* IN THE HIGH COURT OF DELHI AT NEW DELHI + CRL.A. 338/1999 Reserved on: October 13, 2009 Pronounced on: October 26, 2009 # KAMAL Appellant ! Through: Mr. [ENTITY], Advocate. Versus $ STATE Respondent ^ Through: Mr.[ENTITY], Addl. P.P. for the [ENTITY]. CORAM: HON'BLE MR. JUSTICE [ENTITY] 1. Whether Reporters of Local newspapers may be allowed to see the Judgment? 2. To be referred to the Reporter or not? 3. Whether the Judgment should be reported in the Digest? [ENTITY], J.
This is an appeal against the Judgment dated 5th June, 1999 and the Order of Sentence dated 21st June, 1999, whereby the appellant was convicted u/[SECTION] of [ACT] and [SECTION] of [ACT] and was sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs.2000/- or to undergo simple imprisonment for 6 months in default u/[SECTION] [ACT] and was further sentenced to undergo rigorous imprisonment for 1 year and to pay a fine of Rs.500 or to undergo simple imprisonment for 1 month in default u/[SECTION] of the [ACT].
2. The case of the prosecution in nutshell is that on 27 th August, 1993 at about 5.20 p.m. when the complainant, Smt. [ENTITY] was present in her house alongwith her son [ENTITY] aged about 7 years at that time, the appellant accompanied by two more persons including his co-accused [ENTITY] entered her house. Two of them, including the appellant were armed with revolvers whereas the third one was armed with a knife. On entering the house, the appellant fired a shot from his revolver. The complainant was caught from her hair and taken to the kitchen, where one of the boys put a knife on her stomach and asked for the keys of the house. On her refusal, her hands were tied and a piece of cloth was stuffed in her mouth. One of them removed the her [ENTITY] and ring whereas another one removed bangles which she was wearing. The son of the complainant ran out of the house and was taken to the nearby police post by a passer-by. Two policemen accompanied the son of the complainant to her house. When there was noise outside the house, the assailants fired one more shot and ran outside. Two police officials, accompanied by the son of the complainant were coming from the opposite side. The appellant fired a shot towards the police officials, but, one of them gave a stick blow to him and he was apprehended, though his companions managed to run away. The revolver used by the appellant was seized from his possession. One live cartridge was recovered on the search of the appellant, besides [ENTITY] and ring of the complainant.
3. The complainant, Smt. [ENTITY] and her son [ENTITY] are the star witnesses of the prosecution, whose testimony has been fully corroborated by PW-8, Constable [ENTITY] and PW-11, Constable [ENTITY]. The complainant, Smt. [ENTITY] has stated that on 27th August, 1993 while she was sitting in the courtyard of her house at about 5 p.m., alongwith her son [ENTITY], 3 boys including the appellant entered her house. The appellant was having a revolver in his hand and he fired a shot from that revolver. His co- accused [ENTITY] was having a knife in his hand. The third person accompanying them was also having a revolver in his hand. They dragged her to kitchen, gave beatings to her and sought the valuables lying in the house. They removed her ear-rings and gold ring which she was wearing at that time besides her [ENTITY] and four bangles. She did not notice when her son ran out of the house, but, he returned alongwith the police and appellant [ENTITY] was apprehended by the police on the spot. The police recovered one countrymade revolver from the appellant and seized it vide memo Exhibit PW-2/C which bears her signatures. Her gold- ring, silver [ENTITY] and one live cartridge were also recovered from him and were seized by the police. She also identified the jewellery which was removed from her person as well as the pistol which was recovered from the appellant.
4. PW-1, [ENTITY] is the son of the complainant. He has stated that on 27th August, three years before his deposition in the court, three persons all of a sudden entered his house at about 5 p.m. He identified appellant [ENTITY] as the person who fired a shot on his mother and stated that he ran out of the house and raised alarm. One boy took him to police station. He informed the police that three persons had entered his house and fired at his mother. Two policemen took him to his house on their motorcycle. The boy identified appellant [ENTITY] as the person who fired at the policeman and was apprehended by the police. He stated that the police also gave a danda blow to the appellant who was then overpowered by a few persons and apprehended by the police.
