Mohd. Samim vs The State (Govt. Of Nct) Delhi
2014 Latest Caselaw 1114 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : 13th FEBRUARY, 2014
                             DECIDED ON : 3rd MARCH, 2014

+                         CRL.A. 525/2012

       MOHD. SAMIM                                        ..... Appellant

                          Through :    Mr.Deepak Vohra, Advocate.


                          Versus



       THE STATE (GOVT. OF NCT) DELHI                     ..... Respondent

                          Through :    Mr.Lovkesh Sawhney, APP.


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

S.P.GARG, J.

1. Challenge in this appeal is to a judgment dated 25.08.2011 of

learned Addl. Sessions Judge in Sessions Case No. 19/10 arising out of

FIR No. 365/08 PS Patel Nagar by which the appellant - Mohd. Samim

was held guilty for committing offences punishable under Sections

394/397/34 IPC and 27 Arms Act. By an order dated 27.08.2011, he was

awarded RI for seven years under Section 397 IPC; RI for seven years

with fine ` 1,000/- under Section 394 IPC and RI for four years with fine

` 500/- under Section 27 Arms Act. All these sentences were to operate

concurrently.

2. The prosecution case as projected in the charge-sheet was

that on 03.09.2008 at about 07.15 A.M. at house no. C-5, DDA Flat, New

Ranjit Nagar, Delhi, the appellant in furtherance of common intention

with his associates (since absconding) robbed Payal, Nitu and Ram

Narayan and deprived them of ` 40,000/-, jewellery articles, mobile

phones. It was further alleged that while committing robbery, the

appellant and his associates were armed with 'deadly' weapons and they

inflicted injuries to Ram Narayan. Police came into motion when

information about a 'quarrel' was conveyed and Daily Diary (DD) No. 9

(Ex.PW-11/A) was recorded at 07.52 A.M. at PP New Ranjit Nagar. The

investigation was assigned to HC Sansar Pal. The Investigating Officer,

after recording Nitu's statement (Ex.PW-3/A), lodged First Information

Report. Statements of the witnesses conversant with the facts were

recorded. During investigation, exhibits were sent to Forensic Science

Laboratory for examination. After completion of investigation, a charge-

sheet was filed against the appellant - Mohd. Samim; he was duly charged

and brought to trial. The prosecution examined twelve witnesses to

establish his guilt. In 313 statement, the accused denied his complicity in

the crime and pleaded false implication. He further stated that when he

had gone to the complainant to demand ` 3,000/- for the white-wash done

by him; he was beaten and falsely implicated. He, however, did not prefer

to lead any evidence in defence. Being aggrieved and dissatisfied, the

appeal has been preferred.

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

examined the record. It is relevant to note that the investigation agency

during investigation was unable to identify and arrest the alleged

associates of the appellant who had joined him for committing robbery.

The police did not establish the 'particulars' of the said assailants. The

complainant and other eye witnesses relied upon by the prosecution did

not give their broad features / description. No investigation was carried

out as to how and since when, the appellant was in association with those

assailants and from where they had procured the 'deadly' weapons. Only

the appellant was apprehended at the spot. No robbed article was

recovered from his possession. At the time of his apprehension, he was

also not in possession of any 'deadly' weapon. It has come on record that

he had sustained injuries on his body; was taken to DDU hospital at

around 08.46 A.M. and was medically examined vide MLC (Ex.PW-7/A).

It is not clear as to who had taken him to the Emergency Department,

DDU hospital as the name of said person does not find mention therein.

Nature of injuries sustained by him was ascertained 'simple' caused by

blunt object. Daily Diary (DD) No. 9 (Ex.PW-11/A) recorded at 07.52

A.M. pertains to a 'quarrel' at C-5, DDA Flat, New Ranjit Nagar, Delhi.

The prosecution did not examine PCR officials to find out as to when the

PCR van arrived at the spot and the patient was taken to DDU hospital.

PW-11 (HC Sansar Pal) deposed that the injured was shifted to hospital by

PCR van along with Const. Promod. The prosecution did not, however,

examine Const. Promod and his name does not find mention in the MLC.

PW-12 (Insp.Babu Lal) claimed that on receipt of DD No. 9 (Ex.PW-

11/A) he along with HC Sansar Pal and Const. Promod went to the spot.

He, however, did not mention if the injured was found present at the spot.

Contrary to that, he deposed that the assailant who had sustained injuries

had already been taken to DDU hospital by PCR. Apparently, the police

officials have not given correct version as to when and by whom the

appellant was taken to DDU hospital. It belies the statement of the

complainant that the injured was handed over to the police on their arrival.

4. The appellant's conviction is based upon the ocular

testimonies of PW-3 (Nitu), PW-4 (Payal) and PW-8 (Ram Narayan) who

are all interested witnesses. No independent public witness was associated

at any stage of the investigation. It is alleged that the appellant was given

beatings by the public. However, no such public witness who had

allegedly given beatings was joined in the investigation. All these

witnesses have given entirely inconsistent and contradictory statements

regarding the circumstances leading to the occurrence. PW-3 (Nitu) did

not claim if the appellant had fired any shot from the country-made pistol

during the incident. PW-4 (Payal) in her deposition before the Court

deposed that the assailants had fired thrice. In the cross-examination also

she reiterated that the appellant had fired from the pistol and it missed.

PW-8 (Ram Narayan) was silent if any bullet was fired by any of the

assailants. He further stated that the appellant did not 'use' the pistol

during the incident. The Investigating Officer did not find any fired or

empty cartridge at the spot. It is unclear as to at which of the inmate the

fire shot was aimed at. The prosecution witnesses have given inconsistent

statements regarding the presence of Khushi in the house at the time of

occurrence. PW-3 (Nitu) and PW-4 (Payal) claimed that at the time of

occurrence Khushi had gone to take clothes from the washer man.

