$~R-10
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 11.03.2014
+ CRL. A.202of 2013
AKRAM @ BABU MUSAHID @ ALI ..... Appellant
Through: Mr. Jivesh Tiwari & Ms. Suman Chauhan,
Advs.
versus
THE STATE (GOVT. OF NCT OF DELHI) ..... Respondent
Through: Mr. Feroz Khan Ghazi, APP with
S.I. Shiv Kumar, P.S. Krishna Nagar.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN
JUDGEMENT
V.K. JAIN, J. (Oral) On 7.2.2011, S.I. Praveen, on receipt of a copy of DD No.67B went to Shamarth Medicos near Khandelwal Hospital where he came to know that two persons in injured condition had been taken to Hedgewar Hospital. When he reached the aforesaid hospital, he found Deepak and Rajiv admitted there. He recorded the statement of Deepak in the Hospital. Deepak inter alia told him that on the aforesaid date, at about 10:40 p.m., he was present at his medical store at B-17, East Krishna Nagar and was Crl. A. No.202 of 2013 Page 1 of 8 engaged in calculating his sale when a boy aged about 20-25 years came to his shop and gave a blow on his head, as a result of which he fell along with the stool. The aforesaid boy intimidated him with a pistol and took him to the rear portion of the shop. In the meanwhile another boy of the same age came inside the shop. He had covered his face with a handkerchief. However, while speaking, his handkerchief somewhat slipped downwards as a result of which the complainant was able to identify him. He claimed that he had seen the aforesaid boy visiting the restaurant above his shop a number of times. He further alleged that the boy who entered the shop first started searching his cash box whereas the boy who entered later searched his purse and took out Rs.5,000/- and a mobile phone from it. In the meanwhile his friends Rajiv @ Bunty came to the shop to take medicine. He, however, was beaten by the aforesaid two boys. He also was taken to the rear portion of the shop and was robbed of his purse containing cash as well as of his mobile phone. Threatening to shoot, both the intruders left the shop along with cash amounting to Rs.60,000-62,000/- and three mobile phones. He also stated that he would find out about the boy whom he had earlier seen a number of times and inform the Investigating Officer.
2. On 10.4.2011, an information was received that Ravi @ Munna S/o Crl. A. No.202 of 2013 Page 2 of 8 Shri Suresh, who had been arrested in a case registered vide FIR No.73/11 of Police Station Krishna Nagar had confessed to his involvement in the aforesaid robbery. Ravi @ Munna thereupon was arrested in this case and his police remand was obtained. He disclosed involvement of Karan who at that time was lodged in Surat Jail and Akram in the aforesaid robbery. On 30.5.2011, Karan was formally arrested after taking permission of the Court and an application was made for holding his TIP. Karan was identified by the complainant during TIP. He, however, was declared a juvenile. The appellant Akram was arrested by the staff of Police Station Jagat Puri and thereafter he was formally arrested in this case with the permission of the Court. He refused to join TIP on 9.1.2012. Thereafter he was seen by the complainant Deepak in the Court and was identified by him.
3. The appellant was charged under Section 382/34 of IPC read with Section 397 thereof as well as under Section 394/34 of IPC. Since he pleaded not guilty to the charge, eight (8) witnesses were examined by the prosecution.
4. The complainant Deepak came in the witness box as PW1 and inter alia stated that on 7.2.2011, when he was present at his shop sitting on his stool and checking his accounts, one person entered his shop, showed a Crl. A. No.202 of 2013 Page 3 of 8 pistol to him and asked him to get up. While he was getting up, the aforesaid person hit him on the head, using the butt of the pistol for the purpose as a result of which he fell down. He further stated that the aforesaid person was followed by another person who had muffled his face with a handkerchief. The second person pulled down the shutter of the shop and thereafter both of them took him to the back of the shop where the person in muffled face gave beatings to him and took out his purse containing Rs.5,000/- and a mobile phone. The other boy went to the counter and took out Rs.60,000-65,000/- besides two (2) mobile phones lying in the said safe. According to the witness in the meanwhile his neighbour Rajiv @ Bunty came to his shop and asked the boy who had taken out money from the locker to call him. That boy asked his associate to send the complainant since his friend had come. Thereafter he brought Rajiv also inside and gave beatings to him. They took out Rs.25,000/- and mobile phone from Rajiv. They also asked him to hand over whatever cash he had and threatened to shoot him in case he did not do so. He also stated that the when boy who had muffled his face was trying to put cartridge in his pistol, the cartridge fell down and when he tried to lift the cartridge, the handkerchief came down up to his chin and his face was seen by him. The Crl. A. No.202 of 2013 Page 4 of 8 complainant claimed that he had seen that boy visiting the wine shop a number of times. However, he did not identify the accused persons and claimed that they were not present in the court. This witness was cross- examined by the learned Additional PP and during cross-examination he denied the suggestion that accused present in the court was one of the persons who had come to his shop with open face and had hit him with the butt of a pistol. He also denied having identified him at Karkardooma Courts Complex on 17.1.2012.
