Mohammed Ehsan vs State Of Delhi
2014 Latest Caselaw 1331 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                               Date of Decision: 12.03.2014

+                         CRL. A.1273/2010

MOHAMMED EHSAN                                           ..... Appellant
           Through:             Mr. K. Singhal, Mr. Jitender Sethi &
                                Mr. H. Jailiya, Advs.

                                   versus

STATE OF DELHI                                            ..... Respondent
              Through:          Mr. Feroz Khan Ghazi, APP with
                                S.I. Sunil Kumar, P.S. Tilak Marg.
CORAM:
HON'BLE MR. JUSTICE V.K. JAIN

                                  JUDGEMENT

V.K. JAIN, J. (ORAL)

On 8.10.2008, at about 10:40 p.m, Police Control Room was informed

through mobile No.9211389388 that 5-6 boys had robbed the informant of

his mobile phone and Rs.1,000/- in cash near India Gate Park, after putting a

knife on his neck. The information, when conveyed to Police Station Tilak

Marg, was recorded vide DD No.31A, a copy of which was given to S.I.

Mukhtar Singh for investigation. The Investigation Officer, reached the spot

where the complainant Rakesh Kumar was present. He alleged that on that

day at about 10:30 p.m., when he was returning home after taking a walk at

India Gate, four (4) young boys all of a sudden came in front of him in the

Inner Circle, opposite K.G. Marg and obstructed his way. One of them

caught hold of him from behind, whereas the other took out a knife and put

it on his neck, simultaneously asking him to take out whatever he had and

threatening to kill him in case he did not comply. The remaining two (2)

boys caught both his hands and one of them took out one (1) mobile phone

and Rs.1,000/- in cash from his pocket besides one challan slip issued by

MCD. The boys then fled from the spot after threatening to kill the

complainant in case he raised alarm. However, one of the boys who had

fled towards Shahjahan Road was caught by the Beat Constable when alarm

was raised by the complainant. On search of the aforesaid boy one knife

was recovered from his pocket. The name of the boys, who was caught on

the spot was later found to be Mohd. Ehsan son of Mohd. Yusuf.

2. This also the case of the prosecution that on being pointed out by

Mohd. Ehsan, his three (3) associates, namely, Mohd. Anwar, Mohd. Jabir

and Shahnawaz, were arrested and Rs.1,000/- in cash besides black purse of

the complainant were recovered from Shahnawaz.

3. Charge under Section 392 of IPC read with Section 34 thereof was

framed against all the four (4) accused, namely Mohd. Ehsan, Mohd. Anwar,

Mohd. Jabir and Shahnawaz, to which they pleaded not guilty and claimed

trial. The appellant Mohd. Ehsan was separately charged under Section 392

of the Indian Penal Code read with Section 397 thereof for using a knife

during the commission of the robbery. He was also charged under Section

25 of the Arms Act. The appellant as well as his co-accused having pleaded

not guilty, as many as twelve (12) witnesses were examined by the

prosecution. Four (4) witnesses were examined in defence.

4. Vide impugned judgement dated 24.4.2010, all the accused were

convicted under Section 392/34 of IPC whereas the appellant Mohd. Ehsan

was also convicted under Section 392 read with Section 397 of the Penal

Code. Vide impugned Order on Sentence dated 14.7.2010, three (3)

convicts namely Mohd. Anwar, Mohd. Jabir and Shahnawaz were given the

benefit of probation whereas the appellant Mohd. Ehsan was sentenced to

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

for one (1) month in default under Section 392 of IPC read with Section 397

thereof. However, he was not convicted under Section 25 of the Arms Act.

5. The complainant came in the witness box as PW-8 and inter alia

stated that on the date of this incident, he had gone to India Gate at about 5-6

PM. When he was returning from there at about 10.00-10.30 PM and

reached Shahjahan Road, four young boys came from the opposite direction

and stopped him. One of them caught hold of his collar from the back side,

whereas two of them caught hold of his one hand each. The fourth boy put a

knife on his neck and they asked him to take out whatever he had. He was

robbed of his purse containing a sum of Rs. 1,000/- and a slip of MCD

challan. He was also robbed of his mobile phone. The complainant

identified all the accused persons and further stated that he made telephone

call to the Police Control Room from the mobile phone of an ice cream

seller. According to him, when the accused persons tried to run away, he

raised alarm and chased them. One of them was apprehended with the help

of a Beat Constable and a buttondar knife was recovered from him. He

identified the appellant Mohd. Ehsan as the person who was apprehended

with the help of the Beat Constable and from whom the knife was recovered.

He also stated that when interrogated, Mohd. Ehsan led the police to iron

bridge near Darya Ganj from where he got arrested the accused Mohd.

