Ram Murti vs State (Nct Of Delhi)
2010 Latest Caselaw 5130 Del

               *           IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                           Date of Reserve: September 21, 2010


                                        Date of Order: November 11, 2010

                                        + Crl. Appeal No.21 of 2004
%                                                                              11.11.2010
         Ram Murti                                                      ...Appellant

         Versus

         State (NCT of Delhi)                                           ...Respondent

Counsels:

Mr. R.K. Tewari for appellant
Mr. Sunil Sharma, APP for State/respondent.

                                                   AND

                                        + Crl. Appeal No.796 of 2003
%
         Kulwant Singh                                                  ...Appellant

         Versus

         State of Delhi                                                 ...Respondent

Counsels:

Mr. Rajiv Thukral for appellant
Mr. Sunil Sharma, APP for State/respondent.


         JUSTICE SHIV NARAYAN DHINGRA

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

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

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


                                                JUDGMENT

1. These two appeals under Section 374 of Criminal Procedure Code have been

preferred by the appellants against a common judgment dated 12th November 2003 and

order of sentence dated 15th November 2003 passed by learned Additional Sessions

Judge, Delhi whereby the appellants were convicted under Section 392 read with section

Crl. Appeal Nos.21/2004 & 796 of 2003 Page 1 Of 6 34 IPC and sentenced to undergo imprisonment for five years with fine of Rs.1000/-.

Appellant Ram Murti was also convicted under Section 411 and was sentenced to

undergo imprisonment for a period of one year.

2. Brief facts relevant for the purpose of deciding these appeals are that one

Shahana lodged a report with police on 28th August, 1997 that she was a divorcee and

was living at house no.6, East Azad Nagar, Delhi with her family. She was a housewife

having one daughter. On the day of incident, her sister Shahnaz, who lived in Gali

No.15, West Azad Nagar, Delhi, had come with her son Shanu. While they were at the

house, at about 10.30 pm a tall boy aged around 20-25 years entered their house since

the door of the house was lying open. Behind him, there were three more persons, one

of them was a Sikh aged around 30/35 years. One was having beard and was wearing a

cap. The Sikh person took out a pistol and threatened that whatever was there in the

house should be handed over. They searched the house and took from them one chain

with Sai Baba pendent, four bangles, seven rings and Rs.5,000/- cash. While leaving,

they also took away one VCP Panasonic, one two in one make Sony, three phone

instruments, two watches and one camera make Minolta, two gold bangles of her sister

and left at around 12.30 am in the night. Her sister's son Shanu had also seen them at

the time of incident.

3. The incident of this robbery had allegedly taken place on 28th August, 1997. It is

the case of the prosecution that a call was received about a robbery on wireless at police

station Krishna Nagar. The statement by the complainant Shana was also made on the

same night. Surprisingly, no FIR was registered on the basis of statement of Shana on

28th August, 1997. The testimony of investigating officer shows that though Shana had

made a statement but it was kept pending and no FIR was registered. He has not

clarified as to why FIR was not registered on 28th August 1997 itself despite a report was

made regarding commission of a heinous offence of robbery to the police. DD No.4A

Crl. Appeal Nos.21/2004 & 796 of 2003 Page 2 Of 6 placed on record and proved as Ex.PW10/A is in respect of a PCR report received at the

police station at 2.20 am in the night which shows that the wireless operator had given

an information that at Gali No.6, House No.107/64, East Azad Nagar, Delhi, a dacoity

had taken place and SI Gagan Deep was sent to the spot. SI Gagandeep is examined as

PW-10. He had testified that he received DD No.4A through duty officer and proceeded

to house no.107/64, Gali No.6 where the complainant gave him a statement Ex.PW1/A

regarding a dacoity. He stated that he kept the statement pending and did not get an FIR

registered. This is despite the fact that SHO and ACP had also arrived at the spot and he

had narrated all the facts to them. He further submitted that an inquiry was made and it

was opined that the incident did take place so an FIR should be registered. Thus on 9th

September 1997, he made endorsement on the statement made by the complainant and

got an FIR registered. There is no explanation as to what inquiry was made between 28th

August, 1997 and 9th September 1997 and why the case was considered worth

registering an FIR on 9th September 1997 and not before that. The arrest of accused

persons was done in this case in a very strange manner. Inspector Rakesh Dixit PW-9

deposed that on 1st October 1997 he was posted at Special Staff as SI, South District.

Krishna Nagar, falls in East District while he was posted in South District and he received

a secret information about two persons standing at the bus stand with stolen property

which they were trying to sell. So he went to the spot and apprehended the two persons -

one was Ram Murty and other was Parvinder Singh and he found that Ram Murty was

having two telephone instruments in a polythene bag and Parminder was having one

camera make Minolta in the right pocket of his pant and both of them disclosed that

these were stolen properties. He apprehended them and got a case registered against

them at police station Malviya Nagar. He recorded disclosure statements and learnt from

their disclosure that these persons were involved in a dacoity and he informed police of

police station Krishna Nagar. Both were asked to undergo TIP but they took a stand that

they had been shown to the complainant and they refused to undergo TIP. The third

Crl. Appeal Nos.21/2004 & 796 of 2003 Page 3 Of 6 accused was arrested in this case by PW-7 SI Veer Singh. He also received information

from Special Staff, West District about arrest of one person wanted in this dacoity case

viz Kulwant Singh, so he moved an application for his production warrants and arrested

him in this case also. No recovery was affected from accused Kulwant Singh despite his

police remand. TIP was refused by Kulwant Singh also on the ground that he had been

shown to the witness. The fourth accused Amardeep was arrested by special staff East

District in some other case and he made a disclosure statement about his involvement in

this case and he was thereafter arrested by the investigating officer in this case.

