Delhi District Court
State (Nct Of Delhi) vs Deepak Kumar on 6 July, 2013
In the Court of Sh. Vimal Kumar Yadav, Additional Sessions
JudgeII, South District, Saket Court, New Delhi.
In the matter of :
State (NCT of Delhi).
Versus
1. Deepak Kumar
S/o Sh. Vipin Kumar
R/o Gali no. 98 near Apex School,
Sant Nagar, Burari, Delhi.
2. Sohan Singh Negi @ Rahul
S/o Sh. Shyam Singh Negi
R/o H. no. 15/13, Gali no. 26,
Bangli Colony, Sant Nagar, Burari, Delhi.
FIR No. 122/2011.
PS Vasant Vihar.
U/s. 392/34 IPC.
Date of Assignment: 21.07.2011.
Arguments heard on : 02.05.2013.
Date of Decision : 29.06.2013.
JUDGMENT
1. A night out with friends with a view to share joys, exchange the views and enjoy the company was all achieved by four friends namely Pawan Panchal, Deva, Lokesh and Vaibhav FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 1 of 17 on 20.04.2011. However, when the friends decided to call it a day and were in the process of going back to their respective homes on their two motorcycles, two of them Lokesh and Pawan, were waylaid by the two persons at Poorvi Marg, Olf Palme Marg within the jurisdiction of police station Vasant Vihar. The two persons, who had accosted the duo, beat them up and threatened with a blade and snatched the mobile phones, gold chain, silver bracelet and decamped thereafter. The matter was reported to the local police and on the basis of the statement of one of the victims i.e Pawan Panchal FIR bearing registration no. 122/2011 was registered by the police station, Vasant Vihar.
2. The police was able to work out the case within three days as a secret information led to the apprehension of those two assailants, who had allegedly robbed the complainant and his friend in the night of 21.04.2011 with the help of a surgical blade. Verily, the secret information was received by Sub Inspector Manoj Kumar, who was present near Priya Cinema Market at Vasant Vihar. The secret information turned out to be correct as recovery of the robbed mobile phones was made by the police then and there at the time of apprehension of the accuseds. The subsequent investigation led to the recovery of FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 2 of 17 other robbed article(s) i.e accused Deepak Kumar got recovered a gold chain from his house at Sant Nagar, Burari and thereafter the investigating agency mopped up the investigation. The conclusions were presented in the final report filed u/s 173 CrPC. The accused persons i.e Deepak Kumar and Sohan Singh Negi were sent up for trial u/s 392, 397, 34 IPC.
3. After compliance of Section 207 CrPC, the case was committed to the court of Sessions as Section 397 IPC being exclusively triable by the court of Sessions.
4. Based upon the allegations and after considering the contentions of the contesting sides, charges were framed against the accused persons wherein accused Deepak Kumar and Sohan Singh Negi were charged u/s 392, 34 IPC, Deepak Kumar was charged u/s 397 IPC and both the accused persons were alternately charged u/s 411 IPC as well.
5. Prosecution, in order to substantiate its case, arrayed 12 witnesses against the accused persons and out of that managed to examine 9 witnesses and thereafter concluded the evidence.
6. The evidence coming on record was put to the accused persons and their version of things was recorded in the shape of their statements u/s 313 CrPC. Both of them opted to bring FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 3 of 17 evidence in their defence. Accordingly, defence evidence was brought by them in the shape of Robert John, Anjay Kumar Verma, Dharam Veer and Sunita and thereafter the defence evidence was closed.
7. Arguments were raised by the Ld. Addl. PP and the Ld. counsel for the accused persons namely, Mr. Hans Raj Singh for accused Deepak Kumar and Mr. Sarohi, Advocates, for accused Sohan Singh Negi.
8. I have considered the contentions raised by the contesting sides and also perused the record.
9. The prosecution has attempted to drive home its case primarily on the strength of the testimony of the two victims that PW1 Pawan Panchal and PW2 Lokesh, both of whom have wholeheartedly supported the prosecution's case. The testimony of these two witnesses, coupled with that of the police officials, is, apparently, to the effect that the victims were robbed in the night of 20.04.2011 while they were going to their home. The robbed articles were recovered from the possession of the accused persons, which further substantiates the case of the prosecution. Apparently, the evidence led on behalf of the prosecution is in consonance with the case mounted against the FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 4 of 17 accused persons.
