Anil @ Raju @ Anu v. State

1. Vide this common judgment, I shall dispose of Crl. Appeals bearing No.75/2012,830/2012 and 817/2013 filed by Ved Pal,Anil@ Raju @ Anu and Shailesh Pandey respectively challenging the impugned judgment dated 8'*^ November,2011 vide which they were convicted for offence u/s 395 r/w Section 397 IPG and order on sentence dated 14"^ November,2011 vide which they were sentenced to undergo rigorous imprisonment for 14 years with fine ofRs.2000/each in default to undergo six months rigorous imprisomnent in Sessions Case No. 48/2010 arising out of FIR No. 96/2010 u/s 395/398/397/307/186/353 IPG & 25/27/54/59 Arms Act registered with PS Mahendra Park.

2. Prosecution case, briefly stated is that on 26"^ April, 2010,FIG Ved Parkash received a secret information that some persons while armed will rob a merchant at Mukarba Ghowk and said merchant was coming from Hissar to Azadpur Mandi having cash. HG Ved Parkash passed on this information to SI Madan Mohan who further passed on the said infonnation to Inspector Jawahar Singh-SHO of Police Station Mahendra Park.,Inspector Jawahar Singh after discussing the matter with AGP Hari Darshan, directed SI Madan Mohan to form a raiding party. Thereafter a raiding party was formed consisting of CrLA.Nos.75/2012,830/2012and 817/2013 Page2of18 ACP Sh. Hari Darshan, SHO Inspector Jawahar Singh, SI Madan Mohan, PSI Deepak Dahiya, PSI Ranbir, PSI Ritesh Raj, HC Ved Prakash, who all were in uniform and HC Chandraveer, HC Anil Kumar, Ct. Anil Kumar, Ct. Baljeet, Ct. Vilas and Ct. Azhar Anwar Zaidi, who were in civil clothes. Raiding party reached at Mukarba Chowk Flyover and took their position. At about 10:45 am, one private bus ofKrishna Bus Service stopped and Ashok Kumar having a gray colour briefcase in his right hand de-boarded the bus. Accused persons attempted to rob Ashok Kumar and in that robbery,they used the country made pistol. When the police party tried to apprehend the accused persons,accused Shailesh Pandit fired on the police party but they all were overpowered by the raiding team. Two persons succeeded in fleeing from the spot in Maruti car. In the search ofthe accused persons, arms and ammunitions were recovered. Sketches of pistols and cartridges were prepared and same were sealed after putting them in pullandas. Statement of the complainant was recorded. They were arrested. After completion of investigation, charge sheet againstthe accused was filed.

3. Initially vide order dated 13"' October,2010,the accused were charged for offence u/s 392 r/w Section 34 IPG, 397 IPG, 186/353/307/34 IPG. Besides that accused Shailesh @ Pandit and Anil @ Raju were also charged for offence u/s 27 Arms Act and accused Ved Pal was charged for offence u/s 25 Arms Act. Subsequently, vide order dated 2"" September, 2011, all the accused were also charged for offence punishable u/s 395 IPG. All the accused pleaded not guilty to the charge and claimed trial. CrLA.Nos.75/2012,830/2012and817/2013 Page3of18 'V

4. Prosecution in all examined 11 witnesses in order to bring home the guilt ofthe accused. All the incriminating evidence was put to all the accused while recording their statements u/s 313 Cr.P.C. Accused Shailesh Pandey pleaded that he had no role to play in the alleged incident in any manner and he was not present at the spot. He was kept in wrongful confinement at police station prior to the alleged incident and later on was falsely implicated in this case at the instance ofACP examined as PW[6] who had ruined his life by implicating him in false cases since the time he became the SHO ofPS Ashok Vihar.

5. Accused Anil @ Raju and Ved Pal also took the plea that they were kept in wrongful confinement atPolice Station much prior to the incident and later on falsely implicated in this case. Accused Anil also alleged that he was mercilessly beaten by the police officials during his wrongful confinement in the Police Station. Accused Anil examined two witnesses in support ofhis contention that he was lifted from his house,however,the remaining accused did not prefer to lead any defence evidence.

