Delhi High Court
Anwar Hussain vs State on 14 August, 2019
$~22
IN THE HIGH COURT OF DELHI AT NEW DELHI
Decided on:- 14th August, 2019
+ CRL.A. 753/2002
ANWAR HUSSAIN ..... Appellant
Through: Mr. S.P. Singh Chaudhari,
Advocate with Mr. Y.R.
Sharma, Mr. Udhav Pratap, &
Mr. Ujjwal Goel, Advocates
along with Appellant in person.
versus
STATE ..... Respondent
Through: Mr. Kewal Singh Ahuja, APP
for the State
CORAM:
HON'BLE MR. JUSTICE R.K.GAUBA
JUDGMENT (ORAL)
1. The appellant was arrested on 20.09.1996 in the wake of
registration of first information report (FIR) No.853/1996 by Police
Station Punjabi Bagh, the investigation eventually resulting in his trial
(in Sessions Case No.37/1997) in the court of Additional Sessions
Judge (ASJ) on the charge for the offences punishable under section
394 read with section 397 of the Indian Penal Code, 1860 (IPC) and
section 27 of the Arms Act, 1959. On conclusion of the said trial, he
was held guilty and convicted, as charged, by the trial court, by its
judgment dated 16.08.2002. By order dated 17.08.2002, rigorous
imprisonment for seven years with fine of Rs.5,000/-, in default in
payment of fine the appellant to undergo simple imprisonment for six
months was awarded as punishment for the offence under section 394
read with section 397 IPC. Further, by the same order, rigorous
imprisonment for three years with fine of Rs.5,000/- with simple
imprisonment for six months was awarded as punishment for offence
under section 27 of the Arms Act, 1959.
2. The appellant challenged the above-said judgment of
conviction, and order on sentence, by the present appeal presented in
September, 2002. The appeal was admitted and directed to come up in
due course from the list of 'Regular Matters'. By subsequent order
dated 24.08.2004 the sentence was suspended and the appellant was
released on bail. The turn of the appeal for final hearing has come up
almost seventeen years after it had been presented.
3. While the appeal had been admitted, the trial court record had
been called for by the registry. The said record, however, along with
similar records in a large number of appeals went missing. Though
there have been some administrative inquiries made, the
accountability for the said loss has not been fixed against any
individual, the matter to that extent having been closed reportedly with
the approval of Hon'ble the Chief Justice.
4. Against the backdrop of the loss of the trial court record,
administrative instructions were also issued for its reconstruction.
Pursuant to the said directions, the ASJ now presiding over the
concerned court made a report on 13.01.2012 submitting therewith
reconstructed record, to the extent it has been possible to do so. The
record so re-constructed, unfortunately, does not include the crucial
documents in the nature of seizure memo, medico-legal certificate, etc.
It, however, does include the statements of Gulshan Grover (PW-6)
and Subhash Chander (PW-7).
5. As is clear from the perusal of the copy of the judgment under
appeal, the offence of armed robbery was committed against the
person of PW-6, the other witness (PW-7) being his maternal uncle, he
also being present at the scene. Both PW-6 and PW-7, as per their
court testimonies, did support the prosecution case about sequence of
events wherein the former (PW-6) had been way-laid on road No.29,in
the vicinity of Tridev Travel on Old Rohtak Road within the
jurisdiction of Police Station Punjabi Bagh at about 9:45 p.m. on
20.09.1996. PW-6 statedly was carrying at that point of time a cloth
bag in which, besides certain documents, he was also having in his
possession cash amount of Rs.1,75,000/-. As per prosecution charge,
the appellant had accosted PW-6 at the point of a dagger and snatched
away the said cloth bag and had started running away, he being later
apprehended and the stolen money recovered from his possession.
According to the prosecution case, the appellant had caused injuries
with dagger which he was carrying at the time of commission of the
robbery. The prosecution case also stated that the said dagger was also
recovered.
6. The FIR had been registered not at the instance of PW-6 who, it
is stated, had been taken to hospital for medical aid. Instead, the case
was registered and the investigation was taken up on the basis of
statement of PW-7 who had been present with the former at the time
of commission of offence.
7. The court testimonies of PW-6 and PW-7 show that both of
them had refused to identify the appellants as the perpetrators of the
offences. Though it does appear that PW-6 had earlier pointed out the
appellant as the sole perpetrator. But then, under cross-examination
he expressed doubts also adding that he had been earlier tutored to
identify the appellant as the perpetrator. PW-7, in contrast, was totally
hostile to the prosecution case refusing to identify the appellant
thereby failing to connect him in any which way with the crime.
8. Given the long period of almost twenty three years which have
passed by, no useful purpose would be served by remitting the case for
de novo trial on account of the loss of record, particularly in view of
the hostile nature of the evidence of the two crucial witnesses, i.e.,
PW-6 and PW-7.
9. In the above facts and circumstances, benefit of doubts will
have to be given to the appellant. The appellant is acquitted. The
impugned judgment and order on sentence are set aside.
10. The appeal is disposed of accordingly.
R.K.GAUBA, J.
AUGUST 14, 2019
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