Mohd. Abid vs State
2017 Latest Caselaw 2923 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI

                                              Judgment reserved on : May 31, 2017
%                                           Judgment pronounced on: June 16, 2017



+                                 CRL.A. 291/2016
        WASIM AHMED                                         ..... Appellant
                                  Through :     Mr. Habibur Rahman, Adv.
                                                (DHCLSC)
                                  versus
        STATE                                              ..... Respondent
                                  Through :     Mr. Amit Ahlawat, Addl. PP for
                                                State.

+                                 CRL.A. 300/2016
        MOHD. JAVED                                         ..... Appellant
                                  Through :     Mr. Harsh Prabhakar, Adv.
                                                (DHCLSC)
                                  versus
        STATE                                              ..... Respondent
                                  Through :     Mr. Amit Ahlawat, Addl. PP for
                                                State.

+                        CRL.A. 581/2016
        MOHD. ABID                                         ..... Appellant
                                  Through :     Ms. Suman Chauhan, Adv.
                                                (DHCLSC)

                                  versus
        STATE                                              ..... Respondent
                                  Through :     Mr. Amit Ahlawat, Addl. PP for
                                                State.



Crl. A. Nos. 291/16, 300/16, 581/16 & 1143/16                            Page 1 of 25
 +                        CRL.A. 1143/2016
        MOHD. SAFIQ                                         ..... Appellant
                                  Through :     Ms. Saahila Lamba, Adv.
                                                (DHCLSC)

                                  versus
        STATE                                               ..... Respondent
                                  Through :     Mr. Amit Ahlawat, Addl. PP for
                                                State.

CORAM:
HON'BLE MR. JUSTICE A. K. CHAWLA


                                     JUDGMENT

A. K. CHAWLA, J.

Appellants - Wasim Ahmed, Mohd. Javed, Mohd Abid and Mohd.

Shafiq were charged for the trial of the offences under Sections

328/379/34 IPC besides the offence under Section 411 IPC. Vide the

impugned judgment dated 19.01.2016, all of them were convicted for the

said offences and vide the impugned order on sentence dated 21.01.2016,

all of them were sentenced to undergo 4 years RI for the offence under

Section 328/34 IPC; 3 years RI for the offence under Section 379/34 IPC;

and, 1 year RI for the offence under Section 411 IPC respectively. They

were also sentenced to pay fine of Rs.3,000/- and Rs.2000/- respectively,

for the offences under Section 328/379/34 IPC. In default, they were to

undergo 3 months and 2 months SI respectively. All of them have

assailed the impugned judgment and the order on sentence by filing

separate appeals. All the four appeals are being dealt with by this common

judgment.

2. According to the prosecution, one 'Nabi Ulla', aged about 22 years,

who was a painter by profession and residing with his mausi's son at Ram

Vihar, Nangloi, had left Ram Vihar, to go to his native place at Hardoi,

UP in a bus on 18.08.2012 at about 12 noon. In the bus, he met two boys,

one of whom was of heavy built and other of a medium built aged about

25/26 years. They developed friendship and got down at Peeragarhi to

reach the railway station early and for that, hired an auto. On the way, auto

driver calls a person by his name 'Wasim' and makes him sit in the auto to

be also taken to the railway station. As per the description given by 'Nabi

Ulla', said 'Wasim' was aged about 40 years and of thin built. Then,

according to prosecution, when they reached Inderlok Metro Station, the

auto was stopped and 'Wasim' purchased bottles of Maza from a shop

nearby and they all drank Maza. On this, 'Nabi Ulla', started feeling

intoxicated and sleepy. Thereafter, the accused-the appellants dropped

'Nabi Ulla' near Gurudwara, where 'Nabi Ulla' vomitted a lot. On

regaining consciousness, 'Nabi Ulla' asked a passerby to call police and for

the purpose, gave his mobile. Passerby called the police on number 100.

