Delhi District Court
Permanent Address : Village Ekware vs The State on 30 October, 2018
IN THE COURT OF SH. VIMAL KUMAR YADAV, SPECIAL JUDGE
CBI, (P.C. ACT)08, CENTRAL DISTRICT
TIS HAZARI COURTS, DELHI
Priyanshu
S/o. Naval Kishore Rai
R/o. Gali No. 10, Roshan Nagar,
Agwanpur, Faridabad, Haryana.
Permanent Address : Village Ekware,
District Bhojpur, police station
Sahar, Bihar.
......Appellant
Versus
The State
(Govt. NCT of Delhi)
......Respondent
Crl. Appeal No. : 385/2018
CNR No. : DLCTO10131522018
Date of institution : 09.10.2018
Date of reserving order : 26.10.2018
Date of pronouncement : 30.10.2018
J U D G M E N T
1. Aggrieved by the judgment dated 31.08.2018, in which the appellant herein namely Priyanshu was held guilty and convicted under section 394/34 IPC and vide order on sentence dated 05.09.2018 he was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/ in default of which it was ordered that he shall undergo simple imprisonment for a period six months, the instant appeal has been filed, which stands disposed off hereby through this judgment.
2. Precisely, the facts which led to the registration of the Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 1 of 16 case against the appellant are that the victim/complainant Amit Kumar was robbed, on the fateful day i.e. 25.04.2015, when he was traveling in the train with his known persons comprising a marriage party. He was sleeping alone on the berth number 46 and felt somebody stole his purse from his back pocket of the pant. He got suspicion about the complicity of the present appellant alongwith his 3/4 associates who were there in the coach. The appellant made a hue and cry by saying 'chor chor' and with the help of his friends apprehended the appellant in the moving train itself whereas the associates of the appellant managed to flee away after pulling the chain. The suspicious turned out to be correct as the stolen article that is purse of the victim was recovered from the possession of the appellant. The appellant, in between, threatened the complainant and others with the cutter and also tried to inflict injuries upon the complainant, but, could not succeed in his attempts. Thereafter, the stolen purse containing a sum of Rs.510/ and ATM card etc. and cutter were recovered from the possession of the appellant who was overpowered and neutralized. The associates of the accused/appellant pelted stones upon the complainant and his friends due to which complainant sustained injuries on his knees, but that was trivial, so no medical test was carried out, as it was refused by the complainant.
3. Against the backdrop of the above facts, FIR bearing No. 531 of 2015 was registered by the police station New Delhi Railway Station and after the requisites of the investigation the accused/appellant was charge sheeted, which ultimately resulted into his conviction and punishment as referred above.
4. While assailing the impugned judgment, it is asserted by the Counsel for the appellant that the ingredients of section 394 Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 2 of 16 IPC are amiss as no injury was sustained by the complainant and his associates as no MLC of the complainant is there on record, albeit he himself had refused to go for it. No memo of any stone was prepared by the Investigating Officer nor any stone was recovered and as regards the cutter, it is asserted that the same has been planted upon the appellant. There are, it is asserted, major discrepancies in the testimony of PW1 Amit Kumar, PW2 Sonu and PW5 Sunil Kumar and for that matter all of them were part of the same marriage party and were traveling together and thus they all are interested witnesses whereas no independent public witness to the incident was joined in the investigation. There is no FSL report on record despite the fact that the Investigating Officer had taken finger prints of the appellant.
5. The appellant, in fact, was going to his native to attend the marriage of the sister of his brotherinlaw and it was the complainant and his associates who falsely implicated the appellant in this case on account of fight over the issue of seat. The Investigating Officer has deliberately not produced the ticket of the appellant. Therefore, in such circumstances, the impugned judgment and the consequent order on sentence thereupon cannot be sustained. It is further asserted that the accused/appellant is barely out of his teens and only of 22 years of age as has been verified by the investigating agency and has clean antecedents, therefore it is not possible for him to indulge in such illegal acts.
6. Additional Public Prosecutor for State, on the other hand, submitted that the judgment is in consonance with the facts of the case and there is ample evidence to show the involvement of the appellant as he was apprehended from the spot itself and recoveries were made from him. There is no cross examination or suggestion qua the vital aspects of cutter etc. to the witnesses, thus, the Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 3 of 16 arguments are bald and baseless and the case of the prosecution to that extent going unrebutted and thus stands proved. In order to strengthen his arguments, Ld. Additional Public Prosecutor relied upon the judgment titled as V.K. Mishra & Anr. Vs. State of Uttarakhand & Anr. (2015) 9 Supreme Court Cases 588; Shamim Vs. State (GNCT of Delhi) 2018 SCC OnLine 1559; Sarwan Singh Vs. State of Punjab (2003) 1 Supreme Court Cases 240; State of Rajasthan Vs. Smt. Kalki & Anr. (1981) 2 Supreme Court Cases 752 and Gajoo Vs. State of Uttarakhand (2012) 9 Supreme Court Cases
532.
