Delhi High Court
Shahrukh vs State on 19 May, 2016
$~R-26 to 28
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of Decision: 19th May,2016
+ CRL.A.508/2015
RAVI @ WASIM ..... Appellant
Through: Mr.Imran Khan, Adv.
versus
STATE ..... Respondent
Through: Mr.Amit Ahlawat, APP for State.
SI Pushpendra, PS. Kashmiri Gate.
+ CRL.A.1135/2015
SHAHRUKH ..... Appellant
Through: Mr.Imran Khan, Adv.
versus
STATE ..... Respondent
Through: Mr.K.S. Ahuja, APP for the State.
SI Pushpendra, PS. Kashmiri Gate.
+ CRL.A.932/2015
SURESH ..... Appellant
Through: Mr.Imran Khan, Adv.
versus
STATE ..... Respondent
Through: Mr.K.S. Ahuja, APP for the State.
SI Pushpendra, PS. Kashmere Gate.
PRATIBHA RANI, J. (Oral)
1. These appeals have been preferred by the appellants, namely, Ravi @
Wasim, Shahrukh and Suresh impugning the judgment dated 05.01.2015 and
order on sentence dated 13.01.2015 whereby they have been convicted for
committing the offence punishable under Sections 392/397/411/34 IPC and
sentenced as under :-
Appellant Ravi
(i) U/s 392 IPC - to undergo RI for 3½ years with fine of
₹2000/-.
(ii) U/s 397 IPC - to undergo RI for 7 years with fine of
₹3000/-.
(iii) U/s 411 IPC - to under RI for SI for one year.
Appellant Sharukh
(i) U/s 392 IPC - to undergo RI for 3½ years with fine of
₹2000/-.
(ii) U/s 397 IPC - to undergo RI for 7 years with fine of
₹3000/-.
(iii) U/s 411 IPC - to under RI for SI for one year.
Appellant Suresh
(i) U/s 392 IPC - to undergo RI for 3½ years with fine of
₹2000/-.
(ii) U/s 411 IPC - to under RI for SI for one year.
2. Case FIR No.236/2013 has been registered on the statement made by
Yogesh Kumar, PW1 whereby he reported that he was working at shop
No.2097/28 at Bhaagirath Palace and was resident of Bhajan Pura, Delhi.
On 11th September, 2013 at about 9:00 pm, he left his work place for going
to his house. When he reached BDS Office near Hanuman Mandir, Jamuna
Bazar, three persons came in front of him. One of them caught him and the
other two persons, who were having weapons, grappled with him. One of
them put knife on his abdomen and other put a razor (ustra) on his neck and
asked him to give whatever he had or face consequences. The third person
took out mobile phone, purse from his pocket, his purse was containing
`200/- with R.C. and motor vehicle license DL7SAX5753 as well his
driving license. All those three persons pushed him and started running
towards Kalkatia Gate, Jamuna Bazar. He raised alarm and chased those
three persons. Police officials on checking duty on hearing the alarm,
apprehended all the three persons while they were running.
3. In the meantime, he also reached there. Those three persons were
identified as Ravi, Shahrukh and Suresh. On search of Ravi, one mobile
phone was recovered from the right pocket of his pant and ustra from the left
pocket from Shahrukh, one mobile phone was recovered from the right
pocket of his pent and one vegetable cutting knife from the left pocket.
From Suresh, his purse containing `200/-, RC of motorcycle and driving
license were recovered.
4. All those three persons apprehended by the police officials on
checking duty alongwith complainant were brought to the police station
where they were produced before ASI Muninder Singh, who was on
emergency duty. The articles seized from them were also produced before
ASI Muninder Singh who recorded the statement of the complainant and
after making the endorsement Ex. PW9/A got FIR 236/2013 registered at PS
Kashmere Gate, Delhi
5. After completion of investigation, all the accused persons were
charge-sheeted. Since the offence allegedly committed were triable by the
Court of Sessions, the case was committed to the Court of Sessions.
