Dharmendra vs State
2013 Latest Caselaw 3049 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : May 23, 2013
                                DECIDED ON : July 18, 2013

+      CRL.A. 64/2011

       DHARMENDRA                                        ..... Appellant

                          Through:    Mr. R.R.Rajesh, Advocate

                          versus

       STATE                                             ..... Respondent

                          Through:    Mr. M.N.Dudeja, APP for the State


        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. The appellant-Dharmendra challenges a judgment dated

01.11.2010 in Sessions Case No.140/2007 arising out of FIR No.111/2007

registered at Police Station Nangloi by which he was convicted under

Section 393/308 IPC and sentenced to undergo Rigorous Imprisonment

for five years under Section 393 IPC and Rigorous Imprisonment for three

years under Section 308 IPC with fine ` 10,000/-

2. Allegations against the appellant were that on 08.02.2007 at

about 03.00 A.M. he and his associates Munna Khan (since P.O.), Kalia,

Subodh and Chotu (not arrested) committed trespass in a godown at Todar

Mal Chowk, Mundka in occupation of Cadila Health Care Limited. Ram

Avtar was Chowkidar at the said godown. After finding the assailants in

the godown, he came out of his cabin and inquired from them as to who

they were. The assailants were armed with knives and saria. They asked

Ram Avtar not to raise alarm or else he would be killed. He raised an

alarm. Public persons from the neighbourhood gathered there. The

assailants gave beatings and injured him. They attempted to escape from

the spot. Dharmendra and Munna Khan were apprehended after some

chase and their associates succeeded to flee. The police was informed and

their custody was handed over to the Investigating Officer along with the

knives left at the spot. Necessary proceedings were conducted at the spot.

The injured was taken to hospital and medically examined. The

Investigating Officer lodged First Information Report and recorded the

statement of the witnesses conversant with the facts. Pursuant to Munna's

disclosure statement, a country made pistol with cartridge was recovered.

After completion of investigation both Dharmendra and Munna Khan

were sent for trial for committing offences punishable under Sections

392/394/395/397/398/34 IPC and under Section 25 Arms Act. Vide

orders dated 29.08.2007, they were charged for committing offences

punishable under Section 395/398/308/34 IPC and Section 25 Arms Act.

The prosecution examined 12 witnesses to substantiate the charges.

During trial, Munna Khan absconded and finally declared Proclaimed

Offender. In his 313 statement, Dharmendra pleaded false implication.

On appreciating the evidence and after considering the various

contentions raised by the parties, the Trial Court, by the impugned

judgment held Dharmendra guilty for committing offences under Section

393/308 IPC only. It is relevant to note that the State did not file any

appeal to challenge appellant's acquittal under Section 395/398 IPC and

25 Arms Act.

3. I have examined the relevant materials. It reveals that major

discrepancies and contradictions have emerged in prosecution case

regarding the exact number of assailants and how and in what manner

Dharmendra and Munna Khan were apprehended etc. Complainant-Ram

Avtar in his statement (Ex.PW-1/A) had given the exact number of

assailants i.e. four. However, after conclusion of investigation, the police

charge-sheeted five individuals. As per the prosecution, Dharmendra and

Munna Khan were apprehended at the spot and the other assailants

succeeded to flee. It is unclear how the investigating agency ascertained

that assailants/intruders were five in number as the identity of Kalia,

Subodh and Chotu could not be ascertained and established. It is not

certain how and from where the police came to know their names. Their

addresses could not be ascertained/found during investigation. The Trial

court for valid reasons did not believe the prosecution's case and rightly

concluded that it was not a case of 'dacoity'. During examination, Ram

Avtar was not sure how many assailants had committed trespass. He

merely deposed that he saw four-five boys who had entered in the godown

by jumping the wall/gate.

4. The prosecution witnesses including the complainant have

given inconsistent version as to how and under what circumstances both

Dharmendra and Munna Khan were apprehended. In Daily Diary (DD)

No.30A (Ex.PW-11/A) recorded at 03.12 A.M. at Police Station Nangloi,

there is no mention that the assailants were apprehended at the spot and

were in the custody of the public. In statement (Ex.PW1/A) it is recorded

that the assailants were chased and the complainant was successful to

apprehend Dharmendra and Munna Khan after some chase. PW-1 (Ram

Avtar) did not support the prosecution and in court statement as PW-1

categorically stated that he was informed by the neighbours that two of the

assailants who were trying to escape by climbing a tree were apprehended

by the police. He further deposed that the said two individuals were not

arrested in his presence. Additional Public Prosecutor cross-examined

him after seeking court's permission. The complainant denied the

suggestion that he had stated to the police about the chase and

apprehension of the accused at the spot. There are no reasons to

disbelieve PW-1 (Ram Avtar). PW-2 (Amit @ Bittoo) who reached the

spot after hearing the noise of the villagers gave contradictory version

about the circumstances in which the appellant and Munna Khan were

apprehended. He deposed that when he came out of his house on hearing

the noise, the village people told him that two thieves had entered in the

back side of his house while escaping. They searched for them and were

found in one of the kothri constructed in the back side of his house. PW-8

(ASI Vir Singh), PCR official on duty deposed that at about 03.00 A.M.

he reached the spot on getting information about a quarrel. The public

persons had apprehended two boys and one was having injury mark.

They produced both the boys before him with two knives. He, however,

could not identify the accused persons. In the cross-examination by

Additional Public Prosecutor, he expressed his inability to say that names

of the boys produced before him were Munna and Dharmendra. He

volunteered that he had not seen their faces. He further claimed that he

had not produced both the accused persons before the Investigating

Officer. He volunteered to add that he only produced the knives before the

Investigating Officer. Scanning the testimony of these witnesses it

transpires that there are inconsistent versions as to how, when and where

Dharmendra and Munna Khan were apprehended. PW-1 (Ram Avtar) who

had direct confrontation with the assailants at odd hours at night did not

claim that they were apprehended from inside the kothri in the back side

of PW-2's house as disclosed by the village people. The prosecution did

not examine any village people who had apprehended Dharmendra and

Munna Khan at the site. Since the identity of the assailants was not known

to the eye witness, it was incumbent upon the Investigating Officer to get

such suspect identified from eye-witnesses in a test Identification Parade

to ensure that the person arrested was the real culprit. It was more so, as

Ram Avtar denied apprehension by him after chase. However, during

investigation, no such Test Identification Proceedings were conducted.

The Trial Court discarded the prosecution's version about possession of

knife with the appellant. PW-1 (Ram Avtar) did not attribute any specific

role to the appellant in inflicting injury to him or use of knife, in the

occurrence. He was unable to disclose if the injuries sustained by him

were caused with 'saria' or 'knife'. There was no blood on the knives

found at the spot. One of the assailants had sustained injuries, however,

he was not taken for medical examination and the prosecution did not

explain injuries recovered by him. Omission to explain the injuries on the

accused can be regarded as voluntary suppressing true facts. Merely

because the appellant was apprehended by public, it does not follow that

he was the culprit. In the MLC Ex.PW-9/A there is mention of only of

'physical assault' and nature of injuries as 'simple'. The victim was

discharged after four or five hours. PW-3 (Anil Jaitely), owner of the

godown, was not informed of the incident immediately.

5. In the light of vital and major discrepancies and

contradictions, it appears that the prosecution has not presented true facts.

Consequently, the appellant's conviction 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.

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

compliance of the above order. Copy be also sent to the accused/appellant

through Jail Superintendent. Trial Court record, if any, along with copy of

this order be sent back to the Trial Court.

(S.P.GARG) JUDGE July 18, 2013/sa