Mohd. Ramjani vs State
2011 Latest Caselaw 3133 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   Judgment delivered on: July 05, 2011

+      CRIMINAL APPEAL NO.1073/2008

       MOHD. RAMJANI                                 ....APPELLANT
               Through:         Mr. S.M. Chopra, Advocate/Amicus Curiae

                         Versus

       STATE                                         .....RESPONDENT

Through: Mr. Sunil Sharma, 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.(ORAL)

1. Mohd. Ramjani, the appellant herein has preferred this appeal

against the impugned judgment of learned Additional Sessions Judge

dated 25.09.2008 and the order on sentence of the even date whereby

the appellant has been convicted for the offence punishable under

Section 392 read with 397 IPC and sentenced to undergo RI for the

period of 07 years with fine of `100/-, in default of fine to undergo SI

for the period of 07 days.

2. Briefly put, case of the prosecution is that on 24.06.2005 at

about 4:30 pm complainant Avdesh Tiwari (PW1) reached at Dhaula

Kuan, Delhi from Bhiwani, District Alwar in a Haryana Roadways Bus.

Crl.A.No.1073/2008 He was to go Nizamuddin Railway Station. He asked certain passersby

for direction. Appellant Mohd. Ramjani told him that he was also to go

to Nizamuddin and asked the complainant to accompany him. While

they were going on foot towards the jungle, the appellant robbed the

complainant of his purse containing `765/- on the point of knife. The

appellant threatened the complainant not to tell anyone about the

incident and proceeded towards the jungle. The complainant came

back some distance and raised alarm. On this, Satish Kumar,

Constable who was on patrol duty in civil dress approached the

complainant who narrated the incident to him. Thereafter, constable

Satish Kumar and the complainant went towards the direction in which

the appellant had gone and he was apprehended. Satish Kumar,

Constable searched the appellant and recovered a churi as also the

purse of the complainant containing `765/-. It is further the case of the

prosecution that Constable Satish Kumar thereafter informed the police

station about the incident on telephone pursuant to which DD

No.14A(Ex.PW3/A) was recorded at P.S. Chanakya Puri at 6:10 pm.

Copy of DD report was entrusted to SI Brij Mohan, who immediately

reached at the spot where Constable Satish Kumar produced the

complainant as well as the appellant before him along with the case

property i.e. churi and the purse containing `765/-. SI Brij Mohan

prepared the sketch of the knife (churi) Ex.PW2/A. He converted the

knife as well as the purse containing money into separate sealed

packets and took those packets into possession vide seizure memos

Crl.A.No.1073/2008 Exhibits PW1/B and PW1/C. He also recorded the statement of the

complainant Ex.PW1/A, appended his endorsement on the same and

sent it to the Police Station for registration of case through Constable

Rajbir. FIR No.149/2005 under Sections 392 and 25 of the Arms Act

was registered on the basis of said rukka. Other formalities of

investigation were completed and thereafter, the appellant was

challaned and sent for trial.

3. Learned Additional Sessions Judge charged the appellant for the

offence punishable under Section 392 read with Section 397 IPC.

Appellant pleaded not guilty to the charge and claimed to be tried.

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

examined three witnesses.

5. PW1 Avdesh Tiwari, complainant has reiterated his version given

in his complaint Ex.PW1/A. He has testified that on 24.06.2005 at

4:30 pm, he came to Dhaula Kuan in a Roadways Bus. He was

supposed to catch a train for Orissa from Nizamuddin Railway Station.

He asked someone to seek direction. In the meanwhile, appellant told

him that he was also going to Nizamuddin and asked him to

accompany him. Thereafter, they proceeded towards the jungle on

foot and on the way, the appellant robbed him of his purse containing

`765/- on the point of knife. He has further stated that he raised alarm

on which Constable Satish Kumar (PW2) came there and he narrated

the incident to him. Thereafter, complainant Satish chased the

appellant and apprehended him. He has further stated that on search,

Crl.A.No.1073/2008 one chura and a purse containing `765/- was recovered from the

possession of the appellant. He has proved his complaint Ex.PW1/A

and seizure memo of chura as also the seizure memo of purse

containing money Exhibits PW1/B and PW1/C.

6. PW2 Constable Satish Kumar has also corroborated the version of

the complainant by stating that while he was on patrol duty, he noticed

PW1 Avdesh Tiwari raising alarm. On this, he asked the complainant

as to what had happened and the complainant told him that he was

robbed by someone on the point of knife. Thereafter, he along with

the complainant ran in the direction towards which the appellant had

gone and apprehended him. He also stated that on search, one 'chura'

and a purse containing `765/- was recovered from the possession of

the appellant and the purse and the money was identified by the

complainant as his own. PW2 further stated that thereafter he along

with complainant and the appellant went to Taj Palace Hotel and

intimated the Police Station from a telephone in a security guard room.

Pursuant to said information, Investigating Officer reached at the spot

and he produced the appellant along with knife and the stolen purse

containing money before the Investigating Officer, who thereafter

conducted necessary formalities of the investigation.

7. PW3 SI B.M. Bahuguna is the Investigating Officer who has stated

about the investigation conducted by him.

8. The appellant, in his statement under Section 313 Cr.P.C. denied

the prosecution version. Defence of the appellant is that the purse and

Crl.A.No.1073/2008 money belonged to him and he has been falsely implicated by the

police with the help of the complainant, who is an informer. No

witness in defence has been examined.

9. The learned Additional Sessions Judge, on appreciation of

evidence, found the testimony of the complainant and Constable Satish

Kumar reliable and convicted the appellant and sentenced him for the

offence punishable under Section 392 read with Section 397 IPC.

