appellant that according to PW-4 and PW-5 though they were
four persons who sat on the rear seat of Maruti car, PW-5
was also able to avert the knife blow given to him by the
appellant Sikander in the car. The contention is that if four
persons are sitting in a small car like Maruti-800, it is not
possible for a person to avert the knife blow given to him. I
find no merit in this contention. If a person notices the blow
aimed at him, it is quite possible for him to avert it by
ducking himself. It was also contended by the learned
counsel for the appellant Rakesh that two FIRs were
registered by PW-2 within a span of 15 months though there
is no occasion to register two separate FIRs. I find no merit in
the contention. One FIR was registered at the instance of ASI
Ajay Kumar under Arms Act on account of recovery of a knife
from his possession whereas, the other FIR at the instance of
SI Vipin Kumar for the robbery committed by the appellants.
32. The learned counsel for the appellant Rakesh has also
pointed out a few contradictions. He has pointed out that
according to PW-1 ASI Jaslin Kongari, they had remained on
the spot for 10-15 minutes where the incident was took place
and the recovery memos were signed in the Police Station,
whereas according to other witnesses, the proceedings were
conducted at the place where the appellants were
apprehended. I find that even PW-1 has stated at one place
of his cross-examination that all the proceedings were
conducted on the spot, at about 15-20 metres away from the
Railway Crossing. It, therefore, appears that on account of
passage of time, he was not sure as regards the place, where
the proceedings took place.
33. The appropriate method to test the credibility of a
witness whose testimony suffers from some discrepancies or
contradictions is to consider his evidence, dehors such
discrepancies and contradictions, in order to find out whether
he appears to be a truthful witness or not. If the Court
comes to the conclusion that a he appears to be a truthful
and reliable witness, his deposition in the Court needs to be
evaluated in the light of the discrepancies and contradictions
pointed out in his testimony and then decide whether the
credibility of the witness stands impeached on account of the
contradictions or discrepancies on the basis of which his
testimony has been assailed. It would not be appropriate for
the Court to reject the testimony of a witness at the very
threshold, merely on account of some contradictions or
discrepancies, found, here and there, in his testimony. The
Court needs to focus on the core part of the testimony of the
witness to evaluate his credibility and contradictions or
discrepancies on peripheral matters which have no material
bearing on the core part of his testimony should not lead to
the whole testimony being rejected on account of such minor
contradictions or discrepancies. The Courts need to
appreciate that when a witness is examined in the Court on
such peripheral or incidental matters, his answers to the
questions put to him are bound to be based upon whatever
he has been able to retain his memory or whatever he is able
to recollect at that time. The Courts also need to recognize
and appreciate that not everyone has the same capacity of
retention, recollection and reproduction, which is bound to
vary from individual to individual. Therefore, it is quite
natural even for a honest and truthful witnesses to differ on
same peripheral details unrelated the main incident,
witnessed by them. Also, when the Trial Court which had the
opportunity to observe demeanour of the witness, has
believed him, the Appellate Court should ordinarily not to
take a contrary view on the reliability of such a witness,
unless there are strong and compelling reasons warranting
taking a contrary view. The discrepancies and
contradictions, in order to materially impeach the credibility
of a witness, necessarily need to be vital in nature and on the
core part of his testimony. The contradiction pointed out in
the testimony of PW-1 ASI Jaslin Kongari vis-à-vis the
testimony of other witnesses not being on the core part of his
testimony, i.e. chasing of car bearing Registration No. DL2CA
5531 by him in PCR van, apprehension of the appellants
while travelling in that car and recovery of buttondar knife
from the possession of the appellant Rakesh and stolen
articles from all the appellants, the contradictions pointed out
by the learned counsel do no impeach his credibility as a
reliable and truthful witness and therefore cannot form the
basis of outright rejection of his testimony.
34. For the reasons given in the preceding paragraphs, I
have no hesitation in holding that all the four appellants are
guilty of committing robbery of mobile phones, cash,
jewellery, chain and watch from the possession of PW-4 Sunil
Arora and PW-5 Manoj in the night intervening 29/30 th
December, 2003 when they were travelling in a Maruti car
having number plate bearing Registration No. DL2CA 5531.
