Pramod Kumar vs State
2013 Latest Caselaw 4879 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 23rd October, 2013
                                     DECIDED ON : 24th October, 2013

+      CRL.A. 288/2000
       PRAMOD KUMAR
                                                               ..... Appellant
                                Through : Mr.Atul Verma, Advocate.

                                versus

       STATE
                                                             ..... Respondent
                                Through : Mr.Lovkesh Sawhney, APP.

+      CRL.A. 262/2000
       KAMAL
                                                               ..... Appellant
                                Through : Mr.M.L.Yadav, Advocate.

                                versus

       STATE
                                                             ..... Respondent
                                Through : Mr.Lovkesh Sawhney, APP.
        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Pramod Kumar (A-1) and Kamal (A-2) impugn a judgment

dated 28.02.2000 of learned Additional Sessions Judge in Sessions Case

No.138/91, 45/92 & 146/91 arising out of FIR No.149/91 registered at

Police Station Badarpur by which A-1 and A-2 were held guilty for

committing offences under Sections 397/392/34 IPC and 25 Arms Act and

under Section 392/34 IPC respectively. By an order dated 29.02.2000,

A-1 and A-2 were awarded Rigorous Imprisonment for seven years with

fine `6,000/- and Rigorous Imprisonment for five years with fine `3,000/-

respectively. The facts emerging from the record of the case are as under:-

2. On 28.05.1991 Narinder Singh was robbed of a purse

containing `142/-, DTC all-route pass, HMT watch and some papers at

about 11.30 P.M. at knife point when he was travelling in TSR No.DL-IR-

2454 driven by A-2. A-1 and Kanta Giri @ Kanti Giri (since expired)

who were made to sit in the said TSR with active connivance of A-2

robbed the complainant. After the incident, the complainant was

thrown/pushed out of the TSR and the assailants fled the spot. A police

Gypsy happened to reach after about 5/10 minutes and the complainant

narrated the incident to police officials on patrolling duty who were able

to apprehend the assailants at some distance at his pointing out and

recover robbed articles, TSR and knives from their possession. The

Investigating Officer recorded Narinder Singh's statement (Ex.PW-3/A)

and lodged First Information Report by making endorsement (Ex.PW4/F)

thereon. During investigation, statements of the witnesses conversant

with the facts were recorded. After completion of investigation the

assailants were charge-sheeted and brought to trial. The prosecution

examined four witnesses to establish the appellants' guilt. In their 313

statements they pleaded false implication. The trial resulted in conviction

of the appellants for offences mentioned previously. Proceedings against

Kanta Giri @ Kanti Giri were dropped as abated due to his death.

3. I have heard the learned Additional Public Prosecutor and the

learned counsel for the appellants and have examined the record. In their

313 statements, the appellants admitted their presence in the TSR on the

date and time disclosed by the complainant. They also admitted their

apprehension by the police soon after the occurrence. They pleaded that

an altercation/quarrel had taken place with the complainant over sharing

of fare. It did not find favour and was outrightly rejected by the Trial

Court with cogent reasons. The assailants were named at the first instance

by the complainant in the statement (Ex.PW-3/A) and role played by each

of them was described with detailed account. The assailants were

apprehended by the police on the pointing out of the complainant soon

after the incident and the robbed articles were recovered from their

possession. The First Information Report was lodged at 12.30 A.M.

promptly without delay after the occurrence at 11.30 P.M. FIR in a

criminal case is a vital and valuable piece of evidence for the purpose of

appreciating the evidence led at the trial. Early reporting of the occurrence

by the informant with all its vivid details gives an assurance regarding

truth of the version. In the case of Jail Prakash Singh v.State of Bihar &

Anr. 2012 CRI.L.J.2101 the Supreme Court held:-

"The FIR in criminal case is vital and valuable piece of evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it looses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question."

4. The complainant Narinder had no prior acquaintance with the

assailants and did not nurture any ill-will or grievance to falsely implicate

them in the incident. In his court statement as PW-3 he identified the

assailants and proved the version given to the police at the earliest

opportunity without major improvement or variation. He stood the test of

cross-examination and no discrepancy whatsoever could be elicited to

disbelieve/discredit his version. In the cross-examination he revealed that

due to fear he left the job and went to his native village in Rajasthan.

