Surinder Singh vs The State (N.C.T. Of Delhi)
2009 Latest Caselaw 4694 Del

* IN THE HIGH COURT OF DELHI AT NEW DELHI

%                    Judgment Reserved on: 11thNovember, 2009
                    Judgment Delivered on: 18thNovember, 2009

+       CRL.REV.P.126/2003 and Crl.M.A.Nos.214-215/2003


        SURINDER SINGH                            ..... Petitioner
                     Through:        Mr.C.L.Gupta and
                                     Mr.Dharminder Singh Sidhu,
                                     Advocates.

                    versus

        THE STATE (N.C.T. OF DELHI)           ..... Respondent
                       Through: Mr.Manoj Ohri, APP.


CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     1. Whether the Reporters of local papers may be allowed to see
        the judgment?

     2. To be referred to the Reporter or not?             Yes

     3. Whether the judgment should be reported in the
        Digest?                                            Yes

INDERMEET KAUR, J.

1. On 22.2.1990 at about 5 PM at the Rabadi Machine, near

Village Mahipal Pur, the complainant was wrongfully and illegally

confined by Jaiveer Singh @ Vijay, Surender and Sushil Kumar.

He was at the point of knife robbed of Rs.12,000/- and criminally

intimidated by all the aforestated persons. On these allegations

contained in the complaint of Madan Lal charge-sheet was filed.

2. The Trial Court had examined 10 witnesses. Accused Sushil

Kumar had been acquitted. Accused Jaiveer and Surender, the

present petitioner had been convicted under Section 394/506/34 of

the IPC; both the convicts had been sentenced to undergo RI for

one and half years and to pay a fine of Rs.5,000/- in default of

payment of fine to undergo SI for 6 months for the offence

punishable under Section 394/34 of the IPC; for the offence

punishable under Section 506 of the IPC the convicts were

sentenced to undergo SI for one and half years and to pay a fine of

Rs.5000/- in default of payment of fine to undergo SI for a further

period of six months.

3. The appeal before the Additional Sessions Judge vide

judgment dated 10.1.2003 had been dismissed; no modification

was made in the sentence either.

4. The petitioner before this court is Surender. On his behalf, it

has been pointed out that the judgment of the courts below suffer

from a gross illegality as both the courts below have failed to

appreciate that the eye-witness Madan Lal examined as PW-3 had

admittedly not identified the present petitioner; the evidence

which had surfaced against the petitioner was the recovery of the

alleged amount of Rs.8000/- from the tin box in the guardroom

where the present petitioner was posted. This recovery

purportedly effected vide memo Ex.PW-1/A has not been attested

by any public witness; the said notes had also not been identified

by the complainant and this has come in the categorical version of

ASI Hari Singh PW-4. The circumstance of this recovered amount

i.e. of Rs.8000/- having been recovered from the possession of the

petitioner had not been put to the petitioner in his statement

under Section 313 of the Cr.PC, in the absence of which such an

incriminating circumstance cannot be read against him. For this

proposition counsel for the petitioner has placed reliance upon the

judgment reported in Kanhai Mishra @ Kanhaiya Misar vs. State of

Bihar 2001 (2) RCR (Crl.) 110. It is stated that benefit of doubt

has accrued in favour of the petitioner. It is a settled rule of

criminal jurisprudence that if two views are possible on the

evidence adduced in the case, one pointing to the guilt of the

accused and the other to his innocence, the view which is

favourable to the accused should be adopted. For this proposition

reliance has been placed upon State of Haryana vs. Shibu @ Shiv

Narain and Ors. 2008 (3) RCR (Crl.) 951.

5. Arguments have been rebutted by the counsel for the State.

6. Record has been perused. Arguments have been

appreciated.

7. PW-3 is the complainant and the only eye-witness in this

case. He has deposed that on 12.2.1990 Vijay Kumar had

approached him with samples of TV and VCR parts; Vijay Kumar

took him to Mahipal Pur at his residence. He took him to a room;

Sushil asked him i.e. PW 3 to accompany him inside the room; two

persons were already present in the room ; name of one was Vijay;

the other person could not be identified by PW-3.

8. The complainant PW-3 was not able to identify Surender as

the perpetrator of the offence as committed on 12.2.1990. Further

version of PW-1 on oath is that he was given a knife blow and two

out of the said persons removed Rs.12000/- from his pocket as also

his watch; he made his complaint Ex.PW-3/A to the police.

9. It is, thus, clear from the version of PW-1that the presence of

Surender on the date of offence i.e. 12.2.1990 has not been

proved.