PCR vehicle reached in sometime and took 'Nabi Ulla' to the Hindu Rao

Hospital. In the process, a bag of orange colour containing some clothes,

an election I-card and about Rs.500/- of Rs.100/- currency notes from the

pocket of victim, went missing. On the receipt of information by PS Sarai

Rohilla at 2:40 PM that a person was lying unconscious near Usha Mata

Mandir, Shazada Bagh near Gurudwara, HC Naresh went to the spot and

getting to know that the person lying unconscious was taken to Hindu Rao

Hospital, went there alongwith his staff. On reaching the hospital, he

collected the MLC, which recorded the alleged history of drinking of

some liquid half an hour before. The doctor declared the patient fit for

statement at 5.30 p.m. and gave a sealed gastric lavage sample, which was

seized. On the statement of 'Nabi Ulla' recorded by HC Naresh Pal, an FIR

No.218 dated 18.08.2012 came to be registered at PS Sarai Rohilla at 6:50

PM. Investigation thereof was assigned to SI G.N. Tiwari. On that very

day i.e. 18.08.2012 at about 7 PM, on the receipt of a secret information

by SI Ravinder Singh of AATS, in his office at Daya Basti, that a gang of

4/5 persons was involved in robbing of passengers administering

poisonous substances and that, they had robbed a person in the similar

fashion that day only, and, shall be again visiting Sarai Rohilla railway

station between 10 PM to 12 midnight to commit a similar crime, SI

Ravinder Singh recorded DD No.16 dated 18.08.2012 at 8:30 PM at

AATS/North District, Delhi. SI Ravinder Singh, AATS then prepared a

raiding team and left for apprehending such gang. There, the four

appellants Wasim Ahmed, Mohd. Javed, Mohd Abid and Mohd. Shafiq,

come to be apprehended by SI Ravinder Singh and his team, when they

reach there in TSR DL-1RK-3024 at about 10:30. During the course of

their interrogation, they make disclosure statement for having committed

the crime in the earlier part of the day. Their personal search is

conducted. From the personal search of 'Javed', stolen Rs.100/- currency

note was recovered. On the personal search of 'Wasim', two packets

containing white powder and stolen Rs.200/- were recovered. On the

personal search of 'Mohd. Abid', stolen election I-card and Rs.100/- were

recovered. On the personal search of Mohd. Shafiq, three packets

containing white power and stolen Rs.100/- were recovered. All of them

were arrested on 19.08.2012 at 12:30 AM. Case property was deposited

with Malkhana of PS Sarai Rohilla. Next day i.e. 19.08.2012, new IO,

namely, SI Parveen Maan came to be assigned the investigations. All of

appellants are said to have refused T.I.P on 23.08.2012. Case property

however came to be identified by 'Nabi Ulla' on 03.09.2012. Challan came

to be filed on 08.11.2012 for the trial of offences under Sections

328/379/411/34 IPC citing 20 prosecution witnesses. Two sets of charges

came to be framed against the four persons collectively. First charge was

for the commission of the offences under Sections 328/379/34 IPC for

having committed or facilitated the commission of theft of a bag

belonging to 'Nabi Ulla' containing Rs.500/- and other documents and

clothes, having administered him some stupefying thing mixed in a cold

drink i.e. Maza. The second charge was for the offence punishable under

Section 411 IPC for having been found in possession of one bag belonging

to 'Nabi Ulla' containing his clothes and other articles and retaining the

same, knowing it to be stolen one. All the accused denied such charges.

Prosecution examined 13 witnesses out of 20 and PE was closed. In the

statements of the accused recorded under Section 313 of Cr.P.C., they

denied all the incriminating material put to them. They did not lead any

defence evidence. Vide the impugned judgment, they came to be

convicted and handed over the similar punishment for all the offences vide

the impugned order on sentence.

3. Ld. Legal Aid Counsel for the appellants strenuously contended that

there were not only serious inconsistencies and contradictions in the

depositions of the prosecution witnesses, the prosecution had equally

failed to establish and prove the sequence of events by holding back the

material available evidence and that, a new case was sought to be set up,

which was distinct from the case, with which the prosecution approached

the court. It came to be pointed out that the accused - appellants had come

to be identified by the alleged victim 'Nabi Ulla' for their role and identity

for the first time before the court only and that, his such deposition itself

was contradictory inasmuch as in his examination-in-chief, in the first

instance, he had deposed that Javed and Shafiq were the persons who had

initially met him, but, in the same breath, he deposed for Javed driving the

TSR, which they hired to go to railway station. According to the ld.

