Maqsood Ahmed vs The State (Govt. Of Nct Of Delhi)
2014 Latest Caselaw 2065 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                              RESERVED ON : 2nd APRIL, 2014
                               DECIDED ON : 25th APRIL, 2014

+            CRL.A. 515/2011 & CRL.M.B.No. 562/2014

      MAQSOOD AHMED                                     ..... Appellant

                         Through :    Mr.Vijay Kinger, Advocate.

                         versus

      THE STATE (GOVT. OF NCT OF DELHI)                 ..... Respondent

                         Through :    Mr.Lovkesh Sawhney, APP.

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

S.P.GARG, J.

1. The present appeal is directed to challenge the legality and

correctness of a judgment dated 17.03.2011 of learned Addl. Sessions

Judge in Sessions Case No. 71/2009 arising out of FIR No. 671/2006 PS

Seelampur by which he was convicted under Section 392 read with

Section 397 IPC. By an order dated 01.04.2011, he was sentenced to

undergo RI for three years with fine ` 1,000/- under Section 392 IPC; RI

for seven years with fine ` 1,500/- under Section 397 IPC. Both the

sentences were to operate concurrently.

2. Briefly stated, the prosecution case as reflected in the charge-

sheet was that on the night intervening 05/06.11.2006 at around 12.30

(night) at ISBT Road, in front of Shastri Park, the appellant and his

associate - Sonu Kumar (since dead) in furtherance of common intention

robbed the complainant - Pappu Kumar Gupta of ` 540/- at 'ustra' point.

Daily Diary (DD) No. 35A (Mark P-10/A) was recorded at PS Seelampur

regarding the incident at 12.50 (night). The investigation was assigned to

SI Kamal Singh who went to the spot and lodged First Information Report

after recording complainant - Pappu Kumar Gupta's statement (Ex.PW-

1/A). Efforts were made to find out the culprits. Further case of the

prosecution is that on 06.11.2006, Maqsood Ahmed and Sonu Kumar

were apprehended and arrested when they were going on motorcycle No.

DL-7S-AX-1342 by PW-8 (Insp. Kishan Lal) and Const.Sanjay who were

on patrolling duty. Two knives and an 'ustra' were recovered from their

possession. Their involvement emerged in the instant case upon disclosure

statements made by them in case FIR No. 389/2006 PS New Usmanpur.

Necessary intimation was given to the concerned Investigating Officer of

this case. Statements of the witnesses conversant with the facts were

recorded and after completion of the investigation, a charge-sheet was

submitted in the Court. Sonu Kumar expired during trial and proceedings

against him were dropped as abated. The prosecution examined ten

witnesses to establish appellant's guilt. In 313 statement, he denied

complicity in the crime and pleaded false implication. The trial resulted in

his conviction as aforesaid. Being aggrieved and dissatisfied, the appellant

has preferred the appeal.

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

examined the record. It is pertinent to mention that complainant - Pappu

Kumar Gupta expired during trial and his statement could not be proved in

the Court. The prosecution examined PW-1 (Mahender Kumar) who was

present with the complainant - Pappu Kumar Gupta at the time of the

occurrence. He deposed that on 06.11.2006 at around 12.30 A.M. when he

and Pappu Kumar Gupta were coming on a cycle rickshaw being driven

by him, two boys picked up a quarrel with them and gave them beatings.

One of the said boys pointed out a 'churra' at him. Thereafter, they robbed

Pappu Kumar Gupta of ` 540/- consisting of five currency notes of ` 100

each and four currency notes in the denomination of ` 10. They were on

motorcycle and he could note down incomplete number i.e. DL-A-1342.

He identified Maqsood Ahmed who had pointed out a 'churra' at him and

commanded him not to move. Thereafter, he and his associate robbed

Pappu Kumar Gupta. The conviction is based upon the sole testimony of

this witness.

4. The incident occurred on the night intervening 05/06.11.2006

at around 12.30 A.M. Daily Diary (DD) No. 35A (Mark P-10/A) was

recorded at 12.50 (night). However, rukka (Ex.PW-10/A) was sent for

lodging First Information Report at 02.20 A.M. The delay has not been

explained. The police of PS Seelampur was unable to trace the culprits or

to recover the motorcycle whose number was disclosed in statement

(Ex.PW-1/A). It was also not ascertained as to whom the motorcycle

belonged. Both Maqsood Ahmed and Sonu Kumar were allegedly arrested

on 06.11.2006 by the police of PS New Usmanpur and two knives and an

ustra were recovered from their possession. A separate case under Section

25 Arms Act vide FIR No. 389/2006 was registered at the said Police

Station. The disclosure statements of both the accused persons were

recorded and their involvement in the present case and in case FIR No.