6. During trial, three accused persons were charged for committing
offence punishable under Sections 392/411/34 IPC. Accused Ravi and
Shahrukh charged for committing the offence punishable under Section 397
IPC for allegedly using razor (ustra) and knife at the time of committing
offence.
7. Believing the testimony of PW1-Yogesh, the complainant and PW4-
Constable Vijay, who was part of the police team which apprehended the
accused persons and PW9 ASI Muninder Singh, the leaned Trial Court
convicted the appellants observing as under:-
"14. PW1 Yogesh Kumar had correctly identified all the
accused persons in the Court. He had also deposed that one
person caught him and remaining two grappled him while
he was coming from his work place to his house and
reached near BDS office, Near Hanuman Mandir. He had
narrated the incident that one of the persons put knife on his
stomach and another razor (ustra) on his neck and took him
towards the wall. He Had also deposed that from the
possession of accused person two mobile phones, one make
Nokiaand other Samsung were recovered. One razor was
also recovered from the possession of accused Ravi. From
the possession of accused Shahrukh, one Nolkia mobile
phone and one knife was recovered. He further deposed that
from the possession of accused Suresh, pocket purse was
recovered. Ld. Defence counsel tried to make dent in the
testimony of PW1 stating that witness has admitted that
there was darkness. However, the witness has explained in
the same breath there was electric light coming from the
electric pole. PW2 had explained the fact that mobile phone
bearing No.8802326133 was in his name and it was give by
him to his brother in law Yogesh on 11.09.2013. PW4 had
corroborated the fact that these three accused persons were
apprehended by him while he was on picket duty near
Kalkatia Gate on 11.09.2013 when he had seen three
accused persons running and one person chasing him. He
had also corroborated the story of PW1.
15. If we read the testimony of PW1, PW4 and PW9, then
it has come only conclusion that there accused persons had
robbed the complainant after putting ustra and razor on his
body. There is no reason to the complainant to depose
falsely. Defence of the accused Ravi that he was picked from
his house is not tenable particularly when the witness PW1,
PW4 and PW9 affirmatively deposed the fact that the
accused persons were apprehended at the spot and they
were taken to the police station and there the investigating
officer had recorded the statement of the complainant.
16. In view of the above discussions, I am of the view that
the prospection had proved its case against accused Ravi
and Shahrukh for the offence punishable under Sections
392/34 and 397/211 IPC. Prosecution had proved its case
against the accused Suresh for the offence punishable under
Section 392/34 IPC and Section 411 IPC. All the accused
persons are convicted accordingly."
8. On behalf of the appellants, it has been submitted that on the date of
occurrence, they were under the influence of Alcohol. They were living on
footpath at Jamuna Bazar, Hanuman Mandir and have no permanent place of
stay. On the date of occurrence, they were taken to the police station for
being under the influence of Alcohol. They have no criminal antecedents
and they do not know why they have been charged for committing the
offence of robbery or using knife or razor.
9. They further submitted that after they were taken to the police station,
they were given beatings and taken for medical examination. The appellants
have specifically denied committing any robbery or recovery of any razor,
knife, mobile, purse of the complainant from their possession. They have
further submitted that they are in custody since the date of arrest in this case
for the reason that even their family was not informed at their native place
and they are languishing in jail for no fault.
10. On behalf of the State, learned APP for the State has submitted that all
the appellants are vegabonds. The complainant Yogesh has fully supported
the case of prosecution so far as the commission of robbery on knife point
and putting razor on neck is concerned. Learned APP has submitted that the
complainant raised the alarm and the police officials who were on duty, on
hearing the alarm apprehended the three accused persons when they were
running after committing the offence and recovery has been effected from
them immediately thereafter.
11. Learned APP for the State has also referred to the statement of
constable Vijay who has corroborated the version given by PW1 Yogesh
which is further supported by the testimony of PW9 ASI Muninder Singh
before whom the complainant, the three accused persons alongwith the
recovered case property robbed from the complainant was produced.
