Praveen @ Suresh vs The State(Govt. Of Nct Of Delhi)
2011 Latest Caselaw 844 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment reserved on: January 11, 2011
                             Judgment delivered on: February 11,2011

+      CRIMINAL APPEAL No.581/2008

       PRAVEEN @ SURESH                              ....APPELLANT

                  Through:   Ms. Ritu Mishra, Advocate/Amicus Curiae.

                       Versus

       THE STATE (GOVT OF NCT OF DELHI)       .....RESPONDENT
               Through: Mr. Jaideep Malik, APP.


        CORAM:
        HON'BLE MR. JUSTICE AJIT BHARIHOKE

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

2.     To be referred to the Reporter or not ?
3.     Whether the judgment should be
       reported in Digest ?

AJIT BHARIHOKE, J.

1. This appeal is directed against the impugned judgment of

conviction dated 26.05.2008 in Sessions Case No.142/06 FIR No.766/05

P.S. Model Town and the consequent order on sentence dated

27.05.2008 whereby the appellant has been convicted for the offences

under Section 394/397/34 IPC and sentenced to undergo RI for the

period of seven years and also to pay fine of `1,000/-, in default of

payment of fine to undergo RI for the further period of one month.

2. Briefly stated, case of the prosecution is that on 09.12.2005 at

about 9:30 am, while travelling in a DTC Bus route No.119 near

Telephone Exchange, G.T.K. Road, the appellant and his unknown

associates, in furtherance of their common intention, robbed

complainant Late Prem Nath Mehta of ` 6100/- on the point of knife.

The co-accused persons managed to escape with the money, but the

appellant was apprehended by Anil Kumar, Constable (PW3). It is the

case of the prosecution that while trying to escape, the appellant used

the knife and caused simple injury on the back of the left palm of

Constable Anil Kumar.

3. Intimation of the incident was conveyed to the Police Station by

the PCR, which was recorded as DD No.14A dated 09.12.2005

(Ex.PW1/D) and copy of the DD report was entrusted to Inspector

Ombir(PW5) for verification. SI Ombir, on receipt of the copy of DD

report, reached at the spot of occurrence where the appellant was

produced before him by the complainant Prem Nath and Constable Anil

Kumar. They also produced the knife stated to have been recovered

from the possession of the appellant. Inspector Ombir prepared the

sketch of the knife Ex.PW3/A. On measurement, knife was found to be

32.5 cm long with the blade 15.5 cm long. The knife was converted

into a sealed packet and seized. Inspector Ombir also recorded the

statement of the complainant Prem Nath Mehta Ex.PW5/A and sent it to

the Police Station along with his endorsement for the registration of the

case.

4. During investigation, Inspector Ombir recorded statements of the

witnesses. He arrested the appellant vide arrest memo Ex.PW4/A and

conducted personal search of the appellant vide memo Ex.PW4/B. He

made efforts to locate the associates of the appellant, but in vain. On

conclusion of investigation, appellant was challaned and sent for trial.

5. The learned Additional Sessions Judge charged the appellant for

the offences punishable under Section 394/397 read with Section 34

IPC. The appellant pleaded not guilty to the charge and claimed to be

tried.

6. In order to bring home the guilt of the appellant, prosecution has

examined 5 witnesses namely Duty Officer ASI Seema (PW1), Ramesh

Kumar, Conductor of DTC Bus (PW2), Constable Anil Kumar (PW3),

Constable Sanjay Singh (PW4), who participated in investigation and

the Investigating Officer Inspector Ombir Singh (PW5).

7. The complainant Prem Nath Mehta, who is claimed to have been

robbed, could not be examined because of his unfortunate demise

during trial. Out of the above witnesses, PW2 Ramesh Kumar and PW3

Constable Anil Kumar are claimed to be eye witnesses. Before

proceeding further, it would be useful to have a look upon the

testimony of the eye witnesses.

8. PW2 Ramesh Kumar is the conductor of DTC bus route No. 119,

registration No. 3101 wherein the alleged occurrence took place. He

testified that on the relevant day, he heard the people shouting

"Jebkatra Jebkatra" and the pick-pocket was made to get down from

the bus. He however expressed his inability to identify the appellant as

the pick-pocket. Learned APP, after seeking permission from the court,

cross examined PW2 Ramesh Kumar and in the cross examination,

conductor Ramesh Kumar admitted the suggestion that the accused

was made to get down from the bus by the passengers. He, however,

denied the suggestion that when the accused was apprehended, he

was having a knife in his possession or that he heard the passengers

saying that two co-accused persons had managed to escape.

