Delhi High Court
Anwar vs State on 21 May, 2014
Author: Indermeet Kaur
$~R-98 to 99
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of judgment: 21.5.2014
+ CRL.A. 384/2006
ANWAR ..... Appellant
Through Mr.Zafar Sadique, Advocate.
versus
STATE ..... Respondent
Through Mr.Fizani Hussain, APP.
+ CRL.A. 599/2006
MOHD. ALAM ..... Appellant
Through Mr.Zafar Sadique, Advocate.
versus
STATE ..... Respondent
Through Mr.Fizani Hussain, APP.
INDERMEET KAUR, J (oral)
1 There are two appellants before this Court Anwar and Mohd.
Alam. They are aggrieved by the impugned judgment and order of
sentence dated 27.3.2006 and 30.3.2006 respectively; each of them had
been convicted under Section 392/34 of the IPC and had been sentenced
to undergo RI for 5 years and to pay a fine of Rs.2000/- in default of
payment of fine to undergo SI for 1 month.
2 Nominal rolls of the appellants have been requisitioned. It
reflects that as on the date when appellant Anwar had been enlarged on
bail he had suffered incarceration of 2 years and 2 months. Mohd. Alam
had suffered incarceration of 3 years 5 months on the date when his
sentence had been suspended.
3 Record shows that on 21.6.1998 on the statement of Ms.Ambli
(PW-1) a complaint had been registered; this was to the effect that when
PW-1 had gone to see her cousin Sindhu Kumari (PW-2) who was
working as a maid at the residence of Dr.L.N.Batra, Khirki Extension
and when they were watching T.V. someone knocked at the door. PW-2
opened the door; PW-2 was asked for water by a boy; PW-2 went inside
to fetch water; three boys who were following that boy able to enter the
room. Two boys affixed tape on the mouth of PW-2; her gold chain and
ear tops were removed. They both were tied by the accused persons.
PW-1 and PW-2 were dragged into the bath room; their house search
was effected by the aforenoted persons. The accused left the place of
incident after half an hour. One of the assailants had a revolver with
him and other were armed with knife. At 2.00 p.m. when Dr.Laxmi
returned home; she found PW-1 and PW-2 lying in tide condition.
Dr.Laxmi disclosed that one video camera, one brief case containing
some documents and one cloth bag were also missing. It was on the
complaint of PW-1 that the present FIR was registered. There were six
assailants. As noted supra only two of them i.e. Anwar and Mohd.
Alam are before this Court.
4 Record further shows that Anwar was arrested on 24.6.1998. His
disclosure statement was recorded. Pursuant to this disclosure statement
he had led the police party to his house from where he had got recovered
one blue coloured raxin suitcase and two bags and a briefcase; they were
taken into possession vide memo Ex.PW-10/G. This memo has been
perused. It has been attested by two witnesses namely constable Jagat
Singh and SI Mahender Dahiya (PW-6). Constable Jagat Singh has not
been examined. PW-6 in his entire deposition has stated nothing about
this recovery having been got effected at the instance of appellant
Anwar. This Court agrees with the submission of the learned counsel for
the appellants that recovery is doubtful for the reason that the recovery
memo having been attested by two witnesses of whom one witness has
not been examined and second witness has totally become silent on this
recovery; there are dark shadows of doubt created upon this recovery;
which recovery is suspicious and thus cannot be relied upon. Recovery
is thus liable to be disbelieved.
5 The versions of PW-1 and PW-2 who are eye-witnesses to the
incident have also been perused. Learned counsel for the appellants has
drawn attention of this Court to their versions wherein PW-1 in her
deposition has admitted that she was asked by the police to identify the
accused and they had been asked to go to the police station; PW-1
having categorically stated that she had seen the accused Anwar at her
resident at Lado Sarai who was brought by the police. In her cross-
examination conducted on behalf of accused Mohd.Alam she has
reiterated that she has been asked by the police to identify the accused at
the police station. Version of PW-1 being clear that the accused persons
had been shown to her in the police station and she had been asked to
identify them; although she had specifically named accused Anwar but
had also spoken of other accused persons.
6 PW-2 Sindhu Kumari had also deposed on the same lines; she had
admitted in the cross-examination that Mohd.Alam and Amir Khan were
also shown to her by the police two days after the incident. Incident
having taken place on Sunday; they were shown to her on Tudesday and
her sister PW-1 also identified them on the same day. PW-2 has further
deposed that on the following day (i.e. third day after the incident) the
police came and brought accused Mohd. Alam and he was also
identified by PW-2 in the police station along with her sister (PW-1).
7 It was in this background that refusal of TIP proceedings by the
accused Anwar and Mohd. Alam has to be appreciated. TIP has been
conducted by the Mr.Vinod Kumar Sharma, M.M. (PW-5). The TIP
proceeding of accused Anwar has been proved as Ex.PW-5/3. This was
conducted on 30.6.1998. He has categorically stated that he does not
wish to participate in the TIP as he was shown to the witnesses several
times. The refusal of Mohd. Alam to join the TIP proceedings because
of the fact that he had been shown to the witnesses in the police station
was thus a valid reason. This is fully corroborated by the version of
PW-1 and PW-2. No adverse inference can be drawn against him for
not joining the TIP.
8 No TIP was conducted of appellant Mohd. Alam. This is clear
from the statement of the investigating officer SI Pawan Sharma (PW-
10) who has stated that TIP of all accused except Mohd. Alam was
conducted. Mohd. Alam was identified for the first time in Court only.
Such an identification is useless. PW-10 has also admitted that no
recovery had been got effected at the instance of Mohd. Alam.
9 As noted supra the recovery memo Ex.PW-10/G evidencing
recovery at the instance of accused Anwar has also not been disbelieved.
Mohd. Alam had made a disclosure statement but no recovery had been
made from him. Identity of both the accused persons is also doubtful as
both PW-1 and PW-2 have admitted that they seen the accused two days
after the incident and they had been asked by the investigating officer to
identify them, the refusal of the accused Anwar to join TIP was thus for
a cogent reason. The identification of the accused persons in Court
thereafter for the first time is a useless identification. There is no other
evidence connecting the appellants with crime. The appellants are
entitled to a benefit of doubt and consequent acquittal. Appeals are
allowed.
10 Appellants are acquitted. Bail bonds cancelled. Sureties
discharged.
INDERMEET KAUR, J
MAY 21, 2014
ndn
