Delhi High Court
Islam vs State Nct Of Delhi on 5 November, 2014
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Date of Decision: 5th November, 2014
+ CRL.A. 593/2012
ISLAM ..... Appellant
Through: Mr. Rahul Sharma, Advocate
versus
STATE NCT OF DELHI ..... Respondent
Through: Mr. M.N. Dudeja, Additional Public
Prosecutor for the State along with SI
Afhaq Ahmed Police Station Adarsh
Nagar
&
+ CRL.A. 703/2012
MANOJ KUMAR & ANR. ..... Appellant
Through: Mr. Naveen Gaur, Mr. Vijay Gaur and
Mr. Raj Jaiswal, Advocates
versus
STATE
..... Respondent
Through: Mr. M.N. Dudeja, Additional Public
Prosecutor for the State along with SI
Afhaq Ahmed Police Station Adarsh
Nagar
CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA
JUDGMENT
: SUNITA GUPTA, J.
1. Jagdev Singh, S/o late Sh. Arjun Singh was working as Cashier
at Libra Filling Station for the last about 30 years. He used to deposit
the earnings of the petrol pump in UCO Bank, Bank Complex,
Azadpur, New Subzi Mandi. On 1st December, 2004 at about
10:30AM, he left the petrol pump on his scooter bearing No. DL 4S
1879 for depositing the cash of Rs.5,40,000/-. His associate Hardeep
Singh followed him on his own scooter. Due to red light, there was
slight difference between them. When he reached near PNB, Main
GTK Road, three boys on a motorcycle came and stopped him at the
divider of the road. Two boys got down who were armed with
revolver and knife. One of the boys armed with knife cut the rope
with which he had tied the bag on his scooter. When he resisted, then
he was assaulted on his right wrist and left thigh. Thereafter, they took
away the bag containing currency notes towards Azadpur. His
associate Hardeep Singh followed them but could not succeed. He
was removed to Sehgal Nursing Home by the public where he got
treatment.
2. On receipt of information from wireless operator, DD No.6A
was recorded by PW3-ASI Radha Rani and PW19-SI Anuj Nautiyal
was directed to reach the spot at Panchwati Adarsh Nagar, Sehgal
Nursing Home. When he reached there, he found injured Jagdev
admitted in ICU. Jagdev Singh was declared fit for statement and SI
Anuj Nautiyal recorded his statement Ex.PW1/A and got the FIR
registered. At the instance of PW4-Hardeep Singh, site plan
Ex.PW19/A was prepared. Crime team comprising of PW7-SI Rajesh
was called at the spot who prepared the report Ex.PW7/A. Despite
making efforts, SI Anuj Nautiyal could not get any clue regarding the
assailants.
3. It is further the case of prosecution that on 19 th December,
2004, SI Avinash Tyagi along with Constable Arun, Constable Vijay,
Constable Naresh and Head Constable Rishi left the office of special
staff, North West and at about 11:45 AM on the basis of secret
information accused Vijay @ Pahadi was apprehended and on his
formal search a country made pistol with two live cartridges were
recovered. Separate proceedings in regard to recovery of pistol and
cartridges were carried out. Thereafter, investigation was handed over
to PW17-Inspector Yugraj Krishnan Bhatia, who arrested the accused
in this case vide arrest memo Ex.PW13/C. Pursuant to the disclosure
statement, Ex.PW13/F of accused Vijay, police officials along with
him went to Sha Alam Bandh, Jahangirpuri where on the pointing out
of accused Vijay, Maruti Car bearing No. DL-6C-5643 coming from
Azadpur Road side was intercepted. Accused Manoj was driving the
car while accused Ram Janam Pandey was sitting beside him. Both
the accused were arrested. They made disclosure statement. Pursuant
to the disclosure statement made by the accused Ram Janam Pandey,
he got recovered one bundle of currency notes having a stamp of
Libra Petrol Pump of denomination of Rs.100/- (total 10,000/-) from a
box lying in a room of his house No. 719, Gali No. 12 at Jeevan Park,
Samaipur Badli. The same was seized vide seizure memo
Ex.PW12/D. Accused Manoj also got recovered four bundles of
currency notes of denomination of Rs.100/- (total forty thousand) and
out of them on three bundles, recovered at the instance of Manoj,
there was a stamp of Libra Petrol Pump whereas the 4 th bundle was
stated to be looted from A-Block, Jahangirpuri. The bundle was
seized vide seizure memo Ex.PW13/K. Accused Vijay got recovered
six bundles of currency notes of Rs.100/- denomination each, out of
which five bundles were having slip and stamp of Libra Filling
Station and one was not having any slip and same was stated to be
looted at Jahangirpuri which were also seized vide seizure memo
Ex.PW13/M. Accused Vijay and Manoj also pointed out the place of
incident vide pointing out memo Ex.PW13/N and Ex.PW13/O.
