Surinder Kumar @ Nanhe vs State Nct Of Delhi
2013 Latest Caselaw 3802 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  RESERVED ON : 16th JULY, 2013
                                   DECIDED ON : 29th AUGUST, 2013

+             CRL.A. 1247/2011 & CRL.M.B. 952/2013
       SURINDER KUMAR @ NANHE                      ..... Appellant
                            Through :   Mr.K.Singhal, Advocate.

                            versus

       STATE NCT OF DELHI                         ..... Respondent
                     Through :          Mr.M.N.Dudeja, APP.

AND
+             CRL.A. 441/2012 & CRL.M.B. 759/2012
       HARISH @ KALE                               ..... Appellant
                            Through :   Mr.K.Singhal, Advocate.

                            versus

       THE STATE                                  ..... Respondent
                            Through :   Mr.M.N.Dudeja, APP.

       CORAM:
       HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Surinder Kumar @ Nanhe and Harish @ Kale (the

appellants) impugn a judgment dated 13.07.2011 of learned Additional

Sessions Judge in Sessions Case No. 881/2007 arising out of FIR No.

637/2007 PS Nangloi by which they were held guilty for committing

offence punishable under Section 392 read with Section 397/34 IPC. By

an order dated 20.07.2011, they were sentenced to undergo RI for seven

years with fine ` 2,000/- each.

2. Allegations against the appellants were that on the night

intervening 6/7.08.2007 at 01.30 A.M. near Abhinandan Vatika, Main

Rohtak Road, Delhi, they with their associates Davender, Bijender

Lochab, Rohan Arora (since expired) robbed Const. Shri Kishan of his

mobile phone, motorcycle and a purse containing cash and I-card. Harish

@ Kale and Surinder Kumar @ Nanhe were armed with country made

pistols and used them while committing robbery. Subsequently, they were

also found in possession of motorcycle made Bajaj Discover bearing No.

DL-4-SAY 7916 which they received or retained knowing or having

reasons to believe the same to be a stolen property. Bijender was also

charged under Section 411 IPC being in possession of stolen mobile make

Nokia-6600. The Investigating Officer lodged First Information Report

after recording Shri Kishan's statement (Ex.PW-2/A). During the course

of investigation, the assailants were apprehended and from their

possession country made pistols were recovered. The Investigating

Officer recorded statements of the witnesses conversant with the facts. On

completion of investigation, a charge-sheet was filed against all of them

including Ajit @ Master who was found in possession of Santro Car No.

DL-8CG-4984 used in the crime. The prosecution examined thirteen

witnesses to prove its case. In their 313 statements, the accused persons

pleaded false implication. On appreciating the evidence and considering

the rival contentions of the parties, the Trial Court, by the impugned

judgment, convicted both the appellants. Being aggrieved, they have

preferred the appeals.

3. I have heard the learned Addl. Public Prosecutor and

appellants' counsel and have examined the Trial Court record. Rohan

Arora expired during the trial and proceedings against him were dropped

as abated. Ajit @ Master was discharged vide order dated 28.02.2008.

Court's observations in the said discharge order are relevant to note. The

prosecution had alleged that after their arrest, the five assailants arrested

on 09.08.2007 led the police party to Jhajjar, and got apprehended Ajit @

Master who was found in possession of Santro Car No. DL-8CG-4984.

Ajit @ Master also recovered leather purse and I-card of the complainant

- Shri Kishan. It was pointed out by the defence counsel that newspaper

report recorded that the five assailants apprehended on 09.08.2007 had got

recovered Santro Car, Bajaj Discovery Motorcycle, Nokia Phone,

Uniform and I-card of Const. Shri Kishan. If that be so, the recoveries

from Ajit @ Master were doubtful. Recovery memo dated 19.08.2007

regarding police uniform, name plate, barret cap of Const.Shri Kishan was

false. Presence of all the five accused persons at Jhajjar for the arrest of

Ajit was doubtful at 06.15 P.M. The Trial Court agreed with defence pleas

and doubted Ajit's apprehension at the instance of co-accused persons and

recovery of Santro Car and I-card etc. from his possession on the alleged

date. Accordingly, Ajit @ Master was discharged. The accused persons

were acquitted of the charge under Section 411 IPC regarding recovery of

I-card, leather purse, police uniform, name plate and barret cap. It is

significant to note that State did not challenge the discharge order and it

attained finality. The prosecution did not explain the discrepancies and

defects in the prosecution case as noticed in the discharge order which

caused dent in the version narrated by the police in the charge-sheet.

4. The incident took place at 01.30 A.M. Daily Diary (DD) No.

52A (Ex.PW-1/C) was recorded at 02.24 A.M. on getting information

from Const. Ram Bhuj of PCR about the incident. Const. Ram Bhuj has

not been examined. The DD entry does not record the name of the victim.

PW-13 (SI Suneel Kumar), Investigating Officer went to the spot and met

Const. Shri Kishan at 03.40 A.M. The complainant had sustained injuries

and was medically examined at Maharja Agarsen Hospital which was at a

short distance from the place of occurrence. The MLC (Ex.PW-12/A)

reveals that Shri Kishan went to Maharaja Agarsen Hospital at 04.15 A.M.

