Naresh & Anr. vs State Of Delhi
2013 Latest Caselaw 2324 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : 9th APRIL, 2013
                                  DECIDED ON : 20th MAY, 2013

+                          CRL.A. 75/1998

      NARESH & ANR.                                       ....Appellants
              Through :          Mr.K.B.Andley, Sr.Advocate with
                                 Mr.M.L.Yadav, Advocate.

                                 versus

      STATE OF DELHI                                       ....Respondent
               Through :         Mr.M.N.Dudeja, APP.
                                 SI Manish Kumar, PS Seelampur.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellants- Naresh (A-1) and Mukesh (A-2) challenge

judgment dated 29.01.1998 in Sessions Case No. 21/1997 arising out of

FIR No. 562/1996 PS Seelampur by which they were held guilty for

committing offence punishable under Section 393/34 IPC read with

Section 398 IPC. They were convicted under Section 25 Arms Act also.

Vide order dated 29.01.1998, sentence to under RI for seven years was

awarded.

2. Allegations against Naresh (A-1), Mukesh (A-2) and Rakesh

were that on 20.09.1996 at about 04.10 A.M. G.T.Road, Near Hanuman

Mandir, they attempted to rob complainant-Nandu Mehtu. They were

armed with deadly weapons at that time. All the three assailants were

apprehended and various weapons were recovered from their possession

then and there. During investigation, statements of the witnesses

conversant with the facts were recorded. All the three were duly charged

and brought to Trial. The prosecution examined six witnesses. In their 313

statements, A-1, A-2 and Rakesh pleaded false implication. On

appreciating the evidence and considering the rival contentions of the

parties, the Trial Court, by the impugned judgment, held all of them

perpetrators of the crime and sentenced accordingly. Being aggrieved, A-1

and A-2 have preferred the appeal. It is relevant to note that Rakesh had

also preferred the appeal against the impugned judgment and it was

dismissed.

3. Learned counsel for the appellants urged that the Trial Court

did not appreciate the evidence in its true and proper perspective and fell

into grave error in relying upon the testimony of sole witness PW-1

(Nandu Mehtu) without corroboration. The complainant was unable to

specifically depose as to which of the assailants used which weapon. No

independent public witness was associated at any stage of the

investigation. The complainant was not medically examined. Counsel

further prayed to modify sentence as the appellants were young boys at

the time of incident. Learned APP for the State urged that there are no

valid reasons to discard the cogent testimony of the victim who had no

prior animosity with the assailants.

4. Star witness PW-1 (Nandu Mehtu) is the victim. He was

driving TSR on 20.09.1996. First Information Report was lodged by him

and in his statement (Ex.PW-1/A), he disclosed to the police that at about

04.00 A.M. when he was going on G.T.Road after dropping a passenger at

Seelampur, the three assailants/ boys signalled him to stop. When he

stopped the TSR, they sat in the TSR and directed him to take them to

ISBT. On the way to ISBT, he was forced to take the route via Iron

Bridge. After some time, the assailants who were armed with 'pharsa' and

'daggers' asked him to handover whatever he had. One of the assailants

caught hold him by collar and other started searching his pocket. When he

raised alarm, the police reached the spot and apprehended the assailants.

The weapons were recovered from their possession. The incident took

place at 04.00 A.M. The Investigating Officer sent rukka at 06.00 A.M. to

lodge First Information Report. There was no delay in getting the case

registered. While appearing as PW-1, the victim proved the version given

to the police at the first instance (Ex.PW-1/A) without any variation. He

identified the three assailants and attributed specific role to each of them.