Inspector Yugraj Krishnan Bhatia directed the accused Vijay @
Pahadi to muffle his face when he was arrested, thereafter, an
application-Ex.PW17/A was moved for conducting Test Identification
parade of accused Vijay who refused to join the TIP proceedings.
After completion of necessary investigation, challan qua accused
Vijay, Ram Janam Pandey and Manoj was filed.
4. It is further the case of prosecution that on the basis of secret
information, on 27th May, 2005, accused Islam was apprehended at
about 6:30 PM. Pursuant to his disclosure statement Ex.PW16/C, a
knife was got recovered which was seized vide memo Ex.PW16/E.
Accused Islam was asked to muffle his face and an application for
conducting his TIP was moved but the accused refused to join the
same. It is further alleged that on 28th June, 2005, accused Vicky
surrendered before the Court, as such, he was arrested vide memo
Ex.PW17/B. An application for conducting his TIP proceedings was
also moved but this accused also refused to join the proceedings.
After completing investigation supplementary challan was filed
against these accused.
5. Charge under Section 120B/394 r/w Section 120B/397 r/w
Section 120B IPC was framed against the accused Vijay Kumar,
Manoj Kumar, Ram Janam Pandey, Islam and Vicky. Charge under
Section 25/27 of Arms Act was also framed against the accused Islam.
All the accused pleaded not guilty and claimed trial.
6. In order to substantiate its case, prosecution in all examined 19
witnesses. The case of accused persons was basically one of denial
simplicitor. All of them took a plea that they were lifted from their
residence and thereafter falsely implicated in this case. Neither any
disclosure statement was made by them nor any recovery effected
from them.
7. Vide impugned judgment dated 19th April, 2012 accused Vijay
Kumar, Manoj Kumar and Islam were held guilty for offence under
Section 394 IPC. Further accused Vijay and Manoj was also held
guilty for offence under Section 394/397 IPC. Accused Ram Janam
Pandey was held guilty for offence under Section 411 IPC. Accused
Vijay Kumar, Manoj Kumar, Islam and Ram Janam Pandey were
acquitted of the charge under Section 120 B IPC. Accused Vicky was
acquitted of all the charges. Vide order on sentence dated 28 th April,
2012, convicts Vijay Kumar and Manoj Kumar were sentenced to
rigorous imprisonment for a period of 7 years and fine to the tune of
Rs.10,000/- in default to undergo simple imprisonment for a period of
one month. Convict Islam was sentenced to rigorous imprisonment
for a period of 5 years and fine to the tune of Rs.10,000/- in default to
undergo simple imprisonment for a period of one month. Convict
Ram Janam Pandey was sentenced to rigorous imprisonment for a
period of four months and 24 days and fine to the tune of Rs.2000/- in
default to undergo 15 days simple imprisonment. All the convicts
were granted benefit of Section 428 Cr.P.C.
