Rajesh @ Rajbir vs State
2010 Latest Caselaw 1354 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI
+                     Crl.A.No.54/2005
%                     Reserved on:     09th March, 2010
                      Date of Decision: 11th March, 2010
#     RAJESH @ RAJBIR                           ..... Appellant
!                 Through:         Mr. Ravinder Tyagi, Adv.
                      versus
$     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?               No

      2.    To be referred to the Reporter or not?            No
      3.    Whether the judgment should be
            reported in the Digest?                           No

: V.K. JAIN, J.

1. This is an appeal against the judgment dated 7 th January

2005 and Order on Sentence dated 11 th January 2005,

whereby the appellant was convicted under Section 394/397 of

IPC and was sentenced to undergo R.I. for 7 years and to pay

fine of Rs.25,000/- or to undergo R.I. for three months in

default.

2. On 8th November 2001, an information was received at

Police Control Room regarding snatching in a bus in front of

Liberty Cinema and someone getting injured in that incident.

When the information was conveyed to Police Post Dev Nagar,

the Incharge of Police Post SI Yashpal Singh reached Ram

Manohar Lohia hospital, where ASI Balbir Singh, Incharge of

PCR Van OSCAR 39 met him and informed him that he had

got the injured admitted in the hospital. The complainant

Vedpal was found admitted in the hospital. The IO recorded

his statement. The complainant alleged that on that day, he

took a bus from Peera Garhi Chowk and got down at Liberty

Cinema, to take another bus. He then boarded bus at Route

No. 926. When he was boarding the bus, he was surrounded

by 3-4 boys, who started manhandling him and one of them

removed Rs.5,300/- which he was carrying in the pocket of his

pant. He further stated that as soon as one of the boys

removed money from the pocket of his pant, he caught his

hand, whereupon that boy handed over some money to his

associate. The third person then removed the purse which he

had kept in the hip pocket of his pant. The purse contained

his identity card, pay slip, some visiting cards and a small

diary. The person, whom he had held by hand, was made by

him to get down from the bus. Three-four associates of that

boy also got down from the bus and started manhandling him.

The boy whom he had made get down from the bus took out a

chhura and gave a blow above his left knee, as a result of

which, he fell down. His other companion gave a knife blow on

his pocket. He, however, despite being injured, caught one of

them. In the meantime, PCR officials, who were watching this

incident from the other side of the road, came running to him,

whereupon other persons, including the boy who had given

knife blow on his back, ran away. The appellant Rajesh is

stated to be the person who was apprehended on the spot. The

money belonging to the complainant is alleged to have been

recovered from his possession, alongwith a Chhura.

3. The prosecution examined 14 witnesses in support of its

case. No witness was examined in defence.

4. The complainant Head Constable Ved Pal came in the

witness Box as PW-3 and stated that on 08th November, 2001,

he was carrying his salary amounting to Rs.5300/- with him.

He got down at Liberty Cinema and boarded a bus of root

No.926. When he boarded the bus, three-four persons started

pushing him. When he objected to it, those persons caught

hold of him and one of them inserted his hand in his pocket

and was trying to remove money from his pocket. He

immediately caught hold of him. Some of the money, which he

had taken from his pocket, was handed over by him to his

associate. He dragged that boy from the bus and made him get

down. His associates followed him. That boy then took out a

knife and gave a blow behind his knee. His accomplices also

encircled him and gave a knife blow on his back. As a result of

the injuries, he fell down, but he chased them and caught hold

of one of them. Seeing one PCR van coming from the other

side, his associates ran away towards Sarai Rohilla. The

person, whom he had caught, was handed over to the local

police. He identified the appellant Rajesh as the person who

had given knife blow to him. The complainant stated that

Rajesh was arrested on the spot and was having a knife with

him at that time. After preparation of sketch Ex.PW-3/M and

sealing it, the knife was seized vide memo Ex.PW-3/N. He

further stated that Rs.4400/- were recovered from the accused

Rajesh which were seized from vide Memo Ex.PW-3/D.