10. Learned Shri S.M. Chopra, Advocate/amicus curiae appearing for

the appellant has assailed the impugned judgment by submitting that

it is based upon incorrect appreciation of facts. Learned amicus curiae

submitted that the learned Additional Sessions Judge has failed to

appreciate that the defence of the appellant is that he has been falsely

implicated in this case by the police with the help of the complainant

by planting his own purse containing `765/- upon him as the stolen

property. Learned amicus curiae submitted that in view of the

aforesaid defence, the question for determination is whether the purse

containing `765/- projected as the stolen case property belongs to the

complainant or the appellant? In this regard, the testimony of

Constable Satish Kumar (PW2) who, as per the case of the prosecution,

apprehended the appellant and recovered the case property from him

assumes importance. PW2 Constable Satish Kumar has testified that

after apprehending the appellant, he casually searched him and found

the purse containing `765/- and one diary which was recovered from

his back pocket. Although the purse and `765/- have been produced

Crl.A.No.1073/2008 as case property, the diary has not been produced before the court.

Learned amicus curiae submitted that aforesaid diary which was

allegedly recovered from the purse is an important piece of evidence

because the entries in the diary particularly regarding the name and

address of the owner could have given a clue about the ownership of

the case property i.e. purse and money and help the court to come to

the conclusion whether the case property belong to the complainant or

to the appellant. Leaned counsel submitted that withholding of such

an important piece of evidence goes against the prosecution and

benefit of the same must go the appellant.

11. Learned amicus curiae submitted that doubt against the

prosecution case is further compounded by the fact that the

prosecution evidence regarding the time at which the complainant and

others reached at the police station is highly contradictory. As per the

prosecution case as revealed by DD No.14/A(Ex.PW3/A) and the

testimony of the Investigating Officer, Inspector B.M. Bahuguna (PW3),

telephonic information regarding the incident was received at the

Police Station Chanakya Puri at 6:10 pm, pursuant to which the

Investigating Officer reached at the spot where he seized the case

property and recorded the statement of the complainant PW1 Avdesh

Tiwari at 7:15 pm. The rukka was sent to police station at 7:45 pm.

This version is contradictory to the version of PW1 Avdesh Tiwari who

has stated in his cross-examination that the incident had taken place

at 4:30 pm and he reached at Police Station at 5/5:30 pm. It is argued

Crl.A.No.1073/2008 that this contradiction raises a grave doubt against the correctness of

prosecution story. Learned amicus curiae further argued that

otherwise also, the prosecution story regarding the receipt of DD at

6:10 pm is highly doubtful because as per the version of the

complainant as well as Constable Satish Kumar, the incident took place

at 4:30 pm and the appellant was apprehended within minutes of the

same. Thereafter, he was searched casually, which led the recovery

one 'chura' and he was taken to nearby security guard of Taj Place

from where Constable Satish Kumar telephonically informed the police

station about the incident. If the aforesaid version is true, then the

telephonic information ought to have been received at the police

station within 15 to 30 minutes of the incident i.e. about 5:00 pm,

instead of 6:10 pm. This circumstance also casts a doubt against the

prosecution version. In view of the aforesaid, learned amicus curiae

has urged that the appeal be accepted and the appellant be acquitted

of the charge under Section 392 read with Section 397 IPC.

12. Learned APP, on the other hand, has argued in support of the

impugned judgment. He has submitted that there is nothing on the

record to suggest any enmity or motive on the part of the complainant

to falsely implicate the appellant. Otherwise also, the complainant is a

resident of Bihar. Therefore, the possibility of the complainant falsely

implicating the appellant is ruled out. Thus, it is argued that learned

trial Judge has rightly relied upon the testimony of the complainant

Crl.A.No.1073/2008 which stands corroborated by the testimony of PW2 Constable Satish

Kumar. Learned APP has thus urged for dismissal of the appeal.

13. I have considered the rival contentions and perused the record. I

find merit in the submissions made by learned amicus curiae. Above

noted infirmity pointed out by learned amicus curiae in the prosecution

evidence raises a strong doubt against the correctness of prosecution

version. Aforesaid doubt is further compounded by the fact that

perusal of the sketch of the dagger Ex.PW2/A shows that it does not

bear the signatures of the complainant despite of the fact that he was

the only non-police witness to the aforesaid recovery. Further, perusal

of DD no. 14A, which as per the prosecution is record of first

information of incident received at the Police Station, reveals that the

DD report records that Constable Satish Kumar informed that he has

apprehended a boy near S.P. Marg, Picket while he was snatching

money whereas the evidence of Constable Satish (PW2) is to the effect

that he came across the complainant after the robbery and he chased

and apprehended the appellant with the stolen purse and 'chura'.

Further, PW2 Constable Satish Kumar has stated that he was carrying a

wireless set. If this is true, then under the natural course of

circumstances, PW2 Satish Kumar was expected to convey the

information to the police station on the wireless set instead of going to

Taj Palace Hotel to use telephone as claimed by him. This

circumstance casts a strong doubt against the prosecution story.

Constable Satish Kumar has tried to explain this infirmity by stating

Crl.A.No.1073/2008 that his wireless set was non-functional as its battery was not in

working order but the explanation appears to be an afterthought and a

make believe story.

14. In view of the aforesaid infirmities, I am of the view that the

prosecution evidence does not inspire confidence, as such, it is not

safe to base conviction on the aforesaid contradictory and unnatural

evidence. Accordingly, the appeal is accepted and the appellant is

acquitted of charge under Section 392 read with Section 397 IPC,

giving him benefit of doubt.

15. Appellant is reported to be in Jail. He be released forthwith if not

required in any other case.

16. Appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE JULY 05, 2011 pst

Crl.A.No.1073/2008