8. Accused Ram Janam Pandey had already undergone the period
of sentence awarded to him. As such, he did not prefer any appeal.
Separate appeal bearing Crl. Appeal No. 593/2012 has been filed by
accused Islam whereas accused Vijay and Manoj Kumar have
preferred joint appeal bearing Crl. Appeal No. 703/2012.
9. I have heard Mr. Rahul Sharma, Advocate for accused-Islam, Mr.
Naveen Gaur, Advocate for accused-Manoj Kumar and Vijay Kumar and
Mr. M.N. Dudeja, learned Additional Public Prosecutor for the State and
have perused the record.
10. So far as actual incident is concerned, the star witness of
prosecution is the complainant PW1-Jagdev Singh himself who
deposed that he was working as cashier at Libra Filling Station, Fruit
Mandi, Jahangir Puri. He used to collect all the cash from the petrol
pump and deposit the same in UCO Bank, Bank Complex, Azadpur,
New Subzi Mandi. On 1st December, 2004 at about 10:30 AM, with a
sum of Rs.5,40,000/- for depositing the same in the UCO Bank, he
left the petrol pump on his scooter bearing No. DL 4S 1879. He was
also having pay in slip booklet and some visiting cards with him.
Money and the papers were kept in a green colour rexine bag and the
bag was lying in the front bucket of the scooter tied with the sutli.
Another employee, namely, Hardeep of the Filling Station was behind
him on another scooter for his safety. When he reached at the red light
of 100 number stand, there was a signal of red light. After the green
light, they started and when he reached the cut of Indira Nagar, near
PNB, one motorcycle tried to hit him. He tried to save himself but
again the motorcyclists put their motorcycle in front of his scooter and
stopped him. Three boys were riding on that motorcycle. The boy
sitting on the last took out a revolver and pointed the same towards
him and asked him to give the bag. However, he caught hold of the
bag by his left hand and from right hand caught hold of the scooter
and refused to give the bag. That boy gave the butt blow of the
revolver on his right hand, still he resisted and did not give the bag.
Then the boy who was sitting in the middle of the motorcycle also
came there and showed him knife and when he resisted, he gave a
knife blow on left thigh at two places. Thereafter, the third boy who
was driving the motorcycle removed his motorcycle and came to him
and by using force looted the bag which was containing the cash,
visiting cards and pay in slips. After looting the bag, all the boys ran
away towards red light side. His companion Hardeep Singh came to
him but he asked him to chase those boys. He requested one public
person to inform the Filling Station about the occurrence and he made
a call to the Filling Station by his mobile phone. Thereafter he was
removed to Sehgal Nursing Home for his treatment where police met
him and he narrated the incident to them.
11. PW4 Hardeep Singh has also deposed that on 1st December,
2004, Jagdev Singh, the Manager of Libra Filling Station, who used to
deposit the cash in the Bank daily, was going to deposit the cash
amount of Rs.5,40,000/- and left the Filling Station at about 10:30AM
on his scooter. As per the daily routine, one person used to
accompany him. On that date, he accompanied Jagdev Singh and
followed him on his own scooter. When he reached near Jagdev
Singh, he informed him "paiso wala bag chheen ke le gaye" and he
further directed him to chase the boys who had snatched the bag. He
tried to chase them but could not trace them. Thereafter, he returned
back to the spot and came to know that Jagdev had been removed to
the hospital. He found the scooter of Jagdev lying on the road.
Thereafter he went to the hospital and found Jagdev admitted there.
The witness did not identify the accused persons. However, as regards
the incident, he has corroborated the testimony of the complainant.
12. When Jagdev Singh was taken to Sehgal Nursing Home with
alleged history of assault by knife blows while he was on his scooter
at about 11:00 AM, he was examined by Dr. Mukund Khetan. He
prepared his MLC-Ex.PW2/A which was proved by PW2-Dr. Ruchi
Malhotra. On local examination, following injuries were found:-
I) Sharp cut wound on left thigh anterior aspect measuring about 10
x 4x 4 cm with artery bleeding deep. No neurological defect.
