Vishal vs The State Of Nct Of Delhi
2014 Latest Caselaw 339 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 15th JANUARY, 2014
                                DECIDED ON : 20th JANUARY, 2014

+             CRL.A. 648/2011 & CRL.M.B. 647/2013

       VISHAL                                         ....Appellant
                    Through :    Ms. Garima Bhardwaj, Advocate with
                                 Ms.Naiem Jahan Heena, Advocate.

                                 VERSUS

       THE STATE OF NCT OF DELHI              ....Respondent
                Through : Mr.M.N.Dudeja, APP.

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

S.P.GARG, J.

1. Vishal (the appellant) seeks to question his conviction for

offences under Section 392 read with Section 397 IPC and 27 Arms Act

by a judgment dated 04.08.2010 in Sessions Case No. 56/10 arising out of

FIR No. 128/10 PS Sarai Rohilla. By an order on sentence dated

07.08.2010, he was awarded RI for seven years under Section 392 IPC

read with Section 397 IPC and SI for three years under Section 27 Arms

Act. The factual matrix from which the appeal germinates is as under :

2. On 21.04.2010 at about 12.15 P.M. Surender Kumar boarded

a private bus No. 3553 on route no. 231 from Daya Basti to go Deputy

Ganj Market to purchase a dinner set for the marriage of his daughter. He

had ` 16,500/- in his pocket. He was robbed of ` 16,500/- by four

assailants in the heavily crowded bus. On raising alarm, the assailants

alighted from the bus and were chased by the complainant. He was able to

apprehend the appellant who attempted to resist by taking out a buttandar

knife out of his possession. The complainant overpowered him and

informed the police. The Investigating Officer lodged First Information

Report after recording his statement (Ex.PW-1/A). Efforts were made to

find out the appellant‟s associates but in vain. Statements of the witnesses

conversant with the facts were recorded and after completion of the

investigation, a charge-sheet was filed against the appellant, in which he

was duly charged and brought to trial. The prosecution in all examined six

witnesses. In 313 statement, the appellant denied complicity in the crime

and alleged false implication. The trial resulted in his conviction as

aforesaid.

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

scrutinized the trial court record minutely. The police machinery was set

in motion when Daily Diary (DD) No. 36B (Ex.PW-2/B) was recorded at

13.30 hours at PS Sarai Rohilla. The contents of the DD entry, however,

reveal that it was an information about a „quarrel‟ at jhuggi No. G-307,

Daya Basti, RPF Line, Machhi Market. The name of the informant does

not find mention in it. This information was recorded on getting

intimation from PCR. However, during trial, no such PCR official was

examined. The occurrence took place at about 12.15 P.M. and soon

thereafter, the appellant was allegedly apprehended at the spot and the

complainant informed the police at 100. Complainant did not disclose in

the statement (Ex.PW-1/A) if PCR officials had arrived at the spot or that

the accused along with weapon was handed over to them. Endorsement

(Ex.PW-3/A) over Ex.PW-1/A does not reveal presence of any PCR

official at the time of arrival of the Investigating Officer from the local

police. The complainant did not offer any explanation as to why the

accused apprehended at the spot with a crime weapon was not handed

over to PCR officials who allegedly arrived at the spot after about 20

minutes of the occurrence. The local police arrived after about 10 /15

minutes thereafter. In the disclosure statement (Ex.PW-1/D), it was

recorded that the appellant‟s associates used to contact him (the appellant)

to pick-pockets in the buses on his mobile. However, no such mobile

phone was recovered from the appellant‟s possession soon after his arrest.

Disclosure statement (Ex.PW-1/D) records that the mobile phone in

possession of the appellant fell on the ground after the crime. However, no

such mobile phone was recovered by the police at any stage of the

investigation. Despite seeking police remand, the Investigating Agency

was unable to ascertain the identity of the appellant‟s associates and

apprehend them. The robbed cash could not be recovered. The

Investigating Officer did not verify as to from where the complainant had

arranged ` 16,500/-. The exact location where occurrence took place

could not be ascertained. No independent public witness was associated at

any stage of the investigation. It has come on record that the appellant was

beaten by the public and was medically examined. Despite availability of

the public persons none of them was joined without any plausible reason.