7. I have considered the submissions made by the rival sides and perused the record as well.
8. Counsel for the appellant has primarily assailed the impugned judgment on the plea that the case of the prosecution is full of contradictions and inconsistencies which makes it highly unbelievable, whereas the responsibility of the prosecution is to prove its case beyond all reasonable doubts, then on these parameters, the case falls short. As such, the appellant/accused should have been acquitted.
9. To elaborate it further, it is asserted by the Counsel for the appellant that the victim/complainant Amit Kumar has nowhere said that he had actually seen the appellant taking away his purse, therefore in these circumstances how he could have narrowed down the identity of the assailant as the appellant. The complainant has raised hue and cry or shouted 'chor chor' and caught hold of the appellant with the help of his associates i.e. about 32 persons traveling in the same coach as a marriage party. Additionally, it is submitted that the testimony of PW2 Sonu presents a different picture which is to the effect that the complainant Amit Kumar Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 4 of 16 resisted the appellant and his unknown associates when the appellant took out the purse of the complainant Amit Kumar on which the appellant took out a knife or a knife like object. PW2 Sonu Kumar nowhere says that Amit Kumar had sustained any injury either from knife like object or knife, rather says that Amit sustained injuries on his knees due to the stone pelting. How, the train stopped to facilitate the escape of the socalled associates of the appellant is also at variance inasmuch as the version of witnesses other than victim Amit Kumar nowhere reflects that the train stopped on account of pulling of chain. Similarly, it is pointed out that the time of incident is also not clear inasmuch as according to victim Amit Kumar, incident took place between 03.00 P.M. to 04.00 P.M. whereas PW 02 Sonu says that it took between 10 to 12 in the night.
The discrepancies coming in the testimony have the potential to falsify the entire case of the prosecution or not? Human memory and narrative are individual attributes. It not only changes from person to person, but from time to time. A single person may describe the same event differently on different occasions. The most important thing is how far the essentials of the narrative are intact. If the essential description of vital and important facts is there then the discrepancies are minor. If the material aspects have been reiterated, then testimony remains worthy.
In the judgment Shyamal Ghosh V. State of West Bengal, AIR 2012 SC 3539, Hon'ble Supreme Court observed:
"47. ..........Minor contradictions, inconsistencies or embellishments of trivial nature which do not affect the core of the prosecution case should not be taken to be a ground to reject the prosecution evidence in its entirety. It is only when such omissions amount to a contradiction Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 5 of 16 creating a serious doubt about the truthfulness or creditworthiness of the witness and other witnesses also make material improvements, on contradictions before the court in order to render the evidence unacceptable, that the courts may not be in a position to safely rely upon such evidence. Serious contradictions and omissions which materially affect the case of the prosecution have to be understood in clear contradistinction to mer marginal variations in the statement of the witnesses. The prior may have effect in law upon the evidentiary value of the prosecution case; however, the latter would not adversely affect the case of the prosecution. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
49. ..........Furthermore, whether such omission, variations or discrepancy is a material contradiction or not is again a question of fact which is to be determined with reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus, cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the court to determine whether it is a contradiction or material contradiction which renders the Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 6 of 16 entire evidence of the witness untrustworthy and affects the case of the prosecution materially.
Reference can also be made to the judgment in Narayan Chetan Ram Chaudhary Vs. State of Maharashtra (2000) 8 SCC 457; Sunil Kumar Shambhu Dayal Gupta Vs. State of Maharashtra (2010) 13 SCC 657; Rajkumr Singh @ Raja Batya Vs. State of Rajasthan (2013) 5 SCC 722.
