Delhi District Court
State vs Sonu @ Kapil & Anr. on 14 September, 2007
1
IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL
ADDITIONAL SESSIONS JUDGE : DELHI
Session Case No.252/06 FIR No.14/03
PS Sultan Puri
U/S 392/397/34 IPC
State
Vs.
1. Sonu @Kapil,
S/o Mahavir,
R/o C-2/356, Sultan Puri,
Delhi.
2. Dharmender @Manu,
S/o Sher Singh,
R/o C-2/359, Sultan Puri,
Delhi.
Date of Institution: 10.02.2003
Date on which the
case was reserved
for order : 27.08.2007
Date of Decision : 07.09.2007
JUDGMENT
The facts of the case are that one Ram Babu Saini lodged a report before the police on 04.01.2003 that he was running a business of sanitary items in a shop at Sector-20, Rohini, Delhi. Usually, his son used to sit in the shop but since he was away on the day of incident for some reasons, the complainant STATE VS.SONU @ KAPIL & ANR.
2Ram Babu Saini alongwith his servant Ashok were present in the shop. At about 5.30 p.m., two boys whose descriptions were mentioned in the compliant before the police approached the shop of the complainant on an old bicycle. They entered the shop. One of those fellows distracted the attention of the attendants of the shop under the pretext of watching items for purchase and the second fellow who was standing near counter, started withdrawing the purse and watch from inner pocket of the counter. The purse contained Rs.5,000/- driving licence and certain visiting cards etc. The complainant further stated to the police in his complaint that both these boys were carrying certain kattanuma(pistol type) weapons in their respective pockets.
2. Charge sheet for the offences u/s 382/34 IPC was filed before the Court of Ld. MM. After framing of charges of the said offences, Ld. MM proceeded with the Trial, During the course of recording of statement of the complainant Ram Babu in the Court, it came to light during deposition by the complainant Ram Babu that the said persons were not only carrying the pistol in their STATE VS.SONU @ KAPIL & ANR.
3pocket but had used the same at the time of commission of robbery. Thereafter, Ld. MM vide order dated 22.04.2003 committed the case to the Court of Sessions as in his opinion, prima facie case u/s 397/34 IPC was made out in view of the depositions made by Ram Babu in the Court of Ld. MM. After committal, Ld. Predecessor of this Court framed charges against both the accused for the offences u/s 392/34 IPC read with Section 397 IPC. Both the accused did not plead guilty to the formal charge.
3. I have heard Ld. Counsel for accused and Ld. APP. I have also perused the record.
4. The prosecution produced PW Ram Babu in the Court. The said PW2 Ram Babu categorically stated before this Court on oath that both the accused persons (who were duly identified by the PW2 in the Court) entered the shop. One of the two went inside on the pretext of seeing the goods and the other took away his purse containing valuables. When the PW2/complainant and his servant tried to resist both the accused, both the accused took out desi kattas and pointed out towards them and then ran away STATE VS.SONU @ KAPIL & ANR.
4from the shop. They also threatened them not to chase them.
5. The PW1 was the servant of the PW2 Ram Babu. He also stated that two boys came on a bicycle. They showed a desi katta to the PW1 and PW2. Before that the PW1 thought that the said boys were customers and started showing sanitary goods to them but the accused however took away cash lying in the cash box, gold ring and a purse. The accused Sonu was duly identified by the PW1 in the Court but the accused Dharmender could not be identified by him in the Court.
6. The PW3 proved the FIR ex.PW3/A. The PW7 was the DD writer who had recorded DD no.56B on wireless information regarding robbery and proved the same Ex.PW7/A.
7. The PW10 was the Investigating Officer of this case who upon receipt of DD no.56B Ex.PW7/A went to the spot along with Ct. Bharat (PW11). He recorded the statement of complainant Ram Babu Ex.PW2/A and made endorsement Ex.PW10/A on it. He sent Ct. Bharat to PS for registration of FIR. Site plan was also STATE VS.SONU @ KAPIL & ANR.
5proved as Ex.PW10/B. On 16.01.2003, when the PW10 was present in the Court, the accused Dharmender and the accused Sonu who were identified by PW10 in the court were produced in the said Court, he made enquiries with the permission of Ld. MM and formally arrested the accused. Arrest memo was proved as Ex.PW10/C. Test Identification Parade of both the accused were got conducted.
