Kishan Pandit vs Govt. Of Nct Of Delhi
2009 Latest Caselaw 2141 Del

       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 CRL.A. 234/2002

                                                   Reserved on :17th April 2009
                                                   Decision on : 19th May 2009

       KISHAN PANDIT                                     ..... Appellant
                                 Through Mr. Manjit Singh Ahluwalia, Advocate

               versus

       GOVT. OF N.C.T. OF DELHI              ..... Respondent
                       Through Mr. Pawan K. Bahl, APP

                                 CRL.A. 326/2002

       ALLAHNOOR                                       ..... Appellant
                                 Through Mr. K.Z. Khan, Advocate
               versus

       STATE (NCT OF DELHI)                ..... Respondent
                     Through Mr. Pawan K. Bahl, APP

                                 CRL.A. 262/2002

       NARESH KUMAR                     ..... Appellant
                   Through Mr.K.B.Andley, Senior Advocate with
                   Mr. M.L. Yadav, Advocates

               versus

       THE STATE NCT OF DELHI              ..... Respondent
                     Through Mr. Pawan K. Bahl, APP

       CORAM:
       HON'BLE DR. JUSTICE S.MURALIDHAR

        1. Whether Reporters of local papers may be
          allowed to see the judgment?                                No
       2. To be referred to the Reporter or not?                      Yes
       3. Whether the judgment should be reported in Digest? Yes

                                  JUDGMENT

19.05.2009

S. Muralidhar, J.

1. These three appeals are directed against the impugned judgment dated

18th February 2002, passed by the learned Additional Sessions Judge

(ASJ), New Delhi convicting the appellant Kishan Pandit under Section

397 IPC and appellants Allahnoor and Naresh Kumar under Sections 411

IPC. It is also directed against the order dated 18 th March 2002 passed by

the learned ASJ sentencing the appellant Kishan Pandit to rigorous

imprisonment (RI) for eight years and to pay a fine of Rs.1,000/- and in

default to undergo simple imprisonment (SI) for one month and

sentencing the appellants Naresh and Allahanoor under Section 411 IPC to

RI for one year and to pay a fine of Rs.1,000/- each and in default of

payment of fine to further undergo SI for one month.

2. The present appeals were admitted by this Court by orders dated 1 st, 8th

and 19th April 2002 respectively. The sentence awarded to the appellants

has been suspended during the pendency of the appeals.

3. The case of the prosecution is that on 27 th July 1989 on receiving the

DD entry No.16A, Sub Inspector (SI) Mawasi Lal along with Constable

Satpal reached D-50, Defence Colony. The SHO also reached the spot

along with the staff. Shanti Parshad who was working as servant in the

said premises, gave a statement that at 9.05 p.m. while he was laying the

table for the house owner K.L. Chopra, the door bell rang. When he

peeped from the glass of the door he saw a boy standing outside. The boy

asked him to open the door as he wanted to get his patient examined. On

opening the door Shanti Parshad saw that there were three persons; one

was having a revolver and the other two were having a knife each. The

person holding the revolver placed it on Shanti Parshad's head and others

pointed their knives at him. They then pushed him and went upstairs. One

of the boys hit him above the eyebrow of his left eye and they tied him

with the rope and put him under the bed and asked for the keys of the

almirah. The person holding pistol opened the almirah and took out

jewellery and kept it in their pockets. They also cut the telephone wires

and told the owner K.L. Chopra that they would be killed if they raised an

alarm. They asked for the keys of the car which were handed over by Mrs.

K.L. Chopra. They remaining two accused who were having knives with

them and were about 5 ft. 3 inches tall and fair complexioned also

accompanied the first named person and left the spot in the car of K.L.

Chopra.

4. On 9th August 1989 information was received that the accused would be

visiting D-311 Sarvodaya Enclave. On the basis of this information SHO

Raj Laxmi of PS Defence Colony along with her staff, K.L. Chopra and

the secret informer reached D-311 Sarvodaya Enclave. They were

informed that one of the co-accused had gone inside the house. He was

arrested with the help of the police. On enquiry he disclosed his name to

be Kishan Kumar Pandit. On his pointing out accused Veerpal and Raju

were arrested from Lodhi Colony. They disclosed that they had looted D-

50 Defence Colony by showing knives and revolver and that the case

property had been kept with co-accused Allahnoor and Naresh and that

they could get it recovered. They also stated that they had hidden the knife

and revolver in Lodhi Colony which too they could help in getting

recovered.

5. According to the prosecution, Kishan Kumar got recovered one

revolver and knife regarding which a separate FIR was lodged. Case

property was got registered from the house of Allahanoor and was kept in

a sealed pulanda. A part of the case property was also recovered from the

house of Naresh Kumar which was also kept in a sealed pulanda with the

seal of MLR. After completion of investigation, the challan was filed in

the court and the case was committed to the Court of Sessions. Charges

under Section 397 IPC were framed against appellant Kishan Kumar

Pandit and the other co-accused Vikram @ Ram Pal, Raju and Gautam. A

separate charge under Section 411 IPC was framed against Allahanoor and

Naresh.

