Nitin Kumar v. The State (Nct of Delhi)

$-25 *IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 100912010 % NITIN KUMAR Throush: Decided on 10th December,2Ol2 ..... Appellant Mr. Anup Bhambhani and Ms. Nisha Bhambhani. Advs. t rt Versus THE STATE (NCT OF DELHI) ..... Respondent Through : Ms. Fizani Husain, APP CORAM: HON'BLE MR. JUSTICE A.K. PATHAK For order see Crl.A.No.l008/2010. DECEMBER L0, 2012 ga cRl M I NAL APPEAL 1009 / 2010 4s $-24 *IN THE HIGH COUTTT OF DELHI AT NEW DELHI cRL. A. L009/2010 NITIN KUMAR ..... Appellant 'fhrough: Mr. Anup Bhambhani and Ms. Nisha Bharnbhani, Advs. CRL.A. 1008/2010 ' Decided on 1Otr' Decemb er,2012 VIPIN KUMAR .."' APPellant Through : Mr. Bhupesh Narula, Adv. versus lHE STATE OF THE NCT OF DELIil ..... Respondent l.luough : Ms. Fizani Husain, APP AND A Versus THE STATE (NCT OF DELHI) ..... Respondetrt Through : Ms. Fizani Husain, APP CORAM: HON'BLE MR. JUSTICE A.K. PATIIAK A.K. PATIIAK. J.(ORAI,)

¶1Appellants have been convicted under Sections 39213971394 \J ' IPC; sentenced to undergo rigorous imprisonment for five years with fine of T2,000/- (Rupees Two Thousand only) each under Sections 392134IPC and in default of payment of fine to undergo cRl M I NAL APP EAL 1008 /2010 Page 1 of L9 f^ simple irnprisonrnent for one month; sentenced to undergo rigorous imprisonrnent for seveu years with fine of {2,000f (Rupees Two Thousand Only) each under Sections 3g7l34IPC and in default of payment of fine to undergo simple imprisonrnent for one month; sentenced to undergo rigorous imprisoruncnt for five years with fine of {2,000/- (Rupees Two Thousand Only) each under Sections 394134IPC and in default of payrnent of fine to undergo simple imprisonrnent for one month. Benefit of Section 428 Cr.P.C. has also been accorded to the appellants.

¶2Aggrieved by their conviction as also the sentences handed down to them by trial court, appellants have preferred the above noted appeals, which have arisen liom the same judgment, indident and the FIR and are disposcd of together. . i

¶3Prosecution story as unfolded is that on 21't July, 2007 PWl IGran Devi was present in her house along with her daughter'aged about ten months at first floor of House No. H-59, Harkesh Nagar, Oldrla Industrial Area, New Delhi, when at about 2:30 PM appellants Nitin Kumar and Vipin Kuma.r (r,vhose llames were disclosed after their apprehension) along with their third cRr M rNAL APPEAL 1008/2010 Page 2 of 1.9 \" accoluplice came there and asked as to whether any room was avaiiable on rent; as she was conversing with them, appellant Nitin Kurnar took out a katta, appellant Vipin l(umar took out an open knife and their third accornplice took out a chhura and forcibly fr entered in the room and bolted the door; appellant Nitin Kumar kept katta on her neck and threatened her that in case she raised alarm, she would be killed. Appellant Vipin I(umar put the knife on the neck of her child and said that she should handover all the valuables to thern, failing which child r,vould be killed. Vipin Kumar forcibly relnoved bangle and silver anklet frbm the person of child and when I(iran Devi resisted he caused injuries on her hand. Nitin I(umar forciblv rernoved the eold chain from the neck of l(ran. Third u.ro-pti.e of the upp.,lunr, took out the purse and a gold chain from the attachy of her husband. In the meanwhile, her husband (iirish Nandan (PW6) an'ived there, got door opcned and raised alarm. Landlord Swaroop Singh and their neighbour Vinod Kumar arived there and tried to apprehend the appellants at which appellant Vipin Kurnar caused injuries on his left hand. Vinod with the help of trvo policernen, narnely, CRI M I NAL APPEAL ].008/2010 J n J Constable Balbir and Constable Anil, who were present near the spot, apprehended the appellants while their third accornplice succeeded in escaping after throwing the chhura. Anklets, bangles and knife were recovered from Vipin I(umar; country made pistol and gold chain were recovered from Nitin Kumar.

