Jagdish @ Babloo @ Kalyug vs State (Gnct Of Delhi)
2014 Latest Caselaw 732 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%
                                                   Date of Decision: 07.02.2014

+       CRL.A. 784/2013 and Crl.M.(B) No. 1261/2013 (suspension of
        sentence)

        ANIL KUMAR                                           ..... Appellant
                                 Through: Mr Shailender Dahiya, Adv with
                                 appellant in person.

                                 versus
        STATE                                              ..... Respondent
                                 Through: Ms Ritu Gauba, APP


+       CRL.A. 877/2013 and Crl.M. (B) No.1411/2013 (suspension of
        sentence)

        SALIM                                                ..... Appellant
                                 Through: Mr S.K. Sharma, Adv.

                                 versus

        STATE GOVT. OF NCT OF DELHI            ..... Respondent
                      Through: Ritu Gauba, APP

+       CRL.A. 1361/2013 and Crl.M(B) No. 2160/2013 (for suspension
        of sentence)

        JAGDISH @ BABLOO @ KALYUG                 ..... Appellant
                     Through: Ms Payal Juneja, Adv.

                                 versus

        STATE (GNCT OF DELHI)                  ..... Respondent
                      Through: Ritu Gauba, APP
CORAM:
HON'BLE MR. JUSTICE V.K.JAIN



Crl. Appeal No.784, 877 and 1361/2013                          Page 1 of 14
                                         JUDGMENT

V.K.JAIN, J. (Oral)

On 16.03.2005, the complainant Deepak Dogra was brought to

Jairpur Golden Hospital in injured condition. On receipt of information

in this regard, ASI Attar Singh of Police Station Sultan Puri reached the

aforesaid hospital and recorded the statement of Deepak Dogra. He told

the Investigating Officer that on 15.03.2005, at about 9.30 PM, when he

was crossing the railway line near Railway Station Nangaloi, while

returning to his home, he was held by two persons, whereas the third

person put a knife on his face and the fourth person started searching

him. When he protested, a knife blow was given on his face, as a result

of which he got scared and when the assailant tried to give the second

knife blow, he caught the knife from both his hands and pulled it

towards him, as a result of which he got injuries on both his hands. The

robbers took out his mobile phone bearing No. 9871567751 make

Sansung as well as his purse containing Rs.80/-cash, besides telephone

diary and identity card of Bal Bharti School and some other papers. The

robbers then ran towards Prem Nagar-II. The complainant somehow

reached his house from where he was taken to hospital by his favour.

2. The case of the prosecution is that the appellant Jagdish @

Babloo @ Kalyug who had been arrested in the case registered vide FIR

No.403 of 2005 confessed to his involvement in the aforesaid robbery.

Jagdish @ Babloo @ Kalyug was then arrested in this case and was

interrogated.

According to the prosecution Jagdish @ Babloo @ Kalyug, took

them to his house No. 126, Gali No. 6, Station Block, Prem Nagar-I and

produced a mobile phone make Samsung from his room. The aforesaid

mobile phone was seized after it had been sealed. Thereafter Jagdish @

Babloo @ Kalyug took the police to X/333, Gali No. 7, Prem Nagar-II,

where the he pointed out the appellant Salim, who was also arrested in

this case. Salim was interrogated and pursuant to the disclosure

statement made by him, he produced a purse kept on the TV in his

room. The said purse contained I-Card of the complainant, besides his

photograph and other documents. The purse along with its contents was

seized, after it had been sealed.

Thereafter, on being pointed out by Jagdish @ Babloo @ Kalyug,

the appellant Anil Kumar was arrested and was interrogated. The case of

the prosecution is that Anil produced the school I-card of the

complainant from the pocket of the shirt which had been hung in his

room, and was also seized by the police. Thereafter, one Dalip Singh @

Monu was apprehended on being pointed out by Jagdish, Salim and

Anil. All the four accused persons refused to join TIP before the

Metropolitan Magistrate and were thereafter chargesheeted.

