Vicky @ Deepak v. State NCT of Delhi

1. The present appeal has been instituted against the judgement of conviction dated 23.04.2024 and order on sentence dated 10.07.2024 passed by Principal District & Sessions Judge, East District, Karkardooma Courts in the case arising out of FIR No. 532/2021 registered under Sections 392/397/34 IPC and 25/27 Arms Act at P.S. Kalyan Puri, Delhi. Vide the impugned judgement, the appellants were convicted for the offence under Section 392/34 IPC and sentenced to undergo rigorous imprisonment for a period of 4 years, with fine of Rs.15,000/-, in default whereof, they were directed to undergo simple imprisonment for a period of 2 months. Additionally, the appellant/Vicky @ deepak was also convicted for offences under Section 397 IPC and 25/27 Arms Act and directed to undergo rigorous imprisonment for a period of 7 years and 4 years respectively, with fine of Rs. 5,000/- in the latter conviction, in default whereof, he was directed to undergo simple imprisonment for a period of 1 month. The benefit of Section 428 Cr.P.C. was also given to both the appellants.

2. The facts, in a nutshell, are that the complainant, one Daya Ram, a taxi driver had on 27.09.2021 around 4.15 pm stopped his vehicle by the side of the road to relieve himself when he was attacked by the appellants. While the appellant/James allegedly grabbed hold of his neck, the appellant/Vicky pointed a knife to his stomach and robbed him of his Samsung A[6] mobile phone and Rs.1200 in Cash. This incident was witnessed by one Safi Alam Khan, a Civil Defence personnel, who intervened and upon seeing him, the appellants ran away from the place of the incident. Safi called the PCR. On the next day, on basis of information given by secret informer, police went to Jhuggis of 19-20 Block, Kalyanpuri where the appellant/Vicky was apprehended. The robbed mobile phone was recovered from him and the knife used in the commission of offence was also recovered at his instance from his home. The eyewitness Safi, was also present with the police and identified the appellant/Vicky. In his disclosure statement, Vicky stated that the appellant/James was the other person involved in the commission of offence. Later, when the appellant/James was arrested in relation to another case being FIR No. 534/2021, during investigation, his involvement in the present case was detected. He was identified in judicial TIP by the complainant on 14.01.2022. Charges were framed under Sections 392/34 IPC against the appellant/James and under Section 392/397 IPC and 25/27 Arms Act against the appellant/Vicky.

3. In trial, a total of 8 witnesses were cited by the prosecution to prove its case. The complainant namely Daya Ram was examined as PW[5]. Safi Alam Khan, the eyewitness was examined as PW[2]. The other witnesses were formal in nature, who deposed relating to various aspects of investigation. On the other hand, the accused persons, in their statement recorded under Section 313 Cr.P.C. claimed innocence and false implication.

4. Learned counsel for appellant/Vicky submits that the appellant is innocent and has been falsely implicated in the present case. He submits that the said appellant was never subjected to a TIP and was identified only in the police station by the complainant and hence his identification for the first time in Court cannot be said to be free from doubt. In support of this contention, reliance is placed on the decision of Supreme Court in Jafar v. State of Kerala, reported as 2024 SCC OnLine SC 310. He further submits that the testimonies of the witnesses are riddled with various inconsistencies and contradictions. It is submitted that there is no mention of any secret informer in the testimony of PW[2], but PW[3] and PW[8] on the other hand categorically state that the appellant/Vicky was pointed out by the secret informer. It is next contended that while the complainant PW[5] in his testimony states that he along with PW[2] went to the police station on the date of the incident, PW[2] on the other hand says that he went to the police station on the next day. He submits that these contradictions raise serious doubts on the credibility of the eyewitness.

5. Learned counsel for the appellant/James submits that the said appellant is innocent and has been arrested solely on the basis of the disclosure statement of the co-accused. He further submits that there is no description of the appellant in the complaint and he has been arrested on 24.12.2021 in relation to some other case and has been falsely roped in the present case. It is submitted that no recovery has been effected from him and there are no independent witnesses to the said offence, and PW[2], the eyewitness is a stock witness whose testimony cannot be relied upon.

6. The appeals have been vehemently opposed by Learned APP for the State who submits that the appellants have been rightly convicted by the Trial Court. He further submits that the eyewitness PW[2] has fully supported the prosecution case. The alleged contradictions are minor and in no way shake the testimony of the eyewitness. It is further stated that the robbed mobile and knife used in the commission of offence have been recovered at the behest of appellant/Vicky. It is further stated that the complainant has correctly identified appellant/James in the Judicial TIP as the accused who held him by the throat. It is stated that both the appellants are serial offenders, and while referring to the Status Report, states that while appellant/Vicky has 14 prior involvements, the appellant/James has 6 prior involvements.

7. I have heard the counsels for the parties and have perused the documents which have been placed on record.

8. It has been noted by the Trial Court that PW5/complainant in his testimony has clearly stated that two persons robbed him of his Samsung A[6] phone, and Rs 1200 in cash. In Court, he has identified appellant/Vicky as the one who put a knife to his stomach and appellant/James who caught hold of his neck. He also spoke as to the presence of one eyewitness, PW[2] at the spot who intervened to help him. He also identified the mobile phone which was seized from the pants of appellant/Vicky as the one which was robbed from him.

