Shyambeer @ Somvir vs The State (Govt. Of Nct Of Delhi)
2011 Latest Caselaw 1621 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             Judgment delivered on: March 22, 2011

+      CRIMINAL APPEAL NO.762/2003

       SHYAMBEER @ SOMVIR                   ....APPELLANT
              Through: Mr. Rajesh Mahajan, Amicus Curiae

                          Versus

       THE STATE(GOVT. OF NCT OF DELHI)      .....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. This appeal is directed against the impugned judgment dated

04.09.2003 passed by the learned Additional Sessions Judge in

Sessions Case No.83/02 FIR No.210/02 under Section 392/397 IPC and

Section 25 of the Arms Act P.S. Hari Nagar and the consequent order

on sentence dated 06.09.2003 whereby the appellant has been held

and convicted for the offences punishable under Section 392 and 397

IPC as also Section 25 of the Arms Act and sentenced accordingly.

2. Briefly stated, facts relevant for the disposal of this case are that

on 03.05.2002 complainant Kamlesh Chand Meena (PW1) was

travelling in bus route No.740 bound for Mandi House. When the bus

reached near Sagarpur bus stand, the appellant, who was carrying a

knife in his hand, removed Rs.4,500/- from his pocket. When he raised

an alarm, the appellant pointed the knife towards him, but he somehow

managed to catch hold of the appellant along with knife. The appellant

was thereafter searched, but the money could not be recovered.

Thereafter, he was brought down from the bus and the complainant

conveyed the information about the incident to the police station on

telephone. On the basis of said information DD No.5A (Ex.PW3/A) was

recorded at Police Station Hari Nagar at 8:10 am and copy thereof was

entrusted to SI Manmat Kumar(PW3), who immediately left for the spot

along with Constable Ravinder Singh. At the place of occurrence,

complainant Kamlesh Chand Meena produced the appellant as well as

the knife before the Investigating Officer. Investigating Officer recorded

his statement Ex.PW1/A. He also measured the knife and prepared the

sketch of the knife and, thereafter the knife was converted into a

sealed cover with the seal of MK and took into possession vide seizure

memo Ex.PW1/C. Rukka was sent to the Police Station on the basis of

which, formal FIR Ex.PW3/B was registered. On completion of

investigation, appellant was challaned and sent for trial.

3. Learned Additional Sessions Judge framed charges under

Sections 392 and 397 IPC as also under Section 25 of the Arms Act

against the appellant, to which he pleaded not guilty and claimed trial.

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

examined four witnesses, namely, PW1 Kamlesh Chand Meena

(complainant), PW2 Constable Ravinder Singh, PW3 SI Manmat Kumar

and PW4 SI Renu Sharma, who recorded the FIR on the basis of rukka

Ex.PW2/A.

5. The case of the prosecution rests solely on the testimony of the

complainant Kamlesh Chand Meena, who testified that on 03.05.2002,

he boarded bus route No.740 from the red-light near Sagarpur bus

stand. He was to go to Mandi House. When the bus stopped at

Sagarpur bus stand, the appellant, who was having a knife in his hand,

removed Rs.4,500/- from the pocket of his pant on the point of knife.

He, however, over-powered the appellant along with the knife. But the

appellant managed to hand over the stolen money to one of his

companions, who were 4-5 in number. The companions of the

appellant fled away along with the money. He brought the appellant

down from the bus and informed the Police Station Hari Nagar on

telephone. Police reached at the spot of occurrence and recorded his

statement Ex.PW1/A. He further stated that the Investigating Officer

measured the recovered knife and prepared its sketch Ex.PW1/B.

Thereafter, said knife was converted into a sealed packet and taken

into possession vide memo Ex.PW1/C. The appellant was arrested at

the spot vide arrest memo Ex.PW1/D and his personal search was

conducted vide memo Ex.PW1/E. The witness identified the knife

recovered from the possession of the appellant as Ex.P-1.

6. The appellant was examined under Section 313 Cr.P.C. to afford

him an opportunity to explain the incriminating evidence against him.

In the said statement, he denied the prosecution evidence in its

entirety and claimed that he was lifted from in front of his brother's

house at Delhi Cantt, Sadar and taken to Police Station Hari Nagar

where he was falsely implicated in this case after planting the knife

upon him. Though the appellant stated that he would like to lead

evidence in defence, but he failed to adduce any evidence in defence.