¶4Information was sent to Police Post Okhla Industrial Area. pursuant whereof DD No. 19 was recorded and handed over to FIC Bijender Singh, who along with Constable Onkar Singh reached the spot. He prepared sketches of knife, chhura and country made pistol in the presence oflc.un Devi, Girish Nandan and vinocl I(umar. Katta recovered fiom Nitin, was found loaded with live cartridges. Its sketch was prepared. Anklet, bangles and knife were recovered fiom the appellant Vipin. All the recovered articles were separately sealed and taken in possession by I-Iead Constable Bijender Singh. Llead Constable Bijender Singh recorded starement of I(iran Devi and prepared ruld<a and sent the same to police station per hand constable onkar for registration of FII{. Accoldingly, FII{ was registered. In the meanwhile, SI Manoj Kumar reached the spot on receiving information about the cRr M I NAL APPEAL 1008/2010 IJ 4- ) incident and took over further investigation. He prepared site plan Ex. PWl6/4., anested the.appellants, sent Kiran Devi and Vinod I(umar to hospital for rnedical examination. Katta was sent to FSL and as per the report of FSL it was found in working condition.

¶5After conrpletion Jr rnu.rtigation, charge-sheet was filed in the Court of Metropolitan Magistrate, who after completing the fonnalities comrnitted the cdse to Sessions Court, siuce oflence under Section 397 IPC is exclusively triable by the Sessious Court. Charges uncler Sections 3923941397134 were frarned against the appellants separately on 2l't February, 2008 to which they pleaded not guilty and claimed trial.

¶6Prosecution exarnined 17 witnesses in all in order to prove its case. Material witnesses in this case are PWl Kiran Devi, her husband PW6 Girish Nandan, PW4 Vinod Kutnar, PW7 Swaroop Singh, PW2 Constable Balbir Singh, PW12 HC Bijender Singh and PW16 SI Manoj Kumar. All these r,vitnesses had an occasion to see the appellants and they are material witnesses. Other witncsses are formal in nature. CRI M I NAL APPEAL 1OO8/2010 4: A 7, Trial court has found the testinonies of material witnesses, that is, PW1 l(iran Devi, PW6 Girish Nandan, PW4 Vinod I(umar, PW7 Swaroop Singh, PW2 Constable Balbir Singh, I'W12 FIC Bijender Singh and PW16 SI Manoj Kumar to be trustwortlry and reliable and has concluded that the appellants had comrnitted robbery in the house of PWl Kiran Devi and PW6 Girish Nandan; rvhile cornrnitting robbery appellants not only caused injuries on the persons of PWl Kiran Devi and PW4 Vinod I(umar by using katta and knife but also in making an attempt to escape from the spot after committing the robbery. MLCs of PW1 Kiran Devi and PW4 Vinod Kumar coroborated their version that they had sustained injuries at the hands of appellants. As regards recovery of anklet, bangles and gold chain is concerned, these have also been taken as a corroborative piece of evidence.

¶8I have heard learned counsels as well as learned APP and have perused trial court record carefully. I am of the view that the trial court has rightly convicted appellants under the aforesaid provisions by accepting the statements of aforesaid witnesses as trustworlhy and reliable. cRrM I NAL APPEAL 1008/2010 \ql W,^ \l g. PW1 Kiran Devi has categorically deposed that on 21't July, 2OO7 at about 2:30 PM she was present in her house along with her inlant dauglrter. namely, Anshu. Appellarrts along with their third accomplice came there and enquired as to rvhether any room was lying vacant. She replied that one room was available for letting out upstairs. Appellants stayed there while their third acoomplice went upstairs. Thereafler, Nitin Kumar took out a chhura. which he had coucealed underneath his shirt while Vipin l(umar took out a knife; thcy entered inside the room where she was sitting and boltcd the door fi'om inside; they tll'eatened her that in case she ' raised alarm she would be killed; Vipin I(urnar took the infant child in his possession and pointed his weapon towards the child and askecl her to haudover the valuables; Nitin I(urnar also pointed a country rnade pistol towards her. They also took out a pul'se containing {5,000/- (Rupees Five'Ihousand Only) as r.vell as one pair of silver anklet, one gold ring, one gold chain and.a pair of gold earrings fi'orn the artachy. Silver anklets and silvcr bracelet were also retnoved fi'om'the person of child. In the meanvrhile, her husband arrived there. Appellants tried to assault her trusband cRr Mr NAL APPEAL 1008/2010 A \{ ,A when she gave a push to Nitin I{umar. She also raised alann at r,vhich landlord Swaroop Chand and his brother Manoj Chand along with one police official arrived there. Many people collected there, out of which o1le person from the locality, namely, Vinod I{umar tried to save her husband and sustained injuries in the process. Nitin l(umar and Vipin I(umar were apprehended at the spot; \.vhereas their third-accomplice succeeded in running away. Police arrived there aud took search of the appellants and recovered one pair of anklets, bangle and one gold chain besides the weapons of offence. She has correctly identified all these articles in Court. She has also identified her signatures on her statement recorded by the police under Section 154 Cr.P.C. (Ex. PW1/A). She has also identified her signatures on Seizure lnelno of anklet and bangles (Ex. PWI/B) and seizure menlo of gold chain (Ex. PW1/C). She has also identified her signatures on the sketches of knife, dagger and katta being Ex. PW1/D to Ex. PWI/F. She has also identified her signatures on the seizure firemos of lveapons of offcnce, that is, Ex. PW1/G to Ex. PWI/I. Her testimony on rnaterial points has remained unshattered in her cross examination and has rightly becn cRIMtNAL APPEAL 1008/2010 Y\ "\ accepted by the trial court, inasmuch as it has been coroborated by other witnesses.

