Ramesh vs The State (Govt. Of Nct Of Delhi)
2013 Latest Caselaw 79 Del

$~33-35
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+    CRL.A. 298/2002

%                     Judgment reserved on 6th December, 2012
                      Judgement delivered on 7th January, 2013
       RAMESH                                       ..... Appellant

                               Through:   Mr. A.J. Bhambhani and Ms.
                                          Nisha Bhambhani, Advs.
                                          along with appellant in
                                          person.

                      Versus

       THE STATE (GOVT. OF NCT OF DELHI) ..... Respondent

                               Through:   Ms. Fizani Hussain, APP
                                          with SI Prem Singh, P.S.
                                          Malviya Nagar.

                                   AND

+      CRL.A. 362/2002

       RAJ KUMAR                                  ..... Appellant

                               Through:   Mr. A.J. Bhambhani and Ms.
                                          Nisha Bhambhani, Advs.
                                          along with appellant in
                                          person.

                      versus

       THE STATE (GOVT. OF NCT OF DELHI) ..... Respondent

                               Through:   Ms. Fizani Hussain, APP
                                          with SI Prem Singh, P.S.
                                          Malviya Nagar.


Criminal Appeal 298/2002                                   Page 1 of 9
                                AND

+      CRL.A. 423/2003

       VIJAY PAL                                 ..... Appellant

                           Through:   Mr. A.J. Bhambhani and Ms.
                                      Nisha Bhambhani, Advs.
                                      along with appellant in
                                      person.

                      Versus

       THE STATE (GOVT. OF NCT OF DELHI).... Respondent

                           Through:   Ms. Fizani Hussain, APP
                                      with SI Prem Singh, P.S.
                                      Malviya Nagar.

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

A.K. PATHAK, J.

1. All the above mentioned three appeals are disposed of

together, since same arise out of the same incident, FIR and

judgment of trial court.

2. Appellants have been convicted under Sections 392/34 IPC.

Appellant Ramesh has also been convicted under Section 397 IPC.

3. Factual matrix, as unfolded from the record, is that the

complainant PW2 Satya Narain Singh was intercepted by the

appellants on 8th April, 1992 at about 7:25 PM near the nursery at

Gitanjli Enclave while he was passing through that area on his

bicycle. Ramesh took out a knife and asked PW2 to handover all

his belongings to them. Vijay Pal and Raj Kumar grappled with

him. Finally, Raj Kumar snatched bicycle make Atlas, Vijay pal

snatched wrist watch make HMT and Ramesh removed Rs.200/-

from the pocket of PW2. On hearing the alarm raised by PW2 few

police officials namely ASI Ramesh Dixit (PW5), Constable Brij

Pal (PW4), SI Vijender Singh (PW3) and Constable Mool Chand,

who were present in the nearby police picket, arrived there. PW5

SI Ramesh Dixit with the help of Constable Mool Chand

apprehended Raj Kumar; PW3 SI Vijender Singh with the help of

PW4 Constable Brij Pal apprehended Ramesh and PW2 Satya

Narain Singh had apprehended Vijay Pal and handed over him to

the police officials.

4. Appellants were searched. From the possession of Ramesh a

buttondar knife and Rs.200/- were recovered; from Vijay Pal one

wrist watch make HMT and from Raj Kumar one cycle make Atlas

was recovered. Statement of PW2 Satya Narain Singh was

recorded at the spot by PW5 SI Ramesh Dixit, who prepared rukka

and sent the same to Police Station Malviya Nagar for registration

of FIR per hand Constable Mool Chand, pursuant whereof FIR No.

169/1992 under Sections 392/34 IPC was registered at Police

Station Malviya Nagar.

5. Thereafter, appellants were arrested. Seizure memos were

prepared which were signed by PW2 and Constable Mool Chand.

These proceedings were conducted at the spot.

6. 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 Judge.

7. Charges under Sections 392/34 IPC were framed against all

the appellants on 16th November, 1992 to which they pleaded not

guilty and claimed trial. Separate charge under Section 397 IPC

was also framed on the same day against the appellant Ramesh to

which he pleaded not guilty and claimed trial.

