Vinod @ Ramesh vs The State
2011 Latest Caselaw 4823 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+              CRL.Appeal No.879/2010

%              Judgment reserved on:22nd Sept.2011
               Judgment delivered on: 28th Sept.2011

+       CRL.A. 879/2010

VINOD @ RAMESH                                      ..... Appellant
                                  Through: Mr.Atul Bandhu and
                                  Mr.Varun Kumar, Advs.

                      versus

THE STATE                                         ..... Respondent
                                  Through: Ms.Rajdipa Behura, APP
                                  for State.

CORAM:
HON'BLE MR. JUSTICE SURESH KAIT

     1. Whether the Reporters of local papers may be allowed
        to see the judgment?                  NO
     2. To be referred to Reporter or not?    YES
     3. Whether the judgment should be reported YES
        in the Digest?

SURESH KAIT, J.

1. The instant appeal is being filed against the judgment

dated 15.10.2009 passed by learned Additional Sessions

Judge, Delhi in case FIR No.385/2001 under Section

392/397/34 Indian Penal Code, 1860 registered at police

station Nangloi, Delhi whereby the co-accused Rajeev @

Raju has been acquitted by giving him benefit of doubt for

the offence under Section 392/34 Indian Penal Code, 1860

read with Section 397/34 Indian Penal Code, 1860; whereas

the appellant has been held guilty and convicted for the

offence punishable under Section 392 of Indian Penal Code,

1860 read with Section 397 Indian Penal Code, 1860.

2. Vide order of sentence dated 21.10.2009, the appellant

was sentenced to RI for 07 years and fine of ` 15,000/- under

Section 392 read with Section 397 Indian Penal Code, 1860.

Benefit of Section 428 Criminal Procedure Code has also

been given.

3. The facts in brief are as follow:-

4. One Sh.Satish Chand was running a PCO booth in Tri

Nagar, Delhi; left his shop on his two wheeler scooter No.DL-

8S-6036 on 15.05.2011 at about 10:15PM. He was carrying

an amount of `50,000/- in the form of five bundles of

currency notes in the denomination of `100/- in the front

dickey of his said scooter.

5. When he reached near the house of Dr.Narendera, D-

16, Extension - II D, Nangloi, at about 10:45PM; he heard a

voice 'Satish Bhaisaab'. On hearing, he stopped his scooter

and when he turned back, he saw two persons on a two

wheeler scooter. One of them get down from the scooter,

came near to the complainant and gave slap on his cheek

and intimidated him with a knife. The complainant became

nervous and left his scooter which was taken by the said

persons. Thereafter, he went to the Nagnloi police station

and give his statement to the police narrating the entire

incident and got the FIR No.385/2001 under Section

392/397/34 Indian Penal Code, 1860 registered at police

station.

6. During investigation, the investigating officer prepared

the site plan of the place of occurrence and recorded the

supplementary statement of the complainant regarding the

correct registration of his scooter.

7. On 31.05.2001, appellant was arrested in case FIR

No.507/2001 under Section 25 Arms Act at police station

Rajouri Garden, Delhi wherein he disclosed his involvement

in the present case.

8. On 01.06.2011, co-accused namely Rajeev was

arrested by the police of Operation Cell, North - West District

and he also disclosed about his involvement in the present

case. On the basis of same, the investigating officer got

issued the Production Warrants of both accused persons and

they were arrested in the present case on 07.06.2001.

9. The Test Identification Parade of the appellant was got

conducted and he was duly identified by the complainant.

10. Both the accused persons made their disclosure

statements to the police and pursuant to same, co-accused

Rajeev got recovered a mobile phone which was alleged

bought by him from the part looted amount; he also got

recovered `1,100/- in cash which was also a part of the

looted amount.

11. The police got recovered the dagger from his house,

which was allegedly recovered in the commission of the

offence.

12. After the completion of investigation, the charge-sheet

was filed against both the accused persons under Section

392/397/34 Indian Penal Code, 1860.

13. Vide order dated 19.03.2002 charge under Section

392/395 Indian Penal Code, 1860 read with Section 397/34

Indian Penal Code, 1860 was framed against both the

accused persons, to which both of them pleaded not guilty

and claimed trial.

