Akram @ Babu Musahid @ Ali vs The State (Govt. Of Nct Of Delhi)
2014 Latest Caselaw 1302 Del

$~R-10
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                   Date of Decision: 11.03.2014

+                              CRL. A.202of 2013

AKRAM @ BABU MUSAHID @ ALI                   ..... Appellant
            Through: Mr. Jivesh Tiwari & Ms. Suman Chauhan,
                     Advs.

                                        versus

THE STATE (GOVT. OF NCT OF DELHI)                 ..... Respondent
              Through: Mr. Feroz Khan Ghazi, APP with
                         S.I. Shiv Kumar, P.S. Krishna Nagar.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

                                       JUDGEMENT

V.K. JAIN, J. (Oral)

On 7.2.2011, S.I. Praveen, on receipt of a copy of DD No.67B went to

Shamarth Medicos near Khandelwal Hospital where he came to know that

two persons in injured condition had been taken to Hedgewar Hospital.

When he reached the aforesaid hospital, he found Deepak and Rajiv

admitted there. He recorded the statement of Deepak in the Hospital.

Deepak inter alia told him that on the aforesaid date, at about 10:40 p.m., he

was present at his medical store at B-17, East Krishna Nagar and was

engaged in calculating his sale when a boy aged about 20-25 years came to

his shop and gave a blow on his head, as a result of which he fell along with

the stool. The aforesaid boy intimidated him with a pistol and took him to

the rear portion of the shop. In the meanwhile another boy of the same age

came inside the shop. He had covered his face with a handkerchief.

However, while speaking, his handkerchief somewhat slipped downwards as

a result of which the complainant was able to identify him. He claimed that

he had seen the aforesaid boy visiting the restaurant above his shop a

number of times. He further alleged that the boy who entered the shop first

started searching his cash box whereas the boy who entered later searched

his purse and took out Rs.5,000/- and a mobile phone from it. In the

meanwhile his friends Rajiv @ Bunty came to the shop to take medicine.

He, however, was beaten by the aforesaid two boys. He also was taken to

the rear portion of the shop and was robbed of his purse containing cash as

well as of his mobile phone. Threatening to shoot, both the intruders left the

shop along with cash amounting to Rs.60,000-62,000/- and three mobile

phones. He also stated that he would find out about the boy whom he had

earlier seen a number of times and inform the Investigating Officer.

2. On 10.4.2011, an information was received that Ravi @ Munna S/o

Shri Suresh, who had been arrested in a case registered vide FIR No.73/11

of Police Station Krishna Nagar had confessed to his involvement in the

aforesaid robbery. Ravi @ Munna thereupon was arrested in this case and

his police remand was obtained. He disclosed involvement of Karan who at

that time was lodged in Surat Jail and Akram in the aforesaid robbery. On

30.5.2011, Karan was formally arrested after taking permission of the Court

and an application was made for holding his TIP. Karan was identified by

the complainant during TIP. He, however, was declared a juvenile. The

appellant Akram was arrested by the staff of Police Station Jagat Puri and

thereafter he was formally arrested in this case with the permission of the

Court. He refused to join TIP on 9.1.2012. Thereafter he was seen by the

complainant Deepak in the Court and was identified by him.

3. The appellant was charged under Section 382/34 of IPC read with

Section 397 thereof as well as under Section 394/34 of IPC. Since he

pleaded not guilty to the charge, eight (8) witnesses were examined by the

prosecution.