Counsel for the appellants, if, Javed was one of the persons, who met

'Nabi Ulla' in the bus and with whom he got down from the bus at

Peeragarhi, Javed could not be person driving auto/TSR. Another

contradiction and inconsistency pointed out by them was with regard to

the person, who purchased Maza bottles. It was pointed out that in his

statement Ex-PW1/A, on which an FIR came to be registered, 'Nabi Ulla'

had stated that the bottles of Maza were purchased by 'Wasim' getting

down at Inderlok Metro Station, whereas, Nabi Ulla PW1, in his

examination-in-chief before Court deposed for the Maza bottles

somewhere near Peeragarhi, and, that, such place near Peeragarhi, by no

means could be taken to be at Inderlok Metro Station. It was also

contended that though the MLC of 'Nabi Ulla', which formed part of the

charge sheet, was not proved, it could be read against and that, as per the

said MLC, 'Nabi Ulla' was fit for recording of statement at 5:30 PM of

18.08.2012, but, in his deposition before Court, he has deposed for having

regained consciousness at around 9 or 9:30 PM, and, therefore also, the

deposition of the complainant Nabi Ulla - PW1 was not trustworthy and

reliable. To discredit the trustworthiness of the deposition of PW1 'Nabi

Ulla', it was also contended that it was not a natural human conduct that

the four persons having administered stupefying substance, steal from his

pocket some money and a bag containing articles including his election Id-

card, but, do not choose to take away his mobile phone, from which, he

got a call made to the police. In their submission therefore, it was a

circumstance which created serious doubt on the veracity of the statement

of 'Nabi Ulla' on which the FIR came to be registered. As a sequel to such

suspicious circumstances, it was also contended that it was strange that

Nabi Ulla noted only last 4 digit number of the TSR, which are stated in

his statement Ex-PW1/A, there was no palpable reason to not to note

down the complete registration number nor any explanation in that regard

had come to be given. Assailing the impugned judgment, it was also

strenuously contended that there was no evidence for any stupefying

substance having been administered to Nabi Ulla inasmuch as, as per the

FSL report, no drug or tranquilizer was detected in gastric lavage sample.

Besides such contradictions, inconsistencies and the circumstances, which,

according to the ld. counsel for the appellants, were sufficient to discredit

the deposition of the prosecution witnesses and the prosecution story, the

failure of the police to join any public witness in the entire process of

apprehension and the recovery of the stolen articles and the other

incriminating material, though, it happened at a public place, where the

govt. residential quarters and the railway station were located nearby and

thereby, the govt. officials were easily available for being joined, it casts a

serious doubt about the alleged apprehension and the recovery of any

stolen property from the appellants. More so, when, according to the

prosecution, it was not a chance search, but, a planned raid. It also came

to be pointed out that the prosecution, for the reasons unexplained, had not

examined the Malkhana Mohrir {MHC(M)}, PS Sarai Rohilla and no

relevant extracts of the Malkhana register have come to be proved. Then,

it was also contended that the currency notes recovered from the four

accused-appellants were never identified by Nabi Ulla PW1. Last, but,

not the least, another circumstance to cast a shadow of doubt on the

prosecution case was that there was no strict compliance of the mandate of

section 157 Cr.P.C inasmuch as, though, the FIR is said to have been

registered on 18.08.2012 at about 6:50 PM, the copy of the FIR came to be

received by the MM only on 21.08.2012. In addition, for appellant Abid,

it also came to be contended that there was no evidence for any role

played by Abid in totality of the crime and the necessary ingredients to

prove his common intention for commission of any offence, were missing

not only in the prosecution case, but, even in the evidence led. It was thus

contended that the impugned judgment and the order on sentence were not

sustainable and liable to be quashed and set aside. In support of their

contentions, reliance was placed upon 219 (2015) DLT 271 Mohd.

Masoom vs. State of NCT of Delhi; 2014 (146) DRJ 629 Ram Prakash

vs. State; 2009 (3) JCC 2399 Ikramuddin vs. The State; and, 2004 (2)

Crimes 101 Lalla alias Raj Kumar Singh vs. State of UP.

