Ashuddin vs State
2013 Latest Caselaw 2999 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 10th JULY, 2013
                                 DECIDED ON : 16th JULY, 2013

+                        CRL.A. 1581/2011

       ASHUDDIN                                      ....Appellant
               Through :        Ms.Jyoti Gupta, Advocate.

                                versus

       STATE                                           ....Respondent
                   Through :    Mr.M.N.Dudeja, APP.
                                SI Bhanu Kanwaria, PS Mayur Vihar.

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

S.P.GARG, J.

1. Ashuddin and Sher Khan @ Shahid Ali Mulla @ Arif were

sent for trial in case FIR No. 64/2011 PS Mayur Vihar with allegations

that on 02.03.2011 at about 06.45 P.M. at road near 25 Block, Trilok Puri,

Bus Stand, they and their associates boarded a DTC bus bearing No. DL

1PB-3177 on route No. 360 and robbed bag containing tickets and cash

`280/- from Nitu-Conductor in the bus at the point of knife. The assailants

got down the bus to flee and were chased. Ashuddin was caught hold at

some distance and the bag robbed was recovered from his possession. The

Investigating Officer lodged First Information Report after recording

complainant's/Nitu's statement. During investigation, he recorded

statements of the witnesses conversant with the facts. On completion of

the investigation, a charge-sheet was submitted. Ashuddin was charged

under Section 392/34 read with Section 397 IPC. The prosecution

examined six witnesses. On appreciating the evidence and after

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

impugned judgment, held Ashuddin guilty of committing offence under

Section 392 IPC. Sher Khan @ Shahid Ali Mulla @ Arif was acquitted of

all the charges. It is significant to note that the State did not challenge the

acquittal.

2. The appellant's counsel urged that the appellant's identity as

assailant has not been established beyond reasonable doubt. PW-4 (Rajesh

Kumar), driver could not recognise him in the Court. PW-1 (Nitu)'s

identification is shaky. He is not sure if he was the person who snatched

the bag from him. No independent public witnesses including passengers

were associated at any stage of the investigation. The story projected by

the State is highly improbable. Learned APP urged that there are no

reasons to discredit victim's deposition and that of PW-2

(Const.Mohd.Irfan), who apprehended the appellant after chase.

3. The appellant's apprehension at the spot is not in dispute. He

sustained injuries due to the beatings at the hands of public and was

medically examined vide MLC (Ex.PW-6/B) at Lal Bahadur Shastri

Hospital, Khichripur, Delhi at 11.55 P.M. that day. The alleged history

records that he was 'assaulted and beaten by public'. It confirms his

presence at the spot. In his 313 statement he admitted his presence in the

bus but stated that he had got down the bus and was apprehended while

moving away. PW-1 (Nitu) in his statement (Ex.PW-1/A) given to the

police at first instance narrated graphic account as to how bag containing

tickets and cash was snatched by assailants who were four in number in

the bus. He further disclosed that the assailants were chased and one of

them i.e. Ashuddin was apprehended with the assistance of

Const.Mohd.Irfan and the bag was recovered from his possession. In

Court statement as PW-1, he proved the version given to the police

without any variation. He identified Ashuddin who was apprehended at

the spot after chase by him with the assistance of Const.Mohd.Irfan.

Arrest memo (Ex.PW-1/B) and personal search memo (Ex.PW-1/C) bear

his signatures. He was unable to identify Sher Khan. PW-1 (Nitu) further

identified the robbed articles i.e. bag (Ex.P2), tickets (Ex.P3) and cash

(Ex.P4). PW-2 (Const.Mohd.Irfan) corroborated PW-1's version and

identified Ashuddin to be the assailant who was chased and apprehended

at the spot. He further proved recovery of the tickets and bag from his

possession. Both these witnesses were tested in cross-examination but no

material discrepancies emerged to disbelieve them. PW-1 (Nitu) is not

expected to fake the incident. The appellant was not acquainted with them

to be falsely implicated in the case. He did not attribute any mala fide to

discredit their version. Minor discrepancies and contradictions pointed

out by the appellant's counsel in the testimony of the witnesses do not go

to the root of the case to throw away the prosecution case in its entirety.

Non identification by PW-4 (Rajesh Kumar) is not fatal. No adverse

inference can be drawn for non-joining of independent public witnesses.

PW-1 and PW-4 cannot be termed partisan witnesses. The public was not

expected to beat an innocent. Medical evidence is in consonance with

ocular version. The findings on conviction under Section 392 IPC are

based upon fair appreciation and evaluation of reliable evidence and are

affirmed.

4. The appellant was sentenced to undergo RI for five years

with fine ` 1,000/-. Nominal roll dated 09.04.2013 reveals that he has

already undergone two years, one month and ten days incarceration as on

13.04.2013. He also earned remissions for five months and twenty two

days. He is not a previous convict and not involved in any other criminal

case. His overall jail conduct is satisfactory. On the date of incident, he

was a young boy of 21 years. He is the sole earning member of the family

and is to look after his wife and son. Sher Khan has been acquitted for

want of cogent evidence. The assailants who used 'deadly' weapons in

committing robbery are absconding and could not be arrested.

Considering these mitigating circumstances, order on sentence is modified

and the appellant is sentenced to undergo RI for three years with fine `

1,000/- and failing to pay the fine to undergo SI for 15 days.

5. The appeal is decided in the above terms.

6. Copy of the order be sent to the Jail Superintendent. Trial

Court record be sent back forthwith.

(S.P.GARG) JUDGE JULY 16, 2013 tr