7. Learned Shri Rajesh Mahajan, Amicus Curiae appearing for the

appellant submits that the appellant has been falsely implicated by the

local police with the help of complainant Kamlesh Chand Meena, who

himself is a police Constable. Learned amicus argued that case of the

prosecution is based on sole testimony of Kamlesh Chand Meena which

does not inspire confidence. Learned Trial Court has failed to

appreciate that neither there is recovery of the stolen property nor

there is any independent witness to support the version of the

complainant, despite the fact that the incident allegedly took place in a

crowded bus. It is further contended that otherwise also, the story of

the prosecution is highly improbable. Dilating on the argument,

learned amicus for the appellant submitted that according to the

complainant, the money was removed on the point of knife from the

right inside front pocket of his pant and the appellant managed to pass

on the stolen money to his associates. This version, according to

learned amicus, is highly improbable that the appellant would have

managed to remove the money from inside front pocket of the pant of

the complainant and pass on the same to his associates despite of

resistance of the complainant who allegedly apprehended him with

knife. In view of the above, learned amicus urged that version of

prosecution is highly doubtful as such the appellant is entitled to

benefit of doubt.

8. Learned APP, on the other hand, submitted that merely because

the complainant was a police Constable, he cannot be disbelieved. He

contended that it is the quality of evidence which should weigh on the

mind of the Court and not the quantity. If the passengers of the bus or

its driver and conductor have not come forward to corroborate the

version of the complainant, his testimony cannot be thrown away

particularly when he had no motive to falsely implicate the appellant.

Learned APP submitted that as per the version of the complainant

Kamlesh Chand Meena, he was posted at the residence of Additional

DCP at Mandi House and he had nothing to do with local Police Station

Hari Nagar, as such the possibility of his trying to help the local police

station to falsely implicate the appellant is too remote. Thus, learned

APP has pressed for dismissal of the appeal.

9. I have considered the rival contentions and perused the material

on record. Admittedly, the complainant Kamlesh Chand Meena is a

police Constable. It is also admitted case of the prosecution that the

alleged occurrence took place in a crowded bus. According to the

prosecution story, the appellant was present in the crowded bus with

an open knife in his hand when he removed Rs.4,500/- from the inside

front pocket of the complainant on the point of a knife. This version

appears to be highly unnatural to be believed. If the appellant was

actually carrying an open knife in his hand, there ought to have been

commotion in the bus and the complainant would have been on his

guard to prevent the appellant from removing money from the pocket.

It is also highly improbable that in an occurrence in which the appellant

was immediately apprehended by the complainant, he could have

managed to pass the stolen money to his associates. Therefore, in

absence of recovery of stolen property from the possession of the

appellant and also any independent corroboration from either the

passengers or bus conductor or driver of the bus, I do not consider it

safe to rely upon the version of the complainant Kamlesh Chand

Meena.

10. Complainant Kamlesh Chand Meena in his cross-examination has

stated that from the spot of occurrence, he took the appellant to the

police station to produce him before the police. This version is

contradictory to the case set up by the prosecution in the rukka

Ex.PW2/A, wherein it is stated that on the receipt of DD

No.5A(Ex.PW3/A) Investigating Officer visited the spot of occurrence

when the appellant was produced before him by the complainant and

that he recorded statement of the complainant at the spot.

Complainant has also stated that he did not ask any passenger of the

bus to accompany him to police station, which means that he despite

of being police Constable did not make any effort to take eye witness

to the police for corroboration of his story. This raises a strong doubt

against the reliability of the version of the complainant. Interestingly,

though the bus route number is given in the complaint, yet the

Investigating Officer has not cared to locate the bus and try to examine

the conductor and driver of the bus to verify the correctness of the

version of the complainant. In view of the above, I do not find it safe to

rely on such uncorroborated testimony of the complainant who is a

police Constable.

11. In view of the discussion above, I find the prosecution case highly

doubtful to be believed. Therefore, I am unable to sustain the

conviction of the appellant. Appeal is accordingly allowed and the

impugned judgment of conviction and the consequent order on

sentence are set aside.

12. Appellant is acquitted giving him benefit of doubt.

13. Appeal is disposed of accordingly.

(AJIT BHARIHOKE) JUDGE MARCH 22, 2011 pst