Ali Akbar @ Bullet vs State
2020 Latest Caselaw 2252 Del

$~16
*       IN THE HIGH COURT OF DELHI AT NEW DELHI
+       CRL.A. 171/2020 & CRL.M.(BAIL) 278/2020
        ALI AKBAR @ BULLET                         ..... Appellant
                     Through:          Mr Rajiv Bajaj, Advocate.
                         versus
        STATE                                    ..... Respondent
                         Through:      Mr Amit Gupta, APP for State.
        CORAM:
        HON'BLE MR. JUSTICE VIBHU BAKHRU
                     ORDER

        %            27.07.2020

                   [Hearing held through video conferencing]

VIBHU BAKHRU, J

1. The appellant has filed the present appeal impugning a judgment dated 23.09.2019, whereby he was convicted of an offence punishable under Sections 392/397 of the Indian Penal Code, 1860 (IPC). The appellant also impugns an order on sentence dated 25.09.2019, whereby the appellant was sentenced to serve seven years of rigorous imprisonment along with a fine of ₹2,000/- and in default, to serve simple imprisonment for a further period of seven days for the offences for which he was convicted.

2. The said FIR was registered at the instance of Neeraj Kumar (hereafter 'the complainant'). He stated that he was employed with Planet Advertising Private Limited, Hauz Khas and was engaged in doing field work. He alleged that on the date of the said incident, at

about 8.00 PM, he was travelling from Oberoi Hotel towards Hauz Khas. While descending from the Lodhi Road flyover, he was stopped by two boys at a spot near the Lodhi Crematorium. The boys had blocked his path and stood in front of the motorcycle. He stated that one of the boys took out a cut throat razor (ustra) and forcibly removed his wallet from his trouser pocket. He stated that his wallet contained ₹160/-, his Voter ID Card, Aadhar Card and some documents. He raised an alarm and the two boys started running away from the spot. He also dialed 100 to report the incident. The boys ran towards the crematorium and at that time, two police officials were coming from that side. They heard him raise alarm and pursued the boys. They caught the heavier of the two boys but the other boy managed to run away. He stated that he identified that boy (the appellant herein) as the one who had threatened him with the ustra and had looted him.

3. It is the prosecution's case that on the basis of the complainant's call, DD No.36A was recorded and the same was handed over to SI Ashok Kumar (who deposed as PW-4). He, along with ASI Dharamveer, proceeded to the spot of the incident where they met the complainant, Ct. Hans Ram, and Ct. Ishwar Singh. They produced the appellant. SI Ashok Kumar recorded their statement and also prepared a sketch of the ustra. He sealed the said ustra in a pullanda made of white cloth and prepared the seizure memo. He also took the complainant's wallet in his possession and on the basis of the complaint prepared a rukka that was handed over to Ct. Ishwar Singh.

Ct. Ishwar Singh went to the police station (PS Hazrat Nizamuddin) and presented the rukka to ASI Patel Chandrakant, who got the FIR in question registered. After registration of the FIR, he handed a copy of the FIR and original rukka to Ct. Ishwar Singh, who then returned to the spot and handed over the original rukka and the FIR to the IO (SI Ashok Kumar).

4. The prosecution examined the complainant as PW-1. His testimony is consistent with his initial statement. He testified that on the date of the incident (that is on 05.04.2016) at about 8.00 PM, he was going to Hauz Khas from Oberoi Hotel on his motorcycle bearing no. DL 3S CH 9723. He stated that when he reached under the Lodhi Road flyover, two boys signalled him to stop his motorcycle and one of them asked him to yield whatever he had with him (jo kuch bhi hai nikalo). He stated that the other boy took out an ustra and showed it to him threateningly. Both of them hit him by fists and kicks and told him to give his wallet. He stated the boy who showed him the ustra attacked him but he somehow managed to save himself. In the meantime, that boy (identified as the appellant) took out his purse from his pocket and tried to run away from the spot along with his accomplice. He testified that he raised an alarm and some public persons gathered at the spot. Two police officials who were coming from the side of the cremation ground, heard his alarm and chased the two boys. He testified that they apprehended one of them (the appellant) and brought him before him. He identified that boy as the one who had shown him the ustra and taken out the purse from his

pocket.

5. He testified that the police station was informed of the incident. Two police officials arrived at the spot and he gave them his written complaint. He identified his signatures on the said statement (Ex.PW- 1/A). He stated that the police officials prepared a sketch of the ustra (Ex.PW-1/B) and the same bears his signatures. He also testified that the police officials recovered his purse from the possession of the appellant and the same was seized by a seizure memo (Ex.PW-1/D), which bears his signatures. He also confirmed that the police officials prepared a site plan (Ex.PW-1/E) at his instance and the said site plan also bears his signatures.

6. The two sealed pullandas were produced in the court. The seal was broken and the contents of pullandas were taken out. One contained a purse containing ₹160/-, as well as the complainant's Aadhar Card and Voter ID Card. The second pullanda was opened and one ustra was taken out. PW-1 identified the case property.