4. Ld. Addl. PP on his part contended that the testimony of victim

PW1 'Nabi Ulla' was un-rebutted, un-challenged and un-controverted and

that, it inspired confidence. It was said that the PW1 Nabi Ulla had also

correctly identified the accused before the Court and his refusal to join

TIP, corroborated his deposition, which was unshaken. In his

submissions, the accused - the appellants had not only also failed to prove

any previous enmity of 'Nabi Ulla' with them, but, they had also failed to

put forth any defence. As for the non-joining of any public witness in the

proceedings conducted at the time of apprehension and the recovery of the

stolen articles, it was contended that the depositions of I.Os. PW5 and

PW13 are unshaken and the mere absence of any public witness at the

time of apprehension, was not fatal to the prosecution case. In support

thereof, reliance was placed upon (2015) 11 SCC 52 Jodhan vs. State of

M.P. As for the contradictions and the inconsistencies pointed out on

behalf of the appellants, it was contended that the discrepancies or the

contradictions were minor. In his submissions, the recovery of stolen

property of the appellants besides the powder recovered from two of the

appellants, which contained drug benzodizpine, duly supported the

deposition of PW1 'Nabi Ulla' and proved the prosecution case, beyond

reasonable doubt. It was thus submitted that the appeals had no merit and

deserved dismissal.

5. Trial Court has returned the findings on all the charges in favour of

the prosecution with the observations made in paras 5 to 7 of the

impugned judgment, which are as follows :

"5. PW1 deposed categorically that on 18.08.2012 at about 12 noon he had sit in a bus at Rao Vihar, Nangloi for going to New Delhi Railway Station so that can board in a train for going to his native village. On the way, two persons met him and they asked his name. They became friend because they all had made him believe that they were also going to Hardoi to celebrate Eid Festival. He further narrated the sequence of the event happened with him from stepping down from the bus and hiring an auto as well as consuming the Maza brought by one of the accused. He further deposed about the dizziness as well as found his bag missing. He found himself in the hospital. He also identified the accused persons in the court who had stolen his bag after giving stupefying substance in the Maza. Ld. Counsel for the accused had argued that the testimony of the PW1 Nabi Ullah is not reliable because he had deposed that he regained

conscious in the hospital at about 9-9.30 pm while the FIR has been registered in the present case at 6.50 pm. He further argued that the witness does not remember the exact place from where the Maza Bottle was purchased. He admitted that his mobile phone and purse were with him at that time. However, neither mobile phone had been taken by the accused persons. However, these arguments does not hold any water because the witness has categorically stated about the incident happened with him when he was robbed with his bag after the accused had given some intoxicating or stupefying substance. Not remembering the exact place where the Maza was given or the place where the another person sat on auto rikshaw does not discredit the testimony of this witness. The argument that he regained consciousness in the hospital at 9.30 pm does not mean that he was not in a position to give the statement earlier to the police. He deposed that he had given a mobile phone to some other person to call the police. He had identified his bag in the court which was stolen/taken by the accused persons. There is nothing to disbelieve the testimony of PW1 regarding the fact that he had been given the stupefying substance and thereafter his property was stolen. The argument of the Ld. Counsel of the accused that in the gastric lavage, no drug was found in the FSL does not mean that PW1 was not given stupefying substance. He was immediately taken by the PCR after receiving the call an the doctor had taken the gastric lavage means that accused was given something having intoxicating substance.

6. Moreover in the present case, the police acted swiftly and they had apprehended all the accused persons within half an hour registration of the case after receiving tip off. The PW1 in his statement had given the auto number in which he was made to sit as 3024. That auto was got stopped by the AATS. There were four police officers of AATS who had deposed categorically that they had apprehended the accused persons at about 9.20 pm in the auto bearing no.3024 coming from the side of Old Rohtak Road red light side. Testimonies of these witnesses has also proved the fact that it was the accused persons who had robbed the complainant with his bag after giving stupefying substance. From their possession, an amount of Rs.100/- each were recovered alongwith the articles contained in the said bag. That bag was identified by the complainant in the TIP conducted by

PW2 Sh. Viplav Dabas, Ld. MM. The testimony of PW2 remained unchallenged, unrebutted and uncontroverted.

7. From the above testimony on record it is established that it is the accused persons who had given the intoxicating substance in the Maza in order to commit theft. Prosecution has further proved that the accused persons were found in possession of the light cream powder having benzodizpine drugs. The prosecution has further proved that accused persons had stolen the property and the same had been found in their possession. Therefore the prosecution has proved its case under Sections 328/379/34 as well as Section 411 of IPC against all accused persons."

