Deepak Kapoor vs State (Govt. Of N.C.T. Of Delhi)
2007 Latest Caselaw 244 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. This appeal has been preferred by the appellant against the judgment dated 26.4.1999 in Sessions case No. 350/97, FIR 425/1991 under Sections 392/397/34 of IPC, P.S Kashmiri Gate whereby the appellant was convicted by the learned Additional Sessions Judge for offences under Section 392 read with Section 397 IPC and Section 25 of the Arms Act. The appeal is also against the order dated 28.4.1999 whereby the appellant was sentenced to undergo RI of 7 years and to pay a fine of Rs. 500/-, in default of payment of fine, to further undergo RI for a further period of one month.

2. The prosecution's case before the trial Court was that on 31.10.91 at about 8.30 p.m, a robbery took place at Shop No. 186/72, Prem Gali, Punja Sharif, Kashmiri Gate. Four boys including appellant entered into the shop. They took out daggers and disconnected telephone wires and removed Rs. 17,000/- from the cash box. Vinod Malik, the owner of the shop was sitting at the shop with his brother Suresh Malik and Vijay Malik at the time of robbery. Vijay Malik raised alarm after the robbers ran away with the cash. One of the robbers i.e appellant was overpowered by the patrolling policemen who had arrived at from the side of the ganda naala bazar. A sum of Rs. 9898/- and a dagger were allegedly recovered from the appellant's hand . The other companions of the robbers were arrested in pursuance of information given by the appellant. They were put to TIP. One Jitender refused to join TIP while two other agreed to take part in the TIP. In TIP they were not identified by the complainant. Appellant Deepak and Jitender were put to trial and the other two accused were discharged, since there was no evidence available against them and they were not even identified by the complainant. After the trial, Jitender was acquitted as there was no evidence against him except refusal to participate in the TIP. However, the appellant was convicted by the trial Court and sentenced.

3. The prosecution had examined 8 witnesses to bring home the charge against the appellant. PW-2 and PW-3, Vinod Malik and Suresh Malik, the owners of the shop and PW-6 Praveen Kapoor, a friend who was allegedly present at the shop, did not support the prosecution case. All three witnesses were declared hostile by the prosecution. They did depose to the factum of a robbery taking place at the shop, but the date of the robbery was not given by them as 31st October 1991. They refused to identify the appellant as the robber or the person nabbed by police on spot and did not subscribe to the story of the police that the appellant was arrested while running away with the booty and dagger or recovery of any amount was made from the appellant. Learned Additional Sessions Judge convicted the appellant on the basis of testimony of the police officials who allegedly overpowered the appellant observing that the timidity is the trait of our character and this is one handicap with which the investigating agency has to function. This reality of life has to be kept in mind while appreciating evidence. The leaned Additional Sessions Judge observed that the complainant was even scared to admit that he raised an alarm.

4. The judgment of the learned Additional Sessions Judge has been assailed on the ground that it was based on conjectures and surmises. There were material contradictions in the statements of the police officials. The lower court also ignored the fact that there was no explanation to injuries on the person of appellant found after arrest. The police had taken the stand in the application for medical examination that the accused/appellant was beaten by the public persons at the time of his arrest, the appellant was having as many as 20 injuries on his body as shown in his medical examination done on 1.11.199. None from the public, who allegedly gave beatings was made a witness either of recovery or of robbery. The persons who gave beatings could not have refused to be the witness. Police made no person from public as a witness at the spot where the accused was allegedly overpowered. The police, however, made the shop owners as the witness of the recovery. Even the shop owners have refused to subscribe to the story of the police in the court. It is also argued that the story of the police was inherently improbable. The Gali where the alleged robbery took place was hardly 6 ft. wide and about 100 people were moving in the gali when the police alleges that the accused ran with dagger in one hand and money in other. It was not possible to run in such a narrow gali with money in one hand and dagger in other where 100 people were moving. This argument was also raised before learned Additional Sessions Judge who rejected the argument observing that timidity was character of our society. If appellant had run with dagger in his hand most of the people would have got scared and given way to him. The Additional Sessions Judge also rejected the arguments of the contradictions in the statement of police witnesses inter se, where one police official stated that currency notes were sealed and another stated that currency notes were not sealed; one stated that shopkeepers were asked to join investigation but other stated that no shopkeeper was asked to join investigation; one stated that the writing work was done sitting on the pavement under Street light, other stated that the writing work was done while sitting on a stool in front of the shop of complainant observing that contradictions were trivial in nature and witnesses had supported the prosecution case on material aspects.