4. The complainant in his earliest version given to the police in

his statement (Ex.PW-1/A) disclosed that when he raised alarm in the bus,

four assailants alighted and started fleeing the spot. He was able to

apprehend one of the assailants who took out a knife. The said boy was

overpowered and a buttandar knife was snatched from his right hand. The

words „khuli halat mei‟ seems to have been inserted subsequently in the

statement (Ex.PW-1/A). The complainant did not describe the features of

the other associates / companions of the appellant who had pushed him in

the bus and had robbed him of cash ` 16,500/-. In his Court statement as

PW-1, the complainant did not attribute any specific role to the each

assailants and in vague terms disclosed that the „four individuals‟ pushed

him and asked him to keep hands up on the pretext of rush in the bus. He

vaguely stated that they „forcibly‟ took out ` 16,500/- from the inner

pocket of his wearing pant. He did not describe as to what force was used

and in what manner the currency lying in his inner pocket were taken out

by any specific individual. No specific and definite role was attributed to

the appellant in depriving him of cash from his pocket. The appellant was

not apprehended while taking out the currency notes from the pocket of

the complainant. It is unclear as to when and at what place the bus stopped

and the four assailants alighted from the bus. Driver and conductor or any

other passenger in the bus was not associated at the time of conducting

search of the accused. After his apprehension, no instrument to pick-

pocket was recovered from his possession. The appellant who was

allegedly armed with a deadly weapon did not use it to avoid his

apprehension. No injuries with knife were inflicted to the complainant or

the public giving beatings to him. The complainant himself disclosed that

after that the appellant was taken to Murga market, he was made to sit

there. He did not attempt to abscond from there. Mere presence of the

complainant inside the bus without any specific / overt act attributed to

him is not enough to prove or establish his guilt particularly when no

robbed article was recovered from his possession. It is true that PW-1

(Surender Kumar) had no ulterior motive to falsely implicate the accused

with whom he had no prior animosity. But possibility of mistaken identity

cannot be ruled out. There were four individuals who allegedly were

instrumental in committing the crime. The police was unable to ascertain

the nexus of the present appellant with the other three who fled the spot.

Sole testimony of the complainant is not safe to convict the appellant in

the absence of any corroboration in the light of various discrepancies and

infirmities in the prosecution case. Delay in lodging the FIR has not been

explained.

5. Besides above, conviction with the aid of Section 397 IPC

was not proper as no „deadly‟ weapon was used by the appellant at the

time of committing robbery. The incident of alleged robbery had taken

place inside the bus where none of the offenders used any deadly weapon

to overawe or scare the complainant. The appellant was not found in

possession of any robbed / stolen article and did not use knife (a) in order

to the committing of the theft; or (b) in committing the theft; or (c) in

carrying away or attempting to carry away property obtained by theft, to

attract Section 390 IPC when theft becomes robbery under above noted

circumstances. The knife was allegedly taken out by the appellant when

he was being chased to avoid his apprehension. In „Queen Empress vs.

Beni‟, (1901) ILR 23 All 78, wherein Henderson, J. Held that "where

several persons were found endeavouring to break into a house, and some

of them, being armed, used violence, but only in attempting to escape

being arrested it was held that they could not properly be convicted under

Section 397 read with Section 511 of the Indian Penal Code."

6. In the light of above discussion, the appeal is allowed.

Conviction and sentence passed by learned Addl. Sessions Judge are set

aside. The appellant is acquitted of the charge. He be set at liberty

forthwith, if not required in any other case. Trial Court record be sent

back forthwith. Pending application also stands disposed of.

(S.P.GARG) JUDGE JANUARY 20, 2014/tr