6. K.L. Chopra from whose house the articles were stolen, was examined

as PW1. PW2 was Pushpa Chopra, the wife of K.L. Chopra. The

complainant Shanti Parshad working as domestic help at D-50, Defence

Colony was PW3. PW4 was Mohan Lal Sarin who had medically

examined PW3 Shanti Parshad. PWs 5 to 10 were police officials involved

at the various stages of the investigation. On behalf of the defence, Ms.

Sangita Dhingra Sehgal, Chief Metropolitan Magistrate (CMM) was

examined as DW1. Sabir Ahmad was DW2. The owner of House No.17,

Chirag Delhi Parkash Singh was DW3. DW4 was ASI Kishan Kumar.

7. The trial court held that the accused persons had not been identified by

K.L.Chopra or his wife or his servant. The most important piece of

evidence was the disclosure statement pursuant to which the recoveries of

stolen property had been effected. The trial court held that since the

recovery was made soon after the occurrence and no satisfactory

explanation was given by the accused persons relating to the possession of

the stolen property, the presumption under Section 114 Evidence Act (EA)

would get attracted. The presence of the finger prints of Vikram Rampal

on the door and steel almirah in the complainant's house was also not

explained. It was also held that merely because K.L. Chopra who had

accompanied the persons at the time of recovery turned hostile, the

recovery could not be doubted. There was nothing to show that the police

had any enmity with the accused for falsely implicating them in the case.

8. This Court has heard the submissions of Mr. K.B. Andley, the learned

Senior Counsel, Mr. Manjit Singh Ahluwalia and Mr. K.J. Khan, the

learned Advocates appearing for the appellants and Mr. Pawan Bahl, the

learned APP appearing for the State.

9. The evidence of PW1 K.L. Chopra is very significant. It was in his

house that that the robbery took place. In his examination-in-chief, he

stated that three young persons climbed the stairs entered the dining room

along with the servant Shanti Parshad and asked the witness and his wife

to get into the bed room. They demanded and were handed over the keys

of almirah and they took away all the jewellery. Soon after the incident,

the police was called. Thereafter the witness stated that "a few days later I

was told by the police that accused have been arrested and property have

been recovered on 6.9.1989. We were asked to go to the court of Ms.

Sangita Dhingra Sehgal. In her presence we identified the jewellery and

thereafter it was handed over to us on superdari." He further stated that he

had submitted a list of articles as Ex. PW1/A which bore his signature.

The witness then stated "I cannot identify the accused persons as

interaction was for a period of short span of 25 minutes that also four

years (ago). I have brought the jewellery. None of the accused persons in

the court made any disclosure statement before me."

10. At the above stage, the learned APP appearing for the prosecution in

the trial court sought permission to cross-examine K.L. Chopra. In this

cross-examination K.L. Chopra denied that the disclosure statements by

the accused were made in his presence. He further stated that "I was asked

to sign these papers as the IO told me that the recovery of jewellery was

effected from these four persons. I do not know Hindi. All the 4

documents bear my signatures......" He maintained that none of the

articles had been recovered in his presence or that any of the accused

persons made disclosure statements in his presence or that they had

pointed out the place of incident in his presence.

11. PW2 Smt. Pushpa Chopra also stated "I am not in a position to

identify those boys." She categorically stated in her cross-examination by

the APP that "my statement was not recorded by the police. It is wrong to

suggest that accused persons present in the court are the same persons who

committed robbery in our house." PW3 Shanti Parshad also maintained

that he was unable to identify the accused persons present in court. He

also denied that his statement was recorded by the police.

12. To this Court, it is apparent therefore that the most crucial piece of

evidence regarding the presence of the accused at the place of occurrence

has not been proved by the three persons who were definitely present at

that time in the house. The incident stated to have taken place at around 9

p.m., it is not the case of the prosecution that the house was not properly

lit as a result of which the complainant and the residents of the house

could not identify the three persons who had committed the robbery. As

long as the appellants were unable to be identified in court by PWs 1, 2

and 3, the most crucial evidence to link them with the crime in question is

missing.

13. The learned trial judge has proceeded essentially on the basis of the

recoveries made from the accused. The story of the prosecution is that

Kishan Pandit was arrested from the house at D-311, Sarvodaya Enclave

on 9th August 1989. PW8 Inspector Ashutosh Chatterjee who was posted

as SHO of PS Lodhi Colony was called by the SHO (Raj Laxmi) of PS

Defence Colony asking him to join the raiding party. It is stated that they

raided the house at D-311 Sarvodaya Enclave and arrested appellant

Kishan Kumar Pandit and upon his interrogation he made a disclosure

statement and got recovered a watch. He led the police to arrest Vikram

Ram Pal, Raju and Gautam. Vikram Ram Pal is supposed to have

produced a golden chain which was looted from the house of K.L. Chopra.

Gautam produced one wrist watch. All the four accused then took the

raiding party to the place opposite to 46, Lodhi Estate and got recovered

two daggers and a katta. On 12th August 1989 PW8 again accompanied

SHO Raj Laxmi to Chirag Delhi accompanied by accused Vikram and

Raju who took them to the house of accused Allahnoor at 21 Chirag Delhi.

