Pramod Kumar vs State

Madhu Jain, J.

The present appeal has been preferred by the appellant, Pramod Kumar, challenging the judgment dated 21.12.2015 and the order on sentence dated 22.12.2015 passed by the learned Additional Sessions Judge-03 (Central), Tis Hazari Courts, Delhi, in Sessions Case No. 88/2015 arising out of FIR No. 115/2012 registered at Police Station Ranjit Nagar, Central District, Delhi. Vide the impugned judgment, the appellant was convicted for the offences punishable under Sections 392, 397 and 411 of the Indian Penal Code, 1860 (hereinafter referred to as ‘IPC’) and Sections 25 and 27 of the Arms Act, 1959 (hereinafter referred to as ‘Arms Act’). The appellant was sentenced to rigorous imprisonment for a period of three (3) years with a fine of ₹1,000/-for the offence punishable under Section 392 IPC, rigorous imprisonment for a period of seven (7) years with a fine of ₹1,000/- for the offence punishable under Section 397 IPC, simple imprisonment for a period of one (1) year for the offence punishable under Section 411 IPC and rigorous imprisonment for a period of three (3) years with a fine of ₹1,000/- for the offence punishable under Section 25 of the Arms Act. In default of payment of each fine imposed under Sections 392 and 397 IPC and Section 25 of the Arms Act, the appellant was directed to undergo simple imprisonment for a period of one month. All the substantive sentences were directed to run concurrently and the benefit of Section 428 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’) was extended to him. The order on sentence does not separately award any sentence for the offence punishable under Section 27 of the Arms Act.

The case of the prosecution is that on 13.07.2012, at about 10:00 a.m., the complainant, Nitin Shukla, along with his friends Mohit and Tanmay, was travelling in a bus from Shadipur Depot towards East Patel Nagar. While they were deboarding near the East Patel Nagar Public Library, the complainant noticed that his Nokia X2-01 mobile phone was missing. It is alleged that when Tanmay dialled the number of the missing phone, its ringtone was heard from the pocket of the appellant. The appellant allegedly took out the phone and discarded its SIM card. When Tanmay sought the return of the phone, the appellant is stated to have taken out a button-operated knife, placed it against his abdomen and threatened to stab him. The appellant was thereafter allegedly apprehended with the assistance of the other passengers and members of the public, and the mobile phone and knife were taken from him. A call was made to the police and, on the basis of the statement of the complainant, the aforementioned FIR was registered.

Upon receipt of the information recorded vide DD Nos. 13-A and 15-A, the police reached the spot. According to the prosecution, the complainant and his friends, with the assistance of Krishan Gopal, handed over the appellant along with the mobile phone and knife to the police. The knife was sketched and seized, the mobile phone was taken into possession and the appellant was arrested. During the course of investigation, the Investigating Officer (IO) collected the documents relating to the mobile phone, the PCR records and the call-detail record. Upon completion of the investigation, the charge-sheet was filed against the appellant.

Upon consideration of the material on record, the learned Trial Court, vide order dated 22.04.2013, framed charges against the appellant under Sections 392, 397 and 411 IPC and Sections 25 and 27 of the Arms Act, as recited in the formal charge. It was alleged that on 13.07.2012, while travelling in Bus Route No. 944 near the East Patel Nagar Public Library, the appellant committed robbery of the complainant’s mobile phone, used a knife while committing the robbery, retained the stolen mobile phone and possessed a button-operated knife without any permit or licence in contravention of the applicable notification issued under the Arms Act. The appellant pleaded not guilty to the charges and claimed trial.

