Khazanchi vs State & Anr
2013 Latest Caselaw 3496 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                   DECIDED ON : 7th August, 2013

+                                  CRL.A. 410/2011

       KHAZANCHI
                                                              ..... Appellant
                          Through : None.

                          versus

       STATE & ANR
                                                      ..... Respondents
                          Through : Mr.M.N.Dudeja, APP for the State.

CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J. (ORAL)

1. Zakir, Deepak @ Kunti, Rakesh @ Kale and Khazanchi (the

appellant) were sent for trial on the allegations that on 10.01.2008 at about

09.30 P.M. they committed robbery and deprived Ajit Singh of his

mobile, election I-card, ATM card and cash `1500/-. Zakir was armed

with a knife which was used while committing robbery. The First

Information Report was lodged after recording Ajit Singh's statement

(Ex.PW-1/A) at Police Station Welcome. Two assailants were

apprehended at the spot and their names were ascertained as Zakir and

Khazanchi. During the course of investigation, Rakesh @ Kale and

Deepak @ Kunti were arrested. The Investigating Officer recorded the

statements of the witnesses conversant with the facts and on completion of

investigation submitted a charge-sheet in the court. The appellant and his

associates were duly charged and brought to trial. The prosecution

examined six witnesses. In their 313 statements, the appellant and his

associates pleaded false implication. After considering the rival

submissions of the parties and appreciating the evidence on record, the

Trial Court by the impugned judgment convicted Khazanchi under

Section 392 IPC. Deepak @ Kunti, Rakesh @ Kale were acquitted of all

the charges. It is relevant to note that the State did not challenge their

acquittal.

2. Ajit, the victim, in his statement before the court implicated

only Zakir who used the knife while committing robbery and was

apprehended by PW-2 (Const. Dharmapal Singh) after chase. He did not

identify Khazanchi to be amongst the assailants who committed robbery

on his person. He stated that Khazanchi was apprehended after two or

three days of the incident. Learned APP cross examined him after seeking

court's permission. However, nothing material emerged in the cross

examination to implicate the present appellant. He admitted his signatures

on the seizure memo (ExPW-1/D) whereby ATM and I-Card were seized.

He denied the suggestion of the learned APP that Khazanchi was

apprehended by him at the spot and these articles were recovered from his

possession. In the cross-examination of learned defence counsel, he

disclosed that there were three or four persons at the time of incident and

they managed to flee the spot. Only Zakir was apprehended at the spot

and was taken to the police station. Apparently, PW-1, the victim, did not

support the prosecution and identified the present appellant to be one of

the assailants. No role was attributed to him in the incident. He also did

not prove recovery of stolen articles from his possession. Other

prosecution witnesses are formal in nature. The testimony of PW-2

(Const.Dharmapal) is in conflict with the testimony of PW-1. There was

no legal evidence before the Trial Court to establish that the present

appellant shared common intention with co-accused in committing

robbery or played any specific role. PW-2 (Constable Dharampal) is not

an eye-witness and incident of robbery did not take place in his presence.

He did not apprehend the appellant at the spot. His only version is that the

assailants were chased and Khazanchi was apprehended by PW-1 (Ajit) at

the spot. Complainant also did not identify Deepak @ Kunti and Rakesh

@ Kale. They were given the benefit of doubt and were acquitted in this

case on the same set of evidence. Since the complainant did not identify

the present appellant and established his involvement in the incident, he

too deserves benefit of doubt. The impugned judgment by which he was

convicted under Section 392 IPC read with Section 34 IPC cannot be

sustained and is set aside.

3. The appeal is allowed. The conviction and sentence qua

appellant-Khazanchi are set aside. A copy of the order be sent to Jail

Superintendent, Tihar Jail with the direction to release the appellant

immediately, if he is not required in any other case. Copy be also sent to

the accused/appellant through Jail Superintendent. Trial Court record

along with copy of this order be sent back to the Trial Court.

(S.P.GARG) JUDGE AUGUST 07, 2013 sa