Jagbir @ Jaggi vs State & Anr.
2014 Latest Caselaw 465 Del

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

                                RESERVED ON : 16th December, 2013
                                DECIDED ON : 24th January, 2014

+     CRL.A. 355/2003

      JAGBIR @ JAGGI                               ..... Appellant
                    Through : Mr.Mir Akhtar Hussain, Advocate
                             with appellant present in person.

                          VERSUS

      STATE & ANR.                                    ..... Respondents
                          Through : Mr.Lovkesh Sawhney, APP.

       CORAM:
       MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Jagbir Singh @ Jaggi (the appellant) impugns the legality and

correctness of a judgment dated 12.05.2003 of learned Additional

Sessions Judge in Sessions Case No.17/2002 arising out of FIR

No.609/1999 registered at Police Station Paschim Vihar by which he was

convicted for committing offence under Section 392 and 186 IPC. By an

order on sentence dated 16.05.2003, he was awarded rigorous

imprisonment for seven years with fine `5,000/- under Section 392 IPC

and rigorous imprisonment for two months under Section 186 IPC. Both

the sentences were to operate concurrently.

2. Allegations against the appellant were that on 03.07.1999 at

about 03.20 P.M. in front of House No.373, Behra Enclave, Paschim

Vihar, he committed robbery and deprived complainant-Vivek of

`40,000/- when he was keeping it in the dickey of the scooter. The

appellant was given chase by the complainant and public persons and was

apprehended from inside the park with the assistance of Const.Raj Kumar

and Const.Mukesh who arrived at the scene. In the process, the appellant

inflicted injuries to Const.Raj Kumar by a knife on his left arm. During

the course of investigation, statements of witnesses conversant with the

facts were recorded. Both the appellant and Const.Raj Kumar were

medically examined. After completion of investigation, a charge-sheet

was filed against the appellant for committing offences punishable under

Sections 379/386/411/506/186/353/307 and 25/27 Arms Act. The

appellant was charged under Section 186/394 read with Section 397 IPC

by an order dated 23.03.2002 and brought to trial. The prosecution

examined seven witnesses to establish his guilt. In 313 statement, the

appellant denied complicity in the crime and claimed that he was falsely

implicated in the case after he was lifted from Jwala Heri market where he

had gone to purchase some articles with his wife and was given beatings.

He examined DW-1 (Lajjo), his mother, in defence. On appreciating the

evidence and after considering the rival contentions of the parties, the

Trial Court by the impugned judgment convicted the appellant for the

offences mentioned previously. Being aggrieved, the appellant has come

in appeal.

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

examined the record. SI Dilip Kaushik lodged first information report

after recording Vivek statement (Ex.PW-1/A) by making endorsement

(Ex.PW-6/C) over it at 05.50 P.M. on 03.07.99. In the complaint, the

complainant gave detailed account of the occurrence and named Jagbir

@Jaggi for snatching an envelope containing `40,000/- from his

possession when he was putting it in the dickey of the scooter. He further

disclosed that he raised alarm and the appellant was chased by him and

public persons. Jagbir was arrested from inside the park and the stolen

cash was recovered from his possession. The accused had attempted to

inflict injuries to the public persons and caused stab wound on the left arm

of Const.Raj Kumar who with the aid of Const. Mukesh was able to

apprehend him. However, in the Court statement as PW-1, the

complainant did not subscribe to the version given to the police at the first

instance though he stood by the story of snatching of the cash `40,000/-

from his possession when he was keeping it in the dickey of the scooter.

He did not identify Jagbir @ Jaggi to be the assailant who had snatched

the envelope containing cash and from whom the stolen cash was

recovered. He was declared hostile and was cross-examined by learned

Additional Public Prosecutor after obtaining court's permission. In the

cross-examination also, nothing material could be elicited to establish the

identity of the appellant to have snatched the envelope containing cash

from him. He rather gave a conflicting statement that after the envelope

containing cash was snatched, he went to Mr.S.L.Banga, from whom he

had taken the cash, to inform him about the incident. Thereafter he saw a

crowd of people standing across his house. The police informed him that

they had recovered the cash from the individual who was in their custody.

The complainant, however, did not recognize the assailant who was in the

custody of the police that time. He further gave contradictory statement

that he was not able to see the individual who had snatched the envelope

containing `40,000/- when he was putting it in the dickey. The

complainant did not depose that the assailant was apprehended by the

police officials in his presence or that the envelope containing cash was

recovered from his possession. No ulterior motive was assigned to the

complainant who was the victim to resile from the statement (Ex.PW-1/A)

made to the police at the first instance. He disclosed that his statement

was recorded at the police station and the signatures were taken on various

documents there. He was not even aware if any knife was recovered from

the appellant's possession or he had injured Const. Raj Kumar with that

knife.