705/2006 PS Kamla Market emerged. FIR No. 705/2006 was registered

on the complaint of Mohd.Zubair who disclosed that at about 01.00 or

01.30 A.M. (mid night) on the night intervening 05/06.11.2006, he was

robbed of ` 2,000/- by two boys who arrived on a motorcycle No. DL-7S-

AX-1342 near Bus Stand JLN Marg Petrol Pump, Kamla Market.

Maqsood Ahmed and Sonu Kumar were arrested in the said proceedings

and were sent for trial. A copy of the judgment dated 20.07.2010 in

Sessions Case No. 2/08 has been placed on record by the appellant

whereby he was given benefit of doubt and was acquitted of the charges.

In the instant case also, the prosecution failed to prove the guilt of the

accused beyond reasonable doubt. The complainant / victim could not be

examined as he expired during trial. PW-1 (Mahender Kumar) disclosed

that after the police arrived at the spot they took them to PS Seemapuri.

Both the accused persons present in the Police Station were shown to

them and he identified and recognized them to be the assailants.

Contradictory and conflicting version has come on record as to when and

where both these persons were apprehended and arrested. PW-8

(Insp.Kishan Lal), SHO PS New Usmanpur, disclosed that both the

accused persons were arrested at about 02.15 - 02.30 A.M. on 06.11.2006

when they had arrived near Zero Pusta on motorcycle. Two knives and an

'ustra' along with some currency notes were recovered from their

possession. The witness did not identify the crime weapon nor it was

shown to him during examination. The currency notes allegedly recovered

from the possession of the accused persons were also not shown and

identified by him. PW-7 (Const. Sanjay) who was a driver attached with

the SHO (PW-8 Insp.Kishan Lal) disclosed the time of the arrest of the

accused persons at about 11.30 P.M. on 06.11.2006. He disclosed that `

2,000/- were recovered from Sonu Kumar and ` 540/- were recovered

from Maqsood Ahmed. He talked about recovery of only a knife from

Maqsood. He was unable to identify the currency notes recovered from

the accused persons. During his examination, he was shown two currency

notes in the denomination of ` 100/- each, five currency notes of ` 50/-,

two currency notes of ` 20/- and five currency notes of ` 10/- (Total `

540/-). The witness fairly conceded that these were not the currency notes

recovered from Maqsood Ahmed. Both these witnesses gave inconsistent

version about the time of arrest of both the accused persons. Contrary to

that, PW-1 (Mahender Kumar) claimed that they were taken soon after

lodging of the report to PS Seelampur where both the accused persons

were present and they identified them. It belies the prosecution case about

appellant's apprehension on 06.11.2006 at night time. There was no useful

purpose to move application for holding Test Identification Proceedings

when the accused persons had already been shown at PS Seelampur to the

material witnesses. The prosecution did not examine any witness to show

regarding the recovery of the motorcycle or to whom it belonged. In the

Daily Diary (DD) No. 35A (Mark P-10/A) there is mention of snatching

of ` 500/-. It does not record that the assailants had arrived on a particular

motorcycle or that the amount was robbed at knife point. The Trial Court

in FIR No. 705/2006 did not believe the prosecution regarding the arrest

and recovery of the articles from their possession and they were acquitted

in the said case. PW-5 (ASI Tahir Hussain) in his examination did not

reveal if any robbed cash was produced before him. PW-6 (Const.Manvir

Singh) did not identify the currency notes shown to him in his deposition.

5. In the light of above discussion, it would not be safe to base

conviction on the sole testimony of PW-1 (Mahender Kumar). The

appellant deserves benefit of doubt. The appeal is accepted. Conviction

and sentence of the appellant is set aside. Pending application also stands

disposed of. Trial Court record be sent back immediately with the copy of

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

information. The appellant shall be released forthwith if not required in

any other case.

(S.P.GARG) JUDGE APRIL 25, 2014 / tr