* IN THE HIGH COURT OF DELHI AT NEW DELHI
RESERVED ON : 15th January, 2014
DECIDED ON : 21st January, 2014
+ CRL.A. 831/2012 & Crl.M.B.No.1329/2012
JAVED @ GALLA PHAD ..... Appellant
Through : Mr.Vaibhav Sharma, Amicus
Curiae.
VERSUS
STATE NCT OF DELHI ..... Respondent
Through : Mr.Lovkesh Sawhney, APP.
CORAM:
MR. JUSTICE S.P.GARG
S.P.GARG, J.
1. Javed @ Galla Phad (the appellant), Amarjeet (Proclaimed Offender), Bantoo @ Dev Prakash (Proclaimed Offender), Satpal, Jairam Dass and Suresh (all acquitted) were arrested by the police of Police Station Uttam Nagar in case FIR No.952/2005 and sent for trial on the allegations that on 19.10.2005 in between 03.00 A.M. to 03.30A.M. at plot No.20, Matiala Extension, Uttam Nagar, they committed robbery and deprived Rajbir Bhargav, owner of the factory, teeth yokes, bearings and electric motors using deadly weapons. It was further alleged that on Crl.A.No.831/2012 Page 1 of 6 23.12.2005 Javed @ Galla Phad, Amarjeet, Bantoo @ Dev Prakash were apprehended and arrested. Pursuant to their disclosure statement, some robbed articles were recovered from Suresh, Jai Ram Dass and Satpal. During the course of investigation, statements of witnesses conversant with the facts were recorded. After completion of investigation a charge- sheet was filed against the accused persons under Sections 458/380/411/34 IPC. The Metropolitan Magistrate vide order dated 31.03.2006, prima facie, found commission of offence under Section 397 IPC and committed the case to Sessions. Javed was charged for committing offence under Section 397 IPC, Amarjeet, Bantoo @ Dev Prakash were charged under Sections 394/34 IPC and Jairam Dass, Suresh and Satpal were charged under Section 412 IPC. Accused persons pleaded not guilty to the charges and claimed trial. To bring home the charges, the prosecution examined eleven witnesses. In their 313 statements, the accused persons pleaded not guilty and claimed trial. Amarjeet and Bantoo @ Dev Prakash absconded during trial and were declared Proclaimed Offenders. On appreciating the evidence and after considering the rival contentions of the parties, the Trial Court by the impugned judgment convicted Javed under Section 397 IPC. Jairam Dass, Crl.A.No.831/2012 Page 2 of 6 Suresh and Satpal were acquitted of all the charges. It is significant to note that the State did not challenge their acquittal.
2. I have heard the learned counsel for the parties and have examined the record. The appellant's conviction is based upon the sole testimony of PW-3 (Arun Kumar), Chowkidar in the factory, who identified him during deposition in the court as one of the assailants. The occurrence took place in the night intervening 18/19-10-2005 at about 03.00 A.M. PW-3 (Arun Kumar) did not inform the owner of the factory or the police soon after the occurrence. Rather he went to sleep and purportedly informed PW-2 (Rajbir Bhargav) at 08.00 A.M. Daily Diary (DD) No.7 (not proved) was recorded at PP Matiala at 09.30 A.M. on 19.10.2005 about a theft in the said factory. PW-3 (Arun Kumar) did not accompany the owner of the factory to the police station to lodge report. Strange enough, the First Information Report was lodged after recording statement of Rajbir Bhargav (Ex.PW-2/A). It is unclear as to why the statement of victim-Arun Kumar, who had witnessed the incident was not recorded and the FIR was not lodged on his statement. Even in the statement (Ex.PW-2/A) the complainant merely mentioned 'theft' of some articles in the factory. The number of the assailants and the manner in which the incident occurred was not revealed. Rukka (Ex.PW-9/A) does Crl.A.No.831/2012 Page 3 of 6 not record presence of PW-3 (Arun Kumar) at the spot at the time of lodging report under Section 457/380 IPC. The rukka was sent at about 11.40 A.M. after a considerable delay which has remained unexplained. Presence of PW-3 (Arun Kumar) at the time of occurrence has not been established beyond reasonable doubt. PW-3's conduct is unnatural; he did not raise alarm at the time of occurrence and conveniently went to sleep. He was not taken for medical examination to ascertain the injuries sustained by him during the occurrence. He was not sure about the number of assailants. Allegedly, the robbed articles were carried away on a cycle-rickshaw. However, Arun Kumar did not attempt to chase the culprits. The appellant-Javed was arrested on 23.12.2005 after about two months of the incident. No efforts were made by the Investigating Officer for test identification soon after his apprehension. There is considerable delay without any explanation for moving the TIP application on 03.01.2006. The appellant alleged that he declined to participate in the TIP proceedings as he was shown to the witnesses. No knife was recovered from the appellant's possession at the time of his arrest. The Trial Court did not believe the prosecution case regarding the recovery of the robbed articles from him or at his instance and made observations in the impugned judgment :-
Crl.A.No.831/2012 Page 4 of 6
"All these contradictions in the testimony of the witnesses, coupled with the fact that no public witness was joined and the police witnesses also turned hostile and were cross- examined by learned Addl.PP on the point of recovery, in my opinion, prosecution has not been able to prove the recovery from the possession of accused Satpal, Jairam and Suresh. No doubt, this evidence also creates doubt about the manner of arrest of accused Javed and recovery from him, but there is other overwhelming evidence against the accused, regarding his involvement in the commission of offence of dacoity, as deposed by PW-3."
It shows that the Trial Court itself was not convinced with the arrest and recovery of the articles at the instance of the appellant. The complainant did not give broad features of the assailants. The occurrence had taken place during night hours and allegedly there were four or five assailants. Identification of the appellant in the court for the first time after a gap of four years without any specific mark of identity is doubtful.
Broken lock was not seized.
3. In the light of the above discussion, conviction of the appellant cannot be sustained as the prosecution was unable to establish the case beyond reasonable doubt. The appellant also deserves benefit of doubt and is acquitted. The appeal is accepted; the conviction and sentence of the appellant are set aside. The appellant be set at liberty Crl.A.No.831/2012 Page 5 of 6 forthwith, if not required in any other case. Pending application also stands disposed of.
4. Trial Court record along with a copy of this order be sent back forthwith. A copy of the order be sent to Jail Superintendent, Tihar Jail for intimation.
(S.P.GARG) JUDGE JANUARY 21, 2014 sa Crl.A.No.831/2012 Page 6 of 6