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2013 DIGILAW 983 (DEL)

Naresh v. State of Delhi

2013-05-20

S.P.GARG

body2013
JUDGMENT : S.P.Garg, J. 1. The appellants- Naresh (A-1) and Mukesh (A-2) challenge judgment dated 29.01.1998 in Sessions Case No. 21/1997 arising out of FIR No. 562/1996 PS Seelampur by which they were held guilty for committing offence punishable under Section 393/34 IPC read with Section 398 IPC. They were convicted under Section 25 Arms Act also. Vide order dated 29.01.1998, sentence to under RI for seven years was awarded. 2. Allegations against Naresh (A-1), Mukesh (A-2) and Rakesh were that on 20.09.1996 at about 04.10 A.M. G.T.Road, Near Hanuman Mandir, they attempted to rob complainant-Nandu Mehtu. They were armed with deadly weapons at that time. All the three assailants were apprehended and various weapons were recovered from their possession then and there. During investigation, statements of the witnesses conversant with the facts were recorded. All the three were duly charged and brought to Trial. The prosecution examined six witnesses. In their 313 statements, A-1, A-2 and Rakesh pleaded false implication. On appreciating the evidence and considering the rival contentions of the parties, the Trial Court, by the impugned judgment, held all of them perpetrators of the crime and sentenced accordingly. Being aggrieved, A-1 and A-2 have preferred the appeal. It is relevant to note that Rakesh had also preferred the appeal against the impugned judgment and it was dismissed. 3. Learned counsel for the appellants urged that the Trial Court did not appreciate the evidence in its true and proper perspective and fell into grave error in relying upon the testimony of sole witness PW-1 (Nandu Mehtu) without corroboration. The complainant was unable to specifically depose as to which of the assailants used which weapon. No independent public witness was associated at any stage of the investigation. The complainant was not medically examined. Counsel further prayed to modify sentence as the appellants were young boys at the time of incident. Learned APP for the State urged that there are no valid reasons to discard the cogent testimony of the victim who had no prior animosity with the assailants. 4. Star witness PW-1 (Nandu Mehtu) is the victim. He was driving TSR on 20.09.1996. First Information Report was lodged by him and in his statement (Ex.PW-1/A), he disclosed to the police that at about 04.00 A.M. when he was going on G.T.Road after dropping a passenger at Seelampur, the three assailants/boys signalled him to stop. 4. Star witness PW-1 (Nandu Mehtu) is the victim. He was driving TSR on 20.09.1996. First Information Report was lodged by him and in his statement (Ex.PW-1/A), he disclosed to the police that at about 04.00 A.M. when he was going on G.T.Road after dropping a passenger at Seelampur, the three assailants/boys signalled him to stop. When he stopped the TSR, they sat in the TSR and directed him to take them to ISBT. On the way to ISBT, he was forced to take the route via Iron Bridge. After some time, the assailants who were armed with ‘pharsa’ and ‘daggers’ asked him to handover whatever he had. One of the assailants caught hold him by collar and other started searching his pocket. When he raised alarm, the police reached the spot and apprehended the assailants. The weapons were recovered from their possession. The incident took place at 04.00 A.M. The Investigating Officer sent rukka at 06.00 A.M. to lodge First Information Report. There was no delay in getting the case registered. While appearing as PW-1, the victim proved the version given to the police at the first instance (Ex.PW-1/A) without any variation. He identified the three assailants and attributed specific role to each of them. He elaborated that A-1 had caught hold of his shirt collar from behind and placed ‘pharsa’ on his neck, A-2 put a ‘kulhari’ under his right armpit and Rakesh had put a double edged ‘dagger’ on his abdomen. He lost control over TSR and it turned turtle. When he raised alarm, the police reached the spot and apprehended the assailants. He also proved memos by which weapons were recovered from the assailants’ possession. In the cross-examination, he clarified that he had taken a passenger from Ajmeri Gate to Seelampur before the occurrence. He denied the suggestion that quarrel took place with the assailants over charging Rs.100 as fare. He further denied the suggestion that he hit Rakesh with a screw driver on his leg. He claimed that he had sustained injuries but was not medically examined. He fairly admitted that one Vijay, another TSR driver, had reached the Police Station. He stated that A-1 & A-2 were wearing lining blue shirts. Rakesh were wearing half T-shirt of white colour. Despite lengthy cross-examination, the appellants were not able to elicit any material