Ashraf vs State
2010 Latest Caselaw 4176 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

+     CRL. APPEAL 257/2010

%                              Decided on: 9th September, 2010

ASHRAF                                          ..... Appellant

                       Through:      Mr. Rajinder Singh, Adv.
                  Versus

STATE                                            ..... Respondent

                        Through:     Mr. M.P. Singh, APP for the
                                     State.

                               AND

+     CRL. APPEAL 628/2009

ANWAR @ ANNU                                    ..... Appellant

                       Through:      Mr. Suresh Sisodia, Adv.
                  Versus

STATE                                            ..... Respondent

                        Through:     Mr. M.P. Singh, APP for the
                                     State.

                               AND

+     CRL. APPEAL 174/2010

BUCHA @ NADEEM                                  ..... Appellant

                       Through:      Ms. Anita Abraham, Adv.
                  Versus

STATE                                            ..... Respondent

                        Through:     Mr. M.P. Singh, APP for the
                                     State.
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

1.    Whether the Reporters of local papers            No
      may be allowed to see the judgment?

2.    To be referred to Reporter or not?               No

3.    Whether the judgment should be reported
      in the Digest?                                   No




CRLA-257/2010                                               Page 1 of 8
 A.K. PATHAK, J. (ORAL)

1. All the above-mentioned appeals are being disposed of

together as the same arise out of the same incident, FIR and

judgment of the Trial Court.

2. Appellants have been convicted under Section 392/34 IPC;

sentenced to undergo rigorous imprisonment for five years and fine

of Rs.3,000/-; in default of payment of fine to undergo rigorous

imprisonment for one year. Appellant Anwar @ Annu has also

been convicted under Section 397 IPC and Section 25 of the Arms

Act. He has been sentenced to undergo rigorous imprisonment for

seven years for offence under Section 397 IPC; sentenced to

undergo rigorous imprisonment for three years and to pay fine of

Rs.1,500/-; in default of payment of fine to undergo rigorous

imprisonment for six months for the offence under Section 25 of

the Arms Act. Sentences of Anwar @ Annu have been directed to

run concurrently. Benefit of Section 428 Cr.P.C. has also been

given to the Appellants.

3. Prosecution story as unfolded is that on 12th December,

2008 Allu Ram along with his friend Vijay Kumar Pandey was

returning home in a private bus. On the way, when the bus

stopped at Keshaw Chowk red light near Shyam Lal College at

about 8:30 pm, some boys boarded the bus from front gate as well

as from rear gate. Out of them, four boys surrounded Allu Ram

and one of the boys took out a dagger and put it on his chest.

They forced him to de-board the bus at the red light near Metro

Station. Thereafter, they took out `10,000/- and some papers

from the pocket of Allu Ram forcibly. After committing robbery

they pushed Allu Ram and his friend Vijay Kumar Pandey and

started running away. On seeing certain police officials coming

towards their side, they raised alarm "pakro pakro" and chased

those boys. Allu Ram and his friend caught hold of one boy whose

name was later revealed as Anwar @ Annu; while two other boys

were apprehended by the police officials and their names were

disclosed as Ashraf and Bucha @ Nadeem. Accused Anwar @

Annu along with knife was handed over to the police officials. In

fact, these police officials were SI Jagbir Singh Nagar (Investigating

Officer), HC Satya Narayan, Const. Satyapal Singh and HC Amar

Singh. They were on patrolling duty in that area.

4. Investigating Officer recorded the statement of Allu Ram and

wrote a tehrir on the basis whereof, FIR No. 444/2008 under

Sections 392/397/34 IPC and Section 25 of the Arms Act was

registered at Police Station Welcome Colony. During the

investigation, Investigating Officer prepared the site plan.

Appellants Anwar @ Annu, Ashraf and Bucha @ Nadeem were

arrested. Sketch of the dagger was prepared and the same was

sealed and seized vide seizure memo marked as Ex.PW1/A. Entire

proceedings were conducted at the spot. Later, Appellant Shakir @

Jagga was also arrested on 12th December, 2008 on the pointing of

Allu Ram and from him `500/-, out of the robbed amount, along

with photocopy of driving license of the complainant, were

recovered and seized. After the investigation, Appellants were sent

up to face trial by filing a charge-sheet in the court of learned

Metropolitan Magistrate, who in turn committed the case to the

Sessions Court since the offence under Section 397 IPC was

exclusively triable by the Sessions Court.

5. Charge under Sections 392/34 IPC was framed against the

Appellants. Charges under Section 397 IPC and Section 25 of the

Arms Act were also framed against the Appellant Anwar @ Annu.

Charges were framed on 24th February, 2009 by the Trial Court to

which Appellants pleaded not guilty and claimed trial.

6. Prosecution examined seven witnesses in all to prove its

case. PW7 SI Jagbir Singh Nagar is the Investigating Officer. He

was heading the patrolling party comprising of PW1 Const. Styapal

Singh, PW 2 HC Satya Narayan and PW4 HC Amar Singh.

Complainant Allu Ram was examined as PW5 and his friend Vijay

Kumar Pandey, who was cited as an eye witness to the incident,

was examined as PW6. So far as PW2 Const. Satpal Singh is

concerned, he is a formal witness being Duty Officer who had

recorded the FIR. He has proved the FIR as Ex.PW2/A.

7. After prosecution closed evidence statements under Section

313 Cr.P.C. of the Appellants were recorded on 28th July, 2009 in

which entire incriminating material which had come on record

during the investigation was put to them. Their case was that of

simple denial. They denied their complicity in the crime. They

claimed themselves to be innocent. All the Appellants took a

similar plea that they had been lifted from their house and falsely

framed in this case. However, no evidence was led by them in their

defence.