The very fact that two of the appellants were already sitting in
the car whereas the remaining two boarded it after PW-4 and
PW-5 had occupied its rear seat leaves no reasonable doubt
that all the appellants shared a common intention to commit
robbery of articles belonging to PW-4 and PW-5. The recovery
of stolen articles from the possession of the appellants is yet
another proof of their having acted in furtherance of a
common intention to commit robbery. Since injury was
caused to PW-5 Manoj in committing robbery, all the
appellants are guilty of offence punishable under Section 394
IPC read with Section 34 IPC.
35. The appellant Rakesh used a buttondar knife, which is a
deadly weapon at the time of committing crime. The
expression 'deadly weapon', used in Section 397 of IPC has
not been defined in the Act. In common parlance, it would
mean an instrument, which, if used as a weapon, can cause
death of a person. The knife recovered from the possession of
the appellant Rakesh was a buttondar knife. Such knifes are
not meant for domestic use and if used as a weapon of
offence, they can result in the death of a person to whom
blow from such a knife is given. Therefore, a buttondar knife
is definitely a deadly weapon within the meaning of Section
397 of IPC. In Phool Kumar Vs. Delhi Admn. AIR 1975 SC
905 the accused was carrying a knife in his hand at the time
the robbery was committed. It was found from the deposition
of PW-16 that the appellant/accused Phool Kumar had a
knife in his hand. The Hon'ble Supreme Court held that he
was therefore carrying a deadly weapon. In Salim Vs. State
1987 (3) Crimes 794 the Hon'ble High Court of Delhi held
that to categorize knife or to fix its size for it to be a deadly
weapon may not be appropriate. It was held that to say that
a knife to be a deadly weapon should be of a particular size
would not be a correct statement. In State of Maharasthra
Vs. Vinayak 1997 Cr.L.J. 3988 Bombay High Court held that
knife is a deadly weapon within the ambit of expression
'deadly weapon' used in section 397 of IPC.
36. Since PW-4 and PW-5 were criminally intimidated when
they were travelling in Maruti car No. DL2CA 5531 and the
facts and circumstances of the case show that the threat to
them was given in furtherance of the common intention,
which the appellant shared with each other, all of them are
also guilty of offence punishable under Section 506 Part II of
IPC and their conviction under Section 506 of IPC is
accordingly maintained.
37. For the reasons given in the preceding paragraphs, the
appellant Rakesh is convicted under Section 392/394/34 of
IPC read with Section 397 thereof. The appellant Rakesh is
sentenced to undergo RI for seven years under Section
392/394/34 of IPC read with Section 397 thereof and is
further directed to pay fine of Rs.5,000/- or to undergo SI for
three months in default. He is also sentenced to undergo RI
for one year and to pay fine of Rs.1,000/- or to undergo SI for
15 days in default under Section 506 Part-II of IPC. He is
also sentenced to undergo RI for one year and to pay fine of
Rs.1000/- or to undergo SI for 15 days in default under
Section 25 of Arms Act. The appellants Sikander, Narinder
and Rajinder are sentenced to undergo RI for three years
each and to pay fine of Rs.3,000/- or to undergo SI for one
month each in default under Section 392/394 of IPC read
with Section 34 thereof and are further sentenced to undergo
RI for one year each and to pay fine of Rs.1,000/- each and to
undergo SI for 15 days each in default under Section 506
Part-II of IPC. The sentences shall run concurrently. The
appellants are granted two weeks' time to pay the fine. Those
of the appellants, who have not already served the
substantive sentence imposed upon them, will surrender
forthwith before the Trial Court to undergo the remaining
portion of the sentence awarded to them. Those of the
appellants, who fail to pay the fine imposed upon them within
two weeks from today, will also surrender before the Trial
Court to undergo the sentence imposed upon them in default
of payment of fine.
One copy of this order be sent to the Trial Court within
three days for information and compliance.
(V.K.JAIN)
JUDGE
FEBRFUARY 24, 2010/BG
