Delhi High Court
[email protected] vs State on 26 April, 2017
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.A. No.554/2001
Date of Decision : 26th April, 2017
[email protected] ..... APPELLANT
Through Ms.Geeta Luthra, Sr. Adv. with
Ms.Parul Sharma, Adv.
Versus
STATE ..... RESPONDENT
Through Mr.Panna Lal Sharma, Additional
Public Prosecutor for the State.
WITH
CRL.A. No.563/2001
[email protected]@RAHUL ..... APPELLANT
Through Ms.Geeta Luthra, Sr. Adv. with
Ms.Parul Sharma, Adv.
Versus
STATE ..... RESPONDENT
Through Mr.Panna Lal Sharma, Additional
Public Prosecutor for the State.
CORAM:
HON'BLE MR. JUSTICE P.S.TEJI
P.S.TEJI, J
1. Both these appeals are disposed of together by this common
judgment as the same have been preferred against a common
judgment of conviction and order on sentence.
2. The present appeals have been filed by the appellants i.e.
[email protected] (Appellant in Crl.A. No.554/2001) &
[email protected]@Rahul (Appellant in Crl.A. No.563/2001),
aggrieved by the judgment of conviction dated 30th July, 2001
convicting the appellants finding them guilty under Section 394 of
the Indian Penal Code (IPC) and order on sentence dated 31st July,
2001 vide which the sentence was passed under Section 394/34 of
the IPC against the appellants to undergo rigorous imprisonment
for a period of four years. The accused were granted benefit of
Section 428 Cr.P.C.
3. The facts in brief are that on 19th October, 1999 SI Kali Ram
along with HC Uday Singh, HC Vinod Kumar and Ct.Daya
Prakash while on patrolling duty at Ajmeri Gate, New Delhi
Railway Station, noticed two boys running towards them while the
complainant i.e. Ramesh Chand Sharma, was chasing them,
shouting "Pakdo Pakdo" upon which SI Kali Ram with the help of
his above mentioned colleagues, apprehended them. The accused
[email protected] (Appellant in Crl.A. No.554/2001), was having
Rs.220/- in his hand. As per the statement of the complainant, he
was conductor in white line bus and that on 19th October, 1999
while he was counting cash in the bus, the said two boys came
inside and threatened him to hand over the cash else they would
kill him and upon denial by the complainant one boy i.e.
[email protected]@Rahul (Appellant in Crl.A. No.563/2001), caught
hold of his collar while Sudesh snatched cash from him and gave
blade injury on the left side of his neck and right side of his knee.
The complainant raised noise upon which driver of the bus alighted
from the bus and one Raju, helper in the bus, also approached.
Thereafter, the accused persons, who ran towards outer gate side of
the Railway Station, were chased by all these persons by saying
"pakdo pakdo" when police also approached and apprehended
them. Thereafter, recovery of Rs.220/- was effected from the
accused Sudesh; ruqqa was prepared at the spot; case was
registered; complainant was medically examined and pant of the
complainant and shirt of the accused were taken into possession
which were sent to the Forensic Science Laboratory. It emerges
from the record that charges under Sections 394/397/34 of the
Indian Penal Code were framed against the accused to which they
pleaded not guilty and claimed trial.
4. The appellants were held guilty by the learned Additional
Sessions Judge, Delhi and by an order dated 30th July, 2001, both
the appellants were sentenced to undergo rigorous imprisonment
for a period of four years under Section 394/34 of the IPC.
5. The main ground of challenges are that in the evidence i.e. at
the time of examination before the Trial Court, the complainant
stated that he did not remember the date, month and year of
incident; he could not identify the person who assaulted him at his
neck by sharp weapon while he was sitting on the middle portion
of the bus and distributing tickets and that in the trial court, the
complainant stated that the accused took away Rs.240/- while in
the statement recorded under Section 161 Cr.P.C., he stated that a
sum of Rs.220/- was snatched in the robbery. There was non-
examination of the doctor who was an important witness. No MLC
was prepared in this case and only CR No.48287 was there in
which it was stated on a plain paper that wound was not fresh and
appeared to be six-eight hours old and that the time of incident was
3.45 p.m. meaning thereby the victim was injured before the
incident. The plea of the appellant regarding the evidence of PW-9
was not considered by the court below. Weapon of offence was
not recovered by the police and in absence thereof, offence under
Sections 394/397 were not made out. Evidence of PW 5 were not
taken into consideration. The incident occurred on 19th October,
1999 at 2.55 p.m. while the time shown in the arrest memo was
4.00 p.m. There is delay in lodging the FIR.
6. Per contra, argument advanced by learned Additional Public
Prosecutor for the State is that the appellants were rightly held
guilty under Section 394/34 of the Indian Penal Code. It was
submitted that on 19th October, 1999, while SI Kali Ram along
with his colleagues, were on patrolling duty at Ajmeri Gate,
NDRS, they heard the noise "pakdo pakdo" and they apprehended
the accused persons who were coming towards them. Thereafter,
upon apprehension of the accused persons, recovery of Rs.220/-
was effected from the accused Sudesh and that the complainant
was found having injuries on his neck and knee.
7. I have heard learned senior counsel for appellants as well as
learned Additional Public Prosecutor for the State.
