Deepak Saini @ Mohd. Ali vs State
2016 Latest Caselaw 1951 Del

$
*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                             RESERVED ON : FEBRUARY 04, 2016
                             DECIDED ON : March 11, 2016

+      CRL.A. 1552/2013 & CRL.M.B. 7073/2015

       DEEPAK SAINI @ MOHD. ALI                             ..... Appellant
                             Through :   Mr.Rejender Chhabra, Advocate.
                             VERSUS

       STATE                                                ..... Respondent
                             Through :   Mr.Vinod Diwakar, APP.



+      CRL.A. 4/2013 & CRL.M.B. 7820/2015

       SHOKEEN                                       ..... Appellant

                             Through :   Ms.Manika Tripathy Pandey,
                                         Amicus Curiae with Mr.Ashutosh
                                         Kaushik,
                                         Advocate.
                             versus
       STATE                                               ..... Respondent
                             Through :   Mr.Tarang Srivastava, APP.

        CORAM:
        HON'BLE MR. JUSTICE S.P.GARG

S.P.GARG, J.

1. Aggrieved by a judgment dated 26.05.2012 of learned

Additional Sessions Judge in Sessions Case No.78/10 arising out of FIR

No.124/06 registered at Police Station Kotwali by which the appellants-

Deepak Saini @ Mohd.Ali (A-1) and Shokeen (A-2) were held guilty for

committing various offences punishable under Sections 392/397/307 IPC

and 27 Arms Act, they have filed the instant appeals. By an order dated

04.06.2012, they were awarded various prison terms with fine.

Substantive sentences were to run concurrently.

2. Briefly stated, the prosecution case as stated in the charge-

sheet was that on 23.03.2006 at 8.45 p.m. at shop No.539, Old Lajpat Rai

Market, Delhi, belonging to complainant Navdeep Gupta, the appellants

along with their associates Ummardin @ Ummer (since acquitted) and

Munna (since Proclaimed Offender) while armed with deadly weapons

committed robbery and inflicted injuries to him. The police machinery

came into motion on receipt of an information about the incident at 9.00

p.m. recorded by Daily Diary No.41 (Ex.PW12/A). The Investigation was

assigned to SI Ishwar Singh who with Ct.Amar Pal went to the spot. The

Investigating Officer after recording victim's statement (Ex.PW-8/A)

lodged First Information Report. A-1 was apprehended at the spot

whereas his associates managed to flee the spot. The victim was

medically examined. Statements of witnesses conversant with the facts

were recorded. Robbed articles and the crime weapons lying at the spot

were collected and seized. Initially, charge-sheet was filed against A-1

and Umardeen @ Ummer. Subsequently upon A-2's arrest, supplementary

charge-sheet was filed against him. Exhibits collected during investigation

were sent to Forensic Science Laboratory for examination. The

prosecution examined eighteen witnesses to substantiate its case. In 313

statement, the accused persons denied their involvement in the crime and

pleaded false implication. The Trial Court after considering the rival

submissions of the parties and on appreciation of the evidence, acquitted

Umardeen @ Ummer of the charges. It is apt to note that the State did not

challenge the acquittal. Being aggrieved and dissatisfied, the appellants

have preferred the instant appeals.

3. Learned counsel for the appellants urged that the Trial Court

did not appreciate the evidence in its true and proper perspective.

Material discrepancies and contradictions emerging in the statements of

the prosecution witnesses were over-looked on trivial grounds. Material

prosecution witnesses remained unexamined. FSL reports did not connect

the appellants with the crime. Learned Additional Public Prosecutor urged

that no valid grounds exist to disbelieve the complainant.

4. So far A-1's complicity in the crime is concerned,

admittedly, he was apprehended at the spot and his 'custody' was handed

over to the police. A-1 did not deny his presence at the spot. Suggestions

were put to the complainant in the cross-examination that when A-1 had

gone to the shop to purchase certain goods/articles, some 'boys' entered

the shop to commit robbery. When one of the assailants took out a knife,

it was snatched by A-1 and he broke it into two pieces as a result of which

he sustained injuries in his hands. A-1 did not produce any evidence

whatsoever in defence to prove as to what was the purpose of his visit to

the shop or whether he had actually gone there to make purchases. The

complainant in his statement (Ex.PW-8/A) given to the police at the first

instance named A-1 to be one of the assailants and assigned specific and

definite role to him in the crime. In his Court statement as PW-8 also, he

implicated A-1 and deposed that he was armed with a knife and he

sustained injuries due to fire by his associate at the spot. In his

confessional statement (Ex.PW-1/E) recorded by PW-1, learned

Metropolitan Magistrate, A-1 did not claim if he had visited the shop as a

customer. Rather he implicated himself and his associates for the crime.

