Shyam Sunder @ Pappu v. The State

1. Present appeals arise out of a common judgment dated 22.11.2004 and order on sentence dated 24.11.2004 passed by learned Additional Sessions Judge, Delhi, in S.C.No.24/2003. The appeals have been heard together and are being disposed of by a common judgment.

2. By the impugned judgment, the appellants have been sentenced to undergo rigorous imprisonment for five years, each, for the offence punishable under Section 394/34 IPC with fine of Rs.5,000/-, each, and in default of payment of fine, five months rigorous imprisonment. The appellants were also sentenced to undergo rigorous imprisonment for 2013:DHC:5042 seven years, each, and to pay a fine of Rs.5,000, each, and in default of payment of fine, rigorous imprisonment for five months under Section 397/34 IPC. It was directed that both the sentences would run concurrently.

3. The case of the prosecution, as noticed by the trial court, is that on 6.2.2003 at about 3.15 a.m. at Budh Singh Gulab Singh Patrol Pump, Aurindo Marg, Lado Sarai, the appellants robbed Rs.85,000/- with cash box from the patrol pump staff by using country made pistol (katta) and a knife.

4. The prosecution in all has examined 13 witnesses. One witness was examined by the defence.

5. Learned counsel for the appellants submit that the entire case of the prosecution is based on the evidence of PW-6, Dinesh, who claims to have identified the appellants. It is further submitted that two other eyewitnesses i.e. PW-1, Sarwan, and PW-10, Gopal, who were admittedly present at the time of commission of offence did not identify the appellants in Court. It is contended that the evidence of PW-6, Dinesh, is unreliable. Elaborating their arguments further counsel submit that there is no evidence to corroborate the evidence of PW-6 as neither at the time of recording of FIR nor in the statement made under Section 161 Cr.P.C. the eye-witnesses had given any description of the appellants. It is also submitted that only a vague statement was made that the persons, who robbed them, were between the age of 25 to 30 years. It is, thus, contended that the evidence of PW-6 is not reliable as it is a very vague form of evidence, which cannot be the sole basis of convicting the appellants.

6. Learned counsel for the appellants further submit that the identification by PW-6, Dinesh, was not put to the appellants, which is a vital and incriminating factor against them at the time of recording the statement under Section 313 Cr.P.C. Counsel submits that on this ground alone the impugned judgment and order on sentence is bad in law and the same is liable to be set aside. To buttress this argument, learned counsel for the appellants have relied upon Nirmal Pasi & Anr. v. State of Bihari, reported at JT 2002 (6) SCC 28, more particularly para 7, which read as under:

7. Counsel for the appellants have further relied upon Shaikh Maqsood v. State of Maharashtra, reported at (2009) 6 SCC 583, more particularly paras 8 and 9, which read as under: “The purpose of Section 313 of the Code is set out in its opening words- `for the purpose of enabling the accused to explain any circumstances appearing in the evidence against him‟. In Hate Singh, Bhagat Singh v. State of Madhya Pradesh, AIR 1953 SC 468, it has been laid down by Bose, J that the statements of accused persons recorded under Section 313 of the Code `are among the most important matters to be considered at the trial'. It was pointed out that: (AIR p.470, para 8) „8. … The statements of the accused recorded by the committing magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box and [that they have] to be received in evidence and treated as evidence and be duly considered at the trial…..‟ This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there.

13. The object of examination under this Section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus.

14. The word `generally' in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused's failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give.

15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed:

8. Counsel for the appellants have next relied upon Ranvir Yadav v. State of Bihar, reported at (2009) 6 SCC 595, more particularly para 11, which reads as under: “Above being the position the appeal deserves to be allowed. It is a matter of regret and concern that the trial court did not indicate the incriminating material to the accused. Section 313 of the Code is not an empty formality. There is a purpose behind examination under Section 313 of the Code. Unfortunately, that has not been done. Because of the serious lapse on the part of the trial court the conviction as recorded has to be interfered with. Conviction recorded by the High Court is set aside. Bail bonds executed to give effect to the order of bail dated 8.1.2002 shall stand cancelled because of the acquittal. The appeal is allowed to the aforesaid extent.”

9. Another submission, which has been made by learned counsel for the appellants, is that the appellants were arrested on the basis of a disclosure made by them in judicial custody after they were arrested for the commission of another offence. It is further submitted by the counsel that a disclosure statement by itself cannot be the sole ground of conviction of the appellants in the absence of recovery of either the knife or katta, or cash box, which was alleged to have been stolen and the Maruti car, in which the appellants had travelled to commit the offence and had which was used by them for running away. For this proposition, learned counsel for the appellants have relied upon Umesh Kamat v. State of Bihari, reported at (2005) 9 SCC 200, more particularly para 12, which reads as under: “Thus, there is any amount of doubt on the point whether PW[4], in the situation in which he was placed, could closely observe the identifiable features of the appellant in mask that too in the glow of dim lantern and in the light emitted by the torches flashed at him or other inmates of the house. This doubt has to be viewed in the context of two things, firstly there was no recovery of property, nor any other corroborating evidence linking the appellant to the crime. The second aspect is that the trial Court was not inclined to believe the evidence of the identification of three other accused at the same identification parade held on 19.7.1994 and commented that they were falsely implicated. If so, the evidence of PW[4] should have been scrutinized with greater caution instead of proceeding on a premise that he was a truthful witness. One more aspect which deserves notice is that PW[4] did not have the occasion to observe the dacoits' operations inside the house. He would have noticed them only initially for a short-while before they entered the house. It is his case that he became unconscious a little later as a result of injury inflicted on him. These are all the various doubts which loom large over the prosecution story of identification of the appellant. Unfortunately, the High Court did not analyze the evidence of prosecution witnesses so as to test the credibility of their evidence in the light of admitted or undeniable facts apparent from the record.”