He had no visible injuries on the body. There are discrepancies in the

statements of the witnesses as to how Shri Kishan went to Maharaj

Agarsen Hospital. Complainant claimed that he, of his own went to the

hospital for examination. PW-3 (Const.Sunil Kumar) who accompanied

the Investigating Officer gave a contradictory version that the complainant

was got medically examined by the Investigating Officer. The

Investigating Officer failed to explain as to why the complainant was not

taken for medical examination. MLC (Ex.PW-12/A) shows that he was

taken to hospital by Const.Sunil Kumar. The prosecution failed to explain

the discrepancies. Rukka was sent at 03.40 A.M. The MLC (Ex.PW-12/A)

recorded arrival time of the patient at 04.15 A.M. It creates doubt if FIR

was lodged promptly.

5. Complainant admitted in his deposition that he had not made

any departure entry after his duty was over. He, in the cross-examination

admitted that he had made call at No. 100 at the night intervening

6/7.08.2007 at about 1.30 A.M. The PCR form has not been produced.

The PCR officials who recorded the call have not been examined. It is

unclear if any PCR official went to the spot to attend the call. The

complainant further admitted that he did not state the number of Santro

Car in PCR call. DD No.52A (Ex.PW-1//C) contains two numbers of

Santro Car. In the statement (Ex.PW-2/A), the complainant described

complete number of Santro Car used in the incident. The complainant

gave the number of the assailants as 'four'. In his Court statement, he

disclosed that assailants were 'five' in number.

6. The complainant in his statement (Ex.PW-2/A) did not reveal

if the assailants were armed with country made pistols or that any of them

used these to commit robbery on his person. However, in his Court

statement, PW-2 (the complainant) made vital improvements and deposed

that the appellants were armed with country made pistols and used to rob

him. The prosecution has failed to reconcile the two versions.

7. In the cross-examination, the complainant admitted that he

had informed his brother-in-law Ajay who came to the spot and took him

to Maharja Agarsen Hospital for medical examination. None of the police

witnesses has claimed arrival of PW-6 (Ajay) at the spot. PW-6 (Ajay)

himself did not testify that he was informed about the incident and he

went to the spot immediately or got the complainant admitted at Maharja

Agarsen Hospital. He was not associated in the investigation and no

memo bears his signatures.

8. Vital discrepancies have emerged in the statements of the

prosecution witnesses regarding the circumstances in which the appellants

and their associates were apprehended. PW-7 (HC Surender Singh)

deposed that they had no prior information about the arrival of the accused

on 09.08.2007 on motor-cycles. However, PW-8 (HC Subhash Chander)

and PW-13 (SI Sunil Kumar) deposed that they had prior secret

information in that regard. The witnesses have given divergent versions as

to the time when they reached Rani Khera Road market to intercept the

vehicles and the duration for which the vehicles were checked. There are

contradictory versions as to how and in what manner the three assailants

on another motorcycle were apprehended. Some of the witnesses have

deposed about the availability of barricades and some have denied it. PW-

7 (HC Surender Singh) deposed that the second motorcycle arrived after

ten minutes and the three assailants Bijender, Devender and Rohan were

apprehended at the pointing out of Harish and Surender. PW-8 (Subhash

Chander) stated that Harish and Surender disclosed that three assailants

had passed through that road ahead of them on the motorcycle and they

took them towards the opposite direction. After 500 yards they pointed

towards a motorcycle coming from the opposite direction on the wrong

side. PW-13 (SI Sunil Kumar) disclosed that three other accused persons

were present at Swaran Park, Mundka, One motorcycle CBZ was stopped

and Bijender, Rohan Arora and Devender were apprehended from there.

9. All the five assailants were arrested on 09.08.2007. The Test

Identification Proceedings were conducted on 14.08.2007 and 17.08.2007.

PW-2 (Shri Kishan) did not claim that he had gone with the Investigating

Officer to participate in the TIP. The accused persons were not arrested at

his instance and he was not associated at the time of their apprehension. In

his Court statement, he merely deposed that on 18.08.2007, he had gone to

the police station Nangloi to collect his mobile phone and identified

Harish, Rohan Arora and Surender there. He did not elaborate as to when

he came to know about the recovery of his mobile phone and motorcycle

and apprehension of the assailants. The mobile phone taken on superdari

was not produced as it was allegedly stolen. No other independent witness

was associated at any stage of investigation. Recovery of articles and Ajit

@ Master's apprehension on 19.08.2007 was not believed.

10. Taking into consideration the contradictions/ omissions

which are of such magnitude that they materially affect the trial, the

appellants' conviction cannot be sustained. The discrepancies in the

evidence of eyewitness, if found to be not minor in nature, are a ground to

disbelieve and discredit their evidence. The prosecution is bound to prove

its case beyond reasonable doubt. In 'Raj Kumar Singh @ Raju @ Batya

vs. State of Rajasthan', 2013 (6) SCALE 635, the Supreme Court

observed :

"17. Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that 'may be' proved and 'will be proved'. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between 'may be' and 'must be' is quite large and divides vague conjectures from sure conclusions. In a criminal case, the Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between 'may be' true and 'must be' true, the Court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The Court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense."

11. In the light of above discussion, the appeals are allowed. The

conviction and sentence of the appellants are set aside. The appellants be

set at liberty forthwith if not required in any other case. Pending

applications also stand disposed of. Trial Court record be sent back

forthwith. Copy of the order be sent to the Superintendent Jail.

(S.P.GARG) JUDGE AUGUST 29, 2013 tr