8. The PW11 was Ct. Bharat who proved the fact that he was sent by PW10 to Police Station for getting the case registered. He came back at the spot and handed over a copy of FIR and rukka to PW10. The PW4 and the PW5 were the prosecution witnesses who were related to the arrest of the accused.
9. During the course of arguments, the Ld. Counsel for the accused persons vehemently argued that the TIP of the accused persons had not been conducted by the Ld. MM in consonance with the rules laid down. He further stated that one of the accused, namely, have not even been identified by the prosecution witness either in the Test Identification Parade proceedings or in the STATE VS.SONU @ KAPIL & ANR.
6Court. He further argued that during the proceedings of the Test Identification Parade, the inmates of the jail were made to stand with the accused persons which is against the principles of law. He relied upon AIR 1960 Madras 125 and AIR 1953 Allahabad 385 and other laws in this respect. The Ld. Counsel further elaborated that there are allegations that one of the accused only tried to distract the attention of the complainant, and hence, his role cannot be assigned to the extent to cover him within the purview of Section 397 IPC. He stated that mere presence of the accused at the spot without going over tact does not attract Section 34 IPC and hence the accused Dharmender cannot be convicted on the basis of his mere presence. He relied upon AIR 1962 Manipur & 1995 JCC 167-171. The Ld. Counsel further stated that in the FIR, it has not been even mentioned that the accused persons had used pistols and it is only the subsequent improvements made by the complainant that led to the trial of this case by the Court of Sessions. He further stated that the witnesses are unreliable witnesses and there is no recovery of pistol or other incriminating material. He further argued that no public witness was joined STATE VS.SONU @ KAPIL & ANR.
7during investigation and there was no other eye witness despite the fact that place of incident is busy area.
10. Ld. APP, on the other hand, stated that the witnesses are very much reliable as they have deposed in a clear, cogent and consistent manner. He further argued that the witnesses were laymen and shopkeepers of the area and they have divulged truth accordingly to their wisdom. He further argued that the witnesses have not distracted or improved their version. As regarding Test Identification Parade, he stated that the Test Identification Parade is only a corroborative piece of evidence and when the accused persons have already been subjected to identification in the Court and the complainant have duly identified both the accused, the case of the prosecution cannot be thrown to any risks just because of alleged irregularities in the Test Identification Parade. He stated that there were no irregularities at all and the Test Identification Parade was conducted in terms of Punjab Police Rules. Ld. APP further argued that the Ld. Counsel for the accused is not disclosing the true facts and the accused STATE VS.SONU @ KAPIL & ANR.
8Dharmender was not only present at the spot but he also did some overt act besides his presence, and hence, the case laws cited by the Ld. Counsel that mere presence of the accused is not sufficient does not apply to the facts of the present case.
11. After hearing all the parties at length and after perusing the record, at the outset, I may state that there is a thin line of distinction between Section 392 IPC and Section 397 IPC. Whenever the weapon of offence i.e. deadly weapon is used in the commission of robbery, the provisions of Section 397 IPC are attracted. In the present matter, in the initial complaint made before the police, the complainant had mentioned the description of the assailants and had stated that he can identify the complainant in case produced before him. The complainant at a later stage during the proceedings of TIP duly identified the accused Dharmender on 18.01.2003 before the Magistrate at jail. However, the other witness, namely, Ashok could not identify the accused Dharmender during TIP. The TIP of the accused Sonu @Kapil was also carried on by the Ld. Magistrate on 18.01.2003 in STATE VS.SONU @ KAPIL & ANR.
9which both the witnesses namely Ram Babu and Ashok correctly identified the accused Sonu @ Kapil. While being produced in the Court during evidence, the identification of the accused persons met the same fate i.e. the PW2 Ram Babu identified both the accused whereas the PW1 Ashok could identify the accused Sonu @ Kapil only whereas he could not identify the accused Dharmender.
12. After taking into consideration all the arguments led by Ld. APP for the State as well as Ld. Counsel for the defence and after appreciating the law laid down by both the parties, at the outset, I may state that it is settled law that the TIP is only a corroborative piece of evidence. In the present matter, though one of the witness has been able to identify both the accused but the dispute is occurring for the non-identification of one of the accused during TIP as well as during trial by one of the witnesses. When the complainant who was present in the court had duly identified all the accused persons and had even mentioned their description in the complaint, the case of the prosecution hardly suffers for non- identification of one of the accused by the other witness. As STATE VS.SONU @ KAPIL & ANR.
