Nasim vs State (Govt. Of Nct Of Delhi)
2013 Latest Caselaw 4149 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                            RESERVED ON : 11th SEPTEMBER, 2013
                             DECIDED ON : 13th SEPTEMBER, 2013

+                          CRL.A. 1123/2011

      NASIM                                             ..... Appellant
                           Through :   Ms.Nandita Rao, Advocate with
                                       Ms.Neha Mam, Advocate.

                           versus

      STATE (Govt. of NCT of Delhi)                  ..... Respondent
                       Through : Mr.Navin K.Jha, APP.
                                  SI Brajveer Singh, PS Seelampur.
AND

+                          CRL.A. 630/2011
      PUNEET @ ASHU                                     ..... Appellant
                           Through :   Mr.Anurag Jain, Advocate.

                           versus


      STATE (Govt. of NCT of Delhi)                  ..... Respondent
                       Through : Mr.Navin K.Jha, APP.
                                  SI Brajveer Singh, PS Seelampur.


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



CRL.A.Nos.1123/2011 & 630/2011                                Page 1 of 9
 S.P.GARG, J.

1. Nasim (A-1) & Puneet @ Ashu (A-2) challenge correctness

of a judgment dated 10.02.2011 of learned Additional Sessions Judge in

Sessions Case No. 88/2009 arising out of FIR No. 129/2009 PS

Seelampur whereby they were held guilty for committing offence

punishable under Section 392 read with Section 397 IPC. By an order

dated 08.03.2011, they were directed to undergo RI for four years with

fine ` 2,000/- each under Section 392 IPC and RI for seven years with

fine ` 3,000/- each under Section 397 IPC.

2. Allegations against the appellants were that on 05.04.2009 at

about 01.00 A.M. at Old G.T. Road, near Mandir Shastri Park, they were

armed with 'ustara' and 'knife' and robbed Manoj and Gulbir of cash `

150/-, purse & wrist watch. First Information Report was lodged at PS

Seelampur after recording complainant Manoj's statement (Ex.PW-1/F).

Both the accused persons were arrested. Statements of the witnesses

conversant with the facts were recorded. After completion of

investigation, a charge-sheet was filed against them in the Court. The

prosecution examined seven witnesses to prove their guilt. In 313 Cr.P.C.

statements, they claimed themselves to be innocent and alleged false

implication. They did not prefer to examine any witness in defence. The

Trial Court after appreciating the evidence and taking into consideration

the rival contentions of the parties, held both the appellants perpetrators of

the crime.

3. Appellants' counsel urged that the Trial Court did not

appreciate the evidence in its true and proper perspective and fell into

grave error to base its conviction on the testimonies of PW-1 (Manoj) and

PW-2 (Gulbir) who were interested and partisan witnesses. The appellants

being bad character (B.C.) of the area were falsely implicated by the

police of PS Seelampur. The story presented by prosecution is full of

contradictions and loopholes. It is alleged that the appellants were first

taken to PS Kashmiri Gate, however, no proceedings regarding recovery

of the articles from their possession were conducted there. PW-1 (Manoj)

and PW-2 (Gulbir) have given contradictory version about arrival of PW-

2 in PS Seelampur. Investigating Officer did not move any application for

holding TIP of the articles or of the assailants. It was not possible for the

victims to identify the assailants due to darkness. PCR officials were not

examined to corroborate the complainant's version. Section 397 IPC is not

attracted as weapons were not used to cause injuries. Learned Addl.

Public Prosecutor urged that there were no sound reasons to discard the

testimonies of the victims who had no prior animosity with the assailants.

4. The occurrence took place at about 01.00 A.M. on the night

intervening 4/5.04.2009. Daily Diary (DD) No. 24A (Ex.PW-5/B) was

recorded at PS Seelampur at 03.20 A.M. on getting information that PCR

officials had caught hold two snatchers near ISBT and they were taking

them to PS Seelampur. Manoj (TSR driver) lodged complaint (Ex.PW-

1/F) and gave vivid details of the incident as to how when he was driving

the TSR No. DL-1RE-6094 with passenger Gulbir and reached near

Seelampur Metro Station, two individuals, whose names were ascertained

as Nasim (A-1) and Puneet (A-2) entered in the TSR forcibly and robbed

them at the point of ustara / knife. They directed to take the TSR as per

their command. At about 01.30 A.M. at ISBT, on finding a PCR van

located there, he informed PCR officials who caught hold of A-1 and A-2

and took them to PS Kashmiri Gate. They were asked to report at PS

Seelampur as the incident of robbery took place in their jurisdiction.

Rukka (Ex.PW-7/A) was prepared and First Information Report was

lodged at 05.50 A.M. There was no delay in lodging the report. 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."

5. While appearing as PW-1, the complainant fully proved the

version given to the police at the first instance without major variations.