In support of its case, the prosecution examined thirteen (13) witnesses. The complainant, Nitin Shukla (PW-2), and Mohit (PW-3), in their examinations-in-chief recorded on 05.12.2013, narrated the alleged incident, identified the appellant and attributed the recovery of the mobile phone and knife to him. Their cross-examinations were deferred at the request of the defence. When PW-2 was cross-examined on 13.11.2014, he stated that his mobile phone was not found and nobody was apprehended at the spot, and that neither the mobile phone was recovered nor the appellant arrested until about 3:00 p.m., while he remained at the police station. He further stated that his earlier deposition had been made after going through his statement at the instance of the IO and that he had identified the appellant at the instance of the IO. It was further deposed that the contents of Ex. PW-2/A (rukka) had not been narrated by him to the police and that the seizure memos of the knife and mobile phone and the sketch of the knife had been prepared at the police station. PW-3, when cross-examined on 28.01.2015, stated that the mobile phone had not been recovered after the incident, that the appellant had not been apprehended until about 3:00/4:00 p.m., while the witnesses remained at the police station and that he had seen the appellant for the first time before the Court.

Tanmay (PW-4) in his examination-in-chief deposed, that the mobile phone of PW-2 had gone missing and that he had made a call to the police. He, however, did not support the prosecution regarding the ringtone having emanated from the appellant’s pocket, the recovery of the mobile phone and knife, or the alleged threat extended with the knife. Krishan Gopal (PW-6), the independent public witness, stated that members of the public had apprehended one person following an incident of pickpocketing, but he was unable to identify that person and did not support the material particulars attributed to him. PW-4 and PW-6 were cross-examined by the learned Additional Public Prosecutor at the time.

HC Shiv Lal (PW-5), the PCR official, deposed that the complainant and his friends had apprehended the appellant with the assistance of PW-6 and had handed him over along with the recovered mobile phone and knife. SI Khajan Singh (PW-13), the Investigating Officer (IO), also deposed regarding the apprehension of the appellant, the alleged recoveries, preparation of the seizure documents and arrest of the appellant. Dr. Shaily Meena (PW-1) proved the medical examination of the appellant. HC Ravi Kumar (PW-7) proved the relevant DD entries and registration of the FIR, while HC Surender Kumar (PW-9) and Ct. Anil (PW-10) proved the PCR records. Dinesh Kumar (PW-8) proved the notification issued under the Arms Act. Saurabh (PW-11) proved the invoice relating to the mobile phone, and Hemant Singh (PW-12) proved the call-detail record (CDR), customer application form and the certificate under Section 65B of the Indian Evidence Act, 1872 (hereinafter referred to as ‘Evidence Act’).

After the conclusion of the prosecution evidence, the incriminating circumstances appearing against the appellant were put to him in his statement recorded under Section 313 CrPC. The appellant denied the prosecution evidence and claimed false implication. He stated that he had gone to Sir Ganga Ram Hospital by a TSR for treatment of a cyst on his upper lip and had been picked up by the police from the gate of the hospital. He further stated that the IO had implicated him because he had not appeared before him despite being directed to do so and that the IO bore a grudge against him. The appellant did not lead any evidence in his defence.

Upon appreciation of the evidence on record, the learned Trial Court relied upon the examination-in-chief of PW-2 and PW-3. It observed that their cross-examination had been recorded after a substantial interval and that the order dated 16.07.2014 reflected that the complainant and the appellant had sought an adjournment to approach this Court for quashing of the FIR. The learned Trial Court held that the subsequent departure of these witnesses from their examination-in-chief did not render their earlier testimony wholly unreliable. It further relied upon the portions of the testimony of PW-4 which it found reliable, the deposition of PW-5 and the PCR record concerning the apprehension of a person and the recovery of a mobile phone and knife. The learned Trial Court consequently held that the apprehension of the appellant, recovery of the mobile phone and knife, and use of the knife during the commission of the robbery stood proved beyond reasonable doubt. Accordingly, the appellant was convicted for the offences punishable under Sections 392, 397 and 411 IPC and Sections 25 and 27 of the Arms Act.

Thereafter, arguments on the quantum of sentence were heard. On behalf of the appellant, leniency was sought on the grounds that he was about forty years of age, had a wife and four children, was the sole earning member of his family, had his father to look after and had no previous criminal antecedents. The learned Trial Court, however, having regard to the circumstances in which the offence was found to have been committed and the use of a knife, declined to extend the benefit of leniency and imposed the sentences noticed hereinabove.