He elaborated that A-1 had caught hold of his shirt collar from behind and

placed 'pharsa' on his neck, A-2 put a 'kulhari' under his right armpit and

Rakesh had put a double edged 'dagger' on his abdomen. He lost control

over TSR and it turned turtle. When he raised alarm, the police reached

the spot and apprehended the assailants. He also proved memos by which

weapons were recovered from the assailants' possession. In the cross-

examination, he clarified that he had taken a passenger from Ajmeri Gate

to Seelampur before the occurrence. He denied the suggestion that quarrel

took place with the assailants over charging ` 100 as fare. He further

denied the suggestion that he hit Rakesh with a screw driver on his leg. He

claimed that he had sustained injuries but was not medically examined. He

fairly admitted that one Vijay, another TSR driver, had reached the Police

Station. He stated that A-1 & A-2 were wearing lining blue shirts. Rakesh

were wearing half T-shirt of white colour. Despite lengthy cross-

examination, the appellants were not able to elicit any material

discrepancies or contradictions to disbelieve him. No ulterior motive was

attributed to the victim for falsely implicating them. Apparently, the

victim was not acquainted with the assailants and did not nurture grudge

against them to falsely name them as offenders. The assailants were

apprehended at the spot. They did not deny their presence at the spot that

time. Specific suggestion was put to the complainant that the assailants

were to go to Vaishno Devi and had boarded TSR to go to ISBT. The

accused persons however, did not lead any positive evidence to

substantiate that on that day they intended to go to Vaishno Devi. They

did not elaborate as to by which mode they were to go to Vaishno Devi or

if they had reserved tickets for that. They did not examine any family

member in their defence to establish that they intended to pay a visit to

Vaishno Devi. A paltry sum/ cash was recovered from their possession

which was not sufficient to meet their expenses to go to Vaishno Devi.

Moreover, the accused persons had no reasons to have in their possession

deadly weapons while going to a religious place. The defence deserves

outright rejection. There is no justifiable explanation as to what the

accused persons were doing at odd hours at the place of occurrence with

weapons. PW-1 (Nandu Mehtu), a TSR driver had no axe to grind to

falsely implicate the accused persons. In the absence of material

discrepancies or ulterior motive, I find no reasons to disbelieve the

victim's statement. PW-3 (HC Sunil Kumar) and PW-5 (SI Ram Avtar)

have corroborated the complainant's version regarding recovery of the

weapons from their possession. Again, their testimonies on material facts

remained unchallenged. The lapses/ discrepancies highlighted by the

counsel are not material. It is a settled legal proposition that while

appreciating the evidence of a witness, minor discrepancies on trivial

matters, which do not affect the core of the prosecution's case, may not

prompt the Court to reject the evidence in its entirety. Irrelevant details

which do not in any way corrode the credibility of a witness cannot be

labelled as omissions or contradictions. 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

witnesses. Minor discrepancies are bound to occur in the statements of

witnesses. Non-examination of independent public witness per-se is of no

consequence. The Court can convict an accused on the statement of a sole

witness. The condition precedent to such an order is that the statement of

such witness should satisfy the legal parameters i.e. it is trustworthy,

cogent and corroborated by other evidence produced by the prosecution,

oral or documentary. It is only when the Court finds that single eye-

witness is a wholly unreliable witness, his testimony can be discarded in

toto. I find no valid reasons to deviate from the findings of conviction.

5. The appellants have been sentenced to undergo RI for seven

years. It is the minimum sentence prescribed under Section 398 IPC. The

appellants were armed with deadly weapons at the time of attempt to

commit robbery. Not only they were armed with weapons, they used them

to put fear in the mind of the complainant to part with the money. Similar

prayer to reduce the sentence was made earlier. Order dated 16.07.2009

records appellants' submission that they would not press the appeal on

merits and the quantum of sentence be reduced to the period already

undergone. Vide order dated 09.11.2009, the prayer was declined in view

of the language of the Section 398 of the IPC and it was not possible to

reduce the sentence lesser than the minimum prescribed.

6. In the light of above discussion, the appeal filed by the

appellants lacks merits and is dismissed. The sentence and conviction of

the appellants are maintained.

7. The appellants are directed to surrender and serve the

remainder of their sentence. For this purpose, they shall appear before the

Trial Court on 27th May, 2013. The Registry shall transmit the Trial Court

records forthwith to ensure compliance with the judgment.

(S.P.GARG) JUDGE MAY 20, 2013 tr