10. Apart from being repetitive the grounds raised for assailing a very bizarre argument has been put forward which is beyond the record. It is contended on behalf of the appellant that police officials had taken the fingerprints of the appellant, but there is no FSL report and in these circumstances when there is no evidence of connecting the appellant with the cutter etc., despite the police had obtained the fingerprint so this should be viewed against the prosecution and appellant should get benefit inasmuch as the investigation becomes defective. Additionally, it is submitted that so called associates of the appellant were not arrested whereas one of them, according to the prosecution, happens to be a person namely Raju and it is presumably the same person who had been informed about the arrest of the appellant as can be seen from the Arrest Memo Ex. PW1/D. It is further asserted that no recovery was affected, either of the purse or the knife/cutter by the police rather the complainant and his associates from the marriage party had themselves allegedly took possession of the cutter and the purse and produced it and handed over to the police. It is a case of false implication and police should have verified the factum of the offence and the recovery from independent sources. All these goes on to show that the investigation has not been properly carried out and that Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 7 of 16 puts a question mark on the bona fide of the prosecution's case, as a result of which the appellant cannot be held responsible for any recovery either of the purse or the cutter and that takes the case of the prosecution out of arena of culpability of the appellant. The appellant therefore deserves to be acquitted of the charge.
11. The facts are required to be appreciated in the context, situation and the situation giving rise to those facts. The incident took place in a moving train and it cannot be expected that the police would be there in a moving train to apprehend, arrest and affect recovery. If someone has stolen the purse and there is an eye witness to that fact, then if the victim and his associates were able to catch hold of the assailant, then the obvious fall out would be to check whether the stolen articles are there with the assailant or not. Apart from that, if dangerous object is found in the possession of the assailant, then in order to neutralize him and take away the potential danger, the victim and the public persons would take control of all such things. The narrative of the witnesses reflects that the appellant tried to get away with the help of the cutter. This act in itself is enough to raise a strong suspicion about the complicity of the appellant. In the instant case, in order to confirm the culpability and involvement of the appellant, the search was carried out and that resulted into the recovery of the purse of the complainant. In such circumstances, in order to neutralize the appellant, the cutter was also taken from him. It is not expected from the victim or the co passengers that they would permit the appellant to remain a potent threat by leaving the cutter in his possession. As such, in these circumstances, there is no anomaly or defect which can be attributed to the investigation.
12. Similarly, the investigation cannot be treated as Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 8 of 16 defective on the aspect of fingerprint inasmuch as the record reveals that the fingerprint were taken in order to update the crime record and may be to ascertain any previous involvement and nothing beyond. In such circumstances, there was no occasion to sent the fingerprints to FSL as the fingerprints from the cutter were not taken and there was in fact no such need was felt, especially when the appellant was apprehended from the spot itself, leaving no reason to explore the aspect of fingerprint any further. As such, investigation cannot be treated as defective investigation. In fact the police had only reached at the platform and took control of the appellant and the recoveries etc. inasmuch as there was nothing much practically left to investigate upon in the facts and circumstances of the case and in any case, the defective investigation in itself cannot be a reason to disbelieve the case or release the accused. Reference in this context can be made to Dayal Singh v. State of Uttaranchal 2012 VII AD (S.C.) 541 = (2012) 8 SCC 263 while dealing with the cases of omissions and commissions by the investigating officer, and duty of the court in such cases, held as under; (SCC pp. 28083, paras 27
36) "Now, we may advert to the duty of the court in such cases. In Sathi Prasad v. State of U.P., (1972) 3 SCC 613, this Court stated that it is well settled that if the police records become suspect and investigation perfunctory, it becomes the duty of the court to see if the evidence given in court to see if the evidence given in court should be relied upon and such lapses ignored. Noticing the possibility of investigation being designedly defective, this Court in Dhanaj Singh v. State of Punjab, 2004 IV AD (S.C.) 365 = (2004) 3 SCC 654, held: (SCC p. 657, para 5) 'In the case of a defective investigation the court has to be circumspect in evaluating the Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 9 of 16 evidence. But it would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective.' Reference can also be made to Paras Yadav v. State of Bihar, (1999) 2 SCC 126, State of Karnataka v. K. Yarappa Reddy, (1999) 8 SCC 715, Ram Bali v. State of U.P. 2004 VI AD (S.C.) 49 = (2004) 10 SCC 598, Karnel Singh v. State of M.P., (1995) 5 SCC 518, Ram Bali.