Aggrieved by the aforesaid conviction and the order on sentence, the appellant preferred the present criminal appeal before this Court. The appeal was admitted vide order dated 27.01.2016. Although the appellant’s initial application seeking suspension of sentence was dismissed on 15.03.2016, his sentence was subsequently suspended vide order dated 19.07.2017 and his release on bail was directed, subject to the conditions stipulated therein.

Learned counsel appearing on behalf of the appellant submitted that the conviction cannot be sustained since the material public witnesses had not supported the case of the prosecution when their testimonies were read in their entirety. It was contended that the learned Trial Court had nevertheless relied substantially upon the examinations-in-chief of PW-2 and PW-3, notwithstanding the material departures made by them during their cross-examination.

Drawing attention to the testimony of PW-2, Nitin Shukla, learned counsel submitted that his examination-in-chief was recorded on 05.12.2013, whereas he was cross-examined on 13.11.2014, after an interval of almost one year. It was submitted that during his cross-examination, PW-2 admitted that his earlier deposition had been made after going through his statement at the instance of the Investigating Officer, that he had identified the appellant at the instance of the Investigating Officer, that the appellant had not been apprehended at the spot and that the seizure memos and the sketch of the knife had been prepared at the police station. It was urged that these admissions rendered his earlier version unsafe to rely upon.

Learned counsel further submitted that PW-3, Mohit, whose examination-in-chief was also recorded on 05.12.2013, did not support the prosecution case during his cross-examination recorded on 28.01.2015. PW-4, Tanmay, likewise did not support the prosecution version concerning the alleged recovery and use of the knife and was cross-examined by the learned Additional Public Prosecutor (APP) also.

Learned counsel also drew attention of this Court towards the impugned judgment, wherein the learned Trial Court relied upon the interval between the examinations-in-chief and cross-examinations of PW-2 and PW-3 and upon portions of the testimony of PW-4. On the basis of the aforesaid made submissions, it was submitted that the conviction could not be sustained.

Learned APP appearing on behalf of the State opposed the appeal and submitted that PW-2 and PW-3 had supported the prosecution’s case during their examinations-in-chief. It was further submitted that the stolen mobile phone had been recovered from the possession of the appellant and that the said recovery supported the prosecution’s case. The conviction of the appellant was, accordingly, sought to be sustained.

In rebuttal, the learned counsel appearing on behalf of the appellant reiterated that PW-2 had expressly admitted that his earlier deposition was made after going through his statement at the instance of the IO. It was further submitted that the further examination of PW-4 had been deferred at the request of the learned APP and that when he (PW-4) was subsequently examined, he did not support the prosecution’s case, and that he was further cross-examined by the prosecution also wherein he did not support its case again either. It was thus contended that reliance upon the earlier examinations-in-chief of the witnesses was misplaced.

This Court has heard the learned counsel appearing on behalf of the appellant and the learned APP for the State and has also perused the evidence placed on record.

The principal question that arises for consideration of this Court in the present appeal is whether the subsequent departures made by PW-2 and PW-3 in their cross-examinations efface their earlier sworn testimony, and whether the evidence, read as a whole, proves the robbery, the use of the knife and the apprehension of the appellant at the spot.

Since the principal controversy in the present appeal arises from the materially divergent versions given by PW-2 and PW-3 in their examinations-in-chief and their subsequently recorded cross-examinations, this Court considers it apposite to reproduce the relevant portions of their depositions. Their cross-examinations, recorded after substantial intervals, contain departures bearing upon the core of the prosecution’s case. The re-examination of PW-2 also assumes significance, as it directly addresses the explanation offered for the change in his version. The evidentiary worth of these witnesses cannot, therefore, be assessed by referring to isolated answers or by reading one part of their testimony to the exclusion of the other. Accordingly, the material portions of their examinations-in-chief and cross-examinations, together with the re-examination of PW-2, are set out below, so that their testimony may be evaluated as a whole and tested against the independent corroborative evidence available on record.

