Abdul Aziz vs State
2014 Latest Caselaw 2119 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                 RESERVED ON : March 21, 2014
                                 DECIDED ON : April 29, 2014

+                         CRL.A.323/2012

       ABDUL AZIZ
                                                         ..... Appellant
                          Through :    Mr.R.P.S.Jaiswal, 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-Abdul Aziz challenges the correctness and

legality of a judgment dated 04.02.2012 of learned Additional Sessions

Judge-02 (North) in Sessions Case No.52/2011 arising out of FIR

No.263/2006 under Section 395/412/120B IPC registered at police station

Kotwali by which he was convicted under Section 412 IPC. By an order

dated 09.02.2012, he was sentenced to undergo RI for seven years with

fine `10,000/-.

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

sheet, was that on 04.06.2006 at about 3.15 p.m. a decoity took place at

the office of the complainant-Sukhbir Sharan Aggarwal at 1994, Katra

Lachu Singh, Chandni Chowk, Delhi. The assailants decamped with cash

`22/23 lacs after putting the complainant and his staff in fear of death at

revolver/knife point. Daily Diary (DD) No.23 was recorded regarding the

incident and the investigation was assigned to SI Vijay Kumar Dahiya

(PW-32). He lodged First Information Report after recording Sukhbir

Sharan Aggarwal's statement (Ex.PW-6/A). Efforts were made to find

out the culprits. On 07.07.2006 at about 04.00 p.m. Shivam Yadav @

Vikas was arrested and from his possession a country made-pistol was

recovered. He recovered `20,000/- from the house of co-accused Chhotey

Lal, at D-105, 1st Floor, Budh Nagar, Inder Puri, Narayana, Delhi. He was

taken to Darbhanga, Bihar during police remand. Further case of the

prosecution is that on 16.07.2006, Shivam Yadav lead the police team to

the house of Abdul Aziz at village Fainkla, PS Bahadurpur, Distt.

Darbhanga (Bihar) and recovered `30,000/-. Subsequently, he lead the

police team to the house of Chhotey Lal at Ikmighat Chandi, PS Bahadur

Garh, Darbhanga (Bihar) and `20,000/- were recovered from his

possession. During investigation, statements of witnesses conversant with

the facts were recorded. Exhibits were sent to Forensic Science

Laboratory. After completion of investigation, a charge-sheet was

submitted against Shivam Yadav @ Vikas; Chhote Lal; Wazid and Abdul

Aziz (the appellant). Supplementary charge-sheet was filed against Javed

@ Anwar @ Banaras @ Anmed Raji Siddiqui; Deena Nath @ Deena;

Wajid and Harmam, who were declared Proclaimed Offenders. Initially,

charge under Sections 120-B; 397 read with Section 120-B IPC was

framed against accused Shivam Yadav @ Vikas Yadav, Abdul Aziz and

Chhote Lal by an order dated 30.11.2006. Separate charge under Section

412 IPC was also framed against them. After Wazid's arrest, similar

charges were also framed against him by an order dated 25.05.2007.

Subsequently, amended charge was framed by an order dated 15.03.2011

only against accused Shivam Yadav, Chhote Lal and Wazid for

committing offences under Sections 120 B; 395/34 and 397 IPC. Separate

charge under Section 27 Arms Act was also framed against Shivam Yadav

and Wazid. The prosecution examined 35 witnesses in all. In 313

statements, the accused persons pleaded innocence and denied their

complicity in the crime. None of them examined any witness in defence.

The trial resulted in the conviction of Shivam Yadav and Wazid under

Section 395 IPC and 27 Arms Act. Abdul Aziz (the appellant), Chhote

Lal, Shivam Yadav and Wazid were held guilty for committing offence

under Section 412 IPC. It is relevant to note that in Crl.A.No.1241/2012,

1079/2012 and 536/2012, Chhote Lal, Shivam Yadav and Wazid

respectively, gave up challenge to their conviction and their appeals were

disposed of by a judgment dated 08.05.2013 of this Court.

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

examined the record. Only allegation against the present appellant is that

on 16.07.2006, `30,000/- were recovered from his house at village

Fainkla, PS Bahadur Pur, Distt. Darbhanga (Bihar) which he received or

retained knowing or having reasons to believe it to be a robbed property.

Earlier, allegations against Abdul Aziz were that he conspired with his

associates in the commission of the decoity and was instrumental to

provide 17 live cartridges from Nepal. Subsequently, charge was

amended and Abdul Aziz was exonerated of all the offences except 412

IPC.

