Delhi District Court
Sc. No. 93/06 State vs . Kayum @ Sunil Etc. 1 Of 25 on 24 December, 2010
IN THE COURT OF SH. R.K.GAUBA, ADDL. SESSIONS
JUDGE 01 (CENTRAL): DELHI
Sessions Case No. 93/06
ID No.: 02401R0540762006
FIR: 113/06
PS: DBG Road
U/s: 392/397/411/34 IPC
State
Versus
Kayum @ Sunil
S/o MA Ravat Ali
R/o N17 B 10 Jhuggi J.J. Colony Pathar Wala Bagh
Wazirpur, Delhi ..................... Accused No. 1
Deepak @ Raghubir @ Kallu
S/o Ramchander
R/o N17, A120 Jhuggi J.J. Colony
Wazirpur, Delhi. ...................... Accused No. 2
Bhola
S/o Late Shankar
R/o K63 A120 Jhuggi J.J. Colony
Wazirpur, Delhi ...................... Accused No. 3
Instituted on: 24/06/2006
Judgment reserved on: 10/12/2010
Judgment pronounced on: 24/12/2010
SC. No. 93/06 State Vs. Kayum @ Sunil etc. 1 of 25
J U D G M E N T
1. Accused no. 1 Kayum @ Sunil (hereinafter, "A1"), accused no. 2 Deepak @ Raghubir @ Kallu (hereinafter, "A2") and accused no. 3 Bhola (hereinafter, "A3") have faced this trial on the allegations that on 12.04.2006 at about 6.40 AM at DBG Road somewhere between Police Station Karol Bagh towards Anand Parbat, Delhi within the jurisdiction of Police Station DBG Road (hereinafter, "the Police Station") they all, in furtherance of their common intention, committed robbery by relieving the first informant Vishnu Kumar Bansal (PW2) of his gold chain, wrist watch, mobile phone make Nokia and cash amount of Rs. 1,300/ at the point of knives. It is alleged that the broken piece of gold chain and cash amount of Rs. 250/ stolen from PW2 were later recovered from A1 while the wrist watch of PW2 was later recovered from A2.
2. The case of the prosecution may be taken note of at this stage. It is alleged that the first informant Vishnu Kumar Bansal (PW2), a resident of Agra in UP had come to Delhi on way from Jaipur in Rajasthan. He had got down from a private bus in the area of Jhandewalan Temple on 12.04.2006 and had boarded local transport bus no. DL1PB5088 plying on route no. 181 (hereinafter, "the bus") SC. No. 93/06 State Vs. Kayum @ Sunil etc. 2 of 25 between Nizammuddin and Jehangir Puri at about 6.30 AM for going to his younger brother in Bhalaswa Dairy area of Delhi. It is alleged that the accused persons had been standing at the bus stop from where the first informant had boarded the bus and they also joined him in the same bus. It is stated that the first informant had occupied a window seat on the rear side of the bus which was carrying at that time 1520 passengers. The prosecution case is that when the bus had crossed Police Station Karol Bagh at about 6.40 AM when the accused persons whipped out knives and at the point of the said weapons the first informant was relieved of his aforementioned properties including cash Rs. 1,300/. After the said robbery, the accused persons are stated to have alighted from the bus somewhere in the area of Anand Parbat.
3. Information about this incident was conveyed to police post Dev Nagar (hereinafter, "the police post") which falls within the jurisdiction of the Police Station. This information was recorded as DD no. 9 (Ex. PW1/A) at 7.15 AM on 12.04.2006 and made over to SI Lekh Raj Singh (PW16) who, accompanied by Constable Sujit Kumar (PW4), went to the place in question. On arrival, PW16 SI Lekh Raj Singh ( the Investigation Officer) found the bus parked on the roadside. The first informant Vishnu Kumar Bansal reported the SC. No. 93/06 State Vs. Kayum @ Sunil etc. 3 of 25 robbery vide his statement (Ex. PW2/A) in which he narrated the sequence of events, inter alia, giving the description of the robbers. The Investigating Officer (the IO) made endorsement (Ex.PW16/A) on which FIR (Ex. PW3/A) was recorded for offence under section 392 IPC.