discrepancies or contradictions to disbelieve him. He fairly admitted that one Vijay, another TSR driver, had reached the Police Station. He stated that A-1 & A-2 were wearing lining blue shirts. Rakesh were wearing half T-shirt of white colour. Despite lengthy cross-examination, the appellants were not able to elicit any material discrepancies or contradictions to disbelieve him. No ulterior motive was attributed to the victim for falsely implicating them. Apparently, the victim was not acquainted with the assailants and did not nurture grudge against them to falsely name them as offenders. The assailants were apprehended at the spot. They did not deny their presence at the spot that time. Specific suggestion was put to the complainant that the assailants were to go to Vaishno Devi and had boarded TSR to go to ISBT. The accused persons however, did not lead any positive evidence to substantiate that on that day they intended to go to Vaishno Devi. They did not elaborate as to by which mode they were to go to Vaishno Devi or if they had reserved tickets for that. They did not examine any family member in their defence to establish that they intended to pay a visit to Vaishno Devi. A paltry sum/cash was recovered from their possession which was not sufficient to meet their expenses to go to Vaishno Devi. Moreover, the accused persons had no reasons to have in their possession deadly weapons while going to a religious place. The defence deserves outright rejection. There is no justifiable explanation as to what the accused persons were doing at odd hours at the place of occurrence with weapons. PW-1 (Nandu Mehtu), a TSR driver had no axe to grind to falsely implicate the accused persons. In the absence of material discrepancies or ulterior motive, I find no reasons to disbelieve the victim’s statement. PW-3 (HC Sunil Kumar) and PW-5 (SI Ram Avtar) have corroborated the complainant’s version regarding recovery of the weapons from their possession. Again, their testimonies on material facts remained unchallenged. The lapses/discrepancies highlighted by the counsel are not material. 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 prosecution’s case, may not prompt the Court to reject the evidence in its entirety. Again, their testimonies on material facts remained unchallenged. The lapses/discrepancies highlighted by the counsel are not material. 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 prosecution’s case, may not prompt the Court to reject the evidence in its entirety. Irrelevant details which do not in any way corrode the credibility of a witness cannot be labelled as omissions or contradictions. An undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witnesses. Minor discrepancies are bound to occur in the statements of witnesses. Non-examination of independent public witness per-se is of no consequence. The Court can convict an accused on the statement of a sole witness. The condition precedent to such an order is that the statement of such witness should satisfy the legal parameters i.e. it is trustworthy, cogent and corroborated by other evidence produced by the prosecution, oral or documentary. It is only when the Court finds that single eyewitness is a wholly unreliable witness, his testimony can be discarded in toto. I find no valid reasons to deviate from the findings of conviction. 5. The appellants have been sentenced to undergo RI for seven years. It is the minimum sentence prescribed under Section 398 IPC. The appellants were armed with deadly weapons at the time of attempt to commit robbery. Not only they were armed with weapons, they used them to put fear in the mind of the complainant to part with the money. Similar prayer to reduce the sentence was made earlier. Order dated 16.07.2009 records appellants’ submission that they would not press the appeal on merits and the quantum of sentence be reduced to the period already undergone. Vide order dated 09.11.2009, the prayer was declined in view of the language of the Section 398 of the IPC and it was not possible to reduce the sentence lesser than the minimum prescribed. 6. In the light of above discussion, the appeal filed by the appellants lacks merits and is dismissed. The sentence and conviction of the appellants are maintained. 7. The appellants are directed to surrender and serve the remainder of their sentence. For this purpose, they shall appear before the Trial Court on 27th May, 2013. 6. In the light of above discussion, the appeal filed by the appellants lacks merits and is dismissed. The sentence and conviction of the appellants are maintained. 7. The appellants are directed to surrender and serve the remainder of their sentence. For this purpose, they shall appear before the Trial Court on 27th May, 2013. The Registry shall transmit the Trial Court records forthwith to ensure compliance with the judgment.