Prem Prakash @ Tyagi @ Prem Prakash ... vs State Of Delhi
2013 Latest Caselaw 4234 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON :10th September, 2013
                                 DECIDED ON : 18th September, 2013

+      CRL.A. 190/2002

       PREM PRAKASH @ TYAGI @ PREM PRAKASH UPADHYAY
                                               ..... Appellant
                   Through : Mr.M.L.Yadav, Advocate.

                            VERSUS

       STATE OF DELHI                                    ..... Respondent
                    Through :           Mr.Firoz Khan Ghazi, APP.

AND

+      CRL.A. 266/2002

       RENU                                             ..... Appellant
                            Through :   Mr.M.L.Yadav, Advocate.

                            versus

       STATE                                             ..... Respondent
                            Through :   Mr.Firoz Khan Ghazi, APP.


        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Dilshad, Mukesh @ Chhotu, Prem Prakash @ Tyagi @

Prem Prakash Upadhyay (A-1) and Devender were arrested in case FIR

No.18/1992 under Section 399/402 IPC registered at Police Station

Krishna Nagar on 16.01.1992. FIR Nos.19/1992, 20/1992 and 21/1992

were also registered under Section 25 Arms Act. Pursuant to disclosure

statements recorded, their involvement surfaced in FIR No.444/1991

registered at Police Station Vivek Vihar and they were arrested in this

case. The said FIR was lodged on 20.12.1991 under Section 395/412 IPC

regarding decoity committed at House No.C-100, Vivek Vihar at about

5.45 P.M. on the statement of complainant-Madhu Jain. It is alleged that

in pursuance of A-1's disclosure statement, robbed articles i.e. cash and

gold jewellery were recovered from the possession of Rajpal Singh,

Rajeshwari and Renu (A-2) which they received or retained knowing or

having reasons to believe the same to be robbed property. During the

course of investigation, statements of the witnesses conversant with the

facts were recorded. The assailants did not participate in the Test

Identification Proceedings. Complainant Madhu Jain identified cash

`65,000/-, gold jewellery articles and wrist watch in Test Identification

Proceedings. After completion of investigation, a charge-sheet was filed

against all of them in the court. A-1, Dilshad, Mukesh @ Chhotu,

Devender and Pritpal Singh @ Pehalwan were charged under Section 395

IPC. Rajpal Singh, Rajeshwari and Renu (A-2) were charged under

Section 412 IPC. The prosecution examined six witnesses to establish

their guilt. In their 313 statements, the accused persons pleaded false

implication. Rajpal claimed that `10,000/- recovered from his house in

his absence belonged to him. He examined R.N.Gupta (DW-1) in his

defence. After considering the rival contentions of the parties and after

appreciating the evidence on record, the Trial Court by the impugned

judgment dated 12.02.2012 in Sessions Case No.5/1997 acquitted Dilshad

@ Salim, Mukesh, Devender and Pritpal Singh of all the charges. Rajpal

Singh, A-2 and Rajeshwari Devi were convicted under Section 411 IPC.

A-1 was held guilty for committing offence under Section 392/34 IPC. It

is relevant to note that Rajpal Singh expired on 15.02.2012. His death

was confirmed through SHO and the proceedings were dropped against

him as abated. Rajeshwari was released on probation. She has not

challenged her conviction. A-1 and A-2 have preferred the appeals.

2. Out of 21 witnesses relied upon by the prosecution, it could

examine only six witnesses despite various opportunities granted. PW-1

(Madhu Jain) Complainant/informant, PW-2 (Ansul Jain) and PW-4

(Anuj) her sons did not implicate any of the accused and completely

exonerated them in their court statements. None of them was able to

identify the assailants. No role was attributed to the accused persons

facing trial for committing robbery/decoity. The Test Identification

Proceedings in which the assailants refused to participate were not proved.

The Trial Court for detail reasons in the judgment did not find it a case of

decoity under Section 395 IPC. PW-3 (Constable Desraj) formal witness

proved DD No.17 A regarding the incident. PW-5 (HC Rajendra Singh)

and PW-6 (SI Sunil Kumar) were alleged witnesses to the recovery of

stolen articles. Adverse inference is to be drawn against the prosecution

for not producing and examining relevant witnesses.