The complainant identified knife (Ex.P-1) used by him at the time of

occurrence. The complainant was cross-examined at length. However, no

infirmity has been elicited in his cross-examination to suspect his version.

No ulterior motive was assigned to the complainant for falsely implicating

A-1 with whom he had no prior acquaintance. In the absence of any prior

enmity or ill-will, the independent public witness is not expected to falsely

implicate an innocent one. The complainant himself had sustained

'simple' hurt on his body during crime and he must be interested to bring

the real culprits to book. No sound reasons exist to disbelieve the

testimony of PW-8 regarding the role assigned to A-1 in the incident. The

Trial Court has discussed all the relevant statements of the prosecution

witnesses to establish A-1's guilt and the findings cannot be faulted

merely because certain minor or trivial discrepancies have emerged in the

statements of prosecution witnesses.

5. So far as A-2 is concerned, admittedly, he was not

apprehended at the spot. He was a stranger unacquainted with the

complainant and the other witnesses present at the shop. His involvement

surfaced when confessional statement (Ex.PW-1/E) was made by A-1.

However, the prosecution was unable to produce any evidence to

corroborate his version. Earlier A-2 was declared Proclaimed Offender

and proceedings under Section 174A IPC were initiated against him.

However, by the impugned judgment, A-2 was acquitted of the charge

under Section 174A IPC as the prosecution had not properly conducted

the proceedings under Sections 82 and 83 Cr.P.C. The prosecution did

not examine any witness to prove as to how and in what manner A-2 was

arrested in 2009. Record reveals that application for conducting his Test

Identification Proceedings was moved by the Investigating Officer.

However, the TIP proceedings were dropped by the learned Metropolitan

Magistrate on 08.04.2009 as the Investigating Officer was unable to

produce the witnesses. The fact remains that no TIP for identification of

A-2 took place. Adverse inference is to be drawn against the prosecution

for not conducting Test Identification Proceedings particularly when A-2

was apprehended after a long gap of more than two years and was not

known to the complainant and other eye-witnesses.

6. The complainant in his initial version to the police did not

give A-2's specific description. In his Court statement as PW-1, at the

time of his examination on 04.03.2009, he gave inconsistent statement and

identified Umardeen @ Ummer (since acquitted) to be the person who had

fired from the 'katta' as a result of which A-1 had sustained injuries on his

body. He did not assign any role to A-2 that time. The learned Additional

Public Prosecutor cross-examined him after seeking Court's permission.

In the cross-examination by learned Additional Public Prosecutor, he

admitted that on 04.05.2006, he was shown the 'photograph' in the police

station and he had identified the individual to be Umardeen @ Ummer

one of the assailants. This witness was recalled for further cross-

examination by learned Additional Public Prosecutor on 29.01.2010. This

time, he deposed that on 04.05.2006 his supplementary statement was

recorded. He further deposed that he had come to know the name of the

individual who had fired as A-2. He further deposed that A-2 is the

culprit who had fired at him and A-1. He admitted that the police did not

bring A-2 to his shop from January 2009 to December, 2009. He further

admitted that A-2 was seen by him for the first time in the court after the

crime. There appear material contradictions in the testimony of the

complainant regarding the identification of A-2 on two different dates of

his examination. The prosecution did not examine any other witness as to

when and in what manner A-2 was apprehended. No recovery of any

robbed article was effected from A-2 or at his instance. FSL reports

(Ex.PW6/A, Ex.PW6/B, Ex.PW6/C and Ex.PW6/D) do not connect him

with the crime. PW-8's testimony was considered deficient to record

conviction against Umardeen @ Ummer though he had identified him in

the Court. He was the individual who was allegedly standing outside the

shop to guard the spot.

7. The investigation conducted in this case is not up to the

mark. Material prosecution witnesses including Devender Kumar and

Chander Shekhar Kureel were not examined. Process given to PW-14 SI

Joginder Singh was returned unexecuted with the report that they were not

traceable. PW-11 (Virender), another witness to the incident though spoke

about the occurrence of robbery, was unable to identify A-2 to be one of

the assailants. Under these circumstances, A-2's conviction cannot be

sustained and is set aside.

8. In the light of the above discussion, A-1's (Deepak Saini @

Mohd.Ali)'s appeal lacks merits and is dismissed. A-2's (Shokeen)'s

appeal is allowed and his conviction and sentence are set aside. Pending

applications stand disposed of.

9. Copy of this order be sent to the Jail Superintendent for

information and necessary action. Trial court record be sent back along

with a copy of this order.

10. A-2 (Shokeen) be released forthwith if not required to be

detained in any other case.

(S.P.GARG) JUDGE March 11, 2016/sa