The conclusions arrived at by the trial Court with the observations

made in the afore-going paragraphs, I have no hesitation to say, are

without any due application of mind. It only reflects a casual and

insensitive approach in dealing with a case, least expected of a Criminal

Court, inasmuch as, any wrongful conclusion of conviction, results in

vindicating the violation of much enshrined fundamental rights of life and

liberty of a person, who is accused of a criminal offence. It is for this

reason that in criminal jurisprudence, the concept of benefit of doubt is

much recognized, lest, an innocent comes to be punished. It appears to be

a classic case, where all norms of a fair and proper investigation are

apparently violated and the un-corroborated, contradictory and

inconsistent deposition of the prosecution prime witness PW1 'Nabi Ulla',

has concluded into the impugned conviction and the order on sentence.

Both the investigating agency and the trial Court have faulted with their

insensitive approach in dealing with the matter. To say so, the reasons are

abound.

6. Prosecution story unfolds with a purported DD no. 62B dated

18.8.2012 recorded at PS Sarai Rohilla at 2.40 pm on an information given

by wireless operator of PCR through telephone that a person was lying

unconscious near Usha Mata Mandir. For the reasons unexplained, this

crucial piece of evidence has not come to be proved before the Court nor

the prosecution has come forward to examine anyone from PCR, for the

source of such information. The advertance to this DD no. 62B is made

for the simple reason that it forms part of the report filed under Section

173 Cr.P.C. In other words, it forms part of the material to be used against

the accused. That being so, it can very well be looked into. As per this

DD no. 62B, a person was lying unconscious at the spot. In his statement

Ex.PW1/A, on the premise whereof, the FIR came to be registered, PW1

Nabi Ulla says that he had given his own mobile phone to a passerby to

make a call to police and that passerby, made a phone call to no. 100. If a

person was lying unconscious, as recorded in DD no. 62B, the statement

in Ex.PW1/A that 'Nabi Ulla' by himself called a passerby and handing

over his mobile phone, asked him to call the police over no. 100 and

police so arrived, it is not only contradictory but difficult to believe. Had

he been conscious to hand over his mobile to a passerby and ask him to

call the police, there is no reason as to why he himself could not call

police over no. 100 for any purpose. Be that as it may, either of the two

statements is false. Let us proceed further. The person lying unconscious,

is then said to have been taken to Hindu Rao Hospital and an MLC is

prepared, which, though forms part of the challan/report filed under

Section 173 Cr.P.C., the prosecution, for the reasons unexplained, does

not come forward to prove this MLC in any manner. Suffice to say, MLC

is not a public document and it was required to be proved for its contents,

alike any other document. For the purpose, neither the doctor, who

examined 'Nabi Ulla' and prepared the MLC is examined nor it has come

to be proved in any other manner permissible under law. Since this MLC

forms part of the report filed by the police under Section 173 Cr.P.C., its

contents, if these support the accused, can be looked into. More so, when

the prosecution, having relied upon it, chose not to prove it. As per this

MLC, when the patient 'Nabi Ulla' was examined by the Doctor having

been brought by PCR at 3.10 pm, the patient was conscious and oriented

and he gave the alleged history of drinking some liquid half an hour

before, complaining of headache. In this MLC, there is not even an iota of

a word, for anyone else having administered any stupefying substance or

drug, which resulted in his condition, in which he was brought to the

hospital by PCR. Prosecution failed to prove this MLC and the ld. ASJ,

who conducted the trial, simply overlooked such vital material and

relevant facts. It is not the end of such lapses and omissions by the

prosecution or the trial Court. HC Naresh Pal, who, according to the

prosecution, recorded the statement Ex.PW1/A of 'Nabi Ulla' and having

recorded such statement, prepared Rukka and sent it for registration of the

FIR, the prosecution equally failed to examine. HC Naresh Pal was a

material witness of the prosecution to not only to corroborate the veracity

of the statement Ex.PW1/A, but, the other attending circumstances inter

alia of due registration of the FIR for the commission of the offences and

the due deposit of the sample collected by him from the hospital. Even,

the Rukka prepared by HC Naresh Pal and on the premise whereof, the

FIR Ex.PW4/A was recorded, has not come to be proved. As if, such

serious omissions were not sufficient to discredit or cast a serious shadow

of doubt on the prosecution case, the trial Court felt convinced to believe

the uncorroborated deposition of PW1 'Nabi Ulla' drawing inferences from

the other circumstances not sustainable under law. Suffice to say, it was

the foremost duty of the trial Court, to assess the trustworthiness of the

deposition of the only prime witness examined by the prosecution i.e.