II) Sharp cut wound over left thigh at anterior aspect near knee joint,
measuring 8 x 4x 4 cm, deep facia opened with arterial bleeding.
III) Abrasion over left shoulder.
IV) Abrasion on right wrist lateral aspect.
13. On receipt of wireless message, DD No.6A was recorded by
PW3 and thereupon PW19-SI Anuj Nautiyal reached the hospital,
recorded statement Ex.PW1/A of Jagdev Singh and thereafter he got
the FIR registered. In the initial statement also, the entire incident has
been narrated by the complainant which was reiterated before the
Court. As such, as regards the actual incident, the same stands proved
from the testimony of PW1-Jagdev Singh duly corroborated by PW4-
Hardeep Singh and PW2-Dr. Ruchi Malhotra.
14. The crucial question for consideration is as to who robbed the
complainant of the cash amount of Rs.5,40,000/-. Admittedly, none
of the accused persons were known to the complainant from before
and even the initial statement does not give the name of any of the
accused. None of the accused persons were apprehended at the spot.
As per the case of prosecution, on 19th December, 2004, initially
accused Vijay was apprehended and thereafter at his instance accused
Ram Janam Pandey and Manoj Kumar were arrested Accused Islam
was arrested much later on 27th May, 2005 whereas accused Vicky
surrendered in Court on 28th June, 2005.
15. It was vehemently argued by the learned counsel for the
appellants that since none of the accused were known to the
appellants, it was incumbent upon the prosecution to have conducted
their Test Identification Parade and in the instant case, although TIP
of accused Vijay, Islam and Vicky was got conducted but that was of
no consequence since all these accused were shown to the
complainant in the police station. Therefore, they were justified in
refusing to join the proceedings. It was further submitted that so far as
accused Islam is concerned, his name did not find mentioned in the
initial statement of the witness recorded on 19th February, 2010 and at
that time, the witness had pointed towards accused Vicky. It was only
later on when he was cross-examined by learned Public Prosecutor for
the State on the point of identity that he admitted that it was accused
Islam who had snatched the bag by cutting the rope from the
motorcycle by a knife but denied that he inflicted any injury by knife.
It was submitted that the witness was examined on several dates and
he had been changing his stand time and again and, therefore, as
regards the identity of the accused, his testimony is not reliable.
Moreover, he had admitted in cross-examination that he was called in
the police station twice and was shown to the accused persons.
16. Rebutting the submissions of learned counsel for the accused,
it was submitted by learned Public Prosecutor for the State that
although the incident had taken place on 1st December, 2004 but the
witness came to be examined in the Court after a lapse of six years,
therefore, some ambiguity appeared regarding the role played by the
accused persons but that is inconsequential. Appellants Vijay and
Islam refused to join TIP proceedings hence adverse inference is
liable to be drawn against them.
17. Learned counsel for the appellant relied upon Mohd. Shahid v.
State, 2014 (2) JCC 1305 for emphasising the necessity of conducting
Test Identification Parade of the accused persons after their arrest
when the accused are not known to any of the witnesses from before.
I have the occasion to deal with this aspect of the matter in this
judgment and it was observed as under:-
"22. The object of conducting a Test Identification Parade is two-fold.
First is to enable the witnesses to satisfy themselves that the accused
whom they suspect is really the one who are seen by them in connection
with the commission of the crime. Second is to satisfy the Investigating
Authorities that the suspect is the real person whom the witnesses had
seen in connection with the said occurrence. The purpose of prior test
identification, therefore, is to test and strengthen the trustworthiness of
the witness. It is accordingly considered a safe rule of prudence to
generally look for corroboration of sworn testimony of the witness in
Court as to the identity of the accused who are strangers to them, in the
form of earlier identification proceedings.