5. PW2 Rajiv is the other eye-witness in this case. He inter alia stated that on 7.2.2011, at about 10:30 p.m. when he went to the shop of Deepak to buy medicine, he found one boy who had covered his face with handkerchief standing at the door of the shop of Deepak. He asked him to call the person inside. However, one of them put a pistol on his side and the other put a pistol, on his head. He also was taken inside the store and was hit with the butt of the pistol on his head. Those boys snatched his purse containing Rs.24,000-25,000/- as well as his mobile phone. While leaving, they threatened to kill in case either of them dared to come out. He further stated that after 5-10 minutes they came out and went to Khandelwal Hospital from where they informed Police Control Room. The witness claimed that he had Crl. A. No.202 of 2013 Page 5 of 8 seen the face of both the assailants. According to him he could see the face of the boy who had muffled his face, at the time he was trying to lift the cartridge which had fallen down. He identified the appellant Akram as the person who had not covered his face.
6. PW6 Dr. Abhishek, proved the MLC of PW1 & PW2 as Ex.PW6/A and Ex.PW6/B respectively.
PW8 Shri J.P. Nahar, was posted as the Metropolitan Magistrate on 5.1.2012, when the application for holding TIP of the appellant Akram was marked to him. According to him he reached the Central Jail on 9.1.2012, where the appellant Akram was produced before him. He was identified by the Assistant Jail Superintendent. Akram, however, refused to participate in the TIP despite the warning given to him.
7. In his statement under Section 313 of Cr.P.C, the appellant denied the allegations against him and claimed to be innocent.
8. Vide impugned judgement dated 4.1.2013, the appellant was convicted under Section 394/34 of IPC read with Section 397 thereof and vide Order on Sentence dated 07.01.2013, he was sentenced to undergo RI for seven (7) years and to pay fine of Rs.5,000/- or to undergo RI for one (1) year in default. Being aggrieved from his conviction & the sentence Crl. A. No.202 of 2013 Page 6 of 8 awarded to him, the appellant is before this Court by way of present appeal.
9. A perusal of the deposition of PW1 Deepak would show that according to him the appellant before this Court was not one of the boys who were involved in the robbery. He was categorical during his examination in the Court that both the boys who entered his shop were not the person in the court. This is not as if he expressed his inability to identify the accused on account of passage of time. He altogether ruled out the possibility of the appellant Akram being one of the boys who had committed robbery in his shop. Though PW2 Rajiv identified the appellant as the boy who had not muffled his face with a handkerchief, considering the emphatic deposition of the complainant, ruling out the possibility of the appellant being one of the boys who had entered his shop and committed robbery, it would not be safe to maintain conviction of the appellant on the basis of identification by PW2 alone, when there is no corroborative evidence in the form of recovery of a stolen article from him. It would be pertinent to note here that it was the complainant who first came across the boy who had not muffled his face. Therefore, the complainant could not have committed mistake in identifying that boy. In any case, if a doubt has arisen with respect to the identity of the accused on account of contradictory depositions Crl. A. No.202 of 2013 Page 7 of 8 made by PW1 and PW2, the benefit needs to be extended to the accused, the legal position being that the onus lies on the prosecution to prove the guilt attributed to the accused beyond reasonable doubt.
10. For the reasons stated hereinabove, the appellant Akram is hereby given the benefit of doubt and is accordingly acquitted.
The appeal stands disposed of accordingly.
One copy of this order be sent to the concerned Jail Superintendent for information and necessary action.
LCR be sent back along with a copy of this order.
MARCH 11, 2014 V.K. JAIN, J.
b'nesh
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