Javed @ Galla Phad vs State Nct Of Delhi
2014 Latest Caselaw 366 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : 15th January, 2014
                               DECIDED ON : 21st January, 2014


+      CRL.A. 831/2012 & Crl.M.B.No.1329/2012
       JAVED @ GALLA PHAD                            ..... Appellant
                    Through :        Mr.Vaibhav Sharma, Amicus
                                     Curiae.

                         VERSUS


       STATE NCT OF DELHI                            ..... Respondent
                     Through :       Mr.Lovkesh Sawhney, APP.

        CORAM:
        MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Javed @ Galla Phad (the appellant), Amarjeet (Proclaimed

Offender), Bantoo @ Dev Prakash (Proclaimed Offender), Satpal, Jairam

Dass and Suresh (all acquitted) were arrested by the police of Police

Station Uttam Nagar in case FIR No.952/2005 and sent for trial on the

allegations that on 19.10.2005 in between 03.00 A.M. to 03.30A.M. at

plot No.20, Matiala Extension, Uttam Nagar, they committed robbery and

deprived Rajbir Bhargav, owner of the factory, teeth yokes, bearings and

electric motors using deadly weapons. It was further alleged that on

23.12.2005 Javed @ Galla Phad, Amarjeet, Bantoo @ Dev Prakash were

apprehended and arrested. Pursuant to their disclosure statement, some

robbed articles were recovered from Suresh, Jai Ram Dass and Satpal.

During the course of investigation, statements of witnesses conversant

with the facts were recorded. After completion of investigation a charge-

sheet was filed against the accused persons under Sections

458/380/411/34 IPC. The Metropolitan Magistrate vide order dated

31.03.2006, prima facie, found commission of offence under Section 397

IPC and committed the case to Sessions. Javed was charged for

committing offence under Section 397 IPC, Amarjeet, Bantoo @ Dev

Prakash were charged under Sections 394/34 IPC and Jairam Dass, Suresh

and Satpal were charged under Section 412 IPC. Accused persons

pleaded not guilty to the charges and claimed trial. To bring home the

charges, the prosecution examined eleven witnesses. In their 313

statements, the accused persons pleaded not guilty and claimed trial.

Amarjeet and Bantoo @ Dev Prakash absconded during trial and were

declared Proclaimed Offenders. On appreciating the evidence and after

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

impugned judgment convicted Javed under Section 397 IPC. Jairam Dass,

Suresh and Satpal were acquitted of all the charges. It is significant to

note that the State did not challenge their acquittal.

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

examined the record. The appellant's conviction is based upon the sole

testimony of PW-3 (Arun Kumar), Chowkidar in the factory, who

identified him during deposition in the court as one of the assailants. The

occurrence took place in the night intervening 18/19-10-2005 at about

03.00 A.M. PW-3 (Arun Kumar) did not inform the owner of the factory

or the police soon after the occurrence. Rather he went to sleep and

purportedly informed PW-2 (Rajbir Bhargav) at 08.00 A.M. Daily Diary

(DD) No.7 (not proved) was recorded at PP Matiala at 09.30 A.M. on

19.10.2005 about a theft in the said factory. PW-3 (Arun Kumar) did not

accompany the owner of the factory to the police station to lodge report.

Strange enough, the First Information Report was lodged after recording

statement of Rajbir Bhargav (Ex.PW-2/A). It is unclear as to why the

statement of victim-Arun Kumar, who had witnessed the incident was not

recorded and the FIR was not lodged on his statement. Even in the

statement (Ex.PW-2/A) the complainant merely mentioned 'theft' of some

articles in the factory. The number of the assailants and the manner in

which the incident occurred was not revealed. Rukka (Ex.PW-9/A) does

not record presence of PW-3 (Arun Kumar) at the spot at the time of

lodging report under Section 457/380 IPC. The rukka was sent at about

11.40 A.M. after a considerable delay which has remained unexplained.

Presence of PW-3 (Arun Kumar) at the time of occurrence has not been

established beyond reasonable doubt. PW-3's conduct is unnatural; he

did not raise alarm at the time of occurrence and conveniently went to

sleep. He was not taken for medical examination to ascertain the injuries

sustained by him during the occurrence. He was not sure about the

number of assailants. Allegedly, the robbed articles were carried away on

a cycle-rickshaw. However, Arun Kumar did not attempt to chase the

culprits. The appellant-Javed was arrested on 23.12.2005 after about two

months of the incident. No efforts were made by the Investigating Officer

for test identification soon after his apprehension. There is considerable

delay without any explanation for moving the TIP application on

03.01.2006. The appellant alleged that he declined to participate in the

TIP proceedings as he was shown to the witnesses. No knife was

recovered from the appellant's possession at the time of his arrest. The

Trial Court did not believe the prosecution case regarding the recovery of

the robbed articles from him or at his instance and made observations in

the impugned judgment :-

"All these contradictions in the testimony of the witnesses, coupled with the fact that no public witness was joined and the police witnesses also turned hostile and were cross- examined by learned Addl.PP on the point of recovery, in my opinion, prosecution has not been able to prove the recovery from the possession of accused Satpal, Jairam and Suresh. No doubt, this evidence also creates doubt about the manner of arrest of accused Javed and recovery from him, but there is other overwhelming evidence against the accused, regarding his involvement in the commission of offence of dacoity, as deposed by PW-3."

It shows that the Trial Court itself was not convinced with

the arrest and recovery of the articles at the instance of the appellant. The

complainant did not give broad features of the assailants. The occurrence

had taken place during night hours and allegedly there were four or five

assailants. Identification of the appellant in the court for the first time after

a gap of four years without any specific mark of identity is doubtful.

Broken lock was not seized.

3. In the light of the above discussion, conviction of the

appellant cannot be sustained as the prosecution was unable to establish

the case beyond reasonable doubt. The appellant also deserves benefit of

doubt and is acquitted. The appeal is accepted; the conviction and

sentence of the appellant are set aside. The appellant be set at liberty

forthwith, if not required in any other case. Pending application also

stands disposed of.

4. Trial Court record along with a copy of this order be sent

back forthwith. A copy of the order be sent to Jail Superintendent, Tihar

Jail for intimation.

(S.P.GARG) JUDGE JANUARY 21, 2014 sa