Uday Kumar Sinha vs State
2015 Latest Caselaw 744 Del

$~29
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

+       CRL. A. No. 245/2011
                                            Reserved on 20th January, 2015

                                            Decided on 28th January, 2015

        UDAY KUMAR SINHA                               ..... Appellant
                    Through          :Mr. S.B.S. Vashishtha, Adv.

                         Versus

        STATE                                         ..... Respondent
                         Through     : Mr. Amit Ahlawat, APP
CORAM:
HON'BLE MR. JUSTICE A.K. PATHAK

A.K. PATHAK, J.

1. Aggrieved by his conviction under Sections 394/397 of the Indian

Penal Code, 1860 (IPC) and Section 25 of the Arms Act, 1959 appellant has

preferred this appeal.

2. Prosecution case, as set out in the charge-sheet, is that on 10th

November, 2005, an information was received in the Police Station Tilak

Nagar at about 4:45 PM that two/three persons, armed with revolver, had

come to the premises bearing no. 5-B/17, Meenakshi Garden, Delhi,

pursuant whereof DD No. 13-A was recorded and handed over to Sub

Inspector D.P. Kajla for enquiry, who along with Constable Devender

reached the spot and recorded statement of Bhupinder Kumar, (Ex.PW3/A)

wherein he stated that he was employed as an Accountant in Sudhir Printers.

He was present in the office along with Ajit Khurana and Sunil Kumar when

at about 4:20 PM, three boys, namely, Mushir Ahmed @ Babloo armed with

desi katta, Uday Kumar Sinha (appellant) armed with a dagger and Shyam

armed with a razor, entered in the room and bolted it from inside. Mushir

Ahmed @ Babloo asked all of them to raise their hands by pointing desi

katta. Mushir Ahmed @ Babloo removed purse from the pants pocket of

Ajit Khurana, appellant took out the purse from the pocket of Sunil Kumar

while Shyam removed purse from the pocket of Bhupinder Kumar.

Thereafter, Mushir Ahmed @ Babloo commanded Ajit Khurana to hand

over the keys of Almirah to him. When Ajit Khurana refused to do so,

appellant and Mushir Ahmed @ Babloo gave beatings to him. Mushir

Ahmed @ Babloo fired at Ajit Khurana and the bullet hit the right leg of

Ajit Khurana. Sunil Kumar was attacked by Shyam by the razor resulting

injuries on the left hand of Sunil Kumar. Ajit Khurana and Sunil Kumar

raised alarm at which Shyam threw the razor and took out a katta and fired

in the air. Thereafter, appellant, Mushir Ahmed @ Babloo and Shyam

started running in order to escape. Sunil Kumar apprehended Mushir Ahmed

@ Babloo near the door. However, appellant and Shyam succeeded in

escaping. Bhupinder Kumar chased them while raising alarm "pakro-pakro".

Appellant was apprehended in the Gali by one Mr.Raghubir Singh @ Rinku

and two police officials namely, Head Constable Sunder Singh and

Constable Satender, who were on patrolling in the area. Ajit Khurana was

removed to hospital. Mushir Ahmed @ Babloo and appellant were handed

over to Sub Inspector D.P. Kajla, (Appellant and his accomplices were not

known to Bhupinder, Ajit and Sunil and their names were disclosed after

appellant and Mushir Ahmed were apprehended).

3. After recording the statement of Ajit Khurana, Sub Inspector D.P.

Kajla wrote rukka (Ex. PW5/A) and sent it to Police Station at about 6:30

PM per hand constable Devender Kumar for registration of FIR, pursuant

whereof FIR no. 729/2005 was registered in the Police Station Tilak Nagar

under Sections 394/397/34 IPC read with Section 25 of the Arms Act.

Investigation was thereafter handed over to Sub Inspector Ramesh Singh,

who reached the spot and prepared site plan (Ex. PW14/A), prepared sketch

of desi katta and empty cartridge (Ex. PW3/H); sketch of razor (Ex. PW3/J);

sketch of dagger recovered from appellant (Ex. PW3/D). He prepared

sketch of live cartridge recovered from Mushir Ahmed (Ex. PW3/A).

Dagger, razor, desi katta, live cartridge and pellets were seized vide seizure

memos Ex. PW3/E, Ex. PW3/K, Ex. PW3/I, Ex. PW3/C and Ex.PW3/L

respectively. Purse recovered from the appellant was seized vide seizure

memo Ex. PW3/F, purse recovered from Mushir Ahmed was seized vide

seizure memo Ex. PW3/G. Mushir Ahmed and appellant were arrested vide

Arrest Memos Ex.PW3/M and Ex.PW3/P. Accomplice of the appellant,

Shyam could not be apprehended. MLC of Ajit Khurana (Ex.PW1/A) and

MLC of Sunil (Ex.PW1/B) was collected.