9. PW[2], who was also present on the spot has corroborated the version of PW[5] regarding the incident on all material aspects. He has also testified to accompanying the police when the appellant/Vicky was apprehended and witnessing the recovery of the robbed mobile and Knife from Vicky. He also confirmed the seized articles to be the same which were recovered in front of him. He also positively identified the appellant/James in Court as the second person involved in the crime.

10. Doubt has been raised on the credibility of PW[2] by pointing out a few inconsistencies in the statements of PW[2] and PW[5]. However, the same are minor and do not go to the root of the matter. The inconsistency highlighted by the Learned counsel for the appellant does not affect the core of the prosecution case. A gainful reference in this regard may be made to Narayan Chetanram Chaudhary v. State of Maharashtra, reported as (2000) 8 SCC 457 wherein it was held that:-

testimony of witness unreliable. When the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful and not otherwise. Minor contradictions are bound to appear in the statements of truthful witnesses as memory sometimes plays false and the sense of observation differ from person to person. The omissions in the earlier statement if found to be of trivial details, as in the present case, the same would not cause any dent in the testimony of PW 2. Even if there is contradiction of statement of a witness on any material point, that is no ground to reject the whole of the testimony of such witness. In this regard this Court in State of H.P. v. Lekh Raj [(2000) 1 SCC 247: 2000 SCC (Cri) 147: (1999) 9 ST 155] (in which one of us was a party), dealing with discrepancies, contradictions and omissions held: (SCC pp. 258-59, paras 7-8) “Discrepancy has to be distinguished from contradiction. Whereas contradiction in the statement of the witness is fatal for the case, minor discrepancy or variance in evidence will not make the prosecution's case doubtful. The normal course of the human conduct would be that while narrating a particular incident there may occur minor discrepancies, such discrepancies in law may render credential to the depositions. Parrot-like statements are disfavoured by the courts. In order to ascertain as to whether the discrepancy pointed out was minor or not or the same amounted to contradiction, regard is required to be had to the circumstances of the case by keeping in view the social status of the witnesses and environment in which such witness was making the statement. This Court in Ousu Varghese v. State of Kerala [(1974) 3 SCC 767: 1974 SCC (Cri) 243] held that minor variations in the accounts of the witnesses are often the hallmark of the truth of their testimony. In Jagdish v. State of M.P. [1981 Supp SCC 40: 1981 SCC (Cri) 676] this Court held that when the discrepancies were comparatively of a minor character and did not go to the root of the prosecution story, they need not be given undue importance. Mere congruity or consistency is not the sole test of truth in the depositions. This Court again in State of Rajasthan v. Kalki [(1981) 2 SCC 752: 1981 SCC (Cri) 593] held that in the depositions of witnesses there are always normal discrepancies, however, honest and truthful they may be. Such discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. Referring to and relying upon the earlier judgments of this Court in State of U.P. v. M.K. Anthony [(1985) 1 SCC 505: 1985 SCC (Cri) 105: AIR 1985 SC 48], Tahsildar Singh v. State of U.P. [AIR 1959 SC 1012: 1959 Cri LJ 1231], Appabhai v. State of Gujarat [1988 Supp SCC 241: 1988 SCC (Cri) 559: JT (1988) 1 SC 249] and Rammi v. State of M.P. [(1999) 8 SCC 649: JT (1999) 7 SC 247] this court in a recent case Leela Ram v. State of Haryana [(1999) 9 SCC 525: JT (1999) 8 SC 274] held: „There are bound to be some discrepancies between the narrations of different witnesses when they speak on details, and unless the contradictions are of a material dimension, the same should not be used to jettison the evidence in its entirety. Incidentally, corroboration of evidence with mathematical niceties cannot be expected in criminal cases. Minor embellishment, there may be, but variations by reason therefor should not render the evidence of eyewitnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence…. The court shall have to bear in mind that different witnesses react differently under different situations: whereas some become speechless, some start wailing while some others run away from the scene and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied. As a matter of fact it depends upon individuals and individuals. There cannot be any set pattern or uniform rule of human reaction and to discard a piece of evidence on the ground of his reaction not falling within a set pattern is unproductive and a pedantic exercise.‟”

11 Reliance was placed by learned counsel for the appellant/Vicky on the decision of Supreme Court in Jafar (Supra) that in absence of TIP, the identification of the appellant at the Police Station by the complainant becomes doubtful. In the said case, it was observed that:-

8. Anil Kumar (PW-8), who is the Investigating Officer (IO), has also admitted that PW-1 identified the accused persons by seeing them at the police station. He has further admitted that no identification parade was conducted. As such, it can be seen that the identification of the appellant herein by PW-1 is quite doubtful as no identification parade has been conducted. PW-1 clearly states that he has identified the accused persons since the police had shown him those two people.