However, testimony of PW-10 is silent about arrest of accused Amardeep. He stated that

the remaining investigation was handed over to SI Veer Singh. However, PW-7 SI Veer

Singh has not stated anything about arrest of this fourth accused Amardeep by him and

he states that investigation was handed over to him on 24th October 1997.

4. These accused persons were convicted by trial court on the basis of identification

by the complainant in the court and on the basis of recovery of telephone instruments

and camera from two of the accused persons.

5. It is noteworthy that in this case, the police acted from the day one as if no

dacoity had taken place. The police did not register a case of dacoity/ robbery for about

12 days. It is stated that an inquiry was being made. However, the result of that inquiry

has not been disclosed as to what inquiry was made from whom it was made and what

was the conclusion of this inquiry made between 28th August 1997 and 9th September

1997. The testimony of PW-10 Inspector Gagandeep would show that he had even come

to know as to who were the robbers /dacoits but how he came to know is not known. His

testimony shows that he started conducting raids after coming to know the identity of

dacoits but the accused persons could not be traced. He also came to know one

accused in this case was in Punjab but who was this person is not disclosed. He raided

some place at Punjab along with HC Gurtej Singh but that person could not be found

Crl. Appeal Nos.21/2004 & 796 of 2003 Page 4 Of 6 there. It is not understood what was the source of information of PW-10 and as to who

was the accused person. The complainant had not given name of any of the accused

person. The description given by the complainant in her report was a very vague

description which could fit in for any tall Sikh person. On the basis of such descriptions

as given by complainant, no person could be identified. No sketch was got prepared in

this case. No finger prints were lifted from the spot. Still the investigating officer PW-10

came to know as to who were the accused persons and he started conducting raid at

place in Punjab.

6. I consider that the whole effort of the IO had been to find a scapegoat and it is the

reason that the actual statement made by complainant had not seen the light of the day.

If the complainant had made a statement on 28th August, 1997, there was no reason why

this statement was not brought on record of the police station in any manner. No FIR

was recorded on the basis of statement of complainant. That seems to be the reason

that in the statement apart from recording what the complainant told she had been

robbed of valuables, three telephone instruments seemed to have been added later on to

make the recoveries. A robber who robbed ornaments, cash, wrist watches, would not

carry with him telephone instruments in a polythene bag and camera in his pant pocket

right from day of robbery, till arrest and would stand at a bus stand so that he could be

arrested by the police. What is more surprising is that there is no investigation in this

case in respect of disposal of the ornaments allegedly robbed by these accused persons.

It can be imagined that the robbers had spent cash of Rs.5000/- but they must have

disposed of the ornaments, wrist watches etc they robbed from the house of

complainant, if they had actually committed robbery. Since the recovery of no valuable

was affected, it can be safely presumed that they were disposed of. The investigating

officer had sought remand of each of the accused person for the purpose of interrogation

and there is not an iota of evidence if any interrogation was done on this aspect, neither

the IO speaks of any interrogation having been done from the accused persons; as to

Crl. Appeal Nos.21/2004 & 796 of 2003 Page 5 Of 6 where they had disposed of the ornaments and other valuables allegedly robbed from

the house of complainant.

7. The identification of accused persons by complainant in this case is quite

suspicious. It is admitted by the complainant in her cross examination that she had been

shown photograph of accused Amardeep Singh before TIP and that is how she was

able to identify accused Amardeep Singh. Her sister had also participated in the TIP of

Amardeep Singh but she was not able to identify accused Amardeep Singh.

8. Except identification of accused persons in the court and recovery of telephone

instruments and camera from one of the accused persons, there is no evidence against

the accused persons in this case. The testimony of IO shows that IO had learnt about

accused persons perhaps before registration of FIR and before start of investigation in

this case and that seems to be the reason that the statement of PW-1 allegedly made on

28th August 1997 was not converted into an FIR for 12 good days and was kept pending.

It seems that a robbery did take place at the house of complainant (PW1) but it also

appears that implication of accused persons in this robbery seems to have been done by

the investigating officer on the basis of his private inquiries and not on the basis of any

cogent evidence. I consider that the accused persons/appellants are entitled for benefit

of doubt as the case against them was not proved beyond reasonable doubt.

9. I accept these appeals. Both the appellants are acquitted.

November 11, 2010                                     SHIV NARAYAN DHINGRA,J
rd




Crl. Appeal Nos.21/2004 & 796 of 2003                                            Page 6 Of 6