Shamshad vs The State (Nct Of Delhi)
2014 Latest Caselaw 1155 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                     RESERVED ON : 3rd MARCH, 2014
                                     DECIDED ON : 4th MARCH, 2014

+                           CRL.A. 331/2011
       SHAMSHAD                                          ..... Appellant
                            Through :   Mr.Himal Akhtar, Advocate.

                            versus

       THE STATE (NCT OF DELHI)                ..... Respondent
                     Through : Mr.M.N.Dudeja, APP.
AND
+                    CRL.A. 724/2011 & CRL.M.B. 72/2014
       SHAKEEL AHMAD                                     ..... Appellant
                            Through :   None.

                            versus

       STATE                                            ..... Respondent
                            Through :   Mr.M.N.Dudeja, APP.

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

S.P.GARG, J.

1. Shaqueel @ Mulla, Shamshad, Imran and Bhuran were

arrested in case FIR No. 580/2004 PS Sarai Rohilla and sent for trial

alleging that on 22.10.2004 at 06.30 P.M. they in furtherance of common

intention with their associate Rashid (Proclaimed Offender) committed

dacoity at house No. A-175, Shashtri Nagar, Delhi and deprived the

complainant - Kamlesh of ` 2.5 lacs, gold bangles, gold rings and gold

chain. Daily Diary (DD) No.20 A (Ex.PW-4/A) was recorded at PS Sarai

Rohilla on 22.10.2004 at 19.32 hours on getting information of the

dacoity. The investigation was assigned to SI Rajender Singh Khatri who

with Const. Devender Kumar went to the spot. After recording Kamlesh's

statement (Ex.PW-2/A), he lodged First Information Report. The

investigation was taken over by SI Arvind Pratap Singh on 07.11.2004.

Efforts were made to find out the assailants but in vain. On 23.11.2004, on

the basis of secret information, Imran and Shamshad were arrested and

from their possession one country-made katta and two cartridges, each,

were recovered for which separate cases under the Arms Act were

registered. It is alleged that pursuant to their disclosure statements,

involvement of Shaqueel @ Mulla, Rashid and Bhuran surfaced.

Shamshad recovered ` 7,000/- from his house No. A-23, Shashtri Nagar;

Imran recovered ` 10,000/- from Shamshad's shop. Shaqueel recovered

`58,000/- from the almirah in his house. He did not participate in the Test

Identification Parade. Statements of the witnesses conversant with the

facts were recorded. After completion of investigation, Shamshad, Imran

and Shaqueel were charged and brought to trial. Bhuran and Rashid were

declared Proclaimed Offenders. The prosecution examined twelve

witnesses. In 313 statements, the accused persons pleaded false

implication and denied their complicity in the crime. On appreciating the

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

Trial Court, by the impugned judgment convicted Imran, Shaqueel and

Shamshad under Sections 395/397 IPC and sentenced them for various

prison terms.

2. It is relevant to note that Imran had filed Crl.A.No.

1286/2011 decided by this Court on 28.02.2013. Detailed reasons were

noted for Imran's acquittal in the said appeal. The prosecution version

regarding apprehension of Imran and Shamshad on 23.11.2004 and

recoveries effected at their instance was not accepted. Number of other

discrepancies and inconsistencies were referred in the judgment to set

aside the conviction and sentence of the appellant - Imran therein. Case

of the present appellants - Shaqueel and Shamshad stands on same

footing. The prosecution witnesses have given divergent version about the

arrest of Shaqueel and Shamshad. Learned Addl. Public Prosecutor urged

that ` 58,000/- were recovered from the possession of Shaqueel and he

also declined to participate in the Test Identification Proceedings. These

circumstances, in my view, are not sufficient to base conviction. It is

alleged that ` 58,000/- were recovered when co-accused Imran led the

police team to X-40, Gali Peepalwali, Welcome. There was a tailoring

workshop on the ground floor. Imran pointed out towards Shaqueel as his

associate in the robbery. Shaqueel was arrested by arrest memo (Ex.PW-

3/F) and disclosure statement (Ex.PW-5/H) was recorded. He recovered

one polythene containing cash ` 58,000/- from the fourth floor of his

house. It is alleged that PW-2 (Kamlesh) and PW-3 (Sanjay Goyal) were

with the police at that time. PW-2 (Kamlesh) and PW-3 (Sanjay Goyal)

have given entirely conflicting statement about the arrest and recoveries

effected at the instance of the accused persons. The reasons given for

acquittal in Crl.A.No. 1286/2011 pertaining to Imran are equally

applicable to Shaqueel and Shamshad. Detailed reasons are not required to

be given and repeated in these appeals.

3. In the light of reasoning given in Crl.A.No. 1286/2011, the

conviction and sentence of the appellants - Shakeel and Shamshad cannot

be sustained. They deserve benefit of doubt. The appeals are accepted and

they are acquitted. They be set at liberty forthwith if not required to be

detained in any other case. Pending application also stands disposed of

being infructuous. Trial Court record be sent back forthwith with the copy

of the order. A copy of the order be sent to the Superintendent Jail for

information.

(S.P.GARG) JUDGE MARCH 04, 2014/tr