Banti vs State
2013 Latest Caselaw 2767 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : May 13, 2013
                               DECIDED ON : July 04, 2013


+      CRL.A. 499/2012
       BANTI                                             ..... Appellant
                         Through :       Ms.Anita Abraham, Advocate.


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

        CORAM:
        MR. JUSTICE S.P.GARG


S.P.GARG, J.

1. The appellant-Banti impugns judgment dated 18.11.2010 in

Sessions Case No.46/2009 arising out of FIR No.302/2008 under Section

392/394/397/411/34 IPC registered at Police Station Adarsh Nagar by

which he was held guilty for committing offence punishable under Section

394/34 IPC and under Section 397 IPC read with Section 27 Arms Act.

By an order dated 19.11.2010, he was sentenced to undergo rigorous

imprisonment for seven years with total fine `5,000/-.

2. Allegations against the appellant were that on 5.12.2008 at

about 07.30 A.M. near Petrol Pump, Mukandpur Road, Jal Board Ground,

he and Vicky (Convicted under Section 392 IPC) in furtherance of their

common intention robbed Tata Mobile Phone and `130/- from Shashi

Kant Sharma. The appellant was armed with a buttondar knife and in the

process of committing robbery, Shashi Kant Sharma was injured. The

prosecution examined 11 witnesses to prove the charges. On appreciating

the evidence and after considering the rival contentions of the parties, the

Trial Court by the impugned judgment held both Banti and Vicky

perpetrators of the crime. Being aggrieved, Banti has preferred the

appeal.

3. The police machinery came into motion when DD No.32A

(Ex.PW-5/A) was recorded at police station Adarsh Nagar at 07.50 P.M.

on 05.12.2008 to the effect that two boys had robbed Shashi Kant Sharma

at petrol pump and they have been apprehended. The investigation was

assigned to SI Mohd.Swaley who with Head Constable Laxmi Narain

went to the spot and met PW-3 (ASI Hari Ram) Incharge, Commander 36

of PCR. He handed over custody of both Banti and Vicky to the

Investigating Officer. He also produced the mobile, cash `130/- and one

buttondar knife recovered from Banti‟s possession. Prosecution‟s case is

that PCR officials were present at Mukundpur-Azadpur Road and one

Ravinder Pal informed them about the incident.

4. On scrutinizing the testimonies of the prosecution witnesses

minutely, it reveals that vital discrepancies and contradictions have

emerged in their statements. The prosecution did not explain as to how

and under what circumstances in DD No.32-A (Ex.PW-5A), it was

recorded that cash was robbed from „Ravinder‟. The victim in the

incident is not Ravinder Pal but PW-4 Shashi Kant Sharma. PW-4

(Shashi Kant Sharma) on whose statement (Ex.PW-4/A) First Information

Report was lodged by the Investigating Officer has given inconsistent

version about the incident. As per PW-11 (ASI Mohd.Swaley) the First

Information Report was lodged after recording statement of the victim

(Ex.PW-4/A) at the spot. However, PW-4 (Shashi Kant Sharma) in his

court statement deposed that on 05.12.2008 at about 07.00 P.M. he was

going to his house by a cycle. It was fog at that time. When he was

walking with his cycle, two boys came and hit him on his head and

stomach. One of them was having a knife. He became unconscious and

did not know what happened thereafter. He failed to identify the

assailants/accused in the court. Thereafter, he went to his house and

narrated the incident to his neighbour Ram Avtar. He made telephone call

on his mobile number and found that it was in the police station Adarsh

Nagar. SHO asked him to come to the police station but he expressed his

inability. Thereafter, the police officials came to his house and brought

him to the police station. He was taken to hospital for medical

examination. The testimony reveals that the victim did not report the

incident to the police and from the spot went to his house. It further

reveals that no recovery of the robbed articles was effected in his

presence. He also did not claim presence of Ravinder Pal, who allegedly

intervened in the incident at the spot. He further gave inconsistent version

in the cross-examination that the mobile phone, cash and knife were

recovered at the spot from the possession of the accused persons in his

presence when he was brought at the spot second time. It is not the

prosecution‟s case that the recovery was effected when PW-4 (Shashi

Kant Sharma) was brought to the police station after his medical

examination. The victim was medically examined at 01.30 A.M. at Babu

Jagjivan Ram Memorial hospital on the night intervening 5/6.12.2008.

There is no mention that he was robbed by the assailants and was injured.

The alleged history merely records that it was a case of „physical assault‟.

No injury on the head was found. The knife allegedly in possession of the

appellant was not used to cause any injury to the complainant.

5. PW-3 (ASI Hari Ram) Commander PCR Van 36, did not

witness the incident. His plea is that he came to know about the

occurrence when one public person approached and told about the robbery

near Petrol Pump at Mukundpur-Azadpur Road. He went to the spot and

saw that one boy was robbed by two boys and the victim was crying

"Bachao-Bachao, Chor-Chor". He along with Ravinder Pal apprehended

both the boys whose names were ascertained Banti and Vicky. PW-10

(Ravinder Pal), has, however, given contradictory version and deposed

that at about 07.30 P.M. on 12.05.2008 when he was going for his duty to

Mayapuri by foot, he saw two boys who gave beatings to the victim with

fist and leg blows. One of them robbed him of his mobile and `130/-. At

the same time, one police gypsy reached and apprehend them at the spot.

He did not depose that after witnessing the incident of robbery, he had

rushed to inform the PCR officials. PW-10 (Ravinder Pal) in his

examination-in-chief identified Vicky as Banti. He further contradicted

PW-4 (Shanti Kant Sharma) and stated that at the time of incident, the

victim was driving bicycle. PW-3 (ASI Hari Ram) did not elaborate as to

how and under what circumstances, knife was recovered from the

appellant Banti and if so from where.

6. None of the material prosecution witness claimed that

appellant‟s father Vijay Singh reached the spot after the incident. Arrest

Memos (Ex.PW-3/D and PW-3/E) bear his signatures. It is no clear as to

when he reached the spot. No other memo contains his signatures. The

residential addresses of both Vijay and Banti have been recorded as House

No.467 Dhobi Mohalla, Village Azadpur. It is unclear as to what is the

relation between the two and how they were living together in the same

house. No incriminating article was recovered pursuant to the disclosure

statements of the accused persons recorded on 6th December, 2008. It

appears that the prosecution has not presented true facts. No previous

involvement of the appellants in any criminal activity was found during

investigation. It is not believable that after committing robbery, with

deadly weapon i.e. knife, the accused persons would not flee the spot and

remain present at the spot to be apprehended by PCR.

7. Considering all these discrepancies and contradictions which

go to the root of the case, the conviction of the appellant cannot be

sustained. The appeal is allowed and the impugned judgment is set aside.

The appellant be released forthwith, if not required in any other case.

8. A copy of the order be sent to Jail Superintendent for

compliance of the above order. Trial Court record along with a copy of

this order be sent back forthwith.

(S.P.GARG) JUDGE July 04, 2013 sa