3. Vide impugned judgment dated 15.05.2013, Dalip Singh was

acquitted, whereas remaining three were convicted under Section 394

reach with Section 34 of IPC. Vide impugned Order on Sentence dated

25.05.2013, the appellant Jagdish @ Babloo @ Kalyug was to undergo

RI for five years and to pay a fine of Rs 10,000/- or to undergo SI for six

months in default, whereas the appellant Salim and Anil were sentenced

to undergo RI for three years each and to pay fine of Rs 10,000/- each or

to undergo SI for two months each in default. Being aggrieved from

their conviction and the sentence awarded to them, the appellants are

before this Court.

4. PW-4 Deepak Dogra is the only eye witness of the robbery which

took place in the night of 15.03.2005. When he was examined on

25.10.2005, he, inter alia, stated as under:-

"I reached on the railway track one boy who was also going on the same way put a blade on my neck and asked me as to why I abused him and in that process I crossed the railway track and tried to run away from there but I was apprehended by Kalyug known in the area present in the court today and correctly identified among the other accused persons. Thereafter 7/8 more

boys came over there and they apprehended me towards the patri side in the darkness. Accused Kalyug asked to give knife from accused Salim present in the court today and correctly identified by the witness among the other accused and then he started giving blow on my neck, abdomen, cheek, lip and palm of both the hands and finger from the said knife. Thereafter accused Anil present in the court today and correctly identified by his name and face also beat me with legs."

When this witness was further examined in chief on 30.11.2005,

he changed the earlier version of the incident given by him and inter alia

stated as under:-

"Accused Kalyg named (Jagdish @ Babloo) stabbed me. Accused Anil present in the court and correctly identified among the other co-accused caught hold me from my behind and accused Saleem present in the court today and correctly identified amongst the other co-accused handed over the knife to Kaliyug (Jagdish) and after raising my objection first Kaliyug (Jagdish) stabbed on my mouth and face and when I tried to save myself I also received injury in my hand palm. Besides three accused persons there were 4-5 boys more available and they were only standing there. Today I have no idea about the fourth accused present in the court."

In the cross-examination recorded on 30.11.2005, the complainant

inter alia stated as under:-

"When I was crossing the railway line only accused Jagdish @ Kaliyug was there and thereafter accused Saleem and Anil came over there. The incident took place at his residence of half kilometer from railway phatak. At that time I raised alarm. Then Anil and Saleem came over there."

However, when the complainant was cross-examined on 09.10.2006,

he made a somersault and inter alia stated as under:-

"I did not know accused persons prior to the incident. I had not disclosed the names of the accused persons when police came to meet me in the hospital. I came to know about the names of the accused persons through police and for that reasons I had not disclosed the names of the accused persons in my complaint Ext.PW4/A. In fact the police officials had told me about the names of the accused persons and their roles they played in the robbery. Voltd. I had not seen the faces of the accused persons at the time of robbery as it was night. I cannot say if the accused persons were present at the spot. It is wrong to suggest that I falsely implicated the accused."

He was cross-examined by the learned Additional PP, but during the

said cross-examination, he did not identify the appellants as the persons

involved in the robbery.

5. It would thus be seen that the complainant Deepak Dogra has made

wholly contradictory statements in the Court. In the FIR Ex. PW-4/A, he had

stated that two boys had held him and the third boy put a knife on his face,

whereas the fourth boy took his search and when he resisted, he was given a

knife blow on his face. He also alleged that when the assailant sought to give

the second blow, he took it on his hands. However, when he was examined in

the Court on 25.10.2005, he gave a different version and claimed that one boy

had put a blade on his neck and asked him as to why he had abused him. In

the FIR, he did not say that the boy who put blade on his neck had abused

him.