6. After hearing learned counsel for the parties and scrutinizing the evidence adduced by the prosecution, vide impugned judgment dated November, 2011, the accused persons were convicted for offence u/s 395 IPG and 397 IPG. In view oftheir conviction u/s 397 IPG, separate order of conviction u/s 25 or 27 Arms Act was not passed. All the accused were acquitted ofthe charge for offence u/s 186/353/307IPG.Vide order on sentence dated 14"'November,2011, Crl.A.Nos.75/2012,830/2012and817/2013 p„ge4of18 the appellants were sentenced to undergo rigorous imprisonment for 14 years and fine.

7. Challenging the findings of the learned Trial Court, learned counsel for appellant Ved Pal submits that the case set up by the complainant in his initial statement is different from his deposition in the Court. The genesis ofthe incident itself is doubtful inasmuch as the Trial Court acquitted the appellants for offence u/s 186/353/307 IPC. No independent witness has been examined. Moreover, the motorcycle or the Maruti car has not been produced by the prosecution.Prosecution has failed to prove the charge for offence u/s 395 IPC. Assembly of five persons have not been proved. Alternatively, it was submitted that Section 395 provides for only two punishments, i.e., life or 10 years. However,in the instant case, the appellants were sentenced to undergo rigorous imprisonment for 14 years which could not have been awarded. It was further submitted that only Section 115/457/458/392 prescribes the sentence as 14 years. Even for offence u/s 392,the sentence can go up to 14 years if the robbery is committed between sunset and sunrise whereas in the instant case, alleged incident has taken place between,the sum'ise and sunset.

8. Mr. Vivek Sood, representing appellant-Shailesh Pandey submitted thatthe incident appears to be stage managed. The story of exchange of fire is a concocted plea. No bullet has been recovered from the spot. Furthermore, although it is alleged that three persons came in Maruti car and accused Shailesh Pandey has disclosed their Crl.A.Nos.75/2012,830/2012and817/2013 Page5of18 / names but no efforts were made by the police officials to arrest them. As per rukka,incident took place at about 10:45 AM whereas the FIR was registered at 3:45 PM. During this period seizure memos were prepared wherein there is mention of FIR in the same handwriting. This shows the manipulation in the documents which casts a dent on the prosecution stoiy. Reliance was placed on Kalu Ram v. State, 82 (1999)DLT 286. Furthermore, according to the prosecution, empty cartridges were recovered from the possession of the accused. It is highly improbable that an accused will keep on carrying empty cartridges with him. At the most, it is a case of attempt to commit robbery. Nobody was injured in the incident. Therefore, at the most, punishment could have been awarded for a period of[7] years. It was further submitted that this appellant was involved in two other cases. In case FIR 436/03, he has been acquitted by the High Court whereas in FIR 498/03 he has already served the sentence.

9. Learned counsel for the appellant-Anil adopted the arguments submitted by the learned counsel for the appellants Ved Pal and Shailesh Pandey.

10. Rebutting the submissions oflearned counsel for the appellants, learned Additional Public Prosecutor for the State submitted that offence u/s 395 IPG is duly proved as there was involvement offive persons. However, due to incomplete address, two of the accused could not be arrested. The car was also seized at a distance of 1 KM and no suggestion was given to any ofthe witnesses that this car was not involved in the commission of offence. As regards insertion of Crl.A.Nos.75/2012,830/2012and817/2013 ^ Page6of18 / FIR in the seizure memos, it is submitted that no suggestion was given to any of the witnesses that there was any manipulation in the document. It was a clear case where the appellants along with two of their associates committed dacoity and it was not a case of attempt only. As regards the punisliment awarded to the appellants, it is submitted that Section 395 prescribes the punishment with imprisonment for life or with rigorous imprisonment for a term which may extend to ten years. That being so, since the maximum punishment is up to life, therefore, ifthe learned Additional Sessions Judge has awarded 14 years sentence, no fault can be found in the same. It was submitted that the appellants are habitual offenders having criminal antecedents. That being so,no leniency is warranted. The appeals,being devoid ofmerits,are liable to be dismissed.

11. I have bestowed my considerable thoughts to the respective submissions of the learned counsels for the parties and have perused the record.