23. In Sk. Hasib v. State of Bihar, 1972 CriLJ 233 Hon'ble Supreme
Court observed:
"...The purpose of test identification is to test that evidence, the safe rule
being that the sworn testimony of the witness in Court as to the identity
of the accused who is a stranger to him, as a general rule, requires
corroboration in the form of an earlier identification proceeding..."
24. In Rameshwar Singh v. State of J & K, 1972 Cri LJ 15, it was
observed:
"... It may be remembered that the substantive evidence of a witness is
his evidence in court, but when the accused person is not previously
known to the witness concerned then identification of the accused by the
witness soon after the former's arrest is of vital importance because it
furnishes to the investigating agency an assurance that the investigation
is proceeding on right lines in addition to furnishing corroboration of the
evidence to be given by the witness later in court at the trial."
25. In Suresh Chandra Bahri v. State of Bihar, 1994 Crl. LJ 3271,
Hon'ble Supreme Court observed:
"It is well settled that substantive evidence of the witness is his evidence
in the court but when the accused person is not previously known to the
witness concerned then identification of the accused by the witness soon
after his arrest is of great importance because it furnishes an assurance
that the investigation is proceeding on right lines in addition to furnishing
corroboration of the evidence to be given by the witness later in court at
the trial. From this point of view it is a matter of great importance both
for the investigating agency and for the accused and a fortiori for the
proper administration of justice that such identification is held without
avoidable and unreasonable delay after the arrest of the accused and
that all the necessary precautions and safeguards were effectively taken
so that the investigation proceeds on correct lines for punishing the real
culprit. It would, in addition, be fair to the witness concerned also who
was a stranger to the accused because in that event the chances of his
memory fading away are reduced and he is required to identify the
alleged culprit at the earliest possible opportunity after the occurrence. It
is in adopting this course alone that justice and fair play can be assured
both to the accused as well as to the prosecution. But the position may
be different when the accused or a culprit who stands trial had been seen
not once but for quite a number of times at different point of time and
places which fact may do away with the necessity of TIP."
18. So far as accused Vijay and Islam are concerned, the
Investigating Officer moved applications for conducting their Test
Identification Parade. However, both these accused refused to join the
proceedings on the ground that they were shown to the witness in the
police station and their photograph was also taken. This plea is
admitted by the complainant himself in his cross-examination as he
admitted that he was called in the police station twice and accused
persons were shown to him. Qua accused Vijay, he specifically
admitted that he was shown by the police at the police station prior to
TIP proceedings. That being so, since the accused were shown to the
witness in the police station, they were justified in refusing to join the
proceedings and, therefore, refusal on their part to join the
proceedings does not lead any adverse inference against them.
19. As regards accused Manoj, although as per the prosecution
case, he was arrested on 19th December, 2004 along with co-accused
Ram Janam Pandey at the instance of accused Vijay and while
according to Inspector Yugraj Krishnan, he directed accused Vijay to
keep his face muffled as his TIP was required to be conducted.
Absolutely no explanation is forthcoming as to why he did not give
any such direction to accused Manoj or got his TIP conducted.
Therefore, in the absence of any TIP of accused Manoj, his
identification in the Court for the first time by the witness after a lapse
of six years of the incident is not reliable. In Mohd. Abdul Hafeez vs.
State of Andhra Pradesh; (1983) 1 SCC 143, also names or
description of accused persons was not given in FIR. No TIP was
held and accused was identified only before Court four months after
the occurrence. It was held that such identification is not reliable in
connecting the accused with the crime.