5. PW-9 ASI Balbir Singh stated that on 08th November,

2001, he was in-charge of Police Van OSCAR 39 and was

present at Liberty Cinema at about 12.30 pm, he noticed one

boy with chhura in his hand, trying to cross the road and one

injured chasing him. He caught hold of that boy. In the

meantime, he also reached there and immediately overpowered

that boy alongwith chhura. He made both of them sit in the

PCR van and took them to RML Hospital. He further stated

that Rs.4400/- were recovered from the possession of the boy

who was having chhura in his hand. He identified the

appellant Rajesh as the boy who was having chhura in his

hand and from whom Rs.4400/- were recovered. According to

him, the money was handed over by him to the chowki In-

charge who had reached the hospital. He has chhura identified

Ex.P-3 as the knife which was recovered from the possession

of the appellant Rajesh.

6. PW-11 Constable Raj Kumar went to RML Hospital with

the IO on 08th November, 2001. He has stated that ASI Balbir

Singh was present there and he met them in the hospital and

produced the accused Rajesh and cash amounting to

Rs.4400/-. The chhura and cash were seized vide memos vide

Ex.PW-3/M and Ex.PW-3/N. He has identified Ex.P-3 which

was handed over by him to the hospital.

7. PW-13 SI Yashpal Singh stated that on 08th November,

2001, he reached the place of occurrence near Liberty Cinema

on receipt of copy of DD No.21. He came to know that the

injured had been taken to RML Hospital in PCR van. He

thereupon reached RML Hospital where ASI Balbir Singh was

found present. ASI Balbir Singh produced the accused Rajesh

before him alongwith a chhura and currency notes of

Rs.4400/-. The chhura as well as currency notes were seized

by him after sealing them.

8. In his statement under Section 313 Cr.P.C., the appellant

Rajesh denied all the allegations against him and claimed that

he was lifted from his residence and falsely implicated in this

case.

9. The learned counsel for the appellants pointed out certain

contradiction in the testimony of prosecution witnesses and

has on that basis pointed out that the prosecution has failed

to prove its case beyond reasonable doubt. It has been pointed

out that according to PW-2 Naubat Ram, conductor of the bus,

in which the complainant was travelling, the bus was boarded

by the complainant at Sarai Rohilla Bus Stand, whereas

according to the complainant he had boarded the bus at route

No. 926 at Liberty Cinema. It has been further pointed out

that according to the complainant it was he who had produced

the appellant Rajesh to the police along with the knife,

whereas the case of the prosecution is that the knife as well as

the appellant were handed over to the Investigating Officer by

PW-9 ASI Balbir Singh in Ram Manohar Lohia Hospital. It was

also pointed out that according to the complainant, he had

handed over the knife to the IO on the spot and the IO had

taken Rs.4400/- from the pocket of the appellant in the

presence, though the case of the prosecution is that the money

was handed over to the IO by PW-9 ASI Balbir Singh along

with the knife alleged to have been seized from the appellant.

It was also submitted that according to the complainant it was

he who had caught the complainant, whereas according to PW-

9, the appellant was apprehended by him.

10. It is true that according to PW-2 Naubat Ram, about 15-

20 passengers had boarded the bus from Sarai Rohilla Bus

Stand and on hearing noise of quarrel, he had got the bus

stopped before the next stand. But, according to the bus

driver, PW-8 Gian Singh, the passengers had boarded the bus

at the Bus Stop of Liberty and the bus was stopped by him

after a short distance from that Bus Stand. Therefore, the

testimony of PW-8 corroborates the deposition of the

complainant as regards the place from where he had boarded

bus. The testimony of PW-9 ASI Balbir Singh also

corroborates his deposition as regards the place where this

incident took place. Therefore, mistake on the part of PW-2 in

stating the place from where the bus was boarded by the

complainant cannot be said to be material and no significance

can be attached to this minor contradiction.

11. I find no contradiction in the testimony of PW-5 and PW-9

as regards the person who apprehended the appellant Rajesh.

The complainant has specifically stated that he had caught

hold of the appellant and snatched the knife from his hand.

Even according to PW-9, it was the complainant, who was

chasing the appellant and had caught hold of him. Since PW-

9 came rushing from other direction, he also must have helped

the complainant in overpowering the appellant and in allowing

him to escape. It is, therefore, immaterial as to whether

knife/churra from the hand of the appellant was taken by the

complainant or by PW-9 ASI Balbir Singh. What is relevant is

that both of them are witness to the appellant having been

caught with a knife and a churra/knife being found with him.