The accused Vikram pointed out the house of the accused Allahnoor who

produced a gold chain, one old chain with pendant, one gold Mohar, one

wrist watch with seven diamonds, one pendant with diamond, seven

necklaces of artificial moti, one diamond ring and a host of other articles.

Raju then took them to 17 Chirag Delhi was the house of Constable

Naresh. Naresh then produced four golden karas, one watch, a pair of tops

and other articles.

14. It is significant that in their respective statements under Section 311

CrPC each of the accused denied their involvement and stated that they

had been falsely implicated in the case. Accused Kishan Pandit stated that

he had been arrested from his house on 3rd August 1989. Allahnoor in his

statement stated that he was sitting in his shop on 3rd August 1989 when

he was called to the police station. His signatures were taken on blank

papers and nothing was recovered from him. Naresh stated that on 4th

August 1989 when he was posted in PS Malviya Nagar, the SHO of PS

Defence Colony asked the SHO of PS Malviya Nagar that Naresh should

be handed over to him for joining investigation. He was subjected to

torture and his signatures were obtained on blank papers. He was falsely

implicated in the case on 12th August 1989. He further pleaded that he

never resided at Chirag Delhi and was residing at the barracks of PS

Malviya Nagar.

15. It is significant that DW2 Sabir Ahmad stated that on 3rd August 1989

the police of PS Lodhi Colony took him to the PS Lodhi Colony where he

saw Kishan Pandit in the lock-up. Later his brother Allahnoor was also

brought to the police station. On 4th August 1989 some blank papers were

got signed from him, he was let off. After his release he used to meet his

brother Allahnoor in the police station till 9th August 1989 and during this

period Kishan Pandit was also in the police station. Thereafter

Kishan Pandit with Allahnoor were transferred to PS Defence Colony and

the police stated that they would be producing accused persons before the

court of Ms. Sangita Dhingra Sehgal on 10th August 1989. They were not

so produced. Sabir Ahmad then came to the court of Ms. Sangita Dhingra

Sehgal on 11th August 1989 and his statement was recorded by the learned

MM. Ms. Sangita Dhingra Sehgal has herself been examined as DW1 and

she affirmed that she recorded the statement of Sabir Ahmad on 11 th

August 1989. The significance of this evidence is that the story of the

prosecution that they arrested Kishan Pandit from the house at D-311

Sarvodaya Enclave on 9th August 1989 stands completely falsified. If

Allahnoor was already present in the police station on 4th August 1989, the

story that he was arrested on the showing of Vikram and Raju from a

house at 21 Chirag Delhi on 12th August 1989 also stands completely

falsified.

16. The story of the recoveries is also totally demolished by the evidence

of DW3 Parkash Singh who is the owner of House No.17, Chirag Delhi.

He has stated that the entire premises is in the occupation of Rana

Enterprises since August 1988 "and no one has been residing in any

portion of the house at any point of time." He also denied knowing

accused Naresh Kumar and stated "he never resided as tenant in the

aforesaid house at any time." In his cross-examination he denied the

suggestion that Naresh Kumar was residing in that house. He also denied

that eight stolen articles were recovered from the possession of Naresh

Kumar on 12th August 1989.

17. It is surprising that the learned trial court has chosen to completely

give a go by to the evidence of DWs 2 and 3 which completely demolishes

the story of the recoveries of having been effected from the house at

Chirag Delhi allegedly at the instance of Naresh. This evidence also

demolishes the story of the arrest of accused Allahnoor and Kishan Pandit.

18. In his cross-examination, PW10 Mawasi Lal admitted that he was ill

on 12th August 1989 and suffering from high fever. He admitted that he

was unable to move of his own and that he was unable to come out of the

car to go to house of anybody on that date. The story of his accompanying

the raiding party therefore gets completely demolished. He speaks of

Mawasi Lal accompanying the raiding party during the recoveries. KL

Chopra has denied point blank that he accompanied the raiding party for

effecting the recoveries.

19. To this Court, it appears that there are too many unexplained

inconsistencies in the above evidence and it would be wholly unsafe to

rely upon the above evidence of recoveries to implicate any of the

accused. There is considerable doubt not only about their presence at the

place of occurrence but about their arrest and the recoveries. The only fact

that appears to be not in dispute is that the complainant K.L. Chopra

identified the jewellery recovered as being his when it was shown to him

at the police station. There is no credible evidence to show that any of the

accused in fact handed over the stolen items in the presence of any

independent witness. With the prosecution's story being riddled with

inconsistencies and contradictions it was unsafe for the trial court to have

convicted any of the appellants for the aforementioned offences.

20. Accordingly, the appeals are allowed. The impugned judgment 18 th

February 2002 and orders dated 18th March 2002 passed by the learned

ASJ convicting and sentencing the appellants respectively are hereby set

aside. The appellants shall be set at liberty forthwith. Their bail bonds and

the surety bonds will stand discharged.

S. MURALIDHAR, J.

th 19 MAY, 2009 ak