5. PW-8, Constable [ENTITY] stated that on 27 th August, 1993 he was on duty at police station Chowki Usman Pur when a boy aged about 7-8 years came there and informed them that some persons were beating his mother. He alongwith Constable [ENTITY] went to his house alongwith him. As son as they reached the corner of the street, three boys were seen coming from the opposite direction. Two of them were having kattas (countrymade pistols) in their hands, whereas the third one was carrying a knife. One of them fired at them. He gave a danda blow on the hand of the boy who had opened fire and constable [ENTITY] caught hold of him. They then went to the house of the complainant, who was found lying in the passage with her hands tied on the back and a piece of cloth stuffed in her mouth. He opened with hands and removed the clothes from her mouth. The witness has identified appellant [ENTITY] as the person, who was apprehended at the spot and stated that on his search, one live cartridge, one ring and one [ENTITY] was recovered from his pocket. According to him, one empty cartridge was taken out from the katta. The witness has identified the countrymade pistol, which was recovered from the appellant as well as her [ENTITY] Exhibit P-9 and the ring Exhibit P-10.
PW-11, Constable [ENTITY] fully corroborated the deposition of PW-8 and identified appellant [ENTITY] as the person who was carrying a countrymade pistol in his hand and was apprehended on the spot. He has also identified the countrymade pistol and articles of jewellery which were recovered from the pocket of the appellant. The prosecution had also examined one public witness, [ENTITY] as PW-3 but he did not support the prosecution.
6. In his statement u/[SECTION] of [ACT], the appellant has denied the allegations against him and stated that no such incident took place in the house of the complainant and that he was forcibly picked up from his house.
7. The first contention raised by the learned counsel for the appellant is that though the countrymade pistol alleged to have been recovered from the appellant was sent to the laboratory as stated by PW-5, [ENTITY] and PW-4, Constable [ENTITY], report of CFSL has not been produced by the prosecution. In my view, in the facts and circumstances of this case, nothing turns on the failure of the prosecution to produce the report of CFSL in the court. In the present case, the testimony of PW-1 [ENTITY] and PW-2, Smt. [ENTITY] clearly shows that the appellant had fired from the countrymade pistol which he was carrying in his hand. The testimony of PW-8, Constable [ENTITY] and PW-11, Constable [ENTITY] also shows that the appellant had also fired at the police officials from the countrymade pistol which he was carrying in his hand. The very same pistol was seized from him, there and then. The purpose of obtaining report of the Ballistic Expert, in such cases, is to ascertain whether the arm recovered from the accused was in a working condition or not and whether it was actually a firearm or not. Since there is positive testimony of PW-1, PW-2, PW-8 and PW-11 which proves that the weapon being carried by the appellant was in working condition since the appellant had fired from it firstly on entering the house of the complainant and then towards the police officials. Thus, the use of firearm by the appellant and its being in working condition stands established even without the report of the ballistic expert. This is not the case of the appellant that though he was involved in the robbery, he was not carrying any weapon with him. This is also not his case that the weapon which he was carrying was not a fire-arm and was some toy gun. Therefore, failure of the prosecution to produce the report of CFSL cannot be said to be fatal in the facts and circumstances of this case.
