Delhi High Court

Vipin Kumar vs The State Of The Nct Of Delhi on 10 December, 2012

Author: A. K. Pathak

$~24
*IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL.A. 1008/2010

%
                                       Decided on 10th December, 2012

      VIPIN KUMAR                                      ..... Appellant
                             Through      : Mr. Bhupesh Narula, Adv.
                    versus
      THE STATE OF THE NCT OF DELHI                    ..... Respondent

                             Through      : Ms. Fizani Husain, APP
                                 AND
CRL. A. 1009/2010
NITIN KUMAR                                        ..... Appellant
                    Through:      Mr. Anup Bhambhani and Ms.
                                  Nisha Bhambhani, Advs.
              Versus
THE STATE (NCT OF DELHI)                               ..... Respondent
                   Through                : Ms. Fizani Husain, APP

CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.(ORAL)

1. Appellants have been convicted under Sections 392/397/394

IPC; sentenced to undergo rigorous imprisonment for five years

with fine of `2,000/- (Rupees Two Thousand Only) each under

Sections 392/34 IPC and in default of payment of fine to undergo

simple imprisonment for one month; sentenced to undergo rigorous

imprisonment for seven years with fine of `2,000/- (Rupees Two

Thousand Only) each under Sections 397/34 IPC and in default of

payment of fine to undergo simple imprisonment for one month;

sentenced to undergo rigorous imprisonment for five years with

fine of `2,000/- (Rupees Two Thousand Only) each under Sections

394/34 IPC and in default of payment of fine to undergo simple

imprisonment for one month. Benefit of Section 428 Cr.P.C. has

also been accorded to the appellants.

2. Aggrieved by their conviction as also the sentences handed

down to them by trial court, appellants have preferred the above

noted appeals, which have arisen from the same judgment, incident

and the FIR and are disposed of together.

3. Prosecution story as unfolded is that on 21st July, 2007 PW1

Kiran Devi was present in her house along with her daughter aged

about ten months at first floor of House No. H-59, Harkesh Nagar,

Okhla Industrial Area, New Delhi, when at about 2:30 PM

appellants Nitin Kumar and Vipin Kumar (whose names were

disclosed after their apprehension) along with their third

accomplice came there and asked as to whether any room was

available on rent; as she was conversing with them, appellant Nitin

Kumar took out a katta, appellant Vipin Kumar took out an open

knife and their third accomplice took out a chhura and forcibly

entered in the room and bolted the door; appellant Nitin Kumar

kept katta on her neck and threatened her that in case she raised

alarm, she would be killed. Appellant Vipin Kumar put the knife

on the neck of her child and said that she should handover all the

valuables to them, failing which child would be killed. Vipin

Kumar forcibly removed bangle and silver anklet from the person

of child and when Kiran Devi resisted he caused injuries on her

hand. Nitin Kumar forcibly removed the gold chain from the neck

of Kiran. Third accomplice of the appellants took out the purse

and a gold chain from the attachy of her husband. In the

meanwhile, her husband Girish Nandan (PW6) arrived there, got

door opened and raised alarm. Landlord Swaroop Singh and their

neighbour Vinod Kumar arrived there and tried to apprehend the

appellants at which appellant Vipin Kumar caused injuries on his

left hand. Vinod with the help of two policemen, namely,

Constable Balbir and Constable Anil, who were present near the

spot, apprehended the appellants while their third accomplice

succeeded in escaping after throwing the chhura. Anklets, bangles

and knife were recovered from Vipin Kumar; country made pistol

and gold chain were recovered from Nitin Kumar.

4. Information was sent to Police Post Okhla Industrial Area,

pursuant whereof DD No. 19 was recorded and handed over to HC

Bijender Singh, who along with Constable Onkar Singh reached

the spot. He prepared sketches of knife, chhura and country made

pistol in the presence of Kiran Devi, Girish Nandan and Vinod

Kumar. Katta recovered from Nitin, was found loaded with live

cartridges. Its sketch was prepared. Anklet, bangles and knife

were recovered from the appellant Vipin. All the recovered articles

were separately sealed and taken in possession by Head Constable

Bijender Singh. Head Constable Bijender Singh recorded statement

of Kiran Devi and prepared rukka and sent the same to Police

Station per hand Constable Onkar for registration of FIR.

Accordingly, FIR was registered. In the meanwhile, SI Manoj

Kumar reached the spot on receiving information about the

incident and took over further investigation. He prepared site plan

Ex. PW16/A, arrested the appellants, sent Kiran Devi and Vinod

Kumar to hospital for medical examination. Katta was sent to FSL

and as per the report of FSL it was found in working condition.

