Delhi District Court
Sagar Koli vs State Nct Of Delhi on 22 March, 2025
IN THE COURT OF SH. PANKAJ ARORA: ADDITIONAL
SESSIONS JUDGE-04:NORTH-EAST: KARKARDOOMA:
DELHI
Criminal Appeal No. 188/2024
CNR No. DLNE01-003252-2024
Sagar Koli
S/o Sh. Rakesh Koli
R/o H.No. 567, Gali No. 18,
5th Pusta, Near Nav Jeevan Public School,
Sonia Vihar,
North East Delhi,
Delhi-110094. ..................Appellant
Versus
The State
(Govt. of NCT of Delhi) ..................Respondent
JUDGMENT
1. Vide this judgment, this court shall dispose of the present appeal filed by the appellant u/s 374(3) of Cr.P.C. assailing the judgment dated 09-11-2023 and order on sentence dated 30.11.2023 passed by the court of Sh. Ashish Gupta, Ld. ACMM, North-East Distt. KKD, Delhi thereby sentencing the appellant to undergo RI for a period of 3 years and one month for the offence punishable u/s 392/34 of IPC and to pay a fine of Rs. 20,000/-. In default of payment of fine, the appellant shall undergo SI for a period of two months.
2. Brief facts of prosecution case are that on 21-10.2017 at about 11:30 PM, the complainant namely Ankush Verma S/o Sh. Bijender Verma, was returning to his home after finishing his duty at Shahdara by his motorcycle. When he reached near 5th Pusta, Sonia Vihar, three four persons waylaid him and robbed his mobile phone make Apple colour Space grey and a wallet Crl. A. No. 188/2024 Sagar Koli Vs. State Page 1 of 10 containing Rs. 7000/- cash, Aadhar Card, Voter Card, DL, Credit card and Debit card. Thereafter, the said persons fled towards Pusta on their bike.
3. On the basis of statement of complainant Ankush Verma, present FIR came to be registered for the offence punishable u/s 392/34 IPC. On the next day at about 11:15 PM, accused Sagar Koli (appellant herein) and Tushar @ Deepankar were arrested vide DD no. 18A, PS Bara Hindu Rao and case property ie robbed mobile phone and purse were recovered from them. They disclosed that amount of Rs. 7000/- from the purse was taken by accused Ajay @ Golu. On 24.10.2017, accused Ajay @ Golu was arrested. After completion of necessary formalities, charge- sheet has been filed for the offences punishable u/s 392/394/411/34 IPC before the trial court and all the accused persons were put on trial. Vide order dated 12.02.2020, charge was framed against all accused persons for the offence punishable u/s 394/34 IPC. The accused persons pleaded not guilty and claimed trial. After concluding trial and hearing arguments, accused Tushar @ Deepankar and appellant Sagar Koli were convicted for the offence punishable u/s 392/34 IPC vide judgment dated 09.11.2023. Vide order on sentence dated 30.11.2023, both the convicts including appellant herein have been sentenced to undergo rigourous imprisonment for a period of 3 years and one month and to pay a fine of Rs. 20,000/- each for the offence u/s 392/34 IPC. It was directed that entire fine of Rs. 20,000/- shall be given as compensation to the complainant. It was further directed that in default of payment of fine, the convicts shall further undergo simple imprisonment for 2 month. Against the above-stated judgment and order on sentence, appellant Sagar Koli has preferred an appeal, inter alia, on the Crl. A. No. 188/2024 Sagar Koli Vs. State Page 2 of 10 following grounds:-
I. Judgment of trial court is based on presumption, surmises and conjectures.
II. That in his statement before the police and in his testimony before the Ld.Trial Court, the PW-1 deposed that his robbed wallet was containing cash of Rs. 7000/-. However in his deposition dated 06.01.2023, he claimed that a cash amount was Rs. 3000/-, which is a material contradiction and the Ld. Trial court has failed to take note of the said material contradiction.
III. The accused/appellant was convicted merely on the basis of dock identification of PW-1. No TIP was got conducted by the IO during investigation to establish the identity of accused/appellant was stranger to PW-1. Reliance is placed upon the judgment of Vishwanatha Vs. State of Karnataka, AIR 2024 SC 3305.
4. On the other hand, Ld. Addl. PP for the State has submitted that the above stated judgment dated 09.11.2023 and order on sentence dated 30.11.2023 passed by Ld. Trial Court are as per law. There is no infirmity or illegality in the said orders.
5. This court has heard Ld. Addl. PP for the State and Sh.
Vipin Bansal, Ld. LAC for appellant and perused the trial court record.