14. In order to prove its case before the Trial Court,

prosecution has examined as many as 13 witnesses.

15. The complainant Shri Satish Chand has been examined

as PW1. He has deposed on the lines of the complaint made

to the police and proved the same as Ex.PW1/A. He has also

identified the dagger Ex.P1 which was allegedly recovered

from the appellant and has also identified the cash amount

of `1,100/- as his own, which was allegedly recovered from

the co-accused Rajeev.

16. PW2 Shri Baldev Raj Aneja was allegedly the person

from whom the accused Rajeev had purchased the mobile

phone out of the looted amount, but has completely turned

hostile and denied to the fact that the accused had

purchased any mobile phone instrument from his shop or

that he further executed the receipt of `5,000/- as alleged by

the prosecution.

17. PW4 Shri Ashok had deposed that he has given

`50,000/- to complainant Shri Satish Chand on 15.05.2011

on credit basis, but on the next day, he came to know that

Shri Satish Chand was robbed of this money by someone.

18. PW8 Shri Pawan Kumar is the relative of the

complainant, who he had given the loan of `50,000/- to the

complainant and this amount of `50,000/- which the

complainant had taken on interest from PW4 Shri Ashok had

to be returned to him.

19. PW3 HC Virender Kumar has proved the FIR in instant

case as Ex.PW3/A. PW5 SI Anil Kumar was the witness of

arrest of appellant in case FIR No.507/2001 under Section 25

Arms Act, police Station Rajouri Garden, New Delhi, in which

the appellant had disclosed about his involvement in the

present case.

20. PW6 Ct.Dalbir Singh was the witness of recovery of

mobile phone which was seized vide seizure memo

Ex.PW1/D from the shop namely Aneja Communications

which was allegedly purchase by the co-accused Rajeev from

the part of the looted amount. This witness has also proved

the recovery of the dagger at the instance of appellant which

was seized vide seizure memo Ex.PW1/E.

21. PW7 SI Sajjan Singh has proved the arrest of the

appellant in case FIR No.507/2001 under Section 25 Arms

Act, police Station Rajouri Garden, New Delhi. This witness

has also proved the disclosure statement made by the

appellant in the said case as Ex.PW5/A.

22. PW9 Smt.Seema Maini, the then learned Metropolitan

Magistrate, Tis Hazari Courts, Delhi who conducted the TIP

proceedings of the appellant in which complainant Sh.Satish

Chand duly identified the appellant vide the TIP proceedings

Ex.PW9/B.

23. PW10 Ct.Kaptan Singh and PW12 SI Dharmender

Kumar were the witnesses of arrest of co-accused Rajeev

under Section 41.1 Criminal Procedure Code within the area

of police station Saraswati Vihar. They were also the

witnesses of the disclosure statement marked PW10/A of co-

accused Rajeev, who had disclosed his involvement in the

present case.

24. PW11 Ct. Mundae Gyanove had taken the rukka

Ex.PW1/A to the police station Nangloi.

25. PW13 Inspector Hanuman Sahai was the investigating

officer of this case, who had proved his endorsement PW13/A

made on the statement of complainant Sh.Satish Chand

PW1/A and he has also proved the site plan Ex.PW13/B. He

had also arrested both the accused persons including

appellant and the disclosure statement of both the accused

persons have been proved as Ex.PW13/C and Ex.PW13/D

respectively, he had also got the recovery effected from

them.

26. On completion of the prosecution evidence, statement

of both the accused persons, including the appellant were

recorded under Section 313 Criminal Procedure Code,

wherein they had denied the prosecution evidence and had

stated that they had been falsely implicated in this case.

However, no defence evidence was led.

27. I note that the charge was amended on 20.11.2007,

thereafter, on 20.05.2009, both the accused persons finally

charged for the offence under Section 392/394 read with

Section 397/34 Indian Penal Code; to which they pleaded not

guilty. It was further stated that no prejudice has been

caused to the accused persons, hence Prosecution Witnesses

were not recalled as they had already examined and cross-

examined.

