Deepak vs State
2014 Latest Caselaw 319 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

%
                                          Date of Decision: 17.01.2014

+       CRL.A. 166/2010

        DEEPAK                                         ..... Appellant
                          Through: Mr Medhanshu Tripathi, Adv.
                          versus
        STATE                                     ..... Respondent
                          Through: Mr Feroz Khan Ghazi, APP

CORAM:
HON'BLE MR. JUSTICE V.K.JAIN

                             JUDGMENT

V.K.JAIN, J. (Oral)

On 28.06.2004, the complainant Manoj, who at that time used to

work with CMS Security Limited and collect cash from different

organizations was robbed of Rs 4,00,000/- on Press Enclave Road at

about 2.00 PM. Two persons travelling on a motorcycle were involved

in the robbery. The case of the prosecution is that on 29.06.2004, three

persons, travelling in a car, were stopped on suspicious, were

interrogated and arrested and pursuant to the disclosure statements made

by two of them, namely, Manjit Singh and Naresh Kumar, Rs 10,000/-

were recovered. This is also the case of the prosecution that the third

person Rishi Pal took them to his house No.7, Humayunpur and got

recovered a raxin bag, containing Rs 30,000/- and I-card of the

complainant Manoj. One bloodstained knife was also alleged to have

been recovered at the instance of one of them, namely, Manjit Singh.

The number plate of the motorcycle involved in the robbery was alleged

to have been recovered from the possession of another accused namely

Shiv Shakti and this is also the case of the prosecution that another sum

of Rs 10,000/- was recovered from his house. The prosecution claims

that the appellant Deepak Kumar was arrested in another case registered

at Police Station New Friends Colony, where, he made a disclosure

statement with respect to his involvement in the above-referred case of

robbery. He was arrested in this case and the case set out by the

prosecution is that he led the police party to house No.7, Humayunpur

and got recovered a bag containing Rs 4,00,000/-. All the accused were

charged under Sections 395/397 of IPC.

2. Vide impugned judgment dated 16.01.2010, all the accused

except the appellant Deepak were acquitted. The appellant was

convicted under Section 411 of IPC and was sentenced to undergo

rigorous imprisonment for two years and to pay a fine of Rs 25,000/- or

to undergo SI for six months in default.

3. PW-1 Constable Ramesh Chand is a witness to the recovery of Rs

30,000/- from house No. 7, Humayunpur at the instance of Rishi Pal, a

resident of the aforesaid house who is stated to be cousin of the present

appellant. According to him, the aforesaid recovery was effected on

28.06.2004. In cross-examination by the counsel for Rishi Pal, he

expressly stated that it was a two floor house and search in other parts of

the house were also made. This would clearly means that the whole of

house No. 7, Humayunpur was searched on 29.06.2004 and no cash

other than Rs 30,000/- which Rishi Pal got recovered from the first floor

were found. I fail to appreciate how a sum of Rs 4,00,000/- lying in a

bag under a cot could have been found on 11.08.2004, i.e., after about 1

½ months, particularly when they were not found concealed anywhere.

It is highly improbable that the police officers searched the entire house

looking for the cash on 29.06.2004, but did not notice the bag lying

under a cot and containing cash amounting to Rs 4,00,000/-.

According to SI Manish Joshi, the iron box in which the bag had

been kept was not locked. Therefore, in ordinary course of conduct, the

police officers looking for the cash would certainly have opened the box

lying on the ground floor and checked the bag kept in the said box.

4. Even otherwise, it would be highly unrealistic to believe that

despite the police searching their house and recovery of Rs 30,000/- on

29.06.2004, the appellant would have kept Rs 4,00,000/- stolen from the

possession of the complainant in that very house and in an unlocked

box.

5. The learned APP submits that since the appellant Deepak was not

in Delhi before he was arrested by the staff of Police Station New

Friends Colony on 10.08.2004, he may have brought the cash to the

house after Rs 30,000/- had already been seized at the instance of Rishi

Pal. I, however, find no merit in this contention for two reasons, firstly

there is no evidence that the appellant was absconding and was out of

Delhi before he was arrested in the case registered vide FIR No.

375/2004 of Police Station New Friends Colony. Moreover, even if he

was not living in the aforesaid house, he could not have been unaware of

the police searching their house and recovering Rs 30,000/- at the

instance of his cousin Rishi Pal on 29.06.2004. Therefore, he could not

have been such a foolish as to keep Rs 4,00,000/- in the same house

which the police was likely to visit again and again, searching for him.

This is more so, when he knew that his cousin Rishi Pal was in police

custody and could reveal his name to the police, whereupon the police

was bound to search his house in an attempt to arrest him and recover

the stolen property. The case of the prosecution is that Rishi Pal, on

interrogation by police in this case, had disclosed the involvement of the

appellant Deepak in the robbery and had also stated that part of the

robbed money was with him. Being in possession of this information,

the police officers, who recovered Rs 30,000/- from house No. 7,

Humayunpur on 29.06.2004 would certainly have searched the entire

house, including the ground floor, where the appellant Deepak is stated

to be residing and not only its first floor. The recovery of Rs 4,00,000/-

at the instance of the appellant from house No. 7, Humayunpur in these

circumstances become highly doubtful.

6. If the appellant Deepak came to the house after recovery of Rs

30,000/- on 29.06.2004, he in the normal course of conduct, would not

have kept the cash amounting to Rs 4,00,000/- in the same house and

that too with the paper slips which would link the aforesaid cash with

the robbery intact on them. He knew that the police was looking for him,

his cousin brother was already in police custody, and the police had

already seized Rs 30,000/- from their house. Therefore, he would keep

the cash at some place other than the house No. 7, Humayunpur and

would in all probability also remove the paper slips which would

establish the identity of the currency.

For the reasons stated hereinabove, the appellant is given benefit

of doubt and is hereby acquitted.

V.K. JAIN, J JANUARY 17, 2014 BG