Anwar, Mohd. Jabir and Shahnawaz. He identified Mohd. Anwar as the

person who had robbed him of his mobile and Shahnawaz as the person who

had taken out his purse. According to him, the purse was recovered from

Shahnawaz and was seized vide memo Ex. PW-2/N. He also identified Ex.

P/1 as the purse which was recovered in his presence from the appellant

Mohd. Ehsan.

6. PW-7 Pradhuman Singh, inter alia, stated that on 06.10.2008 when he

was present at his ice-cream cart at Shahjahan Road at about 10.00-10.30

PM, the complainant Rakesh Kumar came there and requested him to make

a call to Police Control Room from his mobile, claiming that he had been

looted by 5-6 persons who had taken away his belongings on the point of

knife. He further stated that the complainant made a call to PCR from his

telephone. During cross-examination, he stated that on the next day, the

complainant had come to him and told him that there were four and not 5-6

person who had robbed him of his belongings.

7. PW-10 Constable Ashok stated that on 06.10.2008, he was present in

the parking of Shahjahan Road at about 10.00 PM, when he had heard noise

of "chor chor". He saw one boy coming towards the side of Shahjahan Road

and some members of the public chasing him. The boy was apprehended.

After some time the complainant also reached there and claimed that the

person whom he had apprehended had put knife on his neck along with three

associates and had robbed him of his mobile phone and purse containing

cash. He identified the appellant Mohd. Ehsan as the person who was

apprehended by him and claimed that on his search, a buttondar knife was

recovered from the pocket of his pant. This witness also deposed regarding

arrest of the other accused persons on being pointed out by the appellant and

being identified by the complainant.

8. PW-2 Constable Joginder Singh inter alia stated that on 06.10.2008,

he also had reached the spot while on patrolling and on searching of the

accused Mohd. Ehsan by SI Mukhtiar Singh, one buttondar knife was

recovered from the right pocket of his pant. This witness also deposed with

respect to the arrest of the other accused persons on being pointed out by the

appellant and being identified by the complainant Rakesh.

9. PW-4 SI Mukhtiar Singh inter alia stated that on 06.10.2008 on

receipt of DD No. 31A, he along with Constable Wazir Singh reached the

spot, where Constable Ashok produced the appellant Mohd. Ehsan. The

complainant Rakesh Kumar was also present there. He recorded the

statement of Rakesh Kumar Ex. PW-1/A and seized the knife which had

been recovered from Mohd. Ehsan.

PW-6 Constable Wazir Singh inter alia stated that he accompanied SI

Mukhtiar Singh to the spot in the night of 06.10.2008 and met Constable

Ashok who had already apprehended the appellant Mohd. Ehsan. On search

of the accused, a buttondar knife was recovered. He also stated that Ashok

had produced Mohd. Ehsan along with the buttondar knife.

PW-11 SI Shiv Karana deposed with respect to arrest of the accused

Mohd. Anwar, Mohd. Jabir and Shahnawaz at the instance of the appellant

Mohd. Ehsan from the pavement near iron bridge Darya Ganj.

PW-12 SI Rajinder Singh inter alia stated that on 06.12.2008, he had

recorded the statement of PW-7 Pradhuman Singh. During cross-

examination, he admitted that the name of Pradhuman Singh had been added

later by hand in the list of witnesses.

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

allegations against him and claimed that the complainant Rakesh Kumar was

previously known to him since he had advanced a loan of Rs 4000/- to the

complainant. He further stated that on the day of this incident, the

complainant had called him at Patiala House to pay back his dues, but since

he did not pay his dues, a fight took place between them as a result of which

he as implicated in this case.

11. DW-2 Vakila Khatoon is the mother of the appellant. She inter alia

stated that Rakesh, being a friend of Ehsan, used to come to her and had

demanded Rs. 4,000/- from her son. She further stated that on the

complainant insisting time and again, she gave a loan of Rs 4,000/- to him.

According to her, one day the complainant called her son to Patiala House

Court on the pretext of giving back the money and on the next day, she came

to know that the complainant had falsely implicated her son in this case.

12. I see no reason to disbelieve the complainant as regards the incident

of robbery which took place with him on 06.10.2008. Though the appellant

claims to have advanced a loan of Rs. 4000/- to the complainant, there is no

documentary evidence of such loan having been given to the complainant

either by him or by his mother. No complaint was made either by the

appellant or by his mother to any superior police officer alleging that the

appellant had been falsely implicated in this case on account of the financial

transaction which he had with the complainant. Therefore, the plea taken by

him appears to be only an afterthought.

13. The complainant had nothing to gain by concocting a false story of

robbery with him. Moreover, his deposition finds ample corroboration from

the deposition of Constable Ashok Kumar who apprehended the appellant

when he was being chased by the complainant and some other members of

the public in the night of 06.10.2008. The appellant does not allege any

enmity or ill-will between him and Constable Ashok Kumar. Therefore,

there could have been no reason for Constable Ashok Kumar to falsely

claim that he had apprehended the appellant while being chased by the

complainant and some other members of the public. The report made to the

police station immediately after the incident of robbery is also corroborative

of the deposition of the complainant in this regard.