9. PW3 Constable Anil Kumar is the star witness of the prosecution.

He has testified that on 09th December, 2005, he was travelling in bus

route No. 119, a DTC bus having registration No. DL-1-PB-3101. At

about 9.30 a.m., when the bus reached at G.T.K. Road in front of

telephone exchange, one aged passenger raised an alarm that

somebody has picked his pocket. That passenger whose name was

later on revealed as Prem Nath Mehta was trying to overpower the

appellant, who was having a knife in his right hand. Constable Anil

Kumar claimed that he, with the help of public persons, overpowered

the appellant and in the process, while making an effort to escape, the

appellant inflicted knife injury on back side of his left palm. The knife

was taken from the possession of the appellant and Police Control

Room was informed. Witness further stated that the appellant was

beaten by public persons. Police Control Room van reached at the

spot. Inspector Ombir of P.S. Model Town also reached at the spot

along with Constable Sanjay and he handed over the custody of the

appellant and the knife to SI Ombir. He further stated that Inspector

Ombir recorded statement of the complainant Prem Nath Mehta. He

also measured the knife and prepared the sketch of knife Ex.PW3/A.

Thereafter, knife was converted into a sealed packet and seized vide

seizure memo Ex.PW3/B. PW3 claimed that he went to Hindu Rao

Hospital where he was medically examined and his MLC was prepared.

He has identified the knife recovered from the appellant Ex.P1.

10. Statement of the appellant under Section 313 was recorded. The

appellant claimed to be innocent and stated that he was travelling in

the same bus and when he was alighting from the bus, he stepped on

the foot of Constable Anil Kumar, which resulted in an altercation and

Constable Anil Kumar gave him a beating. Later on Constable Anil, in

connivance with the Investigating Officer, got him falsely implicated in

this case. Appellant declined to lead evidence in defence.

11. Learned Additional Sessions Judge, after hearing the parties and

on consideration of the evidence on record, found the appellant guilty

of robbery on the point of knife and convicted him for the offence

punishable under Sections 394/397/34 IPC and sentenced him

accordingly.

12. Learned Ms. Ritu Mishra, Amicus Curiae appearing for the

appellant submitted that the appellant is innocent and he has been

falsely implicated in this case. Dilating on the argument, she firstly

contended that in order to establish the guilt of the appellant, the

prosecution was supposed to establish beyond doubt that a robbery

was committed. She contended that neither the complainant Prem

Nath Mehta has been examined in this case nor the alleged stolen

property has been recovered, therefore, it is highly doubtful whether or

not any robbery was committed and on this count alone, the appellant

deserves to be acquitted.

13. Learned APP, on the other hand, submitted that as per the case

of the prosecution, robbery was committed by three persons including

the appellant and his two associates, who managed to escape with the

stolen ` 6100/- but this does not mean that no robbery was committed.

She further contended that the complainant Prem Nath Mehta could

not be produced as a witness though cited in the charge sheet as he

expired during the pendency of trial before he could be examined, as

such, his non-production is not fatal to the prosecution case. Learned

APP submitted that PW3 Constable Anil Kumar has categorically stated

that the complainant Prem Nath Mehta, at the relevant time, was

saying that the appellant and his two associates have robbed him on

the point of knife and this evidence is relevant under Section 8 of the

Evidence Act, being the evidence relating to the conduct of the victim

of crime immediately after the occurrence. As such, according to her,

from the testimony of Constable Anil Kumar (PW3), robbery is

established.

14. No doubt, the complainant has not been examined in this case

nor the case property has been recovered. It is also true that the

complainant could not be examined on account of his unfortunate

death during the pendency of the trial. Does it mean that the

appellant, if guilty, should go scot-free in absence of the evidence of

the victim regarding robbery? The answer of this question is in the

negative. If the complainant unfortunately expired before he could be

examined as a witness, this can never be a reason to reject the

prosecution case, provided there is other reliable evidence to establish

the robbery. Thus, it is to be seen whether there is some other

evidence on record to establish the offence of robbery.

15. Next contention on behalf of the appellant is that the prosecution

case is essentially based upon the other two purported eye witnesses

namely Ramesh Kumar, conductor of the bus (PW2) and Constable Anil

Kumar (PW3). Out of them, PW2 Ramesh Kumar turned hostile and he

has not supported the case of the prosecution. Learned counsel

contended that case of the prosecution, thus, essentially rests upon the

testimony of PW3 Constable Anil Kumar, who is not a reliable witness,

being a police official. Learned Amicus Curiae contended that in fact,

the appellant, while getting down from the bus, stepped on the feet of

Constable Anil Kumar, due to which Constable Anil Kumar got annoyed

and gave beating to the appellant and thereafter, he got the appellant

falsely implicated in this case in connivance with the Investigating

Officer. Learned counsel further submitted that even the investigation

of this case has not been done in a fair manner, which is obvious from

the documentary evidence i.e. DD No. 13A (Ex.PW1/C), DD No. 14A

(Ex.PW1/D) and the MLC of Constable Anil Kumar, which has not been

proved by producing and examining the doctor concerned.

16. Learned APP, on the other hand, contended that there is no

reason to disbelieve the testimony of Constable Anil Kumar, who had

sustained injury while apprehending the appellant, which fact finds

corroboration from his MLC, wherein it is recorded that Constable Anil

Kumar had sustained simple injury with a sharp object on the dorsum

of his left hand. Thus, learned APP has pressed for dismissal of

appeal.