8. PW5 Allu Ram did not identify the Appellants as the same

persons who had robbed him. Similar is the story of PW6. He also

did not identify the Appellants as the same person who had robbed

PW5 Allu Ram on the point of knife. Their deposition is also not in

line with the prosecution case as set up in the charge-sheet. So far

as Investigating Officer PW7 and other police officials, who were

accompanying him while patrolling, are concerned, they have

corroborated each other with regard to the apprehension of

Appellants from the spot. Trial Court was of the view that even the

testimony of a hostile witness can be read against the accused to

the extent it supports the prosecution version. As per PW5 and

PW6, it was established that both of them were going in a bus and

were robbed by certain persons at Welcome Colony Metro Station.

As per PW6, one Anwar @ Annu was even apprehended by him and

PW5 and then handed over to the police officials, who were on

patrolling duty. Trial Court was of the view that since from their

statement it was established that certain boys had robbed PW5

Allu Ram on the point of knife at Metro Station Welcome Colony,

the deposition of the police officials, who had apprehended the

Appellants, assumes importance and connect the Appellants with

the crime inasmuch as, PW5 Allu Ram had admitted his signatures

on his statement recorded under Section 154 Cr.P.C. by the

Investigating Officer immediately after the incident, which fact

supported the police witnesses. Thus, Trial Court was of the view

that prosecution had succeeded in proving its case beyond shadow

of reasonable doubt that it is the Appellants who had robbed PW5

Allu Ram on the point of knife. Recovery of knife from the

Appellant Anwar @ Annu was also accepted on the basis of

statements of police officials, i.e. PW1, PW3, PW4 and PW7.

9. I have heard the learned counsel for the Appellants, learned

APP for the State and have perused the Trial Court Record more

specifically, depositions of PW5 Allu Ram and PW6 Vijay Kumar

Pandey. PW5 has failed to identify any of the Appellants in the

dock. He was declared hostile and cross-examined by the APP for

the State at length but nothing could be elicited from him which

could indicate complicity of the Appellants in the crime. Similar is

the case with regard to testimony of PW6. He has also not

identified any of the Appellants as the same persons who had

robbed the complainant Allu Ram. Thus, in my view, identity of

the Appellants could not be fixed and in absence thereof, there was

no other material available before the Trial Court to arrive at a

finding that too beyond the shadow of reasonable doubt that it is

the Appellants who had robbed the Allu Ram on the fateful day.

10. That apart, there are material infirmities in the statements of

PW5 and PW6 vis-à-vis prosecution case with regard to the manner

in which incident took place as also the apprehension of the

Appellants. In the FIR, PW5 had stated that some boys had

surrounded him and made him to de-board the bus at Keshaw

Chowk red light and thereafter, had robbed him. However, while

deposing in the court he has stated that he was robbed inside the

bus. When the bus stopped at the red light all four boys de-

boarded and started running. Thereafter, on the advice of Vijay

Kumar Pandey, he along with him went to the Police Station and

lodged a report. After about one hour a call was received in the

Police Station that the persons who had committed crime had been

arrested. He signed 5/7 papers in the Police Station. His this

version while in the witness box is materially at variance vis-à-vis

the prosecution story. PW6 has come up with another version.

According to him, PW5 Allu Ram was robbed inside the bus but

those boys got down from the bus at the red light of Metro Station.

He along with Allu Ram, also de-boarded the bus and gave a chase

and caught Anwar @ Annu and handed him over to the police

official while other boys succeeded in escaping. Thereafter, all of

them went to the Police Station. His this version is also not in

consonance with the prosecution story. There is yet material

discrepancy regarding the arrest of Appellants and other

proceedings conducted by the Investigating Officer. According to

police officials, it was done at the spot; whereas as per PW5, it was

done in the Police Station. Be that as it may, identity of the

Appellants cannot be fixed from the testimony of police officials,

inasmuch as, Allu Ram was not robbed in the presence of the

police officials and that is not the case of the prosecution. If that is

so then on the basis of their testimony it, otherwise, cannot be

concluded that it is the Appellants who had robbed the PW5 more

so, when PW5 and PW6 have failed to identify them.

11. It is true that the evidence of a witness, declined hostile, is

not wholly effaced from the record and that part of the evidence

which is otherwise acceptable can be acted upon. In other words,

testimony of a hostile witness to the extent it supports the

prosecution case, if found trustworthy, can be accepted and made

base of conviction. However, that would depend upon the facts of

each case and cannot be applied across the board in all cases. For

example, in a case where witness supports the prosecution case in

his examination-in-chief but makes contradictory statements in

his cross-examination, the same can be taken as an attempt to

wriggle out from the earlier statement, and in such an eventuality,

the statement made in examination-in-chief on material point can

be accepted. However, in case a witness is completely hostile with

regard to identity of the accused even in his examination-in-chief

and nothing could be elicited from him to show the involvement of

the accused in the offence in the cross-examination by the APP,

such a testimony cannot be accepted and made the basis of the

conviction.

12. For the foregoing reasons, I am of the view that the

prosecution has failed to prove its case beyond shadow of

reasonable doubt that the Appellants had robbed the complainant.

Findings returned by the Trial Court in this regard are not in

consonance with the evidence adduced on record. Appeals are,

thus, allowed. Appellants are acquitted. They be released

forthwith if not wanted in any other case.

13. Copy of this order be sent to the Superintendent Jail for

compliance and also for serving on the Appellants.

A.K. PATHAK, J.

September 09, 2010 ga