5. After completion of investigation, charge-sheet was filed in

the Court of Metropolitan Magistrate, who after completing the

formalities committed the case to Sessions Court, since offence

under Section 397 IPC is exclusively triable by the Sessions Court.

Charges under Sections 392/394/397/34 were framed against the

appellants separately on 21st February, 2008 to which they pleaded

not guilty and claimed trial.

6. Prosecution examined 17 witnesses in all in order to prove

its case. Material witnesses in this case are PW1 Kiran Devi, her

husband PW6 Girish Nandan, PW4 Vinod Kumar, PW7 Swaroop

Singh, PW2 Constable Balbir Singh, PW12 HC Bijender Singh and

PW16 SI Manoj Kumar. All these witnesses had an occasion to

see the appellants and they are material witnesses. Other witnesses

are formal in nature.

7. Trial court has found the testimonies of material witnesses,

that is, PW1 Kiran Devi, PW6 Girish Nandan, PW4 Vinod Kumar,

PW7 Swaroop Singh, PW2 Constable Balbir Singh, PW12 HC

Bijender Singh and PW16 SI Manoj Kumar to be trustworthy and

reliable and has concluded that the appellants had committed

robbery in the house of PW1 Kiran Devi and PW6 Girish Nandan;

while committing robbery appellants not only caused injuries on

the persons of PW1 Kiran Devi and PW4 Vinod Kumar by using

katta and knife but also in making an attempt to escape from the

spot after committing the robbery. MLCs of PW1 Kiran Devi and

PW4 Vinod Kumar corroborated their version that they had

sustained injuries at the hands of appellants. As regards recovery

of anklet, bangles and gold chain is concerned, these have also

been taken as a corroborative piece of evidence.

8. I have heard learned counsels as well as learned APP and

have perused trial court record carefully. I am of the view that the

trial court has rightly convicted appellants under the aforesaid

provisions by accepting the statements of aforesaid witnesses as

trustworthy and reliable.

9. PW1 Kiran Devi has categorically deposed that on 21st July,

2007 at about 2:30 PM she was present in her house along with her

infant daughter, namely, Anshu. Appellants along with their third

accomplice came there and enquired as to whether any room was

lying vacant. She replied that one room was available for letting

out upstairs. Appellants stayed there while their third accomplice

went upstairs. Thereafter, Nitin Kumar took out a chhura, which he

had concealed underneath his shirt while Vipin Kumar took out a

knife; they entered inside the room where she was sitting and

bolted the door from inside; they threatened her that in case she

raised alarm she would be killed; Vipin Kumar took the infant

child in his possession and pointed his weapon towards the child

and asked her to handover the valuables; Nitin Kumar also pointed

a country made pistol towards her. They also took out a purse

containing `5,000/- (Rupees Five Thousand Only) as well as one

pair of silver anklet, one gold ring, one gold chain and a pair of

gold earrings from the attachy. Silver anklets and silver bracelet

were also removed from the person of child. In the meanwhile, her

husband arrived there. Appellants tried to assault her husband

when she gave a push to Nitin Kumar. She also raised alarm at

which landlord Swaroop Chand and his brother Manoj Chand

along with one police official arrived there. Many people collected

there, out of which one person from the locality, namely, Vinod

Kumar tried to save her husband and sustained injuries in the

process. Nitin Kumar and Vipin Kumar were apprehended at the

spot; whereas their third accomplice succeeded in running away.

Police arrived there and took search of the appellants and recovered

one pair of anklets, bangle and one gold chain besides the weapons

of offence. She has correctly identified all these articles in Court.

She has also identified her signatures on her statement recorded by

the police under Section 154 Cr.P.C. (Ex. PW1/A). She has also

identified her signatures on seizure memo of anklet and bangles

(Ex. PW1/B) and seizure memo of gold chain (Ex. PW1/C). She

has also identified her signatures on the sketches of knife, dagger

and katta being Ex. PW1/D to Ex. PW1/F. She has also identified

her signatures on the seizure memos of weapons of offence, that is,

Ex. PW1/G to Ex. PW1/I. Her testimony on material points has

remained unshattered in her cross examination and has rightly been

accepted by the trial court, inasmuch as it has been corroborated by

other witnesses.

10. PW6 has deposed that on 21st July, 2007 when he returned

home he found appellants present there. They started manhandling

him in order to escape. However, they were apprehended by Vinod

Kumar and Swaroop along with weapons of offence and robbed

property, that is, silver anklet, bangle and gold chain. He has

identified his signatures on recovery memos, sketches etc. His

statement on material points has also remained unshattered and no

discrepancy therein could be pointed out by the learned counsels.