4. It is further alleged in the prosecution case that, on 27.04.2006, one Gopal Singh (PW15) had come from Assam to Delhi on his way to his native village in Rajasthan and had boarded a local transport bus of route no. 790A from Old Delhi Railway Station for going towards Dhaula Kuan. It is stated that the local police officials including SI Lekh Raj Singh (PW16) accompanied by HC Balram (PW5), Constable Ramkesh (PW7), Constable Sunder Pal (PW8) and Constable Sujit (PW4), all in plain clothes, were also on board the said bus on account of secret information about presence of the robbers. It is alleged that when the bus had reached near Naaz Cinema, in the area of Karol Bagh, at about 7.30 AM, the pocket of Gopal Singh (PW15) was picked by A1 and A2 assisted by 45 associates who were also travelling in the same transport. It is stated that PW15 Gopal Singh was relieved of cash Rs. 21,000/ and immediately thereafter, while PW15 Gopal Singh was raising alarm, the accused persons with their associates started alighting from the SC. No. 93/06 State Vs. Kayum @ Sunil etc. 4 of 25 front door of the bus. It is stated that A1 and A2 were apprehended by the police officials at that stage. A separate case respecting the theft of money of PW15 Gopal Singh was registered vide FIR No. 132/06 for offence under section 379/34 IPC in PS DBG Road and the investigation of the said case was handed over to SI H.N. Giri (PW9).
5. It is alleged that at the time of his arrest on 27.04.2006 in the said other case, A2 was found wearing the wrist watch of which PW2 Vishnu Kumar had been earlier robbed on 12.04.2006. This wrist watch was recovered as part of jama talashi vide personal search memo (Ex. PW5/A) from the possession of A2.
6. It is alleged in the prosecution case that after their arrest in FIR No. 132/06, A1 and A2 were interrogated during which they made disclosure statements (Exs. PW4/A and 4/B) indicating their respective involvement in the case of robbery against Vishnu Kumar Bansal and, pursuant to the said disclosure and, at the pointing out of A1, broken piece of gold chain belonging to PW2 Vishnu Kumar Bansal along with cash Rs. 250/ were recovered from the possession of A1 vide memos (Ex. PW4/C and Ex. PW4/D respectively).
7. On the basis of the said disclosures and recoveries, A1 and A2 were formally arrested in the present case and later, on the basis of their disclosures, A3 came to be arrested vide arrest memo (Ex. PW5/B) SC. No. 93/06 State Vs. Kayum @ Sunil etc. 5 of 25 and also pointed the place of occurrence (Ex. PW5/C) thereby confirming his involvement.
8. It is stated in the prosecution case that A1, A2 and A3 were taken before the court of Magistrate with the request for Test Identification Parade (TIP). While A1 and A3 are stated to have refused to join the TIP proceedings, A2 voluntarily joined the TIP in which he was positively identified by PW2 Vishnu Kumar Bansal as one of the robbers who had relieved him of his property on 12.04.2006.
9. It is further stated in the chargesheet that part of the gold chain and wrist watch recovered from A1 and A2 respectively were also put to TIP in which PW2 Vishnu Kumar Bansal correctly identified the said items of which he had been robbed.
10.The investigation was concluded with recording of statements of the witnesses and completion of various formalities including collection of the receipt of jeweller regarding purchase of a gold chain by PW2 Vishnu Kumar Bansal.
11.Chargesheet was laid in the court of Metropolitan Magistrate (MM) with material in the nature aforementioned on 24.06.2006 on which MM took cognizance for offences under sections 392/397/411/34 IPC and issued process. After compliance with the provisions of section 207 Cr.P.C, the case was committed to the court of Sessions vide SC. No. 93/06 State Vs. Kayum @ Sunil etc. 6 of 25 order dated 21.07.2006.
12.My Ld. Predecessor considered the question of charge. He found charge made out against A1, A2 and A3 for offences under section 392/34 read with section 397/34 IPC. He also found charge made out for offences under section 411 IPC against A1 and A2 on account of possession of the broken gold chain piece with cash Rs. 250/ and the wrist watch, all stolen properties allegedly recovered from their respective possession. All the three accused pleaded not guilty, thus claiming trial.