4. Material witnesses examined to establish the charge under

Section 412 IPC are PW-32 (SI Vijay Kumar Dahiya), PW-24 (

Ct.Shailendra) and PW-34 (Ct.Suresh). No independent public witness

was associated at any stage of the investigation qua the appellant. It is

alleged that at the time of effecting the arrest and recovery, the police

officials from the local police station were present. However, none of

them was taken as witness. Memos prepared at the spot do not bear their

signatures. The Investigating Officer did not give reasonable and

plausible explanation for not joining them as witnesses. It is pertinent to

note that Javed @ Anwar was one of the assailants who had committed

decoity at complainant's office but despite several attempts he could not

the arrested and was declared Proclaimed Offender. The appellant is his

father. Prior to his arrest on 16.07.2006, he was nowhere in the picture.

Shivam Yadav after arrest on 07.07.2006 in his disclosure statement

(Ex.PW-19/E) implicated Javed @ Anwar to be one of his associates in

committing the decoity. He further disclosed that out of the robbed cash

of `22 lacs, he had got his share `2,85,000/- besides keeping `1 lac in

addition. He, however, did not disclose the exact address of his associate

Javed @ Anwar. Disclosure statement does not reveal if Shivam Yadav

volunteered to recover any robbed cash from his associate Javed @

Anwar. It has come on record that various raids were conducted in Bihar

for number of days. However, at no stage prior to 16.07.2006, the

appellant's house was visited or raided. Only on 16.07.2006, allegedly

Shivam Yadav took the police team to the appellant's house and `30,000/-

and one cheque book of PNB Bank were produced by the appellant which

he had kept in a suitcase lying in the room. Apparently, Shivam Yadav

had taken the police team to appellant's house to effect arrest of his

associate Javed @ Anwar, appellant's son, who was one of the suspects in

the commission of decoity. The appellant (Abdul Aziz) was not a suspect

and the Investigating Officer had no incriminating material to arrest him

that time. PW-32 (SI Vijay Kumar Dahiya) did not give any specific

ground to make his arrest. After his arrest, disclosure statement (Ex.PW-

23/D) was recorded on 16.07.2006. Again, it does not bear signatures of

any independent public witness from the locality. Arrest memo (Ex.PW-

23/B) does not reflect the time when Abdul Aziz was arrested. The

Investigating Officer did not collect any document to show that Abdul

Aziz was in exclusive possession of the house. PW-23 (HC Shelesh

Sharma) in the cross-examination disclosed that the appellant was arrested

at about 12 'o Clock. He was not aware if the arrest time was shown in

the arrest memo (Ex.PW-23/D). He admitted in the cross-examination

that Abdul Aziz's wife was also present there at that time. He admitted

that they had not gone to the police post Fainkla and no official from that

police post was joined in the investigation. PW-24 (Ct.Shailendra Kumar)

did not disclose from where the appellant recovered the robbed cash. He

admitted in the cross-examination that they had gone to Bihar with

Shivam Yadav on 10.07.2006 and till 15.07.2006, they raided many

places but nothing could be recovered. He claimed that he had gone to

Bihar twice but was not aware regarding his visit for the first time. He

was unable to tell the exact places raided by them during their visit. He

gave inconsistent and contradictory version that they had gone to Abdul

Aziz's house at about 10.00 a.m. He further admitted that the accused

was not produced before the local court at Darbhanga. PW-32 (SI Vijay

Kumar Dahiya) disclosed that on 13.06.2006, for the first time, he went to

Bihar with his staff and returned on 04.07.2006. His next visit to Bihar

was on 10.07.2006. He admitted that efforts were made to arrest Javed @

Anwar several times, but he could not be found. He disclosed that they

reached the house of the appellant at about 12.15 p.m. He further

admitted that the SHO of local police station was not joined as a witness

despite his presence. The Investigating Officer did not collect any

evidence if appellant's son Javed @ Anwar had visited him at a specific

date after the incident and had handed over the booty and if so, to what

extent. As per the disclosure statement (Ex.PW-23/D), the appellant was

in regular touch with his son Javed @ Anwar and he had given him

information about the arrest of his associates. Under this scenario, the

appellant was not expected to retain the robbed cash in intact condition

with wrapper containing signatures on it in his house. There is no

evidence that the appellant was aware that the recovered cash was part of

the robbed property. This cash was not recovered pursuant to the

disclosure statement of any co-accused. Recovery of `30,000/- after a

considerable period of more than one and a half month from the date of

occurrence from appellant's house is suspect and cannot be believed.

Conviction of the appellant on the testimonies of the police officers PW-

32 (SI Vijay Kumar Dahiya), PW-24 (Ct.Shailendra) and PW-34

(Ct.Suresh) alone in the absence of any independent corroboration, cannot

be sustained particularly when the local police officials allegedly present

at the time of incident were not associated as witnesses and no public

person from the locality was joined; the statements of police officials are

inconsistent.

5. In the light of the above discussion, conviction and sentence

of the appellant cannot be sustained. The appellant is given the benefit of

doubt and is acquitted. Copy of the order be sent to the concerned Jail

Superintendent for information. Trial court record be sent back along

with a copy of this order. The appellant shall be released forthwith if not

required to be detained in any other case.

(S.P.GARG) JUDGE April 29, 2014/sa