10. However, the counsels for the accused persons have tried to puncture the case of the prosecution and have asserted that the identity of the accused persons as well as the factum of recovery, both are under cloud. Prosecution, it is asserted, is unable to pin point the identity of the accused persons. In this context, it has been further elaborated by the Ld. Counsels for the accuseds that the accused persons were identified in the court for the first time after the alleged incident. Therefore, such identification has no credence in the eyes of law and that cannot be made a basis to hold them responsible for committing the offence. Similarly, the identity of the case property is also doubtful. The Test Identification Parade (TIP) proceedings of the accuseds, in view of the fact that the accused persons were shown to the witnesses prior to it, stands vitiated and loses its sheen and strength. The Ld. Counsels for the accused persons have further pointed out towards the testimony of the victim to show that the place of occurrence was poorly lit rather it was dark and it was not humanly possible in such darkness to see the faces of the assailants, which further puts a question mark on the identity of the accused persons.
FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 5 of 17
11. Another aspect which has been vehemently argued on behalf of the accused persons is to the effect that it is highly improbable that they will roam around in the same vicinity after the incident alongwith the robbed articles inasmuch as according to the case of the prosecution, the incident took place in the intervening night of 2021.04.2011 whereas the accused persons were apprehended on 23.04.2011, based upon a secret information, alongwith the robbed mobile phones. This is highly improbable and does not go hand in hand with normal human behaviour and conduct in the given set of facts and circumstances. Normally, an accused is not supposed to move around in the area where he has committed the offence. But that is normal, the conduct of the accuseds being abnormal thus further abnormality can not be ruled out. In any case the evidence led on record could not be dislodged by the accuseds. As such, this aspect alone would not be only use to the accuseds. Then it may be their inexperience or overconfidence which may have prompted them to walk tall against the odds.
12. Discrepancies in the testimony of the witnesses as pointed out by learned defence counsel to the effect as to whether the gold chain was intact or broken or that the vehicle used to carry FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 6 of 17 out the raid at the place of accused Deepak Kumar at Burari was a Swift or a Gypsy raise further question mark about the alleged recovery and in turn sanctity of the case of the prosecution. There is a mix up with regard to the time of the incident in as much as DD no. 4A reflects that it was about 11.15AM whereas the witnesses have deposed that the incident took place in the intervening night of 2021/04/2011. It is made clear here itself that the DD4A speaks about receipt of information of robbery at 01.50am in the night. Weapon of offence has also been questioned on its identification inasmuch as there is no peculiar mark which may create any distinction to enable the victim to identify the same.
13. The counsel for the accused persons have tried to highlight the discrepancies/ mix up in the testimony of witnesses which have cropped up in it to seek advantage for the accuseds. However, the discrepancies are quite natural as human memory and mind has its limitations. An incident cannot be narrated verbatim by the same person when the same is being recounted. A mix up or a slip here or there is quite normal. This in itself does not makes the entire deposition unacceptable. The discrepancies and the facts narrated are required to be examined FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 7 of 17 and scrutinised, in order to assess as to whether the narrator has been able to keep the soul of the narration alive or not. The discrepancy would not change the fact. The discrepancies should be such which may discredit the witness on the material aspects. The victim since undergoing the trauma of being the victim therefore, his mental and psychological position out of the shock can be very well visualised. In these circumstances, there is every possibility that the narration may not be strictly as per the sequence of events which had taken place. Nevertheless, the victim / injured witness has to be given due credit considering the testimony in the entirety of the facts and circumstances. Reference in this context can be made to the judgement in State of Rajasthan Vs. Kalki and Another (1981) 2 SCC 752, where it has been observed in the following words; "In the deposition of witnesses there are always normal discrepancies however honest and truthful they may be. Those discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected to a normal person. In a recent judgment in Rohtash Kumar v. State of FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 8 of 17 Haryana, 2013 III AD (Cri) (SC) 369, it has been observed by the Hon'ble Supreme Court in following words : 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 case of the prosecution, must not prompt the court to reject the evidence in its entirety. Therefore, unless irrelevant datails which do not in any way corrode the credibility of a witness should be ignored. The court has to examine whether evidence read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinize the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witnesses and whether the earlier evaluation of the evidence is shaken, as to render it unworthy of belief. Thus, the court is not supposed to give undue importance to omissions, contradictions and discrepancies which do not got to the heart of the matter, and shake the basis version of the prosecution witness. Thus, the court must read the evidence of a witness as a whole, and consider the case in light of the entirety of the circumstances, FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 9 of 17 ignoring the minor discrepancies with respect to trivial matters, which do not affect the core of the case of the prosecution. The said discrepancies as mentioned above, should not be taken into consideration, as they cannot form grounds for rejecting the evidence on record as a whole. (see State of UP v. M K Anthony, AIR 1985 SC 48; State rep. By Inspector of Police v. Saravanan & Anr., AIR 2009 SC 152; and Vijay @ Chinee v. State of MP, (2010) 8 SCC 191). In this context reference can also be made to judgement in State of Uttar Pradesh v. Naresh and Ors., 2011 AD (SC) 20, where it has been held that "the evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 10 of 17 falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab, Balraj v. State of Maharashtra and Abdul Sayeed v. State of MP)."