8. The learned counsel for the appellant has referred to the decision of the Hon'ble Supreme Court in [ENTITY] Vs. [ENTITY] AIR 1953 SC 415 where the Hon'ble Supreme Court observed that in a case where death is due to injuries or wounds caused by a lethal weapon, it is always the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which and in the manner in which they are alleged to have been caused. In that case, the allegation against the appellant [ENTITY] was that he had fired at the deceased from a distance of about 4-5 feet. The injuries proved to be fatal causing his death on the spot. The appellant [ENTITY] was arrested later on and when asked whether he possessed a gun, he produced a 12 bore gun for which he held a licence. The Director of Laboratory opined that he could not say when that gun was fired last. He could not say whether cartridges recovered from the spot were actually fired from that particular gun or a similar gun. He did not make any experiment by firing any cartridge from the gun of the appellant nor did he compare the markings on the empty cartridges. It was in these circumstances that the above noted observations were made by the Hon'ble Supreme Court during the course of the judgment. The present case before this court is, however, not a case of injuries having been caused to the complainant from the weapon of the appellant. The appellant has been prosecuted and convicted for robbery and using a fire-arm in commission of the robbery. Even if a person simply carries a fire-arm with him and it is seen by the victim at the time of commission of the robbery that amounts to use of the fire-arm in commission of robbery. It was held by the Hon'ble Supreme Court in [PRECEDENT] if the accused armed with a knife and his associate armed with a small gun terrorise the employees of a service station to hand over the keys and after opening the office, they decamped with cash, it was sufficient to bring the case within the purview of [SECTION] of [ACT]. Therefore, failure of the prosecution to examine the ballistic expert was not necessary in this case. The learned counsel for the appellant has also referred to [ENTITY] Vs. [ENTITY] of Punjab, (1995) 4 SCC545 and [ENTITY] of Punjab Vs. [ENTITY], AIR 1988 SC 3113. In the case of [ENTITY] (Supra), there was omission to seal the pistol at the time of seizure and to send the cartridges for testing whereas in the case of [ENTITY], there was no evidence of sending the arms and cartridges to CFSL and no report was produced to prove that the gun alleged to have been recovered from the accused was in a working condition and the cartridge alleged to have been recovered from him were live. The conviction of the accused in these circumstances was not approved by the Hon'ble Supreme Court. However, in the present case, we have direct evidence of use of a fire-arm by the appellant. PW-1, PW-2, PW-8 and PW-11 have deposed about use of firearm by the appellant. In view of their positive evidence, it cannot be disputed that the weapon used by the appellant was a fire-arm and, therefore, failure of the prosecution to produce the report of the CFSL would be immaterial in the facts of the present case. The learned counsel for the appellant has also referred to [ENTITY] of M.P. Vs. Surpa, AIR 2001 SC 2408. This was also a case of murder where the loaded gun seized from the place of occurrence and the bullets removed from the chest cavity of the deceased were not sent to ballistic expert though the case of the prosecution was that the deceased had received pallet injuries on his chest and jaws. IO, on the other hand, stated that the deceased received pallet injuries on tongue, chest, chin etc. In these circumstances, not sending them to the ballistic expert was held to be a serious infirmity in the case of the prosecution as there was no reconciling of the recovery of pallet from the chest cavity of the deceased and the presence of the pallet injuries as deposed to by the witnesses. Since, we have positive evidence of a number of witnesses regarding use of weapon by the appellant, failure to produce the report of the CFSL would not be material in the present case.
9. It was pointed out by the learned counsel for the appellant that according to PW-8 and PW-11, they were in civil dress whereas according to PW-10, SI [ENTITY], who is the IO of the case, they were in uniform. It was further pointed out that according to PW, he came to spot on motorcycle of police officials, according to PW-8 and PW-11, they had come on foot. When viewed against the positive testimony of PW-1 & PW-2, which stands fully corroborated by the testimony of PW-8, Constable [ENTITY] and PW-11, Constable [ENTITY], this contradiction cannot be said to be material. The presence of PW-8, Constable [ENTITY] and PW-11, Constable [ENTITY] at the spot has been confirmed by the complainant as well as by her son. They have also signed the seizure memos of the weapon as well as of the jewellery of the complainant. Therefore, it would be immaterial whether they were in the civil dress as or were in uniform and whether they came on foot or on a motorcycle.
10. It has to be kept in mind that the incident took place in August, 1993. PW-1 who is a small child was examined in October, 1996. PW-8 was examined in February, 1998 and the Investigating Officer was examined in November, 1998. The I.O. was cross-examined more than 5 years after this incident took place.