PW7 Swaroop Singh is the landlord. He has fully corroborated the

above witnesses regarding apprehension of appellants at the spot.

He has deposed that at about 2:45 PM or 3:00 PM on 21 st July,

2007 he was present in his house when he heard noises coming

from the house of his tenant, PW6 Girish Nandan. He reached

there and saw appellants present there. They were apprehended by

PW4 Vinod Kumar, PW2 Constable Balbir and Constable Anil.

Vipin was having a buttondar open knife in his right hand; whereas

Nitin was having a katta in his hand. PW4 Vinod Kumar has

corroborated the other witnesses. He has deposed that he was

working in Delhi Police. On the date of incident he was on leave

and present in his house. At about 2:45 PM he heard shouts of

"bachao-bachao" from his neighbouring house of Shri Manoj

Kumar and Shri Swaroop Singh, that is, H-59, Harkesh Nagar,

New Delhi. He immediately went there when he was told by

Girish Nandan and Kiran Devi that three boys had robbed their

gold and silver jewelry on the point of knife and had gone towards

the market. He chased them and apprehended them with the help of

Constable Balbir and Constable Anil, who were coming from the

opposite direction. He has also deposed about the recovery of

knife, pistol and robbed articles, that is, silver anklets, bracelet and

gold chain. He has also identified his signatures on the recovery

memos, sketches of weapons of offence etc. MLCs Ex. PW4/A and

Ex. PW5/A of Vinod Kumar and Kiran Devi support their versions

that the appellants had caused injuries on their person during the

incident and making their escape good. MLC of Vinod Kumar

indicates that he had sustained two injuries on his left hand

between thumb and index finger while PW1 Kiran Devi had

sustained injuries on her right wrist and middle finger of right

hand. PW 2 constable Balbir has also deposed in line with

aforesaid witnesses as regards apprehension of appellants. He has

deposed that he along with Constable Anil was on patrolling duty

in the area of Harkesh Nagar on 21st July, 2007 when at about 2.45

PM, he heard noises coming from H-59 (1st Floor), Harkesh Nagar.

He, with the help of Constable Anil and Constable Vinod,

apprehended Nitin and Vipin while their third accomplice Sanjay

succeeded in escaping. He has also talked about recovery of

weapons of offence and the robbed articles inasmuch as he has

identified his signatures on the sketches, recovery memos and

arrest memos.

11. Discrepancies as pointed by the learned counsels for the

appellants in the statements of PW4 vis-à-vis PW1 and PW6 are

minor in nature and may have crept in due to lapse of time between

the occurrence of the incident and recording of their statements.

Statements of the witnesses were recorded after two years of the

incident. It is not the case of prosecution that appellants were

apprehended in the midst of robbery. Rather, case is that they were

apprehended when they were making an attempt to escape from the

spot; if that is so, their apprehension at a distance of 30-40 meters

away from the spot will not make much difference, more so, when

all the witnesses have stated in unison that the appellants were

apprehended immediately after the incident, while they were

making an attempt to escape. That apart, statement of PW 4 as

against consistent statements of other relevant PWs will not be

sufficient to discredit whole prosecution story only on this point.

Fact remains that appellants were apprehended while they were

attempting to escape from the spot. Not only the weapons of

offence used in committing robbery but the robbed articles were

recovered and seized at the spot, vide seizure memos in the

presence of aforesaid witnesses, also strengthens the statements of

abovementioned witnesses.