10already said, the TIP is only a corroborative piece of evidence for the entire set of the prosecution case and keeping in view the overall circumstances, for the non-identification of one of the accused by one of the witnesses, the case of the prosecution cannot be thrown to dustbin when there is ample evidence on record to suggest that involvement of the accused persons in the episode. Though it has been argued by Ld. Counsel that necessary precautions have not been taken by the Ld. MM, but, this arguments also does not bear much force because of the identification of the accused persons by the witnesses in the Court. It has been held in various cases including the case of Malkhan Singh Vs State of M.P. JT 2003 (5) SC 523 that even non- holding of the TIP hardly affects the case of the prosecution in case the witnesses are available during trial and they identify the accused persons in Court. The arguments, therefore, led by the Ld. Counsel for the defence with respect to TIP are not fatal to the case of the prosecution. It has been mentioned in the TIP by the Magistrate PW12 that accused and the participants were of similar heights and description. Therefore, the irregularities as raised by STATE VS.SONU @ KAPIL & ANR.
11Ld. Counsel for the defence are not appreciable in view of the above noted discussion. Since one of the witnesses i.e. PW2 have been able to identify the culprits correctly, the presence of the accused persons at the spot, therefore, remains confirmed.
13. Now coming to the question as to whether the accused persons had used the pistols which they were allegedly carrying at the time of robbery for the purpose of committing dacoity. Though in the initial statement made before the police i.e. Ex.PW2/A, it has been mentioned that both the accused were carrying some pistol like articles in their respective pockets and resultantly, the complainant got frightened. But, in his testimony of oath before this Court, the PW2 categorically mentioned that both the accused took out their desi katta upon the resistance of the complainant and pointed out towards complainant and then ran away from the shop. The PW1 Ashok who was present at the shop with the complainant had also corroborated the version of the PW2 Ram Babu in this regard. The PW1 and PW2 both are layman witnesses and are formal and not technical witnesses. At the time STATE VS.SONU @ KAPIL & ANR.
12of filing complaint before the police, the complainant is not expected to dictate his complaint in terms of the law laid down. The complainant approaches the police in the layman standards of the society and sometimes are not aware of the repercussions of not disclosing the facts in accordance with the happenings. It appears that this case also met the same fate. Though as already said, in the initial complaint, the reference of the deadly weapon came but with the remarks of the complainant that the same was kept in the respective pockets of the accused, but in the statement on oath, the complainant and the other witness have referred the same as used by the accused persons. In Ramani Vs. State of M.P. (1999) 8 SCC 649, it was observed that when an eye witness is examined at length it is quite possible for him to make some discrepancies. No true witness can possibly escape from making some discrepant details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally non-discrepant. But courts should bear in mind that it is only when discrepancies in the evidence of a witness are so incompatible with the credibility of his version that the court is justified in jettisoning his evidence. STATE VS.SONU @ KAPIL & ANR.
13But too serious a view to be adopted on mere variations falling in the narration of an incident either as between the evidence of two witnesses or as between two statements of the same witnesses is an unrealistic approach for judicial scrutiny. It was also held that it is a common practice in trial courts to make out contradictions from the previous statement of a witness for confronting him during cross-examination. Merely because there is inconsistency in evidence it is not sufficient to impair the credit of the witness. No doubt Section 155 of the Evidence Act provides scope for impeachment the credit of a witness by proof of an inconsistent former statement. But a reading of the section would indicate that all inconsistent statements are not sufficient to impeach the credit of the witness.
14. Even if for the sake of arguments the version of the complainant as mentioned in the complaint is presumed to be correct, in this regard, the Hon'ble Supreme Court had clarified the position in its judgment in AIR 1975 SC 905 titled Phool Kumar Vs. Delhi Administration. The said judgment was later STATE VS.SONU @ KAPIL & ANR.
