Delhi High Court
Safaq Ahmad vs State on 28 April, 2017
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Reserved on: 28th March, 2017
Decided on: 28th April, 2017
+ CRL.A. 518/2015
SAFAQ AHMAD ..... Appellant
Represented by: Mr. Ajay Verma, Ms. Divya
Chugh, Advocates.
versus
STATE ..... Respondent
Represented by: Mr. Hirein Sharma, APP for the
State with SI Om Parkash PS
Anand Parbat.
CORAM:
HON'BLE MS. JUSTICE MUKTA GUPTA
1. The instant appeal has been filed by the appellant Safaq Ahmad
challenging the impugned judgment dated 18th September, 2014 whereby the
appellant has been convicted for the offences punishable under Sections
393/398 IPC and Section 25/27 of the Arms Act in FIR No. 34/2013
registered at PS Anand Parbat and the order on sentence dated 22nd
September, 2014 directing him to undergo rigorous imprisonment for a
period of five years and to pay a fine of `5,000/- for the offence punishable
under Section 393 IPC, rigorous imprisonment for a period of seven years
for the offence punishable under Section 398 IPC and rigorous imprisonment
for a period of one year and to pay a fine of `2,000/- for the offence
punishable under Section 25/27 Arms Act
2. Assailing the conviction, learned counsel for Safaq Ahmad submits
that no injury was sustained by PW-3 Rajesh Kumar. In the absence of
corroboration from any independent witness, conviction cannot be based on
the sole testimony of Rajesh.
3. Per contra, learned APP for the State submits that there is no infirmity
in the impugned judgment of conviction and order on sentence.
4. The prosecution case is that on 9th March, 2013 when Rajesh Kumar
was standing in front of his shop, Gullu (the appellant herein) came there,
took out a knife from his pant and put it on the abdomen of Rajesh. He asked
Rajesh to take out the money whatever he had, otherwise he would stab him.
In the meantime, Rajesh saw PW-6 SI Bal Mukund Rai along with two other
policemen who were in uniform and raised alarm, as a result of which Gullu
tried to flee. However, he was apprehended. On the basis of the statement of
Rajesh, FIR No. 34/2013 was registered under Sections 393/398 IPC at PS
Anand Parbat. On formal search of the appellant, knife was recovered. Site
plan was prepared by SI Bal Mukund Rai at the instance of Rajesh.
5. Rajesh Kumar deposed in conformity with his statement made before
the police. During his cross examination, he stated that he wanted to
withdraw the case as he was receiving continuous threats from the appellant.
6. PW-2 Smt. Veena Devi, mother of Rajesh, corroborated the version of
Rajesh. She also stated that the appellant was well known to her as he was
residing in her locality and was a criminal. Since the people in the locality
are afraid of the appellant, nobody came forward to depose against him.
Prior to this incident, the appellant along with his 2-3 associates had come to
her shop where she sold eggs, ate eggs three times and whenever she
demanded money, he used to beat her husband and daughter.
7. Though apparently the statement of Rajesh duly corroborated by his
mother proves the prosecution case as held by the learned Trial Court,
however a close scrutiny of the record shows material improvements and
contradiction. Though Smt. Veena Devi claims to be an eyewitness having
incidentally gone out of the house to take red chillies from her egg rehri
however, neither in the FIR nor in his deposition, Rajesh claims her mother
being present at the place of incident and having witnessed the incident.
Further even from the testimony of the Police witnesses who were claimed to
be present at the spot, the presence of Smt. Veena is not deposed to. Smt.
Veena has not signed any of the memos stated to be prepared at the spot.
Further in her examination in chief Smt. Veena deposes that on the 12 th
August, 2013, brother of the appellant had met her son at Patel Nagar and
threatened to kill him if he deposed against the appellant. Firstly this fact
has not been deposed to by Rajesh to whom threat was purportedly extended,
moreover appellant has produced certified copies of the order and judgment
dated 23rd September, 2013 in FIR No.585/2003 under Section 302/174/34
IPC registered at PS Kirti Nagar showing that on 12 th August, 2013 brother
of the appellant was in judicial custody and thus could not have threatened
Rajesh at Patel Nagar. Thus no reliance can be placed on the testimony of
Smt. Veena mother of Rajesh.
8. This Court is thus left with the testimony of Rajesh and the fact that as
per the prosecution case SI Bal Mukund and two other police apprehended
the appellant at the spot with a knife.
9. No doubt conviction of the appellant can be based on the sole
testimony of Rajesh, if it inspires confidence. Though in the FIR itself
Rajesh gives the name of the appellant and that he is involved in offences, in
his deposition Rajesh admits that he had not seen the appellant prior to the
incident and did not know him. Though Rajesh claims to be a witness to the
apprehension of the appellant and recovery of the knife from appellant in his
presence, however in cross-examination he admitted that the appellant was
brought to his rehri after 10 to 15 minutes of his running away and when the
Police officer reached near his rehri with the appellant the knife was in the
hand of SI Bal Mukund. He identified the knife as the one in the hand of SI
Bal Mukund and not as the one shown to him by the appellant.
10. Considering the inherent contradictions in testimony of Rajesh Kumar
and that the testimony of Smt. Veena Devi is not reliable, this Court finds it
to be a fit case where the appellant is entitled to the benefit of doubt.
Consequently, the conviction of the appellant for offences punishable under
Section 393/398 IPC and Section 25/27 of Arms Act and the order on
sentence are set aside. Appeal is disposed of.
11. Appellant be released forthwith if not required in any other case.
Copy of this order be sent to Superintendent Central Jail Tihar for updation
of the Jail record.
12. TCR be returned.
(MUKTA GUPTA)
JUDGE
APRIL 28, 2017
'ga'