12. It is true that the deposition of the complainant gives an

indication as if the knife was handed over by him to the IO on

the spot and that the cash was seized by the IO from the

Rajesh in his presence, whereas the case of the prosecution is

that the knife as well as the cash were handed over to the IO

by PW-9, ASI Balbir Singh in the hospital. A perusal of the

Seizure Memo Ex.PW-3/P dated 08th November, 2001 shows

that the cash was handed over to the IO by ASI Balibir Singh

in the RML Hospital. Similarly, the Seizure Memo of the knife

Ex.PW-3/N dated 08th November, 2001 also shows that the

knife was handed over to the IO by ASI Balbir in RML Hospital.

Both these documents having been prepared on 08 th

November, 2001 and being signed by the witnesses, there is no

good reason to not rely upon them. PW-9 ASI Balbir Singh and

the PW-13 SI Yashpal Singh have corroborated testimony of

each other as regards the place where the cash and knife were

seized as well as regarding the person who had handed over to

the IO. The complainant himself admits that PW-9 ASI Balbir

Singh had taken him to RML Hospital in a PCR van. A perusal

of the MLC of the complainant Ex.PW-12/A also shows that it

was PW-9 ASI Balibir Singh of PCR van OSCAR-39 who had

brought him to the hospital. It is quite unlikely that even after

meeting PW-9 ASI Balbir Singh, the complainant would have

kept the knife and cash seized from the appellant with him.

PW-9 being a police officer, in all probability, he must have

taken charge of the knife as well as the cash from the

complainant and then handed them over to the IO in the

hospital. Moreover, the complainant being an injured

condition, he was not likely to retain the knife and cash with

him, when a police officer was accompanying him to the

hospital. Therefore, discrepancy in the deposition of the

complainant, as regards the place where the cash and knife

were handed over to the IO as well as his claim that the knife

was handed over by him and the cash was recovered by the IO

from the appellant in his presence, can be safely attributed to

poor recollection of the event on his part, due to lapse of time

between the date of incident and the date on which he was

examined in the Court. The Courts need to appreciate that

normally the witnesses are not examined in the Court soon

after the incident witnessed by them and, therefore, it may not

always be possible for every person to correctly recall all the

details of the incident witnesses. Of course, he is not likely to

forget the main incident of this nature, experienced by him.

Normally, discrepancy on the matters which are peripheral or

rather trivial and do not form the core of the case do not affect

the credibility of a witness and it is not proper to reject his

testimony on account of such minor variations or infirmities in

trivial details. The Courts need to recognize that not everyone

has equal capacity of observation, retention and recollection,

which varies from individual to individual and it is not natural

for the honest and otherwise reliable witnesses to differ on

some minor details, which by themselves, do not constitute the

main incident witnessed by them. It is also a settled legal

proposition that if the Trial Court which had the opportunity to

observe the demeanour of the witness has found him reliable

and accepted his testimony, the Appellate Court should not

take a contrary view on the reliability of such a witness, except

for strong reasons. As observed by the Hon'ble Supreme Court

in Krishna Mochi vs. State, 2002 IV AD (SC) 45, normal

discrepancies are those which are due to normal errors of

observation, normal errors of memory due to passage of time

due to mental disposition such as shock and horror and are

always present, however, truthful witness may be. It is

observed by Hon'ble Supreme Court in Leela Ram (Dead)

through Duli Chand Vs. State of Haryana and Anr., AIR

1999 SC 3717 that the discrepancies unless they are vital in

nature cannot by itself affect the credibility of a witness and

unless contradictions are on material dimension they should

not be used to Jettison the evidence in its entirety and trivial

discrepancies ought not to obliterate otherwise acceptable

testimony of a witness. It was observed in Dhanvir and

Others vs. The State, 85(2000) DLT 711, human memory is

not mere a computer where memory can be fed or restored for

all times to come and later on when retrieved it would be

verbatim the same. A human being, when he describes some

incident in natural course, some variation is bound to take

place so long as the variations are not natural they ought to be

ignored. Therefore, the contradictions highlighted by the

learned counsel for the appellant by themselves do not destroy

the credibility and reliability of the complainant whose

testimony finds corroboration from the testimony of PW-9 ASI

Balbir Singh.

