Robin Singh vs State
2014 Latest Caselaw 4967 Del

$

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                   Judgment reserved on : 24.09.2014
                                   Judgment delivered on : 30.09.2014
+      CRL.A. 387/2006
       ROBIN SINGH                                     ..... Appellant
                          Through       Mr.Padam Kant Saxena, Amicus
                                        Curiae.
                          versus
       STATE                                       ..... Respondent
                          Through       Mr.Ravi Nayak, APP.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

INDERMEET KAUR, J.

1 This appeal is directed against the impugned judgment and order

of sentence dated 15.05.2006 and 17.05.2006 respectively wherein the

appellant stood convicted under Section 392 read with Section 397 of

the Indian Penal Code, 1860 (hereinafter referred to as the "IPC") as

also for the offence under Section 365 of the IPC. He had been

sentenced to undergo RI for a period of seven years for the offence

under Section 397/392 of the IPC has also to pay a fine of Rs.200/- and

in default of payment of fine to undergo SI for one month. For the

offence under Section 365 of the IPC, he had been sentenced to undergo

RI for a period of one year and to pay a fine of Rs.100/- and in default of

payment of fine to undergo SI for 15 days. Nominal roll of the appellant

reflects that as on date when he had been granted bail, he has suffered

incarceration of 3- ½ months.

2 Record shows that on 23.08.2003 at about 01:45 pm, the

complainant Jalaj Narang (PW-1) studying in 12th class, Ludlow Castle

School was waiting for his bus outside his school, when one boy came

from the side of the trauma center and took him to the other side and

threatened to stab him with a knife if he did not follow. Then he called

a motor-cycle rider who was standing at a distance. The accused put a

knife on the neck of PW-1 and asked the motor-cycle rider to take PW-1

and the accused to another location to the side of Nehru Ridge. At first,

PW-1 refused to sit on the motor-cycle; he was threatened with a knife

and sat on the motor-cycle along with the rider of the motor-cycle as

also the appellant. They moved ahead. Upon reaching near the park, the

motor-cycle rider at the instance of the accused was asked to stop the

motorcycle and wait, while he took the complainant to the bushes on

one side of the park. PW-1 along with the motor-cycle rider were

compelled to go inside the park. This was on the point of a knife. The

motor-cycle rider was coerced by the accused to remove the purse of

PW-1. PW-1 had Rs.400/- and his Identity card in his purse. The

accused thereafter coerced the motor-cycle rider to drop PW-1 from the

same place from where he had picked him up and threatened him that in

case he did not do so, his motor-cycle would get impounded. PW-1 sat

on the motor-cycle and went for 4-6 steps when he saw one policeman

on a motor-cycle. He stopped him and told the incident. That police

person H.C. Suraj Mal (PW-5) accompanied PW-1 to search the accused

who was located at a distance of half kilometer. He was identified by

PW-1, apprehended and arrested. Purse containing Rs.400/- was

recovered from him as also a knife which was also taken into possession

vide separate memos.

3 It was on this complaint of PW-1 that the rukka (Ex.PW-1/B) was

dispatched and the FIR was registered.

4 PW-1 was the star witness of the prosecution. He had deposed on

the same lines as the details mentioned in the rukka. He however refused

to identify the accused present in Court stating that he was not the

person who had attacked him. In another part of his cross-examination

(by the learned public prosecutor), he had stated that the accused was

not the person who had been arrested on his identification. He denied

the suggestion that he is trying to save the accused. In another part of his

cross-examination, he exhibited the purse (Ex.P-3) which had been

brought by him in Court. This witness was not cross-examined as he

was hostile with respect to the identity of the accused.

5 H.C. Suraj Mal (PW-5) was the person to whom PW-1 had

narrated his story and who had then apprehended the accused. In his

version on oath in Court, he has deposed that he was near the Kamla

Nehru ridge at about 02:00 pm on the fateful day. He was asked by a

school boy to stop and on inquiry, the incident was narrated to him. PW-

5 has deposed that on this narration, he along with PW-1 came to Kamla

Nehru picket where they collected constable Dalip (PW-6) and went in

search of the accused towards Rajpur Road and found the accused was

going towards the boundary of Kamla Nehru ridge. He was identified by

the accused, apprehended and arrested. From his personal search, purse

containing Rs.400/-, a school I-card was taken into possession. In his

cross-examination, PW-5 admitted that the accused was not known to

PW-1 but PW-1 had given his description. Perusal of the rukka shows

that the only description of PW-1 about the accused was that he was in

the age bracket of 20-22 years.

6 The version of PW-5 that he had picked up PW-6 and then

accompanied PW-1 to apprehend the accused is missing in the version

of PW-1. Moreover, PW-1 has nowhere given any description of the

accused even in the FIR. The only description is that the accused was

about 20-22 years. The incident as described by PW-1 shows that the

incident probably lasted between 7-10 minutes. It was at the point of a

knife. Obviously, the mindset of the person who was facing trauma of

such a nature would not allow him to observe the situation to its fullest.

The accused being a stranger to PW-1, PW-1 would not be able to

recollect him completely. That apart this Court notes that on oath in

Court, PW-1 has not identified the accused. Even in his cross-

examination by the learned public prosecutor, he has categorically stated

that the accused in fact was not the same person who was got arrested by

him on his identification.

7 Constable Dalip (PW-6) has endorsed the version of PW-5. He

has deposed that he had accompanied PW-5 and PW-1 to apprehend the

accused who was found on the main Rajpur Road. In his cross-

examination, he has stated that this incident was disclosed to him by

PW-5. He denied the suggestion that PW-1 had not come to the picket in

his presence and they did not go in search of the accused.

8 The version of PW-5 and PW-6 are consistent but PW-1 neither in

the FIR and nor in his version on oath in Court has attributed any role to

PW-6. This is a vital contradiction between the version of PW-1 on the

one side and those of PW-5 and PW-6 on the other. The version of

PW-1 is that he and PW-5 were the only persons at the time of

apprehension of the accused. This is in contrast to the versions of PW-5

and PW-6 who both stated that they had apprehended the accused in the

presence of PW-1. PW-1 has stated that the accused was arrested within

a half kilometer from Ludlow Castle School whereas PW-5 and PW-6

have stated that the accused was arrested at the Kamla Nehru ridge area.

The distance between the two places is large. It would be at least a

difference of 1-½ kilometers. That apart, PW-1 has refused to identify

the appellant as the accused. This becomes relevant in view of the fact

that the accused and the victim were not known to each other and the

victim having been robbed of his purse at the point of knife was

suffering a psychological trauma at the time when the incident had

occurred. He may not have been able to grapple the situation. He also

did not give any description of the accused besides accused being in the

age group of 20-22 years.

9 The rule of criminal jurisprudence is that the prosecution must

prove its case t o the hilt. In this case a doubt is created about the

identity of the appellant; benefit of which must go to the appellant. The

appellant is entitled to an acquittal on this ground alone. There is also a

discrepancy about the search items from the appellant. Apart from the

fact that the knife which had been allegedly recovered from the accused

was not identified by PW-1; the version of the prosecution is (evident

from Ex.PW-1/C which is the recovery memo) that there was also a

purse containing Rs.400/- which was seized, sealed and became the part

of the case property. However on oath in Court, the purse had been

produced by PW-1 himself and he had exhibited it categorically stating

that he had brought the purse which was lying with him. This also

creates a dent in the version of the prosecution.

10 Accordingly, giving benefit of doubt, the appellant is acquitted.

Appeal is allowed. Bail bonds cancelled. Surety discharged.

INDERMEET KAUR, J SEPTEMBER 30, 2014 A