Gaurav @ Vicky vs State
2013 Latest Caselaw 4277 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                       RESERVED ON : 26th August, 2013
                                       DECIDED ON : 19th September, 2013

+      CRL.A. 261/2010

       GAURAV @ VICKY                                   ..... Appellant
                    Through :               Mr.Avninder Singh, Advocate with
                                            Mr.Aditya Vaibhav Singh, Advocate.

                              versus

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

+      CRL.A. 489/2009

       PANKAJ KUMAR VERMA                              ..... Appellant
                    Through :               Mr.Mohd.Arif, Advocate.

                              Versus

       STATE OF N.C.T. DELHI                           ..... Respondent
                        Through :           Mr.M.N.Dudeja, APP.
AND


+      CRL.A. 369/2009

       RAHUL                                            ..... Appellant
                              Through :     Mr.Prashant Mendiratta, Advocate
                                            with Mr.Ashish Singh, Advocate.

                              versus

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




Crl.A.Nos. 261/10, 489/09 & 369/09                                 Page 1 of 10
         CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Gaurav @ Vicky (A-1), Pankaj Kumar Verma (A-2), Rahul

(A-3) and Dilpal (facing trial before Juvenile Justice Board) were arrested

in case FIR No.217/2003 registered at Police Station Mandawali and sent

for trial on the allegations that on 14.06.2003 at about 02.00 P.M. in front

of CBSE building, Preet Vihar, they abducted Yogesh Kumar and Javed

Ahmed and took them to Main Road near Hasan Pur Depot. At about

2.30 P.M. they robbed `60/- and mobile phone make Nokia by putting

them in fear of instant death and inflicted injury with stone on Yogesh's

head. The police machinery was set in motion when Daily Diary (DD)

No.13A (Ex.PW-4/A) was recorded at police station Mandawali at 15.00

hours on getting information from Head Constable Jaibir about

apprehension of four assailants and recovery of mobile phone and `60/-

from their possession. The investigation was assigned to ASI Jahir

Ahmed who with Ct.Geetesh went to the spot. HC Jaibir handed over

custody of all the assailants along with case property to him. During the

course of investigation, the investigation officer lodged First Information

Report (FIR No.217/2003) after recording victim Yogesh Kumar's

statement (Ex.PW-2/A) under Sections 394/411/34 IPC. By an order

dated 28.04.2007 Dilpal's age was ascertained 16 years on the date of

incidence and he was sent to Juvenile Justice Board for trial. Vide order

dated 21.11.2007, A-1 to A-3 were charged for committing offences under

Section 367/341/392/394 IPC. A-1 was charged in addition under Section

397 IPC. To substantiate the charges, the prosecution examined 7

witnesses. In their 313 statements, A-1 to A-3 pleaded false implication.

They, however, did not prefer to lead any evidence in defence. The Trial

Court by the impugned judgment dated 13.04.2009 in Sessions Case

No.08/2007 convicted the appellants for the offences under Section

367/341/392/394/34 IPC and acquitted A-1 for offence under Section 397

IPC. By an order dated 27.04.2009, they were sentenced to undergo RI

for three years with fine `3,000/- each under Section 367 IPC; RI for four

years with fine `4,000/- each under Section 392 IPC; and RI for five years

with fine `5,000/- each under Section 394 IPC. Being aggrieved, the

appellants have preferred the appeals.

2. I have heard the learned Additional Public Prosecutor and

counsel for the appellants and have examined the record. Yogesh Kumar

in his statement (Ex.PW-2/A) disclosed to the police that on 14.06.2003

he and his friend Javed had gone to CBSE office to fill up forms for re-

checking of answer sheets. The office was closed due to second Saturday.

At that juncture, three boys came there and one of them suspected them to

have beaten his brother. On their denial to have done so, they asked to

accompany them for identification from their brother. Thereafter, they

were taken to Bus Stand, Karkari Mode where their friend met them and

confirmed that they were the individual to have given beatings to their

brother. The assailants forced them to accompany them in a bus. After

travelling some distance in the bus, they were made to get down near

Ganda Nala, Hasanpur at Bus Stand, Road No.57. They took them to a

deserted place and robbed cash and mobile phone in their possession and

he was hit with a stone on his head by Gaurav @ Vicky (A-1). The

complainant further informed that they were threatened not to disclose the

incident. At about 02.40 P.M. they found a PCR Gypsy at a nearby place

and informed them about the occurrence. The PCR officials took them in

the PCR van and were able to apprehend all the four assailants at some

distance. The mobile phone and cash `60/- were recovered from their

possession.

3. In his statement (Ex.PW-2/A), Yogesh Kumar gave graphic

detail as to how and under what circumstances they were forced to

accompany by the assailants. He attributed specific role to each of the

assailants by name. The name of the assailants along with their complete

addresses find mention in the complaint (Ex.PW-2/A). DD No.13A

(Ex.PW-4/A) was recorded at 03.00 P.M. where there was information

about the apprehension of four assailants with recovery of `60/- and

mobile phone. The prosecution did not examine any PCR official who

had accompanied the victims in search of the assailants and were able to

apprehend them. There is no explanation as to why complainant Yogesh

Kumar who had sustained injuries with a stone on head was not taken

immediately to hospital for treatment. MLC (Ex.PW-5/A) reveals that

Yogesh Kumar was taken to LBS hospital at 06.00 P.M. It contains

reference of DD No.13A and not FIR number. The delay in getting

Yogesh Kumar examined medically has not been explained. Apparently,

the investigating officer has already lodged First Information Report by

sending rukka at 04.30 P.M. It is unclear why MLC (Ex.PW-5/A) does

not contain FIR number and creates doubt if the FIR was ante-timed. The

injury i.e. swelling (1 cm X 2) over left occipital region was found on the

victim which was simple in nature caused by a blunt object. It rules out

use of any 'deadly' weapon. The stone/brick allegedly used to inflict

injury was not seized. The bloodstained clothes of the victim were also

not taken into possession.