14on re-affirmed by the Hon'ble Supreme Court in its latest judgment in 2004 SCC (Crl.) 687 titled Ashfaq vs. Govt. of NCT of Delhi. In both the aforesaid judgments, the Hon'ble Supreme Court while interpreting and while discussing the construction of the word "uses" occurring in Section 397 had held that if the weapon with which the offender was armed was well within the vision of the victim so as to be capable of creating terror in the mind of victim, it was held that that is sufficient to satisfy the word "uses" for the purposes of Section 397 IPC. It was further held that it need not be further shown to have actually been used for cutting, stabbing or shooting as the case may be. In para-6 of the Phool Kumar's judgment (supra year 1975) the Hon'ble Supreme Court has mentioned reasons for the same and had justified its version by making a distinction of Section 397 with Section 398 of IPC. The Hon'ble Supreme Court had held that "Section 398 uses the expression "armed with any deadly weapon" and the minimum punishment provided therein is also 7 years if at STATE VS.SONU @ KAPIL & ANR.
15the time of attempting to commit robbery the offender is armed with any deadly weapon. This has created an anomaly. It is unreasonable to think that if the offender who merely attempted to commit robbery but did not succeed in committing it attracts the minimum punishment of 7 years under Section 398 if he is merely armed with any deadly weapon, while an offender so armed will not incur the liability of the minimum punishment under Section 397 if he succeeded in committing the robbery. But then, what was the purport behind the use of the different words by the Legislature in the two different sections, viz "uses" in Section 397 and "is armed" in Section 398. In our judgment the anomaly is resolved if the two terms are given the identical meaning. There seems to be a reasonable explanation for the use of the two different expressions in the sections. When the offence of robbery is committed by an offender being armed with a deadly weapon which was within the vision of the victim so as to be capable of creating STATE VS.SONU @ KAPIL & ANR.
16a terror in his mind, the offender must be deemed to have used that deadly weapon in the commission of the robbery. On the other hand, if an offender was armed with a deadly weapon at the time of attempting to commit a robbery, then the weapon was not put to any fruitful use because it would have been of use only when the offender succeeded in committing the robbery.
15. Therefore, from the above noted discussion and keeping in the view the judgments of Phool Kumar's case as well as the basis of the judgment in Ashfaq case (supra year 2004), it is clear that the offenders had used the pistols carried by them for the purpose of robbery.
16. As regarding the arguments of Ld. Counsel that no public witness was joined in the episode even when the shop of the complainant is surrounded by the other shops, I am being guided the judgment of Hon'ble Supreme Court of India AIR 1988 696, Appabhai and another vs. State of Gujarat (para no.11 STATE VS.SONU @ KAPIL & ANR.
17and 12) in which it was held that Experience reminds us that civilized people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the Court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The Court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability, if any, suggested by the accused'..... The prosecution case cannot be doubted or discarded for not examining strangers at the bus stand who might have also witnessed the crime. We, therefore, reject the first contention urged for the appellants."
17. The PW10 had duly corroborated the version of the prosecution as initially he was the police officer who had attended the scene and had met complainant Ram Babu who made a STATE VS.SONU @ KAPIL & ANR.
18statement Ex.PW2/A. He had recorded the statement of other witnesses and it was the PW10 only who had formally arrested the accused persons. The PW10 had carried on the investigation. He proved the pointing out memo Ex.PW10/E. TIP application was also moved by him. The PW9 Ct. Ved Prakash. had initially arrested the accused Dharmender in some other case FIR No.60/03 who made disclosure statement to the Investigating Officer of this case in presence of PW9. The PW8 had arrested the accused Kapil in case FIR No.59/03. The said accused Sonu @ Kapil also made disclosure statement before the Investigating Officer of this case in the presence of PW8.
18. Though nothing was recovered pursuant to the disclosure statement of the accused persons, but the ocular testimony of the complainant as well as other public witnesses inspires confidence to believe on the case of the prosecution. The minor contradictions can very well be ignored in view of the latest judgment of Hon'ble High Court to Delhi in 134 (2006) DLT 374 and also in Leela Ram Vs. State of Haryana (1999) 9 STATE VS.SONU @ KAPIL & ANR.
