Mohd.Adil vs State Govt. Of Nct Of Delhi
2014 Latest Caselaw 3340 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                               RESERVED ON : JULY 08, 2014
                               DECIDED ON : JULY 25, 2014

+                         CRL.A. 1462/2011

       MOHD.ADIL                                         ..... Appellant

                          Through : Ms.Rakhi Dubey, Advocate.

                          VERSUS

       STATE GOVT. OF NCT OF DELHI                       ..... Respondent

                          Through : Mr.M.N.Dudeja, APP for the State.

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

S.P.GARG, J.

1. The appellant-Mohd.Adil assails a judgment dated

19.08.2011 of learned Additional Sessions Judge in Sessions Case

No.19/11 arising out of FIR No.262/2007 registered at Police Station

Welcome by which he was convicted under Sections 392/397 IPC and 25

Arms Act. Allegations against the appellant were that he and his associate

Gulfan @ Gukran (since acquitted) robbed complainant-Anand @ Sonu

on 16.04.2007 at about 07.00 p.m. near metro station wall, Welcome of

his mobile phone Tata Indicom at knife point. It appears that after

investigation, a charge-sheet was submitted against Mohd.Adil and Gulfan

@ Gukran. During the pendency of the trial Adil absconded and was

declared Proclaimed Offender. The trial against Gulfan @ Gukran

resulted in his acquittal. It is relevant to note that the State did not

challenge Gulfan's acquittal. After Adil's arrest, a supplementary charge-

sheet was filed against him. The prosecution examined seven witnesses to

establish his complicity in the crime. In 313 statement, the appellant

denied his involvement in the crime and pleaded false implication. He

examined DW-1 (Zameel Ahmed) and DW-2 (Wasim) in defence.

2. At the outset, it may be mentioned that the Trial Court record

does not contain the original memos/documents/exhibits. In the absence

of original record, the court is not in a position to appreciate the

statements of witnesses recorded during trial effectively.

3. Admittedly, despite Adil's apprehension at the spot soon

after the incident, the robbed article i.e.mobile was not recovered from his

possession. PW-1 Anand @ Sonu-complainant disclosed that Adil had

robbed his mobile phone at knife point. The other assailant wearing

helmet continued to sit on a motorcycle. When he raised alarm after the

incident of robbery, the assailant sitting on the motorcycle fled the spot

and Adil was apprehended by the police official who happened to arrive

there on motorcycle. No number of the motorcycle was revealed by the

complainant. Even after apprehension of Gulfan @ Gukran, no

motorcycle was recovered in his possession. Even robbed article

i.e.mobile was not found in his possession. Gulfan @ Gukran was

acquitted as the complainant was unable to identify him. Conflicting

version has been given by the prosecution witnesses regarding the

circumstances in which the appellant was arrested. PW-3 (Rajeev

Vashishth) claimed himself to be on duty at Keshav Chowk Red Light,

GT Road when about 07.00 p.m. the complainant met him and told him

about the robbery incident. PW-1 (Anand @ Sonu) did not claim if he

had gone to PW-3 (Rajeev Vashishth) to complain about the incident of

robbery. His plea from the inception was that at the place of occurrence,

his alarm attracted the attention of a police man who was crossing the

road on a motor-cycle along with the other public person. No such other

public person has been examined. The complainant did not state if the

present appellant after snatching the mobile phone from him had handed

over it to his associate on the motorcycle. It has come on record that the

prosecution witnesses have given divergent statements regarding the

recovery of knife. It is unbelievable that after alarm being raised, the

appellant would not hand over the knife to his associate or he himself

would not sit on the motorcycle to escape from the spot. It appears that

the prosecution witnesses have not presented true facts. It is unclear if

'pujari' of the temple was called at the spot as there is different version

narrated by PW-2 (HC Satender Pal) and PW-3 (Rajeev Vashishth) in this

regard.

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

appellant cannot be sustained particularly when the original

memos/exhibits are not on record. The appellant deserves benefit of

doubt and is acquitted. The appeal is accordingly allowed. The appellant

be released forthwith if not required to be detained in any other case.

Copy of this order be sent to the concerned Jail Superintendent for

information and necessary action. Trial court record be sent back along

with a copy of this order.

(S.P.GARG) JUDGE JULY 25, 2014 sa