(Emphasis supplied)

Section 3 of the Evidence Act includes within the ambit of “oral evidence” all statements which the Court permits or requires witnesses to make before it, while Sections 137 and 138 of the same regulate the examination-in-chief, cross-examination and re-examination of witnesses. The testimony of a witness must always be read as a whole and assessed with due care and caution. A statement recorded by the police under Section 161 CrPC does not ordinarily constitute substantive evidence but subject to the exceptions preserved under Section 162(2) CrPC, such a statement may be used for the limited purpose of contradicting its maker, when examined as a prosecution witness, in terms of the proviso to Section 162(1) CrPC and in the manner prescribed under Section 145 of the Evidence Act. Section 154(2) of the Evidence Act further makes it clear that a party permitted under Section 154(1) to put questions to its own witness in the nature of cross-examination is not precluded from relying upon any part of that witness’s evidence. Thus, neither the witness’s subsequent departure from the version given in examination-in-chief nor the permission granted to the prosecution to cross-examine its own witness has the effect of effacing the entire testimony from the record. The Court may rely upon such part of the testimony as it finds credible and trustworthy upon a careful scrutiny of the deposition as a whole and in the light of the other evidence available on record.

The Supreme Court has repeatedly cautioned against granting long adjournments between the examination-in-chief and cross-examination of a witness. In Vinod Kumar v. State of Punjab, (2015) 3 SCC 220, the Supreme Court deprecated the long interval of one year and eight months between the examination-in-chief and cross-examination of the witness, observing that it afforded ample time to pressurise or win him over. The Court held that the evidence of such a witness must be read in its entirety and that the dependable portion of his earlier testimony could not be discarded merely because he subsequently prevaricated. It further emphasised that cross-examination should ordinarily be completed on the same day as the examination-in-chief.

Further, in Rajesh Yadav v. State of U.P., (2022) 12 SCC 200, the Apex Court reiterated that prolonged adjournments following examination-in-chief may, with the passage of time, enable private witnesses to be won over. It reaffirmed, that the testimony of a witness who subsequently turns hostile is not effaced from the record and that those portions which are found dependable upon careful scrutiny may be relied upon. The Court accordingly in this case directed that the Trial Courts endeavour to complete the examination-in-chief and cross-examination of private witnesses on the same day, as far as possible. The relevant portion of the aforesaid judgment is as follows:

Section 309 CrPC likewise mandates that, once the examination of witnesses has commenced, it shall proceed from day to day unless the Court finds it necessary to adjourn the proceedings for reasons to be recorded. More recently, in Selvamani v. State of T.N., (2024) 19 SCC 112, the Supreme Court upheld reliance upon the examination-in-chief of a witness, which stood corroborated by the other material on record, despite the witness having altered his version when cross-examined after an intervening period.

The same principle was applied by a Coordinate Bench of this Court in Babu Ram v. CBI, 2014 SCC OnLine Del 2838, wherein the witness supported the prosecution during examination-in-chief but resiled from that version when cross-examined after an interval. The Court in this case accepted the credible part of the concerned witnesses’ examination-in-chief, as it stood corroborated by the remaining evidence on record. The governing principle, therefore, is neither that the testimony given in examination-in-chief must invariably prevail over a subsequent contrary statement made in cross-examination, nor that the subsequent retraction automatically effaces the earlier sworn testimony, but, that the testimony of a witness who subsequently resiles or makes a contrary statement in cross-examination does not stand effaced from the record. That the deposition must be read and assessed as a whole in light of the entire evidence on record, and the Court must determine which part of it is truthful, dependable and acceptable.

In the present case, the examinations-in-chief of PW-2 and PW-3 were recorded on 05.12.2013. Their cross-examinations were deferred at the request of the defence and were eventually recorded on 13.11.2014 and 28.01.2015, respectively. The order dated 16.07.2014 further records that the complainant and the learned counsel for the appellant jointly sought an adjournment to approach this Court for quashing of the concerned FIR. Now that order is not, by itself a proof of any compromise or inducement, but it is however, a relevant intervening circumstance when assessing the materially altered versions subsequently given by PW-2 and PW-3.