4. After completion of investigation, the appellant along with Mushir

Ahmed were sent up to face trial by filing charge-sheet in the court of

Metropolitan Magistrate, Delhi, who after making compliance of Section

207 of the Code of Criminal Procedure, 1973 (Cr.P.C.), committed the case

to the Sessions Court for trial.

5. Charges under Sections 397/34 IPC were framed against the appellant

and Mushir Ahmed on 1st March, 2006 to which they pleaded not guilty and

claimed trial. Separate charge under Section 25 of the Arms Act was framed

against the appellant on the same day to which he pleaded not guilty and

claimed trial. During the trial, Mushir Ahmed jumped the bail and could not

be apprehended. He was declared proclaimed offender vide order dated 7th

January, 2008.

6. Shri Bhupinder Kumar, Shri Ajit Khurana and Shri Sunil Kumar are

material witnesses to prove the incident of robbery and they were examined

as PW3, PW4 and PW9, respectively. As per the prosecution, Shri Raghubir

Singh @ Rinku, Constable Satender and Head Constable Sunder Singh had

apprehended the appellant. They have been examined as PW7, PW6 and

PW13 respectively to prove that appellant was apprehended in the Gali

immediately after the incident. PW3 Bhupinder Kumar had also given a

chase to appellant and had deposed about the apprehension of the appellant.

Deposition of PW5 Sub Inspector D.P. Kajla is also relevant since he had

reached the spot after the incident and appellant was handed over to him.

PW1 Dr. R.K. Mishra had medically examined Ajit Khurana and Sunil

Kumar and has deposed in this regard. PW14 Inspector Ramesh Singh is the

Investigating Officer and has given overall view of the investigation

conducted by him. All other witnesses are formal in nature, having joined

the investigation at one or the other stage.

7. Trial court has found testimonies of PW3 Shri Bhupinder Kumar,

PW4 Shri Ajit Khurana, PW9 Sunil Kumar, PW6 Contable Satender, PW7

Shri Raghubir Singh @ Rinku, PW13 Head Constable Sunder Singh

trustworthy and reliable so as to conclude that appellant along with his

accomplices, armed with dagger, had entered in the office of Sudhir Printers,

where Bhupinder Kumar, Ajit Khurana and Sunil Kumar were present and

robbed them of their purses containing money and certain other papers;

while committing robbery appellant‟s accomplices caused injuries to Ajjit

Khurana and Sunil; and further that appellant was apprehended by Raghubir

Singh @ Rinku with the help of Head Constable Sunder Singh and

Constable Satender in the Gali immediately after the incident of robbery and

a dagger was recovered from him. Accordingly, appellant has been

convicted under Sections 394/397 IPC and Section 25 of the Arms Act.

8. Learned counsel for the appellant has contended that appellant has

been falsely implicated in this case. He was not apprehended at the spot.

Dagger was not recovered from him. He was picked up from his place of

work and implicated in this case. Learned counsel has vehemently

contended that prosecution case suffers from various inherent discrepancies

and material inconsistencies with regard to the time of incident as also about

apprehension of the appellant from the spot. Statements of witnesses suffer

from material inconsistencies on the above points thereby entitling the

appellant benefit of doubt, resultantly in his acquittal. During the course of

hearing, such material inconsistencies have been elaborated. Per contra,

learned APP has supported the view taken by the trial court. He has

contended that PW3 Bhupinder Kumar, PW4 Ajit Khurana and PW9 Sunil

Kumar have categorically deposed that appellant along with his accomplices

had entered in the room on the fateful day. Appellant was armed with

dagger while his accomplices were armed with desi kattas and razor. All the

three witnesses have described the incident in the same manner in which it

has been described in the FIR, inasmuch as appellant was apprehended

immediately after the incident in the Gali while trying to escape, by PW7

Raghubir Singh @ Rinku with the help of two police officials, that is,

Constable Satender and Head Constable Sunder Singh, who were on

patrolling duty in the area. All these witnesses have corroborated each other

with regard to apprehension of appellant in the Gali by them and also about

recovery of dagger and purse from him. He has contended that there is no

reason to disbelieve their statements, which are trustworthy and reliable.