28. Learned Trial Judge after hearing both the sides has

recorded that PW1 Shri Satish Chand was running a PCO

Booth at Tri Nagar, Delhi. On 15.05.2001 at about 10:15PM,

he left the shop for his house on two wheeler scooter bearing

registration No.DL-8S-6036. He was also carrying cash

amount of `50,000/- in the front dickey of compartment of

the scooter. He had taken this amount on interest from one

Sh.Ashok Kumar, which he had to give to one Shri Pawan

Kumar.

29. It is further recorded, complainant Sh.Satish Chand

heard a noise of 'Satish Bhaisaab' at about 10:45PM, when

he reached near the house of Dr.Narendra. He stopped his

scooter and turned back and saw accused Rajeev and

appellant were present on a two wheeler scooter.

Thereafter, appellant, got down from their scooter and gave

a slap on the cheek of complainant and took out a knife. He

further stated that he became puzzled and left his scooter.

Complainant raised alarm and accused managed to escape.

His cousin made a phone call at 100 Number. PCR Van

arrived on the spot and he went to the police station. Thee,

he made his statement Ex.PW1/A. On 17.05.2001 he again

went to the police station and asked the police officer to

rectify the scooter number i.e. letter 'L', which was left out in

his initial statement. The complainant identified the

appellant on 08.06.2001 in the TIP proceedings.

30. Mr.Atul Bandhu, learned counsel for the appellant has

argued that complainant Satish Chand who was on his two

wheeler scooter and was carrying a cash amount of

`50,000/- at about 10:15PM. He heard a noise 'Satish

Bhaisaab' and stopped his scooter fully knowing that the

time was very odd and he was carrying `50,000/- and that to

money he had taken on loan.

31. Learned counsel for the appellant submitted that in

such a situation, and such at an odd time, especially when a

person was carrying `50,000/-, who took the same on loan

and further had to deliver to someone, will not stop the

scooter at an abandoned place.

32. Learned counsel further submitted that none of the

accused persons including the appellant was arrested on the

spot or that the scooter, as alleged to have been snatched

from the complainant, was not at all traced out. However,

the police falsely arrested the appellant in a case under

Section 25 Arms Act vide FIR No.507/2001 police Station

Rajouri Garden, New Delhi. There, the police recorded his

disclosure statement. Thus, the appellant was falsely booked

in this case, just to solve the untraced case.

33. He has also pointed out, as alleged by the complainant

- PW1 Shri Satish Chand - the appellant used knife while

robbing said amount `50,000/- from him; whereas rest of the

witnesses has deposed that the dagger was used in the

crime and same has been recovered.

34. In the cross-examination, PW1 Shri Satish Chand has

deposed that except preparing the sketch of the knife, police

officer did not prepare any other documents nor done any

writing work etc at the house of the appellant. He further

admitted that the seizure memo was prepared while sitting

in the van about 100 yards away from the site of recovery of

weapon of offence.

35. The knife/dagger allegedly recovered from the house of

the appellant. The police had not prepared any site plan of

that house or the site plan of the spot from where the

alleged knife/ dagger was recovered.

36. The two wheeler scooter snatched from the

complainant has also not been recovered in the present

case.

37. Admittedly, the complainant was not related to the

appellant, therefore, there was no question to call the

complainant by name as 'Satish Bhaisaab'.

38. Further, argued, as deposed by the complainant that

when he was robbed, he raised alarm, his cousin made a

phone call at Number 100; whereas as per the statement

recorded by the police, which became the source/base of the

FIR, he stated that after being robbed, he immediately

rushed to police station, therefore, the story of his cousin

being present at the spot and making phone call at Number

100 is an improvement and has not been explained for his

being present at the spot.

39. On the aspect of the TIP, learned counsel for appellant

has submitted that on 08.06.2001, the appellant was taken

out from the lock-up in the evening and led the police party.

Unfortunately, the complainant met them outside the police

station and joined the police party for investigation. At that

time, the complainant had came to know about the identity

of the appellant.

40. He has further submitted that co accused Rajeev has

been acquitted in the present case, therefore, the whole

story of the prosecution is demolished, as the prosecution

could not establish as to who else other person allegedly

robbed the complainant with appellant.