12. Learned APP for the State has submitted that taking into consideration
the growing number of such types of incidents and that most of the time
even public persons do not come forward to lodge the report, it is a case
where complainant has fully supported the prosecution case, hence, the
impugned order does not warrant any interference.
13. I have carefully considered the rival contentions. Before appreciating
the testimony of the material witnesses i.e. PW Yogesh Kumar, PW 4
Constable Vijay Kumar and PW9 ASI Muninder Singh, it is necessary to
examine the sequence of events as reported in the complaint Ex. PW1/A and
the endorsement made thereon, on the basis of which FIR 236/2013 was
registered:
(i) On the date of occurrence i.e. 11th September, 2013 at about 9:00
PM, Yogesh Kumar was going from Baghirat Place to Bhajanpura, Delhi
and near BDS Office, near Hanuman Mandir, Yamuna Bazar he was caught
by three persons.
(ii) One of those persons caught him and other two persons grappled him
with one of them putting knife on his abdomen and another putting razor on
his neck, asking him to hand over whatever he had.
(iii) Third person took out mobiles and his purse.
(iv) Those three persons pushed him and started running towards Yamuna
Bazar and he also raised alarm and chased them.
(v) Police officials on checking duty heard his noise and caught all the
three persons while they were running.
(vi) In the meantime, the complainant also reached there.
(vii) In the presence of the complainant from the search of [email protected]
one mobile, make Samsung, was recovered from the right pocked of his
white pant and from the left pocket razor(ustra) was recovered. From the
right pocket of the pant of Shahrukh one mobile phone, make Nokia, and
from the left pocket, vegetable cutting knife, was recovered. From third
person Suresh his purse was recovered.
(viii) The endorsement on the rukka i.e. Ex. PW9/A records that Head
Constable Gajender and Constable Vijay and Constable Rakesh produced all
the three apprehended persons along with the recovered articles and the
complainant before ASI Muninder Singh.
(ix) After recording the statement of the complainant Yogesh Kumar FIR
was registered against the three accused persons for committing offence
punishable under Section 392/397/411/34 IPC.
14. A bare perusal of the above sequence of events reveal that
immediately after taking out the articles from the pocket of the complainant
and pushing him, all the three persons started running and at that time they
were also being chased by the complainant while raising alarm. They were
also apprehended by police officials on checking duty. Thus they hardly had
any time to distribute the robbed articles. The MLC of the accused persons
have been placed on record which are marked Ex. PW 10/A to 10/C and
records as under:
MLC No. Name Brought by Date & Time
2327/13 Ravi @ Wasim Ct. Rakesh 1127/N
12.09.13
at 2:10 AM
Alleged History - Assault by public approx 2 - 2 ½ hours back near
of Hanuman Mandir as told by himself.
- Opoid addiction x 5-6 yrs. 3-4 times/day.
Complaint of Pain in right foot and leg.
Oral Conscious, oriented.
Examination
Local - Tendum in right ankle.
Examination - Superficial abrasion over back.
- Old scar mark in left and chest wall.
Referred to SR Ortho for further evaluation and management.
MLC No. Name Brought by Date & Time
2326/13 Suresh Ct. Pawan 1675/N 12.09.13
at 2:00 AM
Alleged History - Beaten by public approx 4 hours back near Hanuman
of Mandir, Kashmere Gate as told by himself.
- Opoid addiction - 10 yrs. 4-5 times
Complaint of Pain in left forearm and right foot.
Oral Conscious, oriented.
Examination
Local - Swelling in Tendum over left forearm.
Examination - Bruise of sixe 02" x 01" over upper back.
- Bruise of size 02" x 01" over left iliac region.
- Tendum over right foot.
Referred to SR Ortho for further evaluation and management.
MLC No. Name Brought by Date & Time
2328/13 Shahrukh Ct. Vijay 1342/N12.09.13
at 2:20 AM
Alleged History - Assault by public approx 2 - 2 ½ hours back near
of Hanuman Mandir, Kashmere Gate as told by himself.