6. It is noted that the prosecution has got examined eye witness namely PW1 Ankush Verma, who also happens to be with victim in the present case. His testimony is consistent with the statement Ex. PW1/A recorded by the police, which forms the basis for registration of the present FIR. He has duly identified the accused/appellant and co-accused Tushar as well Crl. A. No. 188/2024 Sagar Koli Vs. State Page 3 of 10 as the photographs of his robbed mobile phone and wallet in his deposition dated 06.01.2023.
7. It is contended that there is contradiction in the testimony of PW-1 regarding the cash amount revealed by him in his deposition dt. 06.01.2023 and his statement Ex. PW1/A. In this regard, it is noted that apart from the discrepancy in the robbed cash amount, PW-1 has narrated in detail the manner in which the incident has taken place. In the opinion of this court, such discrepancy in the robbed cash amount is normal error of memory due to lapse of time. PW-1 was examined in the court after about 6 years from the date of incident. Merely on account of abovestated discrepancy, his entire testimony cannot be discarded.
8. At this stage, it is pertinent to refer here the case of State of H.P. v. Lekhraj and another reported in JT 1999 (9) SC 43, wherein it was observed by the Hon'ble Supreme Court of India that:-
"In the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such 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......... .......The traditional dogmatic hyper technical approach has to be replaced by rational, realistic and genuine approach for administering justice in a criminal trial."
Further, in the case of Surender Singh v. State of Haryana reported in JT 2006 (1) SC 645, the Hon'ble Supreme Court of India has observed as under :- "It is well-established principle of law that every discrepancy in the witness statement cannot be treated as a fatal to the prosecution case. The discrepancy, which does not affect the prosecution case materially, does not create infirmity."
As far as minor inconsistencies are concerned in the statement of the witnesses it is held in Ousu Varghese Crl. A. No. 188/2024 Sagar Koli Vs. State Page 4 of 10 v. State of Kerala, reported in (1974) 3 SCC 767 that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In the case of Jagdish v. State of Madhya Pradesh, reported in AIR 1981 SC 1167, the Supreme Court has held that when the discrepancies were comparatively of minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. Also in the case of State of Rajasthan Vs. Kalki, reported in (1981) 2 SCC 752 it has been held that in the depositions of witnesses there are always normal discrepancy, however, honest and truthful they may be. Such 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 of a normal person.
(133) Even otherwise, 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 evidence of witness are so incompatible with the credibility of his version that the Court is justified in jettisoning his evidence. But too serious a view to be adopted on mere variations falling in the narration of incident (either as between the evidence of two witnesses or as between two statements of the same witness) is an unrealistic approach for judicial scrutiny. (134) The Supreme Court had an opportunity to discuss as to why discrepancies arise in the statements of witnesses. In the judgment of Bharwada Boginbhai Hijri Bhai Vs. State of Gujarat, reported in 1983 (CRI) GJX 0252 SC: AIR 1983 SC 7453 (1), the Supreme Court pointed out the following reasons as to why the discrepancies, contradictions and improvements occur in the testimonies of the witnesses:
(a) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen.Crl. A. No. 188/2024 Sagar Koli Vs. State Page 5 of 10
(b) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise.
The mental faculties therefore cannot be expected to be attuned to absorb the details.
(c) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another.
(d) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(e) In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals which varies from person to person.
(f) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.
(g) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, of fill up details from imagination on the spur of the moment. The subconscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him perhaps it is a sort of psychological defence mechanism activated on the moment.
9. It has been held by the Hon'ble High Court of Delhi in the case of Sonu Arora Vs. State on 21 July, 2010 in Crl. A. No. 241/1997 that:-
Crl. A. No. 188/2024 Sagar Koli Vs. State Page 6 of 10"If the discrepancies found in the testimony of a witness are normal and attributable to loss of memory with the passage of time or they are on matters which are peripheral or trivial, not forming the core of the case, his testimony cannot be rejected on account of such minor variations or infirmities. But, where the contradiction relates to the main incident forming core part of his testimony, that could depending upon the nature of the contradiction and other facts and circumstances of the case, seriously affect the credibility and truthfulness of the witness since he is not expected to give contradictory version with respect to the important material parts of the incident which he claims to have witnessed."
10. Further, it is well settled that testimony of hostile witness cannot be discarded in toto. In the case of Khujji @ Surendra Tiwari Vs. State of M.P, AIR 1991 Supreme Court 1853, Hon'ble Apex Court examined the evidentiary value of a hostile witness and held that the evidence of a witness, declared hostile, is not wholly effaced from record and that part of evidence, which is otherwise acceptable can be acted upon. Hon'ble Apex Court relying upon its previous decisions in Bhagwan Singh Vs. State of Haryana, (1976) 2 SCR 921, Rabinder Kumar Dey Vs. State of Orrisa (1976) 4 SCC and Sayed Akbar Vs. State of Karnataka (1980) 1 SCR 95 held that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent their version found to be dependable on a careful scrutiny thereof.
