Shamim Rehmani vs State
1991 Latest Caselaw 663 Del

JUDGMENT

S.C. Jain, J.

(1) Shamim Rehmani, herein after called the appellant, filed this appeal from jail challenging the judgment and order of the Addl. Sessions Judge dated 28-2-91, whereby he was convicted and sentenced to rigorous imprisonment of 5 years and a fine of Rs. 4000.00 and in default of payment of fine to further under rigorous imprisonment for one year under Section 392 Ipc ; to undergo rigorous imprisonment for five years and to pay a fine of Rs. 5000.00 or in default of payment of fine to undergo rigorous imprisonment for one year under Section 394 Indian Penal Code ; further undergo rigorous imprisonment for eight years and to pay a fine of Rs. 5000.00 or in default of payment of fine to further undergo rigorous imprisonment for one year under Section 397 IPC. The sentence of imprisonment were ordered to run concurrently.

(2) In brief, the prosecution version is that on 7-289, at about 4 a.m. at house No 4189, Id Bazar, within Police Station Jama Masjid the appellant committed robbery of articles belonging to one Abdul Naseem Beg and his wife and while committing robbery he caused injury to Mst. Sofia Khannam and that he also used deadly weapon and took out a knife at the time of committing robbery. On these allegations he was charged for offences punishable under Sections 392, 394 and 397 IPC.

(3) In support of its version the prosecution examined ten witnesses 'in all. Mirza Abdul; Naseem Beg (Public Witness 1) is the complainant, Mst. Sofia Khannam, (PW2) is the wife of the complainant. Dr. Prem Kumar (Public Witness 10) has proved Mlc Ex. PW10/1 which shows that on 8-2-89 at 10 a.m. he examined Mst. Sofia Khannam and no visible external injury was seen by him. The movement of arms and shoulder joint were normal. No tenderness on deep palpation. He only stated that the patient complaint of pain in scalp due to scratching or hair but there was no injury on the scalp. Some abrasions were found which were simple in nature which could have been caused by blunt object,

(4) To arrive at a conclusion whether the appellant was guilty or not the evidence of the complainant and his wife has to be scrutinized minutely, as they are the only alleged eye witnesses of the occurrence. A perusal of the statement of both these witnesses show that have contradicted themselves on most material points touching the root of the matter and creating doubt in the mind of an ordinary prudent man about the alleged occurrence. In his cross-examination, the complainant stated that on 7.2.89 at about 4 a.m. he had gone to attend the call of nature and when he was urinating, he had heard some noise in .the room. When he went inside the room and switched on the light he found the appellant in the room with an open knife in his hand. The appellant used to reside in the neighborhood. His wife Mst Sofia Khannam was sleeping In that very room. The appellant tied the complainant with a chair but he did not resist. The appellant had not gagged his mouth. The appellant took his wife at the point of knife upstairs. Later on he came to know that the accused had taken cloths, wrist watch and jewellery in two attachee cases, but no injury was inflicted either on him or on his wife with the knife. They did not raise any alarm. His father was sleeping in the side room but did not come there. The appellant took about two hours in collecting the articles. Mst Sofia was given beating with a belt which the appellant had taken from the complainant. She handed over the articles to the appellant which he took in two attachee cases. They did not report the matter to the police till noon, nor they raised any alarm. They even did not inform any of their neighbour. They did not see from their room as to from which side the appellant had left with the attachee cases. The house of the complainant is situated in a thickly populated area surrounded by houses on all sides. After this occurrence the natural course, when the appellant had left with the robbed articles, was that the complainant and his wife ought to have shouted for help or would have raised alarm inviting the attention of the neighbours but this has not been done, as per the prosecution case. No report to the police was made immediately thereafter, instead they waited till such time they met an Asi in the Bazar at noon time i.e. after a couple of hours. What had prevented them from going to the police station to lodge a report after the occurrence has not been explained. The delayed Fir is itself fatal in these circumstances of the case. The complainant and his wife already knew the appellant accused as he was residing in their neighborhood. They have not named the appellant as the assailant immediately after the occurrence to anyone. Besides, lodging the Fir after a considerable time, medical examination of the complainant's wife was also not got done on that very day. It was only on the next day that she was got medically examained. Even in the medical examination no injury was found on her person which could be described as a knife injury when he was holding a knife in his hand according to the complainant and his wife. The recovery of knife and the stolen property from the appellant is very much doubtful, In this case another person Mohd. Ahsan is also challaned under Section 411 as according to the prosecution one attachee case containing the stolen articles were recovered from his house. That story of the prosecution was not believed by the Addl. Sessions Judge Delhi as no witness from the Mohalla was joined at the time of recovery. As one of the part of the prosecution story has not been believed by the trial Court, it is to be seen whether the other part of the. prosecution version i.e. the recovery of the other attachee case from the accused at the railway station is believable or not. In this regard, though as per the prosecution case the appellant was apprehended at the railway station when he was going to Bombay and attachee case was recovered from him containing the stolen property which was taken into possession at the railway station but strangely enough no witness from the public was joined at the time of recovery. It is not disputed that so many persons from public were available at the railway station as per the statement of the 1.0. itself. The arrest of the accused at the railway station is very much doubtful. Neither the complainant nor the wife had gone along with the police, though as per the prosecution they had prior information that the accused was going to Bombay by deluxe train. It is PW3 who had allegedly accompanied the police party for that purpose. Even as per the statement of PW3 he did not know the appellant and he could not identify him. According to the prosecution the appellant was arrested at the railway station because the I.O. and other police officials knew him being a bad character of the area. This fact gives credence to the defense version that he has been falsely implicated by the police in collusion with the complainant and his relation because he had a quarrel with the complainant and his wife a day earlier on account of some water throwing incident In the gali where the appellant and the complainant are residing. Even the identification parade of the articles alleged to have been held by Shri P. D. Gupta, magistrate is not in accordance with law. Before asking a witness to identify any article belonging to him it was incumbent upon the magistrate to mix those articles with some other similar articles so that the witness could choose or identify the articles belonging to him out of the mixed articles. From the record it is apparent that the magistrate had not followed this procedure while conducting the identification parade of the stolen articles. Material contradictions in the statement of the complainant and his wife in not raising any alarm immediately after the incident, not reporting the matter to the police immediately after the incident and not mentioning about this fact to the neighbours create a doubt in the mind of an ordinary prudent man that no such incident had taken place. Besides this the arrest of the appellant at the railway station, recovery of the stolen property at the railway station is also very doubtful. No public witness has come forward to depose that these articles were recovered from the possession of the accused in their presence. It appears that the appellant who is immediate neighbour of the complainant has been falsely implicated in this case by the police officers of that area in collusion with the complainant on account of the fact that the appellant had a quarrel with the complainant and his family members a day before the incident. The accused has been in jail for the last three years and it is unfortunate that the prosecution has come forward with such like false cases In which the innocent persons are involved. He may be a bad character of the area but in order to convict him for these offences the prosecution should have proved the charges against him In all material particulars.

(5) I find that the prosecution has miserably failed to establish the guilt beyond reasonable doubt. The judgment passed by the Addl. Sessions Judge Is not based on correct appreciation of the record and, therefore it has to be set aside and I accept the appeal and set aside the order and judgment passed by the Addl. Sessions Judge on 28.2.91 and acquit him by giving him benefit of doubt. He be released from jail forthwith if not wanted in any other case. Fine amount, if already deposited be refunded to him immediately. Appeal allowed.