¶10PW6 has deposed that on 21't July,2007 when he retumed home he found appellants present there. They started manhandling hirn in order to escape. However, they were apprehended by Vinod Kumar and Swaroop along with weapons of off'ence and robbed property, that is, silver anklet, bangle and gold ohain. I-Ie has identified his signatutes on recovery memos, sketches etc. His Statement on material points has also remained unshattered and no discrepancy therein could be pointed otrt by the learned counsels. PW7 Swaroop Singh is the landlord. FIe has f'ully corroboraled thc .above rvitnesses regarding apprehension of appellants at the spot' He has deposed that at about 2:45 PM or 3:00 PM orr 21'' July, 2007 he was present in his house when he heard noises coming fi'om the house of his tenant, PW6 Girish Nandan. FIe reacherl there and saw appellants present there. They were apprchendecl by PW4 Vinod Kutnar, PW2 Constable Balbir and Constable Anil. Vipin was haviug a butlondar open knife in his right hand; whereas Nitin was having a katta in his hand. PW4 Vinod Kunrar has CRI M I NAL APPEAL ].008/20'LO wo corroborated the other witnesses. He has deposed that he was working in Delhi Police. On the date of incident he was on leave and present in his house. At about 2:45 PM he heard shouts of "bachao-bachao" from his neighbouring house of Shri Manoj Kumar and shri swaroop singh, that is, H-59, Harkesh Nagar, New Delhi. He immediately went there when he was told by Girish Nandan and Kiran Devi that three boys had robbed their gold and silver jewelry on the point of knife and had gone towards the market. He chased them and apprehended them with the help of Constable Balbir and Constable Anil, who were coming fi'om the opposite direction. FIe has also deposed about the recovery of knife, pistol and robbed articles, that is, silver anklets, bracelet and gold chain. I'Ie has also iclentified his signatures on thc rccovery memos, sketches of rveapons of offence etc. MLCs Ex. PW4/A a1d Ex. PW5/A of Vinod I(umar and Kiran Devi support their versions that the appellants had caused injuries on their person during the incidcnt and rnaking their escape good. MLC of Vinod I(umar indicates that he had sustained two injuries on his left hand betweeu thumb and index finger while PWl I(ran Devi had cRr M I NAL APPEAL 1008/2010 sustained injuries on her right wrist and rniddle finger of right hancl.. PW 2 constable Balbir has also deposed in line with aforesaid witnesses as regards apprehension of appellants. He has deposed that he along with Constable Anil was on patrolling duty in the area of Flarkesh Nagar on 21't luly, 2007 r,vhen irt about 2.45 PM, he heard noises coming fiom H-59 (1" Floor), Harkesh Nagar. He, with the help of Constable Anil and Constable Vinod, apprehended Nitin and Vipin while their third accornplice Sanjay strcceecled in escaping. - lle has also talked about recovery of lyeapolts of offe.nce and the robbed articles inasmuch as he has identifiecl his signatures on the sketches, recovery memoS ancl affest rncmos.