He identified A-1 and A-2 in the Court and ascribed specific role to them.

He was categorical that A-1 robbed him of ` 150 at the point of ustara and

A-2 robbed PW-2 (Gulbir) of purse, wrist watch and clothes putting knife

on him. He also identified ustara (Ex.P2) and knife / dagger (Ex.P3) used

to commit robbery. In the cross-examination, he explained that there was

darkness when A-1 put ustara on his neck and thereafter they gave beating

to Gulbir and robbed him. He disclosed that Puneet's mother had visited

him 2 -3 times to induce him to change his statement implicating her son.

He further explained that PCR was stationed under the flyover at ISBT.

Search of the accused persons were taken at PS Kashmiri Gate where they

stayed for about 45 minutes / one hour. He denied the suggestion that he

was put behind the bars for not having relevant documents to ply TSR. He

fairly admitted that accused persons did not try to run away. PW-2

(Gulbir), a passenger in the TSR also corroborated PW-1's statement on

relevant facts and identified A-1 and A-2 to be the assailants who robbed

them at the point of chura/ knife. Firstly, they robbed Manoj and took `

150 from him. A-2 robbed his wrist watch, a purse containing ` 1,500/-

and an unstitched lehanga. He was strangulated and become unconscious.

He fell down on the road and regained consciousness after 30 minutes. A

rickshaw puller lifted him and dropped at a liquor shop at Shastri Park.

From there, he went to Chandni Chowk and informed his co-workers. He

also identified the weapons of offence and the wrist watch. In the cross-

examination, he admitted that the police had called him at PS Seelampur

after the incident. He denied the suggestion that the accused persons were

falsely implicated at the instance of police.

6. On scrutinising the testimonies of PW-1 and PW-2, it

transpires that the appellants could not elicit any material discrepancies in

their cross-examination to discard and disbelieve their version. They were

not acquainted with the appellants and had no prior animosity. In the

absence of prior ill-will, they were not expected to identify them on the

mere asking of the police officials. In fact, they were apprehended by PCR

officials who had no concern with the involvement of the appellants in

various other criminal cases registered at PS Seelampur. PW-4 (HC Loban

Singh) on duty in PCR from 8.00 P.M. to 8 A.M. at ISBT, Kashmiri Gate

disclosed that at 01.30 A.M. one TSR driver informed that two thieves

were sitting in his TSR. He overpowered those two persons sitting in the

TSR and took them to PS Kashmiri Gate. When he was told that the area

was within jurisdiction of PS Seelampur, he took them there after

informing the control room and handed over the custody of both Puneet

(A-2) and Nasim (A-1) to the Investigating Officer. Both were arrested

and he put signatures on various memos prepared there. No ulterior

motive was assigned to this PCR official for deposing against them. His

testimony is in consonance with the version narrated by PW-1 and PW-2

in the Court. Both the appellants were apprehended at the spot and were

identified by the complainant and PW-2 (Gulbir). Since the witnesses had

direct confrontation for long with the assailants, they got ample

opportunity to note and observe their features to recognise them. There

was no requirement to hold Test Identification Proceedings during

investigation for their identification. Since the incident of robbery had

occurred within jurisdiction of PS Seelampur, no case was registered at PS

Kashmiri Gate and for that reason no benefit can be given to the

appellants. It is true that PW-1 and PW-2 have given divergent version as

to how and under what circumstances PW-2 (Gulbir) reached PS

Seelampur. However, that does not dilute the cogent version narrated by

prosecution witnesses to establish the appellants' involvement in the

incident. While appreciating the evidence, Court has to take into

consideration whether the contradictions/ omissions had been of such

magnitude that they may materially affect the trial. Minor contradictions,

inconsistencies, embellishments or improvements on trivial matters

without effecting the core of the prosecution case should not be made a

ground to reject the evidence in its entirety. Exaggerations per se do not

render the evidence brittle. Mere marginal variations in the statements are

not enough to discredit the otherwise cogent and reliable deposition of

independent witness. Non-examination of PCR officials other than PW-4

is inconsequential. The Court is required first to assess the trustworthiness

of the evidence available on record and if it finds the evidence adduced

worthy of being relied upon, then the testimony has to be accepted and

acted upon though there may be other witnesses available who could also

have been examined and produced. I find no substance in the appellants'

plea that Section 397 IPC is not attracted. The appellants were found in

possession of 'ustara' and knife respectively and were charged for

committing offence under Section 25/27 Arms Act. The sketches of the

weapons describe their dimension and size. Possession of such weapons

without licence in violation of the Notification dated 12.08.1964 was an

offence. It makes no difference if injuries were not caused with the

weapons used for committing robbery.

7. The appeals filed by the appellants are unmerited and are

dismissed. The conviction and sentence of the appellants are maintained.

Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE SEPTEMBER 13, 2013 tr