Naresh vs State Of Delhi
2014 Latest Caselaw 1765 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 26th MARCH, 2014
                             DECIDED ON : 1st APRIL, 2014

+            CRL.A.867/2012 & CRL.M.B.No. 453/2014

      NARESH                                          ..... Appellant
                        Through :   Mr.A.K.Chadha, Advocate.


                        Versus

      STATE OF DELHI                                  ..... Respondent
                        Through :   Mr.Lovkesh Sawhney, APP.


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

S.P.GARG, J.

1. Naresh (the appellant) challenges his conviction under

Sections 392/34 IPC recorded by a judgment dated 18.05.2012 in Sessions

Case No. 268/10 arising out of FIR No. 266/07 PS Uttam Nagar. By an

order dated 25.05.2012, he was awarded RI for five years with fine `

10,000/-. Allegations as projected in the charge-sheet were that on

28.03.2007 at about 11.00 P.M. near Aggarwal Sweets Shop, Balaji

Chowk, Uttam Nagar, the appellant - Naresh, driver of TSR No. DL1RD-

3218 with his associates Rajender Singh @ Monu and Vijay robbed

complainant - Rakesh of cash ` 250/- and mobile phone at knife point.

During the course of investigation, statements of the witnesses conversant

with the facts were recorded. On 29.03.2007 at about 05.10 P.M. near

Metro Station Uttam Nagar (West) all the three assailants were

apprehended while travelling in the said TSR. The robbed mobile phone

was recovered from Vijay. At their instance SIM was also recovered. It

reveals that they had robbed the complainant - Rakesh on the previous

night. After completion of investigation, a charge-sheet was filed in the

Court; they were duly charged and brought to trial. The prosecution

examined nine witnesses to substantiate the charges against them. The

trial resulted in their conviction as aforesaid.

2. I have heard the learned counsel for the parties and have

examined the record. The occurrence took place on 28.03.2007 at about

11.00 P.M. However, the complainant did not lodge any report with the

police about the incident. After the incident, he went to his house and

narrated the incident to his wife - PW-2 (Prabha Devi). He did not get

himself medically examined. After the arrest of the appellant and his

associates on 29.03.2007 at about 05.10 P.M., their involvement in the

incident emerged and the complainant - Rakesh was called in the police

station where he identified the three assailants. While appearing as PW-1

Rakesh identified Naresh as the driver of the TSR in which the incident of

robbery had occurred. However, he did not attribute any role whatsoever

to him (the appellant) in committing robbery. There are no allegations if

he in any manner assisted or exhorted his associates to commit robbery.

He was not armed with any weapon. PW-1 (Rakesh) revealed that the

TSR was stopped near Baljit Nagar, half kilometer away from his house

by the driver at the instance of one of the two boys sitting on the rear seat

who gave him beatings. Only fault of the appellant being driver of the

TSR was that he did not raise alarm or reported the incident to the police.

Even after his alleged apprehension on 29.03.2007 at about 05.10 P.M. he

was not found in possession of any robbed article. Nothing incriminating

was recovered pursuant to his disclosure statement. The complainant did

not give number of the TSR in which he had travelled on the previous

night. At the time of apprehension of A-1 on 29.03.2007, he was found in

possession of only cash ` 28/-. Appellant's conviction is based upon the

presumption that he had shared common intention with his associates and

took them away in the TSR after the occurrence. For omission not to

inform the police, the appellant has already suffered custody in this case

including remission for about two years, nine months and fifteen days. His

wife who got the TSR released on superdari had to pay ` 30,000/- in the

Court for her inability to produce it during trial. Nominal roll of the

appellant does not show his involvement in any other criminal case. The

Investigating Officer did not collect any cogent evidence if the appellant

being the TSR driver used to be in the company of Vijay and Rajender

Singh @ Monu who robbed the complainant. Nothing has come on record

as to how and when the appellant's associates had occupied the seats to go

in the TSR. All of them were residents of Uttam Nagar. The apprehension

of the appellant on 29.03.2007 during routine checking by the police of PS

Uttam Nagar is doubtful. Even at that time, the appellant had not

attempted to flee. There was no incriminating material against him (the

appellant) at that time to arrest under Section 411 Cr.P.C. The

Investigating Officer did not move any application for holding Test

Identification Proceedings. The complainant was called in the police

station and the appellant was shown to him. The only evidence that

appeared against him was that he was the TSR driver in which the

occurrence took place. This circumstance by itself is not enough to

establish that he shared common intention with his associates to commit

robbery. Presence of the appellant with his associates in the same TSR

without any specific purpose in the area of police station Uttam Nagar on

the next day with robbed mobile of insignificant value without SIM

appears doubtful and the story presented by the prosecution regarding his

apprehension in the alleged manner inspires no confidence. The SIM is

alleged to have been recovered at around 09.30 P.M. PW-4 (Inderjeet

Singh) in his testimony disclosed that he received a telephone call from

the police station on 29.03.2007 at about 08.00 P.M. No call details were

placed on record. Nothing has come on record to show that the appellant

shared the booty.

3. In the light of above discussion, I am of the view that the

prosecution has failed to establish appellant's involvement in the incident

beyond reasonable doubt. Benefit of doubt is given to him and the appeal

is accepted. Conviction and sentence awarded by the Trial Court are set

aside. He shall be released forthwith if not required to be detained in any

other case. Pending application also stands disposed of as infructuous.

Trial Court record be sent back forthwith with the copy of the order. A

copy of the order be sent to the Superintendent Jail for information.

(S.P.GARG) JUDGE APRIL 01, 2014/tr