In his deposition dated 25.10.2005, he stated that the appellant Jagdish

@ Babloo @ Kalyug took knife from the appellant Salim and then gave

blows on his neck, abdomen, cheek, lip and palm of both the hands,

whereas Anil gave beating to him with the legs. In the complaint to the

police, he had not claimed that one of the assailants had taken knife

from the other assailant nor had he claimed that one of the assailants had

given beating to him using his legs for the purpose. However, in his

examination-in-chief dated 30.11.2005, he claimed that Anil had caught

him from behind, whereas Jagdish @ Babloo @ Kalyug had give knife

blow to him and Salim had handed over the knife to Jagdish @ Babloo

@ Kalyug. The examination-in-chief dated 30.11.2005 thus was in line

with the version given by him in the FIR except to the extent in the FIR

that he did not claim that the person who gave knife blows to him had

taken that knife from another assailant.

In his deposition dated 25.10.2005, the complainant stated that

initially he met Jagdish @ Babloo @ Kalyug and thereafter 7-8 boys

had come over there and apprehended him. On the other hand, in his

cross-examination on 30.11.2005, he stated that when he was crossing

the railway line, Jagdish @ Babloo @ Kalyug was there and thereafter

Salim and Anil came over there, on alarm being raised by him.

6. More importantly, the complainant, when he was examined in the

Court, was not firm with respect to identity of the persons involved in

the robbery. In the FIR, he did not disclose the name of any of the boys

involved in the commission of robbery, but when he was examined in-chief

on 25.10.2005, he stated that the appellant Jagdish @ Babloo @ Kalyug

was not in the area. In the FIR he did not even say that one of the

assailants was known to him or had been seen by him in the locality.

Had the complainant known the appellant Jagdish @ Babloo @ Kalyug,

he would certainly have stated so in the FIR Ex. PW-4/A. Moreover, in

his cross-examination recorded on 09.10.2006, this witness stated that

he did not know the accused persons prior to this incident and had come

to know about their names only through the police. He also stated that in

fact the police officials had told him not only the names of the accused

persons, but also the roles played by them in the robbery. He was

categorical that he did not see the face of the accused persons at the time

of robbery, as it was night. If the cross-examination dated 09.10.2006 is

correct, the identity of the appellants as the persons involved in the

incident does not stand proved. Moreover, not only in his cross-

examination, but also in his examination-in-chief dated 25.10.2005, the

witness clearly stated that the incident of robbery had taken place in

darkness. Therefore, there was no opportunity for the witness to

identify the persons involved in the robbery.

In any case, considering the absolutely contradictory depositions

made by the complainant with respect to the identity of the persons

involved in the incident of robbery, it will not be safe to place reliance

upon his testimony, as regards the identity of the culprits.

7. As regards the alleged recovery of stolen articles, the case of the

prosecution against the appellant Anil is that the school I-card of the

complainant Deepak Dogra, issued by Sarvodya Bal Vidyalaya was

recovered from his room on 16/17.03.2005. A perusal of the FIR would

show that the complainant did not allege theft of the school I-card,

issued by Sarvodya Bal Vidyalaya, when he reported the incident of

robbery. Moreover, it is difficult to believe that the appellant Anil would

have retained the school I card of the complainant with him till the time

it is alleged to have been recovered by the police. The school identity

card of the complainant was absolutely of no use for the appellant Anil

and, therefore, there was no reason for him to retain the said card and

keep it in his house. In fact, the first attempt of the robber would be to

throw away any such stolen article which would immediately link him

with the robbery and for possession of which he can have absolutely no

explanation to offer. The person who commits robbery would know that

in the event of his being arrested, his house was bound to be searched by

the police in order to recovery of stolen articles. Therefore, he would

not like to retain any article which has no monetary value and is

otherwise of no use to him, but at the same time can lend him in trouble

on account of its recovery from him. Therefore, the alleged recovery of

school I-card of the complainant from the appellant Anil is highly

doubtful.