- Opoid addition x 2 ½ yrs. 3-4 times/day.
Complaint of Pain at injury site.
Oral Conscious, oriented.
Examination
Local - Tendum over left hand.
Examination - Old healing wound over left hand.
- Bruise in left thigh size 03" x 01"
- Multiple cut marks in left forearm.
Referred to SR Ortho for further evaluation and management.
15. They were referred to SR Ortho for further examination. On local
examination by the Ortho it was opined that the injuries were caused by
blunt object.
16. The question arises that when the complainant was chasing him while
raising alarm and the police officials caught them while they were still
running, where was the occasion for public to give beating to them, causing
multiple injuries on their bodies by blunt force. Statement of the
complainant PW1/A and the endorsement of rukka PW9/A do not mention
about any of the accused persons being given beating by the public. Rather
there was no intervening time between their alleged escape from the spot
after committing robbery and apprehension by the police on checking duty.
17. It may also be noticed that as per the statement of the Nodal Officer,
Aircel, Delhi Service Area Ex.PW3, no call was made by the petitioner on
11th September, 2013 hence location of his mobile could not be ascertained.
The date of occurrence as per the complainant is 11th September, 2013 at
9:00 PM the rukka in this case has been sent at about 10:50 PM and FIR has
been recorded at about 10:55 pm vide DD No. 37A. In ordinary course,
after such an incident, a person informs his family about the incident and
that he would be late in reaching home. But no such call was made by the
complainant from his mobile phone. The complainant PW1, Yogesh Kumar
claims that he was robbed on the point of knife and razor but not even a
scratch has been reported on his abdomen or his neck by him which makes
his testimony doubtful.
18. On critical analysis of the testimony and the statement of material
witnesses i.e. PW Yogesh Kumar, PW 4 Constable Vijay Kumar and PW9
ASI Muninder Singh before whom the complainant and the accused persons
along with the robbed property were produced, and the MLCs of all the
three accused, I am of the considered view that prosecution has failed to
prove its case against the appellants beyond reasonable doubts. There are
several lacuna, inconsistencies and loose ends in the case of the prosecution
which could not have been ignored by the Court while considering the
testimony of the complainant.
19. When the entire case is examined with reference to the MLCs which
show multiple injuries being caused to all the accused persons by blunt
force, there being no occasion for the public persons to intervene and to
assault the appellants. It appears to be a case where after giving beating to
the appellants, they have been implicated in this case, may be for the reason
that all of them are vagabonds. It is also necessary to mention here that the
arrest memos Ex. PW1/J, Ex.PW1/K1 & Ex.PW1/L-1 of the three accused
persons namely Suresh, Sharukh and Ravi respectively are not mentioning
the time of arrest. There is over writing and cutting in Column No. 6 where
date of arrest is required to be mentioned. In Column No. 9 which requires
the details of the "Persons of the Arrestee to be informed with address and
Telephone number, if any", it is mentioned against Column No. 9 as under:
"Radhey r/o Vagabond Jamana Bazar, K. Gate. Delhi
7838398050 (Friend)"
20. ASI Muninder Singh in his statement nowhere states as to who called
on this telephone number to inform Radhey who himself is a vagabond but
having mobile number and at what time it was informed.
21. Thus, I am of the considered opinion that prosecution has failed to
prove its case against the accused persons beyond reasonable doubt. The
learned Trial Court wrongly convicted the appellants for the evidence
adduced by the prosecution was indicating towards their innocence.
22. Consequently, the impugned judgment dated 5th January, 2015 and
order of sentence dated 13th January, 2015 are set aside. Appellants are
acquitted of the charge. They be released from custody, if not required in
any other case.
23. Copy of the order be sent to the Jail Superintendent for information
and compliance.
24. LCR be returned alongwith copy of this order.
PRATIBHA RANI, J.
MAY 19, 2016
'neelam/hkaur'