10. The evidence relied upon by the courts below against the

petitioner is the recovery of Rs.8000/- effected from him on

13.2.1990 from the guardroom of the petitioner. Petitioner

Surender was admittedly posted as a guard at Kothi No.3, Tyagraj

Marg; pursuant to the disclosure statement of Sushil Kumar the

police party had gone to the place of recovery where from inside

the guardroom from a tin box the petitioner Surender had

produced Rs.8000/-; all the notes were in the denomination of

Rs.100/- each. The said notes were seized vide recovery memo

Ex.PW-1/A; this document has been attested by Const. Surender

Pal PW-1, ASI Hari Singh PW-4 and ASI Ramesh Chand PW-10. As

per Ex.PW-1/A Rs.8000/- all the notes in the denomination of

Rs.100/- had been recovered from the room of Surender which

were lying in a box.

11. PW-2 SI Dalbir Singh reached the place of posting of the

present petitioner i.e. at Kothi No.3, Tyagraj Marg; with the

permission of the officers Surender was taken to the PS Vasant

Kunj; PW-3 had also accompanied them. Petitioner was handed

over to the Investigating Officer Insp.Hasmel Khan PW-8.

12. PW-1 has on oath stated that he accompanied by PW-4 and

PW-8 reached Tyagraj Marg, where at the pointing of Surender

Kumar from the guardroom from a tin box Rs.8000/- was

recovered; the currency notes of Rs.8000/- were in the

denomination of Rs.100/- each, they were seized vide memo

Ex.PW-1/A; no proceedings were conducted at the spot. In his

cross-examination PW-1 has admitted that the seizure memo was

signed by him as also by PW-4 and PW-10.

13. PW-4 has corroborated this version of PW-1; in his cross-

examination he has stated that the numbers of the notes were not

noted and had not been shown to the complainant for

identification; he denied the suggestion that Surender told him

that this money is his saving and belongs to him.

14. PW-10 has also proved the recovery memo Ex.PW-1/A; he

was however unable to identify the currency notes.

15. Investigating Officer PW-8 was also present at the time of

this recovery. Ex.PW-1/A was prepared by him. The said notes

were exhibited as Ex.P-1/12/800 (collectively). He denied the

suggestion that no recovery was effected from the present

petitioner.

16. Statement of the accused under Section 313 of the Cr.PC has

also been perused. Admittedly, the circumstance of this recovery

i.e. the recovery of Rs.8000/- in the denomination of Rs.100/- notes

having been effected at the instance of the petitioner had not been

put to the petitioner.

17. Trial Court and the Appellate Court have gravely erred in

relying upon this recovery. Admittedly, the recovered notes which

has no specific mark of identification and nor were their numbers

noted; were even shown to the complainant as to whether it was

his stolen property. This has been admitted by PW-4. Recovery

had been effected on the following day i.e. one day after the

incident. It is difficult to believe that the recovered amount would

have been kept by the petitioner in his guardroom; natural

conduct would have been to conceal the money in some far out

place. That apart, the incriminating circumstance of these notes

having been recovered from the present petitioner had not been

put to the petitioner. There is no such averment in the statement

of the accused under Section 313 Cr.PC.

18. In Kanhai Mishra (supra) it has been held by the Supreme

Court that a circumstance not put to the accused during his

examination under Section 313 of the Cr.PC cannot be used

against him.

19. Admittedly, this recovery is the only piece of evidence which

is sought to be proved against the present petitioner; there is no

other evidence against him; the eye-witness has not identified the

present petitioner. This circumstance not having been put to the

accused, it is clear that the same cannot be used against him. The

recovery of the amount at the hands of the petitioner is thus

belied; the alleged amount had also not been identified by the

complainant as his stolen money. Benefit of doubt has accrued in

favour of the petitioner.

20. In Ram Kishore vs. State 41 (1990) DLT 86 (DB), the Division

Bench of this Court has held that where the recovered articles

which were jewellery items had neither been described by the

complainant and nor any distinguishing feature had been given,

the recovery having been effected from a thickly populated place

where no independent witness had been joined, the recovery also

not having been got identified to the satisfaction of the court and

there being no other evidence against the accused, he had been

acquitted of the charges under Section 411 of the IPC.

21. This also appears to be a case where miscarriage of justice

has arisen. The golden thread which runs through the web of

administration of justice in criminal cases is that if there are two

views on the evidence adduced in the case, the view favourable to

the accused should be adopted; the paramount consideration of

the court is to ensure that miscarriage of justice is prevented.

22. Prosecution has not been able to establish the circumstance

of recovery; the petitioner is entitled to benefit of doubt and a

consequential acquittal. He is acquitted of the charges leveled

against him. Bail bond and surety bond of the petitioner stand

canceled.

(INDERMEET KAUR) JUDGE 18th November, 2009 rb