4. The story presented by the prosecution regarding kidnapping

and robbery does not inspire confidence and it appears that the victims

have not presented true and correct facts. None of the assailants had prior

acquaintance with the victims and had anticipated their arrival at CBSE

office on second Saturday which was a holiday. The assailants were not

armed with any weapons whatsoever. There was no plausible reason for

the victims to accompany the strangers to Bus Stop, Karkari Mode from

CBSE office. Again it is unbelievable that the victims would travel in a

public bus with the assailants without any objection voluntarily knowing

that they were suspecting them to be author of injuries/beatings to their

brother. At no stage, the victims raised alarm. There are no allegations

that any force was used by the assailants to take the victims with them. It

is unclear why the victims would accompany the assailants after alighting

from the bus towards a deserted place. They did not have any valuable

articles or cash with them prompting the accused persons to kidnap them

and rob them at a deserted place. At the place of occurrence also and soon

thereafter the complainant or his associate did not raise hue and cry. The

accused did not abscond from the place of occurrence. It is unexpected

that after committing a serious offence of robbery the accused persons

would stay at the place of occurrence to be apprehended by PCR officials

at the pointing out of the victims then and there. No application for

holding Test Identification Proceedings was moved during investigation.

Nothing was recovered in the personal search of A-1 to A-3. Only Dilpal

Singh was found in possession of a mobile phone and `12/-. The

Investigating Officer did not investigate as to in which private bus, the

assailants had travelled with the victims or who had purchased the tickets.

No tickets were recovered from the possession of the assailants or victims.

The bus number was also not ascertained. The Investigating Officer did

not visit the place of occurrence and no site plan was prepared at the

instance of the victims. There was no occasion for the assailants to inflict

injuries to Yogesh in the absence of any resistance.

5. Yogesh Kumar in his Court statement only identified Pankaj

(A-2) as one of the assailants by pointing out towards him without naming

him. He was unable to ascribe specific role to each of the accused. He

was unable to disclose as to who was the offender who overpowered him

or who robbed mobile phone and purse from the pocket. He was also not

sure as to which of the accused had struck brick on his head. In the cross-

examination, he admitted that he was unable to recollect correctly

physical features regarding identity of Rahul (A-3), Pankaj Kumar Verma

(PW-2) and Gaurav @ Vicky (A-1). PW-3 (Javed) in his Court statement

was not certain that the accused persons standing in the dock were the

culprits. He was fair to say that he was not sure completely about their

identity. He was also unable to pinpoint the role played by the each

assailant. In the cross-examination, he reiterated that he was not sure as

to whether the offenders standing in the dock were the persons who

robbed them. No independent public witness was associated at any stage

of investigation.

6. Divergent versions have been narrated by PWs-2 and 3 on

material facts. PW-2 disclosed that they had gone to CBSE office at about

02.15 P.M. whereas PW-3 narrated the time as 12.00 or 12.30 P.M. PW-2

spoke that after the incident, they walked for three or four minutes and

found a police booth and reported the incidence to the police-men present

at the police booth. In the meantime PCR van reached and they searched

the assailants in the PCR van. The Investigating Officer has admitted in

the cross-examination that there was no police booth near the place of

incident. No such police booth has been depicted in the site plan. PW-2

Yogesh Kumar and PW-3 (Javed) have given inconsistent version as to

how much cash was found in their possession and how much was robbed.

PW-2 (Yogesh Kumar) admitted that when they informed the assailants

that they were left with no money even for the fare of the bus, one of the

offenders gave `10-20 out of the money kept in the purse. The

Investigating Officer did not collect call details of the mobile phone in

possession of the assailant/victims. The call details could have disclosed

the location of the victims and assailants at the relevant time. There are

contradictory versions regarding the manner in which the victims were

made to alight from the bus near the spot. There is nothing in their

deposition that any threat was extended to the victims to alight at that

spot. There are other contradictions regarding the place where the

statement of the complainant was recorded or the articles were seized. It

is mystery why the assailants would abduct two young persons and take

them at a long distance to rob them specially when the victims had no

valuable articles/cash with them.

7. The prosecution is bound to prove the guilt beyond

reasonable doubt. Mere suspicion is not enough and no substitute for

proof. Court's verdict must rest not upon suspicion but upon legal

grounds established by legal testimony to base conviction.

8. In the light of the above discussion, the impugned judgment

can't be sustained and is set aside. The appeals are allowed and A-1 to A-

3 be released forthwith if not required to be detained in any other case.

A copy of the order be sent to Jail Superintendent. Copy be also sent to

the accused/appellants through Jail Superintendent. Trial Court record

along with copy of this order be sent back forthwith.

(S.P.GARG) JUDGE September 19, 2013 sa