In their examinations-in-chief, PW-2 and PW-3 furnished a coherent account of the occurrence. They deposed that the mobile phone was found missing, that its ringtone was thereafter heard emanating from the appellant’s pocket, that the appellant took out the mobile phone and discarded its SIM card and that he placed a knife against PW-4 and threatened to stab him. They further deposed that the appellant was apprehended at the spot and that the mobile phone and the knife were taken from him. Both of the above witnesses also, identified the appellant, the mobile phone and the knife before the Court.

It is true, that the cross-examinations recorded subsequently contain material departures from the aforesaid account but those departures cannot be considered in isolation from the remainder of their testimony. In his re-examination, PW-2 admitted that he was a graduate, that he signs documents only after reading them, that his mobile phone had been stolen and that PW-4 had called his number. He had also identified the mobile phone before the Court. He further admitted that, on 05.12.2013, he had not complained to the Court that the Investigating Officer (IO) had compelled him to depose in any particular manner. PW-3, for his part, stated that his police statement had merely refreshed his memory and that he had narrated to the police what had occurred. Now although, the cross-examinations recorded subsequently contain material departures from the aforesaid account, those departures do not constitute a credible correction of the earlier testimony. PW-2’s assertion that he had deposed on 05.12.2013 at the instance of the IO is materially weakened by his admission that he did not complain to the Court on that date of any pressure having been exerted upon him. His further admission that he ordinarily signed documents only after reading them is inconsistent with his claim that he had signed blank or written papers without reading their contents. Significantly, even while resiling from the incriminating part of the occurrence, he continued to admit that his mobile phone had been stolen, that PW-4 had called his number and that he had identified the handset before the Court. PW-3 likewise clarified that his statement given to the police had merely been used to refresh his memory and affirmed that he had narrated to the police what had occurred. These answers somewhere demonstrate that the subsequent versions were not coherent alternative accounts of the incident but selective retractions of those facts which implicated the appellant. This Court is, therefore, not persuaded to discard their examinations-in-chief merely on the basis of those later denials, particularly when the earlier account receives independent corroboration from the evidence discussed hereafter. At this stage, it is also material to note that, in Vinod Kumar v. State of Punjab (supra), the Supreme Court treated the interval of one year and eight months between the examination-in-chief and cross-examination as having afforded ample time to pressurise or gain over the witness and held that the resulting prevarication did not justify brushing aside the earlier testimony when the evidence was read in its entirety. The present case must be assessed on the very same principle, particularly since PW-2 and PW-3 resiled only after intervals of approximately eleven months and nearly fourteen months, respectively.

The account furnished by PW-2 and PW-3 in their examinations-in-chief as stated above, also receives independent corroboration from the testimony of PW-5, the PCR official. PW-5 deposed that, upon reaching the East Patel Nagar bus stand near Metro Pillar No. 164, he found that the appellant had been apprehended by PW-2, PW-3 and PW-4 with the assistance of PW-6. He further stated, that the appellant, along with the mobile phone and the knife, was handed over to the IO. His testimony was met merely with bare suggestions, and no material contradiction could be elicited from him. PW-6, despite being unable to identify the appellant before the Court, supported the occurrence of a mobile phone theft, the gathering of members of the public and the apprehension of one person before the arrival of the police.

The contemporaneous official record, lends further assurance to the prosecutions version. DD No. 15-A and the proved PCR material, record that a pickpocket had been apprehended near Metro Pillar No. 164. The PCR message likewise records, that a snatcher had been apprehended and that a mobile phone and a knife had been recovered. The IO also deposed that the appellant was produced at the spot by the complainant and his companions along with the recovered articles. The present case is therefore, not one of a belated arrest founded upon a doubtful test identification or of a recovery subsequently engineered by the investigating agency. The appellant’s apprehension at the spot stands established by mutually reinforcing oral evidence and contemporaneous documentary material.

The explanation offered by the appellant in his statement under Section 313 CrPC that he had been picked up from the gate of Sir Ganga Ram Hospital and falsely implicated on account of a grudge borne by the IO remained a bare assertion. No document relating to his treatment, circumstance concerning his movements or other material was produced to render the explanation probable. The said explanation does not displace the cogent evidence adduced by the prosecution.