11. No material contradiction/ discrepancy has been pointed out by the Ld. LAC in the version of PW1 Ankush Verma which would have the effect of discarding his testimonies in toto. In view of the law as stated above, the contention regarding Crl. A. No. 188/2024 Sagar Koli Vs. State Page 7 of 10 contradictions and discrepancies in the version of PW1 fails to inspire the confidence of this court.
12. It is further contended that the accused/appellant was convicted merely on the basis of dock identification of PW1. No TIP was got conducted by the IO during investigation to establish the identification of accused /appellant in commission of alleged offence. In this regard, it is pertinent to note that the accused/appellant has already refused to participate in the TIP proceedings dated 24.10.2017 before Ms. Aditi Garg, Ld. MM. No defence evidence has been led by the appellant in support of his contention that the complainant is residing in the same area where he is residing and that the complainant has already seen him. It is well settled that TIP is conducted only as an aid to the identification. Identification of accused by the witness in the court is considered to be substantive piece of evidence. In the present case, the complainant (PW1) has duly identified the accused/appellant in his deposition dated 06.01.2023. Thus the contention regarding inadmisibility of dock identification of accused/appellant by witness fails to inspire the confidence of this court. The authorities relied upon by Ld. LAC on this aspect is not found to be applicable in view of peculiar facts of this case.
13. In view of the foregoing discussion, this court did not find any fault in appreciation of evidence by the Ld. Trial Court. No illegality or infirmity is noticed in the judgment dated 09.11.2023 passed by Ld. Trial Court. Accordingly, judgment dt. 09.11.2023 passed by the Ld. Trial court is hereby upheld. However, it is noted that the Ld. Trial Court has not considered the aspect of release of the appellant on probation U/s 4 of Probation of Offender Act. The offence for which the appellant has been convicted i.e. section 392 of IPC has been squarely covered U/s 4 Crl. A. No. 188/2024 Sagar Koli Vs. State Page 8 of 10 of Probation of Offender Act. In case Ved Prakash Vs. State of Haryana, AIR 1981 SC 643, it has been held by the Hon'ble Apex court that, " Even if S360 Cr.P.C is not attracted, it is the duty of the sentencing Court to be activist enough to collect such facts as have a bearing on punishment with a rehabilitating slant ". As per the previous involvement report as well as nominal role filed by the Jail Superintendent vide report dt. 11.10.2024, the appellant is not convicted in any other criminal case. He is only 25 years old. The Probation Officer namely Suchi in her social investigation report dt. 18.12.2024, has recommended grant of benefit of probation to the appellant. In these circumstances, this court is of the opinion that the appellant ought to have been conferred benefit of Welfare Legislation i.e. Probation of Offenders Act, 1958. Accordingly, order on sentence dt. 30.11.2023 passed by the Ld. Trial court is hereby set aside.
14. Keeping in view the above-mentioned facts and circumstances, consideration of social investigation report dated 18.12.2024 filed by the Probation Officer, this court is of the opinion that instead of sentencing the appellant at once, the appellant namely Sagar Koli be released on probation for a period of one year on furnishing personal bond in the sum of Rs. 25,000/- with one surety of the like amount to appear and receive sentence when called upon to the satisfaction of Ld. Trial Court. During the period of probation, the convict/appellant shall remain under the supervision of Probation Officer namely Ms. Suchi, he shall not indulge in any criminal activity and shall abstain from intoxicants, shall keep the peace and be a good behavior and shall not leave India without prior permission from the Ld. Trial court. In addition, the convict/ appellant Sagar Koli is directed to Crl. A. No. 188/2024 Sagar Koli Vs. State Page 9 of 10 pay compensation of Rs. 20,000/- to the victim Ankush Verma at Trial court within one week from today. The appeal stands disposed of. Trial Court record be segregated and returned to the Ld. Trial Court with copy of this judgment and thereafter, appeal file be consigned to Record Room. Digitally signed by PANKAJ ANNOUNCED IN OPEN COURT PANKAJ ARORA ARORA Date:
ON 22.03.2025 2025.03.22
17:50:00 +0530
(PANKAJ ARORA)
ADDL. SESSIONS JUDGE-04: NORTH-EAST/
KARKARDOOMA/22.03.2025
Crl. A. No. 188/2024 Sagar Koli Vs. State Page 10 of 10