13. The case of the prosecution and the witnesses is consistent and truthful on the vital aspects i.e. date, time and place of the incident i.e. Udyan Abha Tufan Express and the time was night, date was 25.04.2015. All the three witnesses, including the victim have correctly stated the date, place of incident being a moving train and time of the incident, except PW5, who was not able to recall the exact time, but the testimony reflects that it was night time and in any case while stating the time of incident as 10 to 12 in the night, he has, in the same breath stated that he is unable to recall the exact time on account of lapse of time. Corroboration of material facts/particulars by independent evidence does mean that the Court should be satisfied that such corroboration is from an independent source/witness establishing the complicity of the accused. Reference can be made to the judgment in Dagdu & Ors. Vs. State of Maharashtra AIR 1977 SC 1579. Therefore, in such circumstances, it can be ignored as two public persons except the victim are there, supporting the case of prosecution on material aspects. The victim and his associates were traveling in connection with the marriage as also stated by all the three public witnesses and so is there testimony Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 10 of 16 with regard to the theft, stone pelting and use of knife/cutter. They are also consistent on the aspect that the appellant was apprehended at the spot and was beaten by the public.
14. The contention that they all were part of the same marriage party, known to each other and were interested witnesses therefore, their testimony can't be relied upon is not acceptable in view of the fact that they were not known to each other prior to the marriage event and while traveling together. Simply because they were travelling together would not render their testimony unbelievable. The test of creditworthiness or acceptability is the guiding factor. If the testimony of a witness is otherwise credible and inspires confidence as is there in the instant case and the credibility not having been shaken in the cross examination, there is no question of casting any doubt upon the version coming on record. In fact most of the times, eye witnesses happen to be family members or close associates and this is especially so when the scene of occurrence is just outside the house of the so call interested witness. Reference in this context can be made to 2002 IX AD (S.C.) = AIR 2003 SC 282 Alamgir Vs. State (NCT, Delhi. On the test of credibility the testimony of PW1, PW2 and PW5 is reliable and acceptable as they only could have been the witnesses being the fellow passengers, apart from the same marriage party.
15. On the most significant contention on behalf of the appellant that there was a fight with regard to a seat has been demolished by the testimony of these three witnesses as all of them have negated this aspect that there was any fight for seat. The testimony of these witnesses PW1, PW2 and PW5 seems credible on this aspect as a whole inasmuch as the possibility of fight for a seat cannot be there inasmuch as the victim was sleeping on seat Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 11 of 16 No. 46, which in a three tier sleeper class, would be in the middle of the coach and would be the top berth. It is not possible for anyone to sit on the top berth. The contention put forth that there was a fight for seat stands negated. Apart from that it is highly improbable that the persons of the marriage party who were not much known to each other except meeting in the marriage function and coming to know each other would pick up a fight with a local person as it is a matter of common knowledge that the local/daily passengers usually travel in a group and create trouble for the other passengers and it is not correct otherway round. So, therefore it is not possible that the victim or his associates would invite trouble by fighting for a seat which in any case was not the case.
16. Additionally, the contention of the appellant stands shattered in view of the fact that no ticket for travel to Ara in Bihar was recovered from his possession rather a ticket from Faridabad to Nizamuddin was found on his person whereas the appellant was not a resident of Faridabad. According to appellant and his brotherin law (jija) who appeared during the appeal, the appellant was to go from Delhi to Ara, then in that case he must have the ticket and some bag/belongings with him and in any case even if the ticket and other belongings, which were allegedly snatched by the victim and his associates, then he could have told the name of the train in which he was planning to travel so that the train timings could have been verified. More so, the appellant has stated that he was simply going to his native without there being any specific purpose whereas his brotherinlaw (jija) told the Court that the appellant was going to participate in the marriage of his sister that is sister of the brotherin law (jija).
17. Then again there are certain aspects which indicate Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 12 of 16 towards the complicity of the appellant in the offence such as not furnishing the correct address as during the investigation it was found that his father is living in Delhi whereas he has furnished the address in Ara, Bihar whereas it was found that the family of the appellant is not living in the native for the last 25 years as has been reported on the verification by the police. Appellant has chosen to suppress this fact. He has also furnished an address, at the later stage of Faridabad, which too on verification was found to be incorrect. All these facts and other evidences on record go on to shown that the case of the prosecution set up against the appellant is correct, leaving out any possibility of false implication, notwithstanding the so called inconsistencies and discrepancies.
18. Whether the evidence on record establishes that appellant is liable to be held guilty under section 394 IPC or not, inasmuch as it has been argued by the Counsel for the appellant that knife/cutter was not used in the offence as nobody was injured by the appellant with the knife/cutter. The victim had refused to go for medical examination although he has stated that he sustained minor injuries on his knees due to stone pelting. Stone was not pelted by the appellant, thus it is evident that no injury was caused to the victim by the appellant, therefore appellant cannot be held responsible for offence under section 394 IPC inasmuch as it requires injury to be there during the process of robbery. As per section 390 IPC, the act of the accused by removing the purse and trying to get away with the stolen purse with the help of a knife/cutter brings the acts of the appellant into the definition of Robbery as the definition includes not only that hurt or wrongful restraint or fear of death or instant hurt or wrongful restraint could be there, but even an attempt to cause any of these things would also constitute the offence of Robbery. In the Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 13 of 16 instant case, the appellant had not only stolen the purse, but in order to get away with the same, used knife/cutter to threaten the victim and others of instant hurt or restraint, therefore the offence of robbery stands committed.