12. Learned counsel for the appellant has vehemently contended

that PW1 is not a trustworthy and reliable witness and her

testimony has been wrongly accepted by the trial court. Her

deposition in court is inconsistent with what she had stated in the

FIR. While deposing in Court she has stated that three boys came

inside the house and asked her as to whether any room was

available for letting out. On her saying that one room was

available upstairs, Nitin and Vipin stayed downstairs while third

accused went upstairs. Thereafter, Nitin and Vipin committed

robbery. However, in her statement Ex. PW1/A she had stated that

all the three boys came at about 2:30 pm and asked her as to

whether any room was lying vacant. Immediately thereafter, all the

three boys, who were armed with desi katta and knife, entered into

the room and bolted the same from inside and thereafter,

committed robbery. She had also assigned role to Sanju of taking

husband's purse containing Rs.500/- and one gold chain from his

briefcase. However, while deposing in Court she has not assigned

any role to the third accomplice; instead she has deposed that

accused persons opened the briefcase and took out Rs.500/- from

her husband's purse besides silver anklet, one ring, one gold chain

and a pair of earrings. It is further contended that besides taking an

inconsistent stand she also improved her version with regard to the

robbed articles. I do not find much force in the contention of

learned counsel for the appellants. The discrepancies as pointed

out by the learned counsel are minor in nature and there is

probability of such discrepancies appearing in the statement of

PW1 since the same was recorded in court after more than two

years of the incident. Memory of a person may fade with the

passage of time and for this reason a person may waiver in

narrating the incident on certain points which by itself would not

be sufficient to discard the testimony of witness as a whole. As

regards the roles of appellants, PW1 Kiran has been consistent and

merely because she has remained silent about third accused

appellants cannot derive any benefit therefrom since appellants had

been apprehended at the spot itself, inasmuch as robbed articles

were recovered from them. Statement of a witness has to be read

as a whole. A holistic reading of statement of PW1 clearly

indicates that she had stuck to her statement as regards roles played

by the appellants are concerned, same are consistent. Learned

counsel for the appellants has further contended that the statements

of witnesses are discrepant as regards the apprehension of

appellants. As per PW1 Kiran, PW2 Const. Balbir Singh, PW6

Girish Nandan and PW7 Swaroop Singh, appellants were

apprehended at the spot itself; whereas PW4 Vinod Kumar has

stated that when he reached the first floor of House No. 59,

Harkesh Nagar, New Delhi PW6 Girish Nandan and his wife PW1

Kiran and Swaroop Chand, who were already present there, told

him that the three boys had committed robbery and had gone

towards the market road. He chased them. Const. Anil and Const.

Balbir were coming from the opposite side. Appellants were

apprehended while third accomplice succeeded in running away

after throwing a big chura. In his cross examination, he stated that

appellants were apprehended at a distance of about 30/40 meters

away from the place of occurrence. Thus, it is contended that there

is serious doubt about appellants having been apprehended at the

spot. I do not find much force in this contention either. PW1,

PW2, PW6 and PW7 have deposed that appellants escaped by

showing weapon of offence but were apprehended at the spot.

PW4 has deposed about appellants having been apprehended

within 30/40 meters from the spot which distance is not much.

Since the appellants were making an attempt to escape there is

every possibility of their having travelled 30/40 meters away from

the spot. It is not the case that the appellants were successful in

escaping and were apprehended later on. While appellants were

committing robbery husband of PW1 arrived there and raised alarm

which attracted the attention of PW4 and PW7 who would have

taken some time to arrive at the spot and in the meanwhile,

appellants could have moved a little away from the spot before

they were apprehended. In these facts, if other witnesses have

stated that appellants were apprehended at the spot and one witness

has stated that appellants were apprehended at a distance of about

30/40 meters away from the spot, it will not make much difference

as it is a matter of perception of an individual about the "spot".

However, the fact remains that appellants were apprehended and

robbed articles were recovered from them; on these points all the

witnesses have deposed in line with each other which shows the

appellants' complicity in the commission of crime. Appellants

cannot get away by creating confusion on this trivial point. Such

minor abrasions have to be ignored and the statements of the

witnesses have to be read as a whole, brushing aside minor and

trivial discrepancies.

13. In Vijay @ Chinee versus State of Madhya Pradesh 2010 (8)

UJ SC 3727, Supreme Court has held that even if there are some

omissions, contradictions and discrepancies, the entire evidence

cannot be disregarded. After exercising care and caution and sifting

the evidence to separate truth from untruth, exaggeration and

improvements, the Court comes to a conclusion as to whether the

residuary evidence is sufficient to convict the accused. Thus, an

undue importance should not be attached to omissions,

contradictions and discrepancies which do not go to the heart of the

matter and shake the basic version of the prosecution witness. As

the mental capabilities of a human being cannot be expected to be

attuned to absorb all the details, minor discrepancies are bound to

occur in the statements of witnesses. In State of U.P. versus M.K.

Anthony AIR 1985 SC 48, Supreme Court has held as under:

"While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is

against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross examination is an unequal duel between a rustic and refined lawyer".

14. In State versus Saravanan and Anr. AIR 2009 SC 152,

Supreme Court has held that while appreciating the evidence of a

witness, minor discrepancies on trivial matters without affecting

the core of the prosecution case, ought not to prompt the court to

reject evidence in its entirety. Further, on the general tenor of the

evidence given by the witness, the trial court upon appreciation of

evidence forms an opinion about the credibility thereof; in normal

circumstances the appellate court would not be justified to review it

once again without justifiable reasons. It is the totality of the

situation which has to be taken note of. Difference in some minor

detail, which does not otherwise affect the core of the prosecution

case, even if present, itself would not prompt the court to reject the