PW1 Nabi Ulla and only, if, it would have inspired its confidence to some

extent, it should have then looked for the other corroborative evidence in

support thereof, unless, the deposition was such that it could be believed

and trusted without any corroboration. Trial Court in the given case has

just failed to follow this basic principle of criminal jurisprudence. On a

bare perusal of the deposition of the prosecution prime witness PW1, it

can be seen that it is not only contradictory in itself as regards the role

attributed to one of the accused namely Javed, it does not support the

case, with which the prosecution came to the Court, besides the fact that

the material particulars of correct identity of all the accused and their roles

in the commission of the distinct crimes are missing therefrom. As per the

prosecution case, as rightly pointed out by the ld. Counsel for the

appellants, two persons, who originally met 'Nabi Ulla' in the bus, were

certainly not the persons, who brought the Maza bottles, consuming

which, 'Nabi Ulla' went unconscious. As per the prosecution story, the

Maza bottles were bought by Wasim at Inderlok Metro Station and that,

all of them had consumed Maza and after consuming that, 'Nabi Ulla' had

fallen unconscious. In his deposition before Court, PW1 Nabi Ulla, has

however, deposed as under :

".................... On 18.8.2012, at about 12.00 noon, I sat in a bus at Rao Vihar Nangloi to go to New Delhi Railway Station to go to my native village. On the way, two persons met me and they asked my name and where I had to go. I replied them that I am going to Hardoi, thereafter both of them told me that they were also going to Hardoi to celebrate Ed festival. Both of them were in the age group of 25-30 yrs. Thereafter both of them took me in a auto rickhsaw. I alongwith both of them sat in the auto rickshaw which was being driven by the auto driver. After travelling 2-3 km in the auto rickshaw one another person sat in a auto rickshaw. Somewhere near the Peera Garhi, one of two persons who initially met me brought a Maza bottle and they asked me to take the Maza. I refused to take Maza but on the asking of them I consumed Maza. ................................................................................................."

This deposition of PW1 Nabi Ulla is totally silent for the role

ascribed to Wasim. Though, during cross, the accused-the appellants did

not confront PW1 Nabi Ulla with his previous statement Ex.PW1/A on the

material aspects of the identify and the roles attributable to the accused-the

appellants, the fact remains, what is deposed to by PW1 before Court, is

not only different from the prosecution case, but, contradictory in itself, as

regards the role attributed of accused Javed and Wasim. The trial Court

overlooking such serious discrepancies, contradictions and the other

omissions by the prosecution, has however, proceeded to believe the

deposition of PW1 'Nabi Ulla' drawing some kind of strength from the

other circumstances like some substance recovered from the accused-the

appellants, at the time of their apprehension, which, as per the FSL report,

was benzodizpine drug and the alleged recovery of stolen articles. In

doing so, the impression comes to be given that the depositions of the

recovery witnesses, were so trustworthy that the failure of the police

officers of AATS in joining any independent witness, was not fatal to the

prosecution case. In that context, when one adverts to the testimonies of

the witnesses to the apprehension, recovery and the arrest, these equally

do not inspire confidence for being believed. According to the

prosecution, SI Ravinder Singh PW2, received secret information in his

office at 8.30 pm for the accused-the appellants to be again coming to the

Sarai Rohilla Railway Station for committing the similar offence in the

night between 10 to 12. For the purpose, he records DD entry no. 16

dated 18.8.2012 Ex.PW2/A, forms a team and reaches near Sarai Rohilla

Railway Station at about 9.20 pm, but, undisputedly, does not make any

effort to join any railway official from the nearby railway station or the

residential quarters. For the reasons explained, the DD register, the

prosecution does not choose to produce and prove the correctness of such

DD entry no.16. Though, there are many other omissions and

discrepancies, to cut short, advertance to the alleged recoveries from the

four accused-the appellants, would suffice to talk about the veracity of

their depositions. HC Jitender PW11, who is one of the material

prosecution witnesses to prove the apprehension and the recovery of the

articles, has deposed for recovery of only one currency note of Rs.100

from Wasim and recovery of two stolen currency notes of Rs.100 from

Shafiq. Recovery memos Ex.PW2/E of Wasim and Ex.PW2/G of Shafiq,

however, speak otherwise. As per the recovery memo of Wasim, recovery

from him is of two currency notes of Rs.100/-, and, as per the recovery

memo of Shafiq, recovery of stolen currency note is of only one Rs.100.