19. Appellant has been convicted under section 394 IPC on the premises that the associates of the appellant had caused hurt to the victim by stone pelting, thus the ingredients of section 394 IPC have been met with. Apparently, the finding seem to be correct, but then two factors put a question mark on this, the first is that the appellant did not go for his medical examination at all and there is a different version so far as the injuries with the stone pelting is concerned inasmuch as PW2 stated that a minor girl child had sustained injuries due to pelting of stones whereas he has not stated about any injuries sustained by the victim Amit Kumar and PW5 is silent about the injury either to the victim or the minor girl child either by stone or cutter and even otherwise. Whereas, it appears from the circumstances that the possibility of injury to someone with the cutter is greater than as compared to the injury by stone pelting, therefore this aspect gets clouded. As such, the appellant cannot be held responsible for the offence under section 394 IPC rather his acts bring him within the scope and ambit of robbery only and accordingly the impugned judgment is modified to that extent and the appellant is held accountable for offence under section 392 IPC and convicted thereof.
20. As regards, order on sentence, it is submitted by Counsel for appellant that he is a poor man and is the only bread earner of his family consisting his old aged parents, wife and one child. The appellant is a young man, having his entire life ahead. The antecedents of the appellant are clean, therefore he deserve at least Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 14 of 16 one opportunity to mend his ways. The imprisonment would make a negative impact on the mindset of the appellant being around with the hardcore criminals in the jail, therefore a lenient view is proposed for the appellant.
21. While considering the sentence to be awarded to a convict, the aggravating and mitigating factors are to be weighed before arriving at any conclusion. The nature and manner in which the crime has been committed, the impact of the same on the victim and possibly on the society, the state of the victims being defenceless or otherwise, the crime was provoked or unprovoked, premeditated or was committed in the spur of moment are some of the factors which should be considered and are the aggravating factors and in a way mitigating too if viewed differently whereas the age of the accused possibility of reformation and rehabilitation, the antecedents of the offender together with the socio economic and educational background of the convict and other similar attending circumstances are to be considered while awarding a sentence. When the sentence awarded to the appellant is considered on the aforesaid parameters then it emerges that there are various factors which are aggravating such as the offence being premeditated and planned one, the victims were vulnerable while traveling in a running train, on the other hand, the convict/appellant being a young man having clean antecedents and recently married having family responsibilities are some of the factors which weigh in favour of the appellant. Striking a balance amongst these conflicting factors would lead to an appropriate sentence.
22. The appellant has been sentenced to undergo RI for a period of 2 years, but then it was U/s 394 IPC and as now the conviction U/s 394 IPC stands modified to a conviction U/s 392 IPC, Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 15 of 16 therefore, a proportionate reduction is, seemingly, required to be there. As such, considering the entire gamut of facts and circumstances, especially that the appellant is a young man and may have gone wayward on account of lack of parental control or bad company, therefore, he deserves to be dealt with a soft hand, but then soft hand cannot be such which may fail to make the appellant understand that he has done something which is not only illegal, but highly impermissible in a civilized society. As such the sentence awarded to the appellant stands modified and it is ordered that he shall undergo RI for a period of 1 year and shall deposit a sum of Rs. 20,000/ as fine in default of which he shall further undergo SI for a period of 6 months under section 392/34 IPC. Any part of the fine already deposited shall be given due adjustment.
23. With these observations and directions, the criminal appeal stands disposed off.
24. A copy of this judgment alongwith Trial Court record be sent back. Copy of the judgment be provided to the appellant and another be sent to the prison where he is lodged and undergoing sentence.
25. Appeal file be consigned to record room.
Digitally signed by VIMAL VIMAL KUMAR KUMAR YADAV
Announced in the open court YADAV Date: 2018.11.01 14:21:34
+0530
today, i.e. 30.10.2018 (Vimal Kumar Yadav)
Special Judge (PC Act), CBI08
Central District, THC, Delhi
Crl. Appeal No. 385/18 Priyanshu Vs. The State Page No. 16 of 16