14. Discrepancies pointed out by the counsel for the accused are not material in as much as the witnesses/ the victims have been consistent in their deposition qua the incident and have meticulously deposed as to what happened and how it happened. The victims have been able to point out the roles to the accused persons and both of them are supplementing and substantiating the testimony in this contest. The accused persons have been identified by both PW1 and PW2 Pawan Panchal and Lokesh and correctly stated that they were accosted by the accused persons who were riding the bullet motorcycle which was being driven by the accused Deepak Kumar. It was Deepak Kumar who had threatened the victim with a surgical blade. Both the victims have narrated this fact. Thus, evidently they have been able to maintain the sanctity and the soul of the testimony.
15. On the aspect of identification of the accused person. Ld. FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 11 of 17 Counsel for the accused has tried to emphasize that the accused persons were shown to the witness before the TIP. This fact has been categorically denied by PW2 that he had seen the accused persons in the PS on 22.04.2011 and PW1 has stated that he has never seen the accused persons in the PS. He has indeed stated that the accused persons were seen by him for the first time after the incident in the Court. The contention of the Ld. Counsels for the accused persons could have brought some relief, had it been the case, that the TIP was not refused by the accused persons. The refusal of TIP on behalf of the accused persons coupled with their identification in the court leaves no doubt about their identification. TIP proceedings containing refusal of the accused persons Ex. PW7/A and Ex. PW7/B is capable, coupled with the other evidence, to establish this aspect.
16. The aspect of robbed articles is another issue raised by the counsel for the accused persons stating therein that the recovery of the same is not above board, primarily on two counts that the presence of the accused persons in the same vicinity within the short span of 34 days of the incident that too with the robbed articles is highly improbable. The apprehension of the accused persons, based upon the secret information, and thereafter FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 12 of 17 recovery of surgical blade and mobile phone make NOKIA from the possession of the accused Deepak Kumar and one mobile phone make Micro Max from the possession of the accused Sohan Singh Negi, was not witnessed by any independent witness and that makes it highly improbable and unbelievable. The alleged recovery of gold chain from the house of the accused Deepak Kumar at Buradi again is mired in controversy inasmuch as no independent witness is there and the police as per the statement of victim have used different vehicles to go to Buradi in order to recover gold chain at the instance of the accused Deepak Kumar. The discrepancy in regard to the vehicle being Swift or police gypsy is not of much importance. The absence of independent witness is the another aspect but then in this materialistic era, where one does not have time for one, it can been seen that nobody would like to volunteer as a witness that too in the police proceedings with regard to criminal case where one would have to appear and testify, which may not conclude in one day. Therefore, in such circumstances, the absence of independent witness in itself is not of much consequence.
17. The Ld. Counsel for the accused Deepak Kumar has not FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 13 of 17 denied rather admitted the fact that the gold chain was recovered from the possession of the accused Deepak Kumar, but then it has been further contented that the gold chain belongs to the accused Deepak Kumar himself and it has nothing to do with the so called robbed gold chain. To substantiate his contention, the Counsel for the accused Deepak Kumar has relied upon the testimony of DW2 Ajay Kumar Verma who had appeared and deposed that as per the invoice Ex. DW2/A, a gold chain was sold to Deepak Kumar on 22.02.2011. He identified the signature of the cashier in said invoice. But he has since not identified the chain as such, therefore, it cannot be said that the gold chain qua which receipt was issued pertains to the gold chain in question. He has relied upon the identification mark over the gold chain i.e. GJPN, but then, neither the accused nor for that matter, the prosecution has contended anything of this aspect. Beside the invoice in itself is not sufficient unless other particulars also matched visàvis weight, make, design, description etc. In any case, gold chain has not been identified by DW2, therefore, the claim of the accused Deepak Kumar stands unsubstantiated. The other defence witness examined by the prosecution has not been able to dislodge the prosecution's case.
FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 14 of 17
18. Then again the defence has not even touched the aspect of the mobile phones which were recovered from the accused persons. In such circumstances when the case property has been identified in the TIP by the victims which is Ex. PW8/A and the same have been identified in the court as well, thus, there appears no reason to disbelieve the prosecution on this aspect.