These are the apparent material contradictions, which the trial Court,

simply ignored or did not notice. Ld. Counsel for the appellants, on their

part, though drew attention of this Court to the corrections for the date of

arrest having been changed from 17.8.2012 to 19.8.2012 in the arrest

memos Ex.PW2/J1 to Ex.PW2/J4, in the absence of the witness having

been confronted with and his explanation sought, no adverse inference can

be drawn and the contention raised to the contrary, therefore, deserves to

be rejected. In doing so, attention of the Court was however, attracted to

the fact that as per the said arrest memos, all the four were arrested at

12.30 am. This factual aspect however contradicts the testimony of

PW11, who has deposed during cross that it took around three hours in

completing the writing work at the spot. If that was so, the time of arrest

given in the arrest memos was incorrect inasmuch as, the accused had

reached the spot at about 10.30 p.m and even if it is assumed that the

writing work started immediately thereafter, it would have then finished at

1.30 not 12.30. All the writing work at the spot is said to have been done

by HC Jitender PW11. HC Rajesh Kumar PW3 in his cross however

deposed for the same having been done by the IO sitting on the footpath

and for the purpose, he deposed for the IO having taken about 3 to 3 1/2

hours. In the case, there are two IOs. 1st IO named in the FIR is SI G.N.

Tiwari. SI G.N. Tiwari PW5 in his brief deposition, has not deposed for

having done any effective investigation but for visiting HRH Hospital and

finding the victim admitted in the hospital, returning to the spot and then

the PS, and, for the investigation thereafter, having been assigned to SI

Praveen Mann. 2nd IO SI Praveen Mann, who appeared as PW13, has

deposed for the steps taken for T.I.P. of the accused and the case property,

besides sending the exhibits to FSL. But for such acts, there is nothing in

his deposition for joining the alleged victim Nabi Ulla for the purposes of

due investigations. Though PW13 has deposed for the appellants having

refused T.I.P., the T.I.P. proceedings, the prosecution equally failed to

prove on record and in the process, even such a corroborative piece of

evidence was withheld. In his cross-examination, PW13 has equally

admitted that he did not either prepare any site plan of the incident nor did

he enquire from the complainant with regard to the incident. Nabi Ulla

PW1 - the alleged victim in his cross-examination has also deposed that

the police officials did not visit his house during investigations and that,

they came to his house only to serve the summons of the case. In the

given scenario, what inspired the confidence of the trial Court to believe

the testimonies of IOs PW5 and PW13, it is difficult to understand. In the

given conspectus of things, one will have no hesitation to say that non-

joining of any independent witness at the time of apprehension and the

recovery of the alleged stupefying substance or the stolen articles equally

draws an adverse inference. The reliance placed upon Jodhan's case

(supra) by the ld. Addl. PP is therefore, of no avail to the prosecution. In

Jodhan's case, the Hon'ble High Court and the Hon'ble Supreme Court

had found that the witnesses examined by the prosecution were reliable

and their depositions had remained unshaken. That is not at all the

situation in the case in hand. As regards the aspect of any enmity having

been not established for PW1 Nabi Ulla to falsely implicate the appellants,

the reliance placed upon Lalla's case (supra) by the ld. Counsel for the

appellants is well founded inasmuch as, if the testimony of a witness is not

reliable, conviction cannot be based merely for the reason that the

witnesses have no enmity or reason to implicate the accused falsely. In

the end, it may only be noticed that though, the charges, as framed, are

not specific and distinct for the respective offences, it would suffice to

say, these do not cause any prejudice to the accused-the appellants. More

so, when this Court does not find favour with the impugned judgment of

conviction and the order on sentence.

7. In view of the foregoing, the impugned judgment of conviction

dated 19.1.2016 in FIR no. 280/12, PS Sarai Rohilla, under Sections

379/328/411/34 IPC and the consequent order on sentence dated

21.1.2016 against all the appellants are set aside. The appellants, who are

in custody, are ordered to be released forthwith, if, not required in any

other case. Copy of this judgment be sent to the Commissioner of Police

as also the Director of Prosecution for the necessary action(s) and

corrective measure(s) at their end. A copy of the judgment be also sent to

the concerned ASJ to ponder and ensure that the similar situation does not

re-occur. Appeals stand disposed off accordingly.

A. K. CHAWLA, J.

JUNE 16, 2017 ac/rc