Sanjay Kumar @ Doctor & Anr. vs State
2014 Latest Caselaw 149 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : 25th November, 2013
                                    DECIDED ON : 08th January, 2014

+      CRL.A. 791/2002

       SANJAY KUMAR @ DOCTOR & ANR.           .... Appellants
                   Through : Mr.Neeraj Yadav, Proxy Counsel
                             for Mr.Anurag Jain, Advocate.

                               VERSUS

       STATE                                               .... Respondent
                               Through :   Mr.Lovkesh Sawhney, APP.
AND

+      CRL.A. 71/2003

       NARPENDER @ PAPPU                                     .... Appellant
                    Through :              Mr.Neeraj Yadav, Proxy Counsel
                                           for Mr.Anurag Jain, Advocate.

                               VERSUS
       STATE                                               .... Respondent
                               Through :   Mr.Lovkesh Sawhney, APP.
        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Sanjay Kumar @ Doctor (A-1), Zakir Hussain (A-2),

Shahzad @ Shamshad (A-3) and Narpender @ Pappu (A-4) were arrested

in case FIR No.297/2000 registered at Police Station, Vasant Kunj and

sent for trial on the allegations that on 08.05.2000 at about 09.30 A.M.,

they all in pursuant to criminal conspiracy robbed complainant-Krishan

Chand and deprived him of cash `40,000/- at the point of deadly weapons.

The police machinery was set into motion when Daily Diary (DD) No.5

(Ex.PW2/D) was recorded and the investigation was assigned to SI Sanjay

Sharma who with Const.Shyam Lal went to the spot. After recording

complainant-Krishan Chand's statement (Ex.PW-1/A) he lodged First

Information Report under Section 394 IPC. In the complaint Krishan

Chand disclosed as to how and under what circumstances he was robbed

of `40,000/- which he was carrying to deposit in the bank by two

assailants at the point of country made pistols after intimidating him.

Thereafter both fled the spot in a TSR. He was able to read and note the

digits 3899 of the TSR in which the assailants had fled the spot. Efforts

were made to find out the assailants but in vain. On 15.02.2001 police of

Special Staff succeeded to apprehend all the assailants at about 09.25 P.M.

Their disclosure statements were recorded and pursuant to that, the

country made pistols were recovered. The TSR used in the crime was

seized. Statements of witnesses conversant with the facts were recorded.

After completion of investigation, a charge-sheet was submitted in the

court against the accused persons and they were duly charged and brought

to trial. To prove the guilt of the accused persons, the prosecution

examined 10 witnesses. In their 313 statements, the accused persons

denied their complicity in the crime and pleaded false implication. They

examined five witnesses in defence. On appreciating the evidence and

after considering the rival contentions of the parties, the Trial Court by the

impugned judgment held A-1 and A-2 guilty for committing offence

punishable under Section 392 read with Section 397 IPC whereas A-4 was

convicted under Section 392 IPC. A-3 was acquitted of all the charges.

It is significant to note that the State did not challenge his acquittal.

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

examined the record. Conviction of the appellants is based on the sole

testimony of complainant-Krishan Chand who was robbed of cash

`40,000/-. The police was unable to recover the robbed amount from the

possession of any of the accused persons apprehended after a gap of about

seven months. In the complaint (Ex.PW-1/A) the complainant had

disclosed to the police that two assailants used country made pistols to

snatch the bag containing cash `40,000/-. Thereafter they fled in the TSR

in which an individual was already sitting. He was able to note down the

digits 3899 of the TSR. The complainant gave description of the

assailants with whom he had direct confrontation but he did not describe

the features of the TSR driver and the person sitting on the rear seat of the

TSR. Nothing has come on record that after coming to know the use of

TSR bearing registration No.3899, sincere efforts were made by the

investigating officer to find out the registered owner of the said TSR after

verifying the record from the transport authorities. The police of PS

Vasant Kunj was unable to apprehend and arrest any of the assailants for

about seven months. No attempts were made to find out as to who was in

possession of the TSR bearing No.3899. Only on 15.02.2001 the Special

Staff allegedly apprehended all the four assailants when they emerged in

the TSR allegedly used in the crime and a two-wheeler scooter. Only

from their disclosure statements recorded, they came to know their

involvement in the instant case. However, no efforts were made by the

police of special staff or Police Station Vasant Kunj to associate the

complainant-Krishan Chand at the time of apprehension of the assailants

or soon thereafter for identification. Applications for holding TIP

proceedings of the assailants/accused persons were moved and the

accused declined to participate in the TIP proceedings on 16.02.2001.