17. On consideration of the evidence on record, I find merit in the

contention of learned Amicus Curiae. Since neither the complainant

could be examined in this case nor the case property has been

recovered and the case is based upon the sole testimony of PW3

Constable Anil Kumar, the court is required to be on its guard while

appreciating the evidence of PW3 Constable Anil Kumar.

18. On perusal of DD No. 13A dated 09.12.2005 recorded at P.S.

Model Town (Ex.PW1/C), it transpires that this DD report was recorded

at 09.45 a.m. and it records about a PCR call regarding presence of

some pick pockets near Shakti Nagar Telephone Exchange. It is

mentioned in the DD report that copy of this DD was handed over to

Inspector Ombir Singh (PW5) for necessary action, who immediately

left for Telephone Exchange Shakti Nagar along with Constable Sanjay

(PW4). Next document in the sequence of events is DD No. 14A dated

09.12.2005 recorded at P.S. Model Town at 10.00 a.m., wherein it is

recorded that information has been received from PCR that pocket of a

person has been picked in a DTC bus near Shakti Nagar Telephone

Exchange and the picket pocket in possession of a knife has been

apprehended. This DD report was also sent to Inspector Ombir Singh

through Home Guard Constable Suresh. Since Inspector Ombir Singh

had left for Shakti Nagar Telephone Exchange on the receipt of DD No.

13A, it can be safely inferred that by 10.00 a.m., he had not reached

the spot of occurrence near Shakti Nagar Telephone Exchange when

PCR conveyed this information to the police station. If the contents of

the DD report are true, then it is obvious that Inspector Ombir Singh

and Constable Sanjay reached at the spot of occurrence after 10.00

a.m.

19. PW5 Inspector Ombir Singh has testified that when he reached at

the spot of occurrence, complainant Prem Nath Mehta (since deceased)

and Constable Anil Kumar (PW3) produced before him the appellant

along with the knife stated to have been recovered from the appellant.

He measured that knife, prepared its sketch, converted it into a parcel,

sealed it with the seal of OSP and took it into the possession vide

memo Ex.PW3/B. On perusal of the sketch of knife Ex.PW3/A as well as

the seizure memo Ex.PW3/B, it transpires that both these documents

are signed by Constable Anil Kumar as witness. Thus, it can be safely

inferred that Constable Anil Kumar remained present at the spot of

occurrence till the seizure memo relating to the sealed parcel of knife

was prepared. From the "rukka" Ex.PW1/B, it is apparent that before

the aforesaid investigative procedure, Inspector Ombir Singh had also

recorded the statement of the complainant Ex.PW5/A. Obviously, this

process must have consumed some time and looking into the neat

sketch of knife Ex.PW3/A and the writing work done at the spot, it can

be safely inferred that this process must have consumed at least half

an hour. Even the Investigating Officer Inspector Ombir Singh (PW5) in

his cross examination, has stated that Constable Anil Kumar left the

spot of occurrence 20 to 25 minutes after his arrival there. Therefore,

it can be safely inferred that Constable Anil Kumar left the spot of

occurrence after the formalities of investigation done in his presence

sometime after 10.30 a.m. Constable Anil Kumar claims that from the

spot of occurrence, he went to Hindu Rao Hospital where he was

examined and his MLC was prepared. He must have taken around 10

to 15 minutes in reaching Hindu Rao Hospital. Thus, if the prosecution

story is true, Constable Anil Kumar could not have reached Hindu Rao

Hospital before 10.45 a.m. This however is belied by the MLC of

Constable Anil Kumar submitted along with the charge sheet. It may

be noted that though the prosecution was expected to prove the MLC

of Constable Anil Kumar by examining the concerned doctor, but it has

failed to do so. Be that as it may, the MLC, since it is a relied upon

document by the prosecution, can be looked into so far as the defence

of the appellant is concerned. On the MLC, it is recorded that

Constable Anil Kumar reached at Hindu Rao Hospital at 10.20 a.m.,

which is highly improbable if the prosecution witnesses are telling the

truth. This circumstance raises a strong suspicion against the fairness

of investigation as well as the correctness of the version of Constable

Anil Kumar. The doubt is further compounded by the fact that there is

no direct evidence of robbery nor has the case property been

recovered.

20. Another factor which goes against the prosecution is that

according to Constable Anil Kumar, when the knife was seized from the

appellant, it was stained with blood whereas Constable Sanjay (PW4)

and Inspector Ombir Singh (PW5) have categorically stated that there

were no blood stains on the knife. This contradiction also casts a doubt

on the correctness of the prosecution story.

21. In view of the discussion above, I do not find it safe to rely upon

the uncorroborated testimony of PW3 Constable Anil Kumar to find the

appellant guilty of the offence under Sections 397/394/34 IPC. Thus, I

find it difficult to sustain the impugned judgment of conviction and

consequent order on sentence. Accordingly, the appeal is accepted.

Impugned judgment is set aside and the appellant is acquitted of the

charge under Sections 394/397/34 IPC.

22. Appeal is accordingly disposed of.

23. Appellant is in jail. He be released forthwith if not required in any

other case.

(AJIT BHARIHOKE) JUDGE FEBRUARY 11, 2011 akb