13.The prosecution led evidence by examining the following 16 witnesses:
(i) Ct. Jugal Kishore, (PW1);
(ii) Vishnu Kumar Bansal, (PW2);
(iii) W/SI Devender Kaur, (PW3);
(iv) Ct. Sujit Singh, (PW4);
(v) HC Balram, (PW5);
(vi) Ct. Sanjiv Kumar, (PW6);
(vii) Ct. Ramkesh, (PW7);
(viii) Ct. Sunder Pal, (PW8);
(ix) SI H.N. Giri, (PW9);
(x) Sanjay Khanagwal, MM, (PW10);
SC. No. 93/06 State Vs. Kayum @ Sunil etc. 7 of 25
(xi) Jagdish Kumar, MM, (PW11);
(xii) Ajay Goel, MM, (PW12);
(xiii) Sudhir, Ahlmad, (PW13);
(xiv) Rajesh Kumar, (PW14);
(xv) Gopal Singh, (PW15); and (xvi) SI Lekh Raj Singh, (PW16).
14. After the prosecution evidence had been concluded, the statements of the accused persons were recorded in which they denied the incriminating evidence. They pleaded ignorance about the robbery against PW2 Vishnu Kumar Bansal or the picking of pocket of PW 15 Gopal Singh on 12.04.2006 and 27.04.2006 respectively. They denied the evidence indicating their involvement in the said crimes.
While A1 and A3 admitted the evidence regarding the refusal on their part to join the TIP proceedings, A2, when confronted with evidence about he having been identified correctly in TIP by PW2 Vishnu Kumar Bansal, pleaded ignorance in that regard. All the three accused persons claimed to be innocent and falsely implicated stating they had no role to play in the case of robbery against Vishnu Kumar Bansal. A1 claimed that he had been picked up from his house and the case was planted. A2 claimed that he was picked up from a bus along with a large number of other persons and while some of the SC. No. 93/06 State Vs. Kayum @ Sunil etc. 8 of 25 others had let off, he was falsely implicated. A2 and A3 declined to avail of the opportunity to lead defence evidence. A1 sought opportunity for adducing defence evidence.
15.In his defence evidence, A1 examined Durga Prasad as DW1.
16.I have heard Sh. R.K. Tanwar, Addl. PP for State, Sh. N. Parvez, Advocate for A1, Ms. Kiran Deep Kaur, Amicus Curiae for A2 and Sh. V.P. Singh for A3. I have gone through the record.
17.PW2 has deposed confirming the sequence of events narrated by him in his statement Ex. PW2/A on which FIR was registered. PW16 SI Lekh Raj Singh and PW4 Constable Sujit have confirmed that they had gone to the spot for inquiry into the information which had initially come and had been recorded vide DD no. 9, copy whereof has been proved as Ex. PW1/A by PW1 who was deputed as a DD writer in the Police Station at the relevant time. PW16 further proved his endorsement Ex. PW16/A and the registration on that basis of FIR No. 113/06 in PS DBG Road, copy whereof has been proved as Ex. PW3/A by PW3 ASI Devender Kaur, the duty officer at the relevant time. It may be mentioned here that there is no contest whatsoever to this part of the evidence.
18.PW2 testified that on 12.04.2006, he had come from Jaipur and had got down at Jhandewalan Temple in Delhi at about 6.30 AM and was SC. No. 93/06 State Vs. Kayum @ Sunil etc. 9 of 25 to go to Jahangir Puri and had boarded the bus from the said place along with certain other persons. He deposed that when the bus had crossed Police Station Karol Bagh 78 persons had started robbing the passengers. According to him, 23 persons had come from the front while others had come from the rear side holding knives in their hands. He stated that he was slapped and at the point of the knife he was robbed of his mobile phone make Nokia with no. 9412264669, his wrist watch, his gold chain of about 1.2 Taula and cash Rs. 1,300/. He stated that the robbers had got down from the bus near Anand Parbat and that the police, on being informed by the driver, had come and recorded his statement vide Ex. PW2/A. PW2 identified all the accused persons as the said robbers who had committed the crime against him, further confirming that he had identified A2 in TIP at Tihar Jail on 06.05.2006, the proceedings in which regard were proved by him as Ex. PW2/B.
19.During crossexamination, PW2 clarified that it was a private bus in which he was travelling and that he had no idea if the accused persons along with their associates were already in the bus or had boarded it after him. This, to my mind, cannot be treated as a contradiction vis avis his statement Ex. PW2/A which had indicated that 23 robbers had boarded the bus with him, in as much as his evidence indicates SC. No. 93/06 State Vs. Kayum @ Sunil etc. 10 of 25 that the robbers included persons more than 2 or 3 who would have boarded the bus from the place where PW2 had started travelling in it. PW2, under crossexamination, first stated that he could not say which of the accused persons had actually taken out his articles. But then, he pointed out towards A1 to say that it was he who had taken away his chain and wrist watch. Having regard to the sequence of events in the course of which the robbery was committed, it is too much to expect the person robbed to specifically point out the role of each of the offenders particularly when they had committed the crime collectively. As would be seen a little later, the evidence adduced by the prosecution is not based solely on the identification of the three accused persons by the person robbed (PW2), but also well connected by recoveries of the stolen articles, only a few days after the robbery.