Memory fades with the passage of time and it is not possible for the witnesses, when examined after such a long period, to fully recollect all the facts of an incident which took place many years ago. If there are normal discrepancies on matters which are peripheral or are trivial and do not form the core of the case, it is not proper to reject the testimony of a witness on the ground of minor variation or infirmities in trivial details. As observed by the Hon'ble Supreme Court in Krishna Mochi vs. [ENTITY], 2002 IV AD (SC) 45, normal discrepancies are those which are due to normal errors of observation, normal errors of memory due to passage of time due to mental disposition such as shock and horror and are always present, however, truthful witness may be. The court must appreciate that not everyone has equal capacity of observation, retention and reproduction, which varies from individual to individual. Therefore, it is quite natural if even honest and otherwise reliable witnesses, while giving their respective version of a incident, differ on some minor details which are not directly related to the main incident witnessed by them. If the trial court, which had the opportunity to observe the demner of the witness, has believed a witness, the Appellate Court should not take a contrary view on the reliability of such a witness, except for strong reasons. It is observed by Hon'ble Supreme Court in Leela Ram (Dead) through Duli Chand Vs. [ENTITY] of Haryana and Anr. , AIR 1999 SC 3717 that the discrepancies unless they are vital in nature cannot by itself affect the credibility of a witness and unless contradictions are on material dimension they should not be used to Jettison the evidence in its entirety and trivial discrepancies ought not to obliterate otherwise acceptable testimony of a witness. It was observed in Dhanvir and Others vs. The [ENTITY], 85(2000) DLT 711, human memory is not mere a computer where memory can be fed or restored for all times to come and later on when retrieved it would be verbatim the same. A human being, when he describes some incident in natural course, some variation is bound to take place so long as the variations are not natural they ought to be ignored.
11. It was next pointed out by the learned counsel for the appellants that as per the case of the prosecution, 3 shots were fired by the assailants out of which at least two shots are alleged to have been fired by the appellant but only one empty cartridge has been seized by the police. That cartridge was found in the pistol being carried by the appellant. No doubt, according to the complainant it was the appellant [ENTITY] who fired a shot in her house and according to PW-8, [ENTITY] and PW-11, [ENTITY], the shot towards them was also fired by him, and therefore, even if it is accepted, as contended by the learned Additional Public Prosecutor that one empty cartridge may be in the pistol being carried by the co-accused of the appellant, two empty cartridges could have been seized. I, however, find that there has been no cross-examination of the IO on this aspect of the case. He was not asked as to whether he had made any effort to trace the second empty cartridge at the spot or not. It was also contended by the learned counsel for the appellant that only two pieces of bullet were seized by the IO, one amongst the broken bangles and the other lying on the floor, whereas the case of the prosecution is that three bullets were fired; one when the robbers entered the house, second when there was noise outside the house and the third towards the policemen. Again, there has been no cross-examination of the IO on this aspect also. The Court doesn't know whether the IO did not make any effort to recover all the three bullets and both the empty cartridges or he could not trase them despite efforts. In the absence of cross examination on these aspects, the Investigating Officer had no opportunity to explain why only one empty cartridge and pieces of only 2 bullets were seized by him. Therefore, no adverse inference in this regard can be drawn against the prosecution. Even if it is presumed that there has been negligence on the part of the IO in not making effort to trace the second empty cartridge, and third bullett, the case of the prosecution which otherwise stands fully proved cannot be discarded on this ground alone. In Karnal Singh Vs. [ENTITY] of M.P. , JT 1995 (6) SC 437, the Hon'ble Supreme Court found that the approach of I.O. was casual and defective. It was needed trial, it is not proper to acquit the accused on account of defective investigation if the case otherwise stands established. Acquitting accused on account of defective or negligent investigation would be falling into the hands of an erring IO. In Ram Behari Yadav v. [ENTITY] of Bihar & Ors, JT 1998 (3) SC 290, where it was found that the I.O. had created a mess, to bail out the culprit, the Hon'ble Supreme Court observed that in such cases the story of the prosecution is to be examined de hors contaminated conduct of the IO, otherwise the mischief deliberately done would be perpetuated.
In any case nothing really turns on non seizure of other empty cartridges and fired bullets, when viewed in the light of positive statements of complainant, her son and two constables, coupled by recovery of pistol, and stolen property from the possession of the appellant.