¶11Discrepancies as pointed by the learned counsels for the appellants in the statements of PW4 vis-d-vis PWl and PW6 are minor iu trature artd may have crept in due to lapse of tirne between the clccurfence of tire incident and recording of their statements. Statements of the witnesses were recorded after two )'ears of the , incident. It is not the case of prosecution that appellants were apprehended in the midst of robbery. Rather, case is that they were CRI MI NAL APPEAL ].008/2010 Page L1 of L9 \B (r apprehencled when they were making an atternpt to escape frorn the spot; if that is so, their apprehension at a distance of 30-40 metcrs away fiotn the spot will not make much differeuce, illore so, when all the witnesses have stated in unison that the appellatrls were apprehencled imme<liately after the incident, while they were making an atternpt to escape. That 'apaft, statement of PW 4 as against consistent statements of other relevant PWs will not be sufficient to discreclit whole prosecution story only on this point. Fact rernains that appellalts were apprehended while they were atternpting to escape from the spot. Not only the weapons of otfeuce used in committing robbery but the robbed articles were recovered ancl seized at the spot, vide seizure memos iu the presence of aforesaid witnesses, also strengthens the statements of abovementioned witnesses.

¶12Learned counsel for the appellant has vehemently contended that PW1 is not a trustu,orth), and reliable witness and her testimony has been wrongly accepted by the trial court. Her deposition in court is inconsistent with rvhat she had stated in the FII{. Wliile deposing in Court she has stated that three boys catne cRr Mr NAL APPEAL 1008/2010 Page L2 of 19 6r 'rside the house and asked her as to whether any rooln was available for letting out. On her saying that oue room was available upstairs, Irlitin and Vipin stayed downstairs while third accusecl went upstairs. Thereafter, Nitin and Vipin committed robbery. I-Iowever, in her statement Ex. PWI/A sl-re had stated that all tlre tluee boys came at about 2:30 pm and aslied her as to u4rethef ally room was lying vacant. Immediately therealler, all the three boys, who were anned with desi katta and knife, entered into the room and bolted the salne from inside and thereafter, committed robbery. She had also dssigned role to Sanju of taking husband's purse containing Rs.500f and one gold chain frorl his briefcase. However, r,vhile deposing in Court she has not assigned any role to the third accornplice; instead she has deposed that accused persons opened the briefcase and took out Rs.500/- fron irer husbancl's purse besides silver anklet, one ring, one gold chain encl a pair of earrings. lt is further contended that besides taking an iriconsistent stand str. atsl improved her version with regard to the robbed arlicles. I do not find much force in the contention of learned counsel for the appellants. f-he discrepancies as pointed Page L3 of L9 CRIM INAL APPEAL ].OO8i2O1-O J\ ffi"t out by the learned counsel are minor in nature and there is probabiiity of such discrepancies appearing in the statement of PW1 since the Same was recorded in cout't after more than two years of the itrcident. Memory of a person may fade wiih the passage of tine and for this reason a person may waiver in narrating the incident on certain points which by itsef would not be sufficient to discard the testimony of witness as a rvhole' As regards the roles of appellants, PW1 Kiran has been consistent and mereiy because she has remained silent about third. accused appellants cannot derive any benefit therefiorn since appellants had been apprehended at the spot itself, inasmuch as robbed articles \^,erc recovered from tltem. Statement of a rvitness has to be read as a rvh.ole. A holistic reading of statement of PWl clearly indicates that she had stuck to her statement as regards rolcs played by the appellants are concerned. salne are consistent. Learued colulsel for the appellants has further contended that the statetrients cf witnesses are cliscrepant as regards the apprehension of appellants. As per PWI I(iran, PW2 Const. I3albir Singh, PW6 Girish . Nandan and PW7 Swaroop Singh, appellants were cRl M I NAL APPEAI-1008/2010 &{,yt' f\ apprehended at the spot itself; whereas PW4 Vinod I(urnar has stated that when he reached the first floor of House No. 59, Harkesh Nagar, New Delhi PW6 Girish Nandan and his wife PWl I(ran and Swaroop Chand, who were already present there, told hirn that the three boys had committed robbery and had gone towarcls the market road. He chased them. Const. Anil and Const. Balbir were coming oorn ,n" opposite side. Appellants were apprehendcd while third accomplice succeeded in runtling away after tluowing a big chura. In his cross exatnitlation, he stated that appellants were apprehended at a distance of about 30140 meters away frorn the place of occunence. Thus, it is contended that there is serious cloubt about appellants having been apprehended at the spot. I clo lOt find much force in this conleution either. PW1, PW2, PW6 and PW7 have deposed that appellants escaped by showing weapon of offence but were apprehended at the spot. PW4 has deposed about appellants having been apprehended rvithin 30140 rneters fiom the spot which distance is not much. Since the appellants were making an attempt to escape there is every possibility of their having travelled 30140 meters away from CRI M I NAL APPEAL 1OO8/2010 Page 15 of L9 Nr) n appellants were successful in the spot. It is not the case-that the appe escaping and were apprehended later on. While appellants were committing robbery husband of PWl arrived there and raised alarm which attracted the attention of PW4 and PW7 who would have taken sotlte time to arrive at the spot and in the tleanwhile, appeliants coulcl have moved.a little away fron the spot before they were apprehended. I1 these facts, if other witnesses have stated that appellants were apprehended at the spot and oue witness has stated that appellants were apprehended at a distance of about 30140 rneters away from the spot, it will not tnake much difference as it is a matter of perception of an individual about the "spot". However, the fact remains that appellants were apprehended and robbed articles.were rccovered from them; on these points all thc witnesses have deposed in line with each other which shows the appellants' complicrty in the commission of crime. Appellants cannot get away by creating confusion on this trivial point. Such minor abrasions have to be ignored and the statements of the witnesses have to be read as a whole, brushing aside ninor and trivial discrepancies. CRI M I NAL APPEAL TOOS l2OtO Y^ n