20.PW2 would not remember as to who had taken out the cash amount and mobile phone from his pocket or further even to confirm or deny if this had been done by any of the accused persons facing this trial. Admittedly, the currency notes of which PW2 was robbed did not have any specific mark of identification, in as much as no such special identity has been claimed. Admittedly, there is nothing collected in the name of evidence to confirm that the cash amount of Rs. 250/ recovered from the possession of A1 and at his instance from his SC. No. 93/06 State Vs. Kayum @ Sunil etc. 11 of 25 house is the same as the money of which PW2 was robbed on 12.04.2006. The mobile phone which was also stolen in the same robbery has not been recovered. In these circumstances, the inability of PW2 to remember the role of a specific individual respecting the cash amount and the mobile phone instrument is of no consequence whatsoever. It has to be borne in mind that the evidence clearly shows that A1, A2 and A3 were not the only members in the gang of robbers but that it included at least 3 or 4 others. Possibility of other members of the gang having taken away the rest of the stolen property as their share in the booty cannot be ignored.
21.In these circumstances, the above nature of statement of PW2 regarding cash amount and the mobile phone does not adversely effect the prosecution case against A1, A2 and A3.
22.It is clear from the prosecution evidence, particularly the statement of the IO PW16, that police was clueless after registration of the FIR regarding robbery against PW2. PW16, initially, only completed the formalities like recording of statements and preparing of the site plan (Ex. PW16/B).
23.The prosecution case shows that the local police was concerned with the rising spate of incidents of robbery in the local transport vehicles. In this view, police officials in plain clothes were deployed to keep a SC. No. 93/06 State Vs. Kayum @ Sunil etc. 12 of 25 watch. It is stated that it was on a duty of this kind that PW16 accompanied by PW5, PW7, PW8 and PW4 had boarded bus plying on route no. 790A from Old Delhi Railway Station to Dhaula Kuan on 27.04.2006. According to PW16, there was a secret information available. PW15 Gopal Singh was also travelling in the said bus.
24.PW15, a resident of Rajasthan has confirmed in his statement that he had come from Assam on 27.04.2006 and was on his way to his native village in area of PS Govind Garh and had boarded the said bus at about 7.30 AM. He deposed that his pocket was picked when the bus had reached near Naaz cinema, Karol Bagh at about 7.30 AM and that A1 and A2 were apprehended at the spot. He positively identified A 1 in the witness box though he did falter as regards the identity of A1. When crossexamined by the Ld. Addl. PP, the witness conceded that A2 might be the other person who had been apprehended at the spot. During his crossexamination, PW15 denied the suggestions of the defence that A1 had been falsely implicated or that he had not role to play in the incident concerning theft of Rs. 21,000/ from his pocket.
25.PW16 has affirmed on oath that when PW15 had raised the alarm that his pocket had been picked, the police staff had apprehended A1 and A2 while they along with their associates, the group consisting of SC. No. 93/06 State Vs. Kayum @ Sunil etc. 13 of 25 67 persons, were trying to escape from the front door of the bus. He proved the arrest of A1 and A2 in the said case FIR No. 132/06, copy of which has been proved by PW3 ASI Devender Kaur. His evidence in this regard is fully corroborated by the statements of PW 5, PW7, PW8 and PW4 who were present in the bus with him in plain clothes. PW9 to whom FIR No. 132/06 was handed over for investigation, on his part, proved the interrogation of A1 and A2 resulting in their disclosures statements Ex4/A and 4/B respectively.
