Bhupender Singh @ Bhupi vs State

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                  Date of Judgment:19.05.2014.

+      CRL.A. 139/2006
       BHUPENDER SINGH @ BHUPI
                                                           ..... Appellant
                          Through       Mr. Ajit Sharma, Adv.

                          Versus

       STATE
                                                       ..... Respondent
                          Through       Mr. Varun Goswami, APP


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J. (Oral)

1 This appeal is directed against the impugned judgment and order of sentence dated 27.01.2006 & 31.01.2006 respectively wherein the appellant along with his accomplice has been convicted under Section 392 read with Section 34 of the IPC and has been sentenced to undergo RI for a period of 3 years and to pay a fine of Rs.5,000/- and in default of payment of fine, to undergo SI for 3 months.

2 Nominal roll of the appellant has been requisitioned which reflects that as on date when he had been granted bail i.e. on 18.07.2006, Crl. Appeal No.139/2006 Page 1 of 6 he had undergone incarceration of about 2 months and 7 days. 3 Investigating machinery has been set into motion by Vidhya Devi (PW-1). Her allegation was that on 17.11.2004 at about 12 noon, she was present at her house i.e. House No. A-5, Gali No. 1, Mahavir Enclave, Part III, New Delhi; she being alone in her house; her children having gone to school and her husband being lodged in judicial custody in a case relating to Narcotics, two persons entered her house. Appellant Bhupinder gagged her mouth; his accomplice locked the door. Appellant took out a knife and asked to handover the key of the almirah to him; In almirah Rs.50,800/- were lying in a red purse; the same was removed as well as her passbook. Her silver ornaments and gold ear rings were also taken away. The accused persons had bolted the door from outside. Further deposition of PW-1 being that she had raised alarm; her neighbours opened the door; some of her neighbours went on motor- cycle and chased them; they managed to apprehend accused Bhupinder; her purse and cash was recovered from him. Police was called. 4 In her cross-examination, she admitted that a sum of Rs.39,890/- which was recovered from the accused was taken on superdari by her; she had informed the police at about noon time; she was alone in the Crl. Appeal No.139/2006 Page 2 of 6 house at that time. She further admitted that the accused persons had bolted the door from outside; she had raised alarm. The 'pradhan' of their neighborhood had also reached the spot. One of their neighbours who was a police officer had apprehended the appellant. Her thumb impression was taken on some papers. She admitted that she knew SI Lal Singh (PW-3). He was residing in Bindapur Police Station; she further deposed that PW-3 came to her house at 02:00 PM. She admitted that her husband was a vendor and was selling utensils on pheri; he at that time being in jail in a NDPS case and was in custody for the last 2-3 years. She admitted that he had left no money with her. She further admitted that she was doing the job of cleaning utensils and cleaning houses of others; she was earning Rs.800/- per month. She admitted that she let out two rooms on rent for which she was getting Rs.600/- each. She admitted that PW-3 SI Lal Singh used to visit her house and she also used to visit him. She admitted that she needed Rs.50,000/- to get her husband released from jail and she had to give Rs.40,000/- to her lawyer. She denied the suggestion she in connivance with PW-3 had falsely implicated the appellant in the present case. 5 SI Lal Singh has been examined as PW-3. He was posted at PS Crl. Appeal No.139/2006 Page 3 of 6 Janakpuri. This offence relates to PS Dabri. Testimony of PW-3 is that on the fateful day i.e. on 17.11.1994 he was on patrolling duty. He received a secret information that one badmas wil come at Bihar Dhabha who was involved in a 'lootmar'. He along with SI R.D. Yadav (PW-4) constituted a raiding party and the accused Bhupinder was seen coming from Najafgarh side. At the pointing out of the informer, the appellant was apprehended and from his search, a red colour purse was recovered which contained Rs.39,890/- plus a passbook in the name of the complainant Vidhya Devi.

6 In his cross-examination, PW-3 stated that he had not met Vidhya Devi before 18.11.1994 and nor did she came to meet him in the police station. In another part of cross-examination, he admitted that he knew Vidhya Devi. He denied the suggestion that no recovery has been effected from the accused and a false case has been planted upon him at the behest of Vidhya Devi.

7 SI R.D. Yadav (PW-4) who had accompanied PW-3 was also examined on oath. He had toed the line of PW-3. He had also deposed that it was on the information of a secret informer that the appellant was apprehended.

8 Relevant would it be to point out that the version of PW-3 who had arrested the accused at 10:00 pm from a dhaba in the Janak Puri area while he was on patrolling duty is in contrast with the version of PW-1; PW-1 has deposed that the accused was apprehended when the neighbors were chasing the appellant and they were successful in apprehending him. From him, recovery of purse and passbook had been effected. This is in contrast with the version of PW-3 who had stated that on a secret information, the accused was apprehended at 10:00 pm on the same day.

9 PW-3 has denied the suggestion that he knew PW-1 whereas PW-1 has admitted this fact. PW-1 was a lady of little means; she was earning her livelihood by washing utensils and was earning Rs.800/- per month. It would be difficult to imagine that PW-1 who has two school going children and her husband being lodged in judicial custody in a Narcotic matter was having a sum of Rs.50,000/-; she admitted that she needed Rs.50,000/- for the release of her husband from jail. She also admitted that her husband was in the jail for the last 2-3 years. In this background, how this amount of Rs.50,000/- came to be lying in the almirah of PW-1 becomes questionable? From where, she had collected Crl. Appeal No.139/2006 Page 5 of 6 so much money when she had no earning; it was difficult for her to meet her own ends. The further admitted position that PW-3 was known to the complainant but he has denied this factum; also makes the situation suspicious. Moreover as per PW-3 and PW-4, the accused was apprehended at 10:00 pm but the version of the victim (PW-1) is totally different; her version is that the accused had been apprehended by the neighbours.

10 In this background, the accused having been convicted for the offence under Section 392 of the IPC by the trial Judge, the impugned judgment suffers from a severe illegality. Benefit of doubt has to accrue in favour of the appellant. Accordingly, giving him benefit of doubt, he is acquitted of the charges leveled against him. Bail bonds be cancelled; surety discharged.

11     Appeal allowed in the above terms.



                                       INDERMEET KAUR, J

MAY 19, 2014
A



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