12. It was also pointed out by the learned counsel for the appellant that the seal of SLP used by the IO for the purpose of sealing is stated to have been given to Constable [ENTITY], who has not been examined and the IO himself has not spoken about sealing. The examination of Constable [ENTITY] was not necessary in the facts of this case as the appellant was apprehended on the spot and the weapon which he had used during the commission of robbery was also seized from him there and then in the presence of three witnesses including the complainant, Smt. [ENTITY]. This is not a case of case property being recovered at a later date. Therefore, it was not necessary for the prosecution to examine Constable [ENTITY] to prove that the seal remained with him till the time the case property was deposited in Malkhana of the police station, and therefore, there was no possibility of tampering with the case property. The entry in register No.19 Exhibit PW-5/A also shows that these parcels were sealed with the seal of SLP when they were deposited in the malkhana of the police station. Another important aspect in this regard is that the appellant does not claim the stolen property i.e. ring and mangal sutra, which were removed from the possession of the complainant and were found with him when he was apprehended on the spot. The complainant on the other hand has specifically identified her articles of jewellery. It was held by the Hon'ble Supreme Court in Erabhadrappa alias Krishnappa vs. [ENTITY] of Karnataka, AIR 1983 SC 446, that where a lady witness identifies the stolen articles such as ornaments and sarees at the trial without prior Test Identification Parade, the testimony of such a witness was not inadmissible in evidence for want of prior Test Identification Parade, as ladies have uncanny sense of identifying their own belongings, particularly the articles of personal use. A particular article may be identified by any advance mark on it or by frequent use or observation which causes a permanent impression on the mind of identifier, that leads to recognition of the article. In the present case, not only the stolen articles have been identified by the complainant, they were seized from the appellant on the spot in her presence.
The learned counsel for the appellant has referred to [ENTITY] of Rajasthan Vs. Daulat Ram, AIR 1980 SC 1314 where in a prosecution under [ACT], the prosecution had not examined the police officials and Assistant Public Analyst to prove that while in their custody, the seals were not tampered with. It was held that the effect of the omission was that the prosecution had failed to rule out the possibility of the case property being changed or tampered with during this period. As noted earlier, not only do we have positive testimony of the witnesses regarding use of firearm and theft of jewellery by the appellant from the person of the complainant, the stolen property itself has been recovered from the appellant in the presence of complainant and other witnesses. The jewellery has been identified by the complainant and the appellant has not claimed any of the articles recovered from his possession. In these circumstances, failure to examine the Constable [ENTITY] to whom the seal was handed over is not at all material. There is no merit in the contention that the IO has not spoken about sealing. I find that he has specifically stated that he prepared the sealed pulinda of katta and taken the katta and cartridge into possession. He further stated that on search of the appellant, one silver locket, one golden ring and one live cartridges were recovered from the left side pocket of his pant and separate pulandas were prepared for these articles, which were taken into possession vide memo exhibit PW-2/D. The seizure memo specifically records that the parcels were sealed with the seal of SLP. A perusal of the judgment of the trial court shows that no such contention was raised before it.
The learned counsel for the appellant has referred to the decision to the Hon'ble Supreme Court in Mukhtiar Ahmed Ansari Vs. [ENTITY] (NCT of Delhi) (2005) 5 SCC 258. In that case while examining whether prior approval of Deputy Commissioner of Police required u/[SECTION] of [ACT] was obtained or not, the court noted that according to PW-11, [ENTITY], Deputy Commissioner had come on the spot and had given an oral direction to register a case under [ACT] against the accused. The prosecution contended that prior approval had, thus, been granted u/[SECTION] of [ACT]. The argument was rejected by the Hon'ble Supreme Court noticing that the Deputy Commissioner of Police had been summoned and he had not stated that he had given any such direction to PW-11 to register the case under [ACT]. On the contrary, he had clearly stated that he had granted sanction Exhibit PW4/1, which the Hon'ble Court noted was under [ACT] and not under [ACT]. In these circumstances, it was held that prior approval as required u/[SECTION] had not been accorded and, therefore, the proceedings were vitiated. This judgment absolutely has no bearing at all to the facts of the present case where no statutory sanction was required for prosecution of the appellant.