8. Constable Mool Chand was not examined by the

prosecution. Material witnesses in this case are PW2 Satya Narain

Singh, PW3 SI Virender Singh, PW5 SI Ramesh Dixit and PW4

Constable Brij Pal. PW2 is the victim who was robbed by the

appellants. As regards PW3 to PW5 they had reached the spot

after the incident and had apprehended Ramesh and Raj Kumar.

Robbed articles were also recovered by them from the appellants in

presence of PW2. PW1 Duty Officer HC Raghubir had simply

recorded the FIR and is a formal witness. Trial court has found

testimonies of PW2 to PW5 trustworthy and sufficient enough to

conclude that it is the appellants who had robbed PW2 of his wrist

watch make HMT, Rs.200 and bicycle make Atlas on 8th April,

1992 at about 7:25 PM and while committing robbery Ramesh had

used the deadly weapon.

9. I have heard the arguments and perused the trial court record

carefully, more particularly the statement of PW2 Satya Narain

Singh and am of the view that the trial court was not right in

accepting his testimony as trustworthy and reliable. Statement of

PW2 not only suffers from inherent discrepancies but also is not in

line with the prosecution story. His statement is also not consistent

with the statements of the police witnesses. His statement also

makes the whole prosecution story doubtful and suspicious. As per

the prosecution, on PW2 raising alarm PW3 to PW5 along with

Constable Mool Chand reached the spot and apprehended Ramesh

and Raj Kumar, who were trying to escape after committing

robbery; while Vijay Pal was produced by PW2 before the police

officials; meaning thereby PW2 had already apprehended Vijay

Pal, while other police officials apprehended Ramesh and Raj

Kumar who were trying to make their escape good. However,

PW2 Satya Narain Singh has not deposed that he had apprehended

Vijay Pal and handed him over to the police officials, who had

arrived at the spot. According to him all the appellants were

apprehended by the police officials. Statement of PW2 is at

variance with the prosecution story and the statements of PW3 to

PW5 on this point. PW3 to PW5 have deposed that when they

reached the spot they saw that two boys were running towards the

pahari; they chased them and apprehended them; while Vijay Pal

was produced before them by PW2 Satya Narain Singh. Their this

statement is not in line with the statement of PW2. According to

PW2, all the three appellants were apprehended by the police

officials.

10. There is yet another major lacuna in the prosecution case,

which makes the whole story of the prosecution as suspicious and

doubtful. According to the prosecution, entire proceedings were

conducted at the spot. However, this fact is not corroborated by

PW2. According to PW2 he came to know about the names of

appellants in the police station after his statement had already been

recorded at the spot. Surprisingly enough, the names of appellants

are found mentioned in the statement of PW2. If PW2 came to

know about the names of appellants subsequent to recording of his

statement then it becomes doubtful that the police officials had

reached the spot immediately after the incident, apprehended the

appellants and conducted the entire proceedings at the spot. PW2,

in his cross-examination, has stated that the documents, which

were signed by him at the spot, were blank. If that is so, then the

whole story of recovery of robbed articles having been recovered

from the appellants and its seizure at the spot becomes doubtful,

inasmuch as, two of the seized articles, that is, Rs.200/- and bicycle

were not produced in court and the watch produced by PW2 was

not of HMT make but was of Ricoh make. As per PW2, robbed

watch was HMT make.

11. Other important factor which makes the prosecution story

doubtful is the admission of PW2 in court, in his cross-

examination, that he was briefed by the police officials outside the

court as to what statement he was to give in court.

12. There is no gainsaying that while appreciating the evidence

of a witness minor discrepancies on trivial matters, which do not

affect the core of the prosecution case, may not prompt the court to

reject the evidence in its entirety. The evidence of the witness

must be read as a whole and the cases are to be considered in

totality of the circumstances. However, in this case, omissions,

contradictions and discrepancies, as noted above cannot be said to

be minor or trivial. In fact, the same are on major issues and

demolish the foundation of the prosecution case.

13. A cumulative effect of all the above-noted discrepancies

makes the appellants to benefit of doubt.

14. In my view, trial court has overlooked the above vital

aspects while concluding that PW2 was a trustworthy and reliable

witness.

15. For the foregoing reasons, impugned order is set aside and

the appellants are acquitted. Appellants are on bail their personal

bonds and surety bonds are discharged.

16. All the above appeals are disposed of in the above terms.

A.K. PATHAK, J.

JANUARY 07, 2013 rb