4. It is alleged that PW-4 (Const.Mukesh) and PW-5 (Const.Raj

Kumar) were able to apprehend and recover the stolen cash and knife

from the appellant. PW-4 (Const.Mukesh) and PW-5 (Const.Raj Kumar)

have supported the prosecution in this regard, however, they did not lodge

any report with the police for the alleged incident. PW-6 (SI Dilip

Kaushik) happened to reach at the spot all of a sudden and took the

investigation on his own and lodged first information report after

recording complainant's statement. Statements of PWs 4, 5 and 6 are full

of contradictions and no implicit reliance can be placed to establish the

guilt of the appellant beyond reasonable doubt. The appellant sustained

multiple injuries on his body and was taken to DDU hospital at 12.50

A.M. on the night intervening 3/4-07-1999. Allegedly the injuries were

inflicted to the appellant by public persons when they confronted him

inside the park to apprehend him. No explanation has been offered as to

why the appellant was taken to hospital for medical examination after an

inordinate delay at 12.15 A.M. No independent public witness was

associated during investigation. Name of the public persons who

allegedly gave beatings to the appellant never emerged. No action was

taken against any such individual who inflicted multiple injuries to the

appellant when he had not caused any harm to any such individual with

the knife allegedly in his possession. Const.Raj Kumar who allegedly

sustained injuries at the hands of the appellant in an attempt to apprehend

him was taken to DDU hospital at 01.35 A.M. in the night intervening

3/4-07-1999. Again no explanation has been given as to why Const.Raj

Kumar was taken for medical examined belatedly. PW-5 (Const.Raj

Kumar) has given contradictory version that he was taken to hospital soon

after the apprehension of the appellant and was medically examined at

10.00 P.M. Apparently Const. Raj Kumar was medically examined after

the medical examination of Jagbir @ Jaggi.

5. Recovery of stolen articles in the manner claimed by the

prosecution is suspect. PW-1 (Vivek-Complainant) did not support the

prosecution on this aspect and did not claim if any stolen cash was

recovered in his presence from the appellant. PW-4 (Const.Mukesh) and

PW-5 (Const.Raj Kumar) who allegedly apprehended the appellant and

recovered the bag containing the envelope having `40,000/- cash are not

witnesses to the seizure memo (Ex.PW-4/A). Their signatures also do not

find mention in Ex.PW-6/A (sketch of the knife), Ex.PW-6/B (seizure

memo of knife), Ex.PW-6/D (site plan) and Ex.PW-6/F (personal search

memo). The investigating officer did not explain as to why the signatures

of material witnesses (PWs 4 and 5), who had handed over the knife and

bag containing cash were not taken on the respective seizure memos.

PW-5 (Const.Raj Kumar) in examination-in-chief deposed that polythene

was not checked in his presence and he was unable to say as to what was

lying therein. He recollected subsequently that the polythene contained

currency notes but he was not aware as to the amount of cash. The lapses

in the investigation are writ large. The investigation officer did not

examine Mr.S.L.Banga to corroborate the testimony of PW-1 (Vivek).

6. The family members of the appellant sent telegrams to

various authorities for false implication of the appellant and a complaint

case was filed against police officials in which some of the police officials

have been summoned by the concerned Metropolitan Magistrate. The

revision petition against the summoning order is pending before the

Ld.Additional Sessions Judge. Since the matter is pending before the

competent court, no observation or comments are made about the merits

of the said proceedings in these proceedings. Though it is not believable

that the police officials would plant a huge recovery of `40,000/- cash

from their possession, nevertheless, the prosecution was unable to

establish its case beyond reasonable doubt and to prove and establish that

the cash was recovered from the possession of the appellant in the manner

and on the day and time alleged by it. It appears that the prosecution has

not presented true facts.

7. In the light of the above discussion, conviction and

sentence of the appellant cannot be sustained. The appeal is accepted.

Conviction and sentence awarded to him are set aside. Bail bonds and

surety bonds stand discharged. It is, however, made clear that the

observation in the judgment will have no impact on the complaint case

instituted by the appellant and the Trial Court will record its own findings

on merits.

8. Trial Court record be sent back forthwith.

(S.P.GARG) JUDGE January 24, 2014 sa