19SCC 525 in which it was observed that there are bound to be some discrepancies in the narration of certain witnesses when they speak out details. The corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments, there may be, but variations by reasons therefore should not render the evidence of eye witnesses unbelievable. Further it was held by Hon'ble Supreme Court of India in a judgment (2003) 7 SCC 643 Sucha Singh Vs. State of Punjab that even in criminal trial, the word "proof beyond reasonable doubt" is a guideline and not a fetish. The prosecution is not required to meet any and every hypothesis put forward by the accused. A reasonable doubt is not an imaginary, trivial or merely possible doubt but a fair doubt based upon reasons and common sense. It must grow out of evidence in the case. Law cannot afford any favourite other than truth. It was further held in the said judgment that exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicion and thereby destroy social defence. Justice cannot be STATE VS.SONU @ KAPIL & ANR.
20made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent. Letting the guilty escape is not doing justice according to law. The Hon'ble Supreme Court also referred to Gurbachan Singh vs. Satpal Singh (1990) SCC
445.
19. In view of the above discussion, this Court is of the considered opinion that the prosecution has been able to prove the case beyond reasonable doubts. The testimonies of the witnesses are cogent and consistent. Accordingly, I come to conclusion that both the accused Sonu @ Kapil and Dharmender have committed offence punishable each u/s 397 IPC. Therefore, both the accused are convicted for the offences each u/s 397 IPC. They shall be heard on the point of sentence separately.
Announced in the open Court on 07th day of September, 2007 (SANJAY KUMAR AGGARWAL) ADDL. SESSIONS JUDGE ROHINI COURTS, DELHI STATE VS.SONU @ KAPIL & ANR.
21 IN THE COURT OF SHRI SANJAY KUMAR AGGARWAL ADDITIONAL SESSIONS JUDGE : DELHI Session Case No.252/06 FIR No.14/03 PS Sultan Puri U/S 392/397/34 IPC State Vs. 1. Sonu @Kapil, S/o Mahavir, R/o C-2/356, Sultan Puri, Delhi. 2. Dharmender @Manu, S/o Sher Singh, R/o C-2/359, Sultan Puri, Delhi. ORDER ON SENTENCE 14.09.2007 Present: Ld. Addl. PP for the State
Convicts Sonu @ Kapil and Dharmender in JC with counsel Sh. Lalit Sanon.
I have heard both the convicts on the point of sentence. I have also heard Learned Addl. Public Prosecutor for the State. I have also heard counsel Shri Lalit Sanon, Adv. for both the convicts on the point of sentence on the last date of hearing.
STATE VS.SONU @ KAPIL & ANR.
22
Ld. Counsel for both the convicts submitted that both the convicts are around 25 years of age and there is stated to be no criminal record of both the convicts. He further submitted that both the convicts are the only bread earners in their respective families and both are of young age. The offence for which they are convicted neither punishable for life or death. He further submitted that at the time of offence, both the convicts were 21 years of age. Both the convicts Dharmender is stated to be in judicial custody for more than two years and the convict Sonu @ Kapil is stated to be in judicial custody for the last about four years. Ld. Counsel further requests that both the convicts be released on the imprisonment already undergone by them.
The Ld. APP for the State strongly objected to the arguments of the convicts and submitted that both the convicts deserve maximum sentence as in case the humanitarian consideration are taken into account for the convicts, the said consideration should also be equally be taken care for the victim.
I have given thoughtful consideration to the arguments advanced by all the parties. I have considered the guidelines issued by the Hon'ble Supreme Court of India in the judgment State of M.P. Vs. Salim (2005) 5 Supreme Court cases 554. STATE VS.SONU @ KAPIL & ANR.
23
I have also considered the reformative as well as retributive aspect highlighted by the defence. The convicts are young boys. After considering the social, economic and family background of both the accused persons as well as their age and further since the punishment provided u/s 397 IPC for the commission of the said offence is not less than seven years, I hereby order that both the convicts, namely, Sonu @ Kapil and convict Dharmender be sentenced to undergo RI of seven years each for the offences under Section 397 IPC. The benefit of section 428 Cr.P.C be given to both the convicts.
Ordered accordingly.
Sentence warrants be prepared accordingly. Copy of the Judgment and order on sentence be given to both the convicts free of cost. File be consigned to record room. Announced in the Open Court on this 14th day of September, 2007 (SANJAY KUMAR AGGARWAL) ADDL. SESSIONS JUDGE ROHINI COURTS: DELHI STATE VS.SONU @ KAPIL & ANR.