20. Moreover, a perusal of testimony of the complainant goes to
show that he had been giving different versions regarding the role
played by the accused persons on different occasions. He was
examined on 19.02.2010, 07.07.2010, 22.02.2011, 15.03.2011. His
statement was recorded initially on 19th February, 2010. At that time,
he deposed that the boy sitting on the last of the motorcycle took out a
revolver and pointed out towards him and asked to give the bag,
however, he declined, then that boy gave butt blow with revolver on
his right hand but he still resisted. Then the boy sitting in the middle
came and showed knife and when he resisted, he gave knife blow on
left thigh at two places but he still resisted. Thereafter the third boy
who was driving the motorcycle used force and looted the bag and
then all the three ran away. Thereafter the witness pointed towards
the accused Vijay Kumar as the person who was sitting on the last of
the motorcycle and hit him with the butt of the revolver on right hand,
Manoj Kumar as the person who showed him knife and stabbed on
left leg twice and caused injuries and Vicky as the boy who snatched
the bag and was driving the motorcycle.
21. The witness was recalled on 7th July, 2010 and he was cross-
examined by learned Public Prosecutor for the State as he was
confused about the identity of the accused persons. At that stage, on
the pointing out of learned APP, the witness admitted that accused
Mohd. Islam was the same accused who had snatched the bag by
cutting the rope from the vehicle by a knife but denied that he
inflicted any injury on his person by the knife. He further denied the
suggestion that accused Vicky was driving the motorcycle and went
on stating that accused Manoj was driving the motorcycle. In his
further cross-examination by learned Public Prosecutor on 22 nd
February, 2011, he deposed that he identified the country made pistol
Ex.P1 which was pointed out by the accused Vijay at the time of
committing robbery. In his further cross-examination dated 15th
March, 2011 by learned Public Prosecutor for the State, he admitted
that knife Ex.P2 was the same with which accused Islam cut the rope
of the bag. In cross-examination by learned counsel for the accused,
he deposed that he was called by the police at police station after
arrest of the accused persons and they were shown to him. He also
admitted that none of the accused persons were known to him prior to
the incident. He did not disclose any special mark of country-made
pistol and knife to the police.
22. Under the circumstances, considering the shaky deposition
made by the complainant with respect to the identity of the persons
involved in the incident of robbery, it will not be safe to place reliance
upon his testimony as regards the identity of the culprits.
23. As regards the recovery of currency notes, it is the case of the
prosecution that on 19th December, 2004, Constable Rishi, Constable
Vijay, Constable Naresh and Constable Arun left with SI Avinash
Tyagi in Govt. vehicle at about 11:45 AM. When they reached at
Mahendra Park, Rani Bagh, a secret information was received by SI
Avinash Tyagi that one boy was standing with motorcycle near park
with an intention to commit an offence and who was having illegal
arms with him. As such, raiding party was organized by SI Avinash
Tyagi. On the pointing out of informer, accused Vijay was
apprehended and a country made pistol with two live cartridges was
recovered. It is pertinent to note that SI Avinash Tyagi, who was
heading the raiding party, has not been examined by the prosecution
for which no explanation is forthcoming. In the absence of
examination of this crucial witness, it is not clear that when the secret
information was received, any effort was made by him to join
independent persons in the raiding party. Moreover, according to the
police officials, on the pointing out of accused-Vijay, Manoj and Ram
Janam Pandey were arrested. Pursuant to the disclosure statement
made by them, currency notes having stamp of Libra Filling Station
was recovered from them. Admittedly, except for the police officials,
there is no independent witness to the recovery. It is admitted by all
the police officials that in the house of accused Manoj and Ram
Janam Pandey, their family members were present but neither any
family member nor any neighbours of the accused were asked to join
the proceedings or the seizure memo of the currency notes. In
Kavinder & Ors. v. State, 2005 (1) Acquittal 262 relied upon by the
learned counsel for the accused, it was observed that a disclosure
statement is an important piece of evidence especially when the same
leads to the recovery of an incriminating fact or article. The
Investigating Officer concerned, therefore, has to take care to
associate with the process of investigation, independent witnesses to
support the making of the alleged disclosure. He cannot choose the
easy course of recording disclosures in the presence of members of
his own team or a police stock witness. The Supreme Court has, in the
decisions referred to above, emphasized the need for independent
witnesses being associated with disclosure.