26.In the investigation of FIR No. 132/06 regarding the theft of money from PW15, PW9, the IO of the said case was assisted by PW5 and PW4. All these witnesses have deposed about A1 having led PW9 and the other police officials to his house no. N17 B 10 Jhuggi J.J. Colony Pathar Wala Bagh, Wazirpur, Delhi from where he had got recovered the part of the broken chain of the length of 12 inches (Ex. P1) which was seized after being sealed in a parcel by PW9 with the seal of HNG vide memo Ex. PW4/C. These witnesses also proved recovery of cash Rs. 250/ from the possession of A1 vide memo (Ex. PW4/D). They further proved that at the time of arrest of A2 in FIR No. 132/06, during his personal search he was found having in his possession besides Rs. 120/, a wrist watch make Sonata (gold colour) which, in view of the disclosure about it being stolen property, was SC. No. 93/06 State Vs. Kayum @ Sunil etc. 14 of 25 sealed in a parcel with the seal of HNG, as per memo Ex. PW5/A.
27.PW4 and PW5 were crossexamined on behalf of the accused persons, while the opportunity for crossexamination of PW9 was availed only by A2. There is nothing in the crossexamination of these witnesses as can result in any doubts about their veracity being raised.
28.PW9 had communicated the disclosures made by A1 and A2 respecting this FIR to PW16, the IO on 28.04.2006. PW16 has proved that he had appeared in the court of MM on 29.04.2006 and after taking permission of the court had formally arrested A1 and A2 vide memos (Ex. Pws 16/E also PW6/B and 16/D also Ex. PW6/A) in the presence of PW5 and PW6 who have also confirmed this fact.
29.PW16 affirmed on oath about the TIP arranged respecting A1 and A2 in Central Jail, Tihar on 06.05.2006. The TIP proceedings conducted on 06.05.2006 were presided over by PW10 Sh. Sanjay Khanagwal, Metropolitan Magistrate, Delhi. He has proved Ex. PW 10/B as the application which had been moved for the purpose on 29.04.2006 by PW16. The order recorded on the said application shows A1 and A2 were produced before the concerned MM with muffled faces and the application was made over to PW10 for 01.05.2006 when he directed TIP to be arranged in Central Jail on SC. No. 93/06 State Vs. Kayum @ Sunil etc. 15 of 25 06.05.2006. He proved the proceedings Ex. PW10/A respecting A1 and proceedings Ex. PW2/B respecting A2 conducted in Central Jail, Tihar on 06.05.2006. His evidence has not been assailed in any manner. The proceedings show that A1 refused to join TIP on the ground that he had been shown by the police officials to the witness in the police station and that his photograph had also been taken. On the other hand, A2 voluntarily joined the TIP and was positively identified by PW2 in the said proceedings.
30.As mentioned earlier, A1 in his statement under section 313 Cr.P.C admitted that he had refused to join the TIP. He had given specific reason for said refusal in the proceedings Ex. PW10/A. In support of the said reasons, in his defence evidence, A1 relies on the statement of DW1. On appraisal of the evidence of the said witness, it is found that the same does not help the accused in any manner. All that the said witness had to say was that on a certain day (date, month or year he does not remember), around 6 / 7 PM, he had reached near the corner of the street leading to his house when he had seen a crowd gathered with the accused in the custody of the police. This statement is neither here not there. It was not disputed on behalf of accused during the arguments that he had been arrested in other police cases as well including FIR No. 208/06 of PS Ashok Vihar and FIR No. 132/06 SC. No. 93/06 State Vs. Kayum @ Sunil etc. 16 of 25 of PS DBG Road, besides the FIR of the case at hand. The evidence of DW1 could pertain to any of the said cases. In absence of clarity in evidence of DW1, it cannot assumed that he had seen the accused in the custody of the police immediately after his arrest leading to his involvement in the case at hand or, more particularly, before he was taken for TIP proceedings.
31.As mentioned earlier, A2 in his statement under section 313 Cr.P.C had pleaded ignorance when confronted with the evidence regarding he having been positively identified in the TIP by PW2. Plea of ignorance in this respect does not help A2 in any manner. The identification by PW2 in TIP in fact seals his fate leaving no room for any doubts about his complicity.
32.The broken piece of the gold chain (Ex. P1) recovered from A1 on 28.04.2006 and the wrist watch (Ex. P2) recovered as part of personal search from A2 at the time of his arrest on 27.04.2006, in sealed parcels were placed before PW12 for TIP. PW12 has proved his proceedings (Ex. PX1) which he had conducted on the application of the IO moved for the purpose on 26.05.2006 and having been assigned to him. In these proceedings, PW2 correctly identified both the said items as part of his stolen property. There is no contest whatsoever to the evidence of PW12 in this regard. The identity to the gold chain is SC. No. 93/06 State Vs. Kayum @ Sunil etc. 17 of 25 further confirmed by the receipt (Ex. PX2) which had been produced by the first informant before the IO during investigation when it was seized vide memo (Ex. PW2/C). It is not the case of A1 that this piece of gold chain belongs to him.