The assailants were admittedly not acquainted with the complainant prior

to the incident and he had fleeting glance of two of the assailants with

whom he had direct confrontation. He was asked to identify the accused

persons for the first time in Patiala House Court on 02.03.2001.

Statement of the complainant recorded before the court as PW-1 is

wavering regarding identification and involvement of the accused persons

in the incident. In his examination-in-chief, he stated that on 02.03.2001

he was called at Patiala House Court where he identified A-1, A-2 and A-

3 to be the assailants. He revealed that A-2 had shown him a 'knife' at the

time of occurrence. A-3 was the driver of the TSR. He did not recognize

A-4. He was cross-examined by Additional Public Prosecutor after

seeking court's permission. In the cross-examination, he denied the

suggestion that in his statement (Ex.PW-1/A) he had stated that both the

assailants had used the 'country made pistols' while committing robbery.

On the suggestion of the learned Additional Public Prosecutor he admitted

that A-4 was identified by him as the driver of the TSR. He denied the

suggestion that A-3 was the individual who was sitting in the rear seat of

the TSR at the time of occurrence. He refuted the suggestion that the

matter was compromised by him with A-3 and for that reason he was not

recognizing him. In the cross-examination on behalf of the accused

persons, the complainant gave inconsistent version that A-2 had used

country made pistol at the time of committing robbery. He further

disclosed that he had seen the accused persons in the Police Station Daula

Kuan. He identified A-3 who had robbed him. Apparently, the

complainant is not certain regarding the involvement of the accused

persons in the crime. He has attributed inconsistent and contradictory

roles to the assailants.

3. In the statement (Ex.PW-1/A) given to the police at the first

instance the complainant gave the TSR No. as 3899. TSR No.DL 1RC

3898 was recovered from the possession of A-4 vide seizure memo

(Ex.PW-5/E) on 15.02.2001. The prosecution came up with the plea that

the last digit 9 was found to have been tempered with. PW-4 (Deepak),

owner of the TSR No.DL 1RC 3898, however, denied if any infirmity

regarding number plate was noticed by him any time. The prosecution

was not able to collect cogent evidence to establish that on the day of

occurrence this TSR was rented to A-4 and he was in possession of it.

PW-4 (Deepak) in his examination-in-chief disclosed that he used to give

this TSR on rent to different persons and did not remember their names.

He admitted that he had given the TSR on hire basis to A-4 at the rate of

`150/- per day but denied that on 08.05.2000 TSR was given to A-4. The

investigating agency did not collect any credible evidence as to from

which date to which date the TSR remained in possession of A-4 or that

he had paid regular hire charges to PW-4 (Deepak) during this period.

While appearing as PW-1 the complainant disclosed the number of the

TSR noted by him as 5899. In the cross-examination by learned

Additional Public Prosecutor, he admitted the suggestion that the number

of the scooter disclosed by him to the police was 3899. In the cross-

examination on behalf of the accused persons, he again gave inconsistent

statement that he could read the number of the scooter as 5899 and the

TSR scooter identified by him during investigation was bearing No.5999.

It reveals that complainant is not sure as to the number of TSR used in the

crime and has given conflicting statements.

4. Since the statement of the complainant is wavering regarding

the identity of the assailants, nature of the weapons used in the crime and

number of the vehicle used and there is no corroboration to his testimony,

the conviction of the appellants on the same set of evidence whereby A-3

was acquitted cannot be sustained. The prosecution was not able to

establish its case beyond reasonable doubt. The appellants deserve benefit

of doubt. Their appeals are accepted. Conviction and sentence awarded to

them are set aside. Bail bonds and surety bonds stand discharged.

5. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE January 08, 2014/sa