4. The complainant Deepak came in the witness box as PW1 and inter

alia stated that on 7.2.2011, when he was present at his shop sitting on his

stool and checking his accounts, one person entered his shop, showed a

pistol to him and asked him to get up. While he was getting up, the

aforesaid person hit him on the head, using the butt of the pistol for the

purpose as a result of which he fell down. He further stated that the

aforesaid person was followed by another person who had muffled his face

with a handkerchief. The second person pulled down the shutter of the shop

and thereafter both of them took him to the back of the shop where the

person in muffled face gave beatings to him and took out his purse

containing Rs.5,000/- and a mobile phone. The other boy went to the

counter and took out Rs.60,000-65,000/- besides two (2) mobile phones

lying in the said safe. According to the witness in the meanwhile his

neighbour Rajiv @ Bunty came to his shop and asked the boy who had

taken out money from the locker to call him. That boy asked his associate to

send the complainant since his friend had come. Thereafter he brought

Rajiv also inside and gave beatings to him. They took out Rs.25,000/- and

mobile phone from Rajiv. They also asked him to hand over whatever cash

he had and threatened to shoot him in case he did not do so. He also stated

that the when boy who had muffled his face was trying to put cartridge in his

pistol, the cartridge fell down and when he tried to lift the cartridge, the

handkerchief came down up to his chin and his face was seen by him. The

complainant claimed that he had seen that boy visiting the wine shop a

number of times. However, he did not identify the accused persons and

claimed that they were not present in the court. This witness was cross-

examined by the learned Additional PP and during cross-examination he

denied the suggestion that accused present in the court was one of the

persons who had come to his shop with open face and had hit him with the

butt of a pistol. He also denied having identified him at Karkardooma

Courts Complex on 17.1.2012.

5. PW2 Rajiv is the other eye-witness in this case. He inter alia stated

that on 7.2.2011, at about 10:30 p.m. when he went to the shop of Deepak to

buy medicine, he found one boy who had covered his face with handkerchief

standing at the door of the shop of Deepak. He asked him to call the person

inside. However, one of them put a pistol on his side and the other put a

pistol, on his head. He also was taken inside the store and was hit with the

butt of the pistol on his head. Those boys snatched his purse containing

Rs.24,000-25,000/- as well as his mobile phone. While leaving, they

threatened to kill in case either of them dared to come out. He further stated

that after 5-10 minutes they came out and went to Khandelwal Hospital from

where they informed Police Control Room. The witness claimed that he had

seen the face of both the assailants. According to him he could see the face

of the boy who had muffled his face, at the time he was trying to lift the

cartridge which had fallen down. He identified the appellant Akram as the

person who had not covered his face.

6. PW6 Dr. Abhishek, proved the MLC of PW1 & PW2 as Ex.PW6/A

and Ex.PW6/B respectively.

PW8 Shri J.P. Nahar, was posted as the Metropolitan Magistrate on

5.1.2012, when the application for holding TIP of the appellant Akram was

marked to him. According to him he reached the Central Jail on 9.1.2012,

where the appellant Akram was produced before him. He was identified by

the Assistant Jail Superintendent. Akram, however, refused to participate in

the TIP despite the warning given to him.

7. In his statement under Section 313 of Cr.P.C, the appellant denied the

allegations against him and claimed to be innocent.

8. Vide impugned judgement dated 4.1.2013, the appellant was

convicted under Section 394/34 of IPC read with Section 397 thereof and

vide Order on Sentence dated 07.01.2013, he was sentenced to undergo RI

for seven (7) years and to pay fine of Rs.5,000/- or to undergo RI for one (1)

year in default. Being aggrieved from his conviction & the sentence

awarded to him, the appellant is before this Court by way of present appeal.

9. A perusal of the deposition of PW1 Deepak would show that

according to him the appellant before this Court was not one of the boys

who were involved in the robbery. He was categorical during his

examination in the Court that both the boys who entered his shop were not

the person in the court. This is not as if he expressed his inability to identify

the accused on account of passage of time. He altogether ruled out the

possibility of the appellant Akram being one of the boys who had committed

robbery in his shop. Though PW2 Rajiv identified the appellant as the boy

who had not muffled his face with a handkerchief, considering the emphatic

deposition of the complainant, ruling out the possibility of the appellant

being one of the boys who had entered his shop and committed robbery, it

would not be safe to maintain conviction of the appellant on the basis of

identification by PW2 alone, when there is no corroborative evidence in the

form of recovery of a stolen article from him. It would be pertinent to note

here that it was the complainant who first came across the boy who had not

muffled his face. Therefore, the complainant could not have committed

mistake in identifying that boy. In any case, if a doubt has arisen with

respect to the identity of the accused on account of contradictory depositions

made by PW1 and PW2, the benefit needs to be extended to the accused, the

legal position being that the onus lies on the prosecution to prove the guilt

attributed to the accused beyond reasonable doubt.

10. For the reasons stated hereinabove, the appellant Akram is hereby

given the benefit of doubt and is accordingly acquitted.

The appeal stands disposed of accordingly.

One copy of this order be sent to the concerned Jail Superintendent

for information and necessary action.

LCR be sent back along with a copy of this order.

MARCH 11, 2014                                              V.K. JAIN, J.
b'nesh