¶13In Vijay @ Chinee versus State of Madhya Pradesh 2010 (8) UJ SC 3727, Supremi Court has held that even if there ars solne omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting the evidence to separate truth fiom untruth, exaggeration and improvements, the Court comss to a conclusign as to whether the residuary evidence is sufficient to convict the accused' Thus, an undue importance shoulcl not be attached omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution witness' As the mental capabilities of a hutnan being cannot be expected to be attuned to absorb all the details, minor discrepaucies are bound to occur in the statements of witnesses. In State of U.P' versus M'K' Antho*y AIR 1985 SC 48,iupreme Court has held as under: "While appreciating the evidence of eI witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is forrned, it is undoubtedly nccessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, draw-backs and infinnities pointed out in the evidence as a whole and evaluate them to find out r,vhether it is ' cRTMtNAL APPEAL 1008/20L0 Wr /\' t\ . against the general tenor of the evidence girr"tt by the witness and whether the earlier evaluation of .the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taliing sentences torn out of context here or there from the evidence, attaching importance to some technical enor committed by the investigating officer not going to the root of the-matter would not ordinarily permit rejection of thc evidence as a whole. If the court before whom the r,vitness gives evidence had the opportunity to forrn thc opinion about the general teuor of evidence 'given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and forriridable it would not be proper to re.iect the evideuce on the ground of minor variations or infirmities in the tnatter of trivial details. Even honest and truthful #itnesses may differ in some cletails unrslated to the main incident because ' power of observation, retention and reproduction differ r.vith individuals' Cross examiuatiou is an unequal duel between a rustic and refined lawYer".

¶14In State versus Saravanan and Aru'. AiIt 2009 SC 152, Supreme Court has held that while appreciating the evidence of a witness, miuor discrepaucies on irivial matters without affecting the cOre Of the prosecutiott case, ought trot ttl prompt the court to CRI MINAL APPEAL 1OO8/2010 Page L8 of 19 w A f* reject evicience in its entirety. Further, on the general tenor of the evidence give[ by the witness, the trial court upon appreciation of evidence fonls an opinion about the credibility thereof; in normal circurnstances the appellate court would not be justified to review it once again without justifiable reasons. It is the totality of the situation which has to be taken note of. Difference in some minor detail, which does not otherwise affect the core of the prosecutiou case, even if present, itself would not prompt the court to reject the evidence on minor variations and discrepattcies.

¶15In my view, the finding retumed by the trial court is in consonance with the evidence led by, the prosecution and appellants have been rightly convicted. As regards sentences awarded to the appellanls, the satle are also proper and proportionate to the crime committed by the appellants and requires no interf-erence. CRI M I NAL APPEAL 1OO8/20].0

¶16For the foregoing reasons, both the appea\ are dismissed. \) a.klparHAK, J. DECEMBER 10, 2012 OA