19. The defence has not been able to show as to why the accused persons would be falsely implicated in the present case. No motive has been attributed to the police or for that matter to the victims on whose shoulder the case of the prosecution hangs. Both the victims PW1 Pawan Panchal and PW2 Lokesh have categorically stated about the incident, roles played by the accused persons and the case property robbed from them coupled with their further participation in the proceedings has lent suitable support to prosecution's case. As such, the case of the prosecution is strong enough to show the involvement of the accuseds where the accused Deepak Kumar and Sohan Singh Negi accosted the victims, the accused Deepak Kumar had assaulted the victims with slaps and had threatened them with surgical blade before robbing them. The accused Sohan Singh Negi, being an active participant in the role, is equally liable for FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 15 of 17 the offence in view of the provisions of section 34 IPC. The recovery of robbed articles from the possession of both the accused persons further cements their guilt.
20. In view of the foregoing discussions, it is evident that the accused Deepak Kumar and Sohan Singh Negi, in further of their common intention, robbed the victims, looted their mobile phones, gold chain and a silver bracelet, out of which, mobile phones and gold chain were recovered from the possession of the accused persons and in order to rob Pawan Pnachal and Lokesh, the accused Deepak Kumar threatened them with surgical blade which, depending upon deftness of the hand using it, could have proved fatal and dangerous, but it may not be per se dangerous weapon. In Lad Khan's case (1912) 13 Cri.LJ 182 (PLR) and Akmat Ali's case, AIR 1957 Tripura 48, a Lathi and a 20 cm long folding knife was not found to be deadly weapon. Albeit both, apparently, depending upon the expertise of the user could be fatal. Thus, in these circumstances, the surgical blade may not strictly fall in to the scope and ambit of deadly weapon, which takes accused Deepak off the hook so far as allegations under section 397 IPC is concerned. Accordingly, both the accused Deepak Kumar and Sohan Singh Negi and held guilty FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 16 of 17 for the offence punishable u/s 392 r/w section 34 IPC. Hence, both of them are accordingly held guilty and convicted thereof under section 329/34 IPC.
Announced in the open Court (Vimal Kumar Yadav) On 29.06.2013. Additional Sessions JudgeII, South District, Saket Courts, New Delhi.
FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 17 of 17 State Vs. Deepak & Ors.
FIR No. 122/2011PS : Vasant Vihar 06.07.2013 Present : Sh. Zenul Abedeen, Additional Public Prosecutor for State.
Convicts with their respective Counsels.
ORDER ON SENTENCE
1. It has been contended on behalf of convicts that they are young men and first offenders, having clean antecedents and family responsibilities, therefore the reformative theory of the Sentencing would be appropriate in these circumstances. With these contentions, Counsel for the convicts sought that they may be given the benefit of probation.
2. Ld. Additional Public Prosecutor on the other hand contended that in view of ever increasing violent crimes, involving primarily young men and manner in which the offence was committed by the convicts, leaves no scope for any indulgence to them. The convicts should be made to understand as to what they have done and what could have been the consequences of doing such an act which is not justified on any parameter. With these contentions, Ld. Additional Public Prosecutor advocated a suitable punishment for the convicts.
3. While considering an appropriate sentence for a convict, given in a set of facts and circumstances, a lot of factors come into play such as the age, gender, educational background, socio-economic status of the convict and the role of the society etc. The sentence needs FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 18 of 17 to be adequate and in consonance with the offence committed, it should neither be harsh nor should be light. Striking such a delicate balance is a very crucial for a judge in the role of a sentencer. The convicts are young men and seems to have gone wayward due to lack of parental control or outside influence. But the offence committed by them shows that they have scant regard for the social and legal norms and it also appears that they robbed the victims either out of their undue needs, which the parents were not able to fulfill or that they thought it that they will be able to get away with easy money. They can't be believed as to so naive as to not understand the right and wrong, concept of which is there in every civilized person in the society. In either of the cases, the culpability does not diminishes. One thing is certain that they were not in need of money or something out of their poor economic strata. Although they may not belong to a very affluent family, but then the economic crisis also seemingly was not there. In such circumstances, the offence committed only reflects that the convicts are non-conformists, their behaviour was violative of the life liberty, property and lives of other fellow citizens. Such a non- conformist behaviour cannot be approved by any stands therefore they need to be punished adequately for what they have done.
4. In view of the above discussion and considering the entire gamut and facts and circumstances, the convicts are sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a sum of Rs.25,000/- each as fine, in default of which they shall further undergo Simple Imprisonment of six months each. They shall be entitled to the benefit of section 428 Cr.P.C. Copy of the judgment and FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 19 of 17 order on sentence be given to the convicts free of costs. After compliance, file be consigned to record room.
Announced in the open Court (Vimal Kumar Yadav) On 06.07.2013. Additional Sessions JudgeII, South District, Saket Courts, New Delhi.
FIR no. 122/11 State Vs. Deepak Kumar and ors. Page 20 of 17