33.PW16 has further affirmed on oath that in the wake of disclosures made by A1 and A2, their third associate A3 was also arrested on 11.05.2006 as per arrest memo Ex. PW16/F. He had joined PW5 HC Balram and Constable Rajesh in the investigation at that stage. PW5 has deposed about A3 having made a disclosure statement confirming his involvement in this case and having pointed out the place of occurrence of this case in which regard documents Ex. PW 5/B and 5/C have been referred. Since the disclosure attributed to A3 did not result in any evidence being recovered in the nature of discovery, and since the place of occurrence was already known to the police, this part of the evidence is not admissible, it being hit by the provisions of sections 24 26 of Evidence Act.
34.But then, PW16 had also taken steps for getting the TIP of A3 arranged. His application in this regard vide Ex. PW11/B moved on 11.05.2006 was made over to PW11 Sh. Jagdish Kumar, MM who fixed the proceedings to be held in Central Jail, Tihar on 23.05.2006. In the proceedings held on 23.05.2006 in Central Jail, Tihar, vide Ex.
SC. No. 93/06 State Vs. Kayum @ Sunil etc. 18 of 25 PW11/A, A3 refused to participate. The proceedings indicate that accused had stated before PW11 that during police remand, the IO had shown him to various persons. In the course of the trial, the accused did not lead any evidence in support of this reason. The application (Ex. PW11/B) shows that accused was arrested on 11.05.2006 and had been sent to judicial custody on 25.05.2006 and when produced in the court he was in muffled face. In these circumstances, it is clear that all necessary precautions to protect his interest had been taken.
35.It has been argued by his counsel that A3 was initially arrested under sections 107/151 Cr.PC on 25.04.2006 and remained in custody in such matter under order of Special Executive Magistrate (SEM) till 05.05.2006. It was submitted that it was only in the wake of the disclosure attributed to A1 during interrogation in FIR No. 132/06, made on 27.04.2006 that A3 came to be arrested, first in case FIR No. 208/06 of PS Ashok Vihar followed by his arrest in FIR No. 132/06 of PS DBG Road. The counsel submitted that in both the said other FIRs, that is FIR No 208/06 of PS Ashok Vihar and FIR No. 138/06 of PS DBG Road, A3 has been discharged. The counsel pointed out that A3 was arrested in the case at hand vide memo Ex. PW16/S only on 11.05.2006. He submitted that the fact that A3 was in custody since SC. No. 93/06 State Vs. Kayum @ Sunil etc. 19 of 25 25.04.2006, he could not have possibly been involved in the incident concerning PW15 Gopal Singh that occurred on 27.04.2006. According to him, the allegations against this accused, therefore, do not deserve to be believed.
36.I find the arguments to above effect fallacious. A3 is not being tried in the case at hand for what happened qua PW15 on 27.04.2006. It is not even the case of prosecution that A3 was involved in the incident of robbery against PW15 on 27.04.2006. Only A1 and A2 came to be arrested on that day and it is their interrogation leading to the disclosures by them that the police learnt about the involvement of A
3. In these circumstances, the fact that A3 was in custody in a matter under section 107/151 Cr.PC since 25.04.2006 is of no consequence, in as much as the allegations forming the part of charge here relate to 12.04.2006.
37.The defence counsels for all the accused argued that the evidence of the prosecution about the number of persons who were involved in the robbery against PW2 in the case at hand is contradicted. The counsel pointed out that in the DD entry no. 9A, as per copy Ex. PW1/A, reference was made to 4 / 5 young persons having been involved in the robbery. In his statement forming the basis for registration of the FIR, PW2 mentioned two or three persons whereas in his statement in SC. No. 93/06 State Vs. Kayum @ Sunil etc. 20 of 25 the court reference was made by him to role of 7 or 8 persons.
38.I do not think that the evidence can be criticised as suffering from any serious contradictions only on the basis of the above facts. The DD entry was based on an initial information that may have been conveyed on the basis of first impression. What was stated in his statement leading to registration of the FIR was based on what had come to the immediate notice of the first informant at that stage. FIR , even otherwise, is never expected to be the compendium of the facts in their entirety. It is only the starting point of investigation. It is the evidence in the court which is the substantive evidence.
