Delhi High Court
The State (Nct Of Delhi) vs Rakesh @ Dhillu & Ors on 11 May, 2017
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on: 11th May, 2017
+ CRL.L.P. 254/2015
THE STATE (NCT OF DELHI) ..... Petitioner
Through: Mr. Tarang Srivastava, APP
versus
RAKESH @ DHILLU & ORS ..... Respondents
Through: Mr. Sumer Kumar Sethi &
Ms. Dolly Sharma, Advocate
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
ORDER (ORAL)
1. The three respondents stood trial in the court of sessions on the
charge for offences punishable under Sections 397/411/34 of Indian
Penal Code, 1860 (IPC) framed on 16.04.2014 on the basis of
evidence gathered during investigation on the conclusion of
investigation into First Information Report (FIR) No.523/2013 of
Police Station Sun Light Colony, the gravamen being that on
12.12.2013 at about 11:30 p.m. at khatta near masjid kilokari they in
furtherance of their common intention had committed robbery by
taking away cash amount of Rs.1300/- and one mobile phone from the
possession of Naseem son of Moinuddin (PW-2) at the point of a
knife. On the conclusion of the trial court, by judgment dated
21.08.2014, they were acquitted by the court of sessions. The State
has come up with the present petition seeking leave to appeal under
Section 378(4) of the Code of Criminal Procedure, 1973 (Cr.P.C.).
2. On notice, respondents have appeared through counsel. The
trial court record has been called for. The learned Additional Public
Prosecutor for the State and the learned counsel for the respondents
have been heard at length. Having regard to the explanation offered,
the delay in re-filing the petition is condoned and the application (Crl.
M.A.5136/2016) is disposed of.
3. On careful reappraisal of the evidence led by the prosecution
during the trial, this court finds that the view taken by the trial court
extending benefit of doubts cannot be said to be perverse or erroneous.
The reasons may be set out hereinafter.
4. The FIR was registered on the statement (Ex.PW-6/A) of
Shakeel Ahmed (PW-6) recorded sometime before 12:20 p.m. on
13.12.2013, the incident having occurred at 11:30 p.m. on 12.12.2013.
The investigating officer SI Jagdish Parsad (PW-9) had reached the
place of the said first informant, accompanied by Constable Naresh
Kumar (PW-7) pursuant to the intimation that had been logged in the
Police Station vide DD entry nos. 21-A (Ex.PW-4/A) and 22-A
(Ex.PW-4/B) respectively. The first DD entry (DD no.21-A) had been
logged at 11:30 p.m. on the night intervening 12-13.12.2013 on the
information received through Police Control Room (PCR) about a
quarrel near house no.B-28, kilokari masjid. Second intimation (DD
no.22-A) had been logged at 11:35 p.m. on the same night about
money having been snatched after assault on a person. In the FIR,
PW-6 stated that he was working at a dhaba of his maternal uncle
Akbar Ali where Rakesh @ Dhillu (the first respondent) would also
come for taking food. He alleged that the first respondent would not
pay the bill for the food taken and instead extend threats. He stated
that at about 11:30 p.m. Naseem (PW-2), another employee in the
same eating establishment, had gone to fetch soap from a nearby shop
when he was waylaid by the first respondent with his two associates
and at the point of knife relieved of money, cash of RS.1300/-, with
his mobile phone. He reported that PW-2 had raised alarm, on hearing
which he had also reached the place but the first respondent with his
associates, who had their faces muffled with cloth, had run away from
the place.
5. The prosecution case alleged that the three respondents were
apprehended, after pursuit, and upon search being made one knife and
cash of Rs.640/- was recovered from the first respondent, while
mobile phone of PW-2 snatched during the robbery that had been
reported was recovered from the second respondent. Necessary formal
proceedings were drawn with regard to seizures made and the arrests
effected.
6. During trial, the first informant PW-6 deposed that when he had
reached the place of occurrence, after being informed that Naseem
(PW-2) had been robbed, he had seen three young persons with
muffled faces running away. It is clear from his statement in the court
that he was not a witness to the robbery, or the events that occurred
immediately thereafter, wherein he may have sighted any of the three
respondents at the place where the crime was committed. Prosecution
made no effort to confront this witness, the first informant, with his
version in FIR based on his statement Ex.PW-6/A wherein he had
statedly seen the first respondent clearly with a knife while running
away with two of his associates immediately after the occurrence.
7. Naseem (PW-2) the victim of the crime, in turn, was totally
hostile and would not identify or connect any of the three respondents
with the crime. He stated that he was robbed by three persons at the
point of knife but he was unable to identify any of them. He stated
that he had raised alarm and some persons had gathered at the scene
and that his employer Akbar Ali had also reached the spot after
sometime. He was cross-examined by the public prosecutor. But, in
the said effort, nothing substantial came out except that his cash
amount of Rs.640/- had been recovered "from the accused persons".
This statement, obviously cannot take the case of the prosecution any
further and there is nothing unique about the currency notes which are
stated to have been recovered during the investigation of the case so as
to be connected with the currency notes which were carried at the time
of robbery by PW-2. The recovery of the mobile phone is not very
convincing, in that in the FIR or in the statement of the victim under
Section 161 Cr.P.C. there was no description of the phone instrument,
which had been taken away, by the perpetrators of the crime, from
PW-2. Some proof as to the ownership of the mobile phone in the
form of duplicate bill (Ex.PW-8/P-1) showing its purchase on
18.07.2013 was submitted later. The prosecution only proved the
seizure of the said duplicate bill dated 13.01.2014 by memo Ex.PW-
8/A with no corroborative evidence whatsoever as to its authenticity.
8. In the above facts and circumstances, the trial court found it
difficult to return finding of guilt against the accused persons merely
on the basis of recovery of money and of the mobile phone. The fact
remains that there is no cogent evidence brought on record as to the
role of any of the three respondents in the crime. Thus, they are found
to have been rightly acquitted by the trial court.
9. The petition for leave to appeal, thus, is devoid of substance and
is dismissed.
R.K.GAUBA, J.
MAY 11, 2017
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