5. A perusal of the evidence of PW-2 Vinod Malik would show that he testified that robbery in his shop took place around 9 or 9.15 p.m. There were 5 or 6 boys who entered into the shop and looted about Rs. 16,000 to 17,000/- and after the robbery his younger brother went to police station and reported the matter. His younger brother Suresh Malik also testified that after robbery, he and his brother went to the police station and informed the police officials about the incident. Date of 31.10.1991 was not given by them as date of robbery. Both stated that it was October 1991. No suggestion was given to them that they had not gone to the police station and not reported the matter at the police station and rather police came at the shop. It was denied by the shop owner/ witnesses that the happening took place at around 8 p.m. The time of occurrence was given 9 to 9.15 p.m. The date and time of incident are significant in this case because of the fact that accused Rajesh @ Bhaiya was arrested by Sadar Bazar Police under D.P. Act and his confession was recorded. In his confessional statement he stated that he along with his accomplice had committed robbery on 30.10.91 around 9 to 9.15 p.m at the shop in question. Similar was the confessional statement of other accused Ashok. On the basis of their confessional statements the police of this case sought their production and custody remand alleging that they were involved in the robbery in question. Although the confessional statement is not an admissible piece of evidence against the accused, but an accused can take benefit of the confessional statement used by the police to seek remand. Another factor which throws doubt on the occurrence of incident on 31.10.91 and the manner in which the appellant was allegedly arrested is the application made by the police to CMO Hindu Rao Hospital for medical examination of the accused. In this application made to CMO Hindu Rao Hospital, IO had stated that Deepak Kapoor appellant was arrested in this case while commiting robbery and was beaten by the public at the time of apprehending him. He had requested the Court for his medical examination. The Court had ordered for his medical examination at a hospital other than the police hospital, therefore, he may be examined. On the back of his application is the injury report of the appellant. In the history of beating it is recorded that appellant was beaten on 30.10.91 while committing robbery. On his body 7 sets of injuries were noted by the Doctor. Injury No. 6 shows swelling on both feet. Injury No. 5 shows abrasion on both legs internally. Injury No. 4 shows bruises over both buttocks. Injury No. 3 shows multiple injuries on both sides of back. Even if it is considered that it was accused who had given the date of his being beaten as 30.10.91, but there is no reason to believe that he knew in advance that other co-accused were going to give the date of robbery as 30.10.91 in their confessional statement. The date given by the accused of beating and the date given by co-accused of the confessional statement tally with each other to show that in fact incident had taken place on 30.10.1991 and not 31.10.91. This also explains the evidence of the complaint that after robbery, they had gone to police station to report the matter to the police. How an incident which had taken place on 30.10.1991 was made subject matter of an FIR of 31.10.1991 is best known to the police.

6. If we go by the initial story given by the police that appellant was beaten blue and black by the public then it cannot be believed that none of the public person came forward to stand witness against the appellant or was not available for being witnesses to the recovery memo except the complainant himself. Order dated 22.11.91 whereby the accused was granted bail shows that the police had taken the stand that accused was chased for about 1/2 kilometer and then nabbed. After nabbing public had beaten him. The same stand was taken by the police in the application for medical examination. However, this story of the police that accused was beaten blue and black by the public is altogether missing from the testimony of even police official in the Court. None of the police official had stated that at the time of apprehension, the appellant was beaten by the public persons. The story given by PW-7 in his testimony is that the robbers were 3 to 4 persons who were running and they were being chased by 2 to 3 persons i.e complainants. The police party chased them when police heard the noise pakro-pakro and saw four robbers running. There were six police persons in the patrolling party, but they could apprehend only one robber i.e appellant. There is no whisper of beating being given to appellant by anybody or causing injuries to him. Obviously the story put forward by the police official during evidence about apprehending accused from the spot on 31.10.91, does not match with the initial story of accused being apprehended from the spot and being beaten by public mercilessly. Serious doubt is created about the date when the robbery was committed and the date when FIR was recorded.'

7. I consider that there was sufficient ground to disbelieve the story of the police regarding apprehending of the accused from the spot. The learned Additional Sessions Judge ignored all the facts including accused having been beaten and receiving severe injuries. No public witness deposed that appellant was apprehended from the spot. The appellant was convicted on the basis of shaky testimony of the police official who changed their version when they appeared in the witness box from the initial version. This gives some credence to the accused version that he was picked up by police from his home on 30.10.91 and beaten and tortured then implicated in this case. The injuries on the person of appellant and the date of causing injuries as given in the MLC support this version.

8. I consider that the accused was entitled to benefit of doubt. The appeal is allowed. The conviction and the sentence of the accused is hereby set aside.