Allauddin vs State Nct Of Delhi
2014 Latest Caselaw 1203 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                    RESERVED ON : 25th February, 2014
                                    DECIDED ON : 6th March, 2014

+      CRL.A. 1038/2013

       ALLAUDDIN                                           ..... Appellant
                             Through : Ms.Arundhati Katju, Advocate.

                             Versus

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

+      CRL.A. 877/2011

       KULDEEP SINGH @ KALLI                     ..... Appellant
                    Through : Mr.B.S.Chaudhary with Mr.Anshul
                             Baranwal, Advocates.

                             Versus

       STATE                                             ..... Respondent
                             Through : Mr.Lovkesh Sawhney, APP.

+      CRL.A. 734/2013

       KULDEEP SINGH @ KALLI                    ..... Appellant
                    Through : Mr.B.S.Chaudhary with Mr.Anshul
                           Baranwal, Advocates.

                             Versus

       STATE                                             ..... Respondent
                             Through : Mr.Lovkesh Sawhney, APP.



Crl.A.No.1038/2013 & connected appeals                        Page 1 of 10
 +      CRL.A. 873/2011

       MAHENDER @ DHARMENDER                    ..... Appellant
                   Through : Mr.B.S.Chaudhary with Mr.Anshul
                            Baranwal, Advocates.

                             Versus

       STATE                                             ..... Respondent
                             Through : Mr.Lovkesh Sawhney, APP.

+      CRL.A. 793/2012

       TINKU @ DANISH                           ..... Appellant
                    Through : Mr.Ajay Verma, Advocate.

                             Versus

       STATE                                             ..... Respondent
                             Through : Mr.Lovkesh Sawhney, APP.

CORAM:
MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Challenge in these appeals is to a judgment dated 16.05.2011

of learned Additional Sessions Judge in Sessions Case No.1117/09 arising

out of FIR No.452/08 registered at Police Station Ashok Vihar by which

Allauddin (A-1) and Tinku @ Danish (A-4) were convicted under Section

392 IPC; Kuldeep Singh @ Kalli (A-2) and Mahender @ Dharmender

(A-3) were held guilty under Section 392 read with Section 397 IPC. By

an order on sentence dated 25.05.2011, A-1 and A-4 were awarded RI for

four years with fine `500/- each; and A-2 and A-3 were awarded RI for

seven years with fine `500/- each.

2. Allegations against the appellants were that on 29.10.2008 at

about 1.30 p.m., at Jhalkari Bai School (Sarvodya School) Wazipur, JJ

Colony, they in furtherance of common intention while armed with deadly

weapons committed robbery and deprived Ramesh `150/-; Rakesh `500/-

and mobile phone; Hira `60/-; and Mukesh `30/-. Daily Diary (DD)

No.19 (Ex.PW-2/A) was recorded at 01.50 p.m. on getting information

about the incident. Investigation was assigned to ASI Dev Raj who with

Ct.Surender went to the spot. The investigating officer recorded

Ramesh's statement (Ex.PW-3/A) and lodged First Information Report

under Section 392/34 IPC. Further case of the prosecution is that at the

pointing out of the complainant, A-1, A-2 and A-4 were arrested and part

of the robbed cash, mobile phone and knife were recovered from their

possession on the same day in the evening. On 04.11.2008, A-3 was

arrested. Statement of witnesses conversant with the facts were recorded.

After completion of investigation, a charge-sheet was submitted against

all the accused persons; they were duly charged and brought to trial. The

prosecution examined eight witnesses to substantiate the charge. In 313

statements, the accused persons denied their complicity in the crime;

pleaded false implication and examined DW-1 (Ramesh Kaur) in defence.

On appreciating the evidence and after considering the rival contentions of

the parties, the trial court, by the impugned judgment held them guilty for

committing offences mentioned previously. Being aggrieved and

dissatisfied, they have preferred the appeals.

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

examined the record. The police machinery was put into motion when

information about robbery incident was conveyed and DD No.19 (Ex.PW-

2/A) was recorded at Police Post JJ Colony, Wazipur at 1.50 p.m. on

25.10.2008 The DD does not record as to who was the informant. No

PCR official was examined to prove as to who had informed at 100 about

the occurrence. This DD records that five assailants had robbed cash from

labourers at pistol point. During investigation, this information was not

found correct. The prosecution case, as projected in the charge-sheet, was

that the assailants were four in number and two of them were armed with

knives and one had an iron rod. Complainant-Ramesh who had allegedly

made a call at 100 to PCR did not clarify as to why incorrect information

was conveyed to the police. The investigating officer also did not explain

the major variance in the two versions.