8. The prosecution had examined as many as nine witnesses
namely PW 1 HC Sh.Shashi Bhushan; PW 2 Ramesh; PW 3
Mukesh Kumar; PW 4 SI Kali Ram; PW 5 HC Vinod Kumar; PW
6 HC Babu Lal; PW 7 Const.Daya Parkash Kaushik; PW 8
Sh.Yogesh Kumar & PW 9 Const.Dalip Singh. The statement of
the accused persons Sudesh and Vivek were recorded under
Section 313 of the Cr.P.C.
9. It emerges from the record that vide order dated 1st
November, 2002 passed by this court, the sentence of the appellant
Sudesh was suspended during the pendency of the appeal while the
sentence of the accused Vivek was suspended vide order dated 19th
February, 2003. As per the nominal roll dated 14th September,
2001, in respect of the accused Sudesh, as on 12th September, 2001,
he had undergone the sentence of three years seven months and
fifteen days while the accused Vivek as per the nominal roll, as on
19th February, 2003, had undergone the sentence of one year eight
months and seven days.
10. Upon hearing the rival contentions of the parties at length,
evidence led is being examined.
11. PW 1 HC Shashi Bhushan in his statement stated that on 19th
October, 1999 while he was posted at Police Station New Delhi
Railway Station, he received ruqqa Ex.PW 1/A from PW 7
Ct.Daya Parkash on the basis of which he registered FIR and
thereafter handed a copy thereof along with ruqqa to PW 7.
12. PW 2 Ramesh in his statement stated that he did not
remember the date, month and year of the incident but only the fact
that the same occurred about two years back when he was working
as conductor in white line route bus. PW 2 further stated that on
the date of incident at about 1.00 p.m., when the bus reached at
New Delhi Railway Station while he was sitting on the middle
portion of the bus and was distributing tickets to passengers,
somebody assaulted him on his neck with sharp edge weapon. He
further stated that he could not identify these persons for the reason
that he became unconscious. The driver of the bus also alighted.
PW 2 stated that from his cash bag, the persons took away a sum of
Rs.220/- and that the persons present in the court were not among
those boys who assaulted him on the date of incident; snatched
Rs.220/- from him and caused injury on his neck. He further added
that the accused present in the court were neither apprehended by
him nor by the driver Mukesh and the helper Raju. PW 2 stated
that Ex.PW 2/A bore his signatures at point 'X' but he did not give
that statement to police. This witness stated that one sealed parcel
bearing the FSL seal was opened; one blood stained pant which he
was wearing at the time of incident was taken into possession by
the investigating officer, who thereafter sealed the same with the
seal of KRS, vide memo Ex.PW 2/B which bore his signature at
point 'X'.
13. PW 3 Mukesh Kumar who was the driver of the bus, in his
statement stated that he knew nothing about the case and that he
saw only the crowd when he stopped the bus at New Delhi Station.
He further stated that the conductor of the bus i.e. PW 2 Ramesh
was assaulted by somebody. PW 3 stated that the accused persons
present in Court were never apprehended by him with the help of
helper Raju and that Ramesh was injured. This witness stated that
his statement was not recorded by the police.
14. PW 2 Ramesh & PW 3 Mukesh Kumar are the star witnesses
of the present case. PW 2 is the victim of the incident with whom
the alleged robbery had taken place apart from assaulting him. The
case of the prosecution is that on the date of incident, both the
appellants robbed Rs.220/- from PW 2 who was deputed as
conductor on a bus. The case of the prosecution has not been
supported by PW 2. In his testimony, he has stated that though he
was robbed and assaulted but the accused persons/appellants herein
present in the Court were not amongst those persons who had
robbed him or assaulted him.
15. PW 3 Mukesh Kumar was deputed as driver in the bus in
which the robbery had taken place. As per prosecution, PW 3 had
seen the incident and also identified the accused persons when they
were allegedly apprehended at the spot. But this witness has also
not supported the case of the prosecution. He has specifically
stated that he saw only the crowd when he stopped the bus at New
Delhi Railway Station. He categorically stated that none of the
appellants was ever apprehended by him or by anyone else.
16. In view of the testimony made by PW 2 & PW 3, the
prosecution has failed to establish beyond reasonable doubt against
the appellants that they had robbed PW 2 or assaulted him on the
date of incident as they were not identified being robbers or
assailants by both these witnesses.
17. Perusal of impugned judgment of conviction shows that the
court below based its reasoning on the basis of testimony of police
officials and the documents prepared. But the fact remains that
none of the police officials was witness to the incident of robbery
or assault to PW 2. As per the case of prosecution itself, the role of
police officials came into play only after the apprehension of
appellants from near the spot. Since they were not the eye witness
to the incident, it is not safe to base the conviction of the appellants
on the basis of testimony of police officials and the documents
prepared in the absence of their identification by PW 2 & PW 3.
18. In view of the above discussed evidence, this court is of the
considered opinion that the prosecution has not been able to prove
its case against the appellants beyond reasonable doubt to the effect
that they had committed the robbery or assaulted PW 2 on the date
of incident and thus the appellants deserve to be acquitted.
19. Consequently, as discussed above, the judgment of
conviction and order on sentence passed against the appellants are
set aside. The appellants are accordingly acquitted.
20. The appellants are on bail. Their bail bonds and surety
bonds stand discharged.
21. Both the appeals are accordingly allowed and disposed of.
(P.S.TEJI)
JUDGE
APRIL 26, 2017
aa