13. It was submitted by the learned counsel for the appellant

that though the complainant claims that he was carrying

Rs.5300/-, only Rs.4400/- are alleged to have been recovered

from him and there is no explanation for this discrepancy in

the case of the prosecution. In my view, the contention is

totally misconceived. According to the complainant, the

appellant had handed over some of the money which he had

taken from his pocked to his associate. Since part of the

money removed from the pocket of the complainant had been

handed over by the appellant to one of his associates, the

entire money could obviously not have been found with him.

14. It was contended by the learned counsel for the appellant

that since no opinion of the doctor has been obtained to the

effect that injury found on the person of the complainant could

have been caused by the knife Ex.P-3 alleged to have been

recovered from the possession of the appellant, Section 397 of

IPC does not apply in his case. In my view, the contention is

totally misconceived. Even if a person simply carries a deadly

weapon and it is seen by the victim at the time of commission

of robbery that also amounts to use of the weapon in

commission of robbery. It was held by the Hon'ble Supreme

Court in Phool Kumar Vs. Delhi Administration, AIR 1975

SC 905 if the accused armed with a knife and his associate

armed with a small gun terrorise the employees of a service

station to hand over the keys and after opening the office, they

decamped with cash, it was sufficient to bring the case within

the purview of Section 397 of IPC.

15. The testimony of PW-2 Naubat Ram, which has not been

assailed by the appellant, corroborates the deposition of the

complainant as regards snatching in the bus. According to

him, he saw one passenger getting down from the bus and

throwing stones. He also saw another passenger getting down

from the bus and chasing him, saying that his pocket had

been picked. Thus, snatching of money cannot be disputed.

The injuries found on the person of the complainant also

corroborate his version. The appellant has not given any

reason or motive either for the complainant or for PW-9 ASI

Balbir Singh to falsely identify him as the person who had

committed robbery and caused injury to the complainant. The

appellant does not claim any enmity or ill-will between him on

the one hand and either PW-3 or PW-9 on the other hand. He

claims that he was picked up from his house and falsely

implicated in this case. But, he does not give any reason for

the police to target him for the purpose of making him

responsible for the robbery committed in this case. He does

not claim that he was an anti-social element of the area and,

therefore, was picked up on suspicion and implicated in this

case. He does not claim that he is a previous convict in cases

of robbery or snatching and for that reason, the police

suspected him to be involved in this case and, therefore, lifted

him from his residence and implicated him in this case. The

testimony of PW-3-complainant, Head Constable Ved Pal and

PW-9 ASI Balbir Singh leaves no reasonable doubt that it was

the appellant Rajesh who had removed cash from the pocket of

the complainant and had also caused injury to him with a

knife. The theft of cash from the pocket of the complainant

amounts to robbery as defined in Section 390 of IPC since

injuries were caused to the complainant in carrying away the

money obtained by theft. In Phool Kumar (supra) 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 categorise 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. Therefore, irrespective of the size, any knife is a deadly

weapon.

16. In the present case, the appellant actually used a knife

for causing injuries to the complainant and, therefore, the case

of the prosecution in this case stands on a stronger footing. In

any case a perusal of the sketch of the knife Ex.PW-3/M would

show that the knife recovered from the possession of the

appellant was having a blade having length of 20.5 cm and

width of 2.7 cm. Therefore, this is not a kitchen knife and

such a knife if used as a weapon of offence is likely to cause

death of the person against whom it is used as a weapon.

Therefore, the knife recovered from the possession of the

appellant was definitely a deadly weapon.

17. For the reasons given in the preceding paragraph, I see

no ground to interfere with the conviction of the appellant

under Section 394 IPC read with Section 397 thereof. The

appellant has been awarded the minimum prescribed sentence

of seven years and hence, there is no scope for reducing the

substantive sentence awarded to him by the Trial Court. The

amount of the fine imposed upon the appellant is also very

minimal and does not call for any reduction. It is, however,

directed that in default of payment of fine, the appellant will go

SI for 15 days instead of rigorous imprisonment for three

months, awarded by the Trial Court.

The appeal stands disposed of with this modification.

The appellant is directed to surrender forthwith before the

Trial Court, to undergo the remaining part of the sentence

awarded to him. If he does not surrender forthwith, the Trial

Court will take necessary steps to procure his presence and

commit him to custody to undergo the remaining sentence.

Trial Court Record be sent back within three days alongwith a

copy of this judgment, for information and compliance.

(V.K.JAIN) JUDGE MARCH 11 , 2010 ag/bg