There are no sound reasons to suspect victim/complainant's statement

who was not going to be benefited by false implication of the appellants.

He was fair enough not to attribute any overt act to A-2. PW-4 (SI Ran

Singh and PW-2 (SI Pratap Singh) who succeeded to apprehend the

assailants while on patrolling duty corroborated the complainant's version

in its entirety.

5. Counsel for the appellant-Pramod Kumar urged that the

prosecution case cannot be believed as no independent public witness was

associated in the investigation and finger prints on the knife were not

lifted. He also pointed out that PW-2 (SI Pratap Singh) falsely claimed

recovery of a `50/- currency note from Kanti Giri's possession. In my

view these discrepancies highlighted by the counsel are not significant to

throw away the cogent and trustworthy testimony of complainant-

Narinder Singh who had no ulterior motive to fake the incident of

robbery. Non-lifting of finger prints from the knife is not fatal. A-1 did

not explain the purpose to keep with him a 'deadly weapon prohibited

under Arms Act. He further failed to explain the purpose of his presence

in the TSR at that odd hours. Robbed currency notes were recovered from

the possession of Kanti Giri who is no more. The Trial Court has dealt

with all the relevant contentions of A-1 and has given cogent reasons to

discard them. I find no sufficient or good reasons to deviate from the

findings which are based on fair appraisal of the evidence.

6. Admittedly, A-2 was a TSR driver who drove TSR No.DL-

IR-2454 in which the incident of robbery took place. He was implicated

in the incident because the two assailants sitting in the TSR had robbed

the complainant by using knives. Learned Additional Public Prosecutor

urged that A-2 being TSR driver facilitated the commission of crime by

the other assailants as he stopped the TSR on the way. This circumstance

itself, in my view, is not sufficient to connect Kamal (A-2) with the

commission of crime and to hold that he shared common intention with

the other two assailants to rob the complainant. No overt act was

attributed/assigned by the complainant to him. There are no allegations

that he in any manner assisted the other assailants to rob the complainant

or exhorted them to commit the crime. Admittedly, no robbed article or

weapon was recovered from his possession at the time of his

apprehension. His presence in the TSR being a driver was natural and

probable and that per se cannot be a factor to held him vicariously liable

for the acts of other assailants. The Investigating Officer did not collect

any evidence during investigation, if A-2 had association with the other

assailants prior to the incident. It is not unusual for a TSR driver to allow

more passengers to travel to earn more fare. The complainant had not

objected to the TSR driver allowing the other passengers to sit in the TSR.

PW-3 (Narinder Singh) has given somewhat inconsistent version on this

aspect. In the statement (Ex.PW-3/A), he disclosed that when he took the

TSR on hire, three boys including the driver were already sitting in it.

The said two assailants sat on his left and right sides. However, in the

Court Statement, he informed that two boys were made to sit on the

driver's seat. A-2's personal search did not yield recovery of any

incriminating article. No adverse inference can be drawn that A-2 being a

TSR driver was in hand and glove with other assailants and in any manner

facilitated the commission of crime. Since the other assailants were

armed with knives possibility of A-2 not to intervene due to fear cannot be

ruled out. Since A-2 did not participate in the commission of crime and

no overt act was attributed to him and in the absence of any recovery of

weapon or robbed article from his possession, his conviction under

Section 392/34 IPC cannot be sustained and he deserves benefit of doubt.

7. In the light of the above discussion, the appeal filed by A-2

(Crl.A.No.262/2000) is accepted and his conviction and sentence are set

aside. Appeal preferred by A-1 (Crl.A.No.288/2000) is unmerited and is

dismissed. A-1 (Pramod Kumar) is directed to surrender and serve the

remaining period of sentence. For this purpose, he shall appear before the

Trial Court on 6th November, 2013. The Registry shall transmit the Trial

Court records forthwith.

8. The appeals stand disposed of in the above terms.

(S.P.GARG) JUDGE October 24, 2013 sa