41. Ms.Rajdipa Behura, Learned APP for State submits that

PW4 Shri Ashok Kumar has proved that the complainant had

taken the loan amount of `50,000/- from him. PW8 Shri

Pawan Kumar has proved that the money had to be given to

him in repayment of the earlier loan taken by the

complainant.

42. On the aspect of knife/dagger, learned APP submitted

that the complainant being not highly educated persons did

not use the proper word, in fact the weapon used in the

offence is dagger.

43. She has further argued, the case of the prosecution has

also been corroborated by the recovery of `1,100/-, four

visiting cards and one receipt of the mobile phone issued by

Aneja Communication from his possession on his pointing

out. Co-accused Rajeev purchased the mobile phone, which

was got recovered from his possession and same phone was

stated to have been purchased from Aneja Communication

for a sum of `6,100/-; out of which `1,100/- were still

outstanding.

44. Learned counsel for the appellant has argued in

rejoinder that PW1 Shri Satish Chand is decoy witness to the

police, which is evident from the cross-examination, wherein

he had admitted that he did not remember as to how many

times, he had appeared in the Courts i.e. Tis Hazari Courts,

Patiala House Courts, or Karkardooma Courts, as a witness.

However, said witness had admitted that he visited Courts in

some cases.

45. I am of the considered view that the instant case, is a

case where neither the complainant had described any

description of the accused persons; nor he had the

opportunity to see their faces being night time. The

complainant was not remembering even the scooter number

which was alleged to be snatched by the accused persons.

The story of the prosecution seems to be false as if a person

who is running PCO Booth, was under debts would leave the

shop at odd time with cash amount of `50,000/- and further

would stop at an abandoned place, while alone carrying said

cash amount.

46. The police did not make any efforts to recover the said

scooter, rather for the sake of formality, it is brought on the

record that the said scooter was thrown in a canal in

Haryana. The scooter is not a small object or light weighted

that it could not be recovered that too from a very small

canal. It is also not the case of the prosecution said scooter

flushed away with flow of water in the canal. Had the story

as put forth by the police is true, then definitely, police

people would have put their efforts to recover the same. The

complainant had deposed that said money was robbed at the

point of knife; whereas the police had recovered a dagger,

which was not the weapon of offence. Moreso, no site plan

was prepared from where the weapon of offence was

recovered. Even the cousin of the complainant, who had

allegedly made a phone call at 100 Number has not been

produced or examined by the prosecution.

47. Even otherwise, the recovery of weapon is a weak

evidence, as has been decided in Mani Vs. State of Tamil

Nadu; JT 2008(1) SC 191; Deva Singh Vs. State of Rajasthan:

1999 Crl.L.J. 265; Surjit Singh and Anr. Vs. State of Punjab: AIR

1994 SC 110: Narsingbhai Haribhai Prajapati Etc Vs.

Chhatrasinh & Ors : AIR 1997 SC 1753: Prabhu Vs. State of

UP: AIR 1963 SC 1113, the recoveries of ordinary articles

such as knife etc. are treated as weak pieces of evidence.

48. Moreso, co-accused has been acquitted by the Trial

Court by giving him benefit of doubt. The State has not

challenged the same.

49. Even otherwise, the total sentence awarded to the

appellant is RI for 07 years and fine of `15,000/-. As on date,

the appellant has undergone more than 05 years, 10 months

and 06 days in custody which is evident from the Nominal

Roll dated 23.08.2011, as the already undergone sentence of

the appellant as on 23.08.2011 is 05 years, 08 months and

14 days. The total remission earned by the appellant is 22

days.

50. Therefore, in view of above discussion, I set aside the

impugned judgment dated 15.10.2009 and order on

sentence dated 21.10.2009.

51. Consequently, appellant is acquitted in the present

case.

52. The Jail authorities are directed to release the appellant

forthwith, if not warranted in any other case.

53. Copy of the order be sent to the Jail Superintendent, for

compliance.

54. Accordingly, Criminal Appeal No.879/2010 stands

allowed and disposed of.

55. No order as to costs.

SURESH KAIT, J

September 28, 2011 Mk