The substantial interval preceding the cross-examinations, the intervening request for quashing of the proceedings, the abrupt and internally inconsistent departures made thereafter, and the independent corroboration available in support of the earlier account, cumulatively justify the conclusion that the subsequent retractions were not truthful. The legal significance of these circumstances is reinforced by the Supreme Court’s decision in Selvamani v. State of T.N. (supra), wherein, after noticing that the witnesses had resiled in their cross-examinations recorded three and a half months after their examinations-in-chief, the Court held that the long gap supported the inference that they had been won over, while accepting their earlier version because it stood sufficiently corroborated by the other evidence on record. These circumstances altogether, do indicate, that PW-2 and PW-3 had come under an intervening influence. The finding of guilt however, does not rest upon that inference alone. It rests upon the reliable portions of their sworn testimony, read together with the testimony of the PCR official and PW-6, the contemporaneous DD and PCR records, the evidence of the IO, and the recoveries proved during the trial.

The evidence accepted above establishes that, while carrying away the stolen mobile phone, the appellant placed the knife against PW-4 and threatened to stab him when the phone was demanded. The convictions under Sections 392 and 397 IPC, therefore, warrant no interference. The proved possession and carrying of the button-operated knife in a public place, in contravention of the notification dated 17.02.1979 issued under Section 4 of the Arms Act, also sustains the conviction under Section 25(1B)(b) of that Act.

The impugned judgment however, calls for modification on two limited aspects. First, this Court is of the opinion that the conviction of the appellant under section 411 IPC cannot be sustained. In Mir Nagvi Askari v. CBI, (2009) 15 SCC 643, the Supreme Court explained that Section 411 IPC is directed against a receiver of stolen property and not against the principal thief, robber or mis-appropriator. The relevant portion depicting as aforesaid, is as under:

Secondly, the conviction under Section 27 of the Arms Act cannot be sustained. In Surinder Singh v. State (UT of Chandigarh), (2021) 20 SCC 24, the Apex Court held that, to establish an offence under Section 27, the prosecution must necessarily prove contravention of either Section 5 or Section 7 of the Arms Act. The same shall be clear from the relevant portions reproduced below:

Now in the present case, the contravention proved against the appellant is confined to the possession and carrying of the button-operated knife in a public place in breach of the notification dated 17.02.1979 issued under Section 4 of the Arms Act. But the prosecution has neither established, that the use of the said knife was in contravention of Section 5 nor proved, that it was a prohibited arm within the meaning of Section 7. Therefore, a contravention of the notification issued under Section 4 cannot substitute the statutory requirement under Section 27.

Accordingly, the conviction of the appellant under Section 27 of the Arms Act is liable to be set aside, while his conviction under Section 25(1B)(b) of the Act shall remain undisturbed.

In view of the discussion hereinabove, the conviction of the appellant under Section 411 of IPC and Section 27 of the Arms Act is set aside. Consequently, the sentence imposed vide the order on sentence dated 22.12.2015 for the offence punishable under Section 411 IPC is also set aside.

However, the conviction of the appellant under Section 392 of IPC, Section 397 of IPC and Section 25(1B)(b) of the Arms Act, together with the sentences imposed thereunder, stands affirmed. The substantive sentences imposed for the same shall run concurrently and the appellant shall be entitled to the benefit of set-off under Section 428 CrPC.

Therefore, the judgment of conviction dated 21.12.2015 and the order on sentence dated 22.12.2015, stand modified to the aforesaid extent.

Since the sentence of the appellant was suspended by a Coordinate Bench of this Court vide an order dated 19.07.2017, he shall now surrender before the concerned learned Trial Court within a period of two (2) weeks from the date of pronouncement of this judgment to undergo the remainder of the sentence. In the event of his failure to surrender within the stipulated period, the concerned learned Trial Court shall take appropriate steps to secure his custody.

Therefore, the present criminal appeal is partly allowed in the aforesaid terms and is accordingly, disposed of.

Pending application(s), if any, also stand(s) disposed of.

Interim order(s), if any, also stand(s) vacated.

A copy of this judgment be sent to the concerned learned Trial Court as well as the concerned jail superintendent for information and necessary compliance.

This judgment be uploaded on the website forthwith.