13. The defence taken by the appellant is that in fact no such incident took place and he was picked up from his house and implicated in a false case. During the course of arguments, it was contended by the learned counsel for the appellant that a bravery award has been given to PW-1 and in fact this whole story of robbery was cooked up by PW-2 in connivance with the police officials, only in order to get bravery medal for her child. The defence taken by the appellant, to my mind is highly improbable and unlikely. It is inconceivable that a lady would concoct a story of this nature and would also involve her son into it merely for the purpose of claiming an award for her child. I fail to appreciate how the complainant could have been sure that her child would be given a bravery award in case she came up with such a story, in connivance with police officials and that too of the rank of constables. In fact, giving of award to the son of the complainant indicates that the incident must be true and that is why he was rewarded with bravery award. No reason has been given by the appellant for the police officials to connive with the complainant, so as to get an award for her child. This police officials were not related to her or otherwise friendly with her. Though the case of the appellant is that the complainant is a social worker, she has specifically stated in her cross-examination that she is not a social worker and no evidence has been led by the appellant to prove that complainant is in fact a social worker and was closely associated with police officials. Moreover, the matters of giving bravery award are not decided at the level of junior police officials, and therefore, it cannot be accepted that two constables had joined hands with the complainant to get a bravery award to her child.
14. The appellant has not given any reason as to why the complainant, her son and police constables have chosen to implicate him in this case, presuming that they wanted a bravery medal for the son of the complainant. This is not the case of the appellant that there was any enmity between him and the complainant or between him and the police constables. He also does not claim to be a bad character of the locality. Therefore, there could have been no reason either for the complainant and her son or for the police officials to implicate the appellant in a false case of armed robbery.
Though according to the appellant, he was taken from his house and implicated in this case, I find that during cross- examination of PW-2, it was suggested to him that the appellant was caught at a distance of about 2 to 4 feet from his house. Thus, contrary defence has been taken as regards the place from where the appellant was apprehended.
15. It was pointed out by the learned counsel for the appellant that PW-1 [ENTITY] had been tutored by his mother as he has admitted in his cross-examination that he had deposed whatever he was told by her mother. In my view, PW1 cannot be said to be a tutored witness. He has specifically denied the suggestion that he would not have deposed if he had not been told so by his mother. This implies that though the mother may have asked him to tell as to what he was expected to depose in the court, his deposition in the court was even otherwise true. The trial court put certain preliminary questions to the child before he was examined on oath. He was asked in which school he was studying. The child gave the name of the school. He also told the court that he knew that he must speak truth because truth is good and telling a lie is very bad. From the questioning of the child, the trial court was satisfied that he understood sanctity of the oath. Thus, it cannot be disputed that this particular witness was capable of understanding the nature of the questions that were put to him and of giving rationale answers to them. He was subjected to cross-examination but on the merits of the case, his testimony could not be impeached during cross-examination. Therefore, he appears to be a reliable and trustworthy witness. In any case, even if the testimony of PW1 [ENTITY] is altogether excluded, the deposition of the complainant corroborated by PW-8 and PW-11 and further corroborated by the recovery of countrymade pistol and stolen jewellery from the search of the appellant otherwise prove the case of the prosecution beyond any reasonable doubt.
16. For the reasons given in the preceding paragraphs, I hold that the appellant has rightly been convicted u/[SECTION]/[SECTION] of [ACT]. [ENTITY], co-accused of the appellant, who was also convicted alongwith him did not prefer any appeal and, therefore, must have undergone the sentence imposed upon him. Though the appellant has been convicted u/[SECTION] of [ACT], the right course would have been to convict him u/[SECTION] of [ACT] r/[SECTION] thereof, as [SECTION] of the [ACT] by itself does not create any specific offence and only prescribes a minimum sentence if a deadly weapon is used or grievous hurt is caused to any person in committing robbery or dacoity or an attempt to cause death or grievous hurt to any person is made.
17. Since the appellant also used a firearm in commission of a robbery, he has also been rightly convicted u/[SECTION] of the [ACT]. As the appellant has been awarded minimum prescribed sentence of 7 years, there is no scope for interfering with the sentence awarded to him.
The appeal being devoid of any merits, the same is hereby dismissed. One copy of this order be sent to the trial court and the other be sent to the Jail Superintendent, Tihar for information of the appellant and for record.
([ENTITY]) JUDGE October 26 , 2009/sk