8. The case of the prosecution is that the purse of the complainant

containing I-card, issued by Rana Electrical Services to him was

recovered from the room of Saleem on 16.03.2005. However, in the

FIR, there is no allegation of theft of the I-card, issued to the

complainant by Rana Electrical Services though theft of the I-card

issued by Bal Bharti School is mentioned therein. Had the complainant

been carrying the I-card issued by Rana Electrical Services, there would

be no reason for him not to disclose its theft in the FIR when he had

disclosed the details of other stolen articles, including the I-card, issued

by Bal Bharti School. Moreover, the I-card of the complainant, issued

by Rana Electrical Services was of no use of the appellant Salim and,

therefore, he had no reason to retain the same and keep it in his house

till 16.03.2005. As noted earlier, the attempt of the robber would be to

get rid of such stolen articles which have no monetary value and are of

no use to him. Therefore, the appellant Salim had no reason to retain

the I-card of the complainant in his house up to 16.03.2005.

As regards the purse of the complainant, I find that in the FIR, no

particulars of the purse such as its make or even its colour was given to

the police. Therefore, it would be difficult to say that the purse which

was recovered from the appellant Salim was the purse of the

complainant Deepak Dogra. A purse is an article of common use which

is likely to be found with every person. In the absence of particulars

such as make, shape or even the colour of the purse in the FIR, it would

not be safe to convict the appellant Anil Kumar only on the basis of the

recovery of a purse from his house.

9. As regards recovery of a mobile phone from the possession of the

appellant Jagdish @ Babloo @ Kalyug, I find that in the FIR the

complainant had given the connection number as 9871567751. The

IMEI number of the mobile phone, which is the only method by which

identity of a mobile phone instrument can be established, was not given

in the complaint. No receipt of purchase of the aforesaid mobile phone

was submitted by the complainant to the police. No effort was made by

the Investigating Officer or by the complainant to ascertain the IMEI

number of the mobile connection No. 9871567751 from the service

provider. Nothing prevented the Investigating Officer from ascertaining

the IMEI number of the stolen mobile phone of the complainant from

the concerned service provider. The complainant also could have

obtained the IMEI number of his stolen mobile from the service

provider and given to the Investigating Officer. He could also have

given the receipt of purchase of the aforesaid phone to the police officer.

That, however, was not done. A perusal of the Seizure Memo of the

mobile phone Ex.PW-6/C would show that it does not contain IMEI

number of the mobile phone alleged to have been recovered from the

house of the appellant Jagdish @ Babloo @ Kalyug. There is no

explanation from the prosecution as to why the IMEI number of the

mobile phone alleged to have been recovered from the appellant Jagdish

@ Babloo @ Kalyug was not noted in the Seizure Memo. The

Investigating Officer, in my view, ought to have obtained the IMEI

number of the stolen mobile phone, as also the IMEI number of the

mobile phone alleged to have been recovered from the house of the

appellant Jagdish @ Babloo @ Kalyug and only on comparison of the

two IMEI numbers, it could be verified as to whether the mobile phone

alleged to have been recovered from the appellant Jagdish @ Babloo @

Kalyug was the same mobile which was stolen from the possession of

the complainant on 15.03.2005 or not.

I also find that in the FIR, the complainant did not even give the

model number of the mobile phone stolen from his possession. The

Seizure Memo also does not give model number of the Samsung mobile

phone, alleged to have been recovered from the house of the appellant

Jagdish @ Babloo @ Kalyug.

A perusal of the Seizure Memo of the mobile phone would show

that the phone alleged to have been recovered from the room of the

Jagdish @ Babloo @ Kalyug was of blue colour. The FIR, however,

does not even disclose the colour of the stolen mobile phone.

10. For the reasons stated hereinabove, the prosecution, in my view,

has failed to prove beyond reasonable doubt that the mobile phone

alleged to have been recovered from the room of the appellant Jagdish

@ Babloo @ Kalyug was the same phone which was stolen from the

possession of the complainant Deepak Dogra on 15.03.2005.

11. For the reasons stated hereinabove, all the three appellants are

given benefit of doubt and are hereby acquitted.

The appeals as well as the applications stand disposed of

A copy of this judgment be sent to the concerned Jail

Superintendent for information and necessary action.

LCR be sent back along with copy of this judgment.

FEBRUARY 07, 2014                                          V.K. JAIN, J.
BG