However, PW-8 (Ram Narayan) admitted in the cross-examination that at

the time of incident Payal, Nitu and Khushi were present in the house.

They all saw him being hit by a hammer. The prosecution though cited

Khushi as a witness did not examine her during trial. No reasons have

been offered for withholding this crucial witness. In the complaint

(Ex.PW-3/A), Nitu disclosed that ` 40,000/- allegedly robbed belonged to

Khushi. She further disclosed that Khushi would be in a position to

disclose the details of the articles robbed from the almirah. Adverse

inference is to be drawn against the prosecution for withholding Khushi.

The prosecution did not collect any evidence during investigation to show

ownership of the mobile phones allegedly robbed from the victims. No

call details of the phones were collected. Khushi was not examined to

prove that ` 40,000/- belonged to her.

5. PW-8 (Ram Narayan) is alleged to have suffered injuries

during the incident. However, MLC (Ex.PW-6/A) reveals that he was

taken to DDU hospital at 07.10 P.M. The Investigating Officer did not

explain the inordinate delay in taking the injured Ram Narayan Chauhan

to the hospital. He did not get any serious injury. Only bruises over right

shoulder were found. It belies the statement of PW-8 (Ram Narayan) that

the assailants had hit him by a hammer. He did not elaborate as to on

which body part, he was inflicted hammer blow. In the cross-examination,

he was unable to disclose as to when he was taken to the hospital. His

statement that he was medically examined at 03.00 or 04.00 P.M. is at

variance with MLC (Ex.PW-6/A). It is mystery why PCR officials did not

shift him to hospital along with the appellant.

6. There are vital discrepancies in the statements of the

prosecution witnesses as to the exact role played by the each assailant.

PW-3 (Nitu) deposed that when the three assailants entered the house she

asked them to go out. On that, one boy identified as Mohd. Shamim took

out her mobile and purse containing ` 1,500/-. She did not depose if the

appellant was armed with any weapon at that time or had commanded her

to hand over the mobile and the purse containing cash. She further

deposed that the appellant thereafter put pistol / katta on the right side of

her temple. The other two associates took out two long knives. One of

them put the knife at Payal and removed her neck chain, tops and mobile.

The other took out ` 40,000/- from the dressing table. The appellant asked

her to hand over the key of the almirah and threatening to shot if she

raised alarm. The appellant gave her 'fist' blow on her refusal to give key.

She was not aware as to what articles were removed from the almirah. In

the meantime, Ram Narayan came to the flat and the accused persons

gave beatings to him and snatched his mobile phone. PW-4 (Payal) gave

entirely inconsistent version and stated that when the three assailants

entered the house, one of them took out a katta; put it on her neck and

removed her gold jhumki, gold chain, mobile phone and purse containing

` 40,000/- lying on the bed. She did not identify the appellant as the

assailant who put knife upon her to remove her neck chain, tops and

mobile. She further elaborated that the two boys were also having knives

in their hands and they all gave beatings to them and fired thrice.

Thereafter, they took them in another room; they were made to sit there

and while going outside, they tried to bolt the door. She was silent if any

article was robbed from Ram Narayan or Nitu. She was declared hostile

and was cross-examined by the learned Addl. Public Prosecutor after

Court's permission. Only in the cross-examination, the witness admitted

the suggestions put to him by the prosecutor. In the cross-examination,

she was unable to tell as to when the police arrived the spot; who had

informed them and where the memos were arrived. She was also unable to

disclose the names of the public persons who had arrived at the spot. PW-

8 (Ram Narayan) did not claim his presence at the spot when the articles

were taken out from Payal and Nitu. He deposed that when he entered the

room, an individual breaking the almirah by a hammer attacked him and

asked for its key. He did not depose if any article was robbed or snatched

by any of the assailants in his presence. He also did not depose if the

public had arrived at the spot and had given beatings to the appellant. On

scrutinising testimonies of these witnesses relied upon by the prosecution,

apparently they have given entirely conflicting version about the incident.

It was not the case of the prosecution that after his apprehension, the

appellant had consumed some poisonous substance. PW-4 (Payal)

disclosed that after the accused was beaten by the neighbours, he took out

something from his pocket, consumed it and became unconscious. The

prosecution version that the complainant Nitu had caused a fist blow /

danda blow on the head of the victim inspires no confidence. The

assailants who were allegedly armed with various deadly weapons were

not expected not to resist the attack. None of the inmates was injured with

any such 'deadly' weapon. In the disclosure statement (Ex.PW-11/A), it

was recorded that the accused used to earn his livelihood by white

washing. The Investigating Officer did not verify the antecedents of the

appellant. Categorical defence was taken by the appellant in 313 statement

that on that day he had gone to the house of the complainant to demand `

3,000/- which he were to take for the job of painting / white wash done by

him in 2008. He was hit by danda on the back of his head and became

unconscious. The defence seems probable.

7. In the light of major discrepancies and conflicting statements,

the eye witness account given by PWs, does not inspire confidence. It

appears that they have not given or presented true facts. The investigation

conducted by the Investigating Officer is highly unfair. Earlier the

investigation was assigned to HC Sansar Pal as recorded in DD No.9

(Ex.PW-11/A). It appears that subsequently in the end to cover up the

lapses, it was mentioned that SI Babu Lal also went to the spot. There is

no mention if investigation was assigned to him. PW-11 (HC Sansar Pal)

and PW-12 (Insp.Babu Lal) have given different version if they all had

gone to the spot together.

8. In the light of above discussion, the appeal is accepted.

Conviction and sentence of the appellant are set aside. The appellant shall

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

Trial Court record be sent back forthwith with the copy of the order.

(S.P.GARG) JUDGE MARCH 03, 2014/tr