4. In statement (Ex.PW-3/A) given to the police at the first

instance, Ramesh revealed that the two assailants pointed knives at them

and commanded to hand over whatever they had. Due to fear, they stood

on one side and the assailant who was unarmed removed mobile from his

brother Rakesh and his companion took out `150/- from his pocket and

`500/- from the pocket of his brother Rakesh. The assailant who had

snatched mobile from Rakesh had a long scar/cut mark on cheek. He

further disclosed that when his brothers Mukesh and Hira came out of

their room, the assailant who had an iron rod took out cash from their

pockets. Thereafter, the four assailants fled the spot. The complainant in

its complaint did not describe broad features/description of the three

assailants. He also did not reveal as to what cash was taken out from Hira

and Mukesh. While appearing as PW-3, Ramesh made vital

improvements in his deposition and deposed that one of the assailants who

had a knife, put it on his stomach and threatened them to hand over all

their belongings and cash. He identified A-1 as the boy who snatched

mobile and money from him and his brother. He also recognized A-4 who

had a knife and had put it on his stomach. He identified A-3 the other

assailant who had a knife. He identified A-2 as the assailant who was

standing on one side and threatening them not to raise alarm. PW-3 did

not reveal if any of the assailants was armed with any iron rod. He did not

identify A-1 as the assailant who had an iron rod in his possession. He did

not specify as to which of the assailants had removed the mobile and cash

from each of them. He did not identify any specific assailant who had a

long cut mark on his cheek. In Court observation, A-1 was found to have

an old cut mark on the left side of his temple. In the statement

(Ex.PW3/A), Ramesh attributed specific role to the assailant (A-1) who

was unarmed and took out mobile from Rakesh. As per the prosecution,

A-1 was armed with an iron rod. So there was mis-match in the testimony

of the witnesses as to which of the assailants had snatched mobile phone

from Rakesh. PW-4 (Rakesh) has given inconsistent and conflicting

statement. He identified A-2 to be the assailant who had a knife and

accused A-4 for snatching the mobile. He deposed that A-1 was having an

iron rod. He did not assign any role to A-3 in the incident. He did not

depose if he had a knife in his possession or had extended threats to them.

PW-4 is silent as to which of the assailants had taken out the robbed

articles from them. He deposed that the person who was without any

weapon snatched his mobile. He further deposed that one of the boys, who

had a knife, put it on his back. He did not elaborate as to who had

snatched cash from Hira and Mukesh. Apparently, the version narrated by

this witness is inconsistent with the one given by PW-3 (Ramesh).

5. PW-5 (Hira Lal) merely deposed that the assailant who was

without any weapon took out `60/- from his pocket and snatched mobile

from the hand of Rakesh. He was unable to tell as to what amount was

taken out from the pocket of his brother Ramesh. He was unable to depose

as to which of the assailants had which weapon. He identified all the

assailants by face and deposed that they were the persons who snatched

money and mobile on the point of knives and iron rods. The prosecution

did not examine other eye-witness/victim Mukesh. It is stated that he was

not traceable. Since Mukesh was related to PW-2 and others, there was

no question of his being untraceable. Adverse inference is to be drawn

against the prosecution for withholding Mukesh.

6. The prosecution witnesses have given divergent version

about the identity of the appellants. None of the appellants was

apprehended at the spot. The prosecution case is that PW-6 (HC Shish

Ram) was aware of a ruffian (A-1) in the vicinity who had cut mark on his

'face'. On that, the police team went to the house of A-1 but he was not

found there. The police on the basis of secret information went to Tikona

Park and apprehended A-1, A-2 and A-4 at the pointing out of the

complainant. The fourth one had allegedly gone to fetch liquor. On

search, a mobile and cash `180/- from A-4, `210/- and a dagger from A-2

and `100/- from A-1 were recovered. A-1 also recovered a 'rod' from the

nearby bushes. PW-3 (Ramesh) did not subscribe to the prosecution

story. None of the assailants was found to have any cut mark on 'cheek'.

He deposed apprehension of only two boys on that day i.e. A-1 and A-4

and recovery of mobile from A-4 and an iron rod from A-1. He did not

claim if A-1, pursuant to his disclosure statement, recovered the iron rod

from the bushes. He was not aware from which of the accused, what

amount of cash was recovered. He did not testify about the apprehension

of A-2 and recovery of any robbed article from his possession. PW-3 did

not claim if PW-4 was also with them at the time of apprehension of the

assailants. PW-4 (Rakesh), in his examination-in-chief, did not claim if

any of the assailants was arrested in his presence or any robbed article or

crime weapon was recovered from their possession. He merely stated that

three persons were arrested by the police and the fourth was arrested later

on without revealing as to when any one of them was apprehend. He also

did not state if any robbed article from any of the assailants was recovered

in his presence. PW-5 (Hira Lal) is silent regarding the apprehension of

the appellants and recoveries effected from them.

7. A-3 was allegedly arrested on 04.11.2008 at the pointing out

of the complainant-Ramesh. However, Ramesh did not claim if A-3 was

arrested on his pointing out. Identity of these assailants was not known to

the victims and they were not apprehended at the spot. The investigating

officer did not move any application for conducting Test Identification

Proceedings. Nothing was recovered from the possession of A-3 on his

apprehension. Though two of the assailants were alleged to be in

possession of knives, but only one knife was allegedly recovered from one

of the assailants. A-2 who had no arm at the time of occurrence, was

allegedly found in possession of a knife on the same day at the time of his

apprehension. The investigating officer did not collect proof of ownership

of the mobile. No call details were collected. Complainant alleged that

he had made a telephone call at 100 from his mobile. The other mobile in

possession of the complainant was not robbed. DD No.19 does not reveal

if the information was conveyed to PCR through this mobile. No such

mobile number has been disclosed. There was no specific mark of

identification on the currency notes.

8. In view of the major discrepancies, inconsistencies and

improvements noted above, conviction of the appellants under Section

392/397 IPC cannot be sustained. Though PWs 3, 4, and 5, being

labourers, had no ulterior motive to falsely implicate the accused persons,

it appears that they have not presented true facts. Lapses on the part of the

investigating officer are apparent and no independent public witness was

associated at any stage of the investigation.

9. In the light of the above discussion, the appeals are accepted.

Benefit of doubt is given to the appellants and they are acquitted; their

conviction and sentence are set aside. The appellants, who are in jail, be

set at liberty forthwith, if not required to be detained in any other case.

10. 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 March 06, 2014 sa