7. PW-1 was cross-examined. However, nothing that he stated in his cross-examination casts any doubt on his testimony.

8. The two police officials who had pursued the accused (Ct. Ishwar Singh and Ct. Hans Ram) were also examined. Ct. Ishwar Singh deposed as PW-3 and Ct. Hans Ram deposed as PW-6. Their testimonies are consistent with the testimony of the complainant in material aspects. They testified that on 05.04.2016, there were on patrolling duty. On the said date at about 8:15 PM, there were coming

from the side of the petrol pump and going towards PS Hazart Nizamuddin. When they reached the crematorium at Lala Lajpat Rai Road, they saw that two boys were running from the side of Lodhi Road flyover and one person was chasing them raising an alarm chor chor. He stated that on seeing them, both the boys turned back. They chased them and apprehended one of the two boys (identified as the appellant herein). They testified that the complainant had reported that the said boys had snatched his purse and had threatened him with an ustra. Ct. Hans Ram (PW-6) searched the appellant and recovered one purse from the right pocket of his trousers. The purse contained ₹160/-, one Aadhar Card, Voter ID card and some documents. The ustra was also recovered from the pocket of the trousers worn by the appellant.

9. SI Ashok Kumar deposed as PW-4. He testified that on 05.04.2016, he was at PS Hazrat Nizammudin and at about 8:20 PM, he received DD No.36A regarding a complaint of a robbery. He stated that he reached the spot opposite Shamshan Ghat, Lala Lajpat Rai Marg, New Delhi, where the complainant (Neeraj Kumar - PW-1), Ct. Hans Ram, (PW-6) and Ct. Ishwar Singh (PW-3) met him and produced the appellant. In his cross-examination, he deposed that HC Dharamveer also accompanied him. He testified that he received the ustra and the purse of the complainant from them and took the same into his possession. He prepared a sketch of the ustra.

10. Mr Bajaj, learned counsel appearing for the appellant assailed the impugned judgment on, essentially, three fronts. First, he stated

that public witnesses were not joined in the proceedings even though the appellant was apprehended on a busy street at about 8:15 PM. He submitted that at that time, a number of persons would be present at the spot but none of them were joined in the proceedings.

11. Second, he submitted that the complainant had made a telephone call to the police from his mobile number and the same established that he had not been robbed of his mobile. He submitted that there could be no explanation why the appellant would not have dispossessed the complainant of his mobile phone in the event he wanted to rob him. He earnestly contended that the fact that the complainant was not robbed of his mobile raised serious doubts as to whether the alleged offence had been committed by the appellant.

12. Third, he contended that the appellant's accomplice was not tried along with the appellant, although, it is the prosecution's case that the complainant was robbed by two persons (including the appellant). He submitted that although it was contended on behalf of the prosecution that the appellant's accomplice was absconding and was not apprehended, there was no order of any court declaring the appellant's accomplice as a proclaimed offender.

13. This Court is unable to accept that the prosecution's case ought to be doubted only for the reason that public witnesses were not joined in the proceedings at the time when the appellant was apprehended or for the reason that public witnesses were not examined by the prosecution. As noticed above, the testimony of the complainant

(PW-1) and other witnesses are consistent and leave no room for doubt that the appellant is guilty of the offence for which he has been convicted. Although, joining public witnesses in proceedings at the spot and examining them as witnesses for prosecution grants credibility to the prosecution's case, however, absence of joining witnesses does not necessarily raise a doubt as to the prosecution's case. The quality of the evidence led by the prosecution is material and in this case, this Court finds no reason to doubt the same.

14. The contention that the fact that complainant was not robbed of his mobile phone raises a doubt as to his allegation regarding commission of the offence, is also unmerited. It is not necessary that the complainant should have been robbed of all his belongings before he could make a grievance of him being robbed. The complainant had testified that the appellant and his accomplice had stopped his motorcycle and had showed him an ustra. The appellant had attacked him and removed his wallet from his trouser pocket. He had raised an alarm and the appellant and his accomplice had run away. It is apparent from his testimony that the appellant and his accomplice did not have the luxury of time to dispossess the complainant of all his belongings.

15. The fact that the appellant's accomplice was not tried along with the appellant also does not raise any doubt as to the case set up by the prosecution. The appellant's accomplice could not be apprehended and, therefore the charge sheet was filed only against the appellant. The fact that his accomplice could not be apprehended was

stated by the prosecution.

16. In view of the above, this Court finds no infirmity with the impugned judgment convicting the appellant of committing an offence punishable under Sections 392/397 of the IPC. This Court also does not find any flaw in the sentence awarded to the appellant as he has been awarded the minimum sentence stipulated for committing the offence for which he was convicted.

17. The present appeal is unmerited and is, accordingly, dismissed. The pending application is also disposed of.

VIBHU BAKHRU, J JULY 27, 2020 MK