14. PW-7 Pradhuman Singh was examined by the Investigating Officer

on 06.12.2008, i.e., about two months after the incident and there is no

explanation for the delay in recording his statement. It is also true that the

Investigating Officer has no difficulty in locating the aforesaid witness since

his mobile number was already available in the DD entry lodged in the

police station in the night of 06.10.2008. A perusal of the charge-sheet,

including list of witnesses, which forms part of the charge-sheet, would

show that the names of all the witnesses, except Pradhuman Singh were

typed, whereas the name of Pradhuman Singh was added later by hand. A

perusal of DD No. 31A, except PW-4/E would show that the call was made

from mobile No. 9211389388. However, no evidence has been collected by

the Investigating Officer to prove that the aforesaid mobile connection was

in the name of PW-7 Pradhuman Singh or was otherwise being used by him.

In fact, when Pradhuman Singh came in the witness-box, he did not even

claim that the number of his mobile connection was 9211389388. In these

circumstances, the possibility of Pradhuman Singh not being the person

whose mobile phone was used by the complainant for giving information to

the Police Station cannot be altogether ruled out. Consequently, the

deposition of PW-7 Pradhuman Singh needs to be excluded from

consideration while evaluating the evidence of the prosecution.

15. According to PW10 Constable Ashok Kumar and PW4 S.I. Mukhtiar

Singh, the knife was recovered by Constable Ashok Kumar from the pocket

of the appellant when he was apprehended by him on Shah Jahan Road. On

the other hand, according to PW2 Constable Joginder Singh, it was on

search of Mohd. Ehsan by S.I. Mukhtiar Singh that the knife was recovered

from the right pocket of the pant he was wearing. Thus, there is a material

contradiction as to whether the knife was seized by Constable Ashok Kumar

at the time the appellant was apprehended or by S.I. Mukhtiar Singh after his

reaching the spot.

16. According to the complainant Rakesh Kumar, the knife from the

appellant Mohd. Ehsan was recovered by Constable Ashok Kumar in his

presence. He also claimed that throughout he remained with the police

officers and it was in his presence that the appellant was interrogated and he

later led the police team to Iron Bridge near Darya Ganj from where the

other accused persons were arrested. However, signatures of the

complainant do not appear either on the seizure memo of the knife

Ex.PW4/C or on its sketch Ex.PW4/D. There is no explanation from the

prosecution as to why the signatures of the complainant were not obtained

on the aforesaid documents despite the knife having been seized and sketch

having been prepared in his presence. The aforesaid discrepancy, in my

view, creates serious doubts with respect to the authenticity of the case of

the prosecution in this regard and, in fact, creates substantial doubt with

respect to the alleged recovery of the knife from the appellant. This is more

so when I find that the seizure memo of the purse and cash as well as the

arrest memos of the accused persons do bear the signatures of the

complainant.

17. I have carefully perused the seizure memo of the knife Ex.PW4/C. A

reading of the said seizure memo gives an impression as if one parcel

containing knife sealed with the seal of „MSY‟ was produced before the

Investigating Officer who then prepared a parcel and sealed the said parcel

with the same seal of „MSY‟. I fail to appreciate how a parcel which had

already been sealed with the seal of „MSY‟ would again have been

converted into another parcel and sealed with the same seal of „MSY‟. This

is yet another circumstance which creates doubt with respect to the case of

the prosecution as regards the seizure of the knife.

18. Since the recovery of knife from the appellant has become seriously

doubtful, it would not be safe to rely upon the deposition of the complainant

as regards the person who used the knife during the commission of robbery.

This is not the case of the prosecution that the appellant had thrown away

the knife while running away from the place of robbery. The complainant,

who was chasing the appellant also does not say so either in the FIR or in his

deposition in the court. Therefore, had the appellant used the knife during

the commission of robbery, that knife would have been found with him at

the time he was apprehended by Constable Ashok Kumar. Since the alleged

recovery of knife by Constable Ashok Kumar has been found to be doubtful,

it would only be appropriate that benefit of doubt is given to the appellant as

far as the allegation of use of knife by him during the commission of

robbery is concerned. Consequently his conviction needs to be maintained

only under Section 392 of IPC read with Section 34 thereof.

19. For the reasons stated hereinabove, the appellant is convicted under

Section 392 of IPC read with Section 34 thereof and is sentenced to undergo

RI for three (3) years. He shall also be entitled to benefit of Section 428 of

the Code of Criminal Procedure, 1908.

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

for information & necessary action.

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

MARCH 12, 2014                                              V.K. JAIN, J.
b'nesh/bg