39.The evidence adduced clearly shows that the three accused persons were not alone in the crime. They had certain other associates operating with them. This, in fact, would explain even the contents of the DD entry. This impression is further reinforced by the facts that came to notice during the course of robbery committed against PW15 on 27.04.2006, again in a public transport vehicle. The actual total number of accomplices of these accused persons, or their respective identities could not be brought to light. But this does not mean that the accused are entitled to any benefit of doubts, as no doubts arise from these circumstances alone.
40.It was then argued that the knife has not been recovered. In a case of SC. No. 93/06 State Vs. Kayum @ Sunil etc. 21 of 25 this nature, this can never be a handicap. So long as the evidence clearly shows that knife was actually used in the crime, may be only to put the person robbed in fear of some injury, the prosecution case about armed robbery deserves to be accepted.
41.On careful perusal of the evidence on record, I do not find any reason why it should be disbelieved. Small contradictions by themselves are no reason to throw the case out. It has been held time and again that discrepancies do not necessarily demolish the testimony. Proof of guilt can be sustained despite little infirmities [Narotam Singh Vs. State 1978 Cr.L.J. 1612(SC)]. No undue importance can be attached to such discrepancies if they do not go to the root of the matter and do not shake the basic version of witnesses [Lallan Vs. State 1990 Cr,.L.J. 463]. It was ruled in Ramni Vs. State, [Judgment Today 1999(6) SC 247)] that all discrepancies are not capable of affecting the credibility of witnesses. Similarly, all inconsistent statements are not sufficient to impair the credit of a witness.
42.Observations of Hon'ble Supreme Court in 1985 Crl. L.J. 1173 can also be fruitfully referred to in this context. The evidence of an eye witness cannot be treated as one of the three legs of a tripod so as to SC. No. 93/06 State Vs. Kayum @ Sunil etc. 22 of 25 conclude that it must collapse if one or the other leg collapses.
43.In the case of Sukhdev Yadav & ors. Vs. State of Bihar (2001) 89 (SCC) 86) it was held by Hon'ble Supreme Court that once the trustworthiness of evidence stated in a case stands satisfied, the court should not hesitate in accepting the same. If the evidence in its entirety appears to be trustworthy, it cannot be discarded merely on the ground of presence of minor variations in evidence. Relying upon an earlier decision in Leela Ram Vs. State of Haryana (1999) 9 SCC 525, it was observed that there are bound to be some discrepancies between the narration of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishments or variations should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate otherwise acceptable evidence. Relying upon an earlier decision in Ramani Vs. State of M.P. ( supra), it was also 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 SC. No. 93/06 State Vs. Kayum @ Sunil etc. 23 of 25 details. Perhaps an untrue witness who is well tutored can successfully make his testimony totally nondiscrepant. 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. But 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 observed that it is a common practice in trial courts to make out contradictions from the previous statement of a witness used 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 of 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.
44.In above facts and circumstances, there is no reason why the evidence of PW2 confirming the involvement of A3 in the crime against him should be disbelieved. The refusal on the part of A1 and A3 to join TIP proceedings, in the facts and circumstances of the case, must SC. No. 93/06 State Vs. Kayum @ Sunil etc. 24 of 25 result in adverse inference against them to the effect that if they had joined, they would have been positively identified by PW2 as the members of the group of robbers, which had committed the offence against him on 12.04.2006.
45.In above facts and circumstances, prosecution has been able to bring home guilt of all the all the three accused persons. It is clear that all of them, acting in concert, had accosted the first informant during the bus travel and had relieved him of his valuable property, after putting him in fear of injury. These facts constitute the offence of robbery as defined in section 390 IPC and as is punishable ordinarily under section 392 IPC. Since the prosecution evidence has shown that A1 had wielded a knife, a deadly weapon at the time of committing the robbery, his case would attract the minimum punishment prescribed in section 397 IPC.
46.In the result, A1 held guilty and convicted under section 392/34 IPC read with section 397 IPC. A2 and A3 are held guilty and convicted for the offences under section 392 / 34 IPC.
Announced in open Court today
on this 24th day of December, 2010 ( R.K. GAUBA)
Addl. Sessions Judge01
Central, Delhi.
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