24. In the instant case, Inspector Yugraj Kishan Bhatia as well as
PW12-Head Constable Naresh and PW13-Head Constable Rishi have
admitted that despite the presence of 3-4 persons in the house of the
accused persons, neither any of the family member nor any neighbour
was asked to join the seizure of the currency notes. In the absence of
joining any independent witness, the recovery becomes doubtful.
25. Furthermore, although PW13-Head Constable Rishi and PW15-
Constable Arun have also deposed that six bundles of currency notes
were also recovered at the instance of accused Vijay, five of which
were bearing the stamp of Libra Filling Station, however, testimony
of Inspector Yugraj Kishan Bhatia is conspicuously silent regarding
recovery of any currency notes at the instance of accused Vijay.
Moreover, Head Constable Rishi and Constable Arun does not depose
as to from where accused Manoj and Vijay got recovery of currency
notes affected.
26. Last but not the least, the currency notes had no special
identification mark except for the fact that the same were bearing the
stamp of Libra Filling Station. Although police officials have deposed
that one bundle of currency notes of Rs.100/- denomination, three
bundles and five bundles of currency notes of Rs.100/- denomination
recovered at the instance of accused Ram Janam Pandey, Manoj and
Vijay were bearing the stamp of Libra Filling Station, however, if the
currency notes were bearing the stamp of Libra Filling Station, the
first attempt of the robber would be to destroy that piece of evidence
which would immediately link him with the robbery and for
possession of which he can have absolutely no explanation to offer.
The person who commits robbery would know that in the event of his
being arrested, his house was bound to be searched by the police in
order to recover the stolen articles. Therefore, he would not like to
retain any such article which can lend him in trouble on account of its
recovery from him. Therefore, alleged recovery of currency notes
after about 18 days of the incident is doubtful. Moreover, complainant
has deposed that the currency notes which were released to him on
superdari are not the same which were carried by him on the day of
incident. He went on stating that he was informed that from the
snatched money, a car was purchased by the accused persons which
was sold and the money was the sale proceed which was released to
him on superdari.
27. As regards recovery of country-made pistol from accused-Vijay
and knife from accused-Islam, here again there is no independent
witness to the recovery. Moreover, admittedly, no identification mark
of the country-made pistol or the knife was given by the complainant
in his initial statement. Therefore, it is not established that these were
the same weapon of offence which were used in the commission of
crime.
28. Suffice it to say that prosecution case is, for the reasons stated
in the foregoing paragraphs, renders the same doubtful. While it is
true that there may be a strong suspicion suggesting the involvement
of the appellants in the crime, suspicion, however strong, is not
enough to justify a conviction. There indeed is a long distance
between the prosecution case „may be true‟ and „must be true‟ which
must be traversed by cogent and reliable evidence. (See State Delhi
Admn. vs. Gulzarilal Tandon, AIR 1979 SC 1382; Swarn Singh
Rattan Singh vs. State of Punjab, AIR 1957 SC 637, Kulvinder
(supra), Mohd. Shahid (supra), Sukh Chain and Hargovind @
Pappu vs. The State, MANU/DE/3353/2009; Om Singh @ Ombir vs.
State, MANU/DE/1460/2008). That evidence is not forthcoming in
the instant case. Therefore the appellants are entitled to benefit of
doubt and they are accordingly acquitted of the charges framed
against them.
29. The appeals accordingly succeed and are hereby allowed. The
impugned judgment and order on sentence passed by the Trial Court
are set aside. The appellants be released from jail if not wanted in any
other case.
Trial Court record along with the copy of the judgment be sent
back.
A copy of this judgment be also sent to the Superintendent Jail
for information to the appellants and compliance.
( SUNITA GUPTA)
JUDGE
NOVEMBER 05, 2014
rs