3. A-1 was convicted under Section 392 solely on the ground

that at his instance robbed articles were recovered from Rajpal,

Rajeshwari and Renu (A-2). The prosecution did not examine and

produced any cogent evidence that A-1 had participated in the

commission of robbery/decoity and was one of the assailants. He was not

identified by inmates of the house. No article robbed from the house was

found in his possession. The recovery of articles from Rajpal, Rajeshwari

and Renu was not effected pursuant to his disclosure statement. A-1 was

arrested with others in case FIR No.18/1992. The court did not believe

their apprehension on 16.01.1992 and they were acquitted in Sessions

Case No.255/1996 by a judgment dated 28.03.1998. The disclosure

statements made by the appellant and his associates in the said FIR were

not proved. PW-6 recorded disclosure statement (Ex.PW-6/6) of the

appellant A-1 in this case on 16.01.1992. There is no mention that he

could recover the stolen cash or jewellery articles from the possession of

Rajeshwari, Rajpal or Renu. He merely disclosed the name of head of the

gang i.e.Pritpal Singh @ Pahelwan who was the resident of Bebar, U.P.

and to whom he could get arrested. He further disclosed that all the

ornaments and cash were in his possession. When the police team went to

Village Kushalpur, Bebar, U.P, Pritpal Singh @ Pahelwan could not

found there. Rajeshwari (mother), Renu (wife) were at village Bebar

(U.P.) available in the house. It is alleged that A-2 was wearing a mangal

sutra and ring and was identified by A-1 to be the robbed articles. It were

seized vide seizure memo (Ex.PW5/3). On A-2's disclosure, Rajeshwari

was apprehended and she produced gold bangles, pair of ear tops, a watch

and a ring which were seized vide seizure memo (Ex.PW-5/2). A-2

produced `10,000/- from Rajpal's room, which were seized vide seizure

memo (Ex.PW5/1). Apparently, these articles were not recovered

pursuant to A-1's disclosure statement and the recovery effected from A-2

and Rajeshwari cannot be taken as incriminating evidence under Section

27 Evidence Act. No independent public witness was associated at the

time of recovery of these articles from the possession of Renu and

Rajeshwari. Rajpal was even not present inside the house. He was

charged under Section 411 IPC to be in possession of `10,000/- which

were handed over from his room to the police by Renu (A-2). PW-5 (HC

Rajender Singh) admitted that two sisters and brother of Pritpal Singh

were also present in the house. It cannot be said with certainty that

Rajeshwari and Renu were in exclusive possession of premises from

where the robbed articles recovered. It is unbelievable that A-2 would

openly wear mangal sutra and ring even after coming to know about the

arrest of the assailants in the case. On the same set of evidence, main

accused Pritpal Singh was acquitted of all the charges and was not found

guilty for committing robbery of any article allegedly recovered from the

possession of Rajeshari and Renu (A-2). The prosecution version cannot

be taken on its face value. Even the local police was not joined in the

investigation. The prosecution could not prove recovery of any article

from the possession of other assailants. No presumption under Section

114 (a) Evidence Act can be drawn as the recovery was effected after

about 24 days of the incident and moreover it was not effected pursuant to

the disclosure statement of the A-1. For the fault of committing robbery

(if any) by Pritpal Singh for which he has already given the benefit of

doubt, his wife, mother and father cannot be held responsible and it cannot

be inferred with certainty and beyond doubt that they received or retained

these articles having reasons to believe it to be stolen or robbed property.

On mere suspicion the appellants cannot be held guilty for the offences

under Sections 392/411 IPC. They deserve benefit of doubt.

4. In the light of the above discussion, the appeals preferred by

the appellants are accepted and their conviction and sentence are set aside.

Bail bonds and surety bonds stand discharged. Trial Court record be sent

back along with the copy of this order forthwith.

(S.P.GARG) JUDGE September 18, 2013 sa