12. The star witness ofthe prosecution is PW2-Ashok Kumar. This witness has stated that he is a fruit and vegetable merchant and is running his business under the name and style of Baksa Ram and Company at Hissar, Haryana. He used to purchase fruits and vegetables from Azad Pur, Subzi Mandi and used to come to Azad Pur in an interval of 15-20 days to make payment. On 26'*^ April, 2010 at about 5:20 AM, he boarded a bus of Krishna Bus Service from Hissar to Delhi and at that time he was having 4.[5] lacs cash and his account book in his suitcase. At about 11:00 AM, he alighted CrLA.Nos.75/2012,830/2012and817/2013 Page 7of18 from the bus at Karnal bypass, Mukarba Chowk fly over. He put his suitcase on the ground and wiped his sweat as it was summer season. Meanwhile one person took his suitcase and boarded on a motorcycle on which one person was already sitting. He snatched his suitcase from the hands of that person. The person from whom he.snatched his bag took out a country made pistol. One more person came there. Out ofthe remaining two persons one more took out a country made pistol. They started pulling him along with his suitcase and the person from whom he snatched his suitcase pointed the katta on his forehead. He raised alarm ''Hoot liya loot Jiya". Police also arrived there. He heard the noise offire. Police apprehended those persons along with the motorcycle and suitcase. He identified the accused Shailesh @ Pandit and Vedpal as the two accused persons who were on motorcycle and pointed out towards Anil stating that he arrived later on. Accused Shailesh had snatched his suitcase and Ved Pal was riding on the motorcycle. His statement Ex.PW2/A was recorded by the police which bears his signatures at,point A. At his instance, site plan was prepared. All the three accused persons were arrested. His suitcase along with car and accounts book was taken into possession vide seizure memo Ex.PW2/H. The motorcycle was also seized vide memo Ex.PW2/J. The Investigating Officer prepared the sketch of country made pistols as well as live and empty cartridges recovered X from accused Anil and Shailesh which were taken into possession vide seizure memo Ex.PW2/N,Ex.PW2/P and Ex.PW2/Q.

13. This witness was cross-examined by learned Additional Public Prosecutor for the State in regard to some of the facts and admitted CrLANos.75/2012,830/2012and817/2013 Page8ofIS X that in the process of snatching, his suit case fell on the road. He, however, could not say if the accused persons fired on police party and in order to save themselves police party also fired. He admitted that during the course of firing, he laid down on the road to save himself. He also admitted that police party gave a lalkara to the accused persons and asked them to stand by raising their hands up. He also admitted that two persons, who were in Maruti 800 car, managed to escape from the spot from which accused Anil had alighted. He admitted that he had forgotten some facts due to lapse of time. He was nervous at the time ofincident,as such,he was not able to recollect the facts. He also admitted that his mind was also diverted at that time to save himself from the firing and to save his belongings.

14. As regards the submission that some discrepancies have appeared in the testimony ofcomplainant and his earlier version, it is th to be kept in mind that the incident had taken place on 26 April, 2010 whereas the witness came to depose in the Court on 2"^^ December, 2010, i.e., after about 8 months of the incident. Human memory is bound to lapse due to passage oftime and some concession has to be given which occurs due to this passage oftime. Moreover, there are catena ofdecisions to the effectthat minor discrepancies and inconsistencies cannot be given undue importance. The Court has to see whether inconsistencies go to the root ofthe matter and affebt the truthfulness ofthe witnesses while keeping in view that discrepancies are inevitable in case of evidence of witnesses, who speak thereafter long lapse oftime. Crl.A.Nos.75/2012,830/2012and 817/2013 Page9of18 V

15. Hon'ble Supreme Court in Gangabhavani v. Rayapati Venkat Reddy and Ors.,2013(11)SCALE 132 heldi "9. In State of U.P. v. Naresh (2011) 4 SCC 324, this Court after considering a large number ofIts earlierjudgments held: "In all.criminalcases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors ofobservation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make materialimprovement while deposing in the court,such evidence cannot be safe to rely upon. However,minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core ofthe prosecution case,should notbe made a ground on which the evidence can be rejected in its entirety. The court has toform its opinion about the credibility of the witness and record afinding as to whether his deposition inspires confidence. Exaggerations per se do not render the evidence brittie. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone ofcredibility. Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in materialparticulars i.e. go to the rootofthe case/materially affectthe trial or core of the prosecution's case,render the testimony ofthe witness liable to be discredited. A similar view has been reiterated by this Court in Tehsildar Singh and Anr. V. State of U.P. AIR 1959 SC 1012;Pudhu Raja and Am. v. State,Rep. by Inspector ofPolice JT2012(9)SC252;and La!Bahadur v. State(NCTofDelhi)(2013)4SCC557.