9. I have considered the rival contentions of both the parties and perused

the trial court record carefully and I am of the view that prosecution case

suffers from material inconsistencies with regard to time of incident as also

about apprehension of appellant at the spot. In his statement Ex. PW3/A,

PW3 Bhupinder Kumar has given the time of incident as 4:20 PM. Even in

the rukka, time of incident has been mentioned as 4:20 PM. While deposing

in Court also PW3 has given time of incident as 4:20 PM. PW4 Ajit

Khurana has given time of incident as 4/4:30 PM. PW9 Sunil Kumar has

given time of incident as 4:15/4:30 PM. As per DD No. 13-A also the

information was received at about 4:45 PM. Meaning thereby that incident

took place after 4:15 PM. However, PW1 Dr. R.K. Mishra has deposed that

at 3:14 PM he had examined Ajit Khurana, who was brought in the hospital

by one Constable from P.S. Tilak Nagar. He further deposed that on the

same day at 3:16 PM he had examined Sunil Kumar. A perusal of MLCs of

Ajit Khurana and Shri Sunil Kumar also shows that Shri Ajit Khurana and

Shri Sunil Kumar were medically examined at 3:14 PM and 3:16 PM,

respectively. PW1 is an independent witness and not related to any of the

victims. There is no reason as to why he would tell a lie about the time of

medical examination of Ajit Khurana and Shri Sunil Kumar. Besides this,

time as mentioned in the MLCs, prepared immediately after the incident, has

to be preferred and relied upon as against the ocular statements of witnesses.

Meaning thereby incident, if at all had taken place, took place at least 15

minutes prior to the medical examination of Ajit Khurana and Sunil Kunar

in the hospital since it would have taken that much of time in shifting the

injured persons from the place of incident to hospital. If that is so, then Ajit

Khurana and Sunil could not have sustained injuries in the incident allegedly

took place at 4.15 PM. This difference in time has remained unexplained

and makes the prosecution story suspicious and doubtful. This creates a

doubt about the veracity of the version of witnesses in the FIR and

subsequent deposition in Court.

10. Apprehension of the appellant at the spot is also doubtful. PW3 Shri

Bhupinder Kumar has deposed that appellant ran away after the incident and

was chased by him. When he reached in the gali, one Rinku and two police

officials, who were present there, apprehended the appellant on the alarm

raised by him. PW7 Shri Raghubir Singh has deposed that he apprehended

the appellant and snatched dagger from him and handed over to the police

officials, who also chased the appellant. PW6 Constable Satender has

deposed that he saw two boys being chased by other two boys by raising

alarm „pakro-pakro‟ at which he along with Head Constable Sunder Singh

also ran after them and with the help of public apprehended one boy

(appellant). PW13 Head Constable Sunder Singh claimed that he had

apprehended the appellant with the help of Constable Satender and one

public person, though as per PW6, appellant was apprehended by the public

person. Be that as it may, it is, thus, clear that according to above witnesses,

appellant was apprehended immediately after the incident. Meaning

thereby, appellant would have been apprehended much prior to 4:45 PM.

DD No. 13-A recorded after 4:45 PM and handed over to Sub Inspector D.P.

Kajla for enquiry, who reached the spot thereafter. PW5 Sub Inspector D.P.

Kajla has deposed, in his cross-examination, that when he reached the spot,

appellant was not there. He was brought at the spot after 25 minutes of his

reaching at the spot. His this statement creates a serious doubt about the

apprehension of appellant at the spot immediately after the incident. Had

appellant been apprehended in the manner as has been described by PW6

Constable Satender and PW7 Raghubir Singh @ Rinku and PW13 Head

Constable Sunder Singh, appellant would have been very much present at

the spot when PW5 Sub Inspector D.P. Kajla reached the spot. It may

further be noted that appellant was arrested at 9:30 PM, as is evident from

the arrest memo Ex. PW3/D. Why it took more than four hours to arrest the

appellant, who was available at the spot, has also remained unexplained. In

view of the discrepancies as noted hereinabove, apprehension of the

appellant at the spot immediately after the incident, in the manner as has

been described by the concerned witnesses, is doubtful and suspicious and

assumes importance in view of the inconsistency with regard to time of

incident.

11. For the foregoing reasons, I am of the view that appellant is entitled to

benefit of doubt. Accordingly, impugned judgment and order on sentence

are set aside and appellant is acquitted. Appellant is in Jail and be released

forthwith, if not wanted in any other case.

12